Lawyers Manual - Unified Court System

Civil Aspects of International Child Abduction and Abused Mothers 133
How Does a Party Bring a Hague Convention Claim?
A parent seeking the return of an abducted child may make an application
directly to a court in the Contracting State to which the child has been taken. The
parent may also submit an application to the Central Authority in his or her own
country, which then forwards the application to the Central Authority in the
abducted-to country. These options are not mutually exclusive, so a party seeking
return of a child under the Hague Convention may use both avenues of relief.
What are the Elements of a Hague Convention Claim?
Wrongful Removal
To make out a prima facie case under the Hague Convention in the
United States, the parent seeking return of the child must first establish, by a
preponderance of the evidence, that there was a “wrongful removal.” A
wrongful removal occurs if the child was taken from his or her habitual
residence in breach of the other parent’s custodial rights that were being
exercised at the time of removal.
Habitual Residence
The Hague Convention does not define what constitutes “habitual
residence,” and courts have developed this concept through caselaw. Habitual
residence, unlike domicile, does not necessarily depend on the long-term
intentions of the parties but is a concept used to identify where the children and
family are settled. As one court stated, habitual residence depends on “a ‘degree
of settled purpose,’ as evidenced by the child’s circumstances in that place and
the shared intentions of the parents regarding their child’s presence there. The
focus is on the child rather than the parents.” 6 Another court, explaining the
concept of habitual residence, stated that “technically, habitual residence can be
established after only one day as long as there is some evidence that the child
has become ‘settled’ into the location in question.” 7
Rights of Custody
Wrongful removal occurs only if the child was taken from his or her
habitual residence in breach of the other parent’s custodial rights, which were
being exercised at the time of removal. The Hague Convention defines rights
of custody as “rights relating to the care of the person of the child and, in
particular, the right to determine the child’s place of residence.” 8 This term was
intended by the Convention drafters to be interpreted broadly. For more
specificity on what constitutes custody rights, it is important to look to the laws
of the child’s country of habitual residence.