As I described in a previous blog on the subject, the only question of the Hague Convention proceeding is to determine if the child should be returned to the country of the left-behind parent. Custody is not the question. All custody issues are left for determination in the child's country of habitual residence.
- For mandatory return, the petition must be filed within one year of the wrongful removal or retention. A petition filed after a year is discretionary. In those cases, the court will look at the length of time that passed since the removal or retention and if the child acclimated to the new country.
- The child must also be under the age of 16 at the time of the proceedings. Otherwise, Hague Convention does not apply.
- All proceedings regarding custody and visitation in either country are stayed pending the outcome of the Hague proceeding.
- Hague Convention is a summary proceeding to determine jurisdiction only. The court does not determine the child's best interests. Instead the court determines the child's country of habitual residence and whether the child was wrongfully removed or retained and if so, whether the child must be returned.
What does the left behind parent must establish?
The left behind parent must establish by preponderance of the evidence that the child's customary residence for at least six month prior to wrongful removal or retention was in the country of left behind parent. So, the left behind parent must show the intention of the parent(s) who had the authority to decide about where the child would live.
The second showing must be, also by preponderance of the evidence, that he or she was "exercising custody" at the time of the wrongful taking or retention. The left behind parent does not need a court order of custody from the country of habitual residence. If, however, such orders exist, left behind parent should provide certified copies with certified translations and register them with the petition. If the parents lived together at the time of wrongful taking or retention, then the left behind parent was exercising custody.
The last showing, also by preponderance if the evidence, must be that the child was wrongfully removed or retained. It is wrongful if it breaches the left behind parent's custodial rights provided that parent was exercising custody at the time of removal or retention. The most common defense is that the left behind parent consented.
Defending parent establishing an exception to prevent an order of return
The other parent must establish an exception to stop an order of return by proving that:
1) a return to the country of habitual residence would violate human rights and fundamental principles (rarely used exception)
2) The child is of an age mature enough and refuses to return
3) there is a grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation i.e. domestic violence (the most commonly used exception)
If there is an allegation of domestic violence, the court must allow an evidentiary hearing to determine grave risk of harm (Noergaard v. Noergaard 244 Cal. App. 4th 76 (2015). The objecting parent must show by clear and convincing evidence that domestic violence occurred. However, the court in Noergaard, did not conclude that domestic violence automatically trigger the exception. So, even if the court determines that domestic violence occurred, the court must still determine whether the country of habitual residence has sufficient resources and can safeguard the child from domestic violence. Working with an expert from the country of habitual residence to show how the laws and resources protect children from domestic violence would be essential in countering the objecting parents attempts.
If the child is ordered to return to the country of habitual residence, the left behind parent can request the costs relating to the return including legal fees, transportation fees, etc.
For abductions FROM the U.S., see our Filing a Hague Application page for more information.
For abductions TO the U.S., see our Filing a Hague Application page for more information.