Federal Judicial Center

International Litigation Guide

The 1980 Hague Convention on the

Civil Aspects of International Child Abduction:

A Guide for Judges

Second Edition

Hon. James D. Garbolino

Federal Judicial Center

2015

This Federal Judicial Center publication was undertaken in furtherance of the 

Center’s statutory mission to develop educational materials for the judicial 

branch. While the Center regards the content as responsible and valuable, 

this publication does not reflect policy or recommendations of the Board of 

the Federal Judicial Center.
FIRST PRINTING
iii

Contents

Preface .................................................................................................vii

Executive Summary..............................................................................ix

Introduction ..........................................................................................1

I. The 1980 Convention ........................................................................5

A. Overview of the Convention.........................................................5

B. Purposes for Adoption of the Convention ....................................6

C. Basic Elements of the Case for Return..........................................7

D. Basic Elements of the Defenses to Return ....................................7

E. Legal Framework ..........................................................................9

1. Text of the 1980 Convention...................................................9

2. International Child Abduction Remedies Act........................10

3. Concurrent Jurisdiction .........................................................11

4. Role of the Central Authority ................................................11

F. Treaty Interpretation...................................................................12

1. Abbott Guidelines...................................................................13

a. Interpretation of the Convention Text................................13

b. Deference to Convention Purposes.....................................14

c. Executive Interpretation of Treaties....................................15

d. Sister State Decisions ..........................................................15

2. Pérez-Vera Report ..................................................................16

3. U.S. State Department Text & Legal Analysis .......................16

4. INCADAT...............................................................................17

G. Whether Both Countries Are Bound by the Treaty ....................17

II. The Case in Chief for the Return of a Child ...................................21

A. Summary.....................................................................................21

B. Burdens of Proof..........................................................................23

C. Wrongful Removal and Retention ..............................................26

1. Distinguishing Between Wrongful Removal and Wrongful 

Retention.................................................................................27

2. Anticipatory Violation and Wrongful Retention....................28

3. Retention by Ne Exeat Order..................................................29

4. Custody Rights.......................................................................30

a. Holders of Custody Rights..................................................30
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

iv

b. Article 15 Request...............................................................32

c. “Chasing Orders” ................................................................33

d. Effect of Subsequent Custody Orders.................................35

e. Methods of Establishing Custody Rights............................38

5. Rights of Custody Versus Rights of Access............................47

6. Ne Exeat Orders—Abbott v. Abbott .........................................48

D. Habitual Residence .....................................................................50

1. Habitual Residence—Division in the Circuits .......................53

a. Synopsis...............................................................................53

b. Majority View .....................................................................54

c. Minority View .....................................................................62

2. Settled Versus Acclimatized ...................................................64

3. Coercion and Physical Abuse.................................................68

4. Immigration Status.................................................................71

5. Asylum ...................................................................................73

6. The Habitual Residence of Infants.........................................74

7. Shuttle Custody......................................................................78

8. Military Families....................................................................80

E. Age of the Child ..........................................................................84

III. Defenses to the Petition for Return ...............................................87

A. Summary.....................................................................................87

1. Narrow Interpretation of Defenses ........................................88

2. Court May Order Return Even If Defense Established ..........89

B. Delay of More Than One Year.....................................................94

1. Child Settled in New Environment........................................95

2. Equitable Tolling....................................................................98

C. Consent and Acquiescence .......................................................101

1. Generally—Separate Defenses .............................................101

2. Consent by Participation in Custody Proceedings...............103

3. Stranded Parents ..................................................................105

D. Failure to Exercise Rights of Custody ......................................107

E. Grave Risk of Harm—Intolerable Situation..............................109

1. Defining Grave Risk and Intolerable Situation ....................110

2. Child Abuse..........................................................................113

3. Domestic Violence ...............................................................114

F. Violations of Human Rights and Fundamental Freedoms........117
Contents

v

G. Child’s Objection to Return......................................................120

1. Age and Maturity .................................................................123

2. Manner of Hearing Child’s Objection ..................................125

3. Generalized Desires Versus Particularized Reasons.............126

4. Children’s Standing to Intervene on Their Own Behalf.......127

H. The Effect of Asylum Proceedings............................................129

I. Nonstatutory Defenses: Equitable Defenses...............................130

1. Waiver..................................................................................130

2. Unclean Hands.....................................................................132

3. Fugitive Disentitlement........................................................133

J. Undertakings..............................................................................137

K. Exhausting All Possible Alternatives to Refusing Return—

Circuit Split..............................................................................143

IV. Issuing Orders of Return .............................................................149

A. Specificity: Time, Manner, and Date of Return ........................150

B. Mirror-Image Orders.................................................................150

C. Safe Harbor Orders ...................................................................151

D. Returns to Countries Other Than Habitual Residence.............152

E. Mootness and Stays...................................................................152

1. Mootness..............................................................................152

2. Stays .....................................................................................155

V. Procedural Issues ..........................................................................157

A. Appellate Standard of Review ...................................................157

B. Expeditious Handling Required ................................................161

1. Application of Federal Rules of Civil Procedure..................163

2. Expedited Discovery ............................................................164

3. Relaxed Rules for Admissibility of Documents....................164

C. Parallel Jurisdiction Issues........................................................165

1. Younger Abstention ..............................................................165

2. Colorado River Abstention....................................................167

3. Rooker-Feldman Doctrine .....................................................169

4. Removal................................................................................169

D. Comity ......................................................................................170

1. Hague Convention Orders of Other Nations.......................170

2. Enforcement of Foreign Custody Decisions ........................172
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

vi

E. Petitions for Access Only ..........................................................173

1. Making Access Orders..........................................................175

2. Interim Visits Pending Trial.................................................177

F. Contacting Judges in Foreign Jurisdictions ..............................178

G. Attorney Fees and Costs...........................................................181

1. Authority for Awards ...........................................................181

2. Amount of Awards...............................................................183

H. Findings of Fact Required ........................................................185

I. The Manner of Taking Evidence...............................................186

1. Taking Testimony by Telephone .........................................187

2. Decisions Based on Affidavits ..............................................187

3. Discovery..............................................................................188

4. Whether an Evidentiary Hearing Is Necessary ....................188

VI. Case Management........................................................................193

A. Preventing Further Removal or Concealment of the Child......193

1. State Laws Regarding Removal of Child from Home Without 

Notice...................................................................................194

2. Foster Care...........................................................................195

3. Bonds....................................................................................195

4. Deposit Passports.................................................................197

B. Establishing Timelines..............................................................197

C. Legal Representation ................................................................198

D. Narrowing the Issues for Trial..................................................199

E. Mediation ..................................................................................199

Appendix A: Text of the 1980 Convention .......................................201

Appendix B: International Child Abduction Remedies Act..............217

Appendix C: Checklist for Hague Convention Cases........................229

Appendix D: Countries Where Convention Is In Force with United 

 States...............................................................................................233

Table of Authorities...........................................................................235

Index..................................................................................................251
vii

Preface

The 1980 Hague Convention entered into force in the United States in 

1988. In the ensuing twenty-five plus years, child abduction litigation 

has produced over 150 appellate decisions and, within the last four 

years, three decisions from the U.S. Supreme Court.

This guide is designed to help federal and state judges deal with 

proceedings for the return of children under the 1980 Hague Convention. The first edition, published in 2012, was aimed at an audience 

primarily consisting of the federal judiciary. Bearing in mind that federal and state courts share concurrent jurisdiction over these unique 

cases, a greater emphasis has been placed on the inclusion of state 

court decisions in this edition. A review of the state appellate cases 

shows that an overwhelming number of state courts rely on the greater 

body of federal decisions. This reliance is likely the result, in part, of

the scarcity of precedent within the individual states combined with 

the wealth of authoritative precedent in the federal system.

Cases arising under the 1980 Convention present challenges to 

trial and appellate courts owing to unique legal concepts and the timesensitive nature of the proceedings. Recently, the Appellate and Civil 

Rules Committees of the Judicial Conference of the United States recommended that increased judicial education be focused toward expeditiously resolving Hague Convention cases as a first level of response.1 This guide is part of the Federal Judicial Center’s efforts toward fulfilling that goal.

Judge Jeremy D. Fogel

Director, Federal Judicial Center

 

1. See letter of Hon. Jeffrey S. Sutton in response to comments contained in the 

concurring opinion in Chafin v. Chafin, 133 S. Ct. 1027 (2013); Advisory Committee 

on Appellate Rules, Newark, N.J., Apr. 28–29, 2014, pp. 539–40.

ix

Executive Summary

The 1980 Hague Convention on the Civil Aspects of International 

Child Abduction is a treaty that governs proceedings for the prompt 

return of children who have been wrongfully taken or kept away from 

their “habitual residence.” The most typical situation that will trigger 

the operation of the Convention occurs when one parent relocates

with a child across an international border without the consent of the 

left-behind parent or without a court order permitting that relocation.

Proceedings under the Convention are civil, not criminal.2 The Convention is the only internationally recognized remedy that compels the 

actual return of a wrongfully abducted child. The 1980 Convention 

serves two primary purposes: first, to deter future child abductions;

and second, to provide a prompt and efficient process for the return of 

the child to the status quo that existed before the abduction.

A Hague Convention case is not a child custody case.3 Rather, a 

Hague Convention case is more akin to a provisional remedy—to determine if the child was wrongfully removed or kept away from his or 

her habitual residence, and, if so, then to order the child returned to 

that nation. The merits of the child custody case—what a parent’s 

custody and visitation rights should be—are questions that are reserved for the courts of the habitual residence. In the event that a parent has commenced a child custody proceeding in a U.S. state court, 

 

2. In 1993, Congress enacted the International Parental Kidnapping Crime Act

(IPKCA), 18 U.S.C. § 1204 (1993). This act provides felony criminal penalties for the 

removal or retention of a child from the United States with the intent to obstruct the 

lawful exercise of parental rights. Because the 1980 Hague Convention is only applicable when the treaty is in force between the two countries involved, IPKCA fills a 

void in the law regarding child abductions from the United States to a country where 

the 1980 Convention is not in force with the United States.

3. 22 U.S.C. § 9001(b)(4) reads, in part:

In enacting this chapter the Congress recognizes –

* * * * *

The Convention and this chapter empower courts in the United States to determine 

only rights under the Convention and not the merits of any underlying child custody 

claims. 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

x

that proceeding must be stayed pending outcome of the Hague petition for return of the child. See infra page 5.

The substantive law and fundamental elements of a cause of action 

for return of a child are found in the text of the Convention. The Convention is set forth in Appendix A on page 201. The procedural aspects of handling these cases are governed by the International Child 

Abduction Remedies Act (ICARA), 22 U.S.C. §§ 9001–9011. A copy of 

ICARA can be found in Appendix B, infra at page 217.

Courts may only entertain petitions for return of a child if the 

Hague Convention is in force between the two countries involved.

This is a fundamental jurisdictional requirement. The 1980 Convention went into effect in the United States on July 1, 1988, and as of this 

writing it is currently in force between the United States and 80 other 

countries. A list of those countries can be found in Appendix D, infra

at page 233. Additionally, the wrongful removal or retention of the 

child must have occurred after the date the treaty became effective in 

both countries. See discussion infra at page 2.

A quick checklist of key issues that arise in Hague cases is provided in Appendix C, infra at page 229, for use as a guide to issues that 

may arise.

Unique Concepts

Hague Convention cases have several unique aspects that distinguish 

them from other forms of litigation:

• Expeditious handling. The expected time frame for handling a 

Hague Convention case is six weeks. To meet the goal of 

promptly deciding the case, the Convention urges trial and appellate courts to use the most expeditious procedures that are 

available to hear and issue a ruling on the case. Courts have uniformly regarded the expeditious handling of these cases as essential. (See infra page 157.) In one reported case, the time from the 
Executive Summary

xi

filing of the initial petition in district court to a published affirmance in the circuit court occurred within 95 days.4

• Role of the executive branch. Each country that is a signatory to 

the 1980 Convention must designate a “Central Authority” to 

assist in the administration of the Convention. In the United 

States, the Central Authority is the U.S. State Department. Within the State Department, the Office of Children’s Issues is responsible for handling child abduction cases—both abductions 

to the United States (incoming cases) and abductions from the 

United States (outgoing cases). The role of the Central Authority 

includes locating children, securing the voluntary return of the 

child if possible, and cooperating with counterpart authorities in 

other countries. The Central Authority typically informs courts 

of the filing of a petition for a child’s return, and it acts as a conduit for official inquiries by a U.S. or foreign court as to the status of foreign law. In this capacity, the State Department may request, pursuant to Article 11 of the Convention, reasons for the 

delay of a case beyond six weeks in order to provide status reports to the Central Authorities of foreign states. This action 

does not constitute disregard for the doctrine of separation of 

powers—rather, the State Department is fulfilling its role as the 

Central Authority for the United States. See discussion infra at 

page 11.

• Administrative return. The 1980 Convention provides for an administrative alternative to court proceedings. A parent seeking 

the return of a child may make a formal request through the 

Central Authority of either the country of the child’s habitual 

residence or the Central Authority where the child is located. 

The Central Authority will make contact with the parent who 

has physical custody of the child and will attempt to negotiate a 

voluntary return of the child. The Central Authorities have no 

power to compel the return of the child. If efforts at voluntary 

return fail, the only remaining alternative under the Convention 

 

4. Charalambous v. Charalambous, 627 F.3d 462 (1st Cir. 2010). 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

xii

is to commence legal proceedings by filing a petition for the return of the child in the country where the child is physically 

present. See discussion infra at page 21.

• Reliance on foreign precedent. It is clear that courts may appropriately consider foreign precedent for the purpose of interpreting 

the Convention. In Abbott v. Abbott,

5 the Supreme Court recognized that the opinions of foreign courts interpreting the treaty 

were entitled to “considerable weight.” See discussion of the Abbott case infra at pages 12 and 48. For the benefit of the countries that are signatory to the Convention, the Hague Permanent 

Bureau maintains a website with a searchable database of significant foreign decisions concerning the interpretation of the 

Hague Convention. See infra page 17.

Elements of the Case for Return

A case begins with the filing of a petition for the return of a child. 

State courts and federal district courts have original concurrent jurisdiction to hear Hague Convention cases. Because of this parallel jurisdiction, issues of abstention or removal may arise. See discussion infra

at page 165.

A person or parent petitioning for the return of a child must show 

by a preponderance of the evidence that:

• a child under the age of 16

• has been wrongfully removed or retained

• from his or her habitual residence

• in violation of the custody rights of the left-behind parent.

If the parent petitioning for return of the child has proved the 

elements above, the court must order the return of the child, unless 

one of the defenses to return is established.

 

5. 560 U.S. 1, 130 S. Ct. 1983 (2010). 
Executive Summary

xiii

Some of the elements of the cause of action for return require definition:

• Wrongfulness. The removal to—or retention in—a foreign country is considered “wrongful” under the Convention if it amounts 

to a breach of the custody rights of the left-behind parent6according to the law of the country that is the child’s habitual residence. “Wrongfulness” also requires some preliminary evidence 

that the parent seeking the child’s return must have been actually exercising his or her rights of custody. See discussion infra at 

page 24.

• Custody rights. Custody rights are to be determined according to 

the law of the child’s habitual residence. The Convention sets 

out three methods of determining custody rights: by a showing 

that they arise (1) by operation of law, or (2) by judicial or administrative decision, or (3) by an agreement of the parties. The 

term custody rights means more than mere visitation rights or 

access

7 rights. Custody rights include rights relating to the care 

of the child and, in particular, the right to determine the child’s 

place of residence. In Abbott, the Supreme Court held that custody rights existed under the Convention where the left-behind 

parent had only visitation rights, but the taking parent violated a 

restraining order that prohibited the removal of a child across an 

international border. See discussion infra at page 30.

• Habitual residence. The term habitual residence is not defined by 

the Convention. In substance, the term refers to that place where 

a child has lived for a sufficient period of time for the child to 

have become settled. The term differs from the Uniform Child 

Custody Jurisdiction and Enforcement Act (UCCJEA) concept of 

“home state,” which requires a six-month residence for a state to

 

6. An institution may have rights of custody if that institution has the responsibility for the care and support of the child.

7. The term “access rights” is used in the 1980 Convention, but it is not a term 

commonly used in the United States. The term is synonymous with “visitation rights.” 

22 U.S.C. § 9002(7) (1988).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

xiv

acquire jurisdiction over child custody issues. The concept of 

habitual residence differs from domicile, in that domicile includes elements of future intent, citizenship, and nationality. See 

discussion infra at page 53.

There is a split among the circuit courts concerning the factors 

to look to in determining a child’s habitual residence and, in particular, the role that the intent of the parents plays in the acquisition of a new habitual residence. An apparent majority of the 

circuits follow the rationale of the Ninth Circuit opinion in Mozes v. Mozes.

8 That decision focuses on the question whether a 

child’s habitual residence has changed based on whether the 

parents have demonstrated a shared intention to abandon the 

former habitual residence and, if so, whether there has been a 

change in the child’s geographic location for a period of time 

that is sufficient for the child to become settled or acclimatized.

Other circuits, such as the Third, Seventh, and Eighth Circuits, 

place the primary focus of determining habitual residence on the 

degree that the child has become settled in his or her new environment. See discussion infra at page 53.

Defenses to Return

The Convention sets forth five defenses to petitions for return:

1. delay of over one year in bringing the petition for return (infra

page 94); 

2. consent or acquiescence to removal or retention of the child 

(infra page 101);

3. failure to exercise custody rights (infra page 107);

4. return would expose the child to a grave risk of harm (infra

page 109); and 

5. return would violate fundamental principles of human rights 

(infra page 117).

 

8. 239 F.3d 1067 (9th Cir. 2001). 
Executive Summary

xv

Although not technically set forth as a defense, the Convention 

vests courts with discretion to refuse to return a child if that child 

objects to being returned. Courts must consider both the age of the 

child and the extent of the child’s level of maturity in assessing the 

child’s objections to return. See discussion infra at page 120.

Two of the defenses—grave risk to the child and violation of fundamental principles of human rights—must be established by clear 

and convincing evidence. The remaining defenses are subject to proof 

by a preponderance of the evidence.

Defenses to return are subject to a narrow interpretation. Underscoring this concept of narrow interpretation, the Convention gives 

courts the discretion to order a child returned to his or her habitual 

residence despite a defense having been proven. See infra page 89.

One of the most frequently raised defenses is the “grave risk” defense. The Convention provides that a court may refuse the return of a 

child if “there is a grave risk that his or her return would expose the 

child to physical or psychological harm or otherwise place the child in 

an intolerable situation.” This broad language encompasses situations 

involving child abuse, domestic violence, return to a war zone, or circumstances where there is an unacceptable risk to the child’s safety.

This defense is not meant to trigger an examination of issues relating 

to the custody of the child, i.e., whether the welfare of the child would 

be better served in the custody of the left-behind parent or the abducting parent. Neither does the grave risk defense envision that a court 

will simply compare the benefits of the living conditions of a child in 

one country versus another. See discussion infra at page 113.

Managing the Case

Hague Convention cases require active case management. See discussion infra at page 193. Because these cases are to be handled in an 

expeditious manner, it is recommended that in federal courts, a Rule 

169 conference should be promptly scheduled so that a trial date may 

 

9. Federal Rule of Civil Procedure 16.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

xvi

be set and orders made for the completion of discovery. State courts 

should use similar procedures. Topics that are likely to be covered at 

the case-management conference include the following:

• the child’s current situation, including whether there is a risk 

of reabduction or concealment;

• a plan for discovery;

• the substantive issues likely to be raised at trial;

• the manner of taking evidence (e.g., by telephone, declaration 

or affidavits, or live testimony); 

• whether the case is appropriate for summary judgment; and

• estimates of the length of trial.

Legal Representation

There are no provisions for paying for court-appointed counsel in 

Hague Convention cases. For applicants who are seeking the return of 

children, the U.S. State Department will assist with identifying counsel 

who may be able to provide representation on a pro bono or reducedfee basis. See infra page 198.

Making Return Orders

A unique feature of the 1980 Hague Convention is the remedy—the 

actual physical return of the child to his or her habitual residence. If a 

court orders a child returned, that order may call for the enforcement 

of the order by the U.S. Marshals Service or any other relevant law 

enforcement organization. As such, return orders may be very specific 

as to the details of the child’s return. See discussion infra at page 149.

Undertakings, Mirror-Image Orders, and Safe Harbor 

Orders

In the context of a Hague Convention case, an “undertaking” is an

official promise or concession by a party to do something, or refrain 

from doing something. Undertakings may consist of offers for tempo-
Executive Summary

xvii

rary support or housing for the child and parent upon return to the 

habitual residence; agreements not to seek a custody modification in 

the courts of the habitual residence for a certain period of time; or

offers to pay the costs of transportation for the child’s return. There is 

disagreement among U.S. courts as to whether undertakings should be 

accepted as a condition of ordering a child’s return. See discussion 

infra at page 137.

Some courts may consider using “mirror-image” or “safe harbor”

orders as a condition of a child’s return. These orders may provide 

measures for the child’s protection in transit and upon return to the 

habitual residence. These orders typically contain provisions for counterpart orders to be entered in the child’s habitual residence so that

conditions attached to the child’s return may be enforced by the courts 

of that nation. See discussion infra at page 150.

Direct Judicial Communication

There is an emerging acceptance of judges directly communicating 

with their counterparts in foreign nations. Direct judicial communication may be helpful to resolve logistical issues concerning the return 

of a child. Sixty-two countries have designated one or more “International Hague Network Judges” to assist judges who wish to contact a 

foreign judge. These contacts usually deal with the details of foreign 

law, or the availability of resources to assist in the transition of a child 

back to the habitual residence. See infra page 178.

The number of return cases filed worldwide is increasing, as modern methods of communication and transportation contribute to the 

expanding ease of international travel and settlement.10 The United 

States enjoys a bourgeoning body of federal and state case law that 

deals with the 1980 Convention, as well as a number of issues subject 

to disagreement among the circuits. As additional nations become 

 

10. Nigel Lowe, Statistical Analysis of Applications made in 2008 under the 

Hague Convention of 25 October 1980 on the Civil Aspects of International Child 

Abduction, Hague Conference on Private International Law 2011.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

xviii

treaty partners, the number of legal systems that impact this area of 

the law will expand accordingly.

Figure 1. Distribution of Court Cases by Circuit, 1988–2014
1

Introduction

This guide provides an overview of the 1980 Hague Convention on the 

Civil Aspects of International Child Abduction,11 focusing on the legal 

and procedural issues judges are likely to encounter during litigation 

under this treaty. As the statistics below indicate, the number of applications for return represents a significant number of cases over a period of time. The actual number of litigated Hague Convention cases,

however, is smaller in comparison to other civil and criminal cases, so 

it is difficult to become proficient with handling Hague cases from 

experience alone. This publication will discuss the purposes served by 

the Convention, describe its provisions, review relevant statutory and 

case law, and offer practical suggestions for managing Hague cases.

Figure 2. Total Applications from Signatory Nations for Return 

Received Through U.S. State Department, 2008–2014

Source: U.S. State Department, Office of Children’s Issues. 

 

11. Hague Convention on the Civil Aspects of International Child Abduction, 

Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501 [hereinafter “Convention”]. 

343 

243 

299 

256 

305 

334 352 

0 

50 

100 

150 

200 

250 

300 

350 

400 

2008 2009 2010 2011 2012 2013 2014 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

2

The Convention was signed by the United States in 1981 and ratified by Congress in 1986. Implementing legislation was passed in 

1988. The treaty entered into force with other signatory nations on 

July 1, 1988.12 As of August 2014, ninety-two nations have ratified or 

acceded to the treaty. It is in force between the United States and 

eighty of those countries.13

The Convention sets out an expeditious process for the return of a 

child when that child has been wrongfully removed or retained from 

his or her habitual residence in violation of the custody rights of the 

left-behind parent. The remedy provided by the Convention—the

physical return of the child—seeks to restore the child’s status quo

that existed before the abduction.

Congress granted concurrent, original jurisdiction over Convention cases for both federal and state courts. Although this guide will 

focus primarily on federal case law, state court decisions will be discussed when helpful.

14 Because the Convention is an international 

instrument, decisions from courts of other contracting nations will be 

noted if relevant.

15

 

12. Hague Convention on International Child Abduction Enters Into Force on 

July 1, 1988, 53 Fed. Reg. 23,843-01 (June 24, 1988).

13. The Convention automatically enters into force between countries that ratify 

the treaty and were members of the Hague Conference on Private International Law at 

the time of approval by the member states on October 25, 1980. The accession of all 

other nations must be specifically accepted by a nation in order for the treaty to enter 

into force between those two nations. For a more complete description of the process 

involved, see § I.G. Whether Both Countries Are Bound by the Treaty, infra at 17. 

Appendix D, infra at 233, lists the countries with which the treaty is currently in force 

with the United States.

14. Reference to unreported dispositions is occasionally made to highlight how 

courts have approached certain issues. Restrictions may apply to the citation of these 

cases for precedential value, based on local circuit rules in existence prior to 2007. 

Cases arising after January 1, 2007, may be cited pursuant to Federal Rule of Appellate 

Procedure 32.1.

15. See generally Abbott v. Abbott, 560 U.S. 1, 130 S. Ct. 1983, 1993 (2010)

(quoting Air France v. Saks, 470 U.S. 392, 105 S. Ct. 1338 (1985) (“In interpreting 

any treaty, ‘[t]he “opinions of our sister signatories” . . . are “entitled to considerable 

weight.”’” El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 176 (1999)).
Introduction

3

This guide is structured sequentially, addressing topics in the order that judges are likely to encounter them. It commences with an 

overview of the Convention, summary of its provisions, and guide to 

interpretation. The next sections deal with the essential elements that 

make up a case for the return of a child, along with the defenses to 

return. Subsequent sections address orders of return, procedural issues 

that may arise, and a discussion of practical matters relating to case 

management. Appendices include the text of the Convention, the implementing legislation for the United States—the International Child 

Abduction Remedies Act16 (ICARA)—a list of countries with which

the treaty has entered into force with the United States, and a checklist 

that may be used as a quick reference guide.

As a final introductory note, courts should bear in mind that “a

Hague Convention case is not a child custody case.”

17 On the contrary, 

all relevant authorities caution courts not to become mired in the 

question of which parent is the “better” parent.

18 A foundational 

premise of the Convention is that the courts of the child’s habitual 

residence are best at determining questions regarding the child’s custody.

19 The Convention addresses a far more limited issue: whether 

the child should be returned to his or her habitual residence, enabling 

the courts of that nation to assess issues relating to custody and best 

 

16. 22 U.S.C. §§ 9001–9011 (1988).

17. William M. Hilton, Esq. (1934–2009). Bill Hilton appeared as counsel in 

Hague Convention cases throughout the United States. As counsel for parents seeking 

the return of a child, Hilton would invariably begin his case by stating to the court “A 

Hague Convention case is not a child custody case.” He compiled a vast amount of 

information relating to the Convention and made it available on the Internet for use 

by courts and counsel alike. See, e.g., Baran v. Beaty, 526 F.3d 1340, 1350 (11th Cir. 

2008); Simcox v. Simcox, 511 F.3d 594, 607 (6th Cir. 2007).

18. See 22 U.S.C. § 9001(b)(4) (1988); see also Jenkins v. Jenkins, 569 F.3d 549, 

555 (6th Cir. 2009).

19. See Elisa Pérez-Vera, Explanatory Report, in 3 Actes et Documents de la Quatorzième session (1982) [hereinafter Pérez–Vera Report]. The Pérez–Vera Report is the 

official commentary of the Reporter to the proceedings leading to the adoption of the 

1980 Hague Convention by the Hague Conference on Private International Law.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

4

interests of the child. In this sense, proceedings under the Convention 

may be viewed as akin to a “provisional remedy.”

20

 

20. See Jenkins, 569 F.3d at 555 (citing Linda Silberman, Interpreting the Hague 

Abduction Convention: In Search of a Global Jurisprudence, 38 U.C. Davis L. Rev. 1049, 

1054 (2005)); Gaudin v. Remis, 415 F.3d 1028 (9th Cir. 2005).
5

I. The 1980 Convention

A. Overview of the Convention

The Convention provides an expeditious remedy for the physical return of children who have been wrongfully removed or retained from 

their habitual residence, in violation of the custody rights of the leftbehind parent. The treaty envisions that courts will promptly hear and 

decide the limited issues relating to whether the child was wrongfully 

removed to, or retained in, a foreign country. If the elements of the 

case for return have been met, the Convention requires that the child

be expeditiously returned to his or her habitual residence (Appendix A 

sets forth the full text of the Convention). The framers of the Convention anticipated that most cases should be decided within six weeks 

(see infra page 12). 

The structure for hearing return cases is set forth at 22 U.S.C.

§§ 9001–9011, the International Child Abduction Remedies Act (ICARA). Pursuant to ICARA, both state and federal courts have original 

concurrent jurisdiction to hear cases arising under the Convention.21

ICARA also sets forth burdens of proof applicable to the case for return and defenses,

22 relaxed rules for admissibility of documents,23

and establishes guidelines for the award of fees and costs.

24 The text of 

ICARA can be found at Appendix B, infra at page 217.

Pendency of a Hague Convention petition for return in any U.S. 

court requires that state court custody proceedings be stayed.

25 One of 

the purposes of the Convention is to return a child to his or her habitual residence—the place where custody proceedings should be heard. 

Accordingly, the Hague case must be resolved before it can be determined if the custody case has been brought in the appropriate jurisdiction. If a court conducting a custody proceeding receives notice that 

 

21. 22 U.S.C. § 9003(a) (1988).

22. Id. § 9003(e).

23. Id. § 9005.

24. Id. § 9007(b).

25. Convention, Article 16
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

6

there is a claim that the child has been wrongfully removed or retained 

in violation of the Convention (it need not be an actual petition for 

return), the court must stay that proceeding until either the Hague 

claim has been resolved or it has not been pursued within a reasonable 

time.26 A federal court may vacate a state court custody determination

that was entered in violation of the stay provisions of Article 16.27

B. Purposes for Adoption of the Convention

The Convention was adopted (1) to deter international abductions of 

children and (2) to provide a prompt remedy28 for the return of abducted children.29 It aims to restore the child to the “status quo ante”

and discourage parents from crossing international frontiers in search 

of friendlier fora to validate their custody claims.

30

The Convention is not a jurisdictional statute such as the Uniform 

Child Custody Jurisdiction and Enforcement Act (UCCJEA).

31 The 

Convention’s purview does not include the entry, modification, or

enforcement of foreign or domestic child custody orders.32

 

26. See Convention, supra note 11, Article 16; see also Yang v. Tsui (Yang I), 416 

F.3d 199, 203 (3d Cir. 2005)

27. See, e.g., Mozes v. Mozes, 239 F.3d 1067, 1085 n.55 (9th Cir. 2001).

28. See, e.g., Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006).

29. “Desiring to protect children internationally from the harmful effects of their 

wrongful removal or retention and to establish procedures to ensure their prompt 

return to the State of their habitual residence as well as to secure protection for rights 

of access.” Convention, supra note 10, Preamble.

30. See, e.g., Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995).

31. Uniform Child Custody Jurisdiction and Enforcement Act, §§ 101–405 

(1997). The UCCJEA is a model act that was approved for adoption in 1997 by the 

National Conference of Commissioners on Uniform State Laws. It has been enacted in 

49 states, the District of Columbia, Guam, and the U.S. Virgin Islands. Legislation is 

pending in Massachusetts for adoption in that jurisdiction.

32. Redmond v. Redmond, 724 F.3d 729, 741 (7th Cir. 2013).
I. The 1980 Convention

7

C. Basic Elements of the Case for Return

The substantive law of the Convention is not complicated. The prima

facie case for return must show that a child has been wrongfully removed to, or retained in, any contracting state in violation of the 

rights of custody of any person, institution, or other body.33 The Convention defines a “wrongful removal or retention” as (1) a breach of 

the rights of custody according to the law of the country where the 

child was habitually resident, (2) where these “rights of custody” were 

actually being exercised, or would have been exercised but for the 

wrongful removal or retention.34

The determination of “custody rights” is to be made according to 

the law of the state where the child was habitually resident immediately before the wrongful removal or retention.35 Children are defined as 

persons under sixteen years of age.36

D. Basic Elements of the Defenses to Return

There are five narrowly defined defenses to an action for return of a 

child:37

 

33. See Convention, supra note 11, Articles 1, 3. 

34. See id., Article 3(b).

35. See id., Article 3(a).

36. See id.

37. The Convention limits the defenses to those stated. However, a handful of 

U.S. cases have established procedural defenses to actions for return of a child. See, 

e.g., Prevot v. Prevot, 59 F.3d 556 (6th Cir. 1995) (fugitive disentitlement); March v. 

Levine, 249 F.3d 462 (6th Cir. 2001) (declining to apply fugitive disentitlement); 

Pesin v. Rodriguez, 244 F.3d 1250, 1253 (11th Cir. 2001) (holding that fugitive disentitlement doctrine precluded consideration of mother’s appeal); Journe v. Journe, 911 

F. Supp. 43, 47 (D.P.R. 1995) (holding that remedy under Convention was waived by 

voluntary dismissal of previous French action); Delgado-Ramirez v. Lopez, 2011 WL 

692213 (W.D. Tex. 2011) (unreported disposition) (refusing fee award on the basis of 

“unclean hands”); cf. Karpenko v. Leendertz, 619 F.3d 259 (3d Cir. 2010) (refusing to 

apply the doctrine of “unclean hands”).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

8

1. the person making the request for return of the child has delayed for more than one year since the wrongful removal or retention, and the child has become settled in the new environment;38

2. the person, institution, or other body having the care of the 

child was not actually exercising custody rights at the time of 

removal or retention;39

3. the person, institution, or other body having the care of the 

child consented to or subsequently acquiesced in the removal 

or retention;40

4. the return of the child would expose the child to a grave risk 

of “physical or psychological harm or otherwise place the child 

in an intolerable situation”;

41

or

5. the return of the child “would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”

42

A court also may refuse a petition for return of a child if the child objects to return, and, based on the age and maturity of the child, the 

court determines it is appropriate to consider the child’s views.43

However, even if the evidence establishes one of these defenses, 

the court retains some discretion to order the child returned.44

 

38. Convention, supra note 11, Article 12. 

39. Id., Article 13(a). 

40. Id.

41. Id., Article 13(b).

42. Id., Article 20.

43. Id., Article 13.

44. See, e.g., Antunez-Fernandes v. Connors-Fernandes, 259 F. Supp. 2d 800, 

814–15 (N.D. Iowa 2003); Feder v. Evans-Feder, 63 F.3d 217, 226 (3d Cir. 1995); 

Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060, 1067 (6th Cir. 1996) (citing to the 

U.S. State Department Text & Legal Analysis, 51 Fed. Reg. 10,494, 10,509 (Mar. 26, 

1986)). See infra page 89.
I. The 1980 Convention

9

E. Legal Framework

The Convention was proposed for adoption by the Hague Conference 

on Private International Law, an intergovernmental organization that 

develops international instruments on topics ranging from recognition 

and enforcement of judgments to banking and commercial transactions.45

Member states of the Hague Conference—including the United 

States—approved the Child Abduction Convention for adoption in 

1980, and it entered into force on December 1, 1983, when it was ratified by three nations (France, Canada, and Portugal). Currently, ninety-two nations have signed that Convention, representing countries 

with legal systems based on common law, civil law, Islamic law,

46 and 

various combinations thereof.

1. Text of the 1980 Convention

A copy of the Convention is included as Appendix A. The text of the 

Convention is also available on the website of the Hague Conference 

on Private International Law.

47 The U.S. Department of State maintains 

a website with links to the official text of the Convention as well as 

other resources for attorneys and judges.48

 

45. The Hague Conference operates in a manner similar to the process used by 

the National Conference of Commissioners on Uniform State Laws when it proposes 

model acts, such as the Uniform Commercial Code or the Uniform Child Custody 

Jurisdiction and Enforcement Act. The Hague Conference also monitors, supports, 

and reviews the operation of conventions that provide for cross-border judicial and 

administrative cooperation, through quadrennial “special commissions” and regional 

conferences. 

46. Morocco, which acceded to the Convention effective June 1, 2010, is the first 

country with an Islamic law system to become bound by the Convention.

47. See http://www.hcch.net/index_en.php?act=conventions.text&cid=24. 

48. See http://travel.state.gov/abduction/attorneysjudges/attorneysjudges_4306.html.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

10

2. International Child Abduction Remedies Act

The International Child Abduction Remedies Act49 (ICARA) implemented the Convention in the United States. Congress passed ICARA

in 1988, contemporaneous with the Convention entering into force 

between the United States and other nations.50 The substantive law of 

the individual states of the United States does not impact the application of the Convention except in one area: courts (state or federal) 

may not peremptorily remove a child from a parent having physical 

control of that child unless provisions of state law are satisfied.51

Figure 3. Number of Cases and Children Reported to the Office of 

Children’s Issues, U.S. State Department, for Calendar Year 2013

Source: Office of Children’s Issues, Bureau of Consular Affairs, U.S. Department of 

State.

 

49. 22 U.S.C. §§ 9001–9011 (1988). 

50. See supra page 2, note 12.

51. 22 U.S.C. § 9004(b) (1988). See discussion infra at page 194.

0 20 40 60 80 100 120 140 160 180 

All others 

Mexico 

Canada 

Germany 

United Kingdom 

Dominican Republic 

Italy 

Spain 

Colombia 

Ecuador 

Sweden 

117 

110 

26 

14 

16 

13 

13 

7 

12 

9 

9 

177 

158 

44 

22 

24 

19 

19 

11 

17 

13 

14 

# of children 

# of cases 
I. The 1980 Convention

11

3. Concurrent Jurisdiction

Both U.S. district courts and state courts have original and concurrent 

jurisdiction to hear cases for return of a child under the Convention.52

This gives rise to potential issues relating to removal,

53 parallel actions,

54 and abstention.55

4. Role of the Central Authority

The Convention creates not only the legal structure for litigation of 

return cases as described above, but it also provides for administrative 

tasks that are performed by a “Central Authority” designated by each 

member nation. In the United States, the Central Authority is the U.S. 

State Department.

56

The Central Authority’s role is to cooperate with counterpart authorities of sister states and to take an active role in facilitating the 

return of children wrongfully removed or retained in the United 

States. This mandate includes:

• locating children who have been wrongfully removed;

• securing the voluntary return of the child, if possible;

• exchanging information relating to the social background of 

the child;

• providing general information concerning the law of the contracting state;

• facilitating proceedings before the courts or administrative authorities to obtain the return of the child; and 

• informing interested states as to the progress of individual cases.

57

 

52. See 22 U.S.C. § 9003(a) (1988).

53. See 28 U.S.C. § 1441 (2002).

54. See Lops v. Lops, 140 F.3d 927 (11th Cir. 1998).

55. See Holder v. Holder (Holder I), 305 F.3d 854 (9th Cir. 2002).

56. See Exec. Order No. 12648: Relating to the Implementation of the Convention on the Civil Aspects of International Child Abduction, 53 Fed. Reg. 30,637 (Aug. 

11, 1988).

57. See Convention, supra note 10, Articles 7, 11.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

12

The U.S. State Department typically informs state and federal courts 

of the filing of a petition for return of a child and includes information 

concerning available resources that may be of assistance to the court.58

At the request of a U.S. court, the U.S. State Department may act as a 

conduit for inquiries concerning whether the removal or retention of a 

child was wrongful under the law of the country from which the child 

was removed. The State Department will forward the request for information through diplomatic channels to the Central Authority of the 

foreign country. When an answer has been provided by the foreign 

court or by the Central Authority for that country, it will be transmitted 

through the State Department back to the initiating court. Such an inquiry may be made under Article 15 of the Convention.

59

Most Hague Convention cases should be resolved in six weeks. 

Pursuant to Article 11 of the Convention, the U.S. State Department

may request reasons for the delay of a case beyond six weeks so as to 

keep applicants or sister Central Authorities informed of the progress 

of a case.60

F. Treaty Interpretation

In Abbott v. Abbott,

61 the Supreme Court set forth four sources for interpreting parental custody rights: (1) the Convention text, (2) the 

Convention’s purposes, (3) the view of the U.S. State Department, and 

(4) decisions of sister signatory states to the Convention.62

 

58. See, e.g., R.S. v. D.O., 34 Misc.3d 1239(a), 950 N.Y.S.2d 725 (2012) (Court 

notes receipt of letter from the Office of Children’s Issues in the U.S. State Department 

that states that “Father’s Petition was initiated as a result of a request for the return of 

D and E made to the U.S. Central Authority by its counterpart in Italy. It further notes 

that the U.S. Central Authority believes that the Hague Convention on the Civil Aspects of International Child Abduction applies to this case, and provides a summary of 

the Convention.” Slip Opinion, p. 2).

59. See infra page 32.

60. Convention, supra note 11, Article 11.

61. 560 U.S. 1, 130 S. Ct. 1983 (2010). 

62. See Yaman v. Yaman, 730 F.3d 1 (1st Cir. 2013). Interpreting Article 12’s 

delay defense, the court looked to “the text of the Convention, the Convention’s pur-
I. The 1980 Convention

13

1. Abbott Guidelines

Abbott addressed the issue of whether a ne exeat63 clause, coupled with 

rights of visitation, constituted enforceable “custody rights” under the 

Convention. 

a. Interpretation of the Convention Text. Citing to its decision in Medellin v. Texas,

64 the Supreme Court noted “[t]he interpretation of a treaty, like the interpretation of a statute, begins with its text.”

65 When

defining some terms, such as “custody rights,” the law of the habitual 

residence must be consulted to determine how domestic law treats the 

question,

66 but that right must inevitably be determined by following 

the text and structure of the Convention. 

For example, a foreign nation may label as “custody rights” a set of 

rights that amount only to access or visitation rights in most other 

nations. While U.S. courts should consider that label, and the extent 

of the rights that it includes, courts should ultimately decide whether 

the particular label is consistent with the purposes and text of the 

Convention and with interpretations given to the Convention by sister 

states and other relevant authorities. The Abbott court specifically noted that Congress recognized the need for “uniform international interpretation of the Convention” in its findings and declarations preamble 

to ICARA.

67

 

poses, the inherent equitable powers of federal courts, and the insights of the Executive Branch. Id. at 20–21.

63. A ne exeat clause is “An equitable writ restraining a person from leaving, or 

removing a child or property from, the jurisdiction. A ne exeat is often issued to prohibit a person from removing a child or property from the jurisdiction. . . .” Black’s 

Law Dictionary (8th ed. 2004). In the United States these orders are routinely referred 

to as “restraining orders,” which prohibit removal of a child from a state or local 

jurisdiction.

64. 552 U.S. 491 (2008).

65. Abbott, 560 U.S. at 10.

66. See Convention, supra note 11, Article 3(a). 

67. 22 U.S.C. § 9001(b)(3)(B) (1988).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

14

The Supreme Court expanded on the importance of international 

uniformity in Lozano v. Montoya Alvarez,

68 examining whether the 

concept of equitable tolling applied to Article 12’s one year period for 

filing a petition for return of a child. The court focused upon the intent of the drafters of the Convention,

69 and recognized that the concept of equitable tolling was unique to American jurisprudence—not 

part of the “shared expectations of the contracting parties.”70 Accordingly, the court ruled that equitable tolling was not available to extend 

the one-year period set forth in Article 12.

b. Deference to Convention Purposes. The ultimate question in Abbott

involved an issue integral to one of the Convention’s fundamental 

purposes—deterring parental abductions motivated by seeking a 

friendlier forum.71 When a court wrestles with interpreting a particular provision of the Convention, deference should be given to the purposes of the Convention. A court’s interpretation should be consistent 

with the treaty’s objectives.

 

68. 134 S. Ct. 1224 (2014). 

69. “For treaties, which are primarily ‘compact[s] between independent nations,’

Medellín v. Texas, 552 U.S. 491, 505 (2008), our ‘duty [i]s to ascertain the intent of 

the parties’ by looking to the document’s text and context, United States v. Choctaw 

Nation, 179 U.S. 494, 535 (1900); see also BG Group PLC v. Republic of Argentina, 

134 S. Ct. 1198 (2014).” Lozano, 134 S. Ct. at 1232. 

70. Lozano, 134 S. Ct. at 1232–33 (emphasis in original).

“A treaty is in its nature a contract between . . . nations, not a legislative act.” Foster v. 

Neilson, 27 U.S. 253, 254 (1829) (Marshall, C.J., for the Court); see also Jonathan Elliot, Debates on the Federal Constitution 506 (2d ed. 1863) (James Wilson) (“[I]n 

their nature treaties originate differently from laws. They are made by equal parties, 

and each side has half of the bargain to make . . .”). That distinction has been reflected 

in the way we interpret treaties. It is our “responsibility to read the treaty in a manner 

‘consistent with the shared expectations of the contracting parties.’” Olympic Airways 

v. Husain, 540 U.S. 644, 650 (2004) (quoting Air France v. Saks, 470 U.S. 392, 399 

(1985) (emphasis added)). Even if a background principle is relevant to the interpretation of federal statutes, it has no proper role in the interpretation of treaties unless 

that principle is shared by the parties to “an agreement among sovereign powers,” Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226 (1996).

Id.

71. See the discussion on custody rights infra beginning at page 48. 
I. The 1980 Convention

15

c. Executive Interpretation of Treaties. The opinions of the executive

branch concerning interpretation of the Convention are entitled to 

great weight.72 In Abbott, the Court gave deference to the opinions of 

the Office of Children’s Issues of the U.S. State Department.

73

d. Sister State Decisions. The decision in Abbott emphasizes the importance of consistency with the judgments of sister state signatories 

to the Convention.

74 This is especially true now that ninety-two countries are signatories to the Convention. Uniform interpretation can be 

undermined by undue reliance on local domestic practices, legal concepts,75 and value-laden presumptions. Recognizing this challenge, the 

Supreme Court utilized the text of the Convention as a means to promote uniformity of interpretation among signatories. The Court observed that interpreting the Convention using a uniform text-based 

approach ensures international consistency in interpreting the Convention, foreclosing courts from relying on local usage to undermine 

recognition of custodial arrangements in other countries and under 

other legal traditions.

76

The Court found that its view was supported by the weight of authority in other nations, with scholars noting “an emerging international consensus on the matter.”

77

 

72. See Abbott, 560 U.S. at 15 (citing Sumitomo Shoji Am., Inc. v. Avagliano, 457 

U.S. 176, 184–85 n.10 (1982)). 

73. The Text & Legal Analysis, drafted by the U.S. State Department at the time 

the Convention was newly adopted, also carries interpretative weight. U.S. State Department Text & Legal Analysis, 51 Fed. Reg. 10,494, 10,509 (Mar. 26, 1986) [hereinafter Text & Legal Analysis]. See, e.g., Viteri v. Pflucker, 550 F. Supp. 2d 829, 834 

(N.D. Ill. 2008); Castillo v. Castillo, 597 F. Supp. 2d 432, 438 (D. Del. 2009); Aldinger v. Segler, 263 F. Supp. 2d 284 (D.P.R. 2003).

74. See Linda Silberman, Interpreting the Hague Convention Abduction Convention: 

In Search of a Global Jurisprudence, 38 U.C. Davis L. Rev. 1049, 1054 (2005).

75. See, e.g., supra note 70.

76. Abbott, 130 S. Ct. at 1991. See also Lozano v. Montoya Alvarez, 134 S. Ct. 

1224, 1233 (2014) (noting the lack of acceptance of equitable tolling by courts of 

other signatory nations to the treaty). 

77. Lozano, 134 S. Ct. 1233.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

16

2. Pérez-Vera Report

The Pérez-Vera Report is the product of the official reporter of the 

1980 sessions of the Hague Conference that led to the approval of the 

Convention.78 The report is recognized as the official history and 

commentary to the Hague Convention and is a “source of the background on the meaning of the provisions of the Convention.”

79 U.S. 

courts routinely cite to this report for guidance on interpreting the 

treaty.

80

3. U.S. State Department Text & Legal Analysis

The Text & Legal Analysis81 is a document that was prepared by the 

U.S. State Department for the U.S. Senate as part of the ratification 

process for the Convention. It is valuable as an interpretative tool and 

is frequently cited.82

 

78. Pérez-Vera Report, supra note 19. The Pérez-Vera Report may be accessed and 

downloaded at the website of the Hague Conference on Private International Law at 

http://hcch.evision.nl/index_en.php?act=publications.details&pid=2779&dtid=3. 

79. See, e.g., Simcox v. Simcox, 511 F.3d 594, 605 n.3 (6th Cir. 2007); Mozes v. 

Mozes, 239 F.3d 1067 (9th Cir. 2001). But note Abbott’s reservation as to the weight 

to be given to the Pérez-Vera Report: “We need not decide whether this Report should 

be given greater weight than a scholarly commentary.” Abbott, 130 S. Ct. at 1995. 

Compare Text & Legal Analysis, supra note 73, at 10,503–06 (identifying the PérezVera Report as the “official history” of the Convention and “a source of background on 

the meaning of the provisions of the Convention”) and Pérez-Vera Report ¶ 8 (1981) 

(“[the Report] has not been approved by the Conference, and it is possible that, despite the Rapporter’s [sic] efforts to remain objective, certain passages reflect a viewpoint which is in part subjective”). 

80. See, e.g., Barzilay v. Barzilay (Barzilay II), 600 F.3d 912, 916–17 (8th Cir. 

2010); Asvesta v. Petroutsas, 580 F.3d 1000, 1004 (9th Cir. 2009). 

81. Text & Legal Analysis, supra note 73.

82. See, e.g., Nicolson v. Pappalardo, 605 F.3d 100, 105 (1st Cir. 2010); Baran v. 

Beaty, 526 F.3d 1340, 1345 (11th Cir. 2008); Karkkainen v. Kovalchuk, 445 F.3d 280, 

288 (3d Cir. 2006). 
I. The 1980 Convention

17

4. INCADAT

The Permanent Bureau of the Hague Conference on Private International Law has compiled a searchable database of decisions of other 

signatory nations called INCADAT (International Child Abduction 

Database).

83 It is available in English, French, and Spanish. The database has links to the full text of many leading decisions of courts 

throughout the world, including U.S. courts.

G. Whether Both Countries Are Bound by the Treaty84

Two elements must be established in order to pursue an action for the 

return of a child: (1) the Convention must have “entered into force”

between the two countries involved prior to the filing of the application for return;

85 and (2) the wrongful removal or retention of the 

child must have occurred after the date the treaty became effective in 

both countries.86

The issue of whether the Convention is “in force” between states 

can be complex, depending in some cases on whether the countries

 

83. This database can be found at the following website: http://www.incadat.com/

index.cfm?act=text.text&lng=1.

84. The U.S. State Department maintains a list of countries with whom the 

Convention has entered into force with the United States. This can be accessed at the State 

Department’s website, at http://travel.state.gov/abduction/resources/congressreport

/congressreport_1487.html.

85. See Convention, supra note 11, Article 38. See In re Kamstra, 307 S.W.3d 581 

(Tex. App. 2010), wherein the court held that a Hague Convention could not be maintained because the children were habitual residents of Burundi, a country that was not 

signatory to the 1980 Convention. Accord Mezo v. Elmergawi, 855 F. Supp. 59, 62 

(E.D.N.Y. 1992).

86. See Convention, supra note 11, Article 35. In Taveras v. Taveraz, 477 F.3d 

767 (6th Cir. 2007), father brought suit against his former spouse to compel the return of the parties’ two children to Dominican Republic. The United States had not 

accepted the Dominican Republic’s accession to the Hague Convention, so the treaty 

was not in force between them. Father instead relied on the Alien Tort Statute (ATS) 

(28 U.S.C. § 1350). The circuit court affirmed the district court’s denial of relief to 

father, finding that mother’s fraudulent entry into the United States did not confer 

jurisdiction under the ATS. 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

18

involved are “member states” or “party states.” “Member states” are 

those nations that were members of the Hague Conference at the time 

of the Fourteenth Session in 1980. A member state becomes bound to 

the Convention by ratifying it. “Party states” are countries that did not 

belong to the Hague Conference on Private International Law at the 

time the Convention was approved for adoption in 1980—party states

become bound by the Convention by acceding to the Convention.

The legal significance of ratification versus accession is important. 

Between member states, the ratification by one member state causes 

the Convention to automatically enter into force between that member 

state and all other previously ratifying member states.87 For example, 

the 2014 ratification by Japan, a member state, caused the Convention 

to come into force between Japan and all other member states that had 

previously ratified, including the United States. However, when Member State X ratifies the Convention, the Convention does not automatically enter into force between Member State X and a party state that 

has acceded to the Convention. Member State X must expressly accept 

the accession by the party state. For example, El Salvador (a party 

state) acceded to the Convention in 2001. However, this accession was 

not accepted by Belgium (a member state) until 2007. As such, the 

Convention had not “entered into force” between the two nations 

until Belgium accepted El Salvador’s accession.

The same applies to the accession of one party state vis-à-vis another acceding state. That is, the accession must be specifically accepted by the previously acceding state. In the case of party state accession 

by Belarus, the act of Belarus agreeing to be bound by the Convention 

would not bind the United States, or any other member or party state,

until these states affirmatively accept Belarus’ accession. Until such 

formal acceptance is made, the Convention has not entered into force 

between these two nations.

 

87. Japan is the only remaining nation having original “member state” status that 

has not ratified the Convention. If and when Japan ratifies the Convention, it will 

immediately enter into force with the remaining member states.
I. The 1980 Convention

19

If one country involved in a Hague Convention dispute only recently has acceded to the Convention, it may be complicated to determine whether both countries are reciprocally bound by the treaty. 

Addressing this issue, the court in Viteri v. Pflucker88 concluded that 

the Convention will apply if it is in force in each country—that is, each 

country has either ratified or acceded to the Convention on the date of 

the wrongful removal.

In Viteri v. Pflucker, mother took the parties’ child to the United 

States in September 2005. She failed to return to Peru when her visa 

expired in October 2005. Peru acceded to the Convention in 2001, 

and the United States ratified the Convention in 1988. In October 

2005 (the date of wrongful retention), the Convention was in force in 

each country, but had not entered into force between them. The United States accepted Peru’s accession in 2007, and the treaty entered into 

force between the two countries on June 1, 2007. Father petitioned for 

the return of the child in February 2008, and mother moved for dismissal for lack of jurisdiction.

The court ruled that a wrongful removal occurs as a fixed date: in 

the instant case, before the United States accepted Peru’s accession to 

the Convention. Therefore, the court ruled the Convention did not 

apply because the Convention was not in force between the United 

States and Peru on the date of the wrongful removal. The United 

States’ acceptance of Peru’s accession in 2007 does not grant jurisdiction for a wrongful removal that occurred in 2005. The Convention 

must be in force between two countries; the Convention cannot simply be in force in each respective country.

89

 

88. 550 F. Supp. 2d 829 (N.D. Ill. 2008).

89. Practical reasons support this requirement. Petitions typically are transferred 

between countries through their Central Authorities. To the extent that a country 

acceding to the Convention fails to designate a Central Authority—or, having done so, 

the Central Authority lacks the capacity to perform its required tasks, such as locating 

children or communicating effectively with counterparts in other nations—the operation of the Convention is rendered a nullity. 

21

II. The Case in Chief for the Return of a 

Child

A. Summary

The Convention provides two methods for requesting the return of a 

child: (1) administrative requests and (2) court proceedings. The administrative request procedure begins with the filing of an application 

for return directly with the Central Authority of either the country 

where the child is located or the country of the left-behind parent. If 

the proceeding is started in the latter, the Central Authority will forward the request to the counterpart Central Authority where the child 

is located. The Central Authority will usually attempt to negotiate a 

return of the child directly with the parents involved. Central Authorities have no independent powers to compel the child’s return; if a 

Central Authority’s negotiations fail, the left-behind parent must make 

an application to a court where the child is located and secure a court 

order for the child’s return.

The U.S. State Department attempts to track each case filed in U.S.

courts where return of a child is sought. Occasionally, however, a petitioner may file a case without any prior involvement or notice to the 

U.S. Central Authority, and the case will not come to its attention. 

Although notice to the U.S. State Department is not a prerequisite to 

filing an action, should the need later arise to utilize the resources of 

the Central Authority, delays may occur that could have been prevented by petitioner’s earlier notice.

90

 

90. For example, there may be a delay in Article 15 requests for information from 

the habitual residence whether the removal or retention of a child was unlawful under 

that nation’s laws. The State Department also provides other services that may prove 

valuable to the court, such as assistance in locating counsel for petitioners; providing 

translation services for documents; assisting in securing passports and visas; facilitating contacts with the Central Authority of the child’s habitual residence; and providing assistance with the return of children to their habitual residences. 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

22

In the United States, a petition for the return of a child may be 

filed in either state or federal court. The elements to the prima facie

cause of action for return are:

• the child was wrongfully removed or retained;

• the child was removed from his or her habitual residence;

• there was a breach of the rights of custody under the law of

the child’s habitual residence;

• the left-behind parent was exercising those custody rights; and

• the child is under the age of sixteen.

When such an action is filed, a state court entertaining the merits 

of a custody case must stay any pending custody matters pursuant to 

Article 16 of the Convention.

No particular form of action is required to begin a case for return.

91 Because custody matters are not within the jurisdiction of federal courts, it is commonplace to commence a federal action by filing a 

petition for the return of the child, pursuant to 22 U.S.C. § 9003(b).

92

A petition for return is sometimes accompanied by a request for a warrant in lieu of habeas corpus.

93 In state courts, however, the matter has 

been raised in a number of legal avenues.94

 

91. See Text & Legal Analysis, supra note 73, at 10,507.

92. 22 U.S.C. § 9003(b) (1988) states: “Any person seeking to initiate judicial 

proceedings under the Convention for the return of a child or for arrangements for 

organizing or securing the effective exercise of rights of access to a child may do so by 

commencing a civil action by filing a petition for the relief sought in any court which 

has jurisdiction of such action and which is authorized to exercise its jurisdiction in 

the place where the child is located at the time the petition is filed.”

93. A warrant in lieu of a writ of habeas corpus is an order directed to law enforcement officers commanding them to physically secure the child and bring the 

child before the court. See, e.g., In re Kim, 404 F. Supp. 2d 495 (S.D.N.Y. 2005); Aldinger v. Segler, 338 F. Supp. 2d 296 (D.P.R. 2004); In re Leslie, 377 F. Supp. 2d 1232 

(S.D. Fla. 2005); see also Grieve v. Tamerin, 269 F.3d 149 (2d Cir. 2001) (raising 

return of child issue in writ of habeas corpus); Wanninger v. Wanninger, 850 F. Supp. 

78 (D. Mass. 1994) (raising return of child issue in petition for warrant in lieu of writ 

of habeas corpus).

94. See, e.g., Harsacky v. Harsacky, 930 S.W.2d 410 (Ky. Ct. App. 1996) (raising 

return of child issue during domestic violence action); Brennan v. Cibault, 643 
II. The Case in Chief for the Return of a Child 

23

Petitions for return may be filed in existing custody cases, or they may 

be filed as independent actions.95 In In re J.J.L.-P.,

96 the father filed a 

petition for return in a previously filed custody case. Mother opposed 

the case on jurisdictional grounds, claiming that ICARA required the 

filing of an independent action. The Texas court noted that the language of ICARA as set forth in § 9003(b) was permissive as to how 

petitions for relief might be filed, and thus held that father had the 

discretion to file his petition for return in an existing custody case or 

as a separate and distinct lawsuit.97

B. Burdens of Proof

ICARA sets forth the burdens of proof for the case in chief for return 

and for the defenses to return.

98 For the case in chief (i.e., proof of the 

 

N.Y.S.2d 780, 227 A.D.2d 965 (App. Div. 1996) (addressing return of child issue 

during action to modify custody and access); Geiser v. Valentine, No. 80286/07, slip 

op. 52046(U), 17 Misc. 3d 1117(A), 851 N.Y.S.2d 65 (N.Y. Sup. Ct. 2007) (unpublished table decision) (raising return of child issue in action for writ of habeas 

corpus).

95. In one North Carolina case, a petition for return of a child filed by a German 

child protective service agency was denied on the basis that the petition was not verified. The court treated the petition as one for enforcement of a German court order 

removing the child from the parents and assuming guardianship over the child. As 

such, the court deemed the action to be one for registration and enforcement of a 

Hague Convention return order, and did not deal with the petition on its merits. Obo 

v. Steven B., 687 S.E.2d 496, 500 (N.C. App. 2009).

96. 256 S.W.2d 363 (Tex. App. 2008).

97. Id. at 370.

98. 22 U.S.C. § 9003(e) (1988), Burdens of Proof: 

(1) A petitioner in an action brought under subsection (b) of this section shall establish by a preponderance of the evidence -

(A) in the case of an action for the return of a child, that the child has been 

wrongfully removed or retained within the meaning of the Convention; and 

(B) in the case of an action for arrangements for organizing or securing the effective exercise of rights of access, that the petitioner has such rights. 

(2) In the case of an action for the return of a child, a respondent who opposes the 

return of the child has the burden of establishing -

(A) by clear and convincing evidence that one of the exceptions set forth in article 

13b or 20 of the Convention applies; and 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

24

child being under sixteen, that there was a wrongful removal from the 

child’s habitual residence, and the removal was in violation of the custody rights of the left-behind parent), the burden upon the petitioner 

is a preponderance of the evidence.99

In the case in chief, the petitioner must prove that the person with 

custody rights was actually exercising those rights at the time of the 

wrongful removal or retention.

100 There are two provisions in the 

Convention that deal with the exercise of rights of custody: (1) Article 

3(b)101 requires a showing in the petitioner’s case in chief, and 

(2) Article 13 refers to non-exercise of custody rights as an affirmative 

defense. In petitioner’s case in chief, the Convention presumes that 

only preliminary evidence will be needed to establish that custody 

rights were being exercised.102

In Walker v. Walker,

103 the Seventh Circuit reversed a district 

court’s finding that a father was not exercising his custody rights because he abandoned his children. The district court relied upon father’s failure to return to the United States from Australia, his failure 

to provide financial support to the mother and children, and a letter 

 

(B) by a preponderance of the evidence that any other exception set forth in article 12 or 13 of the Convention applies. 

99. See 22 U.S.C. § 9003(e)(1)(A) (1988).

100. See, e.g., Baxter v. Baxter, 423 F.3d 363, 369 (3d Cir. 2005); Mozes v. Mozes, 

239 F.3d 1067, 1084–85 (9th Cir. 2001).

101. Convention, Article 3:

The removal or the retention of a child is to be considered wrongful where –

a) it is in breach of rights of custody attributed to a person . . . and

b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. 

102. See, e.g., Asvesta v. Petroutsas, 580 F.3d 1000, 1018 (9th Cir. 2009) (“We 

and other courts have held that a petitioner’s burden under Article 3(b) is minimal.”). 

The Pérez-Vera Report provides, in paragraph 73, that “This condition, by defining the 

scope of the Convention, requires that the applicant provide only some preliminary 

evidence that he actually took physical care of the child.” See also Text & Legal Analysis, supra note 73, at 10,507 (noting “Very little is required of the applicant in support 

of the allegation that custody rights have actually been or would have been exercised. 

The applicant need only provide some preliminary evidence that he or she actually 

exercised custody of the child, for instance, took physical care of the child.”).

