This fall, HLAB had the opportunity to represent a party litigating a Hague petition, cases in which a left-behind custodial parent alleges that a child was taken from the child’s country of residence or is being wrongfully held in another country. This was a remarkable case for several reasons. First, it was a novel area of law for the Bureau — based on an international treaty and domestic enacting legislation. Moreover, it was a fast-moving case. We had a little over two weeks to prepare for an evidentiary hearing on the narrow issue of whether the Massachusetts Probate Court had jurisdiction to hear arguments on the merits of custody, or if, alternatively, the judge must order the child to return to her home country, Colombia, with the left-behind parent — our client — because the Hague provisions relating to international child abduction remedies had been invoked.
A Hague Convention petition is filed by the left-behind parent in the country where the child is currently residing, here, the United States. To establish a prima facie case warranting the return of the child, the petitioner must establish: 1) that the country they are asking the child to be returned to was in fact the habitual residence of the child prior to wrongful removal or retention; 2) that the removal of the child breached the left-behind parent’s custodial rights; and 3) that the left-behind parent was exercising their parental rights at the time of the breach. Additionally, the petition should be filed within one year of wrongful removal or retention. There are five affirmative defenses available to the responding parent. Of these five, the one relevant to our case was that the child has become well-settled to his or her new surroundings. We had to prove that the one-year period to file the petition had not lapsed, and/or that even if it had, the child was still not well-settled and the left-behind parent should not be barred from being heard on their petition.
We worked tirelessly for the two weeks leading up to the evidentiary hearing. Simply wrapping our minds around the law was a task in and of itself. Trying to gather evidence — from the United States as well as our client’s country — in order to rebut the affirmative defenses of the opposing party was a logistical tour de force. A conference call with the State Department revealed that they were quite impressed with our progress, so much so that they want to send us more cases arising under the Hague Convention. Apparently, finding lawyers who specialize in this area of law and are willing to offer representation at reduced rates or pro bono is not the easiest task. We welcomed the opportunity.
The outcome for our client was better than we expected, though not at all achieved in the manner we expected. After hearing partial testimony, the judge urged the parties to attempt to reach an agreement. Though we were initially skeptical of the probability of a negotiated resolution, the parties did come to an agreement thanks to the incredibly skilled and multi-talented guardian ad litem who was assigned to the case. Less than a week after the trial, the child and our client returned to Colombia on good terms with the parent residing in the United States and with plans in place for future visits. We could not have asked for a better outcome.