Gonzaga Journal of International Law

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The Hague Convention Two Decades Later:

Assessing the Effectiveness of the

International Child Abduction Remedies Act

By

 Laurie L. Trotter

Laurie L. Trotter is a candidate for J.D. in May, 2003 from Gonzaga University School of Law. She has an interest in International Law. She thanks her husband, Owen Devereux, for all his encouragement and support. Thanks also to Dean Lisa Bradley for the assistance she provided with research.

I.  INTRODUCTION

As the our society becomes increasingly globally connected through the ease of international air travel, the advent of the internet, and the strength of international commerce, it is inevitable that family relationships will also enjoy international diversity.  However, when parents from diverse national origins decide to dissolve their matrimonial ties, parental preferences concerning where to raise the children of that marriage can result in conflict.  Disputes of this nature may lead one parent to abscond with one or more of the marital children to gain a custodial advantage in a home country where domestic relations law is beneficial to that parent.[1]  In this situation, the left-behind parent’s options to secure the return of his or her children are limited.[2] 

In fact, the problem of child abduction is significant.[3]  At the present time there are about 1,000 reported cases of children who have either been kidnapped from the United States or are being wrongfully held abroad.[4]  Moreover, instances of child abduction have increased.[5]  Resolution 98, presented to the Senate in March, 2000, states that, “[t]he situation has worsened since 1993, when Congress estimated the number of abducted and wrongfully retained American children to be more than 10,000.”[6]

This paper will first begin with a review of the terminology specific to ICARA.  Second, it will examine the provisions and purposes of ICARA, particularly as these provisions and purposes apply to wrongful parental removal or retention of a child across international borders.  Third, it will provide an analysis of the constitutional ramifications of ICARA.  Family law matters and concerns about child custody issues traditionally fall within the purview of state law rather than federal law.  This paper will address whether ICARA encroaches upon the Constitution when federal law preempts a state order concerning child custody.

Fourth, it will review the exceptions that provide the adjudicating authority the flexibility to refuse the return of the child, and thus defeat the purpose of ICARA.  To a large extent, ICARA has been relatively effective in carrying out its goals.[10]  However, there are a number of exceptions within ICARA that grant a governmental authority wide discretion in adjudicating the return of the abducted child to the left-behind parent.[11]  Fifth, this comment will also review the effectiveness of the Act in fulfilling its purpose, by considering the federal and state cases that have construed ICARA.  Finally, it presents proposals for improving ICARA and provides suggestions to assist attorneys who are involved in ICARA litigation.

II.  TERMINOLOGY

Provided below are definitions of selected terminology frequently used in ICARA.  Knowledge of this terminology is necessary to understand the Act as intended by its drafters.[12]

Abduction. 

The term “wrongful abduction” is not used in a criminal sense, but rather a civil sense.[13]  “[W]rongful abduction signifies a ‘[w]rongful removal or retention’ . . . refer[ring] to the taking of a child from the person who was actually exercising custody of the child…[or] keeping the child without consent of the person who was actually exercising custody. . .”[14]

Abductor.

An abductor is “[t]he person alleged to have wrongfully removed or retained the child.  This person is also referred to as ‘alleged wrongdoer’ or ‘respondent.’”[15]

Person. 

Country of Origin.  

The “Country of Origin” is the, “child’s country (‘State’) of habitual residence prior to the wrongful removal or retention.”[18] “Country of Origin” is also described in the Convention as “requesting country.”[19]

Country Addressed. 

The Country Addressed is “[t]he country (‘State’) where the child is located or the country to which the child is believed to have been taken.  It is in that country that a judicial or administrative proceeding for the child’s return would be brought.”[20]

The Convention. 

“The Convention” refers to the Hague Convention on Civil Aspects of International Child Abduction.[21]  The Convention was codified into U.S. law as the International Child Abduction Remedies Act (ICARA).[22]  ICARA is also referred to as “the Act.” The Convention and the Act are essentially the same, except that ICARA includes some reservations that were added when it was codified into U.S. law.[23]  One reservation specifies that an English translation should be included with all foreign language correspondence related to the Convention.[24] A second reservation states that the U.S. Government will not assume the costs associated with returning a child wrongfully held in the U.S. to the Country of Origin.[25]  These costs may include legal fees and court costs related to bringing litigation in the U.S.[26] Despite these slight differences, the U.S. courts often refer to the articles specified in the Convention when interpreting ICARA.[27]

Central Authority. 

