Proceedings under the International Child Abduction Remedies Act Hague Convention (hereinafter referred to as: “ICARA”) and ICARA are not the same as child custody cases. Applications under the Hague Convention and the ICARA are to force the return of a child to his or her “country of habitual residence”. The purpose is to allow the courts of that country to determine questions relating to the custody of the child. The Hague Convention specifically provides under Article 3 that to prevail on a child abduction claim a petitioner must show:
- The child was habitually a resident in one nation and had been removed or retained in a different country;
- The removal or retention was in breach of the petitioner’s custody rights under the law of the country of habitual residence; and
- The petitioner was exercising those rights at the time of the removal or retention.
The petitioner must establish these requirements by a preponderance of the evidence. If a petitioner can show the wrongful removal, the return of the child is required. However, there are defenses to the return of the child. Those defenses are:
- The proceeding was commenced in the responding state more than one year after the wrongful removal or retention; and “the child is now settled in his or her new environment”;
- The party now seeking return of the child was not actually exercising his rights at the time of the wrongful removal or retention of the child; or there was consent to the removal; or there was acquiescence to the retention;
- The return of the child would place him or her in an “intolerable situation”; or the child objects to being returned and has reached an age of maturity that is appropriate to take account of his views.
- The human rights and fundamental freedom would be abridged if the return was permitted.
International child removal proceedings have become more common as more members of the public have obtained the financial ability to fly to foreign countries. These cases are handled in the United States District Courts. They are not handled in states courts. The statute as you can see is complicated and there are significant issues that must be proven and/or defenses which must be overcome to be successful in these cases.
Elliot S. Schlissel, Esq. has been representing parents in both domestic and international child custody cases for more than 30 years. He can be reached at 800-344-6431 or e-mailed at Elliot@sdnylaw.com.