In the eyes of the law, it is considered an abduction when your child has been taken from you and brought across an international border by his/her parent or another non-custodial family member. This is a terrifying situation for you to experience as a parent and may be scary for your child, too. It’s made even scarier when it happens during the COVID-19 pandemic, a time when Americans who are traveling across borders are at risk of contracting the Coronavirus. You are likely very concerned about your child’s health and want him or her returned to you without having been exposed to the virus.
If your child has been abducted in violation of your custody agreement, you should first work with your international family lawyer in St. Paul to determine whether proceeding under the Hague Convention is actually the best course of action for your situation. In the case of domestic abductions, for example, there is a law called the Uniform Child Custody Jurisdiction and Enforcement Act that may also apply. Once your attorney has determined that the Hague Convention applies to your case, here is how you may want to proceed.
Be Prepared to Act Fast
Time is not on your side when trying to institute a Hague Convention lawsuit. Theoretically, a case can be instituted a year or more after the abduction of the child. However, an exception to the Convention may arise if the child is established in the new environment (has been attending school, participating in extracurriculars, etc.). As a result, your attorney will need to file a Hague Convention applications and institute a lawsuit promptly following the abduction. This can be tricky with the current social distancing guidelines, but many attorneys are working remotely and will be able to assist you promptly.
For the well-being of the child, it is recommended that Hague cases be resolved within six weeks. You will need to move quickly to show your urgency in having your child returned to you, but also because you will need to gather and compile the documents your attorney needs for the hearing. This is necessary to develop evidence of your claim and win your case.
Intense Preparation will Aid Your Attorney’s Factual Presentation
When it comes to preparing evidence for your Hague Convention case, be ready to do so both promptly and intensely. This type of case will hinge on the ability of one party to convince the court of matters such as:
- the habitual residence of a child
- the nature of the left-behind parent’s custody rights under the foreign law
- the extent to which the parent(s) actually exercised custody rights
- whether or not a parent consented to a new residency (and whether such consent was conditional)
- whether the child has become well settled in his or her new environment
- whether the child was abused, either physically or psychologically
- whether the taking parent was abused in such a way that there was an impact on the child
- the age and maturity level of the child
- whether and why the child objects to being returned
Of course, you want to be the party whose voice is heard and who convinces the court of your argument. As such, a good legal argument based in fact is everything. While this is certainly an emotional and scary situation for you and your child, the courts are more interested in the compelling legal reasons why your child should be returned to you. You can assist your international relocation and child abduction attorney in proving your argument by organizing your documents prior to the case and offering up any evidence the pertains to the aforementioned matters.
Remember, There May Be Interim Relief
You’ve already experienced a traumatic event: your child has been taken without your permission during a confusing and unpredictable time. To prevent further traumatization of your child and yourself during the Hague Convention case, there may be interim relief provided by the court. The International Child Abduction Remedies Act expressly authorizes the state or federal court handling a Hague case to order provisional remedies to protect the well-being of the child involved. This means your international relocation and child abduction attorney may be able to assist you in seeking interim access to your child as a result of the Act.
Hiring an Inexperienced International Child Custody Disputes Attorney Could Break Your Case
International family disputes have many moving pieces. The laws of the state, federal government, foreign country and international treaties (such as the Hague Convention) may need to be read, and interpreted, together. This is complicated to say the least and should not be attempted without the assistance of an experienced and knowledgeable international family law attorney.
Allison Maxim and Tara Smith are St. Paul international divorce attorneys who protect the rights of parents and children. They understand that any loving parent’s priority is their child’s health and happiness. Consequently, both attorneys want to help ensure child custody orders are honored by all family members.
Maxim Smith Law has successfully helped individuals throughout the world resolve their international and interstate divorce issues. The firm also helps clients obtain and enforce international and interstate child support orders as they arise. If you want the best shot at winning a Hague Convention case, contact Maxim Smith’s St. Paul child abduction attorneys for a virtual consultation right away.