Joel R. Brandes and Carole L Weidman
THE CONVENTION on the Civil Aspects of
International Child Abduction was adopted at The Hague,
the Netherlands, on Oct. 25, 1980, and was ratified by
Congress on July 1, 1988. As of Aug. 1, 1993, it was in
effect between the United States and 29 nations:
Argentina, Australia, Austria, Belize, Burkina Faso,
Canada, Croatia, Denmark, Ecuador, France, the Federal
Republic of Germany, Greece, Hungary, Ireland, Israel,
Luxembourg, Mauritius, Mexico, Monaco, the Netherlands,
New Zealand, Norway, Poland, Portugal, Rumania, Spain,
Sweden, Switzerland and the United Kingdom.
The aim of the convention is to deter
international child abduction and to provide a mechanism
for the prompt [FN1] return of abducted children to their
home country, where the tribunals can resolve the custody
issues, if any, on the merits. It helps stop wrongful
removals or retentions occurring after its entry into
force in those states and applies to those contracting
states and the United States. [FN2] The countries that
have acceded to the convention have agreed that a child
who is habitually resident in a country that is a party to
the convention, who is removed to or retained in another
country that is a party to the convention, in breach of
that parents custody rights, shall, subject to certain
exceptions, be promptly returned to the child's country of
habitual residence.
Because New York custody orders and
judgments are not entitled to recognition in foreign
countries, and thus are not directly enforceable abroad,
parents whose children have been abducted to other
countries have been frustrated for years in obtaining the
return of their children. This reality is as intertwined
in U.S. history as is the emotional jungle that inspired
its partial cure.
Act of Implementation
The International Child Abduction Remedies
Act (ICARA), an implementing act whose provisions are
additional to those of the treaty, took effect on July 1,
1988. Its purpose was to establish procedures for the
implementation of the treaty in the United States and to
empower U.S. courts to determine only rights under the
convention and not the merits of any underlying custody
dispute. [FN3] The act created a central authority [FN4]
to discharge the duties imposed upon the United States by
the convention, and it grants concurrent jurisdiction to
federal and state courts to enforce the Convention. [FN5]
Contracting states are required to take
all appropriate measures within their territories to
implement the objectives of the Convention [FN6] and are
required to designate a "Central Authority" to discharge
the duties imposed upon them by it. [FN7] The Office of
Citizens Consular Services in the Bureau of Consular
Affairs is designated as the U.S. central authority. Its
address is CA/OCS/CCS, Room 4817, U.S. Department of
State, Washington, D.C. 20520; telephone, (202) 736-7000;
facsimile number (202) 647-2835.
Article 7 of the convention requires that
central authorities co-operate with each other and promote
co-operation among the competent authorities in their
respective states to secure the prompt return of children
and to achieve the other objectives of the convention.
[FN8]
Custody, Habitual Residence
A parent need not have a custody order or
judgment to invoke the convention. To apply for the return
of a child a parent must be actually exercising "rights of
custody" under the law of the country where the child was
"habitually residing" at the time of the abduction or
wrongful retention of the child. For purposes of the
convention, "rights of custody" include rights relating to
the care for the child's person and, in particular, the
right to determine the child's place of residence. "Rights
of access" include the right to take the child for a
limited period to a place other than the child's habitual
place of residence. [FN9]
The convention applies only to children
less than 16 years of age who have been "habitually
residing" in a contracting state immediately before the
breach of custody or access rights. Even if a return
proceeding is pending, it ceases to apply on the day when
the child becomes 16. [FN10] It applies to cases where
children have been wrongfully taken to or retained in the
responding jurisdiction. The procedure is summary and does
not contemplate a hearing on the merits of a custody
dispute. Article 19 of the convention provides that "A
decision under the Convention concerning the return of the
child shall not be taken to be a determination on the
merits of any custody issue."
The convention applies only to wrongful
removals or retentions. [FN11] For purposes of enforcement
proceedings brought under the 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. [FN12]
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; and if 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.
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. [FN13]
There need be no violation of a court
order for the taking of the child to be wrongful under the
Hague Convention; i.e., it is enough that a lawful
custodian was deprived of association with the child, or
that an agreement has been breached.