The Convention mandates that Contracting States designate a “central authority” to assist in implementing the responsibilities described in the convention.[28] In the United States, the Department of State is the Central Authority.[29] As such, a left-behind parent seeking return of an abducted child may apply for assistance through the Department of State.  They may also initiate judicial proceedings, as provided in ICARA.[30]

Child. 

The term “‘[c]hild’ or ‘children’ means persons under the age of sixteen.[31]

Contracting State. 

A Contracting State is a signatory member that has enacted the Convention.[32]

III.  ICARA’S PURPOSE

The Convention’s goals are to provide assistance to the left-behind parent and to the children who have been wrongfully abducted across international borders.  Children who are wrongfully removed from their home of residence and transported across international borders are “deprived of the stable relationships” the convention was designed to restore.[33]  The Convention was designed as a simplified process to assist the left-behind parent and protect the abducted child by facilitating the child’s expedited return to the home of residence.[34]

In general, Contracting States are required to carry out the responsibilities set forth in the Hague Convention.  These responsibilities include: “(1) [Securing] the prompt return of children wrongfully removed to or retained in any Contracting State; and (2) to ensure that rights of custody and of access under the law of one Contracting State is effectively respected in the other Contracting States.”[35]

Contracting States have wide discretion in implementing the Convention, however, there are several exceptions available to the Country Addressed if it wishes to block the return of abducted children.[36]  These exceptions will be examined in more detail in Section V.

IV.  ICARA PROVISIONS

The following overview of ICARA’s provisions is not intended to be a comprehensive examination of ICARA, but rather a summary of the basic assertions contained in the Act.  The scope of the Act, the goal of expedited ICARA proceedings, and the Act’s civil limitations will be discussed.  Additionally, this section considers court interpretations of the Act’s “wrongful removal or retention” and “breach of custody rights” provisions. 

Initially, examples of how courts have applied custody orders during ICARA litigation will be presented.  Secondly, this section will examine the obligations of a judicial authority in ordering the return of an abducted child.  Court interpretations concerning jurisdiction for custody disputes will also be discussed.  And lastly, this section will explore how courts have interpreted the provisions for awarding attorney’s fees and expenses during ICARA litigation.

Scope of Act. 

The remedial mechanisms available in ICARA only apply if the child falls within the constraints of the Convention.[37]  Under these constraints:  (1) the child must have been taken to a Contracting State which has ratified the treaty; (2) the child must be below the age of sixteen; (3) the child must be taken from the place of habitual residence to another location across international borders; (4) application with the Central Authority must be made, or, when seeking a judicial remedy, a case must be filed after the Contracting State has agreed to enforce and implement the Convention. [38]

Furthermore, the scope of the convention is limited to addressing only issues that concern child abduction, the subsequent return of the child, and visitation.[41]  An ICARA proceeding is not intended to serve as a hearing to resolve custody issues, but rather a determination of where the custody hearing will take place.[42]  The Convention provides that “[a] decision under this Convention concerning the return of the child shall not be taken to be a determination of the merits of any custody issue.”[43]  In other words, the Central Authority must decide the “merits of an abduction claim, but not the underlying custody claim.[44]  For instance, in Friedrich, the Sixth Circuit Court of Appeals considered a dispute concerning a child born in Germany to an American mother and German father, which arose after the mother took the child to the United States.[45]  The Friedrich court determined that custody hearings should occur in the country of the child’s habitual residence, which in this case was Germany.[46]

Expedited Proceedings. 

The Convention’s drafters envisioned a streamlined process that would lead to the abducted child’s prompt return to his or her habitual residence. The Convention provides that “[c]ontracting [nation-]States shall act expeditiously in proceedings for the return of children.”[47]

The goal of ICARA is that the Country Addressed will reach a decision as to where the custody hearings will take place within six weeks. [48]  If a determination has not been made in six weeks, then “[t]he applicant or the Central Authority of the requested State . . . shall have the right to request a statement of the reasons for the delay[ed proceedings].”[49] Moreover, a reply from the Country Addressed shall be provided as to the reason for the delayed proceedings.[50]

In a case involving the return of children to a parent in Mexico, the March court interpreted the term “prompt” to apply to the nature of the court proceedings.[51]  This ruling was confirmed by the appellate court.[52]  The March court stated that “[ICARA] provides a generous authentication rule.”[53]  “No authentication of such application, petition, document or information shall be required in order for the application, petition, document or information to be admissible in court.”[54]  The March court clarified that, “the provision served to expedite rulings on petitions for the return of children wrongfully removed or retained.  Expeditious rulings are critical to ensure that the purpose of the treaty—prompt return of wrongfully removed or retained children—is fulfilled.”[55]

Civil and Nonexclusive Remedy.  

