Federal Judicial Center

International Litigation Guide

The 1980 Hague Convention on the

Civil Aspects of International Child Abduction:

A Guide for Judges

2012

Federal Judicial Center

International Litigation Guide

The 1980 Hague Convention on the

Civil Aspects of International Child Abduction:

A Guide for Judges

Hon. James D. Garbolino

Federal Judicial Center 2012

This Federal Judicial Center publication was undertaken in furtherance of the Center’s 

statutory mission to develop and conduct education programs for the judicial branch. 

While the Center regards the content as responsible and valuable, it does not reflect 

policy or recommendations of the Board of the Federal Judicial Center.

v

Contents

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............................................... 8

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

1. Text of the 1980 Convention............................................................ 10

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

3. Concurrent Jurisdiction.................................................................... 10

4. Role of the Central Authority ........................................................... 10

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

1. Abbott Guidelines.............................................................................. 12

2. Pérez-Vera Report............................................................................. 14

3. U.S. State Department Text & Legal Analysis .................................. 15

4. INCADAT ......................................................................................... 15

G. Whether Both Countries Are Bound by the Treaty .............................. 15

II. The Case-in-Chief for the Return of a Child ............................................. 19

A. Summary ............................................................................................... 19

B. Burdens of Proof.................................................................................... 21

C. Wrongful Removal and Retention ........................................................ 23

1. Distinguishing Between Wrongful Removal and Wrongful 

Retention.......................................................................................... 23

2. Anticipatory Violation and Wrongful Retention .............................. 25

3. Retention by Ne Exeat Order ............................................................ 26

4. Custody Rights.................................................................................. 27

5. Rights of Custody Versus Rights of Access....................................... 38

6. Ne Exeat Orders—Abbott v. Abbott.................................................... 39

D. Habitual Residence ............................................................................... 41

1. Appellate Standard of Review ........................................................... 43

2. The Role of Parental Intent............................................................... 44

E. Age of the Child .................................................................................... 60
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III. Defenses to the Petition for Return.......................................................... 63

A. Summary ............................................................................................... 63

1. Narrow Interpretation of Defenses ................................................... 64

2. Court May Order Return Even If Defense Established ..................... 65

B. Delay of More Than One Year............................................................... 68

1. Child Settled in New Environment................................................... 68

2. Equitable Tolling .............................................................................. 70

C. Consent and Acquiescence ................................................................... 74

D. Failure to Exercise Rights of Custody .................................................. 76

E. Grave Risk of Harm—Intolerable Situation .......................................... 78

1. Defining Grave Risk and Intolerable Situation ................................. 79

2. Child Abuse ...................................................................................... 81

3. Domestic Violence ............................................................................ 82

F. Violations of Human Rights and Fundamental Freedoms.................... 85

G. Child’s Objection to Return.................................................................. 87

1. Age and Maturity .............................................................................. 89

2. Manner of Hearing Child’s Objection............................................... 90

H. Nonstatutory Defenses: Equitable Defenses......................................... 91

1. Waiver............................................................................................... 92

2. Unclean Hands.................................................................................. 93

3. Fugitive Disentitlement .................................................................... 94

I. Undertakings.......................................................................................... 98

J. Exhausting All Possible Alternatives to Refusing Return—

Circuit Split ......................................................................................... 102

IV. Issuing Orders of Return ........................................................................ 107

A. Specificity: Time, Manner, and Date of Return................................... 107

B. Mirror-Image Orders........................................................................... 108

C. Safe Harbor Orders ............................................................................. 109

D. Returns to Countries Other Than Habitual Residence ....................... 110

E. Stays and Mootness............................................................................. 110

V. Procedural Issues..................................................................................... 115

A. Expeditious Handling Required.......................................................... 115

1. Application of Federal Rules of Civil Procedure ............................ 116

2. Expedited Discovery ....................................................................... 117

3. Relaxed Rules for Admissibility of Documents............................... 117

B. Parallel Jurisdiction Issues .................................................................. 118

1. Younger Abstention ......................................................................... 118

2. Colorado River Abstention .............................................................. 120
Contents

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3. Rooker-Feldman Doctrine ................................................................ 122

4. Removal .......................................................................................... 122

C. Comity ................................................................................................ 123

1. Hague Convention Orders of Other Nations.................................. 123

2. Enforcement of Foreign Custody Decisions................................... 125

D. Petitions for Access Only.................................................................... 125

E. Contacting Judges in Foreign Jurisdictions ........................................ 126

F. Attorney Fees and Costs...................................................................... 129

1. Authority for Awards...................................................................... 129

2. Amount of Awards.......................................................................... 130

VI. Case Management .................................................................................. 133

A. Securing the Child’s Safety from Further Removal or Concealment.. 133

1. State Laws Regarding Removal of Child from Home 

Without Notice .............................................................................. 134

2. Foster Care...................................................................................... 135

3. Bonds .............................................................................................. 135

4. Deposit Passports............................................................................ 136

B. Establishing Timelines ........................................................................ 136

C. Legal Representation........................................................................... 137

D. Narrowing the Issues for Trial............................................................ 138

E. Mediation ............................................................................................ 139

Appendix A: Text of the 1980 Convention ..................................................... 141

Appendix B: International Child Abduction Remedies Act ............................ 157

Appendix C: Checklist for Hague Convention Cases...................................... 167

Appendix D: Countries Where Convention Is In Force with United States... 169

Table of Authorities ..................................................................................... 171

Index ............................................................................................................ 183

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 not criminal.1 The Convention 

is the only internationally recognized remedy that compels the actual 

return of the 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.2 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, 

 

1. 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.

2. 42 U.S.C. § 11601(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

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that proceeding must be stayed pending outcome of the Hague petition for return of the child. See infra page 6.

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 141. The procedural aspects of handling these cases are governed by the International Child 

Abduction Remedies Act (ICARA), 42 U.S.C. §§ 11601–11610. A copy 

of ICARA can be found in Appendix B, infra at page 157.

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 it is 

currently in force between the U.S. and 68 other countries. A list of 

those countries can be found in Appendix D, infra at page 169. 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 167, 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 115.) 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.3

• 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 10.

• 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 

 

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

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 19.

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

the Convention. In the only case under the Convention to be decided by the Supreme Court, Abbott v. Abbott,

4 the 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 39. 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 15.

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 118.

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.

 

4. Abbott v. Abbott, 560 U.S. ____, 130 S. Ct. 1983 (2010).
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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 parent5according 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 21.

• 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

6 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 27.

• 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 

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 

 

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

6. 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.” 

42 U.S.C. § 11602(7) (1988).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

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 41.

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.

7 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 Sixth 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 44.

Defenses to Return

The Convention sets forth five defenses to petitions for return:

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

page 68); 

• consent or acquiescence to removal or retention of the child 

(infra page 74);

• failure to exercise custody rights (infra page 76);

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

page 78); and

• return would violate fundamental principles of human rights 

(infra page 85).

 

7. Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). 
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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 87.

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 remainder of the defenses are subject to 

proof by a preponderance of the evidence.

The 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 65.

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 81.

Managing the Case

Hague Convention cases require active case management. See discussion infra at page 133. Because these cases are to be handled in an 

expeditious manner, it is recommended that a Rule 168 conference 

should be promptly scheduled so that a trial date may be set and or-

 

8. Federal Rule of Civil Procedure 16.
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xvi

ders made for the completion of discovery. 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 re-abduction 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); 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 137.

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 107.

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 a thing, or refrain from 

doing something. Undertakings may consist of offers for temporary 

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
Executive Summary

xvii

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 98.

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 the 

conditions of the child’s return may be enforced by the courts of that 

nation. See discussion infra at page 108.

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 logistic issues concerning the return of a 

child. Forty-five 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 126.

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.9 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 

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

the law will expand accordingly. For these reasons, handling cases 

under the 1980 Convention promises to be both interesting and challenging.

 

9. 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.

1

Introduction

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

Civil Aspects of International Child Abduction,10 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 1. Total Applications for Return Received Through U.S. State 

Department, 2008–2011

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

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

 

10. 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”]. 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

2

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

July 1, 1988.11 As of April 2012, eighty-seven nations have ratified or 

acceded to the treaty. It is in force between the United States and sixty-eight of those countries.12

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.

13 Because the Convention is an international 

instrument, decisions from courts of other contracting nations will be 

noted if relevant.

14

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

 

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

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

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

the treaty and which 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 “Whether Both Countries Are Bound by the Treaty,” infra at 

page 15. Appendix D, infra at page 169, lists the countries where the treaty is currently in force with the United States.

13. 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.

14. See generally Abbott v. Abbott, 560 U.S. ____, 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

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 Act15 (ICARA)—a list of countries where 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.”

16 On the contrary, 

all relevant authorities caution courts not to become mired in the 

question of which parent is the “better” parent.

17 A foundational 

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

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

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

be viewed as akin to a “provisional remedy.”

19

 

15. 42 U.S.C. §§ 11601–11610 (1988).

16. 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).

17. See 42 U.S.C. § 11601(b)(4) (1988); see also Jenkins v. Jenkins, 569 F.3d 

549, 555 (6th Cir. 2009).

18. See Explanatory Report by Elisa Pérez-Vera ¶ 19 (1982) [hereinafter PérezVera Report].

19. 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). 

Figure 2. Highest Incidence of Reported Abductions to the U.S. in 

FY 2009

Source: 2010 U.S. State Department Compliance Report to Congress

The structure for hearing return cases is set forth at 42 U.S.C. 

