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.


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