Litigating International Child Abduction Cases under the Hague Abduction Convention

345 Pages·2012·3.74 MB·English

Litigating International Child
Abduction Cases
Under the Hague Convention
Prepared by

2012
National Center for Missing & Exploited Children®
Charles B. Wang International Children’s Building
699 Prince Street
Alexandria, VA 22314-3175
1-800-THE-LOST®
(1-800-843-5678)
®
Copyright ©2012 Kilpatrick Townsend & Stockton LLP and the National Center for Missing & Exploited Children.
Although this Manual is protected by copyright laws and treaties, you may make copies for use with clients but not for
resale or for other commercial purposes. If you give a copy to anyone, it must be in its original, unmodified form, and
must include all attributions of authorship, copyright notices, and republication notices. National Center for Missing &
® ®
Exploited Children and 1-800-THE-LOST are registered service marks of the National Center for

Missing & Exploited Children.
This Manual is provided for informational purposes only and does not constitute legal advice or an opinion on specific
facts. This Manual may not be correct, complete, and/or up-to-date, so recipients should use this Manual only as a
starting point for their own independent research. The publisher is distributing this Manual with the understanding that
neither it nor the authors are engaged in rendering legal or other professional services. If legal advice or other expert
assistance is required, the services of a competent professional should be sought.
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NCMEC INTERNATIONAL CHILD ABDUCTION TRAINING MANUAL
TABLE OF CONTENTS

