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.

 

 

How Not To Keep Custody – Kidnap The Kids On A Yacht In The Bahamas

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

U. S. Supreme Court To Hear International Child Custody Case

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.

http://www.reuters.com/article/2012/08/13/us-usa-courts-supremecourt-childcustody-idUSBRE87C11I20120813

This case will be instrumental in lower courts understand and apply the Hague Convention on the Civil Aspects of International Child Abduction.

How Are Documents Handled Under The Hague Convention on the Civil Aspects of International Child Abduction?

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.

Article 30

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.

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Do I Have To Go Through A Central Authority Under The Hague Convention on the Civil Aspects of International Child Abduction

If a child is being wrongfully withheld, or was abducted by the other parent, the “out parent” may filed directly in the court where the child is being held. Under the Hague Convention on the Civil Aspects of International Child Abduction a parent does not have to go through the Central Authority to open a case. However lawyers in Los Angeles often will file directly in the Superior court of California and then notify the Central Authority so they are part of the proceedings.

Article 29

This Convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention.

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When Will A Central Authority Represent A Parent Under The Hague Convention on the Civil Aspects of International Child Abduction

Each state that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction must appoint a Central Authority so that there is a clear path to enforcement for foreign nationals to seek assistance in a member country when a parental abduction such as a wrongful withholding, or a refusal to access occurs. The Central Authority is tasked with enforcing the current custody orders. It may act as a representative for the “out parent.”

The Central Authority of a state under the Hague Convention on the Civil Aspects of International Child Abduction may seek authorization or confirmation that they are supposed to be representing the parent, or they may demand that a representative be appointed, such as an international child custody lawyer.

Article 28

A Central Authority may require that the application be accompanied by a written authorisation empowering it to act on behalf of the applicant, or to designate a representative so to act.

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