Return petitions under the abduction convention and the defenses to them, habitual residence, which state keeps jurisdiction over custody, registering and enforcing an order from another country, international support enforcement, and consent to travel.
Under Article 3 of the Abduction Convention and 22 U.S.C. 9003, a petitioner seeking return must show by a preponderance of the evidence that the child was habitually resident in the requesting country, that the petitioner held rights of custody under that country's law, that those rights were actually being exercised, and that the removal or retention breached them. The court decides location, not custody.
Where one parent asks to take a child abroad, courts commonly condition permission on protective devices: an order in the destination country mirroring the home order, undertakings given to the home court, a bond or other security, and passport conditions. Undertakings depend on the goodwill of a court that may never see them. A mirror order exists as an enforceable order in the place it will need to work, which is why courts prefer it.
The Convention on the International Recovery of Child Support and Other Forms of Family Maintenance establishes Central Authorities in each party state and a set of applications a parent may make through them: recognition and enforcement of an existing decision, enforcement of a decision made locally, establishment of a decision where none exists, and modification. Free legal assistance is required for most child support applications, and the deciding authority may not review the merits.
Article 12 requires a court to order the return of a child forthwith where proceedings are commenced within one year of the wrongful removal or retention. Where more than a year has passed, return is still required unless the respondent proves by a preponderance that the child is now settled in the new environment. The Supreme Court held in Lozano that the period is not subject to equitable tolling, so concealment does not stop the clock, though it bears on settlement.
Under the enforcement article of the uniform custody jurisdiction act, adopted separately by each legislature, a custody determination from another state is registered by filing a letter, a certified copy of the order and a sworn statement that it has not been modified. Notice is served, and a contest must be requested within a short period fixed by the state's version. Only three grounds may be raised, and unchallenged registration is confirmed by operation of law.
Habitual residence is the connecting factor that makes the Abduction Convention operate, and it is fixed as of the moment immediately before the wrongful removal or retention. The Convention does not define it. Courts in the United States determine it from the totality of the circumstances, weighing the child's acclimatization where the child is old enough to form connections and the shared intentions of the parents where the child is not. The finding is factual.
The uniform custody jurisdiction act, enacted separately by each legislature, directs courts to treat a foreign country as if it were a state for jurisdiction, recognition and enforcement. A determination made under factual circumstances in substantial conformity with the act's jurisdictional standards must be recognized and enforced, provided reasonable notice and a hearing were given. A court need not apply the act where the foreign custody law violates fundamental human rights.
Once the elements of a wrongful removal are established, Article 12 requires return unless the respondent proves an exception. Grave risk of physical or psychological harm under Article 13(b) and the fundamental principles exception under Article 20 must be shown by clear and convincing evidence. Consent, acquiescence, a mature child's objection and settlement after a year require only a preponderance. Even when an exception is proved, return remains discretionary.
Article 5 defines rights of custody as rights relating to the care of the child, and in particular the right to determine the child's place of residence. Article 3 says those rights may arise by operation of law, by judicial or administrative decision, or by an agreement having legal effect. The Supreme Court held in Abbott that a clause forbidding removal without the other parent's consent is a right of custody, so it supports a return petition.
The Uniform Child Custody Jurisdiction and Enforcement Act, a uniform act adopted state by state and renumbered into each state's own code, directs a court not to exercise custody jurisdiction where a proceeding was already commenced in another court exercising jurisdiction substantially in conformity with the act. The court must examine the pleadings, stay its case, and communicate with the other court. Foreign countries are treated as states for this purpose.
Under the uniform custody jurisdiction act, adopted state by state and renumbered into each state's code, a court has temporary emergency jurisdiction where the child is present in the state and has been abandoned, or where protection is necessary because the child, a sibling or a parent is subjected to or threatened with mistreatment or abuse. The order lasts only until a court with ordinary jurisdiction acts, and the two courts must communicate.
