2012: Hague Convention Elements for International Kidnapping Act: San Diego Superior Court
San Diego is a border town with Mexico. There have been cases where a parent, in violation of a San Diego Superior Court Order in a divorce, paternity or legal separation has taken a child or children out of the United States into Mexico. This has also happened with other countries and, in some cases, children are taken from other countries to San Diego in violation of a foreign judgment. The Hague Convention is a treaty between countries for many issues and this article will focus on the international kidnaping act.
There are many elements for a Hague Petition. First, there needs to be a determination as to the country of habitual residence. This can be a fact based analysis or can be included in the San Diego Superior Court Order. In custody and visitation orders made in San Diego Superior Court, the Judge will also make findings as to the country of habitual residence. This can be used in an international kidnaping case to establish the country of habitual residence. Second, is the issue of whether this was a kidnaping or unlawful retention. If the court order was violated when the child was removed from the country of habitual residence, then this is a kidnaping. If the court order was violated after the child was removed from the country of habitual residence, then this can be a wrongful retention. A common factual scenario is a court order which permits visitation outside the country of habitual residence. If the child is not returned per the court order, then this can be considered a wrongful retention. In either case, the court order controls and the San Diego Superior Court will give full faith and credit to the foreign order if both countries are signatories to this provision of the Hague Convention. As the list of countries changes, it is imperative to insure that both countries are members and signatories for the international kidnaping act.
Once the country of habitual residence is determined and there is either a kidnaping or unlawful retention, then the burden falls upon the parent trying to keep the child in violation of the court order. This has to be proven by the legal standard of clear and convincing evidence. As such, third, is the element that if the child is returned then there is a grave risk of harm. This can include returning to countries where there is war, famine or other grave risk of physical and/or emotional harm. The burden for this is very high. Another defense can be the intent and wishes of the child to remain despite the court order. The Hague Convention applies to children 16 years of age and under. The Court’s make an individual factual determination as to the maturity of the child in making a decision as to whether to consider their intent.
In San Diego, the San Diego District Attorney’s Office is involved in all Hague Petitions. The Child Abduction Unit has the responsibility for recovering and locating children who are being detained or taken in violation of a custody order. This can include custody order from other states or from foreign countries. If you are a resident of San Diego County, you can ask for their assistance. If you are not a resident of San Diego County, you can also ask for help and the District Attorney’s Office decides what their procedure will be. There is an application which can be filled out for the Hague process. In addition, the National Center for Missing and Exploited Children may also be able to assist and their main office is located in Washington, DC.
If you have a case in San Diego Superior Court regarding a Hague Petition, please feel free to contact our law office for a confidential consultation.