Lawyers Manual - Unified Court System

Moving On: UCCJEA, The Hague Convention, and Relocation 107
The Hague Convention was originally adopted by member nations of the
Hague Conference on Private International Law to address the growing problem
of international removal or retention of children by one of their parents. 35 The
United States signed the Convention in 1981 and ratified it in 1988.
Implementing legislation was enacted in the same year. 36
The Hague Convention creates a mechanism for expeditiously locating and
returning children who have been removed to a different country. The central
idea of the Convention is analogous to the UCCJEA. It holds that any child who
has been wrongfully removed from his or her country of habitual residence
should be returned to the habitual residence and to the person petitioning for
return. The concept of country of habitual residence — which is not defined in
the Convention itself but through judicial interpretation — is similar to that of
the home state. Removal or retention is defined as wrongful when it is in breach
of a parent’s custody rights under the law of the country of habitual residence. 37
There does not have to be a court order of custody for removal or retention to
interfere with the other parent’s custody rights and thus to be “wrongful” within
the meaning of the Convention.
All signatories to the Hague Convention must establish a Central Authority
responsible for locating children and assuring their return. The merits of any
custody dispute will then be determined in the country of habitual residence. In
the United States, the Central Authority is the State Department.
The Hague Convention offers some protection to abused mothers by
creating certain exceptions to the requirement that a wrongfully removed child
be returned. Article 13(b) provides that authorities in the state of refuge are not
bound to order the return of the child if “there is a grave risk that his or her
return would expose the child to physical or psychological harm or otherwise
place the child in an intolerable situation.”
Although domestic violence certainly creates a risk of physical or
psychological harm to the child (especially if violence has been directed against
the child as well as against the mother), you will need strong evidence to make
your case. The exception is narrowly construed and is not intended to be used as
a vehicle for litigating the best interests of the child. 38 The person who invokes
it has the burden of establishing the exception by clear and convincing
evidence39 — a higher standard than the usual civil, preponderance-of-theevidence
standard of proof. The risk must be a serious one and the harm must be
“a great deal more than minimal.” 40 Even if the exception applies, the United
States court only has the discretion to order return of the child; it is not required
to do so by the terms of the treaty.