§§ 11601–11610, the International Child Abduction Remedies Act

(ICARA). Pursuant to ICARA, both state and federal courts have orig-
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

6

inal concurrent jurisdiction to hear cases arising under the Convention.20 ICARA also sets forth burdens of proof applicable to the case 

for return and defenses,

21 relaxed rules for admissibility of documents,

22 and establishes guidelines for the award of fees and costs.23

ICARA is set forth in Appendix B, infra at page 157.

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

court requires that state court custody proceedings be stayed. 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 maintained. 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 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.24 A federal court may vacate a state court custody 

determination that was entered in violation of the stay provisions of 

Article 16. 25

B. Purposes for Adoption of the Convention

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

children and (2) to provide a prompt remedy26 for the return of abducted children.27 It aims to restore the child to the “status quo ante”

 

20. 42 U.S.C. § 11603(a) (1988).

21. Id. § 11603(e).

22. Id. § 11605.

23. Id. § 11607(b).

24. See Convention, supra note 10, Article 16; see also Yang v. Tsui, 416 F.3d 

199, 203 (3d Cir. 2005).

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

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

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

wrongful removal or retention and to establish procedures to ensure their prompt 
I. The 1980 Convention

7

and discourage parents from crossing international frontiers in search 

of friendlier fora to validate their custody claims.

28

The Convention is not a jurisdictional statute such as the Uniform 

Child Custody Jurisdiction and Enforcement Act (UCCJEA).

29 The 

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

enforcement of foreign or domestic child custody orders.

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.30 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.31

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.32 Children are defined as 

persons under sixteen years of age.33

 

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

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

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

29. 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 and Puerto Rico for adoption in those jurisdictions.

30. See Convention, supra note 10, Articles 1, 3. 

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

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

33. See id.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

8

D. Basic Elements of the Defenses to Return

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

child:34

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;35

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;36

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

child consented to or subsequently acquiesced in the removal 

or retention;37

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”;

38

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.”

39

 

34. 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); March v. Levine, 249 F.3d 462 (6th 

Cir. 2001); 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); cf. Karpenko v. 

Leendertz, 619 F.3d 259 (3d Cir. 2010) (refusing to apply the doctrine of “unclean 

hands”).

35. Convention, supra note 10, Article 12. 

36. Id., Article 13(a). 

37. Id.

38. Id., Article 13(b).

39. Id., Article 20.
I. The 1980 Convention

9

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

court determines it is appropriate to consider the child’s views.40

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

the court retains some discretion to order the child returned.41

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.42

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, 

eighty-seven nations have signed that Convention, representing countries with legal systems based on common law, civil law, Islamic law,

43

and various combinations thereof.

 

40. Id., Article 13.

41. 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 65.

42. 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. 

43. 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.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

10

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.

44 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.45

2. International Child Abduction Remedies Act

The International Child Abduction Remedies Act46 (ICARA) implemented the Convention in the United States. Congress passed ICARA

in 1988, contemporaneous with the Convention, entering the Convention into force between the United States and other nations.47 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.48

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.49

This gives rise to potential issues relating to removal,

50 parallel actions,

51 and abstention.52

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 

 

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

45. See http://travel.state.gov/abduction/attorneysjudges/attorneysjudges_4306.html.

46. 42 U.S.C. §§ 11601–11610 (1988). 

47. See supra page 2, note 11.

48. 42 U.S.C. § 11604(b) (1988). See discussion infra at page 134.

49. See 42 U.S.C. § 11603(a) (1988).

50. See 28 U.S.C. § 1441 (2002).

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

52. See Holder v. Holder (Holder I), 305 F.3d 854 (9th Cir. 2002).
I. The 1980 Convention

11

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.

53

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.

54

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. 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.

55

 

53. 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).

54. See Convention, supra note 10, Articles 7, 11.

55. See infra page 28.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

12

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.56

F. Treaty Interpretation

In Abbott v. Abbott,

57 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.

1. Abbott Guidelines

Abbott addressed the issue of whether a ne exeat58 clause, coupled with 

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

Convention. 

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

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

60 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,

61 but that right must inevitably be determined by following 

the text and structure of the Convention. 

 

56. Convention, supra note 10, Article 11.

57. 560 U.S. ____, 130 S. Ct. 1983 (2010). Abbott is the only U.S. Supreme 

Court case to date that deals with the Convention. 

58. 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.

59. 552 U.S. 491 (2008).

60. Abbott, 130 S. Ct. at 1990.

61. See Convention, supra note 10, Article 3(a).
I. The 1980 Convention

13

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, text, and 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.

62

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.63 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.

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

branch concerning interpretation of the Convention are entitled great 

weight.64 In Abbott, the Court gave deference to the opinions of the 

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

65

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

 

62. 42 U.S.C. § 11601(b)(3)(B) (1988).

63. See the discussion on custody rights infra beginning at page 39. 

64. See Abbott, 130 S. Ct. at 1993 (citing Sumitomo Shoji America, Inc. v. 

Avagliano, 457 U.S. 176, 184–85 n.10 (1982)). 

65. 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).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

14

to the Convention.

66 This is especially true now that eighty-seven

countries are signatories to the Convention. Uniform interpretation 

can be undermined by undue reliance on local domestic practices, 

legal concepts, 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 textbased 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.

67

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.”

68

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.69 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.”

70 U.S. 

 

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

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

67. Abbott, 130 S. Ct. at 1991.

68. Id.

69. Pérez-Vera Report, supra note 18. The Pérez-Vera Report may be accessed and 

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

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

70. 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 65, 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, de-
I. The 1980 Convention

15

courts routinely cite to this report for guidance on interpreting the 

treaty.

71

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

The Text & Legal Analysis72 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.73

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 (The International Child Abduction Database).

74 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 Treaty75

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 applica-

 

spite the Rapporter’s [sic] efforts to remain objective, certain passages reflect a viewpoint which is in part subjective”). 

71. 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). 

72. Text & Legal Analysis, supra note 65.

73. 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). 

74. This database can be found at http://www.incadat.com/index.cfm?act=text

.text&lng=1.

75. 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.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

16

tion for return;

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

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

both countries.77

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

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

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 of approval of the Convention 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.78 For example, 

the 1999 ratification by Belgium, a member state, caused the Convention to come into force between Belgium and all other member states 

that had previously ratified, including the United States. However, 

when a 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 until 2007. As such, the Con-

 

76. See Convention, supra note 10, Article 38.

77. See id., 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 U.S. 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 U.S. did not confer jurisdiction under the ATS. 

78. 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

17

vention 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.

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. Pflucker79 concluded that 

the Convention will apply if it is in force between 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 jurisdic-

 

79. 550 F. Supp. 2d 829 (N.D. Ill. 2008).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

18

tion 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.

80

 

80. 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. 
19

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 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 obviated 

by petitioner’s earlier notice.

81

 

81. 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

20

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.

82 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 42 U.S.C. 

§ 11603(b).

83 A petition for return is sometimes accompanied by a 

request for a warrant in lieu of habeas corpus.

84 In state courts, however, the matter has been raised in a number of legal avenues.85

 

82. See Text & Legal Analysis, supra note 65, at 10,507.

83. 42 U.S.C. § 11603(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.”

84. 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).

85. 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 

21

B. Burdens of Proof

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

and for the defenses to return.

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

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.87

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

custody rights was actually exercising those rights. There are two provisions in the Convention that deal with the exercise of rights of custody: (1) Article 3(b) 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 the former case, the Convention presumes that 

only preliminary evidence will be needed to establish that custody 

rights were being exercised.88 In the case of the Article 13 defense, 

 

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 (Sup. Ct. 2007)) (unpublished 

table decision) (raising return of child issue in action for writ of habeas corpus).

86. 42 U.S.C. § 11603(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 

(B) by a preponderance of the evidence that any other exception set forth in article 12 

or 13 of the Convention applies.

87. See 42 U.S.C. § 11603(e)(1)(A) (1988).

88. 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 Analy-
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

22

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.89

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.

• 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.”

 

sis, supra note 65, 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.”).

89. See Pérez Vera Report, supra note 18, ¶ 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).”
II. The Case-in-Chief for the Return of a Child 

23

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.90

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.91 If an action is commenced after the one-year

 

90. 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 

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.”).

91. See Convention, supra note 10, 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 68.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

24

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 in the case of wrongful removal, the time 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.

92 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 returned,

93 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.94

 

92. See, e.g., Belay v. Getachew, 272 F. Supp. 2d 553 (D. Md. 2003).

93. 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).

94. 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).
II. The Case-in-Chief for the Return of a Child 

25

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,

95 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 retention. . . . Therefore, we do not see how a petitioner like the father, alleging only an anticipatory retention, can invoke the protections of the Hague Convention.96

Following Toren’s holding, the district court in Falk v. Sinclair97 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 

 

95. 191 F.3d 23 (1st Cir. 1999).

96. Id. at 28.

97. 692 F. Supp. 2d 147 (D. Me. 2010); accord Philippopoulos v. Philippopoulou, 461 F. Supp. 2d 1321, 1325 (N.D. Ga. 2006).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

26

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 40 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.

98

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,

99

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

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 petition 

claiming rights under the Convention, not where the petitioner still 

retains the child but is prevented from removing him from the jurisdiction” (emphasis added).100

 

98. Falk, 692 F. Supp. 2d at 162.

99. 516 F.3d 1282 (11th Cir. 2008).

100. Id. at 1289.
II. The Case-in-Chief for the Return of a Child 

27

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.101 Custody rights are

more than mere visitation or “access” rights.102 A person may not 

maintain an action for return of a child when that person is entitled to 

exercise only access or visitation rights.103

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 

bodies also may claim custody rights.104 Article 3 establishes that the 

law of the country in which the child was habitually resident determines custody rights.

