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ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
TABLE OF CONTENTS INTRODUCTION………………………………………………………………………..….1 OVERVIEW OF THE HAGUE CONVENTION ON CHILD ABDUCTION …3 Historical Perspective Case for Return ……………………………………………...1 The Central Authority…………………………………………………..…………...6 Convention Limitation………………………………………………………………6 Establishing the Prima Facie Case for Return………………………..……………..7
APPLICATION OF THE CONVENTION IN THE UNITED STATES….
International Child Abduction Remedies Act……………………………………....8 The Grave Risk Problem in America ……………………………………………….9 Blondin v Dubois…………………………………………………………………9 Friedrich v Friedrich ……………………………………………………………11 Walsh v Walsh …………………………………………………………………12 THE IMPORTANCE OF INTERNATIONAL COMITY IN CONVENTION CASES …………………………………………….………………………………16 The Other Problem ne exeat ………………………………………………………17
THE CONCURRENT PROBLEM ……………………………………………….21 Eliminating Concurrent Jurisdiction of Convention Cases in the United ........….21 International Efforts limiting Convention Jurisdiction to select Courts CONCLUSION ……………… ………24
INTRODUCTION Little Jimmy is taken from his home in Massachusetts by his mother to live in Germany. Little Susie is taken from her home in Georgia by her mother to live in Germany as well. The underlying facts under these two scenarios are essentially the same, the children are both born out of wedlock, have resided with both parents until the abduction occurred, and no custody order existed. Would German Courts under essentially the same set of facts arrive at the same result for these two abducted children that resided in the United States? Conversely, if two children, one from the German state of Hesse and another from the German state of Bavaria, were abducted under the same circumstances as the children abducted from the Massachusetts and Georgia, would Courts here in the United States reach the same result. Fortunately for the United States, countries such as Germany and England which have limited number of courts exercising jurisdiction of child abduction matters, seem to provide more uniform interpretation of abduction matters that help aid in the administration of justice in returning a child home. The United States with its fifty sovereign state governments alongside its own district courts often issue rulings on abduction cases that are seemingly not in line with the rulings and opinion of nations interpreting abduction matters under the same international treaty. I will attempt to address the United States role in the creation of international precedent concerning international child abduction. Part I of this Article will provide a brief history of the formation of the Convention, and structure. Part II provides detailed analysis of judicial outcomes in three major American Cases that have become the cornerstone for precedent concerning one of the defense exceptions under the Convention in America. Part III examines the conflicting interpretation that guide American courts when ruling on the ne exeat clauses,in support orders. A discussion for the
1980. Though.need for International comity follows in Part IV. the reason the United States stresses the need to be receptive to other nation’s laws and culture when deciding abduction matters under the Convention I. Lastly. OVERVIEW OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF CHILD ABDUCTION On October 6. Prior to the adoption of convention by many parents resorted to retrieving the abducted child by force. The distinction between the two is of significant. The primary purposes of the Convention were to deter individuals from committing international child abduction and establish procedures that would aid the signatories of the convention to ensure the prompt return of children to their country of habitual residence. 23 nations from across the globe convened in the Netherlands. 58 additional nation states have become either new member states or party states to the Convention. the Convention consists of 81 signatory nations. and to secure rights of access for parents. leaving some parent facing criminal charges in the country that the child was abducted to. The international community recognized the harmful effects of wrongful removal or retention of children by parents seeking to find a more favorable forum to litigate custodial issues. subterfuge. and adopted the Hague Convention on the Civil Aspects of International Child Abduction hereinafter “the Convention”. Since the Convention was adopted by the Original member states in 1980. All countries who have since become new Member States or Party States to the Convention must have their accession to the Convention expressly accepted by both . Part V. Only the countries that were part of the Hague Conference in 1980. who have subsequently ratified. or accepted the Convention have automatic binding treaty rights. the agreement is not in force between all signatories of the Convention.
