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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
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Note: You can easily jump to any citation in this article
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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.
11607. Costs and fees.
(a) Administrative costs.
(b) Costs incurred in civil
actions.
11608. Collection,
maintenance, and dissemination of information.
(a) In general.
(b) Requests for information.
(c) Responsibility of government
entities.
(d) Information available from
Parent Locator Service.
(e) Recordkeeping.
11609. Interagency
coordinating group.
11610. Authorization of
appropriations.
Sec. 11601. Findings and
declarations
(a) Findings
The Congress makes 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 abductions 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 problem of international
abduction and retention of children and will deter such wrongful removals and
retentions.
(b) 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
United States.
(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 for uniform
international interpretation of the Convention.
(4) The Convention and this
chapter empower courts in the United States to determine only rights under the
Convention and not the merits of any underlying child custody claims.
REFERENCES IN TEXT
This chapter, referred to in
subsec. (b), was in the original ''this Act'' meaning Pub. L. 100-300, Apr. 29,
1988, 102 Stat. 437, which is classified principally to this chapter. For
complete classification of this Act to the Code, see Short Title note below and
Tables.
SHORT TITLE
Section 1 of Pub. L. 100-300
provided that: ''This Act (enacting this chapter and amending section 663 of
this title) may be cited as the 'International Child Abduction Remedies Act'.''
Sec. 11602. Definitions
For the purposes of this chapter
-
(1) the term ''applicant'' means
any person who, pursuant to the Convention, files an application with the
United States Central Authority or a Central Authority of any other party to
the Convention for the return of a child alleged to have been wrongfully
removed or retained or for arrangements for organizing or securing the
effective exercise of rights of access pursuant to the Convention;
(2) the term ''Convention''
means the Convention on the Civil Aspects of International Child Abduction,
done at The Hague on October 25, 1980;
(3) the term ''Parent Locator
Service'' means the service established by the Secretary of Health and Human
Services under section 653 of this title;
(4) the term ''petitioner''
means any person who, in accordance with this chapter, files a petition in
court seeking relief under the Convention;
(5) the term ''person'' includes
any individual, institution, or other legal entity or body;
(6) the term ''respondent''
means any person against whose interests a petition is filed in court, in
accordance with this chapter, which seeks relief under the Convention;
(7) the term ''rights of
access'' means visitation rights;
(8) the term ''State'' means any
of the several States, the District of Columbia, and any commonwealth,
territory, or possession of the United States; and
(9) the term ''United States
Central Authority'' means the agency of the Federal Government designated by
the President under section 11606(a) of this title.
Sec. 11603. Judicial remedies
(a) Jurisdiction of courts
The courts of the States and the
United States district courts shall have concurrent original jurisdiction of
actions arising under the Convention.
(b) Petitions
Any person seeking to initiate
judicial proceedings under the Convention for the return of a child or for
arrangements for organizing or securing the effective exercise of rights of
access to a child may do so by commencing a civil action 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 at the time the petition is filed.
(c) Notice
Notice of an action brought
under subsection (b) of this section shall be given in accordance with the
applicable law governing notice in interstate child custody proceedings.
(d) Determination of case
The court in which an action is
brought under subsection (b) of this section shall decide the case in
accordance with the Convention.
(e) Burdens of proof
(1) A petitioner in an action
brought under subsection (b) of this section shall establish by a preponderance
of the evidence -
(A) in the case of an action for
the return of a child, that the child has been wrongfully removed or retained
within the meaning of the Convention; and
(B) in the case of an action for
arrangements for organizing or securing the effective exercise of rights of
access, that the petitioner has such rights.
(2) In the case of an action for
the return of a child, a respondent who opposes the return of the child has the
burden of establishing -
(A) by clear and convincing
evidence that one of the exceptions set forth in article 13b or 20 of the
Convention applies; and
(B) by a preponderance of the
evidence that any other exception set forth in article 12 or 13 of the
Convention applies.
(f) Application of Convention
For purposes of any action
brought under this chapter -
(1) the term ''authorities'', as
used in article 15 of the Convention to refer to the authorities of the state
of the habitual residence of a child, includes courts and appropriate
government agencies;
(2) the terms ''wrongful removal
or retention'' and ''wrongfully removed or retained'', as used in the
Convention, include a removal or retention of a child before the entry of a
custody order regarding that child; and
(3) the term ''commencement of
proceedings'', as used in article 12 of the Convention, means, with respect to
the return of a child located in the United States, the filing of a petition in
accordance with subsection (b) of this section.
(g) Full faith and credit
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 ordering or denying the return of a child,
pursuant to the Convention, in an action brought under this chapter.
(h) Remedies under Convention
not exclusive
The remedies established by the
Convention and this chapter shall be in addition to remedies available under
other laws or international agreements.
Sec. 11604. Provisional
remedies
(a) Authority of courts
In furtherance of the objectives
of article 7(b) and other provisions of the Convention, and subject to the
provisions of subsection (b) of this section, any court exercising jurisdiction
of an action brought under section 11603(b) of this title may take or cause to
be taken 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 of the petition.
(b) Limitation on authority
No court exercising jurisdiction
of an action brought under section 11603(b) of this title may, under subsection
(a) of this section, order a child removed from a person having physical
control of the child unless the applicable requirements of State law are satisfied.
Sec. 11605. Admissibility of
documents
With respect to any application
to the United States Central Authority, or any petition to a court under
section 11603 of this title, which seeks relief under the Convention, or any
other documents or information included with such application or petition or
provided after such submission which relates to the application or petition, as
the case may be, no authentication of such application, petition, document, or
information shall be required in order for the application, petition, document,
or information to be admissible in court.
