Friday, September 23, 2016

Interview with Jeremy Morley: Local Father Desperate After Son is Reportedly Taken to Russia

 
Published: September 22, 2016, 4:36 pm
QUEENSBURY, N.Y. (NEWS10) — A Queensbury man is raising awareness to a growing global issue of International Child Abduction. It happens when a child is wrongfully taken and held in another country by a parent.
Unfortunately, it’s not uncommon.
Corey McKeighan shares custody of his son Xavier with his mother who is from Russia.
What was supposed to be a mother and son three week trip to her country, has McKeighan worried he will never get his son back.
Xavier is bright and full of energy. He just turned 4 on Monday.
“He was the best kid in the world. He was happy, he was funny.”
His ex-wife agreed to return on September 16th.
“The day before they were supposed to return, she had called me and said, ‘We’re not coming back and you’ll never see us again.'”
In a panic, McKeighan contacted the U.S. State Department, FBI, and congressional leaders. They are working with the foreign government to resolve this case that they say is international child abduction.
“It’s a gigantic problem,” International Family Law Attorney Jeremy Morley said.
Morley has worked on hundreds of these types of cases. In Russia, it is difficult because our countries are not in a treaty relationship.
“We know that the Russian legal system is unpredictable. What I would do in a case like this is start the process by making contact with the taken parent and advising the taken parent of how dangerous their intended course of conduct is.”
Xavier was diagnosed with autism and his routine and treatment is back home in New York.
His father is still waiting to give his son a card for his 4th birthday.
“The first thing I would do is sing, ‘Who Let the Dogs Out’ with him because that’s one of our favorite songs,” Corey said. “I feel like I keep hitting walls. I just keep seeing him in my heart and in my mind. It pushes me nonstop ever day, just trying to do what I can.”
A U.S. State Department official says:
“We are aware of the reports regarding an international parental child abduction case.  Due to privacy considerations, we decline to provide additional details.
One of the Department’s highest priorities is the welfare of U.S. citizens overseas. This is particularly true for children, who are among our most vulnerable citizens.  The Bureau of Consular Affairs, along with our Embassies and Consulates, works with parents and foreign governments to try to resolve these difficult cases. Generally speaking, in cases involving international parent-child abductions a U.S. Embassy or Consulate can facilitate contact with local authorities, provide information on local judicial and law enforcement processes, offer a list of attorneys and translators, and issue passports or other travel documents as appropriate under U.S law.”
McKeighan has created a Facebook Page to raise awareness of this global issue in the hopes of bringing Xavier back home to the United States.

Thursday, September 08, 2016

JDM Speaking at Paris Bar Association Event, 9/20

Jeremy will speak in Paris at the Paris Bar Association on Tuesday morning, Sept. 20th, together with Delphine Eskenazi (Libra Avocats in Paris) and Sophie Rodrigues (French Ministry of Justice). 

The theme of the event is a Comparison of French and U.S. Practices concerning International Child Abduction:
La French-American Bar association (FABA) organise le mardi 20 septembre de 8 h 30 à 10 h 30 à la Maison du Barreau une conférence relative aux enlèvements et déplacements illicites d’enfants, et spécialement dédiée aux pratiques comparées France/États-Unis. Ce sont deux heures qui seront validées au titre de la formation continue obligatoire des avocats.
Cette conférence sera animée par Jeremy Morley, avocat Newyorkais qui a récemment publié à l’AJ famille un article sur l’enlèvement d’enfants aux États-Unis (AJ fam. 2016. 253), Delphine Eskenazi, avocate parisienne qui a codirigé, avec Alexandre Boiché, au sein de cette même revue, le dossier « Divorce dans le monde » (novembre et décembre 2015), et Sophie Rodriguez, adjointe au chef du bureau du droit de l’Union, du droit international privé et de l’entraide civile (Ministère de la Justice / Direction des affaires civiles et du sceau).
  • Informations pratiques
8h30 – 9h :  petit déjeuner de
9h– 10h30 : Conférence / Questions
Lieu : Maison du Barreau, Salle Gaston Monnerville, 2-4 rue de Harlay, 75001 Paris
  • Contact et inscription
Merci de bien vouloir RSVP en écrivant à l’adresse suivante : infoparis@faba-law.com
Et pour toute question, écrire à l’adresse : infoparis@faba-law.com

