litigating international child abduction cases

238 Pages·2007·1.77 MB·English

by  Lee Mann

Litigating International Child
Abduction Cases
Under the Hague Convention

Prepared by

2007

®
National Center for Missing & Exploited Children
Charles B. Wang International Children’s Building
699 Prince Street
Alexandria, VA 22314-3175
®
1-800-THE-LOST
(1-800-843-5678)

Copyright ©2007 Kilpatrick Stockton LLP and the National Center for Missing and Exploited Children, Inc. Although this
manual is protected by copyright laws and treaties, you may make copies for use with clients but not for resale or for
other commercial purposes. If you give a copy to anyone, it must be in its original, unmodified form, and must include
all attributions of authorship, copyright notices and republication notices. National Center for Missing & Exploited
Children® and 1-800-THE-LOST® are registered service marks of the National Center for Missing and Exploited Children.

This Manual is provided for informational purposes only and does not constitute legal advice or an opinion on specific
facts. This Manual may not be correct, complete, and/or up-to-date, so recipients should use this Manual only as a
starting point for their own independent research. The publisher is distributing this Manual with the understanding that
neither it nor the authors are engaged in rendering legal or other professional services. If legal advice or other expert
assistance is required, the services of a competent professional should be sought.
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NCMEC INTERNATIONAL CHILD ABDUCTION TRAINING MANUAL
TABLE OF CONTENTS

Page

I. INTRODUCTION...............................................................................................................1
A. The Hague Convention On The Civil Aspects Of International Child
Abduction.................................................................................................................1
B. The Role Of The National Center For Missing And Exploited Children................3
C. Overview Of A Hague Convention Case.................................................................4
II. ESTABLISHING A PRIMA FACIE CASE FOR RETURN...............................................9
A. Habitual Residence Prior To Wrongful Removal Or Retention Was In A
Foreign Country.....................................................................................................11
B. Removal Or Retention Was Wrongful Because Custody Rights Were
Breached................................................................................................................18
1. Breach Of Rights Arising By Operation Of Law.......................................20
(a) Patria Potestas...............................................................................21
2. Breach Of Rights Arising By Judicial Or Administrative Decrees
Or Agreement Of The Parties....................................................................22
(a) Ne Exeat Clauses............................................................................23
C. The Petitioner Must Be Exercising His Or Her Custody Rights At The
Time Of Removal..................................................................................................26
D. The Child Must Be Under The Age Of Sixteen.....................................................29
E. If True, Prove That The Petition Was Filed Within One Year Of
Wrongful Removal.................................................................................................30
1. Determining When Removal Or Retention Became Wrongful.................31
2. Determining When Proceedings Were Commenced.................................33
3. Tolling Of The One-Year Period...............................................................34
III. THE AFFIRMATIVE DEFENSES OF ARTICLES 12, 13, AND 20..............................38
A. The Article 12 Well-Settled Defense: The Child Has Become Well-
Settled In His Or Her New Surroundings..............................................................41
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B. The Article 13 Consent Or Acquiescence Defense: Petitioner Consented
To Or Acquiesced In The Removal Or Retention.................................................46
C. The Article 13 Grave Risk Defense: There Is A Grave Risk That The
Child Would Be Exposed To Physical Or Psychological Harm Or An
Intolerable Situation If Returned...........................................................................50
1. Grave Risk of Physical or Psychological Harm.........................................50
2. Intolerable Situations.................................................................................53
3. Undertakings..............................................................................................54
D. The Article 13 Mature Child Objection To Removal Defense: A Mature
Child Objects To Being Returned..........................................................................57
E. The Article 20 Public Policy Defense: Returning The Child Would
Violate Public Policy.............................................................................................59
F. The Often-Used But Invalid Defense: Best Interests Of The Child.....................61
IV. PROCEDURAL ISSUES...................................................................................................64
A. Procedures For Filing And Litigating A Hague Return Case................................64
1. Choice of Court - Whether to File in Federal or State Court.....................64
2. The Petition for Relief Under the Hague Convention...............................65
(a) Preparation of the Complaint.........................................................65
(b) Provisional Remedies.....................................................................66
(i) Temporary Restraining Orders/Preliminary
Injunctions..........................................................................67
(ii) Obtaining Custody of the Child.........................................68
(iii) Guardian Ad Litem Appointments.....................................70
(c) Notice and Service of the Hague Convention Petition..................74
(d) Discovery.......................................................................................74
(e) Evidentiary Issues..........................................................................75
(f) Witnesses (Including Experts).......................................................76
3. Article 16 Stay of Pending State Court Action..........................................77
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4. Checklist of Activities................................................................................79
B. Appeals..................................................................................................................80
1. Standard Of Review...................................................................................81
2. If The Trial Court Stays Its Order Returning The Child............................81
3. If The Trial Court Denies The Motion To Stay Its Order..........................82
4. An Appeal May Be Moot Once The Child Is Returned.............................83
C. The Logistics Of Handling A Hague Case............................................................84
1. Introduction................................................................................................84
2. The Investigation.......................................................................................85
3. Initial Conversation With Client................................................................86
4. Checklist Of Items to Discuss During First Client Call.............................87
5. Filing the Petition/Communicating With the Court...................................89
6. Service on the Defendant...........................................................................90
7. Client’s Travel and Accommodations.......................................................91
8. Pending the Second Hearing......................................................................93
9. Court Order................................................................................................94
V. THE UNIFORM CHILD CUSTODY JURISDICTION ACT AND THE
UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT...........94
A. The UCCJA............................................................................................................95
B. Jurisdiction Under The UCCJEA...........................................................................97
C. Enforcement Under The UCCJEA.......................................................................100
VI. RIGHTS OF ACCESS.....................................................................................................103
VII. CONCLUSION................................................................................................................107
EXHIBIT A—HAGUE CONVENTION................................................110
EXHIBIT B—PUBLIC NOTICE 957.....................................................121
EXHIBIT C—PEREZ-VERA REPORT.................................................152
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EXHIBIT D—INTERNATIONAL CHILD ABDUCTION
REMEDIES ACT.........................................................................212
EXHIBIT E—SIGNATORY COUNTRIES TO HAGUE
CONVENTION* (See :
http://travel.state.gov/family/abduction/hague_issues/hagu
e_issues_1487.html.)....................................................................220
EXHIBIT F—Robles Antonio v. Barrios Bello Orders...........................223
Page 1
NCMEC INTERNATIONAL CHILD ABDUCTION TRAINING MANUAL
I. INTRODUCTION
A. THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD
ABDUCTION.
The purpose of this manual is to provide attorneys with a road map to assist in the
effective and competent litigation of a Hague Convention case involving the abduction of a child
from his or her home country. While there are many similarities between Hague Convention
cases and typical civil litigation, there also are many nuances associated with Hague cases. This
manual will provide the reader with a general understanding of Hague Convention cases and how
best to navigate them through the court system to effect the return of a child to his or her home
country or to provide the left-behind parent with access to (visitation with) the child.
The Hague Convention on the Civil Aspects of International Child Abduction
(hereinafter the “Hague Convention”) (attached as Exhibit A),1 is a treaty between multiple
signatory countries wherein the countries agree to cooperate for the specific purpose of returning
children to their home country for custody proceedings. The United States assisted in the
drafting of the Hague Convention and became a signatory in 1981, joining many other countries
in adopting unified guidelines and rules governing the civil aspects of international child
abduction.

