Texas Federal & State Hague Litigation Attorney

A Hague Convention return case can proceed in either state or federal court in the United States.

That makes forum selection a genuine litigation decision. The underlying treaty is the same, but the procedural environment, related custody proceedings, judicial familiarity, scheduling, and interaction with other claims can differ depending on where the case is filed.

Brad M. LaMorgese represents clients in Hague Convention matters involving Texas state and federal courts. His broader international family law practice involving cross-border custody disputes includes international child abduction, foreign orders, jurisdictional disputes, enforcement issues, and appellate proceedings.

Brad has substantial Hague Convention and appellate experience, including recognition from the National Center for Missing & Exploited Children for his work in a Hague Convention appeal.

State and Federal Courts Have Concurrent Jurisdiction

The International Child Abduction Remedies Act, commonly called ICARA, implements the Hague Convention in the United States.

Under 22 U.S.C. §9003, state courts and United States district courts have concurrent original jurisdiction over actions arising under the Convention. A person seeking return of a child may file a civil action in a court that has jurisdiction and is authorized to act in the place where the child is located when the petition is filed.

The U.S. Department of State likewise confirms that Hague return cases may be brought in either state or federal court.

That does not mean one forum is always preferable.

The decision should be based on the particular case.

Choosing Between State and Federal Court

A parent bringing a Hague petition may have a legitimate choice of forum.

Relevant considerations can include:

• Whether a Texas custody case is already pending
• Whether the state court has substantial familiarity with the family
• The location of the child
• Timing and scheduling
• Whether related state-law issues are active
• The complexity of the treaty questions
• Whether removal from state to federal court may become an issue
• The likely interaction between the Hague proceeding and longer-term custody litigation
• The potential appellate path

The presence of concurrent jurisdiction makes forum strategy in complex family law litigation particularly relevant in Hague cases.

The objective is not to select a court based on assumptions about which forum is more favorable. The question is which legally available forum is best positioned to address the return petition efficiently and correctly.

A Hague Case Is a Federal Treaty Proceeding Even in State Court

A Hague Convention case filed in Texas state court remains a proceeding governed by the Convention and ICARA.

The state court does not simply apply ordinary Texas custody standards.

ICARA directs the court hearing the case to decide it in accordance with the Convention.

That means the legal questions remain focused on the treaty framework, including:

• Habitual residence
• Wrongful removal or retention
• Rights of custody
• Exercise of those rights
• Treaty defenses or exceptions
• Whether return is required

The court generally is not deciding the ultimate merits of custody.

The same substantive framework applies in federal district court.

Filing the Petition

A Hague return action begins with a civil petition seeking relief under the Convention.

Under ICARA, the action must be filed in a court with jurisdiction in the place where the child is located.

That geographic requirement can be important when the child’s location has recently changed or is uncertain.

The petition should clearly identify the factual and legal basis for return, including the child’s habitual residence, the petitioner’s custody rights, the removal or retention, and the treaty relationship between the relevant countries.

Depending on the case, supporting materials may include:

• Foreign custody orders
• Travel records
• Passports
• Communications between the parents
• School and medical records
• Foreign legal materials
• Evidence of the child’s residence abroad
• Documents showing custody rights
• Relevant immigration records

Because Hague cases are intended to proceed expeditiously, front-loading the factual record can be important.

The Burden of Proof Is Set by ICARA

ICARA establishes the burdens of proof in U.S. Hague litigation.

A petitioner seeking return must prove wrongful removal or retention by a preponderance of the evidence.

A respondent who opposes return bears the burden of proving certain defenses. The grave-risk defense under Article 13(b) and the Article 20 exception must be established by clear and convincing evidence, while other specified Convention exceptions are established by a preponderance of the evidence.

Those burdens apply whether the case is heard in state or federal court.

The forum changes. The governing treaty framework does not.

Provisional Relief May Be Necessary

The period between filing and final disposition can create practical risks.

A parent may fear that the child will be moved again, concealed, or taken outside the court’s reach. The child’s passport or travel documents may become relevant. A party may seek restrictions designed to preserve the court’s ability to decide the case.

ICARA permits courts to take measures authorized by applicable state or federal law to protect the child’s well-being or prevent further removal or concealment pending resolution of the petition. Texas judicial materials likewise recognize the availability of provisional measures in Hague cases.

