You asked about possible conflicts between the Hague Convention on the Civil Aspects of International Child Abduction and the provisions of PA 99-185, An Act Concerning the Uniform Child Custody Jurisdiction and Enforcement Act.

SUMMARY

It is difficult to give a definitive answer to your question because both the Hague Convention and PA 99-185 are long and detailed laws designed to cover complex inter-personal situations involving multiple parties and different states with differing legal systems. It is unlikely that they would be in direct conflict, but in a fact-specific real-world case a conflict might arise.

The public act is more inclusive, and it is designed to allow courts to settle jurisdictional disputes involving custody and visitation issues when the parties live in different states. The Hague Convention is more limited; it is designed to hasten the return of children wrongfully abducted internationally and deter such abductions in the future. Thus the situations that would be covered by PA 99-185 are much broader than those covered by the Convention. In addition, the convention only covers children under age 16 while the act covers children under age 18.

One provision of PA 99-185, which might conflict with the Convention concerns human rights issues. When sHB 7010, which became PA 99-185, was being discussed during the session a provision was added that allows a Connecticut court to refuse to enforce a custody determination rendered under a child custody law that violates fundamental human rights principles or is repugnant to state policy. But the Convention has a provision that allows a party state to refuse to return a child if it would violate the state's fundamental principles regarding the protection of human rights and freedoms. It is unclear what would be repugnant to state policy, but if a court found another state's custody determination not to be in violation of fundamental human rights but to be "repugnant" to state public policy and refused to return the child, the court probably could be considered to be in violation of the Convention. But this is very speculative, and it is difficult to predict a situation where such a result would occur.

We have enclosed copies of the Hague Convention, PA 99-185, and the OLR summary of PA 99-185.

THE HAGUE CONVENTION

The goals of the Hague Convention, as laid out in Article 1, are first to secure the prompt return of children wrongfully removed to or retained in any contracting state and second to ensure that the rights of custody and access under the laws of one state are respected in other states. The Convention makes removal or retention wrongful when (1) it is a breach of custody rights under the law of the state where the child "was habitually resident immediately before the removal" and (2) at the time the child was removed the custody rights were actually being exercised (Art. 3). Under the International Child Abduction Remedies Act (ICARA), which is the U. S. law implementing the Hague Convention, the applicant must prove by a preponderance of the evidence that the removal was wrongful (42 USCA § 11603). The custody rights can arise by (1) operation of law, (2) judicial or administrative decision, or (3) a legally effective agreement.

Under the Convention, each party state must designate a Central Authority to enforce its provisions, and a parent who believes his child has been wrongfully removed can apply to the Central Authority of either the home country or the country where the child is located (the requested state). The Central Authority is obligated to take appropriate measures to (1) discover the child's whereabouts; (2) prevent harm to the child; (3) protect the applicant's interests; (4) secure the voluntary return of the child; and (5) if necessary, initiate a judicial or administrative proceeding for the child's return.

In determining whether the child's removal has been wrongful, the Convention authorizes the requested state's judicial authorities to consider the law and judicial or administrative decisions of the habitual residence state (Art. 14). But it also allows the requested state to have the applicant obtain from the habitual residence state authorities a decision or determination that the removal was wrongful under the Convention's provisions (Art. 15).

The Convention exists solely to expedite the return of the child to the state of habitual residence, and this residence state is responsible for making the custody determination. The Convention specifically provides that decisions concerning the return of the child are not determinative on the merits of a custody issue (Art. 19).

If the wrongful removal has been for less than one year, the requested state must order the child's return. If the removal has been for more than one year, the requested state must order the child's return unless it determines that the child is now settled in his new environment (Art. 12). Article 13 of the Convention sets out three specific circumstances where the requested state does not have to return a child:

1. when the applicant was not actually exercising custody at the time of removal or subsequently consented or acquiesced to removal,

2. if there is grave risk that return would expose the child to physical or psychological harm or otherwise place him in an intolerable situation, or

3. if the authority finds that the child objects to return and has attained an age and degree of maturity where it is appropriate to take his views into account.

Finally, the Convention specifically states that a contracting state may refuse to return a child if such return "would not be permitted by the fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms" (Art 20).

PA 99-185

This act replaces the uniform Child Custody Jurisdiction Act with the Uniform Child Custody Jurisdiction and Enforcement Act. Its effect is to specify more clearly which state has jurisdiction when the parties in a custody or visitation dispute live in different states. The act treats foreign countries as other states, if their custody order procedures basically conform to the act's requirements and do not violate fundamental human rights principles. The act establishes provisions governing a state's continuing exclusive jurisdiction over a custody matter. It significantly expands the court's authority to exercise temporary emergency jurisdiction in these cases and to modify another state's custody order.

The act also establishes a number of new procedures for enforcing existing custody determinations and federal or other states' orders under the Hague Convention on the Civil Aspects of International Child Abduction. These include provisions for registering and recognizing other states' orders, enforcing stays pending modifications, applying for orders to take temporary custody of a child, and awarding expenses to the prevailing party.

The act retains a number of the existing uniform provisions in identical or essentially similar form. These include provisions asserting the binding effect of a child custody determination on all parties that are served, giving jurisdictional issues under the uniform law calendar priority in court, governing the provision of notice both within the state and for parties in other states, and taking testimony from people in other states by deposition.

The act expands the law's international application by requiring this state's courts to enforce foreign child custody determinations and the orders of state or federal courts for the return of a child under the Hague Convention made in substantial conformity with its jurisdictional standards, including reasonable notice and an opportunity to be heard. But courts do not have to enforce orders if the foreign country's child custody laws violate fundamental human rights principles or the custody determination is repugnant to this state's public policy (§§ 37 and 38).

The act defines a foreign custody determination as one involving legal or physical custody or visitation, but not relating to child support or a person's monetary obligations (§ 36).

The act does not take effect until July 1, 2000.

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