Why is the Hague Convention in My Custody Order?

Judgments of Divorce and final custody orders contain a lot seemingly unnecessary language. One of the most confusing is the reference to the Hague Convention. What is it? And why is it in your custody order?

Parenting Time in Foreign Countries

Generally speaking, co-parents don’t get to approve where their former partners exercise their parenting time. A non-custodial parent may choose to spend his or her weekend with the children up north or at grandma’s house without clearing it with the other parent. When parenting time crosses state lines, many custody orders require the parent exercising visitation to tell the other parent where the child will be staying and provide contact information. But the other parent still generally doesn’t have the power to veto interstate or even international travel.

But that freedom to travel has limits. Every Michigan custody order (including any judgment of divorce involving children will have language that says:

International parenting time. Neither party may exercise parenting time in a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction unless both parents provide the court with written consent to allow a parent to exercise parenting time in a country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction.”

So what is that, and does it apply to your next international trip?

What Is The Hague Convention?

The Hague Convention on the Civil Aspects of International Child Abduction (or Hague Abduction Convention) is an international treaty designed to protect children from being forcefully taken from their home country. Countries that have signed on to the treaty promise to work together to locate abducted children, encourage amicable solutions between parents, and facilitate the safe return of the child.

But it only applies to countries who have signed onto it. That means if a co-parent takes a child to a country outside of the Hague Abduction Convention there is a higher risk that the child will not be returned. To address that risk, Michigan custody orders say a child cannot be taken outside the Hague Abduction Convention without a court order or written consent from the other parent.

Where Does the Hague Convention Apply?

There are currently 75 treaty partners to the Hague Abduction Convention, including the United States. The treaty has grown over time as new countries have agreed to its terms. Early partners including the U.S., Canada, and much of Western Europe signed on in the late 1980s. But Andorra just became a signatory as of January 1, 2017. A recent Michigan Court of Appeals decision, Safdar v Aziz, suggests that Pakistan has completed the steps to become a party as well.

International travel to much of Europe and North and Central America doesn’t raise Hague Convention concerns. However, parents hoping to visit parts of the Middle East, Africa, and Asia will need to check to be sure their destination is listed as a party. (Also pay close attention if you are heading to China. Only Hong Kong and Macau have signed on. The People’s Republic of China is not a Hague Convention country.)

When Child Safety Goes Beyond the Hague Convention

Michigan law also recognizes that it is far better to prevent child abduction, rather than try to react once the child is overseas. In 2014, Michigan passed the Uniform Child Abduction Prevention Act. Where there is a credible risk that a parent will abduct a child, the law directs judges to issue an abduction prevention order that may include travel restrictions or that the child’s passport be surrendered. This abduction prevention order can require the non-custodial parent to get a court order or the custodial parent’s written consent before taking the child out of state or overseas. It can apply to and be registered in countries that have signed on to the Hague Abduction Convention, or even a neighboring state, based on the danger to the child.

Child abduction is a sad reality. Most parents would not dream of fleeing to another country to get control of a child. But the Hague Convention language in every custody order as a first line of defense just in case your ex-partner is one of the few that will cross that line and put your child at risk.

Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She represents parents in divorce and custody disputes. If you need help establishing or modifying custody of your child, contact Schmidt & Long to schedule a consultation.