Wednesday, July 22, 2015

How to Win a Hague Convention Child Abduction Case

For the family law practitioner looking for more information on the Hague Abduction Convention, I recommended that you seek out my book: The Hague Abduction Convention: Practical Issues and Procedures for the Family Lawyer, available for purchase HERE on the ABA's website. 

There is also a tremendous amount of information on my website regarding Hague matters, including the following article titled "How to Win a Hague Convention Child Abduction Case."  

How to Win a Hague Convention Child Abduction Case

                                                        by Jeremy D. Morley

Here are some tips for attorneys and clients faced with instituting or defending child abduction proceedings under the Hague Convention on the Civil Aspects of International Child Abduction, whether in the United States or internationally.

In a nutshell, a Hague Convention application may be made when a child is taken or retained across an international border, away from his or her habitual residence, without the consent of a parent who has rights of custody under the law of the habitual residence, if the two countries are parties to the Convention. The child must be promptly returned to the habitual residence unless the return will create a grave risk of harm to the child or another limited exception is established.

1. ACT FAST

An attorney must be ready to file a Hague Convention application and institute or defend a Hague Convention lawsuit on extremely short notice.

Prompt action may be critical. The Convention specifically requires that hearings be conducted expeditiously. Indeed, it is recommended that Hague cases be completely concluded within six weeks. A Hague case can theoretically be instituted more than a year after the abduction but a defense (or, more precisely, an exception) will then arise if the child has become settled in the new environment. In practice, the longer a child is in a new place the more likely it is that a court will be reluctant to send the child away.

Fast action by the left-behind parent is also necessary to help prevent a claim that the parent has acquiesced in the child's relocation, and to help to bolster a claim that the left-behind parent consented to the taking or retention in the first place.

Clients must move quickly to obtain the documents needed to file the initial application and then to collect the documents needed for the hearing. They should normally be asked to prepare a detailed family history and to assist the attorney to develop evidence as rapidly as possible.

In addition to the Hague application and lawsuit itself, counsel for the left-behind parent should take many other steps.

First, counsel should enlist the support of the U.S. State Department's Office of Children's Issues. Such support may be particularly helpful to locate the child. It might also be useful if the left-behind parent seeks a U.S. visa to enter the United States in order to attend the trial.

Second, if there is no custody order in place from a court in the jurisdiction of the habitual residence, counsel in the United States should consider advising the left-behind parent to institute civil proceedings in those courts for such an order (or perhaps for a modification of the original order). However, this should not be undertaken without U.S. counsel conferring with counsel in the other country.

Third, counsel should consider putting the abducting parent on immediate written and formal notice of the dire consequences, civil, criminal and financial, that the abduction will cause to that parent personally, and, possibly to others conspiring with the parent. It may be appropriate to provide an extremely short time for the abducting parent to cure the problem by returning the child. On the other hand, such notice might be counter-productive if there is a suspicion that the taking parent might hide the child.

Fourth, counsel must decide quickly whether to bring suit in state or federal court. The International Child Abduction Remedies Act provides for concurrent jurisdiction. Note that if a state court is chosen the respondent has the absolute right to remove the case to the federal court.


Click 
HERE to read the remainder of the article on my website.