Tag: Child Custody Hague

Child Custody and Choosing Religion

Posted by Ron Kauffman on

The mother was Christian and the father a Muslim, but she converted to Islam when they married. After they separated, the mother reverted to Christianity. When parents share or have joint child custody, who decides the child’s religion? A New York appellate court just gave the answer.

Choosing My Religion

A Brooklyn couple divorced in 2009 with one child. Their settlement agreement gave them joint legal custody, and the mother had primary physical custody.

The agreement made them consult with each other about the child’s religion, but did not specify which religion the child would be raised. The mother taught the child Christian values and practices.

The child complained the father was pressuring her to adopt Muslim practices and threatened to abcond with her to his native Morocco if she failed to follow Muslim practices and customs.

The child asked the mother to call the police and school personnel. The mother filed for sole legal custody, and the father petitioned to enforce visitation and to enforce a purported oral agreement that the child would be raised as a Muslim.

Florida Custody and Religion

I have published an article on the intersection of religion and custody before, especially when that intersection relates to harm to the child.

For example in one area there is a frequent religious controversy: whether to give a child their mandatory vaccinations.  Usually, religion is used by the objecting parent as a defense to vaccinating children.

Whenever a court decides custody, the sine qua non is the best interests of the child. But, deciding the religious upbringing of a child puts the court in a tough position.

There is nothing in our custody statute allowing a court to consider religion as a factor in custody, and a court’s choosing one parent’s religious beliefs over another’s, probably violates the Constitution.

So, unless there is actual harm being done to the child by the religious upbringing, it would seem that deciding the child’s faith is out of bounds for a judge.

Ironically, that may not be the rule all over Florida. Different appellate courts in Florida have slightly different takes on the issue, and the question of whether a trial court can consider a parent’s religious beliefs as a factor in determining custody has been allowed.

The Brooklyn, New York case involved the modification of an existing joint custody order.

In Florida, the person seeking modification of custody must show both that the circumstances have substantially, materially changed since the original custody order, and that the child’s best interests justify changing custody. Additionally, the substantial change must be one that was not reasonably contemplated at the time of the original judgment.

Losing My Religion

Back in Brooklyn, the Family Court granted the mother’s to modify joint custody, and give her sole legal custody but granted the father liberal visitation, including on all major Muslim holidays.

The parties’ inability to agree on the child’s religion, the change in the child’s relationship with the father, her fear of his displeasure for not being a “true Muslim,” and her belief that he’d kidnap her to Morocco, constituted changes in circumstances.

The appellate court held that awarding the Mother sole decision-making authority with respect to religion was in the child’s best interests because the father’s actual or perceived insistence that the child follow Islam and threats to abscond to Morocco had a serious adverse effect on the child’s relationship.

The opinion in Baala v. Baala is here.

 

O Mundo é um Moinho: Brazil and Child Abduction

Posted by Ron Kauffman on

Two Brazilian grandparents arrested at Miami International Airport this week are charged with conspiracy and international parental kidnapping for helping move their grandson to Brazil. This is an interesting international custody and child abduction case.

Garota de Ipanema

As the New York Times reports, the father and mother were married in Texas in February 2008 and had Nicolas, their only child, a year later.

The Mother, Marcelle Guimaraes, filed for divorce in September 2012, and the couple shared custody.

The Mother, who is also facing criminal kidnapping and conspiracy charges, used the pretext of a family wedding to get Chris to allow Nico to travel to Brazil.

After arriving in Brazil though, Marcelle filed for sole custody and, according to the criminal complaint, misled Chris about her decision to remain permanently.

Once in Brazil, the Mother wrote to the father:

I have better conditions to raise our son, and I am willing to talk about visitation. My wish is that we can get into an agreement soon, so we can all move on with our lives.

Filho Maravilha

The Father, Dr. Chris Brann, who lives in Houston, said he had often struggled to get permission to see his son in more than 20 trips to Brazil since 2013.

