The Hague Convention on the Civil Aspects of International Child Abduction
(c) RONALD W NELSON PA
The Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980 (hereafter “Hague Convention”), was adopted by the United Sates on April 29, 1988. On that same date, Congress passed the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601 et seq. (hereafter “ICARA”). A petitioner files a Petition for Return under the provisions of the Convention and the United States implementing legislation alleging that a wrongful removal or retention of the petitioner’s children has occurred and that the children should be returned to their country of habitual residence and to the petitioner’s care. The Convention is only applicable if the child is abducted from one contracting nation to another contracting nation. The United States adopted the Hague Convention December 23, 1981.
1. Purpose of the Convention.
The stated purpose of the Hague Convention on the Civil Aspects of International Child Abduction is to “insure the prompt return of children who have been abducted from their country of habitual residence or wrongfully retained in a contracting state not their country of habitual residence.” (Hague Convention, Preamble.) That Preamble states that the Hague Convention seeks “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for the rights of access.” See alsoHague International Child Abduction Convention: Text and Legal Analysis, 51 Fed. Reg. 10,498 (March 26, 1986) (“Hague Convention”). As such, the primary intention of the Convention is to preserve whatever status quo custody arrangement existed for the parties’ children prior to the time of the alleged wrongful removal or retention and, thus, to deter a parent from crossing international boundaries in search of a more sympathetic court.
The most striking feature of the Convention is its procedural and jurisdictional focus. The International Child Abduction Remedies Act specifically provides that the Convention and its implementation “empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims.” 42 U.S.C. §11601(b)(4) (Emphasis added). As stated by the Court in Ohlander v. Larsen, 114 F.3d 1531, 1541 (10th Cir. 1997):
The Hague Convention was drafted with the intent to remove forever the incentive for a parent to flee across borders to obtain a favorable ruling. Letter of Transmittal from President Ronald Reagan (Oct. 30, 1985), reprinted in 51 Fed. Reg. 10494, 10,495 (1986); Pub. Notice 957, 51 Fed. Reg. 10494, 10505 (1986). Under the Convention, a child is to be expediently returned to his or her state of habitual residence “so that a court there can examine the merits of the custody dispute and award custody in the child’s best interests.” Pub. Notice 957, 51 Fed. Reg. at 10505.
As such, the Hague Convention does not provide any substantive rights and does not allow the court before which a Hague Convention action is filed to consider the merits of any underlying child custody claims. Instead, it only establishes a procedure in those countries that have adopted it by which the return of children under the age of sixteen years may be accomplished if the removal or retention of those children is determined to be “wrongful” under the Convention. Certainly, because of the complex nature of such cases a court may be tempted to inject its own view of an outcome regarding custody on the parties; however, that is not the court’s mandate under the Convention. As stated by the Court inFriedrich v. Friedrich, 983 F.2d 1396, 1402 (6th Cir. 1993):
Every family dispute has its own unique set of facts, and the case before us certainly is no different. However, there is a central core of matters at which the Hague Convention was aimed: situations where one parent attempts to settle a difficult family situation, and obtain an advantage in any possible future custody struggle, by returning to the parent’s native country, or country of preferred residence. That is exactly what happened here. The rights and wrongs of the actions of the respective parents are not before us for disposition on the merits.
Notwithstanding its complex nature, an action instituted under the Hague Convention is to be expedited. To effectuate the objects of the Convention, Contracting States are compelled to take all appropriate measures to secure within their territories to implement the objects of the Convention. For this purpose, the Convention provides that all Contracting States, as well as any judicial and administrative bodies of those Contracting States, “shall act expeditiously in all proceedings seeking the return of a children” and that those institutions shall use the most expeditious procedures available to the end that final decision be made within six weeks from the date of commencement of the proceedings.
The court before which the Hague Convention action is filed may stay any action in other pending cases that may impact the court’s decision. In addition, the mere fact that a custody decision is made after the wrongful removal or retention does not bind the court deciding the Hague Convention matter and is not a ground to refuse return of the children.
2. Jurisdiction and Venue
The International Child Abduction Remedies Act provides that state and federal courts have concurrent original jurisdiction to consider an action filed by a foreign parent to recover a child who has been wrongfully removed to or retained within the United States. An action for return of a child under provision of the Convention is instituted by the filing of a petition in any court in which the child is located at the time of filing of the petition. The particular court before which the action is filed is selected by the petitioner, although it must be in that place to which the child has been removed or retained. An action is not initiated at the request of the person alleging the wrongful removal or retention has taken place but, instead, by that person seeking return of the child and is initiated on the filing of a Petition in the proper jurisdiction and venue – not at the time application is made to the Central authority for the country from which the child has been removed.