Page

I. INTRODUCTION...............................................................................................................1
A. The Hague Convention On The Civil Aspects Of International Child
Abduction.................................................................................................................1
B. The Role Of The State Department & The National Center for Missing
And Exploited Children...........................................................................................3
C. Overview Of A Hague Convention Case.................................................................5
II. ESTABLISHING A PRIMA FACIE CASE FOR RETURN...............................................9
A. Habitual Residence Prior To Wrongful Removal Or Retention Was In A
Foreign Country.....................................................................................................11
B. Removal Or Retention Was Wrongful Because Custody Rights Were
Breached................................................................................................................19
1. Breach Of Rights Arising By Operation Of Law.......................................21
2. Breach Of Rights Arising By Judicial Or Administrative Decrees
Or Agreement Of The Parties....................................................................23
C. Petitioners Must Be Exercising Their Custody Rights At The Time Of
Removal.................................................................................................................25
D. The Children Must Be Under The Age Of Sixteen................................................26
E. If True, Prove That The Petition Was Filed Within One Year Of
Wrongful Removal.................................................................................................28
1. Determining When Removal Or Retention Became Wrongful.................29
2. Determining When Proceedings Were Commenced.................................32
3. Tolling Of The One-Year Period...............................................................32
III. THE AFFIRMATIVE DEFENSES OF ARTICLES 12, 13, AND 20..............................37
A. The Article 12 Well-Settled Defense: The Child Has Become Well-
Settled In The New Surroundings..........................................................................39
B. The Article 13 Consent Or Acquiescence Defense: Petitioners Consented
To Or Acquiesced In The Removal Or Retention.................................................45
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1. Authorization To Travel............................................................................46
2. Words And Actions Of Left-Behind Parents.............................................47
3. Nature Of Children’s Removal..................................................................47
4. Filing Of Hague Convention Petition........................................................48
5. Other Considerations.................................................................................48
C. The Article 13 Grave Risk Defense: There Is A Grave Risk That The
Child Would Be Exposed To Physical Or Psychological Harm Or An
Intolerable Situation If Returned...........................................................................49
1. Grave Risk of Physical Or Psychological Harm........................................50
2. Intolerable Situations.................................................................................55
3. Undertakings..............................................................................................56
D. The Article 13 Mature Child Objection To Removal Defense..............................60
E. The Article 20 Public Policy Defense: Returning The Child Would
Violate Public Policy.............................................................................................64
F. The Often-Used But Invalid Defense: Best Interests Of The Child......................65
IV. PROCEDURAL ISSUES...................................................................................................68
A. Procedures For Filing And Litigating A Hague Convention Return Case............68
1. Choice Of Court - Whether To File In Federal Or State Court.................68
2. The Petition For Relief Under The Hague Convention.............................70
(a) Preparation of the Complaint.........................................................70
(b) Provisional Remedies.....................................................................72
(i) Temporary Restraining Orders/Preliminary
Injunctions..........................................................................72
(ii) Obtaining Custody of the Child.........................................74
(iii) Guardian Ad Litem Appointments.....................................76
(c) Notice and Service of the Hague Convention Petition..................78
(d) Discovery.......................................................................................79
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(e) Evidentiary Issues..........................................................................80
(f) Witnesses (Including Experts).......................................................81
3. Article 16 Stay Of Pending State Court Action.........................................82
4. Checklist Of Activities...............................................................................84
B. Appeals..................................................................................................................86
1. Standard Of Review...................................................................................86
2. If The Trial Court Stays Its Order Returning The Child............................86
3. Appeals May Be Mooted By The Child’s Return......................................88
(a) Return of the Child Moots an Appeal............................................89
(b) Return of the Child does not Moot an Appeal...............................90
4. Post-Appeal Considerations.......................................................................91
C. The Logistics Of Handling A Hague Convention Case.........................................91
1. Introduction................................................................................................91
2. The Investigation.......................................................................................92
3. Initial Conversation/Interview With Clients..............................................93
4. Checklist Of Items To Discuss During The Client Call For
Retention Of Counsel.................................................................................96
5. Filing The Petition/Communicating With The Court................................98
6. Perfecting Service On The Abducting Parent............................................99
7. Travel And Accommodations..................................................................101
8. Pending The Second Hearing...................................................................103
9. Court Order..............................................................................................104
10. Mediation.................................................................................................104
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V. THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT
ACT..................................................................................................................................106
A. When The Hague Convention Does Not Apply..................................................107
B. Strategic Alternative To The Hague Convention.................................................108
C. Supplement To The Hague Convention...............................................................109
VI. RIGHTS OF ACCESS.....................................................................................................111
VII. PRACTITIONERS’ CONCLUDING THOUGHTS: WHAT ABOUT THE
IMPACT ON THE CHILD?............................................................................................115
EXHIBIT A— LIST OF CITED CASES BY CIRCUIT OF ORIGIN..........................A-1
EXHIBIT B—HAGUE CONVENTION.........................................................................B-1
EXHIBIT C—SIGNATORY COUNTRIES TO HAGUE CONVENTION...................C-1
EXHIBIT D—INTERNATIONAL CHILD ABDUCTION REMEDIES ACT............D-1
EXHIBIT E—PUBLIC NOTICE 957.............................................................................E-1
EXHIBIT F—PEREZ-VERA REPORT..........................................................................F-1
EXHIBIT G—ROBLES ANTONIO v. BARRIOS BELLO ORDERS..............................G-1
EXHIBIT H—SAMPLES OF COMMON HAGUE CASE PLEADINGS
AND FILINGS........................................................................................H-1
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I. INTRODUCTION
A. THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD
ABDUCTION.
The purpose of the first Manual, issued in 2007, was to provide attorneys with a road map
for litigating international child abduction cases. Since the publication of the first Manual, the
United States Supreme Court issued its first opinion concerning the Hague Convention on the
Civil Aspects of International Child Abduction, and more parties have sought to resolve
international abduction matters through alternative methods, including mediation. This updated
Manual not only provides a general understanding of the law and its recent developments, but
also describes practical considerations to aid attorneys in advocating for their clients. Finally, it
raises issues and makes suggestions to ameliorate the potentially negative impact that these
proceedings may have on the children involved in such disputes.1 As is evident in this Manual,
representing a client in an international abduction matter requires a balancing of various
considerations.
The Hague Convention on the Civil Aspects of International Child Abduction (the
“Hague Convention”) (attached as Exhibit B),2 is a treaty between multiple signatory countries
wherein the countries agree to cooperate in returning children to their home country for custody
proceedings. The United States assisted in drafting the Hague Convention and became a
signatory in 1981. Eighty-seven countries throughout the world are parties to the Hague

1 For ease of reference, the cases cited throughout this Manual are included in a list (attached as Exhibit
A) organized by circuit of origin.
2 October 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 22514 (the “Hague Convention”). The Hague
Convention was the product of the final act of the Fourteenth Session of the Hague Conference on Private
International Law, agreed upon in The Hague on October 25, 1980. At this session, each signatory
country agreed to submit the Hague Convention draft to their governments. See Hague Conference on
Private International Law: Final Act, reprinted in 19 I.L.M. 1501 (Am. Soc’t Int’l Law 1980).
NCMEC TRAINING MANUAL Page 2
Convention, including most recently Russia, Morocco, and Singapore. The signatories to the
Hague Convention that are recognized by the United States are listed in Exhibit C.3
The United States Congress enacted the International Child Abduction Remedies Act
(“ICARA”)4 as the implementing legislation for the Hague Convention. A copy of ICARA, as
currently codified, is attached as Exhibit D. ICARA establishes the Hague Convention as the
law of the United States, provides definitions, sets forth jurisdiction, and addresses certain details
regarding how the United States will enforce the provisions of the treaty. ICARA explicitly
states that its provisions are in addition to, and not in lieu of, the Hague Convention.5
The State Department’s analysis of the Hague Convention is set forth in a document
known as Public Notice 957 (attached as Exhibit E).6 In addition, the history and commentary
by the official reporter at the Fourteenth Session of the Hague Convention on Private
International Law is set forth in a document commonly known as the “Perez-Vera Report.” A
copy of the Perez-Vera Report is attached as Exhibit F.7 Both Public Notice 957 and the Perez-
Vera Report provide insight into the purposes and procedures of the Hague Convention.

