A Primer on The Hague Convention
There are presently ninety-eight signatories to The Hague Convention on the Civil Aspects of International Child Abduction. The Convention “generally requires courts in the United States to order children returned to their countries of habitual residence, if the courts find that the children have been wrongfully removed to or retained in the United States.” Chafin v. Chafin, 568 U.S. 165, 168 (2013).
The proceedings are to be expedited, and typically can be pressed forward within six weeks. Accordingly, the goal of the Convention is to see children returned to their home state with speed and efficiency when they have been transported across international boundaries in violation of a conservator’s rights.
The goal of this submission is to provide a general outline of the major caltrops presented by a petition under the Convention. The primary elements of sustaining a cause of action are provided herein, but are no replacement for complete reading of the Convention, which is less than ten pages in length in its entirety and can be digested along with a morning coffee.
I. Habitually Resident
Article 4 of the Convention provides that “the Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights.” Article 5 defines “rights of custody” to “include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence” and defines “rights of access” to “include the right to take a child for a limited period of time to a place of other than the child’s habitual residence.” Although there is no definition within the convention itself, habitual residence has been interpreted by various American federal Courts of Appeals.
The U.S. Courts of Appeals for the Third and Ninth Circuits have developed a standard for determining a child's habitual residence that emphasizes the parents' shared intentions. The Third Circuit and the Eighth Circuit have attempted to balance evidence of the child's acclimatization with shared parental intentions; whereas the Ninth Circuit has concluded that the primary focus should be on the parents' shared intentions. Even when there is no shared intent, the Ninth Circuit warns against relying on objective facts unless they point "unequivocally" to a change in habitual residence. The U.S. Court of Appeals for the Sixth Circuit, however, has rejected any reliance on shared parental intent and refocused the inquiry solely on the child's past experiences leading up to the moment of removal. This divergence serves to frustrate the Convention's goal of uniformity in interpretation of its terms.
A state district court, bound by the U.S. Court of Appeals for the Eighth Circuit's holding in Silverman v. Silverman, applied a two-factor test that looked at the parents’ shared intentions as well as factual evidence of the child's acclimatization. Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003). The court determined that the parents’ shared intention was to reside in Australia. Id. The court relied on the fact that the family had sold their house and cars prior to moving to Australia and brought most of their personal belongings with them to Australia. Id. As indicators of the child's acclimatization, the court noted that the child had been enrolled in preschool in Australia, spoke with an Australian accent, had Australian friends, and had spent the majority of her life in Australia. Id. Because both prongs of the inquiry indicated the same result, the court concluded that the child's habitual residence immediately before her retention was Australia. Id.
The Fifth Circuit recently weighed in on the issue in Cartes v. Phillips, 865 F.3d 277 (5th Cir. 2017). In Cartes, the parties’ marriage was characterized by frequent travel and relocation. They lived in Houston for approximately two years, “but was rarely settled.” Id. The husband moved to Paraguay, where his mother was the sister of Paraguay’s president. Id. There was some discussion between husband and wife about divorce and where they intended to live when he returned to Houston to move the remainder of his possessions to Paraguay. Id. The parties discussed moving to Paraguay for employment, the financial future of their family, and family assistance in raising their daughter. Id. The wife maintained an apartment, car, insurance, and physicians in Houston while she was in Paraguay. Id. The child, however, was enrolled and regularly attending a Paraguayan school. Id. Communications between the parties discussed that Paraguay was their home, that it would be the most convenient home for everyone, and that they would be the happiest there. Id. When the wife traveled, she communicated in writing that she just wanted to come home, referencing Paraguay. Id. Finally, the mother told her family that she had moved to Paraguay.
The Fifth Circuit centered its analysis on the parents’ shared intent or settled purpose regarding the child’s residence, giving greater weight to the parents’ subjective intentions relative to the child’s age. Id. (quoting Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012)). Accordingly, the threshold analysis is whether both parents intended for the child to abandon the habitual residence left behind. Id. Further, when the child is too young to decide residence on the child’s own, the parents’ shared intent should be dispositive. Id. Absent parental shared intent, prior habitual residence should be deemed supplanted only where the objective facts point unequivocally to this conclusion. Id. Applying these standards, the Court held that the parties’ intent was to habitually reside in Paraguay, and ordered the child returned.