individual Member and Party states to be in force. Even when Contracting states. this direct method of seeking the return of a child is seldom utilized. the Central Authority is the U. In many instances. A parent seeking return of child may do so by filing a claim directly in the proper court in the country where the child was abducted. only determines what nation will be the forum for any custodial or visitation dispute. to initiate or facilitate proceedings before the . to attempt to secure the voluntary return of the child or facilitate a resolution of the issues. Thus. The Central Authority The Convention mandates that all Contracting Parties to the Convention maintain a Central Authority. A. a contracting state’s court has the authority to determine the merits of an abduction claim. since some parents may have difficulty locating the exact where abductors of the abductor or the child. to locate children who have been wrongfully removed. for example. to provide general information concerning the law of the contracting state. or where the country where the child was abducted to. The more common approach of obtaining the remedy of return sought by a parent is by filing an application with the designated Central Authority of the country where the child was abducted from. The Central Authority’s role is cooperate with the Central Authorities of sister states.S Department of State. By operation of the convention. In the United States. to exchange information relating to the social background of the child. a parent from Trinidad and Tobago seeking to file Hague Petition in the United States will fail since the United States has not recognized Trinidad’s accession to the Conference. a court will not consider any issue other than whether a child has been improperly removed. a proceeding brought under the Convention. In essence. those states where binding treaty exist under the Conference. but not the merits of the underlying custody dispute.
the child was habitually resident in a foreign country. to otherwise facilitate proceedings by providing translation services. Courts have recognized that a petitioner establishes a prima facie case if he or she proves three elements: (1) prior to removal or wrongful retention. Convention Limitations Central to Convention is the notion that removal of the children from their habitual residence deprives the child and the parties of custody determinations where the evidence concerning the child is likely to be more accessible. See Section III. However.courts or administrative authorities to obtain the return of the child. access to legal services and to keep other states informed as to the progress of cases. Establishing a Prima Facie Case for Return The Convention provides that if a petitioner successfully pleads a prima facie case. C.S jurisdiction. the child must be returned unless the respondent can prove that an affirmative defense applies. and (3) the petitioner actually was exercising custody rights at the time of the removal or wrongful . B. the Central Authority makes no decisions that bear legal ramifications. The Convention does not contemplate that courts ruling on applications for return will become involved in actual custody determinations. Although. any and all legal proceedings are handled by a court with proper jurisdiction. (2) the removal or retention was in breach of custody rights under the foreign country’s law. The petitioner must demonstrate the prima facie case by a preponderance of the evidence. the best interest of the child is the global consideration when determining an award of custody in most U. the Convention specifically prohibits courts from engaging in custody determinations until such time as there has been a determination that the child will not be returned. or the time for lodging and application has passed. The elements of a prima facie case are enumerated in Articles 3 and 4 of the Convention.
Notably ICARA explicitly states “the court in which in action is brought…shall decide the case in accordance with the Convention. giving force to every Article in the Convention.retention. APPLICATION OF THE CONVENTION IN THE UNITED STATES A. In the United States. Congress felt the need to include and collaborate with the states because family law has by tradition been in the domain of state courts. This provision has been the source of some frustration due to fact that some courts have adhered to this provision while. the abducted child must be returned to his or her parent’s country of residence. If the petitioner establishes a prima facie case. other courts have looked more to Article 30 of the Convention for guidance in decision making. Congress enacted the International Child Abduction Remedy Act (ICARA). B. II. The “Grave Risk” Problem in America The Convention provides a limited number of defenses that a respondent may assert to challenge the return of child to their home country. nor have these ruling created the type of case law precedence that lead to uniformity in interpretation. Because of this the rules and procedures followed will depend on the specific State and whether the case was heard at the Federal or state court. ICARA further provides judicial remedies in addition to the provisions of the Convention. This grant of power to state courts by Congress raise several questions relative to the states handling of international matters that will be addressed later in this Article. there have been a number of instances where rulings of Convention cases do not correspond with the objective of the Convention. By far the “grave risk” exception of Article 13(b) . ICARA provides a federal civil action for enforcement of convention claims and establishes concurrent and state jurisdiction over the adjudication of such petitions. International Child Abduction Remedies Act. In the United States.
The defense in requires that the respondent establish that “there is a grave risk that a [child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. applications which have raised concern in the international community. and without the knowledge or consent of the father fled the country with the couple’s two children. Blondin v Dubois In Blondin v Dubois. 1. but prior to her departure to United States. the mother in violation of the court order. The U. The French court. The resulting case law on the matter is constantly changing both here in United States and abroad.of the Convention is raised more often than any of the defenses available to a respondent under the Convention. the district court factored into its analysis the impracticability of sending the children back to France because of the .S district court hearing the father’s petition. After a number of incidents of the mother leaving the couple’s home in France after allegations of abuse. the father commenced an action in France to obtain custody of his child. In the United States the respondent who opposes the return has the burden to show by clear and convincing evidence that the child will be exposed to a grave risk of harm. found that the children would be placed at a “grave risk of physical harm if they were returned to France. a French citizen of two children born out of wedlock filed a petition under the Convention seeking return of his children to France from the mother who had abducted the children to New York. the father. issued an order declaring that “the parental rights over the child will be exercised in common by both parents” with the child’s residence being that of the father. The following three cases present mixed applications of exception. the French court provided that if the mother did not reside at the family’s residence. Four years after the French custody proceeding. In considering the issue. she would be entitled to regular visitation with the child. Additionally.
