The Hague Convention on the Civil Aspects of International Child Abduction

A family law practitioner encounters “garden variety” custody disputes in which parents snatch a child back and forth, or one parent denies access to the other. When a parent absconds with a child and crosses an international border, the case may move into uncharted territory – the Hague Convention on the Civil Aspects of International Child Abduction.

What is the Hague Convention?
The treaty provides a civil law mechanism for a parent to petition the court in the place where his or her child has been abducted, or in which the child has been retained, for return to his or her home country. The United States ratified it in 1988, but some countries such as China, India, Russia, countries in Africa and the Middle East and Japan are not parties to it.

When does it apply?
The classic scenario is when one parent flees to another country with the child without the consent of the other parent, or travels overseas with the child during the summer or a holiday and then refuses to return the child to the other parent in the child’s home country at the end of the visit.

Where does one start if one’s child has been abducted to/retained in another country?
Each country that is a party to the Hague Convention designates a Central Authority to assist parents in filing applications for return of a child. The Department of State is the designated U.S. Central Authority. The Department’s Office of Children’s Issues within the Bureau of Consular Affairs administers the day-to-day functions of the U.S. Central Authority and is a valuable resource for parents. For more information, click here.

How can this situation be prevented?
While parental abductions are not preventable, there are many things which can safeguard a parent from this unfathomable situation. Start by having a well-written custody order. Some states in the U.S. as well as some foreign countries may consider both parents to have equal custodial rights by default unless there is a formal custody order in place. Consequently, separated or divorced parents, even if never legally married, should consider whether or not it is advisable to have language in a custody order clearly stating the parties’ expectations about their child’s foreign (or even domestic) travel with parents and others. There are also general preventative measures that can be included in the custody order to deter such a situation.