The Hague Convention requires you to act quickly if this is what you believe is happening. The best attorneys attempt to prevent the possibility of international abduction, when threatened or when it is a possibility (due to the status of the other party, the fact that they have family in another country, that they have threatened abduction or relocation in the past, or for some other reason) proactively when the parenting plan or divorce judgment is being entered. There are a variety of remedial measures that the court can enact to try to prevent this possibility including making a judgment that the United States is the home country of the child, where needed, ordering the passports be turned over to the other parent or even turned in to the state department so that they cannot be used, placing alerts on the child’s record so that the child departing the border is more difficult, etc.
However, if those protections are not in place, what should you do if you believe an international abduction is taking place or is about to take place? The Hague Convention on the International Abduction of children can be invoked when a child is taken across an international border or when a child remains in an international country at the time that he or she was scheduled to be returned, without the consent of a parent who has custody rights. This is only applicable if both, the country that the child is to be returned to/is taken from and the country the child is taken to are signatories on the Hague Convention. If not, there are many other complicated issues to deal with, of course. The only exception to returning the child to their country of residence is if the return will create a grave risk of harm to the child or some other limited exception is established. If your child is abducted, what are the steps you should take?
- Act Fast!
If you are concerned about the possibility of your child being abducted on an international basis, you need to have an attorney available and ready to act fast. The first step to be taken upon your notice that a child has been taken internationally or is not going to be returned at the agreed upon time is to file a Hague Convention application. Secondly, you need to be prepared to institute or defend a Hague Convention lawsuit/filing on very short notice. Often times, prompt, swift action is the difference between a child being returned or not. The convention requires that hearings occur as quickly as possible. The recommendation/standard is that Hague cases be completed and adjudicated in six weeks. For some people, they are just starting to research/determine their options in this amount of time, but it is critical that you move forward swiftly. A concern about not acting quickly and waiting months or longer to file your case could result in a determination that the child has become settled and accustomed to their new environment. The longer a child lives in their new country, the less likely the court is to determine that the child should be taken out of that environment and returned to their home country. By failing to act, a parent risks that the other parent will argue that they have acquiesced to the relocation of the child.
In order to be prepared and move forward with a hearing, the parent objecting to the child’s move to another country has to work quickly to obtain the documents necessary for filing a Hague Convention application. A timeline showing where the child has lived on what dates will assist with accurately presenting the issues of concern. The parent abducting/removing the child should receive formal notice through letters, documents or other communications of the potential civil, criminal and financial consequences of persisting with his or her behavior. In many situations, offering the other parent a short time line of a couple of days to return the child while avoiding the potential severe consequences serves to obtain the return of the child. In other cases, if a parent is put on notice, there is further concern that he or she may attempt to further hide the child, making the recovery of the child even more difficult. Again, the skill of legal counsel in assisting with the steps to trying to obtain the return of the child is crucial to a successful return.
There also has to be a determination of whether a Hague Convention action should be brought in state or federal court. Most Hague convention cases ultimately make their way to federal court because the other parent has the right to seek removal of the case to federal court.
It is also often important to obtain the support and assistance of the U.S. State Department’s office of children’s issues. They can help with many things, but in some situations, the most crucial is locating the child. They will often be able to alert the other parent if the defending/responding parent seeks a visa to travel to the United States to participate in the trial or proceedings. In other cases, where a Hague Convention case is filed in federal court, a state court custody order is needed.
Finally, typically, counsel in the country where the child is located is needed. Having your local counsel work swiftly to locate appropriately qualified counsel in the foreign country is a necessary step to the process, as well.
- Seek the Appropriate Relief.
If a child is abducted/hidden within the United States, it is often more cost effective and quicker relief to seek state court relief under the Uniform Child Custody Jurisdiction and Enforcement Act. The Act allows for more cost effective and timely relief than the Hague Convention may provide. Again, a lawyer who can successfully navigate through these issues and make the appropriate decision for your case and situation is key to a hopeful successful outcome.
- Seek relief in the correct Court.
As outlined above, there are often options available in state and federal court. Selecting the right forum that is most likely to allow the victim parent swift relief can often be crucial to a successful outcome.
- Determine Temporary Remedies that can be put in place.
The International Child Abduction Remedies Act allows for certain actions by the court handling the Hague case to try to protect the best interests of the child and to protect the safety and well-being of the child, particularly if there are concerns that the child is going to be further hidden or harmed while waiting for the hearing.
- Prepare for the Case Trial or Hearing. Be Overly Prepared if Anything!
Often Hague Convention cases are won or lost in the details of the factual and legal arguments presented. It is crucial to a successful outcome that your lawyer is well prepared with all of the details of the situation. In many cases, the outcome of the case hinges on the habitual residence of the child. In these cases, often where one parent is a citizen of another country, there is disputed factual information. This is where the factual presentation requires proving the exact dates of the child’s residence through passport stamps/verification or other similar information. Further, often each parent is required to show the exact custodial time they have each exercised, whether there was a consent to the relocation and under what circumstances, how long the child has been in the new country, whether the child has been abused in any fashion, whether the taking or left behind parent was abused in any fashion that affected the child, whether the country where the child is now located will provide appropriate parent child interactions for the other parent going forward, the child’s wishes, in consideration of the age and knowledge of the child, among other potential factors.
As Hague cases often require a very fast adjudication, it is important that they be well prepared the first time. The attorney often has to collect a large and significant amount of evidence, looking at documents, interviewing many people, among other steps, all in a short amount of time. In a Hague case, it is better to provide more evidence than seems necessary, rather than to “hope” enough evidence has been collected and provided. Often, by their nature, Hague proceedings involve the parents saying or sharing very different factual information, thus, the more independent factual information available to support a parent’s claims or testimony, the better. Emails and text messages can often be crucial to show what was discussed and what the parent’s agreements/communications are.
- Engaging in Discovery to Prove Allegations.
While discovery requests are important in Hague Convention cases, in some situations, they can result in a damaging delay in the process. Thus, attorneys need to determine if discovery is truly needed versus if information can be obtained through some other source.
- Preparing the legal case.
Hague cases are unique and often, there are many cases that can shed light on the arguments through legal precedent. Additionally, if you seek relief through a state court, you may face a situation where the state court judge is unfamiliar with the Hague Convention. In such situations, it is important that your attorney provide a brief or other legal summary of the law and the standards that need to be met/determined. Often legal research/precedents comes from the state you are in, as well as other states’ determinations and federal or international determinations.
- Make sure you have an experienced attorney.
Hague convention cases often happen quickly and so much is at stake that it is important that the process be done correctly and swiftly. It is not uncommon for lawyers to require co-counsel so that the significant amount of work that needs to happen very quickly can be accomplished quickly. Also, as stated above, it is often important to find counsel in the local country where the child has been removed to.
In summary, if you find yourself in a situation where abduction, international abduction or your child’s relocation to a foreign country is a concern, please contact Pingel Family Law today for a consultation, at (816) 208-8130.