The Hague Convention on Civil Aspects of International Child Abduction ("the Hague Convention") provides significant protections for the child who has been wrongfully removed by one of his parents from his country of habitual residence, and for the parent who has been left behind. However, the Hague Convention only applies when both the country from which the child was taken, and the country to which he was removed, are parties to it. Not every country, though, is a party to the Hague Convention, and so the question arises, with unfortunate frequency, what is to be done when one of the countries involved in a parental abduction is not a signatory to the Hague Convention? This is the question with which this article deals.The first part of the article addresses abduction to the US from a non Hague Convention country, while the second half addresses the issue of abduction from the US to a non Hague Convention country.

Because different jurisdictions have different value systems, and because the "best interests of the child" is a somewhat subjective concept which not all jurisdictions weigh equally, the wrongful abduction of a child to a jurisdiction other than that in which he or she has been habitually resident, gives rise to serious legal and practical problems. In other words, not all courts are created equal, and not all courts are equally fit to weigh every issue so, before litigating about which parent will have custody, it is often necessary to litigate about which court will make that decision.

The UCCJA and the UCCJEA in an International Context

The Uniform Child Custody Jurisdiction Act ("UCCJA") was instituted to avoid jurisdictional conflicts between courts of the different United States and to ensure that the court that is best suited to make custody determinations in relation to a child is the one that does so. In many states the UCCJA has been replaced with the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”). Under these two acts a court may be petitioned to refrain from making a decision regarding the custody of a child because another state is claimed to be a more appropriate forum, or to enforce the decree of a foreign state. The general rule under these laws is that the "home state" of the child is the preferred jurisdiction, and that once the jurisdiction of the home state has been invoked, resulting in an initial custody determination, it maintains continuing jurisdiction over custody matters related to the child even if that child moves to a new jurisdiction afterwards unless the connection to that initial determination state has become so attenuated as to be virtually nonexistent..Six months of consecutive residence with a parent typically results in the designation of a jurisdiction as the home state of the child. Both the UCCJA and the UCCJEA contain provisions that treat foreign nations as though they were different jurisdictions within the United States for purposes of the laws’ application.[1] Both the UCCJA and the UCCJEA apply regardless of the whether or not the Hague Convention may also be invoked in a given case.

Though similar to the Hague Convention as far as their applicability to foreign nations is concerned, there are some differences. Unlike proceedings under the Hague Convention, there is no State involvement in proceedings under the UCCJA or the UCCJEA. Proceedings under the Acts are initiated and maintained by private parties. There is no concept of a "Central Authority" in this context. It is important to remember that the Hague Convention does not deal directly with issues of custody while the UCCJA and UCCJEA do deal with custody determinations and their enforcement.

It should be noted that the passage of these two Acts by the United States insofar as they relate to their applicability to foreign nations is an entirely praiseworthy thing. The United States is under no compulsion to recognize the jurisdiction or enforceability of foreign decrees with which they do not have a treaty for this purpose, and this voluntary contribution to creating a uniform and fair method for adjudicating custody issues with international complications is worthy of imitation by other countries.

Even so, not every foreign decree or jurisdiction will be entitled to the same degree of recognition and enforcement under the Acts. Assume that a child's mother, against the wishes of the child's father, has brought a child to the United States from Russia, which is not a party to the Hague Convention, and refuses to return, and that the mother then initiates a custody proceeding in the United States in the hope of keeping the child with her in New York. Assume that the issue of custody has previously been addressed by the Russian courts and that the father has been granted certain rights under it. Assume also that the mother has been living in New York with the child for more than six months. The father objects and claims that Russia is the more appropriate forum for adjudicating any custody dispute and that the instructions of the Russian decree should be honored. The court will weigh a number of considerations when deciding how to rule on the father's claims and whether to refrain from making a custody determination in favor of Russia's jurisdiction, including: the connection of the child to the foreign jurisdiction being promoted, the timing of the proceedings' commencement, the fairness of the foreign forum, the convenience of the foreign forum, the existence of any foreign decrees prior to the initiation of the US proceeding, the citizenship of the parties, and the extent to which the foreign forum grants the parties notice and the opportunity to be heard under its proceedings.

Remember though, physical presence in the new U.S. jurisdiciton for more than six months, even where there has been no initial custody determination in any other jurisdiction, does not guarantee that the new jurisdiction will make a custody determination. In these circumstances the courts will consider how it is that the child came to be in the new jurisdiction, and if the answer lies in the reprehensible conduct of the parent invoking its jurisdiction, as it may in the case of an unjustified parental kidnapping, for instance, the court will refrain from exercising jurisdicition. 

An expert in the laws of the foreign forum as wel as the UCCJA and UCCJEA would be very useful in making the appropriate arguments in the different scenarios that may arise.

 Of particular value to the party seeking to enforce a foreign custody decree, including one given by a foreign nation, are the mechanisms created by the UCCJA and the UCCJEA for registration and enforcement. The registration of a foreign decree, a simple and quick process to which only limited objections may be raised, makes the foreign decree an immediate candidate for enforcement.

The many details, both procedural and substantive, of the UCCJA and the UCCJEA are beyond the scope of this article. However, the Acts are an extremely valuable tool that may well provide salvation for a parent whose child has been taken from a non-Hague Convention country to the United States. 

Habeas Corpus

The habeas corpus application (a brief history of which may be found here) is best known for its use by prisoners demanding that a court examine the circumstances and legitimacy of their own imprisonment. However, the habeas corpus proceeding is available to a parent who contends that another is detaining their child as well. New York's Domestic Relations Law makes specific reference to this type of application, which is to be made to the Supreme Court, and requires a consideration of what custody arrangements are in the best interests of the child.[2] The filing of such a petition is a speedy way to bring the issue to the court's attention and possibly to recruit the assistance of state prosecutors.

When the Child is Abducted to a Non-Hague Convention Country Outside the United States