Marriages between two people from differing nations are common in the 21st century. Many international couples enjoy a lifetime of happiness raising a family together. However, these unions can fall apart as other marriages do, leading to divorce.
A risk that can affect the children of international divorces occurs when one of the parents decides to take the child to their country of origin, often in connection with a vacation or visit with family members. Sometimes, this happens unexpectedly, leaving the other parent blindsided and unsure of how to find a lawful remedy.
What is the Hague Abduction Convention?
The Hague Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention) is an international treaty enacted by and between numerous countries around the globe. A lot of information about the Hague Abduction Convention can be found at: https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction.html. The purpose of the Hague Convention is to return children back to their “habitual residence” so that the country that is their habitual residence can then make a custody determination. The Hague Abduction Convention does not determine custody or the best interests of a child. Therefore, when a child is taken to another country that is not the child’s habitual residence, if that country is a treaty partner with the habitual residence country, then a Hague petition would be filed in the country where the children were taken. Despite the best efforts of the treaty drafters and the countries who have signed on to the Hague Abduction Petition, Hague petitions can take a long time to be finalized, sometimes several years.
Additionally, even when a child is found to have been wrongfully removed or wrongfully retained by a parent, there are several defenses that may be used to prevent the child from being returned to their habitual residence:
- Grave or severe risk of physical or psychological harm if returned
- The child objects to returning and is mature enough to have a say
- 12 months or more have passed, and the child has comfortably settled
- The co-parent expressed permission for the child to leave the U.S.
- The nation where the child resides can protest if the return would violate that nation’s “fundamental principles of human rights and fundamental freedoms.”.
If you have child custody concerns of an international nature or have reason to believe that your spouse may abduct your child or not return your child following a visit to another country, you should obtain legal advice immediately from a lawyer who has experience in international custody disputes.