by

Daniel Forrest

Published on March 07, 2021 in the

Custody, divorce, family law, spouse support

Are you a Florida parent who is concerned that your ex-spouse, separated spouse, or partner who is your child’s other parent from another country may bring your child without your permission or contrary to instructions from the Florida custody court brought or brought to this country? Or did this parent take your child abroad with your permission but did not return as agreed?

Regardless of your family circumstances, parents in Florida wishing to take legal action to bring their child home from abroad in a similar situation can use procedures under an international treaty that the United States has signed with approximately 100 other countries. The treaty created international procedures to enable authorities in other countries to send children under the age of 16 back to their home countries if their parents wrongly took them out of their home countries or kept them abroad.

The Hague Abduction Convention

Under the Hague Convention, international parental abductions are handled using a special procedure designed to move forward quickly. The parent who lives the child – called the country of “habitual residence” – must submit an application to the country where the child is imprisoned (if that nation has also signed the treaty and the United States and that country have one Have entered into a contractual partnership). called a return petition or a Hague motion. The petition asks the country’s “central authority” for abduction cases in order to locate the child and coordinate his return.

Whether the removal or retention of the child is illegal is determined by the custody decision at the place of habitual residence.

Determination of habitual residence

Sometimes the parents argue about which country the child usually resides in. The US Supreme Court stated in the recent Monasky v Taglieri case that courts in several Hague Convention countries hold that habitual residence is a very factual issue that asks, “Where is this child at home ? “

This does not depend on an agreement between the parents, but on a factual analysis. The child’s actual living situation may even show that the place of habitual residence contradicts an agreement between the parents. According to Monasky, the focus should be on where the child is part of a “social and family environment”.

What will the central authority of the other country do?

If the child is under 16 years of age, wrongly brought or kept there, and the home parent exercised custody (or would have been prevented by the abduction), the central authority should facilitate the child’s return to his or her habitual residence, regardless on the nationality or immigration status of the parents or the child.

However, the contract contains a few exceptions that allow the other country – usually through its judicial system – to refuse to return the child:

• Risk of physical or mental harm or other inappropriate circumstances
• Objection from a mature child
• Adjustment of the child to the new environment if more than a year has passed since the abduction
• Parents at home gave permission to leave or stay abroad
• Violation of human rights or freedoms protected in a country of abduction that does not exist at home
• The parent making the application did not exercise custody at the time of the kidnapping

This introduces a complex area of ​​law that a seasoned family lawyer can explain in more detail. An attorney can assist with a Hague petition, communications with the US State Department, and other stages of the application to return a child from abroad.