Child Custody and the Hague Convention Treaty

At the Law Office of David Schwarz we have handled child custody issues related to the Hague Convention. We are an experienced Orange County child custody lawyer. Please call us at 949-735-9266 or contact via the web to get a consultation with an experienced child custody attorney.

The Hague Convention is an International Child Abduction treaty that requires the Court to intervene in international child custody disputes. The State or Federal Court system is compelled to decide the fate of the location or the habitual residence of the child in question. If the Courts decide that the child has been wrongfully removed to or retained in the Contracting State. The International Child Abduction Remedies Act (ICARA) permits the United States to get involved in the international child custody dispute.

The Convention’s purpose is “to secure the prompt return of children wrongfully removed to or retained in any Contracting State” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” An Orange County Child custody lawyer will be able to assist in assuring the safe return of your child to the habitual country or state of residence.

Wrongful Removal of Child from State of Habitual Residence

The wrongful removal of a child is considered a violation of the Hague Convention treaty when the Courts look at the contracting state and its custody laws and decide if taking the child was unlawful per the laws of the that home county. It is important to note that in order for the Courts to decide whether there was a wrongful removal from a habitual residence that a party had actually exercised their custodial rights in that jurisdiction or where there was habitual residence. And as a result of the wrongful removal the party could not exercise their custodial rights. In addition the Hague Convention only applies if the wrongful detention has been less than a year.

Exception to the Wrongful Taking

There are several exceptions to returning the child that has been wrongfully taken. An Orange County child custody attorney will be able to argue effectively the Exceptions under the Treaty. The first exception is that the party who is asserting their rights under the Hague Convention had consented to the removal of the child to a foreign jurisdiction. The Second exception occurs if there was a “grave risk” that returning the child to the habitual residence would result in harm to the child. Thirdly if the child is mature enough to decide his or her own fate in this child custody battle then their statemen can be given weight in the courts decision of what to do with the child. Finally the court must consider if there are Human rights violations occurring that warrant the child remain where they are, the Court will consider that.

Return of Child and Expenses as a Result

Once the Courts have decided on the wrongful taking of a child the Courts must order return of the child to the habitual residence. The Courts must further order that the Defendant by all expenses of the litigation to the plaintiff.

Eighty-nine nations are party to the Convention. To visit to find out if the country is a member of the Hague convention please visit www.hcch.net and look under members and you will find if the county that is at issue is a member.

The Law office of David P. Schwarz had handled Hague Convention issues for many years. We have dealt with these serious and often time consuming custody battles and achieved great results for our clients. Please call 949-735-9266 for a consultation. Or contact us on the web.

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