International SAPCR Issues
I. Prevention of International Parental Child Abduction Act
The Prevention of International Parental Child Abduction Act (PIPCA) applies to all suits affecting the parent-child relationship. See Tex. Fam. Code §§ 153.501–.503. In applicable cases, PIPCA ensures that courts determine the risk of international parental child abduction and order preventive measures based on that risk with the goal of discouraging or preventing international parental abduction in high-risk cases. See John J. Sampson, et al., Sampson, Tindall & England’s Texas Family Code Annotated ch. 153, subchapter I, cmt. (31st ed. 2021).
§ 55.2Potential Risk of Abduction
In a suit affecting the parent-child relationship, if a party presents credible evidence to the court that indicates a potential risk of international abduction of a child by the child’s parent, the court, on its own motion or at a party’s request, shall determine whether it is necessary to take one or more of the measures described in Family Code section 153.503 to protect the child from the risk of abduction by the parent. Tex. Fam. Code § 153.501(a).
In making its determination whether to take any of the measures described in Family Code section 153.503, the court shall consider (1) the public policy of Texas assuring that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child and the consideration of the best interest of the child under Family Code section 153.002; (2) the risk of international abduction of the child by a child’s parent based on the court’s evaluation of the risk factors described in Family Code section 153.502; (3) any obstacles to locating, recovering, and returning the child if the child is abducted to a foreign country; and (4) the potential physical or psychological harm to the child if the child is abducted to a foreign country. Tex. Fam. Code § 153.501(b).
In a hearing under PIPCA, it is a third-degree felony to knowingly make a false statement relating to a child custody determination made in a foreign country, or to knowingly cause such a false statement to be made. Tex. Penal Code § 37.14.
To determine whether there is a risk of the international abduction of a child by the child’s parent, the court shall consider evidence that the parent (1) has taken, enticed away, kept, withheld, or concealed a child in violation of another person’s right of possession of or access to the child, unless the parent presents evidence that parent believed in good faith that the parent’s conduct was necessary to avoid imminent harm to the child or the parent; (2) has previously threatened to take, entice away, keep, withhold, or conceal a child in violation of another person’s right of possession of or access to the child; (3) lacks financial reason to stay in the United States, including evidence that the parent is financially independent, is able to work outside the United States, or is unemployed; (4) has recently engaged in planning activities that could facilitate the removal of the child from the United States by the parent, including quitting a job, selling a primary residence, terminating a lease, closing bank accounts, liquidating other assets, hiding or destroying documents, applying for a passport or visa or obtaining other travel documents for the parent or the child, or applying to obtain the child’s birth certificate or school or medical records; (5) has a history of domestic violence that the court is required to consider under Family Code section 153.004; or (6) has a criminal history or a history of violating court orders. Tex. Fam. Code § 153.502(a). In considering evidence of planning activities in item (4) above, the court must also consider any evidence that the parent was engaging in those activities as part of a safety plan to flee from family violence. Tex. Fam. Code § 153.502(a–1).
If the court finds that there is credible evidence of a risk of international abduction of a child by the child’s parent based on the court’s consideration of the above risk factors, the court shall also consider evidence regarding whether the parent (1) has strong familial, emotional, or cultural ties to another country, particularly a country that is not a signatory to or compliant with the Hague Convention on the Civil Aspects of International Child Abduction and (2) lacks strong ties to the United States, regardless of whether the parent is a citizen or permanent resident of the United States. Tex. Fam. Code § 153.502(b); see Gerges v. Gerges, 601 S.W.3d 46, 58–60 (Tex. App.—El Paso 2020, no pet.) (court must find credible risk of international abduction before considering these factors).
