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Mootness | Stays | Expeditious Handling

The primary question presented in this case is whether an appeal from an order of a U.S. court returning a child to his or her habitual residence is moot once the child has been physically returned to the habitual residence and is no longer present in the United States. Overruling Bekier v. Bekier,[1] the Supreme Court held that the return of a child to his or her habitual residence pursuant to an order of a trial court does not render an appeal from that order moot.


Father and mother had a child in Germany. Mother was a citizen of the United Kingdom and father was a U.S. citizen in the military. Father was deployed to Afghanistan. Mother and the child went to Scotland. After father’s tour of duty in Afghanistan he was transferred to Alabama. Mother and the child then relocated to Alabama to be with father. Father then filed for divorce and custody in Alabama. Due to an incident where she was arrested for domestic violence, mother was deported back to the United Kingdom, and the child remained with father. Mother thereupon filed a petition in U.S. district court requesting the child’s return to Scotland. The district court found that the child’s habitual residence was in Scotland and granted the petition. Mother immediately left for Scotland with the child. On father’s appeal to the Eleventh Circuit, the court dismissed the appeal as moot, on the grounds that once a child has been taken to a foreign country, U.S. courts are powerless to grant relief.


Mootness. In this case, both parties continued to actively pursue their own actions for custody of the child—mother in Scotland, and father in Alabama state courts. Father’s custody action in Alabama was subsequently dismissed for lack of jurisdiction.

Federal courts have the power to act only in “Cases” and “Controversies.”[2] A case is not moot so long as the parties have a “concrete interest, however small, in the outcome of the litigation.”[3] A case becomes moot only where it is impossible for a court to grant any effectual relief to the prevailing parties.[4] The Supreme Court found that the Chafin case was not moot, as “concrete adverseness” existed: both parties continued to disagree over the place of the child’s habitual residence, and father contested the award of $94,000 in attorneys’ fees to mother accrued as a result of the Hague litigation.

The Court next addressed whether a reversal and remand would amount to effective relief. Mother argued that the case was moot because the district court lacked the authority to order the return of the child to the United States. The Court rejected this argument because it conflated the merits with mootness. Whether father’s request for relief was unlikely to succeed had no bearing on whether the case was actually moot. Mother further contended that even if the Eleventh Circuit dismissed the case for mootness, the issuance of an order to return the child would have no effect because the Scottish courts would ignore such an order. The court dismissed this argument as well, noting that U.S. courts had continuing personal jurisdiction over mother and could make orders and enforce them with sanctions.

Although the Court recognized that mother’s compliance with a re-return order was uncertain, this uncertainty would not render the case moot. The Court pointed to cases where the insolvency of a defaulting party would not moot a claim for damages and instances where foreign nations may or may not comply with a U.S. court judgment. The parties had a “concrete interest” in the outcome of the case, even if there was uncertainty about whether one party would comply with the re-return order.

Stays. On the question of procedure, the Court recognized that “shuttling children back and forth . . . across international borders” may be detrimental and contrary to the Convention’s aspiration of promoting a child’s prompt return. The Supreme Court noted that lower courts possessed the “familiar judicial tools of expediting proceedings and granting stays where appropriate.” If Hague cases were to become moot upon the return of children to their habitual residence, stays may be granted as a matter of course so that appellate rights would not be forfeited. If a stay is entered to preclude mootness, the goal of prompt return would be undermined, children would endure delays in readjusting to their habitual residence, and the number of appeals would increase.

The Court applied the factors courts traditionally invoke when petition for a stay is considered:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.[5]

Expedited Proceedings. Finally, the Court reaffirmed the importance of ensuring expeditious proceedings:

In every case under the Hague Convention, the well-being of a child is at stake; application of the traditional stay factors ensures that each case will receive the individualized treatment necessary for appropriate consideration of the child’s best interests.

