The International Divorce and Hague Convention Maze

Hi there,

One of the most horrifying things to happen in a divorce is to have the other parent take your child, go to another country and refuse to return. The Hague Convention is the international law that governs this type of kidnapping. Not all countries are signatories to the Hague Convention. There are also vast differences between dealing with the Hague Convention in a country that recognizes and follows it (i.e., France), and one that is a signatory, but not really compliant.

Handling a Hague Convention case is a bureaucratic maze. There are very specific rules and requirements that do not exist in an ordinary case, and there is the overlay of dealing with the State Department as well as obtaining two sets of lawyers. You will need a lawyer in the country of the children’s “habitual residence” as well as one in the country to which the children were taken. There often are language barriers as well, so typically you need to find a lawyer who is fluent in English in the country to which the children were taken.

In fact, determining the country of the children’s “habitual residence” can be problematic. Hague Convention cases are always heard in the Federal Court System in the U.S. because the Treaty is implemented by the International Child Abduction Remedies Act, 42 U.S.C. sections 11601 et seq.  This is a federal law, which supercedes state laws.

Just this week, the 1st Circuit Federal Appeals Court remanded (fancy legal word for “sent back”) to the U.S. District Court, for the District of Massachusetts, a case of determining where the involved children’s habitual residence was. The family had gone to Singapore for a three-year job placement, and after about a year and a half the mother returned to the U.S. with the children. Dad sought return of the children to Singapore.  The factual question that the Appeals Court said needed to be answered was whether the family intended to abandon the habitual residence in the United States or did they intend to retain it while residing abroad temporarily?

May you never be confronted with the complexities of a Hague Convention case. If you are, get the best counsel you can afford as soon as possible.