By Gerissa Conforti and John Rice
The Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) is a treaty between signatory countries (or “contracting states”) that provides for the prompt return of an abducted child to his or her country of habitual residence. The Convention is invoked in international child abduction cases where a child is removed from his or her contracting state of habitual residence and taken to, or wrongfully retained in, another contracting state. The International Child Abduction Remedies Act (ICARA) implements the convention in the United States.
The Convention mandates the expeditious resolution of return proceedings to ensure that abducted children are promptly returned to their home country. In fact, courts adjudicating a child abduction case under the Convention are directed to render a final order on the merits of a return petition within six weeks from the date that the petition is filed. Unfortunately, while this six-week directive for a final resolution is ideal in theory, it often fails in application. Judicial proceedings for the return of a child often take longer than six weeks. Indeed, the United States Supreme Court has acknowledged that Hague Convention “[c]ases in American courts often take over two years from filing to resolution…” For a young child abducted at the young age of four, two years is half that child’s lifetime. And, the only person who reaps any benefit of a lengthy return proceeding is the abducting parent.
With strategic planning and ardent advocacy, it is possible to advance these cases to resolution in less than six weeks or, in a Hague Convention case that we filed in the United States District Court for the Southern District of California, within twelve days. Here’s how.
State and federal courts have concurrent jurisdiction over Hague Convention cases. Accordingly, you may choose to file a return petition in either state or federal court. That choice is one of the most important strategic decisions that counsel will make in a Hague Convention case. Indeed, choosing the correct forum is the first and perhaps most crucial choice counsel must make.
In our case, we chose to file the action in federal court for the following three reasons: 1) focus on jurisdiction; 2) expeditious hearings; and 3) federal resources.
1. Federal Court Focus on Jurisdiction
The issue before a Court in a Hague Convention case is one purely of jurisdiction. A Court is not permitted to alter any substantive rights of custody. In fact, it is barred from considering the merits of a custody dispute.
While courts are not permitted to convert the proceeding into a hearing on custody, respondents often introduce evidence on the “best interests of the child” as an improper defense in a Hague Convention case. While the “best interests of the child” is a fundamental issue in determining child custody in state court proceedings, it has no place in an action under the Hague Convention. Permitting a respondent to submit evidence regarding the “best interests of the child” will only confuse the issues and is a waste of valuable time and a useful delaying tool for respondents.
As opposed to state family courts which are accustomed to addressing “best interests of the child” issues, federal courts more naturally focus on the issue of jurisdiction, acknowledging that the “Hague Convention does not allow abducting parents to resort to courts [in another] country … to thwart return of the child to its habitual residence.” Furthermore, should it become necessary to remind the Court of the purpose of the Convention, there is ample federal appellate case law that warns against the dangers of converting a Hague Convention case into a custody proceeding.
2. Court Availability Begets Expediency
In any court, a backlog in cases naturally affects case processing times. The long backlog of cases in state courts – this is especially true in California state courts – inevitably impacts counsel’s ability to obtain an expedited resolution of a Hague Convention case.
In our case, the federal judge’s willingness to hear our matter promptly was crucial in achieving an expeditious result for our client. In fact, we secured a hearing on our ex parte motion for injunctive relief only two days after filing the petition. We filed our petition and ex parte motion on a Wednesday and our request for ex parte relief was heard that Friday. More importantly, a trial date on the merits of our petition and preliminary injunction was set within six days after commencing the proceedings. And, a final judgment on all issues was rendered only twelve days from the date of filing the petition.
3. Make Good Use of Valuable Federal Resources
The various resources available to a District Court serves as another reason to file a return petition in federal court. Federal judges are staffed with full-time law clerks, as well as an army of externs and interns available to brief any issue that may come before it at any time. The more prepared the Court is on the issues, the more likely that a ruling will be rendered with minimal delay. The Court’s ability to be thoroughly briefed on very difficult issues, especially on short notice, is one of the many advantages of filing a Hague Convention petition in federal court.
For example, it was abundantly clear at the hearing on our ex parte motion that the Court had already researched the issues involved and the type of relief that was being sought. The judge’s familiarity with the law helped us when we argued for swift and extreme remedies for our client. At the initial hearing, we sought a TRO against the abducting mother as well as the issuance of a warrant directing the Marshals to immediately locate the children and to remove them from the mother’s physical custody. We also requested the following: an order for an expedited trial on the merits of the petition; a preliminary injunction hearing to be consolidated with that trial; and an order directing the United States Marshal’s Service (the “Marshals”) to serve the mother with a copy of the summons, petition and all necessary pleadings.
After conducting its independent research of the issues, considering our legal filings as well as the accompanying affidavits and exhibits, and our oral argument, the Court issued an order that very day granting each of our requests for injunctive relief.
During the execution of the court’s order, we discovered that the Marshals were another valuable asset only available in a federal proceeding. The Marshals specialize in fugitive operatives. With the help of local task forces, the Marshals arrest an average of 242 fugitives per day. Simply put, the Marshals are arguably the best resource available for a parent in a Hague Convention case seeking to locate an abducted child. Since the Marshals are the enforcement arm of the federal courts, federal courts are ready and able to enlist the services of the Marshals and their vast nationwide network in executing its orders.
