Palm Beach Florida Divorce & Family Law Blog
In a child custody and visitation proceeding, to demonstrate a wrongful removal or retention of a child under the Hague Convention, a petitioner must establish: (i) the child is retained in a country outside the country of the child’s habitual residence, (ii) the removal must be a violation of the parents right of custody, and in particular the right to determine the child’s place of residence, and (iii) the right of custody was being exercised or would have been exercised absent the removal.
In Sanchez v. Suasti the Florida Court of Appeal recently stated: “To demonstrate a wrongful removal or retention of a child under the Hague Convention, a petitioner must establish three elements. Larbie v. Larbie, 690 F.3d 295, 307 (5th Or. 2012). First, the petitioner must show the child has been retained in a country outside the child’s country of habitual residence. Id. Second, the wrongful removal must be a violation of the petitioner’s ‘rights of custody,’ which ‘include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.’ Abbott, 560 U.S. 1, 9 (quoting Hague Convention, art. 5(a)) (emphasis added). These rights arise ‘by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.’ Hague Convention, art. 3. Finally, the petitioner must demonstrate the rights of custody ‘were actually being exercised or would have been exercised but for the removal.’ Wigley v. Hares, 82 So. 3d 932, 936 (Fla. 4th DCA 2011) (citing Hague Convention, art. 3).”
To speak with a divorce attorney in Jupiter, Florida, contact Matthew Lane & Associates, P.A. at (561) 651-7273.