Limited defenses are available in the
summary proceeding at the responding state. For example,
if the proceeding for return of the child 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" will preclude return
of the child. [FN14] Other defenses which may be made 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 [FN15]; that there was
consent to the removal or retention [FN16]; that return of
the child would expose him/her to physical or
psychological harm "or otherwise place the child in an
intolerable situation" [FN17]; that the child objects to
being returned and is of such age and maturity that it is
appropriate to take account of his views, [FN18] and that
human rights and fundamental freedom would be abridged if
the return were permitted. [FN19]
Judicial Remedies
The act [FN20] grants the United States
District Courts and the courts of each of the states
concurrent original jurisdiction of actions arising under
[FN21] the convention. [FN22] As will be explained, a
proceeding under the convention is not a custody
proceeding.
Any person seeking to initiate judicial
proceedings under the convention for the return of a child
or for arrangements for organizing or securing the
effective exercise of rights of access to a child may do
so by filing a petition, commencing a civil action for the
relief sought, in any federal or state court that has
jurisdiction of such action and that is authorized to
exercise its jurisdiction, in the place where the child is
located at the time the petition is filed. [FN23]
After receiving notice of a wrongful
removal or retention of a child, the judicial or
administrative authorities of the contracting state to
which the child has been removed or in which it has been
retained may not decide rights of custody on the merits
until it has been determined that the child is not to be
returned under the convention, or unless an application
under the convention is not lodged within a reasonable
time following receipt of the notice. [FN24]
The court in which such action is brought
must decide the case in accordance with the convention.
[FN25] "Petitioner" means any person who in accordance
with the act, files a petition in court seeking relief
under the convention; "Respondent" means any person
against whose interests a petition is filed in court, in
accordance with the act that seeks relief under the
convention; "Rights of access" means visitation rights,
and the term "State" means any of the several states, the
District of Columbia and any commonwealth, territory or
possession of the United States. [FN26]
Neither the convention nor the act implies
that the Uniform Child Custody Jurisdiction Act governs
questions of jurisdiction of the court to make a
determination under the convention. Section 75-d of the
Domestic Relations Law (DRL) governs jurisdiction of New
York courts to make child custody determinations. It
provides in part that: "1. A court of this state which is
competent to decide child custody matters has jurisdiction
to make a child custody determination by initial or
modification decree only when: (a) this state (i) is the
home state of the child at the time of commencement of the
custody proceeding, or (ii) had been the child's home
state within six months before commencement of such
proceeding and the child is absent from this state because
of his removal or retention by a person claiming his
custody or for other reasons, and a parent or person
acting as parent continues to live in this state; ...."
It is clear from the quoted language that
the statute deals with jurisdiction to make a "child
custody determination." Since "Hague proceedings" do not
involve custody determinations, we believe that the UCCJA
need not be considered for purposes of determining
jurisdiction. The presence of the abductor or child within
the state or jurisdiction is sufficient to confer
jurisdiction under the convention as long as adequate
notice is given.
Section 75-e of the DRL provides that
before issuing a decree under the UCCJA, reasonable notice
and an opportunity to be heard shall be given to the
contestants; any parent whose parental rights have not
been previously terminated; and any person who has
physical custody of the child.
Nationals of the contracting states and
persons who are habitually resident within those states
are entitled in matters concerned with the application of
the convention to legal aid and advice in any other
contracting state on the same conditions as if they
themselves were nationals of and habitually resident in
that state. [FN27]
New York Cases
The reported New York cases construing the
convention or act are in their infancy both in number and
substance. They consider the questions of "habitual
residence" and jurisdiction. In Sheikh v. Cahill, [FN28]
Justice W. Rigler of the Supreme Court, Kings County,
denied the mother's application for custody of the
parties' child and directed the return of the child to
England. In 1978, in a proceeding in which the father was
a party, the English court ordered that the child be in
the mother's custody in England and that the father have
visitation in the United States.
As a result of the mother's failure to
return the child to England, an order was issued in April
1989 from the English High Court of Justice, finding a
wrongful retention within the meaning of the Hague
Convention. An initial joint custody decree was made in
New York in 1984. Justice Rigler applied the convention
since the child was less than 16 and lived in England for
2- 1/2 years, finding the child to have habitually resided
abroad. The court concluded that the child had been
wrongfully detained in New York for less than a year, in
violation of the new order, necessitating his return to
England.
