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International Law & Litigation

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March 15, 2016

How do I determine whether the treaty is “in force” between the U.S. and the other country involved?

The issue whether the Convention is “in force” between states can be complex. There are differences between the processes by which a state can be bound by the treaty, specifically between those who are “member states” and those who become “party states.” Member states are those states that were members of The Hague Conference on Private International Law at the time of adoption of the Child Abduction Convention at the 14th Session in 1980.

March 14, 2016

Securing Counsel

The United States ratified The Hague Convention with a reservation as to Article 26 relating to legal representation. Because of this reservation, U.S. courts are not required to appoint counsel to represent parties in Convention cases. Nor is the federal government required to assume any costs or expenses resulting from the participation of attorneys or from court proceedings in Hague Convention cases.

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March 14, 2016

What is a Central Authority?

The 1980 Hague Convention requires that each signatory nation designate a Central Authority to assist in carrying out duties concerning the operation of the Convention.1 In the United States, the Central Authority is the U.S. State Department, Office of Children’s Issues.2

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March 14, 2016

What role do the concepts of “best interests” or “welfare of the child” play in deciding a Hague case for return of a child?

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March 13, 2016

 How do I evaluate the assertion that the child objects to return?

Article 13 of the Convention states that a court “may refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” The party resisting return must prove this defense by a preponderance of the evidence.1

March 13, 2016

What are the differences between access rights and custody rights?

A person with only access rights (the equivalent of “visitation rights”) cannot maintain a petition for the return of a child. Only parents with rights of custody to the child may petition for the return of an abducted child.1

March 9, 2016

Do the doctrines of abstention and removal apply to Hague Convention cases?

The International Child Abduction Remedies Act (ICARA), 22 U.S.C. §§ 9001 et seq., provides for original concurrent jurisdiction in both federal and state courts.1 Dual jurisdiction allows issues to be raised about the interface between federal and state courts, including abstention and removal.

Three types of abstention have been addressed in the cases:

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March 5, 2016
James D. Garbolino

Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014)

Equitable Tolling | Return Despite Article 12 Defense | Delay | Settlement

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March 5, 2016
James D. Garbolino

Souratgar v. Lee, 720 F.3d 96 (2d Cir. 2013)

Article 20 | Domestic Violence | Degree of Violence | Grave Risk to Child | Syariah Law

This case deals in part with the claim that the prospect of having to litigate custody in Syariah courts violates the provisions of Article 20, prohibiting the return of children if the return would be contrary to the protection of human rights and fundamental freedoms. There is also a substantial discus­sion as to what constitutes domestic violence sufficient to war­rant a refusal to return a child.

March 5, 2016
James D. Garbolino

Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir. 2005)

Grave Risk | Domestic Violence

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