Monday, June 14, 2010

New York Divorce and Family Law: Child Adbuction

In Haimdas v. Haimdas: 2 children were found to have been unlawfully retained by their father in the United States and the father was ordered to return both sons to their mother in England.

A bit of history: The Petitioner, the one bringing the suit for return of her sons, was in the United States under a tourist visa and met Respondent Father. The couple conceived a child and were married shortly afterwards. When her first son was 4 years old and the second 17 months old the Couple decided to separate and both agreed that the Petitioner Mother would go back to England with the boys, who were dual citizens. The respondent purchased them a one-way ticket.

Seven months after Mother’s departure with the boys she came back to America with her brother and the boys to visit their father. They all came by a round trip ticket again purchased by Respondent Father. At the airport the Mother was not allowed to proceed into America as she had overstayed her prior tourist visa by four months. So, mother had to return to England, while her sons and her brother went to visit with the father. At the end of the two weeks, the father refused to return the sons. For three years the sons lived in America, periodically visiting the mother for 4 or 5 weeks at time.

Then at age 8 and 5, the boys expressed to their mother that they wish to stay in England with her as the father punishes them and hits them. They were with her for three years. Petitioner Mother received a Prohibited Steps Order. This is an order in England prohibiting the father from removing the children from England or retaining the children outside of England.

In July of 2008, the mother allowed the children to fly and visit their father in New York for two weeks. After the two weeks, the father told the mother he was keeping the boys and visitation was going to be on his terms. Mother brought suit under the Hague Convention.

The Hague Convention: "was adopted in 1980 in response to the problem of international child abductions during domestic disputes." Abbott v. Abbott, -- S. Ct. --, No. 08-645, 2010 WL 1946730, at *5 (May 17, 2010). The Convention's express objectives are "to secure the prompt return of children wrongfully removed to or retained in any Contracting State," and "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." Hague Convention, art. 1. Since its inception, the treaty has been ratified by over 80 nations, including, most pertinently, the Unites States and the United Kingdom.

The Convention is especially designed to deter "those close to [a child], such as parents, guardians, or family members," from unilaterally taking or keeping the child out of the country of habitual residence with an intent "to establish artificial jurisdictional links" to a more sympathetic forum for a custody dispute. Gitter v. Gitter, 396 F.3d 124, 129-30 (2d Cir. 2005) (internal quotation marks omitted). Accordingly, "[t]he Convention's central operating feature is the return remedy. When a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must 'order the return of the child forthwith,' unless certain exceptions apply." Abbott, 2010 WL 1946730, at *5 (quoting Hague Convention, art. 12). "[A] 'wrongful removal' under the Convention is one 'in breach of rights of custody…under the law of the State in which the child was habitually resident.'" Blondin v. DuBois, 238 F.3d 153, 157 (2d Cir. 2001) ("Blondin II") (quoting Hague Convention, art. 3) (ellipsis in Blondin II). The Convention defines "rights of custody" to "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Hague Convention, art 5.

Pursuant to the Hague Convention: it’s a three step process to determine if the children shall be returned:
a) Determine where child habitually resides: Protection versus child abduction when taken or kept out of state in which children habitually reside immediately before removal.
b) If removal is a breach of the right of Custody?
c) If Custody rights were being exercised at time of removal/retention.

So, in this case the Court determined: that the habitual residence of the children was in fact England, since both parents agreed that the child would live there before their initial move there. The father had paid for a one-way plane ticket and the children had started school there. The Court further determined that children’s lives were not so deeply entrenched in the United States to warrant keeping them in the United States.

Second, the Court determined that even though under the Hague Convention it states that both parents have parental responsibility over a child born to married parents. This means that both parents have custodial rights. However, in this case the Court in England had clearly ordered that the father was prohibited from removing the children from the United Kingdom or retaining them any where else, and was clearly noticed that if he did so it is a criminal offense.

Moreover, the mother by solely taking care of the children before they came to the United States to visit their father was more than exercising custody of the children prior to their wrongful retention.

Lastly, there is an exception to the Hague Convention, if the child of an age and maturity where his or her view should be taken into account. The Court found that the boys were not of such an age or maturity, and even if they were, their reasons for wanting to stay in America were not good enough.

So, even though we typically hear of long and drawn out court battles between countries and such, there is light at the end of the tunnel for some parents. The Hague Convention is a very complicated legal product so I hope this post shed a little light on its provisions. I found it interesting and hope you did too. For the full article go to:

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @

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