The Hague Convention on international child abduction is a return treaty. For a California family with homes, passports, or relatives in another country, it is a backstop, not a plan. Borna Houman Law represents executives, founders, and dual-national parents from our Santa Monica office, and our international custody matters run through the Los Angeles County family courts at the Stanley Mosk Courthouse downtown and the Santa Monica Courthouse on Main Street. This guide explains what the Convention does, what it does not do, and what a California parent should put in place before a child ever boards a plane.
Key Takeaway: The Hague Abduction Convention orders a wrongfully removed child returned to the country of habitual residence so that country’s courts can decide custody. It does not decide custody itself. A California parent’s strongest protection is a custody order drafted under Family Code 3048 before international travel, not a return petition filed afterward.
In our experience representing high-net-worth parents, the families who recover a child fastest are usually the ones whose California order already named the United States as the country of habitual residence, required written consent for travel, and set a bond large enough to matter.
Worried about a planned trip abroad, or a child who has not come home? Timing controls these cases. A return petition filed within one year of the removal is assessed on different rules than one filed later, and preventive orders must be in place before the travel date. Call (888) 42-BORNA for a confidential consultation. We review the existing custody order, the destination country’s treaty status, and the travel documents in one meeting.
What is the Hague Convention on child abduction in simple terms?
The Hague Convention on the Civil Aspects of International Child Abduction is a treaty under which member countries agree to promptly return a child under 16 who was wrongfully taken from, or kept out of, the country where the child habitually lived. It was concluded on October 25, 1980, and the United States implemented it through the International Child Abduction Remedies Act, 22 U.S.C. 9001-9011.
Put simply, the Convention is a jurisdiction rule. It decides which country’s judge gets to hear the custody case, and then it sends the child there. The court hearing a Hague petition is barred by Article 19 from treating its return order as a decision on custody.
A removal or retention is “wrongful” under Article 3 when it breaches custody rights that the left-behind parent was actually exercising under the law of the habitual-residence country. Custody rights include the right to decide where the child lives, which matters below.
Can one parent take a child out of the country without the other parent’s permission?
Not without legal risk. A parent who removes a child from the United States in breach of the other parent’s custody rights can face a Hague return petition abroad, a California criminal charge, and a federal charge. The exact answer depends on whether a custody order exists and what it says about travel.
California’s custody-deprivation statute, Penal Code 278.5, punishes anyone who maliciously deprives a lawful custodian of custody or a person of visitation rights, with a felony sentence of up to three years and a fine of up to $10,000. Federally, the International Parental Kidnapping Crime Act, 18 U.S.C. 1204, carries up to three years in prison for removing a child from the United States with intent to obstruct the other parent’s rights.
Where no order exists, both married parents generally hold equal custody rights in California. Even without a court order, a passport for a child under 16 normally requires both parents’ signatures under 22 CFR 51.28, and the regulation reads a joint custody order as requiring both parents’ permission.
Is a ne exeat clause a “right of custody” under the Convention?
Yes. In Abbott v. Abbott (2010), the U.S. Supreme Court held that a ne exeat right, meaning a parent’s right to consent before the child leaves the country, is a right of custody under the Convention, so a removal that ignores it is wrongful.
That holding is why we draft an express ne exeat clause into custody judgments for international families. A parent holding only scheduled visitation might otherwise have rights of access, which the Convention protects far more weakly. A clause stating that neither parent may remove the child from the United States without written consent or a court order converts a visitation schedule into a right the treaty enforces with a return order.
How do courts decide a child’s habitual residence?
Habitual residence is decided on the totality of the circumstances, with no requirement that the parents ever agreed on where the child would live. The Supreme Court set that rule in Monasky v. Taglieri (2020) and held that appellate courts review the finding only for clear error.
Mobile families are the most exposed here. A child who spends the school year in Brentwood, summers in London, and holidays at a grandparent’s home in Tel Aviv can produce a real habitual-residence fight. Courts look at school enrollment, the length of each stay, where the family’s belongings and pets were kept, language, medical care, and what the parents said and did about where home was.
In our experience, the single most useful document in a contested habitual-residence case is a California custody order that already identifies the child’s country of habitual residence. California requires every custody and visitation order to include that identification under Family Code 3048(a).
What defenses can stop a Hague return order?
