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Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013)
Order Compelling Parent to Return | Recognition or Enforcement of Custody Orders | No Retroactive Wrongful Retention | Habitual Residence
Redmond reiterates the principle that the 1980 Hague Convention is not a vehicle for settling jurisdictional disputes regarding competing custody orders and explores in detail the question of habitual residence.
Mother, a U.S. citizen, and father, an Irish citizen, lived together in Ireland. When their child was about eight months old, mother went to Illinois with the child. Father did not consent. Because the parties were unmarried, Irish law provided that mother was the sole legal custodian of the child, and father had no established rights of custody. Mother and child remained in Illinois. Three-and-one-half years later, in February 2011, an Irish court granted father paternity rights, ordered joint custody, and further ordered that the child live in Ireland. Mother participated in the proceedings. After the entry of the Irish decree, Mother moved back to Illinois, ostensibly for the purpose of gathering up personal belongings. Despite her undertakings to return to Ireland, she remained with the child in Illinois. Father petitioned for a return of the child. The district court granted the petition and ordered both mother and child to return to Ireland. The Seventh Circuit reversed.
Ordering Parent Returned with Child. The district court ordered mother and child returned to Ireland based upon the Irish custody order that was entered long after the child had acquired a new habitual residence in the United States. The court found that no provision of the Hague Convention authorizes a court to order a parent to relocate to another country. “As far as we can determine, neither the Hague Convention nor its implementing legislation . . . authorizes the court to order the relocation of parents.”
Effect of Custody Orders Issued After Child’s Removal. At the time the child was removed from Ireland initially, father had no rights of custody, so the removal of the child at that time was not wrongful. Father contended that mother’s failure to return the child to Ireland after he gained custody rights constituted a wrongful retention. As a matter of first impression, the Seventh Circuit ruled that the 1980 Convention deals with child abductions and is not aimed at determining parent’s jurisdictional rights vis-à-vis their custody cases:
Although our case is not perfectly analogous to either Barzilay[] or White[], the basic point is the same. The Hague Convention targets international child abduction; it is not a jurisdiction-allocation or full-faith-and-credit treaty. It does not provide a remedy for the recognition and enforcement of foreign custody orders or procedures for vindicating a wronged parent’s custody rights more generally. Those rules are provided in the Uniform Child-Custody Jurisdiction and Enforcement Act.
Habitual Residence. The Seventh Circuit found that the United States was the child’s habitual residence. It held that a parent may not use the 1980 Convention as a vehicle to alter the child’s habitual residence status based upon a subsequent custody decision, since the essence of the Convention is to return a child that has been taken from his or her habitual residence.
The court then went on to discuss the nature of the Circuit split on the issue of habitual residence. Ordinarily these commentaries do not contain lengthy quotes from cases, but the following excerpt from the case is an excellent summary on the diverse definitions of habitual residence:
A majority of the circuits have preferred the Ninth Circuit’s approach and adopted the so-called “Mozes[] framework.” See Gitter[ v. Gitter], 396 F.3d [124,] 131 (2d Cir.[ 2005]); Maxwell v. Maxwell, 588 F.3d 245, 251 (4th Cir. 2009); Ruiz[ v. Tenorio], 392 F.3d [1247,] 1252 (11th Cir.[ 2004]). We too have “adopted a version of the analysis set out by the Ninth Circuit in Mozes.” Norinder[ v. Fuentes], 657 F.3d [526,] 534 (citing Koch[ v. Koch], 450 F.3d [703,] 715[ (7th Cir. 2006)]). Conventional wisdom thus recognizes a split between the circuits that follow Mozes and those that use a more child-centric approach, but we think the differences are not as great as they might seem. Although the Third, Sixth, and Eighth Circuits focus on the child’s perspective, they consider parental intent, too. In Feder[] the Third Circuit observed that the inquiry into a child’s habitual residence “must focus on the child and consists of an analysis of the child’s circumstances in that place and the parents’ present, shared intentions regarding their child’s presence there.” 63 F.3d at 224 (emphasis added). Feder reversed the district court’s habitual-residence determination precisely because the district court had given insufficient attention to the intentions of one of the parents. See id. Similarly, in the Eighth Circuit, “[t]he ‘settled purpose’ of a family’s move to a new country is a central element of the habitual residence inquiry. . . . [T]he settled purpose must be from the child’s perspective, although parental intent is also taken into account.” Barzilay, 600 F.3d at 918 (emphasis added).
The same is true on the other side. Although the Mozes framework focuses on the shared intent of the parents, the child’s “acclimatization” in a country has an important role to play. Indeed, the Ninth Circuit explained in Mozes that “a child’s life may become so firmly embedded in the new country as to make it habitually resident even though there be lingering parental intentions to the contrary.” 239 F.3d at 1078. We have emphasized that the Mozes approach is “flexible” and takes account of “the realities of children’s and family’s lives despite the parent’s hopes for the future.” Koch, 450 F.3d at 715–16.
In substance, all circuits—ours included—consider both parental intent and the child’s acclimatization, differing only in their emphasis. The crux of disagreement is how much weight to give one or the other, especially where the evidence conflicts. See Karkkainen[ v. Kovalchuk], 445 F.3d [280,] 297 [(3d Cir. 2006)] (describing the disagreement among the circuits as a difference of opinion about how to “weigh [parental intent and the child’s acclimatization] against each other if they conflict[ ]”).
