What is the Hague Convention and why does it matter?
When the divorce is finally over, a parent might be surprised by a request from the other parent to take the children on an international trip outside of the U.S. If there is conflict in the relationship, suspicion might arise about the true motives for the invitation. Especially if the other ex-spouse has roots or family abroad, the left-behind parent might worry that the traveling parent might plan to keep the kids abroad in violation of the custody and visitation order from the Florida court.
Or worse, the other parent takes the child out of the country without the custodial parent’s permission.
The Hague Convention
In legal terms, this is parental abduction or wrongful removal. Because of the extreme difficulty and cost of trying to get children back home in such situations, the United States is signatory to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, a treaty that creates mutual obligations among the participating countries to assist in getting these kids back home.
For the Hague Convention to apply, both countries involved must be parties to the treaty. According to the Hague Conference on Private International Law, an intergovernmental organization referred to as HCCH, there are (as of 2015) 93 country members signed on to the treaty, plus the European Union.
Congress incorporated the treaty obligations into U.S. law when it passed the International Child Abduction Remedies Act or ICARA. This law and the U.S. Supreme Court have expressed support for the Convention because of the substantial harm that a wrongful international removal can cause to children.
Standard for return and exceptions
In its own words, the Convention’s purpose is “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.”
The Convention creates a court process within the foreign country for return of a child under 16 to his or her “habitual residence” if he or she was wrongfully taken to or detained in the country without the custodial parent’s permission.
The Convention has six exceptions that the adjudicating court may apply in its discretion that would allow the child to stay despite otherwise being subject to return:
- Consent of the left-behind parent
- Acquiescence of that parent
- Child’s objection, if mature enough for the court to consider it
- A year has passed and the child is “settled”
- Child’s human rights may be in jeopardy by return
- Return would cause the child “grave risk of harm”
Any Floridian with concerns about a child abroad should immediately talk to an experienced family lawyer to understand the legal options available under the Hague Convention or otherwise.