The International Child Abduction Remedies Act (ICARA) is a United States federal law. H.R. 3971 29 April 1988, was assigned Public law 100-300 in 22 U.S.C. 9001 et seq.
The Hague Convention on the Civil Aspects of International Child Abduction or Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on Private International Law (HCCH) that provides an expeditious method to return a child internationally abducted by a parent from one member country to another.
The two primary goals of the Hague Convention are, "to ensure the prompt return of children to the state of their habitual residence when they have been wrongfully removed," and "to ensure that rights of custody i.e., "physical custody" and of access i.e., "visitation" under the law of one Contracting State are effectively respected in the other Contracting States". The Convention's procedures "are not designed to settle international custody disputes, but rather to restore the status quo prior to any wrongful removal or retention, and to deter parents from engaging in international forum shopping in custody cases."
Jurisdiction
Federal District Courts have "federal question" subject matter jurisdiction under 28 U.S.C. §1331, which is concurrent with state court subject matter jurisdiction pursuant to 22 U.S.C. §9003(a). As such, Hague Convention cases under ICARA may be heard in either State or Federal courts.
An action under the Hague Convention is commenced by filing a Petition in the jurisdiction where the child is located.[22 U.S.C. § 9003(b)] Notice of a Hague Convention Petition is deemed sufficient if it is given "in accordance with the applicable law governing notice in interstate child custody proceedings".[22 U.S.C. § 9003(c)] In the United States, this would be the PKPA, UCCJA, or UCCJEA, where applicable.
Burden of proof
The petitioner bears the initial burden of proving, by a preponderance of the evidence, that the removal or retention of the child was "wrongful".[22 U.S.C. §9003(e)(1)(A)]. Once this has been demonstrated, the burden shifts to the respondent to prove an affirmative defense. Because the affirmative defenses are narrowly construed a trial court still retains the discretion to order the child's return, even where such a defense has been accredited.
Affirmative defenses
Even after the existence of "wrongful removal" or "wrongful retention" has been established the court has the discretion to deny the return of the child if one of the affirmative defenses can be accredited.
"Consent" or "Acquiescence"
A court is not bound to order the return of the subject child if the respondent demonstrates, by a preponderance of the evidence, that the petitioner either subjectively consented to, or acquiesced in, a child's removal or retention.[22 U.S.C. §9003(e)(2)]
Though similar in principle, consent and acquiescence are distinguishable temporally: "The consent defense involves the petitioner's conduct prior to the contested removal or retention, while acquiescence addresses whether the petitioner subsequently agreed to or accepted the removal or retention." When the defense of consent is raised, the trial court must examine "the nature and scope of petitioner's consent and any conditions or limitations". Where a party exceeds the scope of any prior consent given, that consent will be deemed revoked upon express communication of the objecting party's revocation of consent, and may give rise to a claim for wrongful retention. Analysis of an "acquiescence" defense is more focused, and requires proof of "an act or statement with the requisite formality" or "a consistent attitude of acquiescence over a significant period of time."
Grave risk of harm
A court may also refuse to order the return of a wrongfully removed child if the respondent demonstrates, by "clear and convincing evidence" that "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Additionally, a respondent must also demonstrate, by clear and convincing evidence, that the courts in the country of habitual residence are either unable or unwilling to adequately protect the child from the alleged risk of harm or intolerable situation.
The National Child Search Assistance Act of 1990 (NCSA) (42 U.S.C. 5779 and 42 U.S.C. 5780 : The NCSA requires local, state and federal law enforcement agencies to immediately enter information about abducted children into the National Crime Information Center database without requiring a waiting period.
The International Parental Kidnapping Crime Act 1993 (IPKCA) is a United States federal law. H.R. 3378, approved December 2, was assigned Public Law No. 103-173 and signed as Public Law 103-322 by President Bill Clinton on September 2, 1993. This law makes it a federal crime to remove a child from the United States or retain a child outside the United States with the intent to obstruct a parent's custodial rights, or to attempt to do so This crime is punishable by up to three years in prison. The law provides an affirmative defense where the abducting parent acted pursuant to a valid court order obtained under the Uniform Child Custody Jurisdiction And Enforcement Act, or where the abducting parent was fleeing domestic violence, or where the failure to return the child resulted from circumstances beyond the taking parent's control and the taking parent made reasonable efforts to notify the left behind parent within 24 hours and returned the child as soon as possible. Since its enactment, the law has only been used in a very small minority of international child abduction cases prompting parents of internationally abducted children to claim an abuse of or prosecutorial discretion on the part of federal prosecutors.
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