Lawyers Manual - Unified Court System

134 Betsy Tsai
To establish that custody rights were actually being exercised at the time of
removal requires very little evidence on the part of the party with the custody
rights. In fact, the Convention assumes that the person with rights of custody was
exercising them, and places the burden of proof on the alleged abductor to show
that custody rights were not actually being exercised at the time of removal.
Defenses and Exceptions to the Return Remedy
The Hague Convention provides various defenses and exceptions to the
requirement that an abducted child be returned. First, if more than one year has
passed since the allegedly wrongful removal and the child is well settled in the
new environment, the court may decline to return the child. 9 Second, if the party
requesting that the child be returned was not actually exercising rights of
custody at the time of removal or had consented to the removal, return of the
child is not mandated. 10 Third, a court may not return an abducted child if there
is a “grave risk” that such a return “would expose the child to physical or
psychological harm or otherwise place the child in an intolerable situation.” 11
Fourth, if the child objects to returning to the country of habitual residence and
the child is of sufficient age and maturity, the child’s views may be taken into
account to oppose return. 12 Finally, courts may refuse to return a child if doing
so would not comport with “the fundamental principles of the requested State
relating to the protection of human rights and fundamental freedoms.” 13 These
exceptions are intended to be narrowly construed.
Using the Hague Convention Exceptions on Behalf of
Battered Women
The Hague Convention can pose serious problems for abused women who flee
to the United States seeking safety. Because the various exceptions are designed to
be narrowly construed and may be difficult to establish, lawyers representing
abused women should first explore other avenues of relief, such as arguing that the
child was not wrongfully taken from the country of origin. If necessary, however,
exceptions to the Hague Convention may be successfully litigated.
The Article 13(b) grave risk of harm exception is the most commonly
litigated exception in Hague Convention cases and potentially useful for women
fleeing abusive partners, although it has traditionally been a difficult exception
to establish. The 13(b) exception allows courts to circumvent their obligation to
return the child to the country of habitual residence if the opposing party can
demonstrate that “there is a grave risk that [the child’s] return would expose the
child to physical or psychological harm or otherwise place the child in an