If the court finds that there is credible evidence of a risk of international abduction of a child by the child’s parent based on the court’s consideration of the risk factors listed in Family Code section 153.502(a), the court may also consider evidence regarding whether (1) the parent is undergoing a change in the status with the United States Immigration and Naturalization Service that would adversely affect that parent’s ability to legally remain in the United States; (2) the parent’s application for United States citizenship has been denied by the United States Immigration and Naturalization Service; or (3) the parent has forged or presented misleading or false evidence to obtain a visa, a passport, a Social Security card, or any other identification card or has made any misrepresentation to the United States government. Tex. Fam. Code § 153.502(c)(1)–(3). See also Wiese v. AlBakry, No. 03-14-00799-CV, 2016 WL 3136874, at *6 (Tex. App.—Austin June 1, 2016, no pet.) (mem. op.) (Hague Convention expressly provides that parent’s residency status is immaterial to evaluation of potential risk of abduction, and change in residency status is not considered material and substantial change to support imposition or modification of restrictions on international travel).
The court may also consider whether the foreign country to which the parent has ties (1) presents obstacles to the recovery and return of a child who is abducted to the country from the United States; (2) has any legal mechanisms for immediately and effectively enforcing an order regarding the possession of or access to the child issued by a Texas court; (3) has local laws or practices that would enable the parent to prevent the child’s other parent from contacting the child without due cause; restrict the child’s other parent from freely traveling to or exiting from the country because of that parent’s gender, nationality, or religion; or restrict the child’s ability to legally leave the country after the child reaches the age of majority because of the child’s gender, nationality, or religion; (4) is included by the United States Department of State on a list of state sponsors of terrorism; (5) is a country for which the United States Department of State has issued a travel warning to United States citizens regarding travel to the country; (6) has an embassy of the United States in the country; (7) is engaged in any active military action or war, including a civil war; (8) is a party to and compliant with the Hague Convention on the Civil Aspects of International Child Abduction according to the most recent report on compliance issued by the United States Department of State; (9) provides for the extradition of a parental abductor and the return of the child to the United States; or (10) poses a risk that the child’s physical health or safety would be endangered in the country because of specific circumstances relating to the child or because of human rights violations committed against children, including arranged marriages, lack of freedom of religion, child labor, lack of child abuse laws, female genital mutilation, and any form of slavery. Tex. Fam. Code § 153.502(c)(4).
If the court finds credible evidence of a risk of international abduction of a child and that orders are necessary under Family Code section 153.501, the court may appoint a person other than the child’s parent who presents a risk of abducting the child as the child’s sole managing conservator or require supervised visitation of the parent by a visitation center or independent organization until the court finds under section 153.501 that supervised visitation is no longer necessary. Tex. Fam. Code § 153.503(1), (2); In re Sigmar, 270 S.W.3d 289 (Tex. App.—Waco 2008, orig. proceeding [mand. denied]).
The court may enjoin the parent or any person acting on the parent’s behalf from disrupting or removing the child from the school or child care facility in which the child is enrolled or approaching the child at any location other than a site designated for supervised visitation. Tex. Fam. Code § 153.503(3).
The court may order passport and travel controls, including controls that prohibit the parent and any person acting on the parent’s behalf from removing the child from Texas or the United States; require the parent to surrender any passport issued in the child’s name, including any passport issued in the name of both the parent and the child; and prohibit the parent from applying on behalf of the child for a new or replacement passport or international travel visa. Tex. Fam. Code § 153.503(4).
The court may require the parent to provide (1) to the United States Department of State’s Office of Children’s Issues and the relevant foreign consulate or embassy written notice of the court-ordered passport and travel restrictions for the child and a properly authenticated copy of the court order detailing the restrictions and documentation of the parent’s agreement to the restrictions and (2) to the court proof of receipt of the required written notice by the United States Department of State’s Office of Children’s Issues and the relevant foreign consulate or embassy. Tex. Fam. Code § 153.503(5).
The court may order the parent to execute a bond or deposit security in an amount sufficient to offset the cost of recovering the child if the child is abducted by the parent to a foreign country. Tex. Fam. Code § 153.503(6).
The court may authorize the appropriate law enforcement agencies to take measures to prevent the abduction of the child by the parent. Tex. Fam. Code § 153.503(7).
The court may include in its order provisions identifying the United States as the country of habitual residence of the child, defining the basis for the court’s exercise of jurisdiction, and stating that a party’s violation of the order may subject the party to a civil penalty or criminal penalty or to both civil and criminal penalties. Tex. Fam. Code § 153.503(8).