3 Although there are 87 contracting countries to the Hague Convention, at this time, the United States
recognizes only 68 countries as “partner countries” for purposes of resolving international child
abductions under the Hague Convention.
4 Pub. L. No. 100-300, 102 Stat. 437 (1988) (“ICARA”). ICARA is codified at 42 U.S.C. §§ 11601-
11611. ICARA was created to deal with the international abduction of children and to allow a petitioner
to assert his or her rights in exigent circumstances. See Distler v. Distler, 26 F. Supp. 2d 723, 727 (D.N.J.
1998).
5 See 42 U.S.C. § 11601(b)(2).
6 Hague International Child Abduction Convention: Text and Legal Analysis, 51 Fed. Reg. 10494
(1986) (“Public Notice 957”).
7 Elisa Perez-Vera, Explanatory Report in Vol. III Hague Conference on Private Int’l Law, Actes et
document de la Quatatorziem session, at 426 (Bunean Permanent de la Conference 1980), available at
http://www.hcch.net/upload/expl28.pdf (the “Perez-Vera Report”).
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B. THE ROLE OF THE STATE DEPARTMENT & THE NATIONAL CENTER FOR
MISSING AND EXPLOITED CHILDREN.
On April 1, 2008, after the publication of the first Manual, the State Department’s Office
of Children’s Issues reassumed the United States’ Central Authority responsibilities in
connection with incoming Hague Convention cases. The Central Authority is a government-
designated agency within each Hague Convention signatory country that handles child abduction
issues. Previously, the State Department delegated these duties to The National Center for
Missing and Exploited Children (“NCMEC”) under a Cooperative Agreement with the
Department of Justice and the State Department. Although NCMEC no longer manages the
incoming Central Authority functions, it continues to provide technical assistance and resources
to parents, law enforcement, and professionals who are working to prevent and resolve
international abductions, including through the publication of this updated Manual.
Most Hague Convention actions follow a similar factual and procedural path. After a
parent realizes that his or her child has been abducted to the United States, the parent exhausts all
avenues within his or her home country to find the child. The left-behind parent then informs the
Central Authority within his or her home country. The Central Authority works with the left-
behind parent to complete a set of documents (the “Application”) to initiate the process for the
return of, or access to, the child. The Central Authority then forwards the Application and all
supporting materials to the State Department.
The State Department, with the aid of both governmental and non-governmental
agencies, including NCMEC, then begins the process of locating the child in the United States by
using school, employment, financial, social security, police, postal, internet or other public
records. More information concerning this investigation is provided in Section IV.C.2 of this
Manual.
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Once the State Department locates the child, if the left-behind parent requests pro bono
legal representation based on the parent’s personal assessment of eligibility under the Legal
Services Corporation Poverty Guidelines,8 the State Department contacts attorneys in the
International Child Abduction Attorney Network (“ICAAN”)9 to locate counsel who may be
interested in providing representation. The State Department provides potential counsel with
basic information such as the country involved and the gender of the potential client. Counsel
who consent to considering representation are included on a list with their contact information,
and the client is instructed to contact potential counsel.
If counsel is interested in proceeding after having an initial call with the left-behind
parent, the State Department will provide additional information such as the Application and
custody documents. If the Application is completed in the left-behind parent’s native language,
the State Department will provide the foreign language Application and the translated
Application to counsel. The Application serves as the initial source of relevant details regarding
the abduction. After reviewing the materials, counsel will proceed with their independent
representation of the left-behind parent in the Hague Convention litigation. Once the client
engages counsel and an engagement letter is signed, the State Department provides counsel with
the entire file.

8 See 45 C.F.R. pt. 1611, App. A (2012).
9 Until April 2008, NCMEC ran the International Child Abduction Attorney Network (“ICAAN”) on
behalf of the Department of State. However, in April 2008, the U.S. Central Authority assumed primary
responsibility for all “incoming” casework, including operation of the attorney network. Attorneys who
had signed up for ICAAN were invited to participate in the U.S. Central Authority’s Attorney Network,
and nearly all did. Following the transition of incoming Central Authority duties to the Department of
State, NCMEC has maintained its network but has broadened the role of ICAAN to provide
representation in international (and domestic) family abduction matters of all kinds, including both Hague
and non-Hague matters. See
http://missingkids.com/missingkids/servlet/PageServlet?LanguageCountry=en_US&PageId=217 and
http://travel.state.gov/abduction/attorneysjudges/network/network_4936.html.