International Parental Abduction: Invoking the Hague Convention

Child abduction is a parent’s worst nightmare. Unfortunately, that nightmare all too often becomes reality, particularly in contentious divorce cases. Sometimes one spouse will go to extreme lengths to hurt the other, including taking the child to a foreign country without the other parent’s consent. This is where the Hague Convention comes in.

 

International child abduction is governed primarily by international law and secondarily by local law of the country of abduction. The 1980 Hague Convention of the Civil Aspects of International Child Abduction is the controlling international treaty for countries that are members of the Hague Abduction Convention. The United States is a member of the convention along with 100 other countries.

In this article, you will learn about the Hague Convention and how a family law attorney can use it to help safely return your child in an international parental abduction case.

Table of Contents

1. 1. Contact a Hague Convention Attorney Immediately
   2. What is the Hague Convention?
   3. How to Apply
   4. What You Need to Prove
   5. Country of Habitual Residence
   6. Wrongful Removal or Retention
   7. What the Hague Convention Does Not Do
   8. Defenses to the Petition for Return of a Child
   9. Talk to a Hague Convention Attorney Today

Contact a Hague Convention Attorney Immediately

Time is not on your side when trying to institute child abduction proceedings under the Hague Convention. You can theoretically bring a case a year or more after your child is abducted. However, an exception to the Hague Convention may arise if your child is established in the country where their other parent has taken her. For example, maybe your daughter has been attending school and participating in extracurricular activities.

For the well-being of your child, it is recommended that Hague Convention cases are resolved within six weeks. So don’t wait — speak with an international family law attorney at Robinson & Henry PC now. Call 303-688-0944 today to begin your case assessment.

Click here to learn how Robinson & Henry’s Family Law Team invoked the Hague Convention and helped reunite a father with his daughter.

What is the Hague Convention?

The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty designed to protect children from the harmful effects of international abduction by a parent. The treaty was adopted in 1980 by the Hague Conference on Private International Law.

Essentially, the signatory countries have agreed to cooperate in returning children to their home country after they have been abducted by a parent and taken to a foreign country. The country to which the child was taken is supposed to honor the initial country’s custody arrangement and return the child — unless the court finds evidence that the child is seriously at risk of psychological or physical harm or otherwise intolerable circumstances.

The primary functions of the Hague Convention are:

1. to secure the immediate return of a child wrongfully removed or wrongfully retained in any contracting state.
2. to ensure that rights of custody and access under the law of one contracting state are effectively respected in other contracting states.

The idea is that custody and visitation matters should generally be decided by the proper court in the country of the child’s habitual residence.

As of 2021, 101 countries were parties to the Hague Convention, with Barbados and Guyana being the most recent countries to agree to the convention’s terms in 2019.

Colorado Enforcement under Hague Convention

The Uniform Child Custody Jurisdiction and Enforcement Act is a uniform state law requiring state courts to enforce valid child custody and visitation determinations made by sister state courts. All U.S. states except Massachusetts have adopted some form of the UCCJEA.

Colorado Revised Statute § 14-13-302 provides that:

a court of this state may enforce an order for the return of the child made under the “Hague Convention on the Civil Aspects of International Child Abduction” as if it were a child-custody determination.

Central Authority

Each country that has ratified or joined the Hague Convention is required to designate a Central Authority as the main point of contact for parents and other governments involved in abduction cases. The United States has designated the State Department’s Office of Children’s Issues in the Bureau of Consular Affairs as its Central Authority.

The Central Authority is responsible for helping locate abducted children, encouraging amicable solutions to parental abduction cases, and facilitating the safe return of children as appropriate.

Any documents submitted to the Central Authority as part of the application are admissible in courts in partner countries without the formalities courts often require for admitting documents from foreign countries.

How to Apply for Hague Convention Help

Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child. USCS Child Abduction (Hague)

Importantly, you can only invoke the Hague Convention if both countries are parties to the Convention.

Your application should include:

1. information concerning your identity, as well as the identity of the child and of the person alleged to have removed or retained the child
2. the child’s date of birth
3. the grounds on which your claim for return of the child is based
4. all available information relating to the child’s whereabouts and the identity of the person with whom the child is presumed to be.

