Vol 5 P 171

THE HAGUE CONVENTION
ON PARENTAL CHILD ABDUCTION:

AN ANALYSIS OF EMERGING TRENDS
IN ENFORCEMENT BY U.S. COURTS
I. INTRODUCTION
A Canadian court issued a divorce judgment terminating the marriage

of Michelle, a Canadian citizen, and Fred, a U.S. citizen.' The court
awarded custody of the couple's only child, five-year-old Kareem, to
Michelle. 2 Noting that Kareem would soon be starting school, the court
decided that the child should reside with Michelle in Canada during the
school year, with summer visitation at his father's home in New Jersey
However, during the following visitation period, Fred commenced an
action in a New Jersey court, which granted him sole custody of Kareem
and ordered that the child not be removed from the state Thus, the
separate litigation of this dispute on opposite sides of the border resulted in
two conflicting custody orders. Prior to 1988, it would have been difficult
to predict which parent would "win" in this situation. In all likelihood,
I. This is a true story, the facts of which are described in Duquette v. Tahan, 600
A.2d 472, 473 (N.J. Super. Ct. App. Div. 1991), appeal after remand, Tahan v. Duquette,
613 A.2d 486 (N.J. Super. Ct. App. Div. 1992).
2. Duquette, 600 A.2d at 474.
3. Id.
4. Id.
5. Obviously, only one parent can win in these types of situations. But the children
will almost always lose when they become trapped in prolonged custody battles, which are
often waged for reasons other than concern for the best interests of the children. See
GEOFFREY L. GREIF & REBECCA L. HEGAR, WHEN PARENTS KIDNAP: THE FAMILIES BEHIND
THE HEADLINES 11 (1993).
Many abducting parents sustained losses as children that seem to shape
their behavior as adults. Some of the left-behind parents appear to be
repeating in adulthood patterns of victimization or abandonment begun
early in life. With marriages characterized by unhappiness, pain, anger,
violence, and substance abuse, a few of these parents may be products of
families that also struggled with substance abuse and violence .... Thus,
underlying the reported reasons for abduction--such as unhappiness with
custody, visitation, or child support arrangements; anger and a desire for
revenge; or the belief that the child is being harmed--are both the societal
changes that provide a context for abduction and the personal histories of
the parents involved.
Id. (footnote omitted). Children abducted by a parent face not only the failure of their
parents' marriage, but also the strain of "life on the run." Id. at vi. These children exist in
an environment of instability and insecurity. See UNIFORM CHILD CUSTODY JURISDICTION
ACT, Prefatory Note, 9 U.L.A. 116 (1988 & Supp. 1993) [hereinafter UCCJA]. "A child
who has never been given the chance to develop a sense of belonging and whose personal
IND. INT'L & COMp. L. REv. [Vol. 5:171
Michelle's only recourse in her attempt to regain custody would have been
to "snatch" Kareem and secretly return the child to Canada.6 Parents like
Michelle often resorted to this form of "self-help" due to the uncertainties
attachments ...are cruelly disrupted, may well be crippled for life ... ." Id.
6. Parents in Michelle's situation could seek enforcement of foreign country custody
decrees under the UCCIA. Section 23 of the UCCJA provides for extension of this domestic
act to the international arena. UCCJA, supra note 5, § 23, at 326. However, problems still
exist in recognition and enforcement of these foreign decrees. See Dana R. Rivers,
Comment, The Hague InternationalChildAbduction Convention andThe InternationalChild
Abduction Remedies Act: ClosingDoors to the ParentAbductor, 2 TRANSNAT'L LAW. 589,
606 (1989). Under the UCCJA, courts may find reasons to avoid enforcement of foreign
decrees, such as changed circumstances or the best interests of the child. Id. at 607-08.
Also, variations may exist in enactment of the UCCJA from state to state. Id. at 608. For
example, South Dakota has not enacted Section 23, perhaps due to uncertainty about the
effects of the international provision upon cases involving conflicts between state courts and
tribal courts governing Indian tribes in that state. See Roger M. Baron, Child Custody
Jurisdiction,38S.D. L. REV. 479, 492 (1993).
Furthermore, the UCCJA is not equipped to provide a remedy when non-custodial
parents abduct their own children from the United States to another country. See Brenda J.
Shirman, Note, InternationalTreatmentof ChildAbduction and the 1980 Hague Convention,
15 SUFFOLK TRANSNAT'L L.J. 188, 195 (1991); Caroline LeGette, Note, InternationalChild
Abduction and The Hague Convention: Emerging Practice and Interpretationof the
DiscretionaryException, 25 TEx. INT'L L.J. 287, 293-94 (1990).
Another weakness of the UCCJA is that it applies only to cases where custody
decrees have been issued. See Legette, supra at 294. This presents a significant problem
because approximately half of the child abduction situations occur where there are no
outstanding custody orders. Id. (citing Adair Dyer, Remarks at the Briefing on the Hague
International Child Abduction Convention and the International Child Abduction Remedies
Act, at 4 (Pub. L. 100-300) (Washington, D.C., Jan. 6-7, 1989)).
In 1980, Congress enacted the Parental Kidnapping Prevention Act ("PKPA"), 28
U.S.C. § 1738A (1988), in order to complement the UCCJA. See Rivers, supra, at 608.
However, the United States Supreme Court has determined that Congress' intent in enacting
the PKPA was to require the states to grant full faith and credit to domestic decrees. See
Rivers, supra,at 609 (citing Thompson v. Thompson, 484 U.S. 174, 182-87 (1988)). Thus,
as one author stated:
[Tihe PKPA has not had an affirmative impact on international child
custody disputes because it does not address enforcement of foreign
country custody decrees. The absence of such a provision allows each
state to determine its own recognition and enforcement guidelines
regarding international abductions. Consequently, foreign parents faced
with international abductions to the United States will not benefit from a
uniform, national standard for affording full faith and credit to foreign
country custody decrees.
Rivers, supra, at 611.
1994] HAGUE CONVENTION
inherent in domestic legislation in the United States and the propensity of

U.S. courts to assume jurisdiction in order to modify foreign country
decrees.7 Likewise, Fred hoped to benefit from this uncertain legal
atmosphere when he violated the Canadian decree by retaining his child in
the United States, believing the state court would prove to be a friendlier
forum ."
Fortunately for Kareem and his mother, this custody dispute arose after
the United States, Canada, and other countries had signed an international
treaty designed to deal with situations where non-custodial parents violate
custody rights by either abducting or retaining their children in foreign
countries. Frustrated in their attempts to stem the growth of parental child
abductions through their own domestic laws, countries began turning to each
other for help. 9 In response, the Fourteenth Session of the Hague
Conference on Private International Law drafted the Hague Convention on
the Civil Aspects of International Child Abduction ("Hague Convention"). 0
The Hague Convention was signed by the United States on December 23,
1981," and subsequently ratified by the U.S. Senate in 1986.12
7. Rivers, supranote 6, at 611. "For a case in which the aggrieved parent is foreign,
forum shopping often could mean protracted and burdensome litigation in the United States."
Id. at 593-94.
In addition, the parent whose child is abducted from the United States to another
country met numerous difficulties as well. See Shirman, supra note 6, at 197-98.
Prior to . . . 1980 ... no single agency monitored international child
abduction ....[O]nce custodial parents found their abducted children in
a foreign country, they typically found themselves relitigating custody
suits in the foreign jurisdiction, a process which often resulted in
inconsistent and disappointing outcomes.. ..Even those countries which
recognized foreign custody decrees applied their laws inconsistently, or
avoided them altogether by employing prohibitive procedural conditions.
Thus... the very laws which were enacted to deal with the dilemma of
child abduction actually increased the problem.
Id. (footnotes omitted).
8. Rivers, supra note 6, at 593. "Historically, 'forum shopping' has proven lucrative
in the United States, thus encouraging abductions." Id. (footnote omitted). Initially, forum
shopping did pay off for Fred, because he obtained what he wanted from the New Jersey
court.
9. Id. at 61!.
10. Convention on the Civil Aspects of International Child Abduction, openedfor
signatureOct. 25, 1980, S. TREATY Doc. No. II, 99th Cong., 1st Sess. (1985), 19 I.L.M.
1501 [hereinafter Hague Convention].
11. Letter of Submittal, Oct. 4, 1985, reprintedin51 Fed. Reg. 10,494, 10,496 (1986)
[hereinafter Letter of Submittal].
IND. INT'L & COMP. L. REv. [Vol. 5:171
Legislation implementing the Hague Convention, the International Child

Abduction Remedies Act ("ICARA"), was enacted on April 29, 1988.'
In drafting the Hague Convention, the intent of the signatory nations
was to "protect children internationally from the harmful effects of their
wrongful removal or retention and to establish procedures to ensure their
prompt return to the State of their habitual residence, as well as to secure
protection for rights of access."' 4 The U.S. Congress, in enacting the
ICARA, found that "[t]he international abduction or wrongful retention of
children is harmful to their well-being. . . . The Convention provides a
sound treaty framework to help resolve the problem of international
abduction and retention of children and will deter such wrongful removals
12. Monica Marie Copertino, Comment, Hague Convention on the CivilAspects of