Sec. 11606. United States
Central Authority
(a) Designation
The President shall designate a
Federal agency to serve as the Central Authority for the United States under
the Convention.
(b) Functions
The functions of the United
States Central Authority are those ascribed to the Central Authority by the
Convention and this chapter.
(c) Regulatory authority
The United States Central
Authority is authorized to issue such regulations as may be necessary to carry
out its functions under the Convention and this chapter.
(d) Obtaining information from
Parent Locator Service
The United States Central
Authority may, to the extent authorized by the Social Security Act (42 U.S.C.
301 et seq.), obtain information from the Parent Locator Service.
Sec. 11607. Costs and fees
(a) Administrative costs
No department, agency, or
instrumentality of the Federal Government or of any State or local government
may impose on an applicant any fee in relation to the administrative processing
of applications submitted under the Convention.
(b) Costs incurred in civil
actions
(1) Petitioners may be required
to bear the costs of legal counsel or advisors, court costs incurred in
connection with their petitions, and travel costs for the return of the child
involved and any accompanying persons, except as provided in paragraphs (2) and
(3).
(2) Subject to paragraph (3),
legal fees or court costs incurred in connection with an action brought under
section 11603 of this title shall be borne by the petitioner unless they are
covered by payments from Federal, State, or local legal assistance or other
programs.
(3) Any court ordering the
return of a child pursuant to an action brought under section 11603 of this
title shall order the respondent to pay necessary expenses incurred by or on
behalf of the petitioner, including court costs, legal fees, foster home or
other care during the course of proceedings in the action, and transportation
costs related to the return of the child, unless the respondent establishes
that such order would be clearly inappropriate.
Sec. 11608. Collection,
maintenance, and dissemination of information
(a) In general
In performing its functions
under the Convention, the United States Central Authority may, under such
conditions as the Central Authority prescribes by regulation, but subject to
subsection (c) of this section, receive from or transmit to any department,
agency, or instrumentality of the Federal Government or of any State or foreign
government, and receive from or transmit to any applicant, petitioner, or
respondent, information necessary to locate a child or for the purpose of
otherwise implementing the Convention with respect to a child, except that the
United States
Central Authority -
(1) may receive such information
from a Federal or State department, agency, or instrumentality only pursuant to
applicable Federal and State statutes; and
(2) may transmit any information
received under this subsection notwithstanding any provision of law other than
this chapter.
(b) Requests for information
Requests for information under
this section shall be submitted in such manner and form as the United States
Central Authority may prescribe by regulation and shall be accompanied or
supported by such documents as the United States Central Authority may require.
(c) Responsibility of government
entities
Whenever any department, agency,
or instrumentality of the United States or of any State receives a request from
the United States Central Authority for information authorized to be provided
to such Central Authority under subsection (a) of this section, the head of
such department, agency, or instrumentality shall promptly cause a search to be
made of the files and records maintained by such department, agency, or
instrumentality in order to determine whether the information requested is
contained in any such files or records. If such search discloses the
information requested, the head of such department, agency, or instrumentality
shall immediately transmit such information to the United States Central
Authority, except that any such
information the disclosure of which -
(1) would adversely affect the
national security interests of the United States or the law enforcement interests
of the United States or of any State; or
(2) would be prohibited by
section 9 of title 13; shall not be transmitted to the Central Authority. The
head of such department, agency, or instrumentality shall, immediately upon
completion of the requested search, notify the Central Authority of the results
of the search, and whether an exception set forth in paragraph (1) or (2)
applies. In the event that the United States
Central Authority receives
information and the appropriate Federal or State department, agency, or
instrumentality thereafter notifies the Central Authority that an exception set
forth in paragraph (1) or (2) applies to that information, the Central
Authority may not disclose that information under subsection (a) of this
section.
(d) Information available from
Parent Locator Service
To the extent that information
which the United States Central Authority is authorized to obtain under the
provisions of subsection (c) of this section can be obtained through the Parent
Locator Service, the United States Central Authority shall first seek to obtain
such information from the Parent Locator Service, before requesting such
information directly under the provisions of subsection (c) of this section.
(e) Recordkeeping
The United States Central
Authority shall maintain appropriate records concerning its activities and the
disposition of cases brought to its attention.
Sec. 11609. Interagency
coordinating group
The Secretary of State, the
Secretary of Health and Human Services, and the Attorney General shall
designate Federal employees and may, from time to time, designate private
citizens to serve on an interagency coordinating group to monitor the operation
of the Convention and to provide advice on its implementation to the United
States Central Authority and other Federal agencies. This group shall meet from
time to time at the request of the United States Central Authority. The agency
in which the United States Central Authority is located is authorized to
reimburse such private citizens for travel and other expenses incurred in
participating at meetings of the interagency coordinating group at rates not to
exceed those authorized under subchapter I of chapter 57 of title 5 for
employees of agencies.
Sec. 11610. Authorization of
appropriations
There are authorized to be
appropriated for each fiscal year such sums as may be necessary to carry out
the purposes of the Convention and this chapter.
*Judge
Torrez a IV-D Master of Child Support Court No. 3 of the Second
Administrative Judicial Region of Texas.
[3] Merle H. Weiner, International Child
Abduction and the Escape from Domestic Violence, 69 Fordham L. Rev. 593, 641 (2000).
