Child Abduction, Wrongful Removal, Wrongful Retention
„International parental kidnapping” is when one of the parents remove the child without the consent of the other parent from the country/state where the child’s place of habitual residence is to another country. The definition of wrongful removal, or „parental child abduction” requires the following conditions to be met:
– Before the removal the child’s habitual residence of the child was in a different state
– The parent from whom the other parent „stole” the child – according to the law of the state where the child’s habitual residence is – has had and de facto exercised the rights of custody prior to the wrongful removal, and it is in breach of rights of custody under the law of the State in which the child was habitually resident.
The parent who commences a procedure in order to have the child wrongfully removed abroad returned, is required to prove that the conditions mentioned above are met. If the parent successfully proves so and less than one year has elapsed since the removal until the court is seized, the court shall order the summary return of the child.
The return shall be refused for three most common reasons:
– the person requesting return was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced to the removal or retention;
– there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation but this has to be proven a exact, direct and real danger;
– the court shall also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
Dissolution of marriage
Furthermore the court shall refuse to order the return of the child to his place of habitual residence if more than one year has elapsed since the wrongful removal and the child is settled in its new environment. But according to the prevailing rule the return of the child shall be ordered in this case as well.
The person who wrongfully removed the child is obliged to prove the reasons for refusal of the return.
The proceeding to return the child who has been wrongfully removed is non-contentious and is expeditious, the court decision shall be brought within six weeks following receipt of the petition. The applicant must take into account that the other parent has the right for legal remedy. It is important to highlight that this procedure is not an action for settling parental custody, it does not concern “types of custody”, it is not some kind of settlement of international custody. The court does not make a decision on placing the child in one of the parents’ care, the decision solely concerns whether the child shall be returned to its habitual residence. In case the parents wish to settle parental custody, they shall file a petition before the court of habitual residence.
In case the parent fails to fulfill the requirement of the final and binding decision that orders the return of the child, and does not take back the child to its habitual residence, there is a possibility to commence a procedure for enforcement.
If your child was taken to Hungary without your consent and against the laws of your country by breaching your parental rights, you may issue an application for the summary return of your child(ren) in accordance with the 1980 Hague child abduction convention if your country is also signatory state to the Convention just as Hungary is. If your application for return is received by the court in less then a year upon the time of removal, your child(ren) unless extraordinary circumstances arise will be returned to your country.
Dissolution of marriage
Kölcsényi and Némethi Law Firm
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1145 Budapest, Mexikói Street. 52/A.
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