2-9 Have Your Child Returned from Foreign Country

by | Apr 10, 2020

Back to: California Family Law

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VIDEO TRANSCRIPT

How to Get Your Child Returned from Foreign Country

Hi, welcome to My Court Coach. This is Jylan and I’m going to be your instructor on how to have your child returned from foreign country. Today’s segment is going to be about the Hague convention and the Hague Convention specifically relates to international child abduction cases. If the court has made a child abduction order, then you can now take this to the Hague convention and have them access or return your child. When I say access, I mean locate your child.

You Must Have a Child Abduction Prevention Order Before Your Child Can Be Returned from the Foreign Country

Before you can use the Hague Convention to get your child returned from foreign country, the family judge must have already filled out this form, the FL-341(b). If you’re not familiar with it already, please watch our other video explaining the usage and purpose of the FL-341(b) form, which is the Child Abduction Prevention Order Attachment.

Now, the court order says right here that this is valid in other States and in any country that has signed the Hague Convention on child abduction. In fact, it notices other authorities and other States and countries. This court has jurisdiction to make child custody orders under the California Uniform Child Custody Jurisdiction Enforcement Act, and the Hague Convention on Civil Aspects of International Child Abduction under 42 USC section 11, 601. If jurisdiction is based on other factors, they’re listed above in item 13. If the court does make any orders with respect to its authority in ordering this child abduction order or having authority over the child, then the court will list those orders right there.

What is the Hague Convention?

So now you have this FL-341(b) order and you need to get your child, and you’re going to go through the Hague Convention. The reason why you’re going through the Hague Convention is because your child is not within the United States of America. If your child is within the United States of America, you would not use the Hague Convention. This distinction is very important.

The Hague Convention Only Helps Get Your Child Returned from Foreign Country, Not from Another State in the USA

If your child is within the United States of America, and you are aware that your child is somewhere in the United States of America, or you know what states that they are in or they are with the other party or a grandparent or whatever it might be, there’s a whole different process and procedure for that. This is relating to child abduction in a different country, international child abduction. We’re only talking about how to get your child returned from foreign country.

How the USA Enforces the Hague Convention

Let’s go to 42, USC 11, 601. It states that the Congress makes the following findings. The international abduction or wrongful retention of children is harmful to their wellbeing. Persons should not be permitted to obtain custody of children by virtue of the wrongful removal or retention. International abductions and retentions of children are increasing and only concerted cooperation pursuant to an international agreement can effectually combat this problem.

The Convention on the Civil Aspects of International Child Abduction done at the Hague on October 25, 1980, establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained as well as for securing the exercise of visitation rights. Children who are wrongfully removed or retained within the meaning of the Convention are promptly returned. Unless one of the narrow exceptions set forth in the convention applies, the convention provides a sound treaty framework to help resolve the problem of international abduction and retention of children and will deter such wrongful removals and retentions.

The Congress makes the following declarations. It is the purpose of this chapter to establish procedures for the implementation of the convention in the United States. The provisions of this chapter are in addition to, and not in lieu of, the provisions of the convention. In enacting this chapter, the Congress recognizes the international character of the convention and the need of uniform international interpretation of the convention.

From What Foreign Countries Can You Have Your Child Returned?

With that being said, we are going to see what countries are part of the Hague Convention. Now we know the purpose of it: to return or locate the children in a different country. You already have a child abduction order. Now we need to make sure that the country that we’re trying to get our child from is part of the Hague Convention.

If they are not part of the Hague Convention, if the country is not part of the Hague Convention, then it is going to be exceptionally difficult for you to obtain your child, especially if you do not know the whereabouts of the child, but you would need to take international family law procedures in that country to figure out how you can obtain your child. If you did know that they were in Dubai, for example, then you would go to that country and figure out how to enforce your California orders or open a brand new case.

For today’s segment, let’s focus on the Hague Convention. We’re going to just pick a random country: Austria. We want to get a child from Austria. We’re going to go to this website, travel.state.gov, where you find out whether you’re even eligible to file the application, meaning whether the country is in fact part of the Hague Convention and whether they can actually process your application based off of the child’s age.

Does the Age of the Child Matter?

If the child is over the age of 16, then the Hague Convention would not apply. They would not be able to, you would need to find some other measures like going to that country and starting a family law proceeding there. You would need to just check with that local laws of the country to figure out what to do.

