Practical Application of Article 21 of The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 by William M. Hilton, CFLS Attorney At Law Box 269 -- Santa Clara, CA 95052-0269 TEL: (408) 246-8511 -- FAX: (408) 246-0114 INTRODUCTION The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 [The Convention] has, as its principal purpose, the prompt return of children to their country of "Habitual Residence" when these children have been wrongfully removed (or retained) from their "Habitual Residence". FN 01 Although The Convetion also states that one of its objects is to " . . . ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States . . ." FN 02 in fact the overall application of The Convention does not provide a mechanism to enforce an existing custody or access order from one of the contracting states, limiting its application to the prompt return of the child to his or her "Habitual Residence". The Convention also states that a decision under The Convention does not go to the merits of the underlying custody dispute. FN 03 It is safe to say, then, that The Convention as a whole limits its application to the issue as to whether or not a child will be returned to his or her Habitual Residence and avoids any litigation on the underlying merits of the matter. While this is true as far as custody is concerned, it may not true as to access. FN 04 This is seen by the specific language of Art. 21: An application to make arrangements for organizing or, securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfillment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject. The purpose of this article is to discuss the practical application of Art. 21: Form of the request for access, venue, undertakings and other related matters. GENERAL AUTHORITY In discussing access under The Convention, the Perez-Vera Report FN 05 states the following: CHAPTER IV -- RIGHTS OF ACCESS Article 21 125 Above all, it must be recognized that the Convention does not seek to regulate access rights in an exhaustive manner; this would undoubtedly go beyond the scope of the Convention's objectives. Indeed, even if the attention which has been paid to access rights results from the belief that they are the normal corollary of custody rights, it sufficed at the Convention level merely to secure co-operation among Central Authorities as regards either their organization or the protection of their actual exercise. In other respects, the best indication of the high level of agreement reached regarding access rights is the particularly short amount of time devoted to them by the First Commission. 126 As we have just pointed out, the article as a whole rests upon co-operation among Central Authorities. A proposal which sought to insert a provision in a new paragraph that both the authorities and the law of the State of the child's habitual residence should have exclusive jurisdiction in questions of access rights, was rejected by a large majority. The organizing and securing of the actual exercise of access rights was thus always seen by the Convention as an essential function of the Central Authorities. Understood thus, the first paragraph contains two important points; in the first place, the freedom of individuals to apply to the Central Authority of their choice, and secondly the fact that the purpose of the application to the Central Authority can be either the organization of access rights, i.e., their establishment, or the protection of the exercise of previously determined access rights. Now, recourse to legal proceedings will arise very frequently, especially when the application seeks to organize rights which are merely claimed or when their exercise runs up against opposition from the holder of the rights of custody. With this in view, the article's third paragraph envisages the possibility of Central Authorities initiating or assisting in such proceedings, either directly, or through intermediaries. 127 The nature of the problems tackled in the second paragraph is very different. Here it is a question of securing the peaceful enjoyment of access rights without endangering custody rights. This provision therefore contains important elements for the attainment of this end, once again, co-operation among Central Authorities is placed, of necessity, in the very centre of the picture, and it is a co-operation designed as much to promote the exercise of access rights as to guarantee the fulfillment of any conditions to which their exercise may be subject. Of all the specific ways of securing the exercise of access rights, article 21 contains only one, where it points out that the Central Authority must try 'to remove, as far as possible, all obstacles to the exercise of such rights', obstacles which may be legal ones or may originate in possible criminal liability. The rest is left up to the co-operation among Central Authorities, which is regarded as the best means of ensuring respect for the conditions imposed upon the exercise of access rights. In fact, such respect is the only means of guaranteeing to the custodian that their exercise will not harm his own rights. 