105

 

101. See Convention, supra note 10, Article 3.

102. 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 42 U.S.C. § 11602(7) (1988) (providing “the term ‘rights of access’ means visitation rights”).

103. 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)).

104. 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). 

105. 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). 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

28

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.106

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.107

Although this provision has not been widely noted in the case law, it 

appears that it has been used in some cases.108 The procedure for obtaining information pursuant to Article 15 is cumbersome and may 

cause unnecessary delay.109 Another option for the court is to make 

direct contact with a Hague network judge (see infra page 128) and 

request information concerning the law of custody rights in the foreign jurisdiction.

 

106. See, e.g., Diabo v. Delisle, 500 F. Supp. 2d 159, 163 (N.D.N.Y. 2007).

107. See Convention, 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.

108. 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).

109. 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.
II. The Case-in-Chief for the Return of a Child 

29

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.110

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.111 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 98.

d. 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.112 Courts are 

frequently requested to interpret foreign law questions, especially 

when analyzing the question whether a parent has “custody rights”

 

110. 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 

Cir. 2007) (finding that removal of children from grandparents who were testamentary guardians was a wrongful removal).

111. 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.

112. See Convention, supra note 10, Article 3.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

30

under the Convention. Proof of foreign law may be established pursuant to Rule 44.1 of the Federal Rules of Civil Procedure.

113 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.114

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 Tsai-Yi 

Yang v. Fu-Chiang Tsui,

115 the court determined the custody rights of 

unmarried parents pursuant to the law of British Columbian, the 

child’s habitual residence. Under British Columbia law, the parent 

with whom the child “usually resided” is entitled to custody of the 

child.116 Similarly, in Bader v. Kramer (Bader I),

117 the court applied 

the law of the child’s habitual residence, in this 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 parent sole custody of the child, both parents re-

 

113. 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.”

114. See Pérez-Vera Report, supra note 18, ¶ 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 “We 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).

115. 499 F.3d 259 (3d Cir. 2007).

116. Id. at 277.

117. 445 F.3d 346 (4th Cir. 2006).
II. The Case-in-Chief for the Return of a Child 

31

tain “parental responsibility” for the child. Hence, father had enforceable custody rights.118

(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. These countries include Canada,

119 Mexico,120 and Australia,121

among others. 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.122

(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 

education of their children.”

123 Some U.S. courts have held that the 

 

118. Id. at 351.

119. See, e.g., Application of McCullough on Behalf of McCullough, 4 F. Supp. 

2d 411 (W.D. Pa. 1998).

120. 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, 198 P.3d 539, 148 Wash. App. 131 

(Ct. App. 2009).

121. Feder v. Evans-Feder, 63 F.3d 217, 221–22 (3d Cir. 1995).

122. Id.; see also Text & Legal Analysis, supra note 65, at 10,506. 

123. 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. 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

32

right of patria potestas does not overrule contrary provisions spelled 

out in a valid custody agreement.124 Other cases, however, have incorporated the concept of patria potestas into agreements and orders.125

ii. Custody Rights Established by Judicial or Administrative126

Decision. Decisions or custody determinations made before the child 

 

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.

124. 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”).

125. 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. 

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

33

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.

127 A custody decree may be effective even if it is obtained ex parte.

128 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,

129 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 

German court was sufficient to confer upon father “rights of custody”

that supported his successful application for return of the children.130

 

126. 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 65, 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.”). 

127. 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.”).

128. See, e.g., Van De Sande v. Van De Sande, 431 F.3d 567, 569 (7th Cir. 2005).

129. 519 F.3d 33 (1st Cir. 2008).

130. Id. at 39.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

34

It is not required that orders conferring custody rights be issued 

by the courts of the child’s habitual residence. In Brooke v. Willis,

131

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 noting:

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).132

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,

133 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 

settled and married a man she had met on the Internet. Father peti-

 

131. 907 F. Supp. 57 (S.D.N.Y. 1995).

132. Id. at 62.

133. 538 F.3d 581 (7th Cir. 2008).
II. The Case-in-Chief for the Return of a Child 

35

tioned 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 RookerFeldman134 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.135

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 

custody orders in order to be binding.136 For example, in Carrascosa v. 

 

134. The Rooker-Feldman doctrine bars federal courts from “exercising subjectmatter 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.” Noel v. Hall, 341 F.3d 1148, 1156, 1158, 1163–64 (9th Cir. 2003). 

See Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 

460 U.S. 462 (1983). See discussion of the Rooker-Feldman doctrine infra at page 122.

135. Altamiranda Vale, 538 F.3d at 585. 

136. The Legal Analysis of the Convention recites a brief but relevant history on 

this part of Article 3:
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

36

McGuire,

137 the court found that the parties signed a valid, binding 

“Parenting Agreement” to resolve their custody issues without seeking

“any court’s imprimatur.”

However, a custody agreement must be sufficiently definite to be 

accorded legal significance. In re Application of Adan138 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 insufficient 

information to conclude whether the agreement had “legal 

effect under the law of [Argentina],” as required by Article 3 

of the Convention.139

 

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 65, at 10,507.

137. 520 F.3d 249, 256 (3d Cir. 2008).

138. 437 F.3d 381 (3d Cir. 2006).

139. Id. at 393.
II. The Case-in-Chief for the Return of a Child 

37

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),

140 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.141 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. 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 

 

140. 600 F.3d 912 (8th Cir. 2010).

141. 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).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

38

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.142

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. 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,

143 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 

an action for return of the child to Israel. The court 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 

 

142. Barzilay II, 600 F.3d at 920. 

143. 569 F.3d 549 (6th Cir. 2009). 
II. The Case-in-Chief for the Return of a Child 

39

child was habitually resident immediately before the [alleged] removal 

or retention’.”

144

6. Ne Exeat Orders—Abbott v. Abbott

Abbott145 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 exeat146 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 opinion147 that followed 

the Second Circuit judgment in Croll v. Croll.

148 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 

adopted Croll’s reasoning.149 However, in Furnes v. Reeves,

150 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 

 

144. Id. at 555.

145. 560 U.S. ____, 130 S. Ct. 1983 (2010).

146. 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.

147. Abbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008).

148. 229 F.3d 133 (2d Cir. 2000), abrogated by Abbott v. Abbott, 130 S. Ct. 1983 

(2010). 

149. 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).

150. 362 F.3d 702 (11th Cir. 2004). 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

40

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.151 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.152

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 

 

151. See, e.g., Law No. 16,618, Julio 22, 1966, Diario Oficial [D.O.] (Chile).

152. Abbott v. Abbott, 560 U.S. ____, 130 S. Ct. 1983, 1991 (2010).
II. The Case-in-Chief for the Return of a Child 

41

further decrees is consistent with allowing a parent to object to the 

child’s removal from the country.”

153

D. Habitual Residence

The determination of a child’s habitual residence is significant because

wrongful removal can occur only if the child has been taken from his 

or her habitual residence.154 Courts must look to the law of the habitual residence in order to determine whether the parent seeking return 

of the child has custody rights.

“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.”

155

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:

156

[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 

 

153. Id. at 1992.

154. 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, 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 65, at 10,504.

155. Pérez-Vera Report, supra note 18, ¶ 66.

156. [1989] EWHC (Fam) CA 122/89 (Eng.).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

42

a sufficient degree of continuity to be properly described as 

settled.157

The “settled purpose” language of Bates has continued to be one of the 

hallmarks of the habitual residence inquiry. However, some U.S. federal courts have begun to focus on “parental intent.” See discussion on 

the role of parental intent infra beginning at page 44.

The question of whether a particular place is a child’s habitual 

residence is a fact-driven issue.158 Courts have considered a number of 

factors, including language issues,159 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,160 and 

personal issues, such as medical care, schooling,161 social life,162extended family, friends, and age.163

The concept of habitual residence must be distinguished from 

“domicile.” The differences between the two are noted in the PérezVera Report and by most courts.

164 Domicile embodies elements of 

 

157. Id. at 10.

158. 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”).

159. See, e.g., McClary v. McClary, No. 3:07-cv-0845, 2007 WL 3023563 (M.D. 

Tenn. 2007) (unreported disposition).

160. See, e.g., Miller v. Miller, 240 F.3d 392, 400 (4th Cir. 2001); Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995).

161. 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).

162. See, e.g., Holder II, 392 F.3d at 1020.

163. See, e.g., id. at 1019.

164. See Pérez-Vera Report, supra note 18, ¶ 66. See, e.g., Kijowska v. Haines, 463 

F.3d 583, 587 (7th Cir. 2006) (“[E]quating habitual residence to domicile would reraise 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,’ 42 U.S.C. § 11601(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. 
II. The Case-in-Chief for the Return of a Child 

43

future intent, citizenship, and nationality—concepts that the Convention does not consider determinative of a child’s habitual residence.

165

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 are of the same nationality and citizenship, yet the child’s habitual residence is deemed 

to be another country.166

1. Appellate Standard of Review

The appellate standard of review for factual determinations is whether 

the district court’s factual findings are subject to “clear error.”

167 The 

standard of review for mixed questions of fact and law are subject to a 

de novo review. A de novo review applies to findings of habitual residence.

168 The de novo standard also applies to:

• whether a grave risk of harm exists under Article 13(b);

169

 

To determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions.”).

165. 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).

166. 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).

