Since 1988, the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention" or "Convention") has been the principal mechanism for enforcing the return of abducted children to the United States. While the Convention promotes the prompt return of an abducted child, it does not impose criminal sanctions on the abducting parent. The Hague Convention does not act as an extradition treaty, nor does it purport to adjudicate the merits of a custody dispute. It merely provides a civil remedy designed to preserve the status quo by returning an abducted child to the country of his or her "habitual residence" and allowing the judicial authorities in that country to adjudicate the merits of a custody dispute. As such, the proceeding is brought in the country to which the child was abducted or in which the child is retained. Although domestic relations involve issues typically governed by state law, the federal statute implementing the Hague Convention explicitly confers jurisdiction on the federal courts. Rights of Custody vs. Rights of Access

Procedures and remedies available under the Convention differ depending on the parental rights infringed. Courts must determine whether an order confers a right of custody or a lesser right of access under the Convention. For example, until recently, federal courts disagreed on what type of right is conferred by a ne exeat , or "no exit," order, which grants one parent the right to veto another parent's decision to remove their child from his or her home country. In Abbott v. Abbott , the U.S. Supreme Court resolved the circuit split by finding that such an order confers a right of custody, thus triggering enforceability under the Convention. It is important to note that the Court's decision is limited to ne exeat orders. Therefore, courts will have to address which side of the access-custody line any other arrangements may fall. Signatory nations do not have to automatically return the child to his or her place of habitual residence; discretionary exceptions exist that enable the child to remain with the removing parent. A parent seeking the return of a child who the parent claims has been wrongly abducted may apply to the "Central Authority" of the child's habitual residence or of any other signatory nation to the Hague Convention.
International child custody disputes are likely to increase in frequency as the global society becomes more integrated and mobile. A child custody dispute between two parents can become a diplomatic imbroglio between two countries. Since 1988, the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention" or "Convention") has been the principal mechanism for enforcing the return of abducted children to the United States. While the treaty authorizes the prompt return of the abducted child, it does not impose criminal sanctions on the abducting parent. Congress, to reinforce the Hague Convention, adopted the International Parental Kidnapping Crime Act of 1993 to impose criminal punishment on parents who wrongfully remove or retain a child outside U.S. borders.
The Convention does not act as an extradition treaty, nor does it purport to adjudicate the merits of a custody dispute. It is a civil remedy designed to preserve the status quo by returning an abducted child to the country of his or her "habitual residence" and allowing the judicial authorities in that country to adjudicate the merits of a custody dispute. As such, the proceeding is brought in the country to which the child was abducted or in which the child is retained. Although domestic relations involve issues typically governed by state law, the federal statute implementing the Hague Convention explicitly confers jurisdiction on the federal courts. Federal courts continue to address the scope of this jurisdiction. In Chafin v. Chafin, the U.S. Supreme Court found that a child's return to her country of habitual residence does not render an appeal moot. In other words, an appellate court retains jurisdiction to review a lower court's decision as to the child's habitual residence.
The Hague Convention is not always applicable in international child custody cases. Signatory nations do not have to automatically return a child to his or her place of habitual residence, as discretionary exceptions exist that enable the child to remain with the removing parent. Also, procedures and remedies available under the Convention differ depending on the parental rights infringed. Courts must determine whether a particular order confers a right of custody or a lesser right of access. For example, federal courts disagreed on what type of right was conferred by a ne exeat, or "no exit," order granting one parent the right to veto another parent's decision to remove their child from his home country. In Abbott v. Abbott, the U.S. Supreme Court resolved the circuit split by finding that such an order confers a right of custody, thus triggering enforceability under the Convention. However, it is important to note that this decision was limited to ne exeat orders. As such, courts will have to address which side of the access-custody line any other arrangements may fall.
This report will discuss the applicability of the Hague Convention and current U.S. laws, both civil and criminal, which seek to address the quandary of children abducted by parents to foreign nations. This report will be updated as events warrant.