A mother of two in Toronto, Canada, believed her Canadian custody order was enough to ensure the return of her children from a trip to Europe with their father. Zaiba Zaiba agreed to permit her children, Mateen, 7, and Hosna, 4, to visit their father’s uncle in Norway, according to the Canadian Broadcasting Corp. and several news reports. The children, along with their father, left Canada on June 25, and were to be returned on or before July 23. On July 21, Zaiba received a call from her ex-husband. He removed the children from Norway and entered into Afghanistan with no intent of returning them home. These alleged statements reported by the CBC remind everyone of the chilling reality when children are abducted to non-Hague Convention countries.

What is the Hague Convention?

The Hague Convention on the Civil Aspects of International Child Abduction was implemented by U.S. Congress in the International Child Abduction Remedies Act, 42 U.S.C. § 11601. The Hague Convention, as it is simply known, was enacted “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.” The Hague Abduction Convention country signatory list is available on the U.S. Department of State, Bureau of Consular Affairs’ website. These specific countries work with other signatory countries to bring children back to their home or “state of habitual residence.”

Does the Hague assist in determining custody rights?

The purpose of the act is not to determine which parent should have custody rights to the child; in fact, such determinations are specifically prohibited. The convention is to “determine only rights under the convention and not the merits of any underlying child custody claims.” Any and all custody rights afforded to either parent are to be determined by the laws and the courts of the child’s habitual residence.

What needs to be established to return the abducted child?

The Hague Convention has key principles a petitioner must prove in seeking the return of his or her abducted child. The first and seemingly most important is to establish the petitioner’s residence and country as the abducted child’s habitual residence. In a Hague case, a petitioning parent who seeks the return of a child has the burden of proof to establish by a preponderance of the evidence that the child has been wrongfully removed or retained within the meaning of the Hague Convention. The petitioner must prove where the child’s habitual residence is located. The definition of habitual residence is not specifically defined and is left open to be interpreted using facts. This is shown by establishing facts that include where the child has been in school, has friends, has doctors and where the child engages in extracurricular activities, according to Article 3 of the convention.

The second is detailing and defining the rights of custody that the petitioner had prior to the taking or retention of the child. There is not a requirement for an order of court to have been entered. Once the child’s habitual residence is determined, the authority or court hearing the case may take into consideration the laws of the jurisdiction of the child’s habitual residence, according to Article 3. Third, the petitioner must establish that the removal or retention of the child was wrongful and in violation of the custody rights the petitioner enjoyed under the laws of the child’s home country, Article 3 says.

Article 4 emphasizes the importance of the age of the abducted child. The provisions of the Hague Convention do not apply once the child is 16 years old, even if the child was under the age of 16 when the wrongful retention or abduction occurred.

If the petitioner establishes and proves his or her case to the appropriate forum or court, the child must be returned to the home country of habitual residence unless the respondent can establish that a “narrow” exception to the Hague Convention applies. A “primary purpose of the convention is to preserve the status quo and to deter parents from crossing international boundaries in search of a more sympathetic court,” said the U.S. Court of Appeals for the Sixth Circuit in Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993).

Risks in a global society

The society in which we live is an ever mobile and international world. Through new technologies and the ability for individuals to work remotely, it is much easier to pick up and go. The costs of getting a child back once he or she has entered a non-convention country can be both emotionally and financially draining. Even if an agreement to allow a child to enter a Hague signatory country exists, one must be aware of the other parent’s ties to other countries and evaluate the risk of the child being abducted to that country. As Zaiba is finding out, Canada is a signatory to the Hague Convention; however, her children are now located in a country that doesn’t recognize this international treaty. She is forced to fight for her children, under the laws and rules of a foreign land without clear international assistance, and in the courts of Afghanistan.

Michelle Christian is a shareholder and member of Stark & Stark’s divorce group in the Yardley, Pa., office. Christian concentrates her practice on divorce and family law matters including equitable distribution, child support and spousal support, alimony and child custody. Christian can be reached at mchristian@stark-stark.com or 267-759-9663.