103. 701 F.3d 1110 (7th Cir. 2013).
II. The Case in Chief for the Return of a Child 

25

proposing settlement that focused on financial matters. The appellate

court found the facts supporting an Article 3 abandonment unconvincing, and noted that the standard for finding that a parent was exercising custody rights at the time of removal is a liberal test. Courts 

will generally find a parent exercised his or her rights to custody 

whenever “a parent with de jure custody rights keeps, or seeks to keep, 

any sort of regular contact with his or her child.”104

In the case of the Article 13(a)105 defense, however, the person 

opposing the return of the child has the burden of proving by a preponderance of the evidence that custody rights were not being exercised.106

The Convention sets forth five narrowly defined defenses to an 

action for return of a child. Under ICARA, the defenses are subject to 

different burdens of proof. Three defenses may be proved by a preponderance of the evidence: 

• The person making the request for return of the child has delayed for more than one year since the wrongful removal or retention, and the child has become settled in the new environment.

• The person, institution, or other body having the care of the 

child was not actually exercising custody rights at the time of 

removal or retention.

 

104. Id. (citing Bader v. Kramer, 484 F.3d 666, 671 (4th Cir. 2007)).

105. Convention, Article 13: 

[T]he 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 which 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, 

or had consented to or subsequently acquiesced in the removal or retention . . . .

106. See Pérez-Vera Report, supra note 19, ¶ 73: 

Thus, we may conclude that the Convention, taken as a whole, is built upon the tacit 

presumption that the person who has care of the child actually exercises custody over 

it. This idea has to be overcome by discharging the burden of proof which has shifted, 

as is normal with any presumption (i.e., discharged by the ‘abductor’ if he wishes to 

prevent the return of the child).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

26

• The person, institution, or other body having the care of the 

child consented to, or subsequently acquiesced in, the removal 

or retention.

Two defenses must be established by clear and convincing evidence: 

• The return of the child would expose the child to a grave risk 

of “physical or psychological harm or otherwise place the child 

in an intolerable situation.”

• The return of the child “would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”

C. Wrongful Removal and Retention

Article 3 of the Convention defines wrongful removal or retention as 

follows:

The removal or the retention of a child is to be considered wrongful 

where –

a) It is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or 

alone, under the law of the State in which the child was 

habitually resident immediately before the removal or 

retention; and

b) At the time of removal or retention those rights were actually exercised, either jointly or alone, or would have 

been so exercised but for the removal or retention.

The legal definition of the term “wrongful” usually implies some 

sort of mens rea or evil intent. In the context of the Convention, however, “wrongful” simply indicates that a person has engaged in the 

conduct described in the elements set forth in subsections (a) and (b) 

of Article 3 above.107

 

107. See Thomson v. Thomson, [1994] 3 S.C.R. 551, 119 D.L.R. 4th 253, ¶ 53 

(Can. S.C.C.) (holding that mother’s knowledge of an order preventing child’s removal from Scotland was not essential) (“Nothing in the nature of mens rea is required; 

the Convention is not aimed at attaching blame to the parties. It is simply intended to 
II. The Case in Chief for the Return of a Child 

27

1. Distinguishing Between Wrongful Removal and Wrongful 

Retention

The Convention provides a one-year time period for a parent to commence proceedings for the return of the child after a wrongful removal 

or wrongful retention.108 If an action is commenced after the one-year

period, then the abducting parent may assert the Article 12 defense 

that the child has become settled and should not be returned to the 

petitioning parent.

A distinction should be drawn between the concepts of wrongful 

removal and wrongful retention. The difference between the two is 

significant because the one-year time period to file an action begins to 

run from the date of the wrongful conduct. In most cases, the wrongful conduct in question is unequivocal, giving rise to a fair degree of 

certainty as to the date the one-year period commenced.

109 Typically, 

wrongful removal cases are characterized by parents unilaterally taking children from the habitual residence without the knowledge or 

permission of the left-behind parent.

Determining the commencement date of wrongful retention can be 

more complicated. Most cases dealing with wrongful retention involve 

a party leaving the child’s habitual residence with the child by agreement with the other party. This frequently occurs when a parent 

leaves with a child for a visit or vacation in another country. When the 

traveling party refuses to return the child according to the previous 

agreement, this conduct may become a wrongful retention. In the case 

of a wrongful retention, the time begins to run either (1) from the date 

when the child remains with the abducting parent despite the clearly 

communicated desire of the left-behind parent to have the child re-

 

prevent the abduction of children from one country to another in the interests of 

children. If the removal of the child was wrongful in that sense, it does not matter 

what the appellant’s view of the situation was.”).

108. See Convention, supra note 11, Article 12. Despite this provision, even 

though more than one year has passed, Article 12 also provides that the child must 

still be returned unless it is shown that the child is settled in the new environment. 

See Child Settled in New Environment, infra page 95.

109. See, e.g., Belay v. Getachew, 272 F. Supp. 2d 553 (D. Md. 2003).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

28

turned,

110 or (2) when the acts of the abducting parent are so unequivocal that the left-behind parent knows, or should know, that the 

child will not be returned.111

2. Anticipatory Violation and Wrongful Retention

One issue arising in this context is whether an anticipatory breach of 

an agreement to return a child constitutes a wrongful retention. In 

Toren v. Toren,

112 the parties entered into a custody agreement in Israel

in 1996. The agreement provided that the children would live with 

their mother in Massachusetts for a period of years, but not beyond 

July 21, 2000. In 1997, mother filed an action in Massachusetts seeking to modify the Israeli decree and requested sole custody of the children. In 1998, father filed a petition for return of the children under 

the Hague Convention on the basis that mother’s actions were in 

breach of their custody agreement and constituted an unlawful retention of the children. The First Circuit rejected father’s claim and dismissed the petition:

Even if the father had alleged facts sufficient to support his claim 

that the mother intended to retain the children in the United States 

after July 21, 2000, we do not believe that the Hague Convention or 

ICARA would enable us to exercise jurisdiction over such a claim. To 

the extent that the father’s argument is based on the mother’s future 

intent, the father is seeking a judicial remedy for an anticipatory violation of the Hague Convention. But the Hague Convention only provides a cause of action to petitioners who can establish actual reten-

 

110. See, e.g., Karkkainen v. Kovalchuk, 445 F.3d 280, 290 (3d Cir. 2006) (citing 

Slagenweit v. Slagenweit, 841 F. Supp. 264, 270 (N.D. Iowa 1993)). See also Schroeder 

v. Vigil-Escalera Perez, 664 N.E.2d 627, 76 Ohio Misc. 2d 25 (1995) (determining 

that action taken in custody proceedings unequivocally asserted left-behind parent’s 

rights to custody).

111. See, e.g., Blanc v. Morgan, 721 F. Supp. 2d 749 (W.D. Tenn. 2010); Zuker v. 

Andrews, 2 F. Supp. 2d 134, 140 (D. Mass. 1998); see also In re Ahumada Cabrera, 

323 F. Supp. 2d 1303 (S.D. Fla. 2004) (ruling that after several missed dates for returning child, date of wrongful retention was the date when father learned that mother 

was never going to return the child to Argentina).

112. 191 F.3d 23 (1st Cir. 1999).
II. The Case in Chief for the Return of a Child 

29

tion. . . . Therefore, we do not see how a petitioner like the father, alleging only an anticipatory retention, can invoke the protections of the 

Hague Convention.113

Following Toren’s holding, the district court in Falk v. Sinclair114

found that an unlawful retention did not commence until the actual 

date an American father was to return the child to mother in Germany. The question in Falk was whether mother had filed her petition for 

return of the child within one year of the commencement of the unlawful retention. Father maintained that mother filed her application 

more than one year after the retention, arguing that retention occurred 

when he unequivocally indicated to the child’s mother that he was not 

going to return the child to Germany. Mother alleged that the unlawful retention began on the date that the child was to be returned, approximately forty days after father gave “clear notice” that he was not 

returning the child. Citing to Toren, the Falk court held that an anticipatory breach of the parties’ agreement was not sufficient to amount to 

a wrongful retention. Accordingly, the one-year period under Article 

12 did not begin to run until father failed to return the child on the

parties’ agreed-on date.

115

3. Retention by Ne Exeat Order

In one case, a party contended that the action of a state court forbidding the removal of a child from that state amounted to a wrongful 

retention of the child. In Pielage v. McConnell,

116

mother, a native of 

the Netherlands, was involved in a child custody case with the child’s 

father, a U.S. citizen, in the state courts of Alabama. In the course of 

litigation, mother was given temporary physical custody of the child, 

but the state court also entered a ne exeat order that forbade mother 

from removing the child from Alabama’s jurisdiction pending a full 

custody decision on the merits. Wishing to return to the Netherlands

 

113. Id. at 28.

114. 692 F. Supp. 2d 147 (D. Me. 2010); accord Philippopoulos v. Philippopoulou, 461 F. Supp. 2d 1321, 1325 (N.D. Ga. 2006).

115. Falk, 692 F. Supp. 2d at 162.

116. 516 F.3d 1282 (11th Cir. 2008).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

30

with the child, but unable to do so because she was restrained from 

removing the child from Alabama, mother filed in federal court a 

Hague Convention petition for return, claiming that the effect of the 

Alabama ne exeat order was to wrongfully retain the child in Alabama. 

Affirming the district court’s dismissal of mother’s action, the Eleventh 

Circuit ruled that the Convention was “meant to cover the situation 

where a child has been kept by another person away from the petitioner claiming rights under the Convention, not where the petitioner still 

retains the child but is prevented from removing him from the jurisdiction” (emphasis added).117

4. Custody Rights

To be wrongful, the removal or retention of the child must be in violation of the left-behind parent’s custody rights.118 Custody rights are

more than mere visitation or “access” rights.119 A person may not 

maintain an action for return of a child when that person is entitled to 

exercise only access or visitation rights.120

a. Holders of Custody Rights. Article 3(a) of the Convention provides 

that custody rights may be attributed to “a person, an institution or 

any other body, either jointly or alone, under the law of the State in 

which the child was habitually resident immediately before the removal or retention. . . .” The vast majority of cases involve parents or relatives claiming custody rights, but administrative agencies or other 

 

117. Id. at 1289.

118. See Convention, supra note 11, Article 3.

119. The Convention speaks in terms of “access rights”—a common term in other 

countries for what is usually described in the United States as “visitation rights.” See

22 U.S.C. § 9002(7) (1988) (providing “the term ‘rights of access’ means visitation 

rights”).

120. See, e.g., Bromley v. Bromley, 30 F. Supp. 2d 857, 860 (E.D. Pa. 1998) (quoting Viragh v. Foldes, 612 N.E.2d 241, 415 Mass. 96 (1993)); Radu v. Toader, 463 F. 

App’x 29 (2d Cir. 2012) (Romanian divorce decree granted mother sole custody of 

child).
II. The Case in Chief for the Return of a Child 

31

bodies also may claim custody rights.121 Article 3 establishes that the 

law of the country in which the child was habitually resident determines custody rights.

122

A party’s nationality or cultural affiliation does not alter this principle. For example, Native Americans and members of tribes are not 

exempt from the operation of the Convention.123

A wrongful removal may occur even if a child’s removal from his 

or her habitual residence does not violate interim orders. The key 

question is whether the removal of the child violates the rights of the 

left-behind parent. In Ozaltin v. Ozaltin,

124 mother took her two children from Turkey to the United States. Shortly thereafter, she commenced a divorce proceeding in Turkey. In its interim orders the 

Turkish Court did not order mother to return from the United States, 

and in fact provided father with visitation rights both in the United 

States and in Turkey. Father petitioned for the return of the children 

to Turkey. Mother countered that the removal of the children from 

Turkey could not have been wrongful because subsequent orders from 

the Turkish court allowed her to remain in the United States. The 

Second Circuit held that father maintained custody rights to the children under Turkish law and the removal of the children constituted a 

 

121. See, e.g., In re S.J.O.B.G., 292 S.W.3d 764 (Tex. App. 2009) (custody rights 

claimed by the Child Welfare Services of Norwegian Municipality); L.H. v. Youth 

Welfare Office of Wiesbaden, 150 Misc. 2d 490, 568 N.Y.S.2d 852 (Fam. Ct. 1991) 

(holding that where a child is placed by the German Child Welfare Office, the child’s 

biological mother’s custody rights can be taken by the court declaring the child a ward 

of the German court); Brown v. Orange Cnty. Dep’t of Soc. Servs., 91 F.3d 150, 1996 

WL 366366 (9th Cir. 1996) (unpublished table decision) (alleging wrongful removal 

of child by child welfare agency); In re Marriage of Witherspoon, 155 Cal. App. 4th 

964, 973 (2007) (despite German youth welfare office taking custody of children, 

mother still retained sufficient custody rights to maintain her action for return of the 

children).

122. Nevertheless, as the Supreme Court noted in Abbott, custody rights must be 

determined “by following the text and structure of the Convention.” Abbott v. Abbott, 

130 S. Ct. 1983, 1990 (2010). 

123. See, e.g., Diabo v. Delisle, 500 F. Supp. 2d 159, 163 (N.D.N.Y. 2007).

124. 708 F.3d 355 (2d Cir. 2013).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

32

breach of the father’s rights to custody. Citing to the Pérez-Vera Report,

125 the court also noted that “a removal under the Hague Convention can still be ‘wrongful’ even if it is lawful.”126

b. Article 15 Request. A removal or retention of a child is not deemed to 

be wrongful if the custody rights of the left-behind parent have not 

been violated. In order to determine whether a parent has custody 

rights, a court may require information about the law of the child’s 

habitual residence. To assist in resolving the issue, a court may request 

a determination on the custody rights issue from the authorities of 

that contacting state. Article 15 of the Convention authorizes an inquiry to be made of the child’s habitual residence to determine whether, under the law of that nation, the child’s removal was wrongful.127

Although this provision has not been widely noted in the case law, it 

 

125. Pérez-Vera Report, supra note 19, ¶ 71: “[F]rom the Convention’s standpoint, the removal of a child by one of the joint holders without the consent of the 

other, is . . . wrongful, and this wrongfulness derives in this particular case, not from 

some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise. The Convention . . . seeks . . . to prevent a later 

decision on the matter being influenced by a change of circumstances brought about 

through unilateral action by one of the parties.”

126. Ozaltin, 708 F.3d at 369. See also In re Marriage of Witherspoon, 66 Cal. 

Rptr. 3d 586 (Cal. Ct. App. 2007), quoting from the Pérez-Vera Report: “Under the 

Convention, one parent’s removal or retention of a child may breach the second parent’s custodial rights under the law of the children’s habitual residence, even if such 

acts do not breach the law itself. The Convention’s true nature is revealed most clearly 

in these situations: it is not concerned with establishing the person to whom custody 

of the child will belong at some point in the future, nor with the situations in which it 

may prove necessary to modify a decision awarding joint custody on the basis of facts 

which have subsequently changed. It seeks, more simply, to prevent a later decision 

on the matter being influenced by a change of circumstances brought about through 

unilateral action by one of the parties.”

127. See Convention, supra note 11, Article 15. As a cautionary note, courts 

should anticipate that an Article 15 request typically proceeds back and forth through 

the diplomatic channels of the Central Authorities. As a result, this may add delay to 

the proceedings. For this reason, Article 15 requests should be addressed early in the 

proceedings.
II. The Case in Chief for the Return of a Child 

33

appears that it has been used in some cases.128 For example, in Lakhera-Bonnefoy v. Lakhera-Bonnefoy,

129 mother was involved in a Hague 

proceeding pending in another country. In order to obtain a judicial 

determination that the United States was the child’s habitual residence, mother filed a request with the New York State Courts to issue 

an Article 15 finding that the child’s habitual residence was New York.

Based on the evidence presented by the mother, the court entered an 

order finding that under U.S. law, that the child’s habitual residence 

was the state of New York.

The procedure for obtaining information pursuant to Article 15 is 

cumbersome and may cause unnecessary delay.130 Another option for 

the court is to make direct contact with a Hague network judge (see 

infra page 180) and request information concerning the law of custody 

rights in the foreign jurisdiction.

c. “Chasing Orders.” In some cases, a left-behind parent may seek a 

custody order from the courts of the child’s habitual residence after

the child has been removed. This does not constitute an Article 15

request. Rather, these orders are commonly referred to as “chasing 

orders,” and they ordinarily have very little efficacy.131

 

128. See, e.g., Armiliato v. Zaric-Armiliato, 169 F. Supp. 2d 230 (S.D.N.Y. 2001)

(Article 15 declaration provided by petitioning father to court); Silverman v. Silverman (Silverman II), 338 F.3d 886 (8th Cir. 2003) (Israeli court provided Article 15 

declaration for use in U.S. courts); Sorenson v. Sorenson, No. 07-4720 (MJD/AJB), 

2008 WL 750531 (D. Minn. 2008) (unreported disposition) (father asserting that 

Australian Central Authority requested an Article 15 declaration).

129. 836 N.Y.S. 2d 486 (N.Y. Sup. Ct. 2006) (unreported disposition).

130. The Conclusions and Recommendations of the Sixth Special Commission on 

the practical operation of the 1980 and 1996 Conventions, June 2011, page 8, 

acknowledges the reporting of problems and delays in connection with the use of 

Article 15.

131. See, e.g., Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) (where father 

obtained chasing order ostensibly determining in his favor all issues that would be 

appropriate for the U.S. court to determine). In Feder, the U.S. court avoided any 

discussion of the Australian family court order in its analysis of the issue of custody 

rights and made its determination de novo. See also Hanley v. Roy, 485 F.3d 641 (11th 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

34

In White v. White,

132 the Fourth Circuit reviewed the significance 

of a court order changing custody to a left-behind parent two years 

after the child was removed by the parent having full custody. In 

White, mother and father were granted a legal separation by Swiss 

courts. Mother was granted full custody of the child and father was 

given the right to visits only. Mother left Switzerland with the child 

and relocated to the United States. Because she was the sole custodian 

of the child by court decree, she was entitled under Swiss law to move, 

and her relocation with the child was not in violation of father’s custody rights. Two years after mother’s departure from Switzerland with 

the child, a Swiss trial court awarded custody of the child to father.

The Fourth Circuit, however, pointed out that a determination whether a removal of a child is wrongful within the meaning of the Convention must be made on the facts as they existed at the time of removal.133 Citing to a number of sister-state decisions, the court determined 

that the lawful removal of a child from a country cannot be converted 

into wrongful retention by the subsequent issuance of a “chasing order” in favor of the left-behind parent.134

Similarly, in Walker v. Walker,

135 the parents disagreed whether the 

children’s habitual residence was in Australia or the United States.

Mother filed an action for divorce in Chicago and obtained a decree 

for sole custody of the children. On father’s appeal to the Seventh Circuit from a denial of his petition for return, mother contended that the 

case was moot because of the Illinois custody order. The court of appeals held the case was not moot. Article 17 of the Convention136 per-

 

Cir. 2007) (finding that removal of children from grandparents who were testamentary guardians was a wrongful removal).

132. 718 F.3d 300 (4th Cir. 2013).

133. Id. at 306. 

134. Id. at 306–07. Accord Redmond v. Redmond, 724 F.3d 729, 741 (7th Cir. 

2013).

135. 701 F.3d 1110 (7th Cir. 2013).

136. The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a 

child under this Convention, but the judicial or administrative authorities of the re-
II. The Case in Chief for the Return of a Child 

35

mits, but does not compel, recognition of a custody decree. The issue 

of habitual residence was still before the district court, and until that 

issue was decided, it could not be determined whether the U.S. or 

Australia was entitled to determine custody issues.137

Litigation may be complicated by the issuance of chasing orders 

giving the left-behind parent full custody. If the primary caretaker 

parent abducts the child, courts hearing the return case may be reluctant to order the child’s return to the habitual residence, placing the 

child in the immediate custody of a parent who played a lesser role in 

the care of that child. The Convention presumes that a child will be 

returned to his or her habitual residence, effectively restoring the status quo ante. Depending on the circumstances of the case, the existence 

of a chasing order altering that status quo may result in the child being 

returned to a situation that the court feels is inappropriate.138 Under 

such circumstances, the court may be motivated to craft its return 

order in such a manner that the return of the child does not pose a 

risk of physical or emotional harm. See the section on “Undertakings,”

infra at page 137.

d. Effect of Subsequent Custody Orders. The 1980 Convention is designed only for determining the merits of an abduction. It is not intended to address or resolve competing custody or jurisdictional 

claims that may engage the parties for years.

A number of recent cases have examined the question whether the 

removal of a child that—a removal not wrongful at the time—may 

later be transformed into a wrongful retention based upon subsequent 

court proceedings altering the custody rights of the left-behind parent.

In Barzilay v. Barzilay,

139 the parties and their children were residents 

 

quested State may take account of the reasons for that decision in applying this Convention. 

137. Id. at 1116.

138. These issues may arise in cases where there is a showing of previous domestic violence, child abuse or neglect, or circumstances that otherwise impact on the 

welfare of the child.

139. Barzilay II, 600 F.3d 912 (8th Cir. 2010).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

36

of Missouri. Their 2005 divorce decree provided that both parents had 

joint legal and physical custody and mother had primary parental responsibility. The decree also provided that upon one party moving to 

Israel, the other party “shall forthwith take such steps to move back to 

Israel so that Husband and Wife and the children shall reside within 

the same country.” Less than a year after the decree was entered, father relocated to Israel and pressured mother to relocate as well.

Mother agreed to take the children to Israel for a summer visit in 

2006. Father obtained an ex parte order preventing the removal of the 

children from Israel. In order to leave with the children, mother negotiated an agreement to the entry of an Israeli court order compelling 

her and the children to move to Israel by 2009, and designated the 

Israeli court as the only court with jurisdiction over the children and 

issues of immigration and custody. Father petitioned for return of the 

children to Israel, basing his case for habitual residence upon the Israeli decree and the relocation provisions of the Missouri decree. The 

trial court found the children’s habitual residence to be in the United 

States and denied father’s petition. The Eighth Circuit affirmed. The 

court determined that parties may not, by mere contract, establish the 

habitual residence of their children without regard to a factual basis 

supporting that agreement.140 Ultimately, the court characterized the 

Israeli and Missouri decrees as custody decrees, and, as such, not subject to enforcement through the use of the 1980 Hague Convention.

 

140. “As the discussion above makes clear, determination of habitual residence 

under the Hague Convention is a fact intensive inquiry particularly sensitive to the 

perspective and circumstances of the child . . . To allow parents simply to stipulate to 

any habitual residence they choose would render these factual considerations irrelevant . . . Any idea that parents could contractually determine their children’s habitual 

residence is also at odds with the basic purposes of the Hague Convention. The Convention seeks to prevent the establishment of ‘artificial jurisdictional links’ as a means 

to remove the child from the ‘family and social environment in which its life has developed.’” Pérez-Vera Report, supra note 19, at 428. It is difficult to imagine a jurisdictional link more artificial than an agreement between parents stating that their child 

habitually resides in a country where it has never lived. Barzilay II, 600 F.3d at 920–

21.
II. The Case in Chief for the Return of a Child 

37

Immediately before the alleged wrongful retention in this case began, 

the children’s habitual residence under the Hague Convention was in 

Missouri, where they had lived without interruption for five years. 

Under the Convention, it was consequently for the courts of Missouri to determine whether [mother’s] refusal to bring the children 

back to Israel was indeed wrongful and if so, to fashion an appropriate remedy. Instead of seeking to enforce his custody rights in the 

Missouri courts, however, [father] went to the court in Kfar Saba because, as he candidly testified in the district court, “it proposed better chances for me winning.” Having obtained a favorable judgment 

there, he then turned to the federal court seeking enforcement of his 

newly minted custody rights through an ICARA petition. This course 

of litigation not only betrays a fundamental misunderstanding of the 

Hague Convention, but also precisely the sort of international forum 

shopping the Convention seeks to prevent.141

Similarly, in Redmond v. Redmond,

142 mother moved from Ireland

with her child and relocated to Illinois in 2007. The child’s mother 

and father were not married. Under Irish law, father had no custody 

rights. As such, father could not object to the removal of the child.

Shortly after mother and the child relocated to the United States, father commenced proceedings in Ireland to establish his paternal and 

custody rights. After three-and-one-half years of custody litigation in 

Ireland, father ultimately obtained a custody decree in 2011 granting 

him paternity rights and joint custody of the child. The decree also 

ordered that both the mother and her child were to return to Ireland 

to live, despite the fact that the child had lived in the United States 

with mother for the past three and a half years. In defiance of the Irish 

decree, mother refused to relocate with the child back to Ireland. Father thereupon petitioned for return of the child to Ireland, contending that mother had wrongfully retained the child in the United States 

because she failed to return the child to Ireland as required by the 

Irish decree. The trial court granted the petition, finding that mother 

wrongfully retained the child when she violated the Irish court order 

 

141. Id. at 922. 

142. 724 F.3d 729 (7th Cir. 2013).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

38

for her and the child to return to Ireland. The Seventh Circuit reversed, finding that the child had clearly established a habitual residence in the United States. 

The Redmond court characterized the question as “Is a change in 

one parent’s custody rights enough to make the other parent’s continued physical custody of the child a putative wrongful ‘retention’ under 

the Convention?” Stated differently, does the parent with physical 

custody of a child commit a wrongful retention—colloquially, an “abduction”—by reneging on a promise, made under oath, to obey a newly entered custody order in favor of the other parent?”143 In answering 

those questions in the negative the court stated that:

[T]he concepts of removal and retention can be understood only by 

reference to the child’s habitual residence; a legal adjustment of a 

parent’s custody rights does not by itself give rise to an abduction 

claim.

• • •

[A] parent may not use the Convention to alter the child’s residential 

status based on a legal development in the parent’s favor. The availability of the return remedy depends on the child’s habitual residence 

because the “retention of a child in the state of its habitual residence 

is not wrongful under the Convention.”144

e. Methods of Establishing Custody Rights. Custody rights under the 

Convention may be established by (1) operation of law, (2) judicial or 

administrative decision, or (3) agreement of the parties.145 Courts are 

frequently requested to interpret foreign law questions, especially 

 

143. Id. at 740. Both the mother and child were present in Ireland for the final 

custody hearing in February 2010. When the court ordered mother and child to return to Ireland to live, mother requested permission to return to the United States 

with the child to prepare for their court-ordered move back to Ireland. The Irish court 

conditioned mother and child’s return to the United States upon mother’s promise to 

the court, under oath, that she would return to Ireland with the child by the end of 

the next month.

144. Id. at 742 (citing Barzilay II, 600 F.3d at 916).

145. See Convention, supra note 11, Article 3.
II. The Case in Chief for the Return of a Child 

39

when analyzing the question whether a parent has “custody rights”

under the Convention. Proof of foreign law may be established pursuant to Rule 44.1 of the Federal Rules of Civil Procedure.

146 The Convention also envisions that proof of foreign law may be established by 

the use of “certificates or affidavits,” Central Authority opinions, letters, and expert testimony.147

i. Custody Rights Established by Operation of Law. Courts frequently look to the establishment of custody rights by operation of 

law, particularly in cases involving unmarried parents or where married parties have not previously sought orders relating to the status of 

their marriage or the custody of their children. For example in Yang v. 

Tsui (Yang II),

148 the court determined the custody rights of unmarried 

parents pursuant to the law of British Columbia, the child’s habitual 

residence. Under British Columbia law, the parent with whom the 

child “usually resided” is entitled to custody of the child.149 Similarly, 

in Bader v. Kramer (Bader I),

150 the court applied the law of the child’s 

habitual residence, in that case Germany. The parents’ divorce agreement granted only visitation rights to father, with no underlying 

award of custody. Under German law, absent an order granting one 

 

146. Fed. R. Civ. P. 44.1: “A party who intends to raise an issue about a foreign 

country’s law must give notice by a pleading or other writing. In determining foreign 

law, the court may consider any relevant material or source, including testimony, 

whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination must be treated as a ruling on a question of law.”

147. See Pérez-Vera Report, supra note 19, ¶ 101. See also Whallon v. Lynn, 230 

F.3d 450, 458 (1st Cir. 2000) (establishing proof of foreign law by an affidavit of 

Mexican attorney); accord Shalit v. Coppe, 182 F.3d 1124, 1130 (9th Cir. 1999) (finding that father’s filing of declaration of his Israeli attorney is not sufficient); Friedrich 

v. Friedrich (Friedrich II), 78 F.3d 1060, 1064 (6th Cir. 1996) (interpreting German 

civil code and noting that “[w]e review the district court’s findings of fact for clear 

error and review its conclusions about American, foreign, and international law de 

novo”); Giampaolo v. Erneta, 390 F. Supp. 2d 1269 (N.D. Ga. 2004) (establishing 

foreign law via letters from Argentine Central Authority).

148. 499 F.3d 259 (3d Cir. 2007).

149. Id. at 277.

150. 445 F.3d 346 (4th Cir. 2006).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

40

parent sole custody of the child, both parents retain “parental responsibility” for the child. Hence, father had enforceable custody rights.151

And in Patrick v. Rivera-Lopez152 a child was born in Puerto Rico to an 

unmarried couple. Subsequently, the parties married in Puerto Rico 

and then moved to the United Kingdom. The First Circuit held that 

father had established his custody rights pursuant to U.K. law (the 

child’s habitual residence) by virtue of the United Kingdom’s recognition of Puerto Rico’s legitimation statute providing that a child is legitimated by the subsequent marriage of the parents.153

(a) Choice of law: territorial law. Yang raised another point 

regarding choice of law. Many countries, including the United States, 

contain individual territories that have their own unique systems of law. 

Countries with territories include Canada,

154 Mexico,155 and Australia.

156 Article 31 of the Convention provides that where there are two or 

more systems of law applicable to different territorial units within a 

country, the law of the habitual residence “shall be construed as referring to the law of the territorial unit in that State where the child habitually resides.” Since the United States has no national system of family 

law, state laws are used to define parents’ custody rights.157

(b) Patria potestas. Principally in civil-law jurisdictions, including Central and South America, the right of patria potestas may 

establish enforceable rights of custody under the Convention. Patria 

potestas is a legal concept derived from Roman Law that connotes “all 

the duties and rights of the parents in relationship to their children 

who have not reached majority, regarding the care, development and 

 

151. Id. at 351.

152. 708 F.3d 15 (1st Cir. 2013).

153. Id. at 20.

154. See, e.g., Application of McCullough on Behalf of McCullough, 4 F. Supp. 2d 

411 (W.D. Pa. 1998).

155. See, e.g., Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000) (utilizing the law of 

the State of Baja California Sur); Perez v. Garcia, 148 Wash. App. 131, 198 P.3d 539 

(Wash. App. 2009).

156. Feder v. Evans-Feder, 63 F.3d 217, 221–22 (3d Cir. 1995).

157. Id.; see also Text & Legal Analysis, supra note 73, at 10,506. 
II. The Case in Chief for the Return of a Child 

41

education of their children.”

158 Some U.S. courts have held that the 

right of patria potestas does not overrule contrary provisions spelled 

out in a valid custody agreement.159 Other cases, however, have incorporated the concept of patria potestas into agreements and orders.160

 

158. Altamiranda Vale v. Avila, 538 F.3d 581, 584 (7th Cir. 2008) (explaining the 

right of patria potestas as interpreted in Venezuela); see also In re Ahumada Cabrera, 

323 F. Supp. 2d 1303 (S.D. Fla. 2004); Mendez Lynch v. Mendez Lynch, 220 F. Supp. 

2d 1347 (M.D. Fla. 2002). In Whallon v. Lynn, 230 F.3d 450, 456 n.7 (1st Cir. 2000), 

the First Circuit explained the origin and transition of the doctrine: 

Patria potestas is a concept derived from Roman law and originally meant paternal 

power. It referred to a father’s “near absolute right to his children, whom he viewed as 

chattel,” a right with which courts were powerless to interfere. (citation omitted); see 

also Black’s Law Dictionary 1188 (7th ed. 1999) (defining patria potestas as “[t]he authority held by the male head of a family over his children and further descendants in 

the male line, unless emancipated,” initially including “the power of life and death”). 

In contrast, the Roman legal tradition did not provide wives with rights of parental authority. (citation omitted).

• • •

. . . Latin American countries with civil code traditions appear to recognize some form of 

patria potestas rights. Pesin v. Rodriguez, 77 F. Supp. 2d 1277, 1286 (S.D. Fla.1999)

(noting, in Hague Convention case, that under Venezuela’s code father and mother “‘are 

vested with the parental authority until a judicial decision establishes otherwise’” and 

that “father and mother who exercise parental authority have custody of their children . . 

. shall elect by mutual consent their place of domicile, residence or domicile [sic]”; finding that mother’s removal of child breached father’s rights of custody under the Convention). This case highlights the difficulties in imposing Anglo-American definitions of custody on legal systems, like Mexico’s, that have different origins and traditions. Baja California Sur’s code suggests the continuing resilience of patria potestas rights (albeit in a diluted form) under Mexican law, despite the presumption that physical custody of children under age seven be awarded to the mother, at least in cases of divorce.

159. See, e.g., Gonzales v. Gutierrez, 311 F.3d 942, 954 (9th Cir. 2002) (holding 

Mexico’s doctrine of patria potestas “does not confer rights of custody upon the noncustodial parent where a competent Mexican court has already decided the rights and 

obligations of both parents”), overruled on other grounds, Abbott v. Abbott, 130 S. Ct. 

1983, 1986 (2010); see also Ibarra v. Quintanilla Garcia, 476 F. Supp. 2d 630, 635 

(S.D. Tex. 2007) (holding “to the extent that Mexican law of patria potestas afforded 

plaintiff any right of custody of the child, plaintiff relinquished such rights in the 

agreed divorce decree”).

160. See, e.g., Lieberman v. Tabachnik, 625 F. Supp. 2d 1109, 1123–24 (D. Colo. 

2008) (finding the Mexican interpretation of patria potestas to be consistent with 

Convention’s definition of custody); Giampaolo v. Erneta, 390 F. Supp. 2d 1269 (N.D. 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

42

ii. Custody Rights Established by Judicial or Administrative Decision.

161 Decisions or custody determinations made before the child has 

been removed from the habitual residence will typically define the 

nature of the custodial relationship, whether those judgments have 

been issued by a U.S. court or the court of a foreign nation.

162 A custody decree may be effective even if it is obtained ex parte.

163 Additionally, a temporary custody order granting custody rights will support a petition for return even though the court has not made a final 

ruling on the merits of the custody case. In Kufner v. Kufner,

164 a temporary court order awarding mother primary care of the children and 

granting father visitation rights did not terminate father’s custody 

rights. Under German law, joint custody remained in effect until the 

death of a parent or a court order terminating joint custody. Mother’s 

removal of the children in the face of a nonremoval order from the 

 

Ga. 2004)) (commenting on the incorporation of patria potestas in Argentine agreement); see also Lalo v. Malca, 318 F. Supp. 2d 1152 (S.D. Fla. 2004) (showing Panamanian divorce decree that provided physical custody to the mother, visitation rights 

to father, and shared patria potestas rights).

161. Although in most countries custody and visitation decisions are typically 

made only by courts, in some countries these decisions may be made by administrative bodies. See Viragh v. Foldes, 612 N.E.2d 241, 243, 415 Mass. 96, 98 (1993) (“In 

Hungary, custody issues are decided by the courts while specifics of visitation matters 

are determined by an administrative system, referred to as the Guardianship Authority.”); see also Text & Legal Analysis, supra note 73, at 10,506–07 (“Custody rights 

[arise] by reason of judicial or administrative decision. Custody rights embodied in 

judicial or administrative decisions fall within the Convention’s scope. While custody 

determinations in the United States are made by state courts, in some Contracting 

States, notably the Scandinavian countries, administrative bodies are empowered to 

decide matters relating to child custody including the allocation of custody and visitation rights.”). 

162. Note, however, that judgments of a foreign nation are not entitled to the 

protection of full faith and credit. See Diorinou v. Mezitis, 237 F.3d 133, 142 (2d Cir. 

2001). Full faith and credit applies only to United States courts’ orders and judgments 

regarding the Hague Convention. See Van Driessche v. Ohio-Esezeoboh, 466 F. Supp. 

2d 828, 843 (S.D. Tex. 2006) (“As a general matter, judgments rendered in a foreign 

nation are not entitled to the protection of full faith and credit.”).

163. See, e.g., Van De Sande v. Van De Sande, 431 F.3d 567, 569 (7th Cir. 2005).

164. 519 F.3d 33 (1st Cir. 2008).
II. The Case in Chief for the Return of a Child 

43

German court was sufficient to confer upon father “rights of custody”

that supported his successful application for return of the children.165

It is not required that orders conferring custody rights be issued 

by the courts of the child’s habitual residence. In Brooke v. Willis,

166

where father was a resident of England and mother was detaining the 

child in the state of Virginia, the existence of a court order from California was held to govern the custodial rights of the parties. The California order granted each parent equal joint legal and physical custody 

of the child. The district court found that father had custody rights 

pursuant to the California order:

Although the 1989 Stipulation and Order regarding custody . . . was 

made by a California court rather than a British court, the explanatory report accompanying the Convention provides that a judicial decision regarding custody may originate in a country other than the 

place of habitual residence (citations omitted). Furthermore, when 

custody rights are exercised in the place of habitual residence based 

on a foreign custody decree, it is not necessary for the state of habitual residence to formally recognize that decree (citation omitted).167

If a parent is able to obtain a favorable custody decree from a nation 

that is not the child’s habitual residence, the court may disregard that 

decree. Article 17 of the Convention provides the following:

The sole fact that a decision relating to custody has been given in or 

is entitled to recognition in the requested State shall not be a ground 

for refusing to return a child under this Convention, but the judicial 

or administrative authorities of the requested State may take account 

of the reasons for that decision in applying this Convention.

In Altamiranda Vale v. Avila,

168 mother and father divorced in Venezuela. Mother obtained father’s consent to travel with their children 

to Florida for five days on the pretense that she was going to a wedding. Mother left Venezuela, but instead flew to Illinois where she 

 

165. Id. at 39.

166. 907 F. Supp. 57 (S.D.N.Y. 1995).

167. Id. at 62.

168. 538 F.3d 581 (7th Cir. 2008).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

44

settled and married a man she had met on the Internet. Father petitioned for a return of the children. The parties agreed to a dismissal of 

father’s petition based on their written agreement that the children 

would be in mother’s custody but would spend every summer and 

lengthy holidays with father in Venezuela. The agreement provided 

that if mother failed to comply with its terms, father could refile his 

Hague Convention petition. The agreement further provided that the 

children’s habitual residence was Illinois, and mother obtained an 

uncontested state judgment incorporating the terms of the agreement. 

When mother defaulted on her promise to allow the children to travel 

to visit with their father, father moved to set aside the judgment dismissing his Hague application and reinstate his request for the return 

of the children. Mother raised the Illinois judgment as a defense to his 

petition, contending that the children’s habitual residence was no 

longer Venezuela pursuant to the Illinois decree, and argued that the 

Illinois decree was entitled to full faith and credit. She also contended 

that the reopening of father’s Hague case was barred by the RookerFeldman169 doctrine. The Seventh Circuit rejected each of mother’s 

contentions and ordered the children returned to Venezuela, finding 

that Article 17 explicitly allowed courts to override a custody decree

obtained by fraud.170

iii. Custody Rights Established by Agreement. Article 3 provides 

that custody rights may be established by “an agreement having legal 

effect” under the law of the child’s habitual residence. Such agreements do not have to be reduced to a judgment or incorporated into 

 

169. Noel v. Hall, 341 F.3d 1148, 1156, 1158, 1163–64 (9th Cir. 2003). The 

Rooker-Feldman doctrine bars federal courts from “exercising subject-matter jurisdiction over a proceeding in which a party losing in state court seeks what in substance 

would be appellate review of the state judgment in a United States district court, based 

on the losing party’s claim that the state judgment itself violates the loser’s federal 

rights.” See Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Ct. of Appeals v. 

Feldman, 460 U.S. 462 (1983). See discussion of the Rooker-Feldman doctrine infra at 

page 169.

170. Altamiranda Vale, 538 F.3d at 585. 
II. The Case in Chief for the Return of a Child 

45

custody orders in order to be binding.171 For example, in Carrascosa v. 

McGuire,

172 the court found that the parties signed a valid, binding 

“Parenting Agreement” to resolve their custody issues without seeking

“any court’s imprimatur.” Similarly, in Vela v. Ragnarsson,

173 an 

agreement between mother and father transferring custody of the child 

to father was found to be effective under Icelandic law once the 

agreement was approved by a district commissioner.174

However, a custody agreement must be sufficiently definite to be 

accorded legal significance. In re Application of Adan175 involved an 

informal agreement made by the parents that addressed the parenting 

of the child. During Hague litigation, the parties failed to provide the 

court with an English version of the document and were vague on 

precisely what the parenting agreement provided. The court noted:

Indeed, [father] conceded in his testimony before the District Court 

that he did not consider the agreement binding because it “was not 

ratified in front of a judge,” and that the agreement “didn’t last long 

really.” The parties have not cited, and the District Court did not 

mention, any provisions of Argentine law related to the creation, 

terms, or enforceability of such agreements, and we therefore have 

 

171. The Legal Analysis of the Convention recites a brief but relevant history on 

this part of Article 3:

Comments of the United States with respect to language contained in an earlier draft 

of the Convention (i.e., that the agreement “have the force of law”) shed some light on 

the meaning of the expression “an agreement having legal effect.” In the U.S. view, the 

provision should be interpreted expansively to cover any legally enforceable agreement even though the agreements may not have been incorporated or referred to in a 

formal custody judgment. Actes et documents de la Quatorzieme Session, (1980) Volume III. Child Abduction, Comments of Governments at 240. The reporter’s observations affirm a broad interpretation of this provision: As regards the definition of an 

agreement which has “legal effect” in terms of a particular law, it seems that there 

must be included within it any sort of agreement which is not prohibited by such a 

law and which may provide a basis for presenting a legal claim to the competent authorities. Pérez-Vera Report, paragraph 70 at 447.

Text & Legal Analysis, supra note 73, at 10,507.

172. 520 F.3d 249, 256 (3d Cir. 2008).

173. 386 S.W.3d 72 (Ark. App. 2011).

174. Id. at 76. 

175. 437 F.3d 381 (3d Cir. 2006).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

46

insufficient information to conclude whether the agreement had “legal effect under the law of [Argentina],” as required by Article 3 of 

the Convention.176

iv. Agreements Establishing Habitual Residence. Parents may not 

arbitrarily fix a child’s habitual residence by an agreement between 

them. In Barzilay v. Barzilay (Barzilay II),

177 mother took the parties’ 

three children to Israel to visit with their father. While in Israel, father 

commenced a custody action, ultimately resulting in the parties reaching an agreement that was approved by an Israeli court. The agreement, reduced to a formal judgment, provided that mother and the 

children would repatriate to Israel by August 2009 and mother’s failure to do so would amount to an abduction under the Hague Convention. The judgment also designated the Israeli courts as the only proper jurisdiction for handling custody issues between the parents. Soon 

after mother and children returned to the United States, father filed a 

Hague Convention action in federal district court.178 The district court 

found that the children’s habitual residence was in Missouri. Father 

argued that the Israeli judgment was res judicata and entitled to 

recognition in U.S. courts. He also argued that the parties’ agreement 

in the judgment was a binding contract establishing the children’s 

habitual residence in Israel.

The court found both of father’s arguments to be unpersuasive. As 

a factual matter, the Israeli judgment conceded that the children’s 

habitual residence was in Missouri. The district court found, however, 

that a recitation in a custody order fixing the children’s habitual residence by consent was ineffectual:

We have held that “[h]abitual residence may only be altered by a 

change in geography and passage of time.” Silverman, 338 F.3d at 898. 

 

176. Id. at 393.

177. 600 F.3d 912 (8th Cir. 2010).

178. The district court abstained on the basis that the Missouri state court had 

adjudicated that Hague petition, but on appeal the matter was remanded with instructions to hear the merits of the petition. Barzilay v. Barzilay (Barzilay I), 536 F.3d 844 

(8th Cir. 2008).
II. The Case in Chief for the Return of a Child 

47

It follows that it may not be altered by simple parental fiat. In other 

words, “[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.” Mozes, 239 F.3d at 

1078. 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. Indeed, [father] has not cited a decision by any court anywhere 

in the world embracing such a proposition.179

5. Rights of Custody Versus Rights of Access

Rights of custody support a Hague petition for the return of a child; 

rights of access alone do not.180 For this reason, it is important to determine if a petitioning party possesses rights of custody or rights of 

access. Article 5 of the Convention defines these distinct rights as follows:

For the purposes of this Convention—

a) “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;

b) “rights of access” shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.

In Jenkins v. Jenkins,

181 the parties, both Israeli citizens, moved to 

the United States for the purpose of seeking better employment. They 

lived in Ohio for almost three years and became established there. 

When their marriage deteriorated, mother wanted to go back to Israel

with their child, but father refused to allow the child to leave the United States. Mother, who still resided in the United States, commenced 

 

179. Barzilay II, 600 F.3d at 920. 

180. While a return remedy may not be used to “organize” or enforce rights of 

access, there is some authority that a parent may petition for a court to enforce access 

rights in the United States. See discussion infra at page 173.

181. 569 F.3d 549 (6th Cir. 2009). 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

48

an action for return of the child to Israel. The Sixth Circuit denied 

mother’s application, finding that there was no breach of her rights of 

custody. The court noted, 

In refusing to let [mother] take [the child] to Israel, [father] may arguably have committed a breach of [mother’s] “rights of access” to 

[the child], (footnote omitted) but he did not commit a “breach of 

rights of custody . . . under the law of the State in which the child 

was habitually resident immediately before the [alleged] removal or 

retention.”

182

6. Ne Exeat Orders—Abbott v. Abbott

Abbott183 addressed an issue that generated conflicting rulings in the 

courts of appeals: Can a parent with only access rights acquire custody 

rights if a ne exeat clause accompanies the access rights? In a six-tothree opinion, the Supreme Court held that a ne exeat184 order confers 

a right of custody to a left-behind parent, entitling that parent to maintain an action under the Convention.

This decision reversed the Fifth Circuit opinion185 that followed 

the Second Circuit judgment in Croll v. Croll.

186 Croll held that a parent with visitation rights and a ne exeat clause possessed only part of 

the “bundle of rights” that encompass “rights of custody.” Croll reasoned that such limited rights are insufficient to compel a return remedy under the Convention. The Fourth and Ninth Circuits had also 

 

182. Id. at 555.

183. 560 U.S. 1 (2010). 

184. As in Abbott, a ne exeat order typically restrains a parent, or both parents, 

from removing a child from the jurisdiction of the court, or from moving a child 

across an international frontier without the permission of the other parent or a court. 

Usually this right is not absolute, and if permission to remove the child is unreasonably withheld, or a court determines that good cause for continued restraint no longer 

exists, a court of competent jurisdiction may vacate the ne exeat order.

185. Abbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008).

186. 229 F.3d 133 (2d Cir. 2000), abrogated by Abbott v. Abbott, 130 S. Ct. 1983 

(2010). 
II. The Case in Chief for the Return of a Child 

49

adopted Croll’s reasoning.187 However, in Furnes v. Reeves,

188 the Eleventh Circuit refused to follow the holdings of the Fourth and Ninth 

Circuits, holding that a ne exeat provision conferred a right that would 

satisfy the Convention’s definition of “custody rights,” thus creating a 

split among the circuits. 

In Abbott, mother, father, and child lived in Chile since the child 

was an infant. The Chilean court granted mother the daily care and 

control of the child, and father was granted “direct and regular” visitation. According to Chilean statute, once a parent is granted visitation 

rights, a ne exeat right is conferred, requiring the custodial parent’s 

permission before the child may be removed from the country.189 An 

additional ne exeat was ordered at mother’s request when she became 

concerned that the child’s father might remove the child. In 2005, 

while custody proceedings were still pending before the Chilean 

courts, mother took the child to Texas in violation of the order of the 

Chilean court and Chilean statute. Father commenced a Hague application in Texas.

The U.S. Supreme Court held that father’s statutory ne exeat clause 

gave him both the right to determine the child’s place of residence and 

a joint right relating to the care of the child. The court acknowledged 

that a ne exeat clause did not fit within “traditional notions of physical 

custody,” but reasoned that the Convention established its own concept of custody rights consistent with increasingly broad definitions in 

use within the United States.190

 

187. See Fawcett v. McRoberts, 326 F.3d 491 (4th Cir. 2003); Gonzales v. 

Gutierrez, 311 F.3d 942 (9th Cir. 2002). State courts that have considered the issue 

appear to have accepted Croll’s reasoning regarding the lack of efficacy of a ne exeat

order. See Ish-Shalom v. Wittman, 797 N.Y.S.2d 111, 19 A.D.3d 493 (App. Div. 2005); 

Welsh v. Lewis, 292 A.D.2d 536, 740 N.Y.S.2d 355 (App. Div. 2002).

188. 362 F.3d 702 (11th Cir. 2004) (abrogated on other grounds by Lozano v. 

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

189. See, e.g., Law No. 16,618, Julio 22, 1966, Diario Oficial [D.O.] (Chile).

190. Abbott v. Abbott, 560 U.S. 1, 12, 130 S. Ct. 1983, 1991 (2010). See also 

Sanchez v. Suasti, 140 So.3d 658, 661 (Fla. App. 2014), following Abbott, finding that 

father had rights of custody by virtue of a Brazilian appellate court ruling that mother 

could not remove the child from the country without father’s consent.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

50

Mother argued that the ne exeat order imposed by the Chilean 

court did not have a provision that granted father a right to consent to 

the child’s removal. She argued that the provision could not confer 

custody rights upon father, but rather was merely a provision that 

protected the Chilean court’s continuing jurisdiction. The court declined to rule on the legal significance of a ne exeat clause, which did 

not include a provision granting a parent the right to consent to the 

removal of a child. In dictum, however, the court noted, “Even a ne 

exeat order issued to protect a court’s jurisdiction pending issuance of 

further decrees is consistent with allowing a parent to object to the 

child’s removal from the country.”

191

D. Habitual Residence

Resolving the question of a child’s habitual residence is indispensible 

to a Hague Convention return case because wrongful removal of a 

child can occur only if the child has been removed or retained from 

his or her habitual residence.192 The habitual residence determination 

is also necessary when an issue arises regarding whether the parent 

requesting return has custody rights since those rights are determined 

according to the law of the child’s habitual residence.193

“Habitual residence” is not defined by the Convention. According 

to the Pérez-Vera Report, “We shall not dwell at this point upon the 

notion of habitual residence, a well-established concept in the Hague 

Conference that regards it as a question of pure fact, differing in that 

respect from domicile.”194

 

191. Abbott, 560 U.S. at 14.

192. In order for the Convention to apply, the child must have been “habitually 

resident in a Contracting State immediately before any breach of custody or access 

rights.” Convention, supra note 11, Article 4. “In practical terms, the Convention may 

be invoked only where the child was habitually resident in a Contracting State and 

taken to or retained in another Contracting State.” Text & Legal Analysis, supra note 

73, at 10,504.

193. See discussion supra at page 30.

194. Pérez-Vera Report, supra note 19, ¶ 66.
II. The Case in Chief for the Return of a Child 

51

Before a substantial body of U.S. case law developed, courts adopted the definition of habitual residence set forth in a case from the 

United Kingdom, In re Bates:

195

[T]here must be a degree of settled purpose. The purpose may be 

one or there may be several. It may be specific or general. All that the 

law requires is that there is a settled purpose. That is not to say that 

the propositus intends to stay where he is indefinitely. Indeed his 

purpose while settled may be for a limited period. Education, business or profession, employment, health, family or merely love of the 

place spring to mind as common reasons for a choice of regular 

abode, and there may well be many others. All that is necessary is 

that the purpose of living where one does has a sufficient degree of 

continuity to be properly described as settled.196

The “settled purpose” language of Bates has continued to be one of the 

hallmarks of the habitual residence inquiry. However, as discussed 

infra, some later U.S. cases began to focus on the issue of “parental 

intent.”

The question of whether a particular place is a child’s habitual residence is a fact-driven issue.

197 Courts have considered a number of factors when analyzing habitual residence issues, including language issues,

198 how well the child has acclimated to his or her environment, 

the intentions of the child’s parents, the time that the child was physically located in a particular place,199 and personal issues, such as medical care, schooling,200 social life,201 extended family, friends, and age.202

 

195. [1989] EWHC (Fam) CA 122/89 (Eng.).

196. Id. at 10.

197. See, e.g., Holder v. Holder (Holder II), 392 F.3d 1009, 1016 (9th Cir. 2004) 

(opining that cases involving military families do not “generate a typical fact pattern 

and, in all Convention cases, emphasis is on the details of the case at hand”).

198. See, e.g., McClary v. McClary, No. 3:07-cv-0845, 2007 WL 3023563 (M.D. 

Tenn. 2007) (unreported disposition).

199. See, e.g., Miller v. Miller, 240 F.3d 392, 400 (4th Cir. 2001); Feder v. EvansFeder, 63 F.3d 217, 224 (3d Cir. 1995).

200. See, e.g., Ruiz v. Tenorio, 392 F.3d 1247, 1255 (11th Cir. 2004); Silverman 

v. Silverman (Silverman II), 338 F.3d 886, 898–99 (8th Cir. 2003).

201. See, e.g., Holder II, 392 F.3d at 1020.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

52

Since the purpose of the habitual residence inquiry is to fix the place for 

the exercise of child custody jurisdiction, the question of which place 

qualifies as the habitual residence is limited to the particular country in 

question, not to discrete locations within that country.203

The concept of habitual residence must be distinguished from 

“domicile.”204 The differences between the two are noted in the PérezVera Report and by most courts.205 Domicile embodies elements of 

future intent, citizenship, and nationality—concepts that the Convention does not consider determinative of a child’s habitual residence.206

Nationality and citizenship have no bearing on a determination of a 

child’s habitual residence. It is not unusual for a court to be presented 

with a situation where both parents and children share the same na-

 

202. See, e.g., id. at 1019.

203. See Hollis v. O’Driscoll, 739 F.3d 108, 112 (2d Cir. 2014), citing Mota v. 

Castillo, 629 F.3d 108 (2d Cir. 2012).

204. A handful of early state-court decisions wrongly equated the concept of 

habitual residence to that of domicile. See, e.g., Cohen v. Cohen, 602 N.Y.S.2d 994, 

998 (N.Y. App. Div. 1993) (noting that domicile was “very analogous” to habitual 

residence); see also Roszkowski v. Roszkowska, 274 N.J. Super. 620 (1993).

205. See Pérez-Vera Report, supra note 19, ¶ 66. See, e.g., Kijowska v. Haines, 

463 F.3d 583, 587 (7th Cir. 2006) (“[E]quating habitual residence to domicile 

would re-raise the spectre of forum shopping by encouraging a parent to remove 

the child to a jurisdiction having a view of domicile more favorable to that parent’s case. So, consistent with Congress’s recognition of ‘the need for uniform 

international interpretation of the Convention,’ 22 U.S.C. § 9001(b)(3)(B), ‘habitual residence’ should bear a uniform meaning, independent of any jurisdiction’s notion of domicile. Koch v. Koch, . . . 450 F.3d at 712.”). See also Friedrich 

v. Friedrich (Friedrich I), 983 F.2d 1396, 1401–02 (6th Cir. 1993) (“[H]abitual 

residence must not be confused with domicile. To determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions.”).

206. E.g., Rydder v. Rydder, 49 F.3d 369, 373 (8th Cir. 1995) (dismissing consideration of the children’s status as registered residents of Sweden on the basis that their 

official resident status had nothing to do with their habitual residence).
II. The Case in Chief for the Return of a Child 

53

tionality and citizenship, yet the child’s habitual residence is deemed 

to be another country.207

1. Habitual Residence—Division in the Circuits

a. Synopsis. There is a division among the circuits regarding the focus 

of the habitual residence inquiry. Circuits following the Ninth Circuit’s Mozes208 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?209 The second question in the Mozes analysis is 

whether there has been a change in geography for an “appreciable 

period of time”210 that is “sufficient for acclimatization.”211

Other circuits reject Mozes’s emphasis on parental intent.212 These 

circuits favor the test first enunciated in the Sixth Circuit’s seminal 

case of Friedrich I,

213 which calls for courts to direct their focus on the 

“past experiences of the child, not the intentions of the parents.”214

These courts emphasize the facts surrounding the child’s perceptions 

 

207. E.g., Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) (ordering child returned to Australia where both parents and child were American citizens living in 

Australia).

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

209. Id. at 1075.

210. Id. at 1078 (citing C v. S (Minor: Abduction: Illegitimate Child)), [1990] 2 

All E.R. 961, 965 (Eng.)). 

211. Id. at 1067 (citing Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995)). 

212. Robert v. Tesson, 507 F.3d 981, 992 (6th Cir. 2007); Stern v. Stern, 639 

F.3d 449, 452 (8th Cir. 2011); Karkkainen v. Kovalchuk, 445 F.3d 280, 292 (3d Cir. 

2006).

213. Friedrich v. Friedrich (Friedrich I), 983 F.2d 1396 (6th Cir. 1993).

214. Id. at 1401. The Friedrich analysis was adopted in People ex rel. Ron v. Levi, 

719 N.Y.S.2d 365, 367 (N.Y. App. Div. 2001).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

54

and degree of acclimatization, and, contrary to Mozes, relegate the 

question of parental intent to a subordinate role. 215

Despite the apparent differences in approach between the circuits, 

the Seventh Circuit has suggested that the disparity of focus is less 

dramatic than the case language might indicate: 

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. . . .

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.216

b. Majority View. In Nicolson v. Pappalardo,

217 the court observed that 

a majority of the circuits approach the question of habitual residence

beginning “with the parents’ shared intent or settled purpose regarding their child’s residence.”218 The First, Second, Fourth, and Fifth

Circuits219 place the primary focus upon parental intent, following the 

 

215. For an excellent review of the nuances of different tests for determining a 

child’s habitual residence among the various circuits—i.e., the Mozes line of cases 

versus the Feder, Friedrich, and Barzilay line—see Redmond v. Redmond, 724 F.3d 729, 

744–47 (7th Cir. 2013).

216. Redmond, 724 F.3d at 745–46.

217. 605 F.3d 100 (1st Cir. 2010). Accord Larbie v. Larbie, 690 F.3d 295 (5th Cir. 

2012), cert. denied, Larbie v. Larbie, 133 S. Ct. 1455 (2013).

218. Nicolson, 605 F.3d at 104.

219. See Zuker v. Andrews, 1999 WL 525936 (1st Cir. 1999) (unreported opinion); Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005); Larbie, 690 F.3d 295; Maxwell v. 

Maxwell, 588 F.3d 245 (4th Cir. 2009); Koch v. Koch, 450 F.3d 703 (7th Cir. 2006); 

Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). Note, however, that some courts 

apply some of the Mozes criteria, but deviate from it in other ways. See Whiting v. 

Krassner, 391 F.3d 540, 550 (3d Cir. 2004), cert. denied, 545 U.S. 1131 (2005) (finding an intent to abandon the United States as a prior habitual residence for an infant, 

who was to spend a two-year period in Canada, and then return to the United States). 

See also Norinder v. Fuentes, 657 F.3d 526 (7th Cir. 2011), where the court acknowledged that in Koch, 450 F.3d at 715, the Seventh Circuit adopted a “version” of the 

Mozes analysis by considering “the shared actions and intent of the parents coupled 

with the passage of time.” 
II. The Case in Chief for the Return of a Child 

55

Ninth Circuit decision in Mozes v. Mozes.

220 In Gitter v. Gitter221 the 

Second Circuit succinctly held

[W]e conclude that in determining a child’s habitual residence, a 

court should apply the following standard: First, the court should 

inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was 

shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual 

residence of the child. Second, the court should inquire whether the 

evidence unequivocally points to the conclusion that the child has 

acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest 

shared intent.222

Mozes cautions that parental intent cannot effect a change in the 

habitual residence “by wishful thinking alone,” but that it must be 

accompanied by an actual “change in geography”223 plus an “appreciable period of time.”224

The Mozes line of cases has been further explained by the Second

Circuit, in Guzzo v. Cristofano, as providing a test that is flexible 

enough to account for the “varied circumstances of individual cas-

 

220. 239 F.3d 1067 (9th Cir. 2001).

221. 396 F.3d 124 (2d Cir. 2005).

222. Id. at 134. Accord In re J.G., 301 S.W.2d 376, 381 (Tex. App. 2009).

223. Friedrich I, 983 F.2d at 1402.

224. Mozes, 239 F.3d at 1079. But it has been suggested that the time necessary to 

establish a habitual residence may be as short as one day. See Brooke v. Willis, 907 F. 

Supp. 57, 61 (S.D.N.Y. 1995) (finding a time period was one summer and stating, 

“Place of habitual residence is determined more by a state of mind than by any specific 

period of time; technically, habitual residence can be established after only one day as 

long as there is some evidence that the child has become settled into the location in 

question.”). In Bates, a period of three months was found sufficient to have constituted the child’s habitual residence. In re Bates, [1989] EWHC (Fam.) CA 122/89 (Eng.). 

Other cases have found habitual residence on periods of time as short as eight weeks.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

56

es.”225 Those circumstances include the age of the child, and the time 

spent in respective countries. The court observed

[A]lthough it makes sense to “‘regard the intentions of the parents as 

affecting the length of time necessary for a child to become habitually resident, because the child’s knowledge of these intentions is likely to color its attitude toward the contacts it is making,’” (citations 

omitted) courts must not forget that the core concern of “habitual 

residence” is where a child normally or usually lives. Once a court

“‘can say with confidence’” that the child has become settled into a 

new environment, habitual residence in that country is established.226

Mozes227 categorizes parental intent into three general fact patterns: (1) cases where there is an agreed-on intent to change a habitual 

residence; (2) cases where the parties agree to a temporary relocation; 

and (3) cases involving a relocation for an ambiguous or unspecified 

period of time.

i. Mutual Intent. The first Mozes category deals with cases where 

there was a mutual settled intent to change habitual residence, even 

though one party may have given a “grumbling acceptance.” Where 

parties have exhibited a mutual intention to relocate to another place, 

courts have found that the relocation amounts to a change in the 

child’s habitual residence.

228 In Feder v. Evans-Feder,

229 mother and 

father moved to Australia so that father could accept employment 

there. Father moved in advance, and the mother and child followed. 

Mother expressed an initial reluctance to relocate to Australia, but 

acquiesced in the move, joining in the plans to establish a life in that 

 

225. 719 F.3d 100, 108 (2d Cir. 2013).

226. Id. at 108–09.

227. Mozes v. Mozes, 239 F.3d 1067, 1076–77 (9th Cir. 2001). 

228. See Harsacky v. Harsacky, 930 S.W.2d 410, 415 (Ky. App. 1996) (finding 

that it was the intention of the parties to relocate to the United States for an indefinite 

period of time). See also Courdin v. Courdin, 375 S.W.3d 657 (Ark. App. 2010) (parties manifested mutual intent to permanently leave Brazil and settle in the United 

States).

229. 63 F.3d 217 (3d Cir. 1995). 
II. The Case in Chief for the Return of a Child 

57

country. After several months in Australia, mother surreptitiously 

removed the child back to the United States. Granting father’s petition 

for return of the child to Australia, the court relied on the analysis in 

Friedrich I, adding to the definition of habitual residence: 

. . . [W]e believe that a child’s habitual residence is 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. We further believe that a determination 

of whether any particular place satisfies this standard 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.

