Hague Child Abduction Convention Issue Briefs

by

Patricia M. Hoff, Legal Director Obstacles to the Recovery and Return

of Parentally Abducted Children Project American Bar Association

Center on Children and the Law 740 15th Street, NW

Washington, D.C. 20005

These issue briefs were written under grant 93-MC-CX-0002 from the Office of Juvenile Justice

and Delinquency Prevention, U.S. Department of Justice, to the American Bar Association Fund for Justice and Education. The official grant title is “Obstacles to the Recovery and Return of Parentally Abducted Children: Training, Technical Assistance, and Product Resources.” The project is directed by Dr. Linda Girdner at the ABA Center on Children and the Law.

Points of view or opinions in these materials are those of the author and do not necessarily

represent the official position of the Department of Justice. The views expressed herein have not been approved by the House of Delegates or the Board of

Governors of the American Bar Association and accordingly, should not be construed as representing the policy of the American Bar Association.

© 1997 American Bar Association Permission is granted to reproduce with proper attribution.

Hague Child Abduction Convention Issue Briefs This series of issue briefs highlight some of the important issues lawyers should consider when representing parents seeking return of their children from the United States pursuant to the Hague Child Abduction Convention. They were written by Patricia M. Hoff, Legal Director, Obstacles to the Recovery and Return of Parentally Abducted Children Project, ABA Center on Children and the Law, for dissemination to attorneys who participate in the International Child Abduction Attorney Network (ICAAN). The briefs address the following questions: •What are the elements of the case for return of a child under the Hague Convention on the Civil

Aspects of International Child Abduction? What should be included in the return petition? (See pages 1-8.)

•What defenses may be raised to a petition for return of a child under the Hague Convention on

the Civil Aspects of International Child Abduction? (See pages 9-15.) • Should a return petition under the Hague Convention on the Civil Aspects of International

Child Abduction be filed in state or federal court? (See pages 16-20.) •What assistance can the United States Central Authority provide when a case for return or

access is brought in this country under the Hague Convention on the Civil Aspects of International Child Abduction? (See pages 21-25).

The briefs should serve as a starting point for directed research. They are not intended as, and do not constitute, legal advice.

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HAGUE CHILD ABDUCTION CONVENTION ISSUE BRIEF #1i

ISSUE INTRODUCTION

What are the elements of the case for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction? What should be included in the return petition? If you can establish by a preponderance of the evidenceii that your client’s child has been wrongfully removed or retained within the meaning of the Hague Child Abduction Convention,iii the state or federal court hearing the matter is under a treaty obligation to order the child returned forthwith if less than a year has elapsed between the date of the wrongful removal or retention and the commencement of the proceeding.iv The duty to return is absolute unless the respondent establishes one of the limited exceptions set forth in the Convention. (These are the subject of another issue brief.) Even then, the court retains discretion to order the child’s return. In your initial screening of the case, scrutinize whether the alleged removal or retention would be wrongful under the Convention. If so, the Convention probably is your client’s best chance for getting the child returned quickly. A removal or retention is wrongful under Article 3 of the Convention, if: (a)it is in breach of custody rights attributed to a person,

institution, or 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 the removal or retention, those custody rights were actually exercised or would have been but for the removal or retention.

A basic understanding of the Convention terms italicized above is a prerequisite to drafting a thorough and effective petition for return.

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What are custody rights?

Custody rights are definedv to include “rights relating to the care of the person of the child, and in particular, the right to determine the child’s place of residence.” Whether the person asserting “custody rights” actually holds such rights is determined by the law of the child’s country of habitual residence. Custody rights may arise by operation of law, court order, or agreement of the parties.vi Violation of a custody order is not a prerequisite for seeking a child’s return under the Convention. Thus, a parent whose child is removed or retained by the other parent, without consent and prior to the entry of a custody order (e.g., during the marriage), may invoke the Convention for the child’s return, as well as the parent who has a custody order. There may be circumstances that permit a noncustodial parent with visitation (“access”) rights to seek return of the child under the Convention, instead of invoking the lesser remedies available for breach of access rights under Article 21. Courts in an number of countries have found that the right of a parent with court-decreed visitation rights to be consulted before the child is taken out of the country amounts to custody rights under the Convention. The rationale in such circumstances is that the noncustodial parent has a right to determine the child’s place of residence. The same result has been reached when the custodial parent is required by court order to obtain advance consent of the court before removing the child from the country.

What is the child’s country of “habitual residence” and why does it matter?

