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“…Do You Know Where Your Children Are?… An Overview of the Hague Convention…” By Galit Moskowitz, Esq.



By: Galit Moskowitz, Esq.*

The case of international travel, the multitude of bi-national marriages worldwide and the ability of dual national children to possess more than one passport are all contributing factors to the rise in International Child Abduction.One of the most distressing experiences for a parent is to wake up one morning and learn that their child is missing.It is even worse to learn that the abductor is the other parent.In many instances one parent permits the other parent to travel with their child overseas, contemplating the return of the child.What happens however, when the parent with whom the child was traveling unilaterally decides not to return home with the child?

This is precisely the scenario that occurred in Baxter v. Baxter, 432 F.3d 363 (3d Cir. 2005).In Baxter, the parties were Australian Nationals and the child was born and raised in Australia.The parties were dissatisfied with the living conditions in which they have been residing and agreed that Ms Baxter would travel with the child to the United States.After her arrival in the United States Ms Baxter became acquainted with a gentleman who later became her paramour.Shortly thereafter, Ms Baxter decided that she wanted a divorce and that she wished to remain in the United States with the parties child.With Mr. Baxter in Australia and Ms Baxter in the United States with the parties child, what was he to do?How could he possibly secure the return of the child?

In situations such as these the appropriate legal mechanism is the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter Hague Convention).In order to invoke the Convention, the country to which the child was abducted must be a signatory to the Hague Convention.Also, the left behind parent must have had custody of the child at the time the abduction occurred.The objective is to secure the prompt return of the children wrongfully removed or retained in any Contracting StateAny person seeking the return of a child under the Hague Convention may commence a civil suit by filing a petition in a court where the child is located.Hague Convention Cases are usually brought in Federal Court, however, State Courts also have jurisdiction to adjudicate Hague Convention cases.

The primary goal of the Hague Convention is to prevent children from being wrongfully removed or retained internationally.The suite must be instituted within one year of the childs abduction.Otherwise, there is a risk that a Court may find that the child has become acclimatized to his or her new environment.By dealing only with the jurisdictional issue of where the custody matter should be adjudicated and not the merits of the case, the Hague Convention seeks to hinder a parents desire to abduct his or her child in the hopes of obtaining a more favorable custody determination in a foreign jurisdiction.

Another important element of the Hague Convention is that all contracting states must create a Central Authority.In the United States, the National Center of Missing and Exploited Children (hereinafter the Center) in Arlington, Virginia, is designated as the Central Authority.The role of the Central Authority includes locating abducted children, providing legal advice and legal aid when needed and preventing further harm to the child.The Central Authority also assists litigants in filling out the initial Hague application and may communicate with the Central Authority of the country form which the child was abducted to effectuate the return of the abducted child.If the central authorities of the two states are unable to reach a resolution, a litigant may petition the judicial or administrative authorities of the Contracting State.

The procedures associates with the Hague Convention are designed to restore the status quo to enable the court of the childs home state to adjudicate custody.The rational being that the courts of the country where the child habitually resides are best suited to determine the issue of custody, because evidence and witnesses are more readily available.However, the Court hearing the Hague Convention application must first determine where the childs habitual residence is.A childs habitual residence is defined as the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the childs perspective.The inquiry into the habitual residence must focus on the circumstances surrounding the childs presence there and the shared intentions of the parents.

Even though the Hague Convention was implemented to determine jurisdictional issues with regard to child custody, a respondent may plead one of the affirmative defenses in an attempt to persuade the Court that the abducted child should not be returned to his/her habitual residence.One such defense is consent under Article 13(a) of the Hague Convention which specifically states the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes thatthe person, institution or other body having care of the person of the childhad consented to or subsequently acquiesced in the removal or retention.This Article is to be construed by the court very narrowly.The defense of consent deals primarily with the petitioners behavior and actions prior to the removal of the child while acquiescence deals with the petitioners behavior subsequent to the removal.An inquiry into acquiescence hinges upon the subjective intent of the petitioner while proof of consent requires definitive statement or behavior that would indicate consent.

