Global Family Law Attorneys Working with Parents of International Child Abduction Cases
Among the most complicated and disturbing events in international law are child abductions. Child abductions require a coordinated approach with local and state law enforcement, federal agencies, and international police. International parental child abduction occurs when parents or guardians remove their children from their home country without permission of the other parent or guardian or without authorization of a court or other governmental entity. These cases require the expertise of an experienced family law attorney working globally.
What Is the Purpose of The Hague Convention Treaty?
The Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention“) is designed to preserve the child custody status that existed before an alleged wrongful removal or retention by a parent. Specifically, the Convention’s mandate is “to ensure that prompt return of children to the state of their habitual residence when they have been wrongfully removed,” and to ensure that rights of custody (i.e., “physical custody” and “visitation”) existing under the law of one member state are respected in the other member states.
“Child abductions have absolute priority in our office. Time is of the essence. The more time goes by, the less likely it is to be successful. If you are experiencing a threat or a concern about the future location of your child, you should call me immediately, including on weekends.”
Dr. Nick Oberheiden
This mandate is meant to deter parents from engaging in international forum shopping (for a more advantageous forum) in custody cases. While the Hague Convention provides for the return of children taken from their country of “habitual residence” in violation of “custody rights,” it is not designed to settle international custody disputes or entertain substantive custody questions or jurisdiction. Similar to extradition, the Convention’s purpose is to return children back to the country of primary residence after a limited set of facts are analyzed and ruled upon by a court of proper jurisdiction.
How Do Courts Apply the Hague Convention?
The procedures that apply to a Hague Convention case filed in the United States are set by the petitioner’s chosen court system; that is, federal vs. state courts. A Hague Convention case filed in a federal court will be governed by the Federal Rules of Civil Procedure whereas cases filed in state courts will be conducted according to the relevant state’s rules of civil procedure.
Hague Convention “return cases” are generally filed in federal district court in preference to state court. The reason for this preference is that Hague Convention proceedings are meant to solely focus on the return of the child to a forum in which the best interest of the child can be assessed. Generally, federal judges are better equipped to analyze and apply the Hague Convention’s mandate. This tendency is in stark contrast to state court judges, who are more accustomed to making determinations on matters regarding the best interest of the child.
When choosing a federal forum, a petitioner files a “Verified Complaint and Petition for Return of Child” in the appropriate federal district court. The appropriate federal district is ordinarily the one where the child is currently found at the time of the filing. Like most “complaints” filed in federal court, the petitioner must allege and prove the relevant court’s jurisdiction and set out facts and claims for relief.
“The Hague Convention can be an effective tool to control international abductions. However, experienced attorneys know that there is a need for a Plan B in case the Hague Convention procedure is too slow or not accepted by the destination country.”
Dr. Nick Oberheiden
The complaint will specify that the petitioner seeks relief from the “Wrongful removal and retention of child by Respondent” (a claim for relief under the Hague Convention). In addition, the petitioner may request the “Provisional Remedy” of a temporary restraining order (TRO) preventing the offending parent from removing the child from the jurisdiction of the federal court, seeking immediate physical custody of the child, and directing any U.S. Marshal or other law enforcement officer to bring the child before the court. Moreover, a TRO requested may provide that no person acting in concert with the offending parent will be allowed to take any action to remove the child from the court’s jurisdiction (pending the court’s determination on the merits of the Verified Complaint). It is important to note that a court’s granting of a TRO is not the same as a final determination on the merits and that — while it can be issued without notice to the respondent — the TRO will expire after 14 days.
Because TROs generally expire after 14 days, the petitioner will additionally request an expedited preliminary injunction hearing on the merits of the Verified Complaint. As such, the petitioner will ask the federal court for an order that the respondent “show cause” at the preliminary injunction hearing as to why the child should not be returned to the petitioner’s home state and generally why the petitioner’s relief sought in the Verified Complaint should not be granted.
CAN A US FEDERAL JUDGE ORDER ABDUCTING PARENT TO SURRENDER A CHILD?
A Hague Convention petition may be accompanied by petitioner’s request that the court take custody of the child when the abducting parent is served with the action, or before, if the petition seeks a TRO. It is important to note that, generally, a judge will not take such requests lightly. Specifically, any such request will only be granted if a compelling case is made by the petitioner, such as if the abducting parent is likely to flee the jurisdiction prior to hearing on a preliminary injunction.
To prove such circumstances, the petitioner might have to convincingly establish that the abducting parent, for example, may have no ties to the jurisdiction, has a history of flight, or has otherwise avoided the legal process (along with any other relevant information). Moreover, an abducting parent’s illegal immigration status may lend support to an argument that the child’s presence should be secured by the court. Under the preceding circumstances, a petitioner could request that a U.S. Marshal seize the child and bring the child before the judge. Any procedure that causes a child to be surrendered will entail minimizing any trauma that the child might experience.
How Do Anti-Suit Injunctions Work in International Cases?
A tool utilized to end multiple litigation proceedings is the anti-suit injunction (ASI). An ASI is useful in situations wherein a party to an agreement seeks to avoid the forum selection clause in an agreement by pursuing litigation in another jurisdiction. Under U.S. practice, ASIs are rare but available. An ASI is appropriate in four instances: (1) to address a threat to the court’s jurisdiction; (2) to prevent the evasion of important public policy; (3) to prevent a multiplicity of suits; or (4) to protect a party from vexatious or harassing litigation. On a multi-national level, ASIs tend to be more problematic for several reasons. First, most countries view ASIs inimical to international comity. Second, non-common law traditions oppose ASIs as an intrusion into their sovereign judicial systems. Remarkably, U.S. courts go a step further by recognizing so-called “anti-anti-suit injunctions” to pre-empt non-U.S. injunctions. Another cause of concern is the issue of recovering the legal costs for responding to what an international party may perceive as unfairly or fraudulently filed U.S. litigation injunctions. This concern also applies in the context of international arbitration.
In terms of prerequisites, courts require that (1) the parties in the foreign and U.S. proceedings are the same and that (2) the resolution of the case before the enjoining court must be dispositive of the action in the non-U.S. court. When those two threshold issues are satisfied, most but not all courts then restrictively consider whether the parallel litigation “would (1) frustrate a policy in the enjoining forum; (2) be vexatious; (3) threaten the issuing court’s in rem or quasi in rem jurisdiction; (4) prejudice other equitable considerations; or (5) result in delay, inconvenience, expense, inconsistency, or a race to judgment.” Finally, courts will continue their analysis with the ordinary test applied to preliminary injunctions. That test demands that the party seeking an injunction has demonstrated irreparable harm and a likelihood of success on the merits.
An ASI can be a powerful strategy to enforce contractual rights to arbitrate where a party files a favorable forum case in contravention of its arbitration agreement. Unless there are strong reasons against so doing, a court may grant an ASI. Although the injunction applies to a specific party, it does not amount to an order that compels action by a foreign court. Nonetheless, the grant of an ASI may make the other court consider whether to stay or decline the enjoined party’s case. In general, these questions raise judicial competence and international comity issues.
Dr. Nick Oberheiden is experienced in the international applicability of anti-suit injunctions. We understand that through an anti-suit injunction, in appropriate cases, a court will act to protect the contractual rights of individuals and entities. In all such cases, Oberheiden, P.C. applies a reasoned and careful approach, seeking the best result for our clients in compliance with the laws of all relevant jurisdictions.
Contact our office to speak with an experienced international family law lawyer to discuss your child abduction case today. We are here to help you!