I. Hague Convention on the Civil Aspects of International Child Abduction
The Fourteenth Session of the Convention on private international law adopted the Convention on the Civil Aspects of International Child Abduction done at The Hague, Netherlands, on October 25, 1980. The Convention became effective in the United States on July 1, 1988. Currently, 80 countries are signatories to this Convention; of those, 68 countries are recognized by the United States. The official reporter for this Convention, Elisa Pérez-Vera, provided a report, which has been utilized by courts as the official commentary of the Hague Convention on the Civil Aspects of International Child Abduction. See Elisa Pérez-Vera, Explanatory Report by Elisa Pérez-Vera, referred to herein as Pérez-Vera Report,Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494 (Mar. 26, 1986) (Official commentary of the Hague Convention).
The objects of the Hague Convention on the Civil Aspects of International Child Abduction (hereinafter "Convention") are to "secure the prompt return of children wrongfully removed" from their country of habitual residence, and "ensure the rights of custody and of access under the law of one contracting state are effectively respected." Convention, Article 1.
II. International Child Abduction Remedies Act ("ICARA"): 42 U.S.C. §11601 et seq.
The International Child Abduction Remedies Act was passed in 1988 to implement the Hague Convention on the Civil Aspects of International child Abduction in the United States. International Child Abduction Remedies Act, Public Law 100-300 at 42 U.S.C. §11601 et seq.
The provisions of ICARA permit the Courts of the United States to determine only the rights under the Convention and not the merits of an underlying child custody matter. See also 42 U.S.C. §11601(b)(4); Convention, Article 19; Pérez-Vera Report, Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494 (Mar. 26, 1986) (comment 19).
III. Filing a Case Pursuant to ICARA
First, the Petitioner (the non-abducting parent) notifies the Central Authority in the country of habitual residence or the Central Authority of the country to which the children were brought. Implementing the Convention, ICARA only applies when a child is taken to another country party to the Convention. De Silva v. Pitts, 481 F.3d 1279 (10th Cir. 2007) (no remedy under ICARA when child retained in non-signatory country Sri Lanka). In the United States, the U.S. Department of State, Office of Children's Issues, is the Central Authority. Until April 1, 2008, the Department of State had contracted the role of Central Authority to the National Center for Missing and Exploited Children.
Petitioner must demonstrate by a preponderance of the evidence that a child was wrongfully removed from their country of habitual residence, in breach of rights of custody. 42 U.S.C. §11603(e)(1)(A). Once the court determines that the child has been wrongfully removed, and a period of less than one year has passed since the wrongful removal, the court shall order the return of the child forthwith. Convention, Article 12.
