This blog post examines why courts worldwide prioritize maintaining a child’s living environment and stability as the highest value in international custody disputes, detailing how the best interests principle serves as the standard for adjudication.
When a couple divorces, if one parent exercises custody rights over minor children as the custodial parent, the other parent, as the non-custodial parent, has visitation rights. The custodial parent is determined by mutual agreement between the spouses; if no agreement is reached, it is determined by court adjudication. When spouses have different nationalities, this court proceeding takes place in the country where the child was living, and the person who is a national of that country is typically designated as the custodial parent. This is because allowing the child to continue living in their original country aligns with the so-called principle of the child’s welfare.
However, the non-custodial parent may attempt to relocate the child to another country to regain custody and then seek a new court ruling. To address this situation, an international convention was established. This convention applies not only when the custodial and non-custodial parents share the same nationality, but also when the non-custodial parent has taken the child to a third country, not their own. This aims to prevent a sudden change in the child’s living environment and to deter the non-custodial parent from repeatedly moving the child internationally to seek a more favorable court decision.
The Convention aims to ensure the prompt return of children under 16 years of age when an unlawful international removal occurs, restoring them to their country of habitual residence. Moving a child to another country against the custodial parent’s will constitutes an unlawful act infringing on custody rights. Furthermore, it is also recognized as unlawful if the non-custodial parent moves the child internationally under the pretense of returning with the custodial parent’s consent, only to subsequently refuse return. The Convention is generally considered to be operating successfully, largely due to the effective functioning of its unique designated authority system and return proceedings. However, it can only be applied if both the custodial and non-custodial parents’ home countries are Contracting States. A limitation is that while support from the Central Authority is available when access rights are violated, no separate judicial system exists for redress.
To recover a child following an unlawful international removal, the custodial parent must win a court case and complete enforcement procedures. If the custodial parent faces difficulties conducting all these procedures abroad, they can receive support from a designated authority. Contracting States must designate one or more designated authorities, which support the custodial parent throughout all stages: locating the child, conducting return proceedings, and enforcing the judgment after a favorable outcome. They also facilitate agreements between the custodial and non-custodial parents on the method of return and assist in implementing such agreements if reached. The Convention establishes a cooperation system among the designated authorities of Contracting States. This allows the custodial parent to receive support from the designated authority in the foreign country where the child and non-custodial parent reside, either through their home country’s designated authority or by applying directly to the foreign designated authority. Of course, it is also possible to directly petition the court in the country where the child is located for a return order.
According to the Convention, if an unlawful international removal of the child is established, the court must order the child’s immediate return. The Convention specifically prohibits the court from determining which parent is the more suitable custodian at this stage. This is to prevent delays in the return proceedings and to ensure that the determination of custody takes place in the country where the child originally resided. However, if grounds for exception to return are recognized, the court may refuse the return request. Examples include situations where the child has already adapted to life in the country where they have resided for over a year, or where there is a grave risk of harm to the child. Here, “harm” encompasses not only physical harm but also psychological harm; thus, even if the custodial parent only perpetrated violence against the non-custodial parent, psychological harm to the child can be deemed to have occurred.
As return proceedings accumulated, situations unforeseen at the time of the Convention’s establishment began to emerge. Cases increased where the non-custodial parent, fleeing domestic violence by the custodial parent, secretly took the child abroad. In such cases, the court may dismiss the return request on grounds of substantial risk. However, to prevent the Convention’s legislative intent from becoming meaningless, the court may grant the return request while ordering necessary measures to protect the child. In this regard, the Convention meticulously applies complex criteria to ensure both the child’s safety and the fairness of international procedures. This application process itself is considered a core challenge in the Convention’s operation.
