Tag: Hague Convention

Hague Abduction Convention and Force Majeure Clause

Posted by Ron Kauffman on

Under the Hague Child Convention does a force majeure clause in a marital settlement agreement hold any weight? The question is a frequent international custody issue which arises after parents enter into an agreement allowing their children to travel internationally. In one recent case, two Israeli parents agreed to their children visiting the United States for 60-days with some exceptions.

Force Majeure

Parents at War

The parties in the Hague case are the parents of two children who were both born and raised in Israel. The family members are all Israeli citizens too, but the Mother was also a U.S. citizen. The parties divorced in 2019 in Israel. After the divorce, the Israeli family court awarded the Father with visitation rights, and ordered him to pay child support.

The Mother argued the Father never exercised his rights of custody. However, the Mother would also travel internationally alone, and leave the children with their Father and his new wife. The Father was found to have exercised his visitation rights with the children.

In January 2023, the Mother filed an action in Israel to collect back child-support from the Father. The parents reached an agreement in the Israeli family court in which they stopped collection proceedings, and in return, the Father agreed to let the Mother travel abroad with their two children under certain conditions.

The Mother was allowed to travel internationally with the Children for 60 days. She could extend the 60-day period either by agreement with the Father, and/or limitations unrelated to the Mother’s own actions, such as strikes, COVID-related restrictions, etc.

Then Israel was brutally attacked on October 7, 2023. A month later, the Mother flew with the Children, and her two twins from another relationship, to Florida. The Father agreed to the trip, but then objected after the Mother told him that she planned to keep the Children in Florida until at least January 23, 2024 – 76 days after leaving Israel – and possibly longer if the war persisted.

By April 2024, the Mother had still not returned the Children. Then she dropped the bomb on the Father: she had “discovered that we have peace of mind and a calm life here” and told him that the children didn’t want to return to Israel.

The Father was trapped. He was not allowed to travel to the U.S., and was restricted from holding a passport, due to his owing child-support. The Father then filed a petition for return of the children to Israel under the Hague Convention in a Florida federal court.

At the time of trial from January to February 2025, the parties disagreed as to whether the conditions in Israel, and in particular, whether the cities where each of them lived were safe to return to and an exception to return under their agreement.

Florida Hague Convention

I often speak and write about the Hague Abduction Convention and international child custody issues. In fact, I successfully represented the Father in this Israeli case. What do you do if your children are wrongfully abducted or retained internationally?

The Hague Abduction Convention establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained.

The International Child Abduction Remedies Act is the statute in the United States that implements the Hague Abduction Convention. Under the Act, a person may petition a court authorized to exercise jurisdiction in the country where a child is located for the return of the child to his or her habitual residence in another signatory country, so the underlying child custody dispute can be determined in the proper jurisdiction.

The Hague Convention applies only in jurisdictions that have signed the convention, and its reach is limited to children under 16 years of age. Essentially, The Hague Convention helps families more quickly revert back to the “status quo” child custody arrangement before the wrongful child abduction.

The Hague Convention exists to protect children from international abductions by requiring the prompt return to their habitual residence. But there are defenses too. In the Israeli case, one defense asserted  involved an agreement containing a force majeure clause. Essentially, the court was not bound to order the return of the children if the Mother demonstrated by a preponderance of the evidence that the Father gave prior consent to the retention or subsequently acquiesced in their retention.

The argument was central to the case because the Mother relied on language in the agreed child support order that allowed her to travel abroad with the children for up to 60 days unless there was some limitation unrelated to the Mother’s own actions, “e.g., strikes, COVID-related restrictions, etc.”

Force Majeure?

At trial, the Mother argued that, even if the Father had a right of custody under Israeli law, the conditions in Israel following the October 7, 2023 attack qualify as a limitation unrelated to Respondent under the language of the Agreement, which would permit her to keep the Children in Florida beyond 60 days.

The district court disagreed. “The term ‘limitation’ in the Agreement does not encompass the Mother’s personal judgment or view that returning the Children to Israel is unsafe.” In looking at the parties’ agreement, the district court concluded that, based on its customary and normal meaning, “[t]he agreement itself illustrates this definition [of limitation], citing examples such as ‘strikes’ and ‘COVID-19-related restrictions’ – situations that physically restrict Respondent’s ability to return the Children.”

The district court found that a qualifying limitation under the Agreement is one that impedes or prevents the Mother from returning the Children, not one that merely makes return undesirable according to the Mother.

The case is analyzed at MKFL International Family Law here.