230

ii. Relocations for a Finite Period of Time. The second Mozes category

231 includes relocations that are intended for a specific and limited 

period of time. Where that time is relatively short, courts have refused 

to find a change in habitual residence. For example, in In re Morris232

father was offered a teaching position in Switzerland for ten months, 

resulting in the relocation of the mother and child to that country. 

Though the parents jointly intended to move back to Colorado after 

the teaching assignment ended, mother changed her mind during the 

ten months, wishing to stay in Europe. Father clandestinely returned 

to Colorado with the child, and mother filed a Hague Convention petition in district court. The court found that the child’s habitual residence was in Colorado, noting:

In determining the habitual residence of a child, the duration of the 

residence in the contracting state is a factor for consideration. See

Mozes v. Mozes, 19 F. Supp. 2d 1108, 1115 (C.D. Cal. 1998). Where 

the duration of a stay in a foreign country is intended to be indefinite, the habitual residence of a child is usually in that foreign country. See Falls v. Downie, 871 F. Supp. 100, 102 (D. Mass. 1994); 

Levesque v. Levesque, 816 F. Supp. 662, 666 (D. Kan. 1993). How-

 

230. Id. at 224 (emphasis added).

231. Mozes, 239 F.3d at 1076–77.

232. 55 F. Supp. 2d 1156 (D. Colo. 1999).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

58

ever, where the stay is intended for a limited, distinct period of time, 

especially for less than one year, courts have been reluctant to find 

that a new habitual residence has been established. See In re S (Minors), F.L.R. 70 (UK 1994).233

Even though parents may agree that a relocation is for a finite period of time after which return to the original home is contemplated, 

where the period of time is sufficiently long for the child to become 

acclimatized to the new environment, courts may find that a change of 

habitual residence has occurred. For example, in Whiting v. Krassner234

the parents agreed to allow their infant child to be relocated to Canada

for two years, then to be relocated back to the United States upon the 

occurrence of certain conditions. In finding that the child’s habitual 

residence shifted to Canada, the court stated:

[T]he fact that the agreed-upon stay was of a limited duration in no 

way hinders the finding of a change in habitual residence. Rather, as 

we stated in Feder, the parties’ settled purpose in moving may be for 

a limited period of time. See Feder, 63 F.3d at 223. Logic does not 

prevent us from finding that the shared intent of parents’ to move 

their eighteen-month old daughter to Canada for two years could result in the abandonment of the daughter’s prior place of habitual residence. Put more succinctly, in our view, the intent to abandon need 

not be forever; rather, intent to abandon a former place of residency 

of a one-year-old child for at least two years certainly can effectuate 

an abandonment of that former habitual residence.235

In Shalit v. Coppe,

236 a twelve-year-old boy relocated with his father to Israel so that his mother could attend law school in the United 

States. The duration of the relocation was agreed to be three years. At 

the end of the second year, the child traveled to Alaska to visit with 

his mother. She unilaterally decided not to return the boy, and father 

sought relief under the Hague Convention. Finding that the child had 

 

233. Id. at 1161.

234. 391 F.3d 540, 548–50 (3d Cir. 2004), cert. denied, 545 U.S. 1131 (2005). 

235. Id. at 550.

236. 182 F.3d 1124 (9th Cir. 1999). 
II. The Case in Chief for the Return of a Child 

59

become settled in Israel, the court ruled that the child’s habitual residence had changed to Israel.237

Under some circumstances, a child’s habitual residence may shift 

with his or her parents’ change in residence, even though the stays in 

each place were relatively brief. In Zuker v. Andrews,

238 mother and 

father, an unmarried couple, alternated residences between the United 

States, mother’s country of origin, and Argentina, father’s country. 

Father was involved in the recording industry in Argentina and consented to mother’s periodic return to the United States with the child. 

The child alternated between the United States and Argentina seven 

times between 1993 and 1996, never spending more than ten months 

in one location. The court found that the child’s habitual residence 

shifted with the moves stating, “[For the periods noted] [the child] 

was a habitual resident of the country in which he was actually situated. This is certainly true from the point of view of [the child]. It is also 

true from the point of view of the shared intentions of the parents.”239

 

237. Despite the finding that the child’s habitual residence had changed from 

Alaska to Israel, the court did not order the child returned, principally upon the basis 

that father failed to prove that mother’s retention of the child was in violation of his 

custody rights. Id. at 1131. In Toren v. Toren, 191 F.3d 23 (1st Cir. 1999), the First 

Circuit declined to return two children to Israel, finding that the question whether the 

habitual residence had changed was premature. The parties’ amended divorce agreement provided that the children would reside with the mother in the United States for 

a period of approximately four years, after which time they would return to Israel to 

go to school. At the end of the first year mother commenced an action to modify the 

custody arrangement requiring her to return the children to Israel. In denying father’s 

petition for return, the court reasoned that by the very terms of the Israeli judgment of 

divorce, mother was not wrongfully retaining the children since the children did not 

have to be returned to Israel for three more years. Until that time it was contemplated 

that mother would retain the children in the United States. The court further held that 

mother’s maintaining a custody modification action in Massachusetts courts did not 

amount to a violation of the Israeli judgment since the Massachusetts courts had yet to 

attempt to modify the judgment.

238. 2 F. Supp. 2d 134 (D. Mass. 1998). 

239. Id. at 138.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

60

iii. Lack of Mutual Intent. The third category cited by Mozes involves situations where parents agree to allow a relocation, but for an 

ambiguous or uncertain period of time. In these cases, the result seems 

to center around whether the stay was intended to be indefinite or 

whether there was a conflict in the parental intent. Where the intent 

points to an indefinite stay, courts have tended to find an abandonment of the prior habitual residence.240 Where, however, there is a 

lack of consensus between the parents whether the stay was indefinite 

or simply left for future negotiation, Mozes then finds that there is no 

mutual intent to abandon the prior habitual residence.241 This category 

of cases tends to be fact-specific, and, as noted in Mozes, the findings 

of the trial court are entitled to great deference.242

In Murphy v. Sloan,

243 the Ninth Circuit ruled that the relocation of 

mother and child to Ireland for a “trial period” did not result in the 

child acquiring a new habitual residence, despite the “trial period” 

lasting three years. The purpose for the move was to enable mother to 

obtain a master’s degree, and the parents never shared the intent that 

the move to Ireland be permanent. On appeal, the Ninth Circuit affirmed the district court’s finding that the parents did not have a 

shared, settled intent to abandon the United States as the child’s habitual residence. The appellate court also rejected the invitation to 

revise it’s holding in Mozes, noting that “nearly every circuit has 

adopted our view of the proper standard for habitual residence, which 

takes into account the shared, settled intent of the parents and then 

asks whether there has been sufficient acclimatization of the child to 

trump this intent.”244 Finally, the court rejected mother’s contention 

that the child had become acclimatized to Ireland during the three 

years that she primarily lived there.245

 

240. Mozes, 239 F.3d at 1077.

241. Id. at 1077–78.

242. Id. at 1078.

243. 764 F.3d 1144 (9th Cir. 2014).

244. Id. at 1150.

245. Id. at 1152 (see discussion regarding acclimatization).
II. The Case in Chief for the Return of a Child 

61

In Levesque v. Levesque,

246 an indefinite but substantially shorter 

period of relocation was found to constitute a change in the child’s 

habitual residence. Upon mother and father’s separation, mother returned with the child to Germany for an undetermined period of time 

with father’s consent. Approximately three months later, father went 

to Germany and abducted the child back to the United States. The 

court found that parents mutually agreed that both mother and child 

would return to Germany for “some” period of time, and this was sufficient to demonstrate an intention to alter the child’s habitual residence.247

iv. Acclimatization. Finally, Mozes recognizes that despite a lack 

of uniform parental intent, a relocation to a different country for a 

longer period of time may result in such a degree of acclimatization 

that the child acquires a new habitual residence. In this latter situation, however, the court advises that “in the absence of settled parental 

intent, courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned.”

248 For example, in Langa 

 

246. 816 F. Supp. 662 (D. Kan. 1993). 

247. Id. Cf. Cohen v. Cohen, 602 N.Y.S.2d 994, 158 Misc. 2d 1018 (Sup. Ct. 

1993). In Cohen, two children, both raised in Ohio and New York, were taken by their 

father to Israel. At the time he took the children, father had separated from the children’s mother, who had been their primary caretaker. The court found, based on 

conflicting evidence, that it was never the intention of the family to move to Israel, 

certainly not mother’s intention, and that the children were allowed to accompany the 

father for the purpose of meeting their paternal grandparents. “Since this court determines that it was not the mutual intent of the parties to move the children to Israel 

and, in fact, the intent of one of the parties was merely to permit a visit to that country, the habitual residence of the children was not changed from the United States of 

America.” Cohen, 602 N.Y.S.2d at 999, 158 Misc. 2d at 1026.

248. In Mozes, the court found

The Convention is designed to prevent child abduction by reducing the incentive of the 

would-be abductor to seek unilateral custody over a child in another country. The 

greater the ease with which habitual residence may be shifted without the consent of 

both parents, the greater the incentive to try. The question whether a child is in some 

sense “settled” in its new environment is so vague as to allow findings of habitual residence based on virtually any indication that the child has generally adjusted to life 

there. [footnote omitted]. Further, attempting to make the standard more rigorous 

might actually make matters worse, as it could open children to harmful manipulation 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

62

v. Langa,

249 the parents moved from the United States to South Africa, 

but maintained residences in separate cities. Mother and the two children lived with mother’s parents. The children did not reunite with 

their father, remaining in South Africa for only three weeks. The Third

Circuit held that a three-week stay with grandparents cannot be regarded, whether viewed objectively or subjectively, as sufficient to 

establish their habitual residence in South Africa, no matter how that 

term is defined.”250

In Wipranik v. Superior Court,

251 a California court of appeals affirmed the trial court’s finding that a stay of three years in Israel was 

sufficient to conclude that the child had acquired a new habitual residence. In addition to the length of time the child had spent in Israel,

the finding was further supported by evidence that the child attended

school in Israel for two years and had family and friends in that country. Mother’s contention that she only intended to stay in Israel for a 

temporary period of time was rejected by the court.252

c. Minority View. In the seminal case of Friedrich I,

253 the Sixth Circuit 

set forth five factors considered important in determining habitual 

residence questions, placing the focus on the child’s past experiences, 

and not on the issue of parental intent: 

1. courts should look to the facts and circumstances of each case 

as opposed to concepts of legal residence or domicile; 

2. courts should consider only the child’s experiences; 

 

when one parent seeks to foster residential attachments during what was intended to be 

a temporary visit-such as having the child profess allegiance to the new sovereign. . . .

The function of a court applying the Convention is not to determine whether a child is 

happy where it currently is, but whether one parent is seeking unilaterally to alter the 

status quo with regard to the primary locus of the child’s life.

Mozes, 239 F.3d at 1079. 

249. 549 F. App’x 114 (3d Cir. 2014).

250. Id. at 116.

251. 63 Cal. App. 4th 315 (1998).

252. Id. at 323.

253. Friedrich v. Friedrich (Friedrich I), 983 F.2d 1396 (6th Cir. 1993).
II. The Case in Chief for the Return of a Child 

63

3. courts should focus exclusively on the child’s past experience, 

and not future plans of the parents; 

4. a child may only have one habitual residence;

254 and 

5. habitual residence is not determined by the nationality of the 

child’s primary caregiver.255

In Robert v. Tesson,

256 the Sixth Circuit adhered to its previous test 

set out in Friedrich I, but also incorporated a major part of the Third 

Circuit’s holding in Feder v. Evans-Feder. The court held that “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.”257 The Robert court declared that the Feder language was 

consistent with its holding in Friedrich I, that the proper inquiry must 

“focus on the child, not the parents, and examine past experience, not 

future intentions.”258

 

254. There remains a question whether a child may acquire more than one habitual residence. See Brooke v. Willis, 907 F. Supp. 57 (S.D.N.Y. 1995) (implying the 

possibility of dual habitual residences). In Johnson v. Johnson, 493 S.E.2d 668 (Va. Ct. 

App. 1997), father and mother entered into a custody agreement that provided that 

their daughter would spend alternating school years in Sweden and the United States. 

Despite this agreement, substantial litigation ensued, including multiple Hague Convention cases. While it could be argued that had the agreement been followed, the 

child indeed had more than one habitual residence, it is not clear that the drafters of 

the Convention contemplated that this type of arrangement would fall within the 

purview of the Convention. See also Quinn v. Settel, 682 So. 2d 617 (Fla. Dist. Ct. 

App. 1996) (implying the concept of concurrent habitual residences where a child was 

the subject of a shared custody agreement between the parents, spending equal 

amounts of time in the United States and France). But cf. Blanc v. Morgan, 721 F. 

Supp. 2d 749 (W.D. Tenn. 2010) (holding that a child may only have one habitual 

residence); accord In re Morris, 55 F. Supp. 2d 1156 (D. Colo. 1999).

255. Robert v. Tesson, 507 F.3d 981, 989 (6th Cir. 2007). 

256. 507 F.3d 981 (6th Cir. 2007). 

257. Id. at 989.

258. Friedrich v. Friedrich (Friedrich I), 983 F.2d 1396, 1401 (6th Cir. 1993). 

But see Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012), where the Fifth Circuit refused 

to follow the Sixth Circuit’s child-centered approach, citing both Whiting v. Krassner,

391 F.3d 540 (3d Cir. 2004), and Mozes v. Mozes, 239 F.3d 1067, 1079 (9th Cir. 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

64

The Third, Seventh, and Eighth Circuits259 have adopted an approach that looks to both parental intent and the degree of the child’s 

settlement in determining the issue of habitual residence. In Stern v. 

Stern,

260 the Eighth Circuit cited to its previous decision in Barzilay v. 

Barzilay (Barzilay II)261 and noted that the issue of the child’s settlement must be viewed from the child’s perspective and that parental 

intent is not dispositive (under the Eighth Circuit’s decisions). Citing 

to decisions in the Third262 and Sixth263 Circuits, and rejecting the 

Mozes approach, the court noted that “[t]he child’s perspective should 

be paramount in construing this convention whose very purpose is to 

‘protect children’ (citation omitted) by preventing their removal from 

‘the family and social environment in which [their lives have] developed’.”264

2. Settled Versus Acclimatized

The terms “settled” or “acclimatized” are terms of art that are employed in two different contexts in cases arising under the 1980 Convention. First, Article 12 of the Convention specifically uses the term 

“settled”265 as part of the delay defense.266 Second, case law has used 

 

2001), noting that “‘The question whether a child is in some sense “settled” in its new 

environment is so vague as to allow findings of habitual residence based on virtually 

any indication that the child has generally adjusted to life there. We therefore opt 

against following the Sixth Circuit’s exclusively child-centered approach. To focus on 

a young child's experience encourages future “would-be abductor[s] to seek unilateral 

custody over a child in another country” or to delay returning to the child’s original 

habitual residence as long as possible.’” Larbie, 690 F.3d at 311.

259. Feder v. Evans-Feder, 63 F.3d 217, 222 (3d Cir. 1995); Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006); Redmond v. Redmond 724 F.3d 729, 744–47 

(7th Cir. 2013); Silverman v. Silverman (Silverman II), 338 F.3d 886 (8th Cir. 2003).

260. 639 F.3d 449 (8th Cir. 2011). 

261. 600 F.3d 912 (8th Cir. 2010). 

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

263. Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007). 

264. Stern, 639 F.3d at 452 (citing to the Pérez-Vera Report (1981)). 

265. For a discussion of the term “settled” within the meaning of an Article 12 

defense, see the discussion infra § III.B.1, page 95.
II. The Case in Chief for the Return of a Child 

65

the terms “settled” and “acclimatized” in connection with analyzing a 

child’s habitual residence. At first blush the concepts appear to be 

nearly the same, e.g., a child has become settled in his or her new environment versus a child has become acclimatized to the new environment. However, the concepts are distinct and are not interchangeable in terms of the lexicon of the 1980 Convention.

Under Article 12’s delay defense two factors must be established: 

first, more than one year has elapsed from the time of the wrongful 

removal or retention; and second, the child has become settled in his 

or her new environment. The settlement of the child is irrelevant unless the first prong of the defense, the passage of one year, has been 

established. Absent the predicate time element, the defense fails, and 

the court “shall” order the return of a wrongfully removed child. A 

finding that a child is “settled” does not preclude the court from ordering the child’s return. However, where acclimatization results in 

the acquisition of a new habitual residence a court cannot order the 

return of a child. At least one court267 has clearly noted the essential 

differences between the two concepts, holding that

Here, although the Court concludes that [the child] is “settled” for 

purposes of the Article 12 defense, she is not so “acclimatized” to the 

United States that her habitual residence has changed.268

Invoking the issue of settlement in connection with habitual residence analysis appears to derive from early U.S. cases269 that relied on 

the language from In re Bates,

270 which defined habitual residence as a 

move to a specific location with a “settled purpose.” The “settled pur-

 

266. “The judicial or administrative authority, even where the proceedings have 

been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated 

that the child is now settled in its new environment.” Convention, supra note 11, 

Article 12, ¶ 2.

267. Taveras v. Morales, 22 F. Supp. 3d 219 (S.D.N.Y. 2014).

268. Id. at 231.

269. Friedrich I, 983 F.2d at 1403; Rydder v. Rydder, 49 F.3d 369, 373 (8th Cir. 

1995); Feder, 63 F.3d at 223–24.

270. [1989] EWHC (Fam) CA 122/89 (Eng.).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

66

pose” language has found its way into every circuit’s271 consideration 

of habitual residence, and is relied on particularly in the Third, Sixth, 

and Eighth Circuits272 where the courts analyze the issue of settlement 

from the child’s perspective. Although the various circuits have refined 

their own definition of habitual residence, Bates is still cited for its 

“settled purpose” language273 and for the advisability of maintaining a 

flexible definition for habitual residence.274

The concept of acclimatization is significant to a habitual residence analysis particularly in those circuits where the primary focus is 

on parental intent. Thus, a child may acquire a new habitual residence, despite contrary mutual parental intent, by becoming so accustomed to the new environment that the new roots have established 

 

271. Sanchez-Londono v. Gonzalez, 752 F.3d 533 (1st Cir. 2014); Ermini v. 

Vittori, 758 F.3d 153 (2d Cir. 2014); Maxwell v. Maxwell, 588 F.3d 245 (4th Cir. 

2009); Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012); Koch v. Koch, 450 F.3d 703 

(7th Cir. 2006); Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001); Kanth v. Kanth, 232 

F.3d 901 (10th Cir. 2000); Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004).

272. “[A] child’s habitual residence is 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.’” Feder, 63 F.3d at 224; “[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.’” Robert v. Tesson, 507 F.3d 

981, 992 (6th Cir. 2007); “[F]actors relevant to the determination of habitual residence [include] ‘the settled purpose of the move from the new country from the 

child’s perspective, parental intent regarding the move, the change in geography, the 

passage of time, and the acclimatization of the child to the new country.’” Barzilay v. 

Barzilay (Barzilay II), 600 F.3d 912, 918 (8th Cir. 2010).

273. Stern v. Stern, 639 F.3d 449, 452 (8th Cir. 2011); Sorenson v. Sorenson, 559 

F.3d 871, 874 (8th Cir. 2009); Robert v. Tesson, 507 F.3d 981, 989 (6th Cir. 2007); In 

re Application of Adan, 437 F.3d 381, 392 (3d Cir. 2006); Ruiz v. Tenorio, 392 F.3d 

1247 (11th Cir. 2004); Silverman v. Silverman (Silverman II), 338 F.3d 886, 898 (8th 

Cir. 2003); Delvoye v. Lee, 329 F.3d 330, 334 (3d Cir. 2003); Zuker v. Andrews, 181 

F.3d 81 (1st Cir. 1999).

274. Redmond v. Redmond, 724 F.3d 729, 742–43 (7th Cir. 2013); Guzzo v. 

Cristofano, 719 F.3d 100, 106–07 (2d Cir. 2013); Whiting v. Krassner, 391 F.3d 540, 

546–47 (3d Cir. 2004); Miller v. Miler, 240 F.3d 392, 400 (4th Cir. 2001); Mozes v. 

Mozes, 239 F.3d 1067, 1082 (9th Cir. 2001).
II. The Case in Chief for the Return of a Child 

67

that residence as “home.” Courts have agreed that “if the objective 

facts point unequivocally to a person’s ordinary or habitual residence 

being in a particular place,” then acclimatization is established.

275

Courts have been cautious, however, not to suggest that acclimatization is dependent on a particular period of time or a typical pattern 

of adjustment. Rather, they analyze the “degree” of acclimatization as 

a factor that might, or might not, override the issue of parental intent.

For example, in Mota v. Castillo,

276 the court held that acclimatization 

should only prevail over shared parental intent in the rare circumstances where 

a child’s degree of acclimatization is “so complete that serious harm 

. . . can be expected to result from compelling his [or her] return to 

the family’s intended residence.”277

Stated in different terms, the court in Mozes v. Mozes,

278 observed that

The question . . . is not simply whether the child’s life in the new 

country shows some minimal degree of settled purpose, but whether 

we can say with confidence that the child’s relative attachments to 

the two countries have changed to the point where requiring return 

to the original forum would now be tantamount to taking the child 

out of the family and social environment in which its life has developed.279

Factors that may influence courts in analyzing whether a child has 

become acclimatized include:

• a change in geography combined with the passage of 

an appreciable period of time280

 

275. Sanchez-Londono v. Gonzalez, 752 F.3d 533 (1st Cir. 2014) (quoting Mozes 

v. Mozes, 239 F.3d 1067, 1081 (9th Cir.2001)); Accord Ruiz v. Tenorio, 392 F.3d 

1247 (11th Cir. 2004); Gitter v. Gitter, 396 F.3d 124, 133 (2d Cir. 2005).

276. 692 F.3d 108, 116 (2d Cir. 2012).

277. Id. (quoting Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir. 2005)).

278. 239 F.3d 1067 (9th Cir. 2001).

279. Id. at 1081 (internal quotation marks and citation omitted).

280. Sanchez-Londono v. Gonzalez, 752 F.3d 533, 543 (1st Cir. 2014) (“In addition to shared parental intent, factors evidencing a child’s acclimatization to a given 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

68

• age of the child281

• immigration status of child and parent282

• academic activities283

• social engagements284

• participation in sports programs and excursions285

• meaningful connections with the people and places in 

the child’s new country286

• language proficiency287

• location of personal belongings288

When the child is an infant or quite young, many of the above 

factors are inapplicable and/or less weighty than parental intent because of the child’s age-related inability to fully acclimatize.

289 As observed by the First Circuit in Neergaard-Colón v. Neergaard,

290 “acclimatization is rarely, if ever, a significant factor when children are very 

young.”291

3. Coercion and Physical Abuse

The habitual residence of a child may not be changed if that child is 

forced or compelled to remain in the new location owing to the coer-

 

place—like a change in geography combined with the passage of an appreciable period 

of time—may influence our habitual-residence analysis.”).

281. Neergaard-Colón v. Neergaard, 752 F.3d 526, 533 (1st Cir. 2014).

282. Mota v. Castillo, 692 F.3d 108, 116 (2d Cir. 2012).

283. Robert v. Tesson, 507 F.3d 981, 996 (6th Cir. 2007); Ruiz v. Tenorio, 392 

F.3d 1247, 1255 (11th Cir.2004).

284. Karkkainen v. Kovalchuk, 445 F.3d 280, 293 (3d Cir. 2006).

285. Robert v. Tesson, 507 F.3d 981, 996 (6th Cir. 2007); Holder v. Holder

(Holder II), 392 F.3d 1009, 1020 (9th Cir. 2004).

286. Robert, 507 F.3d at 996.

287. Karkkainen, 445 F.3d at 293.

288. Id. at 294.

289. In re Mikovic v. Mikovic, 541 F. Supp. 2d 1264, 1275 (M.D. Fla. 2007); 

Whiting v. Krassner, 391 F.3d 540, 550 (3d Cir. 2004).

290. 752 F.3d 526 (1st Cir. 2014).

291. Id. at 533 (citing to Holder II, 392 F.3d at 1021, noting that it was “practically impossible” for a ten-month old child, “entirely dependent on its parents, to acclimatize independent of the immediate home environment of the parents”).
II. The Case in Chief for the Return of a Child 

69

cion of, or threats to, a caretaker parent. Coercion cannot be deemed 

“voluntary conduct” necessary to the establishment of a new habitual 

residence.292

In the case In re Application of Ponath,

293 the district court found 

that a child’s continued presence in Germany was the product of husband’s abuse of the mother. The child was born in the United States. 

When the child was sixteen weeks old, the family went to Germany 

for what was to be a three-month visit with father’s parents. Despite 

mother’s desire to return to the United States, she and child were prevented from doing so by father’s physical, emotional, and verbal abuse.

“The concept of habitual residence must, in the court’s opinion, entail 

some element of voluntariness and purposeful design. Indeed, this 

notion has been characterized in other cases in terms of ‘settled purpose’. . . . In the court’s view, coerced residence is not habitual residence within the meaning of the Hague Convention.”

294

In Koch v. Koch,

295 father did not deny a history of spousal abuse, 

but argued that the issue was irrelevant to a determination of the habitual residence of the child. The Seventh Circuit disagreed in dicta, 

 

292. See Silverman v. Silverman (Silverman II), 338 F.3d 886, 900 (8th Cir. 2003) 

(finding an absence of evidence that the change of residence was the result of abuse or 

coercion).

293. 829 F. Supp. 363 (D. Utah 1993). 

294. Id. at 367. But see Nunez-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir. 

1995), where mother claimed that her husband and father-in-law held her a virtual 

prisoner after the birth of her child in Mexico. She removed the child to the United 

States when the child was six weeks old. The court declined to follow the reasoning of 

Ponath on the basis that in Ponath, the child was born in the United States, presumably 

the child’s habitual residence, and was forced to remain in Germany only because of 

the father’s abuse. In Nunez-Escudero, the child was born in Mexico and knew no 

other residence until mother unilaterally relocated to the United States. The court 

rejected the contention that habitual residence of an infant moves with the mother. 

Nevertheless, the court remanded the matter to the district court to determine whether Mexico was the child’s habitual residence and whether an Article 13(b) defense 

existed. Nunez-Escudero, 58 F.3d at 379. 

295. 450 F.3d 703 (7th Cir. 2006).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

70

stating that physical attacks “have some relevance in some situations 

to determine habitual residence issues.”

296

In Maxwell v. Maxwell,

297 mother and father had quadruplets. The 

family lived in Massachusetts until father moved back to Australia. 

Mother moved to North Carolina and secured a permanent order 

awarding her custody of the children; father was granted visitation. 

The parties reconciled, and mother made arrangements to move to 

Australia. Suspecting that father had ulterior motives for the reconciliation, mother purchased round-trip tickets for herself and the children 

and obtained three-month visas. Shortly after her arrival in Australia, 

the marriage broke down, and father blocked mother’s efforts to leave 

the continent. With the assistance of the U.S. Embassy, mother secured new passports for herself and the children and returned with 

them to the United States. Father filed a Hague petition in North Carolina for return of the children to Australia. In reviewing the issue of 

the children’s habitual residence, the court followed the approach 

adopted in Mozes, finding that mother never intended to abandon 

residence in the United States and the children had not become acclimatized to Australia. Father’s petition was denied.

A court order preventing removal of a child may not constitute 

nonconsensual presence and support a claim of a coerced habitual 

residence. In Janakakis-Kostun v. Janakakis,

298 during the course of a 

bitter separation and divorce action in Greece, a court order prohibited mother, a U.S. citizen, from removing child from Greece. In violation of the order, mother abducted the child to the United States, 

where the child and her mother had visited frequently during previous 

years. Mother claimed, inter alia, that the child could not have acquired a habitual residence in Greece because she, the mother, was 

 

296. Id. at 719. See also Tsarbopoulos v. Tsarbopoulos, 176 F. Supp. 2d 1045 (E.D. 

Wash. 2001), where the court considered the emotional and physical abuse of the 

spouse and children to be a factor in determining whether there was a sufficient degree of acclimatization and shared intent (citing to Ponath) to establish a new habitual 

residence. 

297. 588 F.3d 245 (4th Cir. 2009).

298. 6 S.W.3d 843 (Ky. Ct. App. 1999).
II. The Case in Chief for the Return of a Child 

71

prohibited from leaving the country. The court held that the Greek 

nonremoval order did not invalidate the habitual residence that the 

child had established in Greece. 

4. Immigration Status

The question of a child’s status as an illegal alien can arise in two contexts. First, it can arise as a factor in considering whether the child has 

become sufficiently acclimatized to a place so as to qualify as the 

child’s habitual residence. It can also be part of a two-part defense 

under Article 12: (1) an application for return has been filed more 

than one year after the date of wrongful removal or retention, and 

(2) the child has become settled in his or her environment. As the 

considerations are essentially the same, cases relating to both situations are discussed below.

In Mozes, the court noted: “While an unlawful or precarious immigration status does not preclude one from becoming a habitual resident under the Convention, it prevents one from doing so rapidly.”

299

This was the issue in the case In re Koc,

300 where both mother and 

child were subject to deportation because they remained in the United 

States after their visas expired. Although it appeared that U.S. immigration officials were not looking to deport them, the court could not 

rule out future deportations. This reality, in addition to other reasons 

cited by the court, compelled the conclusion that the child had not 

become “well settled” in the United States.301

In Kijowska v. Haines,

302 mother, a citizen of Poland, gave birth to 

a child in the United States. She and the child’s father, a U.S. citizen, 

 

299. Mozes v. Mozes, 239 F.3d 1067, 1082 n.45 (9th Cir. 2001) (citing E.M. 

Clive, The Concept of Habitual Residence, 3 Jurid. Rev. 137, 147 (1997)).

300. 181 F. Supp. 2d 136 (E.D.N.Y. 2001). 

301. Id. at 154; see also Mota v. Castillo, 629 F.3d 108, 116 (2d Cir. 2012) (“We 

are compelled to note, also, that [the child’s] uncertain immigration status, as well as 

the admittedly undocumented status of her father, places an additional obstacle on the 

path to determining that a supervening acclimatization has occurred.”); accord In re

Ahumada Cabrera, 323 F. Supp. 2d 1303 (S.D. Fla. 2004); Giampaolo v. Erneta, 390 

F. Supp. 2d 1269 (N.D. Ga. 2004). 

302. 463 F.3d 583 (7th Cir. 2006).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

72

were not married. The child’s father told mother that he was not going 

to seek custody of the child. Two months later, mother and the child 

left for Poland, where they remained for six months. When the child 

was eight months old, mother and the child flew to the United States 

based on mother’s hope of reconciling with the father. Father, armed 

with an Illinois state court order granting him custody of the child, 

met her at the airport, obtained custody of the child, and convinced 

immigration authorities that mother was entering the United States 

with the intention of overstaying her visa. Mother was required to 

return to Poland without the child. Mother’s citizenship status, though 

not determinative, was deemed a factor in the court’s finding that Poland was the child’s habitual residence. Mother could not remain in 

the United States, and father earlier disavowed any interest in child 

custody. When mother and child initially moved to Poland, it was 

clear that both parents intended Poland to become the child’s new 

habitual residence.303

In the Ninth Circuit, immigration status is not dispositive as to 

whether the child has become settled. The court in In re B. Del 

C.S.B.304 examined whether a child’s status as an illegal alien affects his 

or her ability to become “settled” pursuant to Article 12 of the Convention. The eleven-year-old spent the first four years of her life in 

Mexico, came to California for approximately five months, and then 

returned to Mexico. She returned to California a year later, where she 

remained for the next five years. The district court found that the 

child had not become settled within the meaning of Article 12 because 

of her unlawful immigration status and ordered her returned to Mexico. The court of appeals reversed, noting immigration status will be 

 

303. Id. at 587–88. See also Alonzo v. Claudino, 2007 WL 475340 (M.D.N.C. 

2007) (unreported disposition) (considering the parties illegal immigration status, 

“there cannot be the ‘degree of settled purpose’ required to establish habitual residencey in the United States. It is impossible to be settled when you are subject to 

arrest and deportation at any time.” Id. at 5.).

304. 559 F.3d 999 (9th Cir. 2009).
II. The Case in Chief for the Return of a Child 

73

considered by courts if there is “an immediate, concrete threat of deportation.”

305

We can see nothing in the Convention itself, in our case law, or in 

the practical reality of living in this country without documented status, to persuade us that immigration status should ordinarily play a 

significant, let alone dispositive, role in the “settled” inquiry. . . . 

[P]rior district court cases that have concluded that an undocumented child is not “settled” have considered status as only one element 

among many pointing to a lack of significant ties to the United 

States.306

Immigration status cannot be determinative for purposes of the 

“settled” inquiry if, as here, there is no imminent threat of removal. 

We agree with the district court that but for the immigration question, 

Brito has demonstrated that “Brianna has developed significant connections to the United States,” including a stable home and school life 

in which she has consistently “achieved academic and interpersonal 

success” in her five years here. (citation omitted) We conclude that, 

given these circumstances, Brianna is “now settled” in the United 

States within the meaning of Article 12.307

5. Asylum308

The determination of a child’s habitual residence does not appear to be 

impacted by a grant of asylum.

In Miltiadous v. Tetervak,

309 mother removed herself and her two 

children from Cyprus, their habitual residence, to the United States. 

As father had rights of custody and did not consent, the removal was 

wrongful. Both mother and children were granted asylum on the basis 

that if she returned to Cyprus, she would be subject to additional do-

 

305. Id. at 1009.

306. Id. at 1011 (citing Lopez v. Alcala, 547 F. Supp. 2d 1255, 1260 (M.D. Fla. 

2008)); see also In re Ahumada Cabrera, 323 F. Supp. 2d 1303, 1314 (S.D. Fla. 2004); 

Giampaolo v. Erneta, 390 F. Supp. 2d 1269, 1281–83 (N.D. Ga. 2004); In re Koc, 181 

F. Supp. 2d 136, 152–55 (E.D.N.Y. 2001).

307. B. Del C.S.B., 559 F.3d at 1014. 

308. See the discussion concerning asylum as it pertains to potential defenses 

under Article 13(b) and 20, infra page 129.

309. 686 F. Supp. 2d 544 (E.D. Pa. 2010).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

74

mestic abuse by her husband.310 Father petitioned for the return of the 

children and mother objected, arguing that returning the children to 

Cyprus under the Hague Convention would result in a violation of

section 1158(c)(1) of the Immigration and Nationality Act,311 thus 

contravening her right to asylum. The court found that the mother 

and the children were illegally in the United States until their grant of 

asylum and noted the indefinite nature of their asylum status. For 

these reasons, the court concluded that mother failed in her argument 

that the United States had become the children’s habitual residence:

Thus, although the Respondent has temporarily been granted asylum, her asylum status is still tenuous. Indeed, her own asylum approval letter indicates that her asylum status may be terminated at 

any time for a variety of reasons. (reference omitted) [T]he children’s 

immigration status is derived from Respondent’s and is uncertain. 

(citation omitted) The Court finds that Respondent’s somewhat uncertain asylum status weighs against finding the United States as the 

children’s habitual residence.312

6. The Habitual Residence of Infants

Courts are generally in agreement that infants cannot acquire a habitual 

residence separate and apart from their parents. If the parents have a 

shared intent that an infant will reside with them, the child will acquire 

that habitual residence.313 Where there is an absence of mutual intent, 

 

310. “Respondent filed for political asylum in the United States on May 9, 2008, 

seeking permanent asylum for herself and her children due to the fear of imminent 

physical and mental abuse by her husband in Cyprus. (Doc. no. 9, Ex. 2). On July 22, 

2009, Respondent was granted asylum and her children’s immigration status is derived from hers. Trial Tr. at 7:19–21, Oct. 29, 2009. Respondent and the children 

currently reside with her parents in Philadelphia, Pennsylvania.” Miltiadous, 686 F. 

Supp. 2d at 547. 

311. 8 U.S.C. § 1158 (2009).

312. Miltiadous, 686 F. Supp. 2d at 552 n.9. 

313. See, e.g., Darín v. Olivero-Huffman, 746 F.3d 1 (1st Cir. 2014) (parents 

shared a mutual intent to return to Argentina before the wrongful retention occurred). 

The fact that the three-year-old child had spent most of his time in the United States 

was considered by the court, but this fact was found not to be controlling. “The fact 

that a child frequently visits relatives in another country for extended periods of time, 
II. The Case in Chief for the Return of a Child 

75

however, courts tend to look at the factual circumstances relating to the 

child.314

Courts have rejected the notion that an infant’s habitual residence 

will follow the mother, even where the child is of a very young age.315

An infant may not actually acquire habitual residence if the infant’s location at the time of litigation has nothing to do with establishing a new 

home and residence and the parties have no shared intent as to where, 

or if, they will live as a family. One commentator has suggested:

[A] newborn child born in the country where his . . . parents have 

their habitual residence could normally be regarded as habitually resident in that country. Where a child is born while his . . . mother is 

temporarily present in a country other than that of her habitual residence it does seem, however, that the child will normally have no habitual residence until living in a country on a footing of some stability.316

The First Circuit followed this reasoning in Nicolson v. Pappalardo.

317 In that case, an American mother became pregnant by an Australian father. Mother moved back to the United States before the birth 

 

by itself, does not mean the second country is or becomes the child’s habitual residence.” Id. at 13. Cf. Redmond v. Redmond, 724 F.3d 729, 743 (7th Cir. 2013) (Court 

gave weight to fact that child had spent 80% of his four-year life in the United States, 

finding that consideration of the time in the United States was appropriate since the 

child had not been wrongfully removed to the United States. The court also recognized that the length of time a child spends in a country is a factor that must be considered with care lest abductions be invited by the conduct of parents that sequester 

children.).

314. See, e.g., Flores v. Contreras, 981 S.W.2d 246 (Tex. App. 1998).

315. See Meredith v. Meredith, 759 F. Supp. 1432 (D. Ariz. 1991); Kijowska v. 

Haines, 463 F.3d 583, 587–88 (7th Cir. 2006); Nunez-Escudero v. Tice-Menley, 58 

F.3d 374, 379 (8th Cir. 1995).

316. Delvoye v. Lee, 329 F.3d 330, 334 (3d Cir. 2003) (quoting E.M. Clive, The 

Concept of Habitual Residence, 3 Jurid. Rev. 137, 146 (1997)).

317. 605 F.3d 100 (1st Cir. 2010); see also Larbie v. Larbie, 690 F.3d 295, 310 

(5th Cir. 2012) (finding parents intentions should be dispositive where the child is so 

young that the child could not possibly decide the issue of his or her own habitual 

residence).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

76

of the baby; after father proposed marriage, mother returned to Australia. In Australia, the couple married, and the child was born in December 2008. Even before the birth of the child, the parties experienced marital difficulties, and mother indicated that as soon as she 

could travel after the birth, she would return to the United States. 

After the child’s birth, the couple remained together in Australia for 

three months. With father’s consent, mother moved back to the United States with the child and refused return to Australia thereafter. The 

court found that the child’s habitual residence was in Australia based 

on mother’s intent to initially relocate to Australia and not return to 

the United States. Additionally, although the child was but an infant, 

she had lived in Australia for all of her life until she was removed to 

the United States.

A recent case, In re A.L.C.,

318 squarely held that a child had no 

present habitual residence. Mother, father, and one child were residents of Sweden. When mother became pregnant with their second 

child, she came to the United States to give birth. Father consented to 

mother’s departure from Sweden with their first child so that she 

could give birth and have a period of recovery in Los Angeles. After 

the child’s birth, mother refused to return to Sweden. Father petitioned for the return of both children to Sweden.

The district court ordered both children returned to Sweden. The 

Ninth Circuit affirmed the return of the first child but reversed the 

finding of the district court that Sweden was the newborn’s habitual 

residence. The court held that the newborn could not have become a 

habitual resident of Sweden because the child had never lived there. 

Citing to Mozes,

319 the court observed that “habitual residence cannot 

be acquired without physical presence.”320

The court further held that the United States was not the child’s 

habitual residence. The court noted that a child’s habitual residence is 

not automatically established by the mother’s physical location or her 

 

318. In re A.L.C., ___ F. App’x ___, 2015 WL 1742347 (9th Cir. 2015).

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

320. Id. at 1080–81.
II. The Case in Chief for the Return of a Child 

77

caregiving.321 Based on the fact that there was a conflict of parental 

intent as to where the child’s habitual residence existed, and the lack 

of acclimatization that was independent of the home environment, the 

court found that no habitual residence came into existence.

When a child is born under a cloud of disagreement between parents 

over the child’s habitual residence, and a child remains of a tender 

age in which contacts outside the immediate home cannot practically 

develop into deep-rooted ties, a child remains without a habitual residence because “if an attachment to a State does not exist, it should 

hardly be invented.”322

In Delvoye v. Lee,

323 mother, a U.S. citizen, and father, a Belgian 

citizen, developed a romantic relationship in the United States. When 

mother discovered that she was pregnant, she acquired a limited visa 

to travel to Belgium in order to take advantage of the free medical services there. Mother left her New York apartment intact. When the 

baby arrived in May 2001, the parties’ relationship had already disintegrated, and father reluctantly consented to mother’s return to New 

York with the child. Given that the parties shared no intention that 

they would settle in Belgium, the father’s application was denied on 

the basis that he failed to prove Belgium, not the United States, was 

the child’s habitual residence.324 The court reasoned that when the 

parties’ intentions are in agreement regarding their location, then the 

infant’s habitual residence is fixed. Where, however, the child is born 

into an already conflicted and disintegrating parental relationship, the 

child may not acquire a habitual residence. 

In Nunez-Escudero v. Tice-Menley,

325 an American mother and 

Mexican father lived in Mexico during their marriage until their child 

 

321. Citing to Nunez–Escudero v. Tice–Menley, 58 F.3d 374, 379 (8th Cir. 1995) 

and Friedrich v. Friedrich (Friedrich I), 983 F.2d 1396, 1401–02 (6th Cir. 1993).

322. In re A.L.C., slip opinion p.3, citing Mozes, at 1020 (quoting Paul R. Beaumont & Peter E. McEleavy, The Hague Convention on International Child Abduction 89, 

112 (1999)).

323. 329 F.3d 330 (3d Cir. 2003).

324. Id. at 333–34.

325. 58 F.3d 374 (8th Cir. 1995).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

78

was six weeks old. Mother then separated from her husband and took 

the child to Minnesota. In response to father’s petition for return, 

mother argued that a six-week-old child cannot make its own determination of habitual residence and that an infant’s place of habitual 

residence should be with the mother. Her reasoning for rejecting Mexico as the child’s habitual residence was (1) she had no intention of 

remaining permanently in Mexico herself; and (2) an infant is dependent on the mother to make the choice of habitual residence. The court 

rejected the argument that habitual residence necessarily follows a 

mother’s determination when the child is too young to establish its 

own habitual residence. Because the parties lived together in Mexico 

for nearly a year, a factual basis existed for finding that Mexico was 

the child’s place of habitual residence.

7. Shuttle Custody

“Shuttle custody” cases, i.e., cases where children regularly move between parents who live in different countries, are unusual, 326 and they 

present difficult conceptual problems for resolution of habitual residence questions.327

There is an abundance of cases concluding that a child can have 

only one habitual residence.328 Nevertheless, courts have encountered 

a handful of cases where a child spends nearly equal time in homes 

 

326. Mozes v. Mozes, 239 F.3d 1067, n.7 (9th Cir. 2001), notes that “The exception would be the rare situation where someone consistently splits time more or less 

evenly between two locations, so as to retain alternating habitual residences in each.”

327. For example, see Johnson v. Johnson, 493 S.E.2d 668 (Va. Ct. App. 1997), 

where father and mother entered into a custody agreement that provided that their 

daughter would spend alternating school years in Sweden and the United States. This 

situation led to substantial litigation both in Sweden and the United States, including 

multiple Hague Convention cases. 

328. Sorenson v. Sorenson, 559 F.3d 871, 873 (8th Cir. 2009) (citing Silverman 

v. Silverman (Silverman II), 338 F.3d 886, 898 (8th Cir. 2003)); Friedrich v. Friedrich 

(Friedrich I), 983 F.2d 1396, 1401 (6th Cir. 1993); Freier v. Freier, 969 F. Supp. 436, 

440 (E.D. Mich. 1996); Panteleris v. Panteleris, 2014 WL 3053211 (N.D. Ohio 2014); 

Blanc v. Morgan, 721 F. Supp. 2d 749 (W.D. Tenn. 2010) (holding that a child may 

only have one habitual residence); In re Morris, 55 F. Supp. 2d 1156 (D. Colo. 1999).
II. The Case in Chief for the Return of a Child 

79

across international frontiers.329 In Brooke v. Willis,

330 the parties stipulated to an order of equal custody, one half in California, and one half 

in the United Kingdom. After one initial exchange, mother refused to 

return the child to father in England. The court found the U.K. to be 

the child’s habitual residence, and provided in a footnote to that conclusion that owing to “the peculiar circumstances of this case, it is 

arguable that Demelza is also a habitual resident of the United States 

under the Convention.”331

Most of the cases involving shuttle custody have resolved the issue 

of habitual residence by focusing on parental intent. For example, in 

Reyes v. Jeffcoat, 332 the parties maintained residences in both Venezuela and South Carolina. The child lived alternately with each parent 

over a number of years. For the three years before the Convention 

proceedings were filed, the child spent 45% of his time in the United 

States and 55% of his time in Venezuela. The trial court found that as 

of 2006, the parents expressed a mutual intent to make the United 

States the child’s habitual residence. The Fourth Circuit affirmed the 

trial court’s decision finding that the United States was the child’s habitual residence and noted that given his constant travel between, the 

child led a full and active life in both the United States and Venezuela

and was comfortable in both countries.

Similarly, in Valenzuela v. Michel,

333 mother and father agreed that 

their twin girls should move from Nogales, Mexico, to Arizona and 

thus be able to take advantage of U.S. education, medical care, and 

government support. Except for approximately two months in 2010, 

the children split their time from May 2009 to February 2011 between 

mother in Mexico and father in the United States. In March 2011, 

 

329. See Quinn v. Settel, 682 So. 2d 617 (Fla. Dist. Ct. App. 1996) (implying the 

concept of concurrent habitual residences where a child was the subject of a shared 

custody agreement between the parents, spending equal amounts of time in the United 

States and France). 

330. 907 F. Supp. 57 (S.D.N.Y. 1995).

331. Id. at 61, n.2.

332. 548 F. App’x 887 (4th Cir. 2013).

333. 736 F.3d 1173 (9th Cir. 2013).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

80

father took the children but did not return them. The Ninth Circuit, 

after reviewing both domestic and foreign authority, concluded that 

the United States was the children’s habitual residence. In reaching 

that conclusion, the court relied on factors that showed (1) the parents intended to abandon Mexico as the children’s sole habitual residence, (2) there was a change in geography, and (3) there was a passage of an appreciable period of time.334

8. Military Families

Abduction cases involving families connected with the military share 

at least one common question—how military commitments may affect 

the outcome of a question involving the child’s habitual residence.

Beyond that common element, there are no hard and fast rules.335

Some cases involve the posting of U.S. service members abroad for 

periods of time up to three or more years. In such cases, courts will 

likely be faced with balancing the specific duration of the military 

commitment versus the period of time that might support a finding of 

acclimatization. Given that all courts agree that the determination of 

habitual residence is fact-driven, results in individual cases may be 

difficult to categorize. Past decisions tend to highlight the tension 

between circuit courts that adhere to the Mozes approach (whether 

parents intended to abandon previous habitual residence), the Friedrich approach (child-centered focus), and those courts that consider 

both the child-centered approach and parental intent.336

For example, in Holder v. Holder (Holder II),

337 father received a 

four-year assignment to Germany. After eight months in Germany,

 

334. Id. at 1179.

335. “We emphasize that courts must consider the unique circumstances of each 

case when inquiring into a child’s habitual residence. Thus, for example, no per se 

rule dictates that children of U.S. military personnel remain habitually resident in the 

United States when joining their parents at overseas posts. To the contrary, fact patterns vary considerably within the limited universe of Convention cases involving 

military personnel.” Holder v. Holder (Holder II), 392 F.3d 1009, 1016 (9th Cir. 

2004).

336. See discussion supra at page 64.

337. 392 F.3d 1009, 1011 (9th Cir. 2004).
II. The Case in Chief for the Return of a Child 

81

mother removed the children back to the United States. Father commenced custody proceedings in California and later filed a Hague 

Convention petition in district court in the state of Washington. The 

court found that the move to Germany, despite the anticipated fouryear duration, to be “conditional” and for a “specific, delimited” period of time, thus contraindicating an intent to alter the previous habitual residence.338 Acknowledging that the four-year commitment made 

this a close case, the Ninth Circuit found that the parties lacked a 

shared intent to abandon their prior habitual residence and shift it to 

Germany. The court additionally found that during the eight-month 

period in Germany, the children had not acclimatized to their new 

surroundings.339

In Chafin v. Chafin,

340 mother, a citizen of the United Kingdom,

married father, a member of the U.S. armed forces. When father was 

deployed to Afghanistan, mother took the parties’ child to Scotland.

Mother and child remained in Scotland for several years. Father was 

later transferred to Alabama. In 2010, mother took the child to Alabama for an unsuccessful trial reconciliation with the child’s father. 

Father subsequently retained the child when mother was deported.

The district court found that the child’s habitual residence was in Scotland.341 The court noted that mother had entered the United States on 

a ninety-day visitor visa that required proof of a return ticket. Mother’s 

belief that father would be transferred to Germany within five months 

was additional evidence of the lack of her intent to make the U.S. the 

child’s habitual residence. Noting its previous reliance on the Mozes

line of cases, the Eleventh Circuit affirmed the habitual residence determination of the district court.342

 

338. Id. at 1018. 

339. Id. at 1019.

340. 742 F.3d 934 (11th Cir. 2013) (on remand from Chafin v. Chafin, 133 S. Ct. 

1017 (2013)).

341. Implicit in the district court’s determination was that while father was deployed, the child acquired a habitual residence in Scotland.

342. Chafin, 742 F.3d at 938 (citing Ruiz v. Tenorio, 392 F.3d 1247, 1252 (11th 

Cir. 2004)).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

82

In Larbie v. Larbie,

343 the Fifth Circuit held that a mother’s residing 

in the United Kingdom for a year with the child while father was deployed to Afghanistan did not alter the child’s habitual residence in 

the United States. The court found that such a residential arrangement 

did not demonstrate that both parties harbored the intent to abandon

the prior habitual residence. 344

Following the Mozes line of cases, a district court in Florida held 

in Yocom v. Yocom345 that a settled intent to abandon a prior residence 

was shown by the evidence where father and mother relocated to 

Germany pursuant to father’s three-year assignment. The child was 

approximately five months old. The parties’ marriage broke down 

within months of their arrival in Germany. When the child was barely 

one year old, mother moved with the child back to the United States. 

The court’s finding that the habitual residence was Germany was supported by evidence that mother was apparently unable to find a stable 

location to live upon her return to the United States, and that the parties had sold their personal belongings before their move to Germany.346

In Daunis v. Daunis,

347 father requested return of his two children 

to Italy where he was stationed by the U.S. Navy. The children lived 

principally in Italy for three years, but approximately one-half of that 

time was spent in the United States. Additionally, father filed an action 

for divorce in Louisiana before the parties relocated to Italy. The Se-

 

343. 690 F.3d 295 (5th Cir. 2012).

344. Id. at 311. In an early U.K. case, Re A. (Minors) (Abduction: Habitual Residence) [1996] 1 WLR 25 HC/E/UKe 38, High Court (July 1995), a British High Court 

found that Iceland was the children’s habitual residence, and dismissed mother’s 

petition for return to the United Kingdom. The children’s father was a U.S. serviceman 

stationed at Keflavik, and the family lived there for twenty-two months before mother 

wrongfully removed them. The court found that the actual presence of the children in 

Iceland prevailed over the fact that the term of father’s military posting was only for 

the period of three years.

345. 2005 WL 1863422 (M.D. Fla. 2005) (unreported disposition).

346. Id. at 5.

347. 222 F. App’x 32, 2007 WL 786331 (2d Cir. 2007) (unreported disposition).
II. The Case in Chief for the Return of a Child 

83

cond Circuit upheld the district court’s decision that Italy was not the 

children’s habitual residence, relying on the Mozes approach.348

In Friedrich v. Friedrich,

349 the Sixth Circuit found that the determination of habitual residence was a “simple case” given that the child 

lived exclusively in Germany until the child was removed by his 

mother, a member of the U.S. military. The court found the child’s 

U.S. citizenship, and mother’s future plans and intentions to return to 

the United States after the conclusion of her military service, to be 

irrelevant to the question of habitual residence.350

Following Friedrich’s habitual residence analysis, the district court 

in Levesque v. Levesque,

351 found that the parent’s mutual agreement to 

allow the child to relocate to Germany for an indefinite period of time 

was sufficient to establish habitual residence.

352

In Harkness v. Harkness,

353 the court found that the intention of 

the parties was not controlling where the parties had not resolved 

where they would settle after the father was discharged from the U.S. 

military. Despite the parties’ previous three-year stay in the United 

States, the last lengthy period of residence was in Germany, where the 

U.S. military assigned the father. The court of appeals affirmed the 

trial court’s holding that Germany was the children’s habitual residence, concluding that there was a lack of mutual intent to abandon 

 

348. Accord Johnson v. Johnson, 2011 WL 569876 (S.D.N.Y. 2011) (unreported 

disposition) (court finds that two-year stay in Italy did not support the conclusion 

that Italy was the children’s habitual residence; from time of parties’ marriage, father 

was posted eight times, all within the United States for periods from one to four years, 

and during posting to Italy, father was deployed to Afghanistan).

349. 983 F.2d 1396 (6th Cir. 1993).

350. Id. at 1401. See also In re Marriage of Witherspoon 66 Cal. Rptr. 3d 586, 

971–72 (Cal. Ct. App. 2007) (parties did not dispute that children’s habitual residence 

was in Germany, where mother was stationed in the U.S. Army, and for a period of 

one year the children remained there under the care of a child care provider while 

mother was deployed to Iraq).

351. 816 F. Supp. 662 (D. Kan. 1993). 

352. Id. at 666.

353. 577 N.W.2d 116 (Mich. Ct. App. 1998).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

84

Germany as the habitual residence.354 Noting that the case differed 

from Feder because the parties’ intentions to settle in one place were 

never solidified, the court observed: 

While we agree that “habitual residence” should not simply be 

equated with the last place that the child lived, the [trial] court’s 

opinion does not indicate that this was its only consideration. As 

noted in Feder, supra at 224, a determination of habitual residence

must take into account whether the child has been physically present 

in a country for an amount of time “sufficient for acclimatization.”355

In Shealy v. Shealy,

356 mother was a service member in the U.S. 

Army. When the parties’ child was a year old, mother was assigned to 

a three-year tour in Germany. The entire family moved to Germany.

Mother filed divorce proceedings in Germany, requesting sole custody 

of the child. While those proceedings were ongoing, mother applied 

for and obtained orders transferring her back to the United States. She 

removed the child shortly thereafter without informing the German 

court or the child’s father. Relying on decisions from the Third, 

Fourth, Sixth, and Ninth Circuits, the district court held that the 

child’s habitual residence was in Germany. Mother did not appeal the 

habitual residence finding; the Tenth Circuit affirmed the district 

court’s holding without substantial discussion.357

E. Age of the Child

Article 4 limits the application of the Convention to children under 

the age of sixteen. Even if the child is under the age of sixteen at the 

time of the wrongful removal or retention, if the child has reached 

sixteen when return is requested, the Convention does not require the 

child’s return.358 Both the Pérez-Vera Report and the Text & Legal 

 

354. Id. at 123. 

355. Id. at 596.

356. 295 F.3d 1117 (10th Cir. 2002).

357. See also Trudrung v. Trudrung, 686 F. Supp. 2d 570 (M.D.N.C. 2010) (habitual residence agreed to be in Germany).

358. Text & Legal Analysis, supra note 73, at 10,504.
II. The Case in Chief for the Return of a Child 

85

Analysis of the U.S. State Department interpret the age limitation as 

jurisdictional.359 When a child reaches the age of sixteen, both parents 

and custody decision makers must, practically speaking, give consideration to the child’s wishes, a concept embodied in Article 13 of the 

Convention.

Despite this age cutoff, Article 29 allows a court to consider a petition for return, or to enforce access rights, under the aegis of other 

laws that do apply to children over the age of sixteen.

360 In other 

words, the Convention does not restrict other laws that may provide 

remedies for children over the age of sixteen.

361

The sixteen-year-old age limit in the Convention has not presented interpretive problems for courts.

362 However, this provision has 

 

359. “Consequently, no action or decision based upon the Convention’s provisions can be taken with regard to a child after its sixteenth birthday.” Pérez-Vera 

Report, supra note 19, ¶ 77. “Absent action by governments to expand coverage of the 

Convention to children aged sixteen and above pursuant to Article 36, the Convention 

itself is unavailable as the legal vehicle for securing return of a child sixteen or older.” 

Text & Legal Analysis, supra note 73, at 10,504.

360. Id.

361. This concept was discussed in In re R.P.B., No. CA2009-07-097, 2010-Ohio322, 2010 WL 339812 (Ct. App. 2010) (unpublished disposition), wherein a Brazilian 

father had visitation rights under a Brazilian decree. When the mother’s new husband 

brought proceedings to adopt the child over father’s objection, father brought an 

action under Article 21 of the Convention (relating to organizing access rights) to 

compel mother to allow visits with the child, who by then was over the age of sixteen, 

but still under eighteen. Father conceded that the Convention was inapplicable because the child had reached age sixteen, but contended that the Ohio juvenile court 

had jurisdiction to grant father relief under state law. The court of appeals disagreed 

with this contention, noting that father did not bring an action under state law, but 

brought the action under the Convention to establish his access rights. As such, the 

Convention by its terms did not apply, and father had not petitioned under state law 

to establish or enforce those access rights.

362. See, e.g., Duarte v. Bardales, 526 F.3d 563 (9th Cir. 2008) (abrogated on 

other grounds by Lozano v. Montoya Alvarez, 572 U.S. ____, 134 S. Ct. 1224 (2014) 

(during the litigation for return of four children, the older two children had reached 

age sixteen and were dropped from the case)); Flynn v. Borders, 472 F. Supp. 2d 906 

(E.D. Ky. 2007) (ordering younger child returned to Ireland, but older sibling not 

named in petition); see also Gaudin v. Remis, 334 F. App’x 133, 2009 WL 3345760 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

86

posed some practical challenges where a return order applies to siblings under the age of sixteen, but the court is unable to make orders 

with regard to another sibling who is over the age of sixteen. Such an 

order effectively strands the child over sixteen in a location that may 

strain sibling relationships unless the parents voluntarily return the 

older child with the younger children. 

 

(9th Cir. 2009) (unreported disposition) (determining that where at the time of hearing the children had both attained age sixteen, the matter of the pending petition for 

return was moot); Mohamud v. Guuleed, No. 09-C-146, 2009 WL 1229986 (E.D. Wis. 

2009) (unreported decision) (denying return where petition filed before child reached 

sixteen, but was sixteen at the time the hearing occurred).
87

III. Defenses to the Petition for Return

A. Summary

The Convention sets forth five defenses that may be raised in proceedings for the return of a child. Pursuant to the International Child Abduction Remedies Act (ICARA),

363 different burdens of proof are required depending on the defense proffered:

Preponderance of the evidence:

• Delay (Article 12)—more than one year has passed since the 

wrongful removal or retention occurred and the child has become settled in his or her new environment

• Consent or acquiescence (Article 13(a))—the person seeking 

return consented or acquiesced to the child’s removal or retention

• Non-exercise of custody rights (Article 13(a))—the party seeking return was not exercising rights of custody at the time of 

the wrongful removal or retention

Clear and convincing evidence:

• Grave risk (Article 13(b))—return of the child would expose 

that child to a grave risk of harm or place the child in an intolerable situation

• Human rights (Article 20)—return of the child would be in 

violation of the requested state’s fundamental principles relating to the protection of human rights and fundamental freedoms

In addition to these defenses, courts have entertained three other 

“procedural” defenses that are not specifically mentioned in the Convention: waiver, unclean hands, and fugitive disentitlement.

Article 13 contains an unnumbered paragraph that sets forth another basis for refusing return: the objection to return by a mature 

 

363. 22 U.S.C. §§ 9001–9011 (1988).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

88

child. The mature child’s objection is not technically a defense to return, but it has been treated as a defense364 and is subject to proof by a 

preponderance of the evidence.365

1. Narrow Interpretation of Defenses

U.S. courts have uniformly acknowledged that defenses available under the Convention should be interpreted narrowly.366 The Pérez-Vera 

Report recognizes that the defenses must be applied “only so far as 

they go and no further. This implies above all that they are to be interpreted in a restrictive fashion if the Convention is not to become a 

dead letter.”

367 The Text & Legal Analysis explains: 

In drafting Articles 13 and 20, the representatives of countries participating in negotiations on the Convention were aware that any exceptions had to be drawn very narrowly lest their application undermine the express purposes of the Convention—to effect the 

prompt return of abducted children. Further, it was generally believed that courts would understand and fulfill the objectives of the 

Convention by narrowly interpreting the exceptions and allowing 

their use only in clearly meritorious cases, and only when the person 

opposing return had met the burden of proof.368

 

364. See, e.g., Cantor v. Cohen, 442 F.3d 196 (4th Cir. 2006); Danaipour v. 

McLarey (Danaipour I), 286 F.3d 1 (1st Cir. 2002); England v. England, 234 F.3d 268 

(5th Cir. 2000); Haimdas v. Haimdas, 720 F. Supp. 2d 183 (E.D.N.Y. 2010); Falk v. 

Sinclair, 692 F. Supp. 2d 147 (D. Me. 2010).

365. See 22 U.S.C. § 9003(e)(2)(B) (1988).

366. See, e.g., Nicolson v. Pappalardo, 605 F.3d 100, 107 (1st Cir. 2010); Asvesta 

v. Petroutsas, 580 F.3d 1000, 1004 (9th Cir. 2009); Baran v. Beaty, 526 F.3d 1340 

(11th Cir. 2008) (using Article 13(b) defense); Yang v. Tsui (Yang II), 499 F.3d 259, 

271 (3d Cir. 2007) (using Article 13 defense); Karkkainen v. Kovalchuk, 445 F.3d 

280, 288 (3d Cir. 2006); Miller v. Miller, 240 F.3d 392 (4th Cir. 2001); Diorinou v. 

Mezitis, 237 F.3d 133 (2d Cir. 2001); England, 234 F.3d 268; Friedrich v. Friedrich 

(Friedrich II), 78 F.3d 1060 (6th Cir. 1996); Rydder v. Rydder, 49 F.3d 369 (8th Cir. 

1995). 

367. Pérez-Vera Report, supra note 19, ¶ 34.

368. Text & Legal Analysis, supra note 73; accord Rydder, 49 F.3d at 372.
III. Defenses to the Petition for Return

89

2. Court May Order Return Even If Defense Established

Article 18 of the Convention369 asserts that even if a defense370 to return is proven, a court may order the child returned.371 In its majority 

opinion, the Supreme Court in Lozano v. Montoya Alvarez, 372 declined 

to address the issue whether Article 18 confers discretion to order a 

return despite the existence of an Article 12 defense, and notwithstanding the settlement of the child. In a concurring opinion, however, Justices Alito, Sotomayor and Breyer noted that Article 18 authorizes a court to exercise its discretion and return a child despite the 

establishment of an Article 12 defense.373

In Yaman v. Yaman,

374 the First Circuit held that courts have discretion to order the return of a wrongfully removed child despite the 

 

369. The provisions of this chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time. 

370. One case has implied that Article 18 may also apply to overrule a child’s 

valid objection to return. See Haimdas v. Haimdas, 720 F. Supp. 2d 183 (E.D.N.Y. 