Tuesday, September 06, 2016

Child Visits to Israel


Jeremy D. Morley*
When parents are separated and one wants to take a child to visit Israel, the other parent often worries that the child will not be returned, especially if the taking parent is Israeli or has expressed a desire to live in Israel. Such concerns should not be brushed aside. Obviously, if the taking parent is, for example, a homesick expat Israeli or a Jew who yearns to make aliyah to Israel or a person whose own parents live in Israel, the concerns of many left-behind parents will normally be greatly enhanced.
Both Israel and the United States are parties to the Hague Convention on the Civil Aspects of International Child Abduction. This treaty requires that children who are wrongfully retained away from the country of their habitual residence must normally be promptly returned to that country. Israel Indeed, any lawyer handling international child custody cases will be well aware that many of the major U.S. decided cases on the Hague Convention are cases with a significant Israeli connection. 
However, the Convention does not work automatically and children are often not returned. The left-behind parent must establish certain matters before the court in the foreign country and the taking parent may rely on any of the six exceptions (sometimes described as defenses) to the Convention. Hague cases are invariably stressful to both parents, and they can be extremely expensive.
Furthermore, some parents may take advantage of some of the unique features of the Israeli legal system once they have successfully taken a child into Israel. In particular, they may obtain a “stop” order that will prevent a child from being taken out of the country. Such orders are routinely issued and they incentivize a parent who wants the child to remain in Israel – either because of a belief that it would be better for the child to live there or in order to create leverage over the other parent in financial or child custody negotiations - to delay the custody case for as long as possible.
If the taking parent commences a custody case in an Israeli Family Court, such an order may even be issued ex parte (without notice to the other party) and transmitted immediately to the border police at all airports and border crossings. Or if the taking parent commences a divorce case in a religious court in Israel, a stop order may be issued by that court.
It can be difficult, expensive and nerve-wracking to try to overturn a stop order. It often provides powerful leverage to the taking parent who might be using such tactics with the left-behind parent.
We often work with parents in the United States who want to prevent their children from being taken to Israel because of such concerns or who want to create the strongest possible documentation and court orders that will authorize visits on terms that will drastically minimize the risk. There are various steps that can and should be taken to substantially reduce the risks.
_________________
*Jeremy D. Morley is a New York lawyer who handles international child matters globally, working always with local counsel as appropriate. He frequently handles complex and highly charged U.S.-Israeli child custody matters. 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

Friday, September 02, 2016

JDM Speaking at Beverly Hills Bar Association Event: 9/28

 
A lively conversation about the issues facing both international and family law practitioners in our global society. The speakers will discuss international visitation, child relocation, and the Hague convention as well as providing tips on strategic international divorce.

Speaker:
Jeremy Morley 
Premier International Family Law Attorney

Moderators:
Jennifer Riemer, CFLS 
Walzer Melcher LLP

Malcolm McNeil, Partner,
Arent Fox focusing on International Litigation
When: Wednesday, September 28, 2016, 6:00 pm to 8:30 pm
Where: Westside Tavern - Westwood Room (Directions, Parking is Complimentary)
$97 - Members who pay in advance*
$297 - Non BHBA Member Who Pay In Advance ($25 more for each at the Door)
Interested in Membership? Try it Free, No Commitment, for 30 days
Malcolm McNeil, Esq. & Albert S. Golbert, Esq. | International Law Committee Chairs
Brian Lepak, CFLS & Adam Philip Lipsic, CFLS | Family Law Section Chairs
Ellyn J. Stein, Esq. & Debra S. Frank, Esq. | Program Co-Chairs
 
