International Parental Child Abduction Part I: The Petitioner’s Case
Parental kidnappings are an unfortunate fact of life in this country and throughout the world. Through uniform adoption of the Parental Kidnapping Prevention Act (PKPA) and the UCCJA (Uniform Child Custody and Jurisdiction Act), and its successor UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act), parents have the tools to restore preabduction status within the U.S. When a child is abducted abroad, obtaining return of the child can be particularly challenging legally, emotionally, and economically. It is possible and even probable that children who are abducted to the U.S. can be returned to their home country under the authority of The Convention on the Civil Aspects of International Abduction, done at the Hague on Oct. 25, 1980 (the “Hague Convention”), and The International Child Abduction Remedies Act, 42 U.S.C. §11601 et seq. (ICARA). Presently 62 countries have contracted to uphold the Hague Convention.1
Purpose and Scope of Hague Convention
The Hague Convention is generally intended to restore the pre-abduction status quo and to deter parents from crossing borders in search of a more sympathetic court.2 The Hague Convention specifically protects custody determinations in the international context:
The purpose of the Convention is “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedure to ensure their prompt return to the state of their habitual residence.” See Currier v. Currier, 845 F. Supp. 916, 920 (D.N.H. 1994). To this end, the Convention sets forth a carefully delineated analytical framework for the application of its provisions. In accordance with these procedures, courts within signatory countries are to determine whether the children have been wrongfully removed from their place of habitual residence, and are not to overstep the scope of their authority by delving into and attempting to resolve an underlying custody dispute. Hague Convention, Art. 19; 42 U.S.C. §11601(b)(4).3
Not a Custody Determination
The Hague Convention does not permit a foreign court to determine the merits of an underlying custody claim. The foreign court is responsible only for deciding whether the child should be returned to his or her “home” state.4 When all the requirements of the Hague Convention are met, a “left-behind” parent may invoke the treaty to have his or her child returned.5 & #x201c;A decision under the Convention concerning the return of the child is not to be taken to be a determination on the merits of any custody issue.”6 Rather, it is a determination of the issue of proper custody jurisdiction pursuant to an international treaty and federal law.
Choice of Forum
The petitioner has the choice of filing for relief in either the U.S. district court or circuit court, both having concurrent jurisdiction to address Hague matters.
The Petitioner’s Case
In seeking return of an abducted child, there are three components to a petitioner’s case under the Hague Convention. The first is establishing the petitioner’s home country as the children’s habitual residence. The second is defining the custody rights which the petitioner enjoyed at or near at the time of abduction. Third, the petitioner must establish that the removal or retention of the child was wrongful and in violation of the right of custody the petitioner enjoyed under the laws of the home country. If the petitioner establishes these factors, the children must be returned to the home country unless the respondent can establish that an exception to the Hague Convention applies.7
Burden of Proof
In a Hague case, a petitioning parent who seeks return of a child must establish by a preponderance of the evidence that the child has been wrongfully removed or retained within the meaning of the Hague Convention.8
The Hague Convention does not define the term “habitual residence,” so we must look to courts to continue to define the term. The determination is fact-specific and requires a focus on the child’s ordinary residence and whether, from the child’s point of view, that residence is settled. This determination must focus on the child, not the parents, and examine past experience, not future intentions.9 & #x201c;The change in geography must occur before the questionable removal”10 ; therefore, it is not enough to say the U.S. became the child’s residence upon removal.
There must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All that the law requires is there is a settled purpose. . . . Education, business or profession, employment, health, family, or merely love of the place spring to mind as common reasons for a choice of regular abode, and there may well be many others. All that is necessary that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.11
“The court must focus on the child, not the parents, and examine past experience, not future intentions.”12 In Tabacchi, the court found the child’s residence was Italy as that was where the child was born, went to school, played with neighborhood children, had health insurance, and saw doctors. Despite a number of trips outside of Italy and even discussions of a permitted trip to the U.S., those discussions were deemed irrelevant as they related to future intentions.13
In Janakakis-Kostun, an abducting parent argued the U.S. was the children’s habitual residence because the parties held U.S. Social Security numbers, bank accounts, and driver licenses, and because they once consulted with a U.S. realtor and had plans to move and settle in the U.S. following the husband’s retirement. The court found these arguments unpersuasive.14
The fact that parents may have dual citizenship or even have claimed dual residency is also not sufficient to establish the children’s habitual residence as the U.S. See generally Freier v. Freier, 969 F. Supp. 436 (E.D. Mich. 1996) (parents had dual citizenship in U.S. and Israel, focus of court on child and not parents and past experience not future intent). In Freier, the court confirmed the law enunciated in Friedrich I that “a person can have only one habitual residence. On its face, habitual residence pertains to customary residence prior to the removal.” 969 F. Supp. at 440.
