Sleeping Child (circa 1893) by Rosina Emmet Sherwood.

An important term of art arises in Hague analysis, but the definition of the term varies depending on which treaty is being applied, and depending on who is defining it.  Both the Hague Adoption Convention (1993) and the Hague Child Abduction Convention(1980) are in force in the United States.  Both are intended to harmonize disparate legal doctrines in countries with different systems.  And both are intended to provide certainty in the legal protection of children.

In U.S. practice, however, they function quite differently.

The Abduction Convention requires member states to establish procedures for returning a child to his or her country of habitual residence after being removed from that country or wrongfully retained in another country.  Pretty straightforward stuff there– imagine a little girl was born in Korea, but has spent her entire six-year life in Illinois.  Her mother decides to take her back to Korea– and stay there– without her father’s consent.  Korea would be obliged to return the child to the U.S. pursuant to a valid Hague request.  If a German mother sends her son to spend the Christmas holiday with the father in Vermont– but Dad refuses to let him go home to Germany, U.S. authorities should force the boy’s return.  Not a lot of gray area there, although courts occasionally go beyond this straightforward analysis (see here for Fox Rothschild’s excellent criticism of a Third Circuit decision that reached a proper result– but with far too deep an inquiry into best interest).

“Habitual residence” is a pretty straightforward question if plain meaning still carries any weight in statutory construction.  Where does the kid live– or put another way, where does he lay his head each night?  We must read in deeper questions, of course… where did Mom & Dad intend for him to live?  Where has he spent his life?  Has there been a certain event that evidences a change to that location?  Of course, it’s a fact-specific analysis, but the analysis isn’t extraordinarily difficult.

The Adoption Convention uses the same terminology to define what constitutes an “intercountry adoption”.  If a family in Australia seeks to adopt an orphan from Italy, then permission must be sought from the Italian government via a Hague request.  But if the child’s mother emigrates with her to Australia and puts her up for adoption several months later, no such permission is necessary.  The child’s habitual residence changes upon the mother’s entry into Australia, and the Italian Central Authority for the Adoption Convention would rightly scratch its head in wonder, declining to even respond to a Hague request sent by an Australian magistrate.

But that same child is not afforded the same consideration if the mother emigrates to the United States.  U.S. authorities (specifically, the State Department) define habitual residence in a decidedly odd way.  In virtually all cases, the child’s country of habitual residence is deemed to be the child’s country of birth.  A preposterous reading, given the plain meaning of the words.  And that is precisely the way the rest of the world views the United States: preposterous.

In an average state family court, this really isn’t a problematic question.  If a child is in Missouri, and his parents aren’t around to take care of him, he’s under the jurisdiction of Missouri courts– regardless of his national origin or citizenship.  His domicile is Missouri.  As such, if an aunt or uncle or cousin seeks to adopt him, it’s very unlikely that the state would object, and it’s even more unlikely that any of the lawyers involved would invoke the Hague Adoption Convention to slow down the procedure.  Congratulations, new parents, on your new son or daughter.

But when those new parents seek permanent resident status or citizenship for the child, they run into a buzzsaw– a very preposterous buzzsaw.  The Department of Homeland Security (parent organization of the various customs & immigration services) will undoubtedly invoke the Adoption Convention– and the State Department’s incredibly warped definition of habitual residence– to refute the validity of the adoption and, consequently, dash any hope that the child can become an American citizen.

Why is this?  I can only speculate, because the logic put forth in the State Department’s criteria offers little guidance (they say what the criteria are, not why those criteria exist).  But it isn’t hard to reach some very sad conclusions.

State Department photo.

Another “I get this question pretty regularly” post… and the answer is usually pretty good news, in comparison to a parent’s dreaded fear.

The question usually pops up in a listserv or at some bar function, but occasionally in a call from a lawyer who’s stumbled across this blog in a Google search:  “my client’s wife is threatening to leave him and take the kids back to (insert country name here)… what can I do?” 

Well, it depends on where the child is right now.  If she’s here, as indicated in your question, do everything you can to keep her here.  Set aside the threat to take her abroad, and focus on the threat to take her– anywhere.  Know too, though, that if it does happen, the situation may not be as grave as it seems.

In many cases, the inserted country name also happens to be on the list of countries who have implemented the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction— known more commonly as the Hague Child Abduction Convention (HCAC).  While the treaty may not prevent a child being taken out of the country, it aims to provide a streamlined mechanism by which she can be returned home.  So even if the child is taken abroad against the remaining parent’s wishes, the odds are better that she can be returned.  I wrote previously  about the mechanism for return of children once they’ve been abducted– or as the treaty also addresses, taken with permission but not returned as agreed.   That earlier post came about in order to distinguish the Child Abduction Convention from the Hague Service Convention.

In short, I stressed that the way to secure the prompt return of the child is to get local law enforcement to engage HCAC channels, rather than pursuing a custody order in a U.S. court– and enduring all of the procedural delays that such a petition entails.  Instead of treading water while a Hague Service Request is processed, it’s far more effective to raise a HCAC claim.

What I didn’t point out, though, were the preventive measures  necessary to avoid the need for a HCAC claim in the first place.

My first question, when I spoke to the most recent colleague who sought assistance, was “does the kid have a passport?”

If he does, keep it in a secure place– or if the threatening parent has it, notify the police and get them to contact the State Department so the passport can be flagged.

Absent a passport, the threatening parent won’t get very far. Sure, if the child has dual citizenship, a foreign-born (abducting) parent might try to get the other country to issue one, but flags can still be raised with the country’s diplomatic legation and U.S. law enforcement.  Again, if there’s a credible threat of abduction, make a stink about it.  Make noise.  Put both countries’ authorities on notice in the most vocal way possible.

Above all else, petition the local court for a custody order immediately, with whatever form of injunctive relief is available in that jurisdiction, and serve the action before the other parent leaves the U.S., with or without the child.  The more clear the court’s intent, the easier it will be later to demonstrate an abductor’s wrong-doing to foreign authorities.

Public Domain, Wikimedia Commons.

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.

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.