What You Need to Prove

Your child will not automatically be returned by simply filing the necessary paperwork. You must be able to show:

• that your child habitually resided in one Hague Convention country before they were wrongfully removed to or retained in another Hague Convention country
• that the removal or retention of your child was in violation of your custodial rights and you were exercising those rights at the time of the removal or retention
• your child is under the age of 16.

Importantly, there must be a treaty partnership between the two Hague Convention countries. Not all signatory countries have such an agreement between them. Each country must accept the other’s accession to the Hague Convention.

Country of Habitual Residence

Establishing a child’s country of habitual residence has always been a key component of winning a Hague Convention case. However, it wasn’t until 2020 that the term was given a clear-cut definition.

In Monasky v. Taglieri, the Supreme Court held that “a child’s habitual residence depended on the totality of the circumstances specific to the case, and that an actual agreement between the parents was not necessary to establish an infant’s habitual residence.” Monasky v. Taglieri, 140 S. Ct. 719, 722 (2020)

When determining a child’s habitual residence, Justice Ruth Bader Ginsburg wrote, “courts must be sensitive to the unique circumstances of the case and informed by common sense.”

Goldman v. Goldman

In 2004, a 4-year-old boy from New Jersey unwittingly became the U.S. face of international child abduction victims.

Sean Goldman was born to parents David Goldman, a U.S. citizen, and Bruna Bianchi Goldman, a Brazilian citizen. In 2004, Bruna took Sean to Brazil, ostensibly for a two-week vacation. However, once she arrived, Bruna informed David she wanted a divorce and intended to stay in Brazil with Sean.

David filed an order under the Hague Convention seeking his son’s return to New Jersey. A lengthy court battle then ensued, stretching across five years and 5,000 miles. During this time, Bruna got remarried to a Brazilian lawyer and subsequently died giving birth to their child.

Bruna’s widower, Lins e Silva, filed for custody of Sean immediately after his wife’s death. Because e Silva falsely claimed the child had been “abandoned,” a Brazilian court granted his order. This reignited a second legal battle that wouldn’t end until December 2009, when a Brazilian Supreme Court finally ordered Sean be returned to the United States and his father:

Monasky v. Taglieri

Michelle Monasky, a U.S. citizen, met and married Domenico Taglieri in the United States in 2011. Two years later, the couple moved to Taglieri’s native Italy. At the time, neither had definite plans to return to the U.S. However, the marriage had already begun to deteriorate when Monasky discovered she was pregnant in 2014.

Shortly before their daughter was born, Monasky informed Taglieri she planned to return to the U.S. with their child as soon as she was physically able. After a March 2015 altercation between the two, Monasky went to the Italian police with her daughter and was placed in a domestic violence safe house. Once she had obtained a U.S. passport for her daughter, Monasky and the child left Italy for Ohio.

Taglieri petitioned an Italian court for custody of his child. In Monasky’s absence, the court ruled in his favor. He then requested an order from a district court that Monasky return the child to Italy, which was also granted.

Monasky argued that Italy could not qualify as her daughter’s habitual residence because there was no actual agreement between the parents to raise her there. But an Ohio district court found that the parents’ intention was for the daughter to live in Italy, where they had established a marital home “with no definitive plan to return to the United States.”

Further, the district court found that “until the day she fled her husband, Monasky “had ‘no definitive plans’ to raise her daughter in the United States.” The Supreme Court upheld the district court’s ruling.

Wrongful Removal or Retention

The removal or retention of your child is considered wrongful under the Hague Convention if it was in violation of your custodial rights and you were exercising those rights at the time of the removal or retention.

In Avendano v. Smith, a Tenth Circuit court ordered two children be returned to their habitual country of Mexico after it found that their mother wrongfully removed them to the United States. The removal was considered wrongful because:

• the children were habitual residents of Mexico
• their father was exercising his custodial rights under Mexican law
• their mother violated the father’s custodial rights when she removed the children from Mexico.

Important Note:

You do not necessarily need to present a custody order to prove that your custodial rights were violated when your child was taken from the country. The Hague Convention allows proof according to the laws of the child’s habitual residence, often by showing proof of parenthood or marriage.

