When a parent unilaterally removes a child from the court’s jurisdiction without the court’s or the other parent’s permission, it not only violates court orders, custody agreements, or other parenting plans, but it is also kidnapping. When a parent decides to remove a child from the country without prior permission, the situation becomes even more serious.
The Hague Convention
When a child is removed to another country by a parent, there are questions about whether the child can ever legally be returned to the United States, assuming the removed child can be located at all.
The United States participates in the Hague Convention alongside many other countries, a treaty in which participating countries have agreed to cooperate with one another in returning children kidnapped by a parent. Custody determinations are usually made in accordance with the laws of the jurisdiction from where the child was removed.
Only countries that are signatories to the treaty must comply, and although 98 countries have signed, parents who may have citizenship or the ability to travel to a non-signing country should be especially wary.
Defenses to the Child’s Return
Although the Hague convention can provide relief for the parents of wrongfully removed children, the removing parent can assert defenses in any Hague trial. Hague will not apply if the child has been removed for more than a year. The consent to removal by the other party is also a defense.
Importantly, another defense is when the child is of an age that he or she can make a “reasoned decision,” and the child objects to being returned. This is significantly different than U.S. family laws, which will not allow one parent to kidnap or remove a child, regardless of the child’s stated wishes or of how mature a child is. Parents of older children, who may meet the requirement of being able to make a reasoned decision should also be wary of allowing the child to be removed from the country.
Courts will also not return a child if there is a threat or concern for the child’s health or safety. This may seem obvious, but in cases in which there are allegations of abuse or neglect, or even emotional harm, a parent may end up having to defend him or herself before an overseas court, which may have a different definition of what constitutes harm than a U.S. Court may have.
Removal of a child to a foreign country can be done legally for vacation or travel purposes, or to visit family, by requesting court permission, or getting permission from the other side. However, because of Hague’s limitations, parties should do some homework before agreeing to allow a child to be taken to a foreign country if there is even the smallest chance that the child will be kept overseas.
Be prepared and know what to expect in your custody dispute. Contact The Law Office of Agnes Rybar LLC for help and guidance in your family law case.
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