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Defenses to a “Hague” Action for the Immediate Return of a Child

The Hague Convention on the Civil Aspects of International Child Abduction seeks to protect children internationally from the harmful effects of their wrongful removal or retention from the countries of their habitual residence. In this month’s post, I will outline the key defenses that can be used in a Hague action for the immediate return of a child. Please see the last post for a more detailed summary of the convention.

Recall that one parent acting alone, without the express or tacit consent of the other parent cannot change a child’s habitual residence.[1] But if the other parent is to seek the return of the child, that parent must act quickly. Generally, a parent has one year from the date of the child’s wrongful retention or taking to file an action.[2] In a case where a mother did not bring her case for two years, the court correctly dismissed her petition as untimely.[3] Thus, the first defense is procedural.

The remaining defenses are substantive. If a court determines that a child was wrongfully removed or retained in the forum country, the child must be returned to the country of its habitual residence immediately, absent a valid defense. The substantive defenses are found in Article 13 of the Convention:

  1. The petitioning parent (the left-behind parent) was not actually exercising his or her custodial rights at the time of the removal or retention;
  2. The petitioning parent had consented to or subsequently acquiesced in the removal or retention;
  3. There is a “grave risk” that child’s return would expose the child to physical or psychological harm or place a child in an intolerable situation; and
  4. The child objects to being returned.

Custodial Rights. These rights are defined by the laws of the child’s habitual residence immediately before its taking or retention. (Convention, Art. 3.a.) These rights may arise by operation of law, judicial determination, or agreement. (Convention, Art. 3.) Obtaining a custody order in the new forum will not operate to defeat a valid Hague claim for the immediate return of the child.[4]

Consent. Consent to allow a child to visit another country is not consent to change the child’s habitual residence to the new place.[5] This is especially important as families go on sabbaticals, post-doctorate assignments, or short-term job assignments.

Grave Risk of Harm. Article 13 was not intended to be used by defendants as a vehicle to litigate the children’s best interests.[6] “Grave risk” to the child means that return of the child would place that child at risk of suffering serious psychological or physical harm. The defense assumes a prolonged period or course of conduct of abuse[7]; a single or occasional abusive act does not constitute “grave risk.”[8] Where the abuse does not constitute a grave risk, our courts will assume that the courts of the habitual residence will address the child’s well-being in its own custody orders.[9]

War Zones. Grave risk of harm also includes a concern about returning children to countries which are in turmoil. The Hague Convention extends protection from relocation to areas deemed to be a war zone. Minor unrest or terrorist activity is not a “war zone.”[10] A war zone is understood to be a place where schools and businesses are closed, people cannot leave the country, or where fighting is wide-spread.[11]

Child Objects. If the child objects to being returned, the court may consider its views where the court determines that the child “has attained an age and degree of maturity” which makes it appropriate to consider its views. There is no bright-line demarcation of age; this is a subjective consideration. In one case involving an 8-year–old, the court acquiesced to the child’s objections because the child was forthright and unequivocal in its responses, did not appear to be under the influence of either parent, and “demonstrated a sufficient degree of maturity to raise an objection.”[12]

Hague cases are largely fact-driven. But an understanding of the defenses may help parties weigh whether to bring or defend against an action for the immediate return of a child.

[1] Holder v. Holder, 392 F.3d 1009, 1020 (9th Cir. 2004).

[2] Hague Convention (“Convention”), Art. 12.

[3] Bardales v. Duarte (2010) 181 Cal.App.4th 1262, 1271.

[4] Diorinou v. Mezitis, 237 F.3d 133, 146 (2d Cir 2000).

[5] Mozes v. Mozes, 239 F.3d 1067, 1081 (9th Cir. 2001).

[6] Diorinou v. Mezitis, supra, 237 F.3d at 145.

[7] Simcox v. Simcox. 511 F.3d 594, 608-609 (6th Cir. 2007); Freidrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir. 1996).

[8] Whallon v. Lyon, 230 F.3d 450 (1st Cir. 2000); McManus v. McManus, 354 F.Supp.2d 62 (D.Mass 2005).

[9] Miller v. Miller, 240 F.3d 392, 402 (4th Cir. 2001).

[10] In re Stock (In re S.) 2002 WL 1446025; [2002] EWCA Civ. 908.

[11] See, e.g., in a contrasting example, Freier v. Freier, 969 F.Supp. 436, 443 (E.D. Mich. 1996).

[12] Escobar v. Flores (2010) 183 Cal.App.4th 737, 744-745, 107 Cal.Rptr.3d 596, 601.

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