* * * * *
To repeat, in loosely adopting the Mozes framework, we highlighted its flexibility. See Koch, 450 F.3d at 715. We emphasized that the inquiry is “not . . . rigid” and “does not require courts to ignore reality,” id. at 716, and noted that the Ninth Circuit had acknowledged as much when it said in a subsequent case that “it was ‘keenly aware of the flexible, fact-specific nature of the habitual residence inquiry envisioned by the Convention,’” id. (quoting Holder[ v. Holder], 392 F.3d [1009,] 1015[ (9th Cir. 2004)]).
In the final analysis, the court’s focus must remain on “the child[ ]’s habitual residence.” Holder, 392 F.3d at 1016 (emphasis added). Shared parental intent may be a proper starting point in many cases because “[p]arental intent acts as a surrogate” in cases involving very young children for whom the concept of acclimatization has little meaning. Id. at 1016–17. “Acclimatization is an ineffectual standard by which to judge habitual residence in such circumstances because the child lacks the ability to truly acclimatize to a new environment.” Karkkainen, 445 F.3d at 296. On the other hand, an emphasis on shared parental intent “does not work when . . . the parents are estranged essentially from the outset.” Kijowska[ v. Haines], 463 F.3d[ 583,] 587[ (7th Cir. 2006)]. In short, the concept of “last shared parental intent” is not a fixed doctrinal requirement, and we think it unwise to set in stone the relative weights of parental intent and the child’s acclimatization. The habitual-residence inquiry remains essentially fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions. See Kijowska, 463 F.3d at 586; Karkkainen, 445 F.3d at 291; Friedrich, 983 F.2d at 1401; Re Bates, No. CA 122/89.
. Redmond v. Redmond, 724 F.3d 729, 735 n.1 (7th Cir. 2013).
. Barzilay v. Barzilay, 600 F.3d 912 (8th Cir. 2010).
. White v. White, 718 F.3d 300 (4th Cir. 2013).
. Redmond v. Redmond, 724 F.3d 729, 741 (7th Cir. 2013).
. Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001).
. Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995).
. Redmond v. Redmond, 724 F.3d 729, 745–46 (7th Cir. 2013).
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Nicolson v. Pappalardo, 605 F.3d 100 (1st Cir. 2010)
Consent and Acquiescence
Article 13 establishes a defense to return when the left-behind parent has consented or acquiesced to the removal or retention of the child. Consent or acquiescence, however, must be clearly established.
Mother left Australia with her three-month-old child and settled in Maine. Two months later, mother applied for a temporary protective order giving her temporary custody of the child, and father was granted limited visitation. Father consented to the order. Meanwhile, father had made application for return of the child in federal court. The district court found that father had neither consented nor acquiesced in the wrongful removal of the child from Australia and ordered the child returned. The First Circuit affirmed.
Mother argued that father had acquiesced in her taking the child from Australia to the United States. However, his subjective intent to do so was vitiated when he filed an action in federal court for the return of the child. The First Circuit noted that the execution of a state custody order permitting a state court to make a final custody order would be tantamount to acquiescence under the 1980 Convention, citing both domestic and foreign precedent. In this case, however, the order secured by mother was in the context of a temporary protective order; this order contemplated the possibility that another court would take jurisdiction of the case. The court found that father did not give clear and unambiguous consent to have Maine courts make a final custody determination.
Father could have stayed the hearing of any temporary custody case because of the pendency of his Hague Convention proceeding in federal court. Article 16 of the Convention prohibits a court from proceeding on a custody determination, even a temporary one, when a petition for return of a child is pending. A temporary order of limited duration was insufficient to establish that, as a matter of law, father acquiesced in the removal of the child from Australia.
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Mendez v. May, 778 F.3d 337 (1st Cir. 2015)
(Petition for Certiorari docketed on June 17, 2015)
Father, an Argentinian citizen, and mother, a U.S. citizen, lived in Argentina. They had a child in 2007. The child lived exclusively in Argentina. The parties separated in 2009. Pursuant to a 2012 custody agreement, father had visitation time with the child, and mother was permitted to travel abroad with the child forty-five days each year. In August 2013, mother obtained employment in Boston. The parties had several conversations concerning this move, and the parents ultimately agreed that their son could relocate to the United States with mother. In the interim, father’s visitation time would increase. Mother moved to the United States in mid-September 2013. The child remained with his maternal grandmother in Argentina, and father began his increased visitation with the child. The agreement for the child to relocate to the United States broke down when the parties could not agree upon an exact date for the child to join his mother in the United States—before the Christmas holidays in 2013, or in early January 2014. This disagreement led to father obtaining an order denying mother’s permission for the child to travel to the United States. Mother thereupon took the child to Paraguay to avoid Argentinian exit controls, and then flew with the child to the United States.
On father’s Hague application for the child’s return, the district court ordered the child returned to Argentina. The First Circuit reversed, finding that the child’s habitual residence changed upon proof of the parents’ joint shared intent that the child be allowed to relocate with his mother to Boston. Father’s later unilateral change of mind did not alter the child’s habitual residence. The court further held that under the facts of this case, it was not necessary that a change in habitual residence be accompanied with a “change in geography,” that is, a physical move to the United States.
