USA Law and Practice Contributed by: Valentina Shaknes, Jordan Messeri, Malissa Osei and Grace Chamoun Taranto, Krauss Shaknes Tallentire & Messeri LLP
tions to the return applies. ICARA further establishes a uniform process for “prompt return” and directs that states must act “expeditiously” to return children to their “state of habitual residence”. The Office of Chil - dren’s Issues within the Department of State serves as the Central Authority for the US government. If a child is removed from the USA without the appro - priate consent or an order of the court permitting such removal, the left-behind parent can file a petition for the return of the child under the 1980 Hague Conven - tion, provided that the country to which the child has been removed is a signatory to the 1980 Hague Con - vention. The Office of Children’s Issues will assist in locating the child and with transmitting the request for the return of the child to the country where the child is located, and with locating counsel in such country. If the country to which the child has been taken is not a signatory to the 1980 Hague Convention (eg, China, Russia or India), the Office of Children’s Issues may still be able to assist with the return of the child. However, this process is far more complicated and the resources of the Office of Children’s Issues are more limited. 3.3 Hague Convention on the Civil Aspects of International Child Abduction When a child is taken to the USA from another coun - try that is a signatory to the 1980 Hague Convention, the left-behind parent seeking the return of the child will need to file a petition under the 1980 Hague Con - vention. The petition can be filed in the child’s state of habitual residence and will be transmitted through such country’s Central Authority to the USA. Pursuant to the 1980 Hague Convention, proceedings for the return of the child must be filed in the country where the child is located. The Office of Children’s Issues maintains a network of attorneys who provide legal assistance to the par - ents seeking the return of their children and will assist with obtaining legal representation. Depending on the applicant’s financial circumstances, these attorneys may accept incoming 1980 Hague Convention cases for a reduced fee or no fee. Eligible Hague applicants may request pro bono (no fee) or reduced fee legal assistance and the Office of Children’s Issues will also
assist with interpreting. There is, of course, no guaran - tee that an attorney will volunteer to take the case. In addition, the Office of Children’s Issues will provide a list of full-fee attorneys upon request. These attorneys can work on incoming 1980 Hague Convention cases and some may work on non-Hague cases as well. Ultimately, a petition for the return of the child under the 1980 Hague Convention must be filed with the court. In the USA, state and federal courts have con - current jurisdiction to hear such cases and make a determination. The courts in the USA take these proceedings very seriously and will order the return of the child unless the parent opposing such return can establish one of the narrow defences. The 1980 Hague Convention provides five narrow exceptions to return: • one year and well-settled defence – one year has passed and the child is now well-settled in the new environment; • consent or acquiescence – the parent seeking the child’s return consented or otherwise acquiesced to the removal or retention; • grave risk or intolerable situation – the return poses a grave risk that the child will be exposed to “physical or psychological harm” or otherwise placed into an “intolerable situation”; • mature child objection – the child objects to return and is mature enough to have their objection con - sidered; and • human rights and fundamental freedoms – the return contravenes basic human rights and funda - mental freedoms. All these defences are narrowly construed and the burden is on the parent opposing the return to estab - lish that the defence applies. The proceedings under the 1980 Hague Convention are expedited and take priority over other cases. Even though the 1980 Hague Convention calls for the child’s return within six weeks, in practice, these cases may take several months (and sometimes longer). Free legal assistance is not routinely available to the par - ents opposing the return and legal costs may become quite high. Moreover and pursuant to Section 9007 of ICARA, although the parent seeking the return of the
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