"THE INTERNATIONAL ABDUCTION OF 'INTERNATIONAL CHILDREN': CONFLICTS OF LAWS, FEDERAL STATUTES, AND JUDICIAL INTERPRETATION OF THE 'HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION'"
By Judge Veronica Torrez, Cheryl Coleman & Tina Burleson

Introduction

The Hague Convention on the Civil Aspects of International Child Abduction[1] was approved in 1980 and the United States became a contracting party on July 1, 1988. Congress passed the International Child Abduction Remedies Act (ICARA)[2] for the implementation of the Hague Convention. ICARA is merely procedural; so when claims are brought under it, the courts will look to both ICARA and the Convention because the two are inextricably intertwined. The Hague Convention was developed to stop the pervasive, endemic, and invidious practice of abducting children to foreign countries. The Hague Convention is neither an extradition treaty nor can its provisions adjudicate the merits of a custody dispute; it is simply a civil remedy enacted to preserve the status quo by returning children to the country of their "habitual residence" and allowing local judicial authorities to decide the merits of the custody dispute under that country's relevant laws.[3] Each international child abduction case must be decided by applying The Hague Convention, ICARA, conflicts of law, federal statutes, and a growing list of federal cases that have interpreted the Convention and ICARA.

The Kansas Supreme Court case of Dalmasso v. Dalmasso[4] is instructive of the typical fact situation that gives rise to the international abduction of children. In 1991, Mrs. Dalmasso, a United States citizen, and Mr. Dalmasso, a French citizen, married in the United States.[5] There were four children born during the couple's marriage; three of the children were born in France and one was born in Canada.[6] During their eight-year-marriage, the Dalmassos lived as a family in France, Canada and the United States.[7] Specifically, the children resided with their parents in Canada from September of 1994 to July of 1995.[8] The family subsequently lived in Kansas from July of 1995 until March of 1996, and in March of 1996, the children and their parents moved to France where they lived until early January, 1999.[9]

In 1999, Mrs. Dalmasso departed France with three of the four children, claiming that she was dissatisfied with her marriage and fearful that if her husband initiated divorce proceedings in France, she would never be able to leave the country with the children.[10] After Mrs. Dalmasso left France, Mr. Dalmasso commenced legal proceedings in the courts of Dinan, France.[11] On January 29, 1999, the French Court entered a Provisional Order declaring that all four children should reside with Mr. Dalmasso.[12] On April 12, 1999, Mrs. Dalmasso filed for divorce in Kansas, and requested the Court to render temporary orders awarding her custody of the children.[13] The Court scheduled a hearing on the temporary orders request; however, before the hearing was held, Mr. Dalmasso notified the Court that he had made an application for return of his children under the Hague Convention, alleging that his children were wrongfully removed from his custody in France.[14] He also provided an authenticated copy of the French Order, along with its translation to the Kansas trial court.[15] The Court was also notified by the United States State Department that Mr. Dalmasso had applied for return of the children under the Hague Convention.[16] In addition to their legal posturing, both parties accused each other of physical and emotional abuse, as well as alleging that the other parent used psychological medication (Prozac).[17] Further, the trial court found evidence that both parties employed corporal punishment as a method of discipline.[18]

As a result, the Court declined to enter an Order of Temporary Custody in favor of Mrs. Dalmasso.[19] Rather, on May 12, 1999, the Court held a telephone conference where all of the parties appeared with counsel and entered the following stipulations: 1) Mr. Dalmasso was exercising custody rights when Mrs. Dalmasso removed the children from France; and 2) that the children's residences, as stated in the Petition for Divorce, were accurate.[20] However, Mrs. Dalmasso maintained that she did not wrongfully remove the children, and she argued that Convention exceptions existed to support the denial of Mr. Dalmasso's Petition for Return of the Children.[21] Specifically, Mrs. Dalmasso alleged that the return of the children to France would subject them to grave risk of psychological or physical harm.[22]

To support his allegation that Mrs. Dalmasso wrongfully removed the children from France, Mr. Dalmasso filed a formal Petition for Return of the Children, a Declaration, Establishing the Habitual Residence of the Children, and he submitted several other documents including an affidavit clarifying the applicable French law.[23] After reviewing the pleadings and documents on file and the testimony presented, the trial court made the following findings: a) France was the appropriate forum to determine the custody issues; b) Mr. Dalmasso established by a preponderance of the evidence that Mrs. Dalmasso wrongfully removed the children from their "habitual residence"; and c) Mrs. Dalmasso did not establish by clear and convincing evidence that return of the children to France would expose them to grave risk of physical or psychological harm, or that their return should not be permitted under fundamental principles of human rights and fundamental freedoms.[24] The court then ordered Mrs. Dalmasso to return the children to France.[25]

Jurisdiction

The United States has numerous laws, both federal and state, that protect an American child from being abducted by a disgruntled parent or other malcontent. Some of these laws include: the Uniform Child Custody Jurisdiction Act (UCCJA), the Parental Kidnapping Prevention Act (PKPA), the International Child Abduction Remedies Act (ICARA), and the Full Faith and Credit Doctrine.[26] The UCCJA, ICARA, and the Hague Convention on the Civil Aspects of International Child Abduction govern jurisdiction and recognition of interstate or international child custody decisions.[27] In international cases, issues such as comity come into play when the laws governing full faith and credit do not apply.[28] The National Conference of Commissioners on Uniform State Laws (NCCUSL) proposed the Uniform Child Custody Jurisdiction Act (UCCJA) in 1968 with the hopes of deterring abductions, promoting interstate cooperation and communication in adjudicating child custody matters, and facilitating the enforcement of custody decrees of sister states.[29]

The general purpose of the Uniform Child Custody Jurisdiction Act (UCCJA), as adopted by Texas in 1983,[30] is to:

avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in shifting of children from state to state with harmful effects on their well-being; . . . . assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and his family care, protection, training, and personal relationships are most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state.[31]

This law requires that other states adhere to the decrees of sister states. For example, in Texas, custody proceedings and decrees of other states are to be recognized and enforced by local courts.[32] Furthermore, the Act precludes Texas courts from exercising jurisdiction in cases where simultaneous proceedings occur in other states.[33] Likewise, Texas courts cannot modify another state's custody decree unless it does not have UCCJA jurisdiction.[34] These provisions give full faith and credit to the custody decrees of other UCCJA states.[35]

Before a court exercises jurisdiction, it must determine that no other court has a superior jurisdictional claim.[36] A decree of another state will be upheld and given res judicata effect if rendered with subject matter and personal jurisdiction.[37] The issue of child custody under UCCJA is not a question of personal jurisdiction, but one of subject matter jurisdiction.[38] A foreign court may have jurisdiction to determine divorce issues but not custody issues.[39] A court cannot exercise jurisdiction in a custody dispute unless jurisdiction is permissible pursuant to the UCCJA.[40] The Texas court must recognize and enforce the foreign child custody decree if it finds that the foreign court meets one of four UCCJA criteria: 1) the foreign state is the home state; 2) the foreign state has substantial connections/substantial evidence; 3) emergency; or 4) default.[41] Pursuant to the statute, Texas "is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state . . . ."[42]

Case law in Texas has strictly construed this definition and will not exercise home state jurisdiction unless the six-month requirement is met.[43] For example, in Grimes v. Grimes, the court held that Texas did not have jurisdiction to modify the Texas divorce decree as to one of the children because that child had resided outside of Texas for more than six months; however, it could modify the decree as to the other child that had been residing in Texas since the rendering of the decree.[44]