Establishing Foreign Paternity under UIFSA

Posted by Ron Kauffman on

A common family law issue involves UIFSA, in that a U.S. state can establish a child support order after proving the paternity of the father over a foreign born child. However, proof is required beyond mere admissions and agreement. Is being named on the birth certificate enough? One couple recently found out.

UIFSA Parentage

Love in Lansing

The Plaintiff lives in Brazil and is the mother of LCK, who was born in Brazil in late 2020. The purported father, who was the Defendant in the case, lives in Michigan. The case was heard in a town between Detroit and Lansing. Plaintiff contended that defendant is the father of LCK, arising out of a relationship between the parties in Michigan in January 2020.

Defendant did not deny that the parties had a relationship during that time. In August 2021, plaintiff sought child support from defendant under the Uniform Interstate Family Support Act (UIFSA), by filing an Application for Establishment of a Decision with the central authority in Brazil.

The application stated that defendant’s paternity of the child was “established or presumed,” and was supported by a Brazil birth certificate naming defendant as the child’s father.

The Livingston County Prosecutor initiated this action under UIFSA, filing the Application as a complaint.  Defendant responded, denying paternity and requesting that the child’s paternity be established.  Defendant also filed a -separate paternity action in the trial court.

In contrast to his denial of paternity in the child support case, defendant alleged in his paternity action that he is the father of LCK. In fact, the defendant earlier claimed he was the LCK’s father in the paternity action, and even signed an affidavit before the U.S. Consulate stating that he was the father.

However, in the international child support action under the UIFSA, he disputed his paternity of the child had been established under Brazil law. Plaintiff contended that defendant’s name on the child’s birth certificate established his paternity under Brazil law, precluding further inquiry into the child’s parentage under the UIFSA. Defendant disagreed, and asked the trial court to resolve the paternity action before determining the child support action. Plaintiff filed a motion to establish support, arguing without explanation that the birth certificate alone established defendant’s paternity of the child under Brazil law.

Plaintiff also asserted that while briefly visiting Brazil, defendant signed an acknowledgment of paternity at the United States Consulate to obtain a passport for the child, and sued plaintiff under the Hague Convention for abduction of the child.

Defendant did not respond to the motion, but at the hearing requested a determination of paternity under Michigan law. The trial court entered a Uniform Child Support Final Order on the basis that defendant had been established as the child’s father under Brazil law, and ordered defendant to pay plaintiff monthly child support of $1,567. The father appealed.

Florida UIFSA

I have written on international custody and support issues before. The Uniform Interstate Family Support Act is one of the uniform acts drafted by the Uniform Law Commission. First developed in 1992, UIFSA resolves interstate jurisdictional disputes about which states can properly establish and modify child support and spousal support orders.

The UIFSA also controls the issue of enforcement of family support obligations within the United States. In 1996, Congress passed the Personal Responsibility and Work Opportunity Act, which required all U.S. states adopt UIFSA, or face loss of federal funding for child support enforcement. Every U.S. state has adopted some version of UIFSA to resolve interstate disputes about support.

One of the more important purposes of UIFSA is to extend enforcement to foreign support orders. A court in Florida, for example, must apply UIFSA to any support proceeding involving a foreign support order from a foreign tribunal. A “foreign tribunal” means a court, administrative agency, or quasi-judicial entity of a foreign country which is authorized to establish, enforce, or modify support orders or to determine parentage of a child.

Spartan Findings

On appeal, the Defendant contended the trial court erred by determining his parentage of the child had been determined under Brazil law without permitting him to challenge the parentage of the child.

A trial court can establish child support under UIFSA only upon finding, after notice and an opportunity to be heard, that defendant had a duty of support based on the putative father’s paternity. In doing so, the trial court was obligated to apply the procedural and substantive law of Michigan.

In determining Defendant was the father based on the Brazilian birth certificate, the trial court accepted plaintiff’s contention under Brazil law, any man designated as the father on a child’s birth certificate is thereby determined by law to be the father of that child, and that defendant therefore was precluded from raising the defense of non-parentage.

However, the trial court accepted the contention that parentage had been established under Brazil law without any proof and without any authority to support plaintiff’s assertion.

Plaintiff also argued that she established paternity because of Defendant’s past claims that he was the child’s father in the paternity action, and that he even signed an affidavit before the U.S. Consulate stating that he was the child’s father.

But on appeal, the question was whether the was precluded from challenging the child’s parentage by virtue of a previous legal determination in Brazil or elsewhere.  Defendant’s past assertions of parentage are not relevant to this narrow inquiry.

