By Elena Giannattasio, Esq., International Family and Hague Convention Lawyer in New York, Multi-Jurisdictional Divorce, PLLC
Defending against a Hague Convention petition requires a fundamentally different approach from prosecuting one. The Convention strongly favors the prompt return of children to their country of habitual residence, and as a result, the respondent faces a structured and often demanding legal framework in which defenses are limited and narrowly construed.
The burden-shifting framework under the Convention, as implemented through the International Child Abduction Remedies Act (ICARA), places the initial burden on the petitioner to establish wrongful removal or retention by a preponderance of the evidence. Once that burden is met, the burden shifts to the respondent to establish any applicable defense. Certain defenses—most notably the grave risk defense—must be proven by clear and convincing evidence, while others may be established by a preponderance standard.
The available defenses are limited and specifically enumerated under the Convention. These include the grave risk of harm defense, consent or acquiescence, the child’s objection where the child has attained sufficient age and maturity, and the well-settled defense where more than one year has elapsed since the wrongful removal. Courts interpret these defenses narrowly to preserve the Convention’s objective of prompt return.
The grave risk defense, often the most heavily litigated, requires substantial and credible evidence demonstrating that return would expose the child to serious harm. As discussed in detail in prior analysis, courts require objective corroboration and will consider whether protective measures in the country of habitual residence can mitigate any identified risks.
Consent and acquiescence defenses focus on the conduct and intent of the petitioner. Consent refers to agreement prior to removal, while acquiescence involves subsequent acceptance of the relocation. Courts examine communications, actions, and surrounding circumstances to determine whether these defenses apply.
The well-settled defense introduces a temporal element into Hague litigation. If more than one year has passed and the child has become integrated into their new environment, the court may decline to order return. However, integration must be substantial and clearly demonstrated through evidence of schooling, community involvement, and stability.
The child’s objection defense is applied cautiously. Courts must determine whether the child has reached an age and level of maturity sufficient for their views to be considered, and whether those views are independent and not the result of undue influence.
Strategic considerations in defending a Hague case are critical. Because proceedings are expedited, respondents must quickly gather evidence, identify witnesses, and develop a coherent defense strategy. The framing of facts, credibility of evidence, and consistency of the narrative are often decisive.
Coordination with foreign proceedings may also be necessary, particularly where parallel custody litigation is pending in the country of habitual residence. Counsel must ensure that positions taken in one jurisdiction do not undermine arguments in another.
Defending a Hague Convention case requires precision, speed, and a clear understanding of the limited scope of the court’s inquiry. Success depends on the ability to present a focused, evidence-based defense within a constrained procedural framework.