FindLaw KnowledgeBasePublished: 2011-12-15
The Hague Convention on the Civil Aspects of International Child Abduction is a treaty that applies to cases of international child abduction, where a parent absconds with his or her child to another country in violation of the “rights of custody” of the other parent. The objective of the Hague Convention is to return the “wrongfully removed” child to its nation of origin so that any child sharing dispute can be determined in the child’s country of “habitual residence.” The Hague Convention, however, only applies to countries that have signed it.
Purpose and Procedure of The Hague Convention Treaty
The primary purpose of the Hague Convention is to preserve the “child custody” arrangement that existed before the alleged “wrongful removal” of the child. The Hague Convention therefore seeks to discourage parents who disagree with a child custody arrangement from moving across international borders to gain a more favorable custody arrangement in a different jurisdiction.
The Hague Convention is not an extradition treaty but a treaty that provides a civil remedy. The Hague Convention requires a court to return a child to its nation of origin if it has been “wrongfully removed” to another nation. Generally, the removal of the child is deemed “wrongful” if the removal breaches the “rights of custody” of the parent who was left behind. “Rights of custody” are interpreted liberally and even encompass “rights of visitation” given the appropriate circumstances. The treaty requires the return of the “wrongfully removed” child to the country where the child was a “habitual resident.” The term “habitual resident” is generally thought of as the child’s usual residence or where the child resided prior to the removal.
There are certain defenses to the return of a “wrongfully removed” child, including circumstances where a parent does not exercise his or her “rights of custody” before the time of removal, circumstances that present harm to the child, circumstances where more than one year have elapsed since the “wrongful removal,” or circumstances where the parent “acquiesces” to the removal. Enforcement of the Hague Convention and non-participating countries also present problems to the return of a child who has been “wrongly removed.”
Enforcement and Non-Signatories
Though a country may sign and ratify an international treaty, the country may not honor the treaty for a number of reasons, including having an inefficient legal system, constitutional obstacles to its enforcement, etc. If a country is not a signatory of the Hague Convention, it has no legal responsibility to abide by the treaty. One of the most infamous non-signatories of the Hague Convention is Japan. Many Americans including military service members have children who have been allegedly “wrongfully removed” to Japan by former spouses or partners.
Parents who reside in a signatory country and whose children have been removed to a non-signatory country may have to resort to their home country's criminal laws, extradition treaties and diplomatic channels for resolution.