Even though defendant consistently sought to establish the parentage of the child, he never conceded the issue had been determined under Brazil law.  The trial court’s reliance on plaintiff’s unsupported assertion that the birth certificate naming defendant as the father constituted a determination of parentage under Brazil law, was insufficient.

The trial court’s order was vacated, and the case was remanded to the trial court for further proceedings in which plaintiff must demonstrate that defendant’s parentage of the child has been determined under Brazilian law.

The Michigan Court of Appeals opinion is here.

Speaking on the Hague Convention and Interstate Child Custody

Posted by Ron Kauffman on

Honored to be invited to speak about the Hague Convention and other interstate child custody jurisdiction issues at the 2025 Marital & Family Law Review Course. The program will be presented at the Loews Royal Pacific Resort at Universal Orlando from January 24, 2025 to January 25, 2025. The prestigious Certification Review course is one of largest and most popular family law presentations, and is a partnership between the Florida Bar Family Law Section and the AAML Florida Chapter.

Hague Convention

Interstate Child Custody

Family law today frequently involves interstate child custody, interstate family support, and The Hague Convention on international child abductions. Parents are increasingly moving from state to state and country to country for various reasons. Whether children are moved by parents wrongfully or not, that moving makes interstate and international child custody complicated. The Uniform Child Custody Jurisdiction and Enforcement Act, and The Hague Convention on Child Abduction, can work together in those cases.

Florida and almost all U.S. states passed the UCCJEA into law. The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction over the child. That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say Florida. The ultimate determining factor in a Florida case then, is what is the “home state” of the child.

International Child Abductions

I have written about the Hague Convention before. All family lawyers should become familiar with the Hague Convention on the Civil Aspects of International Child Abduction, also known as The Hague Convention on Child Abduction. This international treaty exists to protect children from the harmful effects of international abductions by requiring the prompt return to their habitual residence.

Interstate Family Support

The Uniform Interstate Family Support Act is one of the uniform acts drafted by the Uniform Law Commission. First developed in 1992, the UIFSA resolves interstate jurisdictional disputes about which states can properly establish and modify child support and spousal support orders. The UIFSA also controls the issue of enforcement of family support obligations within the United States. In 1996, Congress passed the Personal Responsibility and Work Opportunity Act, which required all U.S. states adopt UIFSA, or face loss of federal funding for child support enforcement. Every U.S. state has adopted some version of UIFSA to resolve interstate disputes about support.

Certification Review Course

It is a privilege to be invited to speak on the Hague Convention and interstate and international family law issues at the annual Marital & Family Law Review Course again. The annual seminar is the largest and most prestigious advanced family law course in Florida. Last year’s audience included over 1,800 attorneys, hearing officers, and judges.

Register here for remaining spaces, if any.

International Child Custody and Hague Convention

Posted by Ron Kauffman on

A frequent international child custody issue involves the Hague Child Abduction Convention. Return of abducted children to their habitual residence is required unless defenses are established, in which case ameliorative measures can be considered. Is that also true in a war zone? A court in Montana just decided that question.

Hague Convention2

Home on the Range?

The parents are Ukrainians. They married in the Ukraine and lived in the city of Odessa, Ukraine in an apartment. In February 2022, Russia invaded Ukraine. The parties began to hear explosions and air raid sirens in Odessa based on Russian aerial attacks, and they were forced to sleep in their basement at times.

In August 2023, the father arranged for the mother and their child to stay with family friends in Moldova due to the increased bombing of Odessa. On August 26, 2023, the mother informed the father that she was intending to fly to Montana with the child to be with her mother and sister.

The father began to take steps to secure the return of the child to the Ukraine by filing a Hague application and filing a return petition in Montana.

Florida Hague Convention

I will be speaking about the Hague Convention and international child custody issues at the prestigious Marital & Family Law Review Course in Orlando later this month. The event is co-sponsored by the Florida Bar Family Law Section and the American Academy of Matrimonial Lawyers.

What happens if your children are wrongfully abducted or retained overseas? If that happens, you must become familiar with the Convention on the Civil Aspects of International Child Abduction, also known as The Hague Convention. This international treaty exists to protect children from international abductions by requiring the prompt return to their habitual residence.

The Hague Convention applies only in jurisdictions that have signed the convention, and its reach is limited to children ages 16 and under. Essentially, The Hague Convention helps families more quickly revert back to the “status quo” child custody arrangement before an unlawful child abduction.

