Defending an Immigrant Parent’s Rights Against a Wrongful International Child Abduction Claim in “Hague Convention” Proceeding.
March 31, 2020
One of the most traumatic and complex legal problems a single-parent immigrant to the United States can face is an allegation by foreign co-parent that he or she abducted their child from their home country, or is wrongly retaining their child in the United States, thereby depriving the foreign parent of their lawful rights to custody and care of the child.
When this occurs, the state (the real party in interest is the alleging foreign co-parent), initiates a “Hague Convention” action against the single-parent immigrant and moves swiftly to locate, secure, and remove the child from the immigrant parent’s home, often against his or her will.
The speed with which this occurs, typically within six (6) weeks of the local authority filing a “Hague Convention” action is both terrifying and paralyzing to the immigrant-parent, particularly when that parent has little knowledge of the law and little money from which to hire an attorney to defend his or her parental rights against an all-powerful behemoth District Attorney prosecuting the case.
Accordingly, the usually hostile, alleging foreign co-parent has the unlimited power and resources of the state advocating on their behalf to remove the child from the United States and “return” the child to the foreign country.
When the defending immigrant parent does hire an attorney, regardless of whether they ultimately “win”, they are deeply traumatized from the constant fear of the child being taken and deeply in debt.
The foreign co-parent, on the other hand, pays nothing, even if their allegations were untrue and were nothing more than revenge by proxy against the other parent.
This repugnant imbalance of power is amplified exponentially when the single-parent immigrant is “undocumented”, has little formal education, and is afraid to seek assistance out fear of arrest or deportation of themselves or another child they may have at home.
Sadly, the Hague Convention does not allow for the defending parent’s recovery of fees from a falsely accusing foreign co-parent when successful, but does provide for the recovery of fees to the accuser should the child be returned. This is a wrongful imbalance of power and must be changed. When the defending parent is successful he or she should also be able to recover fees and costs from the wrongful accuser.
The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“Convention”) is a multilateral treaty which seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return to his or her county of habitual residence.
In order for a “Hague Convention” action to be lie, two threshold prerequisites must be met; (1) the child at issue must be under sixteen (16) years of age, and; (2) the child must have been “wrongly removed or retained” from his place of “habitual residence”.
Where a child was neither wrongly removed from his place of habitual residence, nor wrongly retained, a Hague Convention proceeding is improper and cannot proceed, as a matter of law.
Furthermore, where there is a grave risk of subjecting the child to great psychological harm, the child should not be removed.
The parent seeking the child’s return has the threshold burden of proving the child was wrongfully removed or retained from the place of his or her “habitual residence”, and the petitioner was exercising lawful custody rights over the child at the time of removal.
Removal or retention cannot be “wrongful” if done with the consent of the person exercising lawful custody or if that person subsequently acquiesced in the removal or retention. Consent occurs when the petitioning parent expressly or through conduct agrees to removal or retention before it takes place.
Under Article 13 of the Convention, the right to a child’s return is extinguished if the person having the care of the child consented to or subsequently acquiesced in the removal or retention of the child.
In other words, where there is a written agreement between the parents, and the single-parent immigrant and child move to the United States and establish their new life, as agreed, the remaining foreign co-parent cannot later, ex-post, “revive” his right of return child by “revoking or disavowing his or her agreement” because, effectively, there is no longer a basis from which the court can make a “return” order.
To invoke the Hague Convention, removal or retention of the child must have occurred from the place of his or her “habitual residence”. Fundamentally, the question is one of subjective intent, where the first step toward a new habitual residence is forming a settled intention to abandon the old one.
The settled intent can occur at the moment of departure, or it may be formulated later during the course of stay in a new country originally intended as a place of temporary sojourn. It may also be expressly declared or manifest from actions alone.
Manifestly, however, this intent requires an actual change in geography and passage of an appreciable period of time, sufficient for the child’s acclimatization to live in the new country.
Where the parents do not share a settled intent to adopt a new country as the child’s habitual residence (or complaining parent later denies this was his intent), the Court must consider whether the child has acclimatized to live in the new location. Viewed another way, the court should ask whether returning the child to a foreign country would be tantamount to sending him home.
In other words, if a substantial period of time has passed since the child moved to the United States with the single-parent immigrant, and is now is “used” to living here and considers his new location “his home” (i.e. he attends school here, and is involved in extracurricular activities and sport here; has made new friends here), the courts may consider that he is acclimatized and should deny the return.
The Hague Convention also provides for defense against the return of the child where, by a preponderance of the evidence, the local court proceeding was commenced more than one year after the child’s alleged wrongful removal, and the child has become well-settled into his new environment and home.
In determining whether a child is sufficiently “settled” to sustain a one-year defense, the Ninth Circuit considers several factors bearing on whether the child has significant connections to the new country.
The relevant factors include the child’s age, the stability and duration of the child’s residence in the new environment, whether the child attends school consistently, whether the child has friends and relatives in the child’s new environment, and participation in the community and extracurricular school activities. The most important factor, however, is the length and stability of the child’s residence in the new environment.
The Convention also provides for a “Grave Harm” defense, which contemplates that a child might suffer an intolerable situation by being “returned”, this includes possible psychological harm to the child as a result of separation from the primary caregiver.
Although the Ninth Circuit does not consider the child grow accustomed to the new home a valid concern under the “grave harm” standard, a detailed analysis of the child’s living situation and a child’s deep emotional bond and connection to his single immigrant parent should be considered.
In any event, a Hague Convention action is a traumatic and heart-wrenching event on both the single-parent immigrant and the child who is present in the United States. The legal issues are complex and often subtle. Any parent who is facing a Hague Convention removal proceeding must be represented by an experienced and dedicated attorney.
If you have been served with a Hague Convention action, you must act immediately. Every moment counts. Any delay could seriously jeopardize your rights and compromise your case.
Vogler Law Offices, PC can help. We will defend your rights to the fullest extent of the law. Call or email us today for a no-cost consultation.