Understanding the 1980 Hague Convention and International Parental Abduction
If you are a parent and your child has been taken out of the United States without your consent, you’re probably feeling overwhelmed, frightened, and unsure of what to do next. International parental abduction is an incredibly stressful and urgent situation—but there are international legal protections that may help. The most important of these is the 1980 Hague Convention on the Civil Aspects of International Child Abduction (commonly known as the “1980 Hague Convention”).
What is the 1980 Hague Convention?
The 1980 Hague Convention is an international treaty signed by the United States and many other countries. Its goal is simple but important: to ensure that children who are wrongfully taken from their habitual residence or wrongfully taken to another country can be promptly returned to their habitual residence.
“Habitual residence” generally refers to the country where the child typically lives, but the concept can become complicated when a child has ties to more than one country or has moved between countries frequently.
The Hague Convention is limited in scope. It only applies when:
- Both countries are signatories of the 1980 Hague Convention;
- The child is under 16 years old; and
- The request for return is made within one year of the wrongful removal or retention
If the country where your child was taken is not a signatory, or if your child is over 16, the Hague Convention will not apply—although other legal options may still exist. Additionally, if more than one year has passed, a return under the Hague Convention may still be possible, but the foreign court is allowed to consider whether the child is now settled in the new environment.
Importantly, the 1980 Hague Convention does not decide custody. It only determines whether the child should be returned to his or her country of habitual residence. Once returned, the appropriate court in the country of the child’s habitual residence will decide custody matters.
What Must be Proven under the 1980 Hague Convention?
If your child, who usually lives in the U.S., was taken to another Hague-signatory country without your permission, the process begins by filing an Application for Return with the U.S. State Department. The Application is then forwarded to the foreign country’s designated authority for review and processing.
To succeed under the 1980 Hague Convention, you will need to establish three things:
- The child is presently in a country that is not their habitual residence;
- You had “rights of custody” under the laws of the habitual residence; and
- You were exercising those custody rights when the child was taken—or would have been if you hadn’t been wrongfully prevented from doing so.
Each of these elements can be highly contested and litigated in court. For example:
- The treaty does not define “habitual residence,” and different countries interpret that term in different ways.
- The Hague Convention also does not precisely define “custody rights.” Its explanatory report encourages an expansive view of custody, which may differ from the way terms like “legal custody” are defined under your U.S. state law.
Ultimately, whether your child was habitually residing in the United States and whether you were exercising custody rights will depend on the specific facts of your case.
If all three elements are proven, the foreign court is obligated to order the child’s return—unless an exception applies. While the 1980 Hague Convention calls for cases to be resolved quickly—ideally within six weeks—they often take longer due to the legal and factual complexities involved.
Common Defenses Raised in Hague Cases
Even if your child was wrongfully taken, the other parent may try to stop the return by claiming one of the Hague Convention’s recognized defenses:
- Grave Risk of Harm – Arguing that the child would be exposed to physical or psychological harm if returned.
- Child’s Objection – If the child is old enough and mature enough to express a strong preference not to return.
- More Than One Year Passed – If the record was filed after more than one year, and the child is settled in the new country.
- Consent or Acquiescence – If you consented or acquiesced to the child’s removal or retention.
These defenses are not easy to prove, but they can delay or block a return order, depending on the circumstances and how the foreign court interprets them.
What Should You Do If Your Child Was Taken Abroad Without Your Consent?
Here’s what you should do right away:
- Act Quickly – The sooner you act, the better. Delays can make the case much harder.
- Contact an Experienced Family Law Attorney – Preferably one familiar with international abduction cases.
- File a Hague Petition – Your attorney will work with the U.S. State Department and file in the foreign country. You may also want/need to retain an attorney in the foreign country to work alongside your U.S. attorney, advise you on local law, and represent you in that court system.
- Gather Documentation – Collect court orders, custody agreements, birth certificates, and any communication that shows habitual residence, exercise of custody rights, lack of consent for the move, etc.
Bottom Line
The 1980 Hague Convention can be a powerful legal tool for recovering children who have been taken across borders without permission. If your child’s home was in the United States and they were wrongfully taken to another country, this treaty may help.
But Hague cases are complex, emotionally draining and time sensitive. The sooner you act, the better your chances of bringing your child home. If you are facing this kind of crisis, don’t wait. Talk to a family lawyer who understands international abduction cases and can help you take the right steps forward.
If you are concerned that the other parent may try to take your child out of the country in the future, you can also submit Form D.S. 3077 with the Children’s Passport Issuance Alert Program (CPIAP). This program notifies you if a passport application is submitted for your child and ensures that the two-parent consent rule is followed for issuing passports to children. Only U.S. citizens under the age of 18 can be enrolled in the CPIAP.
To discuss further, contact KJK Family Law attorneys Eva Saulnier (ECS@kjk.com) or Janet Stewart Scalley (JS@kjk.com).