[4] 9 P.3d 551 (Kan. 2000); see also Anna I. Sapone, Children as Pawns in Their
Parents' Fight for Control: The Failure of the U.S. to Protect Against
International Child Abduction, 21
Women's Rights L. Rep. 129, 132-133 (2000).
[25] Id. at 556.
[26] See 28 U.S.C. ¤ 1738A (2000); Parental Kidnapping
Prevention Act, 28 U.S.C. ¤
1738(c)(2)(C); 42 U.S.C. ¤¤ 11601-11610 (2005) (this statute is the domestic
implementation of the Hague Convention); Uniform Child Custody Jurisdiction Act, Tex. Fam. Code Ann. ¤ 152.001 (2002); see
generally Memo from Rhonda Pressley,
Assistant Attorney General of Texas, Appellate Division, Transborder
Enforcement of Family Law Orders,
(1997) (copy on file with author).
[28] The doctrine of comity regarding
foreign judicial proceedings gives a court the authority, but not the duty, to
dismiss U.S. litigation in favor of a foreign forum. See e.g. Diorinou v. Mezitis, 237 F.3d 133, 136 (2d Cir. 2001); Finanz AG
Zurich v. Banco Economico S.A., 192 F.3d 136, 240, 242, 246-250 (2d Cir. 1999); In
re Maxwell Communication Corp., 93
F.3d 1036, 1051 (2d Cir. 1996); Allstate Life Ins. Co. v. Linter Group Ltd., 994 F.2d 996, 997, 998-1000 (2d Cir. 1993); see
generally Jeanine Lewis, Student
Author, The Hague Convention on the Civil Aspects of International Child
Abductions When Domestic Violence and Child Abuse Impact the Goal of Comity, 13 Transnatl. Law 391, 445-448 (2000); Paul B.
Stephan, A Becoming Modesty - U.S. Litigation in the Mirror of International
Law, 52 DePaul L. Rev. 627, 637-639
(2002).
[29] National Conference of Commissioners on
Uniform State Laws, Uniform Child Custody and Jurisdiction Act [¦ 8] (1968) (available at http://www.law.upenn.edu/ bll/ulc/fnact99/1920_69/uccja68.htm).
[32] Id. at ¤ 152.303.
[43] Clague v. Clague, 723 S.W.2d 808, 809-810 (Tex. App. 12th Dist. 1987); Grimes
v. Grimes, 706 S.W.2d 340, 341-342
(Tex. App. 4th Dist. 1986).
[47] Id.; see also Hanson v.
Leckey, 754 S.W.2d 292, 295 (Tex.
App. 12th Dist. 1988).
[51] Id. at 295.
[52] See Garza v. Harney, 726 S.W.2d 198, 203 (Tex. App. 7th Dist. 1987).
[53] See Memo, supra n. 26.
[58] See Memo, supra n. 26.
[59] Black's Law Dictionary 994 (6th ed., West 1991).
[60] See Turman v. Turman, 99 S.W.2d 947, 951 (Tex. Civ. App. 2d Dist. 1936), cert. denied, 301 U.S. 698 (1937); Risch v. Risch, 395 S.W.2d 709, 712 (Tex. Civ. App. 1st Dist 1965), cert. denied,
386 U.S. 10 (1967).
[61] See e.g. Risch, 395 S.W.2d at 712-713.
[62] See Fox v. Fox, 559 S.W.2d
407, 410 (Tex. Civ. App. 3d Dist. 1977); Vanderbilt v. Vanderbilt, 354 U.S. 416, 418-419 (1957); Kulko v. Superior
Court of California, 436 U.S. 84,
98-99 (1978).
[63] See First Natl. Bank v. Rector, 710 S.W.2d 100, 103-104 (Tex. App. 3d Dist. 1986).
[65] 554 S.W.2d 274, 278 (Tex. Civ. App.
1st Dist 1977).
[66] Id.; 28 U.S.C. ¤ 1738A(g).
[67] Rumpf v. Rumpf, 242 S.W.2d 416, 420 (Tex. 1951).
[68] See generally Stephan, supra n. 28, at 637-639; see
also Memo, supra n. 26.
[69] Id.
[71] Id.
[72] 706 S.W.2d 304, 306 (Tex. 1986)
(quoting the court in New Process Steel Corp. v. Steel Corporation of Texas, 638 S.W.2d 522, 524).
[73] See 42 U.S.C. ¤ 11601(a); Hague Convention, supra n. 1.
[74] See Creavin v. Moloney, 773 S.W.2d 698, 704 (Tex. App. 13th Dist. 1989).
[75] Tex. Fam. Code Ann. ¤ 152.023 (repealed
1999).
[76] Garza v. Harvey, 726 S.W.2d 198, 200 (Tex. App. 7th Dist. 1987).
[82] Id.
[84] Id.
[85] Id. at 202.
[86] See generally Robert Spector, International Child Custody Jurisdiction
and the Uniform Child Custody Jurisdiction and Enforcement Act, 33 N.Y.U. J. Intl. L. & Pol. 252, 257-258
(2000).
[87] Id.
[89] See generally Spector, supra n. 86, at 257-258.
[90] 28 U.S.C. ¤ 1738A.
[91] Id.
[92] Id.
[93] See generally Courtney E. Hoben, The Hague Convention on
International Parental Kidnapping: Closing the Article 13(B) Loophole, 5 J. Intl. Leg. Stud. 271, 276 (1999).
[94] 18 U.S.C.S. ¤ 1073 (LEXIS 2005).
[95] Sue T. Bentch, Court-Sponsored
Custody Mediation to Prevent Parental Kidnapping: A Disarmament Proposal, 18 St. Mary's L.J. 361, 376-377 (1986).
