'
EACH YEAR, thousands of children are
abducted from their homes because of disputing parents.
Leading-edge solutions to tracking such children are in
the works, using high-tech computers and extremely
sophisticated technology. Scores of people are devoting
themselves to coming up with a "better way." Even so,
lawyers still have their work cut out for them. Although
locating the child may prove difficult, it is simply the
first of many hurdles for those seeking the child's
return. The rescue picture could improve shortly, with
courts stepping in aggressively as the number of cases
swells.
The Convention on the Civil Aspects of
International Child Abduction (Hague Convention) was
ratified by Congress on July 1, 1988. [FN1] Its purpose is
to deter international child abduction and to provide a
mechanism for the prompt [FN2] return of abducted children
to their home country where the courts there can resolve
the custody issue on the merits. The convention only
applies among contracting states. [FN3] It is available
only when a child is wrongfully removed from a signatory
country and retained in another signatory country.
Thus, in Mezo v. Elmergawi [FN4] a
mother's action for an injunction ordering the Secretary
of State to perform his duties under the Hague Convention
was dismissed where the father took his children, who were
in their mother's custody, from the United States to
Egypt. While the United States was a signatory to the
Hague Convention, Egypt and Libya were not.
The countries that are parties to the
Convention agree that a child who is habitually resident
in a country that is a party to the Convention, who is in
another country that is also a party, in breach of a
parent's "rights of custody," shall, subject to certain
exceptions, be promptly returned to the child's country of
habitual residence.
Rights of Custody and of Access
The Convention does its best to create
clear signs of its intent to focus on the children. It
broadly defines "rights of custody" to include rights to
care for the child and the right to determine the child's
place of residence. "Rights of access" are defined to
include visitation rights and the right to take the child
to a place other than the child's habitual place of
residence for a limited period. [FN5]
A parent need not have a custody order to
invoke the Convention. To apply for the return of a child
a parent must be actually exercising [FN6] "rights of
custody" under the law of the country where the child was
"habitually residing" at the time of the abduction or
wrongful retention.
The Convention limits its application only
to children less than 16 years old who have been
"habitually residing" in a contracting state immediately
before the breach of custody or access rights and ceases
to apply on the day when the child attains the age of 16.
[FN7] It only applies to the wrongful removal or retention
of a child in the responding jurisdiction. [FN8] The
procedure is summary. It does not contemplate a custody
hearing on the merits, [FN9] For purposes of enforcement
proceedings brought under The International Child
Abduction Remedies Act (ICARA) the terms "wrongful removal
or retention" include a removal or retention of a child
before the entry of a custody order regarding that child.
[FN10]
Of course, the heart of it all is
determining when a child has been "wrongfully" removed or
retained. The removal or the retention of a child is
considered wrongful where 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.
In addition, at the time of removal or
retention those rights must have been actually exercised
either jointly or alone, or would have been so exercised
but for the removal or retention. The "rights of custody"
may arise by operation of law or by reason of a judicial
or administrative decision, or by reason of an agreement
having legal effect under the law of that state. [FN11]
Simply put, it is enough that a lawful custodian was
deprived of association with the child, or that an
agreement has been breached. There need be no violation of
a court order for the taking to be wrongful.
The Permitted Defenses
Limited defenses are available. If the
proceeding is commenced in the responding state more than
one year after the wrongful removal or retention, a
demonstration that "the child is now settled in its new
environment" may preclude his or her return. [FN12]
Other defenses that may be raised to
returning the child to the demanding state are that the
party now seeking return of the child was not actually
exercising custodial rights at the time of the wrongful
removal or retention of the child [FN13]; that there was
consent to the removal or retention [FN14]; that return of
the child would expose him or her to physical or
psychological harm "or otherwise place the child in an
intolerable situation" [FN15]; that the child objects to
being returned and is of such age and maturity that it is
appropriate to take account of his views [FN16]; and that
human rights and fundamental freedom would be abridged if
the return were permitted. [FN17]
There is a constant and excessive
bantering over the definition of "habitual residence,"
because its interpretation has been left to the courts and
not defined by the Convention.
In Friedrich v. Friedrich [FN18] the Sixth
Circuit established a definition that has been adopted in
New York. It held that habitual residence must not be
confused with domicile. To determine the habitual
residence, the court must focus on the child, not the
parents, and examine experience, not intentions. A person
can have only one habitual residence. On its face,
habitual residence pertains to customary residence before
the removal. It reasoned that the court must look back,
not forward.
Habitual residence can be "altered" only
by a change in geography and the passage of time, not by
changes in parental affection and responsibility. Any
change in geography must occur before the questionable
removal.
In Feder v. Evans-Feder, [FN19] the Third
Circuit, relying on Frederich, held that a child's
habitual residence is the place where he or she has been
physically present for an amount of time sufficient for
acclimatization and that has a "degree of settled purpose"
from the child's perspective. A determination that any
particular place satisfies this standard must focus on the
child and consists of an analysis of the child's
circumstances in that place and the parents' present,
shared intentions regarding their child's presence there.
Playing Fair
Above all, the convention protects only
those who play fair. Courts will not equate "residence"
based on "unclean hands" with a habitual residence. In
Meredith v. Meredith, [FN20] a mother's troubles were far
from over when she acted in bad faith. The father, an
Arizona resident, who had legal custody, was not directed
to return his daughter to the mother in France, where the
mother hid the child after requesting that the girl visit
grandparents there.
The court held that the daughter was not a
"habitual resident" of France and to equate the temporary
removal and subsequent sequestration of the child to
habitual residence in France, would be to reward the
mother for her ability to conceal the child. Concealment
does not cause the place of concealment to become the
place of habitual residence.
