The below article was recently published in the May 2016 issue of AJ Famille, a monthly publication featuring articles on all aspects of Family Law, with a French focus:
The
Hague Abduction Convention in the United States
Jeremy
D. Morley*
The Hague Convention on the Civil Aspects of
International Child Abduction is a remarkably successful international treaty
that has had a substantial impact globally in deterring international child
abduction.
The purpose of this article is to inform lawyers in
France of some of the distinct ways in which the Convention operates in the
United States.
Limited
Role of Central Authority
The State Department's Office of Children's Issues is
the U.S. Central Authority for Hague cases. Unlike many other countries, the
U.S. Central Authority does not litigate Hague cases, and is not involved in
any significant way in Hague litigation. A petitioning parent must retain
private counsel to initiate a Hague case in court in the U.S.
Submitting an application to the Office does not
initiate judicial proceedings, does not stop the clock for purposes of the “one
year and settled” exception to the Convention, and does not require the taking
parent to take or not to take any action. The Office does not appoint attorneys
for left-behind parents and does not file return petitions with the courts. The
responsibility for starting a Hague case in an appropriate court rests
exclusively with the left-behind parent.
One area in which the Central Authority has an
important role is that it is required by Congress to prepare regular reports as
to the compliance by other Hague countries with the provisions of the
Convention. These
reports are useful evidence in custody cases concerning whether or not a parent
should be allowed to take a child for a visit to a foreign country.
Treaty
Partners
The United States has not accepted as Hague
Convention treaty partners all countries that have acceded to the Convention.
The status of such acceptances must be checked whenever a Hague case is
contemplated.
Concurrent
Jurisdiction
In
many countries Hague cases are channeled to a limited number of judges who have
special training and experience in handling Hague cases. While the U.S. State
Department has lobbied other countries to provide such training and judicial
concentration in Hague cases, in the U.S. Hague cases can be brought before
either federal or state judges wherever the child is located. Since
there are several thousand counties and many federal judicial districts, a
Hague case can be brought before any one of thousands of courts in the U.S. Most such judges have
never handled a Hague case.”
Family
Court judges and U.S. federal judges have completely different backgrounds.
This means that the choice of the state or federal system can have a major
impact on the outcome of the case. Litigants and counsel might prefer a family
court judge who has experience in child custody cases or a federal judge who
does not have any such experience.
In
practice, the vast majority of Hague cases are brought in federal court. Petitioners
often prefer to bring the case in a court that is not accustomed to applying
“best interests” analyses in conventional child custody cases. Also, swift
action might be more likely in a federal court, whose dockets are shorter and
whose enforcement procedures are clear and forceful.
If the case is started in
a state court the respondent has the absolute right to
remove it to the federal court.
Application
and Petition
The standard Hague
application that is filed with the Central Authority need not contain much
detail. The usual procedure is that the petitioner’s attorneys will then file a
far more detailed petition in the appropriate court, which may be supported by
documentary evidence and even by sworn affidavits. Often an ex parte motion for
a protective order is filed at the same time, seeking an immediate court order
barring the respondent from leaving the jurisdiction with the child and
requiring that passports be deposited in court. The respondent then has a
limited period of time within which to file its responsive pleading, and must
appear in court at a certain time (often within just a few days) typically with
the child.
Live
Hearings
At the first court
appearance, petitioner’s attorney will normally explain the petitioner’s theory
of the case and ask the court to schedule a final hearing on the matter on as
expeditious a basis as possible. The respondent’s attorney will normally advise
the court at this time of the basis of the defense.
Occasionally a court
might decide the case summarily based on the papers submitted by the parties
but usually the court will schedule a hearing with live witnesses. The hearing
date should be well within the six week schedule
called for by the treaty.
The court will also generally
hear and resolve at this time any pre-hearing issues that either party might
raise. Such issues may include the following: Whether pre-hearing discovery
should be permitted and, if so, upon what terms; whether interim relief should
be ordered, or continued if previously ordered; whether a guardian or lawyer
should be appointed for the child; whether telephone or video testimony should
be permitted; and whether witness affidavits should be accepted in evidence.
Discovery
Pre-trial
discovery is often permitted provided it does not delay the trial. The
discovery can include pre-hearing depositions (out-of-court oral testimony of a
witness that is reduced to writing for later use in court), written
interrogatories, and demands for the production of documents and other
evidence.
Guardian
/ Lawyers for Child
If a respondent asserts an exception based either
upon grave risk of harm to the child or on the objections of a mature child,
the court mighty appoint an independent expert to help determine the facts or an
independent lawyer to represent the child. Courts have sometimes appointed an attorney to act in the dual role of the “guardian ad
litem” (a person the court appoints to investigate what solutions would be in
the “best interests of a child”) and as the child’s attorney.
