Friday, January 13, 2006

Hague Convention – Burden of Proof Case

The U.S. Court of Appeals for the Fourth Circuit has ruled – in Humphrey v. Humphrey, a Hague Convention child abduction case concerning the removal of children from England to Virginia – that a federal district court in Virginia committed a fundamental error when it held that the left-behind father must establish the children’s habitual residence in England "beyond a reasonable doubt."
The International Child Abduction Remedies Act ("ICARA") requires a petitioner seeking return of an abducted child to show "by a preponderance of the evidence" that "the child has been wrongfully removed or retained within the meaning of the Convention." 42 U.S.C. § 11603(e)(1) (emphasis added). The Hague Convention, in turn, requires a petitioner to demonstrate that, among other things, that the children were "habitually resident" in petitioner’s country of residence at the time of their removal.
The Fourth Circuit sent the case back to the district court for a rehearing at which time the correct standard must be applied.