International Treaty Remedy
This international law treaty creates a remedy for victims of child abduction, who violate an existing custody order in any jurisdiction throughout the world, or who seek relief when a custody order does not exist. The Hague convention remedy comes into play when parents live abroad, and one of the parties decides to return to the United States with a child as a U.S. citizen, or when a foreign national seeks a determination of custody by a US Court — usually in the divorce context.
Withdrawing a Child to Another Country
Under the Hague convention (which has been ratified and codified by Congress), courts frown upon unilateral withdrawals of children from one country to another without court permission. Under the Hauge convention, there is a defense to abduction when there is a grave risk that return will expose the child to physical or psychological harm.
Other defenses exist as well. For example, if a parent acquiesces to the relocation, the removal is permitted. Acquiescence is proven on a case by case basis, and by the unique facts of the case. For example, if a parent tells a parent after the departure that he/she approves of the departure, or so testifies in a court proceeding, such facts tend to prove that the parent acquiesced to the move. Additionally, a parent can consent to the departure before the parent leaves the country. Finally, for older children who have been living in a country for over a year, if the children prefer living in the country to which they have moved, a court will generally grant the child’s wishes to remain where they are currently living. For the grave risk of harm defense, it is helpful — if not essential — to have the assistance of a clinical psychologist who can testify about the harm the child is facing upon return to the originating country. Knowledge of international law is not essential to raise a defense or to file a suit in the State of local jurisdiction or the local federal district court. I have represented clients in both the State and the United States District Courts in Utah on Hague convention claims.