6
Demystifying International Child Abduction Claims Under the Hague Convention By Reid T. Sherard South Carolina Lawyer 26 Child custody cases are difficult, and can be made much worse by an international jurisdiction dispute. As South Carolina’s population increas- es—the last census reflected more than 15 percent growth since 2000, ranking in the top 10 of all states 1 the likelihood of an international child custody dispute coming in the door increases for the average South Carolina lawyer. All lawyers who accept child custody cases can improve their practices with a work- ing knowledge of The Convention on the Civil Aspects of International Child Abduction, done at the Hague on October 25, 1980 (Convention), which treaty seeks the prompt return of children wrongfully removed to or retained in any Contracting State. 2 Q. What is the first consideration? A. Confirm the Convention applies. Both the “removed from” and “removed to” countries must be Contracting States, so verifying the Convention applies is a crucial first step. The United States of America is a Contracting State, as are numer- ous other familiar countries such as Canada, Mexico, Brazil, the United Kingdom, Italy, Israel, Australia, France and Germany. 3 Next, ensure the child is not too old, as “the Convention shall cease to apply when the child attains the age of sixteen years.” 4 Q. The Convention does not apply; are there other options? A. Possibly. The Uniform Child Custody Jurisdiction and Enforcement Act, S.C. Code § 63-15- 300 et seq., may provide relief. Q. Will the government provide assistance? A. Yes, in certain areas. The United States Central Authority 5 can assist with both incoming and outgoing abduction cases (those where the child has been removed to or retained in a foreign country and the Convention litigation will take place in that country). For incoming cases, services include processing of an application for return submitted to a foreign coun- try’s central authority, assistance with locating the child and seeking a voluntary return. Q. Voluntary return is not an option, both countries are Contracting States and the child is under 16. What is the next liti- gation step? A. Consider the implementing authority and its limitation. The International Child Abduction Remedies Act (ICARA) implements the Convention and empowers courts to determine “only rights under the Convention and not the merits of any underlying child cus- tody claims.” 6 Stated another way, the court handling a matter filed under ICARA is solely to determine the jurisdiction in which custody will be adjudicated—the matter of custody itself is left for another day. 7 Q. Federal court or family court? A. Either. Though ICARA is a feder- al statute, there is no requirement the case be filed in federal court, just as there is no requirement of removal to the federal court if filed in the family court. In fact, “[t]he courts of the States and the United States district courts shall have con- current original jurisdiction of the actions arising under the Convention.” 8 Choice of court is a strategic decision. Q. What are the elements of a prima facie case, and what is the evidentiary standard? A. A petitioner must prove by a preponderance of the evidence that the child has been either PHOTO BY GEORGE FULTON

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Page 1: Demystifying International Child Abduction Claims … › storage › fd08cdb39ecf56ce...Demystifying International Child Abduction Claims Under the Hague Convention By Reid T. Sherard

Demystifying InternationalChild Abduction Claims Under

the Hague Convention By Reid T. Sherard

South Carolina Lawyer26

Child custody cases are difficult,and can be made much worse by aninternational jurisdiction dispute. AsSouth Carolina’s population increas-es—the last census reflected morethan 15 percent growth since 2000,ranking in the top 10 of all states1—the likelihood of an internationalchild custody dispute coming in thedoor increases for the average SouthCarolina lawyer. All lawyers whoaccept child custody cases canimprove their practices with a work-ing knowledge of The Conventionon the Civil Aspects of InternationalChild Abduction, done at the Hagueon October 25, 1980 (Convention),which treaty seeks the prompt returnof children wrongfully removed to orretained in any Contracting State.2

Q. What is the first consideration?A. Confirm the Conventionapplies. Both the “removed from”and “removed to” countries must beContracting States, so verifying theConvention applies is a crucial firststep. The United States of America isa Contracting State, as are numer-ous other familiar countries such asCanada, Mexico, Brazil, the UnitedKingdom, Italy, Israel, Australia,France and Germany.3 Next, ensurethe child is not too old, as “the

Convention shall cease to applywhen the child attains the age ofsixteen years.”4

Q. The Convention does notapply; are there other options?A. Possibly. The Uniform ChildCustody Jurisdiction andEnforcement Act, S.C. Code § 63-15-300 et seq., may provide relief.

