International child custody cases are on the rise due to the mobility of couples who either desire to live abroad or who receive international job assignments. The biggest issue in determining custody issues is where the children reside, as that is typically where the custody battle will take place.
The front line for these matters has been the Hague Convention on International Child Abduction. The United States and other countries are signatories, and it is a useful remedy if children have been wrongfully abducted.
The main objective of the Hague Convention is to secure the prompt return of children wrongfully removed to or retained in a state that has signed onto the agreement, and to ensure that rights of custody and access under the law of one such state are respected in the other states.
The removal from one country to another is considered “wrongful” if a) it is in breach of custody rights 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 a habitual resident before the removal or retention; and b) those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
In Monasky v. Taglieri, 140 U.S. 719 (2020), the United States Supreme Court recently held a child’s habitual residence depends on the totality of the circumstances specific to the case. The court further held that an agreement between the parents was not necessary to establish a child’s habitual residence.
Thus, establishing the child’s habitual residence is key. Also, the Convention’s remedies for return of a child cease to apply when the child attains the age of 16. Furthermore, courts are forbidden by the treaty from making any custody determination on the merits, as that question is to be decided by the child’s country of residence.
The Hague Convention establishes numerous procedures for contacting each country and coordination in an international child abduction. According to the treaty, a suit for the return of the child is given priority, and courts typically make decisions within six weeks. The suit may be filed in federal or state district court but must be filed within one year of the wrongful removal or retention of the child. However, even if the proceedings have commenced after the one-year window has closed, the court should order the return of the child unless it is demonstrated that the child is now settled in his or her new environment.
There are some notable defenses to the return of a child to the country of habitual residence, even if all elements of a Hague case are proven. A court is not bound to order the return of the child if the parent, institution or other body which opposes the return establishes that a) the parent, institution or other body caring for the child was not actually exercising custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b) there is a grave risk a return would expose the child to physical or psychological harm, or place the child in an intolerable situation. While these defenses certainly make sense, they are difficult to prove.
More interestingly, the court may refuse to order the return of the child if it finds the child objects and is of age and maturity to take account of his or her views. This standard is vague and is left up to the court to determine. This must also be balanced with the knowledge that a child can be pressured and coached to oppose a return.
A court may also refuse to return a child to a country based on concerns of human rights and fundamental freedoms, such as a war-torn country or a country with an ongoing record of human rights violations.
Even if a foreign state is not a signatory to the Hague Convention, Texas law still allows a person to register and enforce a custody judgment of another country if a child was wrongfully brought to Texas. All hope is not lost so long as the foreign country issues an order for the return of the children to that country and those orders can be enforced in Texas.
International child disputes are not going away. These high-stakes cases, usually costly, almost always hinge on where the parties decided to make their permanent residence with the children, whether they fall under the Hague Convention mandating a return to the United States or another country.
Article originally published in the September 2021 issue of DBA Headnotes.