The Convention only applies if the child was habitually resident in a Contracting Statevii immediately before the alleged breach of custody or access rights.viii Assuming the Convention applies to the particular child, then the law of the child’s country of habitual residence governs whether the person seeking return was exercising custody rights, the breach of which would be actionable. Thus, the return petition should identify the child’s

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country of habitual residence and assert that the child was habitually resident in that country immediately before the alleged wrongful removal or retention. Further, the petition must allege that the removal or retention was in breach of custody rights that petitioner has under the law of the child’s habitual residence. The Convention does not define habitual residence. However, it is a long-recognized concept in the Hague Conference, which treats it as a question of fact, thus distinguishing it from “domicile.” Professor Elisa Perez-Vera, official reporter for the Hague Convention, explained that habitual residence is meant to refer to the center of the child’s life.ix Habitual residence must be determined by the facts and circumstances of each particular case.x It is a fluid concept. There is no fixed period of time that a child must live in a country for it to be considered the child’s habitual residence. In this respect, habitual residence differs from the “home state” concept in the UCCJA and PKPA, which is based on the child’s presence in the forum for at least six months before commencement of the proceeding. Depending upon the facts of the case, habitual residence could be established in a very short time. xi Yet it should be noted that continuous periods of residence of at least a year have nearly uniformly been held to constitute habitual residence, regardless of a parent’s intent.xii As petitioner’s attorney, you should review the substantial body of cases interpreting habitual residence.xiii One of the most frequently quoted -- and followed -- interpretations of habitual residence in Convention case law is found in the English decision, In re Batesxiv: There must be a degree of settled purpose. The purpose

may be one or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. That is not to say that the propositus intends to stay where he is indefinitely. Indeed, his purpose while settled may be for a limited period. Education, business or professional,

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employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode, and there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.

In framing the pleading, anticipate defenses the respondent may raise with regard to habitual residence. For instance, respondent may assert that the country from which the child was removed was not his/her country of habitual residence, or that petitioner did not have rights of custody under the law of the habitual residence.

What constitutes the “actual exercise” of custody rights?

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Petition for Return

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PROVISIONAL REMEDIES

As part of the prima facie case for return, the petitioner must allege that he or she was actually exercising custody rights conferred by the law of the country in which the child was habitually resident immediately before the removal or retention, or would have done so but for the wrongful conduct. While the bare allegation may suffice, it is helpful for the court to have facts supporting the allegation.. If petitioner was exercising custody pursuant to a court order, the petition should cite the applicable provisions of the order. Copies of relevant documents may be appended to the return petition and are admissible (see below). The Sixth Circuit Court of Appeals produced a useful interpretation of what actually exercised means in Friedrich v. Friedrich, 78 F.3d 1060, 1064,1065 (6th Cir. 1996): ...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...

We therefore hold that, if a person has valid custody rights

to a child under the law of the country of the child’s habitual residence, that person cannot fail to “exercise” those rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.

Under Article 13(a), the alleged abductor has the burden of proving the non-exercise of custody rights by the petitioner as an exception to the return obligation. This defense must be established by a preponderance of the evidence. 42 U.S.C. 11603(e)(2)(B).

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The petition for return should allege that: •The child is under the age of

•The child was habitually

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•The petitioner has custody

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•At the time of the removal

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•The respondent wrongfully

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•The Convention is in effect

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•This court [identify state or

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•Notice was given to

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If less than one year has elapsed between the wrongful removal or retention and commencement of the proceeding, the petition should so allege, as this eliminates one possible defense based on the child becoming settled in its new environment. xvii In the prayer for relief, the petitioner should request the court to order: •The child’s prompt return

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•The respondent to pay

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Certain situations may necessitate interim

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remedial measures before the court can hear the Hague return case. Under 42 U.S.C. 11604, petitioner may request the court to order provisional remedies to protect the well-being of the child or to prevent the child from being abducted or concealed again before final disposition of the case. The request for provisional remedies may be made in the return petition, or in a separate pleadingxviii filed immediately prior to filing the petition for return. Examples of the kind of relief petitioner may seek pending the outcome of the Hague case include orders: •prohibiting the respondent

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•directing respondent to post

•requiring respondent to

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•directing law enforcement

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ADMISSIBILITY OF DOCUMENTS

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Counsel may append to the return petition any documents or other information relating to the request for return. This may include an application for return that was filed with a Central Authority, and any documents or other materials attached thereto. Under 42 U.S.C. 11605, no authentication is needed for the information to be admissible in court.