The second ground for jurisdiction under the UCCJA is "significant connection/substantial evidence."[45] Under this provision, there is no need to show that the child has lived in the jurisdiction for at least six months.[46] However, Texas courts can exercise this jurisdiction only if no other state has "home state" jurisdiction.[47] Likewise, the custody decree on a "significant connection/substantial evidence" ground is not required to be recognized by Texas courts if the court issuing the decree is not acting in conformity with UCCJA jurisdiction provisions; furthermore "significant connection/substantial evidence" based on jurisdiction is subordinate to home state jurisdiction under the "full faith and credit" doctrine.[48] However, Texas courts have emphasized the importance of recognizing out-of-state child custody decrees and have enforced decrees based on substantial contact/substantial evidence.[49] In Hansen v. Leckey, the Texas court followed the Kansas decree even though Colorado had been the home state of the child at the commencement of the Kansas modification proceeding.[50] The Court's rationale was that it was in the best interest of the child to follow the State that has a significant connection with the child other than mere physical presence.[51]

The commentary accompanying the UCCJA states that the emergency jurisdiction provisions "retain[] and reaffirm[] parens partri jurisdiction, usually exercised by a juvenile court, which a state must assume when a child is in an emergency situation requiring immediate protection." But only true emergencies justify a resort to emergency jurisdiction, and the court will only retain jurisdiction until the court in the forum takes proper steps to adequately protect the child.[52] The determination of emergency jurisdiction depends on the serious and immediate question concerning the welfare of the child, and contemplates a child in imminent danger of physical or emotional harm which necessitates immediate action to protect the child.[53] For example, in Soto-Ruphun v. Yates, a Texas court held that a mother's allegations that she intended to remove her son to Costa Rica, and preferred to "see him dead" before she would allow him to live with his father, did not constitute a serious and immediate danger because there was no imminent irreparable harm.[54]

Even when none of the other UCCJA jurisdiction provisions apply, Texas courts will recognize foreign decrees based on default. Grounds for default exist when there is "substantial contacts/substantial evidence" or emergency jurisdiction; it is in the best interest of the child and no venue has "home state" jurisdiction; or another state declined jurisdiction because a foreign jurisdiction was deemed to be a more appropriate forum.[55]

Whether a particular jurisdiction's act will be given effect by another jurisdiction's courts depends on the jurisdictional status of the issuing court.[56] That is, is the underlying order an enforceable order? A Court making this determination must ensure that due process was met when the underlying order was obtained; for example, the issuing Court must have subject matter and personal jurisdiction.[57] Additionally, the UCCJA requires that the order must be final if it is to be given effect in another jurisdiction; lastly, the UCCJA does not require states to extend full faith and credit to foreign orders.[58]

Subject matter jurisdiction refers to the power of the court to hear the type of litigation involved.[59] In determining whether recognition will be given to a foreign family order, the question of jurisdiction must be established according to standards of due process and reasonable notice in order to confer personal jurisdiction. Courts will not give full faith and credit or comity to a family law order that did not have "in personam" jurisdiction. For example, a Texas Court would not recognize a foreign divorce judgment as valid unless one of the spouses was a good faith domiciliary in the foreign nation at the time the decree was rendered.[60] An ex parte divorce based on the petitioning spouse's physical presence and notice to, or constructive service upon an absent defendant, will generally be denied recognition without a showing of a domicile by at least one spouse.[61] Courts have also refused to render decrees that include alimony or child support obligations unless the Court asserted personal jurisdiction over both parties.[62] Additionally, service of process or notice in accordance with the practices of an applicable jurisdiction, or a general appearance by the defendant, is required for a foreign order to be recognized.[63] The finality of a foreign decree must be determined before it is entitled to recognition and consideration.[64] For example, a Texas court is not required to give full faith and credit to an order of another state when that proceeding is still pending. In Scott v. Scott, a decision to deny a motion to stay proceedings was not discretionary since the California proceeding was not final.[65] In essence, a family law order, which is merely interlocutory, rather than final, is not entitled to full faith and credit or comity; therefore it is unenforceable.[66] Furthermore, in determining whether a family order is final or interlocutory, the law of the state in which judgment is rendered controls.[67]

The effect of a sister state's court action are normally determined by principles of full faith and credit. However, the concept of full faith and credit does not apply when the issuing jurisdiction is not a United States jurisdiction; in such cases, the doctrine of comity applies.[68] Where comity is mandated by treaty or by statute, or whether Texas courts will give effect to a foreign court proceeding would be substantially the same.[69]

As distinguished from full faith and credit, comity is voluntary; the court of one jurisdiction can voluntarily recognize the judgments of a court of another jurisdiction.[70] Strictly speaking, full faith and credit has no application to the laws, proceedings, and judgments of a foreign nation as it derives from the United States Constitution; however, comity can be applied to legal proceedings and judgments of foreign countries.[71]

The Texas Supreme Court, in Gannon v. Payne, described comity as a

" 'principle of mutual convenience whereby one state or jurisdiction will give effect to the laws and judicial decisions of another.' "[72] Where issues of child custody are concerned, comity is determined pursuant to the UCCJA and ICARA if the case involves an international child and a Hague signatory country.[73]

The intent of the UCCJA has always been that its general policies should apply to international custody cases.[74] The "International Application" is that its

general policies. . . extend to the international arena. The provisions of this subchapter relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected.[75]

Pursuant to UCCJA § 152.023, Texas courts shall recognize and enforce a decree of a similar court in another nation where due process is observed.[76] The Court of Mexico has been held to function like a Texas court handling domestic matters.[77] For example, in Garza v. Harvey, a husband and wife who had resided in Monterrey, Mexico obtained a Mexican divorce.[78] While the wife was granted temporary custody of the children, she was ordered not to remove them from the Monterrey area as the husband was granted extensive visitation rights.[79] Despite the provisions of the divorce, the wife fled to Texas with the children while final custody was still pending in Monterrey, and the husband subsequently filed a petition in Texas to enforce the Mexican decree.[80] The wife then counterclaimed, asking for a temporary injunction and modification of the Mexican decree.[81] The Honorable Naomie Harvey granted the temporary injunction pending final orders and the husband filed a writ of mandamus.[82] The Court of Appeals found that the UCCJA was applicable; the Mexican Court functioned like a Texas court and found that the district court had jurisdiction under UCCJA "emergency" jurisdiction.[83] The court held that as to one of the children, the district court could only act on a short-term emergency basis until the Mexican court acted to protect the child.[84] As to the other child, the Texas court would have to recognize the Mexican decree.[85]

In summary, the UCCJA does not resolve all interstate and international custody issues. The gray area under the UCCJA is that the home state is not given special priority, that is, a court may render an initial custody decree under any ground.[86] Thus, one state could assume "home state" jurisdiction; while another state assumes "substantial connection" jurisdiction.[87] As the UCCJA permits concurrent jurisdiction, it may not resolve the multi-state custody litigation conundrum.[88] Many states treat interference with parental custody as a misdemeanor, and therefore, extradition is not allowed.[89] In 1980, Congress sought to resolve these problems with the Parental Kidnapping Prevention Act (PKPA).[90]

PARENTAL KIDNAPPING PREVENTION ACT (PKPA)