Child’s
Testimony
The testimony of the
child who is the subject of a Hague petition may be heard in a Hague case when
appropriate. The child’s opinions are frequently permitted on the issue of a
mature child’s objection. A
child’s testimony has also been permitted as to facts concerning whether the
child was habitually resident in a specific location and as to the grave risk
exception. In such cases the courts make it quite clear that the weight they
will give to such testimony may be less than that given to the testimony of
other witnesses, depending on the age and maturity of the child and the extent
to which the child’s testimony is independent. A child’s testimony is often
taken in an informal manner.
Legal
Fees
The legal fees in a U.S.
Hague case can be very high. U.S. domestic law expands Article 26 of the
Convention by providing that any court that orders the return of a child under
the Hague Convention “shall order” the respondent to pay “necessary expenses”
incurred by or on behalf of the petitioner, “unless the respondent establishes
that such order would be clearly inappropriate.” However, there is no provision
for a winning respondent to claim legal fees from the petitioner.
Habitual
Residence
It may surprise foreign
lawyers to learn that the issue that creates the most confusion and lawyers’
time in American courts is that of habitual residence. Determining the child’s
“habitual residence” is a threshold issue in any Hague Convention case. It is
often outcome-determinative because, if the court concludes that the country
from which the child was removed was not the country of the child’s habitual
residence, the Convention will not apply and the petition must be dismissed.
Courts in the U.S. have
scrutinized the phrase extensively and there has been substantial diversity in
the way that it has been interpreted in different circuits and by many state
courts.
The courts have
developed three primary but divergent approaches to determine the habitual
residence.
The first approach –
followed by a majority of courts -- focuses primarily on parental intention,
with a subsidiary look at acclimatization. The parents' “last shared intent”
regarding their child's habitual residence is presumed to be controlling,
although the presumption can be rebutted in exceptional cases if the child has
sufficiently acclimatized to its new surroundings as to render a return order
unfair or seriously damaging.
Courts taking this
approach will decide that a child has acquired a new habitual residence only if
it is established that the parents had a shared and settled purpose to do so.
Many courts also require proof of an intention to abandon the former habitual
residence. The inquiry focuses on the state of mind of each of the parents, and
whether their intent was shared. This may be revealed by considering, for
example, whether or not they intended the move to be permanent or temporary,
how long they intended to stay, whether they had plans to return to a previous
residence, whether the shared intention was unconditional and whether an
express or implied condition was satisfied. It is possible, using this
approach, to find that a child remained habitually resident in a prior country
of residence despite having resided for several years in a new country, even
attending school and assimilating into the new community.
The second approach is
the “child-centered approach” whereby the courts look exclusively at the
child's objective circumstances and past experiences. Relevant inquiries
include whether the child is attending school, the child’s participation in
other cultural, and the child’s overall level of acclimatization and
integration into the community. The inquiry does not consider parental intent,
which is deemed to be entirely irrelevant.
The third approach
requires a mixed inquiry into both the child’s circumstances and the shared
intentions of the child’s parents. How much weight should be given to each
factor is unclear. Sometimes evidence of shared parental intent to abandon an
old habitual residence and acquire a new one will trump any evidence of
acclimatization from the child’s perspective. In other cases, sufficient
evidence of acclimatization will defeat any evidence of shared intent.
Unfortunately the U.S. Supreme
Court has never resolved the conflicting interpretations. As a result, the treaty can be
interpreted quite differently depending, for example, on whether the case is
brought on one side or the other of the Hudson River between New York and New
Jersey, with New York looking primarily at the last shared
parental intention and New Jersey looking far more at the actual “conditions on
the ground.” The treaty is supposed to have one autonomous
meaning on a global level, but that has rule not been respected in the U.S.
Since the majority
interpretation focuses on parental intention, it is essential whenever habitual
residence is disputed to present as much evidence as possible as to all the
factors that might indicate such intention.
Grave
Risk of Harm
The U.S. follows the general
principle that the grave risk of harm exception in Article 13(b) of the
Convention must be interpreted narrowly. The burden of proof of most of the
Hague exceptions is “preponderance of the evidence” but for
grave risk it is “clear and convincing evidence,” a much higher standard.
Expert testimony is often used by both sides,
especially testimony from doctors, psychologists, social workers and even
lawyers who can testify as to the resources available in the habitual
residence. Such testimony may be decisive in proving or disproving grave risk
of harm.
Many courts require a respondent to establish
prior harm to a child but also to prove that the authorities in the habitual
residence will not provide adequate protection if the child is returned. Some
courts have recently deviated from that requirement and the issue is unsettled.