Importantly, whether at the district or appellate court level, courts can and should take steps to decide these cases as expeditiously as possible, for the sake of the children who find themselves in such an unfortunate situation. Many courts already do so.[6]

[1]. 248 F.3d 1051 (11th Cir. 2001).
[2]. U.S. Const. art. III.
[3]. Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (quoting Knox v. Service Employees, 132 S. Ct. 2277, 2287 (2012)).
[4]. Knox, at 2287.
[5]. Chafin, at 1027 (quotation marks omitted).
[6]. Id.

This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.

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Interpreting the Convention | Custody Rights | Ne Exeat Clauses[1]

In Abbott v. Abbott[2] the Supreme Court held that a ne exeat[3] order confers a right of custody upon the left-behind parent, entitling that parent to maintain an action under the Convention. This decision resolved a circuit split over the implications of ne exeat orders.[4]


Father and mother engaged in custody litigation in Chile. Pursuant to a Chilean decree, mother was awarded daily care and control of the child and father was granted visitation. Under Chilean law, once a request for a visitation order is granted, a ne exeat order requiring father’s consent for removal of the child from Chile enters into force. In violation of the ne exeat order, mother took the child to Texas and commenced divorce and child custody proceedings there. Father’s petition for return of the child was denied by the district court. On appeal, the Fifth Circuit affirmed the district court’s decision.


In reaching its decision, the Supreme Court examined several factors.

The Text. The Court first focused upon the language of the Convention in Article 5: “‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” The ne exeat provision in Chilean law conferred a joint right to determine the child’s country of residence. The Court found this to be “a right of custody under the Convention.”[5]

Treaty Interpretation by Central Authority. The Court observed that the State Department has long interpreted a ne exeat clause to confer “rights of custody” within the meaning of Article 5. The interpretive opinion of the executive branch is entitled “great weight”[6] and “[t]here is no reason to doubt that this well-established canon of deference is appropriate here.”[7]

Reliance upon Sister State Interpretation. The Court accorded “considerable weight”[8] to opinions of other signatory nations on this issue. The acceptance of ne exeat clauses establishing custody rights found broad acceptance in international case law, including decisions from the English High Court of Justice, the House of Lords, Israel, Austria, South Africa, and Germany.[9]

Purposes of the Convention. The Hague Convention was intended to protect the custody rights of the left-behind parent and discourage the abducting parent from engaging in international forum shopping. The Court quoted the dissenting opinion in Croll, where then-Second Circuit Judge Sonia Sotomayor made this observation:

The Convention should not be interpreted to permit a parent to select which country will adjudicate these questions by bringing the child to a different country, in violation of a ne exeat right. Denying a return remedy for the violation of such rights would “legitimize the very action—removal of the child—that the home country, through its custody order [or other provision of law], sought to prevent” and would allow “parents to undermine the very purpose of the Convention.” Croll, 229 F. 3d, at 147 (Sotomayor, J., dissenting).[10]

Need for Consistency of Interpretation. The Supreme Court also advised that the Convention should be interpreted with a view toward establishing consistency among signatory states.[11] This is especially true now that ninety-three countries have adopted the Hague Convention.[12]

The Court observed that the interpretation of the Convention on a

uniform text-based approach ensures international consistency in interpreting the Convention. It forecloses courts from relying on definitions of custody confined by local law usage, definitions that may undermine recognition of custodial arrangements in other countries or in different legal traditions, including the civil-law tradition.[13]

