The complete list of all signatory countries is available online at the National Center for Missing and Exploited Children’s website. The United States became a signatory in 1981 and enacted the International Child Abduction Remedies Act to implement it in the United States.
The Hague Convention seeks to simplify international cases, in which courts in different countries had been issuing conflicting orders, by reducing them to one issue: Where should the case take place?
Signatories use the Hague Convention as procedural authority to determine whether children removed from one country should be returned, for the case to take place there, or should remain in their new country.
The familiar “best interests of the child” standard has no bearing. The issue is not whether the new country is “best” for the child but whether the child has been removed from his domicile, or home country, in contravention of the Hague Convention.
In most cases, the left-behind parent with custodial rights files an action in the child’s new country for return of the child.
In some ways, the case proceeds just like a custody case: the left-behind parent files a petition or complaint; the moving-parent files an answer; the court may issue temporary custody orders; and the parties appear in court to argue their points, sometimes in an evidentiary hearing with witnesses, expert reports and other evidence.
In many ways, however, the case is unique. The Hague Convention, in Article 16, specifically bans the court from obtaining jurisdiction to hear the underlying custody dispute; the left-behind parent must file the action within one year of removal (excluding times when the child was away with permission and, in some countries, times when the moving-parent secreted the child); the court cannot return the child if the child is age 16 or older (even if the case began before age 16); and the court may refuse to order the return if the child has become well-settled in the new country, if the child is mature enough to object and does object to return, if the child faces a grave risk of physical or psychological harm if returned, if the left-behind parent acquiesced in the removal, or if the return violates the new country’s fundamental notions of public policy, even if the left-behind parent resides in the child’s home country.
These are the moving-parent’s affirmative defenses, and each one the courts narrowly apply to avoid mixing, impermissibly, with the “best interests of the child” standard. Cases analyzing each affirmative defense are available on the NCMEC’s website.
If the left-behind parent proves, by a preponderance of the evidence, that…
1) the child had a habitual residence in that parent’s country before removal;
2) the moving-parent breached the parent’s custody rights, which need not be joint physical custody; and
3) the parent was actually exercising the rights at the time of removal…
and none of the affirmative defenses apply, then the court must order the child returned to the home country.
From there, the parents may litigate under the “best interests of the child” standard.
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