R&H Invokes Hague Convention to Obtain Full Custody for Client
By the time he reached out to Robinson & Henry, John was growing desperate. Months earlier, he had dropped off his then-wife and daughter at the Denver International Airport for what he thought was a six-month trip overseas. But six months had come and gone, and John’s wife was now refusing to return the child to the United States.
In the following case study, you’ll learn how Robinson & Henry’s family law team spent more than a year navigating a complex legal process to help set our client on the path to reuniting with his daughter.
Past results afford no guarantee of future results. Each matter is different and must be judged on its own merits. Facts are those of an actual Robinson & Henry international child custody case. The client’s name was changed to protect their privacy.
Background: A Marriage on the Rocks
John, a soldier in the U.S. Army, was living in Colorado with his wife and their young daughter. In January 2020, John agreed to let his daughter accompany her mother on an extended trip to visit family in South Korea.
The couple’s three-year marriage was deteriorating, and John hoped that giving his wife a change of scenery would reignite the spark.
“I thought, ‘Maybe the U.S. is stressful. Go home, relax, come back refreshed,’” he said. “And we could maybe sort out the marriage.”
Unfortunately, John and his wife were not on the same page. By May 2020, she had already begun making excuses as to why she and the child couldn’t return to the U.S. She also began refusing John access to their daughter, ignoring phone calls and FaceTime attempts.
Meanwhile, the little girl’s toys cluttered the living room floor of John’s home — a daily reminder of the more than 6,000 miles separating him from his only child.
“For the better part of six or seven months, I just left the house the way it was,” John said. “I was getting really depressed, so I packed up their stuff and put it in storage because it’s just hard for me to see every day.”
The Solution: Invoking the Hague Convention
While stationed in South Korea, John attended a safety briefing about invoking the Hague Convention, an international treaty that allows for the expedited return of a child who has been internationally abducted by a parent.
“This is the only course [of action] I had to ensure I would see my kid again,” John said.
However, Hague Convention cases are inherently complex and involve a patchwork of international and local laws.
John knew his chances of success were slim without a knowledgeable, tenacious international family law attorney. He sought attorney consultations at multiple law firms across Colorado. Each one told him that his case was a non-starter — until he reached Robinson & Henry Family Law Attorney Niki Miller.
“R&H was the only law firm that was reasonable and helpful and could deal with the international side of things,” John said.
Some family law cases have several viable legal solutions. However, this case was not one of them.
“The Hague is the only way to enforce parenting orders outside U.S. borders,” Niki said.
Hague Convention Requirements
The Hague Convention on the Civil Aspects of International Child Abduction was adopted in 1980 and has since been signed by 101 countries, including the United States and South Korea.
The Hague Convention requires a court to order a child’s return when the child:
- is under age 16, and
- has been wrongfully removed from his or her habitual residence in violation of custody rights.
An Uncooperative Mother
Almost immediately, John’s case was complicated by a package in the mail. That package contained divorce papers that his wife had filed in a South Korean court.
John’s primary concern was being subject to South Korean jurisdiction, as courts in that country are predisposed to side with nationals. Furthermore, responding to a South Korean court order could imply that John was consenting to that country’s jurisdiction over him.
“How was I supposed to fight both?” John said.
Fortunately, his legal team was just a phone call away, and they knew exactly how to advise John.
“‘Don’t respond to it,” John said they instructed. “Just stay with your divorce here in the United States.”
Next, the attorneys filed divorce papers in the proper Colorado court. John paid a friend stationed in Korea to serve his wife with the papers at her home.
At the time, John was still clinging to a thread of hope that his marriage wasn’t beyond repair.
“I offered my ex-wife to come home at any time. I’d stop the court proceedings and we’d be a family again,” John said. “She kept delaying and trying to get me to go to Korea. … She would not compromise for any deal I would try to make.”
Acquiring Abduction Prevention Measures
In addition to taking their daughter to a foreign country, John’s ex-wife also thwarted any attempts at communication between his child and him. Our attorneys knew it was necessary to ask the court to implement abduction prevention measures.
C.R.S. § 14-13.5-108 authorizes a court to establish measures to prevent one parent’s abduction of the child if the court finds a credible risk that abduction has or will occur. By implementing abduction prevention measures, a court can require the person traveling with the child outside a designated geographical area to provide the other parent with the following:
- The travel itinerary of the child;
- A list of physical addresses and telephone numbers at which the child can be reached at specified times; and
- Copies of all travel documents
Proving Habitual Residence
The Hague Convention authorizes federal district courts to determine the merits of an abduction claim — but not the merits of an underlying custody dispute. Instead, the district court’s primary objective is to determine in which jurisdiction the child should be physically located so that the proper court can make those custody decisions. That jurisdiction is known as a child’s habitual residence.
Hague Convention cases often hinge on proving habitual residence, although the term itself is not clearly defined. The Supreme Court has ruled that determining a child’s habitual residence depends on the totality of the circumstances specific to the case.
Under Colorado custody law, a child’s home state is the state where the child has lived with a parent or person acting as a parent for at least 182 days prior to commencing a child-custody proceeding. C.R.S. 14-13-102(7)(a)
The court wrote in its final ruling:
“The child did not reside in South Korea for the required 182 days prior to the commencement of this action. However, the child had resided in Colorado for more than one year before having been taken to South Korea in January of 2020. This factual history made ‘home state’ jurisdiction a closer question than in most cases but also established ‘home state’ jurisdiction in Colorado as discussed in the oral rulings.”
In August 2020, the court found that John’s former wife had wrongfully retained their daughter in South Korea. A judge ordered the child returned to Colorado. Still, the girl’s mother refused to comply.
Her defiance worked in John’s favor. In April 2021 — more than a year after John first sought Robinson & Henry’s services — the court awarded him primary custody and sole decision-making authority. The court wrote in its final ruling:
“Respondent has demonstrated that she is not able to put the child’s needs ahead of her own in light of the history of wrongful withholding. Respondent has demonstrated that she is unable and unwilling to foster a loving relationship between the child and the other parent.”
John is still waiting for the Hague Convention to send the required documents to the Korean government, which will then forward them to his ex-wife.
“She has one of two choices: agree and do a prompt return of the child, or fight it,” John said. “We’re trying to work out an agreement just so we don’t go that route.”
With the finish line in sight, John is eager to build a life with his daughter. He credits the R&H Family Law Team’s determination and legal prowess.
“My representation was above and beyond what I could have hoped for,” he said.
Has Your Child Been Wrongfully Taken from Colorado?
Parental abduction cases are some of the most serious types of divorce cases our Family Law Team receives. You don’t want to cut any corners where your child is concerned. The family law attorneys at Robinson & Henry will move through every step of the Hague Convention application process with your children’s best interests in mind. Call 303-688-0944 to schedule a meeting with a family law attorney.
Read more about invoking the Hague Convention in international parental abduction cases.
Past results afford no guarantee of future results. Each matter is different and must be judged on its own merits. Facts are those of an actual Robinson & Henry probate case. The client’s name was changed for privacy.