II. Wrongful Removal
A petition filed under the Convention must present prima facie evidence that the removal was wrongful by a preponderance of evidence. Article 3 of the Convention requires the removal or retention of a child is “wrongful” when “it is in breach of the custody rights attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention” and “at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”
As discussed above, Article 5 provides minimal guidance, defining “rights of custody” to “include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence” as distinguished from the “rights of access” to “include the right to take a child for a limited period of time to a place of other than the child’s habitual residence.”
Significantly, Article 3 also states that the rights of custody “may arise in particular by operation of law or by reason of judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” Accordingly, a powerful tool when filing a petition under the Convention when there has been no prior court orders concerning the child is to scour the statutes of the state in which the child was habitually resident for any which provide for conservatorship absent a court order.
By way of an example, a mother has a right of custody of the child within the meaning of Articles 3 and 5 of the Convention under Articulo 282(B)(II) of Mexico’s Codigo Civil Para El Distrito Federal, as amended in 2015, which provides in translation as follows:
“Children under twelve years of age shall remain under the care of the mother, except in cases of family violence when she is the one generating the violence or if there are serious concerns that could endanger the normal development of the children. The mother´s lack of economic resources shall not be an obstacle for the granting of maternal custody.”
Similarly, a parent has a right of custody of the child within the meaning of Articles 3 and 5 of the Convention under Articulos 141, 151, and 157 of Costa Rica’s Codigo de Familia, which provide in translation as follows:
“Article 141: The rights and obligations inherent to parental authority cannot be renounced. Neither can they be modified by agreement of the parties as they relate to the custody, upbringing, and education of the children, except for the provisions for separation and divorce by mutual consent.”
“Article 151: The father and mother exercise parental authority over the children with equal rights and duties in the marriage relationship. In the event of a disagreement, at the request of either parent, the Court shall make the decision, even without the formalities of process and without the need for the parties’ hiring lawyers. The Court must decide based on the child’s interest…”
“Article 157: The provisions of Article 151 shall apply when the mother of a child born out of marriage exercised parental authority together with the father.”
When there is a court order in place, defining wrongful removal is more straightforward. Removal or retention in violation of a court order allows for a procedurally efficient presentation of a suit under the Convention.
III. Tolling
Article 12 provides that “where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.” (Emphasis added.) When proceedings are commenced after more than one year from the wrongful removal or retention, the judicial or administrative authority “shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.”
Prior to 2014, there was a split among the federal circuits regarding the concept of equitable tolling. Some circuits allowed the one year limitations to begin to run only after discovery of the whereabouts of the child, provided that the child had been concealed. In 2014, the U.S. Supreme Court remedied the circuit split and held that equitable tolling is not available under the Convention because the Convention is not designed to pursue the discouragement of child abduction at any cost. Lozano v. Montoya Alvarez, 134 S.Ct. 1224 (2014). The Court cited the child’s interest in choosing to remain pursuant to Article 13 and avoiding physical or psychological harm pursuant to Article 13(b) to explain how the Convention internally provides for an analysis of factors other than the act of abduction alone. Id. Accordingly, to modify the treaty by permitting equitable tolling would be to override the balance drafted into the treaty. Id.
The Court supported its position by citing a chain of cases from various districts which make it clear that steps taken to promote concealment of a child also prevent the child from being settled. Id., citing Mendez Lynch v. Mendez Lynch, 220 F.Supp.2d 1347 (M.D.Fla. 2002); Wigley v. Hares, 82 So.3d 932 (Fla.App. 2011); and In re Coffield, 644 N.E.2d 662 (1994). Accordingly, the Court found that equitable tolling is not necessary because concealment detrimental to the child tends to preclude the internal defenses of the Convention.
IV. State or Federal
A proceeding under the Convention can be filed in either state or federal court. Article 19 provides that “a decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.” In either general jurisdiction state district courts or family specialized state district courts, the court’s tendency towards best interest analysis and making a custody determination may be difficult hurdles to overcome. Furthermore, while the UCCJEA references the Convention, it merely addresses petitioning the court for enforcement of an order for return of the child under the Convention. In the event that, as discussed above, you’re relying on a right to custody arising “by operation of law”, the venue of state court may prove more problematic.
V. Conclusion
The