Moody: I want Mahtob to grow up here.
Betty Mahmoody: No!
Moody: I think she should become a Muslim!
Betty Mahmoody: No! No!
Betty Mahmoody: You lied to me. You lied to me! You held the Koran and you swore to me that nothing was going to happen. You were planning this all the time. You lied to me!
— Not Without My Daughter (1991)
Custody battles are hard enough. Can you imagine the horror facing a parent involved in a case of international parental abduction? If such a parent contacted you, what would you do?
Jeremy Morley has prepared The Hague Abduction Convention: Practical Issues and Procedures for the Family Lawyer to assist any divorce and family law attorney meeting with a potential client under these circumstances. Morley is a New York lawyer who concentrates on international family law. He is also the author of International Family Law Practice and has served as an expert witness on such issues. He has much to convey to the divorce and child custody lawyer.
Morley defines the purpose of The Hague Abduction Convention as follows:
The purpose of this book is to explain as clearly as possible to family lawyers how the Hague Convention on the Civil Aspects of International Child Abduction works in the United States. The Convention operates in this country in ways that are different from other Hague countries. This is because of the federal legislation that implements the treaty, the concurrence of federal and state jurisdiction, the uniform state legislation on child custody jurisdiction, and a host of other factors.
As you might imagine, child custody cases can be placed into two broad categories: abductions from the United States into other countries and abductions from other countries into the United States. The Hague Abduction Convention covers the “incoming” abductions, meaning abductions from other countries into the United States.”
U.S. courts have no jurisdiction under the Convention in the case of “outgoing” abductions from the United States to other countries, with limited exceptions, since those cases must be brought in the courts of the foreign country to which the child has been abducted. The primary exception to this principle is that the judicial or administrative authorities of the country to which a child has been taken may, before ordering the child’s return, request that the applicant obtain from the authorities of the state of the habitual residence of the child a decision or other determination that the removal or retention was “wrongful” within the meaning of the Convention. (Article 15 of the Convention).
The chapters in The Hague Abduction Convention reveal the book’s scope and its usefulness to any child custody attorney facing these international issues. The scope begins with a summary of the Convention itself and moves forward through: procedural and practical issues; habitual residence; rights custody; consent and acquiescence; one year and settled exception; child’s objection to a return; grave risk of harm exception; human rights exception; and international relocation and travel — all relevant issues for the divorce and child custody attorney. There are 7 appendices. As with many ABA books, The Hague Abduction Convention (376 pages) includes a CD-ROM with the appendices.
The Convention is simple in theory, promoting the greater good of not rewarding the parent who removes a child from his or her habitual residence. The practical difficulty with the Convention is that it requires a judge to apply the law without regard either to his or her own notion of what is just and fair and best or to the media’s coverage and resulting public opinion. “Indeed, the decisions in many cases reflect a struggle between the instinct of a judge to do what is in the best interests of the child and the philosophy of the Hague Convention that the best interests determination should be left to the courts of the child’s prior habitual residence.”
These child custody disputes raise issues related to federal and state court litigation, the Hague Convention itself, the Uniform Child Custody Jurisdiction and Enforcement Act, and foreign laws governing child custody. Morley explains the interplay of so many issues, and highlights the difficulty our minds have separating our “best interests of the child” mindset from the Convention’s core value:
The central tenet of the Hague Convention is that while any custody determination must be based on an analysis of the child’s best interests, that issue should be decided by the courts of the country in the habitual residence from which the child was taken and not by the courts of the country to which a child was wrongfully removed or in which the child was wrongfully retained.
The Sixth’s Circuit’s objective circumstances test for determining a child’s habitual residence is covered in detail, the second of three approaches taken by divorce and child custody courts in the United States — all of which the divorce and child custody attorney should be familiar with. Several chapters include the applicable analysis of Convention provisions broken down into “step-by-step” guides. Morley also includes suggested language for orders.
There is quite a difference between understanding legal concepts and proving them in a divorce and child custody court. Fortunately, The Hague Abduction Convention does a good job of outlining the evidentiary proof to be considered in Convention litigation. There are sections devoted to useful evidence related to: burden of proof; a child’s testimony; a parent’s move overseas; consent; expert testimony; and grave risk of harm, which is extremely useful to the divorce and child custody attorney.
HOW SARNACKI LAW FIRM IN GRAND RAPIDS CAN HELP
Divorce and family lawyers need some basic understanding of the Hague Convention, and Morley meets this need. With the many faces of globalization, our divorce and child custody clients will present questions and concerns related to travel, abduction, future marriages and divorces. The questions and concerns deserve meaningful and correct responses from you, the divorce and child custody expert. Clients want some assurance that the “nothing was going to happen” doesn’t happen, and they need help if it does happen. Morley’s The Hague Abduction Convention positions you, the expert in divorce and family law, to assist in the face of unimaginable horror.
Jeremy D. Morley, The Hague Abduction Convention: Practical Issues and Procedures for the Family Lawyer (American Bar Association 2012). $149.95.