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International Custody Disputes The Importance of the Hague Convention

International Custody Disputes: The Importance of the Hague Convention

This blog series has focused on the bodies of law, loosely dealing with jurisdiction, that provide remedies for parents having their children taken or kidnapped from their legal custody by the other parent. We have discussed how there are both state and federal remedies to prevent and/or return children who have been taken or abducted within the United States.

However, the matter becomes more complex, difficult, expensive and delayed when a child is taken out of the country. The federal Parental Kidnapping Prevention Act allowed for a state’s legitimate custody determination to take precedence over another state where custody was subsequently sought if improper. Federal law is supreme to state law.

When the child has been taken out of the United, this “full faith and credit” does not necessarily apply between countries to address and prioritize who may decide. Other countries may have stricter or less strict custody laws, and may or may not choose to recognize the custody laws and determinations of the United States.

There are two (2) bodies of law that more or less address a child’s wrongful removal to or detention in a foreign country, The Hague Convention the National Center for Missing and Exploited Children.

A. Countries Following the Hague Convention

Between countries who have signed and ratified it, the Hague Convention can be helpful;1 specifically, this is the Hague Convention the Civil Aspect of International Child Abduction. The Hague Convention does not deal with jurisdiction (like the PKPA and UCCJA do). Rather, the focus of the Hague Convention is to return a child to their legal and rightful “habital residence.”

The Hague Convention works to return children home even if there has been a contrary legal order granting the non-custodial parent custody in the other country. This essentially moots the other country’s custody decree in favor of the original country’s legal decree.

One problem with the Hague Convention is that it is not followed by all countries. The United States and several other countries have entered into this agreement, but there are numerous countries that have not. These are located in South America, Africa, the Middle East and Asia If a child is taken to one of these countries not included, what happens then?

The Hague’s coverage does not apply to a child once he or she is sixteen.

B. Countries Not Following the Hague Convention

If the child has been taken out of the country to a foreign country that does not follow the Hague Convention, the situation is much more troubling. At this point, there is no superceding law to automatically return the child to the United States under the proper, original custody decree.

If a child is outside of the Hague Convention countries, the National Center for Missing and Exploited Children (NCMEC) is an avenue to try to locate and return the child2. The NCMEC allows for information to be posted about missing children quickly and to several agencies worldwide. It also has resources for families and attorneys to help re-establish custody.

The NCMEC also has tips and information regarding how to protect a child and to avoid a child being taken. For example, have a recent picture and be aware of different safety situations, including being in a crowded, public location. In these cases, private investigators, translators, and attorneys usually work together to formulate a plan to try to execute the return of the child.

These resources for a child who has been abducted and taken abroad provide far more complexities and issues than a parent who takes a child out of state. Knowing the dangers and ways to prevent child abduction is a key to avoid landing in this unthinkable position. Keeping children safe is the number one priority, and having the proper information and taking
safety precautions can help avoid a dangerous situation.

Ciyou & Dixon, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Jessica Keyes.


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