Friedrich v Friedrich In Friedrich v Friedrich. even as the French Ministry of Justice informed the court that it had taken measures to provide care for the children in the event that they were returned to France. the father commenced an action in the German Family Court and was awarded custody of the child. After learning of the mother’s departure from the country following an argument. as well the availability of temporary care for the children pending a custody determination.S citizen stationed in Germany.father’s limited financial means. The Court of Appeals did not disturb the lower court’s finding that a “grave risk” was present. The Court stressed that in the exercise of comity that is at the heart of the Convention the court is required to place its trust in the court of the home country to issue whatever orders may be necessary to safeguard children who come before it. the court required the parties to file supplemental briefs on the subject. 2. The Court noted that deference to the forum of the children’s home state was necessary to preserve “the spirit of mutual confidence which is the Convention’s inspiration”. The father. Subsequent to the award of custody by the German Family Court the father filed a claim . Concerned that the “grave risk” exception could be expanded. The Court also declined to send the children back in the custody of third party pending a decision by a French court of competent jurisdiction. resided exclusively with the wife/mother and child in Germany since the child’s birth. The Court asked the Department of State to contact the government of France to determine its position on the matter. a German citizen who had married a U. The Court then remanded the matter back to the lower court with directions to consider the range of remedies that might allow both the return of the children to their home country and their protection from harm. the father filed a petition for the return of his son who had been abducted from Germany to the United States by the child’s mother.
Walsh v Walsh In Walsh v Walsh. The couple who first met in Massachusetts and subsequently had child in the state.under the Convention alleging that his son was wrongfully removed. Mrs. the father an Irish national petitioned for the return of his children who had been abducted from Ireland to the United States. showing that the child would be subject to a “grave risk” of psychological. The Court of Appeals reversed and remanded the lower courts ruling. hardly the type of intolerable situation that a review of Convention would reveal. At the second appeal. 3. During the couple’s stay in Massachusetts the father was arrested several times due to violence. Friedrich post a bond. Mrs. the father relocated to Ireland having repeated criminal issues in the state. finding that the child was not habitually a resident of Germany. Friedrich argued that she met the burden of proof as required by ICARA. Friedrich illustrated that child may be subject to nothing more than adjustment problems. and returning the child to Germany where the father could less readily provide for the child would cause grave psychological harm. Further. on the condition that Mrs. The United States District Court hearing the Convention matter denied the father’s claim for the return of his son. and would in fact reward the abductor for violating the Convention. . Friedrich argued that because the child had become accustomed to life in Ohio. Friedrich’s interpretation of the grave risk of harm exception was far too broad. The court disagreed. finding that Mrs. The evidence presented by Mrs. the court noted that “only evidence directly establishing the existence of a grave risk would that would expose the child to physical or emotional harm or otherwise place the child in an intolerable situation is material to a courts determination”. However the lower court stayed the order pending a second appeal. and after a new hearing the child was ordered back to Germany.
The Court found that lower courts ruling on Mr. Accordingly. Walsh’s fugitive status was correct and thus affirmed. the in spite of a new child. or otherwise resisting. The court reasoned that although the father was intemperate and spanked the children for minor childish infractions his treatment did not amount to the kind of grave risk of harm contemplated in Convention cases. Mrs. Walsh continued to be a victim of domestic violence. Mrs. The Court of Appeals for the First Circuit affirmed in part and reversed in part the judgments of the lower court. The Court found in Mrs. However. The district court found even after compelling evidence from the mother that she was a victim of ongoing domestic violence. Moreover. The district court further noted that whatever treatment that the children were exposed to. However the trial court stayed the order pending an appeal by the mother. Mrs.that violence included physical beatings to his wife Mrs. Walsh. and acknowledged that she had a drinking problem. Further the Court noted that the Convention only required a showing that the child would be exposed to a “grave” risk of harm rather than an “immediate” risk of harm predicated by lower court. it was not an immediate serious threat that Irish authorities were unequipped to deal with. Walsh eventually fled Ireland with the couple’s two children and a male companion. a related criminal prosecution. Mrs. after alleging repeated physical abuse to herself and the couple’s children by Mr. Walsh conceived another child. Nonetheless. Walsh handled this problem by frequenting bars regularly. the court stated the father’s status as a fugitive did not provide for judgment against the father because he was a fugitive from. Walsh’s case the . after the father had become a fugitive. and that the father was a fugitive from justice in Massachusetts. the Court reversed the lower courts judgment finding that the lower court erroneously required a showing of an immediate serious threat. Walsh. Walsh relocated to Ireland and some time thereafter the Mrs. the father’s petition should be granted and children returned to Ireland.
