What do I do if my child has been abducted to Italy?

If your child or children have been taken from their State of habitual residence without your authorization, assuming no court order on custody provides the taking parent with the right to do so, it is considered International Child Abduction (“ICA”) and there is a procedure in place to seek the speedy return of your child or children.

The 1980 Hague Convention on the Civil Aspects of International Child Abduction

The 1980 Hague Convention on the Civil Aspects of International Child Abduction is an international treaty signed and ratified by many countries including the USA, UK, and most European countries including Italy (click here for a full list of Countries https://www.hcch.net/en/states/hcch-members ).  This treaty sets out a relatively simple process by which the courts in the country where the child was taken to apply the laws enumerated in the treaty instead of their own laws.

The process stated in the Hague Abduction Convention requires the courts to issue the repatriation order for the child if the child was, in fact, removed from their State of habitual residence.  Although “habitual residence” itself is not defined in the Convention, and each State may make their own determination on habitual residence, there are normally two key factors which most commonly determine it.  These amount to where the child’s center of life has been and the shared intentions of the parents are also taken into consideration.

Furthermore many State’s appeals courts or supreme courts have already decided on the definition of habitual residence.

Once the habitual residence has been established the court is bound to return the child if that State of habitual residence is also a party to the Convention.  However there are some exceptions which can provide the court with the ability to not order the repatriation of the child.

These include:

• If the child was 16 years of age or older at the time of the abduction
• If the application for repatriation under the Convention was filed after one-year from the date of the abduction and the child is well settled in their new environment
• If the parent petitioning was not, at the time of the abduction, actually exercising their right of custody or if they consented to the removal of the child or acquiesced after the abduction. This is a vital issue which is why it is important to contact us as soon as possible so that nothing you do will be considered acquiescence.
• If the child faces a “grave risk” or “intolerable situation” if returned
• If the return “would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms”

If none of these “exceptions” are met then the court is “obliged” to return the child.

Pre-existing court orders on custody from the child’s State of habitual residence can be used in court and are most commonly respected however it is clearly stated in the Convention that custody cannot be determined by the court as it is the State of the child’s habitual residence which has the only right to determine custody.

Therefore if the taking parent begins a new legal process against you in the taken-to State (the applied-to or “requested” State) then this court case (and any decisions made by it) can be put aside until The Hague Convention case is completed.  If the petitioning State is the victor then any decisions on custody in the petitioned State will be nullified.

The final decision or order by the court is immediately effective however there is a process for appealing the lower court’s decision.

If you have questions or if your child has been abducted to Italy then contact us immediately as there are many essential things you should do to prepare your case including the building of evidence and the application process itself.  There are translations of documents and other issues at play when you are dealing with two distinct States with different languages, courts and processes.

Contact us now for a free consultation:

Tel.: +39 06 45478189
Fax: +39 06 85300794
e-mail: segreteria@studiodellabella.it