As a federal statute, the PKPA preempts state law, including the UCCJA, when there is a conflict.[91] The PKPA applies to custody disputes, even if there has been no kidnapping or other wrongdoing, and it provides that a state must give full faith and credit to a sister state's custody order if the requirements of the PKPA are met.[92] The PKPA contains numerous valuable provisions, and the two most important are sections 8 and 10. Section 10 provides for criminal sanctions in cases where interstate or international kidnapping has occurred.[93] More specifically, it provides that § 1073 of Title 18 of the United States Code is applicable to interstate and international flight in parental kidnapping cases, thereby making interstate or international kidnapping a crime punished by a fine of up to $5,000.00 and/or imprisonment of up to five years.[94] It is possible that this federal crime of flight would not be applicable if the State does not have or does not enforce criminal provisions making the kidnapping a crime.[95] The crime of flight is more likely to occur in international law cases, and it is even more complicated when dealing with a country in which the United States does not have an extradition treaty. For example, if no extradition treaty exists, then that country typically has no obligation to forward that criminal to the United States.[96]

Section 8 of the PKPA provides for the amendment of Title 28 of the United States Code by adding § 1738A, entitled "Full Faith and Credit Given to Child Custody Determination." [97] Section 1738A is compelling upon the states and the state courts; it requires the state authorities to enforce child custody determinations made by another state when such determinations are made consistently with the provisions of § 1738A.[98] It also provides for certain due process and notice requirements to the potential contestants. Subsection (c) sets out seven conditions regarding contacts between the state and the child, one of which must be satisfied for a court to undertake jurisdiction.[99] Subsection (f) sets out rules for one state undertaking to modify the child custody determination of another state.[100] Subsection (f) provides that a court of a state may modify a determination of the custody of the same child made by a court of another state, if it has jurisdiction to make such a child custody determination, and the court of the other state no longer has jurisdiction determination.[101]

In McGee v. McGee, the El Paso Court of Appeals, strictly applied 1738(f)(2) when it held that it had jurisdiction to modify a Mississippi decree.[102] The McGee court held that the children's principal residence at the time the change of custody proceeding began was in Texas, and Mississippi, the state of the initial determination, was no longer the residence of the child or either parent.[103] In making this determination, the court relied on the fact that the principal residence of the children and the mother was Texas at the time of the commencement of the proceedings;[104] therefore, the court held that it had subject matter jurisdiction.[105]

Subsection (g) of 1738A deals with the issue of pending proceedings in other states and provides that a "court of a state shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pending of a proceeding in a court of that other state exercising jurisdiction consistently with the provision of this section to make a custody determination."[106]

Given the facts of McGee, if the father of the children attempted to initiate Mississippi proceedings after the Texas Court had started its proceeding, Mississippi could no longer assert subject matter jurisdiction pending the Texas proceedings.[107] One exception to this section is termination of parental rights. It has been held that this subsection does not prevent a state court from exercising jurisdiction to terminate parental rights while there is a pending child custody proceeding in another state.[108]

INTERNATIONAL CHILD ABDUCTION REMEDIES ACT (ICARA)

In response to The Hague Convention, the U.S. enacted the International Child Abduction Remedies Act, effective July 1, 1988. This Act adopted the Hague Convention and established implementation procedures.[109] Under this Act, the courts in the United States were empowered to determine rights under the Convention, but not the claim's underlying merits.[110] In Friedrich v. Friedrich, once the court determined the parent's custody rights, the merits were decided under the laws of the child's habitual residence.[111] ICARA discusses, inter alia, judicial remedies, the authority of the court, and the collection, maintenance and dissemination of information by the United States Central Authority under the Convention.[112]

Under ICARA, Congress made the following findings:

(1)The international abduction or wrongful retention of children is harmful to their well-being.

(2) Persons should not be permitted to obtain custody of children by virtue of their wrongful removal or retention

(3) International abduction and retentions of children are increasing, and only concerted cooperation pursuant to an international agreement can effectively combat this problem.

(4) the Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980 establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained, as well as for securing the exercise of visitation rights. Children who are wrongfully removed or retained within the meaning of the Convention are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies. The Convention provides a sound treaty framework to help resolve the problems of international abduction and retention of children and will deter such wrongful removals and retentions.[113]

And made the following declarations: The Congress makes the following declarations:

1) it is the purpose of this chapter to establish procedures for the implementation of the Convention in the U.S.

2) the provisions of this chapter are in addition to and not in lieu of the provisions of the Convention."

3) in enacting this chapter, the Congress recognizes--

a) the international character of the Convention; and

b) the need of uniform international interpretations of the Conventions

4) the Conventions and this Act empower courts in the U.S. to determine only rights under the Convention and not merits of any underlying child custody claims.[114]

ICARA provided definitions for Convention terms, such as "applicant," "Convention," "Parent Locator Service," "petitioner," "rights of access"; however, it should be noted that "child" is not defined.[115] Prior to The Hague 1996 amendments, this was a gray area because U.S. law, both federal and state (UCCJA and PKPA), defined a child as anyone under the age of 18, while the 1980 Hague Convention defined children as persons under the age of 16.[116] Hague 1996 cured this problem by changing the age limit to 18.[117] However, Hague 1980 allowed for certain countries to make reservations.[118] It is possible that if certain countries who were signatories to The Hague 1980 but have not yet signed The Hague 1996 would not be bound to this change. Therefore, as to those countries, conflict may arise when a child is seventeen and taken to a country that is not a signatory to The Hague 1996. The Hague will not apply and be of no assistance because the child no longer falls under The Hague provisions. This might be an area that one might argue comity.

Any person seeking to initiate a Hague proceeding may do so by filing a petition for the relief sought 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.[119] All notice requirements must be met in accordance with the applicable law governing notice in interstate child custody proceedings.[120] ICARA set out the applicable burdens of proof and provides that the remedies under this Act are not exclusive and shall be in addition to remedies available by other laws or agreements.[121] ICARA's "full faith and credit clause"[122] provides, "Full faith and credit shall be accorded by the courts of the States and the courts of the United States to the judgment of any other such court or denying the return of a child, pursuant to the Convention, in an action brought under this chapter." [123]

Any court exercising jurisdiction of an action brought under ICARA may take measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child's further removal or concealment before the final disposition.[124] However, the court may not order a child removed from a person having physical control of the child unless applicable requirements of state law are met.[125] Petitioner bears the up-front costs.[126] ICARA has similar provisions to The Hague regarding cost. ICARA provides that if a court orders the return of the child then Respondent bears the cost that Petitioner had to bring the suit;[127] and it also provides that the offending party must pay incidental expenses associated with returning the child.[128]

Hague Convention on the Civil Aspects of

International Child Abduction

The Hague Convention on the Civil Aspects of International Child Abduction (The Hague or the Hague Convention) was adopted at The Hague, The Netherlands, on Oct. 25, 1980, and was ratified by Congress on July 1, 1988. As of March 30, 2003, there are 53 signatory countries.[129] The aim of the Convention was to deter international child abduction and to provide a mechanism for the prompt return of abducted children to their home country, where the tribunals can resolve the custody issues, if any, on the merits. Additionally, the purpose was to stop wrongful removals or retentions involving the signatory states and the United States.[130] In October 1986, the United States Senate ratified The Hague Convention on the Aspects of Child Abduction which was implemented in April 1988 as the International Child Abduction Remedies Act (ICARA).[131]

The Hague applies between signatory states only as to wrongful removals or retentions occurring after the Convention's entry into force in that state. It provides for the prompt return of children who have been wrongfully removed and retained in another country which has ratified the Convention, and it also deals with the right of access.[132] The Hague applies to any child who was a habitual resident in a contracting state immediately before a breach of custody or access of rights.[133] The term "habitual resident" is used by both The Hague and the UCCJA. Habitual residency and breach of custody rights are areas which require judicial interpretation. The following articles are typically the most litigious sections.