HAGUE CHILD ABDUCTION CONVENTION ISSUE BRIEF #2xix

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ISSUE INTRODUCTION DEFENSES TO RETURN

What defenses may be raised to a petition for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction? Crafting a petition for return of a child under the Hague Child Abduction

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Convention requires an understanding not only of the elements of the cause of action for return, but also of the defenses available to the respondent. The rule of the Hague Convention is that courts hearing return cases are obligated to order a child returned forthwith if petitioner establishes, by a preponderance of the evidence, that the child has been wrongfully removed or retained within the meaning of the Convention and less than a year has elapsed between the date of the wrongful removal or retention and the commencement of the proceedings. (The elements of the cause of action for return are the subject of a separate issue brief.) The exceptions to the rule, found in the Convention, are few. Even if a defense is established, the court may order a child returned. As counsel for petitioner, you must familiarize yourself with the exceptions, and anticipate them in your pleadings and oral advocacy. They are summarized below. •Article 12: Child settled The court is not obligated to order the return of a child

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in new environment after a year

when return proceedings are commencedxx a year or more after the alleged removal or retention and it is demonstrated that the child is settled in its new environment. Its determination of whether the child is settled in its new environment depends upon the particular facts of the case.xxi The respondent must establish this defense by a preponderance of the evidence. 42 U.S.C. 11603(e)(2)(B). The best way to avoid this defense is by filing for return as soon after the removal or retention as possible, and certainly within a year. A delay of a year or more could cost petitioner return of the child.

•Article 13(a): Nonexercise of custody rights/ acquiescence or consent

The court may deny a return petition if the person seeking the child’s return was not actually exercising custody rights at the time of the removal or retention, or had consented to or acquiesced in the removal or retention. What it means to actually exercise custody is discussed in the issue brief about the petitioner’s case for return. Whether the applicant consented to or acquiesced in the removal or retention requires a detailed analysis of the facts.xxii The Sixth Circuit Court of Appeals’ decision in Friedrich v. Friedrich, 78 F. 3d 1060, 1070 (6th Cir. 1996) addressed the question of what constitutes acquiescence. The court said: “Although we must decide the matter without guidance

from previous appellate court decisions, we believe that acquiescence under the Convention requires either: an act of statement with the requisite formality, such as testimony in a judicial proceeding [fn omitted], a convincing written reununciation of rights [fn omitted], or a consistent attitude of acquiescence over a significant period of time.”

Questions about consent tend to arise when temporary removals turn into de facto permanent changes in custody. For instance, one parent may consent to the other parent taking the child on a temporary visit to that parent’s home country. If the parent decides not to return, the left-behind

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parent will claim she or he did not consent to the permanent change of residence. Evidence or return airline tickets, school registrations, employment, etc., will help the court ferret out the true intentions of the parents. The respondent must establish an Article 13(a) defense by a preponderance of the evidence. 42 U.S.C. 11603(e)(2)(B).

•Article 13(b): grave risk of harm/ intolerable situation

A court may refuse to order the return of a child where the respondent proves, by clear and convincing evidence (42 U.S.C. 11603(2)(A)), that there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. It is a common defense strategy to try to persuade the court that return would not be in the child’s best interests. The respondent may offer expert testimony and other evidence. Judges should be reminded that a Hague Convention case is not a substantive custody case, and a determination of the child’s best interests is outside the scope of the Convention. Rather, the issue

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before the court is whether the removal or retention of the child was wrongful within the meaning of the Convention, and if so, whether a Convention-based defense would preclude an order for return. When a child is ordered returned, courts in the country of habitual residence then make substantive custody and visitation decisions. Counsel for petitioner should urge the court not to allow the respondent to try the underlying custody case under the guise of proving a defense. A return decision is not a decision on the merits of custody; indeed, the court may not consider the underlying custody claims until it is determined that the child is not to be returned.xxiii There is ample case authority for the proposition that courts should interpret grave risk restrictively.xxiv A well-reasoned analysis of what constitutes grave risk is articulated in Friedrich v. Friedrich, 78 F.3d 1060, 1068 (6th Cir. 1996). The court held: We believe that a grave risk

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According to the Friedrich court, evidence that a child will suffer adjustment problems if returned to the country of habitual residence is not enough to establish a grave risk of psychological harm that would defeat the Convention’s return remedy. The court’s rationale is persuasive: the abducting parent should not be permitted to profit from the very situation he or she created by wrongfully removing or retaining the child in the first place.xxv •Mature child objects to return

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•Article 20 •Removal not from the

child’s country of habitual

residence/petitioner did not have custody

rights under law of habitual residence

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The court may deny return if a child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views.xxvi This defense must be proved by a preponderance of the evidence. 42 U.S.C. 11603(e)(2)(B). Like the others, the ‘mature child’ defense is discretionary. This is particularly important because of the potential for brainwashing of the child by the alleged abductor or older sibling. A child’s objection to being returned should be given little weight if the court believes that the child’s preference is the product of such undue influence. Article 20 states: “The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.” This defense, like the others, is to be restrictively applied. According to the State Department Legal Analysis

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of the Convention, it may be invoked “on the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process.”xxvii It is not to be used as a vehicle for litigating custody on the merits or for passing judgment on the political system of the country from which the child was removed. There is very little case law interpreting this provision.xxviii The meaning and importance of habitual residence to the operation of the Convention is discussed in the issue brief about the petitioner’s case for return. Suffice it to say here that if respondent proves by a preponderance of the evidence that the child was not removed from his/her country of habitual residence, or that petitioner did not have custody rights under the law of the country of habitual residence, then the court may dismiss the petition, effectively denying return.