What is unique about this child abduction case is that Chris got federal help. Wednesday, FBI agents arrested Chris’s former in-laws when they landed in Miami, and charged them with conspiracy and international parental abduction.

If convicted of child abduction, each grandparent faces up to five years in federal prison for the conspiracy, and a maximum of three years if convicted of the kidnapping charge.

The Hague Convention

I’ve written, and recently spoke at the Marital and Family Law Review Course, on international custody issues.

Child abduction is a growing problem. Between 2008 and 2016, nearly 10,500 children have been abducted overseas by a parent. Studies show these children are at grave risk of serious emotional and psychological problems.

The Hague Abduction Convention was meant to prevent this. It is a multilateral treaty to provide for the prompt return of a child internationally abducted by a parent from one-member country to another.

There are three essential elements to every Hague Convention case:

  • The child must be under the age of 16 years of age;
  • The wrongful removal must be a violation of the left behind parent’s “rights of custody;”
  • The left behind parent’s rights of custody “were actually being exercised or would have been exercised but for the removal.”

Aquarela do Brasil

The catch about child abduction and the The Hague Convention is that a child must be taken from one signatory country to another signatory country. However, even if two countries are signatories, compliance can be wildly different.

For example, in its 2017 report, the State Department said:

“judicial authorities in Brazil persistently failed to regularly implement and comply with the provisions of the Convention.”

Mas Que Nada

The grandparents, Carlos Otavio Guimaraes, the President of ED&F Man Brasil, and his wife, Jemima Guimaraes, were arrested in Miami after leaving Brazil. They are dual US-Brazilian citizens.

Prosecutors allege Jemima conspired to resettle her grandson in Brazil, because the child had been enrolled in her school in Brazil months before the trip.

The grandfather, Carlos Guimaraes, is also being charged. The grandfather allegedly misled the Father into consenting to the Brazil trip by emailing the Father a flight itinerary showing the mother and child flying back in July.

The New York Times article is here.

 

Equal Custody Presumption

Posted by Ron Kauffman on

A Kansas legislative committee heard passionate testimony this week from people both for and against a bill that would require courts to order shared custody and parenting of children in divorce cases. What is the status of equal custody?

Kansas Equal Parenting Bill

Kansas Senate Bill 257 would create a presumption in divorce cases that children of the couple would spend roughly equal time with each parent, unless the parties have agreed to another parenting plan in advance.

If the parties have not entered into a parenting plan, it shall be presumed that a court determination of legal custody, residency and parenting time providing for a child’s equal or approximately equal time with each parent is in the best interests of the child.

Under the bill, this presumption may be overcome only by clear and convincing evidence, a high burden to prove in court.

The equal parenting bill also allows courts to make a different determination if they make specific findings of fact stating why equal or approximately equal time with each parent is not in the best interests of the child.

Florida Timesharing

I’ve written about Florida’s attempt to create a presumption of equal timesharing before. People are sometimes surprised to find out that Florida does not have an equal custody law.

Instead, Florida has a parenting plan concept which includes parental responsibility and timesharing. In Florida, courts order shared parental responsibility for a child unless shared parental responsibility would be detrimental to the child.

The best interest of the child is the first consideration, and there are several factors judges evaluate to determine, under Florida law, what is in the child’s best interest.

Is a 50-50 Rule Good Policy?

Fifty-fifty timesharing between parents sounds like a great idea, and there are strong arguments for and against a presumption of equal timesharing.

On the one hand, an equal timesharing presumption promotes Florida’s existing policy of frequent contact after divorce, and puts the burden on the parent opposing equal timesharing, changing the dynamics of custody litigation.

However, requiring every family to have equal timesharing is like requiring every family to wear a size 4 shoe. Not every family fits. The equal timesharing presumption creates a uniform rule where the flexibility of ‘the best interest of the child’ is needed.

