Checklist for Hague Convention Cases

Procedural Issues

Expedited Proceedings 

 ̈ Goal is to complete case in six weeks

Case-Management Conference

 ̈ Safety of the child

 ̈ Obtain parties and children’s passports

 ̈ Set timelines—determine how much time to allocate to trial

 ̈ Should a discovery plan be adopted?

 ̈ Narrow the issues to be tried

 ̈ Determine use of declarations or affidavits

 ̈ Will witnesses testify by telephone

 ̈ Are interpreters needed?

 ̈ Is the case appropriate for mediation?

o Is there an allegation of a history of violence?

o Can mediation take place without resulting in a significant delay of the trial?

 ̈ Legal representation

o Is the petitioning parent represented by counsel? 

o If not, consider referring that parent to the State Dept. Office of Children’s 

Issues to see if the parent can secure counsel

Parallel Jurisdiction Issues

 ̈ Are there any state custody cases pending?

o If so, has the custody proceeding been stayed?

 ̈ Has the Hague Convention issue been litigated in state court or is it scheduled 

to be litigated there?

Case for Return—Burden of Proof—Preponderance of the Evidence

 ̈ Is the child under the age of 16? 

 ̈ What country is alleged to be the child’s habitual residence? 

 ̈ Has the treaty “entered into force” between the U.S. and the other country as of 

the date of the wrongful removal or retention?

 ̈ On what date did the wrongful removal or retention occur?

 ̈ Was the child removed or retained in violation of the custody rights of the leftbehind parent?

 ̈ Does the left-behind parent have rights of custody?

o By operation of law

o By court or administrative decision 

o By legally binding agreement 

 ̈ Was the child removed from the habitual residence when a ne exeat clause or 

restraining order prohibited removal?

 ̈ Was the left-behind parent exercising his or her custody rights before the child 

was removed from the habitual residence? 
Defenses—Burden of Proof—Preponderance of the Evidence

 ̈ Was the request for return filed within one year of the wrongful removal or 

retention? 

 ̈ If it was not filed within one year, has the child become settled in his or her new 

environment?

 ̈ Did the left-behind parent consent or acquiesce in the removal or retention of the 

child?

 ̈ Does the child object to return?

o If so, is the child of sufficient age and maturity for the court to take account 

of the child’s objection?

Defenses—Burden of Proof—Clear and Convincing Evidence

 ̈ Would a return expose the child to a grave risk of physical or psychological harm 

or place the child in an intolerable situation?

 ̈ Would a return violate fundamental principles relating to the protection of human 

rights and fundamental freedoms?

Court May Order Return Even Though Defense Established 

 ̈ Should the court order the child’s return even if a defense has been established?

o If so, consider undertakings, or mirror-image orders, or other measures to 

ensure the child’s safe return

Making Return Orders

 ̈ Is the order for return specific as to time, manner, and date of return?

 ̈ Who is responsible for arranging the logistics of the child’s return?

Attorneys’ Fees and Costs

 ̈ Order only if petitioner prevails

 ̈ Is amount requested clearly inappropriate?