Shared Intent. Father timely petitioned in the Massachusetts district court for the return of the child. The district court found that the child’s habitual residence was Argentina, opining that the parents did not actually form a shared intent to have the child relocate to the United States. The First Circuit reversed this finding as constituting clear error based upon evidence that father confirmed the parties’ oral agreement to allow the move, corroborated by emails, and father’s own statements. The parties’ disagreement over the actual date for the child to relocate to the United States only amounted to an approximate five-week period of time—with mother wanting the child to come in early December, and father agreeing to January 8, 2014. The subsequent breakdown in communication between the parents resulted in father changing his mind, and resorting to Argentinian courts to prohibit the child’s removal. The First Circuit found that the evidence established that the last shared intent of the parties was for the child to relocate permanently to the United States. Citing to Sánchez-Londoño v. Gonzalez, the court pointed out that unilateral intent of one parent is insufficient to overcome the “last settled intent” of both. Further, the court found that the absence of a written agreement between the parties allowing the child to change his habitual residence was not required, and that the settled intention of the parties could be proven by other evidence.
“Change in Geography” May Be Relevant, but Not Requisite. The district court found that the child’s habitual residence had not changed for the additional reason that in this case there was no actual “change in geography,” relying on the habitual residence test enunciated in Mozes v. Mozes. Mozes held that “[w]hile the decision to alter a child’s habitual residence depends on the settled intention of the parents, they cannot accomplish this transformation by wishful thinking alone. First, it requires an actual “change in geography.”
The First Circuit clarified that its prior decisions did not require a “change in geography” as part of a habitual residence test. Rather, the court explained that
[t]his circuit has never added such a requirement in the context of the habitual residence test. To the contrary, we have explicitly described a change in the child’s geography as but one “consideration[ ] for the court” and “one factor in our [habitual residence] analysis,” not as a full-fledged prerequisite. Darin, 746 F.3d at 12–13; see also Mauvais[ v. Herisse], 772 F.3d [6, 14 (1st Cir. 2014)] (“‘[F]actors evidencing a child’s acclimatization to a given place—like a change in geography combined with the passage of an appreciable period of time—may influence our habitual residence analysis.’”) (emphasis added) (quoting Sánchez-Londoño, 752 F.3d at 542). To be sure, there may be situations in which an actual change in the child’s geography factors heavily in the habitual residence analysis. Lest there be confusion, a child’s presence in a new country of habitual residence is not required to effectuate his parents’ settled intention to abandon his old place of residence and acquire a new one. A contrary requirement would incentivize a feuding parent to move his or her child immediately upon the formation of an agreement even if, as here, it would be better for the child to finish out a school year or wait until the parent has settled the family’s living situation before the child joins her.
. 752 F.3d 533, 540 (1st Cir. 2014).
. 239 F.3d 1067 (6th Cir. 1999).
. Id. at 1078 (citing Friedrich v. Friedrich (Friedrich I), 983 F.2d 1396, 1402 (6th Cir. 1993)).
. Mendez v. May, 778 F.3d 337, 346 (1st Cir. 2015).
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006)
Karkkainen addresses the circuit split over the test for acquiring a new habitual residence. Quoting liberally from other circuit cases that addressed a number of disparate issues, the Third Circuit invoked considerations of shared parental intent, acclimatization of the child, degree of settled purpose, and the child’s age and maturity and held that the eleven-year-old child involved in the case acquired a new habitual residence over the period of two months.
The child in question was born in 1992 and habitually resided with her mother in Finland. Her mother and father divorced and each remarried. Father moved to the United States with his new spouse. After some initial problems obtaining a visa for the child to visit her father in the United States, the child was granted a visa as a permanent resident. Both parents agreed to this change in the child’s immigration as necessary to allow the child to visit her father in the United States. The child visited her father in October and December 2002, and over Easter break in April 2003.
The child’s parents agreed that the child could come to the United States in early June 2003, and it was anticipated that the child would remain indefinitely thereafter. Mother participated in sending school records to a private school in the United States so that the child could enter in the fall of 2003. The child was under the firm impression that she had been given the right to decide where she was going to live.
When the child did not return to Finland by August 10, 2003, mother filed a petition for return of the child to Finland. The district court denied the petition, finding that the child had become acclimatized to her new environment, that the United States had become her habitual residence, and that the parents had given the child the discretion to choose where she was going to live.
Habitual Residence. The court observed that issues relating to the acquisition of a habitual residence are “fact-intensive,” especially where a child goes to another country for an indefinite period of time. Quoting from their earlier opinion in Feder v. Evans-Feder, the court defined habitual residence as
the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a ‘degree of settled purpose’ from the child’s perspective.
The court went on to comment that this test focused upon the child’s experiences and contacts that occurred before the date of wrongful retention. These considerations led to an analysis of whether the degree of the contacts and experiences resulted in the child becoming acclimatized or “rooted” in the new country. If so, the new country becomes the child’s habitual residence.
The court observed that “shared parental intent remains relevant to habitual residence in all cases under the Hague Convention,” and proceeded to analyze the issue of parental intent from two perspectives: (1) whether the child’s attitude toward acclimatization would be influenced by knowledge of the parental intent; and (2) what was the parents’ shared intent regarding the child’s presence in the new country. The court gave weight to both the “child-centered” focus of the Sixth and Eighth Circuit’s opinions in Friedrich v. Friedrich and Silverman v. Silverman, and the Ninth Circuit’s focus on parental intent and whether it could be outweighed by acclimatization. The court departed from the Sixth Circuit’s primary focus on acclimatization and settled purpose from the child’s perspective and stated,
When the parents share an intent as to the child’s habitual residence, it must be given some weight. Were a court to exclude shared parental intent entirely from the habitual residence inquiry, and instead focus solely on a child’s contacts and experiences, it would fail to consider whether a parent is acting unilaterally to alter what was jointly intended or agreed upon. Factoring shared parental intent into habitual residence therefore serves one of the primary goals of the Hague Convention.
