International Child Abduction

1. Cases involving international abduction of children are governed by Baxter v. Baxter, __ F.3d __ (3rd Cir. 2005) [Docket No. 04-3228, Decided September 15, 2005]. This case arose under the Hague Convention on the Civil Aspects of International Child Abduction (the "Convention"), Oct. 25, 1980, 19 I.L.M. 1501 [see also, Child Abduction Homepage of the Hague Conference], and its implementing legislation, the International Child Abduction Remedies Act, 42 U.S.C. § 11601-11610 (“ICARA”).
   
   The Hague Convention has two main purposes: to secure the prompt return of children wrongfully removed to or retained in any Contracting State, and to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
   
   More broadly, the Convention’s procedures are designed to restore the status quo prior to any wrongful removal OR retention, and to deter parents from engaging in international forum shopping in custody cases. The Convention is not designed to settle international custody disputes, but rather to ensure that cases are heard in the proper court.
   
   The removal or retention of a child is “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.
   
   Any person seeking the return of a child under the Convention may commence a civil action by filing a petition in a court where the child is located [state and federal district courts have concurrent original jurisdiction over actions arising under the Convention].
   
   To obtain an order for the child’s return, the petitioner bears the burden of proving by a preponderance of the evidence that the removal or retention was wrongful under the Convention. If this burden is met and the petition is filed within the appropriate time frame, the Convention requires courts to “order the return of the child forthwith.” If the court finds wrongful removal OR retention, the burden shifts to the respondent to prove an affirmative defense to the return of the child to the country of habitual residence under the Convention. The respondent must prove the defense of consent OR acquiescence to the removal or retention by a preponderance of the evidence, OR the defense of a grave risk of harm by clear and convincing evidence.
   
   A child’s habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a ‘degree of settled purpose’ from the child’s perspective. The inquiry must focus on the child and consists of an analysis of the child’s circumstances in that place and the parents’ present, shared intentions regarding their child’s presence there.
   
   The inquiry does not necessarily end with the petitioner’s consent to the child’s removal. If the petitioner agrees to a removal under certain conditions or circumstances and contends those conditions have been breached, the court must also examine any wrongful retention claim.
   
   Although analytically distinct, the defenses of consent and acquiescence under the Convention are both narrow. The consent defense involves the petitioner’s conduct prior to the contested removal or retention, while acquiescence addresses whether the petitioner subsequently agreed to or accepted the removal or retention. The defense of acquiescence has been held to require an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time. Courts have held the acquiescence inquiry turns on the subjective intent of the parent who is claimed to have acquiesced.
   
   The affirmative defense of grave risk of harm requires proof by clear and convincing evidence. The exception has been held to apply in at least two sets of cases: “when return of the child puts the child in imminent danger . . . e.g., returning the child to a zone of war, famine, or disease . . . [and in] cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.”
   
   For the grave harm exception to apply, the claimant of that exception must cite specific evidence of potential harm to the child upon the child's return.
   
   Additional information is available from: International Child Custody Disputes -- A Summary of Relevant Statutes and Treaties, published by the U.S. Department of State.
   
   More information is available at: The Article 13(b) “Grave Risk of Harm” Exception of the Hague Convention on International Child Abduction: Its Application in a World of Terrorist Threats, Infectious Diseases and Civil Unrest -- by Wenfeng Li, Chicago-Kent Honors Scholar, Class of 2004.



2. Real life drama: Citizenship means nothing for a little girl torn from her mother.



3. Return to the Child Custody Topic



4. Return to General Topic Index

NOTE: If you believe that ANYTHING on this Webpage is misspelled, incomplete, inaccurate or downright wrong; or if a Link fails to link to its intended Webpage, please send me an Email, expressing your concern or opinion.

Also, please be mindful that THE INFORMATION AND SOURCES PROVIDED HEREIN MAY NOT BE ACCURATE OR COMPLETE -- YOU SHOULD CONSULT WITH AN ATTORNEY BEFORE RELYING ON THIS INFORMATION.  No warranties, express or implied, are made regarding the accuracy, completeness, or usefulness of the information.

Also, please be aware that the information on this Webpage DOES NOT constitute LEGAL ADVICE, which advice will only be given in PRIVATE CONSULTATION, after entering into an ATTORNEY / CLIENT RELATIONSHIP, and the execution of a WRITTEN RETAINER AGREEMENT. Also, simply sending to me an email or providing information to me does NOT create an ATTORNEY / CLIENT RELATIONSHIP   -- if you wish to retain me as your attorney or mediator, you are welcome to call me at (908)486-2200, or to Email me, to schedule an appointment.

Links

Linked sites are NOT under the control of the Paul G. Kostro, A Professional Corporation or Paul G. Kostro, Esq. (the "Authors") and the Authors are NOT responsible for the content of any linked site or any link contained in a linked site.

The Authors do NOT endorse websites, companies or entities to which links are provided.

The Authors reserve the right to terminate any link at any time.

If you decide to access any of the third party sites linked to, you do so entirely AT YOUR OWN RISK.

© Paul G. Kostro, Esq. 2005