‘Mia’s Case’ Navigating the Hague Convention

By Taryn Sinatra, B.C.S., Esq.

Whether studying for the board certification exam or having a new client call with a “Hague Case,” the Hague Convention may feel like a daunting and uncertain area of family law to navigate. The Hague Convention on the Civil Aspects of International Child Abduction, also more commonly known as “The Hague Convention,” may not be clearly navigable, but it can successfully work for its intended purposed. The Hague’s return remedy can be used to recover a child wrongfully taken from the United States. However, in “Mia’s Case,” the child was wrongfully retained in the U.S., and we sought her return home to Mexico. Mia’s Case brought on a flood of ancillary issues and was by far one of the most gripping cases of my career.

“Mia’s Case”

Mia’s parents lived in Mexico and shortly after Mia’s birth, they divorced there with their final divorce decree setting out their parental and timeshare rights of Mia. The father was exercising his time with Mia until she disappeared at three years old, with no word from the mother, who had previously expressed her desire to migrate to the U.S. When Mia disappeared, the father held her passport, so we knew that if the mother had taken her out of Mexico, Mia was undocumented. We later learned that the mother trekked with Mia through Mexico to a Texas border where they were detained by U.S. Border Patrol. By the time I began working with the father, he had already filed his Hague applicationi in Mexico and there was a nationwide attempt to recover her. For three years, Mia was a missing child (included in the database for the National Center for Missing and Exploited Children (“NCMEC”). When the Mexican and U.S. Central Authorities,ii and the U.S. Department of State provided a possible location for Mia in Miami, she was six years old.

Understanding the Hague Convention and ICARA

The Hague Convention on the Civil Aspects of International Child Abduction, or Hague Abduction Convention,iii is an international treaty between over 100 countries designed to assist in international child abduction cases. Signed at The Hague, Netherlands on October 25, 1980, it came into effect in the United States on July 1, 1988, and was implemented through the International Child Abduction Remedies Act (“ICARA”).iv Simply stated, ICARA is our mechanism here in the U.S. to use the Hague Convention and its return remedy. The Hague Convention was adopted in response to the emerging problem of international child abductions perpetrated by parents, grandparents, and close family members.v It sought to remedy the situation where such abductors unilaterally remove a child from his or her habitual residence seeking a country whose courts are friendlier to them for deciding custodial disputes.vi

The Hague Convention’s stated purpose is “to secure the prompt return of children wrongfully removed to or retained in any Contracting State” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”vii ICARA on the other hand, establishes the procedures for applying the Hague Convention in the courts of the United States, specifically assigning burdens of proof for proving a case for return of a child and for establishing affirmative defenses to return.viii The purpose of ICARA is to give courts the tools to implement the Convention’s primary goals of “restor[ing] the pre-abduction status quo and . . . deter[ring] parents from crossing borders in search of a more sympathetic court.”ix When handling a Hague case, you will want and need to understand both the Hague Convention and ICARA, as they work hand-in-hand. The provisions in ICARA “are in addition to and not in lieu of” the Hague Convention.x

Under ICARA, anyone seeking the return of a child allegedly wrongfully removed to or retained in the United States may commence a civil action in any court that has jurisdiction over the action and the place where the child is located at the time the petition is filed.xi Both state and federal courts have concurrent jurisdiction to decide Hague cases.xii Regardless of the court your Hague case is brought, the courts are required to expedite these cases.xiii ICARA unequivocally limits the scope of courts to determine “only rights under the Convention and not the merits of any underlying child custody claim.”xiv Once an ICARA action is filed, the “court in which [the] action is brought . . . shall decide the case in accordance with the Convention.”xv Remember that the court is not deciding if the underlying child custody order is in the child’s best interests, nor is it deciding if a modification of the custody order is justified. Albeit not so simple – in these cases, the court’s job is to determine whether the child should be returned to their country of habitual residence while considering limited defenses when applicable. Although we are well trained as family law practitioners that with children’s issues comes the “best interest of the child” standard, remember that in Hague cases, such is not the standard. “[A]ny debate on the merits of the question, i.e. of custody rights, should take place before the competent authorities in the State where the child had its habitual residence prior to its removal [or retention].”xvi

Establishing a Prima Facie Case

Like any other matter you are bringing before the court, be sure you can establish a prima facie case. ICARA directs that the petitioner must prove his or her case by a preponderance of the evidence.xvii The Hague’s return remedy applies to cases in which one parent wrongfully removes or retains his or her child under the age of 16 years old, from the child’s habitual residence, in breach of the other parent’s custody rights, which were being exercised at the time of the wrongful removal or retention of the child.xviii

