Countries who have agreed to the Hague Convention on International Child Abduction are required by the terms of the treaty to assist in the location and recovery of children who are the victims of Parental Abduction, Parental Kidnapping or are being wrongfully withheld by their parent.
Under Article 10 of the treaty which states:
The Central Authority of the State where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child.
The problem for the left-behind parent is that the return is supposed to be ‘voluntary’ which makes this a more difficult process. Parents who are kidnapping or abducting their children are not motivated easily to return the child to the other parent. Which is why lawyers have to apply pressure through various means to force the abducting parent to abide by the court orders. We do that by working with the courts such as the Los Angeles Superior Court and the Los Angeles District Attorneys office when necessary.
What Do Signatories To The Hague Convention on International Child Abduction do when an application is filed regarding a Parental Abduction or Parental Kidnapping case? According to the treaty, signatories are required to help locate the child, and if they believe the child may be in another country, they are to assist in informing that country of the possible abduction, kidnapping or wrongful retention of a protected child. In Los Angeles, California that would mean coordinating with the local district attorney, either directly as a parent or through the use of local attorneys such as our firm, Pisarra & Grist who are lawyers that work with the appointed Central Authority for return of the child.
If the Central Authority which receives an application referred to in Article 8 has reason to believe that the child is in another Contracting State, it shall directly and without delay transmit the application to the Central Authority of that Contracting State and inform the requesting Central Authority, or the applicant, as the case may be.
As lawyers in Santa Monica, we have represented clients throughout the state of California and coordinated with solicitors, lawyers, barristers and attorneys in foreign countries globally.
The Hague Convention on International Child Abduction sets out standards for what is needed to apply for a return order of a child that is a victim of parental abduction or who has been wrongfully withheld by a non-custodial parent. Those standards are set out in Article 8:
Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.
The application shall contain –
a) information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child;
b) where available, the date of birth of the child;
c) the grounds on which the applicant’s claim for return of the child is based;
d) all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be. The application may be accompanied or supplemented by –
e) an authenticated copy of any relevant decision or agreement;
f) a certificate or an affidavit emanating from a Central Authority, or other competent authority of the State of the child’s habitual residence, or from a qualified person, concerning the relevant law of that State;
g) any other relevant document.
In theory each signatory country has a duty to aid in the return of a child who has been wrongfully withheld or is the victim of Parental Abduction. In the United States that duty is coordinated through the State Department who designates local authorities such as the Los Angeles County District Attorney’s office to aid in the return of abducted children. In reality, many times the victim parent hires private attorneys such as Pisarra & Grist to aid in the process.
The Convention came together to draft a treaty which countries then agree to abide by or not. Sometimes a country will agree to most of the treaty but reserve their rights to act differently under some section of the treaty. In general though the members who have become signatories to the Hague Convention on International Child Custody, such as the United States of America, and its political subdivisions like California and Los Angeles California, agree to:
Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take all appropriate measures –
a) to discover the whereabouts of a child who has been wrongfully removed or retained;
b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
d) to exchange, where desirable, information relating to the social background of the child;
e) to provide information of a general character as to the law of their State in connection with the application of the Convention;
f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access;
g) where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
i) to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.
The nine goals of the Hague Convention on International Child Custody are to help parents whose child is a victim of parental abduction. They are implemented through Central Authorities, such as the Los Angeles County District Attorney’s office usually in partnership with a private local attorney, or in opposition to a private local lawyer.
Each country that is a party to the Hague Convention on International Child Abduction must designate a Central Authority to implement and enforce orders issued under the Treaty. In countries such as the United States of America, where there are subservient jurisdictions such as California, the contracting country can designate more than one Central Authority. For example at the U.S. Federal level they designate the states as central authorities who in turn designate they subdivsions such as the Los Angeles County District Attorney to be the Central Authority for cases that involve children in Los Angeles County.
The treaty authorizes this at:
A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities. Federal States, States with more than one system of law or States having autonomous territorial organisations shall be free to appoint more than one Central Authority and to specify the territorial extent of their powers. Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which applications may be addressed for transmission to the appropriate Central Authority within that State.
As lawyers in Los Angeles County who deal with child custody and child visitation, along with access petitions under the Hague Convention on International Child Abduction, our firm has experience working with our central authority. We have also worked with the Central Authority of other counties and countries.
The Hague Convention on International Child Custody addresses the rights a parent has to a child for purposes of residency determination, and access. For example if a child custody determination was made in England, but the child resides in Los Angeles, California, the lawyers for the non-custodial parent would seek enforcement of the child custody order in the Superior Court of California – Los Angeles County.
For the purposes of this Convention – a) “rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;
b) “rights of access” shall include the right to take a child for a limited period of time to a place
other than the child’s habitual residence.
These are important rights, especially Article 5, Section a, as that right will determine which jurisdiction will be controlling. In Los Angeles County and throughout California, the courts will apply the standards of the Uniform Child Custody Jurisdiction and Enforcement Act when deciding if the Hague Convention applies, this is why an attorney who is experienced in this area is necessary.
The Hague Convention on International Child Abduction is a multi-lateral treaty. That means it applies to nations that have agreed to abide by its terms. Once a nation agrees to it, that agreement must be accepted by the other nations that have agreed to it. The United States has been a signatory to the Treaty since 1988.
The Convention applies by its own terms:
The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.
The United States of America (U.S.A.) uses the period of 6 months to define the term “immediately before” as that is the amount of time that is considered to establish a new residency under the Uniform Child Custody Jurisdiction and Enforcement Act, which applies at the state level.
As lawyers who practice in California with the Hague Convention on International Child Abduction and have worked with other attorneys throughout the USA and the globe on these and related issues, we have the experience to help you.
The Convention decided that there shall be standards to define the Wrongful Retention or Removal of a child. Under the Hague Convention on International Child Abduction the following are the broad stroke definitions of what is considered to be Wrongful Retention or Wrongful Removal:
The removal or the retention of a child is to be considered wrongful where –
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
So when a court order has been issued or if the parents were sharing custody and one parent refuses to share the child’s custodial time, or leaves the country, the “left behind parent” needs to act to protect their interests and rights. The best way to do that is to locate lawyers ( attorneys ) who are skilled and experienced with the intricacies of the Hague Convention of International Child Abduction. In California, we have represented clients from Los Angeles County to Nevada County in Northern California and are qualified to represent clients throughout the state of California.
The Hague Convention on International Child Abduction has two main objectives, set out in Chapter 1, Article 1 of the Convention:
The objects of the present Convention are –
a) to secure the prompt return of children wrongfully removed to or retained in any contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
The Hague Convention is designed to be a tool to enforce a custody order that has been made, or when one has not yet been made, to determine WHICH court should make the determination.
When we have these cases in Los Angeles County, or throughout the southland of California, we are always aware of the limitations of the Convention. The Los Angeles Superior Court is quite familiar with the Convention because we are such a multi-national and cultural city.
The International Treaty as approved by the Hague Convention on International Child Abduction on October 28, 1980 has the following introductory language, which I think very clearly explains the purpose of the Hague Convention on International Child Abduction:
“The States signatory to the present Convention, Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access…”