167. See, e.g., Charalambous v. Charalambous, 627 F.3d 462 (1st Cir. 2010). 

168. See Barzilay v. Barzilay (Barzilay II), 600 F.3d 912 (8th Cir. 2010);

Sorenson v. Sorenson, 559 F.3d 871 (8th Cir. 2009); Koch v. Koch, 450 F.3d 703 (7th 

Cir. 2006); Whallon v. Lynn, 230 F.3d 450, 454 (1st Cir. 2000); Nicolson v. Pappalardo, 605 F.3d 100 (1st Cir. 2010); but cf. Silverman v. Silverman, 312 F.3d 914, 

916–17 (8th Cir. 2002) (analyzing the question of habitual residence, the court noted 

that “We are not persuaded that in this circumstance the Silverman children’s habitual 

residence inquiry raises mixed questions of law and fact. Resolution of this case is 

largely fact-based, as are most cases arising under the Hague Convention. . . . We 

conclude that the determination of . . . habitual residence is a factual finding, and hold 

that the district court’s findings are not clearly erroneous.”). 

169. See, e.g., Baran v. Beaty, 526 F.3d 1340, 1345 (11th Cir. 2008) (citing 

Simcox v. Simcox, 511 F.3d 594, 601 (6th Cir. 2007), and Silverman II, 338 F.3d at 

896).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

44

• whether a child is settled within the meaning of Article 12;

170

• the application of domestic, foreign, and international law;

171

and

• whether equitable tolling may be applied to Article 12’s time 

limitation of one year.172

2. The Role of Parental Intent

a. Division in the Circuits. In Nicolson v. Pappalardo,

173 the court noted 

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.”

174 Circuit courts are divided, however, on the extent that parental intent should factor into the acquisition of a habitual residence. The First, Second, Fourth, and Seventh 

Circuits175 place the primary focus upon parental intent, following the 

Ninth Circuit decision in Mozes v. Mozes.

176 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 aban-

 

170. See, e.g., Blondin v. Dubois (Blondin II), 238 F.3d 153 (2d Cir. 2001); In re 

B. Del C.S.B., 559 F.3d 999 (9th Cir. 2009).

171. See, e.g., Diorinou v. Mezitis, 237 F.3d 133 (2d Cir. 2001); Maxwell v. 

Maxwell, 588 F.3d 245 (4th Cir. 2009); Simcox v. Simcox, 511 F.3d 594 (6th Cir. 

2007).

172. See, e.g., In re B. Del C.S.B., 559 F.3d 999 (9th Cir. 2009). 

173. 605 F.3d 100 (1st Cir. 2010). 

174. Id. at 104.

175. See Zuker v. Andrews, 1999 WL 525936 (1st Cir. 1999) (unreported opinion); Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005); Maxwell, 588 F.3d 245; 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 U.S. as a prior habitual residence for an infant, who was to spend a two-year period in Canada, and then return to 

the U.S.). See also Norinder v. Fuentes, 657 F.3d 526 (7th Cir. 2011), where the court 

acknowledged that in Koch, supra, 450 F.3d at 715, that 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.”

176. 239 F.3d 1067 (9th Cir. 2001).
II. The Case-in-Chief for the Return of a Child 

45

don the former habitual residence?177 The second question in the Mozes analysis is whether there has been a change in geography for an 

“appreciable period of time”

178 that is “sufficient for acclimatization.”

179

Other circuits have declined to make the issue of parental intent 

dispositive and have focused instead upon the degree of the child’s 

settlement in determining the issue of habitual residence. In Stern v. 

Stern,

180 the Eighth Circuit cited to its previous decision in Barzilay v. 

Barzilay (Barzilay II)181 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 Third182 and Sixth183 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’.”

184

Similarly, the Sixth Circuit, in the seminal case Friedrich I,

185

adopted a five-factor test for determining habitual residence. Under 

this test,

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; 

3. courts should focus exclusively on the child’s past experience, 

and not future plans of the parents; 

 

177. Id. at 1075.

178. Id. at 1078 (citing C v. S (Minor: Abduction: Illegitimate Child), [1990] 2 

All E.R. 961, 965 (Eng.)). 

179. Id. at 1067 (citing Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995)). 

180. 639 F.3d 449 (8th Cir. 2011). 

181. 600 F.3d 912 (8th Cir. 2010). 

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

183. Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007). 

184. Stern, 639 F.3d at 452 (citing to the Pérez-Vera Report (1981)). 

185. Friedrich v. Friedrich (Friedrich I), 983 F.2d 1396 (6th Cir. 1993).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

46

4. a child may only have one habitual residence;

186 and 

5. habitual residence is not determined by the nationality of the 

child’s primary caregiver.187

Under this approach, courts should focus on factors 2 and 3 above—

the “past experiences of the child, not the intentions of the parents.”

188

In Robert v. Tesson,

189 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 and 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.”

190 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.”

191

 

186. There is somewhat of 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, 

26 Va. App. 135 (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. Understandably, this situation led to substantial litigation, 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 doubtful 

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).

187. Robert, 507 F.3d at 989. 

188. Id.

189. 507 F.3d 981 (6th Cir. 2007). 

190. Id. at 989.

191. Friedrich v. Friedrich (Friedrich I), 983 F.2d 1396, 1401 (6th Cir. 1993).
II. The Case-in-Chief for the Return of a Child 

47

b. Parental Intent. Under Mozes, cases raising issues regarding parental 

intent fall into three general categories. The first 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.” In this situation, courts are likely to find that the child’s 

habitual residence has changed.192 See infra page 48.

The second category described in Mozes consists of those cases 

where both parents intend the relocation to be temporary. Courts will 

not find a change in habitual residence if one parent decides to resettle 

permanently in the temporary location.

193 See infra page 49.

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.194 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 of abandonment of the prior habitual residence.195 See infra page 51.

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”

196 plus an “appreciable period of time.”

197 Finally, Mozes recognizes that despite a lack of 

 

192. Mozes v. Mozes, 239 F.3d 1067, 1076–77 (9th Cir. 2001).

193. Id. at 1077.

194. Id.

195. Id. at 1077–78.

196. Friedrich I, 983 F.2d at 1402.

197. 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 constitut-
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

48

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 cautions 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.”

198

i. Mutual Intent. 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.

199 In Feder v. 

Evans-Feder,

200 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 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 upon 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 

 

ed 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.

198. Mozes, 239 F.3d at 1078–79.

199. See Harsacky v. Harsacky, 930 S.W.2d 410, 415 (Ky. App. 1996) (finding 

that where it was the intention of the parties to relocate to the U.S. for an indefinite 

period of time, “. . . we fully agree with the trial court that a determination of habitual 

residence ‘must focus on the child, not the parents, and examine past experience, not 

future intentions.’ Friedrich v. Friedrich, 983 F.2d at 1401. Mrs. Harsacky’s unrealized 

future intention cannot change the specific intention demonstrated by the conduct of 

both parties.”).

200. 63 F.3d 217 (3d Cir. 1995).
II. The Case-in-Chief for the Return of a Child 

49

the parents’ present, shared intentions regarding their child’s 

presence there.

201 (emphasis added)

ii. Relocations for a Finite Period of Time. The second Mozes category 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 Morris,

202

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. Ca. 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). However, 

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).203

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,

204 mother and 

father, an unmarried couple, alternated residences between the United 

States, mother’s country of origin, and Argentina, father’s country. 

 

201. Id. at 224.

202. 55 F. Supp. 2d 1156 (D. Colo. 1999).

203. Id. at 1161.

204. 2 F. Supp. 2d 134 (D. Mass. 1998).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

50

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.”

205

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. Krassner,

206

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 eighteenmonth 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.207

 

205. Id. at 138.

206. 391 F.3d 540, 548–50 (3d Cir. 2004), cert. denied, 545 U.S. 1131 (2005).

207. Id. at 550.
II. The Case-in-Chief for the Return of a Child 

51

In Shalit v. Coppe,

208 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 

become settled in Israel, the court ruled that the child’s habitual residence had changed to Israel.

209

iii. Lack of Mutual Intent. The third Mozes category includes cases 

where the left-behind parent allowed the child to be relocated for a 

period of uncertain or ambiguous duration. These cases tend to be 

fact-specific.

In Harkness v. Harkness,

210 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 

 

208. 182 F.3d 1124 (9th Cir. 1999). 

209. 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.

210. 577 N.W.2d 116, 227 Mich. App. 581 (Ct. App. 1998).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

52

trial court’s holding that Germany was the children’s habitual residence, concluding that there was a lack of mutual intent to abandon 

Germany as the habitual residence.211 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.”

212

In Levesque v. Levesque,

213 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.214

 

211. Id. at 123, 227 Mich. App. at 596. 

212. Id.

213. 816 F. Supp. 662 (D. Kan. 1993). 

214. 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 upon 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.” Id. at 999, 158 Misc. 2d at 1026.
II. The Case-in-Chief for the Return of a Child 

53

iv. 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 coercion of, or threats to, a caretaker 

parent. Coercion cannot be deemed “voluntary conduct” necessary to 

the establishment of a new habitual residence.215

In the case In re Application of Ponath,

216 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.”

217

In Koch v. Koch,

218 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, 

 

215. 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).

216. 829 F. Supp. 363 (D. Utah 1993). 

217. 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. 

218. 450 F.3d 703 (7th Cir. 2006).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

54

stating that physical attacks “have some relevance in some situations 

to determine habitual residence issues.”

219

In Maxwell v. Maxwell,

220 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,

221 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 

 

219. Id. at 719. See also Tsarbopoulos v. Tsarbopoulos, 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. 176 F. Supp. 2d 1045 (E.D. 

Wash. 2001). 

220. 588 F.3d 245 (4th Cir. 2009).

221. 6 S.W.3d 843 (Ky. Ct. App. 1999).
II. The Case-in-Chief for the Return of a Child 

55

prohibited from leaving the country. The court held that the Greek 

non-removal order did not invalidate the habitual residence that the 

child had established in Greece. 

v. Illegal Alien Status and Habitual Residence. 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.”

