For responding parents
A return petition can place a parent on an exceptionally compressed schedule. The response must test every element of the petitioner’s claim, identify any Convention defense, and develop admissible evidence without losing sight of what the proceeding actually decides.
A Hague proceeding ordinarily decides whether the child should be returned to the country of habitual residence—not which parent should receive permanent custody.
General best-interest arguments are not enough. A successful defense must fit the Convention and satisfy ICARA’s applicable burden of proof with evidence the court can consider promptly.
The legal framework
Defense begins before the exceptions. The petitioner must prove wrongful removal or retention by a preponderance of the evidence. That permits challenges to habitual residence, custody rights, breach, exercise of rights, treaty applicability, and timing. If the petitioner meets that burden, the respondent may assert one or more recognized defenses.
Whether return would expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation. The proof may require carefully framed testimony, records, and qualified expert evidence.
Whether the petitioner agreed to the removal or retention beforehand, or later accepted it. The timing, wording, circumstances, and subsequent conduct surrounding communications can be decisive.
When proceedings began more than one year after the wrongful removal or retention, whether the child is now settled in the new environment. School, home, community, immigration, and family evidence may matter.
Whether a child of sufficient age and maturity genuinely objects to return. An objection is distinct from a preference, and courts consider the child’s maturity and the independence of the views expressed.
Return is not required if the petitioner cannot prove the child’s habitual residence, a breach of rights of custody under the governing law, or the actual or would-be exercise of those rights.
The narrow question whether return would be prohibited by fundamental principles of the requested country relating to the protection of human rights and fundamental freedoms.
The first response
Courts may set early hearings and compressed deadlines for discovery, experts, exhibits, translations, and briefing. The initial response should protect the client’s position while rapidly defining the factual and legal issues that actually require proof.
Identify service, response and hearing deadlines; existing orders; travel restrictions; the child’s location; and any request for provisional relief.
Examine habitual residence, the law governing custody rights, whether those rights were breached and exercised, the date of retention, and Convention applicability.
Match the facts to the precise treaty standard and burden of proof. Avoid turning the case into a generalized custody or best-interest dispute.
Develop witnesses, experts, foreign records, translations, digital evidence, demonstratives, and legal briefing with possible appellate review in mind.
Evidence development
Prompt defense assessment
For the first conversation, have the petition, summons, orders, hearing dates, countries involved, removal or retention dates, the child’s current location, and the most important communications available. Do not send highly sensitive documents until secure delivery arrangements are confirmed.
Contacting the firm does not create an attorney-client relationship. Do not include confidential or time-sensitive information unless the firm has agreed to represent you.