Orlando Cruz ALWR

8/7/2019 Orlando Cruz ALWR

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RECOGNIZING THE NEED FOR AMERICA TO FOLLOW THE LEAD OF THE

INTERNATIONAL COMMUNITY: THE 1980 HAGUE CONVENTION ON THE CIVIL ASPECTS

OF INTERNATIONAL CHILD ABDUCTION

TABLE OF CONTENTS

INTRODUCTION...1

OVERVIEW OF THE HAGUE CONVENTION ON CHILD ABDUCTION 3

Historical Perspective Case for Return...1

The Central Authority.....6

Convention Limitation6

Establishing the Prima Facie Case for Return....7

APPLICATION OF THE CONVENTION IN THE UNITED STATES. .8

International Child Abduction Remedies Act....8

The Grave Risk Problem in America .9

Blondin v Dubois9

Friedrich v Friedrich 11

Walsh v Walsh 12

THE IMPORTANCE OF INTERNATIONAL COMITY IN CONVENTION CASES

.16

The Other Problem ne exeat 17

THE CONCURRENT PROBLEM .21

Eliminating Concurrent Jurisdiction of Convention Cases in the United .........21

International Efforts limiting Convention Jurisdiction to select Courts 24

CONCLUSION .25


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need for International comity follows in Part IV. Lastly, Part V, the reason the United States stresses

the need to be receptive to other nations laws and culture when deciding abduction matters under the

Convention

I. OVERVIEW OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF CHILD

ABDUCTION

On October 6, 1980, 23 nations from across the globe convened in the Netherlands, and adopted

the Hague Convention on the Civil Aspects of International Child Abduction hereinafter the

Convention. The international community recognized the harmful effects of wrongful removal or

retention of children by parents seeking to find a more favorable forum to litigate custodial issues. The

primary purposes of the Convention were to deter individuals from committing international child

abduction and establish procedures that would aid the signatories of the convention to ensure the

prompt return of children to their country of habitual residence, and to secure rights of access for

parents. Prior to the adoption of convention by many parents resorted to retrieving the abducted child

by force, subterfuge, leaving some parent facing criminal charges in the country that the child was

abducted to.

Since the Convention was adopted by the Original member states in 1980, 58 additional nation

states have become either new member states or party states to the Convention. The distinction

between the two is of significant. Though, the Convention consists of 81 signatory nations, the

agreement is not in force between all signatories of the Convention. Only the countries that were part

of the Hague Conference in 1980, who have subsequently ratified, or accepted the Convention have

automatic binding treaty rights. All countries who have since become new Member States or Party

States to the Convention must have their accession to the Convention expressly accepted by both


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individual Member and Party states to be in force. Thus, for example, a parent from Trinidad and

Tobago seeking to file Hague Petition in the United States will fail since the United States has not

recognized Trinidads accession to the Conference.

Even when Contracting states, those states where binding treaty exist under the Conference, a

court will not consider any issue other than whether a child has been improperly removed. By

operation of the convention, a contracting states court has the authority to determine the merits of an

abduction claim, but not the merits of the underlying custody dispute. In essence, a proceeding brought

under the Convention, only determines what nation will be the forum for any custodial or visitation

dispute.

A parent seeking return of child may do so by filing a claim directly in the proper court in the

country where the child was abducted. In many instances, this direct method of seeking the return of a

child is seldom utilized, since some parents may have difficulty locating the exact where abductors of

the abductor or the child. The more common approach of obtaining the remedy of return sought by a

parent is by filing an application with the designated Central Authority of the country where the child

was abducted from, or where the country where the child was abducted to.

A. The Central Authority

The Convention mandates that all Contracting Parties to the Convention maintain a Central

Authority. In the United States, the Central Authority is the U.S Department of State. The Central

Authoritys role is cooperate with the Central Authorities of sister states, to locate children who have

been wrongfully removed, to attempt to secure the voluntary return of the child or facilitate a resolution

of the issues, to exchange information relating to the social background of the child, to provide general

information concerning the law of the contracting state, to initiate or facilitate proceedings before the


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courts or administrative authorities to obtain the return of the child, to otherwise facilitate proceedings

by providing translation services, access to legal services and to keep other states informed as to the

progress of cases. However, the Central Authority makes no decisions that bear legal ramifications;

any and all legal proceedings are handled by a court with proper jurisdiction.