In our case, the Marshals located the children within hours after the Court issued the warrant. The Marshals removed the children from the physical custody of the mother and placed them in the care of Child Protective Services pending a final ruling on the merits of our petition. The Marshals also served the mother with a copy of the summons, petition and all other pleadings filed in the case, including the Court’s order granting our ex parte requests and directing the mother to show cause at the scheduled trial on the merits why the children should not be returned to Brazil with our client, their father. Without the able assistance of the Marshals, it would have been impossible to locate the children, serve the mother and proceed to a trial as quickly as we did.
Rule 65 of the Federal Rules of Civil Procedure governs injunctions and restraining orders. To avoid delay in the proceedings, you must ensure that all requirements under Rule 65(b) have been met prior to filing an ex parte request. A Court will not proceed without notice to the adverse party unless it finds that “specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury… will result to the movant before the adverse party can be heard.” Counsel for petitioner must also “certify in writing any efforts made to give notice and the reasons why it should not be required.”
Securing a TRO also requires that the moving party “establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tip in his favor, and that an injunction is in the public interest.” Indeed, preparing our ex parte motion was equivalent to preparing the case for trial. We met and interviewed witnesses, secured declarations, and made preparations to rebut any possible defenses the mother might present. A detailed brief of the legal issues was also submitted to the Court. At the time that we filed the petition and ex parte motion, we were prepared to proceed to trial as soon as the Court would permit.
To succeed under the Hague Convention, the petitioner must prove that the removal or retention of a child was “wrongful” within the meaning of the Convention. If this burden is met, the Court must order the return of the child unless the respondent meets his or her burden of proving an affirmative defense. Only those affirmative defenses authorized under the Convention are applicable in a Hague Convention case.
The only affirmative defense that was relevant in our case was “grave risk” of physical or psychological harm to the children. The “grave risk” defense is a narrowly tailored exception to a return order. Unlike other defenses authorized by the Convention, the respondent must meet the heightened burden of proving “grave risk” by clear and convincing evidence. The Court should be briefed on the substantive law applicable to any relevant affirmative defense prior to the trial. Furthermore, you should be ready to present all evidence available to rebut the claim at trial; witnesses must be present and ready to testify. Our trial involved evidence in the form of affidavits (for unavailable witnesses) as well as live testimony.
Representing a Parent in a Hague Convention Child Abduction Proceeding: Intense, but Rewarding
International child abduction cases are extremely emotional and involve complicated questions of international law and comity. Before filing an action, counsel must be prepared to address the many fact-intensive issues inherent in any child abduction case, such as the facts underlying the abduction, efforts made to rescue the child and the evidence that an abducting parent will flee from the Court’s jurisdiction with the child once he or she becomes aware of the action.
This danger of continued flight makes it essential that you secure emergency orders allowing for seizure of the minor child before service of process is completed on the mother. Tactical delays of a Hague Convention proceeding by the abducting parent is also a common ploy; the lawyer must anticipate this ploy and take steps to prevent obstructive delay. Significant planning, investigation of the facts, and analysis of the legal issues must be done promptly and completed before commencing the proceedings.
With appropriate planning and execution, the Hague Convention provides for an exceptional remedy that can be secured in a matter of days. In our case, we first met our client only weeks before we were able to send him home to Brazil on the same flight with his two children who he had not seen in years. While intense and emotional, successfully representing a parent in a Hague Convention child abduction proceeding can be extremely rewarding.
Hague Convention, Article 11
Chafin v. Chafin, 568 U.S. 165, 179 (2013).
Hague Convention, Article 12 (evidence that the Hague Convention proceeding was commenced more than one year after the child’s wrongful removal or retention may give rise to an affirmative defense that the child has become “well settled” in his or her new environment); see also, In re B. Del C.S.B., 559 F3d 999, 1009 (9th Cir. 2009) (setting forth the factors considered by the Ninth Circuit in sustaining a respondent’s one-year “well-settled” defense).
See Barone v. Barone, No. 17-CV-1209 LAB (S.D.Cal. June 26, 2017).
22 U.S.C. § 9003(a).
Hague Convention, Article 16
Cuellar v. Joyce, 596 F.3d 505, 511-12 (9th Cir. 2010).
See e.g., Cuellar, 596 F.3d at 508 (9th Cir. 2010) (custody is determined by the child’s country of habitual residence); Asvesta v. Petroutsas, 580 F.3d 1000, 1021 (Greek court violated “fundamental premises” of Convention by considering merits of custody dispute).
 Barone, No. 17-CV-1209 LAB at doc. 15.
Barone, No. 17-CV-1209 LAB at doc. 8
Fact Sheet U.S. Marshals Service 2017, United States Department of Justice, Office of Public Affairs (March 13, 2017).
Fed. R. Civ. Pro. Rule 65(b)(1)(A).
Fed. R. Civ. Pro. Rule 65(b)(1)(B).
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
Hague Convention, Article 3.
See e.g., Hague Convention, Articles 12, 13, 20; 22 U.S.C. § 9001.
Hague Convention, 13(b).
John Rice is an experienced litigator and former federal prosecutor. He represents individuals and corporations in a wide range of white-collar criminal matters including SEC enforcement actions, anti-money laundering and bank secrecy case compliance, and foreign corrupt practices act investigations. Gerissa Conforti is a family law attorney specializing in high-asset, complex family law matters concerning property division, child and spousal support, breaches of fiduciary duty, and attorney’s fees. https://higgslaw.com/
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Family Lawyer Magazine
Spring 2019 Issue
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