ICARA is intended as a civil remedy.  Although the term “wrongful abduction” suggests criminal conduct, ICARA is not designed as an extradition treaty.  Unlike the extradition process, where the criminal is returned to the United States to face charges, ICARA was enacted to facilitate return of the child to the nation of habitual residence.[56]  Upon the child’s arrival at the location of habitual residence, the courts of the habitual residence may further resolve custody disputes. [57]

In addition, ICARA is a nonexclusive remedy.[58]  The Convention provides the Central Authority with “[t]he power… to order [the] return of the child at any time.[59]  For instance, in Zajaczkowski, the court ordered the prompt return of the child, adopting the writ of habeas corpus as a procedural device to be used in conjunction with ICARA remedies.[60]^, [61]

Wrongful Removal or Retention. 

The Convention provides guidance concerning wrongful removal or retention:

The removal or retention of the child is to be considered wrongful when: (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.[62]

In Roszkowski, the court explained that in order to determine whether the child was wrongfully abducted, the court looks to the location where the child was living ‘“immediately before any breach of custody [occurred],’ which encompasses wrongful removal.”[63]  In Roszkowski, both parents were living in the United States with the child, when the mother brought the child to live in Poland without the father’s consent.  The court determined that the child was wrongfully removed to Poland.[64]

Breach of Custody Rights. 

For ICARA to apply, there must have been a wrongful removal and a “breach of custody rights.”[65]  Breach of custody rights are “[r]ights relating to the care of the. . . child and, in particular, the right to determine the child’s place of residence.”[66]  For example, if a parent sends a child to live in a boarding school,[67] or to live with a family during a parental illness, the parent has not revoked custody rights in taking such actions.[68]

Procedurally, in order for the left-behind parent to seek return of the child, the left-behind-parent must prove, by the preponderance of the evidence, that the child was removed from the location of “habitual residence” and that the removal and subsequent retention was a breach of the custody rights exercised by the left-behind parent.[69]  For instance, in Slagenweit, when a father brought his daughter from their home in Germany to live with him and to seek medical treatment in the U.S., the court determined that his actions were not wrongful or a breach of custody rights.[70]  The child’s mother had consented to the father’s retention of the child in the U.S. [71]

Once the left-behind parent has met his or her burden of proving the child was wrongfully removed and there has been a breach of custody rights, the burden then shifts to the abductor who must prove that the left-behind parent did not exercise custody rights.[72]  For example, in Zajaczkowski, the left-behind father was able to demonstrate that the mother wrongfully removed the child to Poland.[73]  Since the child’s mother “[m]isrepresented the purpose of the child’s departure to Poland” to the father, the court decided that the mother was unable to prove the father did not retain custody rights.[74]  In fact, the court maintained that the mother “thwarted” the father’s custody rights and decided the child should be returned to the U.S.[75]

Custody Decision Not Compulsory. 

The existence of a custody order is not required to invoke the Convention.[76]  In fact, child abductions often occur before a custody decree is obtained.[77]  The focus of ICARA is merely to secure rapid return of a child to his or her habitual residence, where custody decisions can then be addressed.[78] 

An illustration can be found in a case involving a father’s wrongful retention of his children in the United States.[79]  In this case, the Tyszkas were married in France and intended to reside in France indefinitely.[80]  However, after a vacation with the children in Michigan, the father informed the children’s mother that he intended to stay in Michigan with the children, and he filed for divorce and for custody of the children in a Michigan state court.[81]  The Michigan court rendered a judgment for divorce and custody arrangements.[82]  The Tyszka court found that the trial court erred in considering the child custody issues.[83]  It held that the place of the children’s habitual residence was France and, therefore, the resolution of custody issues should have been addressed in French courts.[84]

Custody Order Not Dispositive.