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HAGUE CHILD ABDUCTION CONVENTION

ISSUE BRIEF #3xxix

ISSUE Should a return petition under the Hague Convention on

the Civil Aspects of International Child Abduction be filed in state or federal court? The International Child Abduction Remedies Act (ICARA), 42 U.S.C. 11603(a), establishes concurrent jurisdiction in state and federal courts for actions arising under the Convention. The choice of court is at the election of the petitioner.xxx The following questions are designed to help the petitioner's attorney decide whether to file in state or in federal court.

Which court can hear the matter sooner?

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All courts are compelled by Article 11 to "act expeditiously in proceedings for return of children." As a practical matter, there may be a clear time advantage in filing in state rather than federal court, or vice versa. Dockets -- Check with the clerks of both courts to find out the earliest date the return petition will be heard. This may depend upon the form of action used to invoke the Convention. Form of action -- ICARA provides that a civil action for return of a child is commenced by filing a return petition in a court of competent jurisdiction in the place where the child is located. 42 U.S.C. 11603(b). Just how the civil action should be framed is left to

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local law and practice. For actions in state court, look to state and local practice and procedure. For actions in federal court, consult the Federal Rules of Civil Procedure. If one of the courts recognizes a summary procedure for obtaining the child's return, this may justify filing the return petition in that court. For example, there is federal court precedent for treating a Hague return petition as a petition for a writ of habeas corpus, which is designed for virtually immediate relief.xxxi Courts may be persuaded to treat a return petition expeditiously in accordance with Article 11 regardless of the specific procedure used to invoke the Convention.xxxii The attorney's job is to teach the court about the Convention, with an emphasis on the need for prompt judicial action. To assist in this regard, counsel can request the U.S. Central Authority in the Department of State to send the court its form letter on the background, purpose and requirements of the Convention.xxxiii Counsel should request a copy of the letter for the

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case file. A copy should also be sent to opposing counsel, either by the State Department or by petitioner's counsel. In all likelihood, opposing counsel will share the letter with the respondent. Once the respondent appreciates the treaty obligation to order a child returned, the chances improve of securing a voluntary resolution of the conflict short of litigation. Does either the federal or state court have prior experience with Hague cases? If neither the state or federal judge has handled a Hague case, is one more likely than the other to treat the case as a substantive custody matter?

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Does the respondent have strong local influence that causes the foreign-petitioner to believe the local court will be biased against him or her? Does the attorney have experience litigating in federal court? SUMMARY

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One of the greatest challenges most petitioner's attorneys have in Hague cases is to teach the presiding judge about the treaty and ICARA, and how the return action differs from a custody case. A court with previous Hague experience presumably has already been educated about the Convention. This can be advantageous to petitioner because time saved educating the court can result in faster rulings. However, experience, alone, should not be the deciding factor. Counsel should be satisfied that the court's decisions reflect an understanding of the return obligation and the need for narrowly construing defenses. A bad decision is a good reason to choose the other court. Some family law practitioners prefer bringing Hague cases in federal court on the theory that federal judges are less inclined than their state court counterparts to delve into the merits of the underlying custody case. The historical reluctance of federal judges to become enmeshed in domestic relations matters supports this view. Moreover, federal judges have more experience interpreting and applying treaty law than do state judges. Others who prefer litigating in the more familiar environment of state court may be confident that state court judges, once briefed on the Hague Convention, will confine their consideration to the limited issues raised by the Convention: Was the removal or retention wrongful, and if so, are there any defenses to return? This is another instance where the U.S. Central Authority's form letter about the Convention may be beneficial. It emphasizes that courts are empowered by the Hague convention or ICARA to determine only rights under the Convention and not the merits of any underlying child custody claims. Article 19 and 42 U.S.C. 11601(b)(4). Petitioner's attorney should interview the client about the respondent's political ties and law enforcement connections in the local forum. Proceeding in federal court may neutralize any advantages the home town litigant may be perceived to have in a local court over the foreign client.

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The nature of the attorney's law practice may dictate whether the Hague petition is filed in state or federal court. One consideration is whether the attorney is already admitted to practice before the federal court. Counsel who are not already admitted should consider whether requesting admission for purposes of the Hague case will in any way delay the return proceeding. Since Hague cases are time sensitive, such delay should be avoided unless there are strong countervailing reasons for choosing federal court. An attorney whose practice is primarily in the family law area may have little or no experience litigating in federal court. This would be good reason to file in state court. On the other hand, an attorney whose practice includes federal and state court litigation would probably be equally at ease proceeding in state or federal court. Federal and state courts are empowered to hear Hague Convention return cases. To decide where to bring the return action, consider: 1.Which court can hear the matter sooner? 2.Does either court have experience with Hague cases? 3.If neither the state or federal judge has handled a Hague

case, is one more likely than the other to treat the case as a substantive custody matter?

