Swiss Sunday: The Hague Convention

In 1991 moviegoers watched Sally Field portray Betty Mahmoody in Not Without My Daughter. In real life, Mahmoody was trapped by her Iranian husband in Iran, and she could not leave with her American-born daughter. The Swiss embassy helped Mahmoody smuggle her daughter out.

How horrible, people said. How could a man force his wife and child to stay in Iran when they held US passports? How wonderful of Switzerland to help this woman and her daughter!

If that is wonderful, you have to ask yourself why, in 2019, when I asked the Swiss government to let me take my American-born children back to the United States, I was informed that if I attempted to do so, I would be arrested and charged with kidnapping.

What happened?

There’s a treaty you probably don’t know about unless you’ve been involved in an international custody dispute. It’s called the Hague Convention on the Civil Aspects of International Child Abduction.

This is a treaty that, in theory, is a good idea. It prevents one parent from taking the children out of one country and moving them to another without the other parent’s permission. This is great! Both parents should be involved in that decision, and now you know it exists, and you can smile and say, “good job, international community! Way to keep crazy parents from kidnapping their children!”

But Iran is not a member of this treaty, so once Mahmoody got her daughter out, there was no international mechanism to force her back. Switzerland and the US are both members, so if I did run back to the states with my minor children, I would have to send them back, and I could end up in jail for kidnapping.

As I said, this is generally a good thing. My soon-to-be ex-husband and I are divorcing, but he’s still the Offsprings’ father. And so, for right now, I’m using my improv skills to yes and the heck out of life. I can’t take my kids back to the US to live, so I’m having fun while I’m here. Offspring #2 is 14, so I can decide whether to stay here or go back to the states in four years, and the kids can make their own decisions.

So why am I writing about this? For two reasons:

I had no idea a country could force non-citizens to stay

The thought of being stuck in Switzerland never crossed my mind when I agreed to quit my corporate job, pack up and move here. I always figured I could go back anytime, and the children, as US citizens, would, of course, be able to come back with me. I didn’t realize that by consenting to bring my children here, I was consenting to keep them here until either their father and I both agreed to let them go back to the states, or they turned 18,

When I bring this up whenever people ask me for tips on ex-pat life, I’m told I’m negative! Yes, I am. I had no idea, but I’ll do my best to make sure other people contemplating international moves understand

The Hague Convention allows continued abuse.

Here’s the biggest problem with the Hague Convention: while the children can be forced to stay based on one parent’s decision, it doesn’t require the country they live in to grant a work permit to the other parent. In my case, I have permanent residency status (the Swiss equivalent of a Green Card), so I’m totally good. I can work, own a business, you name it. I’m good.

But not all countries give trailing spouses work permits. And the treaty doesn’t require that they do. So if you follow your spouse (mostly women) and then want to take your kids home, your spouse (or partner–you don’t have to be married for this to kick in), the other parent can say no. The kids have to stay, but he (and usually he) is under no special obligation to support you, and the country doesn’t have to permit you to work. This can result in mothers being unemployed, living on friends’ couches, and being denied custody of their children because they don’t have a proper home for them. But they can’t have a proper home because it’s not legal to work.

Even abusive parents can force the children to stay–even if they don’t have shared custody and sometimes even if they leave the country. The Hague Convention is based on Habitual Residence, so if the kids have been there for six months or more and dad says he wants them to stay, they stay–even if Dad wants to run off to another place or doesn’t want any contact with the children.

It can cost thousands of dollars in court fees to get permission, even to take the children to their home country to visit relatives, and that’s not guaranteed.

The Hague is annoying because I can’t do what I want to, but I understand it. The children have two parents. But my STBX doesn’t object to trips to the US to visit family; I have a job and many friends. I’m fine. I’m happy. I may stay here long after the youngest turns 18. Who knows?

But not every stuck woman is.

At a minimum, the convention needs to be updated with the following things

  • Every stuck parent should have the right to work or the right to be fully supported by the other parent
  • Parents who choose not to see their children should not have a say in where the children live
  • An abuse conviction should immediately allow the other parent to take the children and leave the country
  • Every child should have the right to visit their relatives in their home countries.

