Focus on Hague Convention: Dad of Kids Taken to Japan Has Few Options

August 19, 2015

Dad Kent Swaim had no idea he would not see his children for years when he read them a bedtime story one night in July 2008. The next day, his wife took their two sons and returned to her homeland, Japan. Swaim did not know what happened to them for over a month until he located his children and his wife at her parents’ home in Okinawa. Since his wife (now ex-wife) took the two boys, Swaim has not seen them except a few conversations over Skype, and he has realized that he has few options to lobby for their return to him.

Swaim has discovered what many other left-behind parents in international abductions have learned: the Hague Convention is the greatest leverage available in these situations. Unfortunately for Swaim, Japan is one of a minority of countries that has not signed on as a contracting state to the Hague Convention, thus children taken to Japan cannot be brought back under the Hague Convention provisions that require a swift return unless exceptional circumstances apply.

The Hague Convention was developed and ratified in 1980 by many countries to address the heart-wrenching situations in which one parent takes children across international borders, usually without the knowledge or consent of the other parent. Before the Hague Convention, parents usually had to pursue their custody claims within the courts of the country that the children were taken to. This frequently resulted in resolutions that favored the parent who took the children.

With the adoption of the Hague Convention by numerous countries, the Hague Convention provided a swift remedy to return the children to the country where they originally resided to allow courts there to determine custody claims. Several exceptions exist to the swift return remedy, such as in circumstances where the children would be placed at grave risk, or where the children have re-settled in the new country. But first and foremost, countries that sign on to the Hague Convention have promised that their courts will not address custody claims under state court rules, but will determine whether the child should be returned to the country of his or her “habitual residence.”

Family lawyer Jonathan D. Katz has experience handling Hague Convention cases in countries including the United Kingdom, Western Europe and in U.S. courts, as well as other international family law cases.