Article 12 of The Hague Convention provides that if the child has been retained wrongfully in the requested state for less than one year, the child is to be returned automatically; if the child has been in the requested state for longer than one year, the child is to be returned unless it is demonstrated that the child is now settled in its new environment.[134]

Article 3 of The Hague Convention provides that the removal or retention of a child is wrongful when it is in breach of custody rights of persons and/or institution(s) under the law of the State in which the child was habitually resident immediately before the removal or retention and at the time of removal or retention the custody rights were actually being exercised or would have been exercised but for the removal or retention.[135]

Article 13 of The Hague Convention provides exceptions upon which the judicial or administrative authority is not bound to order the return of the child. The authorities are not bound to return the child if: 1) the person or institution or other body having care of the person of the child was not actually exercising the custody rights at the time of the removal or retention, or had consented to or subsequently acquiesced in the removal or retention of the child, 2) there is grave risk or exposure of physical or psychological harm or otherwise place the child in an intolerable situation, 3) if the child has attained the age and degree of maturity and he objects to being returned, 4) the authorities shall take into account the information relating to the social background of the child or other competent authority of the child's habitual residence.[136]

Article 16 of The Hague Convention provides that after receiving notice of a wrongful removal or retention of a child, the administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide the merit of the rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under the Convention is not lodged within a reasonable time following receipt of the notice.[137]

The Hague also has a provision regarding costs and services provided. Article 26 provides that while each central authority shall bear their own cost in relations to Hague applications, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child.[138] However, a contracting state can declare that it shall not be bound to assume any expenses resulting from the participation of legal counsel, advisers, or from court proceedings, except insofar as those costs may be covered by its system of legal aid and advice.[139] The Hague provides that administrative authorities, in cases where a court has found that the child was wrongfully removed or retained, may order the party who wrongfully removed or retained the child to bear the cost of necessary expenses incurred by, or on behalf of the applicant; these costs include travel expenses, any costs incurred, payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.[140]

In October 1996, the signatories to The Hague reconvened to consider the need to improve the protection of children in international situations; wishing to avoid conflicts between legal systems in respect of jurisdiction, applicable law, recognition and enforcement of measures for the protection of children; the importance of international co-operation for the protection of children, and confirming that the best interest of the child is to be a primary consideration. It was noted that the Convention of 5 October 1961 and the United Nations Conventions on the Rights of the Child of 20 November 1989 were in need of revision as regards the power of authorities and applicable law.[141] As a result, the 1996 amendments made changes by providing more precise definition and clarity to The Hague in many of the various articles; some of the articles were combined.

Prior to the 1996 session, Article 1 of The Hague simply stated the purpose of The Hague was to secure the prompt return of children that were wrongfully removed or retained and to ensure rights of access. Article 1 of The Hague 1996, appears to have been amended to be more specific and include a broader definition to include adoption. Article 1 presents new objectives. It establishes safeguards to ensure that inter-country adoptions take place in the best interests of the child and with respect for its fundamental rights, and a system of cooperation among Contracting States. Article 1 also establishes safeguards to prevent the abduction, the sale or trafficking of children by requiring adoptions to be made in accordance with the Convention.[142] The Convention applies to all adoptions between Contracting States that result in a permanent parent-child relationship, but ceases to apply if a child becomes eighteen before certain Convention steps have been taken.[143]

More specifically, Article 1 of the October 1996 Hague provides:

1. The objectives of the present Convention are-

a) to determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child;

b) to determine which law is to be applied by such authorities in exercising their jurisdiction;

c)to determine the law applicable to parental responsibility;

d) to provide for the recognition and enforcement of such measures of protection in all Contracting States;

e) to establish such cooperation between the authorities of the Contracting States as may be necessary in order to achieve the purpose of this Convention.

2. For the purposes of this Convention, the term 'parental responsibility' includes parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child.[144]

Prior to the 1996 session, The Hague of 1980 applied to children from the date of birth until age sixteenth. Hague 1996 in Article 2 amended the age. It set forth that The Hague applies to children until the age of eighteen.[145] This amendment cured a gray area that previously existed between United States's laws and The Hague. ICARA, UCCJA and PKPA Act state that their provisions applied to children until the age of eighteen compared to The Hague 1980 which set the age limit at sixteen. Article 3 defines wrongful removal or retention. This section is now covered in Article 7 of The Hague 1996. Article 3 of The Hague 1996 has provisions as to rights of custody, right of access, parents, guardians and parental status.[146]

Article 4 of Hague 1996, sets out factors or types of cases in which The Hague will not apply. One important factor is that The Hague does not apply in cases regarding establishment of a parent-child relationship or where the same is in contest.[147] This is a problem because the United States borders Mexico. Many children are born out of wedlock and paternity is in contest. In many cases when the suit has started, the Mexican father will abduct the child and take the child to Mexico in hopes of discouraging the Mother from pursuing the case. In these types of cases the Mother will drop the case in hope that the father will return the child. Meanwhile, the child remains illegitimate and on welfare because no child support is paid by the father. Cases like this appear before the attorney general's office on an every day basis in cities such as Houston, San Antonio, and in all of the border towns such as Laredo, El Paso, Del Rio and McAllen Texas.[148] Article 4 also provides that The Hague does not apply to maintenance obligations, the Convention on the Law Applicable to Maintenance Obligations in Respect of Children and the Convention on Jurisdiction and Enforcement in Civil and Commercial Matters are treaties that apply to the enforcement of civil judgments.[149] The effect of this provision is that if a proceeding is being commenced for both the return of the child and enforcement of child support the two treaties may create conflicts as to which treaty will govern the action. There may be a difference in procedures provided by each treaty.

Article 5 of The Hague 1980 defined "right of custody and access." Hague 1996 set out these provisions in Article 7 and also defined what is wrongful removal or retention of a child along with possible defenses. Articles 3 and 7 of The Hague 1980 are now combined together. Additionally, Hague 1996 has amended the article to also apply to children where "habitual residence" cannot be established under Article 6(2). Furthermore, Articles 5 and 6 give more precise provisions as to the jurisdiction for cases which determine residence.[150] Articles 12 and 13 of The Hague include provisions for processing a Hague application and the return of the child unless one of the four defenses apply pursuant to Hague 1980, Article 13. The Hague 1996 now incorporates provisions in Article 7.[151]

The Hague 1996 now has provisions where a contracting state may request to hear a case because it would be in the "best interest" of the child. This type of language is also seen in U.S. state and federal laws e.g., ( UCCJA and PKPA). For example, Article 8 of The Hague provides that a contracting state may make the above request if it is a state that has substantial connection with the child.[152] Another change that appears in The Hague 1996, is that Article 11 now has language that deals with cases that are urgent and need immediate action for the protection of the child.[153]

Article 11 provides that:

1. In all cases of urgency, the authorities of any Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take any necessary measures of protection.

2. The measures taken under the preceding paragraph with regard to a child habitually resident in a Contracting State shall lapse as soon as the authorities which have jurisdiction under Articles 5 to 10 have taken the measures required by the situation.

