I have current experience representing parents in United States District Court in cases involving the Hague Convention on Civil Aspects of International Child Abduction, including recent cases for clients who successfully sought return of children to their home country by first obtaining the extraordinary relief of Temporary Restraining Orders from United States District Judges and where a parent alleged to have abducted a child successfully retained custody in the United States.
The Hague Convention is an international treaty between 97 countries, including the United States, that sets standards for returning children under sixteen who have been removed from their country of habitual residence in which custody had originally been determined. These rights are activated when the child has been taken from his or her home country without consent of someone who had custody rights and whose custody rights have been disrupted. Few lawyers in the State of Connecticut have experience in this area of law concerning return of a child to the country from which the child was removed. I am available to personally consult with you on the facts of specific cases where a claim may be made, or where a claim has been made and requires defense, to see if I am the right lawyer to assist you.
When someone with custody rights petitions for the return of a child who has been taken from one Hague Convention country to another, that petition can be enforced with a lawsuit to enforce the petition in the country to which the child was taken. When the child has been taken to the United States and has been located, the party whose custody rights have been breached can bring a lawsuit in the local United States District Court or a local state court where the child has been found, and some cases may also be appropriate for the extraordinary relief of a Temporary Restraining Order.
Experience with child custody cases and sensitively addressing family issues is helpful, but it is important to remember that Hague Convention cases are not child custody cases. These are cases where custody rights have already been determined in the country from which the child was taken, either in a legal decision or by operation of that country’s law. The point of the Hague Convention is to return the child so that custody decisions are made in the courts of that home country, rather than substituting the custody determination of a court in the country to which the child was wrongfully removed. The United States Courts decide whether the child has to be returned home, under the provisions of the Hague Convention, to the country where custody rights had been established under that country’s law, and where custody determinations can continue to be made.
In 2013, I successfully brought a case in United States District Court for the District of Connecticut where the child was returned home with the petitioner after the ruling of a U.S. District Judge following a brief course of litigation. The procedural history might be helpful to those considering bringing — or defending — a Hague case.
After being contacted by the petitioner and deciding to take the case, the action commenced with filing an application for an emergency order called a Temporary Restraining Order that was quickly but painstakingly prepared in careful consultation with the party making the claim. Special attention was paid to the examining the facts of the child’s life and custody history to ascertain
- the country of habitual residence;
- that the child was under the age of sixteen;
- that the petitioner had custody rights under the Hague Convention;
- that the petitioner had exercised those rights;
- that the child was removed from the home country without the consent of the petitioner;
- that the petition had properly filed with the United States Department of State by the country from which the child had been taken; and
- that the case was being brought in the United States District Court within one year following the child’s removal from the home country.
This included carefully reviewing law and court orders in the home country establishing custodial, visitation, and travel rights of the parents, and the petition filed with the home country presented by that country to the United States Department of State. It was helpful that there were certified translations available from the home country, because the original documents were in Spanish and United States courts ordinarily transact business in English.
After that review, a Verified Complaint and Petition was prepared with an Application for a Temporary Restraining Order and Order to Show Cause (an order that the respondent not remove the child except to return to the home country, and an order scheduling the first hearing), and memoranda of law explaining to the Court the full facts and why this case was before it. The case was then presented to the U.S. District Court for the District of Connecticut as an emergency matter on an ex parte basis — without the other party present — on Wednesday November 27, the afternoon before the Thanksgiving holiday when United States courts are closed. In this case, the judge held a telephone hearing in which he spoke with the petitioner before granting the Temporary Restraining Order.
The parent who controlled the child was then located and served with legal papers by United States Marshals on Friday November 29th — something complicated by the holiday weekend, and on a day the court was also closed. The U.S. Marshals’ service of court papers on that parent put the parent-and-child under the court’s jurisdiction and summoned that parent to a hearing in U.S. District Court on December 2nd, where the parent was told by a U.S. District Judge that the child could not be removed from the jurisdiction of the court.
On December 9th, a full hearing was held before the judge to admit evidence, including the testimony of both parents, to decide if the petitioner had made out a valid Hague Convention claim, called a prima facie case, and if the respondent asserted and prevailed on any of the limited defenses available. The judge then issued a Memorandum of Decision and ordered the return of the child to the petitioning parent. The petitioning parent and child were reunited the following day and returned to their home country the next morning, December 11th.
Each case is determined by its particular set of facts and law, and each is unique. There are no guarantees on the result, and the fact patterns can be difficult. Lawyers bring their experience and judgment to the cases they take on, including experience in Federal Court and with the Hague Convention. I evaluate new petitioner cases to see if the parent who has taken the child can be subject to this kind of emergency order, and in all Hague cases assess strengths and weaknesses under the claims and defenses available to the parties.
These cases can be difficult, and expensive, but that should not keep you from inquiring about representation. I may take your case on a reduced fee or pro bono basis depending on the facts and circumstances, and I may refer you to a network of attorneys who take these cases across America.
It is important to remember that the Hague Convention and the United States Code provide that, if the party bringing a Hague case wins, the respondent will be ordered by the court to pay costs and legal fees unless “clearly inappropriate.” This may make it easier to obtain representation, even if a petitioner’s resources are more limited than those of the parent who has brought the child from the home country.
Since 2013, I have successfully litigated to judgment the cases of parents who sought relief under the Hague Convention by enforcing their rights in the U.S. District Court. I have also been a Hague Convention defense counsel securing the right for a child to remain with the parent in the United States. Three of the cases I brought to obtain the return of a child started with obtaining Temporary Restraining Orders. However, it is important to note that all Hague cases present legal and factual complexity and hinge on the individual facts and circumstances. No past case guarantees a future result.