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* Robert G. Spector is the Glenn R. Watson Chair and Centennial Professor of Law Emeritus
at the University of Oklahoma Law Center.
2022 IN HAGUE RETURN
PROCEEDINGS
ROBERT G. SPECTOR*
Introduction
Most U.S. international family law litigation involves the Hague
Convention on the Civil Aspects of International Child Abduction and its
implementing legislation, the International Child Abduction Remedies
Act (ICARA).1 Federal and state courts have concurrent jurisdiction to
decide on a request for the return of a child under the Convention.
The Convention operates to promptly return children to their habitual
residence. To obtain an order returning a child, the petitioner must
prove that the child was wrongfully removed from, or retained outside
of, the child’s “habitual residence”; and that the petitioner had “a right
of custody,” which he/she was “actually exercising” (or would have
exercised, but for the abduction), under the law of the child’s habitual
residence.2 The fact that the child has been granted asylum does not
prevent the court from ordering the return of the child.3
I. Applicability of the Abduction Convention
The Child Abduction Convention only applies to countries that have
ratied or acceded to it, and between countries that have accepted the
1. Originally codied at 42 U.S.C. §§ 11601–10; recodied as 22 U.S.C. §§ 9001–11.
2. As is often noted, the law of the Abduction Convention is relatively straightforward, but
the facts can be complicated. Although some cases are fairly easy to determine, Hague return
petitions can rarely be decided on a motion to dismiss. Lorenz v. Lorenz, No. 20-CV-13128,
2021 WL 2229288, at *3 (E.D. Mich. May 11, 2021), report and recommendation adopted, 2021
WL 2226479 (E.D. Mich. June 2, 2021).
3. Salame v. Tescari, 29 F.4th 763, 771 (6th Cir. 2022).