[99] Id. at ¤ 1738A(c).
[100] Id. at ¤
1738A(f).
[104] Id. at 892.
[105] Id.
[106] 28 U.S.C. ¤ 1738A(g).
[107] Id.; see also McGee, 651 S.W.2d at 892.
[108] 28 U.S.C. ¤ 1738A(g).
[109] 42 U.S.C. ¤¤ 11601-11610.
[110] Friedrich v. Friedrich, 78 F.3d 1060, 1063-1065 (6th Cir. 1960); see also Memo, supra n. 26.
[111] Id.
[113] Id. at ¤ 11601(a).
[114] Id. at ¤ 11601(b).
[117] Intl. Leg. Materials, Hague
Convention on Civil Aspects of International Abduction, Final Act, 18th Session of the Hague Conference vol.35,
1391, 1396 (Am. Socy. of Intl. L. 1996) [hereinafter Hague 1996]; see generally Thomas A. Johnson, The Hague Child Abduction Convention:
Diminishing Returns and Little to Celebrate for Americans, 33 N.Y.U. J. Intl. L. & Pol. 125, 139 (2000);
Brian S. Kenworthy, The Un-Common Law: Emerging Differences Between the U.S.
and the U.K. on the Children's Rights Aspects of the Hague Convention on
International Child Abduction, 12
Ind. Intl. & Comp. L. Rev. 329, 345 (2002).
[118] Hague Convention, supra n. 1, at art. 45.
[119] 42 U.S.C. ¤ 11603(b).
[120] Id. at ¤ 11603(c).
[122] Id. at ¤ 11603(g).
[124] Id. at ¤ 11604.
[125] Id.
[126] Id. at ¤ 11607.
[127] See id.; Hague Convention, supra n. 1, at art. 26.
[128] Id. ICARA is the implementing statute for The Hague Convention and it
has the effect and force of U.S. law; however, other Covenants are not so
lucky. For example, the International Covenant on Civil and Political
Rights (open for signature Dec. 19,
1966, entered into force March 23, 1976, and adopted by the U.S. Sept. 8, 1992)
999 U.N.T.S. 171, was not self-executed; therefore, it was not the law, but
instead merely an interpretation of the law. See generally United States Ratification of the International
Covenant on Human Rights (Hurst
Hannun & Dana D. Fischer eds., Transnatl. Publishers, Inc. 1993).
[129] See United States Central Authority Office of Children's
Issues, List of Hague Convention Signatory Countries, http://travel.state.gov./family/adoption/convention/
convention_461.html (accessed Sept. 22, 2005) (Argentina, June 1, 1991;
Australia, July 1, 1988; Austria, Oct. 1, 1988; Bahamas, Jan. 1, 1994; Belgium,
May 1, 1999; Belize, Nov. 1, 1989; Bosnia & Herz., Dec. 1, 1991; Brazil,
Dec. 1, 2003; Bulgaria, Jan. 1, 2005; Burkino Faso, Nov. 1, 1992; Canada, Jul. 1,
1988; Chile, Jul. 1, 1994; China, (Hong Kong Special Admin. Region - Sept. 1,
1997) & (Macau - Mar. 1, 1999); Columbia, Jun. 1, 1996; Croatia, Dec. 1, 1991;
Czech Republic, Mar. 1, 1998; Cyprus, Mar. 1, 1995; Denmark, Jul. 1, 1991;
Ecuador, Apr. 1, 1992; Finland, Aug. 1, 1994; France, Jul. 1, 1988; Germany,
Dec. 1, 1990; Greece, Jun. 1, 1993; Honduras, Jun. 1, 1994; Hungary, Jul. 1, 1988;
Iceland, Dec. 1, 1996; Ireland, Oct. 1, 1991; Israel, Dec. 1, 1991; Italy, May
1, 1995; Luxembourg, Jul. 1, 1988; FMR. Yugoslav Rep. of Macedonia, Dec. 1, 1991;
Malta, Feb. 1, 2003; Mauritius, Oct. 1, 1993; Mexico, Oct. 1, 1991; Monaco,
Jun. 1, 1993; Netherlands, Sept. 1, 1990; New Zealand, Oct. 1, 1991; Norway,
Apr. 1, 1989; Panama, Jun. 1, 1994; Poland, Nov. 1, 1992; Portugal, Jul. 1, 1988;
Romania, Jun. 1, 1993; Slovak Republic, Feb. 1, 2001; Slovenia, Apr. 1, 1995;
South Africa, Nov. 1, 1997; Spain, Jul. 1, 1988; St. Kitts and Nevis, Jun. 1, 1995;
Sweden, Jun. 1, 1989; Switzerland, Jul. 1, 1988; Turkey, Aug. 1, 2000; United
Kingdom, Jul. 1, 1988 (Bermuda - Mar. 1, 1999, Cayman Islands - Aug. 1, 1998,
Falkland Islands - Jun. 1, 1998, Isle of man - Sept. 1, 1991, Montserrat - Mar.
1, 1999); Uruguay, Sept. 1, 2004; Venezuela, Jan. 1, 1997; Federal Republic of
Yugoslavia, Dec. 1, 1991; Zimbabwe, Aug. 1, 1995).
[130] See generally Joel R. Brandes & Carole L. Weidman, International
Child Abduction, 210 N.Y.L.J. 81
(1993); Sharon C. Nelson, Turning Our Backs on the Children: Implications of
Recent Decisions Regarding the Hague Convention on International Child
Abduction, 2001 U. Ill. L. Rev. 669,
670 (2001).