To further effectuate and protect the rights of the Petitioner, the Convention provides that the judicial or administrative authorities of the country to which the child has been removed or in which the child has been retained “shall not decide on the merits of rights of custody until it is determined that the child is not to be returned.”
3. Burdens of Proof
In order to prevail on a Petition to Return a Child under the provisions of the Hague Convention, a Petitioner has the burden to prove by preponderance of the evidence that the child has been “wrongfully removed or retained” from the child’s “habitual residence.” If those elements are shown by the Petitioner, the children’s return is mandated unless the Respondent can establish, by clear and convincing evidence, that an exception to return under the Convention exists. As stated by the Kansas Supreme Court in Dalmasso v.Dalmasso, 269 Kan. 752, 758, 9 P.3d 551 (2000):
The petitioner seeking return of a child must prove by a preponderance of the evidence that the removal was wrongful. 42 U.S.C. § 11603(e)(1)(A) (1994). “That is, the evidence must show he or she was exercising lawful custody rights over the child at the time of removal.” 267 Kan. at 179. The question of whether lawful custody rights were being exercised at the time of the removal must be determined under the law of the child’s habitual residence. Convention, Art. 3(a), 51 Fed. Reg. at 10498; Freier v. Freier, 969 F.Supp. 436, 441 (E.D. Mich. 1996).
If the petitioner establishes a wrongful removal, the burden shifts to the respondent to show an exception to the Convention applies. . . . . Pursuant to ICARA, the respondent must prove these exceptions by clear and convincing evidence. 42 U.S.C. § 11603(e)(2)(A).
The exceptions to return are construed narrowly and the burden on a Respondent to show that the Convention should not be automatically applied high. It should be noted, however, that even if a Respondent proves one of the exceptions to return, the court always retains the discretion to order return, and none of the defenses allowed should be used as a basis to avoid return “merely because an American court believes it can better or more quickly resolve a dispute.”
4. Habitual Residence
The Hague Convention mandates return of any child who was a “habitual resident” in a contracting nation immediately before an action that constitutes a breach of custody or access rights. Although the term “habitual residence” is not defined in the Convention, it is not intended to be considered a technical term, but must be read broadly in the context of the Convention’s purpose of discourage unilateral removal of a child from that place where the children lived at the time of removal or retention. As was stated by the Court in Sampson v. Sampson, 267 Kan. 175, 177, 975 P.2d 1211 (1999):
Habitual residence is not a technical term like domicile; it should be understood as being the child’s “ordinary residence” at the relevant time; in determining the child’s habitual residence, the court should focus on the child, not the parents, and examine the past, not future intentions; and, for a particular residence to be considered habitual, there must be a degree of “settled purpose.”
Although not a technical term like “domicile,” “[a] person can have only one habitual residence. On its face, habitual residence pertains to customary residence prior to the removal. The court must look back in time, not forward.” A child’s “habitual residence” is determined at the time immediately prior to the incident alleged to constitute a wrongful removal or retention – not afterwards.
A parent cannot unilaterally create a new habitual residence by wrongfully removing or sequestering a child. See e.g. Re S and another (minors), 1 All.E.R. 237, 248 (Eng.Fam.Div. 1994)(mother wrongfully retained children by announcing her intention not to return the children to Israel, and asserting that she and they had acquired new habitual residence in England, even though this occurred before the agreed-upon period of their stay abroad had ended). As stated by the Court in Mozes v. Mozes, 239 F.3d 1067, 1079 (9th Cir. 2001):
The Convention is designed to prevent child abduction by reducing the incentive of the would-be abductor to seek unilateral custody over a child in another country. The greater the ease with which habitual residence may be shifted without the consent of both parents, the greater the incentive to try.
Neither may the “habitual residence” of a child shift from one country to another because the child is in the “new country” to visit with the other parent. As the Court in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) stated:
Where, as here, children already have a well-established habitual residence, simple consent to their present in another forum is not usually enough to shift it there. Rather, the agreement between the parents and the circumstances surrounding it must enable the court to infer a shared intent to abandon the previous habitual residence, such as when there is effective agreement on a stay of indefinite duration.
Mozes v. Mozes, 239 F.3d at 1081.