Factors. The court acknowledged that this was a close case, especially given that the child had only visited the United States a couple of times in the year before she came in the summer of 2003, and her stay at that time amounted to slightly over two months. Nevertheless, it appeared to the court that the child was extraordinarily mature for her age, uniquely talented, and highly intelligent. She spoke Finnish, English, and Russian, had registered for summer school in the school she intended to attend in the fall, took photography classes there, and traveled with her father and step-mother. Her parents agreed when she left Finland that the child had the maturity and psychological assets to decide where she was going to live. Accordingly, the Third Circuit upheld the district court’s determination that the child had become acclimatized to her life in the United States and demonstrated a degree of settled purpose to remain.
Underscoring the unique nature of this case, the Third Circuit distinguished its holding in Karkkainen from its analysis in Yang v. Tsui involving a younger, less mature child:
[Father] attempts to analogize this case to Karkkainen. Such an analogy is improper because the facts of the two cases are too dissimilar, and as we have said these types of cases are extremely fact-intensive. Our main focus in Karkkainen was on the perspective of the eleven-year-old child who we determined had become acclimatized in the United States. [Karkkainen, ]445 F.3d at 293–97. There is no such evidence in this case. Additionally, the shared intent in that case was that the child could determine, after spending the summer in the United States, whether or not to remain permanently in the United States. Id. at 297. Such a mutual intent is nothing like an agreement that a child reside in Pittsburgh for a couple of months until her mother recovered from surgery. Therefore, although the cases share some similar facts, such as the mother assisting with the child being enrolled in school and the packing of items beyond those needed for a short stay, Karkkainen does not control the outcome of this case.
. 63 F.3d 217, 222 (3d Cir. 1995).
. Id. at 291–92.
. Karkkainen, 445 F.3d at 296.
. Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993).
. Silverman v. Silverman, 338 F.3d 886, 898 (8th Cir. 2003).
. Citing to Holder v. Holder, 392 F.3d 1009, 1019 (9th Cir. 2004) and Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001).
. See Robert v. Tesson, 5078 F.3d 981, 989 (6th Cir. 2007).
. Id. at 296.
. Yang v. Tsui (Yang II), 499 F.3d 259 (3d Cir. 2007).
. Id. at 274 (footnotes omitted).
Friedrich v. Friedrich (Friedrich I), 983 F.2d 1396 (6th Cir. 1993)
Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060 (6th Cir. 1996)
Habitual Residence | Rights of Custody | Grave Risk | Consent and Acquiescence
Friedrich I was the first Federal Circuit case to deal with the 1980 Hague Convention. At the time of its publication, the Hague Convention had only been in force in the United States for three-and-one-half years. No other federal appellate cases had yet been decided.
Habitual Residence. The case dealt primarily with the concept of habitual residence and the defense of consent. The court enunciated what would later become the seminal language for the Sixth Circuit’s test for habitual residence: “To determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions.”
a child’s habitual residence is the nation where, at the time of their removal, the child has been present long enough to allow acclimatization, and where this presence has a “degree of settled purpose from the child’s perspective.”Feder, 63 F.3d at 224. Such a holding is not only consistent with the collective wisdom of many of our sister Circuits, but it is also consistent with Friedrich I’s holding that a habitual residence inquiry must “focus on the child, not the parents, and examine past experience, not future intentions.”
This approach to determining habitual residence set up the split with other circuits that focus on parental intent in deciding habitual residence&mdashprimarily those circuits that follow the Ninth Circuit’s decision in Mozes v. Mozes.
Friedrich I reversed the district court’s finding that the United States was the child’s habitual residence and the matter was remanded to consider the issue of custody rights and for consideration of any defenses.
After the decision on remand, the case was again appealed. The subsequent case, Friedrich II, dealt with a broader range of issues and became one of the seminal cases for determining issues relating to the exercise of custody rights, grave risk of harm, consent, and acquiescence.
Exercise of Custody Rights. In Friedrich II, the court recognized that up until one week before mother removed the child from the family home in Germany, the family was intact, and that under German law, father had de jure rights of custody. The court defined the test for exercise of custody rights under Article 3(b) as follows:
If a person has valid custody rights to a child under the law of the country of the child’s habitual residence, that person cannot fail to “exercise” those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.
Article 13(b) Grave Risk. The court summarily refused to sustain mother’s arguments that the child would suffer psychological problems if ordered to return to Germany as a result of being uprooted from his new home in the United States and separated from his mother. In dicta, the court reasoned in language that has been oft-quoted:
[W]e believe that a grave risk of harm for the purposes of the Convention can exist in only two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute&mdashe.g., returning the child to a zone of war, famine, or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.
Acquiescence. Mother conceded that father had acquiesced in the removal of the child, based upon statements made to a third party at a cocktail party that he lacked the means to take care of the child and was not seeking custody. The court ruled,
[W]e believe that acquiescence under the Convention requires either: an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time.
. Friedrich v. Friedrich (Friedrich I), 983 F.2d 1396, 1401 (6th Cir. 1993).
. 507 F.3d 981 (6th Cir. 2007).