[131] See 42 U.S.C. ¤ 11601; see generally Memo, supra n. 26; see also Intl. Leg.
Materials, Hague Conference on Private International Law: Report on the
Second Special Commission Meeting to Review the Operation of the Hague
Convention on the Civil Aspects of International Child Abduction, vol. 33, 225 (Am. Socy. of Intl. L. 1993).
[132] Id.
[133] Id.
[134] Hague Convention, supra n. 1, at art. 12.
[135] Id. at art. 3.
[136] Id. at art. 13.
[137] Id. at art. 16.
[139] A State may make reservations
regarding cost. Id. at art. 42.
[140] Id. at art. 26.
[141] Hague 1996, supra n. 117, at 1396.
[143] Id.
[144] Id. at art. 1.
[145] Id. at art. 2.
[146] Id. at art. 3.
[147] Id. at art. 4.
[148] See generally id.
[149] Id.; see also 1956
Convention on the Law Applicable to Maintenance Obligations in Respect of
Children and the Convention on Jurisdiction and Enforcement in Civil and
Commercial Matters. Another treaty that applies to this type of case is the
Convention on Enforcement of Civil Judgments (Sept. 1988).
[150] Hague 1996, supra n. 117, at arts. 5 & 6.
[151] Hague Convention, supra n. 1 at arts. 12 & 13; cf. to Hague 1996, supra n. 117, at art. 7.
[153] Id. at art. 11.
[154] Id.
.
[155] See generally Joel R. Brandes, Summary of the Basic Rules for
the Granting of a Petition for Return of a Wrongfully Removed Child under the
Hague Convention on the Civil Aspects of International Child Abduction, http://www.brandeslaw.com/ Internation_child_abduction_laws/hague.l.htm (accessed Sept. 25,
2005).
[169] Bruch, supra n. 161; see also Lewis, supra n. 28, at
403-409.
[174] Id. at art 12; 42 U.S.C. ¤ 11601(a)(4); see also Linda Silberman, Hague Convention on International
Child Abduction: A Brief Overview and Case Law Analysis, 28 Fam. L. Q. 9, 10-12 (1994).
[177] Id. at 269.
[183] Id.
[184] 983 F.2d 1396, 1401 (6th Cir. 1993).
[187] Id. at 1436.
[193] 759 F. Supp. at 1436.
[201] Id.
[202] See Hague Convention, supra n. 1, at art. 12.
[203] No. 90 DR 1138 (Division B, Adams
Cty., Colo., May 8, 1991).
[204] In re Robinson, 983 F. Supp. 1339, 1344 (D. Colo. 1997).
[206] Id.
[207] See Carrie Nelson, Recent United States'
Interpretations of Article 13(B) of the Hague International Child Abduction
Convention: We're on the Right Road,
15 Temp. Intl. & Comp. L.J. 297, 306 (2001); Gary Zalkin, The
Increasing Incidence of American Courts Allowing Abducting Parents to Use the
Article 13(B) Exception to the Hague Convention on the Civil Aspects of
International Child Abduction, 23
Suffolk Transnatl. L. Rev. 265, 275 (1999).
[209] 850 F. Supp. 78, 82 (D.Mass. 1994).
[210] See Lewis, supra n. 28, at 414.
[211] Id. at 409-414.
[213] Id. at 442-443.
[221] Id. Also, the Convention ceases to apply when a child reaches
the age of sixteen. Hague Convention, supra n. 1, at art. 4. Similarly,
a state's refusal to return a child may be justified under the "child's
objection exception when the child objects to being retained and has attained
an age of maturity at which it is appropriate to take account of the child's
views." Id. at art. 13(b).
[222] Shalit v. Coppe, 182 F.3d 1124, 1128 (9th Cir. 1999). The petitioner
must show the habitual residence of the child by a preponderance of the
evidence. 42 U.S.C. ¤ 11603(e)(1). If the removal was wrongful, then the
court must order the child returned to its habitual residence for the custody
determination. Shalit, 182 F.3d
at 1128; see also Tsarbopoulos
v. Tsarbopoulos, 243 F.3d 550
(table), 2000 WL 1721800 (9th Cir. 2000). An ICARA hearing is not a custody
hearing but a proceeding that merely determines which nation should hear the
underling custody claim. 42 U.S.C. ¤¤ 11601-11610; see Egervary v. Young (Egervary II), 159 F. Supp. 2d 132, 148-149 (E.D. Pa. 2001).
[223] Diorinou v. Mezitis, 237 F.3d 133, 142-143 (2d Cir. 2001). The court
also held that the foreign court's determination that mother did not wrongfully
retain children in Greece following vacation in Greece was entitled to
deference; and that New York custody award to father did not require federal
court to refuse to return children so that father's removal of children from
Greece was wrongful under the Hague Convention which supported order for
return. Id. at 145.
[224] Blondin v. Dubois (Blondin II),
189 F.3d 240, 245 (2d Cir. 1999) (quoting Friedrich, 983 F.2d at 1400); see Hague Convention, supra n. 1, at art. 19; 42 U.S.C. ¤ 11601(b)(4).
[225] Blondin II, 189 F.3d at 245 (citing 42 U.S.C. ¤ 11603(e)(1)(A)); see Hague Convention, supra n. 1, at art. 12; see also 42 U.S.C. ¤ 11603(e)(2)(A)-(B).
[226] Diorinou, 237 F.3d at
141-142; see also Diorinou v. Mezitis, 132 F. Supp. 2d 139, 143 (S.D.N.Y. 2000); Feder
v. Evans-Feder, 63 F.3d 217, 218 (3d
Cir. 1995).
