The Hague Convention on the Civil Aspects of International Child Abduction allows for any two states to agree amongst themselves as to what their restrictions will be on the return of children, between themselves. What this means is that even if two countries are signatories to The Hague Convention on the Civil Aspects of International Child Abduction, there may be another, superseding treaty that will control how international child abduction and parental kidnapping will be handled between them.
Nothing in this Convention shall prevent two or more Contracting States, in order to limit the restrictions to which the return of the child may be subject, from agreeing among themselves to derogate from any provisions of this Convention which may imply such a restriction.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
A Montana mother got her children back after their father kidnapped to a yacht. Following a summer visit, the father wrongfully retained the children and began brainwashing them with his new wife. After eight months the Federal Bureau of Investigation was able to capture the pair and return the children to their mother.
Authorities say Angela and James Bryant loaded the children onto their 40-foot sailboat and took off for the Bahamas — outside US waters and away from the easy reach of US law enforcement.
They were caught in March when they sailed back to Miami so Angela could fly to Hawaii to visit her parents.
The FBI was tipped off and Angela was arrested at her family’s home. Thousands of miles away in Florida, James Bryant hastily loaded his children back onto the boat and fled back to the safety of Bahamian waters.
A Coast Guard cutter intercepted the yacht after a two-hour pursuit and the children were returned to their mother back in Montana.
Read more: http://www.dailymail.co.uk/news/article-2185707/Angela-Kelly-sentenced-4-years-abduction-Montana-children-yacht-Bahamas.html#ixzz24vvpQQMk
In an international case that confronts how the term “habitual residence” shall be understood under Hague Convention on the Civil Aspects of International Child Abduction in the United State of America, the U. S. Supreme Court will be reviewing a lower court’s ruling that returned a child to Scotland, when the trial court order was to keep the child in the U.S.
This case will be instrumental in lower courts understand and apply the Hague Convention on the Civil Aspects of International Child Abduction.
Kelly Rutherford whose children live in France with her ex has to travel there to see them because the Ex has no visa to America. She will know become familiar with the Hague Convention on the Civil Aspects of International Child Abduction in order for her to be prepared to enforce her custody and visitation in France. A court ruled that her flexible schedule would allow her the time to see her kids.
TMZ.com is reporting that she is “devastated” – understandable in that any large distance between parent and child makes bonding difficult.
International child custody cases like this are always difficult on the parties, and especially the children. We’ve worked with parents and lawyers multiple countries and it’s never easy, but positive outcomes can be achieved with experienced and knowledgeable attorneys.
Family law cases, and child custody cases in particular, are very document heavy. In international child custody cases, when the Hague Convention on the Civil Aspects of International Child Abduction is applicable, any documents filed in the case are admissible in a sister state. For example, if an incoming case is filed in Los Angeles Superior Court for a French child custody order, the application in Los Angeles will have to admit documents that were filed in the French Court. Family Lawyers in Los Angeles who practice in this area, are familiar with the rules and procedures and will be able to work with foreign counsel to coordinate the case.
Any application submitted to the Central Authorities or directly to the judicial or administrative authorities of a Contracting State in accordance with the terms of this Convention, together with documents and any other information appended thereto or provided by a Central Authority, shall be admissible in the courts or administrative authorities of the Contracting States.