International Child Abduction
When a child is taken to another country, the other parent always becomes concerned and asks the question: What if they do not come back?
The answer lies in the Hague Convention. The Hague Convention is a international treaty, of which both The United States of America and the majority nations in the United Nations are are signatory to. This treaty has been ratified by the signatory countries and as such supercedes any legislation by any country that has signed off on it.
The Hague Convention was drafted in 1980 to resolve custodial claims between parents involved in international custody battles. (See generally, Catherine Norris, Immigration and Abduction: The Relevance of U.S. Immigration Defenses Under the Hague Convention on International Child Abduction, 98 Cal. L. Rev 159 (2010) (explaining the procedure for returning an abducted child to the left behind parent.) Under the terms of the Hague Convention, a nation that has signed the treaty must promptly return any child abducted from his or her country of habitual residence. (See Hague Convention on the Civil Aspects of International Child Abduction, opened for signature Oct. 25, 1980, T.I.A.S. No. 11670, 11343 U.N.T.S. 89, 19 I.L.M. 1501 (1980), pmbl (Desiring to protect children internationally from the harmful effect of their wrongful removal or retention and to establish procedures to ensure their promptly return to the State of their habitual residence, as well as to secure protection for rights of access."))
The primary intention of the Hague Convention is to preserve whatever child custody arrangement existed before the wrongful removal of the child.
The Hague Convention being a multilateral treaty serves as the tool for the return of children which were wrongfully abducted internationally and/or wrongfully retained. The Hague Convention tries to maintain the status quo child as to child custody agreements of the parents by prohibiting the country to which the child is abducted or wrongfully retained from making any custody determination. (See Hague Convention, supra, art 16) The ONLY determination that a court is able to make in a international custody dispute of a wrongfully abducted or retained child is what country is the country of habitual residence for the minor child, and the immediate return of the child to that country. The convention makes it clear that a decision by a court under the Convention concerning the return of a child shall not be allowed to make any determination as to the merits of any custody case. (Hague Convention, supra, art 19)
There are defenses to a Hague Convention case:
- The action to return a child was commenced more than one (1) year after the child was wrongfully removed;
- The left-behind parent failed to exercise custody rights at the time of the removal or consented to the removal;
- Returning the child would create grave risk to the child's safety; and
- Returning the child would violate fundamental principals of human rights.
If a return proceeding is commenced more than one year after the child left its home country to another country, and the removal was wrongful, the child should not be returned to the original country or origin. However, it must also be demonstrated that the child has adapted to the society of the new country. If the child has not settled into the life of the new country the child must be immediately returned to the child's habitual country.
If a return proceeding is commenced prior to the expiration of the 1 year limitation. In this instance there is no inquiry allowed to the court or any other authority to consider the child's relationship with their new country and environment. The new country shall immediately return the child to the country of the child's habitual residence.
The second defense is only available if a removing parent or other person having custody of the minor child in the new country can demonstrate that the contesting left behind parent failed to exercise any custodial rights to the child, or that the left behind parent consented to the removal or retention. As long as a parent does not act in a manner that clearly shows a unequivocal abandonment of the child, or that the parent agreed to the move to the new country the new country must return the minor child.CONCLUSION
As long as either parent is exercising custodial rights to a minor child, and they have not abandoned the minor child, they have 1 year within which to file an action in the new country, in this case Brazil, for the return of the child. So long as a parent files their action timely, there will be no inquiry as to what is in the best interest of the minor child. The only inquiry will be what country is the country of habitual residence for the minor child. The new country then shall make a order for the immediate return of the minor child.