Vanderbilt Journal of Transnational Law

First Page



Rising divorce rates in recent years have led to increasingly frequent abductions of children by one parent away from the other parent. Often, abducting parents move the children to different jurisdictions in which the parents believe they can obtain a more favorable decision on custody. To remedy this problem, twenty-nine nations joined in 1980 to adopt the Hague Convention on the Civil Aspects of International Child Abduction. This Convention mandates the immediate return, upon request, of the abducted child to the state of habitual residence of the child. The Convention includes several limited exceptions to this mandate, applicable at the discretion of the judicial body of the requested state in certain circumstances. The Convention is subject to criticism because the exceptions focus on the well-being of the abducted child rather than on the custody rights of the parents. United States laws on child custody guarantee parents custody hearings that comport with due process requirements. The legal systems of other states, however, do not always provide this basic fairness. This Note examines the Convention, its exceptions, and the judicial application of those exceptions. The Author concludes that, although United States Courts must remain faithful to the Convention's purpose of allowing custody decisions to be made by the state of the child's habitual residence, courts must be willing to invoke the Convention's exceptions in cases in which the abducting parent will not be given, or has not been given, a custody hearing that is consistent with United States notions of due process.