The Procedural Win: What you can learn from one father’s fight for custody (Part 2)

By Jennifer M. Paine

Attorney, Cordell & Cordell, P.C., Detroit office

Note: This is Part 2 of a four-part overview of the Goldman international custody battle, the Hague Convention treaty and some practical lessons for your case. Click here to read Part 1, click here to read Part 3 and click here to read Part 4.

What Is The Hague Convention?

The Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) is a treaty between countries that agree to cooperate and abide one set of laws, the Hague Convention, for the return of children removed from their home country for custody disputes. There are over 60 signatory countries. Notable among them are Australia, Brazil, China (parts), Germany, Israel, Italy, Mexico, Spain, Switzerland and Turkey. 

A complete list is available online at the National Center for Missing and Exploited Children’s website, www.missingkids.org. The United States became a signatory in 1981 and enacted the International Child Abduction Remedies Act (“ICARA”), 42 USC §§ 11601-11610 (1995), to implement it in the United States.

The Hague Convention seeks to simplify international cases, in which courts in different countries had been issuing conflicting orders, by reducing them to one issue: Where should the case take place?  Signatories use the Hague Convention as procedural authority to determine whether children removed from one country should be returned, for the case to take place there, or should remain in their new country. The familiar “best interests of the child” standard has no bearing. The issue is not whether the new country is “best” for the child but whether the child has been removed from his domicile, or home country, in contravention of the Hague Convention. 

In most cases, the left-behind parent with custodial rights files an action in the child’s new country for return of the child. (The Hague Convention does govern access cases, in which the parent merely seeks to enforce visitation rights, but those cases are not as publicized and will not be addressed in this article.) In some ways, the case proceeds just like a custody case: the left-behind parent files a petition or complaint; the moving-parent files an answer; the court may issue temporary custody orders; and the parties appear in court to argue their points, sometimes in an evidentiary hearing with witnesses, expert reports and other evidence. In many ways, however, the case is unique: the Hague Convention, in Article 16, specifically bans the court from obtaining jurisdiction to hear the underlying custody dispute; the left-behind parent must file the action within one year of removal (excluding times when the child was away with permission and, in some countries, times when the moving-parent secreted the child); the court cannot return the child if the child is age sixteen or older (even if the case began before age sixteen); and the court may refuse to order the return if the child has become well-settled in the new country, if the child is mature enough to object and does object to return, if the child faces a grave risk of physical or psychological harm if returned, if the left-behind parent acquiesced in the removal, or if the return violates the new country’s fundamental notions of public policy, even if the left-behind parent resides in the child’s home country. These are the moving-parent’s affirmative defenses, and each one the courts narrowly apply to avoid mixing, impermissibly, with the “best interests of the child” standard. Cases analyzing each affirmative defense are available on the NCMEC’s website.

If the left-behind parent proves, by a preponderance of the evidence, that (1) the child had a habitual residence in that parent’s country before removal, (2) the moving-parent breached the parent’s custody rights (which need not be joint physical custody) and (3) the parent was actually exercising the rights at the time of removal, and none of the affirmative defenses apply, the court must order the child returned to the home country. From there, the parents may litigate under the “best interests of the child” standard.

Readers interested in learning more about the Hague Convention may research online at the NCMEC’s website and at the United States Department of Justice’s website but should contact an attorney immediately for case-specific information because there is a one year filing deadline, among other procedural rules, that may apply.

Note: This is Part 2 of a four-part overview of the Goldman international custody battle, the Hague Convention treaty and some practical lessons for your case. Click here to read Part 1, click here to read Part 3 and click here to read Part 4.

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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