the discretion to return a child. thus satisfy the clear and convincing standard set forth by ICARA. and Walsh each involved the applicability of the grave risk exception of the Convention and are recognized for establishing the standards that determine the exception. (the Irish Court System) is able to issue the appropriate order if the petitioner is unlikely to comply with that country’s order. where the court was required to consider Frenchlaw options that allowed the court to comply with the Convention’s mandate to deliver the abducted child back to France. Thus. First. Friedrich. was not required if the undertakings were unlikely to be followed or obeyed. the court noted that an investigation should take place considering all reasonable alternatives to denying a return of the child. despite the existence of a defense. Walsh held that such consideration for possible legal undertakings by petitioner does not necessarily require courts of the United States. the three cases are distinguishable and applied different standards. before denying return of child on the grave risk defense. the court determined that investigation of all reasonable alternatives. if return would further the aims of the Convention. even when the foreign agency. courts are more likely to return a child back to his/her country of habitual residence. Unlike Blondin. even after of a finding that the child might be subject to a grave risk of harm when effective measures are taken by the foreign country to prevent physical harm to the child.evidence of physical abuse she experienced was sufficient to make a threshold showing of grave risk to the children. under Blondin. The Friedrich court differed from Blodin because its restrictive reading of the grave risk exception hinged on the courts belief that greater deference should be given to the abducted-from country to respond . Friedrich is unlike Blodin and Walsh because it involved the psychological harm component of the Convention’s grave risk defense rather than the physical harm provision. A federal court retains. Although Blondin. In Walsh.
” In other words. only Friedrich declined to apply the exception noting that “the courts in the abducted from country are as ready and able as [the United States] to protect children. Friedrich encompassed the idea that courts should not base its decision to return a child back to their home country as a result of the generic confidence a U. This response by France is exactly why comity is so important when dealing with Convention matters. Convention signatories should interpret this international treaty in a manner that does not undermine the other country’s law. all discussed adhering to interpreting the exception narrowly. Adherence to doctrine is likely to produce uniform interpretation of the Convention. and went as far to file suit against Dubois. International comity can be described as the recognition that a country will allow within its borders the legislative.S court may or might not have for that country. “having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws. III. if a child is to be return to a dangerous situation. ultimately. even though the French Government expressed its desire to intervene.accordingly. Thus. THE IMPORTANCE OF INTERNATIONAL COMITY IN CONVENTION CASES Of critical importance when discussing the grave risk problem and other some other areas of Convention is the principle of International Comity. Blondin applied the exception. executive and judicial acts of another country. Of the three cases alluded to earlier involving the grave risk exception of the Convention. alluding to public policy reasons. France was to say the least very disappointed with the United States handling of the case. France in fact applied the grave risk exception to a Convention case involving the return of child to the petitioner is Los Angeles. The French Court applied the grave risk exception citing that the child would be exposed to a grave risk . Decisions like Blondin may have the detrimental impact of affecting cases abroad when an American parent files a petition seeking return of a child that was abducted to France. at the outset.
of physical harm as a result of living in the polluted city. The Court of Appeals found that the ne exeat clause in the order limited Mrs. Rights of custody does not coincide with any particular concept of custody in domestic law. Croll's custodial . Croll. The Other Problem (Ne Exeat) Wrongful removal or retention depends on the existence of a breach of custody rights that are held by a person. structure an purposes of the Convention The Convention provides that custody rights may originate from three sources (1) operation of law. This ruling may very well have been France’s response to the United States for undermining their recommendation that the Blondin child be returned to France. but draws its meaning from the definitions. or with the permission of the father. or (3) by an agreement of the parties having effect under the law of the state of the child’s habitual residence. care and control” of the daughter and granted Mr. a father filed claim for the return of daughter to Hong Kong pursuant to the Convention. as defined in the Convention include the right to determine the residence of the child. In Croll v. An order by the Hong Kong court after the divorce granted Mrs. (2) by judicial or administrative decision. Croll sole “custody. Mrs. Ruling such as these completely undermine the Convention objectives and may frustrate other foreign relations with between nations. which rights are actually exercised or would have been exercised but for the wrongful removal. Croll to obtain permission to leave the country from a Court in Hong Kong. Rights of custody. Croll. The father had been married to mother for eight years before they divorced. The order also contained a provision that required Mrs. A. Under the Convention. Croll left the country one year with the child and arrived in New York without the permission from the Hong Kong Court that issued the order or Mr. custody rights are distinguished from rights of access. Croll a right of “reasonable access.
