Divorce rates continue to rise and our world grows smaller with each leap in technology making international travel commonplace. With these societal changes, a dramatic increase has been seen in child abductions and child kidnappings by custodial and non-custodial parents. The goal of the abductor in such child abduction and parental kidnapping cases is to frustrate court proceedings regarding custody. Political and judicial differences between countries as well as differing societal views on men's and women's role in society make child abduction cases difficult at best. To address growing concerns regarding child abduction, many countries have adopted a treaty designed to expedite the return of children wrongfully removed to their home country. This treaty is called the Hague Convention.
The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction seeks to curb international abductions of children by providing judicial remedies to those seeking the return of a child who has been wrongfully removed or retained. The Convention provides a simplified procedure for seeking the return of a child to its legal custodian. However, there are limitations to the treaty's application. The Convention applies only between those countries that have adopted it as "Contracting States." Under the treaty, each subscribing state sets up a "Central Authority" to serve as a liaison with the other Contracting States. An aggrieved parent may then file an application with either the Central Authority of the home country or the country where the child is located. Upon application, the Central Authority must take all appropriate measures to discover the whereabouts of the child, prevent harm to the child, protect the interests of the lawful custodian or applicant, and secure the voluntary return of the child.
If a judicial proceeding is initiated, the court must act expeditiously. Article 11 gives the applicant or the Central Authority of the Requested State the right to demand a statement from the court detailing the reasons for delay if a decision has not been made within six weeks from the commencement of proceedings. There need not be a custody decree in effect in order to trigger the return provisions under the Convention.
The elements of a cause of action for the return of an abducted child under the Hague Convention on the civil aspects of child abduction and International Child Abduction Remedies Act are that:
- child was habitually resident of the country from which the child was abducted;
- petitioning parent had either sole or joint rights of custody of the child either through a custody order or du jure (by operation of law), and
- at time of wrongfully removal, petitioning parent was exercising those rights.
International Child Abduction Remedies Act, Section 4 (e)(2)(A), 42 U.S.C. Section 11603 (e)(2)(A).
The burden of proof in proving the application of the Hague Convention falls upon the Petitioning party and must be shown by a preponderance of the evidence. If the Court determines that a Petitioning party has proved the criteria for Application of the Hague Convention, the burden of proof tips to the opposing party. The Responding parent then may still prove that an affirmative defense prevents the return of the child under the Hague Convention. 42 U.S.C. Section 11603 (e)(2)(A)(b); Hague Convention Art. 12, 13(b) and 20. See also Friedrich v.Friedrich, 983 F.2d 11396 (6th Cir. 1993).
Affirmative defenses under the Hague Convention include the claim that the parents seeking relief under the Hague Convention was aware of the Child's presence in the new country and failed to act for more than a year. Additional defenses that may be raised include claims that the petitioning parent was not exercising any custodial rights, by his/her own choice, when the child was removed from the home country. Finally, Court's may refuse to return a child to a Petitioning parent and that child's home country under the Hague Convention if it finds that "there is a grave risk that if returned child would be expose to physical and psychological harm or otherwise placed in to an intolerable situation." It is significant that the 8th Circuit Courtís decision in Rydder v. Rydder, F.3d 369, 373(8th cir.1995), suggests that "specific evidence of potential harm" to a child as a result of separation from a primary care giver may constitute grave risk of harm under the Hague Convention. In that case a mother relied upon several authorities "that recognized that separating a child from his or her primary care giver creates a risk of psychological harm."
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