USA – NEW YORK Law and Practice Contributed by: Eleanor B. Alter, Adam John Wolff, Jenifer J. Foley and MaryJane Gurriell, Alter Wolff Foley & Stutman LLP
Central Authority application and can result in a court order for return enforceable in the destination country. The process is commenced by application to the Central Authority of the country where the children are believed to be. In the United States, the desig - nated Central Authority is the US Department of State’s Office of Children’s Issues. Upon receipt of an application, the Central Authority must ascertain the location of the children and work toward their volun - tary return. Following the Central Authority process, a petition may be filed in New York Supreme Court or Family Court. The petitioner bears the burden of establishing, by a preponderance of the evidence, that: (i) the child was habitually resident in a Contracting State immediately before the removal or retention; and (ii) the petitioner had lawful rights of custody at the time of the removal or retention. A Hague Convention proceeding is juris - dictional in nature and is solely limited to the ques - tion of whether the child should be returned to the country of habitual residence for determination of the custodial dispute; the ultimate merits of the custody dispute are not before the court. A decision under the Convention is not a determination on the merits of any custody issue, but leaves custodial decisions to the courts of the country of habitual residence. New York courts apply a two-part test: first, the court inquires into the shared intent of the parents at the lat - est time that their intent was shared; second, the court inquires whether the evidence unequivocally points to the conclusion that the child has acclimatised to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the par - ents’ latest shared intent. The determination is fact- intensive and depends on the unique circumstances of each case. Where the child is taken to a non-Hague country, the remaining parent is left with a New York custody order
that may have compromised enforceability abroad, a federal criminal prosecution which can only be pur - sued if the abducting parent returns to the United States, and diplomatic assistance that is advisory rather than coercive. In these cases, prevention – through passport controls, travel restrictions in cus - tody orders, and enrolment in the CPIAP – is often more effective than cure. However, under DRL § 77-a, a New York court may enforce an order for the return of a child made under the Hague Convention as if it were a child custody determination. This means all enforcement tools available for domestic custody orders (including con - tempt proceedings) are available to enforce a Hague return order. Under DRL § 77-n, a prosecutor or other appropriate public official may take any lawful action, including resort to civil proceedings, to locate a child, obtain the return of a child, or enforce a child cus - tody determination where there is: (i) an existing child custody determination; (ii) a request from a court in a pending child custody proceeding; (iii) a reasonable belief that a criminal statute has been violated; or (iv) a reasonable belief that the child has been wrongfully removed or retained in violation of the Hague Con - vention. Under the Hague Convention, if a petition is filed with - in one year of the wrongful removal, the court shall order return without inquiry into whether the child is settled in the new environment. After one year, the respondent may raise the settled-in defence, mak - ing return harder to obtain. Delay can also affect the habitual residence analysis and the child’s own views. 3.3 Hague Convention on the Civil Aspects of International Child Abduction See 3.2 Steps Taken to Return Abducted Children . 3.4 Non-Hague Convention Countries This is not applicable as the United States is a con - tracting party to the Hague Convention.
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