222

This was the issue in the case In re Koc,

223 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.224

In Kijowska v. Haines,

225 mother, a citizen of Poland, gave birth to 

a child in the United States. She and the child’s father, a U.S. citizen, 

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 

 

222. 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)).

223. 181 F. Supp. 2d 136 (E.D.N.Y. 2001). 

224. Id. at 154; 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). 

225. 463 F.3d 583 (7th Cir. 2006).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

56

based upon 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.226

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.227 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 

considered by courts if there is “an immediate, concrete threat of deportation.”

228

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 

 

226. Id. at 587–88.

227. 559 F.3d 999 (9th Cir. 2009).

228. Id. at 1009.
II. The Case-in-Chief for the Return of a Child 

57

many pointing to a lack of significant ties to the United 

States.229

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 12.230

The determination of a child’s habitual residence does not appear 

to be impacted by a grant of asylum. In Miltiadous v. Tetervak,

231

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 domestic abuse by her husband.232 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,233 thus contravening her right to 

 

229. 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); Koc, 181 F. 

Supp. 2d at 152–55.

230. B. Del C.S.B., 559 F.3d at 1014. 

231. 686 F. Supp. 2d 544 (E.D. Pa. 2010).

232. “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. 

233. 8 U.S.C. § 1158 (2009).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

58

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.234

vi. 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. 

Where there is an absence of mutual intent, however, courts tend to 

look at the factual circumstances relating to the child. 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.235 An infant may 

not actually acquire habitual residence if where 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 

 

234. Miltiadous, 686 F. Supp. 2d at 552 n.9. 

235. See Meredith v. Meredith, 759 F. Supp. 1432 (D. Ariz. 1991); Kijowaska v. 

Haines, 463 F.3d 583, 587–88 (7th Cir. 2006); Nunez-Escudero v. Tice-Menley, 58 

F.3d 374, 379 (8th Cir. 1995).
II. The Case-in-Chief for the Return of a Child 

59

the child will normally have no habitual residence until living 

in a country on a footing of some stability.236

The First Circuit followed this reasoning in Nicolson v. Pappalardo.

237 In that case, an American mother became pregnant by an Australian father. Mother moved back to the United States before the birth 

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 

upon 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.

In Delvoye v. Lee,

238 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.239 The court reasoned that when the 

parties’ intentions are in agreement regarding their location, then the 

 

236. Delvoye v. Lee, 329 F.3d at 334 (quoting E.M. Clive, The Concept of Habitual Residence, 3 Jurid. Rev. 137, 146 (1997)).

237. 605 F.3d 100 (1st Cir. 2010).

238. 329 F.3d 330 (3d Cir. 2003).

239. Id. at 333–34.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

60

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,

240 an American mother and 

Mexican father lived in Mexico during their marriage until their child 

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 upon 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.

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.241 Both the Pérez-Vera Report and the Text & Legal 

Analysis of the U.S. State Department interpret the age limitation as 

jurisdictional.242 When a child reaches the age of sixteen, both parents 

 

240. 58 F.3d 374 (8th Cir. 1995).

241. Text & Legal Analysis, supra note 65, at 10,504.

242. “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 18, ¶ 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 65, at 10,504.
II. The Case-in-Chief for the Return of a Child 

61

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.

243 In other 

words, the Convention does not restrict other laws that may provide 

remedies for children over the age of sixteen.

244

The sixteen-year-old age limit in the Convention has not presented interpretive problems for courts.

245 However, this provision has 

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 

 

243. Id.

244. This concept was discussed in In re R.P.B., No. CA2009-07-097, 2010-

Ohio-322, 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.

245. See, e.g., Duarte v. Bardales, 526 F.3d 563 (9th Cir. 2008) (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 Fed. Appx. 133, 2009 WL 3345760 (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).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

62

strain sibling relationships unless the parents voluntarily return the 

older child with the younger children. 
63

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),

246 different burdens of proof are required depending upon 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 

child. The mature child’s objection is not technically a defense to re-

 

246. 42 U.S.C. §§ 11601–11610 (1988).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

64

turn, but it has been treated as a defense247 and is subject to proof by a 

preponderance of the evidence.248

1. Narrow Interpretation of Defenses

U.S. courts have uniformly acknowledged that defenses available under the Convention should be interpreted narrowly.249 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.”

250 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.251

 

247. 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).

248. See 42 U.S.C. § 11603(e)(2)(B) (1988).

249. 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); Duarte, 526 F.3d at 569 (using 

Article 12 defense); Baran v. Beaty, 526 F.3d 1340 (11th Cir. 2008) (using Article 

13(b) defense); Tsai-Yi Yang v. Fu-Chiang Tsui, 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). 

250. Pérez-Vera Report, supra note 18, ¶ 34.

251. Text & Legal Analysis, supra note 65; accord Rydder, 49 F.3d at 372.
III. Defenses to the Petition for Return

65

2. Court May Order Return Even If Defense Established

Uniquely, Article 18 of the Convention asserts that even if a defense to 

return is proven, the court may nevertheless order the child returned.252 One case has implied that this provision may also apply to 

return a child of sufficient age and maturity to make a valid objection.

253

Although it appears that Article 18 confers discretion to order a 

child returned regardless of which defense is proven, courts around 

the world have interpreted the breadth of this discretion in different 

ways. 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). Decisions in the United Kingdom and Australia have focused on the language differences between Article 12 

(delay), Article 13 (exercise of custody rights, or grave risk), and Article 20 (human rights violations). Those differences appear to imply 

that if an Article 12 defense is established, denying return may be 

mandatory.254 However, if an Article 13 or Article 20 defense is established, the Convention’s language seems to indicate that return is discretionary.255

 

252. “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 65; see also 

Friedrich II, 78 F.3d at 1067.

253. 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.”).

254. Convention, supra note 10, Article 12: The Court “shall order the return of 

the child, unless it is demonstrated that the child is now settled in its new environment.”

255. Id., 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.” 

13(b): “The return of the child under the provisions of Article 12 may be refused if this 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

66

Until 2008, case law in most common-law countries assumed that 

Article 12 gave the court discretion to order return of a child even if 

more than a year had passed and the child had become settled.256 In 

the case Re M.,

257 England’s House of Lords specifically rejected the 

notion that Article 18 conferred discretion to order the child’s return if 

the child had been found to be settled pursuant to the Article 12 defense. The Lords held that 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 U.S.’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.258 The Text & Legal Analysis explains: “Under Article 29 a 

 

would not be permitted by the fundamental principles of the requested State relating 

to the protection of human rights and fundamental freedoms.” (emphasis added)

256. Families, Youth & Community Care, Dir.-Gen., Dep’t of v. Moore, [1999] 

24 Fam LR 475, 150 FLR 59 (Austl.) (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 

(SC) (N.Z.) (stating that discretion had been conferred by virtue of New Zealand’s 

legislation implementing the Convention).

257. Re M. and Another (Children) (Abduction: Rights of Custody), [2008] 1 

A.C. 1288 (H.L.) (app. taken from Eng. (U.K.)).

258. Pérez-Vera Report, supra note 18, ¶ 112 (1981). In the United States, the 

UCCJEA might provide the authority for a court to order that a child be returned to 
III. Defenses to the Petition for Return

67

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” (emphasis added).

259

Courts may find this commentary helpful when adjudicating Hague 

petitions that raise a complex web of defenses.

Thus far, there have been no U.S. cases analyzing Article 18 in any 

detail. One reason may be that the doctrine of “equitable tolling” has 

been used to bar the Article 12 defense of delay in filing where the 

delay was caused by the abductor’s efforts to conceal the child. As a 

general rule, U.S. cases have held that where the petitioner is not responsible for the delay, the abductor’s concealment of the child will 

not be rewarded by allowing the use of the delay defense. (See the 

discussion on equitable tolling infra at page 70.)

In Blanc v. Morgan,

260 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.”

261

 

another country based upon a finding that the country was properly exercising jurisdiction over child custody issues.

259. Holder v. Holder (Holder I), 305 F.3d 854, 860 (9th Cir. 2002) (citing Text 

& Legal Analysis, supra note 65, at 10,507–08).

260. 721 F. Supp. 2d 749 (W.D. Tenn. 2010).

261. Id. at 765 (W.D. Tenn. 2010) (quoting Friedrich v. Friedrich (Friedrich II), 

78 F.3d 1060, 1067 (6th Cir. 1996)).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

68

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:

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 24.

U.S. courts have interpreted the term “commencement of proceedings” in Article 12 to mean that an action must be filed in court.262 An 

application made to the Central Authority will not suffice.263

1. Child Settled in New Environment

Neither the Convention nor ICARA define the term “settled” as it is 

used in Article 12. The Text & Legal Analysis opines: “To this end, 

 

262. See 42 U.S.C. § 11603(f)(3) (1988).

263. See Wojcik v. Wojcik, 959 F. Supp. 413 (E.D. Mich. 1997). 
III. Defenses to the Petition for Return

69

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.”

264 Again, this is a fact-intensive defense, 

and courts have looked to a variety of factors when assessing whether 

settlement has occurred, including:265

• age of the child

• language fluency

• duration and stability of residence in new environment

• concealment of child’s whereabouts 

• consistent attendance at school or day care

• attendance at church

• friends and relatives in new environment

• participation in school, extracurricular activities, community, 

sports, clubs

• financial stability and employment of parent

• academic progress

• immigration status266

 

264. Text & Legal Analysis, supra note 65, at 10,509.

265. 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, 96 Ohio App. 3d 52, 58 (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).

