Hague Convention is Jurisdictional Treaty
The Hague Convention is unique in that it is almost purely about jurisdiction. The drafters designed it “to restore the status quo prior to any wrongful removal or retention and to deter parents from engaging in international forum shopping.” Baxter v. Baxter, 423 F.3d 363, (3d Cir. 2005). The treaty does not set parameters for making a substantive, custody decision; instead, it outlines the procedures to decide where the case should be heard. In these cases, then, it determines under which nation’s laws, procedures, and judges will decide the ultimate outcome of the case.
Article 19 explicitly says, “A decision made under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.” Instead, the Convention focuses on whether or not a child “should be returned to a country for custody proceedings and not what the outcome of those proceedings should be.” Holder v. Holder, 392 F.3d 1009, 1013 (9th Cir. 2004).
Why did the drafters of the Convention focus on jurisdiction? In the text of the Convention itself, it is made expressly clear that one of the primary goals of the Convention is “to secure the prompt return of children wrongfully removed to or retained in any Contracting State.” Holder v. Holder, 392 F.3d 1009, 1013 (9th Cir. 2004) (Citing Convention, art. 1, 19 I.L.M. at 1501). One of the major reasons to return the child is to ensure that parents do not move the child to a different country in order to gain some sort of tactical advantage by picking and choosing which legal system to litigate the case. This underlying concern for forum shopping is why the Convention focuses on jurisdiction.
Bottom Line: The Hague Convention treaty is not meant to resolve substantive custody issues. It is used to determine where the custody dispute will take place.