The Difficulty of Having New York Courts Enforce Hague Convention Abduction Cases.

We have experienced difficulties with having the Supreme Court in New York and the New Jersey Superior Courts enforce the return of children to their parents in Petitions/Complaints filed pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“Convention”). When a child is abducted either from a foreign country to the United States, and the child in now living in New York or New Jersey, or when the child was taken from New York or New Jersey to a Country that is a signatory to the Convention, the Convention provides that you can seek redress from either a State Court or a Federal Court. If you are applying to the New York or New Jersey State Court(s), the first obstacle is the naivete and lack of experience of the State Court Judges in this field and the necessity to explain to them not only do they have the power to act in these cases, but how they should act. Because of the Judge’s role, position, and sometimes sense of their own superiority, the laws and procedures have to be explained in a diplomatic manner.

It has been our experience that the Judges are always defensive and incredulous as to the proceedings. Sometimes they will initially reject the application until it is explained to them. We always make it a point come to Court with other decisions made within their bailiwick, and the names and numbers of judges with whom they can consult, as well as decisions and orders in their particular County in which other Judges have accepted jurisdiction, applied the Hague Convention, and made a decision.

In one case in the Supreme Court of New York in the Bronx, the Judge castigated us for bringing such an application before him. The application was started by filing a Writ of Habeas Corpus and Order to Show Cause. The Order to Show Cause was argued that day in Chambers with a Court reporter present. Within 30 seconds of argument, the Judge went off the record and stated “Mr. Gourvitz are you being condescending? Do you know how long I have been a judge?” and a few other accusatory remarks. He further stated: “Mr. Gourvitz, you are telling me that I cannot take my child to a foreign Country without my Wife’s permission to live?” We responded—“that is exactly what I am telling you, Your Honor.” We had to further explain to the Court, in the most diplomatic and respectful manner we could in a situation like this, that most State Court judges do not see even one of these cases in all the years on the bench. We as Hague Convention attorneys are instructed to explain the law, procedures, and the like to the Court. Unfortunately, some Judges believe that they are being “talked down to,” and we have to act persistently. In this case, we were persistent despite the Judge’s attitude and demeanor, and after almost a full day of his law clerk studying the law we had given him, reviewing other decisions by other Judges in the Courthouse, and conferring with other Judges, the Court finally found in our favor.

If the child has been taken to New York or New Jersey, the first step an attorney must take is to file an ex-parte Order to Show Cause and Writ of Habeas Corpus before the State Judge. In the application, you cite the abduction, the county you believe they are in, and ask for the Court in its Order to: (1) award the remaining parent with emergent temporary custody of the child; (2) Order that the other parent be served with a copy of the moving papers; (3) Order the return of the parent and child to their country of habitual residence on a specific date; (4) Order that if they do not return that a bench warrant issued for his/her arrest; (5) Authorize local and foreign law enforcement officers to enforce the Court’s Order in securing the child(ren); and (6) ordering seizure of their passports.

Sometimes the parent appears in Court on the return date of the Order to Show Cause and sometimes they ignore it and “run.” If they do appear, and the passports have not previously been seized, their passports are seized and, depending on the circumstances and their defenses, the physical custody of the child(ren) is awarded to the other parent until there is a final hearing as to merits of the application. Hague Applications are treated the same as a Writ of Habeas Corpus.

When the parent ignores the Order, the Court awards custody to the remaining parent and then they have the first document in their long tedious effort to retrieve their child. The Convention does not even mandate that a trial or hearing take place. It is akin to a preliminary injunction, and may even be disposed of by way of Summary Judgment.

With that said, there are many ways of having the child or children returned. The first objective in these situations is finding the child. The second is being able to get to the child to rescue them. The third is getting the child(ren) out of the country the child(ren) were wrongfully removed to or retained in.

Over the years, we have developed connections with certain personnel, attorneys nationally and internationally, and other indispensable contacts to assist “left behind” parents with safely bringing his or her child(ren) home. If your child has been abducted to, or wrongfully retained in the United States, or any other Country that is a signatory to the Hague Convention, Gourvitz & Gourvitz, LLC, can help bring your child home.