The Hague Convention provides a mechanism for the return of internationally abducted children to their country of habitual residence. The U.S. is a party to the convention, which provides that removal of a child to another country without the consent of the other parent is wrongful if that other parent was exercising their custody rights over the child at the time. The convention is not designed to make a substantive determination over who should have custody of the children, but instead is a mechanism for deciding which country’s courts should resolve the custody dispute.
If a court determines that children were wrongfully retained or removed, they must be returned to their country of habitual residence. However, a parent can raise a number of defenses to prevent return of the children, including if there is a “grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
The Acosta case concerned custody of two minor children who had been living with their mother and father in Lima, Peru. The father is Peruvian and the mother is from the United States. During the marriage the father abused the mother and the children witnessed several incidents of violence by their father, directed both at the mother and at strangers. After the breakdown of the marriage relationship the mother took the children with her to the U.S. She told her husband that she was seeking a divorce and planned to keep the children with her in the U.S. When she returned to Peru to pick up some of her and the children’s belongings, the father forced his way into the couple’s apartment, physically assaulted the mother, and cut one of the mother’s friend’s legs with a knife. He threatened to kill his wife, the children and himself.
The father filed a petition for return of the children under the Hague Convention. He claimed that the children’s habitual residence was Peru, that he had custody rights over the children prior to their removal to the U.S., and that he was exercising those rights. The mother argued that she had not wrongfully retained the children, and that even if the court found otherwise, several factors prevented their return to Peru. The court found that the children were wrongfully retained in the U.S. It then addressed the issue of whether the mother had presented sufficient evidence of “grave risk of harm” to the children to convince the court not to order their return to Peru.
The grave risk of harm inquiry focuses specifically on risk to the children, not to the other parent or any other third party. Previously, courts had been unwilling to recognize that spousal abuse, in the absence of violence towards the children, constituted a grave risk of harm under the Hague Convention. By contrast, the Acosta court found a grave risk of harm to the child where domestic abuse shows a propensity for violence and there are other risk factors. The court held that the father’s history of violence in the presence of the children, escalation of violence, suicide threats, and estrangement from the children was sufficient evidence of a high risk of harm to the children. The Hague Convention does not require that the child must have actually been previously physically or psychologically harmed in order to find a grave risk of harm.