A court may refuse return only on a narrow set of exceptions, and the parent opposing return carries the burden. Under 22 U.S.C. 9003(e), the petitioner proves wrongful removal by a preponderance of the evidence, while the grave-risk and human-rights exceptions must be proved by clear and convincing evidence.
| Exception | Convention article | Burden in a U.S. court | What it requires |
|---|---|---|---|
| Well settled after one year | Article 12 | Preponderance | Petition filed more than one year after removal and the child is now settled in the new environment |
| Consent or acquiescence | Article 13(a) | Preponderance | Left-behind parent agreed to the move or later accepted it |
| Not exercising custody | Article 13(a) | Preponderance | Left-behind parent was not actually exercising custody rights at the time |
| Grave risk of harm | Article 13(b) | Clear and convincing | Return would expose the child to physical or psychological harm or an intolerable situation |
| Mature child objects | Article 13 | Preponderance | Child is old and mature enough that the child’s objection should be honored |
| Fundamental human rights | Article 20 | Clear and convincing | Return would violate the requested country’s fundamental principles of human rights |
Two Supreme Court decisions control how these defenses work. In Lozano v. Montoya Alvarez (2014), the Court held that the one-year period in Article 12 is not subject to equitable tolling, even where the taking parent concealed the child. In Golan v. Saada (2022), the Court held that once a grave risk is found, a court is not required to examine ameliorative measures that might make return safe, though it may do so in its discretion.
What happens if the child is taken to a country that is not a Hague partner?
If the destination country is not a U.S. treaty partner, there is no return remedy under the Convention at all, and recovery depends on that country’s own courts, diplomacy, and any mirror order obtained in advance. The State Department’s Office of Children’s Issues serves as the U.S. Central Authority and publishes the current list of partner countries.
Treaty status is country-pair specific. A country can join the Convention without the United States accepting its accession, so being a “member” is not the same as being a U.S. partner. India, mainland China, Saudi Arabia, the United Arab Emirates, and Egypt are examples of countries with which the United States has no Hague relationship. Hong Kong and Macau are treated separately from mainland China.
For a non-partner destination, the California order does most of the work. We ask the court for a travel bond sized to the cost of litigating abroad, for registration of the California order in the foreign country before travel, and in some cases for a flat prohibition on travel to that country until the child is older.
What can a California court order to prevent an abduction?
A California court that finds a risk of abduction can order supervised visitation, a bond, travel restrictions, passport surrender, and registration of the order abroad, among other measures listed in Family Code 3048(b)(2). The court may act on its own motion or at a parent’s request whenever the facts suggest a risk.
The statute directs the judge to weigh specific risk factors: past violations or threats, weak ties to California, strong ties to another country combined with other evidence, no financial reason to stay, planning steps such as quitting a job, selling a home, or applying for a passport, a history of poor cooperation or substantiated domestic violence, and a criminal record. Strong ties abroad alone are not enough under subdivision (b)(1)(C).
For high-net-worth families, most of the evidence falls under the planning-step factor. A liquidated brokerage account, a sale listing on the Malibu house, a new foreign residency permit, or a school withdrawal request can each tip the analysis. In our experience, judges at Stanley Mosk respond to documentary evidence of planning far more than to a parent’s fears about the other parent’s character.
The preventive toolkit in practice
The measures we request most often, in roughly the order we escalate them, are: written itinerary and round-trip tickets before any trip; a ne exeat clause; enrollment in the State Department’s Children’s Passport Issuance Alert Program, which notifies an enrolled parent before a U.S. passport is issued for a child under 18; deposit of passports with counsel between trips; a cash or surety bond; a mirror order entered in the destination country before travel; and, where risk is high, supervision or a travel bar.
Which court has jurisdiction over custody when families live in two countries?
Under California’s Uniform Child Custody Jurisdiction and Enforcement Act, the child’s home state has priority to make the initial custody order, and home state means where the child lived with a parent for the six consecutive months immediately before the case was filed under Family Code 3421. California treats a foreign country as if it were a U.S. state for this analysis.
That creates a timing problem. If a parent relocates the child abroad and waits six months before filing there, the foreign court may acquire home-state jurisdiction. Filing in Los Angeles promptly, and obtaining a California order that recites the basis for jurisdiction as Family Code 3048(a) requires, preserves the strongest position for both the custody case and any later Hague petition.
This is also where a Hague case differs from an ordinary relocation dispute. A parent who wants to move abroad lawfully seeks permission under the move-away standards discussed in our guide to move-away custody and the LaMusga factors. A parent who simply leaves triggers the Convention instead.