266. 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 rele-
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

70

The fact that the child may have a more affluent lifestyle with one 

parent has no relevance for determining whether the child has become 

settled in that location.

267 Also, concealment of the child militates

against the conclusion that the child has become settled.268

2. Equitable Tolling

The United States is the only country that recognizes the doctrine of 

equitable tolling in the context of Hague Convention proceedings. 

This doctrine is applied specifically to situations where the delay in 

petitioning for the return of a child is in whole or in part the result of

the concealment of the child by the abducting parent. Where both of 

these elements are present, courts have shown an unwillingness to 

reward the abductor’s conduct in successfully concealing the child by 

allowing the abducting parent to use the one-year limit of Article 12 as 

a defense to the child’s return. In doing so, courts that have adopted

equitable tolling characterize the language in Article 12 as the equivalent of a statute of limitations. Typically, courts will toll the running of 

the one year period until such time that the child has been located269

or sufficient information has been found to point to the approximate 

location of the child.270

Two circuit courts have approved the application of equitable tolling: the Ninth and Eleventh Circuits. In Duarte v. Bardales,

271 the 

Ninth Circuit held that equitable tolling may apply to toll the running 

of the one-year filing period in Article 12. The Ninth Circuit reasoned 

 

vant 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).

267. See Koc, 181 F. Supp. 2d at 152 (citing Lops v. Lops, 140 F.3d 927, 946 

(11th Cir. 1998)).

268. See Lops, 140 F.3d at 946 (finding children not settled where children were 

concealed from mother and elaborate steps taken to avoid detection).

269. See, e.g., Ibarra v. Quintanilla Garcia, 476 F. Supp. 2d 630 (S.D. Tex. 2007); 

Van Driessche v. Ohio-Esezeoboh, 466 F. Supp. 2d 828, 850 (S.D. Tex. 2006); Belay v. 

Getachew, 272 F. Supp. 2d 553 (D. Md. 2003).

270. See, e.g., Van Driessche, 466 F. Supp. 2d at 853.

271. 526 F.3d 563 (9th Cir. 2008).
III. Defenses to the Petition for Return

71

that although neither the Convention nor ICARA explicitly mention 

equitable tolling, “we must give significant consideration to the overarching intention of the Convention—deterring child abductions.”

272

The court cited to Young v. United States, which noted that periods of 

limitation are “subject to equitable tolling unless tolling would be 

inconsistent with the text of the relevant statute.”

273 Rewarding abductors who were able to successfully conceal the child would encourage 

child abductions.

274 In a later case, the Ninth Circuit determined that 

the standard of review for equitable tolling is clear error, and the district court’s application of the doctrine is reviewed de novo.275

In Furnes v. Reeves,

276 the Eleventh Circuit affirmed the application 

of equitable tolling277 and held that the one-year limit in Article 12

commences from the date the left-behind parent confirms the location 

of the child in the United States. The evidence in Furnes showed that 

mother concealed the child in the United States and father’s extensive 

efforts to find the child resulted in his filing the petition for return 

outside the time limits of Article 12. Equitable tolling has also been 

applied in U.S. state courts.278

Equitable tolling has been rejected by courts when either (1) there 

was insufficient evidence to prove concealment279 or (2) the intentions 

 

272. Id. at 570.

273. Young v. United States, 535 U.S. 43, 49–50 (2002).

274. Duarte, 526 F.3d 563 (quoting Belay, 272 F. Supp. 2d 553 (“[C]ourts must 

be wary of rewarding an abductor for concealing the whereabouts of a child long 

enough for the child to become ‘well settled’; to reward the abductor as such would be 

to condone the exact behavior the Convention seeks to prevent.”)).

275. See, e.g., In re B. Del C.S.B., 559 F.3d 999, 1008 (9th Cir. 2009).

276. 362 F.3d 702 (11th Cir. 2004).

277. Id. at 723 (citing to Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347 

(M.D. Fla. 2002) and Bocquet v. Ouzid, 225 F. Supp. 2d 1337 (S.D. Fla. 2002)).

278. See Perez v. Garcia, 198 P.3d 539, 148 Wash. App. 131 (Ct. App. 2009)

(allowing equitable tolling to permit application to go forward where child was concealed for three days immediately after removal and father missed the one-year limit 

by three days).

279. See, e.g., Lutman v. Lutman, No. 1:10-CV-1504, 2010 WL 3398985 (M.D. 

Pa. 2010); Edoho v. Edoho, No. H-10-1881, 2010 WL 3257480 (S.D. Tex. 2010); 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

72

of the parent removing the child had become clear well in advance of 

the running of the time limit and the location of the child was known 

or could have been ascertained through reasonable inquiry by the leftbehind parent.280

a. District Courts Not Unanimous on Applicability. Although a majority 

of district courts have accepted the application of equitable tolling to 

Convention proceedings, some district courts have declined to apply 

equitable tolling on the basis that the language in Article 12 is not 

equivalent to a statute of limitations and does not call for the exercise 

of equitable intervention. Rather than artificially extending Article 12’s 

one-year time limit, these cases instead focus on whether the child has 

become settled. With more than one year having gone by with the 

child in another location, the courts examined whether there might be 

a point in time when it would be more harmful to order the child returned than to allow the child to remain where he or she is. These 

decisions reject the notion that there is discretion to extend the time 

limit. If the child was settled in the new location, the defense of delay 

under Article 12 is established.281

 

Blanc v. Morgan, 721 F. Supp. 2d 749 (W.D. Tenn. 2010); Castillo v. Castillo, 597 F. 

Supp. 2d 432 (D. Del. 2009).

280. See, e.g., Mero v. Prieto, 557 F. Supp. 2d 357 (E.D.N.Y. 2008) (finding lack 

of diligence by left-behind parent); Lopez v. Alcala, 547 F. Supp. 2d 1255 (M.D. Fla. 

2008) (finding children were not concealed). 

281. See Toren v. Toren, 26 F. Supp. 2d 240, 244 (D. Mass. 1998), vacated on 

other grounds, 191 F.3d 23 (1st Cir. 1999); see also Anderson v. Acree, 250 F. Supp. 2d 

872, 875 (S.D. Ohio 2002) (“[T]he drafters of the Hague Convention decided that 

after the passage of a year, it became a reasonable possibility that the child could be 

harmed by its removal from an environment into which the child had become settled, 

and that the court ought to be allowed to consider this factor in making the decision 

whether to order the child’s return. This potential of harm to the child remains regardless of whether the petitioner has a good reason for failing to file the petition sooner, 

such as where the respondent has concealed the child’s whereabouts. There is nothing 

in the language of the Hague Convention that suggests that the fact that the child is 

settled in his or her new environment may not be considered if the petitioning parent 

has a good reason for failing to file the petition within one year.”); Matovski v. Matovski, No. 06 Civ. 4259 (PKC), 2007 WL 2600862, p. 12 (S.D.N.Y. 2007) (unreport-
III. Defenses to the Petition for Return

73

b. Rejected by Other Common-Law Countries. Equitable tolling has been 

rejected in other common-law countries. In A.C. v. P.C.,

282 father took 

the children from Australia to Hong Kong and shortly thereafter to 

mainland China. The children returned to Hong Kong despite their 

names being placed on a watch list and were concealed there for nearly four years. The Hong Kong court declined to suspend the one-year

limitation until the children were discovered, ruling that notwithstanding the moral culpability of the father, ordering a return would 

be disruptive for the children.

In the case of Re C.,

283

mother abducted her daughter to Ireland.

After father petitioned under the Hague Convention for a return order, 

mother voluntarily returned to California. One month later, mother 

re-abducted the child to England, changed both her and her daughter’s 

names to avoid detection, and changed the child’s birth date to that of 

a deceased child. Father did not locate the child until more than four 

years later. The British High Court ruled: (1) after the period of one 

year had passed from the time of the child’s abduction and the child 

had become settled, the court has no discretion to order the child’s 

return under the Convention; (2) Article 18 does not confer residual 

jurisdiction under the Convention to order the child returned, since it 

applies only to the domestic law of a country to order return; and 

(3) deliberate concealment will not stop the one-year limit from running, but is relevant to the issue whether a child is settled.

While some countries reject the doctrine of equitable tolling in 

this context, courts in those countries will conduct a factual inquiry to 

assess whether an abducted child has become “settled” during this 

 

ed disposition) (relating that “Because the denial of a petition pursuant to Article 12 is 

discretionary, equitable tolling is unnecessary to deter an abductor from concealing 

the whereabouts of a wrongfully removed or retained child. Equitable tolling would be 

inconsistent with the Convention’s careful balancing of interests and this court concludes it has no application to Article 12.”).

282. A.C. v. P.C., [2004] H.K.E.C. 839, 2005 WL 836263 (C.F.I.) (H.K.) (Hong 

Kong, Special Administrative Region). Hong Kong’s legal system is based on the common-law system, as it was a British colony from 1842–1997. 

283. Re C. (Abduction: Settlement), [2004] EWHC (Ch) 1245 (Eng.).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

74

extended period of time. Courts have ordered return in the concealment context, even where the time limit of one year has long passed, if 

there is a showing that the child has not become settled.284

C. Consent and Acquiescence

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.

285

This defense must be proven by a preponderance of the evidence.286

The term “consent” refers to permission given before the child is 

removed, whereas “acquiescence” refers to conduct after the removal.287 Consent can be established by either statements 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.288 This defense, like the others, is to be interpreted narrowly.289 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. 

