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