Reeves. Furnes with joint custody of the child. The couple divorced after four years of marriage. the father merely had a right of access and not custody. The dissenting judge objected to the panel’s refusal to give . Furnes ne exeat provision simply conveyed rights of access and as such the court was without jurisdiction to return the child back to Norway. An agreement. Furnes rights of access were rights of custody under Norwegian law. The Chilean Corporation of Judicial Assistance (Chilean Corporation) in support of the father indicated to the Court that the father had custody of the child under Chilean law because the child could not leave the country without his consent. recently in Duran v Beaumont. The district court found that Mr. More. Another case where the ne exeat clause of an order was at issue was in Furnes v. The Court noted that even if the Chilean Authority was within its authority to define custody rights. Under the Convention. The court expressed that Mr. Judge Sotomayer in his dissenting opinion stated that the majority’s reasoning focused on the United States’ concept of custody and not what custodial under the Conventions international scheme. The Court of Appeals for the Eleventh Circuit disagreed. subsequently an order provided Mr. giving the court no jurisdiction to order the child’s return. Reeves absconded to the United States without permission from Mr. and only over Christina's expatriation. The father and mother lived together for three years before they separated. Three years later Mrs. stating that Mr. an unmarried father. Croll had “veto power only. The Court determined that a ne exeat right to determine whether a child will leave the country does not amount to custody under the Convention. Furnes. the district court was not bound to follow it. filed a petition for the return of his child to Chile.power to expatriate Christina. In that case the father filed a petition for return of his daughter after she was abducted from Norway by her mother. but did not convey any rights of custody within the meaning of the Convention.
The Eleventh Circuit opinion in Furnes should represent the United States’ position when analyzing whether a party has right of custody. which tend to be applied over and over again in different cases often erroneously. Eliminating concurrent jurisdiction of Convention Cases in the United States ICARA’s provision granting concurrent jurisdiction to state and federal allows thousands of judges. while Croll and Duran are in conflict with the international community IV. and Israel which had all established that ne exeat rights were custody rights under the Convention’s interpretation. There is strong international support for a broader interpretation of ne exeat rights under the Convention such as the interpretation reached in Furnes. The liberal grant original and concurrent jurisdiction of Convention petitions by Congress to the states exposes the U. Furnes enhances the uniform application of the and effectiveness of the Convention.S courts.K. even with an international treating calling on the Central Authority of a contracting state to provide an opinion on its own internal law. many of whom have never heard a Convention Case to rule on complicated applications of the Convention. but most of all as an illustration of the need in developing some uniform mechanism for national courts to determine foreign law. the U. the court still chosen to ignore this decision in favor or its own precedent.S interpretation of the Convention to a plethora. What develops then is an intricacy of foreign law concepts in U. Here. The Eleventh Circuit opinion afforded the appropriate amount on deference to international nature of Convention.credence to the Chilean Government. New Zealand. The case is interesting not only for the operation of the Convention. of inconsistent rulings. The court reviewed cases in “Australia. THE “CONCURRENT PROBLEM” A. This is directly contrary to Congress’s goal when it recognized the need for uniformity when it enacted .
