Some of the highest stakes we see have to do with cases involving international child abduction. International child abduction is the term we use when one parent moves with the children out of the country without the other parent’s consent or refuses to return the children home to the United States (or another home country) following an agreed-upon trip. Sometimes we call these cases “Hague cases,” referring to the law that governs them. Here are some steps to take and issues to consider if you find yourself involved in a Hague case:
1. Talk to an attorney. One of the first calls you make should be to a family law attorney. Even better, try to find an attorney who has handled Hague cases in the past, such as Greenblatt Law. These cases move quickly and retaining a lawyer with experience can make a difference. Keep in mind that you probably will need a lawyer in both countries.
2. Contact the Department of State. Your other initial call should be to the Department of State. Why should you contact the State Department? In 1980 when the United States became part of the Hague Convention, President Regan had to choose a “Central Authority.” The Hague Convention “establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained, as well as securing the exercise of visitation rights” 22 USCS §9001(a)(4). The Department of State is the United States’ Central Authority for international child abduction. Under the act, anyone seeking the return of their child should contact the Department of State. You may be more comfortable making this call with an attorney who has experience with Hague cases so that the right questions are asked.
3. Ask yourself, “where is my child’s ‘true’ home?” One of the questions asked by the International Child Abduction Remedies Act is where the child is a “habitual resident.” Habitual residence is not defined by the Hague Convention and must be determined by factual evidence on a case by case basis. Some things to consider are: where has your child lived for most of his or her life? Where do they attend school? Of which country(ies) are they a citizen? Did they go to the country they are currently in for a short vacation or a longer period of time? Was there an agreement for return home?
4. Ask yourself, “what is best for my child, not me?” The courts will always consider if there is a “grave risk of harm” to the child if they are returned. Article 13 of the Convention will not require a child to be returned if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place a child in an intolerable situation” USCS Child Abduction (Hague) Article 13(b). Courts will always look for what is in the best interest of the child, not you.
5. Did you give consent to your child leaving? An opposing party can present affirmative defenses against a claim under the International Child Abduction Remedies Act. Under Article 13 of the act, a child will not be returned if the petitioning party “had consented to or subsequently acquiesced in the removal or retention” USCS Child Abduction (Hague) Article 13(a). Consent and acquiescence are two different questions and must be analyzed separately. Make sure to tell your lawyer about any agreements you and the other parent had and provide any documents related to these agreements.
The lawyers at Greenblatt Law have experience dealing with international child abduction. If you are dealing with this, feel free to reach out. Since Hague cases unfold quickly, the best way to reach us for an urgent question is by email: [email protected]. We are here to help.