On October 25, 1980, the Hague Convention addressing the Civil Aspects of International Child Abduction concluded in The Hague, the Netherlands. This multilateral treaty aims to safeguard children from the damaging consequences of wrongful removal and wrongful retention by a parent across international borders. This convention offers a process to ensure their speedy return and the protection of rights of access.
Have you recently found yourself in this situation? Being accused of parental child kidnapping in Florida is a serious offense, and it’s important to understand how to proceed.
Today, we’re sharing six defenses to child abduction claims under the Hauge Convention and what they mean for you.
The Hague Convention on Child Abduction established guidelines to ensure children who are wrongfully removed or retained from their home country are promptly and safely returned. If one parent relocates or retains a child in a different country, the second parent could claim that they committed wrongful child abduction and are in violation of international law.
When this dispute occurs, it can lead to intensive litigation. To avoid this, the parents can agree to resolve their dispute in an alternative way, such as through mediation. To achieve a successful resolution, the parent who is currently with the child must be able to provide legal justification for removing or retaining them.
This is where a child abduction defense comes in. There are six different defenses that a parent can use to explain or justify why they have removed or retained a child from their home country. Let’s take a look at each one.
If you’re the traveling parent, the first defense you may raise concerns custody rights. This is known as the “rights of custody” defense.
Was the parent who is seeking the child’s return exercising their rights of custody at the time that the child was removed or retained? If not, then you may be able to use this to defend your decision. To seek the return of a child, a party must have custody rights.
While this may seem straightforward, note that “rights of custody” and “rights of access” are not the same. The former refers to a party’s rights as they relate to a child’s care, including the right to determine that child’s place of residence. Alternatively, rights of access cover a party’s right to take the child away from their habitual residence for a limited period of time.
Under the “consent or acquiescence” defense, the court is not required to order a child’s return if there is evidence that the person who has care of the child gave their prior consent to their removal or retention before it occurred. The same applies if the non-traveling parent later acquiesced or reluctantly agreed, without protest, that the removal or retention was acceptable.
In this case, the defendant must have evidence that the acquiescence occurred. Acceptable forms of proof may include:
In some cases, if a parent delays in asserting their parental rights, the court may consider this an act of acquiescence. However, for that to be a valid defense, the court must also take into account the removing/retaining parent’s concealment of the child and how this may have affected the other parent’s behavior.
The third defense under the Hague Convention is known as the “age and maturity” defense.
This states that the court may deny a parent’s petition for the return of a child if the other parent can demonstrate that the child objects to being returned. For this defense to be valid, the child must be of an age and maturity level at which their perspective and wishes can be considered.
Whether or not a child’s preference matters depends on whether the child:
This exception is based on a mature child’s autonomy, with the understanding that a mature, age-appropriate child should not be returned against their will. However, the court can dismiss the child’s objection if there is evidence that the abducting parent used their influence to unjustly affect the child’s views or opinions.
The fourth approach is the “well-settled” defense. If the responding parent can demonstrate that the child is well-settled in their new environment, then they may not be required to return that child to their habitual residence.
To prove this defense, the responding parent must provide evidence that the following two statements hold true:
While the Hague Convention does not provide an exact definition of “settled”, the parent must provide substantial evidence that the child has formed significant connections to their new country.
One common defense in many Hague Convention cases is the “grave risk” defense. This means that the court is not required to order a child’s return if the responding parent can demonstrate it would cause one of two concerns:
The evidence used to prove this claim must be clear and convincing. Under this defense, an intolerable situation is one that would place the child at direct risk of harm. It can range from a war zone to an abusive home or a location that lacks sufficient medical facilities for the child’s condition.
The sixth and final Hague Convention defense is the “human rights” defense. In short, this means that the court doesn’t have to order a child’s return if the traveling parent can demonstrate the return wouldn’t be allowed based on the country’s fundamental principles. When these denials occur, they’re usually due to mandates related to basic human rights and freedoms.
For instance, a parent might claim that corruption in the child’s country would prevent the court from fairly determining their custody upon their return. However, it can be challenging to provide clear, convincing evidence that this is the case. For this reason, the sixth defense is rarely invoked and isn’t commonly successful.
If you’re facing a claim of child abduction in Florida, we understand the process can seem daunting. Before you begin to navigate this journey, contact our team of child custody lawyers at Boyer Law Firm, P.L.
We have years of experience in family law. This includes interstate and international parental child abduction and kidnapping defense cases. We’ve helped Florida clients just like you understand their rights and legal options.
Contact us today to schedule a consultation.
