International Child Custody Disputes and the Hague Convention – Defenses to Claims Filed Under the Hague Convention Treaty

Most Chicagoans are aware that when a couple gets divorced and a child is involved, the issue of child custody must be resolved through the divorce proceedings. Who the child will live with and who will make important life decisions on behalf of the child is an issue that is often hotly contested between parents going through a Chicago divorce, and children often get caught in the crosshairs. One situation in which children often become casualties of a custody battle is when a child is abducted by one parent (usually the non-custodial parent) and taken out of the country’s borders to live in another country. In these situations, even though the non-custodial parent is still a parent of the child, it is considered an international child abduction.

In order to address the issue of international child abductions and to facilitate the safe return of children who have been abducted or trafficked over international borders, the United States joined the international treaty known as the Hague Convention as a signatory in 1994. Under the Hague Convention, parents who have had their child abducted overseas as a result of a custody battle (or for other reasons) have a mechanism for the safe return of their child to the child’s legal “habitual place of residence.”

However, the Hague Convention’s powers are not absolute, and there are numerous standard defenses to a case filed under the treaty. Those defenses include:

• That there would be a “grave risk” that returning the child to their habitual residence would “expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”;
• That the child objects to being returned to the habitual place of residence and is mature enough to make that decision;
• That more than 1 year has passed since the child was abducted and the child “has become settled in his or her new environment”;
• If the return would violate human rights and freedoms in the country where the child has been taken;
• That the party who filed the Hague Convention case “was not actually exercising rights of custody at the time of the wrongful removal or retention”’; and
• That the parent who filed the Hague Convention case is no longer pursuing the case.

These are standard defenses that may be raised by a defendant in a Hague Convention case, and other defenses may be raised, depending on the individual case.

Help with Your International Child Abduction Hague Convention Case in Chicago

If you are in Chicago and your child has been abducted internationally, it is important to act fast. The experienced Chicago international family law Hague Convention lawyers at the law firm Birnbaum Gelfman Sharma & Arnoux, LLC are here to help parents in Chicago exercise their rights under the Hague Convention for the safe return of their child. Contact Birnbaum Gelfman Sharma & Arnoux, LLC today and speak to a lawyer about your rights and next steps now.