128 The Convention gives no examples of how Central Authorities are to organize this co-operation so as to secure the 'innocent' exercise of access rights, since such examples could have been interpreted restrictively. Mention could however be made purely indicatively as in the Report of the preliminary draft Convention, of the fact that it would be advisable that the child's name not appear on the passport of the holder of the right of access, whilst in `transfrontier' access cases it would be sensible for the holder of the access rights to give an undertaking to the Central Authorities of the child's habitual residence to return the child on a particular date and to indicate also the places where he intends to stay with the child. A copy of such an undertaking would then be sent to the Central Authority of the habitual residence of the holder of the access rights, as well as to the Central Authority of the State in which he has stated his intention of staying with the child. This would enable the authorities to know the whereabouts of the child at any time and to set in motion proceedings for bringing about its return, as soon as the stated time-limit has expired. Of course, none of the measures could by itself ensure that access rights are exercised properly, but in any event we believe that this Report can go no further: the specific measures which the Central Authorities concerned are able to take will depend on the circumstances of each case and on the capacity to act enjoyed by each Central Authority. Here it is seen that under Art. 21 one may establish access rights where none have existed before or one may implement existing rights of access. It is also seen that appropriate action in the court of the child's "Habitual Residence" is contemplated. In order to ensure that the child is returned to his or her "Habitual Residence", the party requesting access may be (and probably should be) required to give undertakings as to the dates that the child will be with that person, where the child will be and other necessary information. For a more detailed discussion of the role of "Undertakings" see THE HAGUE CONVENTION and THE UNITED STATES OF AMERICA -- REPORT ON HAGUE CONVENTION OPERATIONS by the Child Abduction Unit November, 1995 -- The Lord Chancellor's Child Abduction Unit Central Authority for England & Wales. FN 06 Under Art. 29 the party requesting access may apply directly to the judicial or administrative authorities of the child's "Habitual Residence". Since it is not probable that, despite the language of Art. 21, the Central Authorities will initiate actions, the Central Authority will not be pro-active in obtaining access rights and it will be presumed that all such requests will be made directly to the appropriate judicial or administrative authorities of the child's "Habitual Residence". For further discussion on this point see In re G (a Minor)(Convention on the Civil Aspects of International Child Abduction: Access) (United Kingdom 1993) 36 The Times Law Report and In re T. (Minors) (International Child Abduction: Access) (United Kingdom 1993) 1 W.L.R. 1461 [1993]. FN 07 PRACTICAL APPLICATION Venue In the United States an action for access under Art. 21 may be brought in either a Federal District Court or a State Court with jurisdiction over custody matters. 42 U.S.C. 11603(b). While it may be argued that, as a general rule, a Petition for Return under The Convention should ordinarily be brought in a Federal Court on the theory that the Federal Court is less likely to treat the matter as a custody proceeding, a PETITION FOR ACCESS UNDER ARTICLE TWENTY ONE OF THE CONVENTION should ordinarily be brought in a State Court since the matter is a "custody proceeding" and the State Court is more familiar with the necessary steps that are usually taken. Petition A sample PETITION FOR ACCESS UNDER ARTICLE TWENTY ONE OF THE CONVENTION is attached as Exhibit A. Procedure In requesting access under Art. 21 of The Convention, the access requested should be that which is consistent with the developmental age of the child, the needs of the child and other releveant sociological factors. FN 08 As is the case in any matter relating to the child, the needs and desires of the parents, while significant, are not controling and they must be subordinated to the needs of the child. It is to be stressed that the internatioinal aspects of this request should not be used in either a positive or negative way -- it should be neutral. That is, the fact that the child may travel to a jurisdiction outside of the child's Habitual Residence should not be a major factor but only one of several issues to be considered by the Court of First Instance (COFI). Once the matter is before the COFI it should proceed in the same manner as any request for access before that court. This would include, for example, the use of mediation in those places that normally require this when access is contested, meetings with appropriate Mental Health Professionals when necessary and any of the usual steps taken when access is an issue. In those cases where there is an existing access