Wait! Before you file your custody case, remember to consider if the Hague Convention on the Civil Aspects of International Child Abduction applies.

The Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) governs custody jurisdiction between countries. It is an international treaty that has been ratified with the United States by nearly 80 countries. Most recently, Pakistan and Jamaica have ratified the Hague Convention with the United States.

All family law practitioners should consider whether or not the Hague Convention applies to an international family law case. It is an essential step in any case involving international children. If the left-behind parent submits to the local jurisdiction, Hague Convention claims may be impacted.

Let’s examine the following example. You have a family that lived together in Ecuador. The father moved to the United States. The mother and child continue to live in Ecuador. The mother agreed for the parties’ child to visit the father in the United States for three months during the summer. Three months have passed, but the father has not returned the child to Ecuador. Three more months have passed and the father files for custody in state court.

 In the above example, if the mother files an answer to the father’s custody case in state court, she has submitted to the state court’s jurisdiction. Before filing an answer, she should consider her alternative legal options, including the Hague Convention. In this frequently occurring scenario, it is essential that both parties are advised on the possibility of a Hague Convention case and the consequences for bringing the claim or not bringing the claim.

So how do you know when you should consider the Hague Convention? You should ask the following questions:

1.    Are there two countries involved?

2.    Have the two countries ratified the Hague Convention with the other?

3.    Where is the child’s habitual residence?

Practice Note: In 2020, the Supreme Court of the United States established the habitual residence test that applies in the Unites States.

4.    Did one parent remove the child from the habitual residence, retain the child in the United States, or state that he or she will not return the child after the agreed limited time in the United States?

5.    When did the retention or removal occur?

Practice Note: There is an important one-year deadline to consider from the date of the retention or removal.

6.    Does the left-behind parent have rights of custody under the laws of the habitual residence?

Practice Note: This is a legal question that should be determined in consultation with a legal professional in the country of the habitual residence.

7.    Was the left-behind parent exercising his or her rights of custody at the time of the removal or retention?

If you answered yes to the most or all of the above questions, then you should consult with an experienced attorney regarding the Hague Convention.

Hague Convention cases are unique and increasingly more frequent. The cases are unlike family law cases in many respects. A Hague Convention return case can be filed in federal court or state court. The treaty contemplates that the case from start to finish will be completed in six weeks. Time is therefore of the essence. Which country has custody jurisdiction can have a long-lasting impact on families and their cases.

There may also be alternative legal routes to consider if, for example, you have a custody order from another country. In addition to a Hague Convention return case, you may want to consider a Hague Convention access case or registration and enforcement of a custody order. Stay tuned for the next blog on registration and enforcement under the Uniform Child Custody Jurisdiction and Enforcement Act.

This information is not a substitute for legal advice applicable to your case.  Consult an attorney with respect to your circumstances. If you have questions, please reach out to Leah M. Ramirez, Esquire at lramirez@markhamlegal.com.