| Q:What is the Hague Convention?
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| | jurisdiction can make the appropriate
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| A.The Hague Convention is a term used to
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| | orders regarding the child. The court in
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| cover a number of international treaties
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| | the jurisdiction that a party is asking
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| on different areas of the law, ranging
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| | to order the return of a child is not
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| from commercial issues, legal procedures
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| | making a custody decision at all; rather,
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| and money judgments to international
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| | it is just sending the child back to the
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| child abduction and adoption. There are
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| | child's residence where the proper court
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| many Conventions, each covering a
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| | can make further rulings. Following a
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| different topic and having its own title.
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| | child's return, there is nothing in the
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| This Q&A publication is concerned
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| | Convention that prevents the proper court
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| with the Hague Convention on the Civil
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| | in the child's state of habitual
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| Aspects of International Child Abduction,
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| | residence from thereafter giving one
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| first created October 25, 1980 and since
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| | party or the other custody, visitation or
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| ratified by the U.S. and many, but not
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| | even from allowing one party or the other
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| all, countries.
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| | to take the child out of the jurisdiction
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| Q:What is the purpose of the Hague
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| | again (albeit this time with the proper
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| Convention on the Civil Aspects of
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| | court permission). Note that if custody
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| International Child Abduction?
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| | proceedings are occurring in the country
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| A:The Hague Convention on the Civil
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| | to which the child has been wrongfully
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| Aspects of International Child Abduction
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| | removed/retained, those proceedings are
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| is an attempt to deal with situations
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| | to be put on hold until a decision under
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| where a person has wrongfully taken a
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| | the Convention is made.
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| child(ren) from one country to another or
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| | Q:What are possible defenses to having a
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| keeps them in a country without the other
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| | court order the return of a child?
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| parent's permission or legal authority to
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| | A:There are several possible defenses
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| do so. In other words, this Convention
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| | that may apply to a particular case,
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| concerns wrongful removal/retention from
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| | although the different courts in various
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| the child's state of habitual residence
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| | countries have interpreted the Hague
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| (country of residence).
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| | Convention on the Civil Aspects of
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| Q:What is the responsibility of each
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| | International Child Abduction somewhat
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| country that signed the Hague Convention
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| | differently. Generally speaking, the
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| on the Civil Aspects of International
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| | Hague Convention allows the following
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| Child Abduction?
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| | defenses:
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| A:Each signatory to the treaty agreed to
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| | 1.the person, institution or other body
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| set up a Central Authority to organize
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| | having the care of the person of the
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| each case and act as a clearinghouse for
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| | child was not actually exercising the
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| international child abduction issues. For
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| | custody rights at the time of removal or
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| example, the United States Department of
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| | retention, or had consented to or
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| Justice was designated the U.S. Central
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| | subsequently acquiesced in the removal or
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| Authority and, in turn, delegated much of
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| | retention;
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| that authority to the National Center for
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| | 2.there is a grave risk that his or her
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| Missing and Exploited Children (NCMEC).
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| | return would expose the child to physical
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| Some countries signed on to the treaty
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| | or psychological harm or otherwise place
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| but have not put much funding nor effort
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| | the child in an intolerable situation;
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| into implementation. Each government has
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| | 3.the judicial or administrative
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| a great deal of power over cases under
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| | authority may also refuse to order the
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| the Hague Convention on the Civil Aspects
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| | return of the child if it finds that the
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| of International Child Abduction once
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| | child objects to being returned and has
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| transferred within their borders. The
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| | attained an age and degree of maturity at
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| referring country, of course, has no real
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| | which it is appropriate to take account
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| authority at all and therefore one must
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| | of its views;
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| rely on the individual government where
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| | 4.The return of the child under the
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| the child has been taken to use that
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| | provisions of Article 12 may be refused
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| power. Often, a diligent attorney working
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| | if this would not be permitted by the
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| on a child abduction case is the key to
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| | fundamental principles of the requested
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| having a child returned.
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| | State relating to the protection of human
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| Q:What resources are available to the
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| | rights and fundamental freedoms.
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| Central Authority?
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| | Q:Are there timeframes that apply under
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| A:Each country is very different in the
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| | the Hague Convention on the Civil Aspects
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| resources they apply to Hague cases,
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| | of International Child Abduction?