InternationalChild Abduction: An Analysis of Its Efficacy, 6 CONN. J. INT'L L. 715, 721
(1991) (footnote omitted).
13. 42 U.S.C. §§ 11601-11610 (1988).
14. Hague Convention, supra note 10, 19 I.L.M. at 1501. Article 3 of the Hague
Convention provides:
The removal or the retention of a child is to be considered wrongful
where--
a it is in breach of rights of custody attributed to a person, an institution
or any other body, either jointly or alone, under the law of the State in
which the child was habitually resident immediately before the removal or
retention; and
b at the time of removal or retention those rights were actually exercised,
either jointly or alone, or would have been so exercised but for the
removal or retention.
The rights of custody mentioned in sub-paragraph a above, may arise in
particular by operation of law or by reason of a judicial or administrative
decision, or by reason of an agreement having legal effect under the law
of that State.
Id. Additionally, Article 5 of the Hague Convention provides:
For the purposes of this Convention --
a 'rights of custody' shall include rights relating to the care of the person
of the child and, in particular, the right to determine the child's place of
residence;
b 'rights of access' shall include the right to take a child for a limited
period of time to a place other than the child's habitual residence.
Id. In other words, "rights of access" relate to visitation. See Legal Analysis of the Hague
Convention on the Civil Aspects of International Child Abduction, 51 Fed. Reg. 10,503
(1986) [hereinafter Legal Analysis]. It should be noted that neither the Hague Convention
nor the ICARA define the phrase "habitual residence." See Hague Convention, supranote
10; ICARA, supra note 13. It is also undefined in Legal Analysis, supra. This potential
problem is addressed in more detail below.
and retentions."' 5
Returning to the plight of Kareem and his feuding parents, the Hague
Convention directly affected the outcome of this dispute. The treaty
provided Michelle with a cause of action for establishing the jurisdiction of
the Canadian court in deciding the custody dispute. Eventually, a New
Jersey appellate court ordered that Kareem be returned to Michelle pursuant
to the Canadian custody judgment. 6
In his letter accompanying transmittal of the Hague Convention to the
U.S. Senate for ratification, President Ronald Reagan stated that "by
establishing a legal right and streamlined procedures for the prompt return
of internationally abducted children, the Convention should remove many
of the uncertainties and the legal difficulties that now confront parents in
international child abduction cases.' 7 At present, only a limited number
of cases address the issues covered by the Hague Convention, i" and only
15. 42 U.S.C. § 11601(a)(1), (4).

16. Tahan, 613 A.2d at 489-90. Kareem's case is, itself, an example of some of the
problems federal and state courts may encounter when enforcing the Hague Convention.
Initially, the trial court balked at returning Kareem to Michelle for fear that Fred would not
be able to see his child again. Duquette,600 A.2d at 474. The appellate court upbraided the
trial judge, however, for failure to apply the Hague Convention, although Michelle had
specifically sought relief under the treaty. Id. at 475. The matter was remanded, but the trial
judge was rebuked again during a second appeal for delaying the case for at least another
seven months. Tahan, 613 A.2d at 488. The court stated, "In remanding, it was our
expectation that this issue would be resolved promptly and that the situation of the parties
would, juridically at least, be quickly stabilized." Id. The opinions indicate that Kareem was
five years old when the case was first heard by the trial court. Duquette, 600 A.2d at 474.
However, by the time the matter was resolved on appeal after remand, Kareem had reached
the age of nine. Tahan, 613 A.2d at 490. The delay in Kareem's case was in contravention
of the intent of the Hague Convention, which provides under Article 1(a) for the "prompt
return" of children who have been wrongfully removed or retained. See Hague Convention,
supra note 10, at 1501. Under Article 11, courts may be required to provide reasons for
delays in cases where a decision is not made within six weeks. Id. at 1502. The New Jersey
court system addressed other issues involving the Hague Convention in Kareem's case. Yet,
this case is perhaps noteworthy due to the stern language of both appellate court opinions in
dictating that the trial judge adhere to the provisions of the Hague Convention, and in
scolding the judge for further delay following remand. Likewise, parents who attempt to
delay proceedings may be subject to similar rebukes in court, but here the appellate courts
took a trial judge to task for failing to implement the law properly. Hopefully, trial courts
hearing future disputes will address the need for prompt action in a serious manner, and avoid
unnecessary delays in attempting to re-establish stable environments for these children.
17. Letter of Transmittal, Oct. 30, 1985, reprintedin 51 Fed. Reg. 10,494, 10,495
(1986) (hereinafter Transmittal Letter].
18. Baron, supra note 6, at 494.
IND. INT'L & COMP. L. REV. [Vol. 5:171
one federal case has reached the appellate level.' 9 Therefore, the purpose
of this Comment is to examine existing case law to determine whether
courts in the United States-both on the state and the federal level-are
strictly adhering to the objectives of the Hague Convention when
interpreting and enforcing this international law. Furthermore, this
Comment analyzes the manner in which courts are coping with the
perceived weaknesses of the Hague Convention" and the development of
precedent in this emerging area. In so doing, the focus is upon the case law
and issues surrounding custody rights under the Hague Convention, as
opposed to issues involving visitation.
II. ENFORCEMENT OF THE HAGUE CONVENTION
A. DemonstratedNeedfor an InternationalSolution
Parental abduction is a troubling and emotionally devastating event,

whether the wrongdoer remains within the country or escapes with the
children to a foreign nation. However, the problems facing the parent left
behind are exacerbated when wrongful removal or retention of children
progresses from a domestic matter to one encompassing the international
legal domain. 2 For example, these parents encounter increased costs in
travel and in overcoming obstacles presented by different languages and
legal systems. 2 2 Also, assistance from the authorities in foreign countries
19. Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993). See generally Mark
Dorosin, Note, You Must Go Home Again: Friedrich v. Friedrich, The Hague Convention
and The International Child Abduction RemediesAct, 18 N.C. J. INT'L L. & COM. REG. 743
(1993).
20. For an overview of opinions regarding weaknesses of the Hague Convention, see
generally Shirman, supra note 6, at 214-16; Copertino, supra note 12, at 729-42; Cathy S.
Helzick, Note, Returning United States Children Abducted to Foreign Countries: The Need
to Implement the Hague Convention on the Civil Aspects of International Child Abduction,
5 B.U. INT'L L.J. 119, 144-46 (1987); Esther Levy Blynn, Comment, In re: International
Child Abduction v. Best Interests of the Child: Comity Should Control, 18 INTER-AM. L.
REv. 353, 382 (1986).
21. Rivers, supra note 6, at 590-91.
22. Id. at 591. Recall that the distance involved in the case of the custody battle
between Fred and Michelle was not particularly burdensome, as one parent resided in Canada
and the other lived in New Jersey. See supra notes 1-4 and accompanying text. However,
the left-behind parent often must face greater distances, and the parent abductor may take the
child to any country in the world, if he or she so chooses.
2 3
often proves to be ineffective.
Statistics highlight the gravity and magnitude of the international
parental kidnapping dilemma. Between 1973 and 1991, the U.S. State
Department received about 4,000 reports of international parental abduction,
but estimated that the actual total could be as high as 10,000. 24 Two
researchers in the United States found that more than one-fifth of the total
number of parental abductions studied involved instances where children
were known or believed to have been abducted to other countries.
However, another study put this statistic as high as forty percent.25
Other statistics indicate that the success rate for recovery of children
who are taken abroad by U.S.-bom parents is about the same as the
recovery of other children who are never taken outside the United States by
their parental kidnappers. 6 This similar rate of recovery may be
attributed, in part, to the fact that many of these parental abductors travel to
other signatory nations recognizing the Hague Convention. In these
situations, American parents are able to obtain assistance in regaining
custody of their children through the reciprocal mechanisms of the Hague
Convention.27 Another possible reason is that the abductors themselves are
handicapped in finding financial support, family or legal assistance, and
23. Rivers, supra note 6, at 591. In describing the plight of these parents prior to the
Hague Convention, one author wrote:
Most Americans who experience the abduction of a child across
international frontiers are at a complete loss about what to do and where
to turn. There is no office in this country that is equipped to give them
the necessary aid and direction. If they travel to the country where they
presume the child to be, seeking help from the authorities, they find
themselves shunted from one agency to another with no one office charged
with responsibility to assist them. Attorneys in both countries run into the
same difficulties, especially when the whereabouts of the abductor and
child are unknown. They can attest to the enormous expenditures for
travel, detective services, and other costs incurred by their clients in
foreign abduction cases, not to speak of the emotional stress and strain
involved.
Id. at 591 n.9 (quoting Brigitte M. Bodenheimer, The Hague Draft Convention on
International Child Abduction, 14 FAM. L.Q. 99, 110-11 (1980)). See also supra note 7.
24. GREIF & HEGAR, supra note 5, at 179 (footnote omitted).
25. Id. at 180 (citing Rosemary F. Janvier et al., ParentalKidnapping: A Survey of
Left-Behind Parents, 41 Juv. & FAM. CY. J. 1-8 (1990)).
26. GREItF & HEGAR, supra note 5, at 183.
27. Id.
employment. As a result, many eventually return to the United States.28

