What Is The Hague Abduction Convention?

Source / By Jermey Morley

The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty signed by more than eighty countries.

-It provides that a child who is taken to or retained in a foreign country without the consent of a person with “rights of custody” over the child under the law of the child’s “habitual residence” must be returned to the habitual residence unless one of six exceptions applies.

Hague Convention Member Countries

What is ICARA?
In the United States the Convention is integrated into law by the International Child Abduction Remedies Act, known as “ICARA.” That law gives state and federal courts concurrent jurisdiction to handle Hague cases. The law also provides the burdens of proof that govern the conduct of Hague trials. In addition, the law provides that if a petition is successful the parent who has taken a child away from its habitual residence must pay the legal fees and travel expenses of the petitioning parent.

The Purpose of the Hague Convention
The U.S. Supreme Court has stated that the purpose of the Convention is “to prevent harms resulting from abductions” which “can have devastating consequences for a child” and may be “one of the worst forms of child abuse” which “can cause psychological problems ranging from depression and acute stress disorder to post traumatic stress disorder and identity formation issues” and lead to a child’s experiencing “loss of community and stability, leading to loneliness, anger, and fear of abandonment” and “may prevent the child from forming a relationship with the left behind parent, impairing the child’s ability to mature.”

The Key Terms in the Hague Convention

1. “Right of Custody” in the Hague Convention

A petitioner in a Hague case must establish that he or she had a “right of custody” over the child under the law of the child’s habitual residence.. This does not require that there must have been a custody order in place before the child was taken. It means that the law in question gave certain rights to the petitioner which are sufficient to constitute a custody right. The United States Supreme Court has ruled that a parent’s right to prevent international travel, known as a ne exeat right, is a “right of custody” within the meaning of the Convention.

2. “Habitual Residence” in the Hague Convention

The key term of “habitual residence” is not defined in the Convention.

In many judicial circuits in the United States there is a heavy presumption that a child’s habitual residence should be determined by “the last shared intent” of the child’s parents, unless it is clearly shown that the child has become acclimatized to another jurisdiction. The courts in other circuits look primarily at the position of the child reviewed objectively without regard to parental intention. Many Hague cases are won or lost based on the application of the competing approaches to the often-complicated facts of particular international situations.

Mr. Jeremy D. Morley is an international lawyer & advisor who is well-known for international child abduction & hague convention issues.

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One thought on “What Is The Hague Abduction Convention?

  1. Max Troitsky, a Russian-speaking US Citizen from Pennsylvania is in a sad situation. His estranged wife ( Anna Troitsky a.k.a. Anna Demyanyuk ), a US-Russian dual citizen illegally abducted their US-born US-citizen toddler daughter Julie Troitsky in late November 2011, against the US Court Order, and all the details of this bizarre and unfortunate case are here:

    http://www.HelpBringJulieHome.com (site in English and Russian)
    and on Facebook: http://www.facebook.com/HelpBringJulieHome
    and on Twitter: http://twitter.com/BringJulieHome

    Thank you for the help, leads and following of this case…

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