August 11, 2022
Child Custody and International Abduction
A recent United States Supreme Court case illustrates how a child custody dispute can have international law ramifications. The mom, a US citizen, married an Italian citizen, they had a child and lived in Italy. With Dad’s permission, she took the child to the US for a family wedding. Then she refused to return to Italy with the child. What now? Dad sought relief in Federal Court in New York under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).
The Hague Convention is an international treaty signed by 101 nations, including the US. It requires authorities of a member country to order a child returned to the child’s county of “habitual residence”, if the authority finds that the child has been wrongfully removed to or retained in the member country. Cases are designed to be heard and decided quickly to minimize disruption of the child’s environment. They don’t deal with custody disputes. Those are explicitly left to the courts in the appropriate county. Instead, the Convention’s purpose is to restore whatever home and custody arrangement existed immediately before an alleged wrongful removal or retention to advance the child’s stability and to deter a parent from crossing international boundaries in search of a more sympathetic court. Once it is established that the child was wrongfully removed or retained, the member country must order a return. The Convention applies whether the child was taken to the US as in this Supreme Court case or from the US to another member country.
Here, Mom asserted one of the limited defenses provided in the Convention. She argued that return would expose the child to “grave risk of physical or psychological harm or otherwise place the child in an intolerable situation” claiming that the dad was physically abusive to her, often in the child’s presence. In response, Dad offered to undertake counseling and other steps to protect the child from that exposure. Whether those would be enough is unlikely but still undecided in the court.
The Convention is consistent with a basic principle of child custody that we see in every Connecticut divorce and custody case – that the child should be protected and the best interests of the child should be promoted. That principle is promoted internationally by the Hague Convention.
This article was first published on August 4, 2022 in The Cheshire Citizen.
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