The Hague Convention on International Child Abduction

What do you do if your child is abducted to a foreign nation by his/her other parent? What recourse do you have? Fortunately, The Hague Convention on the Civil Aspects of International Child Abduction was created to combat that very problem, parental kidnapping.

A major goal of the Hague Convention is to deter a parent's desire to abduct a child in the hope of obtaining a more favorable custody determination in another jurisdiction. For that reason, the Hague Convention requires that a child be returned to his/her habitual residence. The person who removed your child may plead one of the following defenses: The return of the child to his/her habitual residence would pose a grave risk of harm; the child was not a habitual resident of the state from which he/she was taken; the parent was not exercising custody rights; the person who is now objecting has actually consented to the removal or retention of the child; or more than one year has elapsed since the child was abducted to the date the application for his/her return was filed.

A parent who learns that his/her child has been wrongfully abducted from the United States or wrongfully retained in the United States should contact the Central Authority, which is the State Department, to report the abduction or wrongful retention of the child. The parent must fill out the Request for Return form and forward it to the Central Authority. If a Request for Return form has been filled out in the country from which the child was abducted, that country will forward it to the United States Central Authority. The Central Authority usually puts the Petitioner in touch with an attorney in the state where it is believed that the child is being retained.

In order to begin a Hague Application for the return of a child to his/her habitual residence a Verified Petition for the Return of the Child to the Petitioner, as well as a Declaration of Habitual Residence must be filed. All names and addresses must be redacted to protect anonymity. A Hague action can be initiated in either Federal or State Court. Normally, the Hague action is filed in Federal Court, as Federal Court's tend to be faster. If the petition is brought in Federal Court it must be electronically filed and a hard copy must also be sent to the Court. After that, the Respondent must be served with the documentation.

A Judge determining a Hague Convention case is not permitted to determine what is in the child's best interests, but rather, must decide in what jurisdiction custody should be determined in. It is our job, as your attorney, to educate the judge on the provisions and correct application of the Hague Convention and present your case vigorously. As the case progresses there may be limited discovery or requests for information and/or documentation. There are a number of court appearances that take place before the case goes to trial. The Judge will hold a pre-trial conference to determine if there is any way the case can be settled, which, unfortunately in Hague cases, is very difficult. If the abductor has raised an affirmative defense such as the Article 13b "grave risk of harm" defense, a Judge may seek the guidance of an expert and appoint a mental health professional to interview the children and the parties.

While the Hague Convention mandates that a Petition be heard expeditiously many local procedures tend to delay the trial. It is very important to remember that the Petition must be filed within one year of the abduction or wrongful retention. If it is not, the Petitioner runs the risk of a Judge ruling that the child has become acclimatized to his/her new environment and may refuse to return the child to what would have been otherwise classified as his/her habitual residence. For that reason it is so important to act fast, retain a knowledgeable attorney experienced in Hague matters and with Federal court procedure and report abductions or wrongful retentions to the appropriate Central Authority.

Lesnevich & Marzano-Lesnevich, LLC, has several attorneys who are very knowledgeable about and experienced in Hague Convention cases. They have been honored by the National Center for Missing and Exploited Children. They have also written published articles about aspects of the Hague Convention. Several of their cases are the subject of Federal Court published legal opinions.

Lesnevich & Marzano-Lesnevich, LLC, is ready to assist you if you have a kidnapped child situation. Unfortunately, the ease of international travel, bi-national marriages and the ability of dual nationality children to hold two passports have all contributed to international parental child abduction. However, the Hague Convention has allowed us to combat the unlawful retention of your child by the abducting parent and reunite you with your child.