The analysis of whether lawful custody rights were being exercised at the time of the removal must be determined under the law of the child’s habitual residence. The court determines under the laws of the state of the child’s habitual residence whether the nonconsenting parent’s custody rights were breached by the child’s removal. Article 14 of the Hague Convention allows the authority hearing the case to take judicial notice directly of the law of the state of habitual residence without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.
The second step in this inquiry is whether this parent was exercising custody rights at the time of the child’s removal.15 In order to decide this issue, the court will analyze the left-behind parent’s involvement in the child’s life.16
In Friedrich II, the court cautions against the practice of federal courts creating common law to define what constitutes the “exercise” of custody rights and the exercise of access or visitation rights.
Enforcement of the Convention should not be made dependent on the creation of a common law definition of exercise. The only acceptable solution, in the absence of a ruling from a court in the country of habitual residence, is to liberally find “exercise” whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child. . . . An American decision about the adequacy of one parent’s exercise of custody rights is dangerously close to forbidden territory: the merits of the custody dispute.
Friedrich II also cautions courts against delving into fact-finding ventures, especially in cases where no court order has been entered determining parental rights and responsibilities. Friedrich II basically calls for the trial court to accept the petitioner’s views and to leave fact-finding which will affect custody determinations to the foreign court.
In Friedrich II, at the time of the wrongful removal and retention, the parents were separated without benefit of a court order designating parental rights and responsibilities. The parties had an argument and separated. Mr. Friedrich only visited with the child one time prior to the wife’s removal of the child. The appellate court indicated:
A decision by an American court to deny return to Germany because Mr. Friedrich did not show sufficient attention or concern for [the child’s] welfare would preclude the German court from addressing these issues. . . . [T]he confusing dynamics of quarrels and informal separations make it difficult to assess adequately the acts and motivations of a parent. An occasional visit may be all that is available to someone left, by the vagaries of marital discord, temporarily without the child. Often the child may be avoided, not out of a desire to relinquish custody, but out of anger, pride, embarrassment, or fear, vis a vis the other parent. Reading too much into a parent’s behavior during these difficult times could be inaccurate and unfair. . . . As a general rule, any attempt to maintain a somewhat regular relationship with the child should constitute “exercise.” This rule leaves the full resolution of custody issues, as the Convention and common sense indicate, to the courts of the country of habitual residence. . . . We therefore hold that, if a person has valid custody rights to a child under the law of the country of the child’s habitual residence, that person cannot fail to “exercise” those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child. Once it determines that the parent exercised custody rights in any manner, the court should stop—completely avoiding the question whether the parent exercised the custody rights well or badly. These matters go to the merits of the custody dispute and are, therefore, beyond the subject matter jurisdiction of the federal courts.
Id. at 1065–66.
Wrongful Removal or Retention
To be wrongful, the removal or retention must be in breach of custody rights enjoyed by a person under the law of the state of the child’s habitual residence immediately before the removal or retention.17 A right of custody may arise under the laws of the state by operation of law, or by reason of judicial or administrative decision, or by reason of an agreement having legal effect.18 & #x201c;If a person has valid custody rights to a child under the law of the country of the child’s habitual residence, that person cannot fail to ‘exercise’ those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.”19
Significance of Divorce Court Proceedings
If an abducting parent can remain in Florida for six months before a Hague petition is filed, jurisdiction lies to seek a dissolution of marriage. Quite frequently, abducting parents will file for divorce, seek a domestic violence injunction, or take other legal action to obtain custody of the child in the Florida courts. For reasons often attributable to the inability to secure counsel, the left-behind parent may be unable to defend against the lawsuit in a timely fashion. Under the UCCJEA, a court must decline to exercise jurisdiction to determine child custody when a child has been taken wrongfully. Because subject matter jurisdiction in a dissolution of marriage case may not be waived and may be challenged at any time, the left-behind parent is not without recourse to setting aside what appear to be valid custody orders.20 In addition, Art. 17 of the Hague Convention provides: “The sole fact that a decision relating to custody has been given. . . in the requested State (Florida) shall not be a ground for refusing to return a child under the Convention.”
Attorneys’ Fees and Costs
Article 26 of the Hague Convention directs that the administrative costs of handling cases in both the habitual residence state of the child and the state to which the child was wrongfully removed or retained are not to be imposed on the petitioning parent. Article 26 further provides that the court may direct the respondent to pay the necessary expenses incurred or to be incurred, including those incurred in implementing the return of the child ( i.e., transportation and lodging).
Section 8(b)(3) of ICARA provides that a U.S. court ordering the return of a child must order the respondent to pay necessary expenses incurred by or on behalf of petitioner, including court costs, legal fees, foster home, or other care during the course of the proceeding and transportation costs relating to the return of the child—unless the respondent establishes that such order would be clearly inappropriate.21 This is not necessarily a financial decision, but one of appropriateness under the circumstances. Thus, it appears very clear that when a petition is successfully brought under the Hague Convention and ICARA, the judge must award these costs, expenses, and counsel fees to the successful party.