 

284. Re C. (Abduction: Settlement) (No. 2), [2005] 1 FLR 938 (Eng.) (ordering 

a child’s return after four years had elapsed); Justice de Paix du cercle de Lausanne 

[Magistrates Court] July 6, 2000, J 765 C.I.E.V. 112E (Switz.) (ordering a child’s 

return after four years); J.E.A. v. C.L.M., 2002 NSCA 127, [2004] 220 D.L.R. 4th 577 

(Can. N.S.); A.C. v. P.C., [2004] H.K.E.C. 839, 2005 WL 836263 (C.F.I.) (H.K.)

(returning child that had been concealed for over four years).

285. Convention, supra note 10, Article 13(a).

286. See Burdens of Proof, supra page 21.

287. See, e.g., Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005).

288. See, e.g., Gonzalez-Caballero v. Mena, 251 F.3d 789, 793–94 (9th Cir. 

2001); Baxter, 423 F.3d 363. 

289. 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. . . .”).
III. Defenses to the Petition for Return

75

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.

290 Consent or acquiescence should be based on 

clear and unambiguous conduct.291 This defense is fact-intensive,

292

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)

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 condi-

 

290. 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).

291. 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). 

292. 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).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

76

tions 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.293

In Nicolson v. Pappalardo,

294 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 upon 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, supra)295 treat the issue of acquiescence as one involving pure subjective intent.

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 before the removal of the child.

296 Article 13(a) discusses the exercise of 

custody rights as an affirmative defense that must be established by a 

 

293. Baxter v. Baxter, 423 F.3d 363, 371–72 (3d Cir. 2005). 

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

295. Baxter, 423 F.3d at 371–72.

296. See discussion of exercise of custody right as part of the case in chief, supra

at page 21.
III. Defenses to the Petition for Return

77

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.”297

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.

298 Similarly, where one parent has 

sole custody of the child, the exercise of custody rights by that parent is 

easily shown.299 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.300

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 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.

 

297. Convention, supra note 10, Article 13(a).

298. 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). 

299. See, e.g., Tsai-Yi Yang v. Fu-Chiang Tsui, 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).

300. See, e.g., Text & Legal Analysis, supra note 65; 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). 
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78

* * * * *

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.301

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.302

As with the previous defenses, even if the grave risk defense is 

established, the court is not required to deny the petition,303 and the 

court may exercise its discretion to order the child returned.304

 

301. Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060, 1065–66 (6th Cir. 

1996). 

302. 42 U.S.C. § 11603(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.” 

303. “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).
III. Defenses to the Petition for Return

79

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.305 Article 13(b) does not apply to 

“value judgment” evidence relating to economic conditions, educational benefits, lifestyles, or disparate quality of parenting styles.306 As 

a result, evidence focusing on the child’s “best interests” or a choice 

between parents is not relevant. 

The term “grave” means “more than a serious risk.”

307 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 incapa-

 

304. 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.”). 

305. “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 18, ¶ 116.

306. See, e.g., Cuellar v. Joyce, 596 F.3d 505, 509 (9th Cir. 2010) (“Billions of 

people live in circumstances similar to those described by Richard. If that amounted to 

a grave risk of harm, parents in more developed countries would have unchecked 

power to abduct children from countries with a lower standard of living.”). The Circuit Court also 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). Cuellar, 596 F.3d at 

511.

307. See, e.g., Danaipour v. McLarey (Danaipour I), 286 F.3d 1, 14 (1st Cir. 

2002). 
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80

ble or unwilling to give the child adequate protection.”

308 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 65.) But 

two circuits have cautioned that in situations involving grave risk, “the 

safety of children is paramount.”309

In Nunez-Escudero v. Tice-Menley, the court relied upon language 

from a Canadian Supreme Court case:

. . . [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.310

However, the Eleventh Circuit in Baran v. Beaty,

311 declined to 

follow the dicta Friedrich II, that courts have a duty to assess the ability of the habitual residence to protect a child from harm.312 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.313

A majority of courts have declined to find grave risk when the 

abducting parent claims that an order of return will cause a separation 

 

308. 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). 

309. 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)).

310. 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.)). 

311. 526 F.3d 1340 (11th Cir. 2008).

312. 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).

313. Baran, 526 F.3d at 1349. 
III. Defenses to the Petition for Return

81

between the child and the abductor that will result in psychological 

damage to the child.314

Courts have defined “intolerable situation” to include sexual or 

physical abuse of a child.315 The Text & Legal Analysis notes that an 

“‘intolerable situation’ was not intended to encompass return to a 

home where money is in short supply.”

316 Two recent district court 

cases have discussed whether return to a situation with desperate financial conditions involves an “intolerable situation.”

317 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.

318

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 

 

314. 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). 

315. 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).

316. Text & Legal Analysis, supra note 65, at 10,510.

317. 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).

318. 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 98.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

82

basis of an Article 13(b) defense.319 In Danaipour I,

320 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 upon 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 substantial allegation that, 

if true, would justify application of the Article 13(b) exception, the court should make the necessary predicate findings.321

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 98.

3. Domestic Violence

Domestic violence has been recognized as a defense pursuant to Article 13(b) that may justify a refusal to return children.322 Some courts 

have allowed the defense even if the children involved were not them-

 

319. Text & Legal Analysis, supra note 65, at 10,510; Pérez-Vera Report, supra

note 18, ¶ 2; Baran v. Beaty, 526 F.3d 1340, 1352 (11th Cir. 2008); Danaipour I, 286 

F.3d at 15.

320. Danaipour I, 286 F.3d at 25–26.

321. Id. at 18.

322. 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.
III. Defenses to the Petition for Return

83

selves subjected to physical abuse,323 while others have ruled that the 

defense is not available if the children were not the direct victims of 

abuse.324

“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 

spectrum, the Sixth Circuit in Simcox v. Simcox325 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 

 

323. 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.

324. 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).

325. Simcox, 511 F.3d 594.
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84

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.326

The facts of Walsh v. Walsh327 set forth a series of concerns resulting in the First Circuit denying return.

328 The district court ordered 

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

 

326. Id. at 607–08.

327. 221 F.3d 204 (1st Cir. 2000).

328. 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.
III. Defenses to the Petition for Return

85

disobeying restraining orders and barring orders329—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.330

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.”331 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.

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.

332

 

329. A barring order is one that prohibits the restrained person from inhabiting 

or entering a home.

330. Walsh, 221 F.3d at 222.

331. Text & Legal Analysis, supra note 65.

332. See, e.g., Aldinger v. Segler, 263 F. Supp. 2d 284 (D.P.R. 2003) (finding no 

evidence of violation of Article 20); Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 

1347 (M.D. Fla. 2002) (ruling that economic crisis in Argentina does not amount to 

Article 20 violation); Hazbun Escaf v. Rodriquez, 200 F. Supp. 2d 603 (E.D. Va. 2002) 

(finding that procedures of Colombian family law court have no bearing on whether 

return of child would violate human rights provisions); Janakakis-Kostun v. Janakakis, 6 S.W.3d 843, 851 (Ky. Ct. App. 1999) (finding contention that treatment by 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

86

In Carrascosa v. McGuire,

333 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 

 

Greek police and court system amounted to Article 20 violation to be “totally without 

merit”); Caro v. Sher, 687 A.2d 354, 296 N.J. Super. 594 (Super. Ct. Ch. Div. 1996)

(ruling delays in Spanish court system do not amount to Article 20 violation); Freier 

v. Freier, 969 F. Supp. 436 (E.D. Mich. 1996) (holding no Article 20 violation where 

an Israeli restraining order compelled mother to remain until divorce settled as mother had right to challenge injunction but did not); Sewald v. Reisinger, No. 8:08-CV2313-JDW-TBM, 2009 WL 150856 (M.D. Fla. 2009) (unreported disposition) (alleging violation based on German court entering an ex parte ruling without notice); In re

Hague Child Abduction Application, No. 08-2030-CM, 2008 WL 913325 (D. Kan. 

2008) (unreported disposition) (finding no evidence of human rights violations in 

Mexico); McCubbin v. McCubbin, No. 06-4110-CV-C-NKL, 2006 WL 1797922 (W.D. 

Mo. 2006) (unreported disposition) (denying contention that mother’s and children’s 

establishment of a habitual residence in Australia was a violation of the Servicemembers Civil Relief Act (50 U.S.C. § 501) and an Article 20 violation).

333. 520 F.3d 249 (3d Cir. 2008).
III. Defenses to the Petition for Return

87

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.”

The party opposing the child’s return must prove this defense by a 

preponderance of the evidence.

334 The objection of a child of sufficient 

age and maturity may form the sole basis for denying that child’s return.335 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 

 

334. 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); 42 U.S.C. § 11601(a)(4) (1988). 

335. 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.”). 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

88

her age and level of maturity supports consideration of that objection.336

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 analysis of other issues in the case.337 Article 13 must be construed narrowly.

338 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.339

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.

340 Factors may exist that coun-

 

336. Text & Legal Analysis, supra note 65, at 10,510.

337. 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).

338. See, e.g., Tsai-Yi Yang v. Fu-Chiang Tsui, 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).

339. “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)).

340. 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 
III. Defenses to the Petition for Return

89

terbalance the objections of a mature child. A court should consider

those factors and exercise its discretion in light of all available evidence.341

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.”

342 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.343

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.344 Given 

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 

 

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).

341. 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).

342. Text & Legal Analysis, supra note 65, 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).

343. See, e.g., Tsai-Yi Yang, 499 F.3d at 280.

344. 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).
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age alone have been criticized.

345 Courts have found the opinions of 

children as young as eight years old to be sufficiently mature,

346

whereas other courts have found the opinions of fourteen- and fifteenyear-olds failed to meet this standard.347

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:

348 (1) allowing 

the child to testify in court in an evidentiary hearing;349 (2) interviewing the child in camera; (3) requesting a psychological evaluation of 

the child;350 and (4) appointing an attorney351 or guardian ad litem352

 

345. 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).

