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1980 Hague Convention on International Child Abduction: A Resource for Judges: Recently Decided Cases
Appellate Court Cases
Ahmed v. Ahmed, 867 F.3d 682 (6th Cir. 2017)
Habitual Residence | Especially Young Children | Infants
Whether it is appropriate to consider the shared parental intent standard in cases involving very young children who lack sufficient maturity to acclimate to any residence.
Alcala v. Hernandez, 826 F.3d 161 (4th Cir. 2016)
Settlement | Immigration Status | Return Despite Existing Defense
Delay and settlement of child. Return orders and immigration status. Impact of immigration status on return. Denial of return despite valid defense.
Berezowsky v. Ojeda (Berezowsky II), 652 F. App’x 249 (5th Cir. 2016)
Re-Return Orders Following Reversal of Lower Court Order on Appeal
Whether circuit court’s order on remand to district court to vacate its order of return and dismiss a case forecloses the issuance of an order of re-return of a child, and whether district court’s refusal to grant request for a re-return order is an abuse of discretion.
Custodio v. Samillan, 842 F.3d 1084 (8th Cir. 2016)
Child’s Objection to Return | Mootness
Whether a child who turns sixteen during pendency of return proceedings is still subject to jurisdiction under Hague Convention. Clear error standard when reviewing trial court’s determination regarding a child’s objections to return. Whether a child’s objections to return can be based on considerations typical to custody decisions.
Delgado v. Osuna, 837 F.3d 571 (5th Cir. 2016)
Habitual Residence | Parental Intent
Whether previous habitual residence may be deemed abandoned without an agreement as to location of the new habitual residence.
Didon v. Castillo, 838 F.3d 313 (3d Cir. 2016)
Habitual Residence | Concurrent Habitual Residences | Stays
Whether a child may have two concurrent habitual residences. Factors involved in determining habitual residence when children spend substantial time in two adjacent countries. Whether lower courts should stay orders of return pending appeal.
Fernandez v. Bailey, 909 F.3d 353 (11th Cir. 2018)
Article 18 Discretion to Return Child | Settlement | Repeated Abductions
Whether return of a settled child is detrimental to the child per se and in which circumstances courts should consider ordering a settled child to his or her habitual residence despite the establishment of an Article 12 defense.
Hernandez v. Cardoso, 844 F.3d 692 (7th Cir. 2016)
Grave Risk Defense | Intimate Partner Violence in Child’s Presence
Application of a clear error standard to review factual determinations by a district court. Sufficiency of evidence of domestic violence to sustain grave risk defense.
Hernandez v. Pena, 820 F.3d 782 (5th Cir. 2016)
Delay Defense | Settlement | Immigration Status
Factors used when addressing meaning of the term settled in context of delay defense.
Madrigal v. Tellez, 848 F.3d 669 (5th Cir. 2017)
Return Orders | Enforcement | Place of Return
Whether an order for return of children to their habitual residence must establish the pre-abduction status quo in all respects.
Marks v. Hochhauser 876 F.3d 416 (2nd Cir. 2017)
Wrongful Retention | Single or Continuing Act | Date of Entry into Force
Determining when the 1980 Hague Convention came into force between the U.S. and Thailand and whether wrongful retention is a single act or a continuing act.
Martinez v. Cahue, 826 F.3d 983 (7th Cir. 2016)
Habitual Residence | Custody Rights
The impact of legal custody on determining the habitual residence of a child.
Monzon v. De La Roca, 2018 U.S. App. LEXIS 34763 (3d Cir. Dec. 7, 2018)
Commencement of Proceedings Defined | Article 12 Defense | Settlement
Whether an action is considered to have commenced with the filing of an administrative request for return, whether an Article 12 “delay” defense requires proof that other defenses exist, and whether the evidence presented sufficiently established that the child was “settled” under Article 12.
Moreno v. Zank, 895 F.3d 917 (6th Cir. 2018)
Whether abduction acts as a bar to the establishment of a child’s habitual residence in the country to which the child was taken, and whether resort to self-help and failure to pursue an action for return of a child under the Hague Convention may result in a change in the child’s habitual residence.
Padilla v. Troxell, 850 F.3d 168 (4th Cir. 2017)
Defenses | Consent – Facts Supporting Consent
What factual issues may support sustaining the defense of consent to the child’s wrongful removal.
Pliego v. Hayes, 843 F.3d 226 (6th Cir. 2016)
Intolerable Situation | Courts of Habitual Residence
Whether an “intolerable situation” under Article 13(b) includes inability of courts of habitual residence to litigate child custody.
Soto v. Contreras, 880 F.3d 706 (5th Cir. 2018)
Domestic Violence | Grave Risk
Whether the district court’s finding of a lack of “objective evidence” to support abuse allegations impermissibly increased mother’s burden to prove a grave risk, and whether the existence of spousal abuse requires a finding of grave risk to a child.
Taglieri v. Monasky, No. 16-4128, 2018 U.S. App. LEXIS 29178 (6th Cir. Oct. 17, 2018)
Habitual Residence | Infants
What standard to apply when determining the habitual residence of an infant who has lived in only one location prior to its wrongful removal.
Tann v. Bennett, 648 F. App’x 146 (2d Cir. 2016) (unpublished opinion)
Child’s Objection to Return
Sufficiency of evidence to sustain a child’s objection to return.
District Court Cases
Cunningham v. Cunningham, 237 F. Supp. 3d 1246 (M.D. Fla. 2017)
Habitual Residence of Infants | Wrongful Retention | Delay – Settlement of Child
Role of parental intent in fixing the habitual residence of an infant. Relevance of foreign law (of country of a child’s habitual residence) to determination of wrongful retention. Whether a child under two can become “settled” in new environment.