How the Hague Convention Impacts Child Custody Cases

In an increasingly interconnected world, the dynamics of family life are more global than ever before. With international marriages and the mobility of families across borders becoming more common, the complexities surrounding child custody disputes have taken on an international dimension. This is where the Hague Convention on the Civil Aspects of International Child Abduction plays a vital role.

What Is the Hague Convention?

The Hague Convention on Child Abduction, formally titled the Hague Convention on the Civil Aspects of International Child Abduction, is a multilateral treaty designed to address international parental child abduction. In essence, it establishes a framework for the prompt return of children wrongfully removed from their habitual residence country (the country where they normally live) by a parent. The convention prioritizes the child's best interests and discourages litigation over custody in multiple jurisdictions.

Member countries are obligated to cooperate with each other to facilitate the return of abducted children. This cooperation includes locating the child, securing their welfare, and expediting their return. The convention also discourages courts in the receiving country (the country the child is taken to) from making custody determinations unless certain exceptions apply. This helps to prevent the abducting parent from gaining a legal advantage through their actions.

As of April 2024, 91 countries have agreed to join the Hague Convention. The U.S. Department of State keeps an updated list of countries involved in the convention; you can review the list here.

Exceptions that Can Lead to a Denied Return

As we mentioned, the courts in the receiving country can make exceptions when it comes to returning the children. Exceptions may be made in cases involving the following instances:

• The child is at risk of physical or psychological harm if returned.
• The child is old enough to object and does not wish to return.
• The parents never had a formal custodial arrangement.
• The return would violate human rights principles and the fundamental freedoms in the country where the child was taken.
• The child has been in the receiving country for over a year and has become “settled” in their new environment.
• The parent seeking return consents to the child staying in the receiving country.

Is Your Child at Risk for International Abduction?

International parental child abduction is a harrowing experience for any parent. While the Hague Convention offers a path to recovering abducted children, prevention is always the best course. During child custody cases involving an international element, identifying potential risks of abduction is crucial.

Several factors raise red flags for potential abduction. These include:

• Non-custodial parent's citizenship. Does the non-custodial parent hold citizenship in another country? Strong ties to their home country, especially emotional or cultural ones, could increase the risk.
• Previous threats or attempts. Has the non-custodial parent ever threatened to take the child abroad, expressed dissatisfaction with the current custody arrangement, or shown a disregard for court orders?
• Limited family ties in the child's current country. Does the non-custodial parent have a weak support network in the child's current country? This could make them more likely to consider leaving.
• Financial resources. Does the non-custodial parent have the financial means to support themselves and the child abroad?
• Child's travel documents. Does the non-custodial parent have access to the child's passport or other travel documents?

How Can You Prevent International Abduction?

Be transparent with your attorney about any concerns you have regarding potential abduction. Provide them with detailed information about the non-custodial parent's background, family ties, and financial situation. Based on the identified risk factors, your attorney can advise on legal measures to protect your child.

This may include:

• Passport restrictions. You can request a court order preventing the issuance or renewal of the child's passport without your consent.
• Notice requirements. The court can require the non-custodial parent to notify you in advance of any planned travel outside the country.
• Hague Convention provisions. You might also consider adding specific clauses in the custody agreement referencing the Hague Convention and its application in case of wrongful removal or retention of the child.

We Are Here to Help

Several McKinley Irvin attorneys are experienced in custody cases where international abduction might occur or has already happened. If you are involved in a custody case where international abduction is an issue, we invite you to contact us and meet with an attorney who can advise you on the protections and options available to you.