Constanza is separated from a German man. Her children have grown up between Santiago and Munich, between video calls with their grandparents and vacations in which they switch languages with a ease that still surprises her. Every time her ex-husband takes them to Germany, she counts the days and watches the flights, trying not to think about the question that makes her feel guilty even before asking it: what if one day he decides not to come back?
She has not told her ex-husband or her friends. Saying it out loud would be to admit that she does not fully trust the father of her children. But her fear is far from exceptional: it is one of the most common concerns among parents who are or were in a relationship with foreigners, or whose children maintain important ties with another country.
During July, an international dispute over the custody of a two-year-old girl, involving Chile, Paraguay, and Argentina, brought this fear back into public conversation. Her parents have given opposing versions and the judicial proceedings remain open. Regardless of how that case is resolved, it highlights the importance of decisions of such magnitude being made by the courts and not unilaterally.
International abduction does not depend on a child having two passports nor does it only occur between separated parents. It can also happen in couples who are still together and who, until that moment, had never taken their relationship to court. Sometimes the transfer is illegal from the start, because the child leaves the country without the proper authorizations. But it can also happen that the trip was legitimately authorized and turns into an illegal retention when the return date passes and one of the parents decides to stay abroad.
To address these situations, there is the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Its purpose is not to decide with whom a child should live permanently nor to determine which parent is better. It seeks something more limited: to establish whether the child was wrongfully removed or retained and, in that case, to seek their return to the country where they had their habitual residence before the conflict.
This concept is fundamental. Habitual residence does not depend on nationality, the passport that is most convenient, or the country of origin of the parents. It is determined by observing where the child’s life was settled: their home, their school or daycare, their routines, their caregivers, and their daily relationships. It is the place from which they were taken away.
Return is not automatic either. Although the goal of the Convention is for the child to return to their habitual residence, courts can reject that request in exceptional situations. For example, if the person requesting the return was not effectively exercising their custody rights; if they had authorized the transfer or later accepted that the child remain abroad; or if the return would expose the child to a serious risk of physical or psychological harm, or to an intolerable situation. When the child’s age and maturity allow, their opinion must also be heard, although without burdening them with the responsibility of choosing between their parents.
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Reports of violence require especially careful evaluation, as they may be relevant to determining whether the child’s return would expose them to serious risk. Violence against one of the parents can also affect their children. However, the mere existence of a report is not enough to prevent return: the court must analyze the background and determine if that risk is present in the specific case.
In all cases, the best interests of the child must guide the entire process, but without becoming an empty formula or an excuse to re-discuss, under another name, who should exercise personal care. The return procedure does not resolve that underlying conflict: it seeks to prevent that decision from being made through unilateral removal.
For these families, the first tool is prevention. Article 49 of Law No. 16,618 regulates the exit of children from Chile and requires, as a general rule, the authorization of the parent who is not traveling; if this cannot be obtained, it must be requested from the Family Court. It is advisable to avoid open-ended permissions, specify the destination country and exact dates of departure and return, as well as keep copies of the authorization, tickets, and rulings on personal care or direct and regular contact. The document does not guarantee return, but it allows establishing when consent ended.
If there is concrete evidence of risk, a judicial exit prohibition can be requested before the trip. And what to do the day the child does not return? If there was judicial authorization or there is a case regarding personal care or direct and regular contact, non-compliance must be reported immediately to the Family Court, attaching the permission, tickets, and communications. But that court cannot directly order the return from another country. In parallel, the return request must be activated without delay before the Central Authority (in Chile, the International Office of the Metropolitan Legal Assistance Corporation), which transmits it to the state where the child is. It is their courts that will decide the return.
Constanza’s fear will not disappear by signing a document before a notary, but knowing the rules can make her trust less blind. Every trip of a child with one of their parents contains an act of trust that the law cannot replace, but can protect. Because when that agreement is broken, what is at stake is not just a return trip, but the stability of a child’s entire life.
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