Common Defenses to Hague Convention Petition Demanding the Return of a Child

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If a parent resides in a country which is a signatory to the Hague Convention, an international treaty, they may use the terms of this treaty to seek the return of their child who was unlawfully taken by the other parent to another Hague Convention signatory country. The parent seeking return of their child can file a petition in Federal Court for immediate return of their child (or file a motion in State family court). The parent who took the child can raise certain defenses to oppose the petition in Federal Court.

To state a claim for wrongful removal of children under the Hague Convention a petitioner must establish the following three elements:

1) prior to removal or wrongful retention, the child was habitually resident in a foreign country;

2)the removal or retention was in breach of custody rights under the foreign country’s law; and

3)the petitioner was exercising custody rights at the time of the removal or wrongful retention.

If a parent meets these elements they may be entitled to immediate return of their child unless the opposing parent presents valid defenses such as the following:

Mature Child Defense: the Child has reached the age where the child can articulate their opposition to return for reasons outside the norm of a regular custody dispute, such as preference for a particular school or home environment.

Established Environment: the opposing parent successfully shows that the petitioner has failed to file their petition within one year of the unlawful removal of the child and the child has become established in their new environment.

Grave risk of harm: the opposing parent shows that returning the child to the petitioner would pose a grave risk of harm to the child in that they experienced the harm or witnessed the harm such as domestic violence.

Contact Diana Mohyi Attorney at Law for a consultation on your Divorce and Family concerns in Michigan and New York where she is licensed.

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