order the COFI in the child's Habitual Residence may wish to enforce that order or there may be a request to vary that order by any of the parties to the proceeding, including the child. Where the existing access order was made in the child's present Habitual Residence, then it should be enforceable under the local law of the child's Habitual Residence and no special action under The Convention would be required. Indeed it could be argued that once such an order has been issued the issuing court has exclusive jurisdiction over this matter so long as the child remains in the same Habitual Residence. In other cases the existing access order was made in the original forum of the parties (F1) and then the custodial parent, with permission of the orignal COFI, moved from F1 to the child's new Habitual Residence (F2). In many cases throughout the world the COFI in the child's Habitual Residence (F2) will usually have the authority to vary F1's order under its local law. In some jurisdictions, however, notably the United States, local law FN 09 may specifically prevent the COFI in the child's Habitual Residence from varying the original access order from F1 so long as one of the parties continues to reside in F1. If an argument is made in the COFI in F2 that the the COFI of F1 retains exclusive jurisdiction over the issue of access, one should consider the following: Undertakings In some cases the responding party may raise objections to the access, particularly when the request is for access in the country of the Petitioner over an extended period of time, e.g., summer holiday periods. The concerns of the Respondent usually center around the issue of the return of the child to his or her "Habitual Residence". Since this concern is nearly always expressed by the Respondent when access is requested to be in the country of the Petitioner (the former "Habitual Residence" of the child), it would expidite matters if the Petitioner were to offer suitable undertakings so as to ensure that the child will be promptly returned to his or her present "Habitual Residence". The undertaking should set out at least the following: Place of Access Period (Duration) of Access A statement as to where the "Habitual Residence" of the child is and that the presence of the child in the Petitioner's country is only temporary. A statement by the Petitioner that a failure to return the child shall be a "Wrongful Retention" within the meaning of Art. 3 of The Convention. A statement by all parties that none of the Art. 13 defenses are to apply. Monetary sanctions if there is a failure to substantially comply with the access order/agreement. (If Appropriate) Cash Bond to cover costs of litigation in the Petitioner's place of residence. This Bond should cover attorney fees, costs of travel, interpreters, lodiging, meals, local transportation, telephone and FAX charges. etc. FN10 A sample of a document that has been used is attached as Exhibit C. This may, of course, be revised as local conditions dictate. CONCLUSIONS Under the terms of The Convention a Petition for Access can be made directly to the Court of First Instance in the "Habitual Residence" of the child. This Petition should set out the jurisdiction of the Court of First Instance in the child's "Habitual Residence", the specific access requested and any undertakings to be made by the Petitioner. The Court of First Instance in the child's "Habitual Residence" will then have the authority to grant the access pursuant to local law and would then require relevant undertakings to ensure compliance with its order. -------------------- 1. Art. 1(a) 2. Art. 1(b) 3. Art. 19 4. Visitation. The word access will be used throughout this article. 5. Explanatory Report by E. Perez-Vera, Hague Conference on Private International Law, Actes et documents de la Quatorzieme session, vol. III, 1980, p. 426 (Perez-Vera Report. This Report is recognized as an authority on the explanation of The Convention. Levesque v Levesque (D. Kan 1993) 816 F.Supp. 662. 6. Available on Hilton House BBS as UNDRTKNG.RPT. 7. Available on Hilton House BBS as INREG.UK and INRET.UK. 8. See, for example, RECOMMENDATIONS FOR VISITATION AS A FUNCTION OF THE AGE OF THE CHILD William F. Hodges, Ph.D., of Psychology, University of Colorado, Boulder, CO 80309-0345; adapted from Hodges, W. F. (1991). Interventions for Children of Divorce: Custody, Access, and Psychotherapy, (2nd Edition), New York: John Wiley. Available on Hilton House BBS as HODGES.VST. 9. The Uniform Child Custody Jurisdiction Act (UCCJA), 9 Uniform Laws Annotated (ULA), Secs. 1 through 28, has been enacted in one form or anothr by all of the States of The United States. As a general rule a custody and/or access determination must be made in compliance with the UCCJA before it can be deemed enforceable. 10. See Exhibit B for a typical example of a request for Cash Bond. ================================================================= Exhibit A PETITION FOR ACCESS UNDER ARTICLE TWENTY ONE OF THE CONVENTION The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 International Child Abduction Remedies Act 42 U.S.C. 11601 et seq 1.0 APPLICATION FOR ACCESS UNDER ARTICLE TWENTY ONE OF THE CONVENTION. 