We’re Not in Kansas Anymore

Under current Kansas law, custody cases are governed by what judges determine to be in the best interest of the child, rather than equal custody. Changing that law is a heated debate.

Not surprisingly, the hearing drew a packed audience, who told about the difficulty they have had maintaining relationships with their children when they were allowed only limited visitation.

The Lawrence Journal World article is here.

 

Custody Wars

Posted by Ron Kauffman on

Fans know Ewan McGregor as Jedi master Obi-Wan Kenobi. The Star War actor has reportedly filed for divorce from his wife of 22 years, and may now be facing a menacing custody battle. How is custody decided when spouses can’t agree to share the children?

Jedi Mind Tricks Don’t Work

Citing “irreconcilable differences” the former Jedi master has requested joint custody of the couple’s three minor children. Ewan has also reportedly said he was “willing to pay spousal support.

His wife however, Eve Mavrakis, was not so easily swayed. She immediately filed response in Los Angeles Superior Court. In her answer, Mavrakis reportedly is requesting sole custody of the children, and only offering visitation rights for McGregor.

Florida Custody

Questions about an award of sole custody or joint custody of children frequently comes up a lot. The subject is also a matter I’ve written about before.

Many people are surprised to learn that the term “custody” (whether joint or sole) are concepts no longer recognized in Florida.

Florida replaced the “custody” term for the “parenting plan” concept in order to avoid labeling parents as “visiting parent” or “primary parent”. The ‘new hope’ of the change in law was to try and make child custody issues less controversial.

Under Florida’s parenting plan concept, both parents enjoy shared parental responsibility and a time-sharing schedule.

“Shared parental responsibility” means both parents retain full parental rights and responsibilities, and have to confer with each other so that major decisions affecting their child are made jointly.

A time-sharing schedule, as the name suggests, is simply a timetable that is included in the parenting plan that specifies the times, including overnights and holidays, that your child spends with each parent.

Florida’s parenting plan concept has changed the sole custody term into “sole parental responsibility.” The term means that only one parent makes decisions regarding the minor child, as opposed to the shared parental responsibility terms, where both parents make decisions jointly.

The Phantom Menace

The couple reportedly separated in May 2017, but only announced they were breaking up in October as People magazine reported.  McGregor was spotted cozying up with his much younger “Fargo” co-star Mary Elizabeth Winstead in October. And, during McGregor’s acceptance speech at the Golden Globe Awards earlier this month he thanked the two women.

Not surprisingly, Winstead announced she was breaking up with her spouse too. Not that it matters, given the no-fault jurisdiction, but if the last Jedi’s force was awakened by a new relationship, there may be grounds for the divorce.

The Fox article is available here.

 

Hague Convention in Japan

Posted by Ron Kauffman on

James Cook wants his 4 kids back. His estranged wife, Hiromi Arimitsu, says they want to stay with her in Japan, and they’ve been fighting in Japanese courts for almost three years. Isn’t The Hague Convention supposed to make international custody cases easier?

Japanese Cooks

If child custody battles are messy and expensive when the parents live in the same city, they’re much worse when they live in different countries, and are fighting over where the children should live.

For three years of their lives, the Cook kids have not had their dad. Kids need their dad, they need both their parents. I can’t describe to you the hell that this has been.

Cook, who studied Japanese in college, and Arimitsu, a Japanese woman who attended a university in Minnesota, lived in the U.S. for almost the whole time they had been together.

Three years ago, Cook agreed that Arimitsu could take their 4 children to Japan for the summer – with a notarized agreement that she would bring them back. When that ended, they agreed that Arimitsu and the kids stay a little longer, while Cook looked for work.

By the end of the year, Cook realized his family wasn’t coming back. The problem: court officers failed to enforce the order, saying the children refused to be returned, and the Osaka High Court nullified the enforcement order under the grave risk of harm defense.

Hague Child Abductions

I have written – and will be speaking later this month – on international custody and child abduction cases under The Hague Convention.