On the other hand, researchers in the study found that 13.2% of the
abducting parents investigated were foreign-born (i.e., born outside of the
United States), compared to 6.2% of the general population.29 Compared
to U.S.-born parents, foreign-born parents are no more successful at eluding
authorities when they and their children remain within the United States'
borders. However, they more often escape recovery when they take their
children across the border.3" Unlike the U.S.-born parental kidnappers, the
foreign-born abductors enjoy a major advantage in foreign countries and
often choose countries which do not recognize the Hague Convention.31
Also, the foreign-bom parents receive more ready assistance from family,
friends, and the court systems while abroad than do their U.S.-born
counterparts.32
Cultural differences may play a role as well, as is apparent when
children are abducted from their mothers in the United States and taken to
Middle Eastern countries.33 These mothers encounter legal favoritism of
the fathers in the Middle East, where it is assumed that fathers make the
important decisions concerning the upbringing of their children. 4 Another
reason for the high number of international parental kidnappings may be due
to the fact that the number of international marriages themselves (i.e.,
marriages between people of different nationalities) are escalating.35
Greater social equality and acceptance have led to more racial and ethnic
28. Id. "lfthey remained abroad, they frequently stood out as foreigners to neighbors
and law enforcement officials, and as such they were unlikely to receive special protection
or preferred treatment." Id.
29. Id.
30. Id. at 186 (footnote omitted). The recovery rate for foreign-born parents was 35.7
percent, compared to 59.2 percent for United States-born parents. Id. (footnote omitted).
31. Id.
32. Id.
33. Id. at 186-87.
34. Id. at 187. One example offered by the authors is that of Betty Mahmoody, a
mother who fled Iran with her daughter. Her story was portrayed in a well-known book
and movie. Id. (citing BETTY MA14MOODY & WILLIAM HOFFER, NOT WITHOUT MY
DAUGHTER (1987)). See also InternationalChildAbduction: HearingBefore the
Subcomm. on InternationalOperationsof the House Comm. on ForeignAffairs, 101 st
Cong., 2nd Sess. 8 (1990) [hereinafter Hearing] (statement of Carmen DiPlacido,
Director, Office of Citizens Consular Services, Bureau of Consular Affairs, U.S.
Department of State) ("Without a doubt, the Middle East is troublesome primarily because
of the culture and the religious issues, and that is an overriding impact on their courts, the
Sharia law system.").
35. GREIF & HEGAR, supra note 5, at 191.
inter-marriages.36 In addition, increased immigration and the ease of

international travel in the modern-day world has led to a higher rate of
international marriages. 37 Another factor is the more liberal granting and
recognition of divorces.38
B. Effectiveness Increases as Number of Signatories Grows
One interesting conclusion from the recent United States study

previously discussed was that foreign-born abductors tended to return to
their home countries with their children.39 In that study, only nine of the
twenty-four different countries which were the birthplaces of foreign-born
abductors recognized the Hague Convention, and the legal systems of many
of those countries were dissimilar to that of the United States.40 The
authors of the research study concluded:
[O]ur findings suggest that the Hague Convention is an important

factor in the recovery of children who are abducted and taken
abroad. Three destination countries in our study subscribed to the
convention at the time of the abductions: Canada, the United
Kingdom, and Australia. Eighty-four percent of the abductions to
these countries after the Hague Convention rules were in effect
resulted in recovery, compared to a recovery rate of 43% for
international abductions to non-Hague destinations .... Although
the Hague Convention now holds promise for recovery of children
from countries that participate in it, the only hope for many
parents is that more countries will subscribe and enforce it in the
future. Unfortunately, such international cooperative efforts
sometimes are made on the basis of national political expediency,
rather than on consideration of the welfare of children and
families. 4
36. Id.
37. Id. See also Sheikh v. Cahill, 546 N.Y.S.2d 517, 518 (N.Y. Sup. Ct. 1989).
38. Rivers, supra note 6, at 616 (citing Stotter, The Light at the End ofthe Tunnel:
The Hague Convention on InternationalChild Abduction Has Reached Capitol Hill, 9
HASTINGS INT'L & COMP. L. REv 285, 291-92 (1985-86)).
39. GPEIF & HEGAR, supra note 5, at 194.
40. Id. In contrast, U.S.-born abductors tend to choose English-speaking countries
where the Hague Convention is recognized and the legal systems share a common heritage
with and respect for that of the United States. Id.
41. Id. at 194-95 (footnote omitted).
As noted previously, many of the legal uncertainties and difficulties of

international parental kidnappings were due to the absence of a central
monitoring agency in the United States and other countries.42 The Hague
Convention directly addresses this problem in Articles 6 and 7 by providing
for the establishment of a "Central Authority" in each Contracting State.
The purpose of the Central Authority is to receive applications under the
Hague Convention and cooperate with other signatory nations in achieving
the objectives of the treaty."
Parents are frustrated to learn that courts in the United States cannot
provide relief for them in foreign lands not recognizing the Hague
Convention." However, the Hague Convention must be recognized by
both countries before either nation's court can act to return a child. 45 This
threshold obstacle is perhaps best demonstrated by the 1989 federal court
decision of In re Mohsen, one of the earlier cases decided pursuant to the
Hague Convention and the ICARA.46 In Mohsen, the court dismissed a
petition by a citizen of Bahrain who was seeking the return of his child from
the United States, where the mother had physical custody.47 However,
Bahrain was not a signatory to the Hague Convention.4" Consequently, the
court held that "the [ICARA] in itself provides no substantive rights. The
[ICARA] plainly states that it 'empower[s] courts in the United States to
determine only rights under the Convention. . . . "4 Finding that the
Bahrainian father had no rights under the ICARA, the court never reached
the issue of whether the child had been wrongfully removed or retained.5"
Logically, the Hague Convention's success rate depends upon the
number of nations which become signatories."' The number of countries
adopting the Hague Convention has grown since the United States
implemented the treaty. For example, only four countries-Canada, France,
Greece, and Switzerland-signed the treaty after it was opened for signature
42. See supra notes 7 & 23 and accompanying text.

43. Hague Convention, supra note 10, at 1501-02. The Office of Citizens Consular
Services, Bureau of Consular Affairs, U.S. Department of State, has been designated as the
Central Authority of the United States. See 42 U.S.C. § 11606(a); International Child
Abduction, 22 C.F.R. § 94.2 (1993).
44. Hearing, supra note 34, at 1.
45. Helzick, supra note 20, at 146.
46. 715 F. Supp. 1063 (D. Wyo. 1989).
47. Id. at 1064.
48. Id.
49. Id. at 1065 (alteration and emphasisin original) ((citing 42 U.S.C. § 11601(b)(4)).
See supra note 15 and accompanying text.
50. Mohsen, 715 F. Supp. at 1065.
51. Helzick, supra note 20, at 146.
on October 25, 1980.52 The number of signatory nations grew to fourteen

by 1990 3' and to twenty-four by the summer of 1992."4 As of January
1, 1994, thirty-one nations had become signatories to the treaty. 5
While the number of adopting countries has grown steadily, the rate of
growth is very slow. A number of factors contribute to this slow growth,
including differences in legal systems and social norms between signatory
and non-signatory nations, nationalism, differing priorities, finances, and
possibly even unawareness of the existence of the Hague Convention. 6
Perhaps these considerations will prevent some countries from ever signing
the treaty. However, it is vital that many more countries adopt the Hague
Convention in order to achieve a truly effective, international treaty.
Continual growth is critical due to the large number of non-signatory nations
which can serve as havens for parental abductors.57
C. Where Are U.S. Courts Headed?
The [Hague] Convention operates on the assumption that courts

in the 'home' country have primary responsibility for settling any
outstanding issues concerning custodial rights and determining
what arrangements are in the child's best interest. The
Convention allows few exceptions to the requirement that the
child be returned forthwith. If these exceptions are interpreted
broadly, parents will have a greater incentive to resolve difficult
custody problems by abducting the child and hoping that a court
in the country of asylum will prove to be sympathetic. .. . It
52. Letter of Submittal, supra note 11, at 10,496.

53. Hearing,supra note 34, at 3.
54. GREIF & HEGAR, supra note 5, at 193.
55. The following list of party countries was provided by the United States Central
Authority, Office of Citizens Consular Services, Child Custody Divisions, U.S. Department
of State. These countries are: Australia, Canada, France, Hungary, Luxembourg, Portugal,
Spain, Switzerland, United Kingdom, United States, Austria, Norway, Sweden, Belize, The
Netherlands, Germany, Argentina, Denmark, New Zealand, Mexico, Ireland, Israel, Croatia,
Ecuador, Poland, Burkina Faso, Greece, Monaco, Romania, Mauritius, Bahamas.
56. Copertino, supra note 12, at 732 (footnotes omitted).
57. LeGette, supra note 6, at 288-89. For example, New Zealand, an English-
speaking country, had become a haven for parental abductors prior to its adoption of the
Hague Convention. Id. at 289. The fact that the country was not a party to the treaty likely
influenced Elizabeth Morgan's decision to hide her daughter, Hilary, in New Zealand. See
GREIF & HEGAR, supra note 5, at 193. See generally Suzanne McGrath Dale, Note, Little
Hilary: Happy at Last? New Zealand's Family Court and the Matter of Hilary Foretich,
9 DICK. J. INT'L L. 411 (1991).
remains to be seen if courts of the United States, where the

