Many couples today are made of one or two partners who originate from a place outside of California, including outside of the U.S. entirely. Upon a couple’s decision to separate, one spouse may wish to return to his or her country of origin, which is not necessarily a problem per se. However, that spouse might unilaterally do so with the parties’ children in tow—without the other parent’s consent—before any custody proceedings have taken place. In these situations, presuming certain facts explained below, the spouse who is left behind does have a remedy.
The Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”) is the primary civil law mechanism for parents seeking the return of their children from other treaty partner countries.1 Countries party to the Convention have agreed that a child who habitually resided in one Convention country, and who has been removed to or retained in another Convention country in violation of the left-behind parent’s custodial rights, shall be returned.2
The Convention does not address who should have custody of the child; a decision under the Convention re the return of a child does not bear on the merits of any custody issue.3 Rather, the convention addresses where the custody case should be heard.4
Significantly, children who otherwise fall within the scope of the Convention are not automatically removed from its protections by virtue of a court order granting custody to the alleged abductor. The country where an abducted child has been taken cannot refuse to return a child solely on the basis of a court order awarding custody to the alleged wrongdoer made by one of its own courts or by the courts of another country.5 Nor must any custody order exist to invoke the Convention; under the Convention a child will be ordered returned to the person with whom he or she was habitually resident in both pre- custody order abduction cases and violations of existing custody orders cases.
For the Convention to apply, certain requirements must be met: the child at issue must be under 16 and must have been habitually residing in a Contracting State immediately before any breach of custody or access rights. 6 If a spouse leaves the United States with a child who fits this description, the parent left behind can contact an attorney or the U.S. State Department directly to begin efforts to return the child to the United States—presuming the child has been taken to a Convention partner country.
However, the left-behind spouse must act within a year. Should one year elapse from the date of the wrongful removal or retention of the child, the Convention no longer applies. 7 Thus, the left-behind spouse in these situations should submit a Hague application immediately. 8 If the child is in a Convention partner country, and the left-behind parent files a Hague application with
the U.S. State Department, the State Department will then monitor developments concerning the case through the Foreign Central Authority. 9 The Central Authority helps locate abducted children, encourage amicable solutions to these cases, and facilitate the safe return of children as appropriate. 10
Once a child is returned to the United States, the parties can then undergo proceedings to determine their outstanding custody dispute. 11
1 https://travel.state.gov/content/childabduction/en/from/hague-app.html.
2 https://travel.state.gov/content/childabduction/en/from/hague-app.html.
3 See Convention Article 19, available at https://www.hcch.net/en/instruments/conventions/full-text/?cid=24.
4 https://travel.state.gov/content/childabduction/en/from/hague-app.html.
5 See Convention Article 17, available at https://www.hcch.net/en/instruments/conventions/full-text/?cid=24.
6 See Convention Article 4, available at https://www.hcch.net/en/instruments/conventions/full-text/?cid=24.
7 See Convention Article 12, available at https://www.hcch.net/en/instruments/conventions/full-text/?cid=24.
8 The application is available online at https://eforms.state.gov/Forms/ds3013.pdf.
9 https://travel.state.gov/content/childabduction/en/from/how-state- can-help.html.
10 https://travel.state.gov/content/childabduction/en/legal/law-and- regulations/hague.html
11 https://travel.state.gov/content/childabduction/en/from/hague-app.html.