With the increasing globalization of business and human mobility, claims of abduction of children across international boundaries are becoming more common in our courts and those of other nations. The Hague Convention sets basic guidelines for determining in which country competing parental claims should be heard and timelines for action are tight.
Max and Maya just turned eight years old when their father, Carl, an executive for a large Minnesota company, took a position in Mexico City. Carl moved to Mexico City in the spring of 2010 and his wife, Joan—a Spanish teacher—and the children followed in August after selling their St. Paul home. Carl and Joan’s marriage had been on rocky ground for some time, and they agreed a fresh start in a new place would be good for them. Carl’s assignment in Mexico City was indefinite, but he and Joan agreed they would make it their permanent home and bought a house there. Unfortunately, their relationship worsened after the move. Joan found it hard to assimilate to the bustle of Mexico City and missed her parents and sisters in the Twin Cities, where she and Carl were born and raised. Carl worked long hours as a business analyst and when he was with the family he was either withdrawn or yelled at Joan and the children. He began drinking more heavily and during an argument one evening in November 2011, he hit Joan across the face, something he had never done before. When Joan and the children left in mid-December to visit her family for Christmas, Carl welcomed a break. Joan had something different in mind though. After a week in Minnesota, she emailed Carl and told him she and the children were not returning to Mexico City and she would be filing for divorce in Minnesota.
This scenario is becoming more and more common all over the world as international corporate relocation steadily grows1 and an estimated 6.32 million Americans live abroad.2 Minnesota companies are also growing internationally. For example, since 2009, 3M has added jobs more rapidly abroad than in the U.S.3 With such growth come “complicated regulatory, legal, cultural, language, logistical and other challenges.”4 One likely complication resulting from growth in international business is increased international family relocation resulting in growing claims of international parental child abduction. What may surprise some is that under The Hague Convention on the Civil Aspects of International Child Abduction (The Hague Convention or Convention), Joan has abducted the children.
The Hague Convention is an international treaty with 87 contracting countries (referred to as “States”) at present. Passage of the International Child Abduction Remedies Act (ICARA) in 1988 implemented the Convention in the United States. The purpose of the Convention is to ensure that a child “wrongfully removed or retained” by a parent from one country is promptly returned to the country in which he was “habitually resident” immediately prior to the wrongful removal or retention.5 The removal or retention of a child is wrongful when it breaches a parent’s “rights of custody” under the law of the country in which the child was habitually resident, and the parent was actually exercising rights of custody. Simply put, international parental child abduction under the Convention occurs when a child is removed, without the consent of a parent exercising his or her parental rights, from a country in which the child resided for a significant period of time and presumably developed social and emotional ties.
The Hague Convention
The Convention is not a means for determining child custody or parenting time based on the child’s best interests; it is a purely jurisdictional treaty mandating the prompt return of children to their habitual residence so that a tribunal in that country may determine custody and parenting time on the merits. The court must return a child to his or her habitual residence when the following conditions are met:
1. Both the country to which the child was abducted and the country from which the child was taken have acceded to the Convention;
2. The child is younger than 16 years old;
3. The child has been wrongfully removed or retained in a contracting country without the consent of a parent who has “rights of custody” under the law of the country of the child’s habitual residence; and,
4. The parent who wrongfully removed or retained the child is unable to establish one of the six defenses to the Convention.
There are two ways international parental child abduction cases under The Hague Convention present themselves to Minnesota judges and practitioners: incoming and outgoing. Outgoing cases are those in which the child is abducted from Minnesota and taken to a foreign country that is a party to the Convention. Incoming cases are those in which the child is abducted from a foreign country that is a party to the Convention and is brought to Minnesota. In the scenario described above, Carl’s would be an incoming case requiring the court to adjudicate the return of the children to Mexico. Because ICARA grants the state and federal courts concurrent jurisdiction to determine international parental child abduction matters under the Convention, Carl could choose the venue in which he files his petition.6 Federal court is often the preferred venue for The Hague Convention actions since the state family court, which routinely handles child custody and parenting time matters, may be more likely to consider a child’s best interests.
