When Does The Hague Convention on the Civil Aspects of International Child Abduction Apply?

The Hague Convention on the Civil Aspects of International Child Abduction applies only to cases and situations of child custody wrongful removal or wrongful retention that occurred after it was put into force between two countries. Not all countries agreed to this Hague Convention on the Civil Aspects of International Child Abduction at the same time, and some countries are still in the process. You can check on the status of a country here.

Article 35

This Convention shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States.

Where a declaration has been made under Article 39 or 40, the reference in the preceding paragraph to a Contracting State shall be taken to refer to the territorial unit or units in relation to which this Convention applies

The Hague Convention on the Civil Aspects of International Child Abduction Treaty Takes Precedence

In International child custody cases, there are many overlapping laws and treaties. For example there was a treaty in 1961 that many countries were signatories to, and then the current Hague Convention on the Civil Aspects of International Child Abduction was enacted, and many of the same countries are signatories to it. Lawyers who are working on cases that cross borders  must be familiar with both laws, and this section deals with how countries who are parties to the two treaties will deal with each other, and how parties who are not parties to both will handle international child custody cases.

Article 34

This Convention shall take priority in matters within its scope over the Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors, as between Parties to both Conventions. Otherwise the present Convention shall not restrict the application of an international instrument in force between the State of origin and the State addressed or other law of the State addressed for the purposes of obtaining the return of a child who has been wrongfully removed or retained or of organising access rights.

Is A State Required To Apply Hague Convention on the Civil Aspects of International Child Abduction ?

If the Hague Convention on the Civil Aspects of International Child Abduction applies at a federal level, like the United States of America, then the treaty would apply at a state level, such as under California law, a court in Los Angeles must apply the treaty’s provisions.

In those countries that are signatories, meaning they have agreed to be bound by the treaty, the Hague Convention on the Civil Aspects of International Child Abduction applies to the political subdivisions, even if they have different laws, if the treaty would apply in a state where there is only only set of laws.

Child Custody Lawyers who practice in international child cases are familiar with this law and can give you an opinion regarding the application of the Hague Convention on the Civil Aspects of International Child Abduction to your case.

Article 33

A State within which different territorial units have their own rules of law in respect of custody of children shall not be bound to apply this Convention where a State with a unified system of law would not be bound to do so.

 

 

What Law Governs In States With Two Legal Systems Under The Hague Convention on the Civil Aspects of International Child Abduction?

When a country has more than one system of laws applicable to its citizens, the Hague Convention on the Civil Aspects of International Child Abduction will recognize that the laws of the state governs in matters of child custody. Lawyers who practice in the international child custody arena must be aware of the various cultural and legal systems that apply throughout the world.

Article 32

In relation to a State which in matters of custody of children has two or more systems of law applicable to different categories of persons, any reference to the law of that State shall be construed as referring to the legal system specified by the law of that State.

How Does The Hague Convention on the Civil Aspects of International Child Abduction Deal With Territories?

Under the Hague Convention on the Civil Aspects of International Child Abduction when a Country has political subdivisions, such as California in the the United States of America, when reference is made to a child having habitual residence in California, it includes habitual residence in the larger political structure.

When lawyers are filing divorce or custody papers in a court, they usually will determine a  state of habitual residence for the child, so that there is a “home court” for jurisdiction of the child.

Article 31

In relation to a State which in matters of custody of children has two or more systems of law applicable in different territorial units –

a) any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit of that State;

b) any reference to the law of the State of habitual residence shall be construed as referring to the law of the territorial unit in that State where the child habitually resides.