The particular relief available depends on the court and circumstances.

Requests for emergency relief should be narrowly tied to preserving the Hague proceeding rather than turning the case into a broader custody dispute.

Hague Litigation Is Intended to Move Quickly

The Convention is designed around prompt resolution.

The U.S. Department of State describes the Convention as a framework for securing the prompt return of children to their country of habitual residence so custody issues can be decided there.

That objective affects litigation strategy.

Counsel may have limited time to develop evidence, obtain foreign legal materials, coordinate with witnesses abroad, and prepare testimony.

This can make early issue identification especially important.

The case should be organized around the specific treaty questions that matter rather than allowing unrelated custody issues to consume the proceeding.

Habitual Residence Is Often Heavily Litigated

One of the most significant issues in Hague litigation is determining the child’s habitual residence immediately before the disputed removal or retention.

The U.S. Supreme Court’s decision in Monasky v. Taglieri established a totality-of-the-circumstances approach rather than a categorical requirement of parental agreement.

That makes the factual record particularly important.

State and federal judges may consider evidence concerning the child’s actual life, including residence, school, family connections, parental conduct, and the circumstances surrounding an international move.

The issue can become especially complicated when the family moved internationally shortly before the dispute or maintained homes in more than one country.

Foreign Law May Be Part of the Case

A Hague petitioner must generally establish rights of custody under the law of the child’s habitual residence.

That may require the U.S. court to consider foreign statutes, custody orders, or other legal materials.

ICARA expressly contemplates the role of foreign authorities in Convention litigation.

Depending on the case, counsel may need to obtain:

• Foreign legal authorities
• Certified or translated documents
• Foreign custody orders
• Declarations or testimony concerning foreign law
• Materials from the relevant Central Authority
• Evidence concerning legal rights that existed before removal

The ability to explain foreign law clearly to a U.S. judge can become central to the case.

Translation and Interpretation Can Affect Litigation

International cases frequently involve records and witnesses in another language.

The State Department notes that it can facilitate certain telephone interpretation services for Hague applicants and attorneys, but it does not provide document translation services.

Formal litigation may therefore require professional translation of foreign documents and interpretation for witnesses.

Accuracy matters.

A disputed phrase in a foreign custody order, agreement, message, or statute can affect the legal analysis. Translation should be approached as part of the evidentiary record rather than treated as an administrative detail.

State Custody Proceedings and Hague Proceedings Are Different

A Texas custody case and a Hague return proceeding can exist at the same time, but they answer different questions.

The Texas family court may be concerned with conservatorship, possession, access, or other longer-term custody issues.

The Hague court focuses on whether the child was wrongfully removed or retained and whether return is required under the Convention.

The State Department specifically notes that the Hague Convention is not an exclusive remedy and that other legal tools, including the UCCJEA, may be available to seek recognition or enforcement of custody orders.

The two frameworks should not be confused.

A parent can prevail in a Hague return case without receiving permanent custody. A parent can also defeat return without obtaining a final custody determination.

UCCJEA Proceedings Remain in State Court

Texas’s UCCJEA provides a separate framework for custody jurisdiction and enforcement.

Unlike Hague return cases, which may proceed in state or federal court, UCCJEA enforcement actions proceed in state court. The State Department specifically distinguishes the two systems on this point.

That distinction can create parallel or overlapping proceedings.

For example, a Texas state court may be addressing recognition or enforcement of a foreign custody order while a federal court hears a Hague return petition concerning the same child.

Counsel must understand what each court is being asked to decide.

Removal From State Court Can Become an Issue

Because Hague Convention claims arise under federal law and ICARA provides federal jurisdiction, a case filed in state court may present removal questions depending on the pleadings and procedural circumstances.

The existence of concurrent jurisdiction does not eliminate the significance of federal removal statutes.

That can affect strategy at the outset.

Counsel should consider whether a state-court filing is likely to remain there and what procedural consequences could follow if the case moves to federal court.

The analysis should focus on actual jurisdiction and applicable removal law rather than assumptions about which forum the petitioner originally selected.

The Hague Proceeding Should Remain Focused

One of the risks in Hague litigation is allowing the proceeding to become an ordinary custody trial.

Parents understandably want to explain the entire history of the relationship, parenting disputes, and concerns about the other parent.

Some of that evidence may be relevant, particularly to a Convention defense.

But much of it may not be.

