The Hague Convention 18

What You Need To Know About International Custody Disputes

Even despite the most stringent orders, many parents still face the frustrating and frightening experience of their children being kidnapped by an ex-spouse. Such a situation becomes even more dismaying when that spouse takes the child out of the country, creating a judicial nightmare in securing the child’s return.

To address the rising number of international child abductions, several countries united together and signed a treaty known as The Hague Convention on the Civil Aspects of International Child Abduction.

The Hague Convention basically provides a venue for one parent to solicit the return of their child when the child has been wrongfully taken out of the country. Under this treaty, each “contracting state” has set up a Central Authority (or command post) that acts as the contact point for other countries seeking relief. Once an application has been made from the child’s home country (usually by the complaining parent), the Central Authority in the suspected country must do everything in its power to determine the whereabouts of the child and secure his voluntary return.

This treaty can be enacted even if there is no custody order in effect. A cause of action may be brought as long as:

  • The petitioning parent had custody of the child (sole or joint) either by a custody order or operation of the law, known as du jure. This means that the petitioning parent had been acting in a custodial manner or that custody was assumed and agreed to in practice;
  • The child was habitually a resident of the country from where he was abducted; and
  • At the time of the wrongful removal, the petitioning parent was exercising his or her custodial rights.

The Hague Convention provides some defenses to such a petition including the claim that the petitioning parent knew the child’s whereabouts and did not act for more than a year. In addition, the court may refuse to return the child if the petitioning parent was not exercising his or her custodial rights voluntarily or if returning the child would cause physical or emotional harm to the child. And if the child has reached an age of reasonable maturity, the child’s documented desire to stay in the new country can also be enough to have the petition for return denied.

These are what is known as “affirmative defenses”, meaning that it is the responsibility of the abducting parent to prove their claim of defense.

The Hague Convention only works when both the residence country and the country to which the child was taken have agreed to the treaty. It can also not be used on children that are 16 years of age or older.

This treaty is not designed to settle custody disputes but rather to keep the dispute in the residence country where both parents have a opportunity to exercise their custodial rights.

To learn more about whether the Hague Convention applies for you, and how to enact it, you should contact a Family Law attorney in your area.

Looking for legal answers?



Discussion

  • [Name Removed]

    I am a New Zealander that has resided in the US for 14 years with a 1 year period of living back in New Zealand. My ex husband is from the US. We have an 8 year old son. He was born in New Zealand. We moved back to the States when our son was 5 months old against my wishes. I was trying to save my marriage at the time. When our son was 2 years old we separated and then divorced. I have been living here against my will for the most part. I have approached my ex husband about all of re locating to New Zealand and continuing the current 50/50 legal and physical custody order, but he will only commit if we get back together. This is not an option as he is abusive toward me.

    I want to know if there is anything that I can do to file a motion for a move to New Zealand with an offer to have my ex husband go too.

    The reason this has become urgent is that I lost my Dad last year and now my Mum’s health is failing. I am an only child, so my Mum is alone and I feel I need to return home to take care of her and also for my son to spend time with his Grandmother in the event that her health further deteriorates.

    Thank you
    [Name Removed]

    • You should file a motion requesting permission to move with your son. The motion should be filed in the county in which you presently live.

    • Gabrielle

      Please email me Ms. NZ. I am an Australian in same situation here in the US.

  • Needing help

    I have shared parental custody ex moved to Guatemala does not pay support but kids have to go per divorce decree kids do not want to go but scared- father intimidates them – what can I do? he doesnt physically hurt them just mentally & emotionally they are a wreck when they get back to me- they are very scared in guatemala it is not safe- I told the judge and nothing-need help!!! anything I can do?

  • Yumiko

    I am originaly from Japan. I’ve in United state for over 12 years. I am trying to finalize my divorse case with Drug adict hasband.He hasn’t paid any child support . We sepalated since last September. I filed restraining order last Sep.25th. I have sole custody.He was able to see kids with his mother supervised them until March 2010. He hasn’t seen kids (2 and 7 year old)since I requested hair folicle test result from him 3month after trial before he start having parenting time with boys with out his mom suppervising. (which he agreed to take at trial in Dec 15th last year). I asume he is still using. But Even he is a drug dealer and user and ID thief( stolen my ID) never be arested…

    So, my question is Do I get to move back to my Own country with minor kids when I want to?with out my x husband agreement ? He hasn’t contact kids or paying anything to boys. Even He doesn’t have custedy he has a right to stop us moving? I don’t have any family here , no support. How difficult to move out with out being a kidnapper.

    If I dicide to move, doI need to file or go to the court ?

    Please give me some advice!!

    Thank you,

  • Terri

    Husband was directed to pay court ordered child support from the state of CA one year ago. He is an architect now living and working in China. Also, he has opened a bar and restuarant in Chongging, China called the Harp Irish Pub. He has not paid one cent of ordered $3,000 a month child support. Three minor children. I have recently lost my job as pharmaceutical rep for Roche Pharmaceuticals here in CA. I know China has not signed onto the Hague Treaty, so how can I possibly pursue any action to enforce this order. It is all so sad.
    Thanks

  • can the state or bankruty or taxes at tax time. can they see that i no longer have my child living with me by his social security number

  • Dead Beat

    I’m immigrating to China! Thanks!