4.Does the respondent (i.e., the person who has allegedly

wrongfully removed or retained the child) have strong local influence that causes petitioner to believe the local court will be biased against him or her?

5.Does the attorney have experience litigating in federal

court?

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HAGUE CHILD ABDUCTION CONVENTION ISSUE BRIEF #4xxxiv

ISSUE INTRODUCTION

What assistance can the United States Central Authority provide when a case is brought in this country under the Hague Convention on the Civil Aspects of International Child Abduction? If you are a newcomer to litigation under the Hague Child Abduction Convention, you should familiarize yourself with the services available from the U.S. Central Authority that may be helpful in preparing and pursuing a return or access case in state or federal court in this country. Your attention is directed to Articles 7-12 and 21 of the Convention, and implementing regulations in Title 22 of the U.S. Code of Federal Regulations (22 C.F.R.) Part

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94, "International Child Abduction." BACKGROUND

Each country that becomes party to the Hague Convention on the Civil Aspects of International Child Abduction agrees to establish at least one Central Authority (CA) (Article 6). Central Authorities are directed to cooperate with one another to secure the prompt return of children and to achieve the other objects of the Convention. They may do so directly or through intermediaries. The specific obligations of the CA are set forth in Article 7.xxxv

U.S. CENTRAL AUTHORITY Important telephone numbers FACILITATING LEGAL PROCEEDINGS

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LOCATING THE ABDUCTED CHILD

The Department of State's Office of Children's Issues is the designated Central Authority for the United States. Through a unique arrangement with the State Department, the National Center on Missing and Exploited Children (NCMEC) in Arlington, Virginia has responsibility for "incoming cases" (i.e., cases involving children who are alleged to have been wrongfully brought to, or retained in, this country). The telephone numbers for the U.S. Central Authority in the State Department are (202)736-7000. Raymond Clore is the director. NCMEC can be reached at (800)843-5678. Nancy Hammer is director of the International Division at NCMEC. Neither the State Department nor NCMEC may play a direct role as legal representative in any return or access proceeding.xxxvi However, the CA actively facilitates

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proceedings for return or access in a variety of ways.xxxvii •The CA assists applicants in obtaining legal

representation.xxxviii Indeed, you may have been contacted by NCMEC (or the American Bar Association Center on Children and the Law)xxxix and asked to represent the petitioner-parent.

•The CA will provide attorneys with a complete packet of

information on the operation of the Convention in the U.S. Request one.

•At the request of the applicant of his/her attorney, the CA

will send a letter to the court in which a Hague petition has been brought explaining the operation of the Convention. This form letter is strictly informational and takes no position on the merits of the pending return petition. However, as an official State Department communication, it can be influential with a judge who may be unfamiliar with the Hague Convention. Lawyers should routinely request the CA to send the letter to the court as early in the proceeding as possible.

•Upon request, the CA will seek a report on the status of

court action if the court has not ruled on the return petition by the end of six weeks.xl

•Upon request, the CA will seek from foreign Central

Authorities information relating to the social background of the child.xli As a liaison to its foreign counterpart, the U.S. CA may be able to obtain other information counsel may need for the Convention proceeding in the U.S.

•Upon request, the CA will seek from foreign Central

Authorities a statement as to the wrongfulness of the taking of the child under the laws of the country of the child's habitual residence.xlii

At the request of counsel, the CA can assist in locating, or confirming the location of, a child who has been

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wrongfully removed to, or retained in, the United States.xliii The inquiry should be directed to NCMEC, which has an array of resources for locating children abducted to this country. The task nevertheless may be formidable if there are few clues to go on.

VOLUNTARY RETURN PROTECTING THE CHILD'S WELFARE

If the left-behind parent knows where the child and abductor-parent are and perceives little risk of another abduction, the parent, or parent's attorney, may ask the CA to endeavor to obtain the child's "voluntary" return.xliv The CA will contact the alleged abductor-parent directly by letter to encourage a voluntary return. When informed of the Hague return remedy, as well as the likely imposition of attorneys' fees if the court orders the child's return, the abductor may choose voluntary return over formal legal proceedings and the associated costs. At counsel's request, CA will request the appropriate state social service agencies to ascertain the welfare of the child. The CA may consult with those agencies about the possible need for interim arrangements to protect the child or to prevent the child's removal from the state.xlv Normally it then would be up to the attorney to petition the court for the necessary protective measures. Because of the possibility that an official inquiry about the child may cause the abductor to flee, "welfare" inquiries should not be requested routinely.

