Irish-U.S. family law explained
The increase of bi-national marriages and relationships as a result of globalization has exacerbated the tragedy of child abduction across international borders.
A parent may lie awake in the darkest part of the night, disturbed by media reports of gruesome kidnappings by sinister strangers.
But by far the most common kind of child abduction involves one parent fleeing with the child, in the midst of or after a divorce or relationship breakdown. What hope is there for the panicked left-behind parent?
If the abductor has decamped to Ireland, there is, at least, some cause for hope.
81 countries, including the U.S. and Ireland, are members of an international treaty commonly referred to as the Hague Convention. The convention is not a mechanism for international custody disputes. It essentially offers only one avenue of relief, a proceeding to compel the return of the child (under the age of 16), to his or her country of habitual residence, so that the courts of that country can determine custody.
The purpose of the convention is to restore the status quo, which existed prior to the abduction. It is more than 20 years since the convention entered into force in the U.S., and one of the surprises has been that the overwhelming majority of abductors are mothers.
Each year, the U.S. Department of State is required to submit to Congress a report on compliance with the convention by the treaty partner countries. Ireland gets a clean bill of health for compliance with the convention.
Eight countries were evaluated in the 2009 report as non-compliant or demonstrating a pattern of non-compliance, including Honduras, Brazil, Chile, Switzerland and Greece. The primary non-compliance problem arises from the courts in those countries making custody determinations of their own instead of ordering the return of the child to his or her habitual residence.
With respect to Ireland/U.S. Hague cases, there were 11 new cases last year involving 19 U.S. children wrongfully removed to Ireland, and four cases involving seven Irish children taken to the U.S.
While Ireland is deemed compliant with the Hague convention, that does not mean the left-behind parent can expect a speedy return of the missing son or daughter. Court processes and appeals take an inordinate amount of time to complete.
Although the convention contains a provision for the signatory countries to pay the legal fees incurred by the left-behind parent, the U.S. opted out of that provision. Accordingly, the left-behind parent in the U.S. faces the often rapidly escalating legal fees and the costs of traveling to Ireland for hearings.
Pursuant to the convention, an Irish court can refuse to order the return of a child to the U.S. for any one of seven possible reasons, including (1) delay; the application was not filed within one year of the abduction and the child is well settled in Ireland; (2) the left-behind parent was not exercising his or her custody rights at the time of the abduction; (3) the return of the child would expose him or her to physical or psychological harm or an intolerable situation; or (4) the child (of sufficient maturity) does not want to go back to the U.S.