The Hague Convention is a treaty that helps ensure the prompt return of any child below the age of 16 to his or her habitual residence. It also discourages the parties from forum shopping by preventing the parents from moving the children to a different country that has more favorable custody laws. Generally under the Hague Convention, the custody matter will be heard in the child's home country.

The Hague Convention is only applicable in countries that have become signatories to the Convention, and both countries must be signatories to the Convention for its aspects to apply. The United States is a signatory country.

In any Hague Convention case, the court must determine whether or not the child has been wrongfully removed from the home state. The court will weigh two factors:
  • whether the child's "habitual residence" was in a ratifying country just before the abduction, and
  • whether the child was removed from someone who had custodial rights. 

The parent remaining in the country has the burden of proving that the taking of the minor child was wrongful. A custody order is not required in the child's home country.  All that is required is that the staying parent had the right to exercise custodial rights.  Once the moving party meets his or her burden, the party who removed the children must prove that he or she had a affirmative defense.

Actions initiated under the Hague Convention do not consider the best interest of the child, instead it recognizes the child's habitual residence and gives deference to the laws of the child's habitual residence.
The term habitual residence is not defined by the treaty.  Courts look to intent of the parties, the location of the parties, and the amount of time that the parties have been in a particular place. 

The child's immigration status is generally not considered for the purposes of the Hague Convention.

The parent who removed the child must show that he or she had a good reason (an affirmative defense) to remove the child. The parent removing the child generally must show a defense by clear and convincing evidence. However, there are times when the moving party may show it by a preponderance of the evidence. 

Affirmative defenses which require clear and convincing evidence include
  • a grave risk of harm to the child; or
  • the country of habitual residence would not be a good place due to violations of human rights and fundamental freedoms

Situations that only require a preponderance of the evidence occur when
  • the parent who remained at home filed the petition more than a year after the removal took place;
  • the stay behind parent was not exercising custody rights;
  • the stay behind parent consented to the removal. 

 Settled Minors

If a child is settled in the new country, the court will not return the child to the original habitual residence.

A court will consider several factors to determine whether a minor child is settled in the United States:
  • Child's age;
  • Stability and duration of a child's residence in the new country;
  • regular school attendance;
  • child's friends and relatives in the area;
  • child's participation in commmunity or extracurricular activities; and
  • Respondent's employment and financial stability.

A child's status as undocumented will not effect the determination of whether a child is settled.

 Child's Preferences

Under the Hague Convention, a court may allow a minor child to testify about his or her preferences to stay in the United States as long as the child demonstrates sufficient maturity to express his or her desire to remain in the custody of the parent living in the United States. This determination is based upon the discretion of the judge and is on a case by case basis. The judge may exercise her discretion not to interview a child.