How to win a Hague Convention child abduction case
Strategic Advocacy for Hague Convention Victories
Practice Areas
A request under the Hague Convention may be initiated when a child is unlawfully removed or kept across international borders, away from their usual country of residence, without the consent of the parent holding legal custody rights under that country’s law, provided both nations are parties to the Convention. The child must be returned promptly unless it can be shown that doing so would place the child in significant danger or another recognized exception applies.
ACT QUICKLY
Legal representatives must be prepared to file a Hague petition and initiate or defend legal proceedings on very short notice.
Timely action is essential. The Convention emphasizes swift resolution, ideally within six weeks. Although it’s technically possible to file a claim more than a year after the child’s removal, if the child is well integrated into their new surroundings, that fact may be used as a defense. Courts are generally more hesitant to order a return the longer the child has remained abroad.
It’s also vital for the left-behind parent to act swiftly to avoid suggestions that they accepted or agreed to the child’s relocation and to strengthen claims that they never gave permission for the move.
Clients should act fast to gather documents needed for both the initial application and the upcoming hearing. A detailed family background is usually necessary, and clients should assist their attorney in collecting evidence promptly.
Lawyers should consider sending a formal warning to the abducting parent, outlining the legal, financial, and potentially criminal consequences of the wrongful removal. Sometimes, offering a short window to voluntarily return the child can be effective, though such notice might backfire if there’s concern that the child could be hidden.
The attorney must also decide quickly whether to bring the case in federal or state court. Under the International Child Abduction Remedies Act, both courts have jurisdiction. However, once filed in state court, the other party may still move the case to federal court, so the choice can significantly influence the outcome.
Attorneys may also benefit from assistance provided by the U.S. State Department’s Office of Children’s Issues, particularly when trying to locate the child or when the left-behind parent requires a U.S. visa to attend the hearing.
If there is no custody order from the home country’s court, it might be useful for the parent left behind to start proceedings there to obtain such an order, though this should only be done after consulting with legal professionals in both countries.
CHOOSE THE BEST APPROACH
If a child has been brought to the U.S., using the Hague Convention isn’t always the most practical option. All states except Massachusetts follow the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which can offer faster and more affordable remedies. It’s important to work with a knowledgeable attorney to choose the right legal path.
SELECT THE RIGHT COURT
Hague cases may be filed in either state or federal courts in the U.S. The differences in judges’ backgrounds between these systems can heavily impact how the case is handled. If filed in state court, the opposing party may move it to federal court—but only if done swiftly.
REQUEST INTERIM MEASURES
Courts under the International Child Abduction Remedies Act can order temporary protections to ensure the child’s safety and prevent further concealment or relocation during the legal process.
Such temporary orders should be pursued to ensure the child stays in the jurisdiction and that the left-behind parent is granted interim visitation.
GATHER EVIDENCE THOROUGHLY
These cases often depend on detailed facts. Disputes may revolve around the child’s usual place of residence (often tied to the last shared intent of the parents), whether custody rights were exercised, and if the parent agreed or passively accepted the move.
Other factors include whether the child is now settled in the new country, whether abuse occurred, and whether the local authorities can offer protection. Courts also consider the child’s maturity, objections, and how those objections were formed.
The attorney and client must work together to gather strong evidence, written, verbal, and digital. It’s common for clients to be surprised that courts don’t take their word at face value; evidence must be detailed and convincing.
In one case, both parents moved permanently to the U.S. with their child. Later, the mother traveled back to her home country with the child and refused to return. She argued that their move to the U.S. had only been temporary. She even fabricated documents and removed key items from the home to support her claims.
To counter her argument, the father collected testimony from friends, coworkers, and others who could speak to the family’s intent to remain in the U.S. He also gathered emails, receipts, and school records that showed permanent settlement. The court eventually ruled in the father’s favor.
Because Hague cases are resolved quickly, there is often only one opportunity to present the full case. The strategy should involve gathering overwhelming evidence from the outset. The goal is to present a strong enough case to possibly pressure the abducting parent into returning the child before trial.
Often, these hearings involve conflicting personal testimonies. Documents and written proof tend to carry much more weight than verbal statements. For example, if one claims that a visa application was submitted, they should present the actual documents, not just make the statement.
Emails and messages between the parents can be especially powerful, particularly when they reveal intentions or agreements.
While sworn affidavits help, they are not always required. The Convention and the Act both state that official authentication is not mandatory in these proceedings.
DISCOVERY AND LEGAL STRATEGY
Though discovery is allowed in these cases, it must be balanced against the need for a swift resolution. It’s best to decide early whether discovery will be necessary and request it during the first court appearance to avoid losing the opportunity.
CRAFT STRONG LEGAL ARGUMENTS
Hague Convention cases raise complex questions about international, treaty, and foreign law. Courts may not be familiar with such matters, so attorneys must guide them thoroughly, typically with well-researched legal briefs.
The Convention requires the applicant to prove that the child was taken from their habitual residence and that the left-behind parent had custody rights under that country’s law. Yet, neither of those terms is clearly defined, and there is a wide range of interpretations worldwide.
Courts first examine the law of the habitual residence to determine if the parent had valid custody rights. This may require expert testimony on foreign law.
Attorneys should cite relevant cases from both domestic and international courts. It’s common practice in Hague cases to reference global jurisprudence, as courts aim for consistency with rulings in other countries. The Hague Conference even maintains a database of important decisions.
FOCUS ON THE RIGHT LEGAL ISSUES
When representing the left-behind parent, it’s important to keep the court focused strictly on the requirements and defenses set forth in the Convention. If the proceedings shift toward a general “best interests of the child” debate, the lawyer should object firmly.
However, when opposing a return, the other party should do their best to frame their arguments within the defenses allowed under the Convention and support them with solid case law.