The Hague Convention on the Civil Aspects of International Child Abduction is supposed to provide remedies for a “left-behind” parent, like Mr. Cook, to obtain the wrongfully removed or retained children to the country of their habitual residence.

When a child under 16 who was habitually residing in one signatory country is wrongfully removed to, or retained in, another signatory country, The Hague Convention provides that the other country: “order the return of the child forthwith” and “shall not decide on the merits of rights of custody.”

There are defenses though. For example, in the Cook case, the court considered whether there is a grave risk that the children’s return would expose them to physical or psychological harm or otherwise place the child in an intolerable situation.

Outside Japan, the grave risk exception is very narrowly drawn because the exception can swallow the rule, and also, there is a belief that courts in the left behind country can protect children – just as easily as Japan can.

Big in Japan

Many suspect Japan is not really compliant with The Hague. Japan signed the Convention in 2013 – and only because of international pressure.

Under their law, Japan expanded the grave risk exception by making it a mandatory defense. Japan also requires Japanese courts to consider more things when the defense is asserted, such as whether there is “a risk”, as opposed to a grave risk.

Japanese courts also can consider if it’s difficult for parents to care for a child – a factor outside the scope of the Convention – which allows Japanese parents to complain about the challenges of being away from home.

The U.S. has determined that Japan was one of just two “Convention Countries That Have Failed to Comply with One or More of Their Obligations under The Hague Abduction Convention.”

Enforcement is a big problem in Japan. Japan cannot enforce their orders. The law Japan passed to implement The Hague forbids the use of force, and says children must be retrieved from the premises of the parent who has taken them.

According to research, about 3 million children in Japan have lost access to one parent after divorce in the past 20 years – about 150,000 a year.

For now, that leaves James Cook, who has found work with a medical device company, sitting in Minnesota, having no contact with his kids.

The Standard-Examiner article is here.

 

Losing Custody through Parental Alienation

Posted by Ron Kauffman on

In Britain, parents can now lose child custody, and even be denied contact with their children, if they attempt to poison their children against the other parent under a new pilot program to stop parental alienation. What is parental alienation and why should you lose custody over it?

According to the London Independent, the groundbreaking initiative, being tried by the Children and Family Court Advisory and Support Service (Cafcass), is designed to tackle the problem officially known as “parental alienation” where one parent turns a child against the other so they do not want to see them.

In the UK, Cafcass represents children in family court cases to make sure that children’s voices are heard and decisions are taken in their best interests.

Cafcass is independent of the courts, social services, education and health authorities. It was established in 2001 to bring together the family court services previously provided by the Family Court Welfare Service, the Guardian ad Litem Service and the Children’s Division of the Official Solicitor’s Office. It is accountable to the Secretary of State at the Ministry of Justice.

Cafcass – which has been criticized for being slow to tackle the issue – said the problem is widespread and occurs in a substantial number of the 125,000 cases it deals with annually.

Florida Child Custody Modification

I’ve written about interstate and international child custody issues before, and how to modify child custody provisions.

The custody provision in a final judgment can be materially modified only if:

  • there are facts concerning the welfare of the child that the court did not know at the time the decree was entered, or
  • there has been a change in circumstances shown to have arisen since the decree.

To satisfy the substantial change of circumstances test, the party seeking modification must show both that the circumstances have substantially, materially changed since the original custody determination and that the child’s best interests justify changing custody.

Parental Alienation

Parental Alienation is a mental condition in which a child – usually one whose parents are engaged in a high-conflict separation or divorce – allies strongly with one parent and refuses without good cause to have a relationship with the other parent.

This process takes place when a parent or caregiver encourages the child’s rejection of the other parent.

Parental alienation is driven by the false belief that the rejected parent is evil, dangerous, or not worthy of affection.

When the phenomenon is properly recognized, the condition is preventable and treatable in many instances.

