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1980 Hague Convention on International Child Abduction: A Resource for Judges: Recently Decided Cases

Appellate Court Cases

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.

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.

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.

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.

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, 2017 WL 662020 (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.