[1]. For a more detailed analysis of the Abbott decision, see James D. Garbolino, The United States Supreme Court Settles the Ne Exeat Controversy in America: Abbott v. Abbott, 59 Int’l & Comp. L.Q., Oct. 2010, at 1158–67.
[2]. 560 U.S. 1 (2010).
[3]. A ne exeat order typically restrains a parent, or both parents, from removing a child from the court’s jurisdiction or from transporting a child across an international frontier. However, this prohibition is not absolute: if permission to remove the child is unreasonably withheld, or a court determines that good cause for continued restraint no longer exists, the ne exeat order may be vacated by a court of competent jurisdiction.
The Fourth and Ninth Circuits followed the Second Circuit decision in Croll v. Croll, 229 F.3d 133 (2d Cir. 2000); see Fawcett v. McRoberts, 326 F.3d 491 (4th Cir. 2003); Gonzales v. Gutierrez, 311 F.3d 942 (9th Cir. 2002). The Eleventh Circuit, in contrast, held that a ne exeat provision in a Norwegian custody agreement conferred a right that would satisfy the Convention’s definition of “custody rights.” Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004).
[5]. Abbott, 560 U.S. at 7.
[6]. Citing Sumitomo Shoji America, Inc., v. Avagliano, 457 U.S. 176, 184–85 n. 10 (1982).
[7]. Id. at 12.
[8]. Abbot, 560 U.S. at 16 (citing El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 176 (1999) (quoting Air France v. Saks, 470 U.S. 392, 404 (1985))).
[9]. The Court continued,

It is true that some courts have stated a contrary view, or at least a more restrictive one. The Canadian Supreme Court has said ne exeat orders are “usually intended” to protect access rights. Thomson v. Thomson, [1994] 3 S.C.R. 551, 589–590, 119 D.L.R. (4th) 253, 281; see D.S. v. V. W. [sic], [1996] 2 S.C.R. 108, 134 D.L.R. (4th) 481. But the Canadian cases are not precisely on point here. Thomson ordered a return remedy based on an interim ne exeat order, and only noted in dicta that it may not order such a remedy pursuant to a permanent ne exeat order. See [1994] 3 S.C. R. [sic], at 589–590, 119 D.L.R. (4th), at 281. D.S. involved a parent’s claim based on an implicit ne exeat right and, in any event, the court ordered a return remedy on a different basis. See [1996] 2 S.C. R. [sic], at 140–141, 142, 134 D.L.R. (4th), at 503–504, 505.

Abbott, 560 U.S. at 17.
[10]. Abbott, 560 U.S. at 21.
[11]. See Silberman, Linda J., Interpreting the Hague Abduction Convention: In Search of a Global Jurisprudence, 38 U.C. Davis L. Rev. 1049 (2005). The expansion of signatories to the Convention has resulted in a mixture of legal systems based upon common-law, civil-law, Islamic, Judaic and various other combinations of the foregoing.
[12]. Ninety-three countries have ratified, acceded, or succeeded to the Convention. Of those, the treaty is “in force” between the United States and seventy-three other countries. The last country to have ratified the Convention was Japan, when their ratification become effective April 1, 2014.
[13]. Abbot, 560 U.S. at 12.

This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.

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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.”[1]

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[[2]] or White[[3]], 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.[4]

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[[5]] 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[[6]] 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.[7]

[1]. Redmond v. Redmond, 724 F.3d 729, 735 n.1 (7th Cir. 2013).
[2]. Barzilay v. Barzilay, 600 F.3d 912 (8th Cir. 2010).
[3]. White v. White, 718 F.3d 300 (4th Cir. 2013).
[4]. Redmond, 724 F.3d at 741.
[5]. Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001).
[6]. Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995).
[7]. Redmond, 724 F.3d at 745–46.

This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.

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Abstention | Child Well Settled | Equitable Estoppel | Delay

This case involves the lapse of a substantial period of time between the disappearance of the children and their discovery, and addresses the issue of active concealment by the abducting parent. Although the court did not specifically discuss the issue of equitable estoppel, return of the children was ordered due to the father’s fraudulent conduct—conduct that negated a finding that the children were well settled.


