Family Law

International Custody Disputes and the Hague Conventions

By Fox Rothschild

In cases where one parent has removed a child from one country to another country to prevent the other parent from exercising custody, the Hague Convention and the Uniform Child Custody Jurisdiction Act (“UCCJA”) govern international custody disputes so long as the countries involved are signatories to the Hague Convention. The Hague Convention prevents a parent from wrongfully removing or retaining  child from his or her “home country” to prevent the other parent from exercising custody. When a parent (the “respondent”) has wrongfully removed a child and crossed international borders, the other parent (the “petitioner”) may file an application for the child to be returned to the child’s home country under the Hague Convention. The petitioner’s Hague application is solely related to the jurisdiction of the custody case. The court will not look at the best interests of the child to determine if the child should be returned.

A quick overview of a Hague case follows: to prevail on his or her application, the petitioner must establish the date the removal took place, that prior to removal the child was “habitually resident” in the petitioner’s home country, that the child’s removal/retention breached the petitioner’s custody rights, and that the petitioner was actually exercising custody when the child was wrongfully removed/retained. 

If the petitioner establishes his or her prima facie case, then the respondent has the burden of proof to rebut the petitioner’s prima facie case or establish a defense. Rhe defenses include the “well settled defense” (which does not apply if the Hague application is filed within one year of the wrongful removal/retention), that the petitioner consented to or acquiesced in the child’s removal or retention, that a “grave risk” of harm or “intolerable situation” exists if the child was returned, the mature child’s objection to the return, or that the child’s return would violate public policy.

If the petitioner establishes his or her prima facie case, and the respondent fails to rebut the petitioner’s prima facie case or establish a defense exists, the child must be returned to his or her home country.

Full post as published by Pennsylvania Family Law on June 21, 2008 (boomark / email).