Convention has recently come into force, will act with ...
sensitivity and dispassion when such cases enter American
courts. 58
The above commentary by a U.S. lawyer59 accompanied his summary

of an English case concerning an Australian father who successfully sought
the return of his child under the Hague Convention. 6" It also expresses the
author's concern that state and federal courts in the United States should
attempt to give due consideration to the judgments of English courts when
interpreting and enforcing the treaty. This is due to the fact that England
implerriented the Hague Convention prior to the United States6 and had
already begun building a body of case law construing the treaty. Federal
court judges refer to English case law when interpreting the treaty in at least
five opinions.62 Although few court cases addressing the Hague
Convention have been decided in the United States,63 it appears that these
courts are enforcing the Hague Convention consistently with its objectives
and-purposes. 4 A summary of the Hague Convention's objectives follows,
along with an analysis of attempts by U.S. courts to execute the treaty in
light of these objectives.
1. Objectives of the Hague Convention
Article I of the Hague Convention sets out two simple goals for
signatory nations. They are: "[1] to secure the prompt return of children
wrongfully removed to or retained in any Contracting State ... and ... [2]
to ensure that rights of custody and access under the law of one Contracting
58. Mark P. Kindall, UnitedKingdom Case Note, 83 AM. J. INT'L L. 586, 590 (1989).
59. Id.
60. Id. at 586 (construing C. v. C., [1989] 1 W.L.R. 654 (1988)).
61. Child Abduction and Custody Act, 1985, ch. 60 (Eng.).
62. See Friedrich,983 F.2d at 1401; Levesque v. Levesque, 816 F. Supp. 662, 666
(D. Kan. 1993); Slagenweit v. Slagenweit, 841 F. Supp. 264, 268 (N.D. Iowa 1993); Ponath
v. Ponath, 829 F. Supp. 363, 368 (D. Utah 1993); Prevot v. Prevot, 855 F. Supp. 915, 920
(W.D. Tenn. 1994). See also supra note 19 and accompanying text. The reliance by these
courts upon British case law in its interpretation of the phrase "habitual residence" is
discussed in detail below.
63. It should be noted that the ICARA provides for concurrentjurisdiction of the state
and federal courts over matters brought under the Hague Convention. 42 U.S.C. § 11603(a).
64. Baron, supra note 6, at 494.
' 65
State are effectively respected in other Contracting States.
In achieving these goals, Article 10 stresses a preference for voluntary
return of the children, providing that "all appropriate measures in order to
obtain the voluntary return of the child" should be taken.66 Where the
voluntary return cannot be obtained, however, the Hague Convention
provides for judicial or administrative recourse, with Article 11 mandating
that "[t]he judicial or administrative authorities67 ... shall act expeditiously
in proceedings for the return of the children.,
In addition, Article 1768 has been interpreted as follows:
[T]he person who wrongfully removes or retains the child in a

Contracting State cannot insulate the child from the Convention's
return provisions merely by obtaining a custody order in the
country of new residence, or by seeking there to enforce another
country's orders. Nor may the alleged wrongdoer rely upon a
stale decree awarding him or her custody, the provisions of which
have been derogated from subsequently by agreement or
acquiescence of the parties, to prevent the child's return under the
Convention.69
Article 16 appears to complement the above purpose in returning the

child to the position he was in immediately prior to the abduction by
stipulating that the court "shall not decide on the merits of rights of custody
until it has been determined that the child is not to be returned under this
Convention ... .,7o This supports the second objective discussed above 7
regarding respect for the laws and decrees of other signatory nations. '
65. Hague Convention, supra note 10, at 1501.

66. Id. at 1502.
67. Id. See supra notes 1-4, 16 and accompanying text for a discussion of a case
where a trial court judge was rebuked at the appellate level for causing delay upon remand.
See also Sortomme v. Sortomme, No. 92-4218-SAC, 1993 WL 105144, at *2-*5 (D. Kan.
Mar. 10, 1993) (court refuses to recognize mother's rights under the Hague Convention where
she did not act as though she had such rights and where her actions unnecessarily delayed the
final resolution of the custody dispute).
68. Id. at 1503. Article 17 states: "The sole fact that a decision relating to custody
has been given in or is entitled to recognition in the requested State shall not be a ground for
refusing to return a child under this Convention . . . ." Id.
69. Legal Analysis, supra note 14, at 10,504-05. Recall that the state appellate court
deciding the custody case of Kareem would not permit Fred to rely upon a New Jersey
custody decree in the father's attempt to evade the Canadian order granting custody to the
boy's mother, Michelle. See supra notes 1-4, 16 and accompanying text.
71. See supra note 65 and accompanying text.
Hence, Article 16 specifically requires courts not to delve into the

merits of the custody case, while Article 17 puts the alleged wrongdoer on
notice that he cannot benefit from his actions by seeking a favorable custody
order in a more friendly forum. However, Article 17 also provides that
courts may take into account the reasons underlying the order from the more
friendly forum in applying the Hague Convention.72
Consequently, it appears that courts are allowed some flexibility under
Article 17 in deciding whether to look at the merits of the underlying
custody dispute. Yet, this may be desirable, especially under circumstances
where the abductor has new, relevant evidence that was either not available
at the time of the foreign custody decree, or the foreign court would not
consider the evidence for some reason when making its decision. Still,
courts should approach this built-in flexibility with caution to "prevent a
later decision on the matter being influenced by a change of circumstances
brought about through unilateral action by one of the parties,"73 '
thus
resulting in an outcome which contravenes the purposes of the Hague
Convention.74
For a parent seeking redress in a U.S. court for the abduction or
wrongful retention of his or her children, the Hague Convention has several
advantages over the Uniform Child Custody Jurisdiction Act ("UCCJA") and
the Parental Kidnapping Prevention Act ("PKPA").75 A significant
advantage is the fact that the treaty applies in situations where a custody
decree has not been issued (unlike the UCCJA and PKPA), permitting courts
to deal with situations where parents abduct their children out of fear that
they will not receive a favorable or fair custody order.76
Still, the UCCJA and the PKPA serve one useful purpose in con-
junction with the Hague Convention. The ICARA states that notice shall be
provided in accordance with the local applicable law governing such notice
in international child custody proceedings,77 indicating that notice must be
made consistently with the dictates of the UCCJA and the PKPA. 8
72. Hague Convention, supra note 10, at 1503. See also Meredith v. Meredith, 759
F. Supp. 1432, 1435 (D. Ariz. 1991).
73. Legal Analysis, supra note 14, at 10,506 (citation omitted).
74. "Inherent in the philosophy of the Convention is the notion that strict application
of the ... provisions is necessary to deter future abductions." Rivers, supra note 6, at 617.
75. See supra notes 5-6; Helzick, supra note 20, at 144. For a summary of the
UCCJA's and PKPA's weaknesses in dealing with international parental kidnappings, see
supra note 6.
76. Legal Analysis, supra note 14, at 10,505; Helzick, supra note 20, at 144.
77. 42 U.S.C. § 11603(c).
78. David Jackson, What Really Counts is Time and Place; Jurisdiction and notice
requirementsensure an opportunity to be heard,FAM. ADVOC., Fall 1989, at 20, 23.
2. Threshold Requirements
a. Grappling with "HabitualResidence"
Article 4 of the Hague Convention requires that "[t]he [Hague]

Convention shall apply to any child who was habitually resident in a
Contracting State immediately before any breach of custody or access
rights."'79 However, as noted earlier, the phrase "habitual residence" is not
defined by the treaty.8" Consequently, existing case law must be examined
to determine and analyze the approaches courts of the United States are
taking in determining the habitual residence of the child.
In Friedrich, the Sixth Circuit Court of Appeals was faced with
determining the habitual residence of a child born in Germany to a German
father and an American mother stationed in Germany as a member of the
United States Army.8 The mother brought the child to the United States
following the couple's separation, and the father alleged that his son should
be returned pursuant to the Hague Convention.82 In reaching its finding
that Germany was the child's habitual residence, the court found no helpful
guidance in American case law, and thus applied an earlier English case, In
re Bates, in its analysis.83
Bates offers an explanation for the absence of an explicit definition of
"habitual residence" in the Hague Convention. That court stated:
No definition of 'habitual residence' has ever been included in a

Hague Convention. This has been a matter of deliberate policy,
the aim being to leave the notion free from technical rules, which
can produce rigidity and inconsistencies as between legal
systems.. . . It is greatly to be hoped that the courts will resist
the temptation to develop detailed and restrictive rules as to
habitual residence, which might make it as technical a term of art
as common law domicile. The facts and circumstances of each
case should continue to be assessed without resort to presumptions
or pre-suppositions. . . . and there must be a degree of settled
purpose... . That is not to say that the propositus intends to stay
where he is indefinitely. Indeed, his purpose, while settled may
be for a limited period. Education, business or profession,

