Family Lawspace Child Abduction

CHILD ABDUCTION

The Hague Convention on the Civil Aspects of International Child Abduction is a multilateral treaty whose goal is to secure the prompt return of children under the age of 16 wrongfully removed to or retained in any contracting state. It is important to note that the convention only applies if both countries, the country from which the child was wrongfully removed and the country to which the child was wrongfully removed, are parties to the convention. The United States and Israel are two of more than fifty countries that have accepted the Convention’s terms.
A Hague proceeding may only take place in the country in which the child is present. In Israel, the claim must be filed in the family court in the geographical jurisdiction in which the child is present. If the location of the child is unknown, the pleading should be filed in Tel-Aviv.
At the foundation of the Convention lies the idea that the results of the abduction should be nullified and that the abductor should be prevented from benefiting from the abduction. This is done by returning the status quo prior to the abduction. The petitioner most prove that the child was illegally removed from his habitual residence or retained in another country and that such action breaches the petitioner`s rights of custody. If the petitioner proves these points then the general rule is the return of an abducted child to the country of habitual residence and the protection of rights of access. Even so there are exceptions to the return of the child to the country from which the child was wrongfully removed. One exception is consent or acquiescence to the illegal removal. Once the parent has either consented or acquiesced he can no longer change his mind and demand the return of the child under the Convention. The parent would still be able to petition the local court for visitation and/or custody but would do so by applicable local law. Other exceptions are: (1) the petitioning party having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, (2) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, 3) the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views,(4) the return of the child would violate fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.
Proceedings should be filed as soon as possible. There are two main drawbacks of late filings. The first drawback is that it could be seen as if the petitioner had consented to the removal or retention of the child overseas or subsequently acquiesced. Secondly, if more than one year has elapsed, the court has discretion not to return the child if the child has settled in his new environment.
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