Article 3 of the Hague Convention defines the removal or retention of a child as wrongful where: “(a) it is in breach of custody rights attributed to a person, institution, or other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention; and (b) at the time of the removal or retention, those custody rights were actually exercised, or would have been exercised, but for the removal or retention of the child.”xix Rights of custody and rights of access are also defined in the Hague text.xx

Note that the Hague text does not define “habitual residence,” so we must look to the case law. The threshold determination is which country was the child’s habitual residence immediately before the wrongful removal or retention.xxi To determine a child’s habitual residence, courts are to look at the totality of the circumstances specific to each case.xxii The residence rises to the level of “habitual” only when “her residence is more than transitory.”xxiii However, “a child’s location or domicile is not the same as a child’s “habitual residence” as contemplated by the Hague Convention.”xxiv A parent cannot create a habitual residence by wrongful retention of the child.xxv

Mia was born in Mexico, attended school there and had known no other place or home until she was wrongfully removed. The Mexican court orders entered into evidence at trial established the father’s rights of custody and rights of access—granting him ne exeat rightxxvi to consent to Mia’s removal from the jurisdiction, as well as granting him patria potestas (a legal doctrine recognized in Mexican law). In proving that a parent had custody rights that were breached, you must understand the underlying custody order, which may be a challenge when coming from a foreign jurisdiction. “The question becomes whether the removal or retention violated the petitioner’s ‘rights of custody’ under the habitual-residence nation’s laws.”xxvii Counsel from the habitual-residence jurisdiction can be hugely helpful in ascertaining relevant orders, translations, proper certifications (i.e. apostille, etc.) and in counseling or even testifying as to what the orders provide regarding rights of custody and rights of access.

Serving the Respondent

Notice of the action brought is also required, of course.xxviii Your Hague case may require additional consideration as to how you will serve the respondent depending on the facts. In Mia’s case this required some creativity and challenges that concurrently threw the case into dependency court. We had to first locate the mother and Mia, and we wanted to ensure that mom would not flee once served with the petition. To accomplish this, using local jurisdiction rules, we filed an Emergency Motion for Pick Up Order of Mia and filed an Emergency Motion for Ex Parte Relief for an order prohibiting the mother from leaving the jurisdiction.xxix

However, we quickly learned that Mia and her mother were not at the location provided by the authorities. Local law enforcement found that Mia was enrolled in school in Miami and traced a phone number to a possible residence; meanwhile, the father was required to return to Mexico under his temporary Visa. We filed another Emergency Motion for Leave of Court to Issue Third-Party Subpoena Without Prior Notice so law enforcement could lawfully release information to us.xxxi The mother and Mia were finally located, the mother was served, but because the father was stuck in Mexico when law enforcement executed the pick-up order, Mia was picked up by law enforcement and turned over to the Department of Children and Families. Mia’s began virtual reunification with the father, and she was protected from being abducted again.

Defending the Hague’s Return Remedy

Once the petitioner establishes a prima facia case, the burden shifts to the respondent to demonstrate that one of the Hague’s limited and narrow exceptions apply.xxxii The standard of proof for these defenses is either by a preponderance of the evidence or by clear and convincing evidence.xxxiii If you are defending a Hague case, do not forget to raise your defenses immediately in your responsive pleading, to avoid being prohibited from arguing your defense in trial. Failure to timely plead an affirmative defense may result in waiver and the exclusion of the defense from the case.xxxiv A party shall set forth affirmatively any other matter constituting an avoidance or affirmative defense.”xxxv

If a petition for return of the child is filed within a year of the wrongful removal, the court must order the return of the child; but if the petition is filed more than one year after the wrongful removal, the return remedy is discretionary upon the court—specifically if the proceedings are brought after one year, the Court shall order the return of the child, unless the respondent can demonstrate that the child is now “well-settled” in its new environment.xxxvi Other affirmative defenses include: (i) that the parent was not exercising custody rights; (ii) that the parent consented to the removal or retention of the child; and (iii) that there is a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.xxxvii

It took three years to locate Mia, so the father couldn’t file his Hague case within one year of her wrongful removal, and equitable tolling of the one-year period for seeking return of an abducted child under the Hague Convention is not available.xxxviii The mother argued that Mia was now “well-settled” in her new environment. A child is settled within the meaning of ICARA and the Convention, when a preponderance of the evidence shows that the child has significant connections to their new home that indicate that the child has developed a stable, permanent, and non-transitory life in their new country to such a degree that a return would be to the child’s detriment.xxxix The settled inquiry requires the court to carefully consider the totality of circumstances, and the court may consider living environment, measures taken to conceal a child’s whereabouts, the child’s age, the child and parent’s immigration status, residential stability, attendance at school, parent’s employment and financial stability.xl Mia’s mother also argued that because Mia had an open petition for asylum with the U.S. Government, the court did not have jurisdiction to order her return, but that argument was rejected.xli

