What if one parent wrongfully takes a child or children outside of the United States?
It happens. Not all child custody cases in Massachusetts are governed by our own state laws. International child custody disputes are complicated, and a major factor is whether the other country is a signatory of the Hague Convention on the Civil Aspects of International Child Abduction.
In order to provide a framework to investigate such a situation and secure the return of a child or children wrongfully removed to another country, such as in a parental kidnapping case, the United States is a party to the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter the “Hague Convention”). The Hague Convention provides for the return of a child who has been wrongfully removed from one country to another or wrongfully retained in a foreign country. The Hague Convention is not a criminal treaty, but provides a civil process to obtain the return of the child. The person who wrongfully removed the child will not be extradited for prosecution. At least not for the removal of the child!
The United States has designed the Office of Children’s Issues in the Bureau of Consular Affairs to discharge the duties under the Hague Convention. This agency does not act as a judge or lawyer in the legal proceedings, but rather transmits the information necessary to locate the child, obtain information about the alleged abductor, monitor court proceedings, and implement the required procedures. If you are looking for more information, their website is a good resource. Just click the link above to visit their site.
If a child has been wrongfully removed or retained, a parent may file a Petition under the Hague Convention in any court of competent jurisdiction in the place where the child is located. In these international custody cases, the parent filing the petition must establish not only wrongful removal but also that the child was removed from the state that is the child’s habitual residence.
Habitual residence is a question of fact and the court must resolve this issue by focusing on the child, not the parents, and examining the past experiences of the child. If the parent filing the petition is able to establish these factors, the court shall order the return of the child forthwith under the Hague Convention.
However, there are exceptions to the Hague Convention. If the child has been wrongfully retained for more than one year before any proceedings for their return were commenced, then the court need not order the return of the child if it is established that the child is now settled in the new environment. Other exceptions include:
- If the legal custodian was not actually exercising custody rights when the child was removed;
- When removal was consented to by the legal custodian;
- When the return would create grave risks for the child; or
- The child is mature and objects to the return.
In addition to the Hague Convention, the United States enacted the International Parental Kidnapping Act in 1993 which makes it a federal crime to remove a child from the United States or retain a child outside the United States in obstruction of lawful parental custody rights. This Act applies to children under the age of 16, and parental rights include the right to physical custody, whether sole or joint, including visitation rights. The penalty under this statute is up to three years in prison.
The remedies available under the Hague Convention only apply to those nations that are a party to the Convention. If a child is abducted to a country that is not a member of the Hague Convention, the State Department of Children’s Issues may be able to provide information to assist parents.
If you have any type of international custody matter, we urge you not to try and navigate this process by yourself. Massachusetts domestic relations attorneys at The Divorce Collaborative have experience with this process, which is procedural and time consuming as you night imagine.
For more information, contact our Massachusetts divorce and child custody attorneys in Franklin, MA. Contact Attorney Colleen Cunnally at (508) 346-3805, or send an email to firstname.lastname@example.org