In the past thirty years, three Hague Children’s Conventions have taken place to address the protection of children in at-risk border disputes.   The first convention, entitled “Convention on the Civil Aspects of International Child Abduction”, was held in 1980 with the goal of enabling participating countries to cooperate in returning children who have been wrongly removed from their residences to another country.  The second convention, entitled “Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption”, was held in 1993 with the goal of regulating international adoptions.  Finally, the third convention, entitled “Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children”, was held in 1996 with the goal of tying the previous conventions together with rules pertaining to parental responsibilities and public measures of protection for children.

The intent of the Hague Conventions was to address issues pertaining to children caught in the turmoil of broken relationships, disputes over custody and relocation, and international parental abduction.  The conventions have issued uniform rules to participating countries to address which country’s authority takes precedence in border disputes involving children.  For instance, a judge may issue a temporary protective order to return a child to the country from which he or she was taken.  The Hague Convention rules make such orders enforceable in both the country from which the child was taken and the country into which the child was taken, so long as both countries involved have implemented the uniform rules.  The rules also set forth procedures to ensure prompt return of children to their home country.  The rules avoid conflicting decisions between countries, giving the primary decision-making responsibility to the authorities of the country in which the child has his or her habitual residence, which generally means where the child had been living and was settled.

 A Hague Convention application should be handled by an attorney familiar with the procedures and evidentiary requirements necessary to bring about a quick return of the child to its home country.  Such an application should be made as soon as possible after a child is taken across an international border, away from his or her habitual residence, without the consent of a parent with rights of custody; the longer the child is in the new environment across an international border, the less likely a court will be willing to return the child to its habitual residence.  Acting quickly also demonstrates that the parent from whom the child was taken did not agree to the child’s removal from its habitual residence.

 Normally, the child must be promptly returned to his or her habitual residence unless the return would cause a grave risk of harm to the child, such as physical or psychological harm or would otherwise place the child in an intolerable situation.  An example of such a situation is when a parent has fled a country with the child to escape severe physical abuse inflicted by his or her spouse.

 A parent whose child has been wrongfully removed or wrongfully retained across an international border should contact the U.S. State Department’s Office of Children’s Issues, which is responsible for administration of the Hague Convention rules in the United States.  Additionally, if the parent already has a custody order in place, the parent should seek enforcement in a court of appropriate jurisdiction.  If no custody order has been issued, the parent should petition for custody of the child.  The parent may also request the assistance of state and federal prosecutors to institute criminal proceedings against the parent who removed the child across an international border without consent.

In certain circumstances, Courts may determine that grandparents have rights to visitation or even custody of their grandchildren.   The standard applied to grandparent visitation cases is whether the grandparent visitation or custody is in the best interests of the grandchild.  In the case of E.S v. P.D., 8 N.Y.3d 150 (2007), a man asked his mother-in-law to move into the marital residence to care for her terminally ill daughter and grandchild.  After her daughter died, the man asked the grandmother to stay in the home and continue to care for the grandchild. 

After approximately 3 ½ years, the relationship between the man and his mother-in-law became strained regarding certain issues surrounding care of the grandchild.  He then demanded that the grandmother move out of the marital residence and forbade her from having contact with the grandchild.  The grandmother petitioned for visitation with the grandchild and the Court of Appeals determined that visitation between the grandmother and grandchild was in the child’s best interests, given the history of caregiving and the close relationship between grandmother and grandchild.

In a recent New York Court of Appeals decision, the Court held that, unless the parties to an agreement express otherwise, or the Court expressly states in a judgment or order, the custodial parent has sole decision-making authority with respect to practically all aspects of the child’s upbringing.  The Court rejected the father’s argument that the right of a non-custodial parent to participate in educational decisions for his or her children is implied. 

While the Court found that a non-custodial parent is not prevented from requesting data about his or her child’s education, the authority to control educational decisions lies with the custodial parent

The facts of the case, Fuentes v. Board of Education of the City of New York, 12 N.Y.3d 309 (2009), were as follows:  The father and mother divorced in 1996 and the mother received exclusive custody of the parties’ three children.   One of the parties’ children is legally blind and received special education services from a New York City school.  The father decided that the services received by his son were inadequate and sought a review of the services by the education department. 

After the educational department determined that the father lacked standing to make educational decisions for his son, the father commenced a federal action, claming that he was denied a right conferred by the Individuals with Disabilities Education Act.  The Federal District Court dismissed the father’s action for lack of standing.  On appeal, the Federal Circuit court held that New York law, which governs the matter, was unclear.  That Court then asked the New York Court of Appeals to resolve the issue on a certified question:  whether the non-custodial parent retains decision making authority on educational matters for his or her child when the custodial parent is granted exclusive custody of the child and the divorce decree and/or custody order are silent as to the right to control educational decisions.   The New York Court of Appeals held that the non custodial parent did not retain that decision making authority.