B. Convention Limitations

Central to Convention is the notion that removal of the children from their habitual residence

deprives the child and the parties of custody determinations where the evidence concerning the child is

likely to be more accessible. The Convention does not contemplate that courts ruling on applications

for return will become involved in actual custody determinations. Although, the best interest of the

child is the global consideration when determining an award of custody in most U.S jurisdiction, the

Convention specifically prohibits courts from engaging in custody determinations until such time as

there has been a determination that the child will not be returned, or the time for lodging and

application has passed.

C. Establishing a Prima Facie Case for Return

The Convention provides that if a petitioner successfully pleads a prima facie case, the child

must be returned unless the respondent can prove that an affirmative defense applies. See Section III.

The petitioner must demonstrate the prima facie case by a preponderance of the evidence.

The elements of a prima facie case are enumerated in Articles 3 and 4 of the Convention.

Courts have recognized that a petitioner establishes a prima facie case if he or she proves three

elements: (1) prior to removal or wrongful retention, the child was habitually resident in a foreign

country; (2) the removal or retention was in breach of custody rights under the foreign countrys law;

and (3) the petitioner actually was exercising custody rights at the time of the removal or wrongful


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retention. If the petitioner establishes a prima facie case, the abducted child must be returned to his or

her parents country of residence. In the United States, there have been a number of instances where

rulings of Convention cases do not correspond with the objective of the Convention, nor have these

ruling created the type of case law precedence that lead to uniformity in interpretation.

II. APPLICATION OF THE CONVENTION IN THE UNITED STATES

A. International Child Abduction Remedies Act.

In the United States, Congress enacted the International Child Abduction Remedy Act

(ICARA), giving force to every Article in the Convention. ICARA provides a federal civil action for

enforcement of convention claims and establishes concurrent and state jurisdiction over the

adjudication of such petitions. Congress felt the need to include and collaborate with the states because

family law has by tradition been in the domain of state courts. Because of this the rules and procedures

followed will depend on the specific State and whether the case was heard at the Federal or state court.

This grant of power to state courts by Congress raise several questions relative to the states handling of

international matters that will be addressed later in this Article.

ICARA further provides judicial remedies in addition to the provisions of the Convention.

Notably ICARA explicitly states the court in which in action is broughtshall decide the case in

accordance with the Convention. This provision has been the source of some frustration due to fact that

some courts have adhered to this provision while, other courts have looked more to Article 30 of the

Convention for guidance in decision making.

B. The Grave Risk Problem in America

The Convention provides a limited number of defenses that a respondent may assert to

challenge the return of child to their home country. By far the grave risk exception of Article 13(b)


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of the Convention is raised more often than any of the defenses available to a respondent under the

Convention. The defense in requires that the respondent establish that there is a grave risk that a

[childs] return would expose the child to physical or psychological harm or otherwise place the child

in an intolerable situation. In the United States the respondent who opposes the return has the burden

to show by clear and convincing evidence that the child will be exposed to a grave risk of harm. The

resulting case law on the matter is constantly changing both here in United States and abroad. The

following three cases present mixed applications of exception, applications which have raised concern

in the international community.

1. Blondin v Dubois

InBlondin v Dubois, the father, a French citizen of two children born out of wedlock filed a

petition under the Convention seeking return of his children to France from the mother who had

abducted the children to New York. After a number of incidents of the mother leaving the couples

home in France after allegations of abuse, but prior to her departure to United States, the father

commenced an action in France to obtain custody of his child. The French court, issued an order

declaring that the parental rights over the child will be exercised in common by both parents with the

childs residence being that of the father. Additionally, the French court provided that if the mother did

not reside at the familys residence, she would be entitled to regular visitation with the child. Four

years after the French custody proceeding, the mother in violation of the court order, and without the

knowledge or consent of the father fled the country with the couples two children.

The U.S district court hearing the fathers petition, found that the children would be placed at a

grave risk of physical harm if they were returned to France. In considering the issue, the district court

factored into its analysis the impracticability of sending the children back to France because of the


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fathers limited financial means. The Court also declined to send the children back in the custody of

third party pending a decision by a French court of competent jurisdiction, even as the French Ministry

of Justice informed the court that it had taken measures to provide care for the children in the event that

they were returned to France.

The Court of Appeals did not disturb the lower courts finding that a grave risk was present.

