J.R. v. A.R. – Child Abduction and the Hague Convention on International Child Abduction
So far, little attention has been given to a decision by the trial division of the Family Court in New Jersey but the legal significance of this Court’s decision will undoubtedly be felt on an intentional level by those of us authorized to handle international child abduction claims elsewhere in the world.
The decision identified the issue presented in this matter as one of first impression for New Jersey regarding the application of the Hague Convention on International Child Abduction to a child wrongfully removed from the Philippines and brought to New Jersey, without the biological father’s knowledge and consent and in violation of laws of the Republic of the Philippines.
In this matter, the facts were not in dispute. The parties were married and following their child's birth, the family moved to the Philippines, where they lived with the Husband’s parents. In 2020 and without the husband’s knowledge or consent, the Wife left the Philippines with their child moving to New Jersey. When the husband learned of the wife’s whereabouts, he filed an application with the court for the return of their child to the Philippines pursuant to the Hague Convention Treaty on International Child Abduction.
This type of application is filed 100 times every day by parents across the globe seeking the return of their child(ren) based on a claim that the other parent wrongfully took their child(ren) and moved to another country in violation of the laws of their country applicable to custody and parenting time rights.
In 1980, as a deterrent to this type of behavior, more than 100 nations signed off on a treaty referred to as the Hague Convention on Civil Aspects of International Child Abduction, which treaty required the prompt return of a wrongfully removed child to his / her home country with any related litigation to occur in the child’s home country. Pursuant to the treaty, if a parent kidnaps their child and flees to another signatory country to the treaty, that country agrees to summarily return the child to the home country.
Since its enactment, additional countries have signed off on the treaty agreeing to be bound by its requirements.
So why is this case novel?
The specific terms included in this treaty – specifically, with respect to the requirements for when a new country agrees to participate – makes this case so novel. According to the relevant terms of this treaty, the original member nations are each required to formally acknowledge acceptance of the new country seeking “accession” to the treaty.
As an example, the United States and Canada were original members to the treaty. Therefore, if a child is taken from the United States and brought to Canada, Canada is obligated to promptly return the child to the United States and similarly, if the setting was reversed, the United States has the same obligation to return a child wrongfully removed from Canada. But, if a new country joins the treaty, then each of the original nation members must formally accept the new country as a member for enforcement purposes – which brings us back to why this case is so novel.
While Republic of the Philippines was not an original member to the Treaty, they signed on to the treaty in 2016. However, the United States (as an original member) has not “formally” acknowledged the Philippines’ “accession” to the treaty. Thus, the United States is not obligated to comply with an order entered out of the court system in the Republic of the Philippines for the return of a child wrongfully removed from its country; and, according to the New Jersey Trial Judge hearing this matter, the New Jersey Family Court is not obligated to comply with orders entered out of the court system in the Philippines since the United States has not formally recognized the Philippines participation in the treaty. As a result, this Trial Court determined that the wife is entitled to remain in New Jersey with their child and did not have to return the child to the Philippines.
To support its decision, the trial court referenced a matter heard by the 2nd Circuit (New York) Court of Appeals where a mother left Thailand with her children for a trip to New York, where she decided to remain with the child over the father’s objections (who still lived in Thailand). According to the 2nd Circuit Court of Appeals, although the United
States accepted Thailand's “accession” to the treaty, the child was wrongfully removed from Thailand before the that acceptance occurred. Translated, Thailand was not formally recognized by the United States as a treaty member at the time of the father’s application to the US court system for the return of his child to Thailand, and therefore, the United States had no formal obligation to return the children to Thailand. Yet, in that decision, the 2nd Circuit Court of Appeals acknowledged that the United States would become obligated to honor all requests for the return of children wrongfully removed from Thailand the moment that the United States formally recognized Thailand as a member.
According to the NJ Family Part Judge hearing this matter, since the treaty only applies to existing members who have formally recognized and accepted a new member’s participation, this father has no right under the treaty to require the New Jersey Court System to return his child to the Philippines.
The office of Diamond & Diamond is one of a handful of law firms in this state authorized by the US State Department to handle: international child abduction matters involving children wrongfully removed from New Jersey and taken elsewhere in the world; and matters involving children wrongfully taken from a member country and brought to New Jersey.
Through the State Department, we are enlisted to assist in the return of those children to their home country. When a child is wrongfully removed from New Jersey and taken elsewhere, we file applications with the New Jersey court system seeking orders of the court to compel the child’s return, which orders are then served on the foreign government with a request that that government cooperates in the child’s return to New Jersey under the treaty. Similarly, when a child is wrongfully taken from another country and brought to New Jersey, we are enlisted to file applications with the NJ court system for enforcement of the orders of the foreign government for the return of that child to its home country.
What is most troubling about this court’s decision was the absence of analysis as to whether the decision by the US government not to formally recognize the Republic of the Philippine’s accession to the treaty was intentional or merely an oversight or ministerial
error by someone in the US State Department. Rest assured that other governments around the world will leverage the actions of our Court System in this case and in cases like the one considered by the 2nd circuit to justify their decision not to cooperate with the return of a child wrongfully removed from our state and brought to their country by a parent or by someone who simply kidnapped a child.