USA Law and Practice Contributed by: Valentina Shaknes, Jordan Messeri, Malissa Osei and Grace Chamoun Taranto, Krauss Shaknes Tallentire & Messeri LLP
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 child is initially responsible for all costs in connection with such petitions (including travel and legal costs), ICARA permits the court to reallocate all such costs to the respondent if the return is granted. For further information, see the 2026 Annual Report to Congress on International Child Abduction pub - lished by the US Department of State, and the HCCH Global Report – Statistical Study of Applications Made in 2021 Under the 1980 Child Abduction Convention. 3.4 Non-Hague Convention Countries This is not applicable in this jurisdiction. The USA is a signatory to the 1980 Hague Convention.
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