A husband and wife lived in Germany with their two children. When their marriage ended, they participated in custody litigation in the family court in Germany. While the case was pending with temporary court orders, the father fraudulently obtained passports for the children and absconded with them to Spain and then to the United States. The mother did not know the children’s whereabouts. The father stayed with the children’s paternal grandmother near Augusta, Georgia, and then moved with the children to a home purchased by the grandmother in nearby South Carolina. The home was purchased, but the ownership of the home was concealed due to grandmother’s agreement not to receive actual title to the home for twenty years.

Over the next two-and-one-half years, the father transacted all business in cash, enrolled the children in a private school, drove a car registered to his mother, and only worked for his stepfather. The father reported no income and paid no taxes during 1996 and 1997. Meanwhile, the mother obtained an award of custody of the children in Germany. The father filed for a divorce in South Carolina, but never served the mother. He obtained an order from the South Carolina court granting him sole temporary custody of the children.

The mother enlisted the assistance of multiple state, national, and international agencies in an effort to locate her children. Finally, local law enforcement obtained permission to place a wiretap on the grandmother’s phone and through the wiretaps were able to locate the children. The children were detained by law enforcement, and the mother immediately left Germany for the United States. Within a week of locating the children, the mother commenced an action for the return of the children in state court. Due to the inability of local courts to hear the action on an expedited basis, the mother filed an action in federal district court in Augusta.


Abstention. The father took the position that the federal court should abstain under the Colorado River doctrine;[1]however, the district court declined to abstain in favor of the South Carolina state court proceedings. The Eleventh Circuit noted that abstention is the exception rather than the rule, and found that as a practical matter, the South Carolina court was unable to proceed expeditiously, and the federal court was prepared to so proceed.[2]

Children Well Settled. The father also argued that due to the passage of one year from the time of wrongful removal until the filing of a petition, that the children were well settled in their new environment. The district court found that the one-year limitation in Article 12 had been “equitably tolled,” so that the defense did not apply. Although the Eleventh Circuit avoided the equitable tolling issue,[3] it found that the children were not well settled due to the father’s active concealment of the children and other fraudulent activities, noting that he could face criminal prosecution for his conduct.

The court explained that the very act of concealing a child can contribute to a finding that the child is not well settled. As the Supreme Court observed in Lozano v. Montoya Alvarez,

[n]or is it true that an abducting parent who conceals a child’s whereabouts will necessarily profit by running out the clock on the 1-year period. American courts have found as a factual matter that steps taken to promote concealment can also prevent the stable attachments that make a child “settled.” See, e.g., Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347, 1363–1364 (M.D. Fla. 2002) (children not settled when they “lived in seven different locations” in 18 months); Wigley v. Hares, 82 So. 3d 932, 942 (Fla. App. 2011) (“The mother purposely kept him out of all community activities, sports, and even church to avoid detection by the father”); In re Coffield, 96 Ohio App. 3d 52, 58, 644 N.E.2d 662, 666 (1994) (child not settled when the abducting parent “was attempting to hide [child’s] identity” by withholding child from school and other organized activities). Other signatories to the Hague Convention have likewise recognized that concealment may be taken into account in the factual determination whether the child is settled. . . . Equitable tolling is therefore neither required by the Convention nor the only available means to advance its objectives.[4]

[1]. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).
[2]. “The district court, on the other hand, was prepared to, and did, expedite the ICARA petition as required by ICARA. The ICARA petition was filed in the district court on December 3. The district court conducted two full days of evidentiary hearings on December 12 and 19 and heard closing arguments on December 22, after which the district court immediately dictated comprehensive findings of fact and conclusions of law, covering sixty-four pages of transcript in the record, and entered final judgment. This is what ICARA contemplates.” Id. 943–944.
[3]. The issue was later resolved by Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014), wherein the Supreme Court held that the concept of equitable tolling was not available in Hague Convention cases.
[4]. Id. at 1236.

This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.

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Abstention | Habitual Residence

Abstention is not appropriate in a Hague case if the prior proceeding did not include the opportunity to litigate the Hague Treaty issues. The Barzilay cases also explain that it is the actual circumstances of a child’s life that establish habitual residence, not the wishes of a party.