If your children are wrongfully taken out of the country or wrongfully retained after the time for returning them passed, the Hague Convention can help you get them back.

A Mess in Odessa

At the trial in Montana, it was not disputed that the father established a prima facie case under the Convention. However, the mother argued return to Ukraine would expose the child to a “grave risk” of physical or psychological harm.

The district judge noted that the conflict in Ukraine did not, by itself, trigger the grave risk exception because it’s not sufficient to simply find that because the country is at war, children cannot be returned․

Instead, the focus should be on the risk a child would face in the part of the county she will return to and whether that will imperil her unacceptably. For example, some courts have found that return to certain cities or eastern Ukraine poses a grave risk.

Additionally, the fact that a child has grown accustomed to life in the U.S. was not a valid concern under the grave risk exception, as it is the abduction that causes the pangs of subsequent return. Also, the exception does not provide a license for a court in the abducted-to country to speculate on where the child would be happiest or who would be the better parent. And grave risk does not encompass a home where money is in short supply, or where educational or other opportunities are more limited. Even if a “grave risk” is shown, a court has “the discretion to consider ameliorative measures that could ensure the child’s safe return.

Here, the court found that return to a different city in the Ukraine, Chernivtsi, a city and oblast in southwestern Ukraine was at less risk than the eastern portion of the country such as Odessa. It was also noted that many Ukrainians had relocated to the western part of the country since the invasion.

The Mother’s argument that her voluntary parole status in the United States should be considered. However, to the extent the mother faced a Hobson’s choice, it is a dilemma of her own making. The record showed that the father was willing to allow her and the child to reside outside of Ukraine, but close enough for contact, while custody was determined.

Instead the Mother chose to come to the United States, as opposed to Moldova or another neighboring country, for the undisputed reason that her family was here. Neither the Convention nor this Court’s decision are constrained by that choice.

Based on those facts the court ordered the return of the Child to Chernivtsi, Ukraine and awarded fees and costs.

The order is here.

Registration for the certification review course is here (if available)

Speaking on the Hague Convention and Interstate Custody

Posted by Ron Kauffman on

Honored to be invited to speak on interstate custody and the Hague Convention at the prestigious Marital & Family Law Review Course in Orlando from January 24th to January 25th. The seminar is co-sponsored by the Florida Bar Family Law Section and the American Academy of Matrimonial Lawyers.

Divorce Religion

Raising Arizona

A recent state court case in Arizona applied both the Hague Convention and state law to order law enforcement to immediately pick up a child allegedly being retained in Arizona by the child’s Father. The Father argued that his due process was violated by not providing an opportunity to be heard.

A child was subject to a parenting time order in Mexico. The child otherwise resided with the Mother, Cohen, in Mexico, and the Father, Gbele, to timeshare in the United States.

On December 20, 2023, the Mother filed a petition under the Hague Convention in Arizona state court alleging the Father refused to return the child to Mexico under their Mexican order, and seeking an order for the child’s removal to Mexico.

The trial court found that the Father had not been served, authorized service by alternative means, and temporarily restrained the Father from removing the child from Arizona. After the Mother filed a notice that the Father was served with process, the trial court entered a “pick-up order” to transfer custody to the Mother in Mexico based on testimony at an earlier hearing that the child is imminently likely to suffer serious physical harm or be removed from this state without the issuance” of the order.

The Father asked to vacate the pick-up order for lack of jurisdiction and due process. On the final hearing day, the court neither took evidence nor decided the merits of the petition. Instead, it determined the Father could not challenge the pick-up order because that order did not resolve any of the Mother’s claims from the petition, and therefore was not a final judgment.

The trial court also refused to vacate the pick-up order as moot because the relief of return was effectuated and awarded the Mother travel expenses. The Father appealed.

Florida UCCJEA and Hague Convention

Parents move from state to state for various reasons. It is a subject matter I have written and spoken about many times. Whether children are moved by parents wrongfully or not, moving your children creates interstate custody and support and problems.

What happens if your children are wrongfully abducted or retained overseas? If that happens, you must become familiar with the Convention on the Civil Aspects of International Child Abduction, also known as The Hague Convention. This international treaty exists to protect children from international abductions by requiring the prompt return to their habitual residence.

The Hague Convention applies only in jurisdictions that have signed the convention, and its reach is limited to children ages 16 and under. Essentially, The Hague Convention helps families more quickly revert back to the “status quo” child custody arrangement before an unlawful child abduction.