Concerned that the grave risk exception could be expanded, the court required the parties to file

supplemental briefs on the subject. The Court asked the Department of State to contact the government

of France to determine its position on the matter, as well the availability of temporary care for the

children pending a custody determination. The Court noted that deference to the forum of the

childrens home state was necessary to preserve the spirit of mutual confidence which is the

Conventions inspiration. The Court stressed that in the exercise of comity that is at the heart of the

Convention the court is required to place its trust in the court of the home country to issue whatever

orders may be necessary to safeguard children who come before it. The Court then remanded the

matter back to the lower court with directions to consider the range of remedies that might allow both

the return of the children to their home country and their protection from harm.

2. Friedrich v Friedrich

InFriedrich v Friedrich, the father filed a petition for the return of his son who had been

abducted from Germany to the United States by the childs mother. The father, a German citizen who

had married a U.S citizen stationed in Germany, resided exclusively with the wife/mother and child in

Germany since the childs birth. After learning of the mothers departure from the country following

an argument, the father commenced an action in the German Family Court and was awarded custody of

the child. Subsequent to the award of custody by the German Family Court the father filed a claim


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under the Convention alleging that his son was wrongfully removed.

The United States District Court hearing the Convention matter denied the fathers claim for the

return of his son, finding that the child was not habitually a resident of Germany. The Court of

Appeals reversed and remanded the lower courts ruling, and after a new hearing the child was ordered

back to Germany. However the lower court stayed the order pending a second appeal, on the condition

that Mrs. Friedrich post a bond.

At the second appeal, Mrs. Friedrich argued that she met the burden of proof as required by

ICARA, showing that the child would be subject to a grave risk of psychological. Mrs. Friedrich

argued that because the child had become accustomed to life in Ohio, and returning the child to

Germany where the father could less readily provide for the child would cause grave psychological

harm. The court disagreed, finding that Mrs. Friedrichs interpretation of the grave risk of harm

exception was far too broad, and would in fact reward the abductor for violating the Convention.

Further, the court noted that only evidence directly establishing the existence of a grave risk would

that would expose the child to physical or emotional harm or otherwise place the child in an intolerable

situation is material to a courts determination.

The evidence presented by Mrs. Friedrich illustrated that child may be subject to nothing more than

adjustment problems, hardly the type of intolerable situation that a review of Convention would reveal.

3. Walsh v Walsh

In Walsh v Walsh, the father an Irish national petitioned for the return of his children who had

been abducted from Ireland to the United States. The couple who first met in Massachusetts and

subsequently had child in the state, the father relocated to Ireland having repeated criminal issues in the

state. During the couples stay in Massachusetts the father was arrested several times due to violence,


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that violence included physical beatings to his wife Mrs. Walsh. Nonetheless, after the father had

become a fugitive, Mrs. Walsh relocated to Ireland and some time thereafter the Mrs. Walsh conceived

another child. However, the in spite of a new child, Mrs. Walsh continued to be a victim of domestic

violence. Mrs. Walsh handled this problem by frequenting bars regularly, and acknowledged that she

had a drinking problem. Mrs. Walsh eventually fled Ireland with the couples two children and a male

companion, after alleging repeated physical abuse to herself and the couples children by Mr. Walsh.

The district court found even after compelling evidence from the mother that she was a victim

of ongoing domestic violence, and that the father was a fugitive from justice in Massachusetts, the

fathers petition should be granted and children returned to Ireland. The court reasoned that although

the father was intemperate and spanked the children for minor childish infractions his treatment did not

amount to the kind of grave risk of harm contemplated in Convention cases. The district court further

noted that whatever treatment that the children were exposed to, it was not an immediate serious threat

that Irish authorities were unequipped to deal with. Moreover, the court stated the fathers status as a

fugitive did not provide for judgment against the father because he was a fugitive from, or otherwise

resisting, a related criminal prosecution. However the trial court stayed the order pending an appeal by

the mother.

The Court of Appeals for the First Circuit affirmed in part and reversed in part the judgments of

the lower court. The Court found that lower courts ruling on Mr. Walshs fugitive status was correct

and thus affirmed. Accordingly, the Court reversed the lower courts judgment finding that the lower

court erroneously required a showing of an immediate serious threat. Further the Court noted that the

Convention only required a showing that the child would be exposed to a grave risk of harm rather

than an immediate risk of harm predicated by lower court. The Court found in Mrs. Walshs case the


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evidence of physical abuse she experienced was sufficient to make a threshold showing of grave risk to

the children, thus satisfy the clear and convincing standard set forth by ICARA.