Barzilay I

Mother and father are Israeli citizens, as are their three children, although the younger two children are also American citizens. In 2001 the family moved from the Netherlands to Missouri. Mother and the children lived there since that time. In 2005 the parties obtained a divorce decree from a Missouri state court awarding the parties joint custody of the children. The divorce decree provided that in the event one of the parents repatriated to Israel, the other parent would “forthwith” relocate to Israel with the minor children. When father repatriated to Israel, mother remained in Missouri. In June 2006 mother took the children to Israel for a visit that was to end on July 9, 2006. After the children’s arrival, father filed a request with an Israeli court blocking the minor’s exit, alleging that mother had violated the divorce decree by refusing repatriation. Mother agreed to a consent decree providing that

  • Mother would repatriate with the children by August 1, 2009;
  • The agreement was irrevocable, and constituted the only authority regarding the child’s immigration, repatriation, and custody;
  • Mother would not file custody proceedings in any place other than Israel, and if she did, the action would be transferred to Israel;
  • If the children were not returned pursuant to the agreement, her actions would constitute abduction under the Hague Convention; and
  • Mother was to pay $200,000 to father, and post her home in Missouri as collateral for the payment.

Mother later filed an affidavit in district court indicating that she only signed the agreement so that she could leave Israel with the children, and that she had no intention of abiding by its terms.

In December 2006 father obtained a judgment In Israel finding mother in contempt for refusing to permit the children to visit Israel. The contempt judgment was affirmed on appeal. While the Israeli contempt proceedings were going on, mother filed a petition in Missouri state court to modify the prior divorce decree, seeking to restrict father’s visitation and prevent the enforcement of the Israeli consent decree. Father specially appeared in the Missouri action, but only for the purpose of challenging jurisdiction. He did not file a petition for return in the Missouri action. Father’s challenge to jurisdiction was denied.

Father then filed a petition in federal court for return of the children to Israel. The district court abstained from hearing the case, pursuant to Younger v. Harris,[1] on the basis that father had an adequate opportunity to raise his Hague Convention claims in state court.


Abstention. The Hague Convention requires that custody proceedings be stayed pending the determination of the issues in a Hague Convention case. The court acknowledged that the Hague Convention requires that custody proceedings be stayed pending the determination of the Hague Convention issues. As such, the existence of a pending state custody proceeding is not grounds for Younger abstention. This is especially so since both father and mother had obtained custody decrees from Israel and Missouri, respectively, thus positioning the court hearing the Hague case to decide what court was appropriate to hear and decide custody issues.

The court further noted that although the Hague Convention was mentioned during the course of both the Israeli and Missouri custody proceedings, neither party put before the respective courts a request for return of the children. As such, the existing Missouri court proceeding did not present an adequate opportunity to litigate the Hague issues, and abstention was inappropriate. The case was remanded to the district court to make a determination on the merits of the father’s Hague petition.

Barzilay II

Habitual Residence. On remand, the district court found that the United States was the children’s habitual residence and dismissed father’s petition requesting that the children be returned to Israel. Father appealed, principally raising the effect of the repatriation provisions of the Missouri decree and the Israeli consent decree, contending that those documents established conclusively that the children’s habitual residence was Israel.

The Eighth Circuit affirmed. The children had lived for approximately five years in Missouri prior to the time father alleged that they were wrongfully retained. Judgments of foreign courts are entitled to full faith and credit if the foreign court actually adjudicated a Hague claim in conformity with the requirements of the Hague Convention.[2]

Importantly, the Eighth Circuit ruled that habitual residence may not be determined by an agreement of the parties or “by wishful thinking alone”:[3] “The notion that parents can contractually determine their children’s habitual residence without regard to the actual circumstances of the children is thus entirely incompatible with our precedent.”[4]

Habitual residence determinations are factually intensive issues. It would be inappropriate to allow parental agreements to supplant the factual inquiry, notwithstanding that parental intent may be relevant to the issue of habitual residence.