The UCCJEA is a uniform act which promotes cooperation with other courts and ensures that a custody decree is rendered in the state which is in a superior position to decide the best interest of the child.

The UCCJEA helps to facilitate enforcement of custody decrees – even when the custody decrees come from a foreign country – and has the aspirational goal of promoting uniformity of the laws governing custody issues. Under the UCCJEA, a foreign country should be treated as a US state for the purposes of applying the UCCJEA.

Arizona Appeal

On appeal, the Mother argued the appeal was moot because the child was returned to Mexico, where it is undisputed the child is subject to a custody proceeding. The appellate court held that mootness is a discretionary doctrine, and in addition to the pick-up order, the Father also challenged the award of transportation costs, which was sufficient to prevent the appeal from being moot.

The Mother also argued that the trial court had discretion to order the child’s immediate removal under ICARA, which implements the Hague Convention in the United States. ICARA enacted provisional measures “to protect the well-being of the child involved or to prevent the child’s further removal or concealment before the final disposition of the petition.”

In rejecting the provisional measures, the court found there was neither allegation nor evidence concerning the child’s well being or any risk of further removal by the Father and the court’s order was not a final disposition of the petition.

Even if ICARA’s provisional remedies allowed the trial court discretion to enforce a provisional remedy, ICARA also provides that no court may order a child removed from a person having physical control of the child unless the applicable requirements of State law are satisfied.

Under Arizona and federal constitutions you are guaranteed due process. Additionally, under Arizona law, a petition to  enforce a foreign child custody order generally requires notice and a hearing before the trial court may order that the petitioner take immediate custody of a child. On remand, the appellate court direct the trial judge to determine whether to dismiss the petition in light of the child’s removal.

The opinion is available here.

Hague Convention and the Mature Child Exception

Posted by Ron Kauffman on

A  common international custody issue under the Hague Convention involves a wrongfully removed child when there is an exception to being returned home. One such exception is the mature child exception. How mature does a child have to be in order to avoid being returned to the child’s habitual residence? A recent Florida case analyzes that question.

Hague Mature Child 2

Oh Mexico

The Father and Mother are the parents of a child born in Mexico in 2013. They lived together in Mexico until approximately one year after the child was born. After their separation, a Mexican court granted custodial rights and child support obligations. The custody order also contained a clause which prohibited Mother from removing minor child from Mexico without Father’s consent.

Then in December 2022, the Mother abducted the child to the United States. After learning his child was abducted, the Father filed a return petition under the Hague Convention in Florida.

The Mother opposed returning the child by arguing that the child was “sufficiently mature and intelligent to object to being repatriated to Mexico.” The trial court conducted an in-camera interview with the child who was then ten years old and had been exclusively with Mother in Florida for over a year. The child testified she lived in an apartment with Mother and her little brother and was attending school and taking English classes. She enjoyed playing at parks and wanted to join a football team.

She also admitted seeing Mother crying and being told by Mother that Father wanted minor child to go back to Mexico and that “I’m afraid that you might be sending me back to Mexico and that I won’t be able to see my mom.” The Mother testified she not only told minor child about the proceedings, but also told her she feared minor child “would be taken back to Mexico and no longer be with me.”

The trial judge denied the Hague return petition after applying the mature child exception. The father appealed.

Hague Convention

I have written and spoken on international custody and child abduction cases under the Hague Convention. The Convention’s mission is basic: to return children to their country of habitual residence.

In the recent Mexican case, the father had to prove by a preponderance of the evidence that the child was a habitual resident of Mexico immediately before her abduction, the removal was in breach of his custody rights under Mexican law, and he was actually exercising rights of custody, or would have been so exercised but for the removal. If so, the child must be promptly returned to Mexico unless there is an exception to return.

The key inquiry in this recent case was the mature child exception. A court may refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is ap­propriate to take account of its views. A court may find that the child’s objection in and of itself is conclusive—it does not have to be coupled with another defense to be sustained.

Talking ’bout Mexico

On appeal, the district court noted that the child was exceptionally bright and articulate, she calmly and clearly conveyed her reluctance to return to Mexico, and conveyed significant family ties, teachers, and friends in Florida.

But in determining whether the mature child exception applies, courts primarily consider whether the child is sufficiently mature, has a particularized objection to being returned and whether the objection is the product of undue influence.

Here, the ten-year-old child’s preference to remain with Mother in Florida was based primarily on: friends, a desire to attend high school, and an upcoming school trip to Orlando. The appellate court found these to be generic and near-sighted responses and demonstrated the child’s inability to maturely comprehend or appreciate the long-term impact of her decisions.