Q. Will the government provideassistance?A. Yes, in certain areas. TheUnited States Central Authority5

can assist with both incoming andoutgoing abduction cases (thosewhere the child has been removedto or retained in a foreign countryand the Convention litigation willtake place in that country). Forincoming cases, services includeprocessing of an application forreturn submitted to a foreign coun-try’s central authority, assistancewith locating the child and seekinga voluntary return.

Q. Voluntary return is not anoption, both countries areContracting States and the childis under 16. What is the next liti-gation step?A. Consider the implementing

authority and its limitation. TheInternational Child AbductionRemedies Act (ICARA) implementsthe Convention and empowerscourts to determine “only rightsunder the Convention and not themerits of any underlying child cus-tody claims.”6 Stated another way,the court handling a matter filedunder ICARA is solely to determinethe jurisdiction in which custodywill be adjudicated—the matter ofcustody itself is left for another day.7

Q. Federal court or family court?A. Either. Though ICARA is a feder-al statute, there is no requirementthe case be filed in federal court,just as there is no requirement ofremoval to the federal court if filedin the family court. In fact, “[t]hecourts of the States and the UnitedStates district courts shall have con-current original jurisdiction of theactions arising under theConvention.”8 Choice of court is astrategic decision.

Q. What are the elements of aprima facie case, and what is theevidentiary standard?A. A petitioner must prove by apreponderance of the evidencethat the child has been either PH

OTO

BY

GEO

RGE

FULT

ON

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March 2013 27

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South C arolina Lawyer28

Sam Clawson, Ron Jones, Matt Story, Jay Mcdonald, Chris Staubes, and Ronnie Craig

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OFFICE: (843) 577 - 2026

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w r on g f ully r em oved t o t h iscoun t r y or w r on g f ully r et a in edin t h is coun t r y, w it h in t h e m ea n -in g of t h e Con ven t ion . 9

Specifically, a petitioner m ust prove:(1) the child was “ habitually resi-dent” in “ petitioner’s country of res-idence” at the tim e he/she waswrongfully rem oved or retained; (2)the rem oval or retention was inbreach of the petitioner’s custodyrights under the law of the petition-er’s “ hom e state” ; and (3) the peti-tioner had been ex ercising thoserights at the tim e of the retention.10

Q. W h a t does “ h a bit ua l r esiden ce” m ea n ?A . Ha bit ua l r esiden ce is a ca se-by-ca se det er m in a t ion . “ T hefram ers of the C onvention inten-tionally left ‘habitual residence’undefined, and intended that theterm be defined by the unique factsin each case.” 11 Because “ [a] personcan have only one habitual resi-dence,” 12 federal courts have adopt-ed a two-part fram ework to assist inthe h ighly fact-specific analysis.13

1 . Sh a r ed p a r en t a l i n t en tT he key question is “ [w]hether

the parents shared a settled inten-tion to abandon the form er countryof residence.” 14 T here are four cate-gories of cases:

i . T he fam ily as a unit has m ani-fested a settled purpose tochange habitual residence,despite the fact that one par-ent m ay have had qualm sabout the m ove.

ii . T he children’s in itial translo-cation from an establishedhabitual residence was clearlyintended to be of a specific,delim ited period.

ii i . I n between cases where thepetitioning parent had earlierconsented to let the childstay abroad for som e periodof am biguous duration.

iv. O ne parent intended to m oveto the new country of resi-dence on a trial or condition-al basis.15