Parental alienation, if proved by competent, substantial evidence, can justify a request for a modification of a time-sharing provision in a final judgment.

Parental Alienation in Britain

Cafcass’s, Sarah Parsons, said: “We are increasingly recognizing that parental alienation is a feature of many of our cases and have realized that it’s absolutely vital that we take the initiative.

Our new approach is groundbreaking.

From spring 2018, Cafcass caseworkers will be issued with guidelines known as the “high conflict pathway” setting out steps social workers should take when dealing with suspected cases of parental alienation.

The pathway will spell out at what stage children should be removed from the parent responsible for the alienation and placed with the “target parent”.

A father who was the victim of alienation, speaking anonymously, told the Guardian:

I’ve lived through and witnessed the inexorable alienation of my older daughter over the past five years, which has culminated in complete loss of contact.

The Independent’s article on alienation is here.

 

Foreign Custody and Sex Discrimination

Posted by Ron Kauffman on

A recent interstate child custody case from Mali sheds light on sex discrimination in foreign courts. Should an American court honor a foreign court’s custody order if the foreign country favors men over women in custody cases? An Indiana court just answered that question.

A Mother appealed to the Indiana Court of Appeals a trial judge’s refusal to modify a child custody order from the west-African nation of Mali in favor of the Father.

The Mother argued that the trial judge was not required to enforce the Malian court’s order under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) because the order from Mali was the product of laws that violate fundamental human rights.

Indiana, like Florida, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Under the UCCJEA courts must enforce foreign custody decrees if it was issued by the country that was the child’s home state.

Enforcement is especially required if everyone was given notice and opportunity to be heard, and the child custody laws of the foreign country don’t violate fundamental principles of human rights.

The big question was whether Mali child custody laws violate human rights principles as Indiana courts understand them.

Florida and the UCCJEA

I’ve written and spoken many times on international custody involving the UCCJEA and The Hague.

The UCCJEA is a uniform act, and was adopted by all U.S. states except Massachusetts; which still follows the older UCCJA.

The UCCJEA was made to harmonize custody, visitation, timesharing and parental responsibility because different states and countries have different approaches to family law issues.

Florida treats foreign countries as if they were states of the United States for purposes of applying the UCCJEA. So, a child custody order made in a foreign country in substantial conformity with Florida’s UCCJEA must be recognized and enforced here.

However, under the UCCJEA Florida does not need to enforce or recognize the foreign order if the child custody law of a foreign country violates fundamental principles of human rights.

That was the issue the Indiana court had to decide.

The Indiana Case

The Mother and Father are both dual citizens of France and Mali, and divorced in Mali. Both parties asked for custody of the children.

After the trial, but before the Mali court issued an order, the Mother took the children to France, and the Malian court then awarded the Father custody.

The Mother never returned the children, unsuccessfully sought Mali and France then moved to Indiana and filed her case there.

The Indiana court rejected the Mother’s argument under the UCCJEA that the custody laws of Mali violate fundamental human rights because it favors men over women.

The Mother argued that Mali’s divorce law is fault-based, have a preference for men in child custody decisions because under Mali law, the following were tru:

  • The husband owes protection to his wife, the wife obedience to her husband.
  • The husband is deemed the head of the household,
  • The husband has the right to choose the family residence, and the wife must live with him and he must receive her.
  • A woman is prohibited from running a business without her husband’s permission.
  • Mali has failed to outlaw female genital mutilation

However, the Indiana court found that Mali did not actually apply the statutory custody presumption in favor of Father.

Instead the Indiana court found that under Mali law, custody could be awarded to Father or Mother. Additionally, in the Mali case under review, the best interests of the children controlled this decision.

The Female Genital Mutilation Argument

A 1999 United States Agency for International Development funded study in Mali was conducted, and found that 93.7% of women had gone through some form of female genital mutilation, usually when they are young.

