International Child Custody and Child Abduction: Who Are The "Good Guy" and "Bad Guy" Countries? The Most Recent Hague Convention Report

The most recent State Department Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction shows that even those countries which have signed off on the Convention do not always comply with it.   Even Western Hemisphere countries, including Costa Rica, Guatemala, and Honduras, are inconsistent in their compliance.  If you're in a dispute over the custody of your children, and the other parent proposes to travel out of the U.S., you should consult an experienced custody attorney in advance;  in this situation, an ounce of prevention may be far less expensive, and better than a ton of cure.  A hat tip to international custody guru Jeremy Morley for the pointer.

Recovery under the Hague Convention

Christian Nørgaard, a Danish computer science engineer was working in California when he met and married Tammy Zied, a software engineer. They married in Redwood City, California and had two daughters, Mia and Sarah, both born in California. The family moved to Germany then Denmark for Christian’s employment. 

While living in Denmark, the couple separated and in 2012, the Danish courts granted sole custody of both children to Christian. Tammy accused Christian of violence against her and the daughters. Mia began running away from Christian’s home, according to Tammy, to "escape the violence". Last May, Mia arrived in the United States and Sarah was left in Denmark with Christian. It is unclear whether Mia came to the United States with permission of Christian and was never returned, or whether Mia went to the United States without the consent of Christian and against the court order. 

According to an article published in the Copenhagen Post in August 19, 2013, Mia was reported as kidnapped to Interpol after Tammy failed to return her to Christian after an Easter visit. Tammy had told the police that Mia had run away and she didn’t know where she was. Police suspected that Tammy was hiding Mia and held her in custody for five days. When she was released, Tammy disappeared. 
 http://cphpost.dk/news/american-mother-suspected-of-kidnapping-her-daughter.6461.html

Mia and Tammy were living in Laguna Niguel. On January 31, 2014, the local authorities took Mia to a youth facility. Christian returned to California and Mia was returned to him a few days later. It appears that Mia is now with Christian and Sarah in Denmark.

Christian filed a Petition in Orange County under the Hague Convention and received assistance from the United States in the return of Mia to his custody. 

http://www.ocregister.com/articles/mia-604827-denmark-danish.html

Generally, exercising self-help in custody cases is not a good option. If faced with a similar situation or if you don't like the orders that are in place, the remedy would be to petition the court that made the orders, in this case Denmark, for a modification. Orders are binding and disobeying a court order or using self-help will make it more difficult to obtain custody or visitation in the future.

Decision From SCOTUS Regarding Hague Convention

(yes, the Hague Convention on International Child Abduction, NOT the one about dropping bombs from Zeppelins):   Lozano v. Montoya Alvarez, stating that the one year "statute of limitation" within which the courts of a country to which a child has been abducted  (or, in the language of the statute, "removed") must order a child "returned" to the original place of residence is not extended if the child is concealed.

When Should the U.S. Return A Child to a Country In Which Sharia Law Might Be Applied?

The Federal Court of Appeals for New York weighs in on whether a U.S. court must order a child returned to a "country of habitual residence" when that country is a signer, with the U.S. of the Hague Convention on child abduction, but which might possibly apply Sharia law to the adjudication of the custody dispute. Thanks and the usual hat tip to Prof.Volokh.

SCOTUS To Look At Hague Appeal Issue

The Hague Convention on Civil Aspects of International Child Abduction* is intended to permit speedy resolution of disputes as to which nation is the appropriate place to resolve child custody disputes, by assuring return of the child(ren) to their "habitual residence", except under extraordinary circumstances.  While generally the problem with Hague proceedings is that they are not speedy enough, sometimes they may be too speedy.

Last week, the U.S. Supreme Court heard argument in Chafin v. Chafin, to address the issue.

While it's not as headline-worthy as the DOMA cases, for the increasing number of parents with international, and intercontinental child custody arrangements, it may be more critical.


*I note the full title, because any treaty between nations signed at the Hague will be titled as a "Hague Convention", and simply searching those two words may end you up, for example, at the Hague Convention on the Launching of Explosives From Balloons.

Abbott: Supreme Court Decision on International Child Abduction Issues

The SCOTUS has decided, 6-3, in Abbott v. Abbott, a lingering issue in international child custody abduction cases. Only a parent with a "right of custody" can invoke the Hague Convention to compel the return of the child. Lower Federal courts have disagreed as to whether a parent with only "visitation" rights, but with a "ne exeat" order (forbidding the removal of the child from that country) could request return of the child under the Convention. The Supremes (or at least six of them) say that he can.

The Year's Most Interesting Custody Cases Wind Up!

Sean Goldman has been returned to the United States, after many months, and many tens of thousands of dollars, of litigation by his father to get him back from Brazil. His Brazilian "step-father"* was able to delay the return to the United States seemingly required by the Hague Convention, and a last-minute review by the Brazilian Supreme Court threatened to delay the final order being carried out until well into 2010. Others, including some on my blogroll** have discussed both the unwillingness of the Brazilian authorities to meet their obligations under the Convention, and the media sideshow which followed the final order, at length.

The willingness or unwillingness of countries to "sign on" to the Hague Convention and, once on, to comply with its terms, does not seem to correlate in a clear way with the degree of "modernity" of the country and government in question; the Japanese legislature is still vigorously debating whether Japan will sign on at all, and some western European signers are notably uncooperative in returning children.

Rifqa Barry is in foster care in Ohio; the Ohio court is attempting to facilitate some kind of dialogue between her and her parents, while the clock ticks by to her 18th birthday, at which time the law says she's an adult, and can go live with whomever she pleases. Based on the facts as I know them, it seems far less likely that her father will hunt her down for an "honor killing" than that she's easily swayed and influenced by others generally, and may find others who are all too willing, for good or ill, to make decisions for her.

Parents: Cherish your children. Children: cherish your parents.

Have a happy, and maybe even more prosperous, new year.

*There now seems to be at least some question as to whether deceased Mom was divorced from Sean's father at the date she remarried, and thus the quotes.

** In particular, Family Law News Blog and

Jeremy Morley's International Family Law

Child's Immigration Status Does Not = "Wrongful Retention" in the U.S.; 9th Circuit Speaks

The 9th Circuit U.S. Court of Appeals has reversed a Federal trial court and denied an petition under the Hague Convention on the Civil Aspects of International Child Abduction for return of the child to Mexico, pending an actual custody determination. Said the progressive (or, depending on who you talk to, "notoriously liberal") Court, in an opinion by Justice Reinhardt:

[W]e must decide here whether a child of Mexican origin, whose mother wrongfully retained her in the United States, should . . . . . . be returned to Mexico while the proceedings are conducted there. To decide this issue, we must consider . . . . . . whether a court may find that a child is not “settled” for the purposes of Article 12 of the Hague Convention for the reason that she does not have lawful immigration status.

To both of which questions, the answer is apparently, "No".