Now and again, we hear about an international child custody dispute and how the Court’s are going to handle it. Recently, a Trial Court decision, J.R. v. A.R., FD-13-728-20, was published as it presented a case of first impression, meaning that the issue had not been heard in New Jersey prior to this matter. The threshold question the Court had to determine was whether the provisions of the Hague Convention should be applied when the home country (in this case, the Philippines) agrees to be bound by the Hague Convention (otherwise known as accession), but the United States has not accepted that country’s accession.
Here, the facts were not generally disputed. The parties lived in the United States and had their child in 2013. In 2016, the parties got married in the United States, but shortly thereafter, they moved as a family unit to the Philippines and resided there until 2020. In 2020, the marriage had completely broken down and Defendant left the Philippines with the child over the explicit objection of Plaintiff. In February 2020, Defendant relocated to New Jersey with the child. Plaintiff filed his application upon locating Defendant and the child and demanded that the child be swiftly returned to the Philippines pursuant to the provisions of the Hague Convention.
The Court detailed the history of the Hague Convention and outlined the purpose of the treaty, which is to govern the wrongful removal of children from their country of habitual residence. The “central operating feature” of the Convention is the return remedy, which requires the return of a child forthwith to the child’s country of habitual residence, absent narrow, enumerated defenses. Abbott v. Abbott, 560 U.S. 1, 9 (2010). More than 100 countries are signatories, including the United States and the Philippines.
The Hague Convention Articles differentiates an original signatory to the Convention with a non-original signatory. In fact, Article 38 of the Hague Convention provides:
The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. Such a declaration will also have to be made by any Member State ratifying, accepting or approving the Convention after an accession. (Emphasis added).
Moreover, Article 35 of the Hague Convention provides that:
“[t]he Convention shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States.” (Emphasis added).
Given those two (2) Articles, the Court applied the plain language of the terms to the undisputed fact that the United States has not accepted the Philippines’ accession. As such, the Hague Convention does not apply to the above facts. There have been similar cases in other jurisdictions that have held a similar result.
It is important when dealing with international child custody cases that you speak with an attorney about your legal options because the jurisdictional and procedural hurdles may be complicated. The terms of the Hague Convention are extraordinarily specific and if one Article is not followed, then the entire matter may have a different outcome.
Adam Wiseberg is an associate within the Firm’s family law practice. He can be reached at (973) 548-3363 or at email@example.com.