The Indiana court rejected the Mother’s argument about Mali’s failure to outlaw female genital mutilation – in part because it noted that the father had condemned the practice.

Under the UCCJEA, while female genital mutilation is itself a human rights violation, Mali’s failure to pass a law specifically prohibiting the practice does not in and of itself constitute a violation of fundamental principles of human rights.

The Indiana Court of Appeals decision is here.

 

Should You Marry Someone From Another State?

Posted by Ron Kauffman on

When Wisconsinites choose a spouse, there’s just something about those Minnesotans that they find irresistible. Time magazine looked at over 100 million interstate marriages to make the analysis. The analysis also raises the issue of interstate custody.

Do We Marry Local?

Time magazine recently did an analysis of which states were most compatible when it comes to marriages. To figure this out, Time examined data on 116 million “interstate marriages” in which the partners were born in different states.

For people from each state, they looked at the most common home states for their spouses compared to the national average.

While people are generally most likely to marry someone from the same home state as themselves — eat local, and “marry local,” you might say — those who choose a spouse born in a different state don’t tend to drift very far.

To be clear, while Texans are much more likely than most other people to marry a Louisianan, there are still more total marriages between Texans and Californians, since California is such a large state. Whether you’re from California or your spouse is from Texas, if you have a child, this could have an interstate custody issue.

Your Interstate Child

I’ve written on the issue of interstate custody before, and was recently invited to speak at a state-wide presentation. There are two major interstate, uniform acts that have been adopted by almost every state in the U.S. The first, UIFSA, deals with interstate children support. The Second, UCCJEA, deals with custody.

UIFSA is a uniform act drafted by the Uniform Law Commission, and forcibly adopted by all U.S. states by federal law. Historically, multiple orders, issued by different states, created confusion; courts were unsure which orders were to be enforced, and it was easy to reduce, delay and evade enforcement by moving across state lines.

The purpose of UIFSA is to improve and extend the enforcement of duties of support so that once a foreign support order is registered in Florida, it has the same effect as a Florida order.

The UCCJEA, like the UIFSA, is another uniform act drafted by the ULC, and adopted by all U.S. states except Massachusetts. Different states have different approaches to issues related to custody, and inconsistent rulings about custody could create major problems.

The UCCJEA and the UIFSA share common features and concepts, and in places, the two acts have nearly identical provisions. However, they deal with different family law issues (custody and support) which can strongly impact how the two Acts are implemented.

The general purposes of the UCCJEA are: to avoid jurisdictional competition and conflict with other courts in child custody matters; promote cooperation with other courts; insure that a custody decree is rendered in the state which enjoys the superior position to decide what is in the best interest of the child; deter controversies and avoid re-litigation of custody issues; facilitate enforcement of custody decrees; and promote uniformity of the laws governing interstate custody issues.

Idahoans Love Utahans

According to Time, some of these bonds are stronger than others. While Michiganders are about equally likely to pair off with someone from Wisconsin, Ohio or Indiana, people from Utah and Idaho share a deep, mutual connection.

If you were born in Utah, for example, you are 15 times more likely to marry an Idahoan than someone from elsewhere — a bond that may be strengthened by the fact that they have the largest concentrations of Mormons, according to a 2013 Gallup poll.

On the other hand, most connections between states are not mutual. A person from South Dakota has the most disproportionate chance of marrying someone from North Dakota.

However, the North Dakotans have a slightly higher penchant for marrying Minnesotans, as do those from Wisconsin.

Likewise, Mississippi is the soul state for those born in Tennessee, Louisiana and Alabama.

The Time magazine article is available here.

 

International Custody

Posted by Ron Kauffman on

Tennis ace Victoria Azarenka will miss the US Open this year because of an international custody battle with ex-boyfriend Billy McKeague over their 8-month-old son. The case was filed in California, but there may be a custody order from Belarus, where Victoria, Leo and Billy are all residents.

