When facing cross-border child custody disputes, the Hague court determines which country gets to make the orders.

We live in a mobile society, and that mobility can take families all over the world – for work, for play, or for a combination of the two. Traveling the world can be immensely enriching, particularly for children, and can open up a wealth of financial and cultural opportunities that a life of domestic bliss in the United States simply cannot offer. But settling a family in a different country can present problems, as well – particularly for families with young children. If the marital relationship breaks down while out of the country, and one spouse takes unilateral action to return to the United States with the children (or remains in the United States with the kids instead of returning to the country in which the family lives), the most simple of questions – what court do you have to get in front of to be heard on custody issues – can be anything but simple.

This is the province of the Hague Convention – the body of international law that governs the determination of the appropriate court to make custody orders. In cases involving the wrongful removal of a child from the country of that child’s “habitual residence” (or wrongfully withholding the child from a return to the country of habitual residence), the complaining party must bring an action either in the country where the children had been living or the country to which the children were taken.

The Hague Convention has not, however, been universally adopted around the globe. Only “signatory” countries recognize the Hague Convention’s guiding principles. So though many nations have agreed to be bound by the Hague Convention, not all are.

But assuming that the country involved in the custody dispute is a Hague signatory, the procedure is not overly complex. Within one year of the alleged wrongful removal or withholding, the complaining parent must apply through whatever channel is set up in the particular country (here the U.S. State Department). The petition will then be forwarded to the appropriate local court for determination. If the action is brought in the United States, the U.S. State Department will refer the application to the State and County where it is alleged that the children have been wrongfully residing, where it will be set for an initial hearing and then in most cases a trial.

The point of the trial will be to determine where the children were “habitually resident” immediately preceding the wrongful removal or withholding. The parties can have the matter heard in the local county court, or one of the parties may remove the case to Federal court if he or she wishes. Either way, the court will hear evidence regarding the children’s habitual residence – a concept that is left deliberately vague so as to allow for the most wide-ranging review of facts and circumstances that may reveal the answer to the court. The rules of evidence are significantly relaxed in order to allow for out-of-country parties and witnesses to appear by phone, or even just by declaration, and also to allow the court to have as much admissible information regarding the residence of the children as possible in order to make the best decision under the circumstances.

But even if a California court determines that California is the child’s habitual residence, that determination does nothing for the ultimate custody issues. The Hague Convention is only a jurisdictional scheme – it only determines which court is allowed to make custody orders. It does not in itself give the Hague court power to make actual custody orders in that proceeding (except if it orders a child returned to a country, or to remain in a country). The actual merits of the custody matter can thereafter be addressed in whatever country the Hague court ruled is the country of habitual residence. Even if the petitioner loses at the Hague level, that party may still get the benefit of good custody orders from the proper country. All the Hague court is there to do is to determine which country gets to make those orders.

Hague cases can be confusing, and not too many family law practitioners are comfortable taking Hague Convention cases. The attorneys at Forester Purcell have been representing clients in Hague proceedings for years, and are also on the U.S. State Department’s list of firms in Northern California that it will refer Hague applications to, both pro bono and fee-based. If your family is facing Hague issues, we can help.

By Neil M. E. Forester, Certified Family Law Specialist, Forester Purcell Inc. Family Law Attorneys

Share The Story