Editor’s Note: The Eighth Circuit is one of the circuits that looks to both issues of parental intent and the circumstances surrounding the child. Circuits favoring this approach tend to follow a modified test first enunciated in the Sixth Circuit’s seminal case of Friedrich I, which calls for courts to direct focus on the “past experiences of the child, not the intentions of the parents.” Courts favoring the question of habitual residence from this “child-centered” approach emphasize the facts surrounding the child’s degree of settlement, and relegate the question of parental intent to a subordinate role.

Circuits following the Ninth Circuit’s Mozes rationale place initial focus on parental intent vis-à-vis the acquisition of a new habitual residence or the abandonment of the old habitual residence. Under this approach the first inquiry when deciding whether a new habitual residence has been acquired is, “Did the parents demonstrate a shared intention to abandon the former habitual residence?” The second question in the Mozes analysis is whether there has been a change in geography for an “appreciable period of time” that is “sufficient for acclimatization.”

[1]. Younger v. Harris, 401 U.S. 37 (1971).
[2]. Where a foreign court departs from the requirements of the Hague Convention, a Hague determination by that court is not entitled to full faith and credit. See, e.g., Carrascosa v. McGuire, 520 F.3d 249, 262–63 (3d Cir. 2008).
[3]. Citing to Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001).
[4]. Barzilay II, 600 F.3d at 920–921.

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Father, a member of the U.S. military was sta­tion­ed in Germany from 2000 to 2010. He and his wife had two children, born in 2000 and 2005. Aside from a one-year stay in Tennessee, the fam­ily spent the remainder of their time in Ger­ma­ny. In 2010 father was transferred to North Ca­rolina, so the family moved to the United States. Mother took the children back to Ger­ma­ny in mid-July of 2011 with father’s permission. Father purchased roundtrip tickets with a return date for August 11, 2011. Mother refused to re­turn from Germany, alleging that father con­sent­ed to her and the children remaining in Germany if she chose to stay, and he would attempt to re­lo­cate back to Germany. Father contended that the trip was a one-month vacation and that he did not consent to a permanent move.

First Hague Convention Proceeding: Germany, 2011. Father petitioned in a German court for return of the children. The trial court denied father’s petition for return on the ba­sis that he had abused one of the children, sustaining mother’s 13(b) defense. On fa­ther’s appeal to a higher court, the appellate court denied the petition on the grounds that father had consented to the removal of the children to Germany, thus upholding mo­ther’s “consent” defense.

The children remained with mother in Germany over the next two years. In August 2013, mother allowed the children to travel to the United States for a vacation. Father signed a document promising to return the children on or about August 26, 2013. Father did not send the children back as promised, citing concerns over the children’s dental care and their schooling. He enrolled the children in school in North Carolina.

Second Hague Convention Proceeding: United States, 2013. Mother filed an action for return of the children in district court. The district court found that mother did not wrong­fully remove the children to Germany, and gave comity to the German decision. The district court further found that the children had acclimatized to life in Germany dur­ing their stay from 2011 to 2013, and found that the children’s habitual residence was in Germany. Father’s petition was denied. The Fourth Circuit affirmed.


Comity. The Fourth Circuit affirmed the district court’s extension of comity to the 2011 Ger­man decision denying the children’s return to the United States. The court adopted the Ninth Circuit’s test for analyzing the question of extending comity as stated in As­vesta v. Petroutsas[1]:

[W]e may properly decline to extend comity to the [foreign] court’s determination if it clearly misinterprets the Hague Convention, contravenes the Convention’s fun­damental premises or objectives, or fails to meet a minimum standard of reasonableness.