In L.H. v. Youth Welfare Office [FN29] the
child was born in 1988 in Suffolk County in New York. The
father, who was in the army, was transferred to a base in
Germany in 1989, where he moved with the family. Several
months after their arrival the 9-month-old child was
severely and brutally beaten. Thereafter, the Youth
Welfare Office of Wiesbaden, Germany, charged the parents
with criminal child abuse and obtained an emergency
removal order for all three children. The infant was
placed with respondents who were U.S. citizens residing in
Germany. In 1990, the German Court issued a decision
finding that the mother neglected her parental duty toward
the subject child and directing that the Youth Welfare
Office have custody, with foster placement. The German
court specifically determined it had jurisdiction over the
infant's custody on the basis that Germany was the child's
main residence.
The mother returned to New York and
commenced a custody proceeding in Family Court in Suffolk
County in 1990. The Family Court held that New York did
not have jurisdiction to issue a custody determination
and/or to modify the German custody orders within the
meaning of DRL s75-d. As of the date of the commencement
of this proceeding, the child had been residing
continuously and exclusively in Germany for more than 20
months. Therefore, New York is not the child's "home
state" within the meaning of DRL s75-d(1). Based on the
events and proceedings in Germany, the court concluded
that it was in the child's best interests to remain in the
foreign forum, further stating that it did not have
jurisdiction under the UCCJA.
The court noted that since the German
court had continuing jurisdiction over the custody matter,
it precluded the New York court from modifying orders
previously entered in the foreign court, those same orders
that were made in proceedings that did not appear to
offend either the policies of the UCCJA or the due process
motions of U.S. and New York Constitutions. The Family
Court denied the mother's application for custody of her
child and to stay all proceedings pending in Germany,
relative to the custody, guardianship and/or adoption of
the infant. As there was no wrongful removal or retention,
the court held that the Hague Convention did not apply.
Separation Accord
In David S. Zamira S., [FN30] the parties,
who were Canadian nationals, entered into a separation
agreement before the birth of their second child. Pursuant
to the agreement, the wife had custody of the first child.
The agreement provided that the wife "shall make the son
available to the husband for visitation within the
Metropolitan Toronto vicinity." The agreement was silent
as to the custody and visitation of the second child, who
was not born at the time of the agreement.
In 1989, the Supreme Court of Ontario
issued an order preventing the wife from removing them
from Ontario and from obtaining passports for the
children. On Oct. 5, 1989, the wife and children left
Ontario and the husband followed the procedures set forth
in the Hague Convention to secure the return of the
children. On Dec. 5, 1989, the Ontario Ministry of the
Attorney General forwarded an application for the return
of the children to the United States Department of State.
In September 1990, the Supreme Court of
Ontario held that the wife wrongfully and improperly
removed the children from the Ontario jurisdiction and
avoided or refused service, although duly served with the
1989 order that directed her not to leave. In November
1990, the Supreme Court of Ontario issued a similar order
adding that the wife was withholding the children from the
husband, who was entitled to custody and access to the
children. In December 1990, the husband moved for
enforcement of this order in New York.
The Family Court, Kings County held that
both children in this case were "habitually resident" in
Ontario immediately before their removal and that the
husband was exercising his rights, as to his son, and
would have exercised his rights as to his daughter but for
her removal. It held that the wife acted in contempt of
the Ontario Supreme Court's order, by leaving the country.
The husband had an equal right to custody of the parties'
daughter because the separation agreement did not include
any arrangement as to her custody. The Family Court held
that the Ontario Supreme Court orders of September and
November 1990 constituted a declaration that the removal
or retention of the children was wrongful within the
meaning of the Hague Convention.
Family Court gave full faith and credit to
the orders of the Ontario Supreme Court, including the
findings made and held that the husband has met his burden
of showing, by a preponderance of the evidence, that the
removal of these children from Ontario was "wrongful" and
that the wife did not meet her burden of showing, by a
preponderance of the evidence, that the children were so
settled in their new environment in Brooklyn that they
should not be uprooted and returned to Ontario.
Under the circumstances presented here,
the Family Court did not find the husband's proceeding to
return the children was untimely, nor did it find that the
husband acquiesced to the removal of the children. The
court held that both children should be returned to
Ontario forthwith, where a preliminary hearing could be
held to determine the issues of interim custody and
visitation.