AlthoughBlondin,Friedrich, and Walsh each involved the applicability of the grave risk

exception of the Convention and are recognized for establishing the standards that determine the

exception, the three cases are distinguishable and applied different standards. First, underBlondin,

before denying return of child on the grave risk defense, the court noted that an investigation should

take place considering all reasonable alternatives to denying a return of the child. In Walsh, the court

determined that investigation of all reasonable alternatives, was not required if the undertakings were

unlikely to be followed or obeyed. UnlikeBlondin, where the court was required to consider French-

law options that allowed the court to comply with the Conventions mandate to deliver the abducted

child back to France. Walshheld that such consideration for possible legal undertakings by petitioner

does not necessarily require courts of the United States, even when the foreign agency, (the Irish Court

System) is able to issue the appropriate order if the petitioner is unlikely to comply with that countrys

order.

Thus, courts are more likely to return a child back to his/her country of habitual residence, even

after of a finding that the child might be subject to a grave risk of harm when effective measures are

taken by the foreign country to prevent physical harm to the child. A federal court retains, the

discretion to return a child, despite the existence of a defense, if return would further the aims of the

Convention. Friedrich is unlikeBlodin and Walsh because it involved the psychological harm

component of the Conventions grave risk defense rather than the physical harm provision. The

Friedrich court differed fromBlodin because its restrictive reading of the grave risk exception hinged

on the courts belief that greater deference should be given to the abducted-from country to respond


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accordingly, if a child is to be return to a dangerous situation. Thus, at the outset, Friedrich

encompassed the idea that courts should not base its decision to return a child back to their home

country as a result of the generic confidence a U.S court may or might not have for that country.

III. THE IMPORTANCE OF INTERNATIONAL COMITY IN CONVENTION CASES

Of critical importance when discussing the grave risk problem and other some other areas of

Convention is the principle of International Comity. International comity can be described as the

recognition that a country will allow within its borders the legislative, executive and judicial acts of

another country, having due regard both to international duty and convenience and to the rights of its

own citizens or of other persons who are under the protection of its laws. In other words, Convention

signatories should interpret this international treaty in a manner that does not undermine the other

countrys law. Adherence to doctrine is likely to produce uniform interpretation of the Convention.

Of the three cases alluded to earlier involving the grave risk exception of the Convention, all

discussed adhering to interpreting the exception narrowly, ultimately, onlyFriedrich

declined to apply

the exception noting that the courts in the abducted from country are as ready and able as [the United

States] to protect children. Blondin applied the exception, alluding to public policy reasons, even

though the French Government expressed its desire to intervene. France was to say the least very

disappointed with the United States handling of the case, and went as far to file suit against Dubois.

This response by France is exactly why comity is so important when dealing with Convention matters.

Decisions likeBlondin may have the detrimental impact of affecting cases abroad when an American

parent files a petition seeking return of a child that was abducted to France. France in fact applied the

grave risk exception to a Convention case involving the return of child to the petitioner is Los Angeles.

The French Court applied the grave risk exception citing that the child would be exposed to a grave risk


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of physical harm as a result of living in the polluted city. This ruling may very well have been Frances

response to the United States for undermining their recommendation that the Blondin child be returned

to France. Ruling such as these completely undermine the Convention objectives and may frustrate

other foreign relations with between nations.

A. The Other Problem (Ne Exeat)

Wrongful removal or retention depends on the existence of a breach of custody rights that are

held by a person, which rights are actually exercised or would have been exercised but for the wrongful

removal. Rights of custody, as defined in the Convention include the right to determine the residence

of the child. Rights of custody does not coincide with any particular concept of custody in domestic

law, but draws its meaning from the definitions, structure an purposes of the Convention

The Convention provides that custody rights may originate from three sources (1) operation of

law, (2) by judicial or administrative decision, or (3) by an agreement of the parties having effect under

the law of the state of the childs habitual residence.

Under the Convention, custody rights are distinguished from rights of access. In Croll v. Croll,

a father filed claim for the return of daughter to Hong Kong pursuant to the Convention. The father

had been married to mother for eight years before they divorced. An order by the Hong Kong court

after the divorce granted Mrs. Croll sole custody, care and control of the daughter and granted Mr.

Croll a right of reasonable access. The order also contained a provision that required Mrs. Croll to

obtain permission to leave the country from a Court in Hong Kong, or with the permission of the father.

Mrs. Croll left the country one year with the child and arrived in New York without the permission

from the Hong Kong Court that issued the order or Mr. Croll.