3. The measures taken under paragraph 1 with regard to a child who is habitually resident in a non-Contracting State shall lapse in each Contracting State as soon as measures required by the situation and taken by the authorities of another State are recognised in the Contracting State in question.[154]

The revision made to The Hague in 1996 seems to address some of the areas that previously required to be interpreted by case law.

In summary, The Hague and ICARA have mirror image provisions. The mission of both is to deter international child abduction and to provide a mechanism for the prompt return of abducted children to their home country. The Hague merely determines whether the child was wrongfully removed and whether the child will be returned while the merits of the custody issue will be determined by the "habitual resident" state in accordance with their laws. The countries which have acceded to the Convention agree that a child who is a habitual resident in the country that is a party to the Convention, and who has been removed or retained in another country that is a party to the Convention shall be promptly returned subject to certain exceptions.[155]

ICARA created a Central Authority to discharge the duties imposed upon the United States by the Convention and grant concurrent jurisdiction to federal and state courts to enforce the Convention.[156] The Central Authority has a process for both "outgoing cases" and "incoming cases".[157] In outgoing cases the Convention does not, in fact, require that any individual seek the assistance of a Central Authority either in the place to which the child's return is sought or in the state where the return petition is to be heard.[158] Instead, the utmost flexibility is maintained by permitting a party to initiate return proceedings directly before the judicial or administrative authorities of the place where the child is located, or to seek assistance from a Central Authority in the petitioner's home country or in any other contracting state.[159] In practice there are great advantages in making use of the local Central Authority. Once a snatch has occurred, of course, the Central Authority is equipped to assist a left-behind parent or counsel in reaching the foreign Central Authority.[160] The local Central Authority can also provide information and referrals that will cut through an apparent bureaucratic maze.[161]

This efficiency extends to applications themselves. Although countries generally use a standardized form to request assistance under the Convention, some countries also require signed powers of attorney or information establishing the applicant's eligibility for legal assistance before the case may go forward.[162] Advice is also available concerning appropriate supporting documents such as affidavits, translations, social studies, a declaration of wrongful taking or retention, "undertakings," or an authorization in advance for appeal should the applicant lose at trial.[163] In "incoming cases," the functions of a Central Authority that receives an application from abroad for the child's return are equally varied and potentially helpful to the applicant.[164] First, assuming that it agrees to handle the case, the Central Authority must assist in locating a child.[165] Recognizing the practical dangers some Central Authorities recommend that ex parte orders should be secured so as to prevent re-abduction in every case at the time the court action is filed and before negotiations are opened with the alleged abductor.[166] The Convention directs Central Authorities to initiate or facilitate the initiation of such proceedings, but it does not require that the applicant be represented by Central Authority personnel.[167] Once litigation is under way, Central Authorities remain available to provide information and to assist the court in obtaining requested social studies, determinations as to wrongfulness, or even the presence of a party or important witness.[168] In summarizing the Central Authorities role, its main objective is discharging the day to day operations of The Hague. However, it also works to educate the public regarding The Hague and "international child abduction".[169]

ICARA grants the United States District Courts and the courts of each of the states concurrent original jurisdiction of actions arising under the Convention. A proceeding under the Convention is not a custody proceeding. Additionally, the Convention does not preclude any person, institution, or body who claims that there has been a breach of custody or access rights from applying directly to the judicial or administrative authorities of a contracting state, whether or not under the provisions of the Convention.

The court where the complaint is lodged must decide the case in accordance with the Convention only as to determining wrongful removal or retention, not the underlying custody issue. The Court will then order the return of the child unless an exception under The Hague applies. It is the exceptions that have produced judicial interpretations as to how they should be interpreted or decided pursuant to The Hague and ICARA. The exceptions are as follows: more than one year has passed and the child has become "settled";[170] the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; there is grave risk that their return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation;[171] The Hague ceases to apply to a child who has attained the age of eighteen;[172] and the child objects to being returned and has attained an age and degree of maturity to make this decision.[173] It is terms such as "settled", "grave risk" and "continual exercise of rights" that have demanded judicial explanation in determining whether the child was wrongfully removed or retained. Generally, The Hague Article 12 and ICARA, 42 U.S.C. § 11601(a)(4), provide that a child that has been wrongfully removed or retained must be returned to the habitual residence of the child unless an exception applies; it is also required that proceedings be brought within one year of the removal, and a court in analyzing this provision must first determine the "habitual residence" and then determine if any of the exceptions apply.[174]

Neither The Hague nor ICARA defines "habitual residence". Case law varies as to how it determines "habitual residence" after it considers all of the facts. In the case of Slagenweit v. Slagenweit, it was held that to establish "habitual residence" there must be a degree of settled purpose.[175] "That is not to say the propositus intends to stay where he is indefinitely. Indeed his purpose while settled may be for a limited period. Education, business, profession, employment, health, family or merely love of the place spring to mind as common reasons for choice of regular abode . . . ."[176] All that is necessary is that the purpose can be described as "settled." [177] In Ponath v. Ponath, the German father and American mother lived first in Utah; however, they subsequently moved to Germany where the father found employment and began construction of a house.[178] After a short time, the mother wanted to return to the United States.[179] Though the husband resisted, the mother and minor child returned to Utah eleven months later; six months later, the husband brought a Hague petition in the Utah District Court to have the child returned to Germany.[180] The court refused to order his return, holding that Utah and not Germany was the state of habitual residence, and it found that the wife's continued residence in Germany was "coerced," negating the possibility of finding that the extended visit in Germany had matured into a "settled" residence.[181] Although it is the habitual residence of the child that is relevant, the court held that it could not ignore the desires and actions of the parents.[182] In the court's view, the concept of habitual residence must entail some element of voluntariness determined plan.[183]

The Ponath case may reflect a tendency on the part of courts to introduce false notions into determinations of habitual residence. However, in Friedrich v. Friedrich, the lower court was reversed for its finding that an American service woman who had been forced by her husband from her off-base military housing in Germany onto an American military base had as a result established a habitual residence in the United States; the Sixth Circuit distinguished habitual residence from the technical concept of domicile, and it additionally stressed that habitual residence of a child is not determined by the care or protection of a particular parent.[184]

Habitual residence also unfolds as the critical issues in the context of dual removals or abductions. In Meredith v. Meredith, the family lived in Arizona; the mother took the child on a visit to France and did not return.[185] The father later located the child in England and brought the child back to Arizona.[186] The mother's Hague petition in Arizona to return the child to England was denied on the ground that Arizona, not France or England, was the child's habitual residence.[187] But a different outcome occurred in Levesque v. Levesque, where a couple living in Germany had joint custody of their daughter under a separation agreement.[188] The couple reconciled for a short period in the United States, but the mother later returned to Germany with the child.[189] The father then abducted the child to Kansas.[190] In a Convention action for return brought by the mother, the father argued that the case was like Meredith and that Kansas was the child's habitual residence.[191] The court rejected the father's contention, holding that the parties had agreed that the mother could return to Germany for a sufficiently "settled" time and that this agreement justified a finding that Germany was the habitual residence.[192]

For lawyers, advising clients how to proceed in these cases can be difficult. In Meredith, for example, a father, who abducted a child to the United States, was successful in resisting return because earlier the mother had wrongfully taken the child from its habitual residence in the United States. Thus, in Meredith, the Convention did nothing to deter the abduction by the father and in fact may have encouraged a self-help remedy. The appropriate course of action for the father would have been to commence his own Hague proceeding in England to request the return of the child to the United States. If the Convention works effectively, the English court should order the return. But because there is the potential for conflicting interpretations about where the habitual residence is, various courts may resolve the factual issue differently. Thus, the father in Meredith may have perceived that he had a better chance of prevailing in the courts of the United States than in the courts of England.[193]

