Illinois Court Clarifies the Hague Convention’s Mandatory Return Rule

Posted on in Child Custody

Hague Convention’s Mandatory Return Rule, Palatine Family Law AttorneyThe Hague Convention is an international law which regulates child custody. One key requirement of the Convention is that a child who is taken across international borders by one parent must be returned. In a recent decision, the Seventh Circuit Court of Appeals affirmed the judgment of an Illinois District Court that stated that evidence of sexual abuse falls within the “grave risk” exception to the Hague Convention’s requirement.

Ortiz v. Martinez

In 2011, a mother of two children, Zulima Martinez, refused to return with her children to the family’s home in Mexico City after a family vacation in Illinois. Julio Ortiz, the father of the children who had returned ahead of the family, alleged to the Court that Ms. Martinez’s action constituted an infringement of the Hague Convention, which makes it illegal for parents to abscond with their children across international borders.

The Court agreed that Ms. Martinez’s behavior constituted a breach of the Convention but acknowledged and confirmed her contention that returning would constitute a grave risk to the children, one of whom, it was alleged, had been the victim of long-term sexual abuse.

The Mandatory Return Rule

The Hague Convention is an internationally recognized anti-abduction treaty that was designed to deter parents from removing their children to another country without the consent of the other parent. The Convention employs a mandatory return rule which requires the return of a child to his or her country of habitual residence.


There are two narrowly construed exceptions to the Hague Convention’s policy of mandatory return:

  1. The parent was not exercising custody rights at the time of removal or retention or had consented to or subsequently acquiesced in the removal or retention; or
  2. Clear and convincing evidence establishes that a grave risk exists and that the return of the child would expose him or her to physical or psychological harm, or would place the child in an intolerable situation.

Sexual Abuse

The Court affirmed that sexual abuse “most certainly constitutes a ‘grave risk’ of physical or psychological harm.” The Court further pointed to prior case law, stating that sexual abuse by a custodial parent has long been considered an example of an intolerable situation. Because Ms. Martinez satisfied the burden of proof by showing that one of her children was a victim of such abuse via clear and convincing evidence, she satisfied the exception and was not required to return her children to their habitual residence.

Seek Legal Assistance in Illinois

Cases involving child abduction are emotional and stressful and are made worse when there is an accusation of child abuse. If you are going through a divorce or a custody battle which involves the Hague Convention, please consult with skilled Palatine family law attorney Nicholas W. Richardson to discuss your case and options. Schedule your free consultation today.



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