It should also be noted that although there may be a previous court determination in one country of the rights both parents have with the children, that decree does not in itself determine the habitual residence of the children. The habitual residence of the children may change depending on the facts that develop after entry of the original decree of divorce.Because the determination of “habitual residence” is primarily a “fact based” determination and not one encumbered by legal technicalities, the court must look at those facts, the shared intentions of the parties, the history of the children’s location and the settled nature of the family prior to the facts giving rise to the request for return.
4. Wrongful Removal or Retention
“If it is determined the child has been removed from its habitual residence, the petitioner parent must show by preponderance of the evidence that the removal was wrongful.” “The Convention’s approach to the phenomenon of international child abduction is straightforward. It is designed to restore the ‘factual’ status quo which is unilaterally altered when a parent abducts a child and aims to protect the legal custody rights of the non-abducting parent.”
Thus, the cornerstone of the Convention is the mandated return of the child to his or her circumstances prior to the abduction if one parent’s removal of the child from or retention in a Contracting State has violated the custody rights of the other, and is, therefore, ‘wrongful’. Hague Convention, Article 12.”
The Convention provides that the removal or retention of a child is “wrongful” whenever:
a. It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
“Generally speaking, ‘wrongful removal’ refers to the act of keeping the child without the consent of the person who was actually exercising custody of the child. ‘Wrongful retention’ refers to the act of keeping the child without the consent of the person who was actually exercising custody. The archetype of this conduct is the refusal by the noncustodial parent to return a child at the end of an authorized visitation period.” Legal Analysis of the Hague Convention, 51 Fed.Reg. 10494, 10503 (1986). A “wrongful removal or retention” of a child occurs within the meaning of the Convention when an action is taken by one parent in contravention to the rights of a person or instution under the law of the State of the child’s habitual residence.
“Under ICARA and the Convention, ‘wrongful removal’ may be found irrespective of whether the children are the subject of a custody order. 42 U.S.C. §11603(e)(2)(A).” As the Sixth Circuit Court of Appeals pointed out in Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993):
It is important to understand that “wrongful removal” is a legal term strictly defined in the Convention. It does not require an ad hoc determination or a balancing of the equities. Such action by a court would be contrary to a primary purpose of the Convention: to preserve the status quo and to deter parents from crossing international boundaries in search of a more sympathetic court.
The Convention does not require that any custody order be in force at the time of the removal or retention to make the removal or retention wrongful. The International Child Abduction Remedies Act specifically provides that a “wrongful removal or retention” as used in the Convention is to “include a removal or retention of a child before the entry of a custody order regarding that child.” Similarly, even though custody rights may be conferred by court decree, the Convention does not mandate recognition of the terms of that decree. Instead, the Convention seeks to restore the factual rights of custody that existed prior to the wrongful removal or retention of the children. Legal Analysis of the Hague Convention, 51 Fed.Reg. 10494, 10503 (1986). As stated by the Hague Convention Explanatory Note:
From the Convention’s standpoint, the removal of a child by one of the joint holders without the consent of the other, is . . . wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise. The Convention’s true nature is revealed most clearly in these situations: it is not concerned with establishing the person to whom custody of the child will belong at some point in the future, nor with the situations in which it may prove necessary to modify a decision awarding joint custody on the basis of facts which have subsequently changed. It seeks, more simply, to prevent a later decision on the matter being influenced by a change of circumstances brought about through unilateral action by one of the parties.
Elisa Perez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session (“Explanatory Report”), ¶ 71, at 447-48.
The parent seeking return of the children is considered to be “exercising” custody rights even though the physical care of the child has been turned over to the other parent for some period of time. As stated by the Court in Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996):
The Hague Convention does not define “exercise.” As judges in a common law country, we can easily imagine doing so ourselves. One might look to the law of the foreign country to determine if custody rights existed de jure, and then develop a test under the general principles of the Hague Convention to determine what activities – financial support, visitation – constitute sufficient exercise of de jure rights . . . . One might even approach a distinction between the exercise of “custody” rights and the exercise of “access” or “visitation” rights. . . .
We think it unwise to attempt any such project. Enforcement of the Convention should not to be made dependent on the creation of a common law definition of “exercise.” The only acceptable solution, in the absence of a ruling from a court in the country of habitual residence, is to liberally find “exercise” whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.
Friedrich v. Friedrich, 78 F.3d at 1064.
