Divorce Lawyer NYC – How can you get your child back who is in another country and is there without your permission?
The United States are a participating member of the Hague Convention on the Civil Aspects of International Child Abduction, which is an international treaty enacted in response to international child abduction. Otherwise known as the Hague Convention, the Convention’s goal is to deter international child abduction and provide a legal process for the prompt return of abducted children to their home countries, where the local courts can resolve custody disputes. The Hague Convention applies only to nations that have adopted the Convention, so its remedies are available only when a child is wrongfully removed from a nation that have adopted the Convention and retained in another country that have adopted the Convention.
According to Divorce Lawyer NYC, if the country where the child is wrongfully retained is a member (or signatory nation) of the Hague Convention, the Petitioner (or the person seeking to have the child returned) must file a petition in the court where the child previously resided and ask that court to invoke the Hague Convention. That court determines if both countries are signatories of the Hague Convention and which country has jurisdiction to hear the dispute. If it is determined that either country is not a member of the Hague Convention, then you must file a petition in the country where the child currently resides and request removal under that countries’ law.
The Convention provides that signatory nations, their courts and administrative bodies should act quickly in all proceeding seeking the return of abducted children and ensure that a final decision is made within six weeks from the filing of the action. You will need to to speak to a qualified divorce lawyer NYC to discuss how to get the court to hear the action to invoke the provisions of the Hague Convention, the parent/ petitioner must show that the child was a “habitual resident” in a signatory nation immediately before the action was filed, and that the child was “wrongfully” removed to or retained in a different signatory nation.
While the Convention does not specifically outline the criteria for a child to be a habitual resident in a signatory nation immediately before the action was filed, Courts will generally look to the child’s actual residence before the alleged wrongful removal took place. Courts determine this on a case by case basis, but factors taken into account usually include: shared intentions of the parties and history of the child’s locations and residence.
Once the petitioner proves beyond a preponderance of evidence that the child was a “habitual resident” in a signatory nation, the petitioner must then prove the child was “wrongfully” removed to or retained in a different signatory nation. Under the convention, a “wrongful removal or retention in a different signatory nation” occurs when the removal or retention of a child violates one parent’s custody rights under the laws of the state where the child was a “habitual resident” before the removal AND at the time of the removal or retention, those rights were actually exercised or would have been exercised if the child was not removed.
If these two criteria are met, the Convention mandates the return of a child that has been abducted if at the date of the commencement of the petition the child has been in the foreign country for a period of one year or less.
If you have any questions, please contact the Kleyman Law Firm, a qualified divorce lawyer NYC. nyc-divorcelawyer.com