A family law attorney I greatly respect asked me what the Hague Convention was about. She had never come across it. This did not surprise me. It is possible (although not advisable), to practice family law without considering the Hague Convention. However, if you go through your practice like this, you may one day come across a very unhappy client, or, worse still, a malpractice suit. Let me explain.
The world is a very small place now. People can and do travel and live in numerous countries during their lives. How many of you have handled a divorce where one parent (and not the other) wants to leave the United States to go abroad on vacation or to relocate for employment or family reasons?
The U.S. ratified the 1980 Hague Convention on Civil Aspects of Child Abduction in 1988 (enacted into U.S. law in the 1988 International Child Abduction Remedies Act (ICARA)).1 The courts in Hague ratification countries (once some initial considerations are established) are under a treaty ratification obligation to return a child to the country of "habitual residence."
An attorney representing the left-behind parent may want to raise the issue of non-ratification status in the other country to try to prevent or limit the relocation/visit. Essentially, what you want to be able to argue is that the child should not go to a non-ratification country because the left-behind parent may not be able to get the child back or visit the child without Hague Convention protection.
In Ahmed v. Niviwala,2 custody was granted on appeal (reversing the trial court determination) to the mother. The appeal court recognized that Saudi Arabia was not a Hague Convention country and the U.S. resident mother may have been unable to enforce her visitation there.
In Lazarevic v. Fogelquist,3 also involving Saudi Arabia, counsel did not bring the Hague Convention to the court's attention. The court allowed the mother and child to relocate to Saudi Arabia, where her new husband was pursuing financially rewarding employment with Aramco. One can only hope for the father's sake that the relocating mother was cooperative with the father's visitation. If she was not, then the father could have had considerable difficulty exercising visitation in Saudi Arabia.
This is well illustrated by the nightmare suffered by the mother trying to exercise her visitation in Ahmed v. Niviwala. This case is worth a read as this is not the sort of fact pattern that any attorney would like to have happen to a client.
Strangely perhaps, the fact that a country has ratified the Hague Convention may also be an argument you want to make against the move/visit to the country. The reason is that the presence of the child may change the "habitual residence" to the other country. There may be ways of preventing this result by careful advanced planning.
In Lasich v. Lasich,4 the mother was required to register the relocation order in Spain under the Hague Convention at least annually and state that the children resided more than 10 weeks in California per year and that California was the children's habitual residence. She was also required to post a bond.
Naturally, the cautious attorney will be very wary of relying too much upon such safeguards. We do not know if the safeguards worked in this case in Spain. As the reader knows, sometimes safeguards we put in place are never put to the test. In addition, in any individual country, courts may or may not find such safeguards to be sufficient.
There is also another potential problem when dealing with a Hague Convention country. The treaty provides in Article 12 that, after one year in the country of non-habitual residence, the court is not obligated to return the child to the country of habitual residence if the child is "settled." So, although the California court in Lasich, or at least the proposing attorney, may have thought that the safeguards there could be effective, the following question needs to be considered: Would the Spanish court have felt obligated to return the child to the U.S. if it deemed the child in fact "settled" in Spain? At a minimum, it would be a very good idea to caution one's client as to the many potential problems that might arise with this approach.
As you can see, the Hague Convention can either be a blessing or a curse depending upon which side you are on and what you are trying to achieve. An unexpected potential blessing, which you should be aware of, is illustrated by the following example.
The Hague Convention can be a godsend to a parent whose case is not served by a "best interest" of the child analysis. This is particularly seen in the situation where you are representing the parent opposing the relocation/visit and your client is unlikely to be adjudicated the primary custodial parent due, for example, to less parental involvement.
As we know, in Washington relocation will frequently be permitted under our state law when it is in the best interests of the child to be with the relocating parent and there is a reasonable reason for the relocating parent to move, for example, for a job or family ties. As the attorney for the stay-behind parent, you will probably need to get away from this analysis.
Recall that courts in ratification countries are under a treaty obligation to return the child to the country of habitual residence. You may be wise at this stage to start your case in federal, not state, court. The wisdom behind this is that federal courts tend to be more used to dealing with treaty issues. You may find that the state court, which will have greater experience with the "best interests approach," may not stick purely to the dictates of the treaty as defined above.
By the way, if you are not admitted to federal court, now is the time to do it before you need to scramble trying to find an attorney who is and who knows how to deal with the Hague Convention. This could pose a substantial problem to you if you are in an emergency situation.
One major land mine for the unwary attorney is the issue of rights of access or visitation under the Convention. This is a developing area of treaty law and it can be extremely difficult to predict which way the courts are going to go at this stage.
Under the Hague Convention, if a custodial determination previously has been made and sole custody has been granted to the removing parent, subject only to the rights of visitation of the left-behind parent, those rights of access do not, on the face of the treaty, entitle the petitioner to an order for return of the child. Custody rights are defined in Article 5(a) as "rights relating to the care of the person of the child and in particular, the rights to determine the child's place of residence." Therefore, the court which is to determine the return of the child will need to be presented with the custodial order from the other country, and the law and policy of that other country, to determine the nature of the custodial rights of the left-behind parent.
You will need to warn your client that the U.S. courts have not universally adopted the same approach. There have been three major decisions in the Second, Fourth and Ninth Circuits denying the return of a child and finding that the treaty provided the remedy of return only to those parents who allege a breach of custody rights rather than access rights.5 Yet, despite these decisions, the 11th Circuit in Furnes v. Reeves has decided as follows: "Our conclusion today diverges from those of the Second, Fourth, and Ninth Circuits. É We É join the powerful Croll dissent in disagreeing with the (Croll) majority's conclusions." 6
This is a very general introduction to the 1980 Hague Convention. There are numerous pitfalls from the get-go. For example, it may not be obvious to all that, as the treaty is reciprocal, the U.S. is only obligated to honor its terms with countries whose ratification/accession has been accepted by the U.S.
However, I hope I have convinced the reader that a knowledge of the Hague Convention is important to a family law practice, if for no other reason than to spot the issue and refer it out. If there have not been situations where you should have considered it, there are likely to be in the future. n
Marguerite C. Smith is a family law attorney at Smith Family Law, PS in Seattle. She focuses her practice on domestic, interstate and international divorce and separation issues. She is currently a vice chair for the American Bar Association International Family Law Committee. She can be reached at 206-343-6362.
1 42 U.S.C.S. ¤ 11601 et seq.
2 762 N.Y.S.2d 125 (2003).
3 668 N.Y.S.2d 320 (1997).
4 121 Cal. Rptr. 2d 356 (Cal. Ct. App. 2002).
5 See Croll v. Croll, 229 F.3d 133 (2d Cir. 2000); Fawcett v. McRoberts, 326 F.3d 491 (4th Cir.), cert. denied, 124 S. Ct. 805 (2003); Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir. 2002).
6 362 F. 3d 702, 719 (11th Cir. 2004).
