International Child Custody under Hague Convention on Child Abduction

New Jersey’s Star-Ledger recently ran an article about a pending appeal on a Hague Convention case. Most new clients (like other people) tend to view these cases as international child custody cases, that is, cases which award custody of a child to one of two parents (or persons acting in a parental role) who live in different countries. But that’s not correct.

Whether child custody disputes between parents are multi-state or multi-national, these kinds of proceedings decide jurisdiction only, that is, which country or state gets to make the ultimate decision over custody. In other words, these types of cases are really the first of two cases. It is the second case that actually decides which parent gains ultimate custody. The first case only decides where the second case will take place. And where the child will live while awaiting a decision.

If you face a situation like this … re-read the paragraph above…

Because I have found that that message is always very tough for clients to absorb – and accept. It would understandably be moreso for a casual reader – or a dabbling journalist.

The references in the Star-Ledger article to “deportation” are really about “return” of the child. What’s the difference? In a word, huge. Deportation suggests permanence and misconduct by the deportee. “Return” (in this context) is a legal process intended temporarily to return an an innocent child to the former home country from which the child was wrongfully removed by a parent, until the former country decides ultimate custody. After that, depending on the ultimate custody decision, the child may go back to the new home country from which he was previously “returned”.

If this sounds complicated and disruptive, it is. But things were pretty messy before the Hague Convention too. Kids spirited off to foreign countries with impunity. Conflicting custody judgments entered in different countries.

There is a reason behind the undeniably imperfect Hague Convention procedure. The relevant Hague Convention is “on the Civil Aspects of International Child Abduction“. The Convention was intended to deter and thwart such unilateral kidnappings and to assure that child custody decisions are entered in only one country, the country that is best equipped to make the ultimate custody decision, the child’s “habitual residence” or true home.

Similar themes have been covered in previous posts, in the context of interstate child custody disputes. See Interstate Child Custody / Visitation Dispute by Lesbian “Second Mother” and Conflicting Child Custody Orders from Different Courts.

Essentially, the same rationale governs both trans-national and cross-country child custody disputes, even though the nuts-and-bolts procedures do differ significantly.

In the case in the Star-Ledger article, the father alleged that his daughter had been kidnapped. The mother alleged that the father had abused mother and child violently and sexually.

Despite the ruling that the mother is appealing, the Hague Convention does not mandate return of a child where return will clearly place the child in grave physical danger and at grave risk of psychological harm. (There are other exceptions too.)

What is true is that laws (and treaties) are relatively generalized principles metaphorically etched in stone. But cases are many complex and subtle circumstances that very real people bring about or get caught up in.

And judicial decisions depend on many variables, such as: how a particular judge weighs conflicting admissible evidence actually before him and how a particular judge interprets and applies the laws (and treaties) to the evidence.

Any way you cut it, any particular case, this one included, always boils down to the particular individuals involved (the actual parties, their actual attorneys, the actual judge, the actual witnesses) and the actual documentary and physical evidence admitted and presented.

And, sadly, sometimes the best that can be said of the outcome in a particular case is that it doesn’t throw the baby out with the bath water.