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

Case Commentaries

U.S. Supreme Court Cases

Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014)
Delay | Settlement

The doctrine of equitable estoppel does not interrupt the running of the one-year period set forth in Article 12. Whether concealment prevent child from acquiring the degree of stable attachments needed to become settled in new environment.

Chafin v. Chafin, 133 S. Ct. 1017 (2013)

Appeal from order of return not rendered moot even though child has been physically returned to habitual residence.

Abbott v. Abbott, 560 U.S. 1 (2010)
Rights of Custody | Convention Interpretation

Ne exeat clauses combined with access or visitation rights. Sources of interpretation for the 1980 Convention.

Appellate Court Cases

First Circuit

Mendez v. May, 778 F.3d 337 (1st Cir. 2015)
Habitual Residence

Shared intent of parents. Change of habitual residence may occur without physical relocation of the child.

Mauvais v. Herisse, 772 F.3d 6 (1st Cir. 2014)
Habitual Residence | Acclimatization | Grave Risk

Presence of children in Canada for three-and-a-half-year period evidenced parents’ joint intent to allow habitual residence to be established. A change in place coupled with an appreciable period of time may influence habitual residence analysis.

Nicolson v. Pappalardo, 605 F.3d 100 (1st Cir. 2010)
Consent and Acquiescence

Temporary custody orders entered by stipulation may be insufficient to demonstrate consent or acquiescence to relocation of child.

Danaipour v. McLarey (Danaipour I), 286 F.3d 1 (1st Cir. 2002), and Danaipour v. McLarey (Danaipour II), 386 F.3d 289 (1st Cir. 2004)
Grave Risk | Sexual Abuse of Child

Cannot defer to a foreign court question of whether abuse of child has occurred. Question of whether grave risk exists is one for U.S. courts to determine, not courts of child’s habitual residence.

Second Circuit

Souratgar v. Lee, 720 F.3d 96 (2d Cir. 2013)
Article 20 | Syariah Law

Domestic violence may not constitute “grave risk” defense if violence is not directed toward child.

Blondin v. Dubois (Blondin I), 189 F.3d 240 (2d Cir. 1999), and Blondin v. Dubois (Blondin II), 238 F.3d 153 (2d Cir. 2001)
Grave Risk | Domestic Violence

Court has duty to explore full range of options before denying return of child.

Third Circuit

Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006)
Habitual Residence

Degree to which child’s experiences and contacts occurred before date of wrongful retention or removal. Degree of acclimatization related to age and maturity of child.

Fourth Circuit

Smedley v. Smedley, 772 F.3d 184 (4th Cir. 2014)

Decision of foreign court is entitled to comity where the foreign decision meets a minimum standard of reasonableness and Hague Convention is not clearly misinterpreted.

Bader v. Kramer (Bader I), 445 F.3d 346 (4th Cir. 2006), and Bader v. Kramer (Bader II), 484 F.3d 666 (4th Cir. 2007)
Rights of Custody

Parent retains custody rights where divorce court has not ruled otherwise and there is no clear evidence of abandonment.

Fifth Circuit

Rodriguez v. Yanez, 817 F.3d 466 (5th Cir. 2016)
Exercise of Custody Rights | Child’s Objection to Return

Exercise of custody rights exists where parent maintains some sort of relationship with child. Objection of child to return may not be sustained by mere preference, as opposed to actual objection, but child’s preference to remain with a parent may be relevant to sustain an objection to return.

Sanchez v. R.G.L., 761 F.3d 495 (5th Cir. 2014)
Unaccompanied Alien Children | Standing to Appeal

Appointment of guardian ad litem. Necessary parties. Effect of grant of asylum.

Sixth Circuit

Friedrich v. Friedrich (Friedrich I), 983 F.2 1396 (6th Cir. 1993), and Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060 (6th Cir. 1996)
Habitual Residence | Rights of Custody | Grave Risk | Consent and Acquiescence

Definition of habitual residence. Exercise of custody rights.

Seventh Circuit

Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013)
Custody Orders | Habitual Residence

Custody orders issued after removal of child. Test for determining habitual residence, and analysis of circuit courts’ majority and minority views.

Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir. 2005)
Grave Risk | Domestic Violence

Considering whether laws of habitual residence, or extent to which they are enforced, ameliorate risk of harm to children. Discussion of undertakings to protect children upon return.

Eighth Circuit

Barzilay v. Barzilay (Barzilay I), 536 F.3d 844 (8th Cir. 2008), and Barzilay v. Barzilay (Barzilay II), 600 F.3d 912 (8th Cir. 2010)
Habitual Residence | Younger Abstention

Habitual residence may not be established by written agreement of parents alone. Younger abstention not applicable where litigant has “opportunity” to litigate Hague issues but does not do so.

Ninth Circuit

In re A.L.C., 607 Fed. App’x 658 (9th Cir. 2015)
Habitual Residence | Re-Return Orders Following Reversal of Lower Court Order on Appeal

Whether an infant child may be habitual resident of a country where he or she never lived. Orders for re-return of a child after lower court order is reversed on appeal.

E.R.S.C. v. Carlwig (In re A.L.C.), 607 F. App’x 658 (9th Cir. 2015)
Habitual Residence

Whether infants can acquire habitual residence.

Margain v. Ruiz-Bours, 592 F. App’x 619 (9th Cir. 2015) (unpublished opinion)
Acclimatization and Settlement | Equitable Tolling

Evidence supporting acclimatization and settlement, equitable tolling.

Cuellar v. Joyce (Cuellar I), 596 F.3d 505 (9th Cir. 2010), and Cuellar v. Joyce (Cuellar II), 603 F.3d 1142 (9th Cir. 2010)
Grave Risk | Attorneys’ Fees

“Grave risk” defense not triggered by showing of disparity in living conditions between habitual residence and United States. Pro bono counsel entitled to fees for representing successful petitioner.

Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001)
Habitual Residence

Shared intent of parents to abandon former habitual residence. Change in geographic location of child. Acclimatization.

Tenth Circuit

West v. Dobrev, 735 F.3d 921 (10th Cir. 2013)
Summary Judgment

The 1980 Convention does not require an evidentiary hearing in every case.

Eleventh Circuit

Gomez v. Fuenmayor, 812 F.3d 1005 (11th Cir. 2016)
Grave Risk | Domestic Vio­lence

Even though a child is not directly harmed by violent conduct against a parent and his or her family, child may be subjected to grave risk of physical and/or psychological harm as a result of that violence.

Lops v. Lops, 140 F.3d 927 (11th Cir. 1998)
Abstention | Child Well Settled | Equitable Estoppel | Delay

Whether child who has been actively concealed may be deemed “settled” in new environment.

District Court Cases

Marquez v. Castillo, 72 F. Supp. 3d 1280 (M.D. Fla. 2014)
Provisional Orders

Order issued restraining removal of child from court’s jurisdiction, setting date for evidentiary hearing, and authorizing seizure of any and all travel documents for abducting parent and child, to prevent their use for the purpose of obtaining duplicate passports.