What is the Hague Convention?

The Hague Convention on the Civil Aspects of Child Abduction (Hague Convention) is an international agreement that can help when a child has been taken to another country, which are called “Member States” (this does not refer to a state in the United States), by one of their parents, and the parent is refusing to return the children. This blog explores the Hague Convention and if it can help a parent get your children back when they have been abducted by another parent and taken to or from the United States, their place of “Habitual Residence”.

The Hague Convention is the main agreement covering international child abduction and helps to facilitate the return of children to their country of “Habitual Residence” by allowing court documents to be admitted to foreign courts without much of the usual (evidentiary) red tape. To be a “Member State”, the treaty has to be signed and ratified into law by the Member State. Thus, if both countries, the one from which the children were wrongfully removed and the country where they were taken are not both “Member States” then the matter becomes much harder and different law applies. A number of countries in the Middle East for example are not signatories to the Hague Convention.

If your children are being retained across international borders the Hague Convention may be able to help you if:

  1. The country where the children are being kept has acceded to the Convention and it was in full force and effect between the United States and that country on the date of the removal or retention occurred.
  2. Your children are “Habitual Residents” of the United States. The Convention does not define “Habitual Residence” and the term depends on the specific facts of each case. When determining habitual residence, courts consider the intentions of the parent or parents when relocating, the age of the children, how well the children have acclimated to their new country, language skills, social engagements, how long the children have been in the new country, and the children's ties to the community.
  3. Your children were wrongfully removed from the United States or are being wrongfully retained in the other country who is a “Member State”. Wrongful removal or retention means that the removal or retention interferes with the custody rights of the parent who stayed in the United States and who was exercising those rights in the Member State of Removal.

In Cole v. Cole, the court determined that South Bend was the children’s habitual residence because before Mother and Father moved from Germany, Father spent nearly a year obtaining his permanent residence card (to live in the United States), terminated the family’s lease on their apartment in Germany, and transferred most of their assets to a bank in South Bend. Once in South Bend, Father spent time searching for a job and purchased a new vehicle, before changing his mind and moving back to Germany. The children had lived in South Bend for several months and were doing well in their community.

Getting your children back when they have been abducted and taken to another country by their other parent requires that you complete a Hague Application Packet, which will require you to provide proof of the three circumstances above, including a legal argument for why the children should be returned to the “Member State” of removal. Some countries also require that you provide translations of all documents submitted with your application. This can be very difficult to do on your own and you should consult with an attorney experienced in high-conflict child custody cases before completing the packet. You have a limited amount of time to get your children back under the Hague Convention, so it is very important that you consult with an attorney right away, namely one (1) year to make an application for a return order. 

This blog was written by attorneys at Ciyou & Associates, P.C. who have handled international child abduction cases, as well as cases where the Hague Convention does not apply.   This blog is written for general educational purposes.  It is not intended to be relied upon for any legal matter or issue.  The blog is not legal advice.  This blog is an advertisement.


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