This was confirmed in Quinn :
The Convention anticipates that all necessary expenses incurred to secure a child’s return will be shifted to the abductor, both to restore the applicant to the financial position he or she would have been in had there been no removal or retention, as well as to deter such conduct from happening in the first place.22
Admissibility of Evidence
The provisions of the Hague Convention Arts. 23 and 30, and 42 U.S.C. 11605, §6 provide a broad allowance for the admissibility of documents. Routine formal certification and legalization of petitions and supporting documents can be dispensed with to save time and expense. The act allows any application or petition to submit documents with no authentication of such application, petition, document, or information required. This, in effect, allows a party to put into evidence mere photocopies of documents obtained from the state of habitual residence.
Under the Hague Convention, “any application submitted to the Central Authorities or directly to the judicial or administrative authorities of a Contracting State in accordance with the terms of this Convention, together with documents and any other information appended thereto or provided by a Central Authority, shall be admissible in the courts or administrative authorities of the Contracting States.”23 A flexible and sensible interpretation of this article should be adopted allowing trial judges to consider any document offered in support of a Hague Convention petition, whether affixed to the petition or not, with any hearsay concerns to be considered by the trial court mainly in deciding the weight and credibility which the documents warrant.24
Both the Hague Convention and ICARA ensure that, absent the most extreme circumstances, a parent will not be permitted to obtain custody of a child by removing the child from his or her usual residence to a country or jurisdiction perceived by that parent to be more favorably disposed to his or her own interests.25 Courts in countries party to the Hague Convention are duty bound to promptly return children to the country of “habitual residence” for resolution of any custody disputes. Parents will hardly be deterred from moving children across international boundaries in search of amore sympathetic forum, if course in the signatory countries do not uniformly enforce the Convention in a prompt and predictable manner.26
Custody-related abductions and retention can only be stopped when abductors realize they will not be allowed to pursue their custody claims outside of the proper jurisdiction, and they will be required by the U.S. and Florida courts to return the child to their home state.
1 Hague Conference on Private International Law Web site, www.hcch.net/e/members/members.html.
2 Friedrich v. Friedrich , 78 F.3d 1060 (6th Cir. 1996) ( Friedrich II ).
3 Quinn v. Settel , 682 So. 2d 617 (Fla. 3d D.C.A. 1996).
4 Id. at 620.
5 Id .
6 Hague Convention, Art. 19.
7 See Reiger, The Epidemic of Parental Child-Snatching: An Overview, Attempts to Prevent Parental Child Abduction, Applicable United States Laws, and the Hague Convention , U.S. State Department Web site, Office of Children’s Issues, Resources for Judges on International Parental Child Abduction, http://travel.state.gov /judedu.html.
8 42 U.S.C. §11603(e)(1).
9 Janakakis-Kostun v. Janakakis , 6 S.W.3d 843, 847-848 (Ky. Ct. App. 1999); Friedrich v. Friedrich , 983 F.2d 1396 at 1401-2 (6th Cir. 1993) ( Friedrich I ); see also Reiger, supra note 7.
10 Friedrich I , 983 F.2d at 1401-2,
11 Tabacchi v. Harrison , 2000 WL 190576 (N. D. LII. 2000); Friedrich I , 983 F.2d.
12 Friedrich I , 983 F.2d at 1401.
13 Tabacchi , 2000 WL 190576 at p. 7.
14 6 S.W.3d at 848.
15 Friedrich II , 78 F.3d 1060.
16 See Tabacchi , 2000 WL 190576 (significant involvement found where father fed child, bathed her, played with her, gave her medication, and performed other parental duties in exercise of his custody rights).
17 Hague Convention, Art. 3; Friedrich II , 78 F.3d at 1064.
18 Hague Convention, Art. 3.
19 Id . at 1066.
20 Fla. R. Civ. P. 1.140; Chapoteau v. Chapoteau , 659 So. 2d 1381 (Fla. 3d D.C.A. 1995); Jesse v. State Dept. of Revenue , 711 So. 2d 1179 (Fla. 2d D.C.A. 1998).
21 42 U.S.C. 11607(d).
22 Quinn , 682 So. 2d at 620, citing Currier v. Currier , No. 94-99, 1994 W.L. 392606 (D.N.H.1994); 42 U.S.C. §11607(b)(3); see also Levesque v. Levesque , 816 F. Supp. 662 (D. Kan. 1993); Delmasso at 560-1.
23 Art. 30, 51 Fed. Reg. At 10501, Dalmasso at 559.
24 Id . at 560.
25 Currier , 845 F. Supp. at 920.
26 Id .
Rana Holz is board certified in marital and family law. She practices with Rubinstein & Holz, P.A., Fort Myers. Ms. Holz has litigated international abduction cases in both state and federal court. She is concluding a four-year term on the executive council of the Family Law Section and serves as editor of this column.
This column is submitted on behalf of the Family Law Section, Carolyn K. Black, chair.