Last week, we briefly mentioned the Hague Convention while discussing traveling with children during divorce. Besides being a very complex area of law, what exactly is the Hague Convention, and how can it help protect your children?
An Introduction to the Hague Convention
The Hague Convention (HC) is a treaty that was created to help address issues surrounding international family law, commercial law, and civil procedure. As of today’s date, over 80 countries have signed the treaty. Members of the HC agree to settle legal matters by referencing special rules, referred to as “private international law” rules.
In 1983, member countries started to enforce a treaty known as the Hague Convention on the Civil Aspects of International Child Abduction. The treaty provides methods that aid in the safe and speedy return of a child who has been kidnapped by one of their parents.
International parental kidnapping occurs when:
- One parent takes their child overseas without informing the other parent;
- One parent refuses to return their child after a pre-approved international vacation.
The Hague Convention’s job is to preserve the current child custody status quo. This means that the HC strives to oblige by the most recent child custody agreement that a set of parents have. For example, let’s say you have sole custody of your child. You let your ex take your child to England for summer vacation, and he refuses to bring your child home. You, and your attorney, can enlist the help of the HC to make sure your child is returned to their home country safely.
Filing a Hague Application for Return
The process for filing a Hague Convention Application for Return is very tedious, and you must begin as soon as possible. In order to file an Application, the HC requires that the following conditions are met:
- Your child is a habitual resident of a member country;
- Your child is being held in another country that is part of the Hague Convention;
- The country your child is being held in was a member of the HC prior to the date your child arrived;
- Your child was removed from their home country without your permission, or is being held longer than you agreed to;
- Your child is 16 or younger at the time the Application is filed;
- You can prove that you have custodial rights.
Along with your written Application, you will need to provide a number of documents. Such documents include a birth certificate, Judgment of Divorce or Marriage Certificate, Custody Order, and evidence of the abduction. Some countries require other documents, but it varies. Check out the U.S. Department of State for more information.
The Harsh Reality of the Hague Convention
Unfortunately, not every Application for Return is granted. Members of the HC can deny your request to have your child returned to you if:
- Your child is over 16 years old, and refusing to come home;
- Your child’s safety will be at risk if returned to their home country;
- The return of your child would violate human rights/freedoms of the country where they are being held;
- You waited too long to file your Application.
Get the Help You Need
You need to hire a lawyer in the country your child is being held in before you can start a Hague Application, however, the law firm of Brian D. Perskin & Associates P.C. can help you get started. Our team of expert attorneys can review your custody order, obtain documents from the court, and analyze your evidence.
If your child has been taken overseas by your ex, time is of the essence. Contact us at 718-875-7584 for more information on the Hague Convention, child custody, and divorce in New York.