1.1 The Court has jurisdiction to hear and decide this matter pursuant to 42 U.S.C. 11603(b). 1.2 Petitioner is the mother/father of the child who now resides with father/mother in (name of country of Habitual Residence). 1.3 Pursuant to the order of the court of (name of court) of the (country) County of (county), State (state), Petitioner has been granted the following access (visitation) rights with the child: 1.3.1 [Set forth the specific rights of visitation granted.]. 1.3 (Alternative): There is no order from any court concerning the rights of custody or access (visitation) for the child. Petitioner nonetheless requests the following rights of access (visitation): 1.3.1 (Describe the relief requested, eg, the child is to be with the Petitioner for the Christmas, Spring, Summer vacation period; travel arrangements; pickup and return of small children, etc) 1.4 Petitioner requests that the right of access granted by order of the court of (country) be secured. 1.4 [Alternative]Petitioner requests this court to organize rights of access [visitation] as follows [describe access/visitation] 1.5 Petitioner requests this right of access (visitation) pursuant to Article Twenty One of The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 (Convention) and 42 U.S.C. 11603(b). 2.0 NOTICE OF HEARING 2.1 Pursuant to 42 USC 11603(c), Respondent shall be given notice pursuant to [Insert the provisions of 9 Uniform Laws Annotated 4 or 5 for the specific state, eg, Civil Code Sections 5153 and 5154 for California]. 3.0 RELIEF REQUESTED 3.1 Petitioner requests the following relief: 3.1.1 [As in 1.2] 4.0 VERIFICATION (--Optional--) 4.1 I am the attorney for the Petitioner; I make this verification on behalf of the Petitioner because Petitioner is absent from (county, state and country); the above document is true of my own knowledge, except as to the matters that are stated in it on my information and belief and as to those matters I believe it to be true. I declare under penalty of perjury under the laws of the State of (State) that the foregoing is true and correct. Executed on (date signed) at (place signed). _______________________ Attorney for Petitioner ================================================================= Exhibit B ESTIMATED EXPENSES FOR LITIGATION OF CUSTODY IN CHILE Air Fare FN 01 Three Round Trips from Seattle: $3,957.00 Car Rental FN 02 Three two week periods $2,881.56 Fuel FN 03 $240.00 Hotel4 FN 0 Three two week periods $2,520.00 Meals FN 05 Three two week period $1,890.00 Translator Service FN 06 100 Pages, 300 words per page $9,000.00 Telephone Toll FN 07 FAX and Voice $1,701.00 Reproduction FN 08 $500.00 Certification of Court Documents FN 09 $150.00 Attorney Fees Seattle, Washington FN10 $1,500.00 Santiago de Chile FN11 $11,250.00 Miscellaneous and unknown: FN12 $7,119.31 Total: $42,708.87 -------------------- 1. From Official Airline Guides, based on advanced reservations, Seattle to Los Angles, Los Angeles to Santiago de Chile. 2. From Hertz International: Mid sized car, manual, e.g., Toyota Tercel, $407.00 per week + 18% tax, no fuel. 3. Estimated at 20 gallons per week, $2.00 per gallon. 4. From Travel Agents International: $60.00 to $150.00 per night. 5. Estiamte of 3 meals per day at $15.00 per meal. 6. IDEM Translations $30/100 words (average) 7. Estimated at 21 hours, at $81.00 per hour. 8. Estimated 2000 pages at $0.25 per page. 9. Estimated 10. Liason, estimate 10 hours per week at $150.00 hour 11. Estimated, from calls to Chile: $150 per hour, 75 hours. 12. This is 20% of the total, to take into account items that may not be listed but will surely occur. Note that amount quoted are at the low end of the scale. ================================================================= Exhibit C [Enter heading information as to the court, etc] ______________________________________________________________ In re the Matter of: [Parent One] STIPULATION FOR ACCESS (VISITATION); ORDER and JUDGMENT AND DECREE [Parent Two] Case No. ______________________________________________________________ 1.0 FACTS 1.1 [Parent One] and {Parent Two] are the parents of 1.1.1 [Enter name, date of birth, familiar name of child.] 1.2 [Parent One] has [describe, eg., sole/joint] custody of [Name of Child] pursuant to the orders of [Enter description of court order granting custody/access to the parents, case number, court location, etc]. 1.3 [Parent One] and [Parent Two] have reached an agreement that their child(ren), [Name of each child], will be with [Parent Two] during [Period of time], subject to each and every one of the conditions set forth below. 2.0 PERIOD OF ACCESS (VISITATION) 2.1 [Name of Child] shall leave from [Habitual Residence of Child] on [Date Leaving] and shall be with [Parent Two] from the time of his/her arrival in [Place were access will be] until [Date Returned] when [Name of Child] shall leave [Place where access will be] and return to [Habitual Residence of Child]. 2.2 Under no circumstances shall [Name of Child] be with [Parent Two] or his/her agents or representatives after [Date Returned]. 