At the same time, a decision to participate in a custody proceeding in the State where the child has been taken rather than bringing a Hague petition may be unwise. In two such cases, courts' decisions on habitual residence have been influenced by such subsequent events. In Sheikh v. Cahill, the child was born in the United States to a Pakistani father and Irish mother.[194] Following an abduction by the father and re-abduction by the mother, a New York court, as part of an uncontested divorce, entered a joint custody order providing that the child was to reside with the mother and the father's visitation was to be supervised.[195] The mother subsequently took the child to England without the father's consent, and when the father finally located them, he brought a ward-ship proceeding in England.[196] The child was made a ward of the court; care and control was granted to the mother; and extended visitation in the United States was given to the father.[197] When the father failed to return the child at the end of the visitation period in the United States, the mother filed a Hague petition in New York and the father counter-claimed for custody.[198] The father's position was that the mother herself had violated the initial New York decree.[199] In deciding for the mother and ordering return the court noted that the father had failed to file his own Hague petition in the English courts and instead had submitted to English jurisdiction with his wardship action.[200] In effect, the New York court regarded the English custody order as determinative of the custody rights of the parties and that England, in these circumstances, was the child's habitual residence.[201] After "habitual residence" is determined, it must be ascertained if the child was wrongfully removed or retained and whether the exceptions apply.

If proceedings are brought within a year and the child was wrongfully retained, the child must be returned. If a year has passed, and it is shown that the child is settled in their new environment, the Court has discretion whether to order the return. Again, cases that discuss the "settled in its new environments" approach vary depending on the particular facts; therefore, this is another gray area that must be considered.[202] In the case of, In re Marriage of Collopy, a court refused to order the return of a twenty-month old child to England because the child had been in Colorado from the time she was two-months old.[203] On the other hand, a United Kingdom court denied a ten-year-old child's objection to returning to his father in United Kingdom because it was a product of undue influence, and thus would be afforded no weight in the proceedings. The Court acknowledged that the child's attorney suggested "a few ideas" such as "I like it here" and "I'm settled in." The court noted that the child used the term, "settled," which was the most significant legal term of the dispute and was not the language of a ten-year-old.[204] In Wojcik v. Wojcik, the court held that there was no equitable reason to preclude application of "settled in their environment" exception to return of wrongfully retained children to French father pursuant to Hague Convention on the Civil Aspects of International Child Abduction.[205] The Court's rationale was that the mother did not hide the children and in fact called the father the first day of wrongful retention and told the father the location of the children.[206]

The defenses under the Convention are limited, but they do allow for return to be avoided in the case of "acquiescence," "grave harm," creation of an "intolerable situation," or a violation of "fundamental human rights." Note that the court retains discretion to order return even if one of the defenses is applicable. The first part of this analysis requires that the court consider whether the failure to exercise custody rights occurred. A party must exercise rights of custody for there to be a wrongful removal or retention. The second part of the analysis pursuant to The Hague Article 13(a) provides that if a parent consents to or subsequently acquiesces to the removal or retention, no violation should be found. The validity of this defense often turns on competing versions of whether the departing parent left with or without consent. In other situations, courts have found acquiescence in the behavior of a party after the removal or retention.[207]

The U.S. Courts require more than certain comments or letters to establish the defense of "acquiescence". For example, in Friedrich v. Friedrich, the Sixth Circuit Court of Appeals held that alleged comments made by the father "that he was not seeking custody of the child" was not a defense to the mother's wrongful retention of the child. The Court held that these comments alone were insufficient evidence for the court to conclude that there was acquiescence to the taking of the child.[208] In Wanniger v. Wanniger, the Court refused to construe a father's personal letters to the wife and a priest as sufficient evidence that he consistently attempted to keep in contact with the child.[209] Also, in a number of cases the left-behind parent has tried to negotiate custodial arrangements with the parent who has taken the child, triggering an acquiescence defense. Although the factual patterns can be quite different and unique circumstances may justify an acquiescence defense, as a general rule courts should be careful not to translate negotiation into acquiescence, as this might encourage litigation at the expense of a more amicable resolution.[210] The second defense provided by The Hague in Article 13b is "a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation". This exception has been viewed to have the potential to undercut the ultimate summary return objective of the Convention by opening the door to a full merit inquiry. For this reason, this provision was the subject of much debate and negotiations during the Convention deliberations. Attempts to widen this exception were resisted under a general best interest exception; therefore, courts have construed this provision very narrowly.[211]

In Freier v. Freier, the mother maintained that, if the child were forced to return to Israel, the child would suffer psychological harm and that "unrest in Israel near family's residence presented a grave risk of physical harm."[212] The Michigan Court held that the mother did not establish an affirmative defense by clear and convincing evidence and ordered return of the minor child to Israel.[213] The Court's rationale was that, although mother presented evidence that Israel was experiencing political and religious unrest, she did not provide sufficient evidence for the Court to make a finding that the family's residence was located in a war zone.[214]

The case of Tahan v. Duquette[215] provided the courts with helpful parameters for defining the "grave risk of harm" exception. In this case, a New Jersey decree gave the father and Canadian mother alternating custody of the child; however, mother refused to return the child after the first visit and a full custody hearing was eventually held.[216] The court then awarded the mother custody of the child and the father was awarded visitation.[217] When father failed to return the child following visitation in New Jersey, mother successfully brought a Hague petition in Canada.[218] On appeal after remand to the trial court, testimony of four experts was offered regarding the possible harmful effects that would result from returning the child to Canada. However, the trial court rejected this testimony, holding that psychological profiles and detailed evaluations of parental fitness and lifestyles were inappropriate avenues of exploration on return petitions.[219] The Court of Appeals rejected the trial court's reasoning, but it excluded consideration of the expert's testimony on other grounds.[220] The court focused instead on whether a realistic basis existed for apprehension about the child's well-being as indicated by an evaluation "the surroundings to which the child is to be sent and the basic personal qualities of those located there."[221]

Judicial Circuitous Contretemps:

First Circuit vs. Second Circuit

The First and Second Circuit Courts of Appeals have put much effort into interpreting The Hague Convention and ICARA. These Circuits have focused on the interpretation of the Covenant's effect and on deciphering what constitutes a grave risk of psychological harm. The threshold determination is to ascertain the child's habitual residence at the time of the removal.[222]

