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March 13, 2016

What are the differences between access rights and custody rights?

A person with only access rights (the equivalent of “visitation rights”) cannot maintain a petition for the return of a child. Only parents with rights of custody to the child may petition for the return of an abducted child.1

March 9, 2016

Do the doctrines of abstention and removal apply to Hague Convention cases?

The International Child Abduction Remedies Act (ICARA), 22 U.S.C. §§ 9001 et seq., provides for original concurrent jurisdiction in both federal and state courts.1 Dual jurisdiction allows issues to be raised about the interface between federal and state courts, including abstention and removal.

Three types of abstention have been addressed in the cases:

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March 5, 2016
James D. Garbolino

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

Equitable Tolling | Return Despite Article 12 Defense | Delay | Settlement

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March 5, 2016
James D. Garbolino

Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir. 2005)

Grave Risk | Domestic Violence

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March 5, 2016
James D. Garbolino

Souratgar v. Lee, 720 F.3d 96 (2d Cir. 2013)

Article 20 | Domestic Violence | Degree of Violence | Grave Risk to Child | Syariah Law

This case deals in part with the claim that the prospect of having to litigate custody in Syariah courts violates the provisions of Article 20, prohibiting the return of children if the return would be contrary to the protection of human rights and fundamental freedoms. There is also a substantial discus­sion as to what constitutes domestic violence sufficient to war­rant a refusal to return a child.

March 5, 2016
James D. Garbolino

Sanchez v. R.G.L., 761 F.3d 495 (5th Cir. 2014)

Unaccompanied Alien Children | Standing to Appeal

Facts

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March 5, 2016
James D. Garbolino

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

Summary Judgment | Sua Sponte Orders

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March 4, 2016
James D. Garbolino

Gomez v. Fuenmayor, 812 F.3d 1005 (11th Cir. 2016)

Grave Risk | Domestic Vio­lence

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

Facts

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March 1, 2016

Assistance to Other Nations - IJR brochure

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February 25, 2016
James D. Garbolino

This is my first Hague Convention case. What do I do?

1. What amounts to a prima facie case for return?

The 1980 Hague Convention provides that the court shall order a child’s physical return to his or her habitual residence where a child 

    •   is under age of sixteen and
    •   has been wrongfully removed 
    •   from his or her habitual residence 
    •   in violation of the custody rights of the left-behind parent.

The burden of proof for the prima facie case is a preponderance of the evidence.

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