Hague Convention

San Diego has many residents and non residents from many countries in the world. San Diego is a very diverse population and with the rise in international marriage and with employee relocation, custody and visitation issues between countries has become more of an issue in divorce cases. The pre eminent organization which assists parents of abduction between countries in the United States is the National Center for Missing and Exploited Children. This organization gives advice and also referrals to attorneys as needed to assist parents.

The International Child Abduction and Relief Act and the Hague Convention are very technical and expert advice needs to be obtained if your child or children were abducted from the United States and taken to another country or you are in another country and your children were abducted from that country and taken to the United States. As San Diego is on the border with Mexico, the abduction of children from the United States to Mexico and then onward to other countries is always a concern as there are no restrictions when entering Mexico from the United States.

The first requirement is that the Country must be a signatory to the Hague Convention and not all countries are. Below is a complete list of the countries currently which are signatories. Herzegovina; Brazil, Bulgaria; Canada; Chile; China [Hong Kong and Macau only]; Croatia; Cyprus; Czech Republic; Denmark; Dominican Republic; El Salvador; Estonia; Finland; France; Germany; Greece; Hungary; Iceland; Ireland; Israel; Italy; Latvia; Lithuania; Luxembourg; Macedonia; Malta; Peru; Serbia; Slovak Republic; Slovenia; South Africa; Spain; Sweden, Switzerland; Turkey; United Kingdom [including Bermuda, Cayman Islands, Falkland Islands, Ilse of Man and Montserrat]; Uruguay; Venezuela and Zimbabwe

The second requirement is that the child or children must be below the age of 16 when wrongfully retained and abducted. This is very important since there have been cases where there are children who are below the age of 16 and above the age of 16 in the same family in the same case and the laws which apply to each are different.

The third requirement is that the child's must have a habitual place of residence before abduction to the member country. This can be very complicated as the laws which are applied are often the laws of the foreign jurisdiction. In San Diego, California, the law regarding habitual place of residence is governed by the Uniform Child Custody and Jurisdictional Enforcement Act. This would give the residence after six months of continuous living in the county and state. This is a very complicated area of the law and needs careful analysis.

The fourth requirement is that there must be lawful rights of custody when the child or children are removed from the country of habitual residence. This is very complicated since this is governed by the laws of the country of habitual residence and the laws in other countries are much different than the laws in the United States. As such, counsel from the country of habitual residence needs to be consulted to determine if there are lawful rights of custody in the country of habitual residence.

There are exceptions to the enforcement under the Hague Convention. If there is a consent or acquiescence to the taking then the Court will most not enforce. In addition, there is a one year statute of limitations and if the action is not brought within one year from the abduction, then the Court will not enforce. As such, if your child or children is abducted you need to immediately file the Petition and you can file, in San Diego, in either State or Federal Court as there is concurrent jurisdiction. Furthermore, another exception to enforcement is if there is a "grave risk of harm" if the child or children are returned to the country of habitual residence. If the child objects and the child is 13 years old or older [but below 16 years of age or the Convention does not apply per the above] then the preference of the child or children can be considered. Finally, if the return would violate fundamental rights then the Court can consider non enforcement.

In these cases, the tests for habitual residence [outside San Diego, California as per the law stated above], then the Court looks to determine if there was a settled intent to abandon the prior residence. If there was, then the habitual residence will change. If there was not, then the habitual residence will not change. In addition, the Court can look to a change of geography over sufficient time.

In these cases, the tests for wrongful removal are as follows. Did the removal take place? Was the child a habitual resident prior to the removal? Was the removal a breach of the rights under the law of the country of habitual residence? Was the other parent exercising custody rights at the time of the removal. All of these are factors the Court will consider.

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