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| ranging from almost nothing to highly
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| | A:A number of them, including:
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| sophisticated and coordinated systems. In
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| | 1.Children who have attained the age of
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| the U.S., for example, the United States
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| | 16 years are not covered by the
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| relies on the National Center for Missing
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| | Convention.
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| and Exploited Children to coordinate
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| | 2.If a child has been wrongfully removed
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| efforts among volunteer attorneys
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| | for less than one year, the child's
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| throughout the United States, Interpol,
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| | removal is to be ordered forthwith under
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| the FBI and also local police where
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| | the Convention.
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| abducted children are found. In addition,
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| | 3.If a child has been wrongfully removed
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| the National Center maintains contact
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| | for more than one year, the child should
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| with the requesting parent and their
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| | still be returned but an exception is
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| representatives.
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| | allowed -a court may choose not to return
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| Q:How does a case under the Hague
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| | the child if there is evidence that the
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| Convention on the Civil Aspects of
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| | child is settled in his/her new
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| International Child Abduction proceed?
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| | environment.
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| A.A party can go in one of at least two
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| | 4.Courts should act quickly in such cases
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| procedural directions to start a case.
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| | but if one has not reached a decision
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| One, the party may independently find and
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| | within six weeks from the date
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| retain an attorney in the jurisdiction
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| | proceedings commenced, an applicant or
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| where the child is found. The other
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| | the Central Authority of the requested
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| method is for the party from whom the
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| | State may officially request a reason for
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| child was wrongfully removed may make a
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| | the delay.
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| direct application to the Central
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| | 5.The Convention only applies to wrongful
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| Authority in either the child's habitual
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| | removals/retentions occurring after the
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| country of residence or the country's
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| | treaty became effective between the
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| Central Authority in which the child is
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| | involved countries.
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| found to seek assistance. The Central
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| | 6.Generally, the Convention requires that
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| Authority then coordinates with an
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| | countries act without delay in child
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| attorney or other proper entities in the
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| | abduction cases that fall within its
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| proper jurisdiction. Following this, the
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| | parameters.
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| normal procedure is to have the attorney
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| | Phoenix office:
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| file paperwork with the local court
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| | 3030 N. Central Ave., Ste. 705
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| requesting that the court (1) order local
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| | Phoenix, Arizona 85012
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| law enforcement or another entity to pick
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| | Ph: 602-631-9555 Fx: 602-631-4004
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| up the child, (2) set a hearing, and (3)
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| | Goodyear office:
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| order the child returned to the proper
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| | 1616 N. Litchfield Rd., Ste. 240
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| custodian and country. Once the child is
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| | Goodyear, Arizona 85338
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| secured, the court holds the hearing
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| | Ph: 623-344-7880 Fx: 602-631-4004
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| quickly thereafter to review the facts of
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| | Visit our website:
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| the case and decide whether returning the
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| | Check out our web log:
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| child is proper. It is not necessary for
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| | Disclaimer: Wilcox & Wilcox, P.C. and
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| the parent from whom the child is
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| | its principles, agents and/or
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| abducted to attend the hearing but it is
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| | representatives, make no guarantees or
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| often more convincing for them to testify
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| | representations as to the accuracy or
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| in person there. Additionally, it is nice
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| | currency of any information herein
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| for that parent to be present because
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| | contained. Providing this brochure does
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| courts, when warranted, will normally
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| | not establish an attorney-client
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| order an immediate return following the
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| | relationship. To create such
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| hearing and it is often best for the
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| | relationship, both the attorney and
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| parent to be there to comfort the child
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| | potential client must sign a written fee
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| and accompany the child home.
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| | agreement. This information is meant only
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| Q:How does the Hague Convention on the
| |
| | as general information, may not apply to
|
| Civil Aspects of International Child
| |
| | your case specifically and is not meant
|
| Abduction relate to custody?
| |
| | to be relied upon for purposes of taking
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| A:The short answer is that it really does
| |
| | legal action. You should contact an
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| not relate to custody. One purpose of the
| |
| | attorney in person for further and
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| Convention is to simply return children
| |
| | specific information. Our family law
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| to their state of habitual residence so
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| | attorneys are licensed in Arizona only.
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| that a court there with proper
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| | Copyright © Wilcox & Wilcox, P.C.
|
