Sean Goldman was four years old when he went with his mother to Brazil for a two-week “vacation.” His mother refused to return him. Sean’s New Jersey-based father obtained a New Jersey court order that Sean had been wrongfully retained in Brazil. The mother filed in Brazil for divorce from the father, then remarried a new husband in Brazil, and later died in Brazil while giving birth to another child with her new husband. The Brazilian husband claimed custody of Sean, even though Sean’s father was alive and well, and desperately wanted Sean back. Brazil is a signatory to the Hague Convention, yet the courts there failed to order Sean’s return. The situation turned into a heated diplomatic crisis between Brazil and the United States, and it took the intervention of then-Secretary of State Hilary Clinton to get Sean home to his father. Sean’s two-week vacation turned into a five-and-a-half-year ordeal. While the latest news reports indicate Sean is now doing well emotionally, imagine the impact of this trauma on a little boy.

The Hague Convention on the Civil Aspects of International Child Abduction was specifically designed for cases like this and should have resulted in Sean’s immediate return to New Jersey. And Brazil signed the Convention treaty. Yet the Court system in Brazil is known for failing to follow the Convention its government signed.

Tip # 1 – Judges and lawyers should be exceptionally careful about allowing any U.S. child to visit Brazil

The Hague Convention was created as a mechanism to compel the quick return of children wrongfully removed from their habitual residence. The Convention is a powerful tool designed to address international child abduction and frequently works well with other jurisdictions. The Convention was designed to work fast. The Convention anticipates a final ruling by a judge within six weeks.  And it would have worked for Sean Goldman if the Courts in Brazil followed the law.

Tip #2 – Check the U.S. State Department website for a list of countries which have signed the treaty

Not all nations are treaty partners. For a current list, check the website of the U.S. State Department at “travel.state.gov.”

Tip # 3 – Judges and lawyers should be prepared to expedite these cases over almost all other matters on their dockets

It is critical for judges and lawyers to know the difference between a Hague case and other international case types. A Hague petition is not used to decide custody. Custody is decided in the local court system of the child’s habitual residence. The Hague process merely returns the child to the habitual residence so that custody can properly be decided there. And a Hague case is designed to work fast. Unless everyone makes these cases a priority, there is little chance of achieving a final ruling in six weeks.

Tip #4 – File the Hague petition in the jurisdiction where the child was taken TO, not where the child was taken FROM

A Hague petition should be filed only in the location where the child is currently located, asking the local court to return the child to their habitual residence. It is frequently referred to as a “return petition.” Many judges and lawyers mistakenly believe that all international child custody disputes involve Hague issues; this is wrong. The Convention only applies to actions seeking return of children wrongfully removed. For example, if the child’s habitual residence is Miami, and the child is taken out of Miami, there may be a custody claim in a Florida Court under Florida Statute 61. But there should not be a “return petition” filed here. The return petition would have to be filed in the country where the child is currently located. Then, if the child is returned, custody can be litigated under Florida Statute 61 in a Florida Corut.

Tip #5 – You may file in either State or Federal Court

The Hague Convention is one of the few case types which can be filed in either State or Federal courts. The implementing statute approved by the U.S. Congress (ICARA) provides concurrent jurisdiction. There are strategic reasons lawyers choose to file in one court or the other. Federal courts rarely deal with children’s issues and Federal judges may not have experience or training on the needs of children. But in a Hague Convention case, the court is generally not supposed to consider a child’s best interest. Some practitioners prefer to file in Federal courts specifically because the legal issue (i.e., prompt return) is quite narrow, whereas a state court judge might be too tempted to wade into consideration of a child’s best interest. But a properly trained State Court Judge should know better.

Tip #6 – Don’t freak out if you get a letter from the U.S. State Department

A judge typically learns about a pending Hague Convention return petition when they receive a letter from the U.S. State Department alerting the judge about the case. This is not an ex-parte communication; the State Department is merely letting the judge know a claim has been filed. The State Department may offer resources to help the court, and there are also resources for lawyers and parties, but the State Department does not discuss the facts of any case with the judge. The resources can be quite helpful to anyone on either side of the case who is unfamiliar with return petition procedures.