Standard of Review. The Fourth Circuit did not decide whether the standard for review for granting comity to a foreign decision was a de novo review or abuse of discretion, as the German decision would have passed a review on either grounds. The court fur­ther acknowledged that the Second Circuit, in Diorinou v. Mezitis,[2] held that when ac­cept­ing the ruling of a foreign court, the standard of review is de novo.[3] The court al­so acknowledged the Ninth Circuit’s holding in Asvesta[4] that previous case law in that cir­cuit suggested an “abuse of discrtetion” approach. The court in Asvesta, however, was not required to decide the issue, based upon its review that comity under either the de novo or abuse of discretion standard should not be granted to the Greek judgment be­fore it.

Failure to Make Finding on Habitual Residence. Father contended that in the 2011 proceedings, the German court failed to make a finding that Germany was the chil­dren’s habitual residence. The Fourth Circuit disposed of this argument, holding that a habitual residence determination was not critical since the German court found that fa­ther had consented to the children’s relocation to Germany. Whether the children’s ha­bitual residence was in the United States or in Germany would not have had bearing on the issue of whether father consented to the removal of the children. The court found no­thing in the law that required a finding of habitual residence before proceeding on to de­cide the case on a defense that did not depend on a finding of habitual residence.[5]

Sufficiency of the Evidence. Father argued that the German findings were un­reason­able and unsupported by the evidence. The Fourth Circuit held to the contrary, finding that there was sufficient evidence to show that father had consented to the children’s un­conditional removal to Germany, and that given the state of the evidence, “the Ger­man court’s decision was at least minimally reasonable.”[6]

[1]. 580 F.3d 1000 (9th Cir. 2009).
[2]. 237 F.3d 133 (2nd Cir. 2001).
[3]. Id. at 139–140.
[4]. See generally 580 F.3d 1000.
[5]. The court distinguished the instant fact situation from that in Asvesta, where the Greek court denied a return petition on the basis that the petitioner in that action was not exercising his custody rights at the time of removal. Because the interpretation of custodial rights depends upon the law of the habitual residence, a decision lacking reference to the law of the habitual residence would have been flawed. Smedley v. Smedley, 772 F.3d 184, 189–190.
[6]. Id. at 190.

This document is part of The Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.

In Print: Available for Distribution

The 1980 Hague Convention on the Civil Aspects of International Child Abduction is a treaty that governs judicial proceedings that are brought seeking orders for the prompt physical return of children who have been wrongfully taken or kept away from their "habitual residence." The treaty is in force between the United States and seventy-three other countries. State and federal courts have original concurrent jurisdiction to hear cases under the 1980 Convention. This guide discusses the purposes behind the adoption of the Convention along with a detailed explanation of its key provisions.  The second edition focuses on both federal and state case law interpreting the Convention and federal statutes that govern the handling of the cases in both state and federal courts. The guide offers practical suggestions for judges handling litigation under the Convention.

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Browne v. Bayless (Robert C. Broomfield, D. Ariz. 2:00-cv-1774)
Rival factions of Arizona’s Libertarian Party named different presidential nominees for the 2000 election, and the national party’s nominee was not the one selected to represent the party on the Arizona ballot. After unsuccessful state court litigation, the national nominee filed an action in federal court, which the district judge dismissed one week later. The action was barred by (1) the Rooker-Feldman doctrine, which states that among federal courts only the Supreme Court has appellate jurisdiction over state court proceedings; (2) Younger abstention, which avoids undue interference in state functions; (3) the plaintiffs’ failure to name indispensable parties; and (4) laches.
Topics: Getting on the ballot; matters for state courts; laches; party procedures.

One of many Case Studies in Emergency Election Litigation.

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Published by the Press of the People's Court (Beijing)

Translator: Maggie Shen

Acknowledges the Federal Judicial Center as publisher of the original work. The Federal Judicial Center cannot vouch for the accuracy of the translation.

Article title: not provided

Journal title: not provided

Date: PDF created 2/5/2015. Cover dated January 2014-1.


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