2010); see also In re B. Del C.S.B., 559 F.3d 999, 1016 (9th Cir. 2009) (“Where, as 

here, the child at issue is settled in her new environment and has been so for years; 

and where, as here, there was no showing of ‘concealment’ such that the reprehensibility of the abducting parent’s conduct should trump the finding that the child is ‘settled,’ we can see no reason justifying an exercise of discretion under Article 18 to 

order Brianna’s return to Mexico.”).

371. “Importantly, a finding that one or more of the exceptions provided by 

Articles 13 and 20 are applicable does not make refusal of a return order mandatory. 

The courts retain the discretion to order the child returned even if they consider that 

one or more of the exceptions applies.” Text & Legal Analysis, supra note 73; see also 

Friedrich II, 78 F.3d at 1067.

372. 134 S. Ct. 1224 (2014). 

373. Id. at 1234. At note 5, the Court acknowledged the view of the U.S. State 

Department (the U.S. Central Authority for the United States) that the Convention 

“confers equitable discretion on courts to order the return of a child even if the court 

determines that the child is ‘settled’ within the meaning of Article 12,” but the Court 

was unable to address the issue because the appellant had failed to preserve the issue 

on appeal to the Second Circuit. The Supreme Court has previously indicated that 

interpretation of treaty provisions by the Executive is given great weight. See discussion supra at page 15.

374. 730 F.3d 1 (1st Cir. 2013).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

90

fact that the child had become settled. Reversing the district court’s 

conclusion that discretion to return a “settled” child did not exist, the

First Circuit noted (1) the existence of similar authority from other 

Circuits,375 (2) the absence of text in the Convention that expressly 

limited discretion to return in Article 12, and (3) the retention of the 

“broad equitable powers” by federal courts, not limited by the enactment of ICARA, the Convention’s implementing legislation in the 

United States.376

The court went on to state that 

We hold that the district court erred in finding it had no authority to 

order the return of a child found to be “now settled.” We recognize 

that, taken in isolation, the text of Article 12 can be read differently 

by different viewers. Coupled, however, with the rest of the text of 

the Convention, the Convention's purposes, the inherent equitable 

powers of federal courts, and the insights of the Executive Branch, 

we conclude that the Convention confers upon a federal district 

court the authority to order, at its discretion, the return of a child 

found to be “now settled.”377

 

375. Blondin v. Dubois (Blondin II), 238 F.3d 153, 164 (2d Cir. 2001); Asvesta v. 

Petroutsas, 580 F.3d 1000, 1004 (9th Cir. 2009).

376. In Yaman, the court said

Read against this backdrop of federal courts’ broad equitable powers and the other articles of the Convention, Article 12 in its own terms confers upon a federal district 

court the authority to order the return of a “now settled” child. We add that the language of Article 18 of the Convention reinforces our reading. According to Article 18, 

“[t]he provisions of this Chapter do not limit the power of a judicial or administrative 

authority to order the return of the child at any time.” Convention, art. 18 . . . .

Yaman, 730 F.2d at 18. 

377. Id. at 20–21. The district court noted that decisions in the United Kingdom

and Australia highlighted the differences between the language of the discrete defenses 

set forth in Article 12 versus Articles 13 and 20. The sister-state decisions observed 

that the language of the Convention itself seemed to imply that (1) if an Article 12 

defense is established, denying return may be mandatory, but (2) if an Article 13 or 

Article 20 defense is established, the Convention’s language seems to indicate that 

return is discretionary.
III. Defenses to the Petition for Return

91

Similarly, in Blanc v. Morgan,

378 the father’s petition was filed only 

a few weeks after the one-year period had run. The court found that 

father was diligent in pursuing remedies in the courts of the habitual 

residence and that he had acted with reasonable diligence in pursuing 

the child’s return. In refusing mother’s proffer of an Article 12 defense, 

the court stated in dicta that even if mother had proven the delay defense, it would have been proper for the court to order the child returned: 

Under the Hague Convention, it is of paramount concern that courts 

prevent a party in a custody dispute from deriving a benefit through 

wrongdoing. “In fact, a federal court retains, and should use when 

appropriate, the discretion to return a child, despite the existence of 

a defense, if return would further the aims of the Convention.”379

In F.H.U. v. A.C.U.,

380 a New Jersey state court held that Article 18 

grants a court discretion to order a “settled” child returned despite the 

existence of an Article 12 delay defense.

381 In this case the trial court 

ordered return of the child, equitably tolling the one year period because of bureaucratic delays in obtaining counsel for the mother, obtaining the appropriate visas, and processing the application through 

the Central Authority (during the transition of handling incoming case 

from the National Center for Missing and Exploited Children 

(NCMEC) and the State Department). The appellate division reversed

the finding of equitable tolling, but affirmed the order returning the 

child focusing on the wrongfulness of father’s abduction of the child, 

and the finding that father failed to testify credibly. The following 

observation made by the court deserves note:

At its essence, the Convention seeks to right a wrong by returning 

the factual situation to the status quo ante a child’s removal. As an 

agreement among sovereign nations regarding their most precious 

 

378. 721 F. Supp. 2d 749 (W.D. Tenn. 2010).

379. Id. at 765 (quoting Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060, 1067 

(6th Cir. 1996)).

380. 48 A.3d 1130 (N.J. Super. Ct. App. Div. 2012).

381. Id. at 1142.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

92

resource, the Convention resolves to ensure that permanent custody 

determinations are made solely through the legal procedures of a 

child’s habitual residence. This necessarily may occasion austere results, but such is the nature of an international accord that endeavors 

to streamline the varied and disparate procedures of its signatory nations. Just as the Convention's drafters were cognizant of potential 

transactional delays, they also sought to minimize the impact of one 

nation's legal processes upon another.382

Although it appears that Article 18 confers discretion to order a 

child returned regardless of the type of defense that is proven, courts 

around the world have interpreted the breadth of this discretion in 

different ways.383 Some foreign courts have pointed out that this discretion may not exist with regard to the defense described in Article 

12 (delay plus settlement of the child).384 It appears, however, that the 

majority view of common-law jurisdictions is that courts retain the 

discretion to return a child despite the establishment of an Article 12 

defense.385 In the case Re M.,

386 England’s House of Lords held that 

 

382. Id. at 1147.

383. Dir.-Gen. Dep’t of Families, Youth and Comty. Care v. Moore, [1999] FLC 

92-841; [1999] FamCA 284 [Australia] (open question); J.E.A. v. C.L.M. (2002), 220 

D.L.R. 4th 577 (N.S.C.A.) [Nova Scotia Court of Appeal] (child returned after seven 

years of concealment); Re M. (Children) (Abduction: Rights of Custody) [2007] 

UKHL 55, [2008] 1 AC 1288 [U.K] (discretion exists).

384. Droit de la Famille 2785, Cour d’appel de Montreal, 5 decembre 1997, No. 

500-09-005532-973 [Canada]; State Central Authority v. Ayob [1997] FLC 92-746, 21 

Fam. LR 567 [Australia]. Compare Article 20: “[T]he judicial . . . authority of the 

requested State is not bound to order the return of the child . . . if the defenses in (a) or 

(b) are established.” and Article 13(b): “The return of the child under the provisions 

of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental 

freedoms.” (emphasis added)

385. Dir.-Gen. Dep’t of Families, Youth and Comty. Care v. Moore, [1999] 24 

Fam LR 475, 150 FLR 59 [Australia] (inferring court’s discretion from Article 12); Re 

S. (A Minor) (Abduction), [1991] Fam. 224 (EWCA (Civ.)) (Eng.); P. v. B. (No. 2) 

(Child Abduction: Delay), [1999] 4 I.R. 185, 2 I.L.R.M. 401 (Ir.); Soucie v. Soucie, 

[1995] S.C. 134, S.C.L.R. 203 (Scot.) (discussing Article 12’s discretion in dicta); 

Secretary for Justice (New Zealand Central Authority) v. H.J., [2007] 2 NZLR 289 
III. Defenses to the Petition for Return

93

Article 18 does not establish any residual jurisdiction under the Convention to order a child’s return despite the establishment of the defense of delay under Article 12. However, if provisions of domestic law 

exist to authorize the return of the child, then Article 18 merely clarifies that the Convention will not bar the return of the child under 

domestic law. For example, hypothetically, if the United Kingdom had 

a domestic law similar to the United State’s UCCJEA, it would be possible that a return of the child pursuant to the Hague Convention 

would be denied on the basis of the Article 12 limitation of one year. 

Despite the bar of Article 12, an English court could order a child returned to Canada if Canada met all of the requirements for the child’s 

“home state.”

Both the Pérez-Vera Report and the Text & Legal Analysis state that 

domestic laws may authorize the return of a child, independent of the 

Convention.387 The Text & Legal Analysis explains: “Under Article 29 a 

person is not precluded from seeking judicially-ordered return of a 

child pursuant to laws and procedures other than the Convention. 

Indeed, Articles 18 and 34 make clear that nothing in the Convention 

limits the power of a court to return a child at any time by applying 

other laws and procedures conducive to that end.”

388 Courts may find 

this commentary helpful when adjudicating Hague petitions that raise 

a complex web of defenses.

 

(SC) (N.Z.) (stating that discretion had been conferred by virtue of New Zealand’s 

legislation implementing the Convention).

386. Re M. and Another (Children) (Abduction: Rights of Custody), [2008] 1 

A.C. 1288 (H.L.) (app. taken from Eng. (U.K.)).

387. Pérez-Vera Report, supra note 19, ¶ 112 (1981). In the United States, the 

UCCJEA might provide the authority for a court to order that a child be returned to 

another country based on a finding that the country was properly exercising jurisdiction over child custody issues.

388. Holder v. Holder (Holder I), 305 F.3d 854, 860 (9th Cir. 2002) (emphasis 

added) (citing Text & Legal Analysis, supra note 73, at 10,507–08).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

94

B. Delay of More Than One Year

Article 12 sets forth a two-prong defense of delay: (1) the party requesting return of the child has delayed more than one year in the 

filing of an application for return, and (2) the child has become settled 

in his or her new environment.

The first two paragraphs of Article 12 provide the following:

Where a child has been wrongfully removed or retained in terms of 

Article 3 and, at the date of the commencement of the proceedings

before the judicial or administrative authority of the Contracting 

State where the child is, a period of less than one year has elapsed 

from the date of the wrongful removal or retention, the authority 

concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one 

year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

The one-year limitation runs from the date the wrongful removal or 

retention occurred. The date of a wrongful removal is usually a simple 

matter, since one may presume that a parent with custody rights will 

have an accurate understanding of when those custody rights were 

violated. However, the task of determining the date of a wrongful retention can be more complicated. See discussion supra at page 27.

U.S. courts have interpreted the term “commencement of proceedings” in Article 12 to mean that an action must be filed in court.389 An 

application made to the Central Authority will not suffice.390

 

389. See 22 U.S.C. § 9003(f)(3) (1988); Muhlenkamp v. Blizzard, 521 F. Supp. 2d 

1140, 1152 (E.D. Wash. 2007) (the one-year period is measured from when the petition was filed in court); see also Belay v. Getachew, 272 F. Supp. 2d 553, 561 (D. Md. 

2003) (the court states that it has been uniformly held that the filing of the petition in 

court commences the judicial proceedings). 

390. See Wojcik v. Wojcik, 959 F. Supp. 413 (E.D. Mich. 1997). Cf. In re A.V.P.G. 

251 S.W.3d 117 (Tex. App. 2008) (although father filed an application with the Belgian Central Authority that was transmitted to the U.S. Central Authority within 
III. Defenses to the Petition for Return

95

1. Child Settled in New Environment

Neither the Convention nor ICARA define the term “settled” as it is 

used in Article 12.

391 The Text & Legal Analysis opines: “To this end, 

nothing less than substantial evidence of the child’s significant connections to the new country is intended to suffice to meet the respondent’s burden of proof.”

392 In connection with the Article 12 defense, the Second Circuit has proposed that the term “settled” 

should be viewed to mean that the child has significant emotional 

and physical connections demonstrating security, stability, and permanence in its new environment . . . , [and] a court may consider 

any factor relevant to a child’s connection to his living arrangement.393

The question whether a child has become settled is fact-intensive.394

Courts looking to whether a child has become settled within the 

 

Article 12’s one-year period, father’s petition filed in a Texas court was two weeks 

late). Held: combined with father’s immediate reporting of the abduction, securing a 

Belgian court order granting him custody, obtaining an international arrest warrant, 

and upon learning of children’s location, commencing proceedings for return through 

the Central Authorities, father’s conduct was consistent with the requirements of the 

Hague Convention, and his petition was allowed.

391. The Second Circuit points to a potential conflict between the “acclimatzation” second prong of Gitter when analyzing “settlement” for habitual residence 

analysis and the Article 12 provision that return may be denied if the petition for 

return is filed more than one year after the wrongful removal or retention and the 

child is “now settled” in the new environment. In Hofmann v. Sender, 716 F.3d 282 

(2d Cir. 2013), the court raised the question: “Hypothetically, these ostensibly parallel 

analyses could allow for a finding that a child has become well settled in its new country before the one year time limit in Article 12 has elapsed. Because we rely solely on 

temporal grounds in holding that the mandatory provisions of Article 12 are not satisfied [in this case] . . .we leave for another day any potential conflict that may exist.” 

Id. at 294.

392. Text & Legal Analysis, supra note 73, at 10,509.

393. Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir. 2012) (citing Duarte v. Bardales,

526 F.3d 563, 569–70 (9th Cir. 2008)).

394. See, e.g., Yaman v. Yaman, 730 F.3d 1, 21–22 (1st Cir. 2013) (citing to the 

Amicus Brief of the United States on Cert. in Lozano v. Alvarez, at 11–12).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

96

meaning of Article 12 frequently consider a diverse number of factors,

395 including

• age of the child

• language fluency

• length and stability of the child’s residence in the new environment396

• consistent attendance at school or day care 

• attendance at church 

• regular participation in other community or extracurricular 

school activities 

• respondent’s employment and financial stability

• the immigration status of the child

• whether the child has friends and relatives in the new area397

 

395. See, e.g., In re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir. 2009); see also

Wojcik, 959 F. Supp. 413 (analyzing factors like time in the new location, school 

attendance, parent with stable employment, day care); In re Robinson, 983 F. Supp. 

1339 (D. Colo. 1997) (looking to involvement with extended family, participation in 

extracurricular activities, and friends); In re Koc, 181 F. Supp. 2d 136 (E.D.N.Y. 2001)

(weighing child’s church attendance, stability of parental employment, relatives in the 

area, relatives and friends in habitual residence, immigration status of parent and/or 

child, financial stability, ability to visit with other parent because of immigration 

issues); In re Coffield, 644 N.E.2d 662, 666 (Ohio Ct. App. 1994) (assessing child’s 

friends and relatives, participation in organized activities, connections within community); Blanc, 721 F. Supp. 2d 749 (viewing child’s stable home, employment, family 

vacations, day care, summer camp, age of the child as settlement factors); Giampaolo 

v. Erneta, 390 F. Supp. 2d 1269 (N.D. Ga. 2004); In re Ahumada Cabrera, 323 F. 

Supp. 2d 1303 (S.D. Fla. 2004) (viewing child’s fluency in English as a settlement 

factor); Lops v. Lops, 140 F.3d 927 (11th Cir. 1998); Lutman v. Lutman, No. 1:10-

CV-1504, 2010 WL 3398985 (M.D. Pa. 2010) (unreported disposition) (looking to 

child’s academic progress).

396. See In re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir. 2009) (suggesting that 

the most important factor is the length and stability of the child’s residence in the new 

location).

397. Lozano v. Alvarez, 697 F.3d 41, 57 (2d Cir. 2012); B. Del C.S.B., 559 F.3d at 

1009.
III. Defenses to the Petition for Return

97

• financial stability and employment of parent

• academic progress

• immigration status398

• any factor that is relevant to the child’s living arrangement399

Even though a court may find that a child has become “settled” 

within the meaning of Article 12, there is authority that a court may 

balance the fact of the child’s settlement against equitable considerations, and nevertheless order the child returned.400 In the concurring 

opinion of Lozano v. Montoya Alvarez,

401 Justice Alito observed the 

following:

Even after a year has elapsed and the child has become settled in the 

new environment, a variety of factors may outweigh the child’s interest in remaining in the new country, such as the child’s interest in returning to his or her original country of residence (with which he or 

she may still have close ties, despite having become settled in the 

new country); the child’s need for contact with the non-abducting 

parent, who was exercising custody when the abduction occurred; 

the non-abducting parent’s interest in exercising the custody to 

 

398. See B. Del C.S.B., 559 F.3d at 1009 (“[W]e will also consider the immigration status of the child and the respondent. In general, this consideration will be relevant only if there is an immediate, concrete threat of deportation.”); see also Castillo v. 

Castillo, 597 F. Supp. 2d 432 (D. Del. 2009) (father expected to become U.S. citizen 

soon, and child would therefore be eligible for citizenship as well).

399. Lops v. Lops, 140 F.3d 927, 936 (11th Cir. 1998); Duarte v. Bardales, 526 

F.3d 563, 569–70 (9th Cir. 2008). 

400. See Taveras v. Morales, 22 F. Supp. 3d 219, 231 (S.D.N.Y. 2014) (court 

recognizes its discretion to order return of a child despite the proof of an Article 12 

defense); Belay v. Getachew, 272 F. Supp. 2d 553, 555, 565 (D. Md. 2003) (balancing 

the equities and finding grounds for “equitable estoppel,” thus barring the abducting 

parent from taking refuge in an Article 12 defense). See also F.H.U. v. A.C.U., 48 A.3d 

1130, 1147 (N.J. Super. Ct. App. Div. 2012) (“[F]inding a child to be well-settled does 

not render a court powerless to order the child returned.”); Wojcik v. Wojcik, 959 F. 

Supp. 413, 420–21 (suggesting that there may be equitable reasons to order a child 

returned despite being settled).

401. 134 S. Ct. 1224 (2014). The concurring opinion of Justice Alito was joined 

in by Justices Breyer and Sotomayor. Id. at 1237.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

98

which he or she is legally entitled; the need to discourage inequitable 

conduct (such as concealment) by abducting parents; and the need 

to deter international abductions generally.402

One Florida case found that despite the fact that the child had been 

present in that state for four years, the court deemed the child “not 

settled.” In Wigley v. Hares,

403 the mother kept the child actively concealed, and the child never attended school or came to the attention of 

school authorities. Mother kept the child out of all community activities, sports, and church to avoid detection by the father. The child 

made none of the usual connections to the community. The court 

found that to find the child “settled” under these circumstances would 

“undermine the very purpose of the Convention.”404

The fact that a child may have a more affluent lifestyle with one 

parent has no relevance for determining whether the child has become 

settled in that location.

405 Also, concealment of the child militates

against the conclusion that the child has become settled.

2. Equitable Tolling

Equitable Tolling is a common-law equitable concept that prevents 

actions from being barred by a statute of limitations. The defense is 

based on the principle that persons may not profit by their own 

wrongful conduct that inhibits another from promptly asserting their 

legal rights.406 A number of courts have invoked equitable tolling to 

deny an Article 12 delay defense.407 In these cases, the doctrine was 

 

402. Id.

403. 82 So.3d 932 (Fla. App. 2011).

404. Id. at 942. See also Lops, 140 F.3d at 946 (finding children not settled where 

children were concealed from mother and elaborate steps taken to avoid detection).

405. See Koc, 181 F. Supp. 2d at 152 (citing Lops v. Lops, 140 F.3d 927, 946 

(11th Cir. 1998)).

406. See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Glus v. Brooklyn E. 

Dist. Terminal, 359 U.S. 231, 232–33 (1959); Oshiver v. Levin, Fishbein, Sedran & 

Berman, 38 F.3d 1380 (3d Cir. 1994).

407. Duarte v. Bardales, 526 F.3d 563 (9th Cir. 2008); Furnes v. Reeves, 362 F.3d 

702 (11th Cir. 2004); Perez v. Garcia, 198 P.3d 539 (Wash. Ct. App. 2009).
III. Defenses to the Petition for Return

99

applied where the delay in petitioning for the return of a child was in 

whole or in part the result of the concealment of the child by the abducting parent. Other circuits, however, reasoned that equitable tolling was not available to extend the one-year period set forth in Article 

12, concluding that Article 12 was not a true statute of limitations.408

Recognizing the circuit split on the application of equitable tolling, 

the Supreme Court granted certiorari in Lozano v. Alvarez.

409 In its 

unanimous 2014 decision410 the court held that equitable tolling is not 

available when the one-year period in Article 12 expires because of an 

abductor’s successful concealment of the child from the left-behind 

parent.411

The Supreme Court viewed the application of equitable tolling in 

Hague cases as “fundamentally a question of statutory intent.”412 The 

Court noted that the concept of equitable tolling was not part of the 

legal background of the original signatory nations to the Hague Convention, and as such, was not intended to be incorporated within the 

structure of the treaty.

The Court additionally held that Article 12 would not apply in any 

event since it did not create a statute of limitations.413 Because the 

provisions of Article 12 allow for the possibility of return despite the 

expiration of the one-year period, the remedy of return is not altogether eliminated. As such, the common features of statutes of limita-

 

408. Lozano v. Alvarez, 697 F.3d 41 (2d Cir. 2012); Yaman v. Yaman, 730 F.3d 1 

(1st Cir. 2013).

409. Lozano v. Alvarez, 133 S. Ct. 2851 (2013).

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

Bardales, 526 F.3d 563 (9th Cir. 2008)); Furnes v. Reeves, 362 F.3d 702 (11th Cir. 

2004).

411. In Lozano, mother concealed the child in the United Kingdom for seven 

months, then came to New York. Father did not locate the child until November 2010, 

two years after the child’s disappearance with her mother. Father exercised diligence 

in attempting to locate the child, but was unsuccessful in doing so until he was notified by the U.S. State Department that the mother and child had entered the United 

States. Lozano, 134 S. Ct. 1224.

412. Id. at 1232.

413. Id. 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

100

tions—including certainty as to when claims may be brought—are not 

present.414

The Court acknowledged the argument that in the absence of equitable tolling, that abducting parents might be rewarded by successfully concealing children. Rejecting this position, the Court observed 

that the Convention’s goal to deter abductions does not apply “at any 

cost,” given that the child’s interest to remain in a settled environment 

may outweigh the benefits of ordering a return. The Court also observed that facts underlying a child’s concealment may preclude a 

child from forming stable attachments, or becoming “settled” within 

the meaning of Article 12.415

In a concurring opinion, three of the justices416 addressed the discretion of courts to order a child’s return even after the child has become settled.417 They noted that the issue of settlement is not an exclusive consideration, observing that Article 18418 permits the exercise 

of a court’s discretion to return a child despite the expiration of Article 

12’s one-year period. The concurring justices also pointed out that 

Article 12 places no limits on discretion conferred on a court by Article 18419 and described other factors that might appropriately influence 

a decision to order a child’s return.420

 

414. Id. at 1234.

415. Id. at 1236 (citing to Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 

1347, 1363–64 (M.D. Fla. 2002)); see also Wigley v. Hares, 82 So.3d 932, 942 (Fla. 

Dist. Ct. App. 2011); In re Coffield, 644 N.E.2d 662 (Ohio Ct. App. 1994).

416. Justices Alito, Breyer, and Sotomayor.

417. The majority opinion declined to address this issue. Despite the fact that the 

district court found that the child was settled, father failed in his appeal to the Second 

Circuit to challenge the trial court’s decision not to exercise that discretion in favor of 

ordering the child’s return.

418. “The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.” Convention, supra

note 11, Article 18.

419. See discussion at page 89 regarding the scope of authority to order returns 

pursuant to Article 18.

420. A concurring opinion in Lozano stated:

Even after a year has elapsed and the child has become settled in the new environment, a variety of factors may outweigh the child’s interest in remaining in the new 
III. Defenses to the Petition for Return

101

C. Consent and Acquiescence

1. Generally—Separate Defenses421

Article 13 provides that a court is not bound to order a child returned 

if

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, or had consented to or subsequently acquiesced in the removal or retention.

422

These defenses must be proven by a preponderance of the evidence.423

The term “consent” refers to permission given before the child is removed, whereas “acquiescence” refers to conduct after the removal.424

Consent can be established by either statements425 or conduct indicating that a parent has given consent to the removal and retention of a 

child, for an indefinite period of time or permanently.426 Acquiescence 

may be proven by formalized conduct, such as a parent giving a formal 

 

country, such as the child’s interest in returning to his or her original country of residence (with which he or she may still have close ties, despite having become settled in 

the new country); the child’s need for contact with the non-abducting parent, who 

was exercising custody when the abduction occurred; the non-abducting parent’s interest in exercising the custody to which he or she is legally entitled; the need to discourage inequitable conduct (such as concealment) by abducting parents; and the 

need to deter international abductions generally.

Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1237 (concurring opinion).

421. See Nicolson v. Pappalardo, 605 F.3d 100, 103 (1st Cir. 2010).

422. Convention, supra note 11, Article 13(a).

423. See Burdens of Proof, supra page 23.

424. See, e.g., Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005).

425. See, e.g., Pignoloni v. Gallagher, 555 F. App’x 112 (2d Cir. 2014) (provision 

in Italian divorce decree permitted mother to return to the United States if father 

defaulted in support payments. Held: the provision amounted to prior consent to 

remove the children if support not paid); cf., Walker v. Walker, 701 F.3d 1110, 1122 

(7th Cir. 2013) (father’s lack of paying financial support was not relevant to issue 

whether father ceased to exercise his custody rights, and thus abandoned the children).

426. See, e.g., Gonzalez-Caballero v. Mena, 251 F.3d 789, 793–94 (9th Cir. 2001); 

Baxter, 423 F.3d 363. 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

102

consent order in court or a formal renunciation of rights.427 Where the 

facts showing acquiescence are ambiguous, courts focus on the subjective intent of the parent who has allegedly acquiesced. These defenses, 

like the others, are to be interpreted narrowly.428

The cases tend to center around the parents’ conduct occurring in 

the context of the end of their domestic relationship. Courts generally 

look at the overall conduct of the parties in determining whether consent or acquiescence has occurred, as opposed to focusing upon isolated words or conduct. The words or actions of a party should not be 

“scrutinized for a possible waiver of custody rights,” nor should isolated statements to third parties be sufficient.

429 Consent or acquiescence 

should be based on clear and unambiguous conduct.430 This defense is 

fact-intensive,

431 as explained in Baxter v. Baxter:

Although the law construing the consent defense under the Convention is less developed, the defense of acquiescence has been held to 

require “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, 78 F.3d at 1070 (internal footnotes omitted). 

Courts have held the acquiescence inquiry turns on the subjective 

intent of the parent who is claimed to have acquiesced. (citations 

omitted)

 

427. See discussion from Baxter below.

428. See In re Kim, 404 F. Supp. 2d 495, 512 (S.D.N.Y. 2005) (“To view the defenses more broadly would frustrate the core purpose of the Hague Convention. . . .”); Nicolson v. Pappalardo, 605 F.3d 100, 105 (1st Cir. 2010).

429. Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060, 1067 (6th Cir. 1996); see 

also Wanninger v. Wanninger, 850 F. Supp. 78 (D. Mass. 1994).

430. See Simcox v. Simcox, 511 F.3d 594, 603 (6th Cir. 2007); see also Asvesta v. 

Petroutsas, 580 F.3d 1000 (9th Cir. 2009) (circuit court found that the district court 

should not have granted comity to a Greek court’s order denying a child’s return 

under the Convention, where the Greek court’s order was based on a factually unsupported finding that father consented to the permanent removal of the child from the 

United States). 

431. See Stevens v. Stevens, 499 F. Supp. 2d 891, 897 (E.D. Mich. 2007) (reviewing conflicting evidence that tends to show consent, but not to the level of a preponderance of the evidence).
III. Defenses to the Petition for Return

103

Consent need not be expressed with the same degree of formality 

as acquiescence in order to prove the defense under article 13(a). Often, the petitioner grants some measure of consent, such as permission to travel, in an informal manner before the parties become involved in a custody dispute. The consent and acquiescence inquiries 

are similar, however, in their focus on the petitioner’s subjective intent. In examining a consent defense, it is important to consider 

what the petitioner actually contemplated and agreed to in allowing 

the child to travel outside its home country. The nature and scope of 

the petitioner’s consent, and any conditions or limitations, should be 

taken into account. The fact that a petitioner initially allows children 

to travel, and knows their location and how to contact them, does 

not necessarily constitute consent to removal or retention under the 

Convention.432

2. Consent by Participation in Custody Proceedings

A party that voluntarily consents to a particular court to make final 

custody orders is deemed to have consented to the terms of the order.

In Larbie v. Larbie, mother moved with the child to the United Kingdom during the pendency of divorce proceedings. Upon father’s completion of military service, the parties litigated their divorce case to a 

final judgment in Texas, and father was given primary custody of the 

parties’ child. Mother initiated a petition for return of the child in district court, resulting in the court granting the petition and ordering 

the child returned to the United Kingdom. The Fifth Circuit reversed, 

finding that the primary purpose of the Hague Convention is to return 

a child to a country that has jurisdiction to determine custody. By 

mother consenting to Texas’s jurisdiction in the family law case, and 

in fact filing a counterclaim, she consented to and acquiesced in the 

result obtained in the state court. The district court’s order of return 

was vacated.

 

432. Baxter v. Baxter, 423 F.3d 363, 371–72 (3d Cir. 2005). 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

104

In Nicolson v. Pappalardo,

433 the parties experienced marital difficulties before the birth of their daughter. Three months after the 

child’s birth, mother and child left Australia and went to the United 

States. Father reluctantly consented to this travel based on the hope 

that allowing mother and the child to travel to the United States would 

result in reconciliation. After a month in the United States, mother 

decided not to return to Australia. She subsequently filed and received 

a temporary domestic violence protection order. That order was modified, with the consent of father’s attorney, to provide that mother was 

to have temporary custody of the child. The First Circuit held that 

father neither consented nor acquiesced in the permanent removal of 

the child to the United States. Although the stipulated order to temporary custody was a strong indication of father’s acquiescence, the district court found no intent on father’s part to consent to permanent 

removal. The First Circuit deferred to that finding, noting that courts 

(such as Baxter)434 treat the issue of acquiescence as one involving 

pure subjective intent.

The First Circuit revisited the issues of consent and acquiescence 

in Darín v. Olivero-Huffman.

435 In Darín, while in the United States, 

mother informed father that she was unwilling to return to Argentina, 

the child’s habitual residence. Father, whose visa was about to expire, 

executed an affidavit drafted by mother. The affidavit authorized 

mother “to take any steps necessary to provide for the education, 

health care, and overall well-being of the child.”436 Provisions were 

also included authorizing either parent to travel with the child, and

that father “was leaving the United States ‘against his will,’ and was not 

abandoning the child.” The First Circuit reversed the trial court’s finding of consent or acquiescence. The court found no evidence to support father consent to the unlawful retention, given that father was 

unaware that mother intended to remain in the United States until she 

 

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

434. Baxter, 423 F.3d at 371–72. 

435. 746 F.3d 1 (1st Cir. 2014).

436. Id. at 6.
III. Defenses to the Petition for Return

105

announced her intention.437 The court further found that the affidavit 

fell well short of evidence that father acquiesced in the child remaining permanently in the United States, even though the affidavit set no 

date for its termination.438 Both parents testified that the purpose of 

the affidavit was to allow mother to care for the child in father’s absence. The court also found that father’s five-month delay in filing a 

petition for return was not evidence of acquiescence, especially given 

that Article 12 deems petitions to be timely if filed within one year.439

3. Stranded Parents

Courts have been faced with the question whether a parent has consented to a change in the child’s habitual residence when parties intend to relocate to another country as an intact family, but after removal of the child one of the parents later learns that relocation is not 

possible.

In Mota v. Castillo,

440 father left the family in Mexico and entered 

the United States illegally. He settled in New York, and began sending 

financial support for his wife and daughter. Three years later, mother 

and father agreed that mother and the child should join father in New 

York. To this end, mother arranged for the child to be smuggled across 

the border and into father’s custody in New York. After being apprehended and incarcerated as a result of her several attempts to cross the 

border, mother abandoned efforts to enter the United States fearing 

greater punishment at the hands of U.S. authorities. Father refused 

mother’s requests for the return of the child to Mexico. The district 

court granted mother’s petition for return. The return order was affirmed by the Second Circuit. The trial court found that mother only 

intended for the child to enter and live in the United States if they 

were to live as a family, and father joined in this mutual intent. The 

mother’s inability to live in the United States triggered the last shared 

intent of the parties, that Mexico would be the child’s habitual resi-

 

437. Id. at 15–16. 

438. Id. at 16.

439. Id. at 18–19.

440. 629 F.3d 108 (2d Cir. 2012).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

106

dence. On the other hand, if father did not join in this intent that the 

child would stay in the United States only if mother was able to join 

the father and child, then no shared intent existed, and the child’s 

habitual residence would remain in Mexico. Further, the court found 

that mother’s agreement allowing the child to enter the United States 

was conditioned upon mother’s ability to reunite with the family.

Hence, mother did not consent to the child’s acquisition of a new habitual residence within the meaning of Article 12.

Following its decision in Mota v. Castillo, the Second Circuit ruled 

in Hofmann v. Sender441 that an agreed-on family relocation to New 

York failed to establish a new habitual residence because the father’s 

consent to the removal of the children was contingent upon his living

in the United States with mother and the children as an intact family. 

Pursuant to this plan, the mother and children relocated from Montreal to New York while father made preparations for a later move. Subsequent events, including mother’s filing for a divorce in New York, 

precluded the implementation of the parent’s plan to move as a family 

to New York. Accordingly, the district court found that the parties last 

shared intent was that the children remain habitually resident in Montreal.442 The district court’s order that the children be returned to Canada was affirmed.

In Sanchez-Londono v. Gonzalez,

443 the First Circuit held that a 

mother’s inability to gain re-entry into the United States to join with 

the child and her father did not alter the parents’ last shared intent 

that the child’s habitual residence was in the United States. Pursuant

to her agreement with the child’s father, mother moved with the child 

from the United States to Colombia hoping that she would have a better chance of gaining legal admission to the United States from her 

native country. After moving to Colombia with the child, mother 

found that she was not able to obtain permission to enter the United 

States. After living in Colombia with the child for two-and-a-half

 

441. 716 F.3d 282 (2d Cir. 2013).

442. Id. at 292.

443. 752 F.3d 533 (1st Cir. 2014).
III. Defenses to the Petition for Return

107

years, mother consented to the child’s return to the United States. The 

return of the child was based on mother’s hope that the child’s presence in the United States would provide renewed grounds for mother’s

legal entry. Almost two years later, still unable to secure legal entry 

into the United States, mother petitioned for the return of the child to 

Colombia. The First Circuit affirmed the trial court’s finding that the 

parents shared the intent that the United States was the child’s habitual residence and subsequent barriers to mother’s re-entry into the 

United States did not change that fact.

In Bowen v. Bowen,

444 the court found that a mother who allowed 

her son to relocate with his father from Ireland to the United States 

consented and acquiesced in the child’s removal, even though the 

child relocated pursuant to a plan for the entire family to move to the 

United States. The parents and their three children lived primarily in 

Northern Ireland but mutually agreed to relocate to the United States

with all three children. Mother purchased five one-way tickets to the 

United States. When it appeared that mother was encountering visa 

problems, she agreed that father would relocate to the United States

with the eldest child, and mother and the other two children would 

join them later. When mother learned that she was subject to a tenyear ban on re-entry into the United States, she decided to remain in 

Northern Ireland. When father refused to return the eldest child to 

Northern Ireland, mother petitioned for the child’s return. Although 

the trial court found that Northern Ireland was the child’s habitual 

residence, it sustained father’s defense that mother consented and 

acquiesced in the child’s removal. Accordingly, mother’s petition for 

return of the child was denied.445

D. Failure to Exercise Rights of Custody

The exercise of custody rights arises in two contexts under the Convention. Under Article 3(b), a party petitioning for return must make a 

preliminary showing that he or she was exercising custody rights be-

 

444. 2014 WL 2154905 (W.D. Pa. 2014).

445. Id. at 8–10.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

108

fore the removal of the child.

446 Article 13(a) discusses the exercise of 

custody rights as an affirmative defense that must be established by a 

preponderance of the evidence; that is, the party resisting return may 

assert the affirmative defense that “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 the removal or retention.”447

This affirmative defense must be established by a preponderance of the 

evidence.

If the family was intact prior to the wrongful removal or retention, 

the exercise of custody rights is clear.

448 Similarly, where one parent has 

sole custody of the child, the exercise of custody rights by that parent is 

easily shown.449 A parent need not have constant physical custody and 

control of a child in order to be exercising his or her rights; a parent 

may place a child with another party, such as a grandparent. This, in 

and of itself, may constitute the exercise of custody rights.450

Friedrich II outlined the requirements for the defense of failure to 

exercise custodial rights:

Enforcement of the Convention should not to be made dependent on 

the creation of a common law definition of “exercise.” The only acceptable solution, in the absence of a ruling from a court in the 

 

446. See discussion of exercise of custody right as part of the case in chief supra at 

page 24.

447. Convention, supra note 11, Article 13(a).

448. See, e.g., Mozes v. Mozes, 239 F.3d 1067, 1085 (9th Cir. 2001); Jenkins v. 

Jenkins, 569 F.3d 549 (6th Cir. 2009); Freier v. Freier, 969 F. Supp. 436 (E.D. Mich. 

1996). 

449. See, e.g., Yang v. Tsui (Yang II), 499 F.3d 259 (3d Cir. 2007) (allowing custody rights for mother with sole custody who sent child to live with father while 

mother was undergoing medical treatment and kept contact with child as her medical 

condition permitted); see also Morrison v. Dietz, No. 07-1398, 2008 WL 4280030 

(W.D. La. 2008) (unreported disposition) (children taken from mother who was their 

primary custodian by virtue of Mexican divorce decree).

450. See, e.g., Text & Legal Analysis, supra note 73; see also Sampson v. Sampson, 

975 P.2d 1211, 267 Kan. 175 (1999) (finding the exercise of custody rights where 

father placed children with his parents, supported children, and visited them on 

weekends). 
III. Defenses to the Petition for Return

109

country of habitual residence, is to 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.

• • •

We therefore hold that, 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. (footnote omitted) Once it determines 

that the parent exercised custody rights in any manner, the court 

should stop—completely avoiding the question whether the parent 

exercised the custody rights well or badly. These matters go to the 

merits of the custody dispute and are, therefore, beyond the subject 

matter jurisdiction of the federal courts.451

Both state and federal courts have uniformly accepted Friedrich II’s 

analysis of this issue. 

E. Grave Risk of Harm—Intolerable Situation

Under Article 13(b) of the Convention, a court may refuse to return a 

child if it finds that “there is a grave risk that his or her return would 

expose the child to physical or psychological harm or otherwise place 

the child in an intolerable situation.” This defense must be proved by 

clear and convincing evidence.452 A determination of grave risk is a 

mixed question of fact and law, and courts will use a de novo standard 

of review.453

 

451. Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060, 1065–66 (6th Cir. 1996). 

452. 22 U.S.C. § 9003(e)(2)(A) provides: “In the case of an action for the return 

of a child, a respondent who opposes the return of the child has the burden of establishing . . . by clear and convincing evidence that one of the exceptions set forth in 

Article 13b or 20 of the Convention applies.” 

453. Acosta v. Acosta, 725 F.3d 868 (8th Cir. 2013), citing Silverman v. Silverman (Silverman II), 338 F.3d 886, 896 (8th Cir. 2003); Baran v. Beaty, 526 F.3d 1340, 

1342 (11th Cir. 2008); Norinder v. Fuentes, 657 F.3d 526 (7th Cir. 2011); Cuellar v. 

Joyce (Cuellar I), 596 F.3d 505, 509 (9th Cir. 2010); Simcox v. Simcox, 511 F.3d 594 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

110

As with the previous defenses, even if the grave risk defense is 

established, the court is not required to deny the petition,454 and the 

court may exercise its discretion to order the child returned.455

1. Defining Grave Risk and Intolerable Situation

The language used in Article 13(b) was chosen carefully and was 

meant to exclude the type of evidence that is typical to a determination of the merits of a custody case.456 Article 13(b) does not apply to 

“value judgment” evidence relating to economic conditions, educational benefits, lifestyles, or disparate quality of parenting styles.457 As 

a result, evidence focusing on the child’s “best interests” or a choice 

between parents is not relevant. 

 

(6th Cir. 2007); Blondin v. Dubois (Blondin II), 238 F.3d 153 (2d Cir. 2001); Walsh v. 

Walsh, 221 F.3d 204 (1st Cir. 2000); In re Marriage of Eaddy, 144 Cal. Rptr. 4th 1202, 

1212 (Cal. Ct. App. 2006). 

454. “Most experts reported that in their jurisdictions Article 13(b) is given a 

very narrow interpretation and that therefore few defences based upon this argument 

are successful.” The American Society of International Law, Report of the Second Special Commission Meeting to Review the Operation of the Hague Convention on the Civil 

Aspects of International Child Abduction, 33 I.L.M. 225, 241, 1994 WL 327559 (1994).

455. The Pérez-Vera Report explains at paragraph 113: “In general, it is appropriate to emphasize that the exceptions in these two articles do not apply automatically, 

in that they do not invariably result in the child’s retention; nevertheless, the very 

nature of these exceptions gives judges a discretion—and does not impose upon them 

a duty—to refuse to return a child in certain circumstances.” See also Text & Legal 

Analysis, 51 Fed. Reg. at 10,510 (“Under Article 13(b), a court in its discretion need 

not order a child returned if there is a grave risk that return would expose the child to 

physical harm or otherwise place the child in an intolerable situation.”). 

456. “Each of the terms used in this provision is the result of a fragile compromise reached during the deliberations of the Special Commission and has been kept 

unaltered.” Pérez-Vera Report, supra note 19, ¶ 116.

457. See, e.g., Cuellar v. Joyce (Cuellar I), 596 F.3d 505, 509 (9th Cir. 2010). The 

court noted that the district court had denied return on the basis that the child would 

suffer psychological harm if separated from her father. The court stated: “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’” (citations omitted). Id. at 511.
III. Defenses to the Petition for Return

111

The term “grave” means “more than a serious risk.”

458 The situation contemplated by Article 13(b) would include sending a child back 

to a “zone of war, famine, or disease” as well as “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.”

459 However, 

grave risk is not based on poverty or conditions less favorable than

what others may consider a minimum standard of living. In Cuellar v. 

Joyce, father was unsuccessful in convincing the court that living in a 

home without running water or indoor plumbing constituted a grave 

risk. The court noted that 

Billions of people live in circumstances similar to those described by 

[father]. 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. At the time the 

Convention was adopted, the State Department took care to emphasize that grave risk doesn’t “encompass . . . a home where money is 

in short supply, or where educational or other opportunities are 

more limited.”460

It is universally accepted that the “grave risk” defense is subject to 

narrow interpretation. Even when a grave risk defense is proven, the 

court retains discretion to order the child’s return with appropriately 

crafted undertakings or conditions. (See discussion supra beginning at 

page 137.) But two circuits have cautioned that in situations involving 

grave risk, “the safety of children is paramount.”461

In Nunez-Escudero v. Tice-Menley, the court relied on language 

from a Canadian Supreme Court case:

 

458. See, e.g., Danaipour v. McLarey (Danaipour I), 286 F.3d 1, 14 (1st Cir. 

2002). 

459. Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060, 1069 (6th Cir. 1996)

(indicating that an intolerable situation would also arise if a parent sexually abuses a 

child). 

460. Cuellar, 596 F.3d at 509 (citing 51 Fed. Reg. 10494, 10510 (1986)).

461. See Simcox v. Simcox, 511 F.3d 594, 608 (6th Cir. 2007) (quoting Van De 

Sande v. Van De Sande, 431 F.3d 567, 572 (7th Cir. 2005)). 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

112

[T]he word “grave” modifies “risk” and not “harm,” this must be 

read in conjunction with the clause “or otherwise place the child in 

an intolerable situation.” The use of the word “otherwise” points inescapably to the conclusion that the physical or psychological harm 

contemplated by the first clause of art. 13(b) is harm to a degree that 

also amounts to an intolerable situation.462

However, the Eleventh Circuit, in Baran v. Beaty,

463 declined to 

follow the dicta of Friedrich II that courts have a duty to assess the 

ability of the habitual residence to protect a child from harm.464 The 

Baran court noted that the history surrounding the adoption of the 

Convention failed to discuss such a condition. Although Baran did not 

prohibit courts from considering this evidence, it held that the parent 

requesting return had no duty to present such evidence.465

A majority of courts have declined to find grave risk when the 

abducting parent claims that an order of return will, by separating the 

child and the abductor, result in psychological damage to the child.466

Courts have defined “intolerable situation” to include sexual or 

physical abuse of a child.467 While the Text & Legal Analysis notes that 

 

462. Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir. 1995) (citing 

Thomson v. Thomson, [1994] 3 S.C.R. 551, 119 D.L.R. 4th 253 (Can. S.C.C.)). 

463. 526 F.3d 1340 (11th Cir. 2008).

464. Accord Van De Sande v. Van De Sande, 431 F.3d 567, 570–71 (7th Cir. 

2005); Blondin v. Dubois, 78 F. Supp. 2d 283, 297–98 (S.D.N.Y. 2000).

465. Baran, 526 F.3d at 1349. 

466. See, e.g., Walsh v. Walsh, 221 F.3d 204, 218 (1st Cir. 2000), cert. denied, 531 

U.S. 1159 (2001); Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995); Norden-Powers v. 

Beveridge, 125 F. Supp. 2d 634 (E.D.N.Y. 2000); Nunez-Escudero, 58 F.3d 374; Gonzalez Locicero v. Nazor Lurashi, 321 F. Supp. 2d 295 (D.P.R. 2004); AntunezFernandes v. Connors-Fernandes, 259 F. Supp. 2d 800 (N.D. Iowa 2003); but see 

Steffen F. v. Severina P., 966 F. Supp. 922 (D. Ariz. 1997) (holding that proof that a 

child’s bond with parent would suffer if ordered returned may qualify as grave risk 

under Article 13). 

467. See, e.g., In re Application of Adan, 437 F.3d 381, 395 (3d Cir. 2006); 

Danaipour v. McLarey (Danaipour I), 286 F.3d 1 (1st Cir. 2002); see also Neves v. 

Neves, 637 F. Supp. 2d 322 (W.D.N.C. 2009) (finding allegations that level of neoNazi activities in Germany, and racial prejudice against children, insufficient to rise to 

the level of an intolerable situation).
III. Defenses to the Petition for Return

113

an “‘intolerable situation’ was not intended to encompass return to a 

home where money is in short supply,”

468 two recent district court 

cases have discussed whether return to a situation with desperate financial conditions involves an “intolerable situation.”

469 Both cases 

determined that the financial situations in question did not rise to the 

level of an intolerable situation, but nevertheless imposed undertakings upon the children’s return, requiring the petitioning parent to 

defray financial expenses until the matters could be heard in the 

courts of the habitual residence.470

2. Child Abuse

It is clear from the case law and legislative history of the Convention 

that abuse of a child—sexual, physical, or emotional—may form the 

basis of an Article 13(b) defense.471 In Danaipour I,

472 mother alleged 

that the children had been subjected to sexual abuse by their father in 

Sweden. The district court deferred to the courts of Sweden the issue 

of whether the abuse actually occurred and ordered the children returned on the condition that there would be a full forensic evaluation. 

The First Circuit reversed, remanding the case to district court for a 

determination of whether the children had been subjected to sexual 

abuse. The court noted the duty of trial courts to determine whether 

the facts underlying an Article 13(b) claim are present:

It is not a derogation of the authority of the habitual residence country for the receiving U.S. courts to adjudicate the grave risk question. 

Rather, it is their obligation to do so under the Convention and its 

enabling legislation. Generally speaking, where a party makes a sub-

 

468. Text & Legal Analysis, supra note 73, at 10,510.

469. See Krefter v. Wills, 623 F. Supp. 2d 125 (D. Mass. 2009); Wilchynski v. 

Wilchynski, No. 3:10-CV-63-FKB, 2010 WL 1068070 (S.D. Miss. 2010).

470. There is a question whether “undertakings” may be imposed where there is 

no finding of an Article 13(b) defense. See discussion infra beginning at page 109.

471. Text & Legal Analysis, supra note 73, at 10,510; Pérez-Vera Report, supra

note 19, ¶ 2; Baran v. Beaty, 526 F.3d 1340, 1352 (11th Cir. 2008); Danaipour I, 286 

F.3d at 15.

472. Danaipour I, 286 F.3d at 25–26.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

114

stantial allegation that, if true, would justify application of the Article 

13(b) exception, the court should make the necessary predicate findings.473

Some courts have ordered the return of children who were subjected 

to abuse upon the acceptance of “undertakings” from the parent requesting return. For a discussion of undertakings, see infra page 137.

3. Domestic Violence

Domestic violence has been recognized as a defense pursuant to Article 13(b) that may justify a refusal to return children.474 Some courts 

have allowed the defense even if the children involved were not themselves subjected to physical abuse,475 while others have ruled that the 

defense is not available if the children were not the direct victims of 

abuse476 or the abuse did not seriously endanger the child.477

“Domestic violence” is an all-inclusive term, including physical, 

emotional, and psychological abuse. It produces a spectrum that involves minor and isolated incidents on one end and high degrees of 

lethality and death on the other. In terms of Article 13(b), domestic 

violence may point to clear and convincing evidence that the return of 

a child would subject the child to a grave risk of harm or place the 

child in an intolerable situation; but evidence of domestic violence is 

not automatically dispositive. In order to bring some clarity to this 

 

473. Id. at 18.

474. See, e.g., Walsh, 221 F.3d 204; Whallon v. Lynn, 230 F.3d 450 (1st Cir. 

2000); Blondin v. Dubois (Blondin I), 189 F.3d 240 (2d Cir. 1999); In re Application 

of Adan, 437 F.3d 381 (3d Cir. 2006); Simcox v. Simcox, 511 F.3d 594 (6th Cir. 

2007); Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir. 2005); Baran, 526 F.3d 

1340.

475. See, e.g., Miltiadous v. Tetervak, 686 F. Supp. 2d 544 (E.D. Pa. 2010); see 

also Walsh, 221 F.3d 204. The abuse of a parent can qualify as an Article 13(b) defense, even though the child was not physically abused.

476. See, e.g., Whallon, 230 F.3d at 460; McManus v. McManus, 354 F. Supp. 2d 

62 (D. Mass. 2005); Aldinger v. Segler, 263 F. Supp. 2d 284, 289 (D.P.R. 2003).

477. See Souratgar v. Lee, 720 F.3d 96, 103–04 (2d Cir. 2013), and cases cited 

therein acknowledging that prior abuse that was not directed toward the child may 

still be the basis for a 13(b) defense.
III. Defenses to the Petition for Return

115

spectrum, the Sixth Circuit in Simcox v. Simcox478 sought to categorize 

the levels of domestic violence and their importance in the Article 

13(b) analysis:

First, there are cases in which the abuse is relatively minor. In such 

cases it is unlikely that the risk of harm caused by return of the child 

will rise to the level of a “grave risk” or otherwise place the child in 

an “intolerable situation” under Article 13b. In these cases, undertakings designed to protect the child are largely irrelevant; since the 

Article 13b threshold has not been met, the court has no discretion 

to refuse to order return, with or without undertakings. (footnote 

omitted) Second, at the other end of the spectrum, there are cases in 

which the risk of harm is clearly grave, such as where there is credible evidence of sexual abuse, other similarly grave physical or psychological abuse, death threats, or serious neglect. (citations omitted) In these cases, undertakings will likely be insufficient to ameliorate the risk of harm, given the difficulty of enforcement and the 

likelihood that a serially abusive petitioner will not be deterred by a 

foreign court’s orders. Consequently, unless “the rendering court 

[can] satisfy itself that the children will in fact, and not just in legal 

theory, be protected if returned to their abuser’s custody,” (citation 

omitted) the court should refuse to grant the petition. Third, there 

are those cases that fall somewhere in the middle, where the abuse is 

substantially more than minor, but is less obviously intolerable. 

Whether, in these cases, the return of the child would subject it to a 

“grave risk” of harm or otherwise place it in an “intolerable situation” is a fact-intensive inquiry that depends on careful consideration 

of several factors, including the nature and frequency of the abuse, 

the likelihood of its recurrence, and whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm 

to the child caused by its return.479

The facts of Walsh v. Walsh480 set forth a series of concerns that 

resulted in the First Circuit denying return.

481 The district court or-

 

478. Simcox, 511 F.3d 594.

479. Id. at 607–08. The Simcox method of analysis was recognized and followed 

in Maurizio R. v. L.C., 201 Cal. App. 4th 616 (2011).

480. 221 F.3d 204 (1st Cir. 2000).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

116

dered the children returned to Ireland, finding that there was no “immediate, serious threat” to the safety of the children that could not be 

dealt with by Irish authorities. The First Circuit reversed, finding that 

under Article 13(b) a risk only needed to be grave, not immediate. The 

court of appeals concluded that in light of father’s persistent disobedience of authority—absconding from criminal charges in the United 

States and disobeying restraining orders and barring orders482—it was 

unlikely that he would adhere to any undertakings that a court might 

impose as a condition of return of the children. The court remanded 

the case with instructions to dismiss father’s petition.483

Similarly, in Acosta v. Acosta,

484 the father had a violent temper and 

had abused the mother in the presence of the children. On one occasion he attacked the children’s mother in the presence of Peruvian 

police. He also attacked mother’s friends who accompanied her to 

gather her belongings in preparation for her move to the United States.

In affirming the district court’s denial of father’s petition for return, 

the Eighth Circuit found that the children were at a high risk of abuse 

in the future, and that proposed undertakings were insufficient to 

ameliorate the threat of harm to the children.485

 

481. In Walsh, father was a serial abuser who absconded to Ireland after he was 

criminally charged for breaking and entering and for making threats to kill a neighbor. 

Mother, pregnant with a second child, followed the father to Ireland with their child. 

A profound history of subsequent abuse occurred over the following four years, consisting of numerous beatings and instances of physical and emotional abuse. The 

abuse continued despite protection orders and orders barring father from the family 

residence. Mother surreptitiously returned with the children to the United States. 

Although the abuse was directed toward the children’s mother, and the children themselves were not physically abused, the parties’ oldest child was diagnosed with Post 

Traumatic Stress Disorder (PTSD). Although this condition was in remission at the 

time of the trial, the child’s therapist felt that if the child were returned to Ireland, that 

she would relapse.

482. A barring order is one that prohibits the restrained person from inhabiting 

or entering a home.

483. Walsh, 221 F.3d at 222. 

484. 725 F.3d 868 (8th Cir. 2013).

485. Id. at 877. 
III. Defenses to the Petition for Return

117

Taylor v. Taylor486 is a unique case where the Eleventh Circuit 

upheld the district court’s determination that an Article 13(b) defense 

had been proven because of the combined threats against the mother 

from father himself and from unknown third parties. The court conceded that the child had been wrongfully removed by mother from the 

United Kingdom. However, the trial court further found that father 

was involved in fraudulent activities that precipitated the threats from 

unknown third parties to the entire family, and combined with father’s 

direct threats to the mother and his continued participation in fraudulent activities, the grave risk of harm existed, precluding an order of 

return to the United Kingdom.

F. Violations of Human Rights and Fundamental 

Freedoms

Article 20 of the Convention provides:

The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of 

the requested State relating to the protection of human rights and 

fundamental freedoms.

This provision was intended to address “the rare occasion that return 

of a child would utterly shock the conscience of the court or offend all 

notions of due process.”487 A claim under this provision first must be 

assessed in the context of the country where the child currently resides. That is, if a child in the United States is the subject of a return 

application, U.S. values regarding human rights and fundamental freedoms are the measure by which the facts are judged. In addition, those 

“fundamental principles” must be applied without discrimination in 

the requested state.

 

486. 502 F. App’x 854 (11th Cir. 2012).

487. Text & Legal Analysis, supra note 73.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

118

As a practical matter, defenses mounted on the basis of an Article 

20 violation are rare, and those raised in the United States have not 

been successful.

488

In Souratgar v. Lee,

489 father petitioned for the return of his child 

from New York to Singapore. While custody proceedings in the Singapore High Court were pending, both parents agreed that they would 

have custody decided by the Syariah court490 in Singapore. Despite this 

agreement, mother opposed the return, inter alia, on grounds that the 

Syariah courts in Singapore are incompatible with the provisions of 

Article 20 that relate to the “protection of human rights and fundamental freedoms.”

Mother presented expert testimony that (1) a woman’s testimony 

may be entitled to less weight than a man’s testimony; (2) that certain 

presumptions in Islamic law favored fathers over mothers in custody 

determinations, and (3) Islamic law favored Muslims over nonMuslims. The circuit court found that mother had made an insufficient showing that the custody matter would be decided by a Syariah 

court, noting that while divorces between persons of the Muslim faith 

are required to be brought in Syariah court, any party may request 

leave to have custody matters determined by the Singapore secular 

 

488. See, e.g., Aldinger v. Segler, 263 F. Supp. 2d 284 (D.P.R. 2003) (no evidence 

of violation of Article 20); Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347 

(M.D. Fla. 2002) (economic crisis does not amount to Article 20 violation); Hazbun 

Escaf v. Rodriquez, 200 F. Supp. 2d 603 (E.D. Va. 2002) (family law procedures); 

Janakakis-Kostun v. Janakakis, 6 S.W.3d 843, 851 (Ky. Ct. App. 1999) (police and 

court system); Caro v. Sher, 687 A.2d 354, 296 N.J. Super. 594 (Super. Ct. Ch. Div. 

1996) (delays in Spanish court system); Freier v. Freier, 969 F. Supp. 436 (E.D. Mich. 

1996) (restraining order compelled mother to remain until divorce settled); Sewald v. 

Reisinger, No. 8:08-CV-2313-JDW-TBM, 2009 WL 150856 (M.D. Fla. 2009) (unreported disposition) (ex parte ruling entered without notice); In re Hague Child Abduction Application, No. 08-2030-CM, 2008 WL 913325 (D. Kan. 2008) (unreported 

disposition); McCubbin v. McCubbin, No. 06-4110-CV-C-NKL, 2006 WL 1797922 

(W.D. Mo. 2006) (unreported disposition).

489. 720 F.3d 96 (2d Cir. 2013).

490. A Syariah court is one that implements Sharia law to persons of the Muslim 

faith.
III. Defenses to the Petition for Return

119

courts. The court dismissed mother’s Article 20 claim on two grounds.

First, the court declined to find that the presence of a Syariah Court in 

Singapore is per se violative of the provisions of Article 20. Second, 

comity among nations signatory to the 1980 Convention is necessary 

for the successful operation of the Convention by protecting children 

wrongfully brought to the United States as well as children who are 

wrongfully taken from the United States. Where the Convention is in 

force between nations, it is presumed that foreign courts will be trusted to exercise the same concerns for safeguarding children as courts in 

the United States.491

In Carrascosa v. McGuire,

492 the parties, both represented by counsel, signed a “parenting agreement.” This agreement prohibited either 

parent from traveling outside the United States with the child without 

the other parent’s written permission. Although the parties did not 

seek to make the agreement a court order, the agreement was valid 

and enforceable under New Jersey law. In Spain, mother filed an action to annul her marriage while father filed a divorce action in New 

Jersey. Shortly thereafter, mother removed the child to Spain. In response to the removal of the child, the New Jersey court awarded custody of the child to father and ordered mother to return the child to 

the United States. Father thereafter filed a Hague Convention return 

case in Spain. The Spanish courts denied father’s Hague application 

and entered an order that the child was not to be removed from Spain 

until her eighteenth birthday. Mother was subsequently ordered by the 

New Jersey court to appear with the child, which she failed to do. A 

warrant was issued for her arrest, resulting in her apprehension and 

incarceration. She continued to refuse to produce the child in New 

Jersey. Mother’s petition for writ of habeas corpus in district court was 

denied and the denial was appealed to the Third Circuit.

The Third Circuit found that the Spanish courts committed several 

errors in denying father’s Hague case: The Spanish court made custody 

 

491. Souratgar, 720 F.3d 96, citing Blondin v. Dubois (Blondin I), 189 F.3d 240, 

242, 248–49 (2d Cir. 1999).

492. 520 F.3d 249 (3d Cir. 2008).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

120

determinations in direct violation of the Hague Convention; the court

failed to consider father’s custody rights under New Jersey law; it

wrongly applied Spanish law to the parenting agreement that was valid 

under New Jersey law; and the Spanish court found that the parenting 

agreement violated a Spanish citizen’s right to travel and thus violated 

Article 20 of the Hague Convention. The Third Circuit refused to 

grant comity to the Spanish order denying father’s Hague Convention 

case finding that the errors committed by the Spanish courts were 

sufficient grounds for declining enforcement of the Spanish judgments. The denial of mother’s writ of habeas corpus was affirmed.

G. Child’s Objection to Return

Article 13 (in an unnumbered paragraph) recognizes that a child may 

object to being returned:

The judicial or administrative authority may also refuse to order the 

return of the child if it finds that the child objects to being returned 

and has attained an age and degree of maturity at which it is appropriate to take account of its views.

The child’s objection to return is sometimes referred to as the “age 

and maturity defense,”493 and sometimes as the “wishes of the child” 

exception.494 Note that labeling the exception in terms of the “child’s 

wishes” may give rise to a skewed opinion of the essence of the exception. Consideration of children’s wishes in the context of a child custody case may be appropriate. However, “wishes” do not rise to the 

level envisioned by this exception. In Hirst v. Tiberghien495 the court 

pointed out that

[T]he court must distinguish between a child’s objections as defined 

by the Hague Convention and the child’s wishes as in a typical child 

 

493. E.g., Felder v. Wetzel, 696 F.3d 92, 101 (1st Cir. 2012); Larbie, 690 F.3d 

295, 306 (5th Cir. 2012).

494. Yang v. Tsui (Yang II), 499 F.3d 259, 265 (3d Cir. 2007); Bowen, 2014 WL 

2154905 (W.D. Pa. 2014).

495. 947 F. Supp. 2d 578 (D.S.C. 2013).
III. Defenses to the Petition for Return

121

custody case, the former being a “stronger and more restrictive” 

standard than the latter. (citation omitted). Where the particularized 

objection is “born of rational comparison” between a child’s life in 

the country of wrongful retention and the country of habitual residence, the court may consider the child's objections to be a mature 

objection worthy of consideration. See Castillo v. Castillo, 597 F.

Supp. 2d 432, 441 (D. Del. 2009). The defense does not apply if the 

“objection is simply that the child wishes to remain with the abductor.” Application of Nicholson v. Nicholson, 97–1273–JTM, 1997 WL 

446432 (D. Kan. July 7, 1997); . . . Giving consideration to such 

wishes would place the court in the position of deciding custody, 

which is explicitly not the mandate of a court hearing a wrongful retention case under the Hague Convention.496

The party opposing the child’s return must prove this defense by a 

preponderance of the evidence.

