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. 

Once you confirm that both countries are signatories to the convention, there are two ways to request that children be returned to their home country. First, the left behind parent (the one who no longer has the children) may file an application with a country’s central authority to ask that the children be returned voluntarily. In the U.S., the Department of State is the central authority. The central authority will then contact the central authority where the children are located and they will ask that the children be returned to their home country voluntarily. 

As a practice pointer, make the application to the State Department and also directly to the central authority where the children are located if they are not in the U.S. Then file a Hague Petition with the court immediately.  The faster that you act, the easier it will be to prove your case and the sooner that your client will, hopefully, be able to see his or her children. You must file the Hague Petition in the country where the children are located.

You may file your Hague Petition in federal or state court — it is your choice.  Both courts have concurrent jurisdiction. Before deciding where to file, consider your strategy. You may want to file in state court because you are more comfortable with the judicial system there, or you may want to file in federal court because your opposition may be less comfortable with the federal court than the state court. Also, you may have a preference whether you would like a state or federal judge to hear the case. 

In some federal circuits, if the parent who wrongfully takes or keeps the children files a custody action in state court, then the Hague Petition must be heard in state court. In the 3rd U.S. Circuit Court of Appeals, it does not matter whether a state court custody action is pending. Here, the petitioner gets to choose where he or she files the Hague Petition.  The 3rd Circuit reasons that the custody and Hague actions may involve the same parties, but they involve different questions of law and fact.  As a result, the petitioner can make a federal case out of the Hague action if he or she wants.

Judy McIntire Springer
Fox Rothschild LLP

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