In Green v. Green, [FN31] Justice Rigler,
held that DRL s75-e requires "reasonable notice and an
opportunity to be heard," to confer jurisdiction in a
Hague proceeding. As the mother had commenced an action
against the defendants in the New York Supreme Court to
enjoin them from removing the children to Israel, and the
father served her attorney with a cross-motion to include
a Hague Convention petition within that action, this was
sufficient to confer jurisdiction.
FN1. See Article 1
FN2. Hague Convention, Article 35.
FN3. The International Child Abduction
Act, Pub L. No. 100-300, 102 Stat.437- 442; codified as
amended at 42 USC ss11601-11610; See 42 USC 11601 (b) for
the congressional intent.
FN4. 22 CFR 94:2; See 42 USC 11606.
FN5. Regulations are found at 22 CFR Part
94; s53 Fed Reg 23608 [June 23, 1988].
FN6. Article 2.
FN7. Article 6.
FN8. Among other things, they are required
to take all appropriate measures to discover the
whereabouts of a child who has been wrongfully removed or
retained; to prevent further harm to the child or
prejudice to interested parties by taking or causing to be
taken provisional measures; to secure the voluntary return
of the child or to bring about an amicable resolution of
the issues; to initiate or facilitate the institution of
judicial or administrative proceedings with a view to
obtaining the return of the child and, in a proper case,
to make arrangements for organizing or securing the
effective exercise of rights of access; where the
circumstances so require, to provide or facilitate the
provision of legal aid and advice, including the
participation of legal counsel. and advisers; and to
provide such administrative arrangements as may be
necessary and appropriate to secure the safe return of the
child.
FN9. See Article 5.
As to the Rights of Access, Article 21
provides that an: "... application to make arrangements
for organizing or, securing the effective exercise of
rights of access may be presented to the Central
Authorities of the Contracting States in the same way as
an application for the return of a child. The Central
Authorities are bound by the obligations of co-operation
which are set forth in Article 7 to promote the peaceful
enjoyment of access rights and the fulfillment of any
conditions to which the exercise of those rights may be
subject. The Central Authorities shall take steps to
remove, as far as possible, all obstacles to the exercise
of such rights. The Central Authorities, either directly
or through intermediaries, may initiate or assist in the
institution of proceedings with a view to organizing or
protecting these rights and securing respect for the
conditions to which the exercise of these rights may be
subject."
FN10. Article 4 provides:
"The Convention shall apply to any child
who was habitually resident in a Contracting State
immediately before any breach of custody or access rights.
The Convention shall cease to apply when the child attains
the age of 16 years."
FN11. Article 35.
FN12. 42 USC s11602(f)(2).
FN13. Article 3.
FN14. Article 12.
FN15. Article 13.
FN16. Ibid.
FN17. Ibid.
FN18. ibid.
FN19. Article 20.
FN20. Publ. No. 100-300; 42 USC
ss11601-11610.
FN21. 42 USC s11602(2) provides that the
term "Convention" for purposes of the article, "means the
Convention on the Civil Aspects of International Child
Abduction done at the Hague on Oct. 25, 1980."
FN22. Article 29.
FN23. 42 USC 11603(b).
FN24. Article 16.
FN25. 42 USC 11603 (d).
FN26. 42 USC 11602.
FN27. Article 25.
FN28. (1989) 145 Misc2d 171, 546 NYS2d
517.
FN29. (1991) 150 Misc2d 490, 568 NYS2d
852.
FN30. ___ Misc2d ___, 574 NYS2d 429 (Fam.
Ct., Kings Co., 1991).
FN31. New York Law Journal, July 6, 1993,
P. 33, Col. 2, Sup. Ct., Kings Co. (Rigler, J.)
Joel R. Brandes and Carole L. Weidman have
law offices in New York City and Garden City. Mr. Brandes
is a co-author, with the late Doris Jonas Freed and Henry
H. Foster, of Law and the Family, New York (Lawyers'
Co-Operative Publishing Co., Rochester, N.Y.) Ms. Weidman
co-authors the annual supplements with him.
10/26/93 NYLJ 3, (col. 1)
END OF DOCUMENT