 
To Attend & Register, follow the below link:
https://www.bhba.org/index.php/component/jevents/icalrepeat.detail/2016/09/28/487/-/from-beverly-hills-to-notting-hill-divorce-abroad-and-what-you-should-know

Thursday, September 01, 2016

Japan and the Hague Abduction Convention: An Update


Jeremy D. Morley[1]
Japan adopted the Hague Abduction Convention with effect from April 1, 2014. Before then, its reputation as a safe haven for international child abduction was almost universal. Japan yielded to international pressure by signing the Convention but its compliance with the treaty is questionable.
A few cases have been initiated in Japan under the Convention. Unfortunately decisions in Hague cases in Japan are not being officially reported, are private and are not accessible.
The U.S. State Department has reported that in 2015 there were no court-ordered returns of children from Japan, and that there were three voluntary returns. In one case, although a Japanese court ordered a child’s return to the United States, the order was not enforced.
Custody orders in family law cases in Japan are unenforceable. It is regarded as beyond the function and responsibility of the State to interfere with the privacy of family life. Accordingly, the drafters of Japan’s Act for Implementation of the Convention on the Civil Aspects of International Child Abduction had to create enforcement processes for the first time in Japan. This explains in part why the Implementing Act is unusually long.
However, the provisions concerning enforcement did not succeed in the only case reported by the U.S. State Department in which a court in Japan issued an order that a child should be returned to the U.S. The State Department has stated that, “In 2015, Japan failed to comply with its obligations under the Hague Abduction Convention in the area of enforcement of return orders. A Japanese court issued the first Convention return order to the United States in early 2015. Authorities attempted, but were unable to effectuate enforcement of the court order by December 31, 2015, exposing what may be a systemic flaw in Japan’s ability to enforce return orders.”  
Another extremely serious concern is that Article 28 of Japan’s Implementing Act expands the scope of the Article 13(b) exception in several significant respects.
Although the Convention provides that “grave risk” is not an absolute defense, but merely provides a court with a right, in the exercise of the court’s discretion, to choose not to return the child to its habitual residence, the Japanese law eliminates that discretion.
The Japanese law also adds three “circumstances” that a court “shall consider” whenever the grave risk defense is asserted. These are:
          i.        The first such circumstance is that courts are directed to consider whether there is “a risk” (but not a grave risk) that the child would be subject to “violence” if returned to the state of habitual residence, and defines violence to include “words” as well as “deeds” and “physical or psychological harm.” This emphasis on mere risk directly contradicts the treaty language.

        ii.        The second circumstance is if there is “a risk” that the taking parent “would be subject to violence etc. by the petitioner” in the state of habitual residence. However, the language of the Convention limits the scope of the grave risk exception to a risk to the child, not to a parent of the child.

      iii.        The third special element that a Japanese court must consider in a Hague case is, “Whether or not there are circumstances that make it difficult for the petitioner or the respondent to provide care for the child in the state of habitual residence.” However, this “circumstance” is entirely beyond the scope of the Convention.
Finally, I understand that all access cases are being submitted to the regular Family Courts pursuant to the regular procedures for custody cases and that the mediation that is required to be conducted in such cases is the regular mediation process rather than the expedited mediation that has been set up for Hague return cases. Unfortunately, mediation in family cases in Japan is generally, in my experience, extremely unhelpful, time-consuming and onerous for non-Japanese litigants. Accordingly, parents with access claims are generally extremely disappointed that their plight has not been improved.
All in all, there is grave cause for concern.


[1] Jeremy D. Morley is an international family lawyer in New York who works with family lawyers throughout the United States and globally. He is the author of two leading treatises on international family law, International Family Law Practice and The Hague Abduction Convention.  He frequently testifies as an expert witness on the child custody law and legal system of countries around the world, including India, Japan, China and Western Europe. He may be reached at jmorley@international-divorce.com.