In a dispute over habitual resi-dence, “ the representations of theparties cannot be accepted at facevalue, and courts must determine[habitual residence] from all avail-

able evidence.” 16 C ourts have con-sidered the following factors as evi-dence of parental intent: parentalemployment in the new country ofresidence; the purchase of a newhome in the new country and thesale of a home in the former coun-try; marital stability; the retention ofclose ties to the former country; thestorage and shipment of family pos-sessions; the citizenship status of theparents and the children; and thestability of the home environmentin the new country of residence.17

2 . A cc l i m a t i z a t i onO nce parental intent has been

considered, the next determinationis the extent of the child’s acclimati-zation to the new country.Requirements include “ an ‘actualchange in geography’ coupled withthe ‘passage of an appreciable periodof time, one sufficient for theacclimatization by the children tothe new environment.’” 18 “ T he ques-tion here ‘is not simply whether thechild’s life in the new country showssome minimal degree of settled pur-pose’ but whether the ‘child’s rela-tive attachments to the countries

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Looking forWHAT’S NEW?The What’s New column summarizes

recent developments in the law. Look for the column on the South

Carolina Bar website atwww.scbar.org/sclawyer.

Case summaries will be added to this site on a routine basis.

have changed to the point where[ordering the child’s return] wouldnow be tantamount to taking thechild out of the family and socialenvironment in which its life hasdeveloped.’” 19 School enrollment,participation in social activities, thelength of stay in the relative coun-tries and the child’s age have allbeen considered as evidence ofacclim atization.20 “ H appiness” is notthe standard,21 and the above factorsmay be more difficult to apply if thefamily is of considerable means.22

Q. W h a t ’s n ex t a f t er pr ovin gh a bit ua l r esiden ce?A . Sh ow in g t h e pet it ion er h a dr ig h t s of cust ody a n d w a s ex er -cisin g t h ose r ig h t s a t t h e t im e oft h e r em ova l or r et en t ion .1 . R i gh t s of cu st od y

T he nex t prong is whether thepetitioner had rights of custody tothe child,23 defined as “ rights relat-ing to the care of the person of thechild and, in particular, the right todeterm ine the child’s place of resi-dence.” 24 T hese rights m ay arise “ byoperation of law or by reason of ajudicial or adm inistrative decision,

or by reason of an agreem ent hav-ing legal effect …” 25 A court m aytake notice of the law of a foreigncountry,26 and if the law of the for-eign country vests both parentswith joint custody until a com pe-tent court enters a contrary order,th is prong is satisfied.27

2 . E x er c i si n g cu st od y r i gh t sSim ply having custody rights is

not enough; the rights m ust beex ercised. O n the other hand, “ ex er-cising” is sufficient, as the quality ofthe interaction is not the issue.28 Aparent having valid custody rightsunder the law of the country of thechild’s habitual residence cannot failto ex ercise those rights under theC onvention “ short of acts that con-stitute clear and unequivocal aban-donm ent of the child.” 29 As little asa few visits per year and payingchild support is likely sufficient.30

Q. T h e pr im a f a cie ca se look sst r on g ; w h a t else sh ould be con sider ed?A . A f f ir m at ive def enses. “ U pon ashowing of wrongful removal, returnof the child is required” unless the

respondent establishes a defense.31

D efenses are to be construed narrow-ly32 and “ are not a basis for avoidingreturn of a child merely because anAmerican court believes it can betteror more quickly resolve a dispute.” 33

M oreover, a court has discretion toorder a child’s return even if an affir-mative defense is proven.34

1 . C l ea r a n d con v i n c i n g ev i -d en ce d ef en ses

Two possible defen ses are “ (1)th at return would ex pose th e ch ildto a ‘grave risk’ of ‘ph ysical or psy-ch ological h arm or oth erwise place[th e ch ild] in an in tolerable situa-tion ’ an d (2) th at return of th ech ild would n ot be perm itted by‘fun dam en tal prin ciples of th eU n ited States relatin g to th e protec-tion of h um an righ ts an d fun da-m en tal freedom s.’” 35