ICARA will not automatically recognize a custody decree obtained by the abductor in the Country Addressed.[85] The Convention provides that “[t]he sole fact that a decision relating to custody has been given or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention.”[86]  It follows that, if the new custody decree were automatically recognized by the Central Authority, it would reward the abductor for wrongfully taking the child across international borders to seek a more favorable judicial remedy, rather than adjudicating the matter in the country of Country of Origin.[87]

For instance, in Shalit, an American mother retained “legal and physical custody” of a child of the marriage after divorce from the child’s Israeli father.[88]  Despite the custody decree, the parents agreed that the child would live temporarily in Israel with his father for three years.[89]  However, before the three-year period was over, the child traveled to Alaska to visit his mother.[90]  While in Alaska, the mother unilaterally decided not to return the boy to Israel.[91]  In response, the father initiated custody proceedings in Israel, followed by proceedings for visitation modifications in the United States.[92]  Despite the custody proceedings initiated in Israel, the court determined that under the requirements of the Convention, the father failed to show that the mother wrongfully retained the child.[93] As such, the mother retained custody of the child.  The court clarified that the existence of a custody order was only one factor among others that the court considered in making its decision.[94]

           Not for Resolution of Custody Disputes.

ICARA was created as a method for returning children who are victims of international child abduction.[95]  ICARA was not established as an instrument for resolving custody disputes.[96] The Convention provides that, “[j]udicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody.”[97]  The Tyszka court determined that the Michigan trial court erred because it decided the custody issue.[98]  The decision concerning custody should have been decided in France, the children’s habitual residence.[99]

Duty to Return Not Absolute. 

The Central Authority is not obliged to return the child to his or her country of habitual residence if the child does not fall within the scope of the convention’s authority.[100]  Specific situations where a Country Addressed is not required to return the child include; (1) when the child is over sixteen; (2) when the Convention is not in force in either of the contracting nation-states; and (3) when an application for assistance under the Convention is delayed for more than a year after the wrongful abduction.[101] The Convention provides other acceptable reasons that justify a Country Addressed’s decision not to return a child.[102]  Even if the left-behind spouse can establish that the child was wrongfully abducted, the Convention provides the abductor with several defenses that allow the abductor to retain a child.[103]^, [104]  

Costs, Fees, and Expenses. 

The Convention gives the court discretion over the reimbursement of legal costs.[105] The court has the authority to order that the abductor pay all legal fees and expenses incurred by the applicant both in bringing legal proceedings and arranging for the return of the child.[106]  The reasoning behind the award of costs is to place the left-behind spouse in the same financial footing he or she would have been had the abduction not occurred.[107]  Additionally, the award of expenses serves as a financial deterrent to abductions.[108] 

The Freier case is an example of how the courts have construed ICARA provisions concerning costs.  The Freier court decided that the mother wrongfully retained her children in the U.S. against the consent of the children’s father (the plaintiff) who lived in Israel.[109]  Upon submission of proper documentation, the court awarded the father both attorney’s fees and the transportation costs incurred in returning the child to Israel.[110]

V.  EXCEPTIONS

Under ICARA, there are a number of exceptions a court may rely on to refuse to return a child to the left-behind-spouse, even if the child has been wrongfully abducted.[111]

Maturity Exception. 

The Convention has two maturity exceptions.  (1) ICARA does not apply to children who have reached age sixteen, and (2) it provides an exception that allows the court to consider the child’s habitual residence preferences.[112]  However, before applying the second maturity exception, the court must first take consider the child’s maturity and ability to make a decision regarding his or her preferences.[113] 

In Tahan, the court decided that a nine-year-old child’s preferences were not relevant to determining habitual residence because the child had not reached an age of maturity to make such a determination.[114] On appeal, the appellant claimed the lower court erred where it failed to interview the child about his habitual residence preferences.[115] The appellate court held “Article 13 of the Convention excuses the duty to return if a child of appropriate age and maturity objects.  This standard simply does not apply to a nine year old child.”[116]

Time Limits Apply to Filing. 

If an application is made for the return of a child before a year has passed since the wrongful abduction, the Central Authority is required to return the child.[117]  However, if an application is received after a year has expired, the court has the authority to refuse the return of the child if “the child is settled in its new environment.”[118]

This time-limit exception was illustrated when a U.S. court refused to return wrongfully obtained children to Israel because the Convention proceedings brought by the Israeli father were initiated after one year had passed.[119]  The court found that the children had settled into a new environment with their mother in the United States.[120] And, because the children remained in the country for over a year, the court held that the U.S. became the children’s new habitual residence.[121]

Change of Habitual Residence. 