Although Mia’s case seemed to last forever, in less than 60 days, the father filed his petition, Mia was located, a trial was held, and a final judgment was rendered ordering Mia’s return to Mexico. Mia flew back to Mexico with her father within just days following the final judgment. As it is often said in family court—there is no “winning.” However, we successfully navigated the Hague Convention and the flurry of issues that came with it. Mia is thriving and acclimated to life in Mexico again, and dad continues to send us updates.

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i Hague Application Requirements can be found in Article 8 of the Hague Convention. For the filing of a Hague application in the U.S., see the Department of State web page at https://travel.state.gov.

ii For more information on Central Authorities see Hague Convention, Art. 6 and 22 U.S.C. § 9002(9).

iii The Hague Convention on the Civil Aspects of International Child Abduction can be found at the Hague Conference on Private International Law, Convention 28.

iv The International Child Abduction Remedies Act (ICARA) can be found at 22 U.S.C. §§ 9001, et. seq.

v Mozes v. Mozes, 239 F.3d 1067, 1069–70 (9th Cir. 2001).

vi Abbott v. Abbott, 560 U.S. 1, 20 (2010).

vii Hague Conference on Private International Law, Convention 28, Art. 1.

viii 22 U.S.C. § 9001. ix See England v. England, 234 F.3d 268, 271 (5th Cir. 2000) (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996)).

x 22 U.S.C. § 9001(b)(2).

xi Id. at § 9003(b). xii Id. § 9003(a).

xiii See Hague Convention, Arts. 2, 11.

xiv 22 U.S.C. § 9001 (b)(4) xv 22 U.S.C. § 9003(d).

xvi Elisa Pérez-Vera, Explanatory Report ¶ 19, in 4 Hague Conference on Private Int’l Law, Acts and Documents of the Fourteenth Session, Child Abduction 426, 430 (1982).

xvii 22 U.S.C. § 9003(e)(1). xviii Hague Convention, Arts. 3-5.

xix Id. at Art. 3. xx Id. at Art. 5. xxi Mozes, 239 F.3d at 1072.

xxii Monasky v. Taglieri, 589 U.S. 68, 68 (2020).

xxiii Id. at 76. xxiv De Carvalho v. Carvalho Pereira, 308 So. 3d 1078, 1084 (Fla. 1st DCA 2020).

xxv Id. at 1085 (citing Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006)).

xxvi A ne exeat right to consent to the removal of a child by another parent was a “right of custody” so the father could seek the return remedy after the mother’s removal of the child without the father’s consent under the Hague Convention. See Abbott, 560 U.S. at 20.

xxvii Sealed v. Sealed, 394 F.3d 338, 343 (5th Cir. 2004).

xxviii See 22 U.S.C. § 9003(c).

xxix See Robles v. Bello, No. 04-12794-GG, 2004 WL 1895125 (11th Cir. 2004).

xxxi See Fla. Fam. L. R. 12.351 (requiring that a party desiring production under the rule must serve notice of the intent to serve a subpoena at least 10 days before the subpoena is issued).

xxxii Hague Convention, Arts. 12, 13, 20.

xxxiii See 22 U.S.C. § 9003(e)(2)(A)(B).

xxxiv See LSREF2 Baron, LLC v. Tauch, 751 F.3d 394, 398 (5th Cir. 2014) (citing Morris v. Homco International, Inc., 853 F.3d 337, 342-43 (5th Cir. 1988)).

xxxv See Rouffe v. CitiMortgage Inc., 2441 So. 3d 870 (Fla. 4th DCA 2018).

xxxvi Hague Convention, Art. 12.

xxxvii Hague Convention, Art. 13.

xxxviii Lozano v. Montoya Alvarez, 572 U.S. 1 (2014).

xxxix De Carvalho, 308 So.3d at 1085. xl Horacius v Richard, No. CV 62149, 2024 WL 996097 (S.D. FL March 7, 2024).

xli See Salame v. Tescari, 29 F.4th 763, 771 (6th Cir. 2021) (holding that the fact that children were granted asylum did not strip the district court of its authority to order their return to their father in Venezuela, pursuant to the Hague Convention, despite the mother’s contention that ordering their return usurped the asylum determination).