Academic journal article Chicago Journal of International Law

In the Child's Best Interests: Examining International Child Abduction, Adoption, and Asylum

Academic journal article Chicago Journal of International Law

In the Child's Best Interests: Examining International Child Abduction, Adoption, and Asylum

Article excerpt

Table of Contents

I. Introduction............611

II. Background........................612

A. U.N. Convention on the Rights of the Child and the Child's Best Interests Principle..................612

B. The Child Abduction Convention........................................615

1. Purposes of the Child Abduction Convention........................................615

2. Elements of a Child Abduction Convention claim........................................616

a) Habitual residence........................................616

b) Wrongful removal or retention........................................617

c) Exercise of custody rights........................................617

d) Age of the child........................................617

3. Exceptions to the Child Abduction Convention........................................617

a) Public policy defense........................................618

b) Consent or acquiescence defense........................................618

c) Mature child's objection defense........................................618

d) Well-settled child defense........................................619

e) Grave risk defense........................................620

4. Child's best interests under the Child Abduction Convention........................................621

a) Assumption that the child's best interests are served by prompt return to the court of habitual residence........................................621

b) Grave risk exception........................................623

c) At the court's discretion........................................624

III. Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption........................................625

IV. U.N. High Commissioner for Refugees and Unaccompanied Minors in the U.S........................................627

A. U.N. High Commissioner for Refugees (UNHCR)........................................628

B. Unaccompanied Minors in the U.S........................................630

V. Reconciling the Child's Best Interests Principle: Lessons from International Law........................................633

VI. Conclusion........................................636

I. INTRODUCTION

Consider the case of eight-year-old Leia Morin.1 Leia's parents, Maribel Betancourt Vazquez and Rafael Morin Estrada, met in Monterrey, Mexico, and had two daughters, Leia and Isabella.2 From 2001 to 2007, the family lived together in Dallas, Texas, until Maribel's deportation back to Mexico.3 Rafael decided to stay in Dallas, but the children were sent with their grandmother to Monterrey to live with Maribel, and Maribel and Rafael agreed that the children would visit Rafael during their summer and winter breaks.4 This agreement worked until 2010, when Leia visited Rafael and Rafael refused to send her back to Mexico.5 Maribel filed a petition for Leia's return under the Hague Convention on the Civil Aspects of International Child Abduction, and despite clear evidence of spiraling violence and increasing drug cartel activity committed at Leia's school and neighborhood in Monterrey, Leia was ordered to be sent back to Monterrey.6 Although there were reasons for Leia to live with her mother, as the court decided, there seems something intuitively wrong with knowingly sending a child to a place with rampant violence and drug activity.

This Comment presents an analysis of the child's best interests principle in several different contexts of international law concerning children. Though the child's best interests principle is notoriously vague in its lack of clear methods to determine a child's best interests, this Comment will examine similar situations involving the transfer of children across international boundaries before attempting to apply those situations to the Hague Convention on the Civil Aspects of International Child Abduction ("Child Abduction Convention"),7 which aims to prevent international child abduction by one parent from the other. …

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