It is not uncommon for people from different countries to marry or have children together. Of course, this can bring complicated, binational custody and parental access issues should they divorce or end their relationship. After all, their extended families, support systems and roots are in different nations.
These disputes can get bitter and involve a complex intersection of state, national, foreign and international law, depending on the circumstances.
The Hague Convention may provide legal remedies
A parent may take a child to that parent’s home country (or to any other country) in violation of a custody order issued in the child’s country of “habitual residence.” Or, a parent may keep the child with them abroad beyond the date specified in an agreement or court order. Wrongful removal or retention of a child in this scenario is an “international child abduction” under the 1980 Hague Convention on the Civil Aspects of International Child Abduction, a multilateral treaty to which the U.S. is a party along with about 100 other nations.
While “abduction” suggests a criminal matter, the Convention establishes a civil, legal process between the two parents – sometimes separated by oceans – to resolve their custody and visitation struggle. Under the treaty, a parent who was exercising lawful custody before wrongful removal or retention abroad may seek the return of their child to their country of “habitual residence.” Or a parent can request the “peaceful enjoyment” of their right of access (visitation) to their son or daughter. A parent begins the process by filing an application with the appropriate authority in the U.S. or in the country where the child is located. The matter may be resolved by agreement, by voluntary compliance with the other parent’s request or in the courts or agencies of one of the two countries.
As in Connecticut family law, the Hague Convention directs that its processes be carried out in the child’s best interest.
Basic provisions
The Convention only applies when the two countries involved are both treaty members and each has accepted the other’s accession to the treaty. Major provisions include:
- The treaty only covers children under 16.
- Each member country designates a Central Authority to carry out the Convention’s provisions, including accepting parental applications for assistance, locating children, facilitating peaceful resolutions of parental disputes and cooperating with the Central Authorities of other member states to coordinate rightful return of children. (In the U.S., the Central Authority is the State Department’s Office of Children’s Issues.)
- If a parent filed an application within one year from wrongful removal or retention, the Central Authority of the country where the child is shall order their return to their country of habitual residence (unless an exception applies). If it has been more than a year, the child should be returned unless they have settled into their new environment.
- A “grave risk” that returning the child would expose them to “physical or psychological harm or otherwise place the child in an intolerable situation” prevents return.
- If the child is mature enough to meaningfully express that they do not want to return to their country of habitual residence, the deciding authority should consider this.
- The child should not be returned if it would violate “fundamental principles … of human rights and fundamental freedoms.”
Basically, the Convention does not facilitate custody determinations. Rather, its purpose is to determine the appropriate country of residence under the Convention’s standards – and then that country can make custody and access decisions under its own laws.
U.S. federal law implementing the Convention provides that both state and federal courts have jurisdiction to decide disputes under the treaty.
A Connecticut example
The Convention is subject to interpretation by each country’s courts, agencies and officials, adding another layer of legal complexity. For example, the Connecticut Supreme Court set a high bar for a parent to show that their child would face “grave risk” of harm or an “intolerable situation” if returned to their country of habitual residence.
In 2000, the court in Turner v. Frowein, 253 Conn. 312, considered a Hague Convention dispute on appeal where the trial court had denied the father’s petition for his son’s return to Holland after the mother had moved with the child to Connecticut in violation of a temporary Dutch order granting the father custody.
After the Connecticut trial court found he had sexually abused the child, the state Supreme Court – not surprisingly – agreed with the trial court that returning the son to Holland in the care of the father would put the child at “grave risk.” Strikingly, the abuse was not enough to deny the petition to return the child. The court held that the Convention also required the trial court to consider whether there would be other living arrangements that would make it safe for the child to return to Holland such as living with a third party there or having the other parent return with the child to care for them there. The court must also consider whether foreign authorities could keep the child safe.
This decision underscores the importance of retaining a knowledgeable lawyer in a Hague case – gathering evidence from another country about child protective services and the availability of foster or extended-family care is an arduous task, even with help from that nation’s Central Authority.
Experienced legal counsel critically important
This is only one example of the myriad issues that can arise under the Hague Convention. A Connecticut parent may have brought their child home from abroad and now faces a petition by the other parent for return or access. Or, the other parent may have the child in another country after wrongful removal and the left-behind parent may seek the child’s return or visitation.
But its not always simple. For example, what country is a child’s habitual residence if the family owns multiple homes around the world? A parent in this situation is urged to associate with a family lawyer with international custody experience under the Hague Convention and with other international legal remedies. The Convention may not apply, or an authority may deny their Hague application. An attorney can determine next steps such as whether use of the foreign country’s courts is a viable option. Knowledgeable legal counsel can help the parent make important decisions such as whether a Hague application is a good strategy and if so, in which country to file it.