The Second Circuit in Diorinou v. Mezitis,[223] held that the decisions of Greek courts were not entitled to full faith and credit under the Convention but were entitled to deference under principles of international comity. In an ICARA suit "a United States District Court has the authority to determine the merits of the underlying custody claim." [224] "The abduction claim is limited, initially, to a determination of whether the defendant has 'wrongfully removed or retained' the child; on this issue the plaintiff bears the burden of proof." [225] The Convention contemplates that a person exercising custody rights over a child will use the remedies of the Convention and ICARA to redress the wrongful removal or retention of the child. In Diorinou, when the father believed that the children had been wrongfully retained, he caused a Hague petition to be filed on his behalf in Greece. Diorinou then filed a Hague petition to return the children to Greece, challenging the alleged wrongful removal of the children by Mezitis from Greece to New York in October 2000. In making its decision, the district court began its analysis by first determining the issue of the children's habitual residence at the time Mezitis removed the children from Greece to New York.[226] The district court reasoned that while the children lived in Greece with their mother for the last five years, where they attended school, established relationships, and received medical treatment, Greece would still not be the children's habitual residence if their removal to Greece was wrongful.[227] In an ICARA proceeding, once the petitioner establishes that the removal or retention was wrongful, the respondent must return the child unless the respondent can prove at least one of the following defenses: "(1) ICARA proceedings were not commenced within one year of the child's abduction; (2) petitioner was not actually exercising custody rights at the time of removal or retention; (3) there is a grave risk that return would expose child to physical or psychological harm or otherwise place the child in an intolerable situation; or (4) return of child would not be permitted by fundamental principles relating to protection of human rights and fundamental freedoms."[228] These exceptions are to be construed narrowly.[229] But, a court is not bound to order the child's return if it is established that the petitioner "consented to and subsequently acquiesced" in the child's removal or retention.[230] However, "[n]either the Convention nor ICARA define the terms 'consent' or 'acquiescence'; and there is no guidance in the legislative history."[231]

In a case of first impression, the Second Circuit Court of Appeals in Croll v. Croll held that rights of access are not rights of custody enforceable by a return remedy under the Hague Convention, even when coupled with a ne exeat clause.[232] This type of clause "does not transmute access rights into rights of custody under the convention. Ne exeat or not, Mr. Croll's rights include none of the powers (or burdens) of a custodial parent, and therefore are properly classified as rights of access." [233] The power to determine a child's place of residence, in the context of a definition of custody rights, is an example of the powers entailed by the care of a child, while a ne exeat clause confers only a veto, a power in reserve, which gives the non-custodial parent no say (except by leverage) about child-rearing issues other than the child's geographical location in the broadest sense.[234]

In Whallon v. Lynn, the First Circuit Court of Appeals looked at grave risk and acquiescence as factors in establishing habitual residence.[235] Whallon involved unmarried parents who had not entered into a formal paternity and/or custody agreement regarding their daughter prior to the child's removal to the United States by mother.[236] The Court, however, found that under Mexican law, the father of the minor child exercised custody rights over the child and not a mere right of visitation; therefore, any removal by the mother from Mexico to the United States that violated father's right to custody was wrongful under the Hague Convention.[237]

The child's return to Mexico would not subject child to grave risk of physical or psychological harm or an otherwise intolerable situation, notwithstanding alleged instances of verbal and physical abuse committed by father, who resided in Mexico, as none of the abusive conduct was directed at child.[238] Allegations that father physically and verbally abused mother did not rise to the level of abuse presented in Walsh.[239] In fact, mother did not allege that father's abusive conduct was ever directed at their minor child, and the parties' expert witnesses both agreed that father and daughter love each other dearly.[240] Because mother failed to meet her burden of proving that returning minor child to Mexico would subject her to a grave risk of physical or psychological harm, the court ordered the child's return to Mexico.[241] To meet the burden under the article 13(b) exception, respondent must establish that the alleged physical or psychological abuse was "a great deal more than minimal."[242] The harm must be "something greater than would normally be expected on taking a child away from one parent...to another." [243] It is not the court's job to either engage in a custody determination or speculate who would be the better parent in the long run.[244] Father's failure to file for custody does not constitute acquiesce, in light of father's significant involvement in the child's live and his prompt action in seeking return of his daughter to Mexico.[245]

The First Circuit in Walsh v. Walsh,[246] determined that the wife made a showing that return of children to Ireland would expose them to a grave risk of physical or psychological harm, as would bar their return under Hague Convention. The Irish husband was not barred by the fugitive entitlement doctrine from bringing a Hague petition for the return of children who had been brought to the United States by his estranged wife. [247] The wrongful taking of a child from the country of habitual residence does not require the child's return because there was a grave risk that the child's return would expose them to physical or psychological harm, or would otherwise place the child in an intolerable situation.[248] The husband had a long history of spousal abuse, of physically and verbally abusing others including a fight with one of his adult sons, and had shown a chronic disobedience of court orders.[249] The grave risk does not have to be "immediate" for the exception to apply.[250] However, it must be a great deal more than minimal, and not any harm it will do, nor the level of risk of harm be low.[251] In short, the Walsh court recognized spousal abuse as a possible grave risk of harm.[252] Under ICARA, it may not pose a grave risk of harm to return child to the country of habitual residence if the potential risks attendant upon a child's return are lessened or eliminated by the trustworthy undertakings of the parties.[253] However, in Walsh, any safeguards implemented by husband, or even a court order, were not sufficient to mitigate the possible grave risk of harm that the children would be exposed to physical or psychological harm if they were returned, and thus return of children under the Hague Convention was improper.[254] "The husband had repeatedly violated court orders in both United States and Ireland, and there was every reason to believe that he would violate undertakings, or any future orders of the Irish courts".[255]

The First Circuit Court of Appeals in Danaipour v. McLarey, held that the District Court erred by ruling that the children should be returned without first determining whether sexual abuse occurred.[256] It also erred by ruling that a forensic sexual abuse evaluation could be properly done in Sweden. The party opposing return of children who have been wrongfully removed from their country of habitual residence because of a grave risk that return would expose a child to physical or psychological harm or otherwise place the child in an intolerable situation bears the burden of establishing that exception by clear and convincing evidence.[257] The Hague Convention establishes a strong presumption favoring return of a wrongfully removed child; exceptions to general rule of expedient return are to be construed narrowly.[258] The grave risk defense may not be used as a vehicle to litigate or relitigate the child's best interests.[259] Even if grave risk conditions are met, the court still has discretion to return the child to the country of habitual residence.[260] A parent's sexual abuse, including abuse other than rape, is an "intolerable situation" for purpose of the grave risk defense to the expedient return from their country of habitual residence under the Hague Convention.[261] Penetration is not a prerequisite to a finding of sexual abuse posing a grave risk of harm to the child.[262] A finding that a child is currently not experiencing severe psychological effects of sexual abuse is not necessarily dispositive, for purposes of grave risk defense.[263]

In Danaipour, the father brought an action for return of his children to Sweden under the Hague Convention, and he was challenged by mother pursuant to grave risk defense.[264] The district court erred by ruling that a forsenic sexual abuse evaluation could be properly done in Sweden; even if Swedish procedures were adequate, it was still questionable whether the effect of children's return would undermine any examination's validity since the children would more likely not talk to those charged with determining the existence of abuse.[265] The district court did not have the authority to order a forensic sexual abuse evaluation in Sweden or to order the Swedish courts to adjudicate the implications of the evaluation for the custody dispute, and thus the undertakings that required such actions were invalid, because such orders offended notions of international comity and were inadequate to protect the children.[266]

The series of cases under the rubric of Blondin v. Dubois, has given the Second Circuit the opportunity to set the parameters of the debate on what constitutes "grave risk." The last pronouncement is the so-called Blondin IV, which was decided on January 4, 2001. The Court of Appeals held that the children would suffer the recurrence of acute, severe traumatic stress disorder if repatriated to France, the site of their alleged abuse prior to being abducted by mother, was not clearly erroneous; and that the likelihood of recurrence of post-traumatic stress disorder qualified as "grave risk of psychological harm," sufficient to support the decision to not repatriate.[267] The question in short can be summarized as: Does Blondin IV close (or narrow) the Article 13(b) "loophole"? The District Court in Blondin III denied repatriation because of serious abuse and the resulting harm that the children would suffer on returning to France.[268] The District Court also found, that the French could not provide the children with the necessary protection.[269] The French authorities were willing and able to make whatever arrangements and accommodations necessary to facilitate repatriation. However, they could not provide this protection since doing so would "require them to fulfill the impossible task of ensuring that a return to France would not trigger a recurrence of traumatic stress disorder in the children." [270]

In Blondin II, the Second Circuit held that a court could return a child to their habitual residence even if there was a grave risk of harm, as long as provisions were in place to protect the child from that risk.[271] Blondin IV reversed holding essentially that although the court must first examine the full range of options that might make possible the child's safe return to the home country, in this particular case, it would be impossible to assure the children's protection.[272] That is, in Blondin IV, a domestic violence victim successfully invoked Article 13(b).