81. 983 F.2d at 1398-99. See also supra notes 19 and 62 and accompanying text.
82. Friedrich,983 F.2d at 1399.
83. Id. at 1401 (citing In re Bates, No. CA 122-89, High Court of Justice, Family
Div'I Ct., Royal Court of Justice, United Kingdom (1989)).
employment, health, family or merely love of the place spring to

mind as common reasons for a choise of regular abode, and there
may well be others. All that is necessary is that the purpose of
living where one does has a sufficient degree of continuity to be
properly described as settled. 4
The Friedrichcourt adopted this flexible, fact-sensitive approach to

defining "habitual residence," agreeing that it must be distinguished from the
common law concept of "domicile.""3 "To determine the habitual
residence, the court must focus on the8 child,
6
not the parents, and examine
past experience, not future intentions.
The court pointed out that the child was born in Germany and had
lived in Germany all his life except for short vacations to the United
States.87 It was not enough that the mother had always intended to return
to the United States with her child at the end of her tour of duty in
Germany, nor that she had even established citizenship and a permanent
address for her son in the United States.88 The court stated:
Although these ties may be strong enough to establish legal

residence in the United States, they do not establish habitual
residence. A person can have only one habitual residence. On its
face, habitual residence pertains to customary residence prior to
the removal. The court must look back in time, not forward. All
of the factors listed by Mrs. Friedrich pertain to the future.
Moreover, they reflect the intentions of Mrs. Friedrich; it is the
habitual residence of the child that must be determined. . . . Any
84. Quoted in Brian L. Webb and Diana S. Friedman, Address at the North American
Symposium on International Child Abduction, Sept. 30-Oct. 1, 1993.
85. 983 F.2d at 1401.
During the nineteenth and early twentieth centuries, the domicile of the
child provided the sole basis for jurisdiction in custody cases. Although
the domicile theory was advantageous in that it established jurisdiction in
only one state at a time, it was criticized for not taking the child's welfare
into proper account. Critics believed that the state of the child's domicile
was not necessarily the best forum to decide custody ofthe child. Another
state might share an equal or greater interest in the dispute, as well as
greater access to necessary evidence, in which case that state should be
able to exercise jurisdiction.
Rivers, supra note 6, at 595-96 (footnotes omitted).
86. Friedrich, 983 F.2d at 1401.
87. Id.
88. Id.
future plans that Mrs. Friedrich had for [her child] to reside in the
United States are irrelevant to our inquiry."
In Levesque, a federal district court again encountered the issue of

determining the habitual residence of a child brought to the United States
from Germany by the father. 90 In so doing, the Levesque court relied upon
Friedrich and earlier English case law as well. 9 In harmony with
Friedrichregarding the "fluid and fact based" approach to establishing the
habitual residence of the child, the Levesque court found that both parents
intended that the mother and child should leave the United States to live in
Germany.92 Although the length of the time period for the stay in
Germany was left open, there was "a purpose with a sufficient degree of
continuity to enable it properly to be described as settled" that Germany was
to be the habitual residence of the child.93
The analysis of the Levesque court would appear to conflict with that
of Friedrich in one aspect. While the Friedrichcourt cautioned against
taking into account the future intentions of the mother to eventually return
with her child to the United States,94 the Levesque court considered the
parents' future plan for the child to eventually return to Germany with his
mother.9" Perhaps the court emphasized its consideration of future
intention in Levesque because both parents had agreed upon the child's
indefinite stay in Germany. Consequently, the agreement rendered the
father's surreptitious removal of the child to the United States a wrongful
act. 96 In contrast, the mother in Friedrichappeared to allege her intent
alone to return with her child from Germany to the United States, which
apparently conflicted with the intentions of the father. 97 The Friedrich
court stated:
The district court ... found that [the child]'s habitual residence
was 'altered' from Germany to the United States when Mr.
Friedrich forced Mrs. Friedrich and [their child] to leave the
family apartment. Habitual residence cannot be so easily
altered .... [The child]'s habitual residence in Germany is not
89. Id.
90. 816 F. Supp. at 663. See also supra note 62 and accompanying text.
91. 816 F. Supp. at 666.
92. Id.
93. Id. (quoting Bates, supra note 83).
96. 816 F. Supp. at 666.
97. 983 F.2d at 1401.
IND. INT'L & COMp. L. REV. [Vol. 5:171
predicated on the care of protection provided by his German

father nor does it shift to the United States when his American
mother assumes the role of primary caretaker. [The child]'s
habitual residence can be 'altered' only by a change in geography
and the passage of time, not by changes in parental affection and
responsibility .... If we were to determine that by removing [the
child] from his habitual residence without Mr. Friedrich's
knowledge or consent Mrs. Friedrich 'altered' [the child]'s
habitual residence, we would render the Convention meaningless.
It would be an open invitation for all parents who abduct their
children to characterize their wrongful removals as alterations of
habitual residence.98
After the Friedrichdecision was handed down, another federal court

case, Ponath,utilized the same analysis in addressing the habitual residence
issue. In so doing, the Ponath court relied upon Levesque and prior English
case law.99 In Ponath, the father invoked the Hague Convention, alleging
that the mother had wrongfully removed the child from Germany to the
United States."°° The court stated:
[T]he more credible testimony ... is that of [the mother] who

testified that she, and the minor child, were detained in Germany
against her desires by means of verbal, emotional and physical
abuse. The court cannot conclude under such circumstances that
[the mother] and the minor child were habitually resident in
Germany within the meaning of the Hague Convention. Although
it is the habitual residence of the child that must be determined,
the desires and actions of the parents cannot be ignored by the
court in making that determination when the child was at the time
of removal or retention an infant. The concept of habitual
residence must, in the court's opinion, entail some element of
voluntariness and purposeful design. Indeed, this notion has been
characterized in other cases in terms of 'settled purpose.""1
Thus, it is clear that the Ponath court considered all the facts and
circumstances (including the actions of the father in using physical means
to coerce the mother and child to remain in Germany) in determining
whether there was a sufficient "settled purpose" as to the child's habitual
98. Id. at 1401-02.

99. 829 F. Supp. at 365.
100. Id. at 364.
101. Id. at 367.
residence. The court concluded that there was no wrongful removal because
the father consented to the return of mother and child to the United States,
supported by the fact that the father had made no "meaningful effort" to
seek the child's return to Germany." 2
Unlike the courts deciding Bates and Friedrich," °3 a later decision in
a lower New York state court, Cohen v. Cohen, reflected an effort to define
"habitual residence" through a comparison with "domicile."' °4 However,
it is apparent that the New York court ultimately relied upon the facts and
circumstances of the case in reaching its decision. The Cohen court ruled
that Israel was not the children's habitual residence and refused to allow
relocation of the children to Israel for resolution of the custody dispute.'0 5
The court stated: "The question of whether there has been a change of
domicile is a mixed question of fact and law 'and it frequently depends
upon a variety of circumstances, which differ as widely as the peculiarities
of individuals.""' The court relied upon Meredith, which held earlier
that habitual residence "must be determined by the facts and circumstances
presented in each particular case."'0 7
In Cohen, the court determined that the mother consented only to her
children visiting Israel with their father. The court based its conclusion
upon the fact that the mother, who had always cared for the children, had
no ties with Israel and probably would not have consented to the permanent
move of her children there without accompanying them.' The court also
took into account that there was no farewell party for the children and that
the father took few of the children's belongings with him, indicative of a
short trip rather than a permanent move thousands of miles away." 9
Although courts in the United States appear to differ in some ways in
their approach to the issue of habitual residence of the children-whether
falling back on an analogy with "domicile" or determining the parents'
"settled purpose"-it is apparent that the courts are considering the facts and
circumstances of each case rather than attempting to apply any black letter
rule of law. While this "totality of the circumstances" approach may appear
vague and undefined, its result is an equitable method of determining
habitual residence which permits courts to consider the realities of
distressing situations and extenuating circumstances. In so doing, the courts
102. Id. at 368.

103. See supra notes 84 and 85 and accompanying text.
104. 602 N.Y.S.2d 994, 998 (N.Y. Sup. Ct. 1993).
105. Id. at 999.
106. Id. at 998 (citations omitted).
107. Id. (quoting Meredith, 759 F. Supp. at 1434).
108. 602 N.Y.S.2d at 999.
109. Id.
IND. INT'L & COMP. L. REV. (Vol. 5:171
are not determining the merits of the underlying custody disputes;"..

rather, the establishment of the habitual residence of these children is merely
a step in addressing whether the children have been wrongfully removed, in
keeping with the objectives of the Hague Convention."' After all, where
there is no habitual residence, there can be no wrongful removal.
b. The Exercise of Custody Rights
Another threshold requirement of the Hague Convention which must

be met before a court will order the return of a child is found in Article
3.112 This condition, pertaining to custody rights, is a two-step inquiry.
First, a breach of a parent's custody rights must have occurred under the law
of the child's habitual residence." 3 Second, at the time of the wrongful
removal or retention, the parent from whom the child is taken must have
been actually exercising those custody rights." 4
Under the ICARA, the parent petitioning for return of the child has the
burden of proving by a preponderance of the evidence that (1) the removal
or retention was wrongful under the law of the country of habitual
residence, and (2) he or she actually possesses visitation rights." 5
Furthermore, Article 5 of the Hague Convention provides that rights of
custody shall include "the right to determine the child's place of
residence." ' 6 Therefore, when a child is abducted from a caretaker
entrusted with the child's care, the custodial parent is entitled to invoke the
provisions of the Hague Convention."' Also, it is presumed that the
parent with custody of the child was actually exercising it. "' Article 13
of the Hague Convention places the burden of proof upon the abducting
parent to show that the petitioning parent was not actually exercising
custody rights at the time of the removal or retention." 9
110. "The [Hague] Convention and this chapter empower courts in the United States
to determine only rights under the Convention and not the merits of any underlying child
custody claims." 42 U.S.C. § 11601(b)(4).
112. See Hague Convention, supra note 10, at 1501. See also supra note 14.
113. See supra note 14.
114. Id.
115. 42 U.S.C. § 11603(e)(1).
117. Legal Analysis, supra note 14, at 10,507.
118. Id.
119. Hague Convention, supra note 10, at 1502; Legal Analysis, supra note 14, at
10,507.
An examination of case law dealing with the issue of custody rights

