International child custody always has the potential of a wrongful abduction. A parent who keeps their child in another country after a vacation, may face accusations the retention is in violation of the Hague Convention. Is there an international child abduction defense?
Hague Convention on Child Abduction
I’m of course talking about The Convention on the Civil Aspects of International Child Abduction done at the Hague on October 25, 1980. The Convention created procedures for the prompt return of children who have been wrongfully retained.
I have written and spoken on international child custody issues and the Hague Convention before. The left behind parent will typically file an application with their local Central Authority for transmission to the Central Authority in the country where the retained children are.
The elements of wrongful retention under the Convention include:
- the habitual residence of the child was in the country to which return is sought;
- the retention breached custody rights;
- the left behind parent was exercising custody rights; and
- the child is under 16.
If proven, the Convention requires courts to order the child to be returned to the child’s habitual residence, unless the party removing the child can establish at least one of several affirmative defenses.
There’s a Defense to Child Abduction?
In fact, there are a few affirmative defenses which can be raised by the alleged taking parent to prevent a court from ordering the prompt return of a child to the child’s habitual residence.
Rights of Custody
A typical defense is that the left behind parent was not exercising rights of custody at the time of the retention of the child. A custody ruling from a court from the child’s habitual residence may establish a right of custody.
The Hague Convention does not define the key term “exercise” of rights of custody, but many courts have found that they should liberally find “exercise” when a parent keeps regular contact with the child.
Another defense which can be raised is consent. A court not have to order the return of a child if the alleged taking parent can show the left behind parent gave prior consent to the retention or afterwards acquiesced.
Although there are more defenses, another defense often raised under the Convention is that the child is now “well-settled” in the new environment.
A court is not bound to order the return of a child if the alleged taking parent can prove that the case was filed more than one year after the wrongful retention, and the child is now settled in the new environment.
The Convention does not provide a definition of the term “settled.” But, some things to consider can include
- The child’s age;
- The stability and duration of the child’s residence in the new environment;
- Whether the child attends school or day care consistently or inconsistently;
- Whether the child has friends and relatives in the new area or does not;
- The child’s participation in community or extracurricular school activities
Keep in mind that the Convention does not consider who, between the parents, should have custody. Instead, the goal of the Convention is to determine whether the child has been wrongfully retained and if so, return the child.
International child abduction cases have some defenses a parent may want to think about before consenting to the other parent taking a quick vacation overseas to see relatives.
More information from the State Department on the Convention is available here.