497 The objection of a child of sufficient 

age and maturity may form the sole basis for denying that child’s return.498 However, the child’s objection to return does not amount to a 

veto power. The language of this exception to return is permissive, 

allowing court discretion to disregard a child’s objection, even if his or 

her age and level of maturity supports consideration of that objection.499

If the child’s objection is the sole basis for challenging return, 

courts apply a stricter standard when evaluating the child’s opinion 

than when considering the child’s testimony as part of a broader anal-

 

496. Id. at 597. 

497. See, e.g., England v. England, 234 F.3d 268, 272 (5th Cir. 2000); Lieberman 

v. Tabachnik, 625 F. Supp. 2d 1109 (D. Colo. 2008); Lopez v. Alcala, 547 F. Supp. 2d 

1255 (M.D. Fla. 2008); 22 U.S.C. § 9001(a)(4) (1988). 

498. See, e.g., Blondin v. Dubois (Blondin II), 238 F.3d 153, 166 (2d Cir. 2001) 

(“We agree with the government that the unnumbered provision of Article 13 provides a separate ground for repatriation and that, under this provision, a court may 

refuse repatriation solely on the basis of a considered objection to returning by a sufficiently mature child.”). 

499. Text & Legal Analysis, supra note 73, at 10,510.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

122

ysis of other issues in the case.500 Article 13 must be construed narrowly.

501 A child’s objection is not tantamount to “the wishes of the 

child.” While the wishes or desires of a child may be appropriate for a 

court to consider in a custody case, they are not relevant in a Hague 

return case.502

A finding “of sufficient age and maturity” under Article 13 is a 

two-step process. First, the court assesses whether the child is sufficiently mature. Then, the court must determine if the child should be 

returned despite his or her objection.

503 Factors may exist that counterbalance the objections of a mature child. A court should consider

 

500. See, e.g., Blondin II, 238 F.3d at 166. In Blondin II, the child was too young 

for the court to accept her objections to return to France. However, her opinions were 

properly considered as part of an Article 13(b) defense. See also de Silva v. Pitts, 481 

F.3d 1279, 1285 (10th Cir. 2007).

501. See, e.g., Yang v. Tsui (Yang II), 499 F.3d 259 (3d Cir. 2007); England, 234 

F.3d at 272; Haimdas v. Haimdas, 720 F. Supp. 2d 183 (E.D.N.Y. 2010).

502. “The Hague Convention also provides a limited opportunity for the child to 

be heard provided it has obtained an ‘age and degree of maturity’ at which it is appropriate to take its views into account. But a main intention of this article was to draw a 

clear distinction between a child’s objections, as defined in the article, and a child’s 

wishes as commonly expressed in a custody case. This is logical, given that the Convention is not intended as an instrument to resolve custody disputes per se. It follows, 

therefore, that the notion of ‘objections’ under Article 13b is far stronger and more 

restrictive than that of ‘wishes’ in a custody case.” Morrison v. Dietz, No. 07-1398, 

2008 WL 4280030, p. 12 (W.D. La. 2008) (unreported disposition) (quoting Response 

to International Parental Kidnapping: Hearing Before the S. Comm. on Criminal Justice Oversight, 106th Cong. (1999) (statement of Catherine L. Meyer, British Embassy 

Co-Chair of the International Centre for Missing & Exploited Children)).

503. See, e.g., Gonzalez Locicero v. Nazor Lurashi, 321 F. Supp. 2d 295, 298 

(D.P.R. 2004) (holding where child was found to be articulate and mature enough to 

express objection to return, child’s objection was not conclusive given the narrow 

interpretation to be given to the exception); Matovski v. Matovski, No. 06 Civ. 

4259(PKC), 2007 WL 2600862 (S.D.N.Y. 2007) (unreported disposition) (declining 

use of discretion to overrule children where court finds children’s objections valid and 

considers return in spite of objection); Barrera Casimiro v. Pineda Chavez, No. 

Civ.A.1:06CV1889-ODE, 2006 WL 2938713 (N.D. Ga. 2006) (using discretion to 

overrule child’s objection to return).
III. Defenses to the Petition for Return

123

those factors and exercise its discretion in light of all available evidence.504

The Text & Legal Analysis cautions: “A child’s objection to being 

returned may be accorded little if any weight if the court believes that 

the child’s preference is the product of the abductor parent’s undue 

influence over the child.”

505 Undue influence need not be the result of 

deliberate attempts to influence the child, but may arise from the circumstances surrounding the child’s wrongful retention.506

The standard for review of a determination regarding a child’s 

objections to return is based on the conclusion that such an inquiry is 

a factual issue.507

1. Age and Maturity

The court must make a factual determination of whether a child is of 

sufficient age and maturity to express a meaningful opinion. Courts of 

appeal accord deference to the discretion of the district court and will 

set aside a factual finding only upon a showing of clear error.508 Given 

 

504. See, e.g., de Silva, 481 F.3d at 1285; Trudrung v. Trudrung, 686 F. Supp. 2d 

570 (M.D.N.C. 2010) (ordering child returned); Matovski, No. 06 Civ. 4259(PKC), 

2007 WL 2600862 (considering objections valid and exercising discretion, but ultimately declining to order return); Barrera Casimiro, No. Civ.A.1:06CV1889-ODE, 

2006 WL 2938713 (exercising discretion to order return despite mature objection to 

return).

505. Text & Legal Analysis, supra note 73, at 10,510. See also Hazbun Escaf v. 

Rodriquez, 200 F. Supp. 2d 603 (E.D. Va. 2002) (finding thirteen-year-old’s objection 

was not strongly stated and appeared to be the product of suggestion of parent).

506. See, e.g., Yang II, 499 F.3d at 280.

507. Blondin II, 238 F.3d 153 (2d Cir. 2001); Escobar v. Flores, 183 Cal. App. 4th 

737 (2010). 

508. See, e.g., Simcox v. Simcox, 511 F.3d 594, 603 (6th Cir. 2007). But see England v. England, 234 F.3d 268, 272–73 (5th Cir. 2000) (reversing district court’s order 

for child’s return based on wishes of fourteen-year-old child with ADD, learning disabilities, and successive foster mothers, and who is on medication and is scared and 

confused by litigation). Accord Vasconcelos v. Batista, 512 F. App’x 403, 405 (5th Cir. 

2013) (“Whether the child has reached an appropriate age and degree of maturity is a 

factual determination and thus subject to clear error review.”); Escobar, 183 Cal. App. 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

124

the broad range of combinations of age and degree of maturity, it is 

difficult to generalize as to what age a child is presumptively able to 

express a mature opinion. Efforts to create a tipping point based on 

age alone have been criticized.

509 Courts have found the opinions of 

children as young as eight years old to be sufficiently mature,

510

whereas other courts have found the opinions of fourteen- and fifteenyear-olds failed to meet this standard.511

The Pérez-Vera Report observes that “it would be very difficult to 

accept that a fifteen-year-old child should be returned against its 

will.”512 The foregoing passage was noted in Felder v. Wetzel,

513 where 

the court remanded the case to the district court to consider the objections of a fifteen-year old girl, but also pointed out that “[n]o part of 

the Hague Convention requires a court to allow the child to testify or 

 

4th 737 (court finds eight year old sufficiently mature to express reasoned objection to 

return).

509. See Tahan v. Duquette, 613 A.2d 486, 259 N.J. Super. 328 (Super. Ct. App. 

Div. 1992) (finding nine years old to be too young to consider at all); cf. Ngassa v. 

Mpafe, 488 F. Supp. 2d 514 (D. Md. 2007) (declining to speak directly to seven-yearold child); Grijalva v. Escayola, No. 2:06-cv-569-FtM-29DNF, 2006 WL 3827539, p. 4 

(M.D. Fla. 2006) (unreported disposition) (finding that children, ages seven and four, 

were not mature enough for court to take into account their views).

510. See, e.g., Anderson v. Acree, 250 F. Supp. 2d 876 (S.D. Ohio 2002); 

Raijmakers-Eghaghe v. Haro, 131 F. Supp. 2d 953, 957–58 (E.D. Mich. 2001) (ordering psychological examination to determine degree of maturity of eight year old); cf.

Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008) (not allowing an eight year old to testify). See also Bonilla-Ruiz v. Bonilla, 2004 WL 2883247 (unreported disposition) 

(Mich. App. 2004) (eight-year-old child sufficiently mature).

511. See England, 234 F.3d at 272–73 (finding fourteen-year-old child did not 

meet standard); Trudrung v. Trudrung, 686 F. Supp. 2d 570 (M.D.N.C. 2010) (returning a fifteen-and-a-half year old despite objection); Barrera Casimiro v. Pineda 

Chavez, No. Civ.A.1:06CV1889-ODE, 2006 WL 2938713 (N.D. Ga. 2006) (unreported disposition) (finding fifteen year old failed to appreciate her immigration status as 

an incident of her nonreturn).

512. Pérez-Vera Report, supra note 19, ¶ 30.

513. 696 F.3d 92 (1st Cir. 2012).
III. Defenses to the Petition for Return

125

to credit the child’s views, so the decision rests within the sound discretion of the trial court.”514

2. Manner of Hearing Child’s Objection

In cases considering Article 13 objections, judges have adopted four 

procedures for receiving evidence of a child’s objection:

515 (1) allowing 

the child to testify in court in an evidentiary hearing;516 (2) interviewing the child in camera;

517 (3) requesting a psychological evaluation of 

the child;518 and (4) appointing an attorney519 or guardian ad litem520

for the child. Courts have used all four of these methods, but the majority have employed in camera interview of the child.

521

 

514. Citing Kufner, 519 F.3d at 40. In Felder, the court was faced with a mother’s 

petition for the return of her daughter. The daughter was hospitalized in the United 

States because she was in need of psychiatric care as evidenced by her ingesting pills 

in an attempt to harm herself.

515. See James D. Garbolino, International Child Custody: Handling Hague Convention Cases in U.S. Courts (National Judicial College 2000).

516. See, e.g., In re Skrodzki, 642 F. Supp. 2d 108 (E.D.N.Y. 2007) (submitting 

declaration of child); McManus v. McManus, 354 F. Supp. 2d 62 (D. Mass. 2005) 

(allowing children to testify at trial).

517. Vasconcelos v. Batista, 512 F. App’x 403 (5th Cir. 2013); Escobar, 183 Cal. 

App. 4th at 743 (child interviewed in chambers with attorneys for the parties, bailiff, 

court clerk, and court reporter).

518. See, e.g., McManus, 354 F. Supp. 2d 62 (appointing a psychologist); Raijmakers-Eghaghe, 131 F. Supp. 2d 953 (ordering psychological report regarding wishes of 

eight year old).

519. See, e.g., Castillo v. Castillo, 597 F. Supp. 2d 432 (D. Del. 2009) (appointing 

attorney to meet with child and to determine issue of maturity); Raveras v. Morales, 

22 F. Supp. 3d 219 (S.D.N.Y. 2014).

520. See, e.g., Diaz Arboleda v. Arenas, 311 F. Supp. 2d 336 (E.D.N.Y. 2004); San 

Martín v. Moquillaza, 2014 WL 3924646 (E.D. Tex. 2014) (unreported disposition) 

(Magistrate judge appointed attorney ad litem to interview the children, nine and 

twelve; magistrate judge interviewed the children separately, in chambers, with attorney ad litem present. Id. at 7.).

521. See, e.g., de Silva v. Pitts, 481 F.3d 1279 (10th Cir. 2007); Haimdas v. 

Haimdas, 720 F. Supp. 2d 183 (E.D.N.Y. 2010); Trudrung v. Trudrung, 686 F. Supp. 

2d 570 (M.D.N.C. 2010); Lieberman v. Tabachnik, 625 F. Supp. 2d 1109 (D. Colo. 

2008); Diaz Arboleda, 311 F. Supp. 2d 336; Andreopoulos v. Nickolaos Koutroulos, 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

126

3. Generalized Desires Versus Particularized Reasons

Courts have distinguished between a child’s objections to return that 

are expressed as “generalized desires” as opposed to articulable reasons supporting those objections. In Yang v. Tsui (Yang II),

522 the district court refused to sustain the child’s desire to remain in the United 

States on the basis that (1) the child had no particularized objection to 

returning to Canada, and (2) the child lacked sufficient age and maturity for her view to be considered. The Third Circuit affirmed the 

district court’s findings on this issue and held that the district court 

appropriately considered that the child’s desire to remain in the United States was the result of attachments made by the child while wrongfully retained. The Third Circuit commented that

If the District Court applied the exception in this case, it would encourage parents to wrongfully retain a child for as long as possible. A 

lengthy wrongful retention could enable the child to become comfortable in his or her new surroundings, which may create a desire to 

remain in his or her new home. The application of the exception in 

this case would reward [father] for violating [mother’s] custody 

rights, and defeat the purposes of the Convention.523

Acknowledging the cautionary language of Yang II, the court in 

Bowen524 sustained the objections of a ten-year old to a return to Ireland. The child’s articulated reasons for objecting to return were that 

he was born in the United States, he was more attached to his father 

than his mother, that he would be sad to return to Ireland, and the 

racial mix in the United States was different than that in Ireland. The 

child also acknowledged that he was sad that he would not be living 

 

No. 09-cv-00996-WTD-KMT, 2009 WL 1850928 (D. Colo. 2009); Laguna v. Avila, 

No. 07-CV-5136 (ENV), 2008 WL 1986253 (E.D.N.Y. 2008); Di Giuseppe v. Di 

Giuseppe, No. 07-CV-15240, 2008 WL 1743079 (E.D. Mich. 2008); McClary v. 

McClary, No. 3:07-cv-0845, 2007 WL 3023563 (M.D. Tenn. 2007); Kofler v. Kofler, 

No. 07-5040, 2007 WL 2081712 (W.D. Ark. 2007) (unreported disposition); Yang v. 

Tsui (Yang II), 499 F.3d 259 (3d Cir. 2007).

522. 499 F.3d 259 (3d Cir. 2007). 

523. Id. at 280.

524. 2014 WL 2154905 (W.D. Pa. 2014). 
III. Defenses to the Petition for Return

127

with his mother and siblings, but nevertheless was firm in his desire to 

remain in the United States. The court found that the child exhibited a 

“marked sense of maturity,” and found no evidence to suggest that the 

passage of time influenced the child’s objection to return.

525

In de Silva v. Pitts,

526 the Tenth Circuit allowed the child to remain 

in the United States rather than compelling his return to Canada. The 

thirteen-year-old boy gave specific reasons for wishing to remain in 

the United States, including his participation in sports, his opinion of 

his school, and the fact that he had “everything he needs for school.”527

The child voiced no particularized objections to returning to Canada.

4. Children’s Standing to Intervene on Their Own Behalf

In Sanchez v. R.G.L.,

528 three Mexican children were brought into the 

United States by relatives without consent of the child’s mother. Upon 

mother’s demand for return of the children to her in Ciudad Juarez, 

Chihuahua, the relatives escorted the children to the border. The children were detained by Homeland Security when they objected to returning to Mexico out of fear of mother’s boyfriend who they described as a gang member, drug trafficker, and child abuser. The children were placed in the custody of the U.S. Office of Refugee Resettlement (ORR). ORR placed the children with Baptist Services, and 

that organization placed the children in a foster home in San Antonio.

ORR commenced legal proceedings for the children’s removal and 

counsel was appointed to represent them in the deportation proceedings. Counsel for the children also commenced proceedings for a grant 

of asylum for the children. Almost a year later, mother petitioned for 

return of the children in the U.S. District Court for Western Texas.

The relatives were named as respondents as well as the private agency 

responsible for the children’s foster placement. At the hearing on 

mother’s petition, the relatives who had taken the children did not 

appear. The agency placing the children in foster care appeared but 

 

525. Id. at 16.

526. 481 F.3d 1279 (10th Cir. 2007). 

527. Id. at 1287.

528. 761 F.3d 495 (5th Cir. 2014).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

128

did not take a position on whether the mother’s petition should or 

should not be granted. The district court ordered the children’s return.

The children appealed.

The Fifth Circuit found that the children had standing to appeal.

The court followed the three-part test for standing set forth in SEC v. 

Forex Asset Managment LLC.

529 The factors are (1) “whether the nonparty actually participated in the proceedings below”; (2) whether “the 

equities weigh in favor of hearing the appeal”; and (3) whether “the 

non-party has a personal stake in the outcome.”530 The attorney representing the children in deportation proceedings appeared and played 

an active role in the Convention proceeding. No one else meaningfully 

opposed mother’s petition for return. The court further found that the 

equities and the children’s personal stake in the outcome of the case 

weighed heavily in their favor.

The court found that no respondent was making an effort to represent the interests of the children. As a consequence, and citing Rule 

17(c)(2),

531 the court ordered the appointment of a guardian ad litem 

on remand. The court declined, however, to order the children leave 

to intervene on their own behalf, given that their rights could be adequately asserted by their guardian ad litem.

 

529. 242 F.3d 325, 329 (5th Cir. 2001).

530. Id. at 502.

531. “A minor or an incompetent person who does not have a duly appointed 

representative may sue by a next friend or by a guardian ad litem. The court must 

appoint a guardian ad litem—or issue another appropriate order—to protect a minor 

or incompetent person who is unrepresented in an action.” Fed. R. Civ. P. 17(c)(2). 
III. Defenses to the Petition for Return

129

H. The Effect of Asylum Proceedings

An order compelling the return of a child is not trumped by a grant of 

asylum. While in foster care, the three children in Sanchez v. R.G.L.,

532

supra, applied for asylum. After trial on the mother’s petition, the district court ordered the children returned to Mexico, but stayed the 

order pending appeal. Pending the appeal, the children were granted 

discretionary asylum in the United States.

The Fifth Circuit remanded the case to the district court to consider the grant of asylum on the children’s “grave risk” defense under 

Article 13(b). The court noted that when a discretionary grant of asylum is made, that order is binding on the Attorney General of the 

United States and the Secretary of Homeland Security. However, 

grants of asylum do not supersede the enforceability of a court order 

made under the 1980 Convention. As such, the grant of asylum would 

not prevent the trial court from making an order of return.533

The grant of asylum, however, may be relevant to proceedings 

under the Convention as it may relate to defenses set forth in Articles 

13(b) and 20.

534 Sanchez held that there was a “significant overlap” 

between prerequisites for granting asylum and a “grave risk” defense 

under Article 13(b).535 The fact that asylum has been granted does not 

divest courts from independently determining whether an Article 

13(b) defense has been proved. The Fifth Circuit remanded the case to 

the district court to, inter alia, “consider the asylum grants, assessments, and any related evidence not previously considered that relates 

to whether Article 13(b) or 20 applies.”536

 

532. 761 F.3d 495 (5th Cir. 2014) (withdrawing previous opinion at 743 F.3d 

945 (5th Cir. 2014)). See discussion supra § III.G.4.

533. Id. at 510.

534. Id.

535. Id. 

536. Id. at 511.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

130

I. Nonstatutory Defenses: Equitable Defenses

The Convention itself recognizes only those defenses set forth in Articles 12, 13, and 20. However, courts occasionally have considered the 

application of certain equitable principles in Hague return cases: waiver,

537 unclean hands, and fugitive disentitlement.

1. Waiver

The first U.S. case to accept a waiver defense was Journe v. Journe.

538 In 

Journe, the parties lived exclusively in France, where father commenced a divorce and custody action when the parties separated. 

Mother absconded with the children to Puerto Rico, alleging a history 

of spousal abuse. Some months later, father filed his Hague petition in 

Puerto Rico. After moving to Puerto Rico, mother voluntarily appeared

in the French custody action and opposed father’s request for custody 

of the children. Father then dismissed his French divorce action. Objecting to father’s petition for return, mother argued that father’s dismissal of the very action in which custody would be decided indicated 

he intended to have the children returned to relitigate the issue of 

custody—a claim he earlier withdrew. In essence, mother argued that 

father was attempting to get a “second bite at the apple.” The district 

court agreed with the argument and declined to order the children 

returned.539

 

537. Courts should distinguish between a waiver of the right to proceed with a 

Convention case and a waiver of custody rights in connection with an Article 12 defense. Some decisions use the term “waiver” to indicate an abandonment of custody 

rights. E.g., Nicolson v. Pappalardo, 605 F.3d 100, 107 (1st Cir. 2010). While the 

court in Nicolson referenced the holding in Journe v. Journe, 911 F. Supp. 43 (D.P.R. 

1995), the court declined to find a waiver (acquiescence) of father’s custody rights by 

signing of a temporary order in a domestic violence prevention case, providing that 

mother had rights of custody and father had limited visitation rights. Nicolson, 605 

F.3d at 107. 

538. 911 F. Supp. 43 (D.P.R. 1995).

539. The court in Journe found

Dr. Journe’s voluntary dismissal of his action for divorce and custody of the 

children acts as a waiver of his rights under the Convention. Throughout 
III. Defenses to the Petition for Return

131

The waiver argument was rejected in Holder v. Holder (Holder I)

540

where the Ninth Circuit held father did not waive his right to pursue a 

Hague claim because he contemporaneously filed an action for custody in a state court:

This is not to say that a court, reviewing a Hague Convention Petition, could not consider as one of the circumstances that might indicate waiver the act of filing for custody in the jurisdiction to which a 

left-behind parent’s children were removed. We hold that it is insufficient, however, to find an “uncoerced intent to relinquish” Hague 

Convention rights on this basis alone, because, as discussed above, 

filing for custody might simply indicate an intention to mitigate the 

litigation advantage that an abducting parent would obtain by 

wrongfully removing his or her children.541

Similarly, in In re J.J.L.-P,

542 a Texas court found that waiver did not 

apply where father, without knowledge of the existence of the 1980 

Convention, filed an action for custody in Texas state court in response to mother’s refusal to return the child to Mexico. Distinguishing the case from Journe, the court found that father did not knowledgeably waive his rights under the Convention, since his custody 

 

this process, his petition to the French Central Authority was premised on 

the underlying action for divorce then pending before the French courts. His 

remedy under the Convention would put him in the same position he was 

on November 17, 1994. Once again, he would have his choice of a French 

forum to decide the custody issues under French law, as contemplated by 

the Convention. Given these circumstances, his voluntary dismissal of the 

action for divorce can only be characterized as indicative of an intent to relinquish his rights to have the custody issues decided by the courts of France 

(citation omitted). No other reasonable explanation of his conduct is possible. (footnote omitted). Having eschewed this opportunity to resolve the 

custody dispute in his native France, we hold that Dr. Journe has waived his 

right to pursue a claim under the Convention, and therefore dismiss the 

complaint in this case.

Id. at 48. 

540. 305 F.3d 854 (9th Cir. 2002).

541. Id. at 873 n.7 (emphasis in original).

542. 256 S.W.3d 363 (Tex. App. 2008).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

132

action in Texas was filed well before he returned to Mexico and 

learned of his rights under the Hague Convention.543

2. Unclean Hands

No U.S. cases have based a refusal to return a child on the doctrine of

“unclean hands.”

544 In Karpenko v. Leendertz,545 the court declined to 

apply the equitable doctrine, concluding:

[A]pplication of the unclean hands doctrine would undermine the 

Hague Convention’s goal of protecting the well-being of the child, of 

restoring the status quo before the child’s abduction, and of ensuring 

“that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”

Hague Convention, Art. 1(b).546

The court went on to note that child abductions occur in the context 

of strained relations between the parties, and both parties may be 

guilty of acts that compromise the custody rights of the other parent.

The doctrine has been raised in connection with requests for fee 

awards by successful Hague litigants. In Saldivar v. Rodela,

547 the court 

refused to apply the doctrine of “unclean hands” to defeat a successful 

petitioner’s request for attorney fees. The court found that the conduct 

complained of had no relation to the wrongful removal of the child

and would not operate as a bar to a fee award.548

In Delgado-Ramirez v. Lopez,

549 the court found that both petitioner and respondent had “unclean hands.” The court questioned wheth-

 

543. Id. at 371.

544. Cf., Von Wussow-Rowan v. Rowan, No. CIV.A.98-3641, 1998 WL 461843 

(E.D. Pa. 1998) (where the court stated in dicta that “the ‘clean hands’ doctrine militates against granting the present application,” where the only conduct involved by 

the petitioner (mother) was the abduction of the child to Switzerland, after which the 

father reabducted the child back to the United States). 

545. 619 F.3d 259 (3d Cir. 2010).

546. Id. at 265.

547. 894 F. Supp. 2d 916 (W.D. Tex. 2012). 

548. Id. at 932–33.

549. 2011 WL 692213 (W.D. Tex. 2011) (unreported disposition). 
III. Defenses to the Petition for Return

133

er the abduction would have occurred but for the petitioner’s conduct 

in refusing court-ordered visitation for over ten months. Accordingly, 

the court denied the successful petitioner an award of fees and costs 

based on her conduct in deliberately thwarting the father’s visitation 

rights before the abduction took place.550

3. Fugitive Disentitlement

The doctrine of fugitive disentitlement has been accepted in a few 

Hague cases, but has not been applied in a uniform manner, which 

appears to be the result of different factual contexts rather than differences in doctrinal analysis. 

The first appellate case to apply the doctrine of fugitive disentitlement was Prevot v. Prevot.

551 In Prevot, father was on probation for a 

state court felony. Together with his wife and family, he left the United States, eventually arriving in France. Despite father’s attempts to 

prevent mother and the children from leaving France, she succeeded 

in returning to the United States two years later. Father brought an 

action in federal court for the return of the children to France. The 

Sixth Circuit reversed the district court’s refusal to apply the fugitive 

disentitlement doctrine and held:

The fugitive disentitlement doctrine limits access to courts in the 

United States by a fugitive who has fled a criminal conviction in a 

court in the United States. The doctrine is long-established in the 

federal and state courts, trial and appellate. The power of an American court to disentitle a fugitive from access to its power and authority is an equitable one (citations omitted).

• • •

We find nothing in the Convention or the Act that purports to strip 

an American court of the powers inherent to it as a court. Because of 

the unique facts, the core of this case is not custody, or competing 

interests of parents, but fundamental concerns of how the United 

States operates its courts and how those courts may react to abuses 

 

550. Id., slip opinion at 8.

551. 59 F.3d 556 (6th Cir 1995).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

134

of American criminal process, to defiance of judicially imposed obligations owed to victims of crime, and to flights from financial responsibilities to our government.

552

In Walsh v. Walsh,

553 the First Circuit declined to impose fugitive 

disentitlement upon a father who absconded felony probation from a 

Massachusetts state court conviction for assaultive and threatening 

conduct. The First Circuit analyzed the Supreme Court’s consideration 

of fugitive disentitlement in Degen v. United States554 and found that 

the case for disentitlement was too weak to bar father’s proceedings:

[A]pplying the fugitive disentitlement doctrine would impose too severe a sanction in a case involving parental rights. Parenthood is one 

of the greatest joys and privileges of life, and, under the Constitution, parents have a fundamental interest in their relationships with 

their children. See generally Troxel v. Granville, 530 U.S. 57, ____, 

120 S. Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) (plurality opinion) 

(“The liberty interest . . . of parents in the care, custody, and control 

of their children . . . is perhaps the oldest of the fundamental liberty 

interests recognized by this Court.”). To bar a parent who has lost a 

child from even arguing that the child was wrongfully removed to 

another country is too harsh. It is too harsh particularly in the absence of any showing that the fugitive status has impaired the rights 

of the other parent.555

In March v. Levine,

556 the Sixth Circuit declined to extend its fugitive disentitlement analysis in Prevot to a conviction for civil contempt. The children in March were habitual residents of Mexico. Maternal grandparents wrongfully retained the children in the United 

States after a visit. They contested father’s petition for return, arguing 

that the children’s mother, who had been missing for four years, was 

presumed dead, and they secured a default judgment against father for 

 

552. Id. at 562, 566. Prevot was decided prior to Degen v. United States, 517 U.S. 

820 (1996), which clarified the use of the doctrine. 

553. 221 F.3d 204 (1st Cir. 2000).

554. 517 U.S. 820 (1996).

555. Walsh, 221 F.3d at 216. 

556. 249 F.3d 462 (6th Cir. 2001). 
III. Defenses to the Petition for Return

135

the wrongful death of the children’s mother. The default judgment was 

based on a discovery sanction holding father in civil contempt. The 

wrongful death action was never heard on the merits. Refusing to apply the fugitive disentitlement doctrine to civil contempt, the court 

cautioned:

It is worth re-emphasizing the Degen Court’s guidance to courts in 

deciding whether to disentitle a claimant: there must be “restraint in 

resorting to inherent power” and its use must “be a reasonable response to the problems and needs that provoke it.” Degen, 517 U.S. 

at 823–24, 116 S. Ct. 1777.

557

In another post-Degen case, the Eleventh Circuit applied the fugitive disentitlement doctrine to bar a parent from appealing the district 

court’s grant of a return petition. In Pesin v. Rodriguez,

558 father’s 

Hague Convention petition was granted by the district court, and 

mother was ordered to return the children to Venezuela within ten

days.559 She returned the children to Venezuela within the ten-day

limit, but paid only lip service to the court’s order by removing herself 

and the children the very next day. The district court issued an order 

to show cause regarding contempt and set the matter for hearing. The 

mother failed to attend that hearing. The court found her in contempt 

and indicated that the contempt could be purged by presenting the 

children before the district court or before a Venezuelan court; mother 

did neither. While still in contempt, mother appealed the order of 

return. Noting that the doctrine had been previously used to bar proceedings by those held in civil contempt,

560 the court held that application of the doctrine was appropriate and dismissed mother’s appeal.561 Most courts have held that the doctrine of fugitive disentitle-

 

557. Id. at 470.

558. 244 F.3d 1250 (11th Cir. 2001).

559. See Pesin v. Rodriguez, 77 F. Supp. 2d 1277 (S.D. Fla. 1999).

560. See, e.g., United States v. Barnette, 129 F.3d 1179 (11th Cir. 1997).

561. Pesin v. Rodriguez, 244 F.3d 1250, 1253 (11th Cir. 2001). See also In re

Leslie, 377 F. Supp. 2d 1232 (S.D. Fla. 2005) (applying fugitive disentitlement to bar 

mother’s defenses, based on criminal contempt of a Belize court in connection with 

the custody action there).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

136

ment should be narrowly construed and applied under only the most 

compelling circumstances. 

All fifty states and the federal government have penal statutes that 

criminalize parental abduction. The International Parental Kidnapping 

Crime Act (IPKCA) makes parental abduction a federal crime.

562 IPKCA was intended to complement the Convention, and its proceedings were meant to make the return of a child the first priority in the 

legal issues surrounding the abduction of a child.563 This legislation 

responded to the concern that prosecuting authorities may be requested to pursue criminal charges against a parent who takes custody of 

his or her child under legally questionable circumstances and as a 

result becomes unable to pursue a potentially legitimate Hague 

claim.

564 Although criminal proceedings exist as a possibility in paren-

 

562. 18 U.S.C. § 1204 (1988). The IPKCA was partly motivated by a void in the 

law that existed because there was no remedy for international parental abductions 

involving a non-Hague country. See, e.g., Mezo v. Elmergawi, 855 F. Supp. 59 

(E.D.N.Y. 1994) (dismissing complaint against the Secretary of State compelling the 

U.S. government to pursue procedures under the Convention where children were 

abducted to Egypt and then Libya, both non-Hague signatories).

563. William J. Clinton, President’s Signing Statement for H.R. 3378, 1993 

U.S.C.C.A.N. 2424-1, 1993 WL 591942 (1993):

Today I have signed into law H.R. 3378, the “International Parental Kidnapping Crime 

Act of 1993.” This legislation underscores the seriousness with which the United States 

regards international child abduction. It makes this crime, for the first time, a Federal 

felony offense.

H.R. 3378 recognizes that the international community has created a mechanism to 

promote the resolution of international parental kidnapping by civil means. This mechanism is the Hague Convention on the Civil Aspects of International Child Abduction. 

H.R. 3378 reflects the Congress’ awareness that the Hague Convention has resulted in 

the return of many children and the Congress’ desire to ensure that the creation of a 

Federal child abduction felony offense does not and should not interfere with the Convention’s continued successful operation.

This Act expresses the sense of the Congress that proceedings under the Hague Convention, where available, should be the “option of first choice” for the left-behind parent. 

H.R. 3378 should be read and used in a manner consistent with the Congress’ strong expressed preference for resolving these difficult cases, if at all possible, through civil remedies.

564. See, e.g., Brooke v. Willis, 907 F. Supp. 57 (S.D.N.Y. 1995) (issuing state 

arrest warrants after mother fled jurisdiction violates state court order); Crall-Shaffer 
III. Defenses to the Petition for Return

137

tal kidnapping cases, it is often the case that a civil action under the 

Hague Convention is the more appropriate first option.565

J. Undertakings

An undertaking may be defined as an official promise, agreement, or 

concession by a party to perform, or refrain from performing, a particular task. For example, a father who had petitioned for the return of 

his abducted child promises or “undertakes” to not petition the court 

in the child’s habitual residence for a modification of custody until 

sixty days after the child has returned to the habitual residence if the 

court grants the return of the child.

Undertakings include agreements to a restraining order or protective order, assumption of the cost of transportation back to the habitual residence, or providing financial support for a period of time. A 

party seeking return of children may offer to give certain undertakings

in connection with an order of return of the children on the theory 

that the court would be more amenable to that party’s petition for 

return of the children. Undertakings are most frequently utilized in 

common-law countries. 

There is disagreement among U.S. courts as to when it is appropriate to accept undertakings. One line of cases supports the acceptance 

of undertakings without an established defense, primarily on the basis 

that undertakings may ensure the child is safely returned to the habitual residence. In Krefter v. Wills,

566 the court held that a court has 

authority to accept undertakings as part of an order returning a child, 

even though an Article 13(b) defense was not established. In reaching 

 

v. Shaffer, 663 N.E.2d 1346, 105 Ohio App. 3d 369 (Ct. App. 1995) (finding mother 

in contempt of court, warrant issued for her arrest in custody proceeding).

565. See The American Society of International Law, Report of the Second Special 

Commission Meeting to Review the Operation of the Hague Convention, 33 I.L.M. 225, 

249, 1994 WL 327559 (1994).

566. 623 F. Supp. 2d 125, 137–38 (D. Mass. 2009).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

138

this conclusion, the court cited to Feder v. Evans-Feder,

567 which ruled 

that the lower court on remand should consider undertakings if the 

Article 13(b) defense is not sustained. In Kufner v. Kufner,

568 the district court ordered undertakings even though mother’s Article 13(b) 

defense was denied. On appeal, the First Circuit held that awarding 

undertakings in this situation was appropriate.569 The court noted that 

a district court’s acceptance of undertakings was reversed only when 

an Article 13(b) defense had been established and the undertakings 

were insufficient to mitigate the harm.570

The Sixth Circuit has taken a different approach, ruling that undertakings are only appropriate where an Article 13(b) defense exists:

Absent a grave risk finding, the Convention leaves no room for a 

court to establish, as the district court did in this case, ameliorative 

undertakings designed to protect children against the risk of harm 

upon their return. See Hague Convention, Article 13b (noting that a 

court is “not bound to order the return of the child” only if the exception applies). Once the district court determines that the grave 

 

567. 63 F.3d 217, 226 (3d Cir. 1995) (instructing district court on remand that if 

the Article 13(b) defense fails, that “an unqualified return order would be detrimental” to the child, and that “the court should investigate the adequacy of undertakings . . . to ensure that [the child] does not suffer short term harm”).

568. 480 F. Supp. 2d 491 (D.R.I. 2007).

569. See In re A.L.C., 16 F. Supp. 3d 1075 (C.D. Cal. 2014), vacated in part, affirmed in part, In re A.L.C., ___ F. App’x ___, 20115 WL 1742347 (9th Cir. 2015), 

where a district court found that a father’s agreement to pay for separate housing for 

the mother and children was sufficient to alleviate any risk of physical or psychological harm pending a custody determination in Sweden. Although the court found that 

mother’s grave risk had not been proved, the father’s promises were reflected in the 

return order. Id. at 1094.

570. Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008) (citing to Danaipour v. 

McLarey (Danaipour I), 286 F.3d 1 (1st Cir. 2002)). Danaipour I raises the issue that 

undertakings accepted with the intention that a foreign court will enforce them raise 

issues of comity in that an expectation of enforcement may violate the foreign nation’s 

right to determine for itself what is appropriate. Danaipour I, 286 F.3d at 22–25. See 

also Krefter v. Wills, 623 F. Supp. 2d 125, 138 (D. Mass. 2009) (noting that undertakings that do not require action or enforcement by foreign courts will not offend principles of comity).
III. Defenses to the Petition for Return

139

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.571

However, undertakings are essentially unenforceable if they will be 

performed in the country of habitual residence or after the child has 

left U.S. soil. For example, if a parent promises, as a condition of return, not to attempt to modify custody in the habitual residence for 

sixty days, there is a chance that upon the child’s return the parent 

will nevertheless immediately institute proceedings to modify child 

custody, contravening the undertakings. The other parent may petition the court in the habitual residence and offer proof of the undertaking, but that court has no obligation to honor the promise made to 

another court, especially a foreign one. In addition, a U.S. court will 

lose jurisdiction over the matter, as the child would be subject to the 

jurisdiction of the habitual residence. For this reason, mirror-image 

orders, discussed infra at page 150, are sometimes used to enforce 

arrangements surrounding the return of the child.572

A court might have greater control over the performance of an 

undertaking if it is possible to perform the undertaking before the 

 

571. Simcox v. Simcox, 511 F.3d 594, 608 (6th Cir. 2007). Note that the court 

did not consider as inappropriate orders relating to logistical matters that usually 

occur in connection with an order of return: “We do not mean to suggest, however, 

that a court is powerless to deal with ordinary logistical considerations that frequently 

accompany the return of any child, such as deciding which parent will pay for the child’s 

return airfare. Although these have sometimes been referred to as ‘undertakings,’ see, 

e.g., Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347, 1366 (M.D. Fla. 2002), we 

are speaking specifically of those conditions on return designed to ameliorate the risk of 

harm in the context of abusive situations.” Simcox, 511 F.3d at 608.

Simcox also addressed the issue of undertakings in domestic violence cases by 

noting that undertakings would be inappropriate in situations like that found in 

Walsh. The court stated that “Where a grave risk of harm has been established, ordering return with feckless undertakings is worse than not ordering it at all.” Id.

572. A “mirror-image” order is one that contains identical terms, and is entered in 

both the courts of the habitual residence and the court making a return order. Such an 

order allows judges in both jurisdictions to have the power to enforce the conditions 

of the child’s return. 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

140

order of return becomes effective. If a parent promises to vacate a 

“chasing order” that shifted full custody of the child to that parent 

after the abduction, a court might order the return of the child conditioned upon proof that the “chasing order” has actually been vacated. 

Similarly, promises for the payment of money for housing, support, 

costs, or attorney fees are frequently given as undertakings. 

It may be possible to make such payments available to the parent 

returning the child before the court sets a date for the actual return of 

the child. Such an approach seems reasonable, especially where a defense has been proven and the undertaking is a material part of the 

court’s decision to return the child because the undertakings will 

overcome the risk of harm to the child upon return. However, if undertakings are given when no defense has been proven, a court may 

choose to consider whether the performance of the undertaking 

should be elevated to a quid pro quo for the return of the child.

Courts should refrain from imposing undertakings that are unrealistic or too onerous.573 The U.S. Department of State has cautioned 

against the use of undertakings, noting that imposing excessive conditions on a child’s return may run counter to convention purposes owing to issues of enforceability, delay in return, and unreasonable hardship on the parties.574 One State Department official has commented 

that

[U]ndertakings should be limited in scope and further the Convention's goal of ensuring the prompt return of the child to the jurisdiction of habitual residence, so that the jurisdiction can resolve the 

custody dispute. Undertakings that do more than this would appear 

 

573. See Baran v. Beaty, 526 F.3d 1340, 1350-1351 (11th Cir. 2008), discussing 

the reluctance of the First, Sixth, and Seventh Circuits to impose undertakings that are 

unenforceable, especially when an abused child is ordered returned on the assumption 

that undertakings will be honored.

574. Kathleen Ruckman, Deputy Director, Office of Children’s Issues, U.S. Department of State, Analysis of U.S. Practice in Parental Child Abduction Cases, “Undertakings as Convention Practice: The U.S. Perspective,” available at 

http://www.state.gov/s/l/2005/87187.htm.
III. Defenses to the Petition for Return

141

questionable under the Convention, particularly when they address 

in great detail issues of custody, visitation, and maintenance.575

For example, in Maurizio R. v. L.C.,

576 a California state court found 

that a psychologically damaged child would suffer a “grave risk” if the 

child was removed from his mother and returned to Italy. The trial 

court concluded that the child had PTSD, and despite his youth (six

years old), the evidence established the possibility that the child might 

take his own life. In ordering return of the child, the trial assumed that 

mother would accompany the child on his return to Italy and imposed 

certain additional conditions: (1) father would secure the dismissal of 

the criminal complaint pending in Italy against mother for child abduction; (2) pending further custody proceedings in Italy, father 

would obtain a protective order in Italy protecting mother; (3) father 

would secure an order from an Italian court awarding mother sole 

legal and physical custody of the child with monitored visits to father;

and (4) that father obtain an order from an Italian court (or an enforceable undertaking) obliging father to provide housing and living 

expenses for mother in Italy, and the expenses of weekly therapy for 

the child. On appeal, the appellate court sustained the finding of grave 

risk, but set aside the conditions imposed by the trial court. First, because the condition of the child’s return was contingent on mother’s 

cooperation, the mother could frustrate the order by simply refusing 

to accompany the child to Italy.577 Second, a dismissal of criminal proceedings in Italy was beyond father’s control. The trial court exceeded 

its authority by requiring father to obtain assurance from the Italian 

government that a prosecution would not occur. The case was re-

 

575. Letter from Catherine W. Brown, Assistant Legal Adviser for Consular Affairs, United States Dep’t of State, to Michael Nicholls, Lord Chancellor’s Dep’t, Child 

Abduction Unit, United Kingdom (Aug. 10, 1995), cited in Danaipour v. McLarey, 286 

F.3d 1, 22 (1st Cir. 2002).

576. 201 Cal. App. 4th 616 (2011).

577. Citing to a provision similarly found defective by Simcox v. Simcox, 511 F.3d 

594 (6th Cir. 2007), and Fabri v. Pritikin-Fabri, 221 F. Supp. 2d 859 (N.D. Ill. 2001).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

142

manded to the trial court to fashion new orders relating to the child’s 

return.578

Undertakings typically fall into categories designed to address 

certain perceived hardships that may befall parents or children compelled to return to the habitual residence. These include, but are not 

limited to: (1) promises relating to the entry of protective orders in the 

habitual residence in connection with domestic violence or child 

abuse;579 (2) promises designed to minimize emotional trauma to a 

child threatened with separation from a primary caretaker;580

(3) promises designed to provide temporary financial assistance to a 

parent required to return in the company of a child or children;581

(4) promises to take measures to dismiss criminal prosecution for 

abduction or to refrain from initiating criminal proceedings;

582 and 

(5) promises not to seek or enforce orders that require a transfer of the 

 

578. Simcox, 511 F.3d at 644.

579. See, e.g., Blondin v. Dubois (Blondin I), 189 F.3d 240, 248 (2d Cir. 1999); 

Turner v. Frowein, 752 A.2d 955, 974, 253 Conn. 312, 345 (2000) (following Blondin); but see Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir. 2005) (questioning the appropriateness of undertakings in domestic violence and abuse cases); 

Danaipour I, 286 F.3d at 25 (“[U]ndertakings are most effective when the goal is to 

preserve the status quo of the parties prior to the wrongful removal. This, of course, is 

not the goal in cases where there is evidence that the status quo was abusive.”); Baran 

v. Beaty, 526 F.3d 1340 (11th Cir. 2008).

580. But see Simcox, 511 F.3d 594 (holding that undertaking that children were to 

be returned in the custody of their mother until Mexican court could hear issue of 

protective order was an invalid order compelling the mother to return to Mexico).

581. See, e.g., Krefter, 623 F. Supp. 3d at 138 (finding airline tickets, payment of 

support of housing for three months in advance sufficient); Tsarbopoulos v. Tsarbopoulos, 176 F. Supp. 2d 1045, 1061 (E.D. Wash. 2001) (considering lack of offer of 

undertakings in upholding Article 13(b) defense); accord Wilchynski v. Wilchynski, 

No. 3:10-CV-63-FKB, 2010 WL 1068070 (S.D. Miss. 2010) (unreported disposition).

582. See, e.g., Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008) (ordering father to 

obtain dismissal of criminal charges); Ciotola v. Fiocca, 684 N.E.2d 763, 86 Ohio 

Misc. 2d 24 (1997); Jaet v. Siso, No. 08-81232-CIV, 2009 WL 32570 (S.D. Fla. 2009) 

(unreported disposition) (dismissal of pending criminal action in Mexico).
III. Defenses to the Petition for Return

143

child from the primary caretaker until there has been a final determination of the child custody case on the merits.583

K. Exhausting All Possible Alternatives to Refusing 

Return—Circuit Split

Once a court determines that a grave-risk defense has been established, the question arises whether the court should examine and consider all possible alternatives to refusing an order for the return of the 

child. There appears to be a division among the circuits concerning 

this question. The Second, Third, and Seventh Circuits point to a twoprong analysis for determining whether to grant an order for return: 

(1) Has the Article 13(b) defense been proven? and (2) Do measures 

exist to ameliorate the risk?

The First, Sixth, and Eleventh Circuits have taken the position 

that once an Article 13(b) defense has been proven, a court may, but is 

not required to, examine whether there are any alternatives or 

measures that will permit the court to order return of the child. Under 

this latter approach, once a defense has been established, a court may 

simply deny the child’s return without inquiring into alternatives that

might promote a safe return.

In Blondin v. Dubois (Blondin I),

584 the court examined the issue of 

how far judges should go in exploring such alternatives. After the initial trial, the district court found the Article 13(b) defense had been 

established and denied father’s return petition. The Second Circuit 

remanded the case to the district court with instructions to “take into 

account any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that 

 

583. See, e.g., Kufner, 519 F.3d 33. Where a left-behind parent secures a “chasing 

order” granting that parent full custody of the child, such an order may result in a 

shift of custody from the primary caretaker. As a result, some undertakings have been 

negotiated to require vacating the chasing order, thus allowing the abducting parent to 

return to the habitual residence without fear of losing custody prior to a hearing on 

the merits. 

584. 189 F.3d 240 (2d Cir. 1999).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

144

can reduce whatever risk might otherwise be associated with a child’s 

repatriation.”

585 On remand, the district court again refused to order 

return, finding that no measures could be taken to ameliorate the 

grave risk to the children posed by a return to France.

586 Father again 

appealed, and the Second Circuit affirmed the denial of father’s petition.587 The Blondin approach was followed by the Third Circuit in In 

re Application of Adan588 and the Seventh Circuit in Van De Sande v. 

Van De Sande,

589 and by at least one appellate division in California.590

In Turner v. Frowein,

591 the Supreme Court of Connecticut followed the procedure established by Blondin, that before a court may 

deny a petition for return on 13(b) grounds, it must undertake “a 

complete analysis of protective arrangements and legal safeguards that 

 

585. Id. at 248.

586. Blondin v. Dubois, 78 F. Supp. 2d 283, 294 (S.D.N.Y. 2000) (“I again find, 

by clear and convincing evidence, that return of [the children] to France, under any 

arrangement, would present a ‘grave risk’ . . . for three reasons: first, removal of the 

children from their presently secure environment would interfere with their recovery 

from the trauma they suffered in France; second, returning them to France, where 

they would encounter the uncertainties and pressures of custody proceedings, would 

cause them psychological harm; and third, [one child] objects to being returned to 

France.”).

587. Blondin v. Dubois (Blondin II), 238 F.3d 153 (2d Cir. 2001).

588. 437 F.3d 381 (3d Cir. 2006); accord Foster v. Foster, 654 F. Supp. 2d 348, 

352 (W.D. Pa. 2009) (“[I]f a respondent is able to produce clear and convincing evidence of a grave risk of harm to the child, she must then demonstrate that ‘the 

court[s] in the country of habitual residence, for whatever reason, may be incapable or 

unwilling to give the child adequate protection’.”) (citing Adan, 437 F.3d at 395 and 

Blondin II, 238 F.3d at 162). 

589. 431 F.3d 567 (7th Cir. 2005). In Van De Sande, father was willing to have 

the court consider conditions on an order of return. “This concession alone requires 

that we remand the case to the district court for further consideration, for ‘in order to 

ameliorate any short-term harm to the child, courts in the appropriate circumstances 

have made return contingent upon “undertakings” from the petitioning parent’.” Id. at 

571 (citing to Feder v. Evans-Feder, 63 F.3d 217, 226 (3d Cir. 1995); Gaudin v. Remis, 415 F.3d 1028, 1035–36 (9th Cir. 2005); and Blondin I, 189 F.3d at 248–49).

590. Maurizio R. v. L.C., 201 Cal. App. 4th 616, 638 (2011).

591. 253 Conn. 312 (2000).
III. Defenses to the Petition for Return

145

might allow the safe repatriation of the child. . . .”592 The court followed its previous precedent in looking to decisions of the Second 

Circuit for persuasive authority. 

It would be a bizarre result if this court [required the trial court to 

make particular findings under article 13(b)] when in another 

courthouse, a few blocks away, the federal court, being bound by the 

Second Circuit rule, required [alternative findings]. . . . We do not 

believe that when Congress enacted the concurrent jurisdiction provisions of [ICARA] that it intended to create such a disparate treatment of plaintiffs depending on their choice of a federal or state forum.593

The Supreme Court of Connecticut affirmed the trial court’s finding that the child had been sexually abused by his father. Relying on 

Blondin, the court remanded the case to the trial court for a review of 

placement options and available enforceable remedies that would enable the safe return of the child. The factors to be considered included 

(1) whether the child could be returned under the supervision of the 

non-offending parent or other third party, and (2) whether the jurisdiction receiving the child is capable of enforcing the conditions of 

return.594

The First Circuit has noted that in some cases, measures and legal 

safeguards that might be available in the habitual residence will have 

little or no effect in ameliorating the grave risk to the child.595 In 

Danaipour II,

596 the First Circuit clarified the burden of courts to consider ameliorative measures: 

 

592. Id. at 339.

593. Id. (citing Schnabel v. Tyler, 646 A.2d 152, 743 (Conn. 1994) (at note 4)).

594. The court noted that in following the Blondin approach there was at least a 

colorable argument that the task of determining whether the laws of the habitual 

residence are capable of enforcing the conditions of return is unsupported by the text 

of the Convention and by the Pérez-Vera Report at ¶ 36, limiting the relevance of the 

law of other nations to the question whether the child’s removal was wrongful.

595. See, e.g., Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000), cert. denied, 531 U.S. 

1159 (2001).

596. 386 F.3d 289 (1st Cir. 2004).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

146

[Father] cites to our holding in Danaipour I stating the standard for 

qualifying for the Article 13(b) exception, for the proposition that a 

district court cannot properly find that an Article 13(b) exception 

exists unless it examines the remedies available in the country of habitual residence.[Fn5]

[Fn5] Danaipour 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.

Our holding in Danaipour I does not stand for the proposition 

that every Article 13(b) analysis requires two such distinct prongs. In 

fact, Danaipour I specifically identified the limited role undertakings 

may play in certain situations. See Danaipour I, 286 F.3d at 21. 

Danaipour I also noted the great weight afforded to the State Department policy concerning undertakings in a situation involving child 

abuse:

“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. Id. at 25 (quoting 

Department of State Comment on Undertakings).”

The district court properly followed Danaipour I’s mandate; its finding of the existence of sexual abuse and that the return of the children to Sweden would result in a grave risk of psychological harm 

was adequate to satisfy the Article 13(b) exception, and no further 

inquiry into remedies available to the Swedish courts was required.597

Quoting the First Circuit with approval, the Sixth Circuit held: 

“[U]ndertakings would be particularly inappropriate, for example, in 

 

597. Id. at 303–04.
III. Defenses to the Petition for Return

147

cases where the petitioner has a history of ignoring court orders. See 

Walsh, 221 F.3d at 220.”

598 The circuit court found that the undertakings ordered by the district court were “unworkable”

599 and remanded 

the case to the district court to determine whether undertakings or 

other measures would be sufficient to protect the children.600

Similarly, in Baran v. Beaty,

601 the Eleventh Circuit determined 

that a court could consider whether authorities in a child’s habitual 

residence were capable of ameliorating the risk of harm upon return.

However, the court clearly indicated that a party resisting return had 

no obligation to prove that the habitual residence is unable or unwilling to take measures for such protection.602

 

598. Simcox v. Simcox, 511 F.3d 594, 608 (6th Cir. 2007).

599. The court was particularly concerned about the district court’s order that the 

children be returned in the company of their mother. Under the Convention, courts 

have the power to order children returned to their habitual residence, but they do not 

have the power to order an unwilling adult to accompany those children. See id. at 

610.

600. Id. at 608. On remand, the district court found that there were no undertakings that would adequately protect the children, and the petition for return was denied. See Simcox v. Simcox, No. 1:07CV96, 2008 WL 2924094 (N.D. Ohio 2008).

601. 526 F.3d 1340 (11th Cir. 2008).

602. Id. at 1348.

149

IV. Issuing Orders of Return

When an order for the return of a child603 is made, courts should focus 

on enforcement, specificity, and the safety of the child.604 In most circumstances, once a child crosses the U.S. border, a court loses jurisdiction to enforce the provision of any orders made regarding the 

manner or conditions of the child’s return. For this reason, return 

orders should clearly state the provisions that must be followed while 

the child still remains on U.S. soil.

Occasionally, a child is removed from the state making the return 

order and is later found in another state. The initial order of return is 

entitled to “full faith and credit”

605 and is enforceable in state courts 

“as if it were a child-custody determination.”

606

 

603. The Hague Convention does not empower courts to order a parent to relocate to another country. In Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013), the 

trial court ordered both the child and the mother to return to Ireland. Although the 

order of return to Ireland was reversed on other grounds, the court noted that “We do 

not know why the court thought it had authority to order Mary, a free adult citizen, to 

go to Ireland. As far as we can determine, neither the Hague Convention nor its implementing legislation, the International Child Abduction Remedies Act, (citations 

omitted) authorizes the court to order the relocation of parents.” Id. at 735 n.1.

604. See Hague Conference on Private International Law, Special Commission to 

Review the Operation of the Hague Convention, Conclusions and Recommendations 

on the Fifth Meeting of the Special Commission to Review the Operation of the Hague 

Convention of 25 October 1980, § 1.8.2 (2006) (“When considering measures to 

protect a child who is the subject of a return order (and where appropriate an accompanying parent), a court should have regard to the enforceability of those measures 

within the country to which the child is to be returned. In this context, attention is 

drawn to the value of safe-return orders (including ‘mirror’ orders) made in that country before the child’s return, as well as to the provisions of the 1996 Convention.”). 

605. 22 U.S.C. § 9003(g) (1988): “Full faith and credit shall be accorded by the 

courts of the States and the courts of the United States to the judgment of any other 

such court ordering or denying the return of a child, pursuant to the Convention, in 

an action brought under this chapter.”

606. Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

§§ 301–302 (1997). 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

150

A. Specificity: Time, Manner, and Date of Return

Orders should clearly state the mandated time, place, and details of 

the child’s return.607 In order to incorporate detailed information 

about the transportation of the child back to the habitual residence, it 

may be necessary to schedule an additional brief hearing after ordering 

the child’s return to finalize transportation arrangements and incorporate them into the order of return. The order may include any provisions that must be enforced by the U.S. Marshals Service or by any 

other relevant law enforcement agency.608

B. Mirror-Image Orders

Mirror-image orders may be more effective than undertakings in certain situations. These orders are entered in both the courts of the 

states hearing the petition and the courts in the child’s habitual residence. The orders are “mirror images” of one another, containing the 

same terms with differences only in syntax. They are enforceable in 

both jurisdictions.609 Mirror-image orders give some assurance that the 

 

607. See, e.g., Freier v. Freier, 969 F. Supp. 436 (E.D. Mich. 1996) (ordering the 

dates and flight numbers of the child’s return); Moreno v. Martin, No. 08-22432-CIV, 

2008 WL 4716958 (S.D. Fla. 2008) (unreported disposition) (ordering U.S. Marshals 

Service to accompany petitioner to airport and notifying all other federal, state, and 

local law enforcement officers that petitioner has the right to remove the child from 

the United States).

608. See Cuellar v. Joyce (Cuellar I), 596 F.3d 505, 512 (9th Cir. 2010); Sullivan 

v. Sullivan, No. CV-09-545-S-BLW, 2010 WL 227924 (D. Idaho 2010) (unreported 

disposition) (“IT IS FURTHER ORDERED that the United States Marshals Service is 

directed to assist in the execution of this Order as necessary, and the United States 

Marshals Service may enlist the assistance of other law enforcement authorities, including the local police, as necessary to aid in any aspect of securing the safe return of 

C.S. to New Zealand.”).

609. See, e.g., Grammes v. Grammes, No. Civ.A. 02-7664, 2003 WL 22518715 

(E.D. Pa. 2003) (unreported disposition) (entering mirror orders in Pennsylvania and 

Canada); Danaipour v. McLarey (Danaipour I), 286 F.3d 1, 11 (1st Cir. 2002) (noting 

that the district court ordered return under twelve conditions, including a mirrorimage order entered in Sweden).
IV. Issuing Orders of Return

151

court of the habitual residence will enforce the order in the event that 

the petitioning parent defaults on obligations contained within the 

order.

However, there are some limitations to mirror-image orders. First, 

the time necessary to enter orders in both jurisdictions may cause 

undue delay. Second, if there is no existing custody case pending in 

the court of the habitual residence, there may be technical difficulties 

with creating a new case and requesting an order to be entered. Third, 

it is possible that the domestic law of the habitual residence either 

does not recognize or simply does not understand the concept of a 

mirror-image order, making it difficult to obtain such an order. In 

some circumstances, the courts of the habitual residence are not permitted to order the kind of relief that the mirror order requires. This is 

an issue that the parties’ counsel should clarify, but judges should be 

aware of the procedural complexities that may result from dealing 

with the courts of another nation.

C. Safe Harbor Orders

Safe harbor orders are designed to avoid severe and immediate physical or psychological harm to the child as a result of the conditions of 

return. The orders may provide, inter alia, for delivery of the child by a 

parent or relative back to the habitual residence, for the involvement 

of a child welfare agency in the placement or monitoring of the child, 

or for the involvement of the habitual residence Central Authority in 

the physical return of the child.

First, a U.S. court that is prepared to order a child’s return may 

direct counsel for the parent requesting return to obtain a safe harbor 

order from the courts of the habitual residence. The order of return 

may be conditioned upon obtaining such an order. Secondly, where 

the parties are in agreement that a safe harbor order should issue, the 

U.S. court may wish to engage in direct judicial communication with 

the appropriate court in the habitual residence and address any matters related to the order. This type of order remains in effect until the 

courts of the child’s habitual residence assume jurisdiction over the 

child’s welfare. A safe harbor order issued by a court in the child’s 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

152

habitual residence is more likely to ensure the parties’ compliance 

than one issued only by the court hearing the petition for return.610

D. Returns to Countries Other Than Habitual Residence

Both the Pérez-Vera Report and the Text & Legal Analysis interpret the 

Convention to mean that the child need not be returned to his or her 

habitual residence if the petitioning parent no longer lives in that location.611 If this is the case, the child must be returned to the successful 

petitioning parent, regardless of his or her place of residence.612

E. Mootness and Stays

1. Mootness

If an order directing the return of a child to a foreign country is not 

stayed, the question arises whether the case becomes moot when the 

child is removed from the United States in conformity with the return 

order. Resolving a split among the courts of appeal on this point, the 

Supreme Court, in Chafin v. Chafin,

613 held that the removal of a child 

from the United States pursuant to an order of return does not cause 

 

610. Danaipour describes a “safe harbor” order as one that is entered in the courts 

of the habitual residence before the entry of an order of return from a U.S. court. This 

“approach would avoid the unseemliness of a U.S. court issuing orders for a foreign 

court to enforce, and the foreign court’s possible noncompliance . . . .” Danaipour I, 

286 F.3d at 22. 

611. “The Convention does not technically require that the child be returned to 

his or her State of habitual residence, although in the classic abduction case this will 

occur. If the petitioner has moved from the child’s State of habitual residence the child 

will be returned to the petitioner, not the State of habitual residence.” Text & Legal 

Analysis, 51 Fed. Reg. 10,494, 10,511 (Mar. 26, 1986).

612. See, e.g., Pérez-Vera Report, supra note 19, ¶ 110. See also Pielage v. 

McConnell, 516 F.3d 1282 (11th Cir. 2008); Von Kennel Gaudin v. Remis, 282 F.3d 

1178 (9th Cir. 2002).

613. 133 S. Ct. 1017 (2013).
IV. Issuing Orders of Return

153

the case to become moot where the parties maintained a “concrete 

interest,” however small, in the outcome of the case.614

In Chafin, mother was a citizen of the United Kingdom, and father 

was a U.S. serviceman. A child was born to the parties in Germany, 

where father was stationed. When father was deployed to Afghanistan

in 2007, mother took the child to Scotland. Father was later transferred to Alabama. The child and her mother joined him there in 2010.

Father subsequently filed for divorce and for custody of the child in 

Alabama. Mother had overstayed her visa, and was deported back to 

the United Kingdom in February 2011, leaving the child in father’s 

custody in Alabama. In May 2011, mother filed a petition for the return of the child in U.S. District Court for the Northern District of 

Alabama. After a trial, the district court granted mother’s petition and 

directed the child’s return with mother to Scotland. Father’s request 

for a stay of the order was denied and mother promptly returned to 

Scotland with the child.

Father appealed the district court’s return order to the Eleventh 

Circuit. Citing to the holding in Bekier v. Bekier,

615 the Eleventh Circuit court dismissed father’s appeal as moot because the child had 

already been return to her habitual residence.

The Supreme Court reversed. The Court pointed out that a case 

“becomes moot only when it is impossible for a court to grant any 

effectual relief whatever to the prevailing party.”616 The Court found 

that the parties’ custody case was still viable since both parents continued to advocate their respective positions regarding the child’s habitual residence, the applicability of defenses to return, and the appropriateness of an award of attorney fees to mother. The parties continued attempts to litigate child-related issues demonstrated that they

still maintained a “concrete interest” in the outcome of the case and

 

614. Id. at 2287. But see Leser v. Berridge, 668 F.3d 1202 (10th Cir. 2011), holding that a stipulation between parents to return children to their habitual residence for 

the purpose of child custody proceedings in the Czech Republic caused the return 

case in the United States to become moot. 

615. 248 F.3d 1051 (11th Cir. 2001).

616. Citing Knox v. Service Employees, 132 S. Ct. 2277, 2287 (2012).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

154

“‘however small’” that interest, it “is enough to save this case from 

mootness.”617 The prospects of father’s success on the merits were not 

pertinent to whether the case was moot.

A rule equating the child’s absence from the United States to 

mootness, the Court reasoned, would produce unwise and unintended 

results. If jurisdiction were lost every time a child was ordered returned to a foreign country, courts would tend toward routinely granting stays of return orders in an effort to preserve litigants appellate 

rights. This would result in delays in children’s returns during the 

pendency of appeals, even in cases where the chance of reversal was 

remote. Additionally, the Court recognized the possibility that parents 

obtaining return orders might thus be motivated to immediately exit 

the United States with the child in order to render any appeal moot.618

The Court examined the question whether the district court could 

issue an order of “re-return”—an order that directed the child’s return 

from the United Kingdom back to Alabama—if the Eleventh Circuit 

were to reverse the district court’s return order. In response to mother’s argument that a re-return order would be ineffectual because enforcement was not required in Scotland, the Supreme Court noted that 

(1) mother was still subject to personal jurisdiction in the U.S. courts, 

and was therefore subject to further court orders; (2) mother’s refusal 

to obey could be met with sanctions; and (3) mother could choose to 

voluntarily comply with an order of re-return. 