G rave risk should consider “ notonly the probability of harm , butalso the m agnitude of the harm ifthe probability m aterializes.” 36 O neappellate court found this defensewill only apply where return of thechild puts the child in “ im m inentdanger prior to the resolution of thecustody dispute—e.g. , returning the

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South C arolina Lawyer30

child to a zone of war, fam ine ordisease” or “ there is a grave risk ofharm in cases of serious abuse orneglect, or ex traordinary em otionaldependence” and the child cannotbe protected by the court in thecountry of habitual residence.37

T he “ fundam ental principles”defense is reserved for “ the rareoccasion that return of a childwould utterly shock the conscienceof the court or offend all notions ofdue process.” 38

2 . P r ep on d er a n ce of t h e ev i -d en ce d ef en ses

Two other defenses are: “ (1) thatthe petition for a return was not filedwithin one year of the removal andthe child is now well-settled inanother country, and (2) that thepetitioner was not actually exercisinghis or her custodial rights at the timeof the removal or had consented toor acquiesced in the removal.” 39

T he form er, known as the “ well-settled” defense, cannot be invokedif the petition was filed within oneyear.40 T his defense m ay not beallowed even if the petition wasfiled outside the one-year period if

there are ex tenuating circum stancesunderlying the delayed petition.41

Proof of the well-settled defense willbe sim ilar to the acclim atizationprong addressed above; factors caninclude living arrangem ent, age,schooling, church attendance,im m igration status, location offriends and relatives, and stability ofparent’s em ploym ent and overallenvironm ent of the child.42

For the latter, the defense thatpetitioner was not actually exercisingcustodial rights at the time of theremoval is simply the converse of theprima facie case element; if a primafacie case is proved, this defense isnecessarily rejected.43 As to theremaining issues, any consent canonly occur before the removal/reten-tion. The specifics of any consentshould be analyzed,44 though a mere“ authorization to travel,” even ifsigned and notarized, will not likelybe sufficient.45 Acquiescence, on theother hand, necessarily occurs afterthe removal/retention and could be“ an act or statement with the requi-site formality, such as testimony in ajudicial proceeding; a convincingwritten renunciation of rights; or a

consistent attitude of acquiescenceover a significant period of time.” 46

T he preponderance standardalso applies to the final defense that“ the child objects to being returnedand has attained an age and degreeof m aturity at which it is appropri-ate to take account of its views.” 47

T he authoritative com m entary tothe C onvention suggests that chil-dren who are nearing age 16 shouldordinarily have their wishes respect-ed,48 and 14 years of age has beenheld sufficient under th is defense.49

A younger child m ay have its objec-tion honored if to not do so wouldm ean separating it from an oldersibling.50 A child as young as eighthas been found to be sufficientlym ature to provide evidence support-ing rejection of return ,51 and onedistrict judge gave som e considera-tion to the views of a five-year-old.52

H owever, undue influence by therem oving parent m ay eviscerateeven a m ature child’s objection.53

Q. Ca n a pet it ion er r ecover f eesa n d cost s?A . Yes. I f return is ordered, the court“ shall order the respondent to pay

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necessary expenses incurred by or onbehalf of the petitioner, includingcourt costs, legal fees, foster home orother care during the course of pro-ceedings in the action, and trans-portation costs related to the returnof the child, unless the respondentestablishes that such order would beclearly inappropriate.”54 There is noconverse provision if the court doesnot order return.

Q. How long will the case take?A. Probably not long.55 TheDistrict of South Carolina’sElectronic Case Filing shows actionsbeing tried56 within a few months ofthe date of filing of the petition.57

Q. Will discovery be allowed?A. Maybe. Though not specificallyreferenced in the Convention orICARA, written discovery and depo-sitions may be allowed in this dis-trict.58 If the matter is filed in familycourt, the South Carolina Rules ofFamily Court allow discovery “onlyby stipulation of the parties or bycourt order.”59

Q. Anything out of the ordinaryto expect at trial?A. Yes. Live witnesses may testify,including children, potentially “bycontemporaneous transmission froma different location” if there is “goodcause in compelling circumstanceswith appropriate safeguards.”60 Thereis also the possibility that the courtmay receive testimony via affidavit.61

While other evidentiary rules shouldapply, authentication requirementsare significantly relaxed.62

ConclusionProof of all necessary elements

of a prima facie case will likely bethe most important part of anyICARA case. Since the Convention“establishes a strong presumptionfavoring return of a wrongfullyremoved child,”63 if a prima faciecase is made, the respondent hasthe ability to prevail by affirmativedefense, but such a showing is moredifficult and is certainly not a guar-antee of success.

