The U.S. Federal Courts Response and Their Application of the Best Interests of the Child Standard: Applying the Hague Convention to International Child Abduction

Melanie Rosen, University of New Hampshire, Durham

Abstract

International child abduction occurs when a child is wrongfully removed or retained by a parent, or other family member in another country. It is a recurring issue around the world with yearly 800,000 children being reported missing (Rosas-Moreno & Harp, 2013; Finkelhor, 2002/2003). This research reviews the Hague Convention on the Civil Aspects of International Child Abduction and its application of the best interests of the child standard as applied by randomly selected, recent federal courts. The research question is: “How do U.S. federal courts apply the best interests of the child to international abduction cases remanded from the Hague Convention?” The method uses a legal analysis method that includes the use of primary legal sources, as well as secondary sources. The analysis is based on the random selection of six U.S. federal court cases: two at the Supreme Court level, two at the Court of Appeals level, and two at the District Court level. These cases were first reviewed using an IRAC (issue, rule, analysis, conclusion) method, and then using a rubric of questions that were developed to focus on the research question and the best interests of the child. As a result, it was concluded that the Hague Convention does not have an explicit best interests of the child test as part of its analytical rubric. It is not part of the prima facie case. However, as this exploratory study has shown, the best interests of the child can be found in the exceptions analysis. As demonstrated in these six cases, this standard is only considered if the possibility of an exception can be raised.