The world is shrinking and international travel continues to grow. People may immigrate from one country to another. This includes parents with minor children. A child who is the subject of court orders regarding custody, legal decision-making, parenting time or visitation may be brought along on such travel, whether for purposes of recreational travel or whether for purposes of relocation. As a result, difficulties can arise for the traveling or relocating parent, the parent left behind and the child. In some cases, a parent engaging in international travel during parenting time may not return the child but may keep the child in a foreign country. In other cases, one parent may immigrate to another country and bring the child along while the other parent remains in the home country.
In order to try to ensure some sort of order, the many nations have ratified and are subject to the provisions of a treaty known as the Hague Convention on the Civil Aspects of International Child Abduction which is supposed to provide a mechanism for enforcement of custody orders in foreign countries.
If you have an Arizona order and your child is being withheld by the other parent in a foreign country in violation of that order, there are procedures by which you can seek enforcement of your Arizona order in the country in which your child is being detained. Those proceedings take place in that other country. But if a child who is the subject of a foreign country’s custody order is being detained in the State of Arizona, a so-called “Hague Convention” case can be brought in court in Arizona to obtain enforcement and compliance with that court order so that the child is returned to his or her country of habitual residence.
There are limitations and exceptions, however. There is a defense against enforcement in the event that return to the country of habitual residence would create a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. There may be a claim that the child objects to being returned and has attained an age and degree of maturity at which the court can take account of the child’s views. Another defense may be that more than one year has passed since the wrongful removal or retention occurred and the child has become settled in his or her new environment. The party seeking return may be deemed to have consented to or subsequently acquiesced to the child’s removal or retention. There can be claims that return would violate the fundamental principles of human rights and fundamental freedoms in the country where the child is being held. There may also be claims that the party seeking return was not actually exercising rights of custody at the time of the wrongful removal or retention.
In addition, the Hague Convention is not universal and custody orders of countries that are not parties to this treaty are not within the scope of these provisions. If your child is the subject of a court order of a non-Hague country and is being detained by the other parent in Arizona, other procedures may be available to attempt to secure enforcement. The Uniform Child Custody Jurisdiction and Enforcement Act may be another useful tool.
International child abductions should be treated as emergencies and handled immediately.
An attorney must be ready to file a Hague Convention application and institute or defend a Hague Convention lawsuit on extremely short notice. Prompt action may be critical. The Convention specifically requires that hearings be conducted expeditiously. Indeed, it is recommended that Hague Convention cases be completely concluded within six weeks. A Hague Convention case can theoretically be instituted more than a year after the abduction but a defense or exception will then arise if the child has become settled in the new environment. In practice, the longer a child is in a new place the more likely it is that a court will be reluctant to send the child away to the former country of habitual residence.
Fast action by the left-behind parent is also necessary to help prevent a claim that the parent has acquiesced in the child’s relocation and to help to bolster a claim that the left-behind parent consented to the taking or retention in the first place.
Clients must move quickly to obtain the documents needed to file the initial application and then to collect the documents needed for the hearing. They should normally be asked to prepare a detailed family history and to assist the attorney to develop evidence as rapidly as possible.
If your child is under the age of 16 and is being detained in Arizona by the other parent in violation of a valid court order from another country, contact Victor Garnice immediately to assess your situation and learn what options may be available to you to proceed.