This was especially true considering the child provided no significant testimony as to her life in Mexico or how life in Mexico differed from life in the United States. Also, her fear of return was based solely on not wanting to be separated from her Mother and return to Mexico does not necessarily mean she will be separated from Mother as Mother is free to return with her to Mexico.

Importantly, only a child’s objection is sufficient to trump the Convention’s strong presumption in favor of return, not the child’s mere preference. Here, the child just didn’t want to be separated from her mom. The only fear of returning to Mexico was being separated from Mother and not an unwillingness to live in Mexico.

Finally, the child’s objection was clearly the product of Mother’s undue influence. For example the Mother admitted she told minor child about the legal proceedings and about her fears of minor child being returned to Mexico.

The court reversed and remanded for the trial court to grant return to Mexico.

The opinion is here.

Hague Convention Now Settled Defense

Posted by Ron Kauffman on

An increasingly litigated area of international child custody involves returning a child to their habitual residence under the Hague Convention. However, there are also defenses to a return under the Convention. Recently, a Florida court answered the question whether a wrongfully retained child in Florida was now settled here and need not be returned.

Hague Convention

Return to Machu Picchu?

In the Florida case, a Father and Mother married in Peru in 2012. One child was born during the marriage, and all three are Peruvian citizens. They divorced in 2015, had joint custody, but the child lived primarily with Mother.

In 2021, Mother wanted to visit Florida. The parents signed a travel authorization for the trip from September 2021, through October 2021. However, the Mother and Child never returned. More than a year later, Father filed a state court petition for return of the child to Peru.

The trial court found that Father had rights of custody, had been exercising his rights at the time of the wrongful retention and Peru was the child’s habitual residence.

However, the trial court found that the Father was aware that the Mother was not returning to Peru with the Child before the October return date and that the Mother established, by a preponderance of the evidence, the “well settled” or “now settled” recognized exception under the Hague Convention. The Father appealed.

Florida and the Hague Convention

I have written and spoken on international custody and child abduction under the Hague Convention. The Convention’s mission is basic: to return children to the State of their habitual residence to require any custody disputes to be resolved in that country, and to discourage parents from taking matters into their own hands by abducting or retaining a child.

The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

However, a child need not be returned if it is demonstrated that the child is now settled in the new environment. The U.S. State Department’s interpretation of what “settled” means includes factors such as 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; friends and relatives and participation in school activities, such as team sports, youth groups, or school clubs for example.

Unsettling

The appellate court found that the “well settled in her new environment” exception to the Hague Convention, is not specifically defined in either the Convention itself or in the federal implementing statute ICARA.

But, a child has been considered to be “settled ‘within the meaning of the Convention when a child has significant connections to their new home that indicate that the child has developed a stable, permanent, and non-transitory life in their new country to such a degree that return would be to child’s detriment.

The appellate court reviewed the extensive testimony and the record which adequately shows that the trial court received competent substantial evidence. Accordingly, the appellate court held that Father failed to establish that clear error was committed by the trial court in finding that Mother met her burden of proof on this exception and in thereafter exercising its discretion to not return Child to Peru. Accordingly, the final order denying Father’s petition for return of Child to Peru is affirmed.

The opinion is here.

New Article Hague Abduction Convention Not Your Typical Custody Case

Posted by Ron Kauffman on

My new article “The Hague Abduction Convention: Not Your Typical Custody Case”, discusses a problem frequently encountered by lawyers representing parents in international child custody disputes. The problem is parents treating their Hague Abduction Convention case as if it were any other custody case. The article is now available on the KidSide website.

Hague Court

Hague Abduction Convention

The Hague Abduction Convention is the primary mechanism to ensure the return of children who have been wrongfully removed or retained from their country of habitual residence. The two main purposes behind the Convention are to protect children from the harm of an international abduction and secure the left behind parent’s rights of access to their child.

However, many parents confuse the purposes of the Convention, mistakenly thinking their best defense rests on proving what a better parent they are. It comes as a surprise to many people to learn that the judge in a Convention case does not even have jurisdiction to hear their child custody dispute.

But before any defenses are even asserted, a parent seeking a child’s return must first prove their case. To prove a case under the Convention, a Petitioner must demonstrate where the habitual residence of the child was before the wrongful removal; that the removal breached custody rights; and at the time of the child’s removal those rights were actually exercised.

