Last week we discussed the The Hague Convention on the Civil Aspects of International Child Abductions, also known as the Hague Abduction Convention. This week we are going to talk about the International Child Abduction Remedies Act (ICARA)., is a multi-lateral treaty developed by the Hague Convention on Private International Law.
The primary goal of the Hague Abduction Convention (HAC) is to retain the welfare of a child’s custody agreement internationally between parties to prevent or intervene in the wrongful removal of a child from his/her habitual residence. (According to Wikipedia, a habitual residence is the “…residence where the individual usually resides and routinely returns to after visiting other places. It is the geographical place considered ‘home’ for a reasonably significant period of time.”) The treaty provides for the return of the child to his/her habitual residence.
According to Wikipedia, “…An action under the Hague Convention is commenced by filing a Petition in the jurisdiction where the child is located.22 U.S.C. § 9003(b)] Notice of a Hague Convention Petition is deemed sufficient if it is given ‘in accordance with the applicable law governing notice in interstate child custody proceedings’ [22 U.S.C. § 9003(c)]. In the United States, this would be the PKPA [Parental Kidnapping Prevention Act], UCCJA [Uniform Child Custody Jurisdiction Act], or UCCJEA, [Uniform Child Custody Jurisdiction and Enforcement Act] where applicable.”
ICARA is United States federal law that implements the HAC between American states and American states internationally with other countries. It went into effect in 1988.
When a child is alleged removed from his/her habitual residence, or a parent is not allowed his/her visitation with a child under a previous legal agreement, that child’s parent can now bring an action in local court under ICARA. After a showing of the other parent’s wrongdoing, the alleged wrongdoer must show to the court one of the following:
- that the person requesting the return of the child was not actually exercising custody’ at the time of the removal or retention;
- that the person requesting the return of the child had consented to or acquiesced in the removal or retention;
- that more than one year has passed from the time of wrongful removal or retention until the date of the commencement of judicial or administrative proceedings;
- (d) that the child is old enough and has a sufficient degree of maturity to knowingly object to the person requesting the return of the child, and that it is appropriate to heed that objection;
- that there is grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
- that return of the child would subject the child to violation of basic human rights and fundamental freedoms.
Attempting to have one’s child returned to his/her care or to be able to exercise one’s visitation rights either by state to state or from state to an international country is very complicated. It is highly recommended that a professional family law attorney be retained to navigate the legalities involved.
Next week, the Parental Kidnapping Prevention Act [PKPA]