In Baxter, cited above, there was no issue as to whether Mr. Baxter consented to the childs removal.Rather, the issue was whether Ms Baxter wrongfully retained the child in the United States.In order to determine if the child was wrongfully retained the United States Court of Appeals Court had to determine the shared intentions of the parents.Specifically, the Court had to determine whether both parties intended for Australia to be abandoned as the childs habitual residence and to be replaced with the United States.

The Baxter Court opined that Australia was the childs habitual residence because the child had resided there before his removal and Mr. Baxter did not consent to the childs retention in the United States.As a result, the Court ordered that the child be returned to Australia.The Appellate Court noted that the district Courts analysis was erred because it focused only on the circumstances surrounding the childs removal from Australia, but not Ms Baxters subsequent wrongful retention of the child in the United States.

There are also other exceptions to the fundamental duty to return a child to his/her habitual residence under the Hague Convention.For instance, even if the left behind parent has invoked the Hague Convention and all of the requirements are satisfied, the application may be void if the subject child is older than the age of sixteen and objects to the return.The court may determine that the child is mature enough to take into account his/her views.

Another mechanism that may be utilized to prevent the return of an abducted child is the human rights defense.Under Article 20 of the Hague Convention, a court can refuse the return of an abducted child if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.In such a case, the applicable human rights law would be of the Contracting State hearing the return petition.For example, a New Jersey Court once refused to return the subject children of a Hague dispute to Uzbekistan because the petitioners father was the dictator of Uzbekistan.The New Jersey Court was not satisfied that there would be a fair custody trial in Uzbekistan.

Similar to the human rights and childs objection defenses, the grave risk of harm defense also provides means for a court to circumvent its obligation to return a child to his/her habitual residence.Article 13(b) of the Hague Convention states that if a respondent establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation than the return of the child is not mandated.

In Baxter, Ms Baxter invoked this exception to argue that the child should remain in the United States.She argued that returning him to Australia would created a grave risk of harm due to the substandard living conditions where the parties had resided, which was riddled with racial and domestic violence and hostile residents.The Court however, rejected Ms Baxters argument and noted that the inquiry into grave risk of harm focuses on the present living situation to which the child would be returned.The living situation prior to the removal or retention may of course be relevant, but not where the family decided to live, and the petitioner has since relocated.

Affirmative defenses to the Hague Convention are to be construed very narrowly.In fact, the grave risk of harm exception has been held to be applicable only when a child is placed in imminent danger, for example a zone of war, famine or disease as well as serious cases of abuse and neglect.Since these exceptions are difficult to prove, a practitioner should be well versed in the applicable case law in order to ascertain what circumstances would fall under the exceptions.

In sum, a practitioner filing a petition pursuant to the Hague Convention must be cognizant of a number of issues.First, is the time of filing within one year of the abduction?Second, was the petitioner exercising his/her rights of custody pursuant to the law of the childs habitual residence?Third, did the petitioner consent to the removal of the child or subsequently acquiesce to the same?Fourth, is the child over the age of sixteen and what is the likelihood that the child may desire to return to his/her habitual residence?Finally, would the child face a grave risk of harm be returning to the petitioner or would the childs fundamental human rights be compromised by his/her return?After all of these factors are considered a practitioner can better assess the likelihood of success of a Hague Convention petition.

* Galit Moskowitz, Esq., an associate in the family law department of Lesnevich & Marzano-Lesnevich, is the author of The Hague Convention on International Child Abduction and the Grave Risk of Harm Exception: Recent Decisions and their Implications on Children from Nations in Political Turmoil, Family Court Review, Vol. 41 No. X. (2003).The article analyzes the grave risk of harm exception as it applies to nations that experience political turmoil, such as Israel.

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