International Custody and the Hague Convention

The most pressing and dangerous problems in domestic disputes are often those involving the custody of minor children. Although it is common for divorcing spouses to find themselves embroiled in legal battles over matters pertaining to alimony or property division, the issue of child custody and the rights of parents to raise their children as they see fit can unquestionably predominate family law disputes and become the most contested issue in the litigation. In custody disputes between unmarried parents, issues pertaining to child custody and child support are many times the only issues litigated between the parties.

While parties involved in divorce or custody litigation often resolve their legal disputes in one local jurisdiction, with the increase in economic globalization and interstate and international travel, parents now routinely travel with their children across several states or even several countries. In a situation such as our current pandemic, one parent could find himself or herself trapped in a different jurisdiction from where the children presently reside, and the other parent could subsequently take advantage of the geographical confinement of that parent as a means to facilitate a parental abduction of the minor children. Against this backdrop, it is extremely complicated, confusing, and stressful for parents who are involved in a dispute over their minor children and want to file a legal action for custody.

In order to address the problem of international child abductions during domestic disputes, several countries throughout the world began adopting the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”), Oct. 25, 1980, T.I.A.S. No. 11670, S. Treaty Doc. No. 99-11. Including the United States, the Hague Convention has been adopted by 101 countries; the Hague Convention refers to the countries that have adopted it as “Contracting States.” In 1988, Congress implemented the provisions of the Hague Convention throughout the United States with the passage of the International Child Abduction Remedies Act (“ICARA”). 22 U.S.C. § 9001 et seq. ICARA is binding on all the states within the United States. The Hague Convention is binding on all "Contracting States."

In the United States, interstate custody disputes are primarily governed by two different laws: (1) the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”); and (2) the federal Parental Kidnapping Act (the “PKPA”). Although these laws are frequently applied in Tennessee and other states in the context of interstate custody disputes, these laws do not govern custody disputes that are international in nature. For a more detailed discussion on the UCCJEA and the PKPA, click here. In the event a custody dispute becomes international in nature, and one or more of the children in a legal dispute have been removed from their home country or the parents are physically present in different countries at the time of the dispute, the terms of the Hague Convention can apply.

Generally, the Hague Convention mandates that a child abducted in violation of the other parent’s “rights of custody” must be returned to the child’s country of habitual residence, unless particular exceptions apply. See, e.g., Abbot v. Abbot, 560 U.S. 1, 5 (2010). While the Hague Convention is frequently invoked in the context of children who have been wrongfully removed to a different country, the Hague Convention can also apply in situations where children are being wrongfully retained in a country other than the country of their habitual residence. In any legal proceeding governed by the Hague Convention, the parent petitioning the court must first prove that the child has been removed or retained from his or her country of habitual residence.

If a court finds that the Hague Convention is applicable in a legal dispute because a child was wrongfully removed or retained from the country of habitual residence, then the court must order the return of the child to the country of habitual residence unless the other parent can establish that a defense to return applies. The Hague Convention and ICARA provide for five different defenses to return: (1) that return of the child would not be permitted by “fundamental principles of the United States relating to the protection of human rights and fundamental freedoms;” (2) that return would expose the child to a “grave risk” of “physical or psychological harm or otherwise place the child in an intolerable situation;” (3) that the parent petitioning the court for return of the child did not file his or her petition within one year of the removal of the child, and the child is now well-settled in another country; (4) that the parent petitioning for the return of the child was not actually exercising his or her custodial rights at the time of the removal or had consented to or acquiesced in the removal; and (5) the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views. Trudrung v. Trudrung, 686 F. Supp. 2d 570, 574 (M.D.N.C. 2010).

The burden of proof for establishing a defense to return of a child falls upon the parent resisting the return, and the first two defenses listed above must be supported by clear and convincing evidence. Even if a parent is able to establish a defense to return, a court applying the Hague Convention and ICARA still retains the authority and discretion to order the return of the child if it believes that returning the child would further the policy objectives of the Hague Convention.

Importantly, the Hague Convention does not apply to cases where the child has reached the age of 16. Even in cases where the Hague Convention applies, international custody disputes often arise concurrently with divorce proceedings or custody proceedings in multiple jurisdictions. As a result, it is not uncommon for an international custody dispute to occur on multiple fronts, with parents prosecuting or defending legal actions in multiple places at the same time in an attempt to regain custody of their children or effectuate their return to their home country.

International custody disputes are almost always extremely complex and delicate situations, and you should not attempt to navigate them without the assistance of a knowledgeable and experienced attorney. Cole Law emphasizes quick, effective, and decisive legal action when confronted with interstate or international custody disputes, and our Nashville family law attorneys can assist you in rapidly responding to the legal complexities of emergency custody situations. Cole Law’s Nashville attorneys are licensed in all Tennessee state courts and Tennessee federal district courts, and have assisted clients in international custody disputes in both Tennessee state courts and federal courts. Call us today to schedule a consultation.