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What Is “Wrongful Removal” or Retention in Another Country?

The Hague Convention of 1984 on the Civil Aspects of Child Abduction is an agreement between 9m  contracting countries to help prevent international child abduction by a parent. The Convention provides a process for getting a child returned to their home country where they have been “habitual residents” if a parent has wrongfully removed or retained them in a country that has acceded to the Convention. This blog explores what wrongful removal or retention means under the Convention. 

Wrongful removal or retention is defined as a removal that is in breach of the custody rights of another person, under the law of the State in which the child was habitually a resident immediately before the removal or retention and at the time of removal or retention those rights were actively being exercised or would have been exercised but for the removal or retention. In plain English, the rights of the parent who remains behind in the state where  the child lives, has had their custody rights removed because the non-custodial parent is keeping the child in another country. 

Where the child lives for purposes of the Hague Convention is a source of many disputes under the Hague Convention. Because the Convention does not define “habitual residence”, it has been left to the courts of each contracting country and/or state to define relative to the facts of the case. Every case is different and Indiana courts have stated that when determining a child’s “habitual residence”, the court must be “sensitive to the unique circumstances of the case and informed by common sense.” 

Some of the facts considered when determining a child’s habitual residence include “a change in geography combined with the passage of an appreciable period of time, age of the child, immigration status of child and parent, academic activities, social engagements, participation in sports programs and excursions, meaningful connections with the people and places in the child's new country, language proficiency, and location of personal belongings.”

In order to file a Hague Convention petition, the child must be under the age of 16, the person seeking the return of the child must not have consented to the removal or acquiesced to the retention of the child, and the country where the child is being held must have acceded to the Convention. A list of member countries, or those who have acceded to the Convention, can be found on the HCCH Members Page

Defenses to a Hague Convention petition include acquisition or consent to the removal or retention of a child; a grave risk that the child’s return would expose the child to physical or psychological harm or place the child in an intolerable situation; the child having become settled in his or her new environment; the child’s objection to being returned; or a return that would violate fundamental principles of human rights and freedoms in the country there the child is being held. These defenses, if proven under the interpretation of the deciding court, may cause a denial of the return of the child—a return order would not issue.

Hague Convention petitions are inherently complex and require the expertise of an experienced attorney who has litigated Hague cases, as have Ciyou & Associates, P.C. atttorneys. If your child has been abducted and is being held in the United States, the attorneys at Ciyou & Associates, P.C. will fight for your rights under the Hauge Convention, whether you seek return or to stay.  This blog was written by attorneys at Ciyou & Associates, P.C.  It is for general educational purposes.  The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice.  This is an advertisement.

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