Conclusion

The Hague Convention seeks to provide a remedy for international child abductions and to restore the "factual" status quo which is unilaterally altered when a parent abducts a child.[273] The United States ratified the Convention in 1986 and became a contracting state in 1988 through the federal implementing statute ICARA. ICARA confers concurrent original jurisdiction in state and federal courts over actions arising under the Convention.[274] Jurisdiction is granted only as to the merits of the abduction claim; the statute does not grant jurisdiction to decide the underlying custody dispute.[275] Under the Convention, each country has a Central Authority which is responsible for discharging the duties imposed by the Convention and operating with the Central Authorities of other countries to secure the return of children.[276]

In determining whether there has been a wrongful removal or retention, the court may take jurisdiction notice of the law and judicial decisions "in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable." [277] To obtain a remedy under the Convention, a petitioner must show by a preponderance of the evidence that the child has been wrongfully removed within the meaning of the Convention.[278] The application, together with the documents or any other information appended to the application or provided by the Central Authority, is admissible in the courts of the contracting states.[279] Once petitioner has established these requisite elements, the party opposing the return of the child has an opportunity to raise various defenses; including acquiescence and grave risk. Article 20 further permits a court to refuse to return the child "if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms."[280] The party opposing return of the child must establish the defenses in Article 13b and Article 20 by clear and convincing evidence.[281] Any other defense in Article 13 must be established by a preponderance of the evidence.[282] The person opposing the return of the child may also attempt to show by a preponderance of the evidence that the proceeding was not initiated within one year of the wrongful removal or retention and that the child has settled in his or her new environment.[283] Even if the proceedings were commenced after the expiration of one year, the court shall order the return of the child unless a party demonstrates that the child is now settled in its new environment.[284] If the person opposing the return of the child does not establish one of these defenses, the return of the child is mandatory.[285] "Once a plaintiff establishes that removal was wrongful, the child must be returned unless the defendant can establish one of the four defenses." [286] However, "[t]he provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time";[287] thus, even if a party proves one of the available defenses, the return of the child is a matter of judicial discretion.[288] Further, the courts have construed these defenses narrowly.[289]

According to Professor Weiner, the apparent "victory" of Blondin IV was at best Phyrric. Although the 13(b) "loophole" was "closed" and now children who were in harm's way would not have to be mechanically returned to the place of grave risk, Blondin IV was problematic. "It makes Hague Convention proceedings much more like custody contests, something courts have been uniformly resisting. Blondin IV dramatically widens the Article 13(b) defense, makes expert testimony a virtual necessity whenever the defense is raised, and undermines the potential usefulness of undertaking."[290] The Hague Convention grants jurisdiction only to the merits of the abduction claim and not to the merits of the underlying custody dispute. Blondin IV although a victory, is a hollow one since it essentially encourages a backdoor custody evaluation on the question of grave risk even though this appears to contradict the Convention's objective of ensuring that custody rights under the law of each contracting state are respected by other states.[291]

Perhaps, the appropriate model would be to avoid the expansion of the Convention's objectives by remanding the case to the court of appropriate authority for resolution of any underlying custody issue. That is, if there is a material dispute as to whether a grave risk of harm exists, then the petitioner should be required to first exhaust remedies before a court of appropriate jurisdiction as a prerequisite to seeking the remedies available from the Convention. Once a petitioner has obtained judgment on the custody issue, the court should give full faith and credit and/or comity to the appropriate legal determinations. This would prevent a court an ill-equipped court from handling matters pertaining to custody and would promote efficiency. Allowing a court with the appropriate expertise to evaluate custody issues could possibly prevent a child being placed in a situation that could be detrimental to their health and safety, which is a fundamental concern of International Conventions focusing on human rights. This would be consistent with Article 13, which provides: "Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that . . . there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."[292]

Appendix 1

Hague Convention on the Civil Aspects of International Child Abduction, October 25, 1980

Chapter I Scope of the Convention

Article 1 – "The objects of the present Convention are -- a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States."

Article 2 – "Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious."

Article 3 – "The removal or the retention of a child is to be considered wrongful where -- 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 judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State."

Article 4- "The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains of age of 16 years."

Article 5- "For the purposes of this Convention -- a 'rights of custody' shall 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; b 'right of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence."

Chapter II Central Authorities

Article 6 – "A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities. Federal States, States with more than one system of law or States having autonomous territorial organizations shall be free to appoint more than one Central Authority and to specify the territorial extent of their powers. Where a State has appointed more than one Central Authority to which applications may be addressed for transmission to the appropriate Central Authority within the State."

Article 7 – "Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. 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; 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 and, in a proper case, to make arrangements 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 legal counsel and advisers; 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 to its application."

Chapter III Return of Children

Article 8 – "Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the Child's habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child."

Article 9 - "If the Central Authority which receives an application referred to in Article 8 has reason to believe that the child is in another Contracting State, it shall directly and without delay transmit the application to the Central Authority of that Contracting State and inform the requesting Central Authority, or the applicant, as the case may be."

Article 10 – "The Central Authority of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child."

Article 11 – "The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within a six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested States, the Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be."

Article 12 – "Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child."

Article 13 – "Notwithstanding the provisions of the proceeding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained the age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence."

Article 14 – "In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable."

Article 15 – "The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination."

Article 16 – "After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention is not lodged within a reasonable time following receipt of the notice."

Article 17 – "The sole fact that a decision relating to custody had been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention."

Article 18- "The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time."

Article 19 – "A decision under this Convention concerning the return of the child shall not to be taken to be a determination on the merits of any custody issue."

Article 20 – "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 principles of the requested State relating to the protection of human rights and fundamental freedoms."

Hague Convention on the Civil Aspects of International Child Abduction (opened for signature Oct, 25, 1980, entered into force for United States on July 1, 1988) T.I.A.S. No. 11 670.

Appendix 2

INTERNATIONAL CHILD ABDUCTION REMEDIES (ICARA)

42 U.S.C. § 11601 et seq.

11601. Findings and declarations.

(a) Findings.

(b) Declarations.

11602. Definitions.

11603. Judicial remedies.

(a) Jurisdiction of courts.

(b) Petitions.

(c) Notice.

(d) Determination of case.

(e) Burdens of proof.

(f) Application of Convention.

(g) Full faith and credit.

(h) Remedies under Convention not exclusive.

11604. Provisional remedies.

(a) Authority of courts.

(b) Limitation on authority.

11605. Admissibility of documents.

11606. United States Central Authority.

(a) Designation.

(b) Functions.

(c) Regulatory authority.

(d) Obtaining information from Parent Locator Service.