An attorney called me last week from Chicago.* He said that his client’s five year-old son had been plucked out of Illinois by his father and taken to the father’s home country, Poland.**
The lawyer’s two questions: (1) how quickly can I get the father served with a summons and custody petition under the Hague Convention, and (2) how difficult will it be to get the Polish courts to enforce the order once Cook County issues it?
Well, to answer your questions, (1) a few months, and (2) it’ll be difficult and costly.
But those aren’t the right questions. If I read you correctly, the primary objective is to get the child back, right? (“Of course,” replied he.)
Then I have some good news for you.
See, in any matter involving a cross-border dispute, you’ve got to work in the right treaty– child custody questions are no different. But “the Hague Convention” doesn’t exist. Poland and the United States are indeed party to the Hague Service Convention, and that’s the treaty the lawyer had in mind.
The right question here is “what is the proper procedure for securing the return of an abducted child under the Hague Child Abduction Convention?” That’s where the good news lies, because much of the world shares our view that the speedy return of a child to his home shouldn’t have to wait on lengthy and arduous court proceedings, especially where those court proceedings could take months to even initiate given the strictures of the Service Convention. Poland and the U.S. are also party to the HCAC, which provides a more expeditious mechanism for securing a child’s return home than regular transnational litigation can offer. [Important follow-up post, 7/8/2020: The Hague Child Abduction Convention: who to call.]
Under the Abduction Convention, a court proceeding isn’t entirely necessary. If it can be demonstrated that a child has been removed from his or her country of habitual residence without the consent of a parent– or if a child is taken abroad with consent but not returned as expected— then the matter is reduced to cooperation among law enforcement agencies rather than a question of judicial comity. Put another way, it’s a quasi-administrative matter, rather than judicial procedure.
Step 1: contact local law enforcement. They’re the first actors in the drama, as it were, and they should handle most of the heavy lifting, thus saving the U.S. parent substantial costs. The police will work through the U.S. Department of State to coordinate with law enforcement in the other country, with a single goal in mind: get the child home. All of the wrangling over custody orders and child support comes later. You’re not going to serve a custody petition, litigate the matter, and drag things out to an eventual order… that’s not the optimum course of action.
Notice that there’s no Step 2. That really depends on what the police and State Department are able to do on the other end of the line. (The State Department’s FAQ site can be accessed here. Lots of preventive and remedial measures are available.)
Of course, this is an awfully reductionist view of the process– there’s far more to it than can appropriately fit in this space. The bottom line is that securing the return of an abducted child does not require the same procedure as getting a divorce or winning a tort judgment. A specific international legal doctrine provides for “the prompt return of children wrongfully removed to or retained…” ***
Handy stuff. And cause for at least a bit of relief for parents whose children have been taken abroad against their wishes.
* No, it wasn’t really Chicago. Names have been changed to protect the innocent.
** No, it wasn’t really Poland. This is illustrative.
*** The Convention doesn’t apply only when a child is taken without a rightful parent’s consent. It also applies when the child is taken with parental consent, but not returned as agreed. The typical scenario: little girl goes to Germany to spend the summer with Oma & Opa, and they (or the other parent) refuse to bring her home before school starts in the fall.