The Court of Appeals found that the ne exeat clause in the order limited Mrs. Croll's custodial


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power to expatriate Christina, but did not convey any rights of custody within the meaning of the

Convention. The court expressed that Mr. Croll had veto power only, and only over Christina's

expatriation. Judge Sotomayer in his dissenting opinion stated that the majoritys reasoning focused on

the United States concept of custody and not what custodial under the Conventions international

scheme.

Another case where the ne exeat clause of an order was at issue was inFurnes v. Reeves. In

that case the father filed a petition for return of his daughter after she was abducted from Norway by

her mother. The couple divorced after four years of marriage. An agreement, subsequently an order

provided Mr. Furnes with joint custody of the child. Three years later Mrs. Reeves absconded to the

United States without permission from Mr. Furnes. The district court found that Mr. Furnes ne exeat

provision simply conveyed rights of access and as such the court was without jurisdiction to return the

child back to Norway. The Court of Appeals for the Eleventh Circuit disagreed, stating that Mr. Furnes

rights of access were rights of custody under Norwegian law.

More, recently inDuran v Beaumont, an unmarried father, filed a petition for the return of his

child to Chile. The father and mother lived together for three years before they separated. The Chilean

Corporation of Judicial Assistance (Chilean Corporation) in support of the father indicated to the Court

that the father had custody of the child under Chilean law because the child could not leave the country

without his consent. The Court determined that a ne exeat right to determine whether a child will leave

the country does not amount to custody under the Convention. Under the Convention, the father merely

had a right of access and not custody, giving the court no jurisdiction to order the childs return. The

Court noted that even if the Chilean Authority was within its authority to define custody rights, the

district court was not bound to follow it. The dissenting judge objected to the panels refusal to give


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credence to the Chilean Government.

The case is interesting not only for the operation of the Convention, but most of all as an

illustration of the need in developing some uniform mechanism for national courts to determine foreign

law. Here, even with an international treating calling on the Central Authority of a contracting state to

provide an opinion on its own internal law, the court still chosen to ignore this decision in favor or its

own precedent. What develops then is an intricacy of foreign law concepts in U.S courts, which tend to

be applied over and over again in different cases often erroneously.

The Eleventh Circuit opinion inFurnes should represent the United States position when

analyzing whether a party has right of custody. There is strong international support for a broader

interpretation of ne exeat rights under the Convention such as the interpretation reached in Furnes. The

Eleventh Circuit opinion afforded the appropriate amount on deference to international nature of

Convention. The court reviewed cases in Australia, the U.K, New Zealand, and Israel which had all

established that ne exeat rights were custody rights under the Conventions interpretation. Furnes

enhances the uniform application of the and effectiveness of the Convention, while CrollandDuran

are in conflict with the international community

IV. THE CONCURRENT PROBLEM

A. Eliminating concurrent jurisdiction of Convention Cases in the United States

ICARAs provision granting concurrent jurisdiction to state and federal allows thousands of

judges, many of whom have never heard a Convention Case to rule on complicated applications of the

Convention. The liberal grant original and concurrent jurisdiction of Convention petitions by Congress

to the states exposes the U.S interpretation of the Convention to a plethora, of inconsistent rulings.

This is directly contrary to Congresss goal when it recognized the need for uniformity when it enacted


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ICARA. If further erodes the United States standing in the international community to the U.S fails to

render competent and uniform interpretation of the Convention. One solution to addressing this

problem is to consolidate all Convention cases, and allow them to be heard in specialized courts,

particularly U.S district Courts. The Permanent Bureau suggests such consolidation or allowing fewer

judges the power to adjudicate Convention cases is beneficial to the Convention. Further, fewer judges

determining and issuing judgments concerning Convention petitions develops expertise more rapidly

and also facilitates communication between judges located in different countries. The

implementation has reportedly been successful in some countries, and speeding up process time and

resulting in more uniform interpretation of the Convention. Still, implementation in the United States

may raise issues or concerns over the Federal Government power to authorize such implementation.

Because Congress had the power to vest original and concurrent jurisdiction of Convention

cases with federal and state courts it would likely have the power to divest that power from state courts

and vest it exclusively with federal courts or even more narrowly with a few specialized courts. Under

Article III of the Constitution Congress has the power to ordain and establish any number of courts it

chooses to less one Supreme Court. Further, Congress is able to determine specific litigation that may

be heard in particular courts, for example bankruptcy matters are exclusively within the purview of

Federal Bankruptcy Courts. Arguably Congress could improve the system used in United States for

interpreting Convention cases, by consolidating all applications for return and having them heard by

select number of Courts.