A difficult situation
often arises when there is evidence of domestic violence against a spouse, but
less severe abuse or none at all directed at the child. Traditionally, a
respondent must show a strong link between the spousal abuse and harm to the
child, but some courts have adopted a broader approach. The cases vary
dramatically depending on the facts of the case and the nature and quality of
the evidence.
Undertakings
Some U.S. courts have
attached conditions, or undertakings, to a return order in an effort to
mitigate the risks that might result from the return. The U.S. Department of
State has urged that undertakings should be used sparingly and be narrowly
tailored to advance the Convention’s goal of prompt return. In some cases the
courts have stated that undertakings provide a false sense of security, since
they may well be totally unenforceable.
An
Alternative Procedure
There is an alternative
procedure in the U.S. to obtain the return of an abducted child.
Every American state)
has adopted the Uniform Child Custody Jurisdiction & Enforcement Act (the
“UCCJEA”), except Massachusetts which has a similar law.
The UCCJEA generally
requires U.S. courts to register and enforce custody determinations issued by a
foreign court if that court had jurisdiction under the jurisdictional
principles contained in the UCCJEA. If the child had lived in the foreign
country for the six months preceding the commencement of the foreign custody
case, and if that case was the first custody case concerning the child, the
foreign country will be the “home state” of the child within the meaning of the
UCCJEA, and an American court must normally consider that the foreign court had
custody jurisdiction.
It may be preferable
for a left-behind parent whose child has been taken to the U.S. to proceed
under the UCCJEA instead of the Hague Convention. There are several reasons for
this:
·
The primary venue for the litigation is the
jurisdiction from which the child was taken. This will usually be far more
convenient and comfortable than a distant and unfamiliar American court.
·
It is often far easier to establish that the
foreign country is the “home state” for UCCJEA purposes than the habitual
residence.
·
Once a notice to register the foreign custody
order is properly given in a U.S. court, it must be enforced unless the respondent
can establish that (1) the issuing court had no jurisdiction; or (2) the
foreign child custody determination was vacated, stayed, or modified by a court
in the foreign country; or (3) notice or an opportunity to be heard was not
given to the other parent.
·
The UCCJEA does not permit the respondent to
assert any of the exceptions that can be asserted in a Hague case.
·
A case can be brought under the UCCJEA to
register and enforce a foreign custody order even if the foreign country is not
a party to the Hague Convention (unless its child custody laws violate human
rights).
·
The Hague Convention does not provide an
effective mechanism for to enforce access rights. The UCCJEA has no such
restriction.
·
The Hague Convention applies only in respect of children
under the age of 16.
·
Hague cases generally raise “interesting” (i.e.,
expensive) issues. UCCJEA enforcement cases usually (but not always) do not.
Therefore UCCJEA cases are generally substantially cheaper.
On the other hand, it could be better in
some cases to bring suit under the Hague Convention, instead of under the
UCCJEA, for a variety of reasons:
·
The courts in the child’s habitual residence
might not exercise custody jurisdiction if the child is no longer located
there. From a U.S. perspective the courts of that country might have
jurisdiction but if those courts do not have jurisdiction under their own
jurisdictional rules and if there was no custody order in place prior to the
child's removal, there will be no foreign custody order to register and enforce
in the United States.
·
If the foreign country was not the home state
for purposes of the UCCJEA, because the
child lived there for less than six months (unless he or she was a baby less
than six months old), a custody order issued by a court in that country
will generally not be enforceable under the UCCJEA.
·
If
proper notice or a proper opportunity to be heard was not provided by the
foreign court, this will be fatal to an effort to register and enforce the
order in the U.S.
·
If the courts in the child’s habitual residence
act slowly it may well be far better to bring a Hague case forthwith in the
place where the child is currently located.
·
If the courts of the habitual residence will not
handle the custody case’ unless and until the child is returned there, it would
be possible for the left-behind parent to wait until the U.S. court has custody
jurisdiction, usually after six months, and then to sue for custody in the U.S.
state where the child is located. In such a situation, however, a Hague case
would invariably be a far wiser course, since it would be much quicker and it
would not open the door to a full-blown best interests analysis.
Conclusion
Hague cases are handled differently in the U.S.
than in other countries. The Convention generally works well but it requires
strategic implementation and expeditious implementation. In some cases it is
better to proceed under the UCCJEA.
*Jeremy D. Morley is a New York lawyer who handles Hague Convention
throughout the United States. He is the author of the American Bar Association
book, The Hague Abduction Convention:
Practical Issues and Procedures for Family Lawyers. He may be reached at
jmorley@international-divorce.com
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