TRANSLATIONS

The CA will not translate return applications they receive into English, but they may help lawyers identify translators who may do so at the applicant’s expense.

TRANSPORTATION HOME FOR THE ABDUCTED CHILD

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RESOURCES While the CA is not responsible for the transportation expenses of the child or the applicant, the CA may help with arrangements to secure the safe return of the child.xlvi The foreign Central Authority in the child’s country of habitual residence may also be able to help. Assistance also may be available from the foreign parent’s embassy or consulate in the United States. This could include repatriation loans to finance the cost of return. International Parental Child Abduction, U.S. Department of State, Bureau of Consular Affairs. Available free of charge. To request, call: (202)736-7000; fax: (202)647-2835; write: U.S. Central Authority, Hague Child Abduction Convention, Office of Children's Issues, CA/OCS/CI, Room 4811, Department of State, Washington, D.C. 20520-4818; or visit the web site: http://travel.state.gov. Bruch, Carol S., The Central Authority's Role Under the Hague Child Abduction Convention: A Friend in Deed, Vol. 28, No. 1,

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Fam.L.Qtr., Spring 1994 at p.35 et seq. Girdner, L.; Chiancone, J.,

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ENDNOTES i. This is one of a series of issue briefs written by Patricia M. Hoff, Legal Director, Obstacles to the Recovery and Return of Parentally Abducted Children Project, ABA Center on Children and the Law, for lawyers who participate in ICAAN (the International Child Abduction Attorney Network). The briefs highlight some of the important issues lawyers should consider when representing parents seeking return of their children from the United States pursuant to the Hague Child Abduction Convention. They should serve as a starting point for directed research. They are not intended as, and do not constitute, legal advice.

ii. 42 U.S.C. 11603(e)(1)(A)

iii. Articles 3, 5(a)

iv. Article 12

v. Article 5(a)

vi. Article 3

vii. A country that has either ratified or acceded to the Convention.

viii. Article 4.

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ix. Explanatory Report by Elisa Perez-Vera, Hague Conference on Private International Law, Actes et Documents de la Quatorzième Session, Vol. III, 1980, para. 66 at 426.

x. Meredith v. Meredith, 759 F. Supp. 1432, 1434 (D. Ariz. 1991)

xi. See, e.g., Brooke v. Willis, 907 F. Supp. 57, 61 (E.D. N.Y. 1995), suggesting that habitual residence may be established in a single day.

xii. See, e.g., Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995).

xiii. See, e.g., Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993) (habitual residence determined by focusing on the child, looking back in time, not forward to the future intentions of only one of the parents. Once established, “habitual residence” may be altered only by a change in geography, which must occur before the questionable removal and the passage of time, not by changes in parental affection and responsibility); Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) (...a child’s habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a “degree of settled purpose” from the child’s perspective. We further believe that a determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child’s circumstances in that place and the parents’ present, shared intentions regarding their child’s presence there.”); Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995) (there is no real distinction between habitual and ordinary residence); In re Ponath, 829 F. Supp. 363, 367-68 (D. Utah 1993) (concept of habitual residence must encompass some element of voluntariness and purposeful design which can be characterized as settled purpose; coerced stay in a country does not make that country the habitual residence); Levesque v. Levesque, 816 F. Supp. 662, 666 (D. Kan. 1993) (the intent is for the concept of habitual residence to remain fluid and fact based, without becoming rigid); Brooke v. Willis, 907 F. Supp. 57 (S.D. N.Y. 1995) (habitual residence determined more by a state of being that a particular time period; settled purpose may be attainable even in a single day); Cohen v. Cohen, 602 N.Y.S.2d 994 (Sup. 1993) (the element of intention is essential to a determination of habitual residence, and it is a mixed question of law and fact as to whether the child’s habitual residence has changed).

xiv. In re Bates, No. CA 122-89, High Court of Justice, Family Div’n Ct., Royal Court of Justice, United Kingdom (1989)

15. Not knowing the child’s location can frustrate bringing an action for return because return proceedings should be commenced in the Contracting State where the child is located. Article 12. ICARA’s venue provision, 42 U.S.C. 11603(b), provides that a civil action for return or access may be commenced “by filing a petition in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.” When the child’s exact location is not known but he is believed to be in a particular Contracting State (or state within the United States), the petitioner may benefit by commencing return proceedings in that country (or state), before a year has elapsed from the wrongful removal or retention. This would deprive the respondent of the defense that a year has elapsed between the wrongful removal or retention and the commencement of the proceeding and the child is now settled in its environment. If it is discovered that the child is in another country, Article 9 directs the Central Authority to “directly and without delay” transmit the application to the Central Authority in that country. Once the return proceeding is commenced, the search for the child should continue. Also see 51 Fed. Reg. 10494, 10507 (March 26, 1986).

xvi. See en 15, supra

xvii. This, and other defenses, are the subject of another issue brief.

xviii. For instance, California procedure permits issuance of a warrant in lieu of a writ of habeas corpus, pursuant to which the court would issue a ‘pick up’ order for the child. When law enforcement take the child into protective custody, the respondent is served simultaneously with notice of the Hague return proceeding, which normally would be set for hearing very soon thereafter.