The Hague Convention website, www.hcch.net, provides the text of the Hague Convention, a list of contracting states, contact details of Central Authorities, and other helpful information.
Other helpful resources are https://travel.state.gov/content/travel/en/International
-Parental-Child-Abduction.html and http://bringseanhome.org/ (lists active cases and helpful resources).
[Sections 55.6 through 55.10 are reserved for expansion.]
II. Adoption of Foreign-Born Children
§ 55.11International Adoptions and U.S. Citizenship
International adoptions fall into two categories: Hague Convention adoptions and non–Hague Convention adoptions. In April 2008 the United States became compliant with the rules and regulations of the Hague Convention on Intercountry Adoption. The Convention standards were designed to create international practices that prevent the sale of children, human trafficking, and child abduction. They also help to ensure that the adoptions are in the best interest of the child. To process an adoption with a Hague Convention country, the adoptive family must work with an approved person or an accredited agency who meets federal requirements.
As of July 14, 2014, families who adopt from non–Hague Convention countries are also required to work with an approved person or an accredited agency in order to comply with the Intercountry Adoption Universal Accreditation Act of 2012 (UAA). 42 U.S.C. §§ 14901–14925.
Children born abroad who have been adopted by U.S. citizens in a foreign country will be issued a variety of visas. The adoptive parents will apply for the appropriate visa at the U.S. consulate office in the country where the adoption is granted. If the adoptive parents traveled to meet the child before the adoption they will receive an IR-3 visa if they are adopting from a non–Hague Convention country or an IH-3 visa if they are adopting from a Hague Convention country. The IH visa is a new classification for children coming from a Hague Convention country. Pursuant to the Child Citizenship Act of 2000, Pub. L. No. 106-395, 114 Stat. 1631 (Oct. 30, 2000), a child born abroad and adopted by a U.S. citizen who enters the United States with an IR-3 or IH-3 visa automatically obtains the status of a U.S. citizen on entry into the United States. A certificate of citizenship should be received within forty-five days after the child’s arrival in the United States. There is no need to apply for a certificate of citizenship in these cases.
If both of the adoptive parents did not travel to meet the child before the adoption finalization in the foreign country, they will receive an IR-4 or an IH-4 visa. Children born abroad who enter the United States based on a custody order will also be issued an IR-4 or IH-4 visa. A child who enters the United States with one of these visas will not automatically receive a certificate of citizenship. If the adoptive parents only have legal guardianship when they enter the United States with the child they must obtain a U.S. adoption before the child turns sixteen years of age and then apply to the U.S. Citizenship and Immigration Services to receive citizenship for the child.
If the adoption is granted abroad and the child enters with an IR-4 or IH-4 visa, the adoptive parents can (1) apply for citizenship after they reside with the child in the U.S. for two years or (2) apply for a judicial recognition of their adoption and apply for citizenship following the entry of the decree. Failure to apply for citizenship on behalf of the child could result in deportation at a later date.
For more details regarding foreign adoption, see https://travel.state.gov/content/travel/en/Intercountry-Adoption/Adoption-Process.html and https://travel.state
.gov/content/travel/en/legal-considerations/us-citizenship-laws-policies/child
-citizenship-act.html (Child Citizenship Act of 2000).
§ 55.12Registration of Foreign Order
An adoption order (or its equivalent) rendered to a resident of Texas by a foreign country must be accorded full faith and credit by a Texas court and enforced as if the order were rendered by a Texas court unless the adoption law or process of the foreign country violates the fundamental principles of human rights or the laws or public policy of Texas. Tex. Fam. Code § 162.023(a).This is accomplished by the filing of a petition for registration of a foreign adoption, which may include a request for a name change. See form 55-11 in this manual. On a finding by the court that the foreign adoption order meets the requirements of Family Code section 162.023(a), it shall order the state registrar to register the order under Health and Safety Code chapter 192 and file a certificate of birth for the child under Health and Safety Code section 192.006. Tex. Fam. Code § 162.023(b).
