The Hague Convention is an international treaty signed by member countries that establishes a judicial proceeding for returning children who have been wrongfully removed from their place of "habitual residence" by one parent. The objective of the treaty is to return children to their habitual residence so that a custody determination can be made by the court with proper jurisdiction. Further, the treaty aims to prevent parents from "forum shopping" by taking their children to a jurisdiction where they feel they would have an advantage.
For U.S. Citizens, a Hague Convention petition must be filed with the U.S. Department of State - Office of Children's Affairs. From there, the petition is communicated to the country where the child is located and a judicial proceeding begins. In this proceeding the foreign court is required to determine two things - the child's place of habitual residence and if the child's removal was wrongful. In determining if the removal was wrongful, the court is mandated to apply the law of place of habitual residence.
In this case, the court of Valencia, Spain found that the United States was, in fact, the place of habitual residence of Victoria. However, the court found under Spanish law the removal was not wrongful. In reaching this decision the court completely ignored New Jersey law as well as a New Jersey court order demanding the child be returned. They also found the parties consent agreement to be a private agreement and not binding in Spain. The court also cited the Spanish Constitution by stating Spanish citizens are free to choose their place of residence and therefore Ms. Carrascosa did not wrongfully remove Victoria from New Jersey. In short, the Spanish courts made a convoluted custody ruling in a proceeding that was never intended to determine the custody of a child.
Why did the Spanish court make such an error? It would be easy to say they were bribed and this is entirely possible. The more likely reason is a combination of a lack of judicial training on the Hague Convention and local culture which favors mothers in any custody action. In either case, the ruling was wrongful and a clear departure from the convention.
With her erroneous Hague Convention ruling in hand, Ms. Carrascosa returned to New Jersey in August 2006. She expected that she would simply present the ruling to the New Jersey court and the court will unilaterally dismiss all legal actions filed by Mr. Innes in favor of the Spanish courts ruling. Unfortunately for Ms. Carrascosa, it did not work that way. The U.S. courts instead found the Spanish courts decision could not, and would not, be acknowledged because it was "a glaring departure from the mandate of the convention" and "violated the fundamental rights of Mr. Innes". The N.J. Superior Court, N.J. Appellate Court, U.S. District Court and the Federal Court of Appeals fo rthe 3rd Circuit all ruled the same - the removal of Victoria was wrongful, custody of Victoria must be decided in New Jersey.
In the end, the failure of the Spanish court to meet their obligations under this international treaty is exactly what caused this conflict. The Carrascosa family and their attorneys have taken the position that "we don't care if you like the Spanish Courts ruling - you have to accept it". However, the U.S. courts have determined "no - we don't have to accept a foreign ruling that clearly violates an international treaty and the rights of two U.S. Citizens - Peter and Victoria Innes."
|
|