Outgoing cases are determined by a court in the country to which the child has been abducted. They can be complicated by a number of factors, and a detailed analysis is beyond the scope of this article. What is important to know is that Minnesota courts, federal or state, may be called upon in such cases to issue orders finding Minnesota is a child’s habitual residence under The Hague Convention or “home state” under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The left-behind parent can then provide the Minnesota order to counsel in the foreign country to assist with her petition for return of the child.
Understanding the technical terms of the Convention is vital to be effective in negotiations or litigation involving the application of the case facts to the Convention. Some terms of the Convention are better defined than others. The term “habitual residence,” for example, is a critical aspect of The Hague Convention, but it is not specifically defined by the Convention, making it a highly litigated issue. In Carl and Joan’s case, the children’s habitual residence would likely be contested with Carl claiming it is Mexico and Joan claiming it is Minnesota. Federal case law is divided on this issue: some of the circuit courts focus on the parents’ intentions and others focus on the child’s perspective. The 8th Circuit Court of Appeals, to which the federal district court of Minnesota appeals, determines a child’s habitual residence based on the child’s perspective. While the trial court may consider several factors, including parental intent regarding the move, the change in geography, the passage of time, and the acclimatization of the child to the new country, the 8th Circuit has held the decisive factor in determining the child’s habitual residence is the settled purpose of the move to the new country from the child’s perspective.7
The Hague Convention gives more guidance on the definition of “rights of custody.” It provides that “rights of custody shall include rights relating to the care of the person of the child, and in particular, the right to determine the child’s place of residence.”8 Additionally, the Convention states that “rights of custody” arise by operation of law, judicial or administrative decision, or by an agreement enforceable under the law of the country in which it was made.9 Courts have relied upon the explanatory report of the Convention, which states that the law of the child’s habitual residence should be broadly construed and that custody rights may originate from any source under the law of the left-behind parent’s country.10 For example, the concept of patria potestas found in the civil law of some Central and South American countries provides that the mother and father jointly have parental authority or responsibility for their children unless such authority is legally terminated.
The Convention specifically defines wrongful removal or retention, incorporating the more fluid terms as follows:
Removal or retention of a child is wrongful under the Convention where:
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.11
The question in Carl’s and Joan’s case is: Did Joan wrongfully retain the children in Minnesota as of the day she notified Carl that she was not returning to Mexico? Carl, as the parent petitioning the court for the return of the children, has the burden of proving by a preponderance of the evidence that the children have been wrongfully retained in Minnesota and must be immediately returned to Mexico. The limited facts of the scenario are meant to show that Carl can make a prima facie case for the return of the children. That is, he can likely meet his burden of proving the children have been wrongfully retained in Minnesota, given that Mexico is a contracting party to The Hague Convention, Max and Maya are under 16 years old and were removed from what is arguably their habitual residence, and the concept of patria potestas grants Carl rights of custody, which he was exercising at the time Joan decided to stay in Minnesota with the children. So the answer to the question of whether Joan wrongfully retained the children in Minnesota is yes.
Defending Against a Child’s Return
Even though Carl may meet his burden of making a prima facie case, Joan can request the court deny his petition for return of the children by raising one or more defenses. The Hague Convention provides several defenses that, if proven, may defeat a petitioning parent’s request for the children’s return to their habitual residence. May defeat as opposed to will defeat because a court can choose to return a child to the country of her habitual residence at any time despite a parent proving one of the defenses.12
One of the most important defenses to The Hague Convention is the “well-settled” defense. The Hague Convention provides that a court must return a child to his habitual residence unless a year or more has passed and “it is shown that the child is now settled in its new environment.”13 The importance of the defense stems from its time limitation. If the left-behind parent does not file an action for return of the child in court within one year from the date of the child’s wrongful removal or retention, the other parent can defend against a petition for the child’s return by proving the child is well-settled in her new environment. Swift action by the left-behind parent is critical. To ensure timely filing of a petition for the return of the child, counsel must consider the time it may take to raise money to bring the case and to gather and translate documents needed to file with the court.