S Supreme Court has found that the Tenth Amendment . by consolidating all applications for return and having them heard by select number of Courts. The Permanent Bureau suggests such consolidation or allowing fewer judges the power to adjudicate Convention cases is beneficial to the Convention. an area of the law that has been traditionally a state concern.S fails to render competent and uniform interpretation of the Convention. If further erodes the United States standing in the international community to the U. for example bankruptcy matters are exclusively within the purview of Federal Bankruptcy Courts. Arguably Congress could improve the system used in United States for interpreting Convention cases. Still. implementation in the United States may raise issues or concerns over the Federal Government power to authorize such implementation. The states would likely argue that Congress would be exceeding the scope of its power by choosing to regulate family law. The implementation has reportedly been successful in some countries. This argument should been given some merit as U. One solution to addressing this problem is to consolidate all Convention cases. Further. Under Article III of the Constitution Congress has the power to ordain and establish any number of courts it chooses to less one Supreme Court. fewer judges determining and issuing judgments concerning Convention petitions develops expertise more rapidly and also “facilitates communication between judges located in different countries”.S district Courts. and speeding up process time and resulting in more uniform interpretation of the Convention. Further. and allow them to be heard in specialized courts. Congress is able to determine specific litigation that may be heard in particular courts. Because Congress had the power to vest original and concurrent jurisdiction of Convention cases with federal and state courts it would likely have the power to divest that power from state courts and vest it exclusively with federal courts or even more narrowly with a few specialized courts.ICARA. particularly U.
Recognizing that the Convention is an international treaty. Likewise the Constitution provides the President of the United with power to make treaties. However. the Court concluded that the “Tenth Amendment thus directs us to determine.S Constitution in combination with President’s treaty power. The 1990 implementing legislation in Germany provided its states with the same concurrent jurisdiction that . The Court found that treaty power gave Congress the power to areas reserved to the states by the Tenth Amendment.. reserve power to the states.restrains the power of Congress. or in any Department or Officer thereof”. The Constitution provides Congress with the power to “make all laws which are necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States. The Supreme laid to rest any notion that Congress could not legislate traditional areas of state concern when it ruled on the Missouri v Holland. Congress clearly can enact legislation that is necessary to execute the Treaty entered into by President Ronald Reagan B. whether an incident of state sovereignty is protected by a limitation on an Article I power. International Efforts limiting Convention Jurisdiction to few or Specialized Courts Germany has opted to vest jurisdiction of Convention cases in a few courts. This power would “stems from the Necessary and Proper Clause of the U.” Accordingly. as in the case. Further. Although matters concerning children will normally fall into realm of law state courts will have jurisdiction over. in a given instance. the scope of international child abduction would likely allow Congress to exercise power in this area. even when the areas the federal government seeks to regulate are traditionally state law matters. the Tenth Amendment will not all ways protect the states from federal regulation. the Court noted that The Tenth Amendment confirms that the power of the Federal Government is subject to limits that may.
In order to maintain that status in the legal arena. the family Division of the High Court. This decentralized system of allowing all states the power to adjudicate matters led to significant number of inconsistent judicial judgments. all have significant thoroughly versed with Convention litigation. The United Kingdom is perhaps the best case study for the benefits of the centralization model. Deference to foreign case law and jurisprudence are instrumental to rendering consistent and respected interpretations of the Hague Convention. The United Kingdom’s implementing legislation for the Convention conveyed original jurisdiction in only one court. including a speedy disposition’s of applications filed. by amending the implementing legislation to centralize all matters brought under the Convention to one local family court in the district of each Higher Appeals Court. The court consists of eighteen judges. The exclusive grant of jurisdiction in a specialized court has conveyed a number of advantages. CONCLUSION The United States sits as one of. if not the most influential nation in the world. as well as constant complaints from other Convention Member and Party states. By only allowing Convention cases to be heard in the specialist division of the High Court.ICARA provides for the 50 states. In response. extreme consideration should go into child related concerns. The Convention serves as wonderful collaboration . it is incumbent upon the country to apply uniform principles of treaty interpretation. While recognizing that the interpretation given by a sovereign to its own law is entitled not entitled to absolute deference. the English system seems far more efficient an effective than the most countries with a 75% of successful outcome in cases where the child is located in the requested state and the application is pursued. V. Germany radically reduced the amount of courts hearing Convention petitions.
