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Missing Kids
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
LAURA HAYES
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.