indicates that courts in the United States are careful to ensure that those
rights are determined by the law of the child's habitual residence. Perhaps
the best example of a court's rigid adherence to this aspect of the Hague
Convention can be found in Friedrich.'20 In this case of a family living
in Germany, the father had allegedly ordered his wife to take their son and
leave, putting most of their belongings into the hallway of the apartment
building.' The cost of residing on the military base with her son was too
expensive for Mrs. Friedrich, 2 and she was unable to find other living
accommodations within her budget in Germany. 23 So, without the
permission, consent, or knowledge of the father, Mrs. Friedrich returned to
the United States with her son. 2 4 Consequently, in response to the
father's petition for the return of his son under the Hague Convention, Mrs.
Friedrich argued that her husband was not exercising custody rights when
she brought her child to the United States.'
First, the Friedrich court expressed doubt that the father had
"unilaterally expelled Mrs. Friedrich and [their son] from the family
apartment.' ' 26 The court noted that Mr. Friedrich continued to maintain
contact with his son and helped Mrs. Friedrich establish initial living
quarters on the U.S. Army base.' 7 Next, the court stated:
Under the [Hague] Convention, whether a parent was exercising

lawful custody rights over a child at the time of removal must be
determined under the law of the child's habitual residence ...
We have determined that [the child] was a habitual resident of
Germany. . . . Neither the district court, nor either party on
appeal, applied German custody law to the above facts. ... We
would be surprised if Mr. Friedrich's actions terminated his
custody rights under German law, but we do not make that factual
determination. Instead, we remand to the district court with
instructions to make a specific inquiry as to whether, under
German law, Mr. Friedrich was exercising his custody rights at the
120. 983 F.2d 1396.

121. Id. at 1399.
122. Recall that Mrs. Friedrich was a member of the United States Army stationed in
Germany. See supra text accompanying note 81.
123. Friedrich,983 F.2d at 1399.
124. Id.
125. Id. at 1398.
126. Id. at 1402.
127. Id.
time of [his son]'s removal.' 28
The dissent disagreed with the ruling to remand the case for
determination of custody rights under German law, believing instead that
testimony by both the mother and father supported the district court's
finding that the father was not exercising his custody rights. 2 9 Judge
Lambros argued that only a clearly erroneous finding of fact by the district
court could be set aside on appellate review, and that the appellate court
should not reverse "simply because it is convinced that it would have
decided the case differently."' 30 However, as the majority emphasized, the
lower court could not determine the father's exercise of custody rights
without first applying the proper law regarding those rights. In this case,
German law was appropriate. 3 '
In this instance, the Friedrichcourt remained faithful to the mandates
and objectives of the Hague Convention. If the lower court was to
subsequently apply German law and conclude that Mr. Friedrich was
exercising custody rights at the time his son was removed from Germany,
then the Hague Convention would mandate the return of the child to
Germany for disposition of the custody dispute.
Tyszka v. Tyszka presents another good example of a state court
heeding the dictates of the Hague Convention.' A lower court held that
a father wrongfully retained his children in the United States in violation of
the Hague Convention, and it ordered that they be returned to their mother
in France "until such time as the appropriate French court adjudicates the
issue." 133
Notwithstanding the ruling that the French judiciary should decide the
outcome of the custody dispute, the trial court awarded joint legal custody
to both parents in a later divorce and custody action. 34 On appeal, the
higher court agreed with the mother that the custody decision should have
been left to the French courts, and it vacated the custody portion of the trial
court's order.' The appellate court emphasized that where a wrongful
retention is found and the exceptions of Article 13 do not apply, the court
128. Id. (citation omitted).

129. Id. at 1403 (Lambros, J.,dissenting).
130. Id.
131. Id.
132. 503 N.W.2d 726 (Mich. App. 1993).
133. Id. at 727.
134. Id.
135. Id. at 728.
"shall order the return of the child forthwith."'' 36

A New York court encountered the custody rights issue when a mother
violated a Canadian court order by taking her children to the United States
shortly after the birth of her daughter.' Prior to their daughter's birth,
the couple had separated. The separation agreement granted custody of their
older son to the mother and visitation rights to the father.' The
agreement also provided that the mother make the son available to the father
for visitation purposes within the Toronto area. 3 9 However, the
separation agreement was silent as to the then-unborn daughter. 4 °
After the daughter's birth, the father obtained an interim order from
a Canadian court prohibiting the mother from moving the children from
Ontario.' 4' Despite the order, the mother moved with her children to
Brooklyn. 4 2 The Supreme Court of Canada ruled that the mother
wrongfully removed the children from the jurisdiction.'43 As a result, the
father brought an action in the New York court for return of his
children. 144
In ordering the mother to return with her children to Canada, the New
York court took judicial notice of Ontario law regarding child custody.'45
The court stated:
Respondent's [the mother's] contention that the petitioner [the

father] is not entitled under the Hague Convention to have their
son returned, because he only had visitation ('access') rights and
not custody, might have some merit but for the respondent's
contemptuous conduct, and the subsequent orders of the Supreme
Court of Ontario. . . . Moreover, respondent's argument overlooks
the fact that their daughter was not included in the provisions of
the separation agreement. Therefore, the petitioner had an equal
right to custody of their daughter when the respondent left
Ontario. Under ...ICARA, this Court can find there was a
136. Id. (quoting Article 12 of the Hague Convention, supra note 10, at 1502).
Exceptions under Article 13 whereby a court has the discretion to return a child to his or her
habitual residence are discussed below.
137. David S. v. Zamira S., 574 N.Y.S.2d 429, 430-31 (N.Y. Farn. Ct. 1991).
138. Id. at 430.
139. Id.
140. Id.
141. Id.
142. Id. at 431.
143. Id.
144. Id.
145. Id. at 432.
'wrongful removal' in the absence of any formal declaration of

custody. 146
This small sampling of recent case law addressing the issue of custody
rights under the Hague Convention demonstrates that courts in the United
States are cognizant of the treaty's objective, whereby the country of the
child's habitual residence should resolve custody disputes. This goal is
justifiable and logical because it considers the probability that courts in the
child's nation of habitual residence are better equipped to deal with the
merits of custody issues. This is due to the availability of evidence and
witnesses concerning the child's home life in the child's habitual residence.
Family and other state courts, accustomed to hearing evidence on and
deciding the merits of custody disputes, must remain especially prudent
when finding a wrongful removal or retention under the Hague Convention.
c. Age of the Child
Besides the two requirements pertaining to establishment of the child's

habitual residence and the parents' custody rights under the laws of that
country, there is a third threshold requirement which must be met before a
court may invoke the Hague Convention. Article 4 provides that the Hague
Convention no longer applies once the child reaches the age of 16
years.147 Even where a child is under 16 at any point during the
proceedings--whether it be at the time of the wrongful removal or retention,
or when a petition for the return of the child is filed-the treaty will cease
to apply once that child reaches the age of 16.148
Accordingly, the Hague Convention would not be applicable in the case
of an older child, even though that child may be mentally or physically
dependent on a parent. 49 However, the fact that the treaty ceases to be
effective once the child reaches the age of 16 does not prevent a country (or
a state within the United States) from applying other local or state principles
and laws. 50
146. Id. See also supra note 67 regarding another case where a mother's actions in
contempt of a court's order also resulted in her loss of rights under the Hague Convention.
149. Shirman, supra note 6, at 214.
150. Copertino, supranote 12, at 731-32. See also Legal Analysis, supra note 14, at
10,504 ("Absent action by governments to expand coverage of the Convention to children
aged sixteen and above ... the [Hague] Convention itself is unavailable as the legal vehicle
for securing return of a child sixteen or older. However, it does not bar return of such child
1994] 9HAGUE CONVENTION
For example, Article 18 of the Hague Convention states that "[t]he

provisions of this Chapter do not limit the power of a judicial or
administrative authority to order the return of the child at any time."''
Therefore, a court could authorize the return of a child for any reason under
other laws, procedures, or comity, whatever the child's age.' 52 Also,
Article 29 of the Hague Convention permits a person to circumvent the
treaty altogether by invoking any other applicable law for the child's
return. 153 Finally, Article 34 permits flexibility as well, providing that the
country or state may obtain the child's return or arrange visitation rights by
applying any local applicable law. 54
3. Exceptions to the Hague Convention
The Hague Convention is not necessarily the exclusive means by which

a parent may seek legal relief for the return of a child; the treaty provides
some built-in versatility for the courts.' 5 Besides allowing for application
of other laws, the Hague Convention provides exceptions whereby a parental
abductor may avoid application of the treaty altogether. Such an evasion is
possible under a court's discretion, even where a wrongful retention or
removal has been determined under the laws of the child's habitual
residence.
These broad exceptions may be subject to misuse by the courts unless
they are strictly construed to avoid frustration of the Hague Convention's
by other means.")
153. id. Article 29 states: "The Convention shall not preclude any person, institution
or body who claims that there has been a breach of custody or access rights . . . from
applying directly to the judicial or administrative authorities of a Contracting State, whether
or not under the provisions of this Convention." Hague Convention, supranote 10, at 1504.
154. Legal Analysis, supra note 14, at 10,504. Article 34 states:
This Convention shall take priority in matters within the scope over the
Convention of 5 October 1961 concerning the powers of authoritiesand
the law applicable in respect of the protection of minors, as between
Parties to both Conventions. Otherwise the present Convention shall not
restrict the application of an international instrument in force between the
State of origin and the State addressed or other law of the State addressed
for the purposes of obtaining the return of a child who has been
wrongfully removed or retained or of organizing access rights.
Hague Convention, supra note 10, at 1504.
155. See supra notes 72, 149-153 and accompanying text.
objectives.' 56 When confronted with affirmative defenses under these

