One of the biggest issues when parents from different countries separate is that one parent may take the child to another country without the other parent’s consent or fail to return the child to their place of residence at the agreed-upon time. The child may have only been meant to visit family and relatives abroad.
It is critical to highlight that international child abduction cases are extremely urgent and often involve high levels of emotional and legal stress.
These cases are very complex and require knowledge of German law, international treaties, foreign laws, as well as an in-depth understanding of the child’s place of residence and family dynamics.
What is the Hague Convention?
The Hague Convention, pertaining to the civil aspects of international child abduction, is an international convention created to resolve issues that arise when a child is transferred from or detained in a state other than their country of usual residence. One thing to highlight is that the Hague Convention does not determine who has custody of the child. The main purpose of the Hague Convention is to return the child to their normal place of residence when child abduction has occurred.
When can the Hague Convention apply? The Hague Convention may be applicable in certain cases, for example:
- If a child is taken from Germany to another country without the required consent.
- If a child is taken to Germany from another country without consent.
- If a child travels abroad with permission from the parents but has not returned home as agreed upon.
- If one parent refuses to let the child return to the country of habitual residence.
In all of these cases, there is a disagreement between the parents regarding the change of the child’s residence to another country. Whether the Hague Convention applies is based on the facts of the case and whether the countries involved are parties to the Hague Convention.
What is habitual residence, and why does it matter?
Hague Convention cases primarily discuss habitual residence. This term usually means the country in which the child has made their home. Courts will look at the following:
- Where the child has been residing
- Where the child goes to school or daycare
- The location of medical care that is received by the child
- The child’s family and his/her relationships
- The stability of the child’s home life
- Where the child’s life is truly focused
Citizenship, nationality, or birthplace are not the only basis for determining habitual residence. It is, in fact, a specific question that depends on the circumstances of the child’s daily life.
Agreements between parents matter. Not all children’s trips overseas are wrongful. Many parents allow their children to go abroad to visit family, enjoy holidays with family, or stay abroad for a set period. For this reason, it is crucial to know specifically what the parents agreed to. Some relevant questions are:
- Was permission given in advance in writing?
- Did there seem to be a set date to return?
- Was it supposed to be a holiday or a family visit?
- Were there any restrictions on the trip?
- Has there been an email, text, letter, or written communication confirming that agreement between the parents?
For instance, if a parent says the children will go to another country for three months, that can be relevant in the event of a later dispute. Parents should be mindful of what they agree to and should make sure that all travel arrangements for overseas departures are recorded as evidence where possible.
Hague Convention and Non-Hague Convention Countries
The role of the Hague Convention is critical to the legal options available to a parent, depending on whether the country is a party to the Hague Convention. When the countries are signatories to the Hague Convention, there is an international legal process to call for the return of the child in some cases of wrongful removal or wrongful retention to their normal place of residence. If the child is taken to a country that is not a party to the Hague Convention, the situation may become more complicated. Circumstances that may affect legal action include:
- the legal code of that country
- whether there are any bilateral agreements that may have been in place between the two countries
- whether foreign court orders can be enforced in the local country that is not a member of the Hague Convention
- specific details of the family situation
It is critical to consult a German lawyer as well as a well-informed local lawyer in the foreign country where the child was taken to fully understand the family law system and whether there are significant differences from Germany. It is important to have coordinated legal advice available to assist you in deciding the best approach to return the child or move forward with your specific legal matter.
Acting quickly can be critical. Time is of the essence in international child abduction cases. The case can become more complex the longer a child remains in another country. As time goes on, concerns may arise about whether the child has settled into the new environment. This does not mean that, because time has passed, a parent loses their rights, but the longer a parent waits, the harder it may be to proceed with legal action in the foreign country or to return the child to their home country or place of residence.
If you believe that your child has been wrongfully removed or retained, it is important to obtain legal counsel as quickly as possible. Preventive steps before a child is taken abroad may be crucial when it comes to international child abductions.
Please be aware of the signs below that a parent may be looking to breach the travel agreement, or change the habitual residence of the children.
Some examples are:
- The parent talking about permanent relocation
- Sudden travel plans
- Requests for passports or other important documents
- Statements or threats that indicate that the child may not be returned
- A breakdown in trust between the parents
- Concern that the other parent may act without permission
If you have any concerns that your child may be removed from the country without your consent, it is important that you act early and gather the information. There are some measures that can be taken to assist:
- Maintaining photocopies of residences, birth certificates, and passports
- Preserving written communications between parents
- Keeping records of any travel arrangements
- Maintaining logs of threats or worrisome words
- Getting legal counsel before travel
- Knowing if there are legal precautions that can be taken
Each circumstance is unique, and the action taken should be based on the facts of the specific situation.
Cross-border legal Coordination
International child abduction cases often involve more than one legal system. In certain cases, the German legal situation may not be the only possible jurisdiction. The laws of the country where the child is relocated could also be significant. When the legal system is very different from Germany’s, it is important to coordinate legal advice between attorneys in both countries. This will help a parent better understand:
- which countries‘ courts may have jurisdiction
- whether the Hague Convention is applicable
- what legal remedies the parent can take
- whether the foreign court’s decisions are recognized or enforceable
- the best strategy for seeking the child’s return
The best course of action will depend on:
- the facts of your case
- the custody situation of the children
- the existing agreements that are in place between the parents
- the country to which the parent is traveling with the children
- whether there are international treaties that are in place between the foreign country and Germany
Please understand that being proactive does not always require immediate court action. In some cases, early legal advice may simply inform parents of the circumstances and their rights so they have the information needed to help avoid the problem before it occurs or before it must be addressed in court.
What are some frequently asked questions that our clients have asked us?
- Does the Hague Convention determine custody?
In most cases, no. Hague Convention proceedings do not determine which parent will have custody. They focus on whether the child should be returned to the country of their habitual residence so the issue of custody can be addressed by the relevant court.
- What does it mean by wrongful removal?
Wrongful removal is usually defined as a child being removed from their country of habitual residence without the proper consent or without a legal basis.
- What is wrongful retention?
A wrongful retention occurs when a child is given permission to go abroad but is not returned to its habitual residence. - What if I agreed to let my child travel abroad?
The terms of any agreement to travel internationally may be significant. This may include whether the trip was brief, whether return dates were agreed to, and whether there were any written communications.
- What if the other country is not part of the Hague Convention?
The case could get more complicated. The exact legal possibilities could be determined by the domestic law of that country, bilateral agreements, and the case specifically in question. - Can I stop my child from being taken abroad?
Depending on your situation, there are preventive legal remedies that may be possible. If you believe it to be a true threat, you need to consult a lawyer immediately. - Why is timing essential?
Delay can complicate international child abduction cases, particularly if the child starts to become settled in the foreign country. It is highly advisable to seek legal advice as early as possible.
Guiding International Families Through Cross-Border Family Law Matters
At Vera Zambrano & Associates Law Firm, we specialize in international family law cases,
helping expatriates and German citizens living abroad who are involved in international family matters such as international divorce.
We understand that every family is different, and we work with our clients to identify the best solution for them and support the best possible outcome for the future. Our purpose is to provide legal advice tailored to your specific situation. If you were married abroad, have come to live in Germany, have children, or own assets in different countries, we are here to help, and we have the experience to do so.