The states would likely argue that Congress would be exceeding the scope of its power by

choosing to regulate family law, an area of the law that has been traditionally a state concern. This

argument should been given some merit as U.S Supreme Court has found that the Tenth Amendment


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restrains the power of Congress. Further, the Court noted that The Tenth Amendment confirms that the

power of the Federal Government is subject to limits that may, in a given instance, reserve power to the

states. However, the Court concluded that the Tenth Amendment thus directs us to determine, as in

the case, whether an incident of state sovereignty is protected by a limitation on an Article I power.

Accordingly, the Tenth Amendment will not all ways protect the states from federal regulation, even

when the areas the federal government seeks to regulate are traditionally state law matters. Although

matters concerning children will normally fall into realm of law state courts will have jurisdiction over,

the scope of international child abduction would likely allow Congress to exercise power in this area.

This power would stems from the Necessary and Proper Clause of the U.S Constitution in

combination with Presidents treaty power.

The Constitution provides Congress with the power to make all laws which are necessary and

proper for carrying into Execution the foregoing Powers and all other Powers vested by this

Constitution in the Government of the United States, or in any Department or Officer thereof..

Likewise the Constitution provides the President of the United with power to make treaties. The

Supreme laid to rest any notion that Congress could not legislate traditional areas of state concern when

it ruled on the Missouri v Holland. The Court found that treaty power gave Congress the power to

areas reserved to the states by the Tenth Amendment. Recognizing that the Convention is an

international treaty, Congress clearly can enact legislation that is necessary to execute the Treaty

entered into by President Ronald Reagan

B. International Efforts limiting Convention Jurisdiction to few or Specialized Courts

Germany has opted to vest jurisdiction of Convention cases in a few courts. The 1990

implementing legislation in Germany provided its states with the same concurrent jurisdiction that


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ICARA provides for the 50 states. This decentralized system of allowing all states the power to

adjudicate matters led to significant number of inconsistent judicial judgments, as well as constant

complaints from other Convention Member and Party states. In response, Germany radically reduced

the amount of courts hearing Convention petitions, by amending the implementing legislation to

centralize all matters brought under the Convention to one local family court in the district of each

Higher Appeals Court.

The United Kingdom is perhaps the best case study for the benefits of the centralization model.

The United Kingdoms implementing legislation for the Convention conveyed original jurisdiction in

only one court; the family Division of the High Court. The court consists of eighteen judges; all have

significant thoroughly versed with Convention litigation. The exclusive grant of jurisdiction in a

specialized court has conveyed a number of advantages, including a speedy dispositions of

applications filed. By only allowing Convention cases to be heard in the specialist division of the High

Court, the English system seems far more efficient an effective than the most countries with a 75% of

successful outcome in cases where the child is located in the requested state and the application is

pursued.

V. CONCLUSION

The United States sits as one of, if not the most influential nation in the world. In order to

maintain that status in the legal arena, it is incumbent upon the country to apply uniform principles of

treaty interpretation. Deference to foreign case law and jurisprudence are instrumental to rendering

consistent and respected interpretations of the Hague Convention. While recognizing that the

interpretation given by a sovereign to its own law is entitled not entitled to absolute deference, extreme

consideration should go into child related concerns. The Convention serves as wonderful collaboration


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of the international community to combat the real and serious threat of child abduction. That

collaboration would be meaningless if countries decided to impose their culture or beliefs when

deciding what is best for another nation's citizens and would ultimately frustrate the purpose of the

Convention. The U.S Courts must stay strong and adhere to principals of comity, even when the judge

finds him or herself in opposition to a position that requires him or rule for or against a party. As an

American Citizen and father, it is important for me to know that a foreign nation would rely on

American principles and values if they were ever called on to interpret the Convention. America has a

duty to extend the same courtesy to the citizens of countries who are member states of the Convention.

Elisa Perez-Vera, Explanatory Report by Elisa Perez-Vera, in 3 Actes et documents de la Quatorzierne

session (1982) (hereinafter the Perez-Vera Report)

Clause found in child custody orders that require a parent or guardian to seek a court or the other

parents permission to leave a countrys borders.

