The Hague Convention and Family Law: FAQs

Parental child abduction is a living nightmare for parents and families across the globe. But what happens when your child is taken overseas? Continue reading here to find out.

Living in an interconnected world makes it easier for families to extend across international borders. However, this can lead to legal challenges that require cross-country cooperation and understanding.  The Hague Convention on Civil Aspects of International Child Abduction (“The Hague Convention”) is a treaty that many countries, including the United States, have joined. Its purpose is to protect children and their parents from the harmful effects of this growing crime.

If you have urgent questions or suspect you may face the scenario of International Parental Child Abduction in the future, here are some key questions and answers that could help.

FAQ 1: What Is The Hague Convention?

The Hague Convention on Civil Aspects of International Child Abduction was enacted into law through the International Child Abduction Remedies Act (ICARA), which provides that a parent whose child has been wrongfully removed from or retained their custody may petition for the child’s return to their country of habitual residence. This treaty was developed by the Hague Conference on Private International Law (HCCH) and entered into force in December 1983.

There are over 93 countries that participate in the treaty. This treaty governs the way other countries’ legal systems work together. There were two specific goals in mind at the time of The Hague Services Convention’s formation:

• Create a means to ensure that judicial and extrajudicial documents to be served abroad can be brought to the notice of the addressee in sufficient time.
• Improve the organization of mutual judicial assistance.

FAQ 2: How Important is Habitual Residence?

Habitual residence is a crucial concept within the Hague Convention. It refers to where a child has established a regular, integrated, and stable life. Determining habitual residence is essential in deciding which country’s legal system should govern issues like custody and visitation. This prevents parents from moving their children to another country to gain a legal advantage in custody disputes.

A left-behind parent pursuing their child’s return must demonstrate that the child was subjected to wrongful removal or retention per the Convention’s definition. It involves proving that the child’s habitual residence was in a foreign country immediately before the alleged illegal action occurred. The left-behind parent must also confirm their custody rights during the purported wrongful removal or retention.

FAQ 3: What issues arise in cross-border disputes under the Hague Convention?

There an infinite issues that could arise when dealing with international disputes. Often, many challenges intertwine legal, cultural, and jurisdictional complexities. While the Hague Convention emphasizes the prompt return of abducted children, certain exceptions exist, known as Hague Convention Defenses:

Defense 1: That the petitioner (parent seeking the return of the child) was not “actually exercising custody rights at the time of the removal or retention” under Article 13.

Defense 2: The petitioner “had consented to or acquiesced in the removal or retention” under Article 13.

Defense 3: More than one year passed from the time of the wrongful removal or retention until the date the petitioner commenced a judicial or administrative proceeding for the child’s return under Article 12.

Defense 4: The child is old enough and has a sufficient degree of maturity to knowingly object to being returned to the petitioner. It is appropriate to heed that objection under Article 13.

Defense 5: That “there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,” under Article 13(b), and

Defense 6: That return of the child would subject the child to violation of basic human rights and fundamental freedoms under Article 20.

Furthermore, when a child has dual nationality, conflicts might arise regarding which country’s laws should be applied. Effective communication between the legal systems of different countries can also be hindered by language barriers, slowing down the resolution process. As these cases touch upon the sensitive matters of a child’s welfare and custodial rights, working with an established Hague Convention Attorney can help guide you through these challenging scenarios.

FAQ 4: How Does the Hague Convention Interact with Family Law Matters?

Central authorities are vital in facilitating communication and cooperation between the countries involved in a case. They work together to locate the child, gather necessary information, and resolve the situation quickly. The Hague Convention highlights the importance of minimizing a child’s time separated from their custodial parent. This allows them to maintain stability in their lives.

Mediation methods can also offer a more amicable solution to family disputes. Integrating mediation into the Hague Convention proceedings could allow families to address their concerns outside the courtroom, reducing emotional distress and fostering cooperative outcomes prioritizing the children’s well-being.

Furthermore, the U.S. Department of State and an experienced Family Law Firm dedicated to International Parental Child Abduction cases can also help to enforce the safe return of your child or children.

How Can I Find a Hague Convention Attorney?

To help ensure you have the best possible outcome in your Hague Convention case, you should seek an attorney who understands the intricacy of dealing with state, federal, and international laws.

Family law attorneys Erin Masters and Anthony Joseph of Masters Law Group have extensive experience in cases involving international child abduction disputes in the State of Illinois and the United States federal court system. Our unique depth of knowledge, experience, and talent in the Hague Convention field highlights our competence in providing legal counsel for these fast-paced and stressful scenarios. 

For more information on our experience, here are a few of our highlighted Hague Convention cases:

• Efthymiou v. Labonte, Findings of Fact and Conclusions of Law
• Sulcaite, Memorandum Opinion, and Order
• Ho, Memorandum Opinion and Order
• Hinnendael, Decision, and Order

Contact our office today to schedule your consultation.