A Country Officer Will Help Have Your Child Returned from Foreign Country

If your child is under the age of 16, because the Convention only applies to children 15 and younger, you are eligible to file the Hague application. To determine whether the US central authority will accept your application, you have to contact your country officer to discuss your case. You can use one of these two phone numbers to contact the country officer.

Steps to Take Before Using the the Hague Convention Application

However, to file an application you must have custodial rights and were exercising those rights at the time of the abduction or wrongful retention or show that you would have been exercising those rights if the abduction or wrongful retention had not occurred. Custody rights may be awarded by court order or arise by operation of law of the place where the child lived prior to the abduction.

You also must not have given permission for the child to be removed or in the case of wrongful retention to be retained beyond a specified period, agreed-upon period of time.

You must also be able to show that your child was habitually resident in the country to which you were requesting the child to be returned.

In summary, you can’t tell the other party to keep the child for an additional week and then file a Hague Convention application asking that the child be returned.

If you have a child abduction order, it will list your child your, your child custody rights, and show that your child was habitually resident in the country to which you requested the child be returned.

Paperwork Need for Your Hague Convention Application

We are going to file the order with the Hague Convention, but before you file, we need to get these documents in line first.

As to a marriage certificate, if you were married to the parent of that child, you need to provide the birth certificate for each child.

You must provide the divorce decree or judgment if you were divorced from the parent of that child. They need to be certified copies as well, which means you need to make sure that there is the seal on there from the court to show that it is a certified copy.

Then you need to show the evidence of custodial rights, which would be the custody order.

You should include other relevant court documents if you have documents beyond the child abduction order.

For example, if you have multiple documents asking that the other parent return the child and they haven’t, I think that’s going to help build your case and allow you to qualify for the Hague Convention.

Also include photographs taking taken of you and the child. Please note that these will not be returned. Also include photographs of the child and the other parent or the other party that took the child.

Also include a statement regarding the circumstances of removal or retention. For instance, how was the child removed? How did you get to this point? A lot of that actually will be in your declaration for the child abduction order, so you should just provide that.

Include other documents that are specifically required by the receiving country. In our example, you would need to look at Austria and whether they require other documents.

Also include translations of the above documents into the language of the receiving countries. If Austria didn’t speak English, then you would be doing it in their foreign language.

Also include an application for legal assistance if you need it.

How to Fill Out the Hague Convention Application to Have Your Child Returned from Foreign Country

So what does this form look like? The Application Under the Hague Convention on the Civil Aspects of International Child Abduction is either for returning the child or accessing the child, meaning locating the child, because you don’t know where the child is.

Describe the Child You Want Returned from Foreign Country

You’re going to write the name of the child, the date of birth, their place of birth, their habitual residence at the time of removal (which should be yours), the USSSN number, the social security number, their passport information, their current location if you do know it, the telephone number of the current location if you do know it, whether they’re a US citizen or other citizen of different countries, their height, their weight, their color of hair, color of eyes, name of the child’s father if it’s not already listed below and the name of the child’s mother, if it’s also not already listed below.

Describe Yourself

The person that is completing the application must complete their last name, their date of birth, the place of birth, their relationship to the children (mother, father or legal guardian) the citizenship of that parent, and their social security number, their passport information, their current address, or telephone number, email address their language, what occupation do they have and the name and address telephone number of their attorney if they do have one.

Describe the Person Who Has Your Child

Also identify the person alleged to have wrongfully removed or retained the children or child. It’s the other parent or the other party typically. Include their name, their date of birth, their place of birth, their relationship, their citizenship, their social security number, their identification on their passport, their occupation, other known names that they go by, addresses and telephone of their current location if you know it, the height, weight, their color of hair and their color of eyes.

Describe All Children Involved

Then if there are additional children, you’re going to complete the same exact information that you completed above, but specific to that particular child, and then the circumstances of wrongful removal or retention.

Describe How the Child Was Illegally Removed or Retained

You’re going to need to include the date, the place of wrongful removal (such as Sacramento, California, USA) and the circumstances of the abduction.

You can attach additional sheets to give a brief summary here and then write “See declaration attached and incorporated hereto” and you could also just attach to this form as well. There might be several dates of the wrongful removal if there’s a history of this with the other party. If that is the case, then your declaration should really specify that, or at least specified here. If you have different declarations for that, then you can just write maybe the date and then what happened that led to that circumstance.

