Hague Convention Overview
The Hague Convention is a treaty that helps ensure the prompt return of any child below the age of sixteen to his or her habitual residence. It also discourages the parties from forum shopping by preventing the parents from moving the children to a different country that has more favorable custody laws. Generally under the Hague Convention, the custody matter will be heard in the child’s home country.
The Hague Convention is only applicable in countries that have become signatories to the Convention. In addition, both countries must be signatories to the Convention for its aspects to apply. The United States is a signatory country.
Actions initiated under the Hague Convention do not consider the best interest of the child, instead it recognizes the child’s habitual residence and gives deference to the laws of the child’s habitual residence.
Home State/ Habitual Residence
In any Hague Convention case, the court must determine whether or not the child has been wrongfully removed from the home state. The court will weight two factors:
whether the child’s “habitual residence” was in a ratifying country just before the abduction, and
whether the child was removed from someone who had custodial rights.
The term habitual residence is not defined by the treaty. Courts look to the intent of the parties, the location of the parties, and the amount of time that the parties have been in a particular place. Habitual residence is based on the facts of each case. The court looks to the intent of both parents.
The parent remaining in the country has the burden of proving that the taking of a minor child was wrongful. A custody order is not required in the child’s home country. All that is required is that that staying parent had the right to exercise custodial rights. Once the moving party meets his or her burden, the party who removed the children must prove that he or she had an affirmative defense.
The parent who removed the child must show that he or she had a good reason (an affirmative defense) to remove the child. The parent removing the child generally must show a defense by clear and convincing evidence. However, there are times when the moving party may show it by a preponderances of the evidence.
JURISDICTION IS SIMILAR TO UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT
One Forum, One Order
If another country has exercised valid jurisdiction over custody, California should defer to that country. An Orange County court would only have jurisdiction under limited circumstances.
Exclusive, Permanent Jurisdiction
Once a country exercises valid jurisdiction, another country or state may only modify custody in limited circumstances.
A California court may exercise temporary jurisdiction over child custody if there is an emergency that requires an exercise of jurisdiction. Emergencies include danger to the minor child or abandonment.
Defeating Permanent Jurisdiction
California can exercise jurisdiction over a custody matter and make child custody orders when the original case was adjudicated in another state if the child and the parents no longer live in the originating state.
Original State Must Relinquish Authority
The decision for the originating state to terminate jurisdiction is not automatic when the family moves from the state. It is only the originating state that can determine if jurisdiction should be changed.
Pre-Existing Foreign Custody Order
If there is an out of state custody order, it must be determined whether or not the order is valid. If it is valid it must be recognized and enforced.
Even if a court has jurisdiction to decide a case, it can decline to exercise jurisdiction if it is an inconvenient forum or one of the parent’s conduct was unjustifiable.
Temporary Emergency Jurisdiction Under The Hague Convention
When there is an emergency situation, California court may act as long as the child is present in this state. However, any orders made by a California court are temporary and for only a short duration of time. In order for a California family law judge to made an order not only must the child be present in the state but also one of the following must be true:
The child has been abandoned. This means that the child does not have care or supervision in the state of California, or.
An emergency exists and an order is necessary to protect the minor child. This usually occurs when the child is the subject of domestic violence by a family member. The possibility of harm may be enough for the court to make an emergency order. If there is risk that the abuse will continue, the family law judge may continue to make orders to keep the child safe.
A child’s immigration status is generally not considered for the purposes of the Hague Convention.
Clear and Convincing Evidence Required
Affirmative defenses require clear and convincing proof include a grave risk of harm to the child or the country of habitual residence would not be a good place due to violations of human rights and fundamental freedoms.
Preponderance of Evidence Required
In some situations only a preponderance of evidence is required:
when the parent who remained at home filed the petition more than a year after the removal took place;
when the stay behind parent was not exercising custody rights; or
when the stay behind parent consented to the removal.
If a child is settled in the new country, the court will not return the child to the original habitual residence. A court will consider several factors to determine whether a minor child is settled in the United States:
Stability and duration of a child’s residence in the new country;
Regular school attendance;
Child’s friends and relatives in the area;
Child’s participation in community or extracurricular activities; and
Respondent’s employment and financial stability.
A child’s status as undocumented will not effect the determination of whether a child is settled.
Under the Hague Convention, a court may allow a minor child to testify about his or her preferences to stay in California as long as the child demonstrates sufficient maturity to express his or her desire to remain in the custody of the parent living in the United States. This determination is based upon the discretion of the judge and is on a case by case basis. The judge may exercise their discretion not to interview a child.
Fees and Costs for Stay or Dismissal
Family Code section 3428 requires a court to assess fees and costs against a party who invokes the jurisdiction of an Orange County court unjustifiably. Fees and costs include any reasonable and necessary expenses associated with the litigation and can incorporate travel expenses and investigation fees and attorney fees.