  • Rosa

    I married my husband in the United States in November 1999. We separated in August 2006. We have three children together. They all live here with me in the US. My husband got deported to Mexico and currently lives in Mexico. I filed for a divorce in August 2010 in Los Angeles County, CA. My husband agrees to the divorce and signed the Acknowledgment of Receipt (of the Summons & Complaint for divorce). The Court rejects my request for Default because they said I have to serve him pursuant to the Hague convention treaty. Is this right? Does the Hague Convention apply to marriages that occur in US and to divorces that are also filed in US? Thank you for your help.

  • Ratan

    Question: Does Hague Convention Law applies to divorce cases where there are no children involed? I am from California, USA

  • Caija

    Okay so I was just wondering what would happen if the parents get a divorce and one has to move out of the country for work. Before s/he moves they have had a 50/50 joint custody. Can the kids still spend equal time with both parents? Like spend 6 months with one parent and the other 6 with the other? Or would the schools not like this since they would have to change schools half way through the year. I was thinking that the kids could change houses Jan 1. and June 1. I was hoping someone could answer my question. The children really don’t want to choose between the parents so they came up with this solution. The parents agree because they feel that it would be best for the children and they both want equal time with them. Help.

  • Fathers Rights

    I have joint custody of my child and in the parenting plan it states that each party is allowed up to 2 weeks vacation a year with the child. My ex-wife agreed to the dates and I have this in email. We are to give each other a itinerary if the we are to go out of state more than 2 days (done! she is playing this game of refusing documents and I had to deliver it to her attorney). She is now trying to renege on the agreement saying she did not agree to taking my child out of the country. We are going on a cruise (leaving one US port and going to the Bahamas looping back, no passport required. Just birth certificates) “we do not need a passport and as long a one parent is with the child”, per Cruise line. We each must consent for a passport, per parenting plan. WE DO NOT NEED A PASSPORT. She is using this consent for a passport as threat to have me arrested for kidnapping. I have spoken to a attorney and she says she can try, but it wont hold water. The attorney also mention “Custodial Interference”. My ex-wife is obsessed with making me miserable by using my child as a means. I have had to final police reports because she has not exchanged my child when she was suppose to. Do you have any other words of wisdom so we can live in peace..

  • Kate

    I have a friend who moved to the U.S. about 6 years ago from Germany. In those 6 years, she had a child (out of wedlock) in the state of Florida. Just recently, she was served papers by her ex-boyfriend’s attorney filing for full custody and child support from her. She is a fit mother w/ a manager postion at a job, she has a stable household, etc. She is currently here in the US on a green card (VISA). She has 20 days to respond to these papers; however, she has decided she is going to leave the country prior to those 20 days & go back to Germany. In Florida, the law on custody is that if the couple is unmarried, then the mother automatically has full custody until the father goes to court and establishes it.
    Now, my questions is… can she get in trouble over this? Does the Hague Convention apply? I know that in Germany the mother is favored custody almost 99% of the time. Maybe she won’t be in trouble but will they expedite both her & the child back to the US to solve the custody hearing that her ex has filed for? She is leaving around July 7th so any information or advice would be very much appreciated.
    Thank you!

  • zuzana

    Dobrý deň s dcérou som odišla do zahraničia s úmyslom jej zabezpečiť riadny rodinný život, jej otec sa o ňu dovtedy riadne nezaujímal nevznikol tam vzťah. Dcérin otec je alkoholik, ale zostali mu rodičovské práva, ktoré som nechtiac porušila má aj takýto otec nárok na to aby mi moju dcéru vzali na základe jeho podania žiadosti o navrátenie dcéry na Slovensko? A prečo má takýto človek právo riadiť moj súkromný a rodinný život? S partnerom mám v zahraniči dieťa, ktoré má mesiac.

  • Sara

    When I got pregnant me and my boyfriends split. He did not wanted to help me, I was unemployed so my only choice was to go Montenegro, Europe where I come from and get help from my parents. Baby was born in Montenegro and now he is telling me I kidnapped our child and he will get full custody and take a child away from me. While I was in USA he never went to any doctors appointments or had anything to do with pregnancy. Also, When i was in labor, my family called him to come but he never showed up. Now, month later he is telling me I will lose her and he will get a full custody. I was 4 months pregnant when I left USA. What rights he has? Will I have to go back to USA with a baby? I know we will not be together so I would like to stay here and raise my child with a help of my family. Also he was against child when i got pregnant. I think he is angry at me and he wants revenge. Thank you

  • me

    If a wife leaves and take the children to europe and refuse to return, and it becomes a kidnapping case, When the children is returned are they still considered residents of New Mexico, because they were kidnapped.

  • Tanisha

    Please I need your advice, I have a 8 year old child and my husband who is a US citizen took our child on a weeks visit to the US and now its 10 months am not hearing anything from them. Prior to this time he filed an application for me which was not sucessful then his focus was on our child which we got the travelling papers which we planned would be used sometime in the future. The week the documents were ready he became hasty about travelling to do some important work in the states. I cant go to the states and i cant describe what am going through. please help me.