Following Chafin, the court in Redmond v. Redmond619 found that 

despite the mother and child’s return to Ireland as ordered by the trial 

court, the case was not moot. Simultaneous child custody proceedings 

were brought in Ireland by father and in Illinois by mother. The Illinois court deferred jurisdiction to the Irish court. The Seventh Circuit 

recognized that despite the Illinois decision to defer to Irish jurisdic-

 

617. Citing to Knox, 132 S. Ct. at 2287. The Court in Knox cited to the following 

language in Ellis v. Railway Clerks, 466 U.S. 435, 442 (1984): “[A]s long as the parties 

have a concrete interest, however small, in the outcome of the litigation, the case is 

not moot.”

618. Chafin, 133 S. Ct. at 1027.

619. 724 F.3d 729 (7th Cir. 2013).
IV. Issuing Orders of Return

155

tion over the custody issue, the question of the child’s habitual residence would be before the district court on remand, and the resolution of the habitual residence question could influence the modification of the previous state court decision declining jurisdiction.620

Neither the Convention nor ICARA contain guidelines for the 

issuance of stays by a court hearing a Hague Convention case.621

Granting a stay after a return order is issued is governed by the law 

concerning the issuance of stays generally.

622

2. Stays

In Chafin, 623 the Supreme Court cautioned that the issuance of routine 

stays would conflict with the Convention’s exhortation for prompt 

handling and could increase the number of appeals. Instead, the Court 

urged the application of the four traditional factors624 for determining 

whether a stay should issue:625

1. the strength of the applicant’s showing of a likelihood of success on appeal;

2. whether the applicant will suffer irreparable injury in the absence of a stay;

 

620. Id. at 736.

621. In Kijowska v. Haines, 463 F.3d 583, 589 (7th Cir. 2006), the court rejected 

the argument that the UCCJEA controls the issuance of stays in Hague Convention 

return cases. The UCCJEA prohibits the issuance of a stay of a “child custody determination” (§ 314) unless the circumstances authorize a temporary emergency order 

(abandonment, mistreatment, or abuse). However, a Hague Convention return case is 

purposely omitted from the UCCJEA’s definition of a “child custody determination,” 

because Hague cases do not result in custody awards. See Comment to § 102 of the 

UCCJEA. Hence, the UCCJEA does not control the issuance of stays for state or federal courts.

622. See Fed. R. Civ. P. 62(c). Pursuant to Federal Rules of Appellate Procedure 

8(a)(1)(A), a party must ordinarily apply for a stay in the district court for a stay 

pending appeal.

623. Chafin, 133 S. Ct. 1017.

624. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987). 

625. Chafin, 133 S. Ct. at 1027.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

156

3. whether the stay will cause substantial injury to parties opposed to the stay; and

4. any risk of harm to the public interest.

The factors above should be considered on a “sliding scale” so that a 

stronger showing on one factor may excuse a lesser showing on others.

626 However, the Supreme Court notes that the combination of 

granting stays and expediting proceedings are part of the “judicial 

tools” that allow courts to achieve the goals of the Convention:

627

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.628

When appellate courts issue stays in Hague cases, they frequently 

order expedited appeals.

629 The decision whether or not to grant a stay

of an order of return lies within the sound discretion of the court.630

 

626. See Thapa v. Gonzales, 460 F.3d 323 (2d Cir. 2004).

627. Chafin, 133 S. Ct. at 1026–27.

628. Id. at 1027.

629. See, e.g., Souratgar v. Lee, 720 F.3d 96 (2d Cir 2013); Nicolson v. Pappalardo, 605 F.3d 100 (1st Cir 2010); Charalambous v. Charalambous, 627 F.3d 462 (1st 

Cir. 2010); Koch v. Koch, 450 F.3d 703, 710 (7th Cir. 2006); Simcox v. Simcox, 511 

F.3d 594, 601 (6th Cir. 2007); Danaipour v. McLarey (Danaipour I), 286 F.3d 1, 11 

(1st Cir. 2002); Diorinou v. Mezitis, 237 F.3d 133 (2d Cir. 2001).

630. See, e.g., Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000), cert. denied, 531 U.S. 

1159 (2001); Nicolson, 605 F.3d at 103.
157

V. Procedural Issues

A. Appellate Standard of Review

Federal appeals courts uniformly use dual criteria to review decisions 

involving the 1980 Convention. The deferential standard of “clear 

error” is used to review factual findings in cases arising under the 

1980 Convention. When the court reviews a district court’s interpretation of the Convention or its application to the facts, or foreign, domestic, or international law, the appellate court reviews the district 

court’s conclusions de novo.

631

The elements of a prima facie case for the applicant—custody 

rights and habitual residence—are similarly reviewed by examining 

the historical or narrative facts for clear error, and legal conclusions 

are reviewed de novo. The defenses or exceptions to return are reviewed in the same fashion: conclusions reached regarding the defenses of consent, acquiescence, delay, settlement,632 grave risk,

633 and vio-

 

631. Sanchez-Londono v. Gonzalez, 752 F.3d 533 (1st Cir. 2014); Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012); Karpenko v. Leendertz, 619 F.3d 259 (3d Cir. 

2012); Bader v. Kramer, 484 F.3d 666 (4th Cir. 2007); Larbie v. Larbie, 690 F.3d 295 

(5th Cir. 2012); Simcox v. Simcox, 511 F.3d 594 (6th Cir. 2007); Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013); Stern v. Stern, 639 F.3d 449 (8th Cir. 2011); 

Valenzuela v. Michel, 736 F.3d 1173 (9th Cir. 2013); West v. Dobrev, 735 F.3d 921 

(10th Cir. 2013); Hanley v. Roy, 485 F.3d 641 (11th Cir. 2007).

632. In re B. Del C.S.B., 559 F.3d 999 (9th Cir. 2009). “Thus, we review the 

district court’s factual findings underpinning its Article 12 determination for clear 

error, and its ultimate conclusion that Brianna is not now settled in the United States 

de novo.” Id. at 1008.

633. Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir. 2001); Simcox v. Simcox, 511 

F.3d 594, 601 (6th Cir. 2007) (“Whether there is a ‘grave risk’ of harm under the 

Convention is a mixed question of law and fact and thus review is de novo.”); Norinder v. Fuentes, 657 F.3d 526 (7th Cir. 2011); Acosta v. Acosta, 725 F.3d 868 (8th 

Cir. 2013); Silverman v. Silverman (Silverman II), 338 F.3d 886 (8th Cir. 2003); Cuellar v. Joyce (Cuellar I), 596 F.3d 505 (8th Cir. 2010); Taylor v. Taylor, 502 F. App’x

854 (11th Cir. 2012).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

158

lation of fundamental human rights, are subject to plenary (de novo) 

review.634

Purely factual determinations are subject to a clear error standard.

In Vasconcelos v. Batista,

635 the court observed that “Although there is 

no case law directly on-point, it is logical to assume that the question 

of whether [the child] objected is fact-intensive, and thus the district 

court's finding that she objected is subject to clear error review.”636

Similarly, the findings whether or not parents shared an intent regarding the habitual residence is subject to the clear error standard.637

Most circuits use a dual standard of review for habitual residence 

questions.638 Under this test a trial court’s findings of fact are reviewed 

for clear error, and legal determinations, issues of domestic, foreign 

and international law are reviewed de novo. Courts in these circuits 

frequently refer to habitual residence issues as mixed questions of fact 

and law.639 For example, the Eighth Circuit in Silverman v. Silver-

 

634. In re Application of Adan, 437 F.3d 381, 390 (3d Cir. 2006) (“We have not 

explicitly articulated a standard of review for the opposing party’s burden of proving 

by clear and convincing evidence that an exception applies, but we agree with other 

circuit courts that, for all issues arising under the Convention, a District Court’s determination of facts is reviewed for clear error and its application of those facts to the 

law, as well as its interpretation of the Convention, are reviewed de novo.”). 

635. 512 F. App’x 403 (5th Cir. 2013).

636. Id. at 407. Accord Yang v. Tsui (Yang II), 499 F.3d 259 (3d Cir. 2007).

637. “It then becomes the court’s task to determine the intentions of the parents 

as of the last time that their intentions were shared. Clearly, this is a question of fact 

in which the findings of the district court are entitled to deference, and we consequently review those findings for clear error.” Gitter v. Gitter, 396 F.3d 124 (2d Cir. 

2005).

638. Neergaard-Colón v. Neergaard, 752 F.3d 526 (1st Cir. 2014); Guzzo v. 

Cristofano, 719 F.3d 100 (2d Cir. 2013); Feder v. Evans–Feder, 63 F.3d 217, 222 (3d 

Cir. 1995); Berezowsky v. Ojeda, 765 F.3d 456 (5th Cir. 2014); Robert v. Tesson, 507 

F.3d 981 (6th Cir. 2007); Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013); Silverman v. Silverman (Silverman II), 338 F.3d 886 (8th Cir. 2003); Mozes v. Mozes, 

239 F.3d 1067, 1073 (9th Cir. 2001); Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 

2004).

639. E.g., Darín v. Olivero–Huffman, 746 F.3d 1, 8–9 (1st Cir. 2014) (citing Koch 

v. Koch, 450 F.3d 703, 710 (7th Cir. 2006)); Karkkainen v. Kovalchuk, 445 F.3d 280 

(3d Cir. 2006); Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013); Silverman II, 338
VI. Case Management

159

man,

640 established the review standard for its circuit by following the 

Ninth and Third Circuits, finding that “habitual residence determinations raised mixed questions of fact and law and therefore should be 

reviewed de novo.”

Only the Fourth Circuit appears to treat the habitual residence 

question as being subject to a clear error standard. In Maxwell v. Maxwell,

641 the court acknowledged the traditional review standards applicable to Hague cases:

On appeal, the district court's findings of fact are reviewed for clear 

error and its legal conclusions regarding domestic, foreign, and international law are reviewed de novo. Ruiz v. Tenorio, 392 F.3d 

1247, 1251 (11th Cir. 2004); Silverman v. Silverman, 338 F.3d 886, 

896–97 (8th Cir. 2003) (en banc); Mozes v. Mozes, 239 F.3d 1067, 

1073 (9th Cir. 2001); Feder v. Evans–Feder, 63 F.3d 217, 222 n. 9 

(3d Cir. 1995). Therefore, we must “accept the district court’s historical or narrative facts unless they are clearly erroneous, but exercise 

plenary review of the court's choice of and interpretation of legal 

precepts and its application of those precepts to the facts.” Feder, 63 

F.3d at 222 n.9.642

• • •

[T]he crux of the issue on appeal is whether the district court’s determination that the quadruplets’ habitual residence was the United 

States at the time they were removed from Australia is clearly erroneous.643

The above-quoted language does not depart from the holdings of 

many other courts that have merely ruled on the question whether the 

 

F.3d 886; In re B. Del C.S.B., 559 F.3d 999 (9th Cir. 2009); Ruiz v. Tenorio, 392 F.3d 

1247, 1252 (11th Cir. 2004). There are no cases in the Fourth or Tenth Circuits that 

refer to habitual residence questions as constituting mixed questions of fact and law.

640. 338 F.3d 886 (8th Cir. 2003) (en banc).

641. 588 F.3d 245 (4th Cir. 2009).

642. Id. at 250.

643. Id. at 251. 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

160

district court’s findings of fact regarding a habitual residence are clearly erroneous.644

However, in Reyes v. Jeffcoat,

645 a different panel of the Fourth Circuit explained the holding in Maxwell, noting that

The mother, however, urges us to depart from clear error review and 

to consider de novo the district court's ultimate determination regarding the child's habitual residence, arguing that “habitual residence” is a legal term rather than a fact-bound conclusion. We disagree with the mother’s argument.

In Maxwell, we explicitly stated that we were required to consider 

the question whether the district court’s decision that the children's 

“habitual residence was the United States at the time they were removed . . . [was] clearly erroneous.” . . . Although we have provided 

district courts with a conceptual focus for determining a child’s habitual residence by directing courts to consider parental intent and 

acclimatization, this conceptual focus does not transform the factual 

inquiry into a legal one. Rather, in reaching a conclusion regarding 

the habitual residence of a child, district courts generally begin by 

making a series of subsidiary factual findings, such as the parents’

employment and citizenship status, which ultimately shape the resulting factual finding of habitual residence. Thus, in accordance 

with our holding in Maxwell, we review for clear error the district 

court’s determination regarding the “habitual residence” of the parties’ child.646

In light of the language in Reyes v. Jeffcoat, one may not be certain 

whether the court in Maxwell intended only to restate the holdings of 

 

644. See, e.g., Mauvais v. Herisse, 772 F.3d 6, 14 (1st Cir. 2014); Seaman v. Peterson, 766 F.3d 1252, 1261 (11th Cir. 2014) (“So, in this case, we find no clear error in 

the district court's findings of historical fact supporting its ultimate legal conclusion 

that the habitual residence of the Peterson children was in Mexico at the time of their 

abduction on October 2, 2010. And, upon de novo review of that legal conclusion in 

light of the record as a whole, we are not left with the definite and firm conviction that 

a mistake has been made.”).

645. 548 F. App’x 887, 891 (4th Cir. 2013) (unpublished opinion) (for rule 

regarding citation of unpublished opinions, see Fed. R. App. P. 32.1).

646. Id. at 891.
VI. Case Management

161

other courts granting deference to district court factual determinations 

in habitual residence questions or whether the Maxwell court intended 

that the “clear error” standard apply to both factual findings and the

legal conclusion.

B. Expeditious Handling Required

The Convention makes very clear that abduction cases should be handled promptly and expeditiously. Article 11 states the following:

The judicial or administrative authorities of Contracting States shall 

act expeditiously in proceedings for the return of children. 

If the judicial or administrative authority concerned has not 

reached a decision within six weeks from the date of commencement 

of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement 

of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply 

to the Central Authority of the requesting State, or to the applicant, 

as the case may be.

This principle is reflected in the Convention’s stated purpose of 

protecting children from the effects of parental abduction and ensuring “their prompt return,”

647 and there are two separate provisions in 

the Convention discussing the expectation that judicial proceedings 

will be administered without delay. In addition to the requirement 

that courts “act expeditiously” in handling proceedings for return of 

children,

648 the Convention exhorts contracting states to use “the most 

expeditious procedures available.”

649

 

647. Convention, supra note 11, Preamble, Article 1.

648. See, e.g., Daunis v. Daunis, 222 F. App’x 32, 2007 WL 786331 (2d Cir. 2007).

649. Convention, supra note 11, Article 2. See Holder v. Holder (Holder II), 392 

F.3d 1009, 1022 (9th Cir. 2004) (overruling objections to use of a magistrate judge to 

conduct hearings pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed. R. Civ. P. 72(b), and 

finding that the assignment of the case to a magistrate judge was in keeping with using 

the most expeditious procedures available). See also Pérez-Vera Report, supra note 19, 

¶ 63.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

162

The emphasis on prompt disposition applies to appellate proceedings as well.650 In Chafin v. Chafin,

651 the Supreme Court urged both 

district and appellate courts to take steps to achieve expeditious handling of Hague cases,652 noting that many courts already do so. The 

concurring opinion in Chafin also underscores the need for procedures 

that will enhance the speed and certainty in Hague cases. The concurring opinion cited to many courts of appeals using expedited procedures on appeal and suggested the possible adoption of formal uniform rules to implement such practices. The court also recommended 

the evaluation of procedures that would require leave to appeal, and 

the judicious use of stays to avoid competing custody proceedings in 

multiple jurisdictions.

Expedited procedures for briefing and handling of appeals have

become common in most circuits.653 Appellate courts have also avoided remand by identifying potential remand issues654 and resolving

factual matters where it is possible to do so based on a “well developed 

record.”

655

 

650. See, e.g., In re Application of Adan, 437 F.3d 381, 398 (3d Cir. 2006).

651. 133 S. Ct. 1017 (2013).

652. “[C]ourts can achieve the ends of the Convention and ICARA—and protect 

the well-being of the affected children—through the familiar judicial tools of expediting proceedings and granting stays where appropriate.” Id. at 1026–27.

653. See, e.g., Yaman v. Yaman, 730 F.3d 1 (1st Cir. 2013); Nicolson v. Pappalardo, 605 F.3d 100 (1st Cir. 2010); Simcox v. Simcox, 511 F.3d 594 (6th Cir. 2007);

Koch v. Koch, 450 F.3d 703 (7th Cir. 2006); Kijowska v. Haines, 463 F.3d 583 (7th 

Cir. 2006); Gaudin v. Remis, 415 F.3d 1028 (9th Cir. 2005) (ordering any subsequent 

appeal to be assigned to the same panel and advising counsel of provisions for requesting an expedited briefing schedule); Sealed Appellant v. Sealed Appellee, 394 F.3d 338 

(5th Cir. 2004); Holder II, 392 F.3d 1009; Diorinou v. Mezitis, 237 F.3d 133 (2d Cir. 

2001); England v. England, 234 F.3d 268 (5th Cir. 2000); Lops v. Lops, 140 F.3d 927 

(11th Cir. 1998); Chafin v. Chafin, 742 F.3d 934 (11th Cir. 2013); Souratgar v. Lee, 

720 F.3d 96 (2d Cir. 2013); cf. Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013)

and Whiting v. Krassner, 391 F.3d 540 (3d Cir. 2004) (denying requests for stay of 

return orders and expedited appeals).

654. See, e.g., Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001); In re B. Del C.S.B., 

559 F.3d 999 (9th Cir. 2009).

655. See, e.g., Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007).
VI. Case Management

163

For example, in Charalambous v. Charalambous,

656 the district 

court issued an order of return of a child to Cyprus. The First Circuit 

stayed the order of return on October 28, 2010, and expedited the 

appeal. Oral argument was held on December 7, 2010, and the court 

issued its opinion affirming the district court on December 8, 2010—

57 days after the district court’s decision.657

Although the Convention does not explicitly impose upon petitioners the correlative obligation to promptly prosecute their applications once filed,658 one California court has held that the Convention 

does not deprive courts of their inherent power to manage their affairs, including the power to dismiss for delayed prosecution.659

1. Application of Federal Rules of Civil Procedure

The Federal Rules of Civil Procedure govern the handling of cases 

arising under the 1980 Convention in the federal court system. In 

Kijowska v. Haines,

660 the Seventh Circuit found that Illinois law prohibited a stay of an order enforcing a child custody proceeding while 

an appeal was pending, absent exigent circumstances. However, the 

court noted that matters relating to procedure in federal courts are

governed by federal law, not state law, and upheld the stay of an order 

 

656. 627 F.3d 462 (1st Cir. 2010).

657. Author’s Note: Within the three-year period from August 2011–July 2014, 

the First Circuit’s average for adjudicating appeals, calculated from the date of the 

district court’s decision to the issuance of its appellate opinion, was approximately 

182 days per case—the lowest average amount appellate courts that handled a statistically relevant number of cases (Source: author’s review of published and unpublished 

appellate opinions based on district court decisions rendered commencing August 

2011).

658. Failure to file an application for return in court within one year may subject 

the petitioner to the defense of delay pursuant to Article 12. See discussion commencing at p. 94.

659. Bardales v. Duarte, 104 Cal. Rptr. 3d 899, 1270–71 (Cal. Ct. App. 2010); see 

also Cruz v. Cruz, 33 Conn. L. Rptr. 594 (Conn. Super. Ct. 2002) (mother waited 

almost two years to prosecute petition for return, during which time she had attempted no contact with the child) (unreported disposition).

660. 463 F.3d 583, 589 (7th Cir. 2006).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

164

of return and the denial of a subsequent application to dissolve the 

stay pending appeal. 

2. Expedited Discovery

A court may adopt an expedited discovery schedule when considering 

a petition for return.661 The provisions of both the 1980 Convention 

and ICARA contemplate the use of expedited procedures to “guarantee 

that children are returned quickly to the correct jurisdiction.”662 The 

Norinder court reasoned that:

[T]he adjudication of a petition for return of a child is much like a 

district court’s exercise of equitable power in the context of a preliminary injunction or a temporary restraining order. In both circumstances, discovery often must proceed quickly, the district court 

must apprise itself of the relevant facts, and a decision must be rendered on an expedited basis.663

3. Relaxed Rules for Admissibility of Documents

Furthering the goal of expedited procedures, ICARA provides a “generous authentication rule”

664 that eliminates the need for authentication for documents that are submitted with the petition for return.665

 

661. See, e.g., Khan v. Fatima, 680 F.3d 781 (7th Cir. 2012).

662. Norinder v. Fuentes, 657 F.3d 526, 533 (7th Cir. 2011).

663. Id.

664. March v. Levine, 249 F.3d 462 (6th Cir. 2001). See 22 U.S.C. § 9005:

With respect to any application to the United States Central Authority, or any petition 

to a court under section 9003 of this title, which seeks relief under the Convention, or 

any other documents or information included with such application or petition or 

provided after such submission which relates to the application or petition, as the case 

may be, no authentication of such application, petition, document, or information 

shall be required in order for the application, petition, document, or information to be 

admissible in court.

665. Brosselin v. Harless, 2011 WL 6130419 (W.D. Wash. 2011) (unreported 

disposition). Brosselin cites to Danaipour v. McLarey (Danaipour II), 386 F.3d 289 (1st 

Cir. 2004), wherein the First Circuit noted that the district court held that Hague 

Convention cases do not require the application of the Federal Rules of Evidence 

regarding hearsay, as such cases are summary proceedings. Danaipour II, 386 F.3d at 

296. Cf. Avendano v. Smith, 2011 WL 3503330 (D.N.M. 2011) (unreported disposi-
VI. Case Management

165

Section 9005 of ICARA has been held to authorize consideration of 

translated excerpts from foreign law,666 foreign custody decisions,667

translated documents from foreign courts,668 and affidavits submitted 

by the parties.669

C. Parallel Jurisdiction Issues

The grant of concurrent original jurisdiction by ICARA has resulted in 

Convention litigation raising issues of abstention and, to a lesser extent, removal. When a state case is pending, an abstention argument 

may emerge. Federal courts must then examine whether the state case 

involved is actually adjudicating a claim under the Convention or is

principally a custody dispute.

1. Younger Abstention

If federal adjudication would disrupt an ongoing state proceeding, the 

Younger670 abstention doctrine may apply. Three elements must be 

present for abstention under Younger to apply: (1) the federal plaintiff 

is a party in an ongoing state judicial action and federal proceedings 

would interfere with that action; (2) the state court litigation implicates important state interests; and (3) the state proceedings afford the 

 

tion) (“This provision [9005] of the International Child Abduction Remedies statute, 

[22 U.S.C. §§ 9001 to 9011], which implements by congressional statute the Hague 

Convention, supports the Court’s conclusion that the Federal Rules of Evidence apply 

to its consideration of the Petition, because, if the Federal Rules of Evidence did not 

apply, there would be no need for a statute eliminating the authentication requirement 

for certain documents.”). See also Walker v. Walker, 701 F.3d 1110, 1117 (7th Cir. 

2013), upholding Rule 408’s ban on the admission of offers of compromise in a Hague 

Convention case.

666. Seaman v. Peterson, 762 F. Supp. 2d 1363 (M.D. Ga. 2011); Norinder v. 

Fuentes, 2010 WL 4781149 (S.D. Ill. 2010) (unreported disposition).

667. Chechel v. Brignol, 2010 WL 2510391 (M.D. Fla. 2010) (unreported disposition); Doudle v. Gause, 282 F. Supp. 2d 922 (N.D. Ind. 2003).

668. Kufner v. Kufner, 480 F. Supp. 2d 491 (D.R.I. 2007).

669. In re Walsh, 31 F. Supp. 2d 200 (D. Mass. 1998), reversed in part on other 

grounds, Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000).

670. Younger v. Harris, 401 U.S. 37 (1971).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

166

parties the opportunity to raise the claims they seek to present in federal court.

671 Courts have been reluctant to apply Younger abstention 

in the context of Hague Convention cases.672

Where state custody proceedings are ongoing, but Hague Convention claims have not been raised in state court, the first element of 

Younger is not satisfied.673 Article 16 of the Convention requires that 

the merits of any custody dispute be stayed pending the outcome of 

the Hague application. If a federal court has been presented with a 

Hague application while a state custody action is proceeding, abstention should not apply.674

The second element under Younger—that state proceedings must 

implicate important state interests—has been interpreted not to apply 

to Hague cases.675

 

671. See Yang v. Tsui (Yang I), 416 F.3d 199, 202 (3d Cir. 2005) (citing FOCUS 

v. Allegheny Cnty. Ct. Com. Pl., 75 F.3d 834, 843 (3d Cir. 1996)). Yang adopts a 

broader interpretation of the Younger abstention doctrine than that of the Second, 

Seventh, and Ninth Circuits. See Yang I, 416 F.3d at 202 n.1. 

672. See, e.g., Silverman v. Silverman (Silverman I), 267 F.3d 788, 792 (8th Cir. 

2001) (“[A]bstention principles do not permit an outright dismissal of a Hague petition.”); Silverman v. Silverman (Silverman II), 338 F.3d 886, 891 (8th Cir. 2003) 

(“abstention does not apply in Hague Convention cases”); Barzilay v. Barzilay (Barzilay I), 536 F.3d 844, 850 (8th Cir. 2008) (“The pendency of state custody proceedings 

therefore does not support Younger abstention in the Hague Convention context.”); 

but see Witherspoon v. Orange Cnty. Dep’t of Soc. Servs., 646 F. Supp. 2d 1176 (C.D. 

Cal. 2009) (holding Younger abstention applied and federal action dismissed where 

mother filed Hague return petition in state court, which was stayed by state appeals 

court pending determination of dependency petition, whereupon mother filed identical Hague return petition in federal court).

673. See, e.g., Barzilay I, 536 F.3d at 850.

674. See, e.g., id.; Yang I, 416 F.3d at 203; Karpenko v. Leendertz, 619 F.3d 259, 

262 (3d Cir. 2010).

675. See, e.g., Yang I, 416 F.3d at 204 (finding that adjudication of a Hague return 

case is a federal statutory matter, entirely distinct from a state custody case); Escaf v. 

Rodriguez, 52 F. App’x 207, 2002 WL 31760202 (4th Cir. 2002) (finding second 

prong absent because the Hague Convention involves issues relating to the international movement of children, which is a federal, not a state, interest); Grieve v. Tamerin, 269 F.3d 149, 153 (2d Cir. 2001) (“. . . Grieve’s claim implicates a paramount 

federal interest in foreign relations and the enforcement of United States treaty obliga-
VI. Case Management

167

2. Colorado River676 Abstention

Federal courts may abstain if there are parallel proceedings in state 

and federal courts that involve the same parties and the same issues. 

The consideration of “wise judicial administration” may justify a decision by a court to stay federal proceedings in deference to the parallel 

state proceedings.677 Abstention under the Colorado River doctrine 

allows for either a stay of proceedings in federal court or a dismissal of 

the action.678

As with Younger abstention, if Hague claims have not been raised 

in the state action, Colorado River abstention does not apply.679 In 

Holder v. Holder (Holder I),

680 the Ninth Circuit reversed the district 

court’s abstention pursuant to Colorado River, where the district court 

stayed proceedings in favor of California custody proceedings. In 

Holder I, father was in the U.S. Air Force, stationed in Germany. 

Mother brought the parties’ two children to the state of Washington. 

Father filed a divorce action in California, where the parties previously 

lived. Mother filed a divorce action in Washington, but later dropped 

that action, conceding that jurisdiction in California was appropriate. 

Temporary custody orders were entered in California, placing the 

children in the primary custody of mother in Washington. The California court did not consider any Hague issues, but recognized that 

those issues might be brought “on a separate track.” Father thereafter 

filed his Hague petition in federal court in Washington where the 

children were located. The district court stayed proceedings on the 

 

tions. Deference to a state court’s interest in the outcome of a child custody dispute 

would be particularly problematic in the context of a Hague Convention claim inasmuch as the Convention divests the state of jurisdiction over these custody issues 

until the merits of the Hague Convention claim have been resolved.”).

676. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 

(1976).

677. Intel Corp. v. Advanced Micro Devices, Inc., 12 F.3d 908, 912 (9th Cir. 

1993).

678. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983).

679. Yang I, 416 F.3d at 204 n.5; Escaf, 52 F. App’x 207, 2002 WL 31760202.

680. 305 F.3d 854 (9th Cir. 2002).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

168

grounds that father had initiated the custody proceedings in state 

court in California, even though he did not pursue a Hague claim in 

that court. The district court reasoned that California’s custody determination would likely result in the preclusion of father’s Hague 

claims. The Ninth Circuit court reversed, noting that the finality of the 

California state custody case would not resolve the Hague Convention 

issues because the Hague issues were not raised in the California action.

681

Colorado River abstention is often invoked when the parallel state 

proceeding includes a claim under the Hague Convention.

682 However, 

a federal court may choose not to abstain for other reasons. In Lops v. 

Lops,

683 the Eleventh Circuit affirmed the district court’s refusal to 

abstain even though the petitioning mother initially filed a Hague 

Convention petition in state court and then filed an identical petition 

in federal court. The Eleventh Circuit noted that the state court could 

not hear the Hague proceeding for at least two months. The federal 

district court was prepared to, and did, hear the case on a more expedited basis. Noting that federal courts have the “virtually unflagging 

obligation . . . to exercise the jurisdiction given them,”

684 the court of 

appeals applied the factors governing whether to stay or dismiss a 

federal action and ultimately affirmed the district court’s refusal to 

abstain.

685

 

681. Id. at 868.

682. See, e.g., Copeland v. Copeland, 134 F.3d 362, 1998 WL 45445 (4th Cir. 

1998) (unpublished table decision) (upholding abstention where state court denied 

mother’s return petition); Cerit v. Cerit, 188 F. Supp. 2d 1239 (D. Haw. 2002) (arguing Hague issues to state court).

683. 140 F.3d 927 (11th Cir. 1998).

684. McClelland v. Carland, 217 U.S. 268, 282 (1910).

685. Factors include “(1) whether one of the courts has assumed jurisdiction over 

any property in issue; (2) the inconvenience of the federal forum; (3) the potential for 

piecemeal litigation; (4) the order in which the forums obtained jurisdiction; 

(5) whether federal or state law will be applied; and (6) the adequacy of each forum to 

protect the parties’ rights.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 

U.S. 1, 15–16, 23–27 (1983); Colo. River Water Conservation Dist. v. United States, 

424 U.S. 800, 818 (1976).
VI. Case Management

169

3. Rooker-Feldman Doctrine

The Rooker-Feldman686 doctrine is a narrowly applied rule that bars a 

losing party in a state court action from invoking federal jurisdiction 

to review and set aside the state judgment resting on federal law. Such 

a tactic is tantamount to having the federal court act as a court of appeal to the state court judgment. Similarly, federal courts must abstain 

from relitigating issues that are “inextricably intertwined” with the 

state court decision.687

In the context of Hague Convention actions, Rooker-Feldman

would apply if a party filed an application for return in federal court 

after a state court denied the Hague petition, with the party alleging 

the state court decided the case erroneously.688 Also, the doctrine applies when a party files a Hague Convention application for return of a 

child as an artifice to collaterally attack a state court judgment that 

was fully litigated.689

4. Removal

Removal has been mentioned in only a few Hague cases, none of 

which has analyzed the issue of whether the petitioner’s selection of 

 

686. Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Ct. of App. v. Feldman, 

460 U.S. 462 (1983).

687. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 282–86, 

125 S. Ct. 1517, 1521–23 (2005).

688. See Holder v. Holder (Holder I), 305 F.3d 854 (9th Cir. 2002) (ruling district 

court should proceed with hearing of Hague case even though pending state court 

case would resolve issues of custody); see also Rigby v. Damant 486 F. Supp. 2d 222 

(D. Mass. 2007) (finding district court could not enjoin state court from proceeding 

with custody determination during pendency of Hague case in the federal court—if 

the state court is required to stay its proceedings because of the pendency of the 

Hague petition in federal court, it must do so on its own).

689. See White v. White, 556 F. App’x 10 (2d Cir. 2014) (unreported disposition) 

(upholding district court’s dismissal of parent’s petition on the grounds of the RookerFeldman doctrine, res judicata, and collateral estoppel).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

170

forum must be honored.690 In In re Mahmoud,

691 mother filed a Hague 

petition in state court. On the first day of trial, father filed a notice of 

removal in both jurisdictions and advised the state court judge that the 

action had been removed to federal court. Mother opposed removal, 

arguing that she had the right to select a state court forum. The state 

court proceeded to hear the case and ordered the child returned to 

England with the mother. Father moved to vacate the state court order, principally to attack the award of attorneys’ fees and costs. The 

district court found that once removal was effective, the entry of any 

order thereafter by a state court was void.692

D. Comity

In Hilton v. Guyot,

693 the Supreme Court held comity is neither a matter of absolute obligation nor of mere courtesy and good will. Rather, 

under the principles of international comity, the United States may 

recognize the judicial, executive, or legislative actions of another nation, as long as doing so is consistent with U.S. law.694 If a court deems 

that according comity to a foreign judgment is appropriate, it should 

not readjudicate the foreign court proceeding unless there are specific 

and compelling reasons to do so.

695

1. Hague Convention Orders of Other Nations

The acceptance of treaty partnership with other nations signifies a 

certain degree of trust that the courts of other countries will safeguard 

 

690. See Danaipour v. McLarey (Danaipour II), 386 F.3d 289 (1st Cir. 2004); 

Morrison v. Dietz, No. 07-1398, 2008 WL 4280030 (W.D. La. 2008) (unreported 

disposition).

691. No. CV 96 4165 (RJD), 1997 WL 43524 (E.D.N.Y. 1997) (unreported disposition).

692. Id. at 2 (citing Tarbell v. Jacobs, 856 F. Supp. 101, 104 (N.D.N.Y. 1994)).

693. 159 U.S. 113 (1895). 

694. Id. at 113.

695. Id. For a discussion of comity as it pertains to the issue of undertakings, see 

supra note 570.
VI. Case Management

171

the interests of children with the same degree of concern as U.S. 

courts. See, for example, Souratgar v. Lee:

696

[T]he careful and thorough fulfillment of our treaty obligations 

stands not only to protect children abducted to the United States, but 

also to protect American children abducted to other nations whose 

courts, under the legal regime created by this treaty, are expected to 

offer reciprocal protection. In the exercise of comity, “we are required to place our trust in the court of the home country to issue 

whatever orders may be necessary to safeguard children who come 

before it.’’

697

Notwithstanding the language of Hilton, U.S. courts sometimes 

have scrutinized the substance of foreign rulings on Hague petitions 

when determining whether to grant comity. In Asvesta v. Petroutsas,

698

mother abducted the child to Greece. Father’s petition for return under the Hague Convention was denied by the Greek court on the basis 

that father consented to the child’s removal, mother had not wrongfully retained the child, and the child would suffer grave harm if returned 

to the United States. Father thereafter reabducted the child back to the 

United States, and mother filed a petition for return. The district court 

granted mother’s petition, according comity to the previous Greek 

order. The Ninth Circuit reversed, distinguishing the broad language 

of Hilton and pointing out that in the context of Hague litigation, an 

international legal framework has been agreed on by all contracting 

nations. After a review of the decisions of other circuits,699 the court 

reasoned:

 

696. 720 F.3d 96 (2d Cir. 2013).

697. Id. at 108–09, citing Blondin I, 189 F.3d 240, 242, 248–49 (2d Cir. 1999).

698. 580 F.3d 1000 (9th Cir. 2009).

699. Diorinou v. Mezitis, 237 F.3d 133 (2d Cir. 2001) (extending comity to 

Greek order denying father’s petition for return, while still critical of some of the 

conclusions reached by the Greek court); Carrascosa v. McGuire, 520 F.3d 249 (3d 

Cir. 2008) (denying comity to Spanish denial of Hague Convention petition where 

Spanish court ignored New Jersey law in determining whether father had custody 

rights, and impermissibly considered the merits of the custody case in deciding the 

Hague Convention case); Pitts v. de Silva, 2008 ONCA 9, [2008] 289 D.L.R. 4th 540 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

172

In this context, we are in a better position to examine the merits of a 

foreign court’s Hague decision in deciding whether that decision 

warrants deference. Although we recognize that our careful examination of the merits of another contracting nation’s Hague adjudication 

could, in some circumstances, undermine the mutual trust necessary 

for the Convention’s continued success, we also recognize that its 

success relies upon the faithful application of its provisions by American courts and the courts of other contracting nations. For this reason, we follow the path charted by Diorinou, Carrascosa, and Pitts

and conclude that we may properly decline to extend comity to the 

Greek 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.700

2. Enforcement of Foreign Custody Decisions

Comity has been extended to the custody orders of other nations. In 

Navani v. Shahani,

701 the Tenth Circuit found that comity should be 

given to a family court order of England, based on the English court’s

interpretation of English law.702

Comity, however, may not be used to confer jurisdiction in a federal court that does not have subject-matter jurisdiction under any 

other theory. In Taveras v. Taveras,

703 father filed an action for return 

of the children to the Dominican Republic. However, the Convention 

 

(Can. Ont.). In Pitts, appellate court in Ontario examined whether the Tenth Circuit 

properly handled an Article 13(b) analysis in de Silva v. Pitts, 481 F.3d 1279 (10th Cir. 

2007). Upon determining that the circuit court did, the Ontario appellate court granted comity.

700. Asvesta, 580 F.3d at 1013–14. See also Carrascosa, 520 F.3d at 259, 263–64 

(denying comity based on the finding that Spanish courts “departed from the fundamental premise of the Hague Convention and violated principles of international 

comity by not applying New Jersey law”).

701. 496 F.3d 1121 (10th Cir. 2007).

702. Navani, 496 F.3d at 1128. See also Miller v. Miller, 240 F.3d 392 (4th Cir. 

2001) (extending comity to a Canadian custody order that conflicted with a state 

court order); but see Van Driessche v. Ohio-Esezeoboh, 466 F. Supp. 2d 828 (S.D. Tex. 

2006) (refusing comity to Belgian custody orders).

703. 477 F.3d 767, 783–84 (6th Cir. 2007).
VI. Case Management

173

had not yet entered into force between the Dominican Republic and 

the United States. Father argued that comity should be given to an 

order of the Dominican courts granting him temporary custody of the 

children. The district court denied father’s requested relief. The decision was affirmed by the Sixth Circuit, which noted that “no court has 

held or suggested that the mere existence of a foreign judgment, much 

less an order, supplies a federal court with subject matter jurisdiction.”

704

E. Petitions for Access Only

Circuits are split705 on the issue whether courts may entertain petitions 

for enforcement of access or visitation pursuant to the Convention.

In Cantor v. Cohen,

706 mother petitioned for return and access (visitation) with two children. The district court dismissed the access 

claim and mother appealed. The Fourth Circuit affirmed the dismissal 

of the action, finding that Article 21 of the Convention did not create 

an obligation upon courts to enforce access rights, since that article 

provides for applications to organize or secure rights of access to be 

presented to the Central Authorities. The court in Cantor reasoned 

that the provisions of ICARA must be read within the context of Article 21, and as such ICARA does not establish a right of action that 

does not exist under the Convention.707 The court reasoned further 

that the limited jurisdiction of federal courts supports the conclusion 

 

704. Id. at 783 n.12.

705. Circuit split recognized in Londono v. Gonzalez, 988 F. Supp. 2d 113 (D. 

Mass. 2013). 

706. 442 F.3d 196 (4th Cir. 2006). See also Wiezel v. Wiezel-Tyrnauer, 388 F. 

Supp. 2d 206 (S.D.N.Y. 2005); Ly v. Heu, 296 F. Supp. 2d 1009 (D. Minn. 2003); 

Wiggill v. Janicki, 262 F. Supp. 2d 687 (S.D. W. Va. 2003); Bromley v. Bromley, 30 F. 

Supp. 2d 857 (E.D. Pa. 1998).

707. Id. at 200. See Cantor’s discussion and rejection of contrary interpretations 

of Katona v. Kovacs, 148 F. App’x 158 (4th Cir. 2005) (unreported disposition), and 

Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000). Cantor, 442 F.3d at 202–06. 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

174

that ICARA was not meant to confer upon courts jurisdiction to hear 

access claims.708

The Second and Sixth Circuits, however, reached different conclusions. In Ozaltin v. Ozaltin,

709 the Second Circuit emphasized the language in § 9003 that points to the existence of the right of action to 

enforce access rights710 and provisions relating to burdens of proof 

specific to such enforcement actions.711 The court concluded that “. . . 

§ 9003 unambiguously creates a federal right of action to secure the 

effective exercise of rights of access protected under the Hague Convention.”712

In Taveras v. Taveraz,

713 the Sixth Circuit affirmed the district 

court’s dismissal of a petition to return a child under the Alien Tort 

Statute.

714 In passing, the court observed that “We note that unlike The 

Hague Convention, the ICARA, 22 U.S.C. § 9003, does provide for 

judicial remedies for non-custodial parents, namely for rights of access 

claims (e.g., visitation).”715

 

708. Id. at 202.

709. 708 F.3d 355 (2d Cir. 2013).

710. Section 9003(b) states:

Any person seeking to initiate judicial proceedings under the Convention for the return of a child or for arrangements for organizing or securing the effective exercise of 

rights of access to a child may do so by commencing a civil action by filing a petition 

for the relief sought in any court which has jurisdiction of such action and which is 

authorized to exercise its jurisdiction in the place where the child is located at the 

time the petition is filed.

711. Section 9003(e) states:

A petitioner in an action brought under subsection (b) of this section shall establish 

by a preponderance of the evidence—

(A) in the case of an action for the return of a child, that the child has been 

wrongfully removed or retained within the meaning of the Convention; and

(B) in the case of an action for arrangements for organizing or securing the effective exercise of rights of access, that the petitioner has such rights.

712. Ozaltin, 708 F.3d at 372. This interpretation of ICARA appears to be approved by the Sixth Circuit in dicta contained in a footnote in Taveras v. Taveraz, 477 

F.3d 767, 778 (6th Cir. 2007).

713. 477 F.3d 767 (6th Cir. 2007). 

714. 28 U.S.C. § 1350.

715. Taveras, 477 F.3d at 778 n.7.
VI. Case Management

175

The passage of the “Sean and David Goldman International Child 

Abduction Prevention and Return Act of 2014”716 (hereinafter “Goldman Act”) sheds little light on the question whether access rights are 

enforceable by court actions. Although one of the stated purposes of 

the Act is to “enhance the prompt resolution of abduction and access 

cases,”717 the Act limits the definition of an “access case” to “a case 

involving an application filed with the Central Authority of the United 

States by a parent seeking rights of access.”718 The Act’s later definition 

of the term “rights of access,” however, provides

The term ‘‘rights of access’’ means the establishment of rights of contact between a child and a parent seeking access in Convention 

countries—

(A) by operation of law;

(B) through a judicial or administrative determination; or

(C) through a legally enforceable arrangement between the parties.

1. Making Access Orders

No court has offered guidance on how to “organize” or “secure” the 

exercise of access rights.719 State courts are equipped to handle a wide 

 

716. The Act was signed by President Obama on August 8, 2014. Public Law No. 

113-150. The Goldman Act principally seeks to improve the return of children from 

both Hague Convention and non-convention countries. Inter alia, the Act (1) establishes procedures for dealing with abduction and access cases by directing the Secretary of State to enter into bilateral agreements and Memoranda of Understanding with 

non-Hague countries; (2) directs the Secretary to initiate various actions to respond to 

countries that are non-compliant; (3) imposes significant new reporting requirements 

on the State Department for abduction and access cases; and (4) establishes an interagency working group consisting of officials from the Department of State, Homeland 

Security and the Department of Justice. 

717. Id. § 2(c)(4).

718. Id. § 3(4).

719. Article 21, however, envisions the cooperation and initiative of the Central 

Authority in the establishment and securing of rights of access. It is not beyond the 

realm of possibility that the Office of Children’s Issues in the U.S. State Department 

(the U.S. Central Authority) may be able to assist in arranging some services for the 

federal courts to utilize, e.g., mediation, through cooperative agreements with established state court service providers. Where litigants in access cases have the financial 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

176

spectrum of child custody disputes, including requests to establish 

visitation rights, or to enforce those that have already been ordered.

State courts regularly hearing custody cases have access to a broad 

range of services, including mediation programs, psychological evaluations, facilities for monitored exchanges or supervised visitation, 

counsel for children, guardians ad litem, and counseling services. Federal courts, in contrast, usually do not have such resources. However, 

the absence of services has not been observed as an impediment to 

district courts ordering visits in ongoing Hague cases.720

Where a party merely seeks to enforce an order that was previously issued, the challenges for enforcing access rights in federal courts 

are few. In Cantor v. Cohen, the dissenting opinion noted that

[C]ontrary to the assumption that an action to secure access rights 

will force federal courts into the business of domestic law, the inquiry called for under section 9003(e) is very limited-the court need 

only decide whether “the petitioner has such rights” of access. . . . 

This limited inquiry does not require federal courts to plumb the 

depths of family law; in fact, it requires no greater degree of entanglement with family law than does the determination of whether a 

child has been removed in violation of existing custody rights.721

A broader reading of the language of § 9003(b) (“arrangements for 

organizing or securing the effective exercise of rights of access”) seems 

to support the interpretation that proceedings to establish access or 

visitation rights are contemplated by the statute. Lest there be some 

confusion over the use of the term “organize” within the context of 

the 1980 Convention, this is meant to bear the same meaning as the 

 

ability to pay for private services, the court may simply order that the parties participate in whatever types of service is appropriate—e.g., mediation or custody evaluation. The greater challenge will be in those cases where the parties are unable to financially support such services.

720. See, e.g., Souratgar v. Lee, 720 F.3d 96 (2d Cir. 2013); Villegas Duran v. 

Arribada Beaumont, 534 F.3d 142 (2d Cir. 2008), vacated on other grounds in Duran v. 

Beaumont, 560 U.S. 921 (2010).

721. 442 F.3d 196, 212 (4th Cir. 2006).
VI. Case Management

177

word “establish.”722 Thus it appears that federal courts may be called 

upon to (1) enforce existing access orders, and (2) establish and/or 

enforce access orders.

2. Interim Visits Pending Trial

Neither the Hague Convention nor ICARA contain provisions relating to a left-behind parent’s request for interim visits with the child 

pending a decision on the application for return. Nevertheless, 

courts have exercised their discretion in ordering such visits pending 

a trial on the merits.723 The Goldman Act724 appears to place an imprimatur on the ability of courts to order interim visitation by stating 

one of the purposes of the Act is to “assist left-behind parents in . . . 

maintaining safe and predictable contact with their child while an 

abduction case is pending.”725 The legislation further defines the 

phrase “interim contact” to mean “the ability of a left-behind parent 

to communicate with or visit an abducted child during the pendency 

of an abduction case.”726 The term “rights of interim contact” are 

further defined as “the rights of contact between a child and a leftbehind parent, which has been provided as a provisional measure 

 

722. “Understood thus, the first paragraph contains two important points; in the 

first place, the freedom of individuals to apply to the Central Authority of their choice, 

and secondly the fact that the purpose of the application to the Central Authority can 

be either the organization of access rights, i.e., their establishment, or the protection of 

the exercise of previously determined access rights. Now, recourse to legal proceedings will arise very frequently, especially when the application seeks to organize rights 

which are merely claimed or when their exercise runs up against opposition from the 

holder of the rights of custody.” Pérez-Vera Report, supra note 19, ¶ 127 (emphasis 

added).

723. See In re S.E.O., 873 F. Supp. 2d 536 (S.D.N.Y. 2012) (unreported disposition) (ordering pendente lite visits previously granted by a Turkish court); Charalambous v. Charalambous, 751 F. Supp. 2d 255, 259 (D. Me. 2010) (ordering visitation at 

specific dates and times); Khan v. Fatima, 680 F.3d 781 (7th Cir. 2012) (supervised 

visits granted).

724. Public Law No. 113-150 [HR 3212], Sean and David Goldman International 

Child Abduction Prevention and Return Act of 2014, 22 U.S.C. §§ 9101–9141.

725. Id. § 2(c)(2).

726. Id. § 3(14).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

178

while an abduction case is pending, under the laws of the country in 

which the child is located . . . .”

F. Contacting Judges in Foreign Jurisdictions

Although there are few reported examples of U.S. courts communicating directly with courts in other countries,727 it is well known that 

these communications take place.728 Direct communication with a 

judge in another country may be helpful in resolving issues surrounding the logistics of the return of a child or to answer questions relating 

to foreign law.

The 1980 Convention has enjoyed unparalleled acceptance within 

the international community—eighty-seven countries are now signatories. Broad acceptance of the Convention brings with it a corresponding diversity of legal systems. Notions of judicial independence 

may vary widely among countries. In the United States, discussions 

among state judges dealing with the same parties in a custody case are 

usually mandatory.729 In some countries, however, any contact with 

any other person, even a judicial colleague in the same country, is 

considered both an infringement upon judicial independence and a 

violation of judicial ethics—in essence, an ex parte communication. 

 

727. See, e.g., Innes v. Carrascosa, 918 A.2d 686, 391 N.J. Super. 453 (Super. Ct. 

App. Div. 2007) (attempting unsuccessfully to contact judge in Spain by phone and 

fax); Grammes v. Grammes, No. Civ.A. 02-7664, 2003 WL 22518715 (E.D. Pa. 2003) 

(unreported disposition) (discussing details of mirror-image order between U.S. judge 

and Canadian judges).

728. “SPECIAL FOCUS: Direct Judicial Communications on Family Law Matters 

and the Development of Judicial Networks,” Hague Conference on Private International Law, The Judges’ Newsletter on International Child Protection, Vol. XV, Autumn 2009.

729. Both the UCCJEA and its predecessor, the UCCJA, made communication 

with other courts a requirement where it appeared that two courts were attempting to 

exercise jurisdiction in a child custody matter simultaneously. The principal difference between the UCCJEA and its predecessor is that under the UCCJEA a record 

must be made of the communications with the other court. The language of the 

UCCJEA requiring communication with other states is expansive enough to include 

communication with courts of foreign countries.
VI. Case Management

179

This may be true even though there is no discussion concerning the 

facts or merits of the case.

Communications with judges in other countries should avoid any 

reference to the merits of the underlying case. The most accepted form 

of interjudicial communication involves obtaining information regarding: (1) an understanding of foreign law and procedure;730 (2) how to 

better expedite proceedings; and (3) jurisdictional matters.731

An emerging guidance and statement of general principles for direct judicial communications has been prepared by the Hague Permanent Bureau as a result of the general endorsement of the Special 

Commission, held June 2011, on the 1980 Child Abduction Convention and the 1996 Hague Child Protection Convention. This document 

embodies many of the same principles set forth in the Uniform Child 

Custody Jurisdiction and Enforcement Act relating to judicial communications between state court judges on matters relating to the exercise of child custody jurisdiction. The principles recommended by 

the Permanent Bureau’s Report on Judicial Communications are:

• Every judge engaging in direct judicial communications must respect the law of his or her own jurisdiction. 

 

730. Article 15 of the Convention provides the following: 

The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of 

the Convention, where such a decision or determination may be obtained in that State. 

The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.

Rather than using the procedures under Article 15, it may be more expedient to engage in judicial communication regarding the existence of the type of order envisioned 

by Article 15.

731. In some countries, cases are not assigned to an individual judge until there is 

actually a matter pending. Many countries refer to this as being “seized” with the case. 

If there is no case pending at all in a foreign court, one may be hard pressed to be able 

to effectively communicate with any judge on anything but rudimentary legal principles. 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

180

• When communicating, each judge seized should maintain his or 

her independence in reaching his or her own decision on the 

matter at issue. 

• Communications must not compromise the independence of the 

judge seized in reaching his or her own decision on the matter at 

issue. 

• In Contracting States in which direct judicial communication are 

practiced, the following are commonly accepted procedural safeguards: 

– except in special circumstances, parties are to be notified of 

the nature of the proposed communication; 

– a record is to be kept of communications, and that record is 

to be made available to the parties; 

– conclusions reached should be in writing; 

– parties or their representatives should have the opportunity 

to be present in certain cases, for example via conference call 

facilities.732

In order to facilitate communication between judges in different 

countries, the Hague Permanent Bureau has created a network of 

judges who will assist and advise judges regarding communication

with foreign counterparts. The Permanent Bureau is working on establishing a protocol to facilitate interjudicial communication. Currently 

this network includes more than 65 judges from 45 different nations,

733 including four U.S. network judges designated by the U.S. 

 

732. Hague Conference on Private International Law, Special Commission to 

Review the Operation of the 1980 Hague Convention, Emerging Guidance Regarding 

the Development of the International Hague Network of Judges and General Principles for Judicial Communications, Including Commonly Accepted Safeguards for 

Direct Judicial Communications in Specific Cases, in the Context of the International 

Hague Network of Judges, Preliminary Doc. No. 3D, Dec. 2011.

733. Hague Conference on Private International Law, Conclusions and Recommendations Adopted by the Special Commission on the Practical Operation of the 

1980 and 1996 Hague Conventions, June 2011, p. 8.
VI. Case Management

181

State Department.

734 These judges are available to facilitate contacts 

with foreign judges and to provide logistical information and assistance to judges handling Hague cases.

G. Attorney Fees and Costs

1. Authority for Awards

Article 26 of the Convention provides for an award of attorney fees

and incidental costs to the person who successfully obtains the return 

of a child. It states:

Upon ordering the return of a child or issuing an order concerning 

rights of access under this Convention, the judicial or administrative 

authorities may, where appropriate, direct the person who removed 

or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments 

made for locating the child, the costs of legal representation of the 

applicant, and those of returning the child.735

ICARA implements the attorney fee and costs provision by providing 

that:

Any court ordering the return of a child pursuant to an action 

brought under section 9003 of this title shall order the respondent to 

pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the 

course of proceedings in the action, and transportation costs related 

to the return of the child, unless the respondent establishes that such 

order would be clearly inappropriate.736

Note that ICARA’s provisions relating to fees and costs differ from the 

language contained in Article 26 of the Convention. The Convention 

 

734. The list of judges may be found on the Hague website at http://www.hcch

.net/upload/haguenetwork.pdf. 

735. Convention, supra note 11, Article 26.

736. 22 U.S.C. § 9007(b)(3) (1988). 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

182

makes an award of fees and costs discretionary, but ICARA states that 

the court “shall” make the award. 

Based on ICARA’s language it appears that courts have a mandatory obligation to make a fee award unless the aggrieved party demonstrates that making such an award would be “clearly inappropriate.”737

The burden to demonstrate inappropriateness is allocated to the abducting parent.

738 The purpose of encouraging courts to make this 

award is twofold: first, to place the parties in the same condition they 

were in prior to the wrongful removal or retention of the child; and 

second, to deter future similar conduct.739

In Salazar v. Maimon,

740 the parties reached a settlement that provided father would voluntarily return the child. After entry of the order of return, mother requested an award of fees. Father opposed the 

order on the basis that the parties settled the case, so there was no 

basis for an award. The Fifth Circuit found to the contrary, holding 

[T]he language in section 9007(b)(3) is unambiguous. The statute 

plainly states on its face that “[a]ny court ordering the return of a 

child pursuant to an action brought under section 9003 . . . shall order the respondent to pay necessary expenses.” . . . Nothing in the 

language requires a finding of wrongful removal or retention of a 

child, or an adjudication on the merits, as a prerequisite for an award 

under this provision. Rather, the plain reading of this statute simply 

requires that the action be brought pursuant to section 9003 and that 

the court enter an order directing the return of the child.741

 

737. Salazar v. Maimon, 750 F.3d 514 (5th Cir. 2014).

738. 22 U.S.C. § 9007(b)(3); see also Sealed Appellant v. Sealed Appellee, 394 

F.3d 338, 346 (5th Cir. 2004).

739. See Text & Legal Analysis, supra note 73, at 10,511 (Mar. 26, 1986); 

Roszkowski v. Roszkowska, 274 N.J. Super. 620, 639 (1993), abrogated on other 

grounds, Ivaldi v. Ivaldi, 147 N.J. 190 (1996) (referring to provisions of ICARA relating to fees as a “sanction”).

740. 750 F.3d 514 (5th Cir. 2014).

741. Id. at 518.
VI. Case Management

183

Legal services provided to parents seeking the return of their children are frequently provided on a pro bono or reduced-fee basis. 

Courts may still award fees to the petitioning parent in such cases.742

The provision for reimbursement of fees and costs is not reciprocal—a party that successfully defends against an application for return 

of a child is not entitled to an award of attorney fees or other listed 

costs.743

2. Amount of Awards

Federal courts typically apply the lodestar method of determining the 

amount of attorney fees to be awarded. Under this method, the court 

determines a reasonable hourly rate and multiplies this rate by the 

number of hours reasonably expended.744 After making a lodestar determination, courts may examine whether it is necessary to adjust the 

lodestar figure based on other factors. Those other factors typically745

include the following:

1. the time and labor required

2. the novelty and difficulty of the questions involved

 

742. Cuellar v. Joyce (Cuellar II), 603 F.3d 1142, 1143 (9th Cir. 2010); Larrategui 

v. Laborde, 2014 WL 2154477 (E.D. Cal. 2014); Haimdas v. Haimdas, 720 F. Supp. 2d 

183, 209 (E.D.N.Y. 2010); Saldivar v. Rodela, 894 F. Supp. 2d 916, 927–28 (W.D. 

Tex. 2012) (fees and costs are recoverable if they are incurred “on behalf” of the petitioner, and legal aid entities are not excluded by ICARA). Cf. Mendoza v. Silva, 987 F. 

Supp. 2d 910 (N.D. Iowa 2014) (denying award of fees considering as an “equitable” 

factor that mother’s attorney was provided by legal aid, but allowing portion of prevailing party’s expenses).

743. Cf. Slagenweit v. Slagenweit, 64 F.3d 719 (8th Cir. 1995) (costs of depositions and translations awarded to prevailing party defending against return). 

744. Neves v. Neves, 637 F. Supp. 2d 322, 339 (W.D.N.C. 2009); Distler v. Distler, 26 F. Supp. 2d 723 (D.N.J. 1998); Larrategui v. Laborde, 2014 WL 2154477 (E.D. 

Cal. 2014).

745. See, e.g., Norinder v. Fuentes, 657 F.3d 526, 536 (7th Cir. 2011); Neves, 637 

F. Supp. 2d 322; Ballen v. City of Redmond, 466 F.3d 736, 746 (9th Cir. 2006); Trudrung v. Trudrung, 686 F. Supp. 2d 570 (M.D.N.C. 2010). The twelve factors listed 

above are referred to as the “Johnson” factors. See Johnson v. Georgia Highway Exp. 

Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other grounds, Blanchard v. Bergeron, 

489 U.S. 87 (1989); Reed v. Rhodes, 179 F.3d 453 (6th Cir. 1999).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

184

3. the skill requisite to perform the legal service properly 

4. the preclusion of other employment by the attorney owing to 

acceptance of the case 

5. the customary fee 

6. whether the fee is fixed or contingent 

7. time limitations imposed by the client or the circumstances 

8. the amount involved and the results obtained 

9. the experience, reputation, and ability of the attorneys 

10. the “undesirability” of the case 

11. the nature and length of the professional relationship with the 

client

12. awards in similar cases

ICARA gives courts discretion to reduce or to eliminate746 attorney 

fees and cost awards where such awards would be “clearly inappropriate.”747 In determining what factors may influence the question whether an award is “clearly inappropriate,” courts have looked to some of 

the following factors: the impact on the abducting parent’s ability to 

care for the child,748 a party’s lack of financial resources,749 disparity 

between parties’ financial resources,750 representation by multiple law 

 

746. Mendoza v. Silva, 987 F. Supp. 2d 910 (N.D. Iowa 2014) (considering father’s mistaken but good-faith belief, and award would impair father’s ability to provide support to children); East Sussex Children Servs. v. Morris, 919 F. Supp. 2d 721, 

734 (N.D. W. Va. 2013)

747. Distler v. Distler, 26 F. Supp. 2d 723, 729 (D.N.J. 1998).

748. Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir. 2004); Berendsen v. Nichols, 

938 F. Supp. 737 (D. Kan. 1996). 

749. Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995); Saldivar v. Rodela, 894 F. 

Supp. 2d 916, 942–43). But see Kufner v. Kufner, CIV.A. 07–046 S, 2010 WL 431762, 

at 5 (D.R.I. Feb. 3, 2010) (“To deny any award to Petitioner would undermine the 

dual statutory purposes of Section 9007(b)(3)—restitution and deterrence (both 

general as to the public and specific as to the Respondent)”), and cases cited therein. 

750. In re Polson, 578 F. Supp. 2d 1064 (S.D. Ill. 2008).
VI. Case Management

185

firms,751 unclean hands, and failure to provide adequate financial support for the subject child.752

H. Findings of Fact Required

In Khan v. Fatima,

753 the trial court heard evidence over one day, but 

did not make any findings of fact. The trial court ordered the child 

return to Canada where father lived, and made no findings on mother’s 13(b) defense based on domestic violence. The Seventh Circuit 

reversed, holding that the mandate of Rule 52(a)(1) to find the facts 

and make conclusions of law was not excused in a Hague Convention 

proceeding. A Minnesota state court similarly remanded a case to the 

trial court to make findings of fact explaining its application of the 

Hague Convention.754

In Neergaard-Colón v. Neergaard,

755 the trial court made its decision to return children to Singapore based on the affidavits of the parties, and without an evidentiary hearing. The First Circuit determined 

that although the issue of parental intent was before the court, the 

district court failed to make any finding whether the parties intended 

to abandon their previous habitual residence in the United States. Given that the First Circuit follows the Mozes line of cases requiring an 

analysis of parental intent,756 findings on parental intent are critical to 

the question whether a new habitual residence has been acquired. The 

case was reversed and remanded back to the district court to make 

findings on the issue whether the parties’ previous habitual residence 

had been abandoned.

 

751. Aldinger v. Segler, 338 F. Supp. 2d 296 (D.P.R. 2004).

752. Silverman v. Silverman, 2004 WL 2066778 (D. Minn. 2004) (unreported 

disposition); Aguilera v. De Lara, 2014 WL 4204947 (D. Ariz. 2014) (unreported 

disposition) (denying award of fees, but awarding $790 in out-of-pocket costs).

753. 680 F.3d 781 (7th Cir. 2012).

754. In re Application of Salah, 629 N.W.2d 99, 104 (Minn. Ct. App. 2001).

755. 752 F.3d 526 (1st Cir. 2014). 