The case became an international custody case, and an international tennis affair, after the father, McKeague, filed for paternity and custody in Los Angeles, where Azarenka has a residence. A California judge informed the Belarusian born tennis star that she is unable to leave the state of California with her infant son as the custody dispute rages on.

With the case set to wrap in October, Azarenka will have to skip the U.S. Open, which kicks off Aug. 28 in New York, as she refuses to leave her child in the hands of her former boyfriend because she doesn’t believe he’s capable of caring for the child.

Hague Convention and Custody

Why would a California judge have a problem with allowing the mother to travel with her son to New York, – with the possibility of slipping off to Belarus – during a custody battle with a man she believes is not capable of caring for the child?

The answer is simple: the judge is concerned about international child abduction, and that raises the issue of the Hague Convention on the Civil Aspects of International Child Abduction. I’ve written about the subject of international child custody cases before.

The Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on Private International Law to provide for the prompt return of a child internationally abducted by a parent from one-member country to another.

There are three essential elements to every Hague Convention case:

  • The child must be under the age of 16 years of age;
  • The wrongful removal must be a violation of the left behind parent’s “rights of custody;”
  • The left behind parent’s rights of custody “were actually being exercised or would have been exercised but for the removal.”

So, if a child under the age of sixteen has been wrongfully removed or retained within the meaning of the Hague Convention, the child must be promptly returned to the child’s country of habitual residence, unless certain exceptions apply.

The catch, of course, is that a child must be taken from a signatory country to another signatory country, and that is where understanding the Hague Convention comes in.

According to the Convention, Belarus’s accession to the Convention is effective only in the relationship between Belarus and those contracting states that have declared their acceptance of the accession. The United States has not recognized Belarusian participation in the Convention.

Game, set, match?

According to the New York Post, Azarenka’s attorney, told the California judge her client is more than willing to buy a plane ticket for McKeague and put him up in a hotel for the 2-week tournament.

“But for some reason the judge won’t defer to the Belarus court.”

When cases involve international custody, and there is a risk that a child could possibly be abducted to a foreign country without treaty agreements with the United States, judges are extremely careful about allowing travel – even to the U.S. Open.

The New York Post article is here.

 

Pakistan & The Hague Convention

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Thursday, September 1, 2016.

Pakistan might sign the Hague Convention on the Civil Aspects of International Child Abduction. What does The Hague have to do with child custody?

In Pakistan, The Hague Convention has received approval almost unanimously by the Cabinet. The only words of reluctance for it have been, predictably, from the Council of Islamic Ideology.

“As with the Women’s Protection Act, and the honor crimes bills, the necessity is to continue on the right path, despite the whimpering and protests of an archaic group.”

The Hague Abduction Convention is a treaty that many countries, including the United States, have joined. The purposes of the Convention are to protect children from abduction by a parent by:

(1) Encouraging the prompt return of abducted children to their country of habitual residence, and

(2) Securing rights of access to a child.

I’ve written about child custody issues before, The basic idea behind The Hague Convention is that child custody and visitation matters should generally be decided by the proper court in the country of the child’s habitual residence.

The Convention does not apply to every international parental child abduction case. First and foremost, your country must be a signatory country to the Convention. Additionally, you must show:

– That your child was wrongfully removed to or retained in another Convention country;

– The Convention was in force between the two countries when the wrongful removal or retention occurred

– The child is under the age of 16 at the time of filing of the application.

Under the Convention, a country may refuse to return an abducted child or grant access to the child if:

– There is a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation in his or her country of habitual residence;

– The child objects to being returned and has reached an age and degree of maturity at which the court can take account of the child’s views; or

– The return would violate the fundamental principles of human rights and freedoms of the country where the child is being held.

In Pakistan, the Convention is required if Pakistani children are stranded abroad and a parent with custody wants to force the child’s return. Many countries – such as the U.S. – advise against traveling to Pakistan because Pakistan is a non-signatory country.

The article in The Nation is here.