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"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
Please Note: You
can easily jump to any citation in this article by clicking on citation
numbers within the article's text.
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". | 