Some judges take the position that the registration is ministerial and administrative and a hearing with testimony is unnecessary. Judges following this line of thought believe that the filing of the petition, with supporting documents, and an order is sufficient for the court to sign the registration order. Other judges believe that a hearing is required. Before filing a petition to register a foreign adoption order, the attorney should check with the district clerk and the court to ascertain the policy in that jurisdiction. The practitioner should also check with the court to determine what supporting documents should be filed. Some judges see their role as ruling that the adoption is in the best interest of the child, and therefore they will require a copy of the home study, post-placement reports, and the criminal history check. Other judges take the position that the adoption has already been ruled on and that they merely have to determine that the order submitted for registration is a valid order.
The vital statistics unit will require a completed certificate of adoption (see form 53-28 in this manual) in order to prepare the new certificate of birth. The fees associated with filing and obtaining an amended birth certificate based on a foreign adoption are the same as for an amended birth certificate following a domestic adoption. Under the federal regulations an adoption that is finalized in compliance with the Hague Convention does not require a readoption; however, the Texas Department of Health vital statistics unit requires a certificate of adoption in order to issue a Texas birth certificate for a child who is born abroad. For the clerk of the court to issue a certificate of adoption, a suit must be filed to register the foreign judgment and an order entered.
§ 55.14Domestic Adoption of Foreign-Born Children
COMMENT: The practitioner should be extremely cautious when processing an adoption in the United States when the adoption involves a child from a Hague Convention country. Failure to handle the case correctly can result in the child’s being denied permanent residence in the United States.
If a child to be adopted is a citizen of a Hague Convention country but is present in the United States, it may be possible to process the adoption as a domestic adoption by securing a letter from the Central Authority of the child’s country of origin stating that they consider the child to be a habitual resident of the United States. If the Central Authority in the child’s country of origin does not respond within 120 days after receiving notice or a longer time as determined by the court, the case can proceed as a domestic adoption. There must be proof that the Central Authority was notified, and the decree must contain a recital that the notice was provided. Failure to process the case in the proper manner can lead to the child’s failure to receive legal status in the United States, and therefore the child will be subject to future deportation even though the child has been adopted by U.S. citizens.
A child who was born in a non–Hague Convention country but is residing in the United States can be adopted through a domestic adoption process. The child will qualify for citizenship if he is adopted by U.S. citizens and the adoption is finalized before the child’s sixteenth birthday.
[Sections 55.15 through 55.20 are reserved for expansion.]
III. Hague Convention and International Child Abduction
Remedies Act
The Convention on the Civil Aspects of International Child Abduction (“Hague Convention” or “Convention”) was established at The Hague on October 25, 1980, to provide a remedy for international child abductions. See Hague Convention on the Civil Aspects of Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, reprinted in 51 Fed. Reg. 10498 (March 26, 1986). The objectives of the Hague Convention are to secure the prompt return of children wrongfully removed to or retained in any contracting state and to ensure the rights of custody and of access under the law of the contracting state are effectively respected in other contracting states. Hague Convention, art. 1, 51 Fed. Reg. at 10498.
The text of the Hague Convention can be found at www.hcch.net/en/instruments/
conventions/full-text/?cid=24.
A list of nations that have ratified or acceded to the Convention with respect to the United States can be found at http://travel.state.gov/content/dam/childabduction/complianceReports/2014.pdf.
§ 55.22International Child Abduction Remedies Act
The United States ratified the Hague Convention on April 29, 1988, and became a “contracting state” effective July 1, 1988. To implement the Convention, Congress enacted the International Child Abduction Remedies Act (ICARA), 42 U.S.C. ch. 121 (later transferred to 22 U.S.C. ch. 97).
In implementing the Convention, Congress found that the Convention provides a sound treaty framework to help resolve the problem of international abduction and retention of children and will deter wrongful removal and retention. 22 U.S.C. § 9001(a)(4). The remedies set out in the Hague Convention and ICARA are not exclusive, but are in addition to others available under other laws or international agreements. 22 U.S.C. § 9003(h).
The text of ICARA can be found at http://travel.state.gov/content/dam/
childabduction/International_Child_Abduction_Remedies_Act.pdf.