These small changes would make a massive difference in the lives of stuck parents and their children.


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11 thoughts on “Swiss Sunday: The Hague Convention

  1. So sorry to hear you are getting divorce, but congrats to you for educating the rest of us to the complicated situation.

    Good luck!

  2. Bravo! This is very helpful for others to understand, and I’m sorry you have had to learn it the hard way. As you have expressed, your situation is better than many despite the challenges. Thanks for sharing with the rest of us.

  3. Thank you for your honesty is sharing your personal situation and in educating us about the potential deleterious effects of the Hague Convention.

  4. Thanks for sharing this, I feel that most people are unaware of the fact that the parent who is ‘stuck’ is not necessarily eligible for spousal support or government benefits. That leaves people in a nightmare situation where they have no income and no way of getting their own income if they’re not allowed to work in that country.
    Best of luck with the divorce.

  5. Reading this switched on my “Terrible Divorce/Custody Battle” PTSD this morning. I lost my home, my job, my children, and more. I am thankful my Divorce/Custody Battle is 20+ years in my past, that my children are productive somewhat well-adjusted adults, and as an illustration of Karma, the judge who presided over my custody battle is in Federal Prison for taking bribes.
    We see the impact of divorce on our employees, missed time and emotional distress that impacts their work performance.
    But, wow, the Swiss have taken punishing non-citizen to an extreme. You hear people say that everything happens for a reason, perhaps the reason in your situation is that the “Stuck” parents need a strong advocate to bring change to an out-of-date law. Maybe you are that advocate.

    1. Divorce makes everyone involved crazy: the couple, their lawyers, and the judge, and everybody else. A bitterly contentious divorce, far more so. My father was involved in one case where the judge offered the woman everything in the degree if she slept with him. In writing. Which she turned over her soon-to-be-exes lawyer. He stopped being a judge.

      (And don’t blame the Swiss. They’re far from the only country to ratify this treaty.)

  6. To provide some historical context on this treaty, I can only say that before such laws exited, things were worse.

    My father was a national leader in the civil rights movement that brought these laws about in the US under the general name of “Uniform Custody Act” (though the federal law has a different name), which requires all states to honor the original custody decree (from the court that had all the facts), and require both parents *and the court* to agree before jurisdiction could be moved (required for the child to move).

    Prior to this becoming federal law, it was trivial for a non-custodial parent to abscond with the child(ren) to another state and get a customer order there, making the original order, in the words of Florida authorities, “worth as much as a deed to Mars.” The only way to enforce the original order (even in the most heinous – and I use the word correctly – cases of abuse) was privately – essentially kidnap the kid off the street and head for the nearest state line.

    Before Uniform Custody became federal law, there were 100,000 and 150,000 such abductions per year in the US, with about 10% resulting in the child being either injured seriously enough to require medical care, or killed, in the process.

    The situation in international cases was, obviously, even more difficult and dangerous.

    While the treaty, as you note, is not perfect, and could use some updating, it does exist for some pretty compelling reasons.

  7. I think the changes you recommend should have OBVIOUSLY been included in the treaty from the beginning. It is depressing that legislation often has such glaring problems, and makes me wonder about the people working on such laws and treaties. Are they working under such tight deadlines that they can only get the bare minimum done? Do they lack the ability to pose some obvious What If questions that would head-off such carelessness? Is the process so fraught with political machinations that such issues are seen as irrelevant? Are they all…. men?

    1. And I’m sorry, Suzanne, that you’re in a position to learn all of this personally. You have done a great job explaining the problem. I hope this post gets lots of attention and that some good can come out of this. Best of luck and internet hugs.

  8. WOW, I never thought of that…. Just another great reason I’m happy I never had kids with my ex!!

  9. Oh Suzanne, I’m sorry about the divorce. I’m glad you feel comfortable staying where you are for now. *HUGS*

    I read Betty Mahmoody’s book and I agree; in cases where abuse is involved, there really does need to be an option to remove the children from that situation.

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