Article 3(a) and (b) recognize that custody rights may be exercised either jointly or alone. A mother and a father can both exercise joint custody, either by court order, following a custody determination, or by operation of law prior to the entry of any decree. As stated by the Perez-Vera Report:
Now, from the Convention’s standpoint, the removal of a child by one of the joint holders without the consent of the other, is equally wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise. The Convention’s true nature is revealed most clearly in these situations: it is not concerned with establishing the person to whom custody of the child will belong at some point in the future, nor with the situations in which it may prove necessary to modify a decision awarding joint custody on the basis of facts which have subsequently changed. It seeks, more simply, to prevent a later decision on the matter being influenced by a change of circumstances brought about through unilateral action by one of the parties.
Perez-Vera Report, ¶71.
“Very little is required of the applicant in support of the allegation that custody rights have actually been or would have been exercised. The applicant need only provide some preliminary evidence that he or she actually exercised custody of the child, for instance, took physical care of the child. . . . In the scheme of the Convention it is presumed that the person who has custody actually exercised it.” Legal Analysis of the Hague Convention, 51 Fed.Reg. 10494, 10507 (1986). This is made all the more clear by the fact that the Convention places the burden of proving the non-exercise of custody rights on the Respondent.
When the Petitioner has proven these elements: that the child has been “wrongfully removed or retained” from the child’s habitual residence, the child must be returned to the country of habitual residence unless excused by other narrow provisions of the Convention.
 See generally Linda Silberman, Hague Convention on International Child Abduction: A Brief Overview and Case Law Analysis, 28 Fam. L.Q. 9 (1994); Scott M. Smith, Annotation, Construction and Application of International Child Abduction Remedies Act, 125 A.L.R. Fed. 217 (1995); Julia Todd, The Hague Convention on the Civil Aspects of International Child Abduction: Are the Convention’s Goals Being Achieved?, 2 Indiana J. Global Legal Stud. 553 (1995).
 Linda Silberman, Hague Convention on International Child Abduction: A Brief Overview and Case Law Analysis, 28 Fam. L.Q. 9 (1994). See Sampson vs. Sampson, 267 Kan. 175, 178, 975 P.2d 1211 (1999).
 Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993); Sampson v. Sampson, 267 Kan. 175, 177, 975 P.2d 1211 (1999).
 Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001); Shalit v. Coppe, 182 F.3d 1124 (9th Cir. 1999).
 Hague Convention, Article 10.
 Hague Convention, Article 11.
 Hague Convention, Article 16.
 Hague Convention, Article 17.
 42 U.S.C. §11603 (a).
 42 U.S.C. §11603(b).
 42 U.S.C. §11603(b).
 42 U.S.C. §11602(4) and 42 U.S.C §11603(b).
 Hague Convention, Article 16; 42 U.S.C. §11601(b)(4).
 42 U.S.C. §11603(e)(1)(A).
 Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001).
 42 U.S.C. §11601(a)(4).
 Fredrich v. Fredrich, 78 F.3d 1060, 1067 (6th Cir. 1996); Feder v. Evans-Feder, 63 F.3d 217, 224 (3rd Cir. 1995) Feder v. Evans-Feder, 63 F.3d 217, 226 (3rd Cir. 1995).
 Hague Convention, Article 4.
 Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993).
 Friedrich v. Friedrich, 983 F.2d 1396, 1401-1402 (6th Cir. 1993); Shealy v. Shealy, 295 F.3d 1117, 1124 (10th Cir. 2002).
 Miller v. Miller, 240 F.3d 392, 400 (4th Cir. 2000); Feder v. Evans-Feder, 63 F.3d 217, 224 (3rd Cir. 1995).
 Miller v. Miller, 240 F.3d 392, 399 (4th Cir. 2001).
 Mozes v. Mozes, 239 F.3d 1067, 1073 (9th Cir. 2001); Feder v. Evans-Feder, 63 F.3d 217, 224 (3rd Cir. 1995).
 Sampson v. Sampson, 267 Kan.175, 179, 975 P.2d 1211 (1999).
 Pub. Notice 957, 51 Fed.Reg. 10494, 10505 (1986).
 Feder v. Evans-Feder, 63 F.3d 217, 221 (3rd Cir. 1995).
 Article 3, Hague Convention.
 Article 3, Hague Convention.
 Sampson v. Sampson, 267 Kan. 175, 179, 975 P.2d 1211 (1999).
 Sampson v. Sampson, 267 Kan. 175, 182, 975 P.2d 1211 (1999).
 42 U.S.C. §11603(f)(2).
 Hague Convention, Article 13.
 42 U.S.C. ¶11601.