Abduction of a child by a partner or former partner is a nightmare scenario for any parent. We live in a world where individual travel has never been less restricted to nearly anywhere on earth. We also live in a world where legal rulings of custody may fall quickly behind the “on-the-ground” details of location and domicile. It’s essential for you, as a custodial or visiting parent, to know what rights you have and to also know what tools are at the disposal of your legal counsel.
The Hague Convention on the Civil Aspects of International Child Abduction, to which both Brazil and the United States are parties, is the treaty that forms the basis for determination and negotiation of cases of child abduction between many countries. Importantly, you must remember that the Convention is not meant as a prosecutorial tool. It serves primarily as guidance for local courts to properly open and close cases involving parental disputes that involve accusations of child abduction. The Convention leads local authorities to define abduction primarily on the child’s age (typically under 16) and by identification of the child’s “habitual residence,” which is an often-complex determination above and beyond the fact of the child’s citizenship.
You’ll also find that the Convention stands as a template for parents to negotiate the return of their child to their habitual residence, or guide to find another amicable solution. As such, it seeks to balance the rights of the parent with the welfare of the child. Return of the abducted child is not guaranteed, particularly in cases where return results in a threat to the child’s welfare, there exists proven custodial neglect by the complaining parent, or there exists a long enough interval between abduction and initiation of the complaint. In fact, the Convention requires local courts to consider the possibility that the child may be of sufficient age or maturity to decide for himself or herself.
Dispute of custody can be a time-consuming, stressful and unhappy process. Awareness of the tenets of the Hague Convention on the Civil Aspects of International Child Abduction can help you and your counsel immeasurably as guidance toward an amicable resolution.