§ 55.23Application of Hague Convention
The Convention applies to any child under the age of sixteen who was a habitual resident in a contracting state immediately before the breach of any custody or access rights. Hague Convention, art. 4, 51 Fed. Reg. at 10498; In re S.J.O.B.G., 292 S.W.3d 764 (Tex. App.—Beaumont 2009, no pet.) (Convention did not apply because child was not habitually resident in Norway immediately before child’s removal to Texas).
The Convention does not apply if either the country of habitual residence of the child or the one in which the child is being retained is not a signatory to the Convention. See David B. v. Helen O., 625 N.Y.S.2d 436 (N.Y. Fam. Ct. 1995); In re Mohsen, 715 F. Supp. 1063 (D. Wyo. 1989).
To promote cooperation, the Hague Convention provides for the creation of a central authority responsible for applying the Convention in each country in which it is in force. Any person, institution, or body claiming that a child has been removed or retained in breach of custody rights may apply either to the central authority of the child’s habitual residence or to the central authority of any contracting state for assistance in securing return of the child. Hague Convention, art. 8, 51 Fed. Reg. at 10499.
Each central authority, either directly or through an intermediary, is charged to—
1.discover the whereabouts of a child who has been wrongfully removed or retained;
2.prevent further harm to the child or prejudice to the parties;
3.secure the voluntary return of the child or to bring about an amicable resolution of the issues;
4.exchange social background information regarding the child;
5.provide information as to the law in their state in connection with the application of the Convention;
6.initiate or facilitate judicial or administrative proceedings to obtain the return of the child and rights of access in some cases;
7.where required, provide or facilitate legal advice, counsel, and advisors;
8.provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; and
9.keep each other informed with respect to the operation of the Convention and to attempt to eliminate any obstacles to its application.
Hague Convention, art. 7, 51 Fed. Reg. at 10498.
By executive order dated August 11, 1988, the president designated the United States Department of State as the central authority for the United States, as authorized by ICARA. See 22 U.S.C. § 9006(a). Questions regarding the Convention may be directed to the Office of Children’s Issues, U.S. Department of State, 2201 C Street N.W., SA-22, Room 2100, Washington, D.C. 20520-4818, (telephone) 888-407-4747, (facsimile) 202-312-9743. Information on the Office of Children’s Issues can be found at https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction.html.
The term habitual residence is not defined in the Convention or ICARA. It is a concept intended to be applied to the facts and circumstances of each case. Flores v. Contreras, 981 S.W.2d 246, 249 (Tex. App.—San Antonio 1988, pet. denied) (child’s residence with mother in Mexico for first fifty days of his life sufficient to establish habitual residence in Mexico within meaning of Hague Convention); see also In re J.J.L.-P., 256 S.W.3d 363 (Tex. App.—San Antonio 2008, no pet.). Courts are generally in agreement that habitual residence should be determined by focusing on the child, not the parents, and the court will examine past experience, not future intentions. Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993); see also Flores, 981 S.W.2d at 249; In re J.J.L.-P., 256 S.W.3d at 372.
The concept of “habitual residence” refers to that place that is the focus of the child’s life, where the child’s day-to-day existence is centered. See In re S.H.V., 434 S.W.3d 792 (Tex. App.—Dallas 2014, no pet.) (child’s habitual residence is determined by parents’ last shared intentions and whether children have acclimatized to a new location and thereby acquired a new habitual residence despite any conflict with the parents’ last shared intent); see also In re J.G., 301 S.W.3d 376 (Tex. App.—Dallas 2009, no pet.) (parents’ last place of shared intent as to children’s residence was California and not Mexico, although both parents and children had resided with various relatives in Mexico for a year prior to proceedings). But see In re S.E., No. 02-18-00327-CV, 2019 WL 3492399 (Tex. App.—Fort Worth Aug. 1, 2019, no pet.) (mem. op.) (United States habitual residence status not superseded by children’s subsequent acclimation to Argentina where evidence insufficient to support such finding). The U.S. Supreme Court has since clarified that courts should adopt a “totality of the circumstances” standard instead of “shared intent” standard. Shared intent still may be included as a factor in looking at the totality of the circumstances. See Monasky v. Taglieri, 140 S. Ct. 719 (2020); In re A.Y.S., No. 12-21-00074-CV, 2022 WL 868046 (Tex. App.—Tyler Mar. 23, 2022, pet. denied) (mem. op.).