The convention does not specifically define “habitual residence.”[122]  However, the American courts have developed guidelines for determining what is and what is not a habitual residence.[123]  “‘Habitual residence’ is not a technical term, like ‘domicile,’[124] instead it should be understood as the child’s ‘ordinary residence’ at the relevant time.”[125]  “Moreover, in determining a child’s habitual residence ‘the court must focus on the child, not the parents, and examine past experiences, not future intentions.’”[126]

In Slageweit, the court found that a child’s habitual residence had changed after determining that the “child [was] settled in its new environment.”[127]  The child’s habitual residence had changed from Germany to the United States because the child lived with her father in the United States for fifteen months, during which time the father served as the child’s primary care-giver and the child received continual medical treatment from the local medical community.[128]

Custody Rights Exercised At Time of Removal. 

Grave Risk of Harm.

A tribunal has the authority to refuse return of the child if the return would cause the child to face “[a] grave risk . . . [and] would expose the child to physical harm or otherwise place the child in an intolerable situation.”[132]  However, “the ‘grave risk’ exception must be narrowly construed and the court must engage in some evaluation of the people and circumstances awaiting the child in the country of habitual residence.”[133]

For example, in a case where an abductor had previously been the victim of frequent physical abuse by the applicant, and this abuse occurred in the presence of the couple’s two children, the court ruled that the children should not be returned.[134]  The court’s refusal to return the children was based on medical testimony that return would expose the children to a “grave risk” and “physical or psychological harm or otherwise place them in an intolerable situation.”[135]

Fundamental Principles of the Requested State.

The Convention also allows a Country Addressed to refuse to return an abducted child, if the principles of the Country of Origin would fail to protect the human rights and fundamental freedoms of the child. [136] This is a rare exception, seldom granted in the United States.[137] 

In Roszkowski, the court determined that this exception did not apply in Poland, because the children’s fundamental rights would also be protected in Poland.[138] In fact, the research on this subject revealed no known cases where U.S. courts have granted this exception.  This is probably because the U.S. courts believe that the human rights protections afforded to citizens and aliens residing in Contracting States are within reasonable expectations.  However, the Roszkowski court cited examples where the exception would apply.[139]  Such examples may include the return of a child to either Somalia or Iraq.[140]  Both are countries where the basic human rights of a child could not be guaranteed by the countries’ governmental authorities, and refusal to return a child would be warranted.[141]^, [142]

VI.  CONSTITUTIONAL APPLICATIONS:

CHILD CUSTODY TRADITIONALLY GOVERNED BY THE STATES.

Issues concerning domestic relations and family law have traditionally been governed by the states.[143] The Tenth Amendment of the U.S. Constitution provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved by the States respectively, or to the people.”[144] Some scholars interpret this to mean that since the Constitution did not discuss laws relating to family law, then family law issues are solely within the states’ purview.[145]  The Supreme Court stated in In re Burrus that, “[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States, and not to the laws of the United States.”[146]

That being said, constitutional questions sometimes arise in situations where state decisions concerning custody are pre-empted by federal law.[147]  ICARA is an international treaty that has been codified by federal law.  An example of a circumstance that would raise concerns about the federal infringement on state rights[148] is a federal court’s denial of parental custody rights, after a state court has resolved a child custody dispute.[149]

The Diorinou case illustrates this potential conflict.[150]  Diorinou concerned the custody rights of an American father and Greek mother.[151]  A New York trial court determined that the State of New York was the children’s home state, and that the mother had wrongfully removed the children to Greece.[152]  However, the appellate court disagreed with the trial court’s decision.[153]  It observed that, under ICARA, the mother had rightfully exercised her custodial rights in Greece; she had lived there with her children for the previous five years and Greece had become the children’s habitual place of residence.[154]  The appellate court reasoned that the children had become acclimatized to Greece during their five-year stay.[155] The court also deferred to the Greek court’s judgment holding that the mother’s detention of the children in Greece was not wrongful because the father intended for the children to remain in Greece permanently.[156]

Although the above situation appears to involve a conflict between states’ rights and a federal law, ICARA is not intended to preempt child custody decisions established by the state courts.[157]  Separate and apart from the Parental Kidnapping Prevention Act,[15