INTERNATIONAL TRAVEL: PRIVILEGE OR CONSTITUTIONAL RIGHT?
VII. 1980 HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL PARENTAL CHILD ABDUCTION
The return of kidnapped children is often settled through negotiation or via the victim’s parent filing a civil petition under the 1980 Hague Convention on the Civil Aspects of International Parental Child Abduction. This Convention was established to facilitate the return of children abducted to foreign countries. However, it only applies if both countries involved in the international parental kidnapping are signatories to this Convention. The United States is a signatory state. However, the United States does not recognize the participation of some countries in the 1980 Hague Convention, rendering this convention impossible to use in many cases. In particular, the United States does not recognize the Russian Federation as a full member of the Hague Convention, leaving underage citizens vulnerable to abduction from the United States to Russia. “While the Hague Convention has successfully facilitated the return of many abducted children, it is rendered useless when a child is taken to a country which is not a signatory to the Hague Convention.”
According to a 2017 letter from the U.S. Department of State’s Office of Children’s Issues , “there is no reciprocity between the Russian Federation and the United States concerning the return of abducted children from one country to another.” Since Russia is not partnered with the United States under the Hague Abduction Convention, the Hague Abduction Convention cannot facilitate the return. The Russian judicial precedent shows that a Russian child will not be ordered to be returned to the United States by a Russian court. For example, the Russian Federation Supreme Court Judge T.N. Nazarenko, in her Decision # 67-KF18-135 signed on April 5, 2018, stated that the Hague Abduction Convention is not applicable because the United States has not recognized Russia as having joined the Convention. Therefore, the Russian Supreme Court denies access to justice under Hague Abduction Convention to US nationals and residents on Russian territory.
In the case of Matura v Griffith , Matura appealed for a final judgment dissolving her marriage with Griffith. The only issue on appeal was the trial court's decision to allow the father to have visitation rights with the parties' two sons in Jamaica, a non-signatory to the Hague Convention of the Civil Aspects of International Child Abduction. The father was deported to Jamaica upon conviction for two batteries on the mother and had repeatedly threatened to kidnap the children. Because of the obvious risk factors present, the court required the father to post a $50,000 bond for each child before each visit to discourage him from kidnapping the children and to ensure sufficient funds were available for the mother to retrieve the children if he did not return them. She argued that the court's decision to allow time-sharing in Jamaica was not in the children's best interests and was not based on competent, substantial evidence.
Given that Jamaica is not a signatory to the Hague Convention, there is no evidence suggesting that the mother would be able to gain the return of the children from Jamaica through legal processes, no matter how much money was available to her from a bond. The only option for the victim-parent is modifying the custody order, but this would not lead to real-life changes for the mother, the father, or the child.
The law is clear that a modification of an existing custody order or parenting time order is only warranted upon a presentation that “... there has been a change in circumstances since the prior custody order significant enough to warrant a review of the issue of custody to ensure the continued best interests of the children.” See Patricia P. v. Dana Q. ; Merwin v. Merwin and Family Court Act §652.
In the case of McK. v McK., 2016 , the Court found that there was a substantial change of circumstances since the date of the order, in that the mother abducted the child while on a visit to Russia and had allegedly changed the child’s citizenship, disrupted the child’s education and treatment for autism, permitted the child to be medicated for “birth damage,” and had deprived the father of his custodial rights to the child while blatantly disregarding the court’s orders.
In a proceeding under the Convention and ICARA, this Court did not decide the child’s custody issues, which are normally determined based on the best interests of the child by courts or other official bodies with jurisdiction over matters of domestic relations. As the United States Court of Appeals for the Eleventh Circuit observed, “the court’s inquiry is limited to the merits of the abduction claim and not the merits of the underlying custody battle.” 42 U.S.C. § 11601(b)(4).Ruiz vs. Tenorio . Indeed, Article 16 of the Hague Convention expressly provides that the judicial authorities of the contracting state to which the child has been removed or in which the child has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention. This concept is reiterated in Article 19 of the Convention, stating that a decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.
This effectively means that in deciding cases under the Convention and ICARA, not only does the Court lack authority to resolve issues relating to custody, but any prior orders or decrees of other courts or official bodies awarding custody are “irrelevant” to the issue of the habitual residence of the child. Kiiowska vs. Haines , Yang vs. Tsui , Silverman vs. Silverman , Miller vs. Miller .
Despite the central importance of the term “habitual residence” in cases brought under the Convention, those words are not defined in the Convention or by ICARA. The cases uniformly hold that the term is not synonymous with “domicile,” which in law refers to where a person considers his or her permanent home. Friedrich vs. Friedrich . It follows that a habitual residence can be established by an intent to remain in a given location for an indefinite period of time, and the relevant intent is that of the person or persons entitled to fix the place of the child’s residence. See Mozes vs. Mozes . A number of cases have held that a wrongful removal of a child cannot form the basis of a new habitual residence. See Diorinou vs. Mazitis .
Sometimes the circumstances surrounding the child’s stay are such that, despite the lack of perfect consensus, the court finds that parents have a shared settled mutual intent that the stay last indefinitely. When this is the case, it can reasonably infer a mutual abandonment of the child’s prior habitual residence. Specifically, such a situation was raised in the aforementioned case of Chechel v. Brignol (see Footnote # 17). In this case, the Court concluded that, as a matter of law, the parties formed a shared intent to abandon the United States as the place of habitual residence of the child and to establish the child’s habitual residence in Ukraine instead for a prolonged and indefinite period of time. From this, it follows that when Brignol retained E.B. [the parties’ daughter] in the United States, her habitual residence was in Ukraine, and the retention was wrongful. Preventing unauthorized exit from the United States by establishing border controls would help avoid many of the situations.