A focused Hague case asks whether the evidence relates to the treaty elements or a recognized exception.

That discipline can be especially important in expedited litigation where the court is trying to determine a narrow international return question rather than every issue affecting the family.

Grave-Risk Litigation Can Be Evidence-Intensive

Article 13(b) permits a court to decline return when the respondent establishes a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

These cases can require substantial factual development involving domestic violence, child abuse, threats, medical or psychological evidence, foreign protective mechanisms, or other serious conditions.

The U.S. Supreme Court’s Golan v. Saada decision confirms that courts have discretion concerning ameliorative measures after a grave-risk finding and are not categorically required to examine every possible measure before denying return. The precise structure of that analysis can therefore matter significantly in litigation.

Because the burden is clear and convincing evidence under ICARA, the quality of the record can be decisive.

Discovery Should Be Proportionate to the Treaty Issues

Hague proceedings can involve discovery, but the expedited nature and narrow scope of the case should shape what discovery is necessary.

Broad custody discovery may be inappropriate when the issue is habitual residence or wrongful retention.

More focused discovery might concern:

• Communications about the international move
• Travel and immigration documents
• Evidence of foreign residence
• School enrollment
• Custody rights
• Allegations supporting a treaty defense
• Prior foreign proceedings
• Evidence concerning consent or acquiescence

The scope should follow the disputed Convention issues.

Appeals Can Move Quickly

A Hague return order can have immediate consequences.

If a child is ordered returned to another country, the practical ability to obtain appellate review can depend on timing and requests for appropriate relief while the appeal is pending.

The U.S. Supreme Court held in Chafin v. Chafin that an appeal from a Hague return order does not automatically become moot merely because the child has already been returned abroad.

That does not eliminate the practical importance of timing.

Counsel should evaluate appellate options immediately after a significant ruling and consider how the order will operate while appellate review is sought.

Brad’s family law appellate practice is particularly relevant when treaty interpretation, evidentiary rulings, habitual residence, or Convention defenses become appellate issues.

Federal and State Appellate Paths Differ

The appellate path depends on where the Hague case was litigated.

A case decided in Texas state court proceeds through the Texas appellate system.

A federal district-court decision generally proceeds to the appropriate federal court of appeals.

Brad’s appellate background includes matters before both Texas appellate courts and the United States Court of Appeals for the Fifth Circuit.

That distinction is another reason the initial choice of forum can have consequences beyond the trial itself.

Hague Orders Receive Full Faith and Credit Under ICARA

ICARA provides that state and federal courts must give full faith and credit to another state or federal court’s judgment ordering or denying return under the Convention.

That provision helps prevent parties from simply relitigating the same Hague return determination in another U.S. court.

The statutory framework therefore reinforces the importance of developing the case fully in the forum where it is initially heard.

Working With the U.S. Central Authority

The U.S. Department of State’s Office of Children’s Issues serves as the United States Central Authority for Hague Convention matters.

The Department may assist with Hague applications, communication with foreign Central Authorities, attorney resources, and other administrative aspects of international child-abduction cases.

It does not serve as private litigation counsel.

Court proceedings remain the responsibility of the parties and their attorneys.

A coordinated approach can involve both Central Authority resources and direct litigation in the appropriate state or federal court.

Federal and State Hague Litigation Requires Different Strategic Thinking

The underlying treaty is the same regardless of forum, but the litigation environment may differ.

State courts may already be handling related family proceedings. Federal court may present a more self-contained treaty case. The available judge, procedural posture, pending custody proceedings, potential removal, appellate route, and need for emergency relief may all affect strategy.

That is why Hague forum selection should occur after the substantive Hague Convention return issues are identified, not before.

The legal strength of the return claim remains the foundation. Forum strategy determines how that claim will be litigated.

Texas Representation in Federal and State Hague Cases

Federal and state Hague litigation requires fluency in the treaty, ICARA, international custody law, evidentiary issues, and the procedural differences between two court systems.

Brad M. LaMorgese is Board Certified in Family Law by the Texas Board of Legal Specialization and has substantial experience in international family law, Hague Convention proceedings, and appellate litigation.

If your case involves a Hague Convention return petition in Texas state or federal court, or a decision about where such a proceeding should be filed or defended, contact LaMorgese Family Law at 214-295-7200.

Board Certified. Respected. Results-Driven.