International Child Abduction

Understanding The Hague Convention On International Child Abduction

By Peter Van Aulen, Esq.

THE PURPOSE OF THE CONVENTION

The object of the Hague Convention on International Child Abduction is to provide for the speedy return of children who have been wrongfully removed to, or retained in, a country that is a contracting member of said Convention. Currently there are 80 member countries that have signed onto the Convention. The United States is a contracting member of the Convention.

WHAT IS A WRONGFUL REMOVAL UNDER THE CONVENTION?

Under the Convention, the removal or the retention of a child is found to be wrongful if said removal breaches the rights of parental or guardian custody under the law of the state in which the child was habitually a resident right before the removal or retention and said rights of custody were actually being exercised.

MAKING AN APPLICATION UNDER THE CONVENTION

A person claiming a wrongful removal or retention can apply to the Central Authority of the child’s habitual residence or to the Central Authority of any other country that is part of the Convention and request assistance in attaining the return of the child. The application should contain the following:

  • Information about the identity of the child, applicant, and the party who committed the wrongful removal or retention.
  • The date of birth of the child.
  • The applicant’s basis of their claim for the return of child.
  • All information in regard to the location of the child and the party who the child is with.

Please note that an action under the Convention needs to be started before one year has elapsed from the date of removal or wrongful retention. However, under the Convention, the judicial authority in a contracting country should order the return of the child, even if application is made after one year has elapsed since the wrongful removal or retention, unless the child is found to be settled in the other country.

WHEN A COUNTRY IS NOT OBLIGATED TO RETURN THE CHILD

A contracting country is not obligated to return a child if a party who opposes said return establishes the following:

  • The party requesting the return of the child was not exercising their custody rights at the time of the child’s removal or retention, or consented to or gave into the removal or retention.
  • There is a serious risk that the return of the child would expose him or her to psychological or physical harm or put the child in an intolerable circumstance.
  • The objection of the child to the return when he or she has reached an age and a level of maturity at which it is appropriate to consider their opinion.
  • As stated above, one year has elapsed since the removal or retention, and the child has become settled.
CONCLUSION

Under the Convention a contracting member country cannot charge any fee in regard to the application and the proceeding. However, they could require payment of the expenses associated in implementing the return of the child. The person who is found to have wrongfully removed or retained the child could be required to pay the expenses incurred by the applicant in locating the child, the cost of legal representation and the travel cost in returning the child. The Convention does not apply to a child who reaches the age of 16 years old. It is important to act quickly and make an application for the return of the child as soon as possible. Call Peter Van Aulen today for a free initial consultation at (201) 845 -7400.

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