. 63 F.3d 217, 224 (3d Cir. 1995).
. Robert, 507 F.3d at 993.
. 239 F.3d 1067 (9th Cir. 2001).
. Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060, 1066 (6th Cir. 1996).
. Id. at 1069.
. Id. at 1070 (footnotes omitted).
Danaipour v. McLarey (Danaipour I), 286 F.3d 1 (1st Cir. 2002)
Danaipour v. McLarey (Danaipour II), 386 F.3d 289 (1st Cir. 2004)
Grave Risk | Sexual Abuse of Child
The Danaipour cases deal with the responsibilities of trial courts to hear and rule on defenses to return as opposed to relying upon the courts or services of the habitual residence to inquire into allegations of abuse.
Mother and father lived in Sweden, where they raised two daughters. When the children were aged six and two, the parents filed an action for divorce in Sweden but continued to cohabit with one another. Mother began to suspect that father, a child psychologist, was sexually abusing the children. After mother sought the advice of a child psychologist, a complaint was made to social services in Sweden, which resulted in a criminal investigation. After interviewing the children, the investigation was terminated. Mother requested social services perform a complete investigation; however, this could not be done without the father’s consent, which he withheld. Mother requested that the court order such an investigation, but the request was denied. In violation of Swedish court orders, mother subsequently left Sweden with her daughters and came to the U.S. Father commenced a Hague petition for return in Massachusetts state court, but mother had the matter removed to federal district court. The district court denied mother’s motion for a full sexual abuse evaluation to be performed in the U.S. At trial, the children’s treating physician testified to her opinion that the younger child had been abused by father, and was suffering from PTSD. It was corroborated by (1) a medical expert in the field of child trauma, who indicated that it would be devastating to return either child to their father, and (2) a professor of pediatrics and expert in sexual abuse evaluations that the younger child had been sexually abused. Father denied the abuse and produced a clinical social worker to testify that the children did not suffer from PTSD.
The trial court was concerned that sexual abuse had occurred, but also found that a forensic evaluation was required. The court ordered the return of the children in mother’s custody along with ordering twelve conditions regarding their return, including that a forensic evaluation be conducted in Sweden, that the Swedish court determine the implications of the evaluation in deciding custody of the children along with other orders limiting father’s contact with the children. While appeal was pending, it appeared that some of the undertakings that were contemplated to be contained in a “mirror image” order could not be legally ordered by the Swedish court.
On the facts of this case, and “[w]ithout deciding that there could never be a situation in which a district court could properly decline to make a finding on sexual abuse allegations or defer such a finding to the courts of the country of habitual residence,” the First Circuit reversed the district court.
First, the court held that sexual abuse is the equivalent of an “intolerable situation” within the meaning of Article 13(b). Second, the question whether there is a grave risk is one for the court that is hearing the case, not a court of the habitual residence. In this case, the court should not have ordered the children returned without making factual findings necessary to evaluate the nature of the risk, that is, had the children been sexually abused. Without a determination that the children had or had not been abused, the court was without a basis to determine the question whether the children could be safely returned to the habitual residence. Third, the question whether a forensic evaluation in Sweden would have been effective was problematic in light of subsequent events, and in light of the evidence that a return order would be devastating to the children. Fourth, the undertakings that the trial court imposed were beyond the ability of the Swedish court to comply with, and as such, it was beyond the authority of the U.S. district court to impose those conditions on a foreign court. In the final analysis, the First Circuit found that it was error, inter alia, for a court to order the children’s return before it knew whether sexual abuse had occurred.
The case was remanded back to the trial court to conduct additional proceedings to determine if the sexual abuse occurred.
On remand, the district court found that the younger child had been sexually abused by her father, and that the older daughter had not been abused. The court further found that it would be an intolerable situation for the children to be returned to Sweden, and the father’s request for return was denied. Father appealed.
In Danaipour II, father challenged the sufficiency of the evidence, and further argued that the trial court erred by failing to determine whether Swedish courts could address the issue of protecting the children from grave risk. The court rejected father’s assertion that a grave risk under Article 13(b) does not exist unless the court examines the measures or remedies available in the habitual residence that could be accompanied by undertakings. The court underscored the limited use of undertakings in connection with returns ordered despite the showing that a 13(b) defense has been found true, and reasoned that
[Father] also relies heavily on a footnote in Blondin for the proposition that assessing the capacity of the courts of the country of habitual residence is a prerequisite to an Article 13(b) exception. 238 F.3d at 163 n.11. We do not read Blondin to require the court to make findings about the institutional capacity of the home country in all cases. To the extent that Blondin does stand for such a proposition, we disagree that Article 13(b) requires such findings in all cases.
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If the requested state court is presented with unequivocal evidence that return would cause the child a “grave risk” of physical or psychological harm, however, then it would seem less appropriate for the court to enter extensive undertakings than to deny the return request. The development of extensive undertakings in such a context would embroil the court in the merits of the underlying custody issues and would tend to dilute the force of the Article 13(b) exception.
Cuellar v. Joyce (Cuellar I), 596 F.3d 505 (9th Cir. 2010)
Cuellar v. Joyce (Cuellar II), 603 F.3d 1142 (9th Cir. 2010)
Grave Risk | Attorneys’ Fees
Cuellar I: Grave Risk
Cuellar I represents an example of a parent’s attempt to use the 1980 Convention as a vehicle for determining a child’s “best interests” based upon the disparity between living conditions in a remote area of Panama versus the United States.