756. Darín v. Olivero–Huffman, 746 F.3d 1, 11–13 (1st Cir. 2014).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

186

I. The Manner of Taking Evidence

At the case-management conference, the court can inquire as to how 

the parties intend to present their evidence.757 Some cases can be tried 

by submitting the matter on the parties’ declarations or affidavits.758

Other cases require live testimony or a combination of declarations 

and testimony. In some cases, the petitioning parent or material witnesses may not have the ability to physically attend the trial because of 

the distance and expense of coming to the United States from the foreign country. The respondent, the alleged abducting parent, will almost always be available to appear and testify at the trial, as that parent will likely be within the court’s geographic jurisdiction. For this 

reason, some latitude should be considered in the manner by which 

the petitioning parent is allowed to contradict the oral testimony of 

the parent who is actually before the court.759

 

757. In discussing the issue of delay in handling Hague return cases, the Report of 

the Second Special Commission Meeting noted the following: 

Delay in legal proceedings is a major cause of difficulties in the operation of the Convention. All possible efforts should be made to expedite such proceedings. Courts in a number of countries normally decide on requests for return of a child on the basis only of the 

application and any documents or statements in writing submitted by the parties, without taking oral testimony or requiring the presence of the parties in person. This can 

serve to expedite the disposition of the case. The decision to return the child is not a decision on the merits of custody. 

The American Society of International Law, Report of the Second Special Commission 

Meeting to Review the Operation of the Hague Convention on the Civil Aspects of International Child Abduction, 33 I.L.M. 225, 229–30 (1994).

758. See, e.g., Danaipour v. McLarey (Danaipour II), 386 F.3d 289, 294 (1st Cir. 

2004) (allowing direct testimony provided by affidavit with cross examination); Hanley v. Roy, 485 F.3d 641, 644 (11th Cir. 2007) (district court declined to take testimony and case was submitted on the pleadings, affidavits, and oral argument); 

Wipranik v. Superior Court, 73 Cal. Rptr. 2d 734 (Cal. Ct. App. 1998) (hearing and 

determining case on the parties’ declarations in addition to testimony); Lieberman v. 

Tabachnik, 625 F. Supp. 2d 1109, 1114 (D. Colo. 2008).

759. See Charalambous v. Charalambous, No. 2:10-cv-375, 2010 WL 3613747 

(D. Me. 2010) (scheduling order in unreported disposition); Escobar v. Flores, 183 

Cal. App. 4th 737 (2010) (having petitioner participate in pretrial hearing by telephone). 
VI. Case Management

187

1. Taking Testimony by Telephone

Where no other viable alternatives exist, courts have taken testimony 

via telephone. In Mota v. Castillo,

760 the district court held a two-day 

trial with one party participating and presenting testimony of several 

witnesses by phone. See also Valenzuela v. Michel,

761 where the same 

procedure was employed for both the petitioner and her witnesses.

2. Decisions Based on Affidavits

Some cases are susceptible of disposition without the necessity of an 

evidentiary hearing. In West v. Dobrev,

762 father, while his children 

were visiting him in Utah, requested an emergency custody decree 

from a state court on the heels of the affirmance of a foreign decree 

granting full custody to the mother.763 Mother petitioned in the federal 

district court for return of the children. At a preliminary hearing,

mother presented a prima facie case entitling her to the children’s return. Father’s proffer of evidence consisted only of a letter from a clinical psychologist that recommended investigation of the children’s 

living conditions with mother based on his discussions with the children. Father requested additional time to defend the case so that he 

could develop evidence on whether the children were being abused.

Based on this record, the district court summarily granted the petition 

and ordered the children returned to Belgium. The Tenth Circuit affirmed. Citing to father’s inability to present any evidence that would 

support a viable defense, the court held 

The district court did not err in ordering the return of the children to 

Belgium based upon the pleadings as elucidated by the parties’ arguments at the preliminary hearing. Respondent received a meaning-

 

760. 629 F.3d 108 (2d Cir. 2012).

761. 736 F.3d 1173 (9th Cir. 2013). See also Fed. R. Civ. P. 43(a).

762. 735 F.3d 921 (10th Cir. 2013).

763. Father fully participated in the custody trial and later waived his right to 

appeal.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

188

ful opportunity to be heard. That is all due process requires in the 

context of a Hague Convention petition.764

3. Discovery

The expedited nature of Hague cases necessarily impacts a party’s desire to conduct discovery. Some cases have held that there is no right 

to conduct discovery in a Hague Convention case. In West v. Dobrev,

765

the Tenth Circuit observed that 

[A] district court has a substantial degree of discretion in determining the procedures necessary to resolve a petition filed pursuant to 

the Convention and ICARA. Specifically, neither the Convention nor 

ICARA, nor any other law of which we are aware including the Due 

Process Clause of the Fifth Amendment, requires “that discovery be

allowed or that an evidentiary hearing be conducted” as a matter of 

right in cases arising under the Convention.”766

Where discovery has been permitted, courts have usually noted that 

the discovery is expedited and/or limited in scope.767

4. Whether an Evidentiary Hearing Is Necessary

Many cases are decided after courts hold evidentiary hearings768 and 

many are decided by summary judgment769 or are submitted for deci-

 

764. West, 735 F.3d at 932.

765. 735 F.3d 921 (10th Cir. 2013).

766. Id. at 929 (citing March v. Levine, 249 F.3d 462, 474 (6th Cir. 2001)). 

767. See, e.g., Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012) (limited discovery 

permitted); Danaipour v. McLarey (Danaipour I), 286 F.3d 1 (1st Cir. 2002) (date set 

for completing discovery on a shortened time basis); Raveras v. Morales, 22 F. Supp. 

3d 219 (S.D.N.Y. 2014) (limited discovery); Skolnick v. Wainer, 2013 WL 5329112 

(E.D.N.Y. 2013) (expedited discovery); Headifen v. Harker, 2013 WL 2538897 (unreported disposition) (W.D. Tex. 2013) (same); Walker v. Walker, 2013 WL 1110876 

(unreported disposition) (N.D. Ill. 2013) (limited and expedited discovery); Raijmakers–Eghaghe v. Haro, 131 F. Supp. 2d 953, 957–58 (E.D. Mich. 2001) (ordering limited discovery regarding objection of child to return).

768. See, e.g., Seaman v. Peterson, 766 F.3d 1252 (11th Cir. 2014) (five days); 

Souratgar v. Lee, 720 F.3d 96 (2d Cir. 2013) (nine days); Robert v. Tesson, 507 F.3d 

981 (6th Cir. 2007) (nine days); Charalambous v. Charalambous, 627 F.3d 462 (1st 
VI. Case Management

189

sion on affidavits and documents provided by the parties.770 Although 

there appear to be no hard and fast rules regarding when an evidentiary hearing should be held, courts tend to grant evidentiary hearings 

when genuine issues of material fact exist,771 where experts are required, where the issues are unusually complex, or where credibility 

issues are difficult to determine without live testimony.772

In March v. Levine,

773 the district court granted father’s motion for 

summary judgment and ordered the children returned to father in 

Mexico. The Sixth Circuit affirmed the trial court’s decision granting 

summary judgment. The court noted that parties opposing summary 

judgment must provide affidavits or some other admissible evidence 

that sets out “specific facts showing there is a genuine issue for trial.” 

Citing Anderson v. Liberty Lobby, Inc.,

774 the court stated

To determine whether a factual dispute is genuine the court inquires 

“whether the evidence presents a sufficient disagreement to require 

submission to a jury or whether it is so one-sided that one party 

must prevail as a matter of law.” A mere scintilla of evidence is insufficient. Moreover, the evidence presented must be viewed through 

the prism of the substantive evidentiary burden, i.e., by the prepon-

 

Cir. 2010) (two days); Nixon v. Nixon, 862 F. Supp. 2d 1168 (D.N.M. 2011) (one 

day).

769. Fed. R. Civ. P. 56: “The court shall grant summary judgment if the movant 

shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

770. Charalambous v. Charalambous, 751 F. Supp. 2d 255 (D. Me. 2010); Shalit 

v. Coppe, 182 F.3d 1124 (9th Cir. 1999); Diabo v. Delisle, 500 F. Supp. 2d 159 

(N.D.N.Y. 2007); Menachem v. Frydman-Menachem, 240 F. Supp. 2d 437 (D. Md. 

2003) (summary judgment granted sua sponte); McClary v. McClary 2007 WL 

3023563 (M.D. Tenn. 2007) (unreported disposition). 

771. See In re Tsarbopoulos, 243 F.3d 550 (9th Cir. 2000) (unreported disposition) (holding that the facts of the case precluded summary judgment, thus requiring 

an evidentiary hearing).

772. See, e.g., Khan v. Fatima, 680 F.3d 781, 785 (7th Cir. 2012); but see Klam v. 

Klam, 797 F. Supp. 202 (E.D.N.Y. 1992) (suggesting that ICARA requires a plenary 

hearing). See generally Fed. R. Civ. P. 56.

773. 249 F.3d 462 (6th Cir. 2001).

774. 477 U.S. 242, 106 S. Ct. 2505 (1986).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

190

derance of the evidence or by clear and convincing evidence. The evidence of the non-movant must be believed and all reasonable inferences must be drawn in the non-movants favor.775

The Sixth Circuit found the denial of an evidentiary hearing appropriate because “the treaty has a number of provisions to help ensure that 

return proceedings are handled in such a manner and that return of 

children to their country of habitual residence is likely”: (1) neither 

the Hague Convention nor ICARA requires an evidentiary hearing; 

(2) courts are required to use the most expeditious procedures available; (3) the Hague Convention provides for judicial notice and relaxed 

rules for the authentication of documents; (4) parties have rights to 

inquire as to any delays beyond six weeks; and (5) the treaty allows 

for the return of a child at any time notwithstanding the establishment 

of treaty defenses.776

Similarly, in West v. Dobrev,

777 after inviting the parties to make 

submissions on whether there was a need for an evidentiary hearing, 

the district court made its decision without conducting an evidentiary 

hearing. The Tenth Circuit affirmed the district court’s granting of the 

petition for return, finding that the respondent had received a “meaningful opportunity to be heard.”778

In Van De Sande v. Van De Sande,

779 the Seventh Circuit remanded 

the case to the district court to conduct an evidentiary hearing on is-

 

775. Id. at 255 (internal citations omitted).

776. March, 249 F.3d at 474–75. 

777. 735 F.3d 921 (10th Cir. 2013).

778. Id. at 932. See also Stevens v. Stevens, 499 F. Supp. 2d 891 (E.D. Mich. 

2007) (no evidentiary hearing conducted, and reconsideration denied, with the court 

noting that the request for an evidentiary hearing failed to specify what evidence 

would be produced that was not already in the existing record); Menachem v. Frydman-Menachem, 240 F. Supp. 2d 437, 444 (D. Md. 2003) (father had requested a full 

evidentiary hearing but court determined that parties had an adequate opportunity to 

provide affidavits and supporting documentation to present their cases and that an 

evidentiary hearing would simply be repetitive of the evidence already in the record). 

Accord Salazar v. Maimon, 750 F.3d 514 (5th Cir. 2014) (request for evidentiary hearing on issue of attorney fees).

779. 431 F.3d 567 (7th Cir. 2005). 
VI. Case Management

191

sues of “grave risk” and the adequacy of petitioner’s proposed conditions for return. In Van De Sande, the district court reviewed the affidavits of the parties and issued a summary judgment granting father’s 

petition for return of two children to Belgium. Mother presented six 

affidavits attesting to the existence of serious domestic violence in the 

presence of the children, and on occasion, directed at the children.

Mother’s affidavits alleged that father threatened to kill both herself 

and the children. The Seventh Circuit reversed, finding that content of 

mother’s affidavits was sufficient to constitute clear and convincing 

evidence of a grave risk of harm to the children. As such, the court 

ruled that an evidentiary hearing was necessary to determine those 

issues.

193

VI. Case Management

Effective case management of Hague Convention cases can significantly facilitate the adjudication of these time-sensitive matters.780 As soon 

as a court determines that a Hague Convention return case has been 

filed or assigned, it should consider pretrial conferences and scheduling issues,

781 including setting a timetable for discovery782 and motions, trial on an expedited basis, and other pretrial considerations.

783

A. Preventing Further Removal or Concealment of the 

Child

As soon as possible, the court should address the issue of ensuring 

that the child is safe and not in danger of being reabducted. ICARA

vests courts with the power to use provisional remedies available under state or federal law to secure the child.784 These potential remedies 

are discussed below. The circumstances of the abduction should be 

considered as well as any history of threats of concealment or abduction.

 

780. See, e.g., Glagola v. Glagola, No. 03-10106-BC, 2003 WL 22992591 (E.D. 

Mich. 2003) (unreported disposition); Pesin v. Rodriguez, 244 F.3d 1250 (11th Cir. 

2001). 

781. See Fed. R. Civ. P. 16. Different courts and jurisdictions use different labels 

for these conferences, such as pretrial conferences, status conferences, or casemanagement conferences.

782. See discussion regarding discovery issues, supra page 188. 

783. See Charalambous v. Charalambous, No. 2:10-cv-375, 2010 WL 3613747 

(D. Me. 2010) (unreported disposition) (covering numerous issues by conference and 

scheduling order).

784. 22 U.S.C. § 9004(a) (1988) provides: “In furtherance of the objectives of 

article 7(b) and other provisions of the Convention, and subject to the provisions of 

subsection (b) of this section, any court exercising jurisdiction of an action brought 

under section 9003(b) of this title may take or cause to be taken measures under 

Federal or State law, as appropriate, to protect the well-being of the child involved or 

to prevent the child’s further removal or concealment before the final disposition of 

the petition.” 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

194

1. State Laws Regarding Removal of Child from Home Without 

Notice

ICARA provides that a child may not be provisionally removed from a 

person having physical control of the child “unless the applicable requirements of State law are satisfied.”

785 This is the only situation in a 

Hague Convention case where state law governs procedures used in 

federal courts. Where a court is asked to issue an order removing a 

child from a parent who has physical custody of the child pending a 

hearing on the Hague application, the court must abide by the relevant 

state laws that would govern removal of the child in a state action. 

In Application of McCullough on Behalf of McCullough,

786 mother 

abducted children from Canada and took them to Pennsylvania. This 

abduction was in furtherance of mother’s plan to bring the children to 

Petra, Jordan, in anticipation of the Apocalypse. Mother explained, 

citing her religious beliefs, that she and the children would be safe 

there. The court granted father’s ex parte application for a warrant of 

arrest of the children and an order to transfer the children to father’s 

custody. The court had jurisdiction under Pennsylvania law to enter 

the orders and noted its authority to issue a temporary restraining 

order under the provisions of Federal Rule of Civil Procedure 65. The 

court held that the requirements for issuing a temporary restraining 

order had been met:

• a reasonable probability of eventual success in the litigation;

• evidence of irreparable injury;

 

785. 22 U.S.C. § 9004(b) (1988); see also Klam v. Klam, 797 F. Supp. 202 

(E.D.N.Y. 1992) (denying issuance of a warrant of arrest for the children based on 

insufficiency of evidence that the children were in danger of removal); Hazbun Escaf 

v. Rodriquez, 191 F. Supp. 2d 685 (E.D. Va. 2002); Casulli v. Falcone, No. Civ. 02-

123-M, 2002 WL 479855 (D.N.H. 2002) (unreported disposition).

786. 4 F. Supp. 2d 411 (W.D. Pa. 1998).
VI. Case Management

195

and when relevant,

• the possibility of harm to other disinterested persons; and

• consideration of the public interest.

787

2. Foster Care

In cases where there is a showing that the child is in danger of being 

concealed or re-abducted and no other suitable arrangements can be 

made, it may be necessary to place the child temporarily in foster care

or the care of a third party.788 In Velez v. Mitsak,

789 each parent alleged 

that the other constituted a flight risk should the child be placed with 

the other parent during the pendency of the Hague petition. As a result, the child was placed in temporary foster care by the court pending a hearing on the merits of the case.

In Sanchez v. R.G.L.,

790 three Mexican children were abducted by 

their aunt from Ciudad Juarez, Mexico, to El Paso, Texas. When the 

aunt attempted to return the children to their mother by bringing

them to the Texas–Mexican border, the children voiced objections to 

return to officials from Homeland Security. Homeland Security transferred the children to the Office of Refugee Resettlement (ORR), and 

in turn ORR placed the children with a foster placement agency, pending hearing on mother’s application for return of the children. 

3. Bonds

A court may not impose a bond obligation upon a party to guarantee 

the payment of costs and expenses of the proceeding. Article 22 states 

that: 

 

787. Id. at 415 (citing Acierno v. New Castle Cnty., 40 F.3d 645, 653 (3d Cir. 

1994) (citations omitted)).

788. See, e.g., Lops v. Lops, 140 F.3d 927 (11th Cir. 1998); David S. v. Zamira S., 

574 N.Y.S.2d 429, 151 Misc. 2d 630 (Fam. Ct. 1991); Velez v. Mitsak, 89 S.W.3d 73 

(Tex. App. 2002).

789. Velez, 89 S.W.3d 73.

790. 743 F.3d 945 (5th Cir 2014).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

196

No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of 

this Convention.

In Patrick v. Rivera-Lopez,

791 the court vacated the district court’s order 

requiring a (1) “non-resident” bond, and (2) a guarantee that the petitioner would be able to respond for damages in the event that he did 

not prevail in his Hague application. In doing so, the First Circuit

noted the existence of cases wherein bonds were ordered posted,792 but 

further observed that none of those cases questioned whether it was 

within the court’s power to require such a bond.

It is yet to be determined whether a bond that is required to deter 

subsequent concealment or reabduction of the children falls within the 

proscriptive language of Article 22. Despite the language of Article 22, 

some courts have required, or considered, the posting of bonds to 

ensure that children are not spirited away from the jurisdiction of the 

court.793 The purpose bond is to provide some measure of insurance to 

a left-behind parent that if the child is reabducted pending the proceedings, sufficient resources will be available to fund efforts to locate 

and file new litigation. For example, in Lops v. Lops,

794 the South Carolina state court allowed the abducted children to be placed in the cus-

 

791. 708 F.3d 15 (1st Cir. 2013).

792. Whiting v. Krassner, 391 F.3d 540 (3d Cir. 2004); Bekier v. Bekier, 248 F.3d 

1051 (11th Cir. 2001); Lops v. Lops, 140 F.3d 927 (11th Cir. 1998).

793. See Greene v. Greene, C.A. 89-392-II, 1990 WL 56197 (Tenn. Ct. App. 

1990); David S. v. Zamira S., 151 Misc. 2d 630, 574 N.Y.S.2d 429 (1991). Most cases 

that discuss the posting of bonds relate to custody matters where it is envisioned that 

there is either a risk of abduction or that once a child has lawfully been taken to another country for visitation, that the child will not be returned. Bonds are required in 

these cases as a measure to provide the left-behind parent with the ability to fund the 

expenses necessary to reacquire the child. See, e.g., In re Marriage of Saheb and 

Khazal, 880 N.E.2d 537, 546–49, 377 Ill. App. 3d 615, 627–29 (App. Ct. 2007); Samman v. Steber, No. 1577-04-4, 2005 WL 588313 (Va. Ct. App. 2005).

794. 140 F.3d 927 (11th Cir. 1998).
VI. Case Management

197

tody of the paternal grandmother subject to an “adequate security 

bond.”

795

4. Deposit Passports

In order to deter any threat of reabduction to another country, many 

courts have required that the parties deposit their passports and the 

passports of the children with the court or other agency.

796 This measure is one of the least invasive available and provides an effective 

method of securing the child in most cases involving U.S. citizens.

797

However, it is less effective for those who hold passports from other 

nations because of the ability of a foreign national to request the reissuance of a passport from local embassies or consulates.

B. Establishing Timelines

Given that there is an expectation that a case for return will be dealt 

with in a six-week period, the court has the obligation to manage the 

case consistent with that timeline. Many cases, if not most, are susceptible of disposition within this time frame. There will be, however, 

cases where complex issues of law or fact arise that require additional 

time to resolve. Even if complex issues arise, the case nevertheless 

must be expedited. Time frames for discovery, the submission of 

briefs, and other processes should be shortened, enabling efficient and 

expedited preparation for trial.

 

795. Id. at 948.

796. See, e.g., Neves v. Neves, 637 F. Supp. 2d 322 (W.D.N.C. 2009); Kufner v. 

Kufner, 480 F. Supp. 2d 491 (D.R.I. 2007); Axford v. Axford, No. 09-2914, 2009 WL 

2030755 (E.D. Pa. 2009) (unreported disposition).

797. The U.S. State Department operates the Children’s Passport Issuance Alert 

Program, which allows parents to register the names of their children who are U.S. 

citizens, so that they can be informed if an application for a passport for that child has 

been made. As a practical matter, this is a stopgap measure only in situations where a 

court is holding the child’s passport and a parent or other person makes application 

for issuance of another passport for the child.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

198

C. Legal Representation

When ratifying the Convention, the United States made a reservation 

concerning the provisions in Article 26 relating to funding legal representation for the applicant or petitioner.798 ICARA makes no provisions for funding court-appointed counsel. The parties are responsible 

for their own legal representation. The court should inquire, if it is not 

apparent, whether the parties intend to seek representation and, if so, 

how much time will be needed to secure counsel. 

As Central Authority for the United States, the U.S. State Department assists applicants seeking the return of their children with identifying experienced counsel. Counsel may be available on a pro bono, 

reduced-fee, or full-fee basis.799 The U.S. State Department utilizes 

federal poverty guidelines in assessing whether a person qualifies for 

pro bono or reduced-fee representation.

800 Once a person qualifies, the 

U.S. State Department will attempt to find attorneys from the geographic area involved. The names of counsel willing to take the case 

will be sent to the prospective client. This service is available only to 

those seeking the return of their children; it is not available to those 

resisting return.

Under some circumstances, courts will appoint an attorney pro 

bono to represent the parent who allegedly abducted the children.801

 

798. The second paragraph of Article 26 provides that “[A] Contracting State 

may, by making a reservation in accordance with Article 42, declare that it shall not be 

bound to assume any costs referred to in the preceding paragraph resulting from the 

participation of legal counsel or advisers or from court proceedings, except insofar as 

those costs may be covered by its system of legal aid and advice.” 

799. As a result of taking the reservation described in note 798 above, the U.S. 

government does not provide any funds for the payment or reimbursement of legal 

costs incurred by the parties.

800. The 2009 Federal Poverty Guidelines for a family of four persons is $27,563. 

This guideline is published by the Legal Services Corporation, 45 C.F.R. § 1611. Qualification for reduced-fee representation is $44,100 for a family of four. 

801. See, e.g., Krefter v. Wills, 623 F. Supp. 2d 125, 127 n.1 (D. Mass. 2009);

Lieberman v. Tabachnik, 625 F. Supp. 2d 1109 (D. Colo. 2008); Laguna v. Avila, No. 

07-CV-5136 (ENV), 2008 WL 1986253 (E.D.N.Y. 2008) (unreported disposition).
VI. Case Management

199

Courts have also appointed counsel for children who are the subject of 

the action.802

D. Narrowing the Issues for Trial

As with any litigation, one of the benefits of conducting a pretrial casemanagement conference is the opportunity to narrow the issues for 

trial. In many cases, the standard form submitted to the Central Authorities to begin a case will accompany the petitioner’s moving papers 

for return of the child. This form sets forth the facts surrounding the 

alleged abduction, providing the court with notice of the issues likely 

to be raised.803 If an agreement among the parties can be reached concerning the facts of the case or issues deemed established, a more 

streamlined trial plan can be developed,

804

saving time by focusing on 

the issues in contention.

E. Mediation

It is possible for the parties to participate in mediation after a petition 

for return has been filed.805 A court may properly inquire at a pretrial 

 

802. See, e.g., Wasniewski v. Grzelak-Johannsen, 549 F. Supp. 2d 965 (N.D. Ohio 

2008); Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008) (appointing counsel as guardian 

ad litem and attorney for the children under the authority of Federal Rule of Civil 

Procedure 17(c)).

803. These forms are not required when a petitioner files a case directly with the 

court. When the petitioner has started the proceedings by contacting the Central 

Authority in the habitual residence or in the requested state, this form will be used.

804. See, e.g., Baran v. Beaty, 526 F.3d 1340, 1342 (11th Cir. 2008) (finding 

mother conceded that the child was wrongfully removed from his habitual residence); 

Walsh v. Walsh, 221 F.3d 204, 216 (1st Cir. 2000), cert. denied, 531 U.S. 1159 (2001) 

(finding mother conceded Ireland was the child’s habitual residence); Currier v. Currier, 845 F. Supp. 916 (D.N.H. 1994) (abducting parent conceding that Germany was 

the child’s habitual residence). 

805. Gatica v. Martinez, 2011 WL 2110291 (S.D. Fla. 2011) (unreported disposition) (court referred parties to mediation); Krefter v. Wills, 623 F. Supp. 2d 125 (D. 

Mass. 2009) (mediation held before a magistrate judge); Philippopoulos v. Philippopoulou, 461 F. Supp. 2d 1321 (N.D. Ga. 2006) (mediation conducted pending the 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

200

or case-management conference whether the parties had considered 

mediation and whether they would be amenable to mediation. Mediation in the context of a pending Hague case can be challenging, owing

to the high levels of anxiety of the parties, the necessity of dealing 

with differing legal systems, and the potential impact of different languages and cultural values. Some cases will be inappropriate for mediation because of the existence of domestic violence or because of an 

imbalance of power in the relationship between the parties. As an initial step, courts considering mediation might refer the parties to an 

experienced mediator for the purpose of determining whether mediation is appropriate.

It is essential that a court not permit a significant delay to occur 

because of attempts to mediate. Any delay in the litigation process 

inures to the benefit of the taking parent, as the passage of time increases the difficulty of restoring the relationship between the child 

and the left-behind parent.806 In addition, a party resisting the return 

of a child may allow the taking parent to manipulate the other party 

by feigning good faith in the mediation process, only to resist an eventual agreement, or to fail to comply with the agreement.807

In the event a mediated agreement is reached, it is recommended 

that the agreement be structured in such a manner as to be enforceable 

in both U.S. courts and the courts of the other country.

 

filing of a petition for return of the child); Blondin v. Dubois, 78 F. Supp. 2d 283 

(S.D.N.Y. 2000) (court appointed a mediator to assist parties in working out their 

custody dispute).

806. Hague Conference on Private International Law, Preliminary Document, Draft 

Guide to Good Practice, Part V—Mediation, May 2011.

807. See, e.g., Van de Sande v. Van de Sande, 2008 WL 239150 (N.D. Ill. 2008) 

(unreported disposition) (father engaged in protracted mediation negotiations, and 

eventually breached an interim mediated agreement to return the children to the 

United States).
201

Appendix A: Text of the 1980 Convention

28. Convention on the Civil Aspects of International

Child Abduction

(Concluded 25 October 1980)

The States signatory to the present Convention, 

Firmly convinced that the interests of children are of paramount importance in matters relating to their custody, 

Desiring to protect children internationally from the harmful effects of 

their wrongful removal or retention and to establish procedures to 

ensure their prompt return to the State of their habitual residence, as 

well as to secure protection for rights of access, 

Have resolved to conclude a Convention to this effect, and have agreed 

upon the following provisions –

CHAPTER I – SCOPE OF THE CONVENTION

Article 1

The objects of the present Convention are –

a) to secure the prompt return of children wrongfully removed to 

or retained in any Contracting State; and 

b) to ensure that rights of custody and of access under the law of 

one Contracting State are effectively respected in the other 

Contracting States.

Article 2

Contracting States shall take all appropriate measures to secure within 

their territories the implementation of the objects of the Convention. 

For this purpose they shall use the most expeditious procedures available.

Article 3

The removal or the retention of a child is to be considered wrongful 

where –
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

202

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the 

law of the State in which the child was habitually resident immediately before the removal or retention; and

b) at the time of removal or retention those rights were actually 

exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise 

in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under 

the law of that State.

Article 4

The Convention shall apply to any child who was habitually resident 

in a Contracting State immediately before any breach of custody or 

access rights. The Convention shall cease to apply when the child attains the age of 16 years.

Article 5

For the purposes of this Convention –

a) “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;

b) “rights of access” shall include the right to take a child for a 

limited period of time to a place other than the child’s habitual 

residence.

CHAPTER II – CENTRAL AUTHORITIES

Article 6

A Contracting State shall designate a Central Authority to discharge 

the duties which are imposed by the Convention upon such authorities. 

Federal States, States with more than one system of law or States having autonomous territorial organisations shall be free to appoint more 

than one Central Authority and to specify the territorial extent of their 
Appendix A: Text of the 1980 Convention

203

powers. Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which applications may 

be addressed for transmission to the appropriate Central Authority 

within that State.

Article 7

Central Authorities shall co-operate with each other and promote cooperation amongst the competent authorities in their respective States 

to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any 

intermediary, they shall take all appropriate measures –

a) to discover the whereabouts of a child who has been wrongfully removed or retained; 

b) to prevent further harm to the child or prejudice to interested 

parties by taking or causing to betaken provisional measures; 

c) to secure the voluntary return of the child or to bring about an 

amicable resolution of the issues; 

d) to exchange, where desirable, information relating to the social 

background of the child;

e) to provide information of a general character as to the law of 

their State in connection with the application of the Convention; 

f) to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the 

child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access; 

g) where the circumstances so require, to provide or facilitate the 

provision of legal aid and advice, including the participation of 

legal counsel and advisers; 

h) to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; 

i) to keep each other informed with respect to the operation of 

this Convention and, as far as possible, to eliminate any obstacles to its application. 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

204

CHAPTER III – RETURN OF CHILDREN

Article 8

Any person, institution or other body claiming that a child has been 

removed or retained in breach of custody rights may apply either to 

the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing 

the return of the child. The application shall contain –

a) information concerning the identity of the applicant, of the 

child and of the person alleged to have removed or retained 

the child;

b) where available, the date of birth of the child; 

c) the grounds on which the applicant's claim for return of the 

child is based; 

d) all available information relating to the whereabouts of the 

child and the identity of the person with whom the child is 

presumed to be.

The application may be accompanied or supplemented by –

e) an authenticated copy of any relevant decision or agreement; 

f) a certificate or an affidavit emanating from a Central Authority, or other competent authority of the State of the child’s habitual residence, or from a qualified person, concerning the 

relevant law of that State; 

g) any other relevant document.

Article 9

If the Central Authority which receives an application referred to in 

Article 8 has reason to believe that the child is in another Contracting 

State, it shall directly and without delay transmit the application to the 

Central Authority of that Contracting State and inform the requesting 

Central Authority, or the applicant, as the case may be.
Appendix A: Text of the 1980 Convention

205

Article 10

The Central Authority of the State where the child is shall take or 

cause to be taken all appropriate measures in order to obtain the voluntary return of the child.

Article 11

The judicial or administrative authorities of Contracting States shall 

act expeditiously in proceedings for the return of children. 

If the judicial or administrative authority concerned has not reached a 

decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, 

on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for 

the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be.

Article 12

Where a child has been wrongfully removed or retained in terms of 

Article 3 and, at the date of the commencement of the proceedings 

before the judicial or administrative authority of the Contracting State 

where the child is, a period of less than one year has elapsed from the 

date of the wrongful removal or retention, the authority concerned 

shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings 

have been commenced after the expiration of the period of one year 

referred to in the preceding paragraph, shall also order the return of 

the child, unless it is demonstrated that the child is now settled in its 

new environment. 

Where the judicial or administrative authority in the requested State 

has reason to believe that the child has been taken to another State, it 

may stay the proceedings or dismiss the application for the return of 

the child.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

206

Article 13

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 

which 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, or had consented to 

or subsequently acquiesced in the removal or retention; or 

b) there is a grave risk that his or her return would expose the 

child to physical or psychological harm or otherwise place the 

child in an intolerable situation.

The judicial or administrative authority may also refuse to order the 

return of the child if it finds that the child objects to being returned 

and has attained an age and degree of maturity at which it is appropriate to take account of its views. 

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the 

Central Authority or other competent authority of the child’s habitual 

residence.

Article 14

In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative 

authorities of the requested State may take notice directly of the law 

of, and of judicial or administrative decisions, formally recognised or 

not in the State of the habitual residence of the child, without recourse 

to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.

Article 15

The judicial or administrative authorities of a Contracting State may, 

prior to the making of an order for the return of the child, request that 

the applicant obtain from the authorities of the State of the habitual 
Appendix A: Text of the 1980 Convention

207

residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of 

the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States 

shall so far as practicable assist applicants to obtain such a decision or 

determination.

Article 16

After receiving notice of a wrongful removal or retention of a child in 

the sense of Article 3, the judicial or administrative authorities of the 

Contracting State to which the child has been removed or in which it 

has been retained shall not decide on the merits of rights of custody 

until it has been determined that the child is not to be returned under 

this Convention or unless an application under this Convention is not 

lodged within a reasonable time following receipt of the notice.

Article 17

The sole fact that a decision relating to custody has been given in or is 

entitled to recognition in the requested State shall not be a ground for 

refusing to return a child under this Convention, but the judicial or 

administrative authorities of the requested State may take account of 

the reasons for that decision in applying this Convention.

Article 18

The provisions of this Chapter do not limit the power of a judicial or 

administrative authority to order the return of the child at any time.

Article 19

A decision under this Convention concerning the return of the child 

shall not be taken to be a determination on the merits of any custody 

issue.

Article 20

The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of 

the requested State relating to the protection of human rights and fundamental freedoms.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

208

CHAPTER IV – RIGHTS OF ACCESS

Article 21

An application to make arrangements for organising or securing the 

effective exercise of rights of access may be presented to the Central 

Authorities of the Contracting States in the same way as an application 

for the return of a child. 

The Central Authorities are bound by the obligations of co-operation 

which are set forth in Article 7 to promote the peaceful enjoyment of 

access rights and the fulfillment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take 

steps to remove, as far as possible, all obstacles to the exercise of such 

rights.

The Central Authorities, either directly or through intermediaries, 

may initiate or assist in the institution of proceedings with a view to 

organising or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.

CHAPTER V – GENERAL PROVISIONS

Article 22

No security, bond or deposit, however described, shall be required to 

guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of this Convention.

Article 23

No legalisation or similar formality may be required in the context of 

this Convention.

Article 24

Any application, communication or other document sent to the Central Authority of the requested State shall be in the original language, 

and shall be accompanied by a translation into the official language or 

one of the official languages of the requested State or, where that is not 

feasible, a translation into French or English.

However, a Contracting State may, by making a reservation in accordance with Article 42, object to the use of either French or English, but 
Appendix A: Text of the 1980 Convention

209

not both, in any application, communication or other document sent 

to its Central Authority.

Article 25

Nationals of the Contracting States and persons who are habitually 

resident within those States shall be entitled in matters concerned with 

the application of this Convention to legal aid and advice in any other 

Contracting State on the same conditions as if they themselves were 

nationals of and habitually resident in that State.

Article 26

Each Central Authority shall bear its own costs in applying this Convention. 

Central Authorities and other public services of Contracting States 

shall not impose any charges in relation to applications submitted 

under this Convention. In particular, they may not require any payment from the applicant towards the costs and expenses of the proceedings or, where applicable, those arising from the participation of 

legal counsel or advisers. However, they may require the payment of 

the expenses incurred or to be incurred in implementing the return of 

the child. However, a Contracting State may, by making a reservation 

in accordance with Article 42, declare that it shall not be bound to 

assume any costs referred to in the preceding paragraph resulting from 

the participation of legal counsel or advisers or from court proceedings, except insofar as those costs may be covered by its system of 

legal aid and advice. 

Upon ordering the return of a child or issuing an order concerning 

rights of access under this Convention, the judicial or administrative 

authorities may, where appropriate, direct the person who removed or 

retained the child, or who prevented the exercise of rights of access, to 

pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and 

those of returning the child.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

210

Article 27

When it is manifest that the requirements of this Convention are not 

fulfilled or that the application is otherwise not well founded, a Central Authority is not bound to accept the application. In that case, the 

Central Authority shall forthwith inform the applicant or the Central 

Authority through which the application was submitted, as the case

may be, of its reasons.

Article 28

A Central Authority may require that the application be accompanied 

by a written authorisation empowering it to act on behalf of the applicant, or to designate a representative so to act.

Article 29

This Convention shall not preclude any person, institution or body 

who claims that there has been a breach of custody or access rights 

within the meaning of Article 3 or 21 from applying directly to the 

judicial or administrative authorities of a Contracting State, whether 

or not under the provisions of this Convention.

Article 30

Any application submitted to the Central Authorities or directly to the 

judicial or administrative authorities of a Contracting State in accordance with the terms of this Convention, together with documents and 

any other information appended thereto or provided by a Central Authority, shall be admissible in the courts or administrative authorities 

of the Contracting States.

Article 31

In relation to a State which in matters of custody of children has two 

or more systems of law applicable in different territorial units –

a) any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit of 

that State;

b) any reference to the law of the State of habitual residence shall 

be construed as referring to the law of the territorial unit in 

that State where the child habitually resides.
Appendix A: Text of the 1980 Convention

211

Article 32

In relation to a State which in matters of custody of children has two 

or more systems of law applicable to different categories of persons, 

any reference to the law of that State shall be construed as referring to 

the legal system specified by the law of that State.

Article 33

A State within which different territorial units have their own rules of 

law in respect of custody of children shall not be bound to apply this 

Convention where a State with a unified system of law would not be 

bound to do so.

Article 34

This Convention shall take priority in matters within its scope over 

the Convention of 5 October 1961 concerning the powers of authorities 

and the law applicable in respect of the protection of minors, as between 

Parties to both Conventions. Otherwise the present Convention shall 

not restrict the application of an international instrument in force 

between the State of origin and the State addressed or other law of the 

State addressed for the purposes of obtaining the return of a child who 

has been wrongfully removed or retained or of organising access 

rights.

Article 35

This Convention shall apply as between Contracting States only to 

wrongful removals or retentions occurring after its entry into force in 

those States. 

Where a declaration has been made under Article 39 or 40, the reference in the preceding paragraph to a Contracting State shall be taken 

to refer to the territorial unit or units in relation to which this Convention applies.

Article 36

Nothing in this Convention shall prevent two or more Contracting 

States, in order to limit the restrictions to which the return of the child 

may be subject, from agreeing among themselves to derogate from any 

provisions of this Convention which may imply such a restriction.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

212

CHAPTER VI – FINAL CLAUSES

Article 37

The Convention shall be open for signature by the States which were 

Members of the Hague Conference on Private International Law at the 

time of its Fourteenth Session. It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval 

shall be deposited with the Ministry of Foreign Affairs of the Kingdom 

of the Netherlands.

Article 38

Any other State may accede to the Convention. The instrument of 

accession shall be deposited with the Ministry of Foreign Affairs of the 

Kingdom of the Netherlands. 

The Convention shall enter into force for a State acceding to it on the 

first day of the third calendar month after the deposit of its instrument 

of accession.

The accession will have effect only as regards the relations between 

the acceding State and such Contracting States as will have declared 

their acceptance of the accession. Such a declaration will also have to 

be made by any Member State ratifying, accepting or approving the 

Convention after an accession. Such declaration shall be deposited at 

the Ministry of Foreign Affairs of the Kingdom of the Netherlands; this 

Ministry shall forward, through diplomatic channels, a certified copy 

to each of the Contracting States.

The Convention will enter into force as between the acceding State 

and the State that has declared its acceptance of the accession on the 

first day of the third calendar month after the deposit of the declaration of acceptance.

Article 39

Any State may, at the time of signature, ratification, acceptance, approval or accession, declare that the Convention shall extend to all the 

territories for the international relations of which it is responsible, or 

to one or more of them. Such a declaration shall take effect at the time 

the Convention enters into force for that State.
Appendix A: Text of the 1980 Convention

213

Such declaration, as well as any subsequent extension, shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

Article 40

If a Contracting State has two or more territorial units in which different systems of law are applicable in relation to matters dealt with in 

this Convention, it may at the time of signature, ratification, acceptance, approval or accession declare that this Convention shall 

extend to all its territorial units or only to one or more of them and 

may modify this declaration by submitting another declaration at any 

time.

Any such declaration shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands and shall state expressly the 

territorial units to which the Convention applies.

Article 41

Where a Contracting State has a system of government under which 

executive, judicial and legislative powers are distributed between central and other authorities within that State, its signature or ratification, 

acceptance or approval of, or accession to this Convention, or its making of any declaration in terms of Article 40 shall carry no implication 

as to the internal distribution of powers within that State.

Article 42

Any State may, not later than the time of ratification, acceptance, approval or accession, or at the time of making a declaration in terms of 

Article 39 or 40, make one or both of the reservations provided for in 

Article 24 and Article 26, third paragraph. No other reservation shall 

be permitted. Any State may at any time withdraw a reservation it has 

made. The withdrawal shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands.

The reservation shall cease to have effect on the first day of the third 

calendar month after the notification referred to in the preceding paragraph.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

214

Article 43

The Convention shall enter into force on the first day of the third calendar month after the deposit of the third instrument of ratification, 

acceptance, approval or accession referred to in Articles 37 and 38.

Thereafter the Convention shall enter into force –

1) for each State ratifying, accepting, approving or acceding to it 

subsequently, on the first day of the third calendar month after 

the deposit of its instrument of ratification, acceptance, approval or accession; 

2) for any territory or territorial unit to which the Convention 

has been extended in conformity with Article 39 or 40, on the 

first day of the third calendar month after the notification referred to in that Article.

Article 44

The Convention shall remain in force for five years from the date of its 

entry into force in accordance with the first paragraph of Article 43 

even for States which subsequently have ratified, accepted, approved it 

or acceded to it. 

If there has been no denunciation, it shall be renewed tacitly every five 

years.

Any denunciation shall be notified to the Ministry of Foreign Affairs of 

the Kingdom of the Netherlands at least six months before the expiry 

of the five year period. It may be limited to certain of the territories or 

territorial units to which the Convention applies.

The denunciation shall have effect only as regards the State which has 

notified it. The Convention shall remain in force for the other Contracting States.

Article 45

The Ministry of Foreign Affairs of the Kingdom of the Netherlands 

shall notify the States Members of the Conference, and the States 

which have acceded in accordance with Article 38, of the following –

1) the signatures and ratifications, acceptances and approvals referred to in Article 37; 
Appendix A: Text of the 1980 Convention

215

2) the accessions referred to in Article 38;

3) the date on which the Convention enters into force in accordance with Article 43; 

4) the extensions referred to in Article 39; 

5) the declarations referred to in Articles 38 and 40; 

6) the reservations referred to in Article 24 and Article 26, third 

paragraph, and the withdrawals referred to in Article 42; 

7) the denunciations referred to in Article 44.

In witness whereof the undersigned, being duly authorised thereto, 

have signed this Convention.

Done at The Hague, on the 25th day of October, 1980, in the English 

and French languages, both texts being equally authentic, in a single 

copy which shall be deposited in the archives of the Government of 

the Kingdom of the Netherlands, and of which a certified copy shall be 

sent, through diplomatic channels, to each of the States Members of 

the Hague Conference on Private International Law at the date of its 

Fourteenth Session.

217

Appendix B: International Child 

Abduction Remedies Act

22 U.S.C. §§ 9001–9011

§ 9001. Findings and Declarations

(a) Findings

The Congress makes the following findings:

(1) The international abduction or wrongful retention of children is 

harmful to their well-being.

(2) Persons should not be permitted to obtain custody of children by 

virtue of their wrongful removal or retention.

(3) International abductions and retentions of children are increasing, 

and only concerted cooperation pursuant to an international 

agreement can effectively combat this problem.

(4) The Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980, establishes legal 

rights and procedures for the prompt return of children who have 

been wrongfully removed or retained, as well as for securing the 

exercise of visitation rights. Children who are wrongfully removed 

or retained within the meaning of the Convention are to be 

promptly returned unless one of the narrow exceptions set forth in 

the Convention applies. The Convention provides a sound treaty 

framework to help resolve the problem of international abduction 

and retention of children and will deter such wrongful removals 

and retentions.

(b) Declarations

The Congress makes the following declarations:

(1) It is the purpose of this chapter to establish procedures for the 

implementation of the Convention in the United States.

(2) The provisions of this chapter are in addition to and not in lieu of 

the provisions of the Convention.

(3) In enacting this chapter the Congress recognizes—
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

218

(A) the international character of the Convention; and

(B) the need for uniform international interpretation of the Convention.

(4) The Convention and this chapter empower courts in the United 

States to determine only rights under the Convention and not the 

merits of any underlying child custody claims.

§ 9002. Definitions

For the purposes of this chapter—

(1) the term “applicant” means any person who, pursuant to the Convention, files an application with the United States Central Authority or a Central Authority of any other party to the Convention for the return of a child alleged to have been wrongfully removed or retained or for arrangements for organizing or securing 

the effective exercise of rights of access pursuant to the Convention;

(2) the term “Convention” means the Convention on the Civil Aspects 

of International Child Abduction, done at The Hague on October 

25, 1980;

(3) the term “Parent Locator Service” means the service established by 

the Secretary of Health and Human Services under section 653 of 

this title;

(4) the term “petitioner” means any person who, in accordance with 

this chapter, files a petition in court seeking relief under the Convention;

(5) the term “person” includes any individual, institution, or other 

legal entity or body;

(6) the term “respondent” means any person against whose interests a 

petition is filed in court, in accordance with this chapter, which 

seeks relief under the Convention;

(7) the term “rights of access” means visitation rights;
Appendix B: International Child Abduction Remedies Act

219

(8) the term “State” means any of the several States, the District of 

Columbia, and any commonwealth, territory, or possession of the 

United States; and

(9) the term “United States Central Authority” means the agency of 

the Federal Government designated by the President under section 

9006(a) of this title.

§ 9003. Judicial Remedies

(a) Jurisdiction of courts

The courts of the States and the United States district courts shall have 

concurrent original jurisdiction of actions arising under the Convention.

(b) Petitions

Any person seeking to initiate judicial proceedings under the Convention for the return of a child or for arrangements for organizing or 

securing the effective exercise of rights of access to a child may do so 

by commencing a civil action by filing a petition for the relief sought 

in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.

(c) Notice

Notice of an action brought under subsection (b) of this section shall 

be given in accordance with the applicable law governing notice in 

interstate child custody proceedings.

(d) Determination of case

The court in which an action is brought under subsection (b) of this 

section shall decide the case in accordance with the Convention.

(e) Burdens of proof

(1) A petitioner in an action brought under subsection (b) of this section shall establish by a preponderance of the evidence—

(A) in the case of an action for the return of a child, that the child has 

been wrongfully removed or retained within the meaning of the Convention; and
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

220

(B) in the case of an action for arrangements for organizing or securing the effective exercise of rights of access, that the petitioner has 

such rights.

(2) In the case of an action for the return of a child, a respondent who 

opposes the return of the child has the burden of establishing—

(A) by clear and convincing evidence that one of the exceptions set 

forth in article 13b or 20 of the Convention applies; and

(B) by a preponderance of the evidence that any other exception set 

forth in article 12 or 13 of the Convention applies.

(f) Application of Convention

For purposes of any action brought under this chapter—

(1) the term “authorities,” as used in article 15 of the Convention to 

refer to the authorities of the state of the habitual residence of a 

child, includes courts and appropriate government agencies;

(2) the terms “wrongful removal or retention” and “wrongfully removed or retained,” as used in the Convention, include a removal 

or retention of a child before the entry of a custody order regarding that child; and

(3) the term “commencement of proceedings”, as used in article 12 of 

the Convention, means, with respect to the return of a child located in the United States, the filing of a petition in accordance with 

subsection (b) of this section.

(g) Full faith and credit

Full faith and credit shall be accorded by the courts of the States and 

the courts of the United States to the judgment of any other such court 

ordering or denying the return of a child, pursuant to the Convention, 

in an action brought under this chapter.

(h) Remedies under Convention not exclusive

The remedies established by the Convention and this chapter shall be 

in addition to remedies available under other laws or international 

agreements.
Appendix B: International Child Abduction Remedies Act

221

§ 9004. Provisional Remedies

(a) Authority of courts

In furtherance of the objectives of article 7(b) and other provisions of 

the Convention, and subject to the provisions of subsection (b) of this 

section, any court exercising jurisdiction of an action brought under 

section 9003(b) of this title may take or cause to be taken measures 

under Federal or State law, as appropriate, to protect the well-being of 

the child involved or to prevent the child’s further removal or concealment before the final disposition of the petition.

(b) Limitation on authority

No court exercising jurisdiction of an action brought under section

9003(b) of this title may, under subsection (a) of this section, order a 

child removed from a person having physical control of the child unless the applicable requirements of State law are satisfied.

§ 9005. Admissibility of Documents

With respect to any application to the United States Central Authority, 

or any petition to a court under section 9003 of this title, which seeks 

relief under the Convention, or any other documents or information 

included with such application or petition or provided after such 

submission which relates to the application or petition, as the case 

may be, no authentication of such application, petition, document, or 

information shall be required in order for the application, petition, 

document, or information to be admissible in court.

§ 9006. United States Central Authority

(a) Designation

The President shall designate a Federal agency to serve as the Central 

Authority for the United States under the Convention.

(b) Functions

The functions of the United States Central Authority are those ascribed to the Central Authority by the Convention and this chapter.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

222

(c) Regulatory authority

The United States Central Authority is authorized to issue such regulations as may be necessary to carry out its functions under the Convention and this chapter.

(d) Obtaining information from Parent Locator Service

The United States Central Authority may, to the extent authorized by 

the Social Security Act [42 U.S.C. 301 et seq.], obtain information 

from the Parent Locator Service.

(e) Grant authority

The United States Central Authority is authorized to make grants to, 

or enter into contracts or agreements with, any individual, corporation, other Federal, State, or local agency, or private entity or organization in the United States for purposes of accomplishing its responsibilities under the Convention and this chapter.

(f) Limited liability of private entities acting under the direction of the 

United States Central Authority

(1) Limitation on liability

Except as provided in paragraphs (2) and (3), a private entity or 

organization that receives a grant from or enters into a contract or 

agreement with the United States Central Authority under subsection (e) of this section for purposes of assisting the United States 

Central Authority in carrying out its responsibilities and functions 

under the Convention and this chapter, including any director, officer, employee, or agent of such entity or organization, shall not 

be liable in any civil action sounding in tort for damages directly 

related to the performance of such responsibilities and functions 

as defined by the regulations issued under subsection (c) of this 

section that are in effect on October 1, 2004.

(2) Exception for intentional, reckless, or other misconduct

The limitation on liability under paragraph (1) shall not apply in 

any action in which the plaintiff proves that the private entity, organization, officer, employee, or agent described in paragraph (1), 

as the case may be, engaged in intentional misconduct or acted, or 
Appendix B: International Child Abduction Remedies Act

223

failed to act, with actual malice, with reckless disregard to a substantial risk of causing injury without legal justification, or for a 

purpose unrelated to the performance of responsibilities or functions under this chapter.

(3) Exception for ordinary business activities

The limitation on liability under paragraph (1) shall not apply to 

any alleged act or omission related to an ordinary business activity, such as an activity involving general administration or operations, the use of motor vehicles, or personnel management.

§ 9007. Costs and Fees

(a) Administrative costs

No department, agency, or instrumentality of the Federal Government 

or of any State or local government may impose on an applicant any 

fee in relation to the administrative processing of applications submitted under the Convention.

(b) Costs incurred in civil actions

(1) Petitioners may be required to bear the costs of legal counsel or 

advisors, court costs incurred in connection with their petitions, 

and travel costs for the return of the child involved and any accompanying persons, except as provided in paragraphs (2) and 

(3).

(2) Subject to paragraph (3), legal fees or court costs incurred in connection with an action brought under section 9003 of this title 

shall be borne by the petitioner unless they are covered by payments from Federal, State, or local legal assistance or other programs.

(3) Any court ordering the return of a child pursuant to an action 

brought under section 9003 of this title shall order the respondent 

to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation 

costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

224

§ 9008. Collection, Maintenance, and Dissemination of Information

(a) In general

In performing its functions under the Convention, the United States 

Central Authority may, under such conditions as the Central Authority prescribes by regulation, but subject to subsection (c) of this section, receive from or transmit to any department, agency, or instrumentality of the Federal Government or of any State or foreign government, and receive from or transmit to any applicant, petitioner, or 

respondent, information necessary to locate a child or for the purpose 

of otherwise implementing the Convention with respect to a child, 

except that the United States Central Authority—

(1) may receive such information from a Federal or State department, 

agency, or instrumentality only pursuant to applicable Federal and 

State statutes; and

(2) may transmit any information received under this subsection notwithstanding any provision of law other than this chapter.

(b) Requests for information

Requests for information under this section shall be submitted in such 

manner and form as the United States Central Authority may prescribe 

by regulation and shall be accompanied or supported by such documents as the United States Central Authority may require.

(c) Responsibility of government entities

Whenever any department, agency, or instrumentality of the United 

States or of any State receives a request from the United States Central 

Authority for information authorized to be provided to such Central 

Authority under subsection (a) of this section, the head of such department, agency, or instrumentality shall promptly cause a search to 

be made of the files and records maintained by such department, 

agency, or instrumentality in order to determine whether the information requested is contained in any such files or records. If such 

search discloses the information requested, the head of such department, agency, or instrumentality shall immediately transmit such information to the United States Central Authority, except that any such 

information the disclosure of which—
Appendix B: International Child Abduction Remedies Act

225

(1) would adversely affect the national security interests of the United 

States or the law enforcement interests of the United States or of 

any State; or

(2) would be prohibited by section 9 of title 13;

shall not be transmitted to the Central Authority. The head of such 

department, agency, or instrumentality shall, immediately upon 

completion of the requested search, notify the Central Authority of 

the results of the search, and whether an exception set forth in 

paragraph (1) or (2) applies. In the event that the United States 

Central Authority receives information and the appropriate Federal or State department, agency, or instrumentality thereafter notifies the Central Authority that an exception set forth in paragraph 

(1) or (2) applies to that information, the Central Authority may 

not disclose that information under subsection (a) of this section.

(d) Information available from Parent Locator Service

To the extent that information which the United States Central Authority is authorized to obtain under the provisions of subsection (c) 

of this section can be obtained through the Parent Locator Service, the 

United States Central Authority shall first seek to obtain such information from the Parent Locator Service, before requesting such information directly under the provisions of subsection (c) of this section.

(e) Recordkeeping

The United States Central Authority shall maintain appropriate records concerning its activities and the disposition of cases brought to 

its attention.

§ 9008a. Office of Children’s Issues

(a) Director requirements

The Secretary of State shall fill the position of Director of the Office of 

Children’s Issues of the Department of State (in this section referred to 

as the “Office”) with an individual of senior rank who can ensure 

long-term continuity in the management and policy matters of the 

Office and has a strong background in consular affairs.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

226

(b) Case officer staffing

Effective April 1, 2000, there shall be assigned to the Office of Children’s Issues of the Department of State a sufficient number of case 

officers to ensure that the average caseload for each officer does not 

exceed 75.

(c) Embassy contact

The Secretary of State shall designate in each United States diplomatic 

mission an employee who shall serve as the point of contact for matters relating to international abductions of children by parents. The 

Director of the Office shall regularly inform the designated employee 

of children of United States citizens abducted by parents to that country.

(d) Reports to parents

(1) In general

Except as provided in paragraph (2), beginning 6 months after 

November 29, 1999, and at least once every 6 months thereafter, 

the Secretary of State shall report to each parent who has requested assistance regarding an abducted child overseas. Each such report shall include information on the current status of the abducted child’s case and the efforts by the Department of State to resolve 

the case.

(2) Exception

The requirement in paragraph (1) shall not apply in a case of an 

abducted child if—

(A) the case has been closed and the Secretary of State has reported the reason the case was closed to the parent who requested assistance; or

(B) the parent seeking assistance requests that such reports not be 

provided.

§ 9009. Interagency Coordinating Group

The Secretary of State, the Secretary of Health and Human Services, 

and the Attorney General shall designate Federal employees and may, 
Appendix B: International Child Abduction Remedies Act

227

from time to time, designate private citizens to serve on an interagency 

coordinating group to monitor the operation of the Convention and to 

provide advice on its implementation to the United States Central 

Authority and other Federal agencies. This group shall meet from time 

to time at the request of the United States Central Authority. The 

agency in which the United States Central Authority is located is authorized to reimburse such private citizens for travel and other expenses incurred in participating at meetings of the interagency coordinating group at rates not to exceed those authorized under subchapter 

I of chapter 57 of title 5 for employees of agencies.

§ 9010. Authorization of Appropriations

There are authorized to be appropriated for each fiscal year such sums 

as may be necessary to carry out the purposes of the Convention and 

this chapter.

§ 9011. Report on Compliance with the Hague Convention on 

International Child Abduction

(a) In general

Beginning 6 months after October 21, 1998, and every 12 months 

thereafter, the Secretary of State shall submit a report to the appropriate congressional committees on the compliance with the provisions of 

the Convention on the Civil Aspects of International Child Abduction, 

done at The Hague on October 25, 1980, by the signatory countries of 

the Convention. Each such report shall include the following information:

(1) The number of applications for the return of children submitted by 

applicants in the United States to the Central Authority for the 

United States that remain unresolved more than 18 months after 

the date of filing.

(2) A list of the countries to which children in unresolved applications 

described in paragraph (1) are alleged to have been abducted, are 

being wrongfully retained in violation of United States court orders, or which have failed to comply with any of their obligations 

under such convention with respect to applications for the return 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

228

of children, access to children, or both, submitted by applicants in 

the United States.

(3) A list of the countries that have demonstrated a pattern of noncompliance with the obligations of the Convention with respect to 

applications for the return of children, access to children, or both, 

submitted by applicants in the United States to the Central Authority for the United States.

(4) Detailed information on each unresolved case described in paragraph (1) and on actions taken by the Department of State to resolve each such case, including the specific actions taken by the 

United States chief of mission in the country to which the child is 

alleged to have been abducted.

(5) Information on efforts by the Department of State to encourage 

other countries to become signatories of the Convention.

(6) A list of the countries that are parties to the Convention in which, 

during the reporting period, parents who have been left-behind in 

the United States have not been able to secure prompt enforcement of a final return or access order under a Hague proceeding, 

of a United States custody, access, or visitation order, or of an access or visitation order by authorities in the country concerned, 

due to the absence of a prompt and effective method for enforcement of civil court orders, the absence of a doctrine of comity, or 

other factors.

(7) A description of the efforts of the Secretary of State to encourage 

the parties to the Convention to facilitate the work of nongovernmental organizations within their countries that assist parents 

seeking the return of children under the Convention.

(b) Definition

In this section, the term “Central Authority for the United States” has 

the meaning given the term in Article 6 of the Convention on the Civil 

Aspects of International Child Abduction, done at The Hague on October 25, 1980.
229

Appendix C: Checklist for Hague 

Convention Cases

Procedural Issues

Expedited Proceedings 

 ̈ Goal is to complete case in six weeks

Case-Management Conference

 ̈ Safety of the child

o Obtain parties and children’s passports

 ̈ Set timelines—determine how much time to allocate to trial

 ̈ Should a discovery plan be adopted?

 ̈ Narrow the issues to be tried

 ̈ Determine use of declarations or affidavits

 ̈ Will witnesses testify by telephone

 ̈ Are interpreters needed

 ̈ Do the parties wish to engage in mediation?

o Is the case appropriate for mediation? (e.g. is there a history of domestic violence?)

o If so, can mediation take place without resulting in a significant delay of the trial?

 ̈ Legal representation

o Is the petitioning parent represented by counsel? If not, consider 

referring that parent to the State Dept. Office of Children’s Issues to 

see if the parent can secure counsel

Parallel Jurisdiction Issues

 ̈ Are there any state custody cases pending?

 ̈ If so, has the custody proceeding been stayed?

 ̈ Has the Hague Convention issue been litigated in state court or is it 

scheduled to be litigated there?
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

230

Case for Return—Burden of Proof—Preponderance of the Evidence

 ̈ Is the child under age 16?

 ̈ What country is alleged to be the child’s habitual residence?

o Has the treaty “entered into force” between the U.S. and the other 

country as of the date of the wrongful removal or retention?

 ̈ On what date did the wrongful removal or retention occur?

 ̈ Was the child removed or retained in violation of the custody rights of 

the left-behind parent?

o Does the left-behind parent have rights of custody?

§ By operation of law

§ By court or administrative decision 

§ By legally binding agreement 

o Was the child removed from the habitual residence when a ne exeat clause or restraining order prohibited removal?

 ̈ Was the left-behind parent exercising his or her custody rights before 

the child was removed from the habitual residence? 

Defenses—Burden of Proof—Preponderance of the Evidence

 ̈ Was the request for return filed within one year of the wrongful removal or retention?

 ̈ If it was not filed within one year, has the child become settled in his 

or her new environment?

 ̈ Did the left-behind parent consent or acquiesce in the removal or retention of the child?

 ̈ Does the child object to return?

o If so, is the child old enough and sufficiently mature for the court 

to take account of the child’s objection?

Defenses—Burden of Proof—Clear and Convincing Evidence

 ̈ Would a return expose the child to a grave risk of physical or psychological harm or place the child in an intolerable situation?

 ̈ Would a return violate fundamental principles relating to the protection of human rights and fundamental freedoms?
Appendix C: Checklist for Hague Convention Cases

231

Order Return Even Though Defense Established

 ̈ Should the court order the child’s return even if a defense has been established?

o If so, consider undertakings, or mirror-image orders, or other 

measures to ensure the child’s safe return

Making Return Orders

 ̈ Is the order for return specific as to time, manner, and date of return?

 ̈ Who is responsible for arranging the logistics of the child’s return?

Attorney Fees and Costs

 ̈ Order only if petitioner prevails

 ̈ Is amount requested clearly inappropriate

233

Appendix D: Countries Where Convention 

Is In Force with United States

(Current to August 2015)

Country Date of EIF Country Date of EIF

Anguilla 6/1/08

Argentina 6/1/91

Australia 7/1/88

Austria 10/1/88

Bahamas 1/1/94

Belgium 5/1/99

Belize 11/1/89

Bermuda 3/1/99

Bosnia and Herzegovina 12/1/91

Brazil 12/1/03

Bulgaria 1/1/05

Burkina Faso 11/1/92

Canada 7/1/88

Cayman Islands 8/1/88

Chile 7/1/94

Colombia 6/1/96

Costa Rica 1/1/08

Croatia 12/1/91

Cyprus 3/1/95

Czech Republic 3/1/98

Denmark 7/1/91

Dominican Republic 6/1/07

Ecuador 4/1/92

El Salvador 6/1/07

Estonia 5/1/07

Falkland Islands 6/1/98

Finland 8/1/94

France 7/1/88

Germany 12/1/90

Greece 6/1/93

Guatemala 1/1/08

Honduras 6/1/94

Hong Kong 9/1/97

Hungary 7/1/88

Iceland 12/1/96

Ireland 10/1/91

Isle of Man 9/1/91

Israel 12/1/91

Italy 5/1/95

Japan 4/1/14

Latvia 5/1/07

Lithuania 5/1/07

Luxembourg 7/1/88

Macau 3/1/99

Republic of Macedonia 12/1/91

Malta 2/1/03

Mauritius 10/1/93

Mexico 10/1/91

Monaco 6/1/93

Montenegro 12/1/91
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

234

Country Date of EIF

Montserrat 3/1/99

Morocco 12/1/12

Netherlands 9/1/90

New Zealand 10/1/91

Norway 4/1/89

Panama 6/1/94

Paraguay 1/1/08

Peru 6/1/07

Poland 11/1/92

Portugal 7/1/98

Republic of Korea 11/1/13

Romania 6/1/93

Saint Kitts and Nevis 6/1/95

San Marino 1/1/08

Serbia 12/1/91

Country Date of EIF

Singapore 5/1/12

Slovakia 2/1/01

Slovenia 4/1/95

South Africa 11/1/97

Spain 7/1/88

Sri Lanka 1/1/08

Sweden 6/1/89

Switzerland 7/1/88

Trinidad and Tobago 8/1/13

Turkey 8/1/00

Ukraine 9/1/07

United Kingdom 7/1/88

Uruguay 9/1/04

Venezuela 1/1/97

Zimbabwe 8/1/95
235

Table of Authorities

Cases

A.L.C., In re, 16 F. Supp. 3d 1075, 2014 WL 1571274 (C.D. Cal. 2014) ..................138

A.L.C., In re, ___ F. App’x ___, 2015 WL 1742347 (9th Cir. 2015)..............76, 77, 138 

A.V.P.G., In re, 251 S.W.3d 117 (Tex. App. 2008).......................................................94

Abbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008) ........................................................48

Abbott v. Abbott, 560 U.S. 1, 130 S. Ct. 1983 (2010).. xii, xiii, 2, 12–16, 31, 41, 48–50

Acierno v. New Castle County, 40 F.3d 645 (3d Cir. 1994)......................................195

Acosta v. Acosta, 725 F.3d 868 (8th Cir. 2013).........................................109, 116, 157

Aguilera v. De Lara, 2014 WL 4204947 (D. Ariz. 2014)............................................185

Ahumada Cabrera, In re, 323 F. Supp. 2d 1303 (S.D. Fla. 2004).........28, 41, 71, 73, 96

Air France v. Saks, 470 U.S. 392 (1985)...................................................................2, 14

Aldinger v. Segler, 263 F. Supp. 2d 284 (D.P.R. 2003)................................15, 114, 118

Aldinger v. Segler, 338 F. Supp. 2d 296 (D.P.R. 2004)........................................22, 185

Alonzo v. Claudino, 2007 WL 475340 (M.D.N.C. 2007) ............................................72

Altamiranda Vale v. Avila, 538 F.3d 581 (7th Cir. 2008) ................................41, 43, 44

Anderson v. Acree, 250 F. Supp. 2d 876 (S.D. Ohio 2002) .......................................124

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505 (1986).....................189

Andreopoulos v. Nickolaos Koutroulos, 2009 WL 1850928 (D. Colo. 2009)...........125

Antunez-Fernandes v. Connors-Fernandes, 259 F. Supp. 2d 800 (N.D. Iowa 2003)...8, 

112

Application of Adan, In re, 437 F.3d 381 (3d Cir. 2006)...............45, 66, 112, 114, 144, 

158, 162

Application of McCullough on Behalf of McCullough, 4 F. Supp. 2d 411 (W.D. Pa. 