There are a limited number of available defenses under the Hague Abduction Convention, and those defenses are different from a typical child custody case. They are different because the purposes of the Convention are different. Given that courts in a Convention case cannot decide the merits of the custody dispute, typical arguments about the best interest of the child don’t have much traction, leaving a limited number of defenses.

KidSide

Child abduction cases under the Hague Convention have a negative impact on children. Add to that, the growing number of high-conflict court cases, like divorce and domestic violence. Because of the growing number of high-conflict cases, there is always a lack of support for kids caught in the legal system.

That’s where KidSide comes in.

KidSide is a 501(c)3 which supports the Family Court Services Unit of the Miami-Dade County, Florida courthouse – the largest judicial circuit in Florida. KidSide can use your support as it supports Family Court Services.

Together, they have been providing crucial services to children and families for more than 20 years. The Unit assists all judges and general magistrates with some of the Court’s most difficult family cases by providing solution-focused and brief therapeutic interventions.

KidSide helps the Family Court Services Unit provide services for families at no cost in the areas of alienation, child/family assistance, co-parenting, crisis assistance, marital reconciliation, parenting coordination, reunification, time-sharing, supervised visitation, and monitored exchanges.

They are staffed with dedicated professionals who are committed to helping families reduce their level of conflict and provide supportive services for the entire family system with particular sensitivity to children.

You can support KidSide by clicking here.

The Kidside article is here.

The Hague Convention Meets the Best Interest Test

Posted by Ron Kauffman on

The United Nations Committee on the Rights of the Child determined that the Supreme Court of Chile violated the rights of a child after ordering the child returned to his habitual residence of Spain without applying the best interest test.

Hague Convention Best Interest Test

Answering An Andes Abduction

The Mother is a national of Chile. In 2015, she married the Father, a national of Spain. In January 2016, her son J.M., a dual Spanish Chilean citizen, was born in Chile. The Mother and her son left Chile to live with the Father in Spain in November 2016.

When J.M. was a little over a year old and living in Spain with both parents, medical professionals suspected he had a language delay and a form of autism.

Shortly after this spectrum diagnosis, the mother wanted to bring J.M. to Chile where she had arranged his treatment and support plan. The mother wanted to stay in Chile for at least two years.

In July 2017, the father signed an authorization for the mother to travel with J.M. to Chile, where the mother scheduled treatments and support for autism. They decided to stay in the country for at least two years. and had the father’s written approval to travel.

In 2018, one year after authorizing the travel, the father filed a complaint with the Central Authority in Spain, the Ministry of Justice, for wrongful abduction and/or retention of J.M. under the Hague Convention on the Civil Aspects of International Child Abduction.

In January 2019, two lower courts in Chile agreed with the Mother and rejected the father’s return petition. The courts rejected the father’s claim on the grounds that he had given the tacit, even explicit, consent to remain in Chile, which has been the child’s place of habitual residence since birth.

In September 2019, the Supreme Court of Chile overturned the lower courts’ decisions and ordered the child returned to Spain. The Supreme Court did not indicate the conditions under which J.M.’s return should take place, in whose company he should travel, or where and with whom he would ultimately reside and in what circumstances.

The Mother filed a complaint before the United Nations Committee on the Rights of the Child  in 2020.

Hague Child Abduction Convention

I have written and spoken on international custody and child abduction under the Hague Convention. The Convention’s mission is basic: to return children to the State of their habitual residence to require any custody disputes to be resolved in that country, and to discourage parents from taking matters into their own hands by abducting or retaining a child.

The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

While there are several defenses to a return of a child, the best interest of the child is not one of those defenses. That’s because the Hague Convention prioritizes expeditious determinations as being in the best interests of the child.

UN-Heard Of

The U.N. Committee held that the Chile Supreme Court’s order for the restitution of J.M. to Spain failed to conduct a best interests assessment required in all actions concerning children, and violated the child’s procedural guarantees under the Convention on the Rights of the Child.

The Committee noted that, under the Hague Convention, decisions on the return of children must be taken promptly to ensure that the child’s normal situation is duly restored. However, the Committee considered that the purpose and objective of the Hague Convention does not entail that a return of the child should be automatically ordered.

The Committee held that in international child abduction cases, states must first assess the factors that may constitute an exception to the duty to immediately return the child under articles 12, 13 and 20 of the Hague Convention, and then secondly, these factors must be evaluated in the light of the best interests of the child.