exceptions, however, it appears that courts in the United States are aware
that they must sparingly exercise their discretion in order to safeguard those
objectives.' 57 A discussion of these discretionary exceptions follows.
a. Grave Risk of Physical or PsychologicalHarm
Article 13(b) of the Hague Convention provides:
[T]he judicial or administrative authority of the requested State is

not bound to order the return of the child if the person, institution
or other body which opposes its return establishes that -- ...
b there is a grave risk that his or her return would expose the
child to physical or psychological harm or otherwise place the
child in an intolerable situation.... 59
This discretionary exception, like others in the treaty, is the result of

a compromise concerning differences in legal systems and family law
principles of the countries involved in negotiating the treaty. 159 "[I]t was
generally believed that courts would understand and fulfill the objectives of
the Convention by narrowly interpreting the exceptions and allowing their
use only in clearly meritorious cases,60and only when the parent opposing
return had met the burden of proof.'
Under the ICARA, a parent opposing the return of the child to the
habitual residence has the burden of proving his defense under Article 13(b)
by the standard of clear and convincing evidence.' 6' This establishes a
higher burden of proof for the parental kidnapper than that which is required
for the parent seeking return, who must prove by a preponderance of the
evidence that a child has been wrongfully removed or retained 162 or that
the parent has visitation rights. 163 However, this difference in the burdens
of proof between that required of the parental abductor and the parent
156. See supra note 58 and accompanying text. See also Rivers, supra note 6, at 624;
Shirman, supra note 6, at 215-16; Helzick, supra note 20, at 145.
157. See supra text accompanying note 64.
159. Legal Analysis, supra note 14, at 10,509-10.
160. Id. at 10,509.
161. 42 U.S.C. § 11603(e)(2)(A).
162. 42 U.S.C. § 11603(e)(1)(A).
163. 42 U.S.C. § 11603(e)(1)(B).
seeking return appears consistent with the objectives of the Hague

Convention.
A lower burden of proof for the parent seeking return simplifies the
means by which the child can be returned to his habitual residence, where
the laws of that country can be applied to resolve the custody dispute. At
the same time, a higher standard of proof for the parental abductor assures
that a court will return a child to the habitual residence unless the parental
kidnapper is able to present more than general or negligible evidence that
the child will likely be harmed if returned.
Also, determining the habitual residence of the child and a breach of
parental custody rights is a simple and straightforward factual inquiry, for
which proof by preponderance of the evidence is sufficient. In contrast,
establishing that an intolerable situation or a grave risk of psychological or
physical harm awaits the child upon return to the habitual residence involves
an inquiry into a more emotional kind of evidence. To conclude that such
a grave risk exists, the court must inquire into the merits of the underlying
custody dispute, which is contrary to the overriding objective of the Hague
Convention."6 Thus, to justify such an inquiry, the parental abductor
should be required to meet a higher burden of proof before the court
exercises its discretion to block the return of the child.
Yet, American sensibilities favor the Article 13(b) exception.
Moreover, the premise of the Hague Convention is to reduce or deter the
emotional trauma of parental abduction.' 65 If the child is to be the
beneficiary of this treaty's effects, the Hague Convention should protect the
child where invocation of the international law would result in greater
emotional trauma. The discretionary exception appears especially
appropriate where new evidence comes to light, or where the court in the
child's habitual residence cannot or will not consider such evidence when
deciding a custody dispute. 166
164. See supra text accompanying notes 65-71.

165. See supra note 5.
166. But see Shirman, supra note 6, at 218-19.
Although an abducting parent has established by clear and convincing
evidence that the return of the child would expose him or her to an
intolerable situation or grave risk of psychological or physical harm, return
should not be denied automatically. Instead, the child should be returned
to the custody of a third party in the state of the child's habitual residence.
The courts in that state would then be responsible for resolving the issue,
and either ordering the return of the child to the original custodial parent
or modifying the custody decree.
Id. However, attention must be focussed upon the child in this situation. Ordering the child
back to another country to be placed in a third party's hands (which could be either a foster
A study of relevant case law addressing the Article 13(b) exception

shows that American courts are cautious in applying discretion to return the
child. For example, one court went so far as to interview the child in
camerabefore ruling on the defense. The court found nothing in either the
interview or other evidence presented by the opposing parent to indicate that
the child would be exposed to psychological or physical harm if returned to
his habitual residence.' 67
An earlier California opinion addressed the same issue. Only eight
days after the father filed a petition, the court ordered the return of the
children from the United States to his custody in Spain. This order came
despite testimony of a court-appointed doctor that the daughter might face
the risk of permanent psychological damage if returned. 6 ' The court was
swayed by the doctor's testimony that the negative effects of a return to
Spain would be lessened if the mother returned with them, which she had
already agreed to do. 69
In rendering its judgment, the court stated:
The [Hague] Convention exception in this area speaks of

'exposing' the children to psychological harm by return to the
country of habitual residence. In this sense, this court firmly
believes that neither child will be 'exposed' to harm by returning
the children to Spain. Certainly one must be a realist and
understand that any abducted child will suffer trauma to some
extent when moved about the world by an ill-advised parent. But
returning the children to Spain will serve, in this court's opinion,
to allow the Spanish courts to determine what is in the best
interest of the children .... To retain the children in the United
States guarantees that the mother will continue to frustrate the
home or some type of foster-care institution) would only result in even more disruption in
the short life of a young child, especially where the court has good reason to believe that the
child has already experienced an emotionally traumatic family life. Furthermore, it may be
unnecessary to order the child back. The court ordering the child back will doubtless make
available to the courts of the child's habitual residence the reasons for finding clear and
convincing evidence of the risk of grave harm. Thus, the court in a child's country of
habitual residence may simply order the return of the child. Where a court is convinced that
a grave risk of harm awaits the child upon return, but that the child is comparatively safe and
happy with the parental kidnapper, the only fair decision would be not to return the child,
and to permit both the mother and child to get on with the rest of their lives.
167. Sheikh, 546 N.Y.S.2d at 521.
168. Navarro v. Bullock, No. 86481 (Cal. Sup. Ct. Sept. 1, 1989), reportedin 15 FLR
1576, 1577 [hereinafter Navarro].
169. Id.
1994) HAGUE CONVENTION
custodial and visitation rights of the father, and to undermine his

relationship with his children. . .. To allow this to happen would
be to allow [the] mother to profit by her own wrong, and to
continue to damage the children psychologically by her
unwillingness to allow the father access to his children. 70
The court in Tahan also undertook an analysis of the Article 13(b)

exception when Fred, the father, invoked this defense to the return of
Kareem from the United States to his mother in Canada. 17 ' Evidence such
as psychological profiles, evaluations of parental fitness, and lifestyle and
relationships was offered in support of invoking the exception.' 72 The
Tahan court pointed out that Article 13 permits inquiry into the
surroundings and the basic personal qualities of the people to whom the
child will be exposed in determining whether apprehensions for the child's
safety and welfare upon return are realistic and reasonable. 73 The court
commented, "Here, however, the [father] indicated no intention to address
the surroundings .... Every element of his proffer went to issues which...
may only be addressed in a plenary custody proceeding in Quebec.'. 74
Thus, the Tahan court acknowledged that "Article 13b requires more
than a cursory evaluation of the home jurisdiction's civil stability and the
' 75
availability there of a tribunal to hear the custody complaint."'
Nevertheless, it limited the type of evidence which may be heard to that
pertaining to the surroundings to which the child would be exposed upon
return. 176
Thus far, it appears that courts in the United States have recognized the
danger of giving too broad an interpretation to the Article 13(b) exception.
Hopefully, U.S. courts will continue to follow England's example and "act
with ... sensitivity and
77
dispassion" when deciding whether to exercise this
discretionary power.
b. Protection of Human Rights and FundamentalFreedoms
Another discretionary exception to application of the Hague Convention

is found in Article 20, which provides that "[t]he return of the child ...
170. Id.
171. 613 A.2d at 489.
172. Id.
173. Id.
174. Id.
175. Id.
176. Id.
may be refused if this would not be permitted by the fundamental principles

of the requested State relating to the protection of human rights and
fundamental freedoms." 178 As with the Article 13(b) exception discussed
above, the ICARA requires that a parent opposing the return of a child
79
under Article 20 meet the burden of clear and convincing evidence.
Although the Article 20 exception has not been addressed in reported
U.S. case law and there is no precedent in other international agreements to
guide the courts, it is intended, like Article 13(b), to be narrowly
interpreted. 8 0 It appears that the treaty may not have survived the
negotiating process without the addition of this public policy exception.'"'
"To prevent imminent collapse of the negotiating process ... there was a
swift and determined move to devise a different provision that could be
invoked on the rare occasion that return of a child would utterly shock the
conscience of the court or offend all notions of due process."' 82
This provision is not intended to be an automatic default device when-
ever it is raised as a defense. The parental abductor first must show that the
fundamental principles of the country where the child has been taken will
not permit the return. It is not enough to show that the return would be
"incompatible, even manifestly incompatible, with these principles."'8 3
In addition, the country hearing the petition may not exercise the
Article 20 exception "any more frequently, nor must their invocation be
more readily admissible than they would be in their application to purely
internal matters."'' 8 4 In other words, the courts should avoid
discriminatively invoking this provision more often than a similar exception
85
would be invoked under other laws of that country.1
c. Child's Preference,Age, and Maturity Considered
As noted, the Hague Convention ceases to apply once a child reaches

the age of 16. Courts are then free to apply any other applicable law to
effect the return of the older child.8 6 Article 13 of the treaty also