Habitual residence status is unaffected by temporary absences from the state or the family’s staying in another state for a defined period of less than one year. In re Morris, 55 F. Supp. 2d 1156 (D. Colo. 1999); see also Lops v. Lops, 140 F.3d 927 (11th Cir. 1998), cert. denied, 525 U.S. 1158 (1999).
§ 55.26Wrongful Removal or Retention; Rights of Custody; Rights of Access
The removal or retention of a child is considered wrongful if (1) it is in breach of rights of custody attributed to a person, an institution, or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention and (2) at the time of removal or retention, those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Hague Convention, art. 3, 51 Fed. Reg. at 10498; see also In re Prevot, 59 F.3d 556 (6th Cir. 1995), cert. denied, 516 U.S. 1161 (1996); Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993) (wrongful removal to be strictly defined). But see Toren v. Toren, 191 F.3d 23 (1st Cir. 1999) (mother had custody of children in U.S. by agreement for stated duration; no wrongful retention simply because father believed she would not return children).
The terms wrongful removal or retention and wrongfully removed or retained, as used in the Convention, include a removal or retention of a child before the entry of a custody order regarding that child. 22 U.S.C. § 9003(f)(2).
“Rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence. Hague Convention, art. 5(a), 51 Fed. Reg. at 10498. Under article 12 of the Hague Convention, a child abducted in violation of “rights of custody” must be returned to the child’s country of habitual residence. The U.S. Supreme Court has determined that a ne exeat right is a “right of custody” under the Convention, and therefore a violation of ne exeat rights requires a return remedy. Abbott v. Abbott, 130 S.Ct. 1983 (2010) (if parent has right to consent before other parent can remove child from country where child is living, parent also has right of custody under Hague Convention on International Child Abduction, and child must be returned).
“Rights of access” shall include the right to take a child for a limited time to a place other than the child’s habitual residence. Hague Convention, art. 5(b), 51 Fed. Reg. at 10498.
See the opinion of the Superior Court of New Jersey in Goldman v. Goldman v. Ribeiro Filho & Filho, available at http://bringseanhome.org/nj-superior-court-guadagno
-decision-02-17-2011.pdf (U.S. father filed suit for return from Brazil of his child, who was in custody of deceased mother’s family).
Any person, institution, or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the central authority of the child’s habitual residence or to the central authority of any other contracting state for assistance in securing the return of the child. Hague Convention, art. 8, 51 Fed. Reg. at 10499.
The application for assistance under the Convention must contain—
1.information concerning the identities of the applicant, the child, and the person alleged to have removed or retained the child;
2.if available, the date of birth of the child;
3.the grounds on which the applicant’s claim for return is based; and
4.all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be.
Hague Convention, art. 8, Fed. Reg. at 10499.
The application may be accompanied or supplemented by—
1.an authenticated copy of any relevant decision or agreement;
2.a certificate or an affidavit emanating from a central authority, or other competent authority of the state of the child’s habitual residence, or from a qualified person, concerning the relevant law of the state; and
3.any other relevant document.
Hague Convention, art. 8, 51 Fed. Reg. at 10499.
If the central authority that receives an application referred to it has reason to believe that the child is in another contracting state, it shall directly and without delay transmit the application to the central authority of that contracting state and inform the requesting central authority or the applicant, as the case may be. Hague Convention, art. 9, 51 Fed. Reg. at 10499.
The central authority of the state where the child is shall take or cause to be taken all appropriate measures in order to obtain the voluntary return of the child. Hague Convention, art. 10, 51 Fed. Reg. at 10499.
In the United States, the application will be forwarded by the U.S. State Department, along with a pamphlet entitled “International Parental Child Abduction.” The application for assistance under the Hague Convention on international child abduction can be found online at https://travel.state.gov/content/travel/en/International-Parental
-Child-Abduction/abductions/legain-info-for-parents/why-the-hague-convention
-matters.html. Once the State Department has received the completed application, a representative of the State Department will attempt to place a petitioner in contact with an attorney in the state in which the child is likely to be retained.
