The Hague Convention on the Civil Aspects of International Child Abduction was implemented as a federal statute in the United States in 1988 as the “International Child Abduction Remedies Act,” or ICARA.
Since the Hague Convention was enacted in the Netherlands in October 1980, approximately seventy (70) nations, including the United States, have become signatories to the Convention.
Under Article 3(a) of the Convention, a removal is wrongful when it is in “breach of rights of custody attributed to a person, an institution, or any other body under the law of the state in which the child was habitually resident immediately before the removal or retention.”
Many case law decisions have discussed the key phrase “habitually resident,” including federal courts of appeal. In a federal Third Circuit Court of Appeals case, Feder v. Evans-Feder, 63 F. 3d 17 (Third Cir. 1995), the Court of Appeals defined habitual residence as the “place where the child has been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child’s perspective.”
The Hague Convention, specifically the idea of habitual residency, has sparked much controversy since its adoption in the U.S. It will continue to be a lightning rod for criticism until the statute is more clearly defined, and its implementation becomes more efficient.
by Robert H. Siegel, Esq.