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ENDNOTES xix. This is one of a series of issue briefs written by Patricia M. Hoff, Legal Director, Obstacles to the Recovery and Return of Parentally Abducted Children Project, ABA Center on Children and the Law, for lawyers who participate in ICAAN (the International Child Abduction Attorney Network). The briefs highlight some of the important issues lawyers should consider when representing parents seeking return of their children from the United States pursuant to the Hague Child Abduction Convention. They should serve as a starting point for directed research. The briefs are not intended as, and do not constitute, legal advice.

2. The International Child Abduction Remedies Act defines “commencement of the proceedings” to mean, with respect to a child located in the United States, the filing of a petition for return or access. 42 U.S.C. 11603(f)(3).

xxi. See, e.g., David S. v. Zamira S., 151 Misc.2d 630, 574 N.Y.S.2d 429 (Fam. Ct. 1991) (children were not so settled that they could not be uprooted and returned to Canada); In re Coffield, 644 N.E.2d 662 (Ohio Ct. App. 1994) (child had not developed the connections to the community that would normally be expected of a 5-year old after 3 years in the new community).

xxii. See, e.g., Falls v. Downie-Page, 871 F. Supp. 100 (D. Mass. 1994) (Child found to have settled with mother’s consent indefinitely in the U.S.); Schroeder v. Vigil-Escalera Perez, 76 Ohio Misc.2d 25, 664 N.E.2d 627 (1995)(Father found to have acquiesced in mother’s remaining in U.S. for an indefinite period of time with child. He did not object when he became aware that mother would not be returning to Spain.); Brennan v. Cibault, 643 N.Y.S.2d 780 (1996)(Mother had consented to child remaining in the U.S. only for a limited period of time, not indefinitely, and so she had not acquiesced in the child’s wrongful retention in New York); In re Ponath, 829 F. Supp. 363 (D.C. Utah 1993) (Father found to have acquiesced); Currier v. Currier, 845 F. Supp. 916 (D.C. N.H. 1994) (Mother found not to have acquiesced); Wanninger v. Wanninger, 850 F. Supp. 78. 81-82 (D. Mass 1994) (Father consented to initial removal but found not to have acquiesced in mother’s retention of children. The Court refused to construe father’s letters to his wife and priest as sufficient evidence of acquiescence in light of his consistent attempts to keep in touch with the child.); Levesque v. Levesque, 816 F. Supp. 662 (D. Kan. 1993) (insufficient evidence to establish mother’s acquiescence in father’s removal of children from Germany); David v. Zamira S., 151 Misc.2d 630, N.Y.S. 429 (Fam. Ct. 1991) (father’s delay in commencing proceeding did not amount to acquiescence).

xxiii. Article 16

xxiv. See, e.g., Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996); Thomson v. Thomson, 119 D.L.R.4th 253 (Can. 1994) (Supreme Court of Canada held that the exception applies only to harm that also amounts to an intolerable situation); Tahan v. Duquette, 613 A.2d 486 (N.J. Super. Ct. 1992) (grave risk hearing should focus on the country to which the child would be returned and whether there is such internal strife or unrest there as to pose a risk of harm. Although the court may not delve into the merits of the custody dispute, the court may evaluate the surrounding to which the child would be returned and the basic personal qualities of those located there); In re Coffield, 644 N.E.2d 662 (Ohio Ct. App. 1994) (scope of inquiry under the Article 13(b) grave risk exception is extremely narrow and should focus on the environment in which the child would reside if returned; evidence of psychological tests of child and father, past lifestyle of mother, and evidence of possible harm the child would suffer if separated from his father all deemed irrelevant to the Article 13(b) inquiry); Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir. 1995) (mother’s claims of alleged physical, sexual and emotional abuse were too general to warrant exception to return); Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995) (there must be specific evidence of potential harm; separation of the child from its parent not sufficient).

xxv. See also Navarro v. Bullock, 15 FLR 1576 (BNA)(Cal. Super. Ct. 1989) (“To retain the children in the United States guarantees that the mother will continue to frustrate the custodial and visitation rights of the father....To allow this to happen would be to allow mother to profit from her own wrong....”). But see Steffen F. v. Severina P., 966 F. Supp. 922 (D. Ariz.) (breaking three-year old child’s bond and attachment with mother would create grave risk of harm justifying denial of petition).