Wednesday, August 24, 2016

Update on Pakistan & the Hague Abduction Convention

Pakistan on track to sign Hague Child Abduction Convention

A source of relief to both Pakistani and foreigner parents, the Hague Convention on the Civil Aspects of International Child Abduction will make it easier for families to bring their children to Pakistan, or to relocate their children to a foreign domicile, is nearly ready to be presented to the Cabinet for approval.

After the hectic efforts of ministers of law, finance and information, as well as the Foreign Office and the bureaucracies of the provinces, the convention has received approval almost unanimously.

The only words of reluctance for it have been, predictably, from the Council of Islamic Ideology.

As with the Women’s Protection Act, and the honour crimes bills, the necessity is to continue on the right path, despite the whimpering and protests of an archaic CII.


Meetings are imminent in the current few days, with high chances of the convention being granted preliminary approval.

The convention is required by Pakistani children stranded abroad, including for those with parents who are dual national, or foreign nationals.

Some countries such as the US even carry a warning on their website for children travelling to or from Pakistan, due to its current status as a non-signatory.

With the signing of the convention, Pakistan will be on track to receive wide acclaim from The Hague itself, as well as at the forum of the UN General Assembly, scheduled for next month.

Published in The Nation newspaper on 24-Aug-2016

Tuesday, August 16, 2016

The Hague Abduction Convention, Second Edition


The Second Edition of my book, The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers, has just been released.  Read below for some info about the book, and follow the link at the bottom of this post to purchase the Second Edition.
 
Author(s):

Sponsor(s):

Co-Sponsor(s):

Publisher(s):

Handling Hague abduction cases is challenging and fulfilling. Although Hague cases are tried very quickly, they still require an intimate knowledge of the Convention and of the voluminous case law that has developed around it.  Hague cases also require a complete understanding of international child custody law in general and in particular, for U.S. practitioners, of the relationship between The Hague Convention and the Uniform Child Custody Jurisdiction & Enforcement Act.
The Convention operates in the U.S. in ways that differ from those in other Hague countries.  This is because of the federal legislation that implements the treaty, the concurrence of federal and state jurisdiction, the lack of a specialized group of judges who handle cases under the Convention, the uniform state legislation on child custody jurisdiction, and a host of other factors.
When children are the subject of international family law disputes, the challenges are often great and emotions generally run high.  Simply put, money can be divided but children cannot.  This book is a must-have resource of any family law practitioner that wants to represent the best interests of his client and their heirs involved in a Hague case.

Wednesday, August 03, 2016

Canadian Court Upholds Expert Report on Risk of Child's Travel to Japan


In a custody case in British Columbia, Canada, the BC Supreme Court has accepted as an expert report my report on the international family law elements of the case with a particular reference to the abduction dangers of a child’s proposed visit to Japan, quoted extensively from my report, used the report as the basis for ordering sole custody of the subject child and re-affirmed certain non-removal and passport orders.

Wednesday, July 27, 2016

The Korean Family Relations Registry and Korean Passports for Children


Jeremy D. Morley

Nature and Purpose of the Registry
The Korean Family Registry is governed by Korea’s “Act on the Registration etc. of Family Relationships.” The purpose of the Act is defined in Article 1 as “to prescribe matters concerning the registration of establishment and changes in family relations such as the birth, marriage, death, etc. of people and matters concerning certification thereof.”
Korean clans have maintained family registers for many generations. In 1905 Japan annexed Korea and in 1909 introduced a “modern” national family registry system modeled closely on the Japanese “koseki” system of family registration. The rules were clarified by means of a Family Register Ordinance in 1922.
The purpose of the Korean registry was to provide for national control of the identity of citizens of the country, to permit clear identification of each citizen as a part of a specific family unit under the control of a specified male family head who had clear authority over and responsibility for all listed family members, and to facilitate government administration specifically including the collection of taxes. Under that system (the “hoju” system, when a daughter married, she was removed from her father's "hojeok” (family register) and transferred to her husband's.
In 2005 the system was modified to the extent of abolishing the authority of the male family head over the individual family members.
The current law governing the registration system was enacted in 2007 and has since been amended on several occasions.
Korean Nationality of Child