Petition to Seek Return of Child: Any person seeking to initiate judicial proceedings under the Convention for the return of a child or for arrangements for organizing or securing the effective exercise of rights of access to a child may do so by commencing a civil action by filing a petition for the relief sought in any court that has jurisdiction of such action and is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed. 22 U.S.C. § 9003(b). See also In re J.J.L.-P., 256 S.W.3d 363, 369–70 (Tex. App.—San Antonio 2008, no pet.).
Jurisdiction: State courts and the United States district courts have concurrent original jurisdiction of actions arising under the Convention. 22 U.S.C. § 9003(a). Jurisdiction under the Convention confers only the power to decide the merits of a wrongful removal claim. A decision concerning the return of the child shall not be taken to be a determination on the merits of any custody issue. Hague Convention, art. 19, 51 Fed. Reg. at 10500; see also Lops v. Lops, 140 F.3d 927 (11th Cir. 1998), cert. denied, 525 U.S. 1158 (1998); Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) (whether parent exercised custody rights well or badly goes to merits of custody dispute, which is beyond subject matter jurisdiction of federal courts).
Federal courts lack jurisdiction to resolve suits seeking access to a child. Fernandez v. Yeager, 121 F. Supp. 2d 1118 (W.D. Mich. 2000).
COMMENT: The attorney should carefully consider where the petition should be filed. Usually, cases are filed in state courts because most attorneys practicing family law are more familiar with the state courts. However, because federal courts do not normally hear custody cases, a federal judge may be better able to look solely at the issue of jurisdiction, as required by the Convention, without becoming distracted by the custody issues.
Notice to Respondent: Notice of the filing of a petition under the Convention must be effectuated according to the applicable law governing notice in interstate child custody proceedings. 22 U.S.C. § 9003(c). In the United States, the Parental Kidnapping Prevention Act (PKPA) governs the issue of notice, requiring that reasonable notice and opportunity to be heard shall be given. See 28 U.S.C. § 1738A.
Petitioner’s Burden of Proof: The petitioner must establish by a preponderance of the evidence (1) in a case for return of a child, that the child has been wrongfully removed or retained within the meaning of the Convention and (2) in the case of an action for arrangements for organizing or securing the effective exercise of rights of access, that the petitioner has such rights. 22 U.S.C. § 9003(e)(1); see also Lops v. Lops, 140 F.3d 927 (11th Cir. 1998); In re Prevot, 59 F.3d 556 (6th Cir. 1995), cert. denied, 516 U.S. 1161 (1996).
Admissibility of Documents: No authentication of the application to the United States central authority, the petition, or any other document or information shall be required in order for the application, petition, document, or information to be admissible in court. 22 U.S.C. § 9005.
Defenses and Exceptions: Among the defenses and exceptions a respondent has available in an action for return of a child are the following:
1.The petitioner had no right of custody or access at the time of the removal or retention. Hague Convention, art. 3, 51 Fed. Reg. at 10498.
2.The petitioner was not exercising a right of custody. Hague Convention, art. 13(a), 51 Fed. Reg. at 10499.
3.The petitioner acquiesced to the removal or retention. Hague Convention, art. 13(a), 51 Fed. Reg. at 10499; see Currier v. Currier, 845 F. Supp. 916 (D. N.H. 1994) (German mother did not consent to father’s removal of children from Germany by signing subsequently rescinded private custody agreement).
4.There is a grave risk that a return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Hague Convention, art. 13(b), 51 Fed. Reg. at 10499; see Friedrich, 78 F.3d 1060 (usual adjustment problems associated with relocation of child not sufficient); Janakakis-Kostun v. Janakakis, 6 S.W.3d 843 (Ky. Ct. App. 1999), cert. denied, 531 U.S. 811 (2000) (fact that father was intemperate, was often unkind, and slapped and spanked child did not justify refusing return).
5.The child is of appropriate age and degree of maturity and objects to the return. Hague Convention, art. 13, 51 Fed. Reg. at 10499.