In Nunez-Escudero v. Tice-Menley [FN21]
the court rejected the argument that the parties'
6-week-old infant was dependent on the mother in
determining habitual residence. It held that this would be
inconsistent with Convention, for it would reward the
abducting parent and create an impermissible presumption
that the child's habitual residence is wherever the mother
happens to be.
Recently, the Fourth Department was the
first New York appellate court to address the issue in
Brennan v. Cieault, [FN22] where it reversed a Family
Court order and granted the mother's application to return
the child to France. [FN23]
The father, a United States citizen, and
the mother, a French citizen, met in New York in 1990
while the mother was studying for the summer. The father
moved to France where the parties were married in 1991.
Their daughter was born in France in February 1994. With
exception of visits to the father's mother in New York,
the parties lived in France until June 1995 when the
father and the child arrived in New York for a six-week
visit with his mother. The father had round-trip tickets
and was expected to return to France in August 1995.
The marriage had been troubled, however,
and in telephone calls during July and August the parties
decided to separate. The father indicated that he would
not return to live in France if they were not going to
remain together. They discussed sharing custody of the
child, with her spending six months with each of them. The
mother testified at the hearing that she offered
petitioner the first six months with the child but
informed him that she expected the child to return to
France in December 1995. The father admitted having those
discussions but denied that he specifically agreed to the
arrangement.
In December 1995 the father commenced a
proceeding in Family Court seeking custody of the child.
The mother made an application to dismiss the petition on
the ground that the child was being wrongfully retained in
New York in violation of the Hague Convention.
The Appellate Division held that the
Family Court erred in concluding that the child was not a
habitual resident of France. Referring to the Frederick
and Evans cases it noted that courts interpreting the term
have held that it refers to a degree of settled purpose as
evidenced by the child's circumstances in that place and
the shared intentions of the parents regarding their
child's presence there. The focus is on the child rather
than the parents and on past experience rather than future
intentions.
The court determined that application of
those principles to this case compelled the conclusion
that France was the child's habitual residence. The
parents were married there and had established professions
and a home there, and the child was born in France and
lived there for the first 16 months of her life before she
left for what was to be a six-week visit. Those facts
reflected a settled purpose on the part of the parties to
establish the child's life in France.
When the child left France the mother had
consented to the child's absence for only six weeks.
Eventually she gave her consent for the child to remain
until Dec. 30, 1995, but she never agreed that the child
remain beyond that time and certainly never agreed to her
remaining indefinitely. Because the child's habitual
residence was in France and the father wrongfully retained
the child in New York in derogation of the mother's equal
right to custody under the laws of France, the Family
Court should have issued an order requiring that the child
be returned forthwith to the mother in France.
FN1. As of Sept. 15, the Convention was in
effect for the United States, Argentina, Australia,
Austria, Bahamas, Bosnia-Herzegovina, Belize, Burkina
Faso, Canada, Chile, Colombia, Croatia, Cyprus, Denmark,
Finland, Ecuador, the French Republic, the Federal
Republic of Germany, Greece, Honduras, Hungary, Ireland,
Israel, Italy, Luxembourg, Macedonia, Mauritius, Mexico,
the Netherlands, Monaco, New Zealand, Norway, Panama,
Poland, Portugal, Romania, Slovenia, Spain, St. Kitts and
Nevis, Sweden, Switzerland, the United Kingdom of Great
Britain and Northern Ireland (and Isle of Man) and
Zimbabwe.
FN2. See Article 1.
FN3. Hague Convention, Article 35.
FN4. 1994, EDNY. 855 F Supp 59. See also
In Re Mohsen (1989, DC Wyo) 715 F Supp 1063.
FN5. Article 5.
FN6. Friedrich v. Friedrich 78 F3d 1060
(6th Cir. 1996) held that a person having valid custody
rights to a child under the law of the country of the
child's habitual residence cannot fail to "exercise" those
custody rights under the Hague Convention short of acts
that constitute clear and unequivocal abandonment of the
child. Once it determines that the parent exercised
custody rights in any manner, the court should stop -
completely avoiding whether the parent exercised the
custody rights well or badly.
FN7. Article 4.
FN8. Article 35.
FN9. Article 19.
FN10. 42 USC s11602(f)(2).
FN11. Article 3.
FN12. Article 12.
FN13. Article 13.
FN14. Ibid.
FN15. Ibid.
FN16. Ibid.
FN17. Article 20.
FN18. 983 F2d 1396 (6th Cir. 1993).
FN19. 63 Fed3d 217, (3d Cir. 1995), reh,
en banc, den (1995, CA3) 1995 US App Lexis 24323.
FN20. (1991, DC Ariz) 759 F Supp 1432.
FN21. 1995, CA8 Minn, 58 F3d 374.
FN22. 643 NYS2d 780 (4th Dept. 1996).
FN23. New York lower court cases include
Sheikh v. Cahill (1989) 145 Misc2d 171; David S. v. Zamira
S., 151 Misc2d 630 (Fam. Ct., Kings Co., 1991) ; Matter of
David B. v. Helen O., Misc2d (Fam Ct., NY Co., 1995)
Joel R. Brandes and Carole L. Weidman have
law offices in New York City and Garden City. They
co-authored, with the late Doris Jonas Freed and Henry H.
Foster, Law and the Family New York, and co-authored Law
and the Family New York Forms (both, Lawyers Cooperative
Publishing)
9/23/97 NYLJ 3, (col. 1)
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