America has a duty to extend the same courtesy to the citizens of countries who are member states of the Convention. in 3 Actes et documents de la Quatorzierne session (1982) (hereinafter the Perez-Vera Report”) Clause found in child custody orders that require a parent or guardian to seek a court or the other parent’s permission to leave a country’s borders. Ireland. As a result of accession. Greece. Cyprus. “Hague Convention on International Child Abduction: A Brief Overview and Case Law Analysis. Hungary. Czech Republic. Lithuania. Guatemala. Romania. Kitts and Nevis. Canada. Japan. it is important for me to know that a foreign nation would rely on American principles and values if they were ever called on to interpret the Convention.of the international community to combat the real and serious threat of child abduction. Estonia. the Convention is in effect between some countries in Bahamas. South Africa. The National Judicial Council (2000) [hereinafter “Garbolino Report”(discussing methods that are used by parent prior to adoption of the Convention. Trinidad and Tobago. Croatia. Luxembourg. Denmark. Poland. even when the judge finds him or herself in opposition to a position that requires him or rule for or against a party. Finland. New Zealand. Thailand. Elisa Perez-Vera. Slovenia. at 15 Argentina. The U. Israel. Sweden. Liechtenstein. Id. Turkey. Columbia. Explanatory Report by Elisa Perez-Vera. Malta. Austria. Georgia.I. Iceland. Oct 25.S Courts.Q.S Courts must stay strong and adhere to principals of comity.S No 11. Spain. France. Explanatory Report by Elisa Perez-Vera. Ecuador. Monaca. That collaboration would be meaningless if countries decided to impose their culture or beliefs when deciding what is best for another nation's citizens and would ultimately frustrate the purpose of the Convention. Chile. Italy. Elisa Perez-Vera. L. Turkmenistan. Brazil. United States. Macedonia. Belgium. (1982) (hereinafter “Perez-Vera Report”) Linda Silberman.15 (1994) Hague Convention on Civil Aspects of International Child Abduction.670 89 [hereinafter the “Convention”] See James D Garbolino. Costa Rica. Burkina Faso. Switzerland. International Child Custody Cases:Handling Hague Convention Cases in U. Panama. Mexico. . Nicaragua. United Kingdom. El Salvador. Slovakia. China. and parents methods of retrieval in nonconvention countries). Mauritius. St. Fiji. Portugal. 28 FAM. 0. Australia. As an American Citizen and father. Paraguay. Germany. Netherlands. Bosnia and Herzegovina.A. Latvia. Venezuela and Yugoslavia. 1980 T. Belarus. Honduras. Peru. Norway. Sri Lanka. Republic of Moldova.
net/e/status/abdshte.hcch. The member states of the Hague Conference become Contracting States through ratification of the Convention. Friedrich. however local American authorities may be willing to implement Hague precepts in individual cases pending final entry into force.on the Civil Aspects of International Child Abduction. at art. at 23 Convention. Status Table 28: Hague Convention of October 25 198. supra note 5 art.html (last visited November 19. See Hague Conference on Private International Law: Status Sheet Convention #28 http://hcch.11 Uniform Marriage and Divorce Act. at art. Uzbekistan and Zimbabwe. Article 16 Convention. 7 Garbolino Report supra note 6. supra note 5.net/e/abdshte. 53 Fed Reg 30637 (1988). supra note 5 at art. HYPERLINK "http://www. the judicial or administrative of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under the Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.2 (1998) After receiving notice of a wrongful removal or retention of a child in the sense of Article 3. 3 .” Convention. the Convention cannot be used as a remedy to recover a child abducted from the U. 7.A 282 pt. 12648. Therefore.6 Exec Order No.7 Id. 2008) Convention. Article 38 Trinidad and Tobago is a party to the Convention.hcch. Convention. 38 States that are not members of the Hague Conference on Private International Law may become Contracting States by the process of “accession” Convention. §402. supra note 4 Convention.S to Trinidad or to gain access to such a child.2d 1396. 1400 (6th Cir 1993) See Linda Silberman.net/e/status/abdshte. Article 37.L. supra note 5 at art. Friedrich v. at art.html" http://www. 9A U. Hague Conference of Private Int’l Law. 983 F. but the treaty has not yet entered into force between the United States.html. Convention.Uruguay. supra note 5.
32 (suggesting that matters of custody of the country shall be construed by legal system specified by the laws of that State). Id.S. Id. .C 11603(a) 42 U. Friedrich. 78 F. Id.3d 240 (2d Cir. at 142 Id. at 1063 Id.S.S.42 U. Convention.S. Id. 1999) Id. at 1069 Id.3d 1060 (6th Cir 1996) Id. 983 F. at 247. Id. at 248. Friedrich v. at 243 Id.1993) (“Friedrich I”) Id. Id.C §§ 11603 (e)(2)(A) Blondin v Dubois. 189 F. 13(b) Convention. at 243. Friedrich v Friedrich. supra note 5 at art. supra note 5 at art.2d 139 (6th Cir. at art.C §11603 (d) Convention. Id. 13(b) 42 U.C 11603(a) (2006) 42 U. supra note 5.
