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Been around and I can’t find my baby: The Hague and child extradition

| Feb 26, 2021 | Child Custody, Parental Abduction |

Are you a Florida parent concerned that your ex-spouse, spouse from whom you are separated or partner who is your child’s other parent from another country will or has taken your child to that nation without your permission or contrary to Florida child custody court orders? Or, did that parent take your child abroad with your permission but did not return as agreed?

Whatever your family circumstances, when a Florida parent wants to take legal action to get their child home from abroad in a similar situation, they can utilize processes under an international treaty that the United States has signed along with approximately 100 other countries. The treaty created international processes for facilitating requests for the authorities in other countries to send children under 16 back to their home nations when their parents have wrongfully taken them from their home countries or kept them abroad.

The Hague Abduction Convention

Under the Hague Abduction Convention, international parental abductions are handled using a specific procedure designed to move swiftly. The parent where the child is at home – called the country of “habitual residence” – must make a request of the country where the child is detained (if that nation also signed the treaty and the U.S. and that country have created a treaty partnership) called a return-order petition or Hague application. The petition asks the country’s “Central Authority” for abduction cases to locate the child and coordinate their return.

Whether the removal or retention of the child is wrongful is determined by the custody orders in the place of habitual residence.

Determining habitual residence

Sometimes the parents may dispute which country is the child’s habitual residence. The U.S. Supreme Court in the recent case of Monasky v. Taglieri explained that courts in several Hague Convention countries agree that habitual residence is an intensely factual question that asks, “Where is this child at home?”

This does not depend on any agreement between the parents, but rather on a factual analysis. The actual living situation of the child may even show that the place of habitual residence is contrary to an agreement between the parents. According to Monasky, the focus should be on where the child is part of a “social and family environment.”

What will the other country’s Central Authority do?

If the child is under 16, wrongfully brought there or wrongfully kept there, and the home parent was exercising their rights to custody (or would have been if not prevented by the abduction), the Central Authority should facilitate the return of the child to its habitual residence, regardless of the nationality or immigration status of the parents or child.

However, the treaty sets out some exceptions that allow the other country – usually through its court system – to refuse to return the child:

  • Risk of physical or mental harm or other inappropriate circumstances
  • Mature child’s objection
  • Child’s adjustment to the new environment if more than a year since abduction
  • Parent at home gave permission to leave or stay abroad
  • Violation of human rights, or freedoms protected in country of abduction not present at home
  • Petitioning parent did not exercise custody rights at time of abduction

This introduces a complex area of law that an experienced family lawyer can more fully explain. An attorney can assist with a Hague petition, communication with the U.S. Department of State and other phases of the request to return a child from abroad.

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The Law Office of Forrest & Forrest, PLLC represents individuals in Fort Lauderdale in high-asset divorce matters. Daniel Forrest is board-certified family lawyer and mediator serving the South Florida area.

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