[227] Diorinou, 132 F. Supp. 2d at 143; see Nunez-Escudero v.
Tice-Menley, 58 F.3d 374, 379 (8th
Cir. 1995).
[228] 42 U.S.C. ¤ 11603(e)(2); see Cerit v. Cerit, 188 F. Supp. 2d 1239, 1244 (D. Haw. 2002).
[229] 42
U.S.C.¤ 11601(a)(4); see
Tabacchi v. Harrison, 2000 U.S. Dist.
LEXIS 1518 at *27 (N.D. Ill. 2000).
[230] Hague Convention, supra n. 1, art. 13(a); 42 U.S.C. ¤ 11603(e)(2)(B); see Tabacchi, 2000 U.S. Dist. LEXIS 1518 at *27.
[231] Id.; see Friedrich, 78 F.3d at 1069 n.11. There are also the so-called Younger and Colorado River abstention doctrines (Younger v. Harris, 401 U.S. 37 (1971); Colorado River Water
Conservation District v. U.S., 424
U.S. 800 (1976)) which prohibit, under certain circumstances federal courts
from interfering in pending state civil cases; thus, necessitating the court to
abstain from hearing ICARA petitions (Younger), as well as abstaining from adjudicating an ICARA
controversy where there are parallel proceedings for reasons of wise judicial
administration (Colorado River). Cerit, 188 F. Supp. 2d at 1247-1250; see also Bouvagnet v. Bouvagnet, 2002 U.S. App. LEXIS 17661 (7th Cir. 2002); Grieve
v. Tamerin, 269 F.3d 149, 153 (2d
Cir. 2001) (holding that the comity concerns of Younger are not implicated by a Hague petition).
[233] Id. at 143; see also Weiner, supra n. 161, at 308-309.
[234] 42 U.S.C. ¤¤ 11601(a)(4),
11603(e)(1)(A); see Croll, 229
F.3d at 139-140.
[237] Id. at 458-459; 42 U.S.C. ¤¤ 11601-11610; International
Child Abduction Convention arts. 3
& 5(a) (entered into force Dec. 1, 1983) (available at 1988 WL 411501).
Month-long visits with her mother's family does not change the daughter's
habitual presence supported by the fact that she lived all her life in Italy
and attended school and summer camp there and is a prize-winning soccer player
in a youth league. Fabri v. Pritikin-Fabri, 221 F. Supp. 2d 859, 869-870 (N.D. Ill. 2001).
Habitual residence will be the state where child continually returned for
months at a time and attended half of the school year there; any visits to New
York were temporary and by way of the visa waiver program. Armiliato v.
Zaric-Armiliato, 169 F. Supp. 2d 230,
236-239 (S.D.N.Y. 2001); see also Tabacchi, 2000 U.S. Dist. LEXIS 1518 at *25
(N.D. Ill. 2000) (vacations and side trips away from Italy did not disturb the
fact that the child was well-settled in the land of her birth). The key is the
child's circumstances in the alleged country of habitual residence; degree of
settled purpose is to be analyzed from child's perspective. International
Child Abduction Convention at art.
19; 42 U.S.C. ¤ 11601 (b)(4); see March
v. Levine, 136 F. Supp. 2d 831,
839-840 (M.D. Tenn. 2000). But, a new habitual residence is not created by
wrongfully retaining child. Escaf v. Rodrigeuz, 200 F. Supp. 2d 603, 612 (E.D. Va. 2002). In
determining habitual residence, the relevant period is the time immediately
before the alleged wrongful removal and retention. See Bocquet v. Ouzid, 225 F. Supp. 2d 1337, 1343 (9th Cir. 1999). There is an exception to
the requirement that the child should be returned to the habitual residence,
which is if there is an objection to that return; however, voiced concerns of
children to stay with their mother did not rise to the level of "objection to
return" so as to require that wrongfully removed children not be returned to
their country of residence. 42 U.S.C. ¤¤ 11601(a)(4), 11603(e)(2)(B); see Norden-Powers v. Beveridge, 125 F. Supp. 2d 634, 641 (E.D. N.Y. 2000).
[242] Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000); see 42 U.S.C. ¤ 11603(e)(2)(A); International Child
Abduction Convention, supra n. 237, at art. 13(b).
[243] Walsh, 221 F.3d at 218; see Whallon, 230
F.3d at 459.
[244] Walsh, 221 F.3d at 218. The threshold question is whether
the removal was wrongful under the law of the child's habitual residence. See Shalit,
182 F.3d at 1128; Tsarbopoulos,
2000 WL 1721800 at *2. U.S. courts have typically focused on two factors in
determining habitual residence: whether the parents shared a mutual, settled
purpose to make the new state their settled home; and whether the children are
sufficiently acclimatized to their new location. See Tsarbopoulos, 2000 WL 1721800 at *3; Feder, 63 F.3d at 224; Friedrich, 983 F.2d at 1401-1402. In Tsarbopoulos, there were genuine issues of material fact as to both
habitual residence and grave risk so as to preclude summary judgment. "If
proven by clear and convincing evidence, the 'grave risk' defense allows a
court, in its discretion, to refuse to return a child even if the other
requirements of the Hague Convention are satisfied. Hague Convention, art.