219 (noting both state and federal law have recognized that children are at increased risk of physical and psychological injury when they are in contact with a spousal abuser. 1998) (Walsh I) Walsh II at 214 Id.3d 1067 Restatement (Third) of the Foreign Relations Law of the United States § 481 (1987) University of Illinois Law Review Turning our Backs on the Children: Implications of recent decisions Regarding The Hague Convention on International Child Abduction. at 1067. or an agreement or concession. 189 F. 221 F.Id. 2000) (Walsh II) Id. at 1068 Id. 1069 intolerable situation was intended to encompass return to home where money is in short supply. 206 1st (Cir. Sharon C. at 218. at 218 Id. at 209 Id. at 222 Id at 218. 31 F. at 211 Id.S Courts.) See Blondin. by a party to perform a particular task. or where educational opportunities are more limited than in requested states.219 Id. Undertaking are most widely utilized in common-law countries. at 219 Id. 221 F. Walsh v Walsh. Handling Hague Convention Cases in U.3d at 242 An undertaking may be generally defined as official promise.3d at 221 Id. at 221 Friedrich II 78 F. 209 (1st Cir. James D Garbolino See Walsh II. 1068 Id at 1068.3d 204.Supp 2d 200. Nelson (2001) . at 212 Walsh v Walsh.
The Best Interests of .3d 133. Croll. at 704 Duran v Beaumont 534 F. 229 F. 3 Croll v. at 145 Furnes v Reeves. Id. Why American Courts need to Reconcile the Rights of Non-Custodial Parents. 189 F. at 135 Id. at 151.See Blondin. Id. See Mellisa Wills. Id. at 706 Id. at 140.3d at 245 http:www. Id. supra note 5.152 Id. 145 Id. 135 (2nd Cir. at 708 Id.com/newspaper/DJ1993pdf (explaining verdict that a Los Angeles Man received when his wife absconded to Paris with child). See supra note 71 Convention. at art.clfi. Id. Interpreting the Hague Convention On International Child Abduction.3d 142. Id. 2000). Id at 148 Id. at 704 Id.3d 702 (11th Cir 2004) Id. at 139 Id. 362 F.
at 221 235 U.)Gesetz sur Anderung von Zustandigkeiten nach dem Sorgerechtsubereinkommens-Ausfuhrungsgesetz. at 156-57. See Weiner Report.S. §8. 207 at 218 (2000).C. I S.U J Int’l & Pol. § 2110 (n) (2) (2006). 416.4 1999 (BGBL. U. art. 442 U.) r Nigel Lowe.S. The Federal Government has exclusive jurisdiction over matters of personal injury that arise from a claim involving a nuclear incident See 42 U. §1 See 28 U. Sims. 231 (2008). 33 N.S. The Hague Convention on the Civil Aspects of International Child Abduction: Failures and Success in German Practice 33 N.Abducted Children. 18 Missouri v Holland. at 317 See Kurt Siehr. “Family relations are a traditional area of state concern. cl.Y. A Tale of Two States: Successes and Failures of the 1989 Hague Convention on the Civil Aspects of International Child Abduction in the United and Germany. The 1980 Hague Convention on the Civil Aspects of International Child Abduction: An English Viewpoint 33 N.” Moore v. 1334(a) (2006). supra note 104. 432 (1920) Karin Wolfe.C §11601 (b)(3)(B) See Merle H.R. & Pol. 2006 25 Rev. Int’l L. New York v. III.Y. 702 (F. Int’l L.G.S. v. supra note 94. art. & Pol. See 42 U. 435 (1979) (finding that federal district court should have abstained pending state child abuse proceeding). 252 U.U J.S. 185 (2000) [hereinafter “lowe article”] (explaining . 423 (discussing reconciliation of the Convention’s objectives). United States¸ 505 U. Half-Truths. 285.C.S Const. and the Underlying Objectives of the Hague Convention.[hereinafter “Wolfe Note”] Wolfe Report. 221. 13. 179. Mistakes and Embarrassments: The United States goes to the Fifth Meeting of the Special Commission to Review the Operation of the Hague Convention on the Civil Aspects of International Child Abduction.Y. 415. [hereinafter “Weiner Report”](explaining the reasons why it good idea to limit judges hearing convention cases). 2008 Utah L.Litig. ( providing translation and citation of the title of 1999 German amended implementing statute for the Convention.S Const. Id. at 232 Id.S. 316 (2000). Weiner. Rev. I.U J.
supra note 109. at 185 Id. at 185 Id. Id. at 186 PAGE PAGE 26 . Lowe Report.how the English system deals with incoming abduction applications).
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