Many think of the island of St. Martin in the Caribbean, which belongs to France and the Netherlands as a tropical paradise. However, the description of the island as a “paradise” is not entirely the situation for a family of three who recently faced a family law battle in the U.S. District  Court for the Southern District of New York according to a February 1, 2017 New York Law Journal article.

The couple was married in New York in 2006 and then moved to French St. Martin in 2008. Four years later, their son was born there. The mother moved with her son from French St. Martin to New York last year to escape her husband’s anger management and temper issues. She made the move, taking her son, without the consent of her husband. The husband then petitioned to the court asking for the child to be returned to him under the Hague Convention and International Child Abduction Remedies Act (the Hague Convention for short). The New York court denied this request stating that the mother and son could again face “severe psychological abuse” and that the legal system in French St. Martin might not be able to do enough to stop it.

The Hague Convention is a law signed in the 1980s that is designed to facilitate the return of children who have been abducted or taken across international borders. As of 2016, there were 94 signatories to the treaty. In the case mentioned above, the Hague Convention applies. In many circumstances, children must be returned home if one parent simply takes them away from their home country; however, under Article 13 there are exceptions. That article states:

“Notwithstanding the provisions of [Article 12], the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –

  1. a)   the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
    b)   there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may 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.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”

In the judge’s decision, the father would have put his daughter and wife in harm, so his request for the child to be returned was denied.

If you have a case in family court or are considering bring a child custody, visitation, child support or spousal maintenance case into court, then you should consult with an experienced attorney. Jayson Lutzky is a family court lawyer with more than 33 years of experience who practices law in the Bronx, New York and handles cases in the Greater New York City area. He offers free in-office consultations to prospective clients and can be reached at 718-514-6619 or through his website at www.MyNewYorkCityLawyer.com.