In a case of international abduction international abductions are governed by an international treaty signed in 1980, which has been incorporated into federal law under what’s known as the International Child Abduction Remedies Act. This law provides for a parent who has been left behind because the children have been removed from where they were. It gives them an option to go into either state or federal court to try and have the children returned. To do so they have a certain burden of proof.

They have to show that the removal or the retention of the children from the other country is wrongful and that it breeches their custody rights under the law of the state which issued the custody orders in the first place from which the children were removed. And they have to show the children were habitually resident there and that at the time of the removal or retention the parent was actually exercising their custody rights or they would have but for the removal exercise of those rights.

Habitual residence by itself is not defined in the statute but it’s a key part of these cases that often comes up and its generally defined by the courts that have interpreted it around the world. For our purposes we mainly look to Ninth Circuit federal court decisions to determine a child’s habitual residence although also if there’s a case on point a Washington court decision. To establish habitual residence the general test is we look to first what was the last shared settled intent of the parents? Where did they last agree the child should live? And did they actually live there for some period of time? We also will look depending on the age of the children, particularly if they’re not infants, to see whether the child was actually well settled in that place. Does the child feel acclimated or have they actually acclimated to that place?

If you can show that the children were wrongfully removed or retained and if you can show that its been less than a year since the case was begun although you may go over the one-year mark by the time there’s a decision, but if you can show its been less than a year then the court is obligated, the language of the statute is shall order the children returned forthwith, meaning immediately. Once the court determines that there has been a wrongful removal or retention the party trying to defend against that may have one of six possible defenses.

One of them is that its been more than a year since the wrongful removal or retention and the case was begun. And that the child has been actually well settled into that environment. They have to show both things not just that its been a year.

Second is that the left behind parent either consented or acquiesced to the removal or retention.

The third is if the parent who’s trying to keep the child here, for example, can show that the other parent wasn’t actually exercising their rights of custody at the time of the removal or retention, that’s a defense.

The fourth one is what we call the grave risk of harm defense. That means that even if the child was wrongfully taken if you order the return that child will suffer something beyond severe either psychological or physical harm. Think of child molestation, torture, mental torture, it’s very high as to what it would be. It can’t be something as simple as their economic circumstances are going to be that they’re very poor in the other country that’s not what grave risk of harm envisions.

Fifth would be for a mature child, generally over 16, their wishes. If they refuse to go that can serve as a defense.

And finally, the sixth defense is if you can show that it would violate the fundamental principles of human rights or the fundamental freedoms under Washington law afforded to the child here, again, that’s a rarely invoked, at least successfully, defense.