The purpose of this article is to give every practitioner, from the seasoned attorney to the first year associate, a basic understanding of the treaty formally known as the Hague Convention of October 25, 1980 on the Civil Aspects of International Child Abduction (hereinafter “the Convention”).
Read More The Convention was ratified by the United States on July 1, 1988 and is implemented by the International Child Abduction Remedies Act, 42 U.S.C. § 11601, et. seq. (1988), also known as ICARA. The text of the Convention is published at 51 Fed. Reg. 10498 (1986). A copy of the Convention is also attached to the opinion in Duquette v. Tahan, 252 N.J. Super. 554, 563-579 (App. Div. 1991). The Convention is an international response to child custody jurisdictional disputes which gave rise to parental kidnapping and child abduction.
Prior to the 1980’s, child custody jurisdictional decisions around the world and in the United States were governed by parochial concerns. For example, in the case of Borys v. Borys, 76 N.J. 103 (1978), the New Jersey Supreme Court held that child custody decrees of sister states were not entitled to full faith and credit. New Jersey, not unlike other jurisdictions throughout the world, was not prepared to cede the authority to decide what was in the best interest of a child living within its borders. The unintended result of parochial decisions regarding child custody jurisdiction was to encourage parental kidnapping and other self-help remedies where parties would bring children into more “friendly” jurisdictions to decide custody claims.
The Convention is not a custody statute. It is a jurisdiction statute and law of international comity which provides that the country where a child was “habitually resident” is to be the decisionmaker in a custody dispute. Therefore, when there is wrongful removal or retention of a child, the remedy under the Convention is for the child to be returned and to have the country where the child was “habitually resident” determine the issue of custody.
When involved in an international child custody matter, the first step is to determine whether the jurisdictions involved have ratified or acceded to the Convention and have had their accessions accepted by the member countries. Although 73 nations have ratified the Convention as of January 1, 2003, not all 73 countries have contracted with each other. For example, although the United States and Uzbekistan have ratified the Convention, the United States has not accepted Uzbekistan’s accession and therefore the Convention would not apply in a case involving these two jurisdictions. Practitioners should also be mindful that although New Jersey has relatively large Indian, Pakistani, Cuban, and Arab populations, India, Pakistan, Cuba and all Arab nations have not adopted the Convention. For an up-to-date listing of all nations ratifying the Convention and nations that have had their accessions accepted by member nations, practitioners should consult the Hague Convention website at http://www.incadat.com .
If the Convention is applicable, the petitioner can file an application for the return of the child in the nation where the child has been relocated or in the jurisdiction where the child is alleged to have been a habitual resident. In making an application in the nation where the child has been relocated, it is critical to consider efforts to avoid further removal of the child. A writ of habeas corpus, an order requiring the surrender of the passports of the child and the parent, and other appropriate restraints must be considered so as to prevent a party from fleeing with the child from one country to another after receiving notice of an application under the Convention. If the child is removed from the requested state, the application in that jurisdiction may be stayed or dismissed.
In the United States, federal and state courts have concurrent jurisdiction in cases brought under the Convention. Therefore, petitioners have a choice as to where to proceed. Petitioners from other nations seeking the return of a child may elect to proceed in the federal courts as they may believe that state courts are more inclined to act parochially in these matters. My review of the case law in New Jersey has determined that there is no basis for this concern in this state.
After selecting the court and considering action to prevent the child from being further relocated, the petitioner has the burden to show by a preponderance of the evidence that he had “rights of custody” to the child that were breached by removal of the child from the state where the child was habitually resident.
Therefore, relatives and other interested parties not having “rights of custody” will not be entitled to relief under the Convention. See Loos v. Manuel, 287 N.J. Super. 607 (Ch. Div. 1994) (foster parents had no rights of custody and could not proceed under the Convention). On the other hand, parties having parenting time rights (although not physical custody) have been deemed to have “rights of custody” under the Convention. The petitioner seeking the return of the child must not have abandoned his custody rights and must have been exercising the custody rights at the time of removal or retention. The court may request the petitioner to obtain an Order from the state of habitual residence that the removal was “wrongful.”