13(b), T.I.A.S. No. 11670 at 8; 42 U.S.C. ¤ 11603(e)(2)." Tsarbopoulos, 2000 WL 1721800 at *3. Kristi Tsarbopoulos produced
sufficient evidence summary judgment on her "grave risk" defense. She alleged
that she and the children had suffered abuse, and tendered the affidavits of
four health care professionals stating that the children had experienced abuse
and would be physically and psychologically harmed if returned to their father.
This was strongly disputed and the district court rejected the evidence as
lacking credibility; but in a summary judgment analysis all evidence must be
construed in the light most favorable to the non-moving party. Kristi
Tsarbopoulos' evidence was sufficient to raise genuine issues of material fact
concerning this defense, even when measured by the requirement that the
evidence be clear and convincing. "If the district court determined that there
is a grave risk that returning the children to Greece would expose them to physical
or psychological harm or otherwise place them in an intolerable situation, the
court may refuse to order the return of the children to Greece, but may also
consider 'a range of remedies that might allow both the return of the children
to their home country and their protection from harm.' " Id. at *2. The Tsarbopolous court was not precluded from "considering and
imposing appropriate protective measures as a condition of the childrens'
return, including, but not necessarily limited to those initially proposed by
Anthony Tsarbopoulous in district court and at oral argument before [the
appellate] court. If Anthony Tsarbopoulos agrees, the court may impose those
measures without actually making a finding of grave risk." Id.
[245] 42 U.S.C. ¤¤ 11601-11610; International
Child Abduction Convention, supra n. 225, at Art. 13, subd. a.; see Whallon, 230F.3d at 461. In In re Koc, the court held inter alia that the father did not acquiesce in the wrongful
retention and that the child was not "well settled in new home, nor would
returning child to Poland subject her to physical or psychological harm or
otherwise place her 'in an intolerable situation.' " 181 F. Supp. 2d 136, 152,
154-155 (E.D. N.Y. 2001). A court is also permitted to take into account the
mature preferences of an older child. Id. at 147; 42 U.S.C. ¤¤ 11601-11610. But, there is no age limit for
applying maturity exception. Raijmakers-Eghaghe v. Haro, 131 F. Supp. 2d 953, 957 (E.D. Mich. 2001). Factors
that the court considers in determining if a child is "well-settled" in a new
environment, and thus, does not have to be returned to their country of origin
in a Hague action commenced over one year after removal, include: the age of
the child, the stability of the child's residence in the new environment,
whether the child attends school or day care consistently, whether the child
attends church regularly, the stability of the mother's employment, and whether
the child has friends and relatives in the new area. In re Koc, 181 F. Supp. 2d at 152-53. A child that was
wrongfully retained in the United States by her mother was not "well settled"
in her new home so as to preclude father's claim for child's return to Poland
under the Hague Convention although the child had been in the United States for
two and a half years, lived in at least three different locations, and attended
three different schools. She had been at the school that she was currently
attending for only four months, and she did not attend extracurricular
school-related activities or church on a regular basis or socialize with her
classmates outside of school. Id.
at 153-154.
[247] Id. at 214; 42 U.S.C. ¤¤ 11601-11610.
[248] 42 U.S.C. ¤¤ 11601(a)(4),
11603(e)(2)(A); Walsh, 221 F.3d
at 218.
[249] Walsh, 221 F.3d at 218.
[250] Id.
[251] Id.; 42 U.S.C. ¤¤
11601(a)(4), 11603(e)(2)(A); see also Nunez-Escudero, 58 F.3d at 377; see Turner v. Frowein, 752 A.2d 955 (Conn. 2000) (even though there was
evidence of husband's sexual abuse, a denial of a Hague Convention petition
under the grave risk exception requires full evaluation of placement options
and legal safeguards). In Turner,
the trial court did not evaluate placement options and legal safeguards before
denying Hague petition. But, two incidents of husband's physical violence
towards wife and her testimony that he struck children with a belt during meals
did not rise to the level of "grave risk" and wife also used corporal
punishment on children. Id. at
976; see generally Dalmasso, 9 P.3d
551; International Child Abduction Convention, supra n. 237, at art. 13(b).
[252] Walsh, 221 F.3d at 220; see generally Sharon Nelson, Turning Our Backs on the Children:
Implications of Recent Decisions Regarding the Hague Convention on
International Child Abduction, 2001
U. Ill. L. Rev. 669, 679-82 (2001); Nelson, supra n. 207, at 301; Linda Silberman, The Hague Child
Abduction Convention Turns Twenty: Gender Politics and Other Issues, 33 N.Y.U. J. Intl. L. & Pol. 221, 240 (2000);
Zalkin, supra n. 207, at 276.
[253] Walsh, 221F.3d at 219-220; 42 U.S.C. ¤¤ 11601 (a)(4),
11603(e)(2)(A).
[255] Id. at 220-221.
[257] Id. at 13. 42 U.S.C. ¤ 11603(e)(2)(A), International Child Abduction
Convention, supra n. 237, at art. 13(b).
[258] 42 U.S.C. ¤¤ 11601-11610; Danaipour, 286 F.3d at 12-14; Whallon, 230 F.3d at 460; Turner 752 A.2d at 967; International Child Abduction
Convention, supra n. 237, at art. 13(b); Permanent Bureau, Hague
Conference on Private Intl. Law, Conclusions and Recommendations of the
Fourteenth Meeting of the Special Commission to Review the Operation of the
Hague Convention of 25 October 1980 on the Civil Aspects of International Child
Abduction ¤ 4.3 (2001) (available at http://www.hcch.e-vision.nl/index_en.php?act=conventions.text&cid=24);
Elisa Perez-Vera, Explanatory Report on the Hague Child Abduction
Convention, Acts and Documents of the Fourteenth Session, 434 at ¦34 (1982) (available at http://www.hcch.e-vision.nl/index_en.php?act=publications.details&pid=2779).
