USA – MASSACHUSETTS Law and Practice Contributed by: Mary H. Schmidt, Rachel A. Deering, Hannah R. Zukoff and Mariah G. Tappan, Verrill Dana, LLP
through the International Child Abduction Remedies Act (ICARA), 22 U.S.C. Section 9001 et seq. The US State Department maintains the Hague Con - vention Attorney Network, a nationwide network of volunteer attorneys who may accept Hague Conven - tion cases on a pro bono or reduced-fee basis. To request pro bono or reduced-fee representation, appli - cants must submit a Request for Legal Assistance. After receiving the required documentation, the Office of Children’s Issues provides eligible applicants with information to assist them in locating counsel, includ - ing a list of attorneys. Eligibility is based on income guidelines tied to 125% and 200% of the US Federal Poverty Guidelines. Representation is not guaranteed. The applicant remains responsible for contacting the attorneys provided, and availability depends on whether an attorney is willing and able to accept the matter. If the applicant needs an interpreter to com - municate orally with a prospective attorney, the Office of Children’s Issues may arrange telephone interpreta - tion services at no cost to the applicant or attorney. See the Annual Report to Congress on International Child Abduction. The knowledge and application of the Hague Con - vention’s underlying principles can vary depending on the forum in which the petition is filed. In the United States, both state and federal courts have jurisdiction to hear Hague Convention cases, and each forum pre - sents distinct advantages and disadvantages. Practi - tioners should also bear in mind that, on a per capita basis, the United States hears substantially fewer Hague Convention cases than many other Contracting States, including the United Kingdom. As a result, the level of judicial familiarity and experience with Con - vention proceedings may differ from court to court. Accordingly, it is incumbent upon counsel to ensure that the Court is fully apprised of the Convention’s framework, objectives, and governing legal principles. In practice, however, neither state nor federal courts exhibit greater sympathy toward either the Conven - tion’s return mechanism or its defences. Rather, the courts seek to apply the Convention in accordance with its terms, recognising that Hague proceedings are intended to determine the proper forum for resolv - ing custody disputes, not the merits of custody itself. The respondent bears the burden of proving any appli -
cable defence under the International Child Abduc - tion Remedies Act (ICARA). When such defences are raised, the courts carefully evaluate the evidence presented while remaining mindful that the Conven - tion’s primary purpose is to secure the prompt return of wrongfully removed or retained children. When a child is wrongfully removed to or retained in a country that is not a Contracting State to the Hague Convention, the civil remedies available under the Convention and its implementing legislation in the United States, the International Child Abduction Rem - edies Act (ICARA), are unavailable. Both the Hague Convention and ICARA apply only where the child has been wrongfully removed or retained between two Contracting States. As the court explained in Mezo v Elmergawai , 855 F. Supp. 59 (E.D.N.Y. 1994), “if a child is taken from a signatory country and is retained in a non-signatory country, it appears that there is no remedy under either the Child Abduction Act or the Hague Convention. Similarly, if a child is taken from a non-signatory country and is retained in a signatory country, there is no remedy under either enactment.” In recognition of this gap, Congress enacted the International Parental Kidnapping Crime Act (IPKCA), 18 U.S.C. Section 1204, in 1993. Unlike the Hague Convention, IPKCA applies regardless of whether the destination country is a Contracting State. The statute makes it a federal crime to remove or retain a child outside the United States with the intent to obstruct another person’s parental rights. “Parental rights” include rights to physical custody, whether sole or joint, as well as rights of visitation, when those rights arise by court order or operation of law. Although no comparable international civil return mechanism exists for cases involving non-Contracting States, the US Department of State’s Office of Chil - dren’s Issues may assist left-behind parents through diplomatic outreach, co-ordination with US embas - sies and consulates abroad, and engagement with for - eign governmental authorities. While these diplomatic efforts do not provide a judicial remedy or guarantee a child’s return, they remain an important resource for parents seeking assistance in non-Convention cases. While the Convention contemplates that return pro - ceedings should be resolved within six weeks, that timeline is rarely achieved in practice. Indeed, parties
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