When the parents come from different countries, there is a risk of two competing child custody orders. To keep parents from trying to get more favorable treatment from a second country after the first has made a custody order, we rely on the Hague Convention on the Civil Aspects of International Child Abduction, also called the Hague Abduction Convention.
The convention lays out rules for determining which country should have jurisdiction over a child’s custody. For example, preference is given to the child’s country of habitual residence. When a parent tries to get a competing order from a different country, that country is generally supposed to reject jurisdiction and refer the question back to the child’s country of habitual residence.
But what if the reason the parent has applied to a second country is to flee violence by the other parent? Would that be a sufficient reason not to follow the Hague Abduction Convention’s jurisdictional rules?
Which country does the baby reside in?
The U.S. Supreme Court has recently agreed to hear a Hague Abduction Convention case in which there is genuine dispute over which country’s courts should have jurisdiction.
The case involves an American mother who claims she was raped and physically abused by her Italian husband. She says that she became pregnant after her husband raped her in Italy. She couldn’t return to the U.S. during the pregnancy because she was told she would miscarry. Therefore, she was forced to give birth in Italy.
Several weeks after the birth, the mother fled to a battered women’s shelter. She obtained a U.S. passport for the child and then returned to Ohio to live with her parents.
Her husband then filed a claim under the Hague Abduction Convention, arguing that the courts of Italy, not the U.S., should have jurisdiction over the child’s custody. The Sixth Circuit Court of Appeals ruled that, although the baby could not have acclimated to Italy during the few weeks it lived there, it was nevertheless objectively a habitual resident of Italy. That would mean the child’s custody should be determined in Italy.
The mother appealed to the U.S. Supreme Court, and several anti-domestic violence advocates filed friend-of-the-court briefs in support. Among other arguments, they point to Article 13 of the Convention, which says that the authorities do not have to return children to their countries of habitual residence when there is a “grave risk” that doing so would expose the child to harm or place them in an intolerable situation.
International child custody can be complex and challenging. If your custody case could involve questions of international jurisdiction, contact a family law attorney who has specific experience with Hague Abduction Convention cases.
The Law Offices of Stacy D. Heard, PLLC
