This Note argues that the aspect of the Hague Abduction Convention addressing access rights is ineffective because it has forced some courts to misconstrue provisions of the Hague Abduction Convention in order to carry out the Convention's intent. This Note further argues that the burden of establishing the absence of a wrongful removal or retention should fall upon the parent who has removed the child. This Note also argues that the Hague Conference should amend the Convention to order a court to enforce previously ordered access rights in the child's new habitual residence. Part I provides an historical background on the problem of international child abduction. Part I also discusses the international response to the growing problem of children taken abroad. Part II illustrates the issues concerning access rights from the perspective of the drafters of the Hague Abduction Convention, and discusses case law dealing with access rights under the Hague Abduction Convention. Part III proposes a solution for the Hague Abduction Convention to place the burden of proving the propriety of the removal or retention of a child on the moving parent. Part III further proposes an amendment that would direct courts to recognize and enforce as far as possible the access rights of non-custodial parents. This Note concludes that without clearer and more equitable direction, courts may never respect the original custodial arrangement established to benefit the child.
Access Rights: A Necessary Corollary to Custody Rights under the Hague Convention on the Civil Aspects of International Child Abduction,
21 Fordham Int'l L.J. 308
Available at: https://ir.lawnet.fordham.edu/ilj/vol21/iss1/9