Reid T. Sherard is a partner in theGreenville office of Nelson Mullins

Riley & Scarborough, LLP practicingfamily law.

Endnotes1 Population Distribution and Change: 2000to 2010 (2011), available at www.census.gov/prod/cen2010/briefs/c2010br-01.pdf.

2 Convention on the Civil Aspects ofInternational Child Abduction, art. 1, Oct.25, 1980, [hereinafter Convention] availableat www.hcch.net/index_en.php?act=conventions.text&cid=24 (This article onlyaddresses actions seeking return of a child;the Convention also allows a left-behindparent to merely seek access to/visitationwith the removed child).

3 Status Table, available at www.hcch.net/index_en.php?act=conventions.status&cid=24 (last visited Feb. 6, 2013). A SouthCarolina appellate court once relied in parton potential relocation to a non-ContractingState as a reason to affirm the family court’sban on international travel for children. SeePirayesh v. Pirayesh, 359 S.C. 284, 299, 596S.E.2d 505, 513-14 (Ct. App. 2004).

4 Convention, supra note 2, art. 4. Thisapplies even if a petition for return was filedbefore the child turned 16. HagueInternational Child Abduction Convention:Text and Legal Analysis, 51 Fed. Reg. 10494,10504, Department of State Public Notice957 (March 26, 1986) (“Public Notice 957”);Elisa Pérez-Vera, Explanatory Report on the1980 Child Abduction Convention, ¶ 77, at450, 3 Hague Conference on Private Int’lLaw, Acts and Documents of the FourteenthSession (1980), available at www.hcch.net/index_en.php?act=publications.details&pid=2779 (“Pérez-Vera Report”) (“no action ordecision based upon the Convention’s pro-visions can be taken with regard to a childafter its sixteenth birthday”).

5 See International Parental Child Abduction,available at http://travel.state.gov/abduction/abduction_580.html (last visited Feb. 6, 2013).

6 42 U.S.C. §§ 11601 et seq. and 11601(b)(4)(2006).

7 Convention, supra note 2, art. 16.8 42 U.S.C. § 11603(a) (2006).9 Id. at §§ 11603(e)(1) and 11603(e)(1)(A)(2006).

10 See Maxwell v. Maxwell, 588 F.3d 245, 250(4th Cir. 2009) (citation omitted).

11 Id. at 251 (citation omitted).12 Miller v. Miller, 240 F.3d 392, 400 (4th Cir.2001) (quotation omitted).

13 Maxwell, 588 F.3d at 251.14 Id. at 251 (citation omitted).15 Id. at 251-52 (citing Mozes v. Mozes, 239 F.3d1067, 1075 (9th Cir. 2001) and Papakosmasv. Papakosmas, 483 F.3d 617, 622 (9th Cir.2007) and others).

16 Maxwell, 588 F.3d at 252 (quotations omit-ted).

17 Id. at 252 (quotations omitted).18 Id. at 251 (quotations omitted).19 Id. at 253-54 (quotation omitted).20 Id. at 254 (citations omitted).21 Mozes, 239 F.3d at 1079.22 Reyes v. Jeffcoat, 3:12-cv-00298-JFA, Orderfiled 6/27/12, docket no. 81, p. 10, ¶ 11.

