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Interpreting and Applying the Hague Convention

By Bari Brandes Corbin and Evan B. Brandes
December 21, 2007

Last month, we discussed the law in the U.S. and beyond pertaining to the establishment of a child's habitual residence. The next issue to cover, once habitual residence of the child has been established, is whether or not the petitioning party has a right to custody of the child in question.

A parent need not have a custody order to invoke the Convention, but to apply for the return of a child, a parent must be actually exercising 'rights of custody' under the law of the country where the child was 'habitually residing' at the time of the abduction or wrongful retention. The rights of custody may arise, according to Article 3 of the Convention, by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

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