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The Hague
Abduction Convention, Second Edition, provides a clear explanation of how the Hague Convention on
the Civil Aspects of International Child Abduction works in the United States.
Hague cases 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.
Purpose of the Book
The
purpose of the book is to explain as clearly as possible to family lawyers how
the Hague Convention on the Civil Aspects of International Child Abduction
works in the United States. The Convention operates in this country in ways
that are different than 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.
Voluminous
Litigation
The treaty itself is short and to the
point. Indeed, there are only three articles that legal practitioners really
use to any significant degree in the vast majority of Hague cases, these being
Articles 3, 12 and 13. Yet the Convention has spawned voluminous litigation,
most especially in the United States. There are several reasons for that.
·
The key terms in the Convention are
ambiguous and either completely or mostly undefined. One might at first glance
expect that straightforward terms such as “habitual residence,” “rights of
custody,” and even “grave risk” might be easy to apply in a consistent manner.
That has proven not to be the case. The key terms have been subjected to a
cascade of judicial interpretation in the United States, which has sometimes
been contradictory and often confusing.
·
The United States allows Hague cases to
be brought before unspecialized judges with no experience in handling them.
Somewhat hypocritically the U.S. State Department asks other countries to limit
the courts or judges that can handle Hague cases in their countries and to
train those judges in how to handle these cases, but there is no such
limitation or specialization in the United States. Federal and state courts
have concurrent jurisdiction and Hague cases can go to whichever court in a
local county handles family law matters. Since there are several thousand such
counties as well as many federal districts, a Hague case can be brought before
any one of thousands of courts in the United States.
·
The Supreme Court has never ruled on the
key issue in most Hague Convention cases, which is that of determining the
“habitual residence” of the child. The treaty is supposed to have one autonomous
meaning on a global level, but the common law system, which allows
interpretation to develop on a case-by-case basis, seems not to work so well
when decisions are supposed to yield a consensus in an international
environment. The situation is rendered far worse than one might have expected
because the U.S. Supreme Court has declined to handle all but one case. This
has allowed the federal circuits to go off in various directions, with no
guidance from the only court that could “lay down the law.”
·
Even though the treaty is intended to be
merely procedural in nature, parents who have brought their children to another
country in search of a “better” forum than the ones available in the former
residence may be desperate to prevent the children – and the cases concerning
the custody of their children – from being sent back to that foreign forum.
Likewise the parents of children who have been snatched by the other parent may
be just as desperate to have the “home court advantage” of having their child
custody case being heard “at home” instead of “away.” The differences between
the custody decisions that are rendered in the courts of different countries
are theoretically minimal, yet parents suspect – sometimes misguidedly, but
often with extremely good reason – that in the real world the outcomes will be
completely different depending on which country’s courts decide the case.
·
When
children are the subject of international family law disputes, the challenges
are often great and the emotions generally run high. Simply put, money can be
divided but children cannot. Divorcing parents who stay in the same town can
often make sensible arrangements to share the parenting of their children, and
if they cannot, a local court can issue appropriate orders and also enforce them
as needed. But when the parents cannot even agree on which country to live in,
all bets are off. Consequently Hague cases are often litigated.
·
Neither
the Convention nor the International Child Abduction Remedies Act which brought
the Convention into U.S. law, contains any provision for mediation. Currently
attempts are under way to implement programs for mediation of Hague cases but
they are not yet much utilized. There are special challenges to the use of
mediation in Hague cases because the cases are required to be concluded with
great speed and a petitioner generally does not want to yield on that and the
opportunities for compromise are limited in this area because a child can
realistically live in only one country at a time.
Handling
Hague Cases
Handling Hague abduction cases is
challenging and fulfilling. Hague cases are usually tried very quickly. Indeed,
they are supposed to be entirely concluded within just six weeks. They require
an intimate knowledge of the Convention and of the voluminous case law that has
developed around it. They 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 is misunderstood by very
many family lawyers and, dare I say it, by family judges. A lawyer in a Hague
case sometimes needs to provide a quick but respectful education to judges who
have not handled any or many such cases before.
I have had the good fortune to have
handled Hague cases in many jurisdictions throughout the United States and
sometimes in foreign countries also, usually working collaboratively with local
lawyers in each jurisdiction. I have also submitted expert evidence in many
cases around the world where compliance with the Convention, either past or
contemplated, has been an issue. Additionally, I have lectured on the
Convention before federal and state judges in New York State, at international
conferences of family law practitioners and at venues such as the Foreign
Ministry of Japan. It is fulfilling and exciting work.