Another commonly raised defense to a child’s return to his habitual residence is the “grave risk of harm” defense. Article 13 of the Convention provides that the court is not bound to order the return of a child if a parent contesting the return establishes “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”14 Grave risk to the child must be proven by clear and convincing evidence according to ICARA, which governs the burdens of proof applicable to each defense.15
Historically, the grave risk of harm defense was meant to be construed narrowly so as not to be used as a means to litigate a child’s best interests. Some attorneys and scholars advocate this is still the case. Recently, the way courts apply the grave risk of harm defense to cases in which domestic violence is alleged has shifted. Some U.S. courts have denied fathers’ petitions for the return of their children based on the mothers’ allegations of domestic abuse. Joan could raise the grave risk of harm defense based on domestic violence; however, while the problem of violence against women is not to be minimized, Joan’s defense stems from a single incident of domestic violence rather than a pattern of abuse. Joan would need to prove by clear and convincing evidence that the children are at risk of physical or psychological harm, or otherwise placed in an intolerable situation, based on this one incident. When the grave risk of harm defense is raised by a responding party, courts may consider a request by the petitioner to make the return of the child conditional upon certain “undertakings” guaranteeing the safety of the child from the petitioning parent. For example, Carl could request the court issue an order directing him to have no contact with Joan or the children upon their return to Mexico pending the outcome of a hearing before a Mexican court, which could then rule on appropriate contact between Carl and the children given Joan’s allegations of domestic violence.
One might also defend by arguing that the return of the child “would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”16 This defense is rarely raised and is hard to prove under the clear and convincing evidence standard. It is meant to address the rare circumstance in which returning a child to her habitual residence would offend all notions of due process or completely shock the conscience, such as a return to Syria under the current conflict. While there are certainly war-ravaged countries that stand out today as ones to which the return of a child would be denied pursuant to this defense, those countries are not contracting parties to The Hague Convention.
The Hague Convention provides a defense to a responding parent if the left-behind parent has consented to the child’s removal or retention prior to its occurrence, or acquiesced to it after the fact. Two factors are essential to the court’s inquiry regarding whether the left-behind parent consented to the child’s removal or retention: 1) the left-behind parent’s subjective understanding of the child’s travel from her habitual residence, and 2) the left-behind parent’s intent as to where the child habitually resides. As with the “well-settled” defense, timing is an issue with consent.
For example, it would be critical for Carl to immediately notify Joan in no uncertain terms that he objects to Max and Maya being retained in Minnesota. The longer a left-behind parent waits to convey his objection, the harder it is to defend against the claim that he consented to the children’s retention in another country.
A final defense is a child’s objection to being returned to her country of habitual residence. The court may consider such wishes of the child if it determines the child is old enough and possesses a degree of maturity to warrant the court’s consideration of the child’s views. There is no minimum age requirement for a child’s views to be considered. At eight years old, Max’s and Maya’s views could very well be considered as there is case law supporting the court’s consideration of an eight-year-old girls’ views.17
State and Federal Court
Parents embroiled in an international child custody dispute, such as Carl and Joan, may wind up litigating in two venues: state and federal court. A parent in Joan’s circumstances usually files for divorce in state court or, in cases where domestic abuse may be involved, for an Order for Protection (OFP) granting her custody of the children. The parent commencing a divorce may claim she never intended to abandon Minnesota as her domicile and the time spent in the foreign country was not meant to be permanent. After returning to Minnesota, Joan, for example, may file for divorce in state court, petitioning for custody of the children. Even though she has not resided in Minnesota for the 180-day period mandated by Minn. Stat. §518.07, Joan may meet the statutory residency requirement by arguing she is a domiciliary of Minnesota. Joan could assert she never intended to abandon Minnesota as her domicile. While Joan may be found domiciliary for the purpose of divorce; this finding does not control whether Minnesota is the children’s habitual residence under The Hague Convention.