Australia, Austria, Belgium, Canada, Czech Republic, Denmark, Finland, France, Germany, Greece,

Ireland, Japan, Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, United

Kingdom, United States, Venezuela and Yugoslavia. Elisa Perez-Vera, Explanatory Report by Elisa

Perez-Vera, (1982) (hereinafter Perez-Vera Report)

Linda Silberman, Hague Convention on International Child Abduction: A Brief Overview and Case

Law Analysis, 28 FAM. L.Q. 0,15 (1994)

Hague Convention on Civil Aspects of International Child Abduction, Oct 25, 1980 T.I.A.S No 11,670

89 [hereinafter the Convention]

See James D Garbolino, International Child Custody Cases:Handling Hague Convention Cases in U.S

Courts, The National Judicial Council (2000) [hereinafter Garbolino Report(discussing methods that

are used by parent prior to adoption of the Convention, and parents methods of retrieval in non-

convention countries). Id. at 15

Argentina, Bosnia and Herzegovina, China, Croatia, Israel, Italy, Macedonia, Slovakia, As a result of

accession, the Convention is in effect between some countries in Bahamas, Belarus, Brazil, Burkina

Faso, Chile, Columbia, Costa Rica, Cyprus, Ecuador, El Salvador, Estonia, Fiji, Georgia, Guatemala,

Honduras, Hungary, Iceland, Latvia, Liechtenstein, Lithuania, Malta, Mauritius, Mexico, Republic of

Moldova, Monaca, New Zealand, Nicaragua, Panama, Paraguay, Peru, Poland, Romania, St. Kitts and

Nevis, Slovenia, South Africa, Sri Lanka, Thailand, Trinidad and Tobago, Turkey, Turkmenistan,


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Uruguay, Uzbekistan and Zimbabwe. See Hague Conference on Private International Law: Status

Sheet Convention #28 http://hcch.net/e/abdshte.html.

Hague Conference of Private Intl Law, Status Table 28: Hague Convention of October 25 198- on the

Civil Aspects of International Child Abduction, HYPERLINK

"http://www.hcch.net/e/status/abdshte.html" http://www.hcch.net/e/status/abdshte.html (last visited

November 19, 2008)

Convention, supra note 5 at art. 38

States that are not members of the Hague Conference on Private International Law may become

Contracting States by the process of accession Convention, Article 38

Trinidad and Tobago is a party to the Convention, but the treaty has not yet entered into force between

the United States. Therefore, the Convention cannot be used as a remedy to recover a child abducted

from the U.S to Trinidad or to gain access to such a child; however local American authorities may be

willing to implement Hague precepts in individual cases pending final entry into force.

The member states of the Hague Conference become Contracting States through ratification of the

Convention. Convention, Article 37.

Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir 1993)

See Linda Silberman, supra note 4

Convention, supra note 5 art.7

Id. at art. 7

Garbolino Report supra note 6, at 23

Convention, supra note 5, at art.6

Exec Order No. 12648, 53 Fed Reg 30637 (1988).

Convention, supra note 5, at art. 7,11

Uniform Marriage and Divorce Act, 402, 9A U.L.A 282 pt.2 (1998)

After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the

judicial or administrative of the Contracting State to which the child has been removed or in which it

has been retained shall not decide on the merits of rights of custody until it has been determined that

the child is not to be returned under the Convention or unless an application under this Convention is

not lodged within a reasonable time following receipt of the notice. Convention, Article 16

Convention, supra note 5 at art. 3


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42 U.S.C 11603(a)

42 U.S.C 11603(a) (2006)

42 U.S.C 11603 (d)

Convention, supra note 5, at art. 32 (suggesting that matters of custody of the country shall be construed by legal systemspecified by the laws of that State).

Convention, supra note 5 at art. 13(b)

Convention, supra note 5 at art. 13(b)

42 U.S.C 11603 (e)(2)(A)

Blondin v Dubois, 189 F.3d 240 (2d Cir. 1999)

Id. at 243

Id.

Id.

Id.

Id.

Id. at 247.

Id. at 243.

Id. at 248.

Friedrich v. Friedrich, 983 F.2d 139 (6th Cir.1993) (Friedrich I)

Id. at 142

Id.

Friedrich v Friedrich, 78 F.3d 1060 (6 th Cir 1996)

Id. at 1063

Id.

Id. at 1069

Id.


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Id. at 1068

Id. at 1067, 1068

Id at 1068, 1069 intolerable situation was intended to encompass return to home where money is in

short supply, or where educational opportunities are more limited than in requested states.