Father, a college professor and U.S. citizen, met mother, a Panamanian exotic dancer and they had a child together. Thereafter the parties separated, with father returning to the U.S. and mother remaining in Panama with the child. Father visited the child sporadically in Panama. Father arranged to abduct the child by convincing mother and the child to meet him at the Sydney airport in Australia. While in the airport, father took the child and returned to Montana.
Grave Risk. The district court sustained father’s objections to return on Article 13 grounds. Father’s Article 13 defense rested on his assertions that the child’s living conditions were substandard, that she suffered from a medical condition that could not be treated in remote Panama, and that the child would suffer psychological harm due to her separation from her father and return to Panama. The Ninth Circuit reversed, primarily due to a lack of evidence that the facts supported the defense.
1. Living Conditions and Parenting Skills. Accepting that the child’s home lacked indoor plumbing and other rudimentary appliances, the court noted that
Billions of people live in circumstances similar to those described by Richard. If that amounted to a grave risk of harm, parents in more developed countries would have unchecked power to abduct children from countries with a lower standard of living.
The court further noted that the evidence that mother was neglectful was weak, and did not amount to “serious abuse” that was “a great deal more than minimal.” The evidence presented consisted only of information that bore on the ultimate issue of custody and did not rise to the level required by Article 13(b). As explained by the U.S State Department:
[Article 13(b)] was not intended to be used by defendants as a vehicle to litigate (or relitigate) the child’s best interests. Only evidence directly establishing the existence of a grave risk that would expose the child to physical or emotional harm or otherwise place the child in an intolerable situation is material to the court’s determination. The person opposing the child’s return must show that the risk to the child is grave, not merely serious.
A review of deliberations on the Convention reveals that “intolerable situation” was not intended to encompass return to a home where money is in short supply, or where educational or other opportunities are more limited than in the requested State.
2. Psychological Harm. The trial court found that Article 13 applied because the child would be separated from father and was attached to him and the U.S. The Ninth Circuit warned,
This was a very serious error. The fact that a child has grown accustomed to her new home is never a valid concern under the grave risk exception, as “it is the abduction that causes the pangs of subsequent return.” Friedrich, 78 F.3d at 1068; see also Asvesta, 580 F.3d at 1020–21; England v. England, 234 F.3d 268, 271–72 (5th Cir. 2000). Rather than allowing an abducting parent to profit from the psychological dislocation that he has caused, the Convention attempts to avoid the harm by deterring parents from abducting their children in the first place.
Cuellar II: Attorneys’ Fees
After securing an order of return, mother petitioned for fees and costs incurred on appeal. Granted.
Father engaged in delaying tactics, causing both parties’ fees to increase. The court held that despite mother’s representation by pro bono counsel, mother’s counsel was entitled to fees:
The fact that Cuellar’s lawyers provided their services pro bono does not make a fee award inappropriate. Fee awards serve in part to deter frivolous litigation, and denying fees in this case would encourage abducting parents to engage in improper delaying tactics whenever the petitioning parent is represented by pro bono counsel. Cf. Morrison v. CIR,565 F.3d 658, 664 (9th Cir. 2009). We see no reason to give abducting parents such a perverse incentive.
. Cuellar v. Joyce (Cuellar I), 596 F.3d 505, 509 (9th Cir. 2010).
. Id. at 510 (citing Gaudin v. Remis (Gaudin III), 415 F.3d 1028, 1035 (9th Cir. 2005)).
. Hague International Child Abduction Convention, Text and Legal Analysis, 51 Fed. Reg. 10494-01 (State Dept. Mar. 26, 1986).
. Id. at 10510.
. Cuellar I, 596 F.3d at 511.
. Cuellar v. Joyce (Cuellar II), 603 F.3d 1142, 1143 (9th Cir. 2010).
Blondin v. Dubois (Blondin I), 189 F.3d 240 (2d Cir. 1999)
Blondin v. Dubois (Blondin II), 238 F.3d 153 (2d Cir. 2001)
Grave Risk | Domestic Violence
Blondin I and Blondin II stand as authority for determining the depth and nature of domestic violence, and the efforts that courts should undertake to determine if, and under what circumstances, children should be ordered returned.
Blondin I and Blondin II held that courts should take into account any ameliorative measures, on the part of the parents or the government of the habitual residence, that might alleviate the existence of grave risk. This finding is the subject of a split between the circuits. The Blondin approach has been followed in the Third and Seventh Circuits and one appellate division in California. The First, Sixth, and Eleventh Circuits rejected this approach, at least insofar as Blondin suggests that courts must determine whether the government of the habitual residence (and presumably the courts thereof) have the ability to provide measures that will assure the safety of the child upon return.
In Blondin I, the district court found that returning the two children to France would place the children in “grave risk” of harm from their father. On this basis, return was denied. On appeal, the First Circuit did not disturb the district court’s conclusion that the children should not be released into the custody of their father, but remanded the case to the district court to determine the “fully panoply of arrangements that might allow the children to be returned to the country from which they were . . . abducted, in order to allow the courts of that nation an opportunity to adjudicate custody.”
The facts underlying the 13(b) defense involved repeated beatings of the mother, with some of the blows falling on the daughter, and repeated threats to kill the mother and the children, with medical attention being necessary on two occasions, and the intervention of law enforcement on one occasion.
