International Kidnapping and the Hague Convention / by Cassandra Hearn

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The worst case scenario for any parent is to be suddenly and unexpectedly divided from his or her children. The most common type of abduction is, by far, abduction by a parent or other family member, comprising almost half of all abductions. Although the perpetrator in these cases is typically the mother, fathers will also sometimes kidnap their own children. Resolving these cases have special difficulties across state lines. However, when a parent takes a child out of the United States, international kidnapping and Hague Convention laws come into play.

The Hague Convention is an international treaty that governs certain issues to do with international child custody disputes. The treaty does not create its own standards for custody or best interest determinations. Instead, it dictates where a child custody issue should be determined, and whether the parent seeking relief can force the fleeing parent to return the child to the country of origin (typically looking to which country has habitually been the child’s home country). Not every country is a member of the Hague Convention. In addition, certain countries, including Mexico, have been declared by the United States as countries who frequently fail to help implement the terms of the treaty.

If a country is a party to the treaty, the parent seeking return of the children must apply through the local court in the country where the abducting parent has gone to request relief. The court will hear evidence about what country has been the child’s “habitual residence.”  If the country of the complaining parent is found to be the child’s “habitual residence” and that the fleeing parent has “wrongfully retained” the child in contravention of the rights of the complaining parent, the foreign court may very well order the child returned to that country. There are many exceptions to these provisions, including if a child would be in imminent danger if returned to the original country and/or the other parent. There is a one year statute of limitations in order for a parent to obtain relief under these provisions.

In California, Family Code 3130 and 3131 authorizes local district attorneys to take “all actions necessary” in order to return kidnapped children to their parents under the Hague Convention provisions. California has specifically developed special task forces to streamline the process of returning kidnapped children from Mexico, as well as retrieving children wrongfully retained there.  The San Diego District Attorney’s office  also has resources for helping parents who need help when their children have been abducted.

The Hague Convention and international kidnapping are serious issues, and you need an experienced attorney. Contact us today at (619) 800-0384 to talk about your children and what we can do to help.