The petitioner must show that the child was “habitually resident” in a contracting state immediately before any wrongful breach of custody rights. Unfortunately, the Convention does not define the term “habitually resident.” A New Jersey court has held that habitual residency “may be looked at as a place that is the focus of the child’s life.” Roszkowski v. Roszkowska, 274 N.J. Super. 620, 633 (Ch. Div. 1993). The cases where the issue of habitual residency is challenged center on contacts between the child and the jurisdiction in question and the intention of the parents, as well as their actions. What to one party constitutes habitual residency to another party is a vacation out of the country, a temporary stay abroad to visit family or friends, or a temporary work assignment in a nation away from home.
Most recently, the United States District Court of New Jersey weighed in on the issue of habitual residence in the matter of Delvoye v. Lee, 224 F. Supp. 2nd 843 (D.N.J. 2002). In Delvoye, the court was faced with unmarried cohabitants who traveled between residences in New York and Belgium. Upon the mother of the child becoming pregnant, the parties decided that the mother would go to Belgium and give birth to the child in that country. Two (2) months after the child was born the mother left Belgium with the child and took up residency in her family’s home in New Jersey.
Thereafter, the father filed a complaint under the Convention with the federal court in New Jersey for the return of the child. The father argued that Belgium was the child’s habitual residence as the child was born there and had lived in Belgium exclusively until being removed by the mother for what he argued was intended to be a short visit to the United States. The father pointed to the purchase of round-trip airline tickets as proof of the mother’s intention to only visit the United States and to return to Belgium with the child.
Despite what on its face appeared to be a strong case for the return of the child, the District Court denied the application finding that the father failed to meet his burden to show that the child was a habitual resident of Belgium. The court indicated that in the case of a newborn infant, it is particularly appropriate to focus on parental intentions in determining a child’s habitual residence. In the words of the court, “a two-month old neonate simply has not been present anywhere long enough to have an acclimatization apart from his parents.”
Relying heavily on statements made by the parties to third persons, the court found that it was the intention of the parties to have the child raised and educated in the United States. The court found that the mother traveled to Belgium to give birth “so as to take advantage of that country’s free medical services,” and not for purposes of establishing permanent residency. The court rejected any bright line rule that a child born in a country is automatically a habitual resident of that country and further analogized the situation to a couple living in the United States who gives birth to a child during a vacation out of the country. Recently, the United States Court of Appeals for the Third Circuit affirmed the decision of the District Court in Delvoye. 2003 U.S. App. Lexis 9652.
The Delvoye case demonstrates that Convention cases are extremely fact sensitive and that they will often turn on credibility determinations to be made by the court. Practitioners handling these matters will need to focus on the details of the child’s contacts with the jurisdiction and the intentions of the parties as expressed in either words or actions. Witnesses who can corroborate or refute the intentions of either parent can often be of critical importance.
As the Convention is not a custody statute, physical custody of the child is not to be addressed until the issue of the return of the child is determined. Tahan v. Duquette, 259 N.J. Super. 328 (App. Div. 1992). Under ICARA, “courts in the United States (are empowered) to determine only rights under the Convention and not the merits of any underlying child custody.” See 42 U.S.C. § 11601(b)(3)(b) and (b)(4); see also Caro v. Sher, 296 N.J. Super. 594 (Ch. Div. 1996). If a child is ordered to be returned under the Convention, the country where the child was habitually resident will decide the custody issue. Furthermore, a decision to return the child “shall not be taken to be a determination on the merits of any custody issue.” (See Convention, Article 19).
The Convention also provides for a rocket docket timetable for deciding these matters. Specifically, contracting states are to act “expeditiously” in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six (6) weeks from the date of commencement of the proceedings, a statement for the reasons for the delay must be provided. (See Convention, Article 11).
Even assuming that a petitioner can demonstrate wrongful removal or detention from the child’s habitual residence, the respondent can avoid the return of the child based on the following defenses:
Objection of the child: The Convention provides that a judicial authority may refuse to order the return of a child who objects to being returned and who has attained an age and degree of maturity which makes it appropriate to consider the child’s views. (Convention, Article 13). In considering the objections of the child, the court can interview the child.