1 October 24, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 22514, reprinted in Department of State Public
Notice 957 at 51 Fed. Reg. 10494, 10498-502 (1986). The Hague Convention was the product of the
final act of the Fourteenth Session of the Hague Conference on Private International Law, agreed upon in
The Hague on October 25, 1980. At this session, each signatory country agreed to submit the Hague
Convention draft to their governments. See Hague Conference on Private International Law: Final Act,
October 25, 1980, 19 I.L.M. 1501.
NCMEC TRAINING MANUAL Page 2
The State Department’s analysis of the Hague Convention is set forth in a document
known as Public Notice 957 (attached as Exhibit B).2 In addition, the history and commentary
by the official reporter at the Fourteenth Session of the Hague Convention on Private
International Law is set forth in a document commonly known as the Perez-Vera Report. A copy
of the Perez-Vera Report is attached as Exhibit C.3 Both Public Notice 957 and the Perez-Vera
Report provide excellent insight into the purposes and procedures of the Hague Convention and
should be initial points of reference when litigating a Hague Convention case.
Congress enacted the International Child Abduction Remedies Act (“ICARA”)4 as the
implementing legislation for the Hague Convention. A copy of ICARA, as currently codified, is
attached as Exhibit D. ICARA establishes the Hague Convention as the law of the United States,
provides definitions, sets forth jurisdiction, and addresses certain details regarding how the
United States will enforce the provisions of the treaty. ICARA explicitly states that its
provisions are in addition to and not in lieu of the Hague Convention.5
In the context of child abduction, the Hague Convention serves to simplify the
reunification of parents and children who have been illegally removed from their home country.
United States courts use the Hague Convention as the procedural authority to determine whether
illegally removed children should be returned to their home country or instead should stay in