6.The child is settled in the new environment. Hague Convention, art. 12; see Friedrich, 78 F.3d at 1060; In re A.V.P.G., 251 S.W.3d 117, 124 (Tex. App.—Corpus Christi–Edinburg 2008, no pet.).
7.A return would not be permitted by the fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms. Hague Convention, art. 20, 51 Fed. Reg. at 10500.
If the respondent is alleging article 13(b) or article 20 exceptions, the respondent’s burden of proof is by clear and convincing evidence. 22 U.S.C. § 9003(e)(2)(A). Any other article 12 exception or the other article 13 exceptions may be proved by a preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(B); see also Lops, 140 F.3d 927; In re Prevot, 59 F.3d 556.
Determination by Court: The court in which an action is brought shall decide the case in accordance with the Convention. 22 U.S.C. § 9003(d).
The judge must act expeditiously in proceedings for the return of a child. If a decision has not been reached within six weeks from the date of the commencement of the action, the petitioner or the United States central authority has the right to request a statement from the authority regarding the reason for the delay. Hague Convention, art. 11, 51 Fed. Reg. at 10499. Once a Texas court receives notice of a Hague Convention order, that court is obligated to enforce the order and return the parties to the factual status quo before the wrongful retention of the child and wrongful removal to Texas. In re Lewin, 149 S.W.3d 727 (Tex. App.—Austin 2004, orig. proceeding).
Attorney’s Fees and Costs: Any court ordering the return of the child in an action brought under ICARA must order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home, or other care during the course of the proceeding and transportation costs relating to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. 22 U.S.C. § 9007(b)(3). See also In re J.J.L.-P., 256 S.W.3d at 376–77, which states that a valid alternate basis for the award of fees based on the trial court’s findings of facts and conclusions of law is consistent with 22 U.S.C. § 9007(b)(3).
International Comity: Under the Hague Convention, tribunals of party countries should afford deference to a foreign court’s decision of a related Hague petition. However, a court may decline to extend comity if the foreign court clearly misinterprets the Hague Convention, contravenes the Convention’s fundamental premises or objectives, or fails to meet a minimum standard of reasonableness. Guimaraes v. Brann, No. 01-16-00093-CV, 2018 WL 3543022 (Tex. App.—Houston [1st Dist.] July 24, 2018, pet. denied) (mem. op.) (Texas court retained subject-matter jurisdiction over custody issues despite Brazilian order holding that child should remain in Brazil, because Texas court found that Brazilian court’s application of “well-settled” and “grave-risk” exceptions were clear misinterpretations of Convention; therefore there was no abuse of discretion in refusing to extend comity on those exceptions).
[Sections 55.29 and 55.30 are reserved for expansion.]
The following websites contain information relating to the topic of this chapter:
Application for assistance under the Hague Convention on international child abduction (§ 55.27)
https://travel.state.gov/content/travel/en/International-Parental-Child
-Abduction/abductions/legain-info-for-parents/why-the-hague-convention
-matters.html
https://travel.state.gov/content/travel/en/International-Parental-Child
-Abduction/abductions/hague-app-wizard.html
Child abduction resources (§ 55.5)
https://travel.state.gov/content/travel/en/International-Parental-Child
-Abduction.html
http://bringseanhome.org/
Child Citizenship Act of 2000 (§ 55.11)
https://travel.state.gov/content/travel/en/legal-considerations/us-citizenship-laws
-policies/child-citizenship-act.html
Hague Convention (§ 55.21)
www.hcch.net/en/instruments/conventions/full-text/?cid=24
International Adoptions (§ 55.11)
https://travel.state.gov/content/travel/en/Intercountry-Adoption/Adoption
-Process.html
International Child Abduction Remedies Act (§ 55.22)
http://travel.state.gov/content/dam/childabduction/International_Child
_Abduction_Remedies_Act.pdf
List of nations that have ratified or acceded to the Hague Convention with respect to the U.S. (§ 55.21)
http://travel.state.gov/content/dam/childabduction/complianceReports/2014.pdf
Office of Children’s Issues (§ 55.24)
https://travel.state.gov/content/travel/en/International-Parental-Child-
Abduction.html