xxvi. See, e.g., Sheikh v. Cahill, 546 N.Y.S.2d 517, 145 Misc. 2d 171 (Sup. Ct. 1989) (nine-year old child ordered returned to

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mother in England despite his expressed desire to remain with father in New York, which probably was influenced by father’s favorable treatment during summer visit. The child was neither old enough nor mature enough to take his views into account.).

xxvii. 51 Fed. Reg. 10510

xxviii. See, e.g., Roszkowski v. Roszkowska, 274 N.J. Super. 620, 644 A.2d 1150 (1993) (Poland not a country that violated human rights. In a footnote, the court suggested that Somalia or Iraq might fail to protect basic human rights); Caro v. Sher, 687 A.2d 354 (N.J. Super. 1996) (rejecting mother’s defense to return that a delay of 3 ½ years by the courts of Spain from the time of calendaring to the time of hearing of her request to relocate from Spain to the United States violated U.S. notions of due process and thus Article 20).

ENDNOTES 1. This one of a series of issue briefs written by Patricia M. Hoff, Legal Director, Obstacles to the Recovery and Return of Parentally Abducted Children Project, ABA Center on Children and the Law, for lawyers who participate in ICAAN (the International Child Abduction Attorneys Network). The briefs highlight some of the important issues lawyers should consider when representing parents seeking return of their children from the United States pursuant to the Hague Child Abduction Convention. They should serve as a starting point for directed research. They are not intended as, and do not constitute, legal advice.

2. Caveat: Concurrent federal-state jurisdiction creates the possibility that respondent will remove the Hague case from state to federal court under the federal removal statute, 28 U.S.C. 1441(a). See In the Matter of Mahmoud , ___ F.Supp. ___ (E.D.N.Y. 1997). In that case, father successfully removed to federal court mother's state court petition for the return of the couple's child to England. The federal removal statute authorizes removal by the defendant to federal court where there is concurrent federal-state jurisdiction "except as expressly provided," and no such prohibition exists in the Hague Convention or ICARA.

3. Zajaczkowski v. Zajaczkowska, 932 F.Supp. 128 (D. Md. 1996) (federal court treats return petition as an application for a writ of habeas corpus, based in part on its analysis that ordinary federal rules of civil procedure would be at odds with the Convention and ICARA's premium on expedited decision-making). Also see Walton v. Walton, 925 F.Supp. 453 (S.D. Miss. 1996); Brooke v. Willis, 907 F.Supp. 57 (S.D. N.Y. 1995)(Combining a complaint and petition for return of a child with a petition for a writ of habeas corpus)

4. See, e.g., Navarro v. Bullock, 15 Fam. L. Rep. (BNA) 1576 (Cal. Super. Ct. Sept. 1, 1989) (court ruled on return petition eight days after it was filed); In re Coffield, 644 N.E.2d 662 (Ohio App. 1994)(court rules on Hague petition within three weeks of filing).

5. The U.S. Central Authority can be telephoned at (202) 636-7000.

ENDNOTES 1. This is one of a series of issue briefs written by Patricia M. Hoff, Legal Director, Obstacles to the Recovery and Return of Parentally Abducted Children Project, ABA Center on Children and the Law, for lawyers who participate in ICAAN (the International Child Abduction Attorneys Network). The briefs highlight some of the important issues lawyers should consider when representing parents seeking return of their children from the Untied States pursuant to the Hague Child Abduction Convention. They should serve as a starting point for directed research. They are not intended as, and do not constitute, legal advice.

2. Article 7: "In particular, either directly or through any intermediary, they shall take all appropriate measures- a.to discover the whereabouts of a child who has been wrongfully removed or retained; b.to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; c.to secure the voluntary return of the child or to bring about an amicable resolution of the issues; d.to exchange, where desirable, information relating to the social background of the child;

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e.to provide information of a general character as to the law of their State in connection with the application of the Convention; f.to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child

make arrangement for organizing or securing the effective exercise of rights of access; g.where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of

h. to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; i. to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles

3. 22 C.F.R. 94.4 (U.S. Central Authority is prohibited from acting as an agent or attorney or in any fiduciary capacity in legal proceedings arising under the Convention.)

4. Article 7(f).

5. Article 7(g). The U.S. CA is not responsible for the costs of any legal representation or legal proceedings under the Convention. However, the U.S. CA may not impose any fee in relation to the administrative proceeding of applications submitted under the Convention.

6. The ABA Center on Children and the Law established the International Child Abduction Attorneys Network (ICAAN) to identify lawyers willing to take incoming Hague cases on a pro bono basis. The National Center for Missing and Exploited Children (NCMEC) is currently maintaining ICAAN.

7. Article 11.

8. Article 7(d).

9. Article 7(e).

10. Article 7(a).

11. Article 7(c).

12. Article 7(b).

13. Article 7(h).