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Summary of the Hague Convention on the Civil Aspects of International Child Abduction
The Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") was designed to protect children internationally from the harmful effects of their wrongful removal or retention by their parents. The two main purposes of the Hague Convention are to ensure the prompt return of children to the state of their habitual residence when they have been abducted and to ensure that rights of custody and of access. The United States is a signatory country of the Hague Convention on the Civil Aspects of International Child Abduction.
I. A Hague Convention proceeding does not determine the merits of a custody dispute, but mandates a child's return.
The Convention's procedures are not designed to settle the custody dispute, but rather to return the child to his/her home state where the custody dispute to be resolved. In other words, the Convention's focus is to preserve the status quo and to deter parents from crossing international boundaries to secure a more favorable forum for the adjudication of custody rights.
The Hague Convention on the Civil Aspects of International Child Abduction mandates the return of a child that has been abducted if at the date of the commencement of the proceedings for the child's return a period of less than one year has elapsed from the date of the wrongful removal or retention. It also mandates the return of a child even where the proceedings have been commenced after the expiration of the period of one year unless one of the narrow exceptions to mandatory return applies.
II. The child must have been abducted from his/her habitual residence country.
Under the Hague Convention on the Civil Aspects of International Child Abduction, a parent seeking return of a child must demonstrate by a preponderance of the evidence that he or she had and was exercising custody rights over the child under the country of origin's laws and that the country of origin was the child's habitual residence prior to the abduction (including wrongful removal or retention). A parent cannot claim that the removal or retention of a child is wrongful under the Hague Convention on the Civil Aspects of International Child Abduction, unless the child to whom the petition relates is "habitually resident" in a state signatory to the Convention and has been removed to, or retained in, a different state. Determination of a child's habitual residence immediately before the alleged wrongful removal or retention is, therefore, a threshold question in deciding a case under the Convention. The determination of habitual residence is not formulaic; rather, it is a fact-intensive determination that necessarily varies with the circumstances of each case. The United States courts have defined a child's habitual residence as the place where he or she has been physically present for an amount of time sufficient for acclimatization, which has a degree of settled purpose from the child's perspective.
III. To request a child's return, a parent must have custody of the child.
The Hague Convention on the Civil Aspects of International Child Abduction makes plain that a court has no authority to order return unless the petitioner-parent has rights of custody. The United State courts has interpreted custody of a child as the primary duty and ability to choose and give sustenance, shelter, clothing, moral and spiritual guidance, medical attention, education, etc., or to make the revocable selection of other people or institutions to provide the child these things. Absent of a court order or a written custody agreement, custody belongs to the parent with whom the child usually resides.
To request the return of a child being abducted, the parent must prove that he/she was exercising custody rights prior to the abduction. However, once it is determined that a party has valid custody rights under the country of origin's laws, very little is required to support of the allegation that custody rights have actually been, or would have been, exercised. If a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to exercise those custody rights under the Hague Convention on the Civil Aspects of International Child Abduction, short of acts that constitute clear and unequivocal abandonment of the child. Where a custodial applicant does nothing that constitutes clear and unequivocal abandonment of the child, he/she is exercising her custody rights at the time of retention.
IV. The Hague Convention offers remedies to enforce a non-custodial parent's visitation rights.
The Hague Convention on the Civil Aspects of International Child Abduction provides recourse in the event a child is removed from an habitual residence in breach of a non-custodial parent's visitation rights (access rights), but those remedies do not include an order of return to the place of habitual residence. To vindicate the breach of access rights, the Hague Convention authorizes signatory nations to use one or more remedies (short of return) to promote the peaceful enjoyment of access rights, and to take steps to remove, as far as possible, all obstacles to the exercise of such rights. One such remedy is to order the custodial parent who has removed the child from the habitual residence to permit, and to pay for, periodic visitation by the non-custodial parent with access rights.
V. The United States enforces the Hague Convention.
In the United States, a petitioner claiming child abduction under the Hague Convention on the Civil Aspects of International Child Abduction may bring a petition for an order of return in a United States district court or in a court of any state. The court has the authority only to determine whether the child's removal or retention was wrongful within the meaning of the Hague Convention, i.e. whether the removal was in breach of custody rights held by the petitioner. A petitioner bears the burden of proving wrongful removal by a preponderance of evidence. If a petitioner shows that the child was wrongfully removed, a court must order the child's return to the country of habitual residence unless a respondent demonstrates that one of the narrow exceptions applies. The court is not permitted to consider the merits of underlying custody disputes.
As of October 2010, New York became the final state to enact no-fault divorce. Prior to October 2010, one (1) spouse would have to invoke grounds against the other, such as accusing the other of abandonment or cruel and inhuman treatment; or they could live separate and apart for one (1) year or more based on a written separation agreement filed with the court. There are several different New York Grounds for Divorce.
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