[259] Danaipour, 286 F.3d at 14-15; 42 U.S.C. ¤¤ 11601-11610; International
Child Abduction Convention, supra n. 237, at art. 13(b); Hague International Child
Abduction Convention: Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,510 (Mar. 26, 1986); Whallon, 230 F.3d at 460; Walsh, 221 F.3d at 221, n.17; Friedrich, 78 F.3d at 1067.
[260] Danaipour, 286 F.3d at 14-15; 42 U.S.C. ¤¤ 11601-11610; International
Child Abduction Convention, supra n. 237, at art. 13(b).
[262] Danaipour, 286 F.3d at 16-17.
[263] Id. at 17-18; see also 42 U.S.C. ¤¤ 11601-11610; International Child
Abduction Convention, supra n. 237, at art. 13(b).
[266] Id. at21-25. "Undertakings are verbal assurances given to
the court by the petitioner as a condition of the child's return. Undertakings
have become a procedural shortcut to adjudicating Article 13(b) claims."
Weiner, supra 161, at 338, n. 242. "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
undertakings." Id. at 338; see
also Tsarbopoulos, 2000 WL 1721800 at *2; see generally Paul K. Beaumont & Peter K. McEleavy, The Hague
Convention on International Child Abduction 163, 170 (1999); Linda Silberman, Hague
International Child Abduction Convention Progress Report, 57 L. & Contemp. Probs. 209, 267 (1994);
Silberman, supra n. 174, at 33;
Weiner, supra n. 3, at 660-661,
677-681.
[267] The petition for the children's return
was initially heard in 1998 (Blondin I, 19 F. Supp. 2d 123 (S.D.N.Y. 1998)); the petitioner lost and
appealed, the Second Circuit granted the appeal and remanded (Blondin II, 189 F.3d 240 (2d Cir. 1999)); the District Court
again dismissed the petition (Blondin III, 78 F. Supp. 283 (S.D.N.Y. 2000)); and finally, the second Circuit
affirmed (Blondin IV, 238 F.3d 153
(2d Cir. 2001)). See generally Peter
Gloss, Blondin v. Dubois: A Closer Step to Safeguarding the Welfare of
Abducted Children, 26 Brook. J. Intl.
L. 721, 738 (2000); Elizabeth Ising, Refusing to Debate Wheaties Versus
Milchreis: Blondin v. Dubois and the Second Circuit's Interpretation of the
Hague Abduction Convention's Grave Risk Exception, 25 N.C.J. Intl. L. & Com. Reg. 619, 630 (2000);
Nelson, supra n. 252, at 682-687;
Weiner, supra n. 161, at 337. Blondin
IV also allowed the district court
the option while considering whether repatriation would pose a "grave risk of
psychological harm," the fact that the children were now settled in the United
States and that the eight-year-old expressed a desire to remain there. Id.; 283 F.2d at 163; see also Hoben, supra n. 93, at 279-281; Nelson, supra n. 207, at 301; Zalkin, supra n. 207, at 274-276.
[268] Blondin III, 78 F. Supp. 2d at 298.
[269] Id. at 298-299.
[271] Blondin II, 189 F.3d at 246-247.
[272] Blondin IV, 238 F.3d at 162.
[273] Flores v. Contreras, 981 S.W.2d 246, 248 (Tex. App. 4th Dist. 1998).
[274] 42 U.S.C. ¤ 11603(a).
[275] Id.; Lops v. Lops, 140 F.3d 927, 936 (11th Cir. 1998); Friedrich, 78 F.3d at 1063; Flores, 981 S.W.2d at 248.
[276] Hague Convention, supra n. 1, at arts. 6-7; Velez v. Mitsak,
89 S.W.3d 73, 80 (Tex. App. 8th Dist. 2002).
[277] Hague Convention, supra n. 1, at art. 14
[278] 42 U.S.C. ¤ 11603(e)(1)(A); In re
Prevot, 59 F.3d 556, 560 (6th Cir.
1995).
[279] Hague Convention, supra n. 1, at art. 30.
[280] Id. at art. 13; Velez, 89 S.W.3d at 80-81.
[281] Hague Convention, supra n. 1, at art. 20.
[282] 42 U.S.C. ¤ 11603(e)(2)(A).
[283] Id. at ¤ 11603(e)(2)(B).
[284] See Velez,
89 S.W.3d at 81.
[285] Hague Convention, supra n. 1, at art. 12; 42 U.S.C. ¤ 11603(e)(2)(B).
[286] Friedrich, 78 F.3d at 1067.
[290] Weiner, supra n. 161, at 338. Article 13(b) was indeed considered a
"loophole"; "[u]ncertainty regarding the proper use has led to the
irreconcilable applications of the Treaty, both with and among contracting
states. The inconsistent applications have led to the development of Article
13(b) as a 'loophole' which can be used to prevent the prompt return of the
abducted child." Hoben, supra n.
93, at 276; see also LaGette, International
Child Abduction and the Hague Convention: Emerging Practice and Interpretation
of the Discretionary Exception, 25
Tex. Intl. L.J. 287, 289 (1990); Zalkin, supra n. 207, at 297.
[291] Weiner, supra n. 161, at 344-345. "Blondin IV's broader interpretation is that an article 13(b)
inquiry is akin to a best interests 'merits' inquiry, and that Article 13(b)
need not be interpreted narrowly." Id. at 345.
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