2 Public Notice 957: Hague International Child Abduction Convention: Text and Legal Analysis, 51 Fed.
Reg. 10494 (1986).
3 Explanatory Report by Elisa Perez-Vera, Hague Conference on Private International Law, Actes et
documents de la Quatorziem session, Vol. III, 1980, p. 426. The Perez-Vera Report is available online at
http://www.hiltonhouse.com/articles/Perez_rpt.txt.
4 Pub. L. No. 100-300, 102 Stat. 437 (1988). ICARA is codified at 42 U.S.C. §§ 11601-11610 (1995).
ICARA was created to deal with the sudden abduction of children and to allow a petitioner to assert his or
her rights in exigent circumstances. See Distler v. Distler, 26 F. Supp. 2d 723, 727 (D.N.J. 1998).
5 See 42 U.S.C. § 11601(b)(2).
NCMEC TRAINING MANUAL Page 3
their “adopted” country for custodial proceedings. The Hague Convention has many signatories,
including countries throughout Europe, Latin America, and Africa. The 63 signatories to the
Hague Convention that are recognized by the United States are listed in Exhibit E.6
B. THE ROLE OF THE NATIONAL CENTER FOR MISSING AND EXPLOITED
CHILDREN.
The National Center for Missing and Exploited Children (“NCMEC”) was created in
1984 “to provide services nationwide for families and professionals in the prevention of
abducted, endangered, and sexually exploited children.” NCMEC works under the terms of a
trilateral cooperative agreement with the U.S. Departments of State and Justice to manage cases
of international child abductions. Under the terms of this agreement, NCMEC is strategically
positioned to serve as a liaison to help return children to their home countries or to assist left-
behind parents gain access to their children.
Most Hague Convention actions follow similar factual and procedural paths. First, a
parent realizes that his or her child has been abducted, typically by the other parent. The left-
behind parent exhausts all avenues within the home country to find the child or to determine the
country to which the child has been abducted. The left-behind parent then goes to the Central
Authority, a governmental agency within each Hague signatory country that is designated to
handle child abduction issues. The Central Authority works with the left-behind parent to
complete a set of documents (the “Application”) to initiate the process for the return of or access
to the child. The Central Authority then forwards the Application and all supporting materials to
NCMEC.

6 There are 80 contracting countries to the Hague Convention, but as of September 1, 2007, the United
States recognizes only 63 countries as signatories for purposes of resolving international child abductions
under the Hague Convention. A list of U.S. recognized signatories is available on the State Department’s
website at: http://travel.state.gov/family/abduction/hague_issues/hague_issues_1487.html.
NCMEC TRAINING MANUAL Page 4
NCMEC then begins the process of locating the child in the United States by using
school, employment, financial, social security, police, postal, internet or other public records.
Once NCMEC is reasonably confident that it has located the child, NCMEC finds a local
attorney, typically a pro bono volunteer,7 to represent the left-behind parent in the Hague
Convention case. This attorney litigates the Hague Convention case to return the child to his or
her home country or to enable the left-behind parent to obtain access to the child.
NCMEC provides counsel with a package of documents, including this manual, the
Application, and other information regarding the child. The Application serves as the initial
source of relevant details regarding the abduction. Typically, the Application has been
completed in the child’s native language, and NCMEC will provide an English translation of the
Application. After reviewing NCMEC’s package, the attorney will proceed with his or her
independent representation of the left-behind parent in the Hague Convention case.
C. OVERVIEW OF A HAGUE CONVENTION CASE.
There are two basic types of Hague Convention cases: return and access. This Manual
focuses primarily on return cases unless otherwise noted. In return cases, a left-behind parent
with custodial rights seeks the return of his or her child to the child’s country of habitual

7 NCMEC employs Legal Services Corporation (“LSC”) guidelines to assess a parent’s eligibility for pro
bono legal services. 42 C.F.R. § 1611. In 2007, a family of four (excluding Alaska and Hawaii) would
be eligible for pro bono legal services only if their gross household income was less than $25,813.
NCMEC also uses LSC guidelines for reduced fee cases (calculated at 200% of the federal poverty rate).
In 2007, a family of four is eligible for reduced fee assistance if their gross household income is less than
$41,300. Due to the complexity and expense of most Hague Convention cases, NCMEC attempts to
locate pro bono counsel to represent all parents eligible for reduced fee services. NCMEC also provides
attorney referrals for a parent whose income exceeds the LSC guidelines.