In Blondin II, the trial court again found that return of the children to France, “under any arrangement” would expose the children to a grave risk of harm based upon the interruption of their recovery from the trauma suffered by them in France, uncertain custody proceedings in France, and the objection of one of the children to a return to France. The court additionally noted that the children would face a recurrence of “acute, severe traumatic stress disorder.”
The Second Circuit affirmed. The court revisited the scope of harm that constitutes a grave risk under Article 13(b), observing,
[A]t one end of the spectrum are those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child’s preferences; at the other end of the spectrum are those situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation. The former do not constitute a grave risk of harm under Article 13(b); the latter do.
At the second trial in district court, mother presented expert testimony that the children would suffer psychological harm. That testimony was uncontroverted, as father produced no contrary evidence on the extent of any likely harm. Consequently, the Second Circuit affirmed the trial court’s findings of grave risk that could not be ameliorated by any known measures.
Blondin II went on to reiterate the substance of its holding in Blondin I by explaining,
We reiterate this requirement here: In cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country. Second, we do not read Friedrich as narrowly as the District Court seems inclined to do. As we have explained, in the instant case we confront a situation involving allegations of serious abuse and in which the authorities, through no fault of their own, may not be able to give the children adequate protection. See Friedrich, 78 F.3d at 1069. Although the wording in Friedrich might seem somewhat narrow, we believe the facts in the case at bar fall within the second standard set forth in that opinion. See id. (noting that grave risk of harm exists “in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection”) (emphasis added).
. In re Application of Adan, 437 F.3d 381 (3rd Cir. 2006); Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir. 2005); Maurizio R. v. L.C., 201 Cal. App. 4th 616, 637–638 (2011).
. Danaipour v. McLarey (Danaipour II, 386 F.3d 289, 303 (1st Cir. 2004) (disagreeing that a court is required to make findings about the institutional capacity of a government to protect); Walsh v. Walsh, 221 F.3d 204, 219 (1st Cir. 2000); Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060, 1069 (6th Cir. 1996) (dicta); Simcox v. Simcox, 511 F.3d 594, 608 (6th Cir. 2007) (“Once the district court determines that the grave risk threshold is met, only then is the court vested by the Convention with the discretion to refuse to order return. It is with this discretion that the court may then craft appropriate undertakings. Given the intensely fact-bound nature of the inquiry, district courts should be allowed adequate discretion.”); Baran v. Beaty, 526 F.3d 1340 (11th Cir. 2008) (holding that the court is not required on finding of grave risk to also find that courts of habitual residence are incapable of protecting the child); Seaman v. Peterson, 766 Fed 1252 (11th Cir. 2014).
. Blondin v. Dubois, 78 F. Supp. 2d 283, 294 (S.D.N.Y. 2000).
. Id. at 295.
. Blondin v. Dubois (Blondin II), 238 F.3d 153, 162 (2d Cir. 2001).
. Id. at 163 n.11.
This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.
Mauvais v. Herisse, 772 F.3d 6 (1st Cir. 2014)
Habitual Residence | Acclimatization | Grave Risk
Father petitioned for return of his two children, aged five and nine, to Canada. Before 2010, the parties lived principally in Haiti, although mother lived for a time in France. Mother moved to Massachusetts in 2009, where the parties’ second child was born. Haiti experienced a disastrous earthquake in January 2010. Father, who was living in Haiti with the eldest child, moved with the child to Québec, Canada. Mother moved with the youngest child from Massachusetts to Montréal and joined father. The parties lived together for one year, at which time mother moved with the two children to another apartment in Montréal. The parties reunited approximately one year later.
While living in Montréal, the children visited with relatives on both sides of their family, attended church and Sunday school, and developed Québécois accents. The eldest child went to primary school, and the youngest was enrolled in full-time day care. The eldest child developed health problems, and both parents agreed that the child could be temporarily treated in the United States and returned to Canada by September 20, 2013. While in the U.S., the child lived with mother’s aunt in Massachusetts. The child was not returned as anticipated, and mother left Canada with the youngest child and moved in to her aunt’s home. She refused to return the two children to Canada.
The district court granted father’s petition for the return of the children, finding that the children’s habitual residence was Canada, and that there were no defenses to the petition.
The First Circuit affirmed.
Habitual Residence. The court noted that its inquiry into the habitual residence issue begins with consideration of the parents’ shared intent or settled purpose regarding their child’s residence and, secondly, evidence of the child’s acclimatization. Particularly in regard to younger children who lack the psychological means to decide their own habitual residence, the court looks to the “latest moment of the parents’ shared intent.” The court followed the majority of circuits in looking to the Mozes test: the acquisition of a new habitual residence requires a settled intention to abandon the former (although the court did not specifically mention the Mozes case).
The facts as found by the district court were that mother voluntarily, although reluctantly, moved to Canada, where she remained living with father for approximately ten months, after which mother separated from father, taking the children with her to a different apartment in Montréal. The parties again reconciled. This resulted in the children living in Canada for approximately three-and-one-half years before their removal to the United States. Although mother and father may not have initially agreed to select Canada as the children’s habitual residence, they did so at some later time in the three-and-one-half-year continuum. The district court found that for at least two years during this period of time, the parties were “content” to have the children remain in Canada.
