Globalization and International Child Abduction: Taking a child on a “vacation” with a one-way ticket-PART I
The global exchange of human work force has been on the rise in recent years. More US companies hire international workers from countries like China, Japan, Pakistan, India and others, and send US citizens aboard. Parents take their children with them and when their relationships fall apart, one parent often decides to return to his/her country of origin with the child(ren) without the consent of the other parent. International child abduction issues are complex and require in-depth knowledge of the law.
When a parent never returns the child from the so-called “vacation,” as it is often the case, the first step is to determine whether the country where the parent took the child(ren) is a signatory to the 1980 Hague Convention on Civil Aspects of International Child Abduction (“the Hague Convention.”) (22 U.S.C. Sections 9001, et seq.) List of signatory countries:
https://travel.state.gov/content/childabduction/en/country/hague-party-countries.html. The goal of the Hague Convention is to prevent international child abductions by a parent between countries that have signed the treaty and to create an expeditious proceeding to ensure prompt return of the child to the country of habitual residence. The proceeding’s goal is to determine proper jurisdiction to then determine custody and visitation.
Attorneys in California can help those whose child(ren) has been wrongfully abducted or withheld in the US and more specifically in California, as well as, those whose child(ren) has been wrongfully removed from the US to a Hague Convention country.
If a child, whose habitual residence is in a country (signatory to the Hague Convention) and one of the parents takes that child to California, the left-behind parent must first of all contact the District Attorney Child Abduction Unit in the counties where s/he believes the other parent is with the child. Second of all, the left-behind parent must also file a Hague Petition for Return of the Child with the Central Authority of the country to where the child was take . Information on the United States Central Authority: https://www.hcch.net/en/states/authorities/details3/?aid=279. S/he should also report the abduction to their local law enforcement and contact their Central Authority to initiate the petition.
The Petition Process
A private attorney can prepare the Petition and file it in family court in a county where the child was found. However, the left-behind parent can save legal fees (drafting, serving the Petition, translating it, etc.) when the office of the District Attorney prepares and serves the Petition. The Petition can be filed in state or federal court. District Attorney will always file it in the state court and is not allowed to represent either parent. Either parent may then remove the case to federal court. Hague Convention cases are the only family law cases heard in federal court, which may or may not be a advantage. On the one hand federal judges are very familiar with jurisdiction questions but on the other hand may be less familiar family law issues state court judges handle daily.
If the left-behind parent elects to have the District Attorney draft and file the Petition, her/his private attorney should determine if any Supplemental Affidavits must be filed. Supplemental Affidavits may be drafted for the left-behind parent and contain additional facts, or for witnesses from the country of habitual residence such as doctors, neighbors, teachers, caretakers, family members, etc. All documents must be submitted to court with certified translations. However, hearsay does not apply in a Hague proceeding. There is not need to further authenticate any documents either.
The proceeding has only one objective: to determine if the child should be returned to the country of habitual residence. The court will not look at the merits of any custody dispute. Therefore, the left-behind parent must prove by a preponderance of the evidence what the child’s habitual residence country is. Habitual residence is the child’s customary residence for at least six months prior to wrongful removal or retention. A further description of the proceeding will follow in Part II.