The 1980 Hague Convention on the Civil Aspects of Child Abduction (“1980 Convention”) creates legal rights and procedures for dealing with international child abduction and parental kidnapping. Simply put: this agreement seeks to lessen the effects of international child abduction and parental kidnapping through access to or return of the child. Currently, there are 74 partners to the 1980 Convention, including the United Sates. (You can find a list of 1980 Convention treaty partners here.)
How does the 1980 Convention on Civil Aspects of Child Abduction work?
Once a parent abducts their child, the left-behind parent must exhaust all available remedies within her country for the enforcement of her custodial rights. After the left-behind parent does so, she can file a 1980 Convention application with her country's Central Authority seeking return of the abducted child. Before she can file the application, the following conditions must be met:
- Each parent is currently residing in one of the 74 partner countries and the 1980 Convention must be in force between the two countries
- The child habitually resided in one of the parent's countries, before the other parent wrongfully removed or retained the child
- The retention or removal of the child must be in violation of the left-behind parent's custodial rights and occurred during the exercise of these rights or the left-behind parent would be exercising her custodial rights if the traveling-parent did not remove or retain the child; and
- The child is under 16 years-of-age at the time of filing
The ultimate determination of the application will be the child's habitual residence and whether the child should be returned to the country of the left-behind parent or remain with the other parent. However, there are certain exceptions where a country may refuse to return an abducted child:
- Returning the child to his country of habitual residence creates a grave risk of exposure to physical or psychological harm or an otherwise intolerable situation
- The child objects to being returned (Note: the court must consider the age and degree of maturity of the child)
- Returning the child to his country of habitual residence violates the fundamental human rights and freedoms of his current country of residence
Recent examples of the 1980 Convention on Civil Aspects of Child Abduction at work:
In the 2012 October Term and the 2013 October Term, the Supreme Court of the United States (SCOTUS) dealt with two 1980 Convention cases: Chafin v. Chafin, 133 S. Ct. 1017, 185 L. Ed. 2d 1 (2013) and Lozano v. Alvarez, 134 S.Ct. 1224 134 S. Ct. 1224, 188 L. Ed. 2d 200 (2014). While these SCOTUS decision center on technical aspects of legal procedure (appeal and equitable tolling), each still offers great insight into the type of factual situations resulting in a 1980 Convention action: families spread over countries and oceans.
In today's world multi-jurisdictional custody disputes are becoming the new normal. As the world grows smaller and travel becomes easier, family court issues will continue to increase in difficulty and complexity. As a result, it is important that if you are faced with such an issue you have the right attorney to guide you. Here at the Stevens Firm, P.A., we are familiar with dealing with multi-jurisdictional custody disputes and are able to provide the guidance such a dispute requires.