USA Law and Practice Contributed by: Valentina Shaknes, Jordan Messeri, Malissa Osei and Grace Chamoun Taranto, Krauss Shaknes Tallentire & Messeri LLP
cation will adversely affect the non-applicant’s access to the child. The less effect on the other parent’s rela - tionship with the child, the more likely the court will be to allow the relocation. By way of example, if the proposed relocation is to “the other side of town” (and this will minimally affect the non-applicant’s ability to spend time with the child), a court will generally allow the relocation. If, however, the proposed relocation is of significant distance – such as to a different part of the state or to a different country – to the extent that the relocation significantly affects the non-applicant’s access or parenting time with the child, then the court will be less likely to allow the relocation, subject to its decision as to whether the proposed relocation is in the child’s best interests following consideration of the relevant facts and circumstances. In the USA, it is a federal criminal offence – punishable by a fine or up to three years in prison – to remove a child under the age of 16 from the USA with the intent to obstruct the lawful exercise of parental rights. The term “parental rights” refers to the right of physical custody of a child (including joint and sole custody) and whether such rights have been determined by a court order or by a binding agreement between the parents or whether they arise by operation of law. In addition to this federal law, all states in the USA have enacted their own laws making it a crime to remove the child from the state without a court order or without the permission of the other parent and with the intention of defeating such parent’s custo - dial rights. In New York, for example, it is “custodial interference in the first degree” for a parent (or another relative) to take a child under the age of 16 with the intent to keep the child away permanently or for a protracted period of time. Custodial interference in the first degree is a Class E felony punishable by up to four years in prison. 3. Child Abduction 3.1 Legality Similarly, in California, any “person” who takes a child and “maliciously deprives a lawful custodia[n] of a right to custody… or visitation” may be prosecuted for “deprivation of custody of a child or right to visi -
tation” (Section 278.5 of the California Penal Code). Depending on the degree, deprivation of custody is punishable by up to three years in prison and a fine of up to USD10,000. 3.2 Steps Taken to Return Abducted Children The USA is a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the “1980 Hague Convention”). The 1980 Hague Con - vention is a multilateral treaty to which more than 100 other countries are signatories. It is designed to pro - tect children internationally from the harmful effects of their wrongful removal, by establishing an expe - dited process for the courts or administrative agen - cies of the country to which the child is removed to return the child to the child’s home country (“state of habitual residence”). The 1980 Hague Convention is not a mechanism for resolving custody disputes and, in that expedited proceeding, custody issues are not addressed. Indeed, the fundamental purpose of the 1980 Hague Convention is to ensure – by promptly returning the child – that custodial issues are decided by the country of the child’s habitual residence, rather than by the country to which the child was abducted by a parent. Each of the signatory member states to the 1980 Hague Convention has a Central Authority, which helps to locate abducted children, encourages reso - lutions of parental abduction cases, and processes requests for the return of children in what are known as both “incoming” and “outgoing” cases. A proceed - ing pursuant to the 1980 Hague Convention may be brought directly before the courts of a signatory state or through the Central Authority of the state of habit - ual residence, which co-ordinates with the Central Authority of the country the child was taken to. Cases pursuant to the 1980 Hague Convention are brought in the country in which the children are located, seeking return to the state of habitual residence. In the USA, the 1980 Hague Convention is imple - mented through the International Child Abduction Remedies Act (ICARA), a federal law enacted by the US Congress in 1988. Section 9001 (a)(4) of ICARA mandates the prompt return of children “wrongfully removed or retained” within the definition of the 1980 Hague Convention, unless one of the narrow excep -
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