Taking action if one parent leaves the country with a child and refuses to return.
By Laura Hayes
Whether you are married, divorced, separated, or a single parent, having your child taken to another country by the other parent without your permission can be frightening. If a parent wrongfully removes a child from the country and refuses to return, the first step is to determine whether the country where the child is being wrongfully held has signed the Hague Convention on the Civil Aspects of International Child Abduction, a multinational treaty that provides specific steps and procedures for returning abducted children to their home country or habitual residence. The Hague Convention was established in 1980 and applies to countries that are signatories, not to states within the U.S. The Hague Convention attempts to deter a parent from crossing international borders in search of a more favorable jurisdiction for child custody purposes.
The purpose of the Hague Convention is to determine the child’s habitual residence, rule on any limited defenses to return the child, and ensure steps are taken to return the child quickly and safely to his or her country of habitual residence. In the majority of cases, courts will order that the child be immediately returned to the habitual residence for further custody proceedings. However, there are circumstances when a court will refuse to return a child to his or her habitual residence, such as if the child’s return would expose the child to physical or psychological harm, if “the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of” the child’s views, if a year or more has passed since the date of the wrongful removal or retention and it is shown that the child is settled in the new environment, or if the return of the child would be in violation of the U.S.’ “protection of human rights and fundamental freedoms.”
Once it has been determined that the child is being retained in a signatory country, the left-behind parent should file an application for the return of the child through the Hague Convention. While Hague Convention cases are given priority in the court system, it can take months to resolve a case. Taking action quickly after a child is wrongfully removed or retained in another country is imperative. If there is not already a court order outlining the parental rights of each parent with respect to that child, one of the first and most important steps is to obtain a court order granting the left-behind parent immediate possession/custody of the child. A parent seeking the return of a child through the Hague Convention must prove he or she has the right to possession or custody of that child, and the easiest way to prove this element is to provide a current custody order from the court within the child’s habitual residence.
Parents of abducted children do not have a right to an attorney, but the U.S. Office of Children’s Issues maintains a list of attorneys willing to work on Hague Convention cases for reduced or no fees depending on the applicants’ financial status. Though parents can represent themselves in court, it is strongly encouraged that parents find an attorney familiar with the steps and procedures for Hague Convention cases since generally the litigation occurs in the home country and the country where the child is being retained and there are specific procedures that must be followed. For more information on the Hague Convention and to file an application, go to the U.S. Department of State website at travel.state.gov/content/travel.html.TBJ
is a shareholder in KoonsFuller in Dallas, where she assists clients with family law, divorce, child custody, and all related matters. She is certified in family law by the Texas Board of Legal Specialization.
This content is for informational purposes only. Consult an attorney regarding specific legal questions.