A Not So Uncommon Story: International Child Abduction

By Jonathan Booker & Caroline Langley

Quinton is a twelve-year boy from Johannesburg, South Africa, and for the first 10 years of his life South Africa was his home. His life was turned upside down in July 2009, when Quinton traveled to Denver, Colorado, to visit his estranged father. Now, almost two years later, with the help of Boulder-based law firm Family Law International, Quinton has finally been reunited with his mother. Together they have returned to Johannesburg.

Quinton's story is not uncommon; in fact, thousands of children are abducted or retained abroad each year by a parent. International child abduction cases often involve very similar fact patterns. Here, the child was visiting his non-custodial father for two weeks. When it came time to return to South Africa, Father ("tak- ing parent") informed Mother ("left behind parent") that Quinton would be remaining in the US. Father sub- sequently cut off all communication between mother and son. One recourse available to a "left behind parent" is to institute a civil action for return under the 1980 Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention").

The Hague Convention provides a mechanism for left behind parents to effectuate the return of wrongfully removed or retained children to their place of habitual residence. In essence, the Hague Convention allows courts of signatory states to determine the habitual residence of the child, which in turn determines the most appropriate forum for adju- dicating child custody matters. The Hague Convention itself is a remedy of return only; it does not resolve child custody disputes. There are 84 signatories to the con- vention. The convention's member- ship continues to grow, but notable absentees include much of the Middle East, China, Russia and Japan, all of which continue to draw extensive criticism from the interna- tional community for their absence.

To succeed in a Hague Petition for Return, the petitioner must prove a prima facie case of wrongful removal or retention by a preponderance of the evidence. There are three ele- ments that comprise a prima facie case of wrongful removal or reten- tion. First, the petitioner must demonstrate that the child was a habitual resident of the left-behind country immediately prior to the wrongful removal or retention. Second, that the petitioner had rights of custody over the child at the time of the wrongful removal or reten- tion. Finally, that the petitioner was in fact exercising rights of custody over the child at the time of the wrongful removal or retention. On establishing a prima facie case, the burden shifts to the respondent to prove a defense to return under the convention.

There is no definition of habitual res- idence in the Hague Convention, so one must look to the Perez Vera report, the official interpretation of the Hague Convention, and case law for guidance. Evidence of the child's life in South Africa was presented in order to prove South Africa was the child's habitual residence. An expert in South Africa family law was also retained to testify as to the meaning of "rights of custody" under South African law. Finally, calling witness- es to demonstrate that Mother was exercising rights of custody over her son immediately prior to the wrong- ful retention proved prudent.

Thereafter, the burden shifted to the respondent father to prove one of several defenses open to him under the convention. These defenses to return included consent, grave harm or that return would violate the fun- damental principles of the requested state concerning human rights and fundamental freedoms. Federal case law has reiterated that all defenses should be narrowly interpreted and applied. Specifically, if the Petitioner proves their prima facie case, a pre- sumption favoring return arises unless the Respondent proves a defense by the appropriate burden of proof.

The Hague Convention and its implementing statute ICARA do not stand alone, and must be argued in conjunction with the UCCJEA, UCAPA and PKPA. An Expedited Hague Petition for Return should be adjudicated within six weeks of fil- ing. The expedited nature of these proceedings limits the possibility for extensive discovery, but waives the requirement for the authentication of documents. In Quinton's case, the parties appeared in U.S. District court for a trial on the merits within five weeks of filing the petition.

As a lawyer, reuniting Quinton with his mother after he was wrongfully retained in the United States for almost two years was personally satisfying. However, the negative consequences of such a protracted retention of a child from his country, his home, and his mother may never be fully known.

Caroline Langley and Jonathan Booker are members of a consortium of lawyers of the firm Family Law International. They are dedicated to creating solutions for legal issues encountered by the increasingly globalized society through strategic personal planning, litigation, and conflict resolution. They can be contacted at 303. 323.1938.

Originally published at Boulder-Bar.org