How does a Hague return case work in Los Angeles?
A left-behind parent can file a Hague petition in either state court or federal court, because both have concurrent original jurisdiction under 22 U.S.C. 9003(a). In Los Angeles, that means the Superior Court family law division or the U.S. District Court for the Central District of California, filed where the child is located.
Hague cases move fast by design. Article 11 contemplates a decision within six weeks of the start of proceedings, and a requesting party may ask the Central Authority for a statement of reasons when a court exceeds that. Courts typically hear these petitions on an expedited schedule with limited discovery.
Cost-shifting favors the left-behind parent. Under 22 U.S.C. 9007(b)(3), a court that orders a child returned must order the respondent to pay the petitioner’s necessary expenses, including legal fees and transportation, unless the respondent shows that the award would be clearly inappropriate.
A worked scenario
Consider a Pacific Palisades family. One parent holds dual U.S. and French citizenship and takes the couple’s 9-year-old to Paris for a two-week summer visit, then announces the child will stay. The California judgment names the United States as the country of habitual residence and contains a ne exeat clause.
The left-behind parent applies through the Office of Children’s Issues, which transmits the application to the French Central Authority, and retains French counsel to file for return. Because the petition is filed within weeks, the Article 12 settled defense is unavailable. The ne exeat clause establishes custody rights under Abbott, and the habitual-residence recital frames the Monasky analysis. Without those two provisions, the same family could spend months in a foreign court arguing threshold questions.
How is a Hague case different from an international divorce?
A Hague case decides only where a child must be returned, while an international divorce decides marital status, property, support, and custody on the merits. Our international divorce guide covers forum selection, foreign assets, and recognition of foreign judgments for families whose marriage spans borders.
The two often run in parallel. A divorce filed in Los Angeles can produce the very custody order that later supports a Hague petition, and the property side of a cross-border case usually involves the asset-tracing and valuation work handled by our high-net-worth divorce attorneys in Los Angeles. For custody-specific questions, see our Los Angeles child custody attorney page, and for Westside families, our Santa Monica divorce attorney page.
Frequently asked questions
What countries are not part of the Hague Convention on child abduction?
Many countries are not U.S. treaty partners, including India, mainland China, Saudi Arabia, the United Arab Emirates, and Egypt. The list changes, and a country can join the treaty without the United States accepting it. Check the State Department’s current partner list before any international trip.
How long does a parent have to file a Hague petition?
There is no absolute cutoff, but timing changes the case. If the petition is filed within one year of the wrongful removal, the court must order return unless another exception applies. After one year, the taking parent can argue the child is now settled, and Lozano holds that concealment does not pause that clock.
Does the Hague Convention decide who gets custody?
No. Article 19 provides that a return decision is not a determination on the merits of custody. The Convention returns the child so the courts of the habitual-residence country can decide custody.
Does the Hague Convention apply to teenagers?
The Convention stops applying when a child turns 16, under Article 4. For a child close to that age, a mature child’s objection to return can also carry significant weight.
Can a California court stop a child from getting a passport?
Yes. Family Code 3048(b)(2) lets a court prohibit a parent from applying for a new or replacement passport for the child and order existing passports surrendered. Enrolling in the State Department’s passport alert program adds a federal notice layer on top of the court order.
Is taking a child abroad without consent a crime in California?
It can be. Penal Code 278.5 makes maliciously depriving a parent of custody or visitation a crime punishable by up to three years and a $10,000 fine, and the federal International Parental Kidnapping Crime Act separately carries up to three years.
Speak with Borna Houman Law about international custody protection
If your family lives across borders, put the protections in the California custody order now, before a trip or a relocation. We draft Family Code 3048 provisions, ne exeat clauses, habitual-residence recitals, and bond terms, and we coordinate with counsel abroad when a child has already been taken. Call (888) 42-BORNA for a confidential consultation. You can also reach us at (888) 42-BORNA to arrange a meeting at our office at 2530 Wilshire Blvd, Santa Monica.
Written by Borna Houman, Esq., California State Bar #352339, Borna Houman Law, 2530 Wilshire Blvd, Santa Monica, CA.
Disclaimer: This article provides general information about California and federal law and is not legal advice. Reading it does not create an attorney-client relationship. International custody outcomes depend on the specific facts, the countries involved, and current treaty status. Consult a licensed attorney about your situation.