Tip #7 – Address core issues first; stipulate to certain facts if possible

The Hague return petition typically raises only a few legal issues to resolve: 1) is the child under 16 years old? The Convention does not apply to older children. This fact can usually be proven by stipulation, which saves time and attorney’s fees; 2) does the left-behind parent have rights of custody? This is usually determined by the law of a foreign jurisdiction and may require expert testimony. Yet it, too, is often resolved by stipulation; 3) was the child wrongfully removed or retained from their habitual residence? Even if the ultimate conclusion about wrongful removal cannot be resolved by stipulation, certain underlying details may not be in dispute, such as the date of departure, the means of travel, the date the return petition was filed, or the length of time the child lived in the former location. Again, any stipulation on underlying facts will save time and money; and 4) are there any defenses to prevent return? Attempt to stipulate to as many underlying facts as possible. Remember, the deadline for a final ruling is quite short.

Tip #8 – Case management conferences are critical

If the child is wrongfully removed to Florida, a return petition could be filed here. The judge should order a case management conference immediately to schedule further hearings, coordinate discovery, and prepare to meet the six-week deadline. Lawyers should insist this case be expedited on the Court’s docket. These cases are rare and quite unusual for a family law attorney. But when they arise, they require expedited attention and specific expertise.

Tip #9 – Know your Evidence Code

Petitioner’s counsel must be prepared to prove (not just argue) that the left behind parent has rights of custody. “Rights of custody” under the convention generally arise from three sources: 1) operation of law in the child’s habitual residence; 2) a judicial decree; or 3) an agreement of the parties which is recognized under law in the habitual residence. The lawyer should be prepared to establish proof with admissible evidence (including proper translations of foreign laws or court orders and possible expert testimony). The Florida rules of evidence apply in Florida return petition cases. The Federal rules of evidence apply in Federal return petition cases.

Tip #10 – Know the difference between habitual residence, domicile, and home state

Habitual residence under the Hague Convention is not the same as domicile. It is also not the same concept as “home state” under the UCCJEA. It is important that judges and lawyers appreciate these differences. There may be different rights and remedies under each concept.

Tip #11 – Know your burdens of proof

The Hague Convention does provide certain defenses to prevent return of a child: 1) more than one years has passed since the wrongful removal or retention and the child is settled in a new environment; 2) the other parent acquiesced in the child’s removal or retention; 3) the left behind parent was not exercising rights of custody; 4) return of a child would expose them to a grave risk of harm; 5) return would violate fundamental freedoms. Case law in the U.S. has also established other defenses, such as waiver and fugitive disentitlement. Respondent’s counsel must be prepared to prove (not just argue) their defenses.

It is also important for judges and lawyers to understand that the “grave risk of harm” defense is not the same as a determination of what is in the child’s best interest. And ICARA requires this defense to be proved by clear and convincing evidence. Other defenses need only meet the preponderance of the evidence standard.

Child abduction cases can be dramatic. They are distressing for the taking parent, the left-behind parent, and (especially) the child. The Hague Convention on the Civil Aspects of International Child Abduction is a terrific mechanism to determine WHERE an international custody dispute will be resolved. It is designed to work fast. But it is not designed to end all disputes. If a child is returned, the parents must still litigate what is in the best interest of the child, including issues such as timesharing and parental responsibility. But, at least in theory, the case is now pending in the jurisdiction of child’s habitual residence, where most of the evidence needed to prove best interest exists.

Tip #12 – Don’t forget about Mediation

Even in these highly charged cases, and even with short timeframes, many issues can still be resolved in mediation. This is always worth a try to save time and money. And during mediation the parties can agree to ways on minimize the adverse effects of long-distance disputes on children. Just because the court in a return petition cannot consider best interest evidence, the parties should be encouraged by their counsel to consider the needs of their children at each stage of the case.