179. 42 U.S.C. § l1603(e)(2)(A). See alsosupra notes 161-66 for adiscussionof the
differences in burdens of proof required of the parental abductor and the left-behind parent
and why this is consistent with the objectives of the Hague Convention.
181. Id.
182. Id.
183. Id. at 10,511.
184. Id.
185. Id.
contains a provision whereby the wishes of the mature child who 8is7 under
the age of 16 may be taken into account in the court's discretion.1
The parent raising this exception in opposition to the return of a child
to the habitual residence must present a preponderance of the evidence to
prevail.' 8 The burden is lower than that required for other exceptions to
the Hague Convention."8 9 Still, courts are cautioned to watch for undue
influence or "brainwashing" by the parental abductor when considering the
wishes of the mature child.' 90 "A child's objection to being returned may
be accorded little if any weight if the court believes that the child's
preference is the product of the abductor parent's undue influence over the
child."' 9 1
Very little case law has been written which addresses this defense. In
Sheikh, the court carefully rejected the father's assertion that his nine-year-
old son preferred to remain in his custody. 92 The court concluded that
the son's preference was the result of "being wooed by his father during the
visitation. Given Nadeem's 93age and maturity, this reaction to the summer
vacation is to be expected."
Family courts and other lower state courts accustomed to resolving
custody disputes will readily recognize situations where children have been
subject to undue influence by their parental kidnappers. The Hague
Convention provides flexibility where a court feels justified under the facts
and circumstances in giving weight to a mature child's wishes.
d. One-Year Statute of Limitations
Finally, parental kidnappers may be able to escape the application of

the Hague Treaty pursuant to Article 12. Exception is provided where more
187. Legal Analysis, supra note 14, at 10,504. Article 13 states: "The judicial or
administrative authority may also refuse to order the return of the child if it finds that the
child objects to being returned and has attained an age and degree of maturity at which it is
appropriate to take account of its views." See Hague Convention, supra note 10, at 1502.
188. 42 U.S.C. § l1603(e)(2)(B).
189. See supratext accompanying notes 161-64, 178; 42 U.S.C. § 11603(e)(2)(A). See
also Dorosin, supra note 19, at 752. "This reduced burden of proof makes it easier for a
respondent to prevent the child's return from the United States and indicates a retreat from
the U.S. commitment to the essential anti-abducting purpose of the Convention." Id.
(footnote omitted).
191. Id.
192. 546 N.Y.S.2d at 521-22.
193. Id. at 522.
than a year has passed since the wrongful removal or retention and the
parent can show by a preponderance of the evidence that the child is settled
in the new environment. 9 ' This provision may sometimes put the parent
who is seeking return of a child at a disadvantage, particularly where there
is difficulty locating the abducting parent and child.'95 While certain
provisions permit a court to return a child at any time,'96 a judge may be
reluctant to do so once the child has become acclimated to his or her new
surroundings for fear that a return may cause further psychological
97
harm. 1
Once again, courts are warned to apply this one-year limitation
narrowly, in that "nothing less than substantial evidence of the child's
significant connections to the new country is intended to suffice to meet the
respondent's burden of proof."' 98 Furthermore, courts are urged to
consider the reasons for any delay in filing a petition, particularly where the
parental abductor has caused a long search by concealing the child's
presence.' 99
The limited case law in this area pinpoints the accrual of the action as
the time of the wrongful removal or retention. In other words, where a
parent takes physical custody of a child pursuant to a lawful visitation
period, the one-year period will commence at the end of the visitation
period, as there can be no wrongful removal or retention during the
visitation.200 U.S. courts should continue to carefully apply this one-year
limitation for filing a petition, considering extenuating circumstances when
applicable.
194. Hague Convention, supra note 10, at 1502. Article 12 provides:

Where a child has been wrongfully removed or retained ... and, at the
date of the commencement of the proceedings before the judicial or
administrative authority of the Contracting State where the child is, a
period of less than one year has elapsed from the date of the wrongful
removal or retention, the authority concerned shall order the return of the
child forthwith.
The judicial or administrative authority, even where the proceedings have
been commenced after the expiration of the period of one year referred to
in the preceding paragraph, shall also order the return of the child, unless
it is demonstrated that the child is now settled in its new environment....
Id. See also 42 U.S.C. § 11603(e)(2)(B).
195. Shirman, supra note 6, at 214.
197. See generallyCopertino,supranote 12, at 729-30; Helzick, supranote 20, at 143-
45.
199. Id.
200. See Duquette, 600 A.2d at 475; Navarro, supra note 168, at 1576.
Ultimately, concern must focus on the child. However unfair the

actions of a parental abductor may appear, it may be unjust to order a
child's return to the habitual residence if it would cause greater emotional
harm or trauma.
III. CONCLUSION
The emotional distress of a marital separation or breakup is often

devastating to a child. The potential for trauma is intensified when one
parent resorts to the self-help remedy of abduction and takes the child to a
foreign country. The Hague Convention was drafted to protect children
from the harmful effects of parental kidnappings. The treaty provides an
effective legal device for return of the abducted child to the habitual
residence. It is vital that more nations adopt the treaty to decrease the
number of "haven" states where parents go to escape the mandates of the
Hague Convention.
It appears that the judiciary of the United States has embraced the spirit
and goals of the Hague Convention by strictly interpreting its provisions to
achieve the prompt return of abducted children whenever appropriate.
Lower courts, therefore, should be cautious when applying certain
exceptions to the Hague Convention. Moreover, appellate courts should
continue to uphold the objectives of the treaty by promptly policing the
actions of the lower courts whenever they deviate from these stated goals.
Peggy D. Dallmann"
* J.D. Candidate, 1995, Indiana University School of Law-Indianapolis; B.S., Ball

State University.

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THE HAGUE CONVENTION

ON PARENTAL CHILD ABDUCTION:

A Canadian court issued a divorce judgment terminating the marriage

inherent in domestic legislation in the United States and the propensity of

Legislation implementing the Hague Convention, the International Child

12. Monica Marie Copertino, Comment, Hague Convention on the CivilAspects of

15. 42 U.S.C. § 11601(a)(1), (4).

II. ENFORCEMENT OF THE HAGUE CONVENTION

Parental abduction is a troubling and emotionally devastating event,

employment. As a result, many eventually return to the United States.28

inter-marriages.36 In addition, increased immigration and the ease of

B. Effectiveness Increases as Number of Signatories Grows

One interesting conclusion from the recent United States study

[O]ur findings suggest that the Hague Convention is an important

As noted previously, many of the legal uncertainties and difficulties of

42. See supra notes 7 & 23 and accompanying text.

on October 25, 1980.52 The number of signatory nations grew to fourteen

C. Where Are U.S. Courts Headed?

The [Hague] Convention operates on the assumption that courts

52. Letter of Submittal, supra note 11, at 10,496.

remains to be seen if courts of the United States, where the

The above commentary by a U.S. lawyer59 accompanied his summary

1. Objectives of the Hague Convention

[T]he person who wrongfully removes or retains the child in a

Article 16 appears to complement the above purpose in returning the

65. Hague Convention, supra note 10, at 1501.

Hence, Article 16 specifically requires courts not to delve into the

a. Grappling with "HabitualResidence"

Article 4 of the Hague Convention requires that "[t]he [Hague]

No definition of 'habitual residence' has ever been included in a

79. Hague Convention, supra note 10, at 1501.

employment, health, family or merely love of the place spring to

The Friedrichcourt adopted this flexible, fact-sensitive approach to

Although these ties may be strong enough to establish legal

In Levesque, a federal district court again encountered the issue of

predicated on the care of protection provided by his German

After the Friedrichdecision was handed down, another federal court

[T]he more credible testimony ... is that of [the mother] who

98. Id. at 1401-02.

102. Id. at 368.

are not determining the merits of the underlying custody disputes;"..

b. The Exercise of Custody Rights

Another threshold requirement of the Hague Convention which must

An examination of case law dealing with the issue of custody rights

Under the [Hague] Convention, whether a parent was exercising

120. 983 F.2d 1396.

time of [his son]'s removal.' 28

128. Id. (citation omitted).

"shall order the return of the child forthwith."'' 36

Respondent's [the mother's] contention that the petitioner [the

'wrongful removal' in the absence of any formal declaration of

c. Age of the Child

Besides the two requirements pertaining to establishment of the child's

For example, Article 18 of the Hague Convention states that "[t]he

3. Exceptions to the Hague Convention

The Hague Convention is not necessarily the exclusive means by which

objectives.' 56 When confronted with affirmative defenses under these

a. Grave Risk of Physical or PsychologicalHarm

Article 13(b) of the Hague Convention provides: