As international marriages have become more common, so has the incidence of international child abduction. This occurs when a parent, or sometimes another relative or acquaintance, takes a child from their country of habitual residence without authority to do so. If your child has been illegally taken, you may have remedies available under the Hague Abduction Convention and/or federal law.
The Hague Abduction Convention is a treaty between the United States and about 90 other countries that are treaty partners, providing a framework for these countries to resolve international child custody disputes. The International Child Abduction Remedies Act (ICARA) is a federal statute that implements the convention. ICARA applies to incoming child abduction cases from treaty partners when a child under the age of 16 is removed or retained from his or her habitual residence and is present in the United States. The Hague Convention applies when the child has been removed from the United States or is retained in another country and the parent in that country refuses to allow the child to return, which constitutes a wrongful retention. ICARA allows parents to file a legal claim in a local court seeking to compel the child’s safe return.
A parent filing a Hague petition must establish the following elements:
- The child was habitually a resident of one country and has been removed to or retained in a different country.
- The removal or retention is against the petitioner’s custody rights in the country of habitual residence.
- The petitioner was actively exercising their custody rights and abiding by their custody agreement at the time of the abduction.
- The child is under the age 16.
These four elements make out a prima facie case of wrongful removal or retention that can support an order for the return of the child. However, the other parent has the right to put forth defenses, such as the following:
- The petitioner was not exercising their custody rights.
- The petitioner had consented to or acquiesced in the removal or retention.
- The petitioner waited more than a year from the time of wrongful removal or retention to file their case in the foreign country, as opposed to merely filing a Hague application.
- The child is old enough and mature enough to knowingly object to being returned, and that it is appropriate to heed that objection.
- There is grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
- Returning the child would subject the child to violation of basic human rights and fundamental freedoms.
For you to pursue the return of your child, both countries at issue must be signatories to the Hague Abduction Convention and treaty partners. If your child was abducted to a country that has not acceded to or ratified the convention, then you may have other remedies under the law of country where the child is located. An experienced international child abduction attorney will be able to tell you the law and procedures that apply in your situation.
The Law Offices of Lawrence S. Katz in Miami, Florida has succeeded in having abducted children returned to more than 50 countries by using ICARA and the convention. Call our office at 786-304-1180 or contact us online to arrange a consultation.