Academic journal article The George Washington International Law Review

The Trials and Tribulations of Implementing the Hague Convention on International Child Abduction: Improving Dispute Resolution and Enforcement of Parental Rights in the International Arena

Academic journal article The George Washington International Law Review

The Trials and Tribulations of Implementing the Hague Convention on International Child Abduction: Improving Dispute Resolution and Enforcement of Parental Rights in the International Arena

Article excerpt

I. INTRODUCTION

The relative ease and affordability of travel and communication and the opening of the world's markets contribute to greater interaction between people from different countries.1 There is an increasing interconnectedness between communities, cultures, and countries across the globe. As a result, family relationships that cross national borders are increasingly likely. The problems that confront many families, like divorce and child custody disputes, are further complicated when parents are from different countries. Resolution of child custody disputes may be dramatically different under the laws of each parent's country of origin. Parents may have different expectations about child custody. After the breakup of the relationship or marriage, one parent may expect to return to his or her country, making shared custody difficult.

Such complications increase the likelihood of international child abduction.2 International child abduction has a specific meaning in the context of private international law. It is defined as the "unilateral removal or retention of children by parents, guardians or close family members,"3 and is a distinctly different problem than kidnapping by a stranger.

In an attempt to address the problems caused by international child abduction, the Hague Conference on Private International Law (Conference) took up the issue in 1976.4 After several years of researching and studying the issues involved, the organization recognized that the tremendous variation among different countries in addressing custody issues made creating a uniform standard through a convention very difficult.5 The Conference was able to build a consensus for a treaty, however, that would provide for the summary return of an abducted child without an adjudication on the merits, while creating limited exceptions to protect the best interests of the child.6 The final text of the Hague Convention on the Civil Aspects of International Child Abduction (Convention)7 was completed in 1980.8 At that time, four states signed the Convention.9 As of this writing, the Convention has some thirty-seven ratifications and forty-two accessions.10

This Note identifies specific successes and failures of the Convention. Part II.A sets forth the structure and aims of the Convention. Part II.B explains the key concepts of the Convention and illustrates how the Convention has been applied by courts in the United States to disputes involving contracting states. Part III identifies the recurrent problems in satisfactorily resolving disputes under the Convention. Finally, Part IV concludes that in the absence of an international enforcement mechanism, ensuring faithful application of the Convention is difficult and makes a recommendation for addressing this problem. Officials from the executive and legislative branches can help pressure countries to correctly apply the Convention. For example, State Department officials can raise the issue through diplomatic channels and members of congress can advocate for constituents who are litigating claims under the Convention. In addition, members of the media can raise public awareness of the problem and can increase public pressure on countries by providing media coverage of cases in which the Convention is improperly applied.

II. DISCUSSION

The United States is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.11 The Convention was signed on behalf of the United States on December 23, 1981, and was submitted to the Senate for ratification by President Reagan on October 30, 1985.12 The United States ratified the Convention and enacted enabling legislation, entitled the International Child Abduction Remedies Act, in 1988.13 Part II.A, reviews the text of the Convention and sets out the structure and the goals of the Convention. Following, Part II.B, is an explanation of the key concepts of the Convention and an examination of the manner in which the Convention has been applied by the courts in the United States. …

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