When a parent seeks the return of or access to a child who resides in the United States, he or she can use one of two remedies: The Hague Convention and the Uniform Child Custody Jurisdiction and Enforcement Act. Parties may use either remedy to enforce a foreign custody order or to access an order. An attorney can help parents decide which strategy is best to help them achieve their objectives.
The Hauge Convention
There is a lot of misunderstanding surrounding the Hauge Convention. Many people assume that the Hauge Convention protects the rights of all parents embroiled in international custody disputes. However, according to the U.S. Department of State, Bureau of Consular Affairs, the Convention establishes the international standards of practice for intercountry adoptions. The convention applies to all adoptions by U.S. citizens of children from another country that is party to the Hauge Convention. However, that does not mean parties cannot and should not seek remedy under the Hauge Convention.
The UCCJEA is a uniform state law which 49 states, the District of Columbia, Guam and the U.S. Virgin Islands have adopted. This law requires state courts to enforce the child custody orders and visitation determinations that a foreign court made, so long as the foreign court substantially conformed to the standards set forth by the UCCJEA.
The U.S. Department of State, Bureau of Consular Affairs, details the major differences between the two remedies. One of the most notable differences pertains to the return of the child in abduction cases. Under the Hague Convention, parties do not need a court order to seek the return of a child. Under the UCCJEA, however, a parent must present a visitation or custody order to enjoy the act’s protections.
The Hague Convention does not set forth a time frame under which parties must act. However, it does state that if a delay continues beyond six weeks, it will ask for an explanation. The UCCJEA, on the other hand, calls for next-day enforcement.
The Hague Convention applies only to children under 16. The UCCJEA, however, applies to all minors under the age of 18.
In access cases, the Hague Convention does not specifically mandate the return of a child to another country for parental visitation. However, the court may use its discretion to order it. The UCCJEA requires the enforcement of existing orders, which may include intercountry visits.
Finally, parties can bring a case under the Hague Convention in both state and federal courts. Only state courts have jurisdiction over UCCJEA cases, however.