For The Children’s Sake, by MaryKay Loss Carlson

Why India must join the Hague Convention on child custody

The Indian Express, September 28, 2017

The US-India relationship has grown exponentially, and our people-to-people ties are closely interwoven, as demonstrated by increases in travel, cultural exchanges and business partnerships, all of which reflect our shared values. Our mutual values are nowhere more evident than in our shared commitment to our families and children. In Hindi and English alike, the phrases “aaj ke batche humara ane walla kal” or “children are the future” aptly describe this shared belief.

Child custody disputes that sometimes erupt when a marriage dissolves create challenging and disruptive environments for children. This disruption is magnified when parents cannot agree on living arrangements, especially if one parent takes unilateral action and removes children from their country of residence, often in violation of that country’s laws. Families may suddenly find themselves in legal disputes in multiple countries, resulting in significant financial and emotional tolls. These legal battles can drag on for years, leaving children in limbo and potentially harming their development.

Fortunately, a global consensus has emerged to address this problem. Ninety-eight countries — spanning all continents, cultures and religions — recognise that despite different laws and norms, we share a commitment to the best interests of children. This consensus underscores that when parents cannot agree, the courts in the country where a child lives are best suited to settle custody issues.

This consensus also reflects another principle — as more families elect to live in a foreign country, they agree to follow the laws and respect court decisions in their country of residence. This is the basis of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, a vital international instrument that works to protect children from the harmful effects of international parental child abduction. One of the Hague Convention’s greatest strengths is that disputes are resolved within months, not years, allowing parents and children to move on with their lives.

Indians and Americans care deeply about their families and want to ensure their children’s best interests are the focus of any custody decisions. That is why we believe that India, as a key member of the international community with a deep and rich legal tradition, should become the 99th country to join the Hague Convention.

The Convention offers multiple safeguards to ensure that the rights of all parties are protected. This begins with a focus on preventing parents from unilaterally removing children. The Convention encourages all parties to seek mutually acceptable child custody arrangements in accordance with the laws of the country they are living in. If a parent unilaterally removes the child to another country, the Hague Convention sets forth a process to resolve the issue.

The Convention does not resolve the custody dispute; it simply stipulates that the courts where the family has been living are in the best position to make child custody decisions. Children are not automatically returned to the left-behind parent. If a court orders children to be returned to their home country, it is then up to the courts there to decide on custody, in the best interests of the children. There are many examples in which courts awarded custody of the child to the taking parent and the child then relocated abroad with that parent.

Critics sometimes worry that joining the Convention will force abuse victims to return to their abusers. However, Article 13 of the Convention allows courts to decide not to return abducted children if the return would expose them to physical or psychological harm or otherwise place them in an intolerable situation. Further, many resources exist for victims of domestic violence in Convention countries. For example, US laws criminalise domestic violence and protect all victims. More than 10,000 American organisations and agencies provide support and services to victims of crime, and these services are available to people regardless of national origin or immigration status.

As the US-India relationship continues to expand and strengthen, we look forward to working with the government of India on this important issue that requires our urgent attention. We encourage India to join the community of 98 countries that have taken the important step of joining the Hague Convention. The children and families of both of our nations deserve nothing less.

The writer is Chargé d’ Affaires, US Embassy New Delhi.