Explain Why Your Application is Justified

As to the factual and legal justification for the request. Under habitual residence of the child it should be the United States. Under details relating to the place of habitual residence, include any details that you have in regard to that specifically. Provide your, your address and the legal justification is that you do have a court order and the court has already named that the State of California or the country of the United States of America is the country of this child’s habitual residence. So you will have that along with your child abduction orders.

Next, the basis of your custodial rights. You do need to provide the documentation of that and make sure that your documentation does state that you do in fact have child custody rights.

If it doesn’t state that, then you obviously wouldn’t be able to get this far of getting a child abduction order. So you do have to have custody rights in order for you to in fact file this form.

Supporting documentation can be laws relating to the custody for the child’s residence or time of alleged removal or retention, a court order in effect at the time of the alleged removal or retention, or a legally binding agreement between you and the other party or any other forms or documents that would assist them to know what kind of custody rights that you do have.

Are there any civil proceedings currently in progress? If the answer is yes, then you are going to go ahead and provide those details and then proposed arrangement for return of child or children.

How Do You Plan to Get Your Child Back to the United States?

How will the children return? Will you or someone you know who will be designated as a power of attorney accompany the child? Please provide as many details as possible. You want to provide as much detail as possible as to how you’re going to arrange for the child to travel and come back to you.

Describe Anyone Who Can Help Get Your Child Returned

Identify other persons with additional information relating to the whereabouts of the children, preferably in the country of child’s current location. Include the name, relationship to the child, address, and contact information.

Also include any other supporting documentation or relevant information. So whether the parties were married if so then what date were they married? Were they divorced, then what date were they divorced? And you do have to in fact, provide your divorce decree.

When it says parties or parents married, it means currently. Obviously you need to get married to get divorced. If you’re divorcing them currently, then you would provide the answer “Yes.”

As to the custody order existing at time of removal or retention, you should literally just copy the custody order that was made prior to the child abduction order.

Hopefully it’s specific because if it’s something general, like “as reasonably agreed between the parties,” then that’s not going to be specific enough. Then you’re going to need to provide maybe text messages or emails or whatever contact that you’ve had and hopefully those are also in writing between you and the other party to show that there was an agreement pursuant to the court order, which is reasonable visitation as mutually agreed upon between the parties.

You’re going to go ahead and sign and date it. It must be signed in ink.

Contact the Country Officer

Now you’ve completed this form and gathered all of the documents and you are ready to submit the application to the country officer. Contact the country officer to make sure that your application is complete and just have a conversation with them about the documents that you’re attaching to your application. After you’ve gotten essentially the the green light to submit the application, then you are going to send it to the US central authority with mail tracking option.

After you do all of that, stay in frequent contact with your country officer responsible for cases involving the country where the child is located. Let the office know if your contact information changes so that they may reach you as your application is processed. If there is any information that changes, contact them.

The Process of Getting Your Child Returned from Foreign Country After You Submit the Hague Convention Application

Once the US central authority approves your application, it will be transmitted to the foreign central authority responsible for processing your application. Your country officer is available to help you understand the process and will provide updates for you as your child’s case progresses through the foreign legal system. However, keep in mind that the country officer can not provide you with legal advice. It’s best to speak with an attorney before taking any action on your child’s case. When a parent who took the child learns that that the Hague application has been or will be filed, he or she may just return the child voluntarily to avoid further civil action.

Do You Need a Lawyer in the Foreign Country?

Under the convention, the taking parent might also be open to mediation. Many Hague cases do go to trial. Some countries may require that you retain an attorney in the country where your child is located. In other countries, the foreign central authority is responsible for filing the case in court and may not be able to do so if you retain a private attorney in that country.

Be Prepared to Travel to the Foreign Country to Collect Your Child

If the taking parent does not voluntarily agree to return your child, you may want to attend a legal proceeding in the foreign court about your application for return. For this reason, it’s a good idea to make sure that you have a valid passport and visa necessary during this process, so that you’re able to quickly travel to the foreign country if it becomes necessary. Ultimately, you may be the one who has to get your child returned from foreign country.

We hope that you have found this video helpful and best of luck.

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