An international law, called the Hague Convention, governs the custody of children across international borders and provides a procedure to help get abducted children home quickly. The Convention doesn’t provide an enforcement mechanism for dealing with child abduction—rather, it’s a collection of rules that countries must follow when a child has been abducted.
Child abduction doesn’t always mean taking a child from one place to another (removal); it can also mean keeping a child in another country after a legitimate period of custody or visitation (wrongful retention). To meet the definition of child abduction under the Hague Convention, all of the following must be true:
1. The child must be habitually resident in the country of origin—in other words, the country where the child was living before being removed. While this seems like a clear rule, it can become muddy when a child is kept in another country long enough to create a habitual residence there.
2. The move has to go against someone else’s custody rights. Usually, this is a parent with a court order. If the court case is still pending and there’s no final decision about custody, then the Hague Convention considers the court to have “rights of custody,” so moving outside of the court’s jurisdiction is considered abduction.
3. The parent with custody rights must be exercising the rights at the time of the move. This just means the parent must spend some amount of time with the child—there’s no requirement of how much, but a parent who has moved away and not been in contact with a child couldn’t bring a Hague Convention action.
The United States and approximately 85 foreign states and countries are members of the Hague Convention. Each country must designate its own “Central Authority” that deals with Hague issues; in the United States, it’s the State Department. This is the agency you would contact if you fear or are in the midst of an international abduction, or want more information about it. The contact information is:Office of Children’s Issues (CA/OCS/CI)U.S. Department of State, SA-292100 Pennsylvania Ave. NW, 4th FloorWashington, DC 20037Telephone: 202-736-9130Fax: 202-736-9132www.travel.state.gov/childabduction
If your children are wrongfully abducted to a country that participates in the Convention, you can expect that country to cooperate with the United States’ efforts to locate your children and return them to their home.
The Hague Convention does not concern itself with the child’s best interests. Instead, it regulates which country has the jurisdiction—meaning the right to decide—over where the child should live. The rules say the deciding country must determine the country where the child was habitually resident, and either return or allow the child to remain there. If the child is returned to a country of habitual residence, the parent who removed the child can still argue there that it’s not in the child’s best interests to stay there, and the courts there may give the parent permission to relocate later on—but those courts have the right to decide. The fact that Hague rules only call for a child to end up in the country of habitual residence can lead to some very surprising results.
Excerpted from Nolo’s Essential Guide to Child Custody and Support, by Emily Doskow.