However, a New Jersey court has held that it is not plain error to refuse to interview a nine-year-old child finding that the interview would not have served a useful purpose. Tahan at 335. Courts have also ignored the objections of the child where it was determined that the child’s position was influenced by the parent who removed the child. Clearly, the older and more mature the child, the more weight a court will give to the child’s position as to returning the child to his habitual residence. On the other hand, practitioners should be mindful that the Convention does not apply to children age 16 years or older.
Consent of the parties: If a respondent can prove that the petitioner consented to removal of the child to the new jurisdiction, the child’s return will not be ordered.1 In addition to consent, return of the child will also not be ordered if the petitioner may have “subsequently acquiesced in the removal or retention.” This places emphasis on petitioners to act expeditiously so as to avoid the inference of having consented to the removal after the fact. Indeed, under the terms of the Convention, applications filed more than one year after the removal are subject to being denied on the basis that the child is settled in a “new environment.” (Convention, Article 12).
Grave risk of harm: Another defense is that the return of the child would expose the child to a grave risk of “physical or psychological harm or otherwise place the child in an intolerable situation.” (Convention, Article 13). This defense often summons up traditional custody arguments such as where claims of abuse of the child are alleged against the parent seeking the child’s return. In addition, some courts have recognized the grave risk of harm defense for refusing to return the child on the basis that the child’s habitual residence is a dangerous place. For example, an Australia Family Court denied return of a child to Israel due to the security situation in that country. A court in England relied on this defense to deny the return of a child where the parent fled for safety with the child as a result of domestic violence.
New Jersey courts have made clear that the defense of grave risk to the child of psychological or physical harm is not intended to result in a full blown custody hearing. “Psychological profiles, detailed evaluations of parental fitness, evidence concerning lifestyle and the nature and quality of relationships all bear upon the ultimate issue. The Convention reserves these considerations to the appropriate tribunal in the place of habitual residence . . .. No court on a petition for return should intrude upon a foreign tribunal’s subject matter jurisdiction by addressing such issues.” Tahan v. Duquette, 259 N.J. Super. 328, 334 (App. Div. 1992).
Human rights and fundamental freedoms: The Convention provides that a child’s return may be refused “if this would not be permitted by the fundamental principles of the requested state related to the protection of human rights and fundamental freedoms.” The burden is on the respondent to prove this defense by clear and convincing evidence. This defense requires an evaluation of the type of justice that lies ahead should the child be returned. For example, should the United States return a child to a contracting state where women have inferior status as it relates to custody and rights to the child? What if it is demonstrated that the jurisdiction in question would not be able to guarantee a fair hearing and due process for the parties?
Courts have recognized that if this provision is interpreted broadly, the treaty would become meaningless as no two (2) court systems are exactly alike. For this reason this exception, according to the drafters, was intended to be restrictively interpreted and applied. Therefore, it is not sufficient to merely show that the foreign tribunal and procedures do not correspond in all respects with those in this jurisdiction. So for example, a New Jersey court held that a four year delay in having a Spanish court rule on an application concerning the child was not a basis to find that the return of the child would offend the fundamental principles of this jurisdiction. Caro v. Sher, 296 N.J. Super. 594 (Ch. Div. 1996).
It bears observing that one of the reasons that the United States has not accepted the accession of every nation ratifying the treaty is because of concern that the judicial system of the foreign state may not provide sufficient rights and safeguards to litigants. Therefore, it can be argued that respondents seeking to prevent the return of the child on the issue of human rights and fundamental freedoms have a difficult burden when the United States has accepted the accession of the foreign state.
The statistics show that in cases filed under the Convention, the over-whelming majority of matters ending in a final hearing, result in return or access to the children. Undoubtedly, the Convention has served to reduce child abduction throughout the world and to resolve international custody disputes in a civil manner. As more nations ratify the treaty, it is likely that the utility of the Convention will increase in the future.
* Mr. Paone is a former Chair of the New Jersey State Bar Association Family Law Section. He is a Fellow of the American Academy of Matrimonial Lawyers and is a Certified Matrimonial Law Attorney. He was honored with the 2002 Tischler Award for his contributions to the practice of family law. He is the senior partner in the law firm of Paone, Zaleski & Brown.
1 Although unnecessary to the decision, the court in Delvoye also concluded that the father had consented to the removal of the child by executing the passport application and by driving the mother and child to the airport to leave Belgium.