Parents like Carl may find themselves confronted with defending a state court custody action while at the same time pursuing their children’s return in a complicated federal court case under The Hague Convention. Carl would want to request the family court proceedings be stayed pursuant to Article 16 of the Convention, which directs the court in which a petition for custody is pending to stay the custody action pending the outcome of The Hague Convention action. To further complicate matters, litigating in two venues may not occur simultaneously. For reasons specific to the parents’ situation, actions in one or both courts may be delayed. Competently addressing international parental child abduction matters not only requires expertise in litigating international child abduction under The Hague Convention, but also requires a thorough understanding of proof of domicile and the UCCJEA, which governs interstate and international child custody.
Child abduction cases brought pursuant to The Hague Convention may be resolved by agreement; however, any efforts at alternative dispute resolution must be managed within the tight timelines of The Hague protocol. If the child is to be returned, the terms of her return must be carefully crafted to ensure she is placed on an international flight on a specific day or within a specific period of time. Costs of the return should be determined and allocated in the agreement. Parameters for parental communication about the return may also be included. Successful negotiation of a child’s return should result in a stipulation and order that is filed with both the foreign and United States courts. Some left-behind parents may agree to the children residing with the other parent during the school year or the summers. For example, in Carl and Joan’s case, they could agree that the children reside with Joan in Minnesota during the school year and with Carl in Mexico during summers and school vacations. Unfortunately, distrust between the parents and fear of further abduction often get in the way of such resolutions.
According to studies conducted by the I CARE Foundation and reported in March 2012 by The San Francisco Chronicle, the “United States may see as many as 125,000 American children internationally parentally abducted over the next decade, and as many as 225,000 children from North America parentally abducted or illegally detained in a foreign nation over the next decade.” Whether in response to expanding international business by Minnesota companies or ever-growing international mobility and a shrinking globe, international parental child abduction is a growing social and legal problem. An article of this scope can present only the tip of the iceberg and raise general awareness of how an international parental child abduction case may present itself to the Minnesota courts. For those interested, a wealth of information about international child abduction can be found online at http://travel.state.gov/abduction/abduction, the website of the Office of Children’s Issues of the U.S. Department of State.
Allison Maxim is an attorney at Walling, Berg & Debele, PA practicing exclusively in family law. She represents and counsels individuals in a wide array of family law matters including: local and international divorce, international child abduction prevention and enforcement, custody and parenting issues related to international relocation, and complex pre- and post-divorce parenting and financial matters. She has a master’s degree in Clinical Psychology and is a 2005 graduate of the University of St. Thomas School of Law.
1 Re:locate, “Latest trends in international relocation unpacked” (2010), http://tinyurl.com/785d7w2 (last visited 03/29/2012)..
2 The Association of Americans Resident Overseas, “About AARO: 6.32 million Americans (excluding military) live in 160-plus countries,” available at: http://tinyurl.com/7u58nyx (last visited 03/29/2012).
3Martin Moylan, “Trade agreement will help Minnesota grow internationally,”. Minnesota Public Radio, (03/14/2012), available at: http://tinyurl.com/7e3pwj6 (last visited 03/29/2012)
5 The Hague Convention on the Civil Aspects of International Child Abduction Art. 1, October 25, 1980, T.I.A.S. No. 11,670.
6 42 U.S.C. §11603(a), (1988).
7 Stern v. Stern, 639 F.3d 449, 451-53 (8th Cir. 2011) cert. denied, 11-562, 2012 WL 538340 (U.S. 02/21/2012).
8 The Hague Convention, supra, Art. 5a.
9 Id., Art. 3.
10 Elisa Perez Vera, “Explanatory Report: Hague Conference on Private International Law,” in 3 Acts and Documents of the Fourteenth Session, 426 (1980).
11 The Hague Convention, supra, Art. 3.
12 Id., Art. 18.
13 Id., Art. 12.
14 Id., Art. 13.
15 42 U.S.C. §11603(e), (1988).
16 The Hague Convention, supra, Art. 20.
17 Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001).