2.3 [Name of Child] shall be returned to [Parent One] no later than [Date Returned]. 3.0 ENFORCEMENT 3.1 If [Parent Two] fails to comply with the terms of this agreement, any court shall have the jurisdiction to award any and all expenses to [Parent One], including, but not limited to, attorney fees, court costs, transportation of [Parent One] or [Name of Child], investigator's fees and similar costs that as a result of this failure become necessary for carrying out this agreement. 3.1.1 [Parent Two] shall, without exception, be strtictly liable for any fees awarded to [Parent One] pursuant to 42 USC 11607(b)(3) and/or 9 Uniform Laws Annotated (ULA) 15(b) [Enter the equivalent code for the appropriate state, e.g., California Family Code Section 3416(b).] 3.2 [Parent Two] agrees to execute or deliver any instrument, furnish any information, or perform any other act reasonably necessary to carry out the provisions of this agreement without undue delay or expense. 3.3 If [Parent Two] fails to send [Name of Child] when scheduled, a third party appointed by the court shall pick up [Name of Child] at [Parent Two]'s expense. 3.4 [Parent Two] is aware that a violation of this agreement shall constitute a violation of [Enter information about criminal statute in Habitual Residence, e.g., California Penal Code Section 278.5]. [Parent Two] specifically waives any defenses he/she may have under this section. 3.5 [Parent One] shall have the unequivocal and absolute right to apply to any court for an ex parte order to enforce the specific terms of this agreement. 3.5.1 Unless specifically ordered by the court at the time of application, no notice to [Parent Two] and/or a hearing on the merits of the requested order of enforcement shall be required. 3.6 The financial ability of either parent shall not be considered in the application of this section. Any expenditure incurred by [Parent One] in the enforcement of this agreement will be presumed to be reasonable. 3.7 [Parent Two] shall keep [Parent One] notified of his/her current address and telephone number. 3.7.1 As of the date of execution of this agreement by [Parent Two], his/her address and telephone number is: [Parent Two] [Stree and Number] [City, State/Provence, Country Postal/Zip Code] TEL: [Telephone number] 3.8 For purposes of any notice required under this agreement by a court of competent jurisdiction, [Parent Two] agrees that notice may be given by delivering or mailing such notice to his/her last known address as well as by any of the requirements of 9 ULA 4 and/or 9 ULA 5 [Enter the equivalent state codes here, e.g. California Family Code Sections 3404 and 3405.] 3.8.1 [Parent Two] acknowledges that the address provided in Section 3.7.1 shall be, for all purposes, the address to which any notice under this agreement shall be delivered or mailed. 3.8.2 Notice under this agreement shall be given at least 10 days before the time appointed for any hearing. The time for such notice may be shortened by a court of competent jurisdiction. 3.8.3 Notice given under this section shall be construed as being "reasonable notice" within the meaning of 9 ULA 4. 3.8.4 Personal delivery to [Parent Two] or mailing by certified mail (with or without a return receipt) is not required but may be used. 3.8.5 Notwithstanding any other provision of law, the parties specifically waive any rights they may have as to service of any document pursuant to this stipulation under the terms of the "Convention On The Sevice Abroad of Judicial And Extrajudicial Documents in Civil or Commerical Matters", concluded 15 Nov 1965. This Convention may be used but is not required. 3.9 When [Name of Child] is with [Parent Two] for a period of time that is not pursuant to the terms of this agreement, such period of time shall be a temporary absence from [Parent One]. 3.9.1 If the terms of the temporary absence are in writing and dated and signed by both parents, such writing becomes a part of this agreement and shall be enforced pursuant to the terms of this section. 3.9.2 In the absence of a written agreement pursuant to 3.9.1, [Parent Two] shall, upon demand of [Parent One], at once return [Name of Child] to [Parent One]. Such demand may be written or oral. 3.9.3 Until [Name of Child] is returned to [Parent One], no action by [Parent Two] for modification of this agreement or any other order of custody/access shall be permitted. 3.10 Any retention of [Name of Child] beyond [Date Returned] shall be a "Wrongful Retention" within the meaning of The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980 [The Convention]. 3.11 [Parent Two] has read and understands Article 13 of The Convention: Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that-- (a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or (b) there is a grave risk that his or her return would expose the child to physical or harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence. 3.11.1 [Parent Two] specifically acknowledges that the following language of Article 13 shall not apply in any action that may or could result from the presence of [Name of Child] in [Name of Country]: The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. 