Walsh v Walsh, 221 F.3d 204, 209 (1st Cir. 2000) (Walsh II)

Id. at 209

Id. at 211

Id. at 212

Walsh v Walsh, 31 F.Supp 2d 200, 206 1st (Cir. 1998) (Walsh I)

Walsh II at 214

Id. at 222

Id at 218,219

Id. at 219

Id. at 218

Id. at 218, 219 (noting both state and federal law have recognized that children are at increased risk of

physical and psychological injury when they are in contact with a spousal abuser.)

See Blondin, 189 F.3d at 242

An undertaking may be generally defined as official promise, or an agreement or concession, by a

party to perform a particular task. Undertaking are most widely utilized in common-law countries.

Handling Hague Convention Cases in U.S Courts. James D Garbolino

See Walsh II, 221 F.3d at 221

Id. at 221

Friedrich II 78 F.3d 1067

Restatement (Third) of the Foreign Relations Law of the United States 481 (1987)

University of Illinois Law Review Turning our Backs on the Children: Implications of recent

decisions Regarding The Hague Convention on International Child Abduction. Sharon C. Nelson

(2001)


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See Blondin, 189 F.3d at 245

http:www.clfi.com/newspaper/DJ1993pdf (explaining verdict that a Los Angeles Man received when

his wife absconded to Paris with child).

See supra note 71

Convention, supra note 5, at art. 3

Croll v. Croll, 229 F.3d 133, 135 (2nd Cir. 2000).

Id. at 135

Id.

Id.

Id. at 140.

Id. at 139

Id. at 145

Furnes v Reeves, 362 F.3d 702 (11th Cir 2004)

Id. at 704

Id. at 706

Id. at 708

Id. at 704

Duran v Beaumont 534 F.3d 142, 145

Id.

Id.

Id at 148

Id.

Id. at 151,152

Id.

See Mellisa Wills, Interpreting the Hague Convention On International Child Abduction. Why

American Courts need to Reconcile the Rights of Non-Custodial Parents, The Best Interests of


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Abducted Children, and the Underlying Objectives of the Hague Convention, 2006 25 Rev.Litig. 423

(discussing reconciliation of the Conventions objectives).

See 42 U.S.C 11601 (b)(3)(B)

See Merle H. Weiner, Half-Truths, Mistakes and Embarrassments: The United States goes to the Fifth

Meeting of the Special Commission to Review the Operation of the Hague Convention on the Civil

Aspects of International Child Abduction, 2008 Utah L. Rev. 221, 231 (2008). [hereinafter Weiner

Report](explaining the reasons why it good idea to limit judges hearing convention cases).

Id. at 232

Id.

U.S Const. art. III, 1

See 28 U.S.C. 1334(a) (2006).

Family relations are a traditional area of state concern.

Moore v. Sims, 442 U.S. 415, 435 (1979) (finding that federal district court should have abstained

pending state child abuse proceeding).

New York v. United States 505 U.S. at 156-57.

The Federal Government has exclusive jurisdiction over matters of personal injury that arise from a

claim involving a nuclear incident See 42 U.S.C. 2110 (n) (2) (2006).

See Weiner Report, supra note 94, at 221 235

U.S Const. art. I, 8, cl. 18

Missouri v Holland, 252 U.S. 416, 432 (1920)

Karin Wolfe, A Tale of Two States: Successes and Failures of the 1989 Hague Convention on the

Civil Aspects of International Child Abduction in the United and Germany, 33 N.Y.U J. Intl L. & Pol.

285, 316 (2000).[hereinafter Wolfe Note]

Wolfe Report, supra note 104, at 317

See Kurt Siehr, The Hague Convention on the Civil Aspects of International Child Abduction: Failuresand Success in German Practice 33 N.Y.U J Intl & Pol. 207 at 218 (2000). ( providing translation and

citation of the title of 1999 German amended implementing statute for the Convention.)Gesetz sur

Anderung von Zustandigkeiten nach dem Sorgerechtsubereinkommens-Ausfuhrungsgesetz, v. 13.4

1999 (BGBL. I S. 702 (F.R.G.) r

Nigel Lowe, The 1980 Hague Convention on the Civil Aspects of International Child Abduction: An

English Viewpoint 33 N.Y.U J. Intl L. & Pol. 179, 185 (2000) [hereinafter lowe article] (explaining


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how the English system deals with incoming abduction applications).

Lowe Report, supra note 109, at 185

Id. at 185

Id.

Id. at 186

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