Acclimatization. Quoting liberally from the First Circuit’s decisions in Sanchez-Londono v. Gonzalez, Neergaard-Colon v. Neergaard, and Darin v. Olivero-Huffman, Judge Torruella summarized the issue of acclimatization:
Factors evidencing a child’s acclimatization to a given place—like a change in geography combined with the passage of an appreciable period of time—may influence our habitual-residence analysis. In certain circumstances, a child can lose its habitual attachment to a place even without a parent’s consent if the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place. However, courts should be “slow to infer” that an established country of habitual residence has been abandoned, when the parents have not demonstrated a shared intent to do so. Relatedly, evidence of acclimatization is generally insufficient to establish a child’s habitual residence in a new country when contrary parental intent exists.
In this case, the evidence showed that the children had become acclimatized by virtue of the time they had spent in Canada, their relationship with extended family there, their school and church activities, and the development of local Québécois accents.
Grave Risk. Mother alleged that father had raped her on multiple occasions, sometimes in the presence of the children, and that a child from father’s previous relationship had exhibited sexually aggressive behavior toward one of the parties’ children and sexually acted out. Mother also presented the testimony of an expert witness that a return of the children to Canada would expose them to grave risk. Without discounting the severity of mother’s allegations, the district court found that mother’s allegations were largely general and vague, and essentially lacking in credibility due to mother’s actions as a whole. The court refused to accept that the factual situation in this case was like that in Walsh v. Walsh, where the First Circuit assumed Mrs. Walsh’s version of the facts to be true. Here, by contrast, it did not appear that the district court found mother’s assertions to be true. The court noted that although the district court did not find a grave risk based upon mother’s evidence, mother would be free to develop the facts before the Canadian courts in custody litigation.
. Mauvais v. Herisse, 772 F.3d 6, 11 (1st Cir. 2014) (citing Nicolson v. Pappalardo, 605 F.3d 100, 103–04 (1st Cir. 2010)).
. Id. at 12.
. 239 F.3d 1067 (9th Cir. 2001).
. 752 F.3d 533 (1st Cir. 2014).
. 752 F.3d 526 (1st Cir. 2014).
. 746 F.3d 1 (1st Cir. 2014).
. Mauvais v. Herisse, 772 F.3d 6 (1st Cir. 2014) (internal quotes, punctuation, and citations omitted).
. Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000).
Bader v. Kramer (Bader I), 445 F.3d 346 (4th Cir. 2006)
Bader v. Kramer (Bader II), 484 F.3d 666 (4th Cir. 2007)
Rights of Custody
The Bader cases deal with the establishment of rights of custody, and proof of the exercise of those custody rights in the petitioner’s case-in-chief. Bader I dealt with establishment of custody rights by operation of law (in this case German law). Bader II dealt with the degree of proof necessary to establish that custody rights were being exercised at the time of the child’s removal.
In Bader I, the Fourth Circuit reversed the finding of the district court that father did not have enforceable custody rights. The family, consisting of father, mother, and child, had lived in Germany throughout their marriage, the birth of the child, and subsequent divorce proceedings. Although the parties were divorced, and the German court adopted a visitation schedule for father, the court made no decision about mother and father’s custody rights. As a consequence, pursuant to German law, both mother and father retained parental responsibility for the child. The Fourth Circuit remanded the case to the district court to determine whether father was actually exercising his custody rights at the time of the child’s removal and whether any other defenses applied to the case.
Bader II principally dealt with the concept of whether a parent is actually exercising his or her custody rights at the time of the wrongful removal or retention. This issue was raised in connection with the Convention’s requirement that proof of the “exercise” of custody rights must be shown as part of a petitioner’s case-in-chief. Following the language of Friedrich II, the Circuit adopted the “nearly universal” standard:
[W]e will “liberally find ‘exercise’ whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.
* * *
Under this approach, “a person [who] has valid custody rights to a child under the law of the country of the child’s habitual residence . . . cannot fail to ‘exercise’ those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.” 
The facts of Bader showed that the exercise of custody rights was irregular. The child was born in 1999, and after the parents separated in August 2000, the child lived exclusively with her mother. Three months after the parties’ separation, father was arrested and incarcerated for a little over two years. During the first six months of his incarceration, mother took child to visit with father. Shortly after father’s release from prison in December 2003, he took the child for a three-day visit, and later the same month for an eight-day ski vacation. Father also had the child for an overnight visit in April. Father paid child support when he was ordered to do so. Within days of the last visit, mother absconded with the child to the United States. From the foregoing, the circuit court found that father had not “clearly and unequivocally” abandoned the child, and thus, was exercising his custodial rights at the time of the child’s wrongful removal.
Note that the issue of exercise of custodial rights may arise in two different contexts under the Convention: (1) As in this case, a petitioner must show that custody rights were being exercised as part of his or her case-in-chief, and (2) petitioner’s lack of custody rights may be raised as a defense to an action for the return of the child under Article 13(a). The Fourth Circuit found that even though the district court did not specifically rule on mother’s 13(a) defense, its findings that father had demonstrated “exercise” as part of his case-in-chief were sufficient to defeat mother’s contention that father failed to show that he was actually exercising his custodial rights at the time of the removal of the child.
. Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060, 1065 (6th Cir. 1996).
. Bader v. Kramer (Bader II), 484 F.3d 666, (4th Cir. 2007) (quoting Friedrich II, 78 F.3d at 1065–66).
. International Child Abduction Convention art. 13, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 98 (“Notwithstanding the provisions of the preceding article, the judicial or administrative authority of the requested state is not bound to order the return of the child if the person, institution, or other body that opposes its return establishes that—a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention.”).