Divorce rates continue to rise and our world grows smaller with each leap in
technology making international travel commonplace. With these societal
changes, a dramatic increase has been seen in child abductions and child
kidnappings by custodial and non-custodial parents. The goal of the abductor in
such child abduction and parental kidnapping cases is to frustrate court
proceedings regarding custody. Political and judicial differences between
countries as well as differing societal views on men's and women's role in
society make child abduction cases difficult at best. To address growing
concerns regarding child abduction, many countries have adopted a treaty
designed to expedite the return of children wrongfully removed to their home
country. This treaty is called the Hague Convention.
The Hague Convention of 25 October 1980 on the Civil Aspects of
International Child Abduction seeks to curb international abductions of
children by providing judicial remedies to those seeking the return of a child
who has been wrongfully removed or retained. The Convention provides a
simplified procedure for seeking the return of a child to its legal custodian.
However, there are limitations to the treaty's application. The Convention
applies only between those countries that have adopted it as "Contracting
States." Under the treaty, each subscribing state sets up a
"Central Authority" to serve as a liaison with the other Contracting
States. An aggrieved parent may then file an application with either the
Central Authority of the home country or the country where the child is located.
Upon application, the Central Authority must take all appropriate measures to
discover the whereabouts of the child, prevent harm to the child, protect the
interests of the lawful custodian or applicant, and secure the voluntary return
of the child.
If a judicial proceeding is initiated, the court must act expeditiously.
Article 11 gives the applicant or the Central Authority of the Requested State
the right to demand a statement from the court detailing the reasons for delay
if a decision has not been made within six weeks from the commencement of
proceedings. There need not be a custody decree in effect in order to trigger
the return provisions under the Convention.
The elements of a cause of action for the return of an abducted child under
the Hague Convention on the civil aspects of child abduction and International
Child Abduction Remedies Act are that:
- child was habitually resident of the country from which the child was
abducted;
- petitioning parent had either sole or joint rights of custody of the child
either through a custody order or du jure (by operation of law), and
- at time of wrongfully removal, petitioning parent was exercising those
rights.
International Child Abduction Remedies Act, Section 4 (e)(2)(A), 42 U.S.C.
Section 11603 (e)(2)(A).
The burden of proof in proving the application of the Hague Convention falls
upon the Petitioning party and must be shown by a preponderance of the
evidence.
If the Court determines
that a Petitioning party has proved the criteria for Application of the Hague
Convention, the burden of proof tips to the opposing party. The Responding
parent then may still prove that an affirmative defense prevents the return of
the child under the Hague Convention. 42 U.S.C. Section 11603 (e)(2)(A)(b);
Hague Convention Art. 12, 13(b) and 20. See also Friedrich v.Friedrich,
983 F.2d 11396 (6th Cir. 1993).
Affirmative defenses under the Hague Convention include the claim that the
parents seeking relief under the Hague Convention was aware of the Child's
presence in the new country and failed to act for more than a year.
Additional defenses that may be raised include claims that the petitioning
parent was not exercising any custodial rights, by his/her own choice, when the
child was removed from the home country. Finally, Court's may refuse to return a
child to a Petitioning parent and that child's home country under the Hague
Convention if it finds that "there is a grave risk that if
returned child would be expose to physical and psychological harm or otherwise
placed in to an intolerable situation." It is significant that the 8th
Circuit Court’s decision in Rydder v. Rydder, F.3d 369, 373(8th
cir.1995), suggests that "specific evidence of potential harm" to a
child as a result of separation from a primary care giver may constitute grave
risk of harm under the Hague Convention. In that case a mother relied upon
several authorities "that recognized that separating a child from his or
her primary care giver creates a risk of psychological harm."