The Committee did not find that the child should necessarily remain in Chile. Instead, it found that the Supreme Court of Chile failed to apply the necessary procedural safeguards to ensure that return would not expose the child to harm or a situation contrary to his best interests:

A court applying the Hague Convention cannot be required to carry out the same level of examination of the best interests of the child as the courts called upon to decide on custody, visitation arrangements or other related issues . . . the judge ruling on the return must assess . . . the extent to which the return would expose him or her to physical or psychological harm or otherwise be clearly against his or her best interests.

The U.N. Committee ruled that Chile should re-assess the return petition, take into account the length of time elapsed, the extent of J.M.’s integration in Chile, and pay reparations for the violations suffered, including compensation.

The Committee also ruled that Chile should try a little harder to prevent future violations by ensuring the best interests of the child are a primary consideration in decisions concerning international return.

The U.N. Committee on the Rights of the Child press release is here.

International Child Abduction Action Report

Posted by Ron Kauffman on

Every year international child abduction cases are reported to the Congress by the U.S. Department of State. These annual Action Reports show Congress the actions taken against countries determined to have been engaged in a pattern of noncompliance. So, which countries in our hemisphere were noncompliant?

International Abduction Action Report

2022 Action Report

Under the Hague Convention, the State Department is tasked as our Central Authority. The Central Authority facilitates implementation and operation of the Hague Convention on child abduction in the U.S.

After passage of the Sean and David Goldman International Child Abduction Prevention and Return Act, the State Department was later assigned the duty of submitting annual Action Reports on International Child Abduction to Congress on the specific actions taken in response to countries determined to have been engaged in a pattern of noncompliance.

The 2022 Annual Report is an overview of the Department’s efforts to support the resolution of international parental child abduction cases.

The Department also reports on their work with foreign governments and authorities to promote procedures to encourage the prompt resolution of existing international abduction cases. The aim is that, in general, international custody disputes should be resolved in the competent court of the country of the child’s habitual residence.

Countries which don’t meet their Convention obligations, or fail to work with the U.S. to resolve child abduction cases, can face “appropriate actions.”

Florida International Child Abduction

I’ve written and spoken about international child abduction cases under the Hague Convention before. The Hague Convention seeks to deter child abductions by a parent by eliminating their primary motivation for doing so: to “deprive the abduction parent’s actions of any practical or juridical consequences.”

The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The Hague Convention is implemented in the United States through the International Child Abduction Remedies Act. Then in 2014, the International Child Abduction Prevention and Return Act was signed into law.

Even if a country is a signatory country and treaty partners with the U.S., returning a wrongfully retained or abducted child may still be complicated because some signatory countries are not complying with the Convention. That is where the State Department’s Action Report comes in.

ICAPRA increases the State Department’s annual reporting requirements. Each year, the Department not only submits an Annual Report on International Child Abduction to Congress, it submits another report on the actions taken towards countries determined to have been engaged in a pattern of noncompliance.

A Carnival of Noncompliance

The State Department Action Report includes both countries where there is a treaty relationship with the United States under the 1980 Hague Child Abduction Convention, and countries where no treaty relationship exists.

The 2022 Action Report reviews the results of cases which were resolved the previous year. Some of the countries in our hemisphere which failed to regularly implement and comply with the Hague Convention include Argentina, Belize, Costa Rica, Ecuador, Honduras, Peru, Trinidad and Tobago, and Brazil.

Brazil has had the Convention in force with the U.S. since 2003. Brazil has also demonstrated a pattern of noncompliance for years. Complaints have criticized its judicial authorities for failing to regularly implement and comply with the Convention, and failing to take appropriate steps to locate children in abduction cases. Brazil has previously been cited for a pattern of noncompliance since 2006.

Brazil is also the country where David Goldman had to fight for his son Sean to be returned to the United States after his wrongful retention by his mother. Sean was only returned to the U.S. after 5 years. The Goldman’s bitter experience in Brazil led to the passage of the ICAPRA.

However, the country of Brazil is not entirely on siesta. Among other steps, Brazil increased its number of Hague Network Judges, published a manual for judges hearing Convention cases, and resolved eight U.S. cases on file – including the return of six children to the United States.

ICAPRA also adds steps the U.S. can take when a country refuses to cooperate in the resolution of overseas abduction and access cases involving American children. The steps can include: a demarche (a petition or protest through diplomatic channels); public condemnation; delay or cancelation of official, or state visits; suspension of U.S. development assistance; and even the withdrawal or suspension of U.S. security assistance.

The 2022 Action Report is available here.