The Hague Convention Does Not Resolve Custody Disputes

“The court conducting proceedings under the Hague Convention does not have jurisdiction to adjudicate the merits of the underlying custody dispute. Rather, the evidentiary hearing serves to determine whether the child’s abduction itself was unlawful and necessitates the child’s return.” Ronaldo Klitzke Filho v. De Albuquerque (D. Colo. Aug. 18, 2020)

The Hague Convention authorizes federal district courts to determine the merits of an abduction claim. It does not allow the court to consider the merits of an underlying custody dispute. 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.

This means that unlike in traditional family law courts, a judge is not necessarily required to act in the child’s best interests when ruling on a Hague Convention case.

Ronaldo Klitzke Filho v. De Albuquerque

In October 2018, Lenita Kuster Parker took her then 9-year-old daughter from their native Brazil to the United States. Parker told her ex-husband, Ronaldo Klitzke Filho, that they planned to visit Disney World and would return home to Brazil within 10 days.

However, the two did not return, and Parker never informed her ex-husband of their whereabouts. Over a year later, Klitzke tracked down his ex-wife and daughter, who were now living with Parker’s new husband in Fruita, Colorado. Klitzke then invoked the Hague Convention to have his daughter returned to Brazil, her country of habitual residence.

Parker insisted to the court that her child was “fully adjusted, happy and safe” in Colorado and “adamant that she does not want to go back to Brazil” to live with her father. Still, a Colorado district judge ultimately ordered that the child be immediately returned to Brazil “where an appropriate custody determination can be made by a Brazilian court under Brazilian law.” Ronaldo Klitzke Filho v. De Albuquerque (D. Colo. Aug. 18, 2020)

The judge wrote in his ruling:

“This Court takes no pleasure in ordering E’s removal from her home in Fruita. It is an unhappy result for Ms. Parker, her family, and the people in Fruita who have welcomed her into their community. But it is a necessary order and one that Ms. Parker brought on herself, her family, and E by an impulsive and illegal decision made in October 2018.” Ronaldo Klitzke Filho v. De Albuquerque (D. Colo. Aug. 18, 2020)

Defenses to a Petition for the Return of a Child

The Hague Convention states that a court may deny the return of an abducted child if one of the following defenses applies:

• There is a grave risk that the child’s return would expose him or her to physical or psychological harm, or otherwise place the child in an intolerable situation.
• The child objects to returning and has reached “an age and degree of maturity” at which the court can take account of the child’s views.
• More than one year has passed since the child was removed and he or she has settled into their new environment.
• The parent seeking return consented to the child’s removal or retention.
• The return would violate the fundamental principles of human rights and fundamental freedoms in the country where the child is being held.
• The parent seeking return was not actually exercising custodial rights at the time the child was removed.

Grave Risk

Most courts recognize two distinct types of “grave risk.” First, courts will refuse to return a child to a country plagued by war, famine, or disease — essentially, when a child would be at grave risk of harm even before any custody questions can be addressed.

Courts have also found grave risk of harm if the child would be exposed to serious abuse or neglect or extraordinary emotional dependence if returned to their country of habitual residence. Additionally, courts of that country must be either incapable or unwilling to adequately protect the child.

Importantly, the grave risk exception focuses on the risk of harm to the children — not to the parent:

“A showing of the petitioning parent’s physical or emotional abuse of the respondent parent is not enough, of itself, to establish a risk of abuse or harm to the children. However, where the violence directed towards the respondent parent is not sporadic or isolated and occurs in the presence of the children, such abuse might establish the ‘grave risk’ exception.” Warren v. Ryan (D. Colo. June 5, 2015)

Are the Children Settled in Their New Environment?

This exception only applies when a parent waits more than a year after the alleged wrongful removal to start the proceedings. However, the passage of time is not the only factor courts consider:

Rather, there must also be evidence that the children are in fact settled in or connected to the new environment so that, at least inferentially, return would be disruptive with likely harmful effects. The Department of State says there must be ‘substantial evidence of the child’s significant connections.’” In re Robinson, 983 F. Supp. 1339, 1345 (D. Colo. 1997)

In the above-cited case, a Colorado district court found that two children were settled into their new environment in Glenwood Springs. They had moved there from England with their mother 22 months before their father filed a petition to have them returned.

Because the children were doing well in school, involved in extracurricular activities, and close to their mother’s family, the court denied their father’s petition.

Talk to a Family Law Attorney 

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 today to begin your case assessment.