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  • Writer's pictureGeraldine Waxman, ESQ.

The Hague Convention and child custody – is the Hague too vague?

The United States is signatory to the Hague Convention. This treaty creates mutual obligations among participating countries to assist in returning children to their home (the U.S.). For the Hague Convention to be applicable, the country the child has or is being taken to must be also a signatory to the treaty. Not all countries are members. The Hague (where countries are members) have procedures for the prompt return of the child(ren) to their habitual residence as well as right of access. Exceptions abound: (1) was consent given by the parent who does not have the children and is now seeking a return; (2) acquiescence of that parent; (3) if the child is “mature” enough the court might consider the child's objections to return; (4) the child is now “settled” in their new residence and a year or more has passed; (5) the child's human rights may be in jeopardy if they are returned and/or (5) a return of the child would cause the child “grave risk of harm.”

As Mediators we should be aware that the foregoing is not a panacea when parties in divorce discuss the ability of each of them to take 'holidays” with their children when those holidays are outside of the country. Any issue may and should be raised by the Mediator to ensure that the parties have thought through their agreement and fully understand the consequences. And out of country holidays are just that --- an issue to be discussed.

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