A respondent’s failure to appear does not turn a Hague return petition into a routine default matter.
At first glance, the procedural posture may seem favorable to the petitioner. The respondent has been served, no answer has been filed, no Convention defenses have been asserted, and nobody appears to oppose the requested return of the child.
But in a Hague Convention case, unopposed does not mean automatic.
An unopposed proceeding can present its own procedural and strategic complications. Questions concerning service may resurface long after an order has been entered. The petitioner continues to carry the burden of establishing a prima facie case for return. And, perhaps less obviously, the petitioner’s initial choice between state and federal court may have significant consequences for how a default is handled in the first place.
These are issues that counsel should be considering before, rather than after, a respondent fails to appear.
Default Does Not Relieve the Petitioner of the Burden of Proof
The Hague Convention is not an ordinary custody proceeding, and a Hague return order is not an ordinary default judgment. Under ICARA, the petitioner bears the burden of establishing by a preponderance of the evidence that the child was wrongfully removed or retained within the meaning of the Convention. The respondent’s absence does not make that statutory burden disappear.
Consider habitual residence. Under the Supreme Court’s decision in Monasky v. Taglieri, habitual residence is determined from the totality of the circumstances. It is a fact-intensive inquiry, and establishing it is fundamental to the petitioner’s case. It is therefore not necessarily enough for a petition simply to state the conclusion that the child was habitually resident in Germany, Italy, or another Convention country immediately before the alleged wrongful removal or retention.
The court still needs a sufficient basis upon which to reach that conclusion. This matters because judges are understandably sensitive to due process and to the limits of their authority in proceedings involving the requested return of a child from the United States to another country. The absence of opposing counsel does not prevent a court from scrutinizing the petitioner’s proof on its own.
The practical question for petitioner’s counsel is therefore an important one: How much, and what kind, of evidence should be placed before the court when nobody is there to challenge it?
The answer can matter considerably, both when seeking the return order and if that order is later challenged.
Service May Matter More Than Ever
Service can assume particular importance in an unopposed Hague proceeding. The immediate question may appear straightforward: was the respondent properly served?
But experienced counsel should be thinking beyond the immediate default.
A respondent who does not participate today may appear weeks or months later. At that point, one of the first issues raised may be whether service was legally sufficient and whether the respondent had adequate notice of the proceedings before an order directing the international return of the child was entered.
That possibility creates a strategic issue well before any motion to vacate is filed.
What should counsel be doing during the service process, and before seeking default relief, to ensure that the resulting record can withstand a later challenge? The answer may involve considerably more than simply obtaining an affidavit stating that papers were delivered.
The Choice Between State and Federal Court May Have Unexpected Consequences
ICARA gives state and federal courts concurrent jurisdiction over Hague return petitions.
Forum selection is therefore one of the earliest strategic decisions petitioner’s counsel must make. Lawyers commonly evaluate that decision by considering factors such as judicial familiarity with the Convention, speed, local practice, and the particular circumstances of the case.
But there is another consideration that may not become apparent until later:
What happens procedurally if the respondent never appears?
A Hague petition filed in federal court proceeds within one procedural framework. A petition filed in state court proceeds within another. The mechanisms governing entry of default, default judgment, evidentiary submissions, hearings, and potential relief from a resulting judgment may not operate identically.
That distinction can have meaningful consequences in a Hague proceeding.
By the time counsel discovers those consequences, however, the forum has already been selected and the petition filed.
What Exactly Is the Court Being Asked to Decide?
There is an important distinction between a respondent failing to contest allegations and the petitioner establishing the legal prerequisites for a Hague return. Habitual residence provides a useful illustration.
A bare allegation that a particular country was the child’s habitual residence does not itself perform the analysis required by Monasky. The court must consider the circumstances relevant to determining where the child was habitually resident immediately before the alleged wrongful removal or retention. Similar evidentiary questions arise concerning the other components of the petitioner’s prima facie case.
The absence of a respondent may therefore create an unusual situation: there is nobody across the courtroom challenging the petitioner’s evidence, but the evidence must nevertheless be sufficient to permit the court to make the findings required by the Convention and ICARA.
And that leads to a second, equally important question:
What happens if the respondent subsequently appears and challenges an order entered on a record that was never meaningfully tested?
A Default Return Order Is Not Necessarily the End of the Case
The objective in an unopposed Hague proceeding should not simply be to obtain an order as quickly as possible.
There is a meaningful difference between obtaining a default return order and obtaining a defensible default return order.
A respondent may appear after judgment. Service may be challenged. The sufficiency of the petitioner’s evidence may be questioned. The legal findings underlying the return order may receive scrutiny that they did not receive when the proceeding was unopposed.
Hague proceedings already occupy an unusual intersection of international treaty law, federal statute, state and federal procedure, and intensely fact-sensitive determinations. A respondent’s failure to participate does not remove those complexities.
In some respects, it may make counsel’s job more delicate. Because in an international child return case, silence from the other side should never be mistaken for simplicity.