1998) ...............................................................................................................40, 194

Application of Ponath, In re, 829 F. Supp. 363 (D. Utah 1993).............................69, 70

Application of Salah, In re, 629 N.W.2d 99, 104 (Minn. App. 2001).........................185

Armiliato v. Zaric-Armiliato, 169 F. Supp. 2d 230 (S.D.N.Y. 2001)............................33

Asvesta v. Petroutsas, 580 F.3d 1000 (9th Cir. 2009)........16, 24, 88, 90, 102, 171, 172

Avendano v. Smith, 2011 WL 3503330 (D.N.M. 2011).............................................164

Axford v. Axford, 2009 WL 2030755 (E.D. Pa. 2009)...............................................197

B. Del C.S.B., In re, 559 F.3d 999 (9th Cir. 2009)........72–73, 89, 96, 97, 157, 158, 162

Bader v. Kramer (Bader I), 445 F.3d 346 (4th Cir. 2006)......................................39–40

Bader v. Kramer, 484 F.3d 666 (4th Cir. 2007) ...................................................25, 157
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

236

Ballen v. City of Redmond, 466 F.3d 736 (9th Cir. 2006).........................................183

Baran v. Beaty, 526 F.3d 1340 (11th Cir. 2008)................................3, 16, 88, 109, 112, 

113, 114, 140, 142, 147, 199

Bardales v. Duarte, 181 Cal. App. 4th 1262 (2010) ...................................................163

Barrera Casimiro v. Pineda Chavez 2006 WL 2938713 (N.D. Ga. 2006) ..122, 123, 124

Barzilay v. Barzilay (Barzilay I), 536 F.3d 844 (8th Cir. 2008)............................46, 166

Barzilay v. Barzilay (Barzilay II), 600 F.3d 912 (8th Cir. 2010) .....................16, 35–36, 

46–47, 64, 66

Bates, In re, [1989] No. CA 122-89, High Court of Justice, Family Div., Royal Courts 

of Justice (U.K.).....................................................................................51, 55, 65–66

Baxter v. Baxter, 423 F.3d 363 (3d Cir. 2005) ...............................24, 101, 102–03, 104

Bekier v. Bekier, 248 F.3d 1051 (11th Cir. 2001)..............................................153, 196

Belay v. Getachew, 272 F. Supp. 2d 553 (D. Md. 2003) ..................................27, 94, 97

Berendsen v. Nichols, 938 F. Supp. 737 (D. Kan. 1996)............................................184

Berezowsky v. Ojeda, 765 F.3d 456 (5th Cir. 2014)..................................................158

Blanc v. Morgan, 721 F. Supp. 2d 749 (W.D. Tenn. 2010)..................28, 63, 78, 91, 96

Blanchard v. Bergeron, 489 U.S. 87 (1989)................................................................183

Blondin v. Dubois (Blondin I), 189 F.3d 240 (2d Cir. 1999) ....................114, 119, 142, 

143, 144, 145, 171

Blondin v. Dubois (Blondin II), 238 F.3d 153 (2d Cir. 2001) .....................90, 110, 121,

122, 123, 144, 157

Blondin v. Dubois, 78 F. Supp. 2d 283 (S.D.N.Y. 2000)............................112, 144, 200

Bonilla-Ruiz v. Bonilla, 2004 WL 2883247 Mich. App. (2004) .................................124

Bowen v. Bowen, ___ F. Supp. ___, 2014 WL 2154905 (W.D. Pa. 2014)..... 107, 120, 126

Brennan v. Cibault, 643 N.Y.S.2d 780, 227 A.2d 965 (1996) ......................................22

Bromley v. Bromley, 30 F. Supp. 2d 857 (E.D. Pa. 1998)....................................30, 173

Brooke v. Willis, 907 F. Supp. 57 (S.D.N.Y. 1995) ............................43, 55, 63, 79, 136

Brosselin v. Harless, 2011 WL 6130419 (W.D. Wash. 2011) ....................................164

Brown v. Orange County Department of Social Services, 91 F.3d 150 (9th Cir. 

1996) .......................................................................................................................31

C v. S (Minor: Abduction: Illegitimate Child), [1990] 2 All E.R. 961 (Eng.)..............53

Cantor v. Cohen, 442 F.3d 196 (4th Cir. 2006)...........................................88, 173, 176

Caro v. Sher, 296 N.J. Super. 594 (1996)...................................................................118

Carrascosa v. McGuire, 520 F.3d 249 (3d Cir. 2008)..........................45, 119, 171, 172

Castillo v. Castillo, 597 F. Supp. 2d 432 (D. Del. 2009)................................15, 97, 125

Casulli v. Falcone, 2002 WL 479855 (D.N.H. 2002).................................................194

Cerit v. Cerit, 188 F. Supp. 2d 1239 (D. Haw. 2002).................................................168
Table of Authorities

237

Chafin v. Chafin, 133 S. Ct. 1017 (2013).................................vii, 81, 152–55, 156, 162

Chafin v. Chafin, 742 F.3d 934 (11th Cir. 2013).........................................81, 154, 162

Charalambous v. Charalambous, 627 F.3d 462 (1st Cir. 2010)............xi, 156, 163, 188

Charalambous v. Charalambous, 751 F. Supp. 2d 255 (D. Me. 2010)...............177, 189

Charalambous v. Charalambous, No. 2:10-cv-375, 2010 WL 3613747 

(D. Me. 2010)................................................................................................186, 193

Chechel v. Brignol, 2010 WL 2510391 (M.D. Fla. 2010) ..........................................165

Ciotola v. Fiocca, 86 Ohio Misc. 2d 24 (1997) ..........................................................142

Coffield, In re, 96 Ohio App. 3d 52, 644 N.E.2d 662 (1994)...............................96, 100

Cohen v. Cohen, 158 Misc.2d 1018, 602 N.Y.S.2d 994 (1993).............................52, 61

Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) .. 167–68

Copeland v. Copeland, 134 F.3d 362 (4th Cir. 1998) ...............................................168

Courdin v. Courdin, 375 S.W.3d 657 (Ark. App. 2010)..............................................56

Crall-Shaffer v. Shaffer, 105 Ohio App. 3d 369, 663 N.E.2d 1346 (1995).................136

Croll v. Croll, 229 F.3d 133 (2d Cir. 2000)...........................................................48–49

Cruz v. Cruz, 33 Conn. L. Rptr. 594 (2002)..............................................................163

Cuellar v. Joyce (Cuellar I), 596 F.3d 505 (9th Cir. 2010) ........109, 110, 111, 150, 157

Cuellar v. Joyce (Cuellar II), 603 F.3d 1142 (9th Cir. 2010).....................................183

Currier v. Currier, 845 F. Supp. 916 (D.N.H. 1994)..................................................199

D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983).....................................44, 169

Danaipour v. McLarey (Danaipour I), 286 F.3d 1 (1st Cir. 2002) ......88, 111, 112, 113, 

138, 141, 142, 146, 150, 152, 156, 188

Danaipour v. McLarey (Danaipour II), 386 F.3d 289 (1st Cir. 2004).... 145, 164, 170, 186

Darín v. Olivero-Huffman, 746 F.3d 1 (1st Cir. 2014) ....................... 74, 104, 158, 185

Daunis v. Daunis, 222 F. App’x 32 (2d Cir. 2007).............................................. 82, 161

David S. v. Zamira, 151 Misc. 2d 630, 574 N.Y.S.2d 429 (1991).......................195, 196

de Silva v. Pitts, 481 F.3d 1279 (10th Cir. 2007)...............122, 123, 125, 127, 171, 172

Degen v. United States, 517 U.S. 820 (1996) .....................................................134, 135

Delgado-Ramirez v. Lopez, 2011 WL 692213 (W.D. Tex. 2011) ....................7, 132–33

Delvoye v. Lee, 329 F.3d 330 (3d Cir. 2003)...................................................66, 75, 77

Diabo v. Delisle, 500 F. Supp. 2d 159 (N.D.N.Y. 2007).......................................31, 189

Diaz Arboleda v. Arenas, 311 F. Supp. 2d 336 (E.D.N.Y. 2004)................................125

Diorinou v. Mezitis, 237 F.3d 133 (2d Cir. 2001) .................42, 88, 156, 162, 171, 172

Director-General Dept. of Families, Youth and Community Care v. Moore, (1999) 

FLC 92-841; [1999] FamCA 284 [Australia]..........................................................92

Distler v. Distler, 26 F. Supp. 2d 723 (D.N.J. 1998) ..........................................183, 184
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

238

Doudle v. Gause, 282 F. Supp. 2d 922 (N.D. Ind. 2003)...........................................165

Duarte v. Bardales, 526 F.3d 563 (9th Cir. 2008)................................85, 95, 97, 98, 99

Duran v. Beaumont, 560 U.S. 921 (2010) ..................................................................176

East Sussex Children Servs. v. Morris, 919 F. Supp. 2d 721 (N.D. W. Va. 2013) .....184

El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (1999)..............................2

Ellis v. Railway Clerks, 466 U.S. 435 (1984)..............................................................154

England v. England, 234 F.3d 268 (5th Cir. 2000)..............88, 121, 122, 123, 124, 162

Escaf v. Rodriguez, 52 F. App’x 207 (4th Cir. 2002) .........................................166, 167

Escobar v. Flores, 183 Cal. App. 4th 737 (2010).......................................123, 125, 186

Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005) ................169

F.H.U. v. A.C.U., 427 N.J. Super. 354, 48 A.3d 1130 (2012).................................91, 97

Fabri v. Pritikin-Fabri, 221 F. Supp. 2d 859 (N.D. Ill. 2001) ....................................141

Falk v. Sinclair, 692 F. Supp. 2d 147 (D. Me. 2010)..............................................29, 88

Fawcett v. McRoberts, 326 F.3d 491 (4th Cir. 2003)...................................................49

Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995)................................8, 33, 40, 51, 53, 

56–57, 63, 64, 84, 138, 144, 158

Felder v. Wetzel, 696 F.3d 92 (1st Cir. 2012)..............................................120, 124–25

Flores v. Contreras, 981 S.W.2d 246 (Tex. App. 1998)...............................................75

Flynn v. Borders, 472 F. Supp. 2d 906 (E.D. Ky. 2007)...............................................85

FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834 (3d Cir. 1996) 166

Foster v. Foster, 654 F. Supp. 2d 348 (W.D. Pa. 2009) .............................................144

Freier v. Freier, 969 F. Supp. 436 (E.D. Mich. 1996) ..........................78, 108, 118, 150

Friedrich v. Friedrich (Friedrich I), 983 F.2d 1396 (6th Cir. 1993).....................52, 53, 

54, 55, 57, 62, 63, 65, 77, 78, 80, 83

Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060 (6th Cir. 1996)......8, 39, 88, 89, 91, 

102, 108–09, 111, 112

Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004) ............................................49, 98, 99

Gatica v. Martinez, 2011 WL 2110291 (S.D. Fla. 2011)............................................199

Gaudin v. Remis, 334 F. App’x 133 (9th Cir. 2009) ....................................................85

Gaudin v. Remis, 415 F.3d 1028 (9th Cir. 2005)...........................................4, 144, 162

Geiser v. Valentine, No. 80286/07, slip op. 52046(U), 851 N.Y.S.2d 65 

(Sup. Ct. 2007)........................................................................................................23

Giampaolo v. Erneta, 390 F. Supp. 2d 1269 (N.D. Ga. 2004)..............39, 41, 71, 73, 96

Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005).....................................54, 55, 67, 95, 158

Glagola v. Glagola, 2003 WL 22992591 (E.D. Mich. 2003).......................................193

Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231 (1959)...............................98
Table of Authorities

239

Gonzales v. Gutierrez, 311 F.3d 942 (9th Cir. 2002) ............................................41, 49

Gonzalez Locicero v. Nazor Lurashi, 321 F. Supp. 2d 295 (D.P.R. 2004).........112, 122

Gonzalez-Caballero v. Mena, 251 F.3d 789 (9th Cir. 2001)......................................101

Grammes v. Grammes, 2003 WL 22518715 (E.D. Pa. 2003).............................150, 178

Greene v. Greene, 1990 WL 56197 (Tenn. App. 1990) .............................................196

Grieve v. Tamerin, 269 F.3d 149 (2d Cir. 2001) .................................................22, 166

Grijalva v. Escayola, 2006 WL 3827539 (M.D. Fla. 2006).........................................124

Guzzo v. Cristofano, 719 F.3d 100 (2d Cir. 2013) ..................................55–56, 66, 158

Hague Child Abduction Application, In re, 2008 WL 913325 (D. Kan. 2008)..........118

Haimdas v. Haimdas, 720 F. Supp. 2d 183 (E.D.N.Y. 2010)..........88, 89, 122, 125, 183

Hanley v. Roy, 485 F.3d 641 (11th Cir. 2007).............................................33, 157, 186

Harkness v. Harkness, 577 N.W.2d 116, 227 Mich. App. 581 (Ct. App. 1998) ....83, 84

Harsacky v. Harsacky, 930 S.W.2d 410 (Ky. Ct. App. 1996).................................22, 56

Hazbun Escaf v. Rodriquez, 200 F. Supp. 2d 603 (E.D. Va. 2002)............118, 123, 194

Headifen v. Harker, WL 2538897 (W.D. Tex. 2013) .................................................188

Hilton v. Braunskill, 481 U.S. 770 (1987)..................................................................155

Hilton v. Guyot, 159 U.S. 113 (1895) ................................................................170, 171

Hirst v. Tiberghien, 947 F. Supp. 2d 578 (D.S.C. 2013)......................................120–21

Hofmann v. Sender, 716 F.3d 282 (2d Cir. 2013)................................................95, 106

Holder v. Holder (Holder I), 305 F.3d 854 (9th Cir. 2002)............11, 93, 131, 167, 169

Holder v. Holder (Holder II), 392 F.3d 1009 (9th Cir. 2004) ....51, 68, 80–81, 161, 162

Hollis v. O’Driscoll, 739 F.3d 108 (2d Cir. 2014)........................................................52

Ibarra v. Quintanilla Garcia, 476 F. Supp. 2d 630 (S.D. Tex. 2007)............................41

In re (see party name)

Innes v. Carrascosa, 391 N.J. Super. 453 (2007)........................................................178

Intel Corp. v. Advanced Micro Devices, Inc., 12 F.3d 908 (9th Cir. 1993)...............167

Ish-Shalom v. Wittman, 797 N.Y.S.2d 111 (App. Div. 2005) ......................................49

Ivaldi v. Ivaldi, 147 N.J. 190 (1996)...........................................................................182

J.E.A. v. C.L.M. (2002), 220 D.L.R. (4th) 577 (N.S.C.A.) [Nova Scotia Court of 

Appeal] ....................................................................................................................92

J.G., In re, 301 S.W.2d 376 (Tex. App. 2009) ..............................................................55

J.J.L.-P., In re, 256 S.W.2d 363 (Tex. App. 2008) ........................................................23

Jaet v. Siso, 2009 WL 32570 (S.D. Fla. 2009) ............................................................142

Janakakis-Kostun v. Janakakis, 6 S.W.3d 843 (Ky. Ct. App. 1999).....................70, 118

Jenkins v. Jenkins, 569 F.3d 549 (6th Cir. 2009) ..................................3, 4, 47–48, 108

Johnson v. Georgia Highway Exp. Inc., 488 F.2d 714 (5th Cir. 1974)......................183
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

240

Johnson v. Johnson, 493 S.E.2d 668, 26 Va. App. 135 (Ct. App. 1997)................63, 78

Johnson v. Johnson, 2011 WL 569876 (S.D.N.Y. 2011) .............................................83

Journe v. Journe, 911 F. Supp. 43 (D.P.R. 1995).............................................7, 130–31

Kamstra, In re, 307 S.W.3d 581 (Tex. App. 2010) .......................................................17

Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006)........16, 28, 53, 64, 68, 88, 158

Karpenko v. Leendertz, 619 F.3d 259 (3d Cir. 2010)...........................7, 132, 157, 166

Katona v. Kovacs, 148 F. App’x 158 (4th Cir. 2005) .................................................173

Khan v. Fatima, 680 F.3d 781 (7th Cir. 2012)...................................164, 177, 185, 189

Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006).........6, 52, 71–72, 75, 155, 162, 163

Kim, In re, 404 F. Supp. 2d 495 (S.D.N.Y. 2005).................................................22, 102

Klam v. Klam, 797 F. Supp. 202 (E.D.N.Y. 1992)..............................................189, 194

Knox v. Service Employees, 567 U.S. ___, 132 S. Ct. 2277 (2012)....................153, 154

Koc, In re, 181 F. Supp. 2d 136 (E.D.N.Y. 2001).......................................71, 73, 96, 98

Krefter v. Wills, 623 F. Supp. 2d 125 (D. Mass. 2009) ......113, 137, 138, 142, 198, 199

Kufner v. Kufner, 480 F. Supp. 2d 491 (D.R.I. 2007)................................138, 165, 197

Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008).......42–43, 124, 125, 138, 142, 143, 199

Kufner v. Kufner, CIV.A. 07–046 S, 2010 WL 431762 (D.R.I. Feb. 3, 2010)............184

L.H. v. Youth Welfare Office of Wiesbaden, 150 Misc. 2d 490, 568 N.Y.S.2d 852 (Fam. 

Ct. 1991) .................................................................................................................31

Laguna v. Avila, 2008 WL 1986253 (E.D.N.Y. 2008) ........................................126, 198

Lakhera-Bonnefoy v. Lakhera-Bonnefoy, 12 Misc.3d 1214(a), 836 N.Y.S.2d 486 (N.Y. 

Sup. Ct. 2006) .........................................................................................................33

Lalo v. Malca, 318 F. Supp. 2d 1152 (S.D. Fla. 2004)..................................................42

Langa v. Langa, 549 F. App’x 114 (3d Cir. 2014)..................................................61–62

Larbie v. Larbie, 690 F.3d 295 (5th Cir. 2012)......54, 63–64, 66, 75, 82, 103, 120, 157

Larrategui v. Laborde, 2014 WL 2154477 (E.D. Cal. 2014) ......................................183

Leser v. Berridge, 668 F.3d 1202 (10th Cir. 2011) ....................................................153

Leslie, In re, 377 F. Supp. 2d 1232 (S.D. Fla. 2005).............................................22, 135

Levesque v. Levesque, 816 F. Supp. 662 (D. Kan. 1993).......................................61, 83

Lieberman v. Tabachnik, 625 F. Supp. 2d 1109 (D. Colo. 2008) .........................41, 42,

121, 125, 186, 198

Londono v. Gonzalez, 988 F. Supp. 2d 113 (D. Mass. 2013).....................................173

Lopez v. Alcala, 547 F. Supp. 2d 1255 (M.D. Fla. 2008) .....................................73, 121

Lops v. Lops, 140 F.3d 927 (11th Cir. 1998).......11, 96, 97, 98, 162, 168, 195, 196–97

Lozano v. Alvarez, 697 F.3d 41 (2d Cir. 2012)................................................95, 96, 99
Table of Authorities

241

Lozano v. Montoya Alvarez, ___ U.S. ___, 134 S. Ct. 1224 (2014) ....14, 15, 49, 85, 89, 

97, 99, 100–01

Lutman v. Lutman, 2010 WL 3398985 (M.D. Pa. 2010) .............................................96

Ly v. Heu, 296 F. Supp. 2d 1009 (D. Minn. 2003).....................................................173

Mahmoud, In re, 1997 WL 43524 (E.D.N.Y. 1997) ...................................................170

March v. Levine, 249 F.3d 462 (6th Cir. 2001) .......................7, 134, 164, 188, 189–90

Marriage of Eaddy, In re, 144 Cal. App. 4th 1202 (2006)..........................................110

Marriage of Saheb and Khazal, In re, 377 Ill. App. 3d 615 (Ill. App. 2007)...............196

Marriage of Witherspoon, In re, 155 Cal. App. 4th 964 (2007).............................31, 32

Marriage of Witherspoon, In re, 66 Cal. Rptr. 3d 586 (Cal. App. 2007)......................83

Maurizio R. v. L.C., 201 Cal. App. 4th 616 (2011)....................................115, 141, 144

Mauvais v. Herisse, 772 F.3d 6 (1st Cir. 2014)..........................................................160

Maxwell v. Maxwell, 588 F.3d 245 (4th Cir. 2009).................54, 66, 70, 159, 160, 161

McClary v. McClary, 2007 WL 3023563 (M.D. Tenn. 2007) .....................51, 126, 189

McClelland v. Carland, 217 U.S. 268 (1910) .............................................................168

McManus v. McManus, 354 F. Supp. 2d 62 (D. Mass. 2005) ............................114, 125

Medellin v. Texas, 552 U.S. 491 (2008).......................................................................13

Menachem v. Frydman-Menachem, 240 F. Supp. 2d 437 (D. Md. 2003)..........189, 190

Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347 (M.D. Fla. 2002) ........41, 100, 

118, 139

Mendoza v. Silva, 987 F. Supp. 2d 910 (N.D. Iowa 2014).................................183, 184

Meredith v. Meredith, 759 F. Supp. 1432 (D. Ariz. 1991)...........................................75

Mezo v. Elmergawi, 855 F. Supp. 59 (E.D.N.Y. 1994).........................................17, 136

Miller v. Miller, 240 F.3d 392 (4th Cir. 2001).........................................51, 66, 88, 172

Miltiadous v. Tetervak, 686 F. Supp. 2d 544 (E.D. Pa. 2010)........................73, 74, 114

Mohamud v. Guuleed, 2009 WL 1229986 (E.D. Wis. 2009).......................................86

Moreno v. Martin, 2008 WL 4726958 (S.D. Fla. 2008) .............................................150

Morris, In re, 55 F. Supp. 2d 1156 (D. Colo. 1999) ...................................57–58, 63, 78

Morrison v. Dietz, 2008 WL 4280030 (W.D. La. 2008).............................108, 122, 170

Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983).... 167, 168

Mota v. Castillo, 629 F.3d 108 (2d Cir. 2012)...52, 67, 68, 71, 105, 106, 157, 187, 188

Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001)......................xiv, 6, 16, 24, 53, 54, 55, 

56, 57, 60, 61, 62, 63, 64, 66, 67, 70, 71, 76, 78, 80, 81, 82, 83, 108, 158, 162, 185

Muhlenkamp v. Blizzard, 521 F. Supp. 2d 1140 (E.D. Wash. 2007)...........................94

Murphy v. Sloan, 764 F.3d 1144 (9th Cir. 2014).........................................................60

Neergaard-Colón v. Neergaard, 752 F.3d 526 (1st Cir. 2014).....................68, 158, 185
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

242

Neves v. Neves, 637 F. Supp. 2d 322 (W.D.N.C. 2009) ............................112, 183, 197

Ngassa v. Mpafe, 488 F. Supp. 2d 514 (D. Md. 2007)................................................124

Nicolson v. Pappalardo, 605 F.3d 100 (1st Cir. 2010)......16, 54, 75, 88, 101, 102, 104, 

130, 156, 162

Nixon v. Nixon, 862 F. Supp. 2d 1168 (D.N.M. 2011)..............................................189

Noel v. Hall, 341 F.3d 1148 (9th Cir. 2003)................................................................44

Norden-Powers v. Beveridge, 125 F. Supp. 2d 6334 (E.D.N.Y. 2000).......................112

Norinder v. Fuentes, 2010 WL 4781149 (S.D. Ill. 2010)...........................................165

Norinder v. Fuentes, 657 F.3d 526 (7th Cir. 2011).............................54, 109, 164, 183

Nunez-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir. 1995)..........69, 75, 77, 111–12

Obo v. Steven B., 687 S.E.2d 496 (N.C. App. 2009) ....................................................23

Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380 (3d Cir. 1994)..............98

Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir. 2013)............................................31–32, 174

P. v. B. (No. 2) (Child Abduction: Delay), [1999] 4 I.R. 185, 2 I.L.R.M. 401 (Ir.)......92

Pace v. DiGuglielmo, 544 U.S. 408, 125 S. Ct. 1807 (2005)........................................98

Panteleris v. Panteleris, ___ F. Supp. 2d ___, 2014 WL 3053211 (N.D. Ohio 2014)......78

Patrick v. Rivera-Lopez, 708 F.3d 15 (1st Cir. 2013)...........................................40, 196

People ex rel. Ron v. Levi, 719 N.Y.S.2d 365, 279 A.D.2d 860 (2001) ........................53

Perez v. Garcia, 148 Wash. App. 131, 198 P.3d 539 (Wash. App. 2009) ..............40, 98

Pesin v. Rodriguez, 244 F.3d 1250 (11th Cir. 2001) .....................................7, 135, 193

Pesin v. Rodriguez, 77 F. Supp. 2d 1277 (S.D. Fla. 1999) ...................................41, 135

Philippopoulos v. Philippopoulou, 461 F. Supp. 2d 1321 (N.D. Ga. 2006)........29, 199

Pielage v. McConnell, 516 F.3d 1282 (11th Cir. 2008) .................................29–30, 152

Pignoloni v. Gallagher, 2014 WL 642596 (2d Cir. 2014)..........................................101

Pitts v. De Silva, 2008 ONCA 9, [2008] 289 D.L.R. 4th 540 (Can. Ont.)............171–72

Polson, In re, 578 F. Supp. 2d 1064 (S.D. Ill. 2008)...................................................184

Prevot v. Prevot, 59 F.3d 556 (6th Cir. 1995)................................................7, 133, 134

Quinn v. Settel, 682 So.2d 617 (Fla. App. 1996) ...................................................63, 79

R.P.B., In re, 2010 WL 339812 (Ohio App. 2010)........................................................85

R.S. v. D.O., 34 Misc.3d 1239(a), 950 N.Y.S.2d 725 (2012)........................................12

Radu v. Toader, 463 F. App’x 29 (2d Cir. 2012)..........................................................30

Raijmakers-Eghaghe v. Haro, 131 F. Supp. 2d 953 (E.D. Mich. 2001)......124, 125, 188

Raveras v. Morales, ___ F. Supp. 2d ___, 2014 WL 2038318 (S.D.N.Y. 2014)..... 125, 188

Re M. and Another (Children) (Abduction: Rights of Custody), [2007] UKHL 55, 

[2008] 1 AC 1288....................................................................................................92

Re S. (A Minor) (Abduction), [1991] Fam. 224 (EWCA (Civ.)) (Eng.)......................92
Table of Authorities

243

Redmond v. Redmond, 724 F.3d 729 (7th Cir. 2013) ..........................6, 34, 37–38, 54, 

64, 66, 75, 149, 154, 157, 158, 162

Reed v. Rhodes, 179 F.3d 453 (6th Cir. 1999)...........................................................183

Reyes v. Jeffcoat, 548 F. App’x 887 (4th Cir. 2013).............................................79, 160

Rigby v. Damant, 486 F. Supp. 2d 222 (D. Mass. 2007)............................................169

Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007) ..........53, 63, 64, 66, 68, 158, 162, 188

Robinson, In re, 983 F. Supp. 1339 (D. Colo. 1997)....................................................96

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) ..............................................44, 169

Roszkowski v. Roszkowska, 274 N.J. Super. 620 (1993).....................................52, 182

Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) ......................51, 66, 67, 68, 158, 159

Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995) ...........................6, 52, 65, 88, 112, 184

S.E.O., In re, 873 F. Supp. 2d 536 (S.D.N.Y. 2012)....................................................177

S.J.O.B.G., In re, 292 S.W.3d 764 (Tex. App. 2009).....................................................31

Salazar v. Maimon, 750 F.3d 514 (5th Cir. 2014)..............................................182, 190

Saldivar v. Rodela, 894 F. Supp. 2d 916 (W.D. Tex. 2012) .......................132, 183, 184

Samman v. Steber, 2005 WL 588313 (Va. App. 2005)...............................................196

Sampson v. Sampson, 267 Kan. 175 (1999)...............................................................108

San Martín v. Moquillaza, 2014 WL 3924646 (E.D. Tex. 2014)................................125

Sanchez v. R.G.L., 743 F.3d 945 (5th Cir. 2014)...............................................129, 195

Sanchez v. R.G.L., 761 F.3d 495 (5th Cir. 2014)...............................................127, 129

Sanchez v. Suasti, 140 So.3d 658 (Fla. App. 2014)......................................................49

Sanchez-Londono v. Gonzalez, 752 F.3d 533 (1st Cir. 2014) .........66, 67, 106–07, 157

Schroeder v. Vigil-Escalera Perez, 76 Ohio Misc. 2d 25 (1995)...................................28

Sealed Appellant v. Sealed Appellee, 394 F.3d 338 (5th Cir. 2004)...................162, 182

Seaman v. Peterson, 766 F.3d 1252 (11th Cir. 2014)................................................188

Seaman v. Peterson, 762 F. Supp. 2d 1363 (M.D. Ga. 2011).............................160, 165

SEC v. Forex Asset Mgmt. LLC, 242 F.3d 325 (5th Cir. 2001) .................................128

Secretary for Justice (New Zealand Central Authority) v. H.J., [2007] 2 NZLR 289 

(SC) (N.Z.) ........................................................................................................92–93

Sewald v. Reisinger, 2009 WL 150856 (M.D. Fla. 2009)...........................................118

Shalit v. Coppe, 182 F.3d 1124 (9th Cir. 1999).............................................39, 58, 189

Silverman v. Silverman (Silverman I), 267 F.3d 788 (8th Cir. 2001).........................166

Silverman v. Silverman (Silverman II), 338 F.3d 886 (8th Cir. 2003) ............33, 51, 64, 

66, 69, 78, 109, 158–59, 166

Silverman v. Silverman, 2004 WL 2066778 (D. Minn. 2004)....................................185

Simcox v. Simcox, 2008 WL 2924094 (N.D. Ohio 2008)..........................................147
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

244

Simcox v. Simcox, 511 F.3d 594 (6th Cir. 2007)....................3, 16, 102, 109, 111, 114, 

115, 123, 139, 141, 142, 147, 156, 157, 162, 166

Skolnick v. Wainer, 2013 WL 5329112 (E.D.N.Y. 2013) ..........................................188

Skrodzki, In re, 642 F. Supp. 2d 108 (E.D.N.Y. 2007)...............................................125

Slagenweit v. Slagenweit, 64 F.3d 719 (8th Cir. 1995)..............................................183

Slagenweit v. Slagenweit, 841 F.Supp. 264 (N.D. Iowa 1993).....................................28

Sorenson v. Sorenson, 559 F.3d 871 (8th Cir. 2009).............................................66, 78

Sorenson v. Sorenson, 2008 WL 750531 (D. Minn. 2008) ..........................................33

Soucie v. Soucie, [1995] S.C. 134, S.C.L.R. 203 (Scot.)...............................................92

Souratgar v. Lee, 720 F.3d 96 (2d Cir. 2013).......114, 118–19, 156, 162, 171, 176, 188

Steffen F. v. Severina P., 966 F. Supp. 922 (D. Ariz. 1997)........................................112

Stern v. Stern, 639 F.3d 449 (8th Cir. 2011)............................................53, 64, 66, 157

Stevens v. Stevens, 499 F. Supp. 2d 891 (E.D. Mich. 2007) ..............................102, 190

Sullivan v. Sullivan, 2010 WL 227924 (D. Idaho 2010) ............................................150

Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176 (1982) ..............................15

Tahan v. Duquette, 259 N.J. Super. 328 (1992).........................................................124

Tarbell v. Jacobs, 856 F. Supp. 101 (N.D.N.Y. 1994).................................................170

Taveras v. Morales, 22 F. Supp. 3d 219 (S.D.N.Y. 2014).......................................65, 97

Taveras v. Taveraz, 477 F.3d 767 (6th Cir. 2007)................................17, 172, 173, 174

Taylor v. Taylor, 502 F. App’x 854 (11th Cir. 2012).........................................117, 157

Thapa v. Gonzales, 460 F.3d 323 (2d Cir. 2004).......................................................156

Thomson v. Thomson, [1994] 3 S.C.R. 551, 119 D.L.R. (4th) 253 (Can. S.C.C.)......26, 112

Toren v. Toren, 191 F.3d 23 (1st Cir. 1999)....................................................28, 29, 59

Troxel v. Granville, 530 U.S. 57 (2000).....................................................................134

Trudrung v. Trudrung, 686 F. Supp. 2d 570 (M.D.N.C. 2010) ......84, 123, 124, 125, 183

Tsarbopoulos, In re, 243 F.3d 550 (9th Cir. 2000) ...................................................189

Tsarbopoulos v. Tsarbopoulos, 176 F. Supp. 2d 1045 (E.D. Wash. 2001)..........70, 142

Turner v. Frowein, 253 Conn. 312 (2000)...................................................142, 144–45

United States v. Barnette, 129 F.3d 1179 (11th Cir. 1997)........................................135

Valenzuela v. Michel, 736 F.3d 1173 (9th Cir. 2013)..................................79, 157, 187

Van de Sande v. Van de Sande, 2008 WL 239150 (N.D. Ill. 2008)............................200

Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir. 2005)...........42, 111, 112, 114, 

142, 144, 190–91

Van Driessche v. Ohio-Esezeoboh, 466 F. Supp. 2d 828 (S.D. Tex. 2006)..........42, 172

Vasconcelos v. Batista, 512 F. App’x 403 (5th Cir. 2013)..........................123, 125, 158

Vela v. Ragnarsson, 386 S.W.3d 72 (Ark. App. 2011) .................................................45
Table of Authorities

245

Velez v. Mitsak, 89 S.W.3d 73 (Tex. App. 2002).......................................................195

Villegas Duran v. Arribada Beaumont, 534 F.3d 142 (2d Cir. 2008).........................176

Viragh v. Foldes, 415 Mass. 96, 612 N.E.2d 241 (1993)........................................30, 42

Viteri v. Pflucker, 550 F. Supp. 2d 829 (N.D. Ill. 2008) ........................................15, 19

Von Kennel Gaudin v. Remis, 282 F.3d 1178 (9th Cir. 2002)...................................152

Von Wussow-Rowan v. Rowan, 1998 WL 461843 (E.D. Pa. 1998)...........................132

Walker v. Walker, 701 F.3d 1110 (7th Cir. 2013).................................24, 34, 101, 165

Walker v. Walker, WL 1110876 (N.D. Ill. 2013).......................................................188

Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000)............................110, 112, 114, 115–16, 

134, 139, 145, 156, 165, 199

Walsh, In re, 31 F. Supp. 2d 200 (D. Mass. 1998)......................................................165

Wanninger v. Wanninger, 850 F. Supp 78 (D. Mass. 1994) ................................22, 102

Wasniewski v. Grzelak-Johannsen, 549 F. Supp. 2d 965 (N.D. Ohio 2008).............199

Welsh v. Lewis 740 N.Y.S.3d 3355 (App. Div. 2002) ..................................................49

West v. Dobrev, 735 F.3d 921 (10th Cir. 2013) ................................157, 187, 188, 190

Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000)...............................39, 40, 41, 114, 173

Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir. 2004).................................................184

White v. White, 718 F.3d 300 (4th Cir. 2013).............................................................34

White v. White, 556 F. App’x 10 (2d Cir. 2014)........................................................169

Whiting v. Krassner, 391 F.3d 540 (3d Cir. 2004) ..............54, 58, 63, 66, 68, 162, 196

Wiezel v. Wiezel-Tyrnauer, 388 F. Supp. 2d 206 (S.D.N.Y. 2005)............................173

Wiggill v. Janicki, 262 F. Supp. 2d 687 (S.D. W. Va. 2003) ......................................173

Wigley v. Hares, 82 So.3d 932 (Fla. App. 2011)..................................................98, 100

Wilchynski v. Wilchynski, 2010 WL 1068070 (S.D. Miss. 2010)......................113, 142

Wipranik v. Superior Court, 63 Cal. App. 4th 315 (1998) ..................................62, 186

Witherspoon v. Orange County Dep’t of Social Services, 646 F. Supp. 2d 1176 (C.D. 

Cal. 2009)..............................................................................................................166

Wojcik v. Wojcik, 959 F. Supp. 413 (E.D. Mich. 1997) ..................................94, 96, 97

Yaman v. Yaman, 730 F.3d 1 (1st Cir. 2013).........................12–13, 89–90, 95, 99, 162

Yang v. Tsui (Yang I), 416 F.3d 199 (3d Cir. 2005).......................................6, 166, 167

Yang v. Tsui (Yang II), 499 F.3d 259 (3d Cir. 2007) ......39, 40, 88, 108, 120, 122, 123, 

126, 158

Younger v. Harris, 401 U.S. 37 (1971).........................................................165–66, 167

Zuker v. Andrews, 1999 WL 525936 (1st Cir. 1999)...................................................54

Zuker v. Andrews, 181 F.3d 81 (1st Cir. 1999)...........................................................66

Zuker v. Andrews, 2 F. Supp. 2d 134 (D. Mass. 1998) ..........................................28, 59
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

246

Statutes

8 U.S.C. § 1158.............................................................................................................74

18 U.S.C. § 1204....................................................................................................ix, 136

22 U.S.C. § 9001.........................................................................................................x, 5

22 U.S.C. § 9001(b)(3)(B)............................................................................................13

22 U.S.C. § 9001(b)(4)..............................................................................................ix, 3

22 U.S.C. § 9002(7)...............................................................................................xiii, 30

22 U.S.C. § 9003(a)..................................................................................................5, 11

22 U.S.C. § 9003(b)..............................................................................................22, 174

22 U.S.C. § 9003(e)..................................................................................................5, 23

22 U.S.C. § 9003(e)(1)(A)............................................................................................24

22 U.S.C. § 9003(e)(2)(A)..........................................................................................109

22 U.S.C. § 9003(e)(2)(B)............................................................................................88

22 U.S.C. § 9003(f)(3)..................................................................................................94

22 U.S.C. § 9003(g)....................................................................................................149

22 U.S.C. § 9004(a)....................................................................................................193

22 U.S.C. § 9004(b)..............................................................................................10, 194

22 U.S.C. § 9005.............................................................................................5, 164, 165

22 U.S.C. § 9007(b)........................................................................................................5

22 U.S.C. § 9007(b)(3)...............................................................................181, 182, 184

28 U.S.C. § 636(b)(1)(B)............................................................................................161

28 U.S.C. § 1350...................................................................................................17, 174

28 U.S.C. § 1441...........................................................................................................11

Other Authorities

The American Society of International Law, Report of the Second Special Commission 

Meeting to Review the Operation of the Hague Convention on the Civil Aspects of 

International Child Abduction, 33 I.L.M. 225, 241, 1994 WL 327559 (1994). ...110

William J. Clinton, President’s Signing Statement for H.R. 3378 (1993) 993 

U.S.C.C.A.N. 2424-1 .............................................................................................136

James D. Garbolino, “International Child Custody: Handling Hague Convention Cases 

in U.S. Courts” National Judicial College, 2000 ...................................................125

Hague Conference on Private International Law, Conclusions and Recommendations 

adopted by the Special Commission on the practical operation of the 1980 and 

1996 Hague Conventions, June 2011..............................................................33, 180
Table of Authorities

247

Hague Conference on Private International Law, Preliminary Document, Draft Guide 

to Good Practice, Part V – Mediation, May 2011 ..................................................200

Hague Conference on Private International Law, Special Commission to Review the 

Operation of the Hague Convention, Conclusions and Recommendations on the 

Fifth Meeting of the Special Commission to Review the Operation of the Hague 

Convention of 25 October 1980, § 1.8.2 (2006)...................................................149

Hague Conference on Private International Law, Special Commission to Review the 

Operation of the Hague Convention, Emerging Guidance Regarding the 

Development of the International Hague Network of Judges and General Principles 

for Judicial Communications, Including Commonly Accepted Safeguards for Direct 

Judicial Communications in Specific Cases, in the Context of the International 

Hague Network of Judges......................................................................................180

Law No. 16,618, Julio 22, 1966, Diario Oficial [D.O.] (Chile)....................................49

Nigel Lowe, Statistical Analysis of Applications made in 2008 under the Hague 

Convention of 25 October 1980 on the Civil Aspects of International Child 

Abduction, Hague Conference on Private International Law, 2011......................xvii

Pérez-Vera Report............................3, 16, 24, 25, 32, 36, 39, 45, 50, 52, 64, 84, 85, 88, 

93, 110, 113, 124, 145, 152, 161, 177

Report of the Second Special Commission Meeting to Review the Operation of the 

Hague Convention (1993), 33 I.L.M. 225 .....................................................110, 137

Response to International Parental Kidnapping: Hearing Before the Sen. Comm. on 

Criminal Justice Oversight, (1999) (statement of Catherine L. Meyer, British 

Embassy Co-chair of the International Centre for Missing & Exploited Children); 

1999 WL 988418 (F.D.C.H.).................................................................................122

Sean and David Goldman International Child Abduction Prevention and Return Act of 

2014.......................................................................................................................175

Uniform Child Custody Jurisdiction and Enforcement Act ..... xiii, 6, 93, 149, 155, 178

Rules

Federal Rule of Appellate Procedure 8(a)(1)(A)........................................................155

Federal Rule of Appellate Procedure 32.1 ......................................................................2

Federal Rule of Civil Procedure 16.......................................................................xv, 193

Federal Rule of Civil Procedure 17(c)........................................................................199

Federal Rule of Civil Procedure 17(c)(2)...................................................................128

Federal Rule of Civil Procedure 44.1............................................................................39

Federal Rule of Civil Procedure 56.............................................................................189

Federal Rule of Civil Procedure 62(c)........................................................................155
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

248

Federal Rule of Civil Procedure 65.............................................................................194

Federal Rule of Civil Procedure 72(b)........................................................................161

Treatises

E.M. Clive, “The Concept of Habitual Residence,” The Juridical Review part 3 .........75

Linda Silberman, Interpreting the Hague Abduction Convention: In Search of a Global 

Jurisprudence, 38 U.C. Davis L. Rev. 1049, 1054 (2005).....................................4, 15

Regulations

53 Fed. Reg. 23,843-01...................................................................................................2

Exec. Order No. 12648, 53 Fed. Reg. 30,637 (1988)...................................................11

U.S. State Department Text & Legal Analysis, 51 Fed. Reg. 10,494 (1986) ...............8, 15, 

16, 22, 24, 40, 42, 45, 50, 85, 88, 89, 93, 95, 108, 110, 112, 113, 117, 121, 152, 182

Convention Articles

Preamble .................................................................................................................6, 161

Article 1 ..................................................................................................................7, 161

Article 2 ......................................................................................................................161

Article 3 ..................................................................7, 24, 26, 30, 31, 38, 44, 45, 94, 179

Article 3(a)....................................................................................................7, 13, 26, 30

Article 3(b) .................................................................................................7, 24, 26, 107

Article 4 ..................................................................................................................50, 85

Article 5 ........................................................................................................................47

Article 7 ........................................................................................................................11

Article 7(b) .................................................................................................................193

Article 11 .........................................................................................................xi, 12, 161

Article 12 ...........................................................8, 12, 14, 24, 27, 29, 64, 65, 71, 72, 73, 

87, 89–100, 105, 106, 117, 130, 157, 163

Article 13 ................................................8, 24, 85, 89, 90, 112, 120, 121, 122, 125, 130

Article 13(a)......................................................................................8, 87, 101, 103, 108

Article 13(b) .........................................8, 23, 69, 73, 87, 88, 92, 109, 110, 111, 113–17

122, 129, 137, 138, 142, 143, 144, 146, 172, 185

Article 16 ..........................................................................................................6, 22, 166

Article 17 ................................................................................................................43, 44

Article 18 ............................................................................................89, 90, 92, 93, 100
Table of Authorities

249

Article 20 ..........................................................8, 23, 87, 90, 92, 109, 117–20, 129, 130

Article 21 ......................................................................................................85, 173, 175

Article 22 ....................................................................................................................195

Article 26 ............................................................................................................181, 198

Article 29 ......................................................................................................................85

Article 31.......................................................................................................................40

Article 34 ......................................................................................................................93

Article 35 ......................................................................................................................17

Article 36 ......................................................................................................................85

Article 38 ......................................................................................................................17

Article 42 ....................................................................................................................198

Websites

http://hcch.e-vision.nl/index_en.php?act=publications.details&pid=2779&dtid=3....16

http://travel.state.gov/abduction/attorneysjudges/attorneysjudges_4306.html........................9

http://travel.state.gov/abduction/resources/congressreport/congressreport_1487.html......17

http://www.hcch.net/index_en.php?act=conventions.text&cid=24...............................9

http://www.hcch.net/upload/haguenetwork.pdf.........................................................181

http://www.incadat.com/index.cfm?act=text.text&lng=1.................................................17

251

Index

abstention

Colorado River................................. 167

duty to exercise jurisdiction ........... 168

Rooker-Feldman............................... 169

Younger............................................ 165

access

distinguished from custody ........ 30, 47

accession

acceptance of..................................... 18

acclimatization.............................................. 66

factors................................................ 67

infants ............................................... 68

overriding parental intent................. 67

acclimatized

vs. settled .......................................... 64

acquiescence

burden of proof............................... 101

generally.......................................... 101

subjective intent.............................. 103

written document evidencing ......... 104

administrative procedure .............................. xi

Afghanistan .....................................81, 83, 153

age

age and maturity defense ................ 120

jurisdiction........................................ 85

agreement to return child

anticipatory breach ........................... 28

Alien Tort Statute.......................................... 17

alternatives to return ..................................143

Argentina.................................. 42, 59, 74, 104

Article 12

discretion to return ........................... 92

Article 15....................................................... 32

finding............................................... 33

procedure .......................................... 33

Article 18....................................................... 89

asylum ...................................................73, 127

conditions ......................................... 74

grounds for grave risk..................... 129

priority of return order ................... 129

relevance ......................................... 129

attorney fees and costs

amount............................................ 183

authority for.................................... 181

clearly inappropriate ....................... 184

lodestar............................................ 183

purposes.......................................... 182

unclean hands................................. 132

Attorney General ........................................ 129

Australia ............................. 33, 56, 70, 76, 104

barring order............................................... 116

Belgium ......................................................... 77

bonds

posting of ........................................ 196

restrictions on ................................. 195

Brazil.............................................................. 85

British Columbia........................................... 39

burden of proof

case in chief....................................... 23

clear and convincing evidence .. 26, 109

defenses............................................. 25

generally............................................ 23

Canada ......................................40, 54, 58, 127

case for return

basic elements..............................xiii, 7

case management

appointed counsel ........................... 198

conference ....................................... 199

generally.................................... xv, 193

security of child............................... 193

timelines.......................................... 197

Central Authority ......... xi, 15, 19, 21, 94, 131, 

151, 161, 202, 204, 205, 206, 208, 209, 210

role .................................................... 11

chasing orders.......................................33, 143

child abuse

intolerable situation ........................ 112

child custody.............................................. ix, 3

child settled................................................... 95

defense .............................................. 94

Children’s Passport Issuance Alert Program

............................................................... 197

Chile .............................................................. 49

circuit split

habitual................................................... 53

clear and convincing evidence..................... xv
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

252

coercion

generally............................................ 69

non-removal order............................ 70

Colombia.....................................................106

comity

as basis for exercising jurisdiction.. 173

denial of .......................................... 171

enforcement of foreign custody orders

................................................... 172

examining foreign orders................ 171

refusal to grant................................ 120

commencement of proceedings................... 94

defined .............................................. 94

common-law countries

undertakings used in....................... 137

communication

between judges........................ xvii, 180

concurrent jurisdiction

removal ........................................... 169

Congress................................... 10, 13, 52, 136

consent........................................................101

conduct of parent............................ 102

participant in custody case.............. 103

contempt.....................................................135

Convention

purposes generally ....................... ix, 14

signed.................................................. 2

counsel for children....................................199

criminal proceedings..........................136, 142

Custody agreements

definiteness ....................................... 45

custody case

merits ................................................. ix

petition filed in.................................. 23

custody decree

enforcement of .................................. 36

recognition of.................................... 35

custody rights

Abbott decision .................................. 49

administrative agencies holding........ 30

broad definition ................................ 49

burden in case in chief...................... 24

by agreement..................................... 44

change in........................................... 38

establishing ....................................... 39

generally...........................................xiii

holders of .......................................... 30

judicial or administrative decision.... 42

non-exercise ...................................... 24

operation of law ................................ 39

order approving, necessity ................ 45

orders ................................................ 43

temporary custody order................... 42

Cyprus.....................................................73, 74

Czech Republic........................................... 153

defenses

basic elements.............................. xiv, 7

burdens of proof................................ 87

discretionary...................................... 90

generally............................................ 87

interpretation .................................... 88

narrow interpretation........................ xv

narrowly defined ........................... 7, 25

non-discretionary.............................. 92

procedural ......................................... 87

delay

more than a year................................ 94

reasons for....................................xi, 12

two prongs of defense ....................... 94

deportation.................................................... 71

threat of............................................. 73

discovery ..................................................... 188

no right to ....................................... 188

schedule ..........................164, 193, 197

domestic violence

clear and convincing evidence ........ 114

degrees of ........................................ 115

directed at parent only .................... 114

generally.......................................... 114

in presence of children.................... 116

mediation ........................................ 200

threats.............................................. 117

domicile......................................................... 52

Dominican Republic.............................17, 172

educational opportunities

limited ............................................. 111

Egypt ........................................................... 136

England.........................................43, 170, 172

entry into force

date............................................................ 2

equitable defenses

generally................................................ 130
Index

253

equitable tolling ............................................ 98

evidence

declarations or affidavits................. 186

live testimony.................................. 186

evidentiary hearing

denial of .......................................... 190

when necessary ............................... 185

ex parte

custody decree .................................. 42

exercise of custody rights

acts constituting............................... 108

defined ............................................ 108

placement of child with third party.. 108

expeditious handling

appeals ............................................ 162

generally...................................... x, 161

reasons for delay ............................. 161

trial courts....................................... 162

Federal Rules of Civil Procedure

applicability..................................... 163

foreign courts

trust in............................................. 119

foreign law

proof of.............................................. 39

forensic evaluation......................................113

form of action................................................ 22

forum shopping ............................................ 52

foster care ............................................127, 195

France...........................63, 122, 130, 133, 144

fugitive disentitlement............... 130, 133, 135

full faith and credit .........................42, 44, 149

inapplicable to foreign judgments .... 42

fundamental purposes...............................ix, 6

Germany... 29, 39, 43, 61, 80, 82, 83, 84, 112, 

167

Goldman Act...............................................175

grave risk

asylum affecting .............................. 129

child abuse ...................................... 113

courts unable to provide protection 111

defined ............................................ 111

domestic violence............................ 114

generally.................................... xv, 109

interpretation .................................. 111

separation from caregiver................ 112

sexual abuse .................................... 113

Greece ...........................................70, 102, 171

habeas corpus............................................. 119

warrant in lieu................................... 22

habitual residence

acclimatization .................................. 63

after only one day.............................. 55

agreements establishing .................... 46

asylum ............................................... 73

change by wishful thinking............... 55

change in geography required........... 47

coercion............................................. 69

contractual agreement....................... 36

different territorial units..................... 40

domicile............................................. 52

duration of stay ................................. 57

fact driven.......................................... 51

generally.....................................xiii, 50

immigration status ............................ 71

infants.......................................... 74, 77

intent to abandon........................ 53, 70

lack of mutual intent................... 61, 84

length of stay..................................... 58

majority view..................................... 54

military families ................................ 80

mutual intent to change .................... 56

mutual settled intent......................... 56

nationality and citizenship................ 53

not defined by Convention ............... 50

only one............................................. 63

orders fixing place of......................... 46

parent intent negated ........................ 63

parents change in residence .............. 59

physical abuse ................................... 69

physical presence .............................. 84

right to determine residence ............. 48

rights relating to care of child........... 48

settled purpose .................................. 51

UK definition ..................................... 51

Hague Judicial Network.....................xvii, 180

Hague Permanent Bureau ..... xii, 17, 179, 180

hearing

evidentiary....................................... 188

on affidavits..................................... 189

summary judgment ......................... 188

Hilton, William M., Esq. ................................ 3

Homeland Security..................................... 127
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

254

House of Lords.............................................. 92

Iceland.....................................................45, 82

immigration status........................................ 71

acclimatization .................................. 71

affecting habitual residence .............. 71

child settled....................................... 72

implementing legislation................................ 2

in camera interviews...................................125

INCADAT ..................................................... 17

incoming cases............................................... xi

individual territories

within countries................................. 40

infants

habitual residence does not follow 

mother......................................... 77

International Child Abduction Remedies Act 

(ICARA)............x, 3, 5, 10, 13, 23, 25, 28, 

87, 95, 155, 165, 181, 182, 193, 194, 198

interpretation ................................................ 13

executive interpretation.................... 15

uniform international interpretation 13

intervene

child’s standing to ........................... 127

intolerable situation

financial conditions......................... 112

generally.................................... xv, 109

IPKCA ....................................................ix, 136

Iraq...........................................................82, 83

Ireland ...........................................37, 107, 116

Islamic law ..............................................9, 118

Israel ...............................28, 46, 47, 48, 58, 61

Italy........................................................83, 141

Japan.............................................................. 18

Jordan..........................................................194

judicial communication

concerning merits of case................ 179

direct ............................................... xvii

generally.......................................... 178

judicial independence ..................... 178

logistics ........................................... 178

safeguards........................................ 180

judicial independence ................................180

jurisdiction

concurrent......................................... 11

original, concurrent .......................... xii

personal........................................... 154

where child is located ....................... 22

legal aid ....................................................... 183

legal representation

pro bono and reduced fee ............... 198

Libya............................................................ 136

mediation

agreements ...................................... 200

delay caused by ............................... 200

generally.......................................... 199

member states............................................... 18

approval of Convention ...................... 9

mens rea......................................................... 26

Mexico ........ 40, 72, 78, 79, 89, 105, 134, 189

military

families........................................ 51, 80

parent in.................................... 84, 167

mirror-image orders...................xvii, 139, 150

limitations....................................... 151

recognition of.................................. 151

moot case .................................................... 155

"concrete interest" .......................... 153

National Conference of Commissioners on 

Uniform State Laws.................................. 9

Native Americans......................................... 31

ne exeat ............................... 13, 48, 49, 50, 230

negotiations

for return by Central Authority ........ 21

Netherlands................................................... 29

non-Hague country .................................... 136

Northern Ireland......................................... 107

objection to return

age and maturity ............................. 121

age of child...................................... 124

burden of proof ............................... 121

court's discretion............................. 121

generalized desires.......................... 126

in camera interviews ....................... 125

length of wrongful retention........... 126

manner of hearing........................... 125

objections vs. wishes....................... 122

preponderance of the evidence ....... 121

sole basis for denial of petition ....... 121

two-step process.............................. 122

undue influence .............................. 123

vs. child’s wishes............................. 120

Office of Refugee Resettlement.................. 195
Index

255

official history and commentary.................. 16

outgoing cases................................................ xi

Panama.......................................................... 42

parallel jurisdiction

issues............................................... 165

passports

deposit of......................................... 197

patria potestas................................................ 40

defined .............................................. 41

personal belongings

sale of ................................................ 82

Peru .............................................................116

Poland............................................................ 71

posting

military.............................................. 83

poverty.........................................................111

preponderance of the evidence..............xv, 25

prima facie case

generally............................................ 22

primary caretaker........................................143

abduction by ..................................... 35

pro bono......................................................183

procedures

most expeditious................................. x

prompt return .............................................161

protection of human rights and fundamental 

freedoms

generally.......................................... 117

provisional remedy............................ix, 4, 193

PTSD....................................................116, 141

Puerto Rico..................................................130

racial prejudice

constituting grave risk .................... 112

ratification

member states and party states ......... 18

versus accession ................................ 18

re-abduction...............132, 193, 195, 196, 197

reconciliation ..............................................104

of marriage ........................................ 70

relocation

acquiescence ................................... 107

for limited time ................................. 57

inability ........................................... 105

indefinite period of time ................... 60

legal entry........................................ 107

re-entry............................................ 106

removal of case ........................................... 170

res judicata.................................................... 46

restraining orders........................................ 116

return

administrative request for ................. 21

return orders

generally................................... xvi, 149

particularity..................................... 150

safety of child .................................. 149

to other than habitual residence ..... 152

under other laws ............................... 93

return refused

alternatives to.................................. 143

alternatives, duty to consider.......... 143

ameliorative measures..................... 143

Roman Law................................................... 40

Romania ........................................................ 30

safe harbor orders

defined..................................... xvii, 151

sanctions ..................................................... 154

Scotland...........................................26, 81, 153

selection of forum....................................... 170

settled ............................................................ 98

child concealed ................................. 98

defined............................................... 95

equitable factors................................ 97

factors................................................ 95

return despite .............................. 90, 91

vs. acclimatized ................................. 64

settled purpose.............................................. 66

sexual abuse................................................ 113

shuttle custody.............................................. 78

signatories

number of.......................................... 15

Singapore..................................................... 118

sister state signatories

cooperation with ............................... 11

decisions of ....................................... 12

member states ................................... 18

number of.......................................... 15

party states ........................................ 18

Spain....................................................119, 178

standing

test for ............................................. 128

state law

application of .................................... 10
The 1980 Hague Convention on the Civil Aspects of International Child Abduction (2d ed.)

256

removal of child from custodial 

parent ........................................ 194

status quo ante..........................................6, 35

stays

appellate courts issuing................... 156

child custody proceedings .................. 5

discretion ........................................ 156

factors for granting.......................... 155

generally.......................................... 155

judicious use of............................... 162

stipulation

for return......................................... 153

summary judgment ....................................189

Sweden ..........................................63, 113, 138

Switzerland......................................34, 57, 132

Syariah court...............................................118

temporary restraining order.......................194

testimony

affidavits in lieu............................... 187

telephone......................................... 187

threats

concealment or abduction .............. 193

Turkey........................................................... 31

U.S. Marshals Service...........................xvi, 150

U.S. service members

posting .............................................. 80

U.S. State Department ..... xi, 8, 12, 15, 16, 21, 

181, 198

Central Authority for U.S.................. 11

Children's Passport Issuance Alert 

Program..................................... 197

informs courts of cases filed............... 12

locating counsel for applicants ....... 198

Office of Children's Issues ........... xi, 15

Text & Legal Analysis.... 16, 85, 88, 93, 

95, 112, 152

views on interpretation of Convention

..................................................... 12

UCCJEA....................xiii, 6, 93, 149, 155, 178

unclean hands.....................................130, 132

undertakings.......................................114, 142

absent Article 13(b) defense ........... 138

appropriate use................................ 138

enforceability................................... 139

extensive.......................................... 146

financial assistance.......................... 142

generally................................... xvi, 137

parent to accompany child.............. 147

primary caretaker............................ 142

protective orders ............................. 142

vacating chasing orders................... 143

when inappropriate ......................... 146

United Kingdom.......................51, 81, 93, 153

decisions............................................ 90

Venezuela..................................43, 44, 79, 135

waiver..................................................130, 131

wrongful removal

commencement date ......................... 27

defined........................................... 7, 26

generally............................................ 26

under law of habitual residence ........ 32

vs wrongful retention........................ 27

wrongful retention

anticipatory breach ........................... 29

by grandparents............................... 134

commencement date ......................... 27

defined............................................... 26

determining date of........................... 94

wrongfulness

defined........................................xiii, 26

Younger abstention ..................................... 165

zone of war.................................................. 111
The Federal Judicial Center 

Board 

The Chief Justice of the United States, Chair 

Judge Catherine C. Blake, U.S. District Court for the District of Maryland 

Judge Curtis L. Collier, U.S. District Court for the Eastern District of Tennessee

Magistrate Judge Jonathan W. Feldman, U.S. District Court for the Western District of 

New York

Judge Kent A. Jordan, U.S. Court of Appeals for the Third Circuit 

Judge Michael J. Melloy, U.S. Court of Appeals for the Eighth Circuit 

Judge Kimberly J. Mueller, U.S. District Court for the Eastern District of California

Chief Judge C. Ray Mullins, U.S. Bankruptcy Court for the Northern District of Georgia 

James C. Duff, Director of the Administrative Office of the U.S. Courts 

Director 

Judge Jeremy D. Fogel 

Deputy Director 

John S. Cooke 

About the Federal Judicial Center 

The Federal Judicial Center is the research and education agency of the federal judicial 

system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States. 

By statute, the Chief Justice of the United States chairs the Center’s Board, which also 

includes the director of the Administrative Office of the U.S. Courts and seven judges 

elected by the Judicial Conference. 

The organization of the Center reflects its primary statutory mandates. The Education 

Division plans and produces education and training for judges and court staff, including 

in-person programs, video programs, publications, curriculum packages for in-district 

training, and Web-based programs and resources. The Research Division examines and 

evaluates current and alternative federal court practices and policies. This research assists 

Judicial Conference committees, who request most Center research, in developing policy 

recommendations. The Center’s research also contributes substantially to its educational 

programs. The Federal Judicial History Office helps courts and others study and preserve 

federal judicial history. The International Judicial Relations Office provides information 

to judicial and legal officials from foreign countries and informs federal judicial personnel 

of developments in international law and other court systems that may affect their work. 

Two units of the Director’s Office—the Information Technology Office and the Editorial 

& Information Services Office—support Center missions through technology, editorial 

and design assistance, and organization and dissemination of Center resources.