The child of a Korean national is entitled to Korean nationality, even if the other parent is not a Korean national. If the application for such nationality is not made upon the child’s birth, the Korean parent may apply for nationality for a minor child at any time thereafter. Article 2 of the Korean Nationality Act.
Method of Registration

A child outside Korea may be registered on the Korean Family Registry by the submission by a parent of Korean nationality of the original birth certificate of the child to a Korean Consulate, as well as the passports of the parents. If a child is registered on the Korean Family Registry the child is eligible for a Korean passport.
Passport Issuance Procedure

If a Korean national parent applies at a Korean Consulate for the issuance of a Korean passport for a child who is identified on the Korean Family Registry as his or her child, the Korean Consulate will issue a passport for the child based solely on information supplied by the Korean parent.
If only one parent applies for a passport he or she must sign a Legal Representative Agreement representing that he or she has the consent of the other parent. A warning is set forth at the foot of the Agreement warning that there are civil and criminal penalties for misrepresenting this crucial fact. However, in practice the Korean authorities do not check the veracity of the representation or require that any supporting evidence that the consent of the other parent was actually obtained.
The Korean authorities have no obligation to respect foreign custody orders. As a sovereign country Korea follows its own laws and procedures.
An Illustration of the Problem:
A Korean mother lives in Colorado, USA with a daughter who was born in the United States. The child is listed in the Korean Family Registry. The mother is divorced from the child’s American citizen father. By Colorado court order they share the custody of their child. The mother wants to obtain a Korean passport for the child without the knowledge or consent of the father and take the child covertly to Korea. If the mother visits a Korean consulate with her own Korean passport she will be asked to sign a Korean “Legal Representative Agreement” on behalf of herself and the father, representing that the other parent has consented. If she does so, despite the fact that her representation concerning the father’s supposed consent is false, she will receive a Korean passport for the child shortly thereafter and will be able to take the child out of the United States without the knowledge of the father.

Tuesday, July 12, 2016

Annual Hague Compliance Report Released


Jeremy D. Morley
The U.S. State Department has just issued its 2016 Annual Report on International Parental Child Abduction under the Sean and David Goldman International Child Abduction Prevention and Return Act.
The Report cites 21 countries that either demonstrated a pattern of noncompliance as defined in the Act or otherwise failed to comply with any of their obligations under the Convention.
The Report identifies 11 countries that, although they  are parties to the Hague Convention and are partners with the United States with respect to the Convention, have “demonstrated a pattern of noncompliance” with the Convention in 2015. These countries are Argentina, The Bahamas, Brazil, Colombia, Costa Rica, Dominican Republic, Ecuador, Guatemala, Honduras, Peru, and Romania.
The Report also lists two countries as countries that failed to comply with one or more of their obligations under the Convention with respect to the resolution of abduction or access cases. These countries are Austria and Japan. 
Finally, the Report lists 8 countries that are not signatories to the Hague Convention but nevertheless “demonstrated a pattern of noncompliance” in 2015. These countries are Egypt, India, Jordan, Lebanon, Nicaragua, Oman, Pakistan, and Tunisia.
It is extremely important to note that the failure of the State Department to identify a country as noncompliant with the Convention does not mean that the country is indeed compliant or that the legal or administrative authorities in such a country will return abducted children promptly to the United States.
Follow this link to view the full report:
https://travel.state.gov/content/childabduction/en/legal/compliance.html

Tuesday, June 14, 2016

"Abduction of Children to the United States" published in AJ Famille

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