Chicago Journal of International Law


Each year 350,000 cases of child abduction occur in the United States. Approximately 10,000 of these cases involve the abduction of children to foreign nations by a parent. A swell in divorce rates and ease of international travel are likely factors for this recent phenomenon. The primary legal remedy for parents of children abducted to foreign nations is the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention") ratified by the United States on October 25, 1980. As of July 2001, the treaty was in force between the US and fifty other national signatories. The Hague Convention is designed to return children to their "habitual residence" where a court of proper jurisdiction will determine custody. The treaty, however, has been largely ineffective in accomplishing this objective. It has failed to meet its goal in large part because of reliance on an essentially subjective best interest standard that facilitates foreign nations' manipulation of the treaty and their wrongful retention of foreign children within their borders. The subjectiveness of the best interest standard enables judges to make discretionary decisions. Discretion often takes the form of gender biases, national biases, and judgments regarding the "acclimatization" of children to their environment that is often due to judicial delay. The result is substantive non-compliance with the Hague Convention. Family courts in the US employ the best interest standard on a daily basis. Fundamentally subjective and ill-defined, the best interest standard is at best inconsistently applied by US courts. However, the complications associated with implementing this imprecise standard are magnified at the international level. The development of objective criteria and an international communication network among judges could facilitate the return of children to the proper jurisdiction and custodial parent. Efforts to effect reform in these areas have been made, but thus far none have remedied the problem of non-compliance. Ultimately, the optimal solution may be to remove the loose language from the treaty that facilitates use of a best interest standard and replace it with objective criteria that international courts could consistently apply.