My Country or Yours? Part Two: Litigating Hague Convention Claims
The Hague Convention is an international treaty that many countries have ratified, including the United States. The treaty prohibits parents from wrongfully removing and/or retaining a child from his or her home country. In order to seek relief under the convention, both the child’s home country and the country where the child was taken must be signatories to it.
As discussed in a previous blog entry, you may file your Hague Petition in federal or state court. It is your choice.
In order to prevail to have the children returned to their original home country, the petitioner must prove his or her prima facie case by a preponderance of the evidence. In the 3rd U.S. Circuit Court of Appeals, it has been held that the prima facie case involves four questions:
- What was the date of wrongful removal or retention?
- Did the parent that was left behind have custody rights of the child at the time of wrongful removal or retention?
- Was the parent that was left behind exercising his or her custodial rights at the time of wrongful removal or retention?
- Which country was the place of habitual residence at the time of wrongful removal or retention?
Date of Wrongful Removal or Retention
The date of wrongful removal or retention is the date that the parent that was left behind knew or should have known that the parent took the child from the original country or that the parent was not returning the child to the original country. This date establishes the cut off date for evidence of a child’s habitual residence. If the Hague trial does not go forward for several months or longer, the leaving parent does not reap the benefits of continued actions to attempt to change the child’s habitual residence. The court will not consider any actions after the date of wrongful removal or retention.
Custodial Rights at the Time of Wrongful Removal or Retention
Whether a parent had custody rights at the time of the wrongful removal or retention requires evidence of the law of the country to which the parent that was left behind resides. In a recent Hague case that I successfully tried, we asked the left behind parent’s legal counsel to testify as an expert witness via telephone regarding the custody law for Australia. In many countries, simply being the child’s parent provides important custody rights, even if there has been no litigation regarding the issue.
Exercising Custodial Rights at the Time of Wrongful Removal or Retention
The next question is whether a parent was exercising his or her custody rights at the time of the wrongful removal or retention. This question is very broad in scope. The key custody question does not involve physical custody, but rather legal custody. Unless a parent specifically rejects custody of a child, the left behind parent will satisfy this requirement.
Country of the Child’s Habitual Residence
The final question that a court must answer in a Hague case is what was the child’s country of habitual residence at the time of the wrongful removal or retention. Because this is a complex question, it will be the subject of a later blog entry.
Once the petitioner successfully answers the above questions by a preponderance of the evidence, the burden will shift to the petition to show why the children should not be returned. If no adequate reason is raised to keep the children in the new country, then the court must order that the children must return to the original country.
Judy McIntire Springer
Fox Rothschild LLP
Explore posts in the same categories: Family Law, Judy McIntire Springer