23 Maxwell, 588 F.3d at 254.24 Convention, supra note 2, art. 5(a).25 Id. at art. 3.

26 Id. at art. 14.27 See Bader v. Kramer, 445 F.3d 346, 351 (4thCir. 2006) (“Bader I”).

28 Friedrich v. Friedrich, 78 F.3d 1060, 1065-66(6th Cir. 1996) (“Friedrich II”).

29 Id. at 1066.30 Sealed Appellant v. Sealed Appellee, 394 F.3d338, 345 (5th Cir. 2004).

31 Bader v. Kramer, 484 F.3d 666, 668 (4th Cir.2007) (“Bader II”) (citation omitted).

32 42 U.S.C. § 11601(a)(4) (2006); Friedrich II,78 F.3d at 1067.

33 See Miller, 240 F.3d at 402 (citations omitted). 34 Public Notice 957, supra note 4, at 10509;Danaipour v. McLarey, 286 F.3d 1, 14 (1stCir. 2002) (citations omitted).

35 Bader II, 445 F.3d at 668 (citation omitted).36 Van De Sande v. Van De Sande, 431 F.3d 567,570 (7th Cir. 2005) (citations omitted).

37 Friedrich II, 78 F.3d at 1069 (emphases inoriginal).

38 Hazbun Escaf v. Rodriquez, 200 F. Supp. 2d603, 614 (E.D. Va. 2002) (quotation omitted).

39 Bader II, 445 F.3d at 668-69 (citation omitted).40 Convention, supra note 2, art. 12; 42 U.S.C.§ 11603(b) (2006).

41 Public Notice 957, supra note 4, at 10509;see Furnes v. Reeves, 362 F.3d 702 (11th Cir.2004); but see Toren v. Toren, 26 F. Supp. 2d240, 244 (D.Mass. 1998), vacated on othergrounds by Toren v. Toren, 191 F.3d 23 (1st Cir.1993) (the one year language used by theConvention is unambiguous and puts “somelimit on the uprooting of a settled child”).

42 Koc v. Koc (In re Koc), 181 F. Supp. 2d 136,152-54 (E.D.N.Y. 2001).

43 Bader II, 484 F.3d at 672.44 Nicolson v. Pappalardo, 605 F.3d 100, 105(1st Cir. 2010).

45 Mendez Lynch v. Mendez Lynch, 220 F. Supp.2d 1347, 1358-59 (M.D. Fla. 2002).

46 Friedrich II, 78 F.3d at 1070 (citations omit-ted).

47 Convention, supra note 2, art. 13; 42 U.S.C§ 11603(e)(2)(B) (2006).

48 Pérez-Vera Report, supra note 4, ¶ 30, at433 (“[T]he fact must be acknowledgedthat it would be very difficult to acceptthat a child of, for example, fifteen years ofage, should be returned against its will”).

49 McManus v. McManus, 354 F. Supp. 2d 62,71 (D. Mass. 2005).

50 Id. at 71-72.51 Blondin v. Dubois (Blondin IV), 238 F.3d 153,166 (2nd Cir. 2001).

52 Reyes Olguin v. Cruz Santana, 2005 WL67094 at *10 (E.D.N.Y. Jan. 13, 2005).

53 Giampaolo v. Erneta, 390 F. Supp. 2d 1269,1285 (N.D. Ga. 2004).

54 42 U.S.C. § 11607(b)(3) (2006).55 See Convention, supra note 2, art. 11.56 Technically, a court can act without a trial.See March v. Levin, 136 F. Supp. 2d 831, 834(M.D. Tenn. 2000) (citations omitted).

57 Fabijanic v. Fabijanic, 2:05-cv-1050-PMD;Reyes v. Jeffcoat, 3:12-cv-00298-JFA.

58 Reyes v. Jeffcoat, 3:12-cv-00298-JFA; Carronv. Grant, 2:05-cv-1046-PMD.59 Rule 25, SCRFC.60 Rule 43(a), FRCP.61 Maxwell, 588 F.3d at 254 n.19.62 42 U.S.C. § 11605 (2006).63 Danaipour, 286 F.3d at 13-14 (citationsomitted).