Country of Habitual Residence: The Hague Convention on International Child Abduction.

When a court in California makes an order regarding child custody and visitation, one of the first statements on the order will always be a finding that the country of habitual residence is the United States. This finding is required by the implementation of an international treaty formally known as the Hague Convention on the Civil Aspects of International Child Abduction (or “the Convention” throughout this article). It has been ratified by 101 countries around the world. A number of African, Middle Eastern, and Asian countries have not yet agreed to adopt the Convention. It was drafted in 1980 and became effective in the original ratifying countries in 1983. While President Ronald Reagan recommended in 1981 that Congress adopt the Convention into law, the United States did not ratify the Convention until 1988 with the passage of the International Child Abduction Remedies Act (“ICARA”) which translated the Convention into US law.

The Convention was drafted “to secure the prompt return of children wrongfully removed to or retained in any Contracting State” diverse from their “country of habitual residence,” and “ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” The Convention and ICARA establish a civil remedy in the United States to petition a court for an order to return a child to the country of habitual residence. Removing a child from the United States with the intent to obstruct a parent’s custodial rights is also a federal crime under the International Parental Kidnapping Crime Act of 1993.

In general, a petition to order a child returned under the Convention should be filed in the country where the child is located. In the United States, a petition may be filed in either state or federal courts. Federal District Courts have “federal question” subject matter jurisdiction under 28 U.S.C. §1331, which is concurrent with state court subject matter jurisdiction pursuant to 22 U.S.C. §9003(a). Therefore, Hague Convention petitions under ICARA may be filed in either state or federal courts.

So, what is a child’s “country of habitual residence?” As is often the case in the application of law, it depends. There is no specific test for defining habitual residence under the Convention or ICARA. However, there is a presumption that a child is not a habitual resident if the term of residency is less than one year. Courts are free to consider whatever factors are relevant. These may include the child’s age, maturity, or nationality, the existence or non-existence of current custody orders in another country, the child’s links to and circumstances in country A versus country B, the circumstances of the move between countries,  as well as the duration, regularity, conditions, and reasons for the child’s stay in a country.

“Wrongful removal” is defined by the Convention in Article 3:

The removal or the retention of a child is to be considered wrongful where –

a)         it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b)         at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

Essentially, a case under ICARA is proven when a preponderance of the evidence shows that the removal or retention of the child was “wrongful”. Once this has been demonstrated, the burden shifts to the respondent to prove whether an affirmative defense such as consent, acquiescence, or grave risk of harm applies. Additionally, children who are 16 or older are not subject to the Convention’s jurisdiction.

Whether the parents live across the street from each other, around the world, or anywhere in between, the attorneys at Dias Law Firm, Inc. are prepared to help with your child custody, visitation, or any other family law issues. Contact us today for a consultation.

By: David M. Lange, Esq.

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