4.0 JURISDICTION 4.1 [Parent One] and [Parent Two] agree to the following facts as of the execution of this agreement: 4.1.1 They are the parents of [Enter name, date of birth, familiar name of child]. 4.1.2 This agreement is a decree in conformance with and complies with 9 Uniform Laws Annotated (ULA) Sections 1-28 the Uniform Child Custody Jurisdiction Act (UCCJA). 4.1.3 This agreement is a right of custody within the meaning of Articles 3 and 5 of The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980. (The Convention). 4.1.4 [Parent Two] specifically acknowledges that this agreement is binding on him and that the agreement is conclusive as to all issue of law and fact decided (whether litigated or not) and as to the determination made unless and until that determination is modified pursuant to law, including provisions of the UCCJA. 4.1.5 [Parent One] and [Name of Child] are residents and domiciliaries of [Habitual Residence of Child]. 4.1.6 The home state of [Name of Child] is [Habitual Residence of Child], per 9 ULA 2(5). 4.1.7 [Name of Child] has established significant connections with [Habitual Residence of Child] and there is available in [Habitual Residence of Child] substantial evidence concerning present or future care, protection, training and personal relationships of [Name of Child] purusant to 9 ULA 3(a)(2). 4.1.7.1 Such significant connections and relationships include, but are not limited to: 4.1.7.1.1 Peer relationships of [Name of Child]. 4.1.7.1.2 School and education systems; 4.1.7.1.3 Contact with family and friends of [Parent One]. 4.1.7.1.4 Established medical and dental routines. 4.1.8 [Habitual Residence of Child] is the convenient forum for any litigation concerning [Name of Child] per 9 ULA 7. 4.1.9 No other place has significant contacts with [Name of Child]. 4.1.10 [Name of Child] is living in a stable, healthy and wholesome environment with [Parent One]. [Name of Child] does not have any significant physical or emotional problems. 4.1.10.1 The home environment of [Name of Child] in [Habitual Residence of Child] does not expose the [Name of Child] to physical or psychological harm or otherwise place [Name of Child] in an intolerable situation within the meaning of Article 13(b) of The Convention. 4.1.11 [Habitual Residence of Child] is the habitual residence of [Name of Child] within the meaning of Article 3 of The Convention. 4.2 Any absence from [Habitual Residence of Child] of [Name of Child] shall be a "temporary absence" within the meaning of 9 ULA 2(5). 4.3 Any absence from [Habitual Residence of Child] shall not cause [Habitual Residence of Child] to lose its status as the "Habitual Residence" of [Name of Child] within the meaning of Article 3 of The Convention. 5.0 CONCLUDING PROVISIONS 5.1 This agreement is entire and shall be effective and have independent legal significance upon its execution. It shall not depend upon approval of the court and the mere approval of the court shall not affect it. This agreement shall survive its incorporation and merger where compliance is ordered with each and every term contained in an order, judgment or decree of the court. 5.2 If any provision of this agreement, or the application thereof to any person or circumstances, is held invalid, the remainder of the agreement and the application of such provisions to the other persons or circumstances shall not be affected thereby. 5.3 The approval of one party to this agreement shall make this agreement fully binding on that party. 5.4 This agreement may be filed by either party in any court for purposes of enforcement. 6.0 APPROVAL BY [PARENT ONE] 6.1 I have read and understand each and every term of this agreement. I agree to be bound by this agreement. ------------------------ [Parent One] [Country, State] ) ) ss. [County] ) On this ______________day [Month] of in the year [Year] before me, the undersigned, a Notary Public in and for [Name of State] personally appeared [Parent One], known to me to be the person whose name is subscribed to the within instrument and acknowledged that he/she executed the same. _________________________ [Space below for seal] Notary Public 7.0 APPROVAL BY [PARENT TWO] 7.1 I have read and understand each and every term of this agreement. I agree to be bound by this agreement. ------------------------ [Parent Two] [Country, State] ) ) ss. [County] ) On this ______________day [Month] of in the year [Year] before me, the undersigned, a Notary Public in and for [Country, State] personally appeared [Parent Two], known to me to be the person whose name is subscribed to the within instrument and acknowledged that he/she executed the same. _________________________ [Space below for seal] Notary Public 8.0 ORDER, JUDGMENT AND DECREE 8.1 The Court has read the above stipulation, approves of it in its entirety and ORDERS, ADJUDGES AND DECREES that the parties are to carry out each and every one of its terms. Dated: ____________________________ Judge of the [Type of Court]