346. 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). 

347. 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 non-return).

348. See James D. Garbolino, International Child Custody: Handling Hague 

Convention Cases in U.S. Courts (National Judicial College 2000).

349. 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).

350. 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).

351. 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).

352. See, e.g., Diaz Arboleda v. Arenas, 311 F. Supp. 2d 336 (E.D.N.Y. 2004).
III. Defenses to the Petition for Return

91

for the child. Courts have used all four of these methods, but the majority have employed in camera interview of the child.

353

H. 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,

354 unclean hands, and fugitive disentitlement.

 

353. See, e.g., de Silva v. Pitts, 481 F.3d 1279 (10th Cir. 2007) (receiving child’s 

objection in camera with court reporter and law clerk present); Haimdas v. Haimdas, 

720 F. Supp. 2d 183 (E.D.N.Y. 2010) (hearing child’s objection in camera); Trudrung 

v. Trudrung, 686 F. Supp. 2d 570 (M.D.N.C. 2010) (hearing child’s objection in camera); Lieberman v. Tabachnik, 625 F. Supp. 2d 1109 (D. Colo. 2008) (meeting all 

three children in chambers ex parte); Diaz Arboleda, 311 F. Supp. 2d 336 (interviewing children in camera); Andreopoulos v. Nickolaos Koutroulos, No. 09-cv-00996-

WTD-KMT, 2009 WL 1850928 (D. Colo. 2009) (allowing child to testify in chambers 

and appointing a therapist); Laguna v. Avila, No. 07-CV-5136 (ENV), 2008 WL 

1986253 (E.D.N.Y. 2008) (interviewing child in chambers without parties or counsel); 

Di Giuseppe v. Di Giuseppe, No. 07-CV-15240, 2008 WL 1743079 (E.D. Mich. 2008) 

(interviewing children in camera); McClary v. McClary, No. 3:07-cv-0845, 2007 WL 

3023563 (M.D. Tenn. 2007) (interviewing children in camera without parties or 

counsel); Wasniewski v. Grzelak-Johannsen, No.5:06-CV-2548, 2007 WL 2344760 

(N.D. Ohio 2007) (hearing child’s objection in camera); Kofler v. Kofler, No. 07-5040, 

2007 WL 2081712 (W.D. Ark. 2007) (unreported disposition) (interviewing three 

children together in chambers without parties but with counsel present); Tsai-Yi Yang 

v. Fu-Chiang Tsui, No. 2:03-cv-1613, 2006 WL 2466095 (W.D. Pa. 2006) (interviewing child with counsel in camera).

354. 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. 
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1. Waiver

The first U.S. case to accept a waiver defense was Journe v. Journe.

355 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.356

The waiver argument was rejected in Holder v. Holder (Holder I)

357

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:

 

355. 911 F. Supp. 43 (D.P.R. 1995).

356. “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 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.

357. 305 F.3d 854 (9th Cir. 2002).
III. Defenses to the Petition for Return

93

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.358 (emphasis in 

original)

2. Unclean Hands

The defense of “unclean hands” has not yet been successful in a Hague

Convention case.

359 In Karpenko v. Leendertz,360 the court declined to 

apply the equitable doctrine of “unclean hands,” concluding:

[A]pplication of the unclean hands doctrine would undermine the Hague Convention’s goal of protecting the wellbeing 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).361

 

358. Id. at 873 n.7.

359. 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 re-abducted the child back to the United States. In another unreported case, 

Delgado-Ramirez v. Lopez, 2011 WL 692213 (W.D. Tex. 2011) (unreported disposition), the district court refused to grant an attorney’s fee award to the parent successfully petitioning for the return of a child on the basis that both parties to the case had 

unclean hands. 

360. 619 F.3d 259 (3d Cir. 2010).

361. Id. at 265.
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94

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.

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.

362 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 of American criminal process, to defiance of judicially imposed obligations 

 

362. 59 F.3d 556 (6th Cir 1995).
III. Defenses to the Petition for Return

95

owed to victims of crime, and to flights from financial responsibilities to our government.

363

In Walsh v. Walsh,

364 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 States365 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.366

In March v. Levine,

367 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 

 

363. 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. 

364. 221 F.3d 204 (1st Cir. 2000).

365. 517 U.S. 820 (1996).

366. Walsh, 221 F.3d at 216.

367. 249 F.3d 462 (6th Cir. 2001). 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

96

the wrongful death of the children’s mother. The default judgment was 

based upon 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.

368

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,

369 father’s 

Hague Convention petition was granted by the district court, and 

mother was ordered to return the children to Venezuela within ten

days.370 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,

371 the court held that application of the doctrine was appropriate and dismissed mother’s appeal.372 Most courts have held that the doctrine of fugitive disentitle-

 

368. Id. at 470.

369. 244 F.3d 1250 (11th Cir. 2001).

370. See Pesin, 77 F. Supp. 2d 1277.

371. See, e.g., United States v. Barnette, 129 F.3d 1179 (11th Cir. 1997).

372. Pesin, 244 F.3d at 1253. See also In re Leslie, 377 F. Supp. 2d 1232 (S.D. 

Fla. 2005) (applying fugitive disentitlement to bar mother’s defenses, based upon 

criminal contempt of a Belize court in connection with the custody action there).
III. Defenses to the Petition for Return

97

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.

373 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.374 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 

 

373. 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).

374. 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.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

98

claim.

375 Although criminal proceedings exist as a possibility in parental kidnapping cases, it is often the case that a civil action under the 

Hague Convention is the more appropriate first option.376

I. 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,

377 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 

 

375. 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 

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).

376. 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).

377. 623 F. Supp. 2d 125, 137–38 (D. Mass. 2009).
III. Defenses to the Petition for Return

99

this conclusion, the court cited to Feder v. Evans-Feder, which ruled

that the lower court on remand should consider undertakings if the 

Article 13(b) defense is not sustained.378 In Kufner v. Kufner,

379 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. 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.380

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 risk 

threshold is met, only then is the court vested by the Convention with the discretion to refuse to order return. It is 

 

378. Feder v. Evans-Feder, 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”).

379. 480 F. Supp. 2d 491 (D.R.I. 2007).

380. 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 that are accepted with the intention that a foreign court will enforce 

them raise issues of comity in the sense 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).
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100

with this discretion that the court may then craft appropriate undertakings.381

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 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 108, are sometimes used to enforce arrangements surrounding the return of the child.382

A court might have greater control over the performance of an 

undertaking if it is possible to perform the undertaking before the 

order of return becomes effective. If a parent promises to vacate a 

“chasing order” that shifted full custody of the child to that parent 

 

381. Simcox v. Simcox, 511 F.3d 594, 608 (6th Cir. 2007). Note that the court 

did not consider as inappropriate orders relating to logistic 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.

382. 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. 
III. Defenses to the Petition for Return

101

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.

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;383 (2) promises designed to minimize emotional trauma to a 

child threatened with separation from a primary caretaker;384

(3) promises designed to provide temporary financial assistance to a 

parent required to return in the company of a child or children;385

 

383. 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).

384. 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).

385. 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 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

102

(4) promises to take measures to dismiss criminal prosecution for 

abduction or to refrain from initiating criminal proceedings;

386 and 

(5) promises not to seek or enforce orders that require a transfer of the 

child from the primary caretaker until there has been a final determination of the child custody case on the merits.387

J. 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.

 

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).

386. 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).

387. 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. 
III. Defenses to the Petition for Return

103

In Blondin v. Dubois (Blondin I),

388 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 

can reduce whatever risk might otherwise be associated with a child’s 

repatriation.”

389 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.

390 Father again 

appealed, and the Second Circuit affirmed the denial of father’s petition.391 The Blondin approach was followed by the Third Circuit in In 

re Application of Adan392 and by the Seventh Circuit in Van De Sande v. 

Van De Sande.

393

 

388. 189 F.3d 240 (2d Cir. 1999).

389. Id. at 248.

390. 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.”).

391. Blondin v. Dubois (Blondin II), 238 F.3d 153 (2d Cir. 2001).

392. 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).

393. 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 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

104

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.394 In 

Danaipour II,

395 the First Circuit clarified the burden of courts to consider ameliorative measures: 

[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 di-

 

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).

394. See, e.g., Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000), cert. denied, 531 

U.S. 1159 (2001).

395. 386 F.3d 289 (1st Cir. 2004).
III. Defenses to the Petition for Return

105

lute 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.396

Quoting the First Circuit with approval, the Sixth Circuit held: 

“[U]ndertakings would be particularly inappropriate, for example, in 

cases where the petitioner has a history of ignoring court orders. See 

Walsh, 221 F.3d at 220.”

397 The circuit court found that the undertakings ordered by the district court were “unworkable”

398 and remanded 

the case to the district court to determine whether undertakings or 

other measures would be sufficient to protect the children.399

Similarly, in Baran v. Beaty,

400 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.401

 

396. Id. at 303–04.

397. Simcox v. Simcox, 511 F.3d 594, 608 (6th Cir. 2007).

398. 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 

Simcox, 511 F.3d at 610.

399. 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).

400. 526 F.3d 1340 (11th Cir. 2008).

401. Id. at 1348.

107

IV. Issuing Orders of Return

When an order for the return of a child is made, courts should focus 

on enforcement, specificity, and the safety of the child.402 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”

403 and is enforceable in state courts 

“as if it were a child-custody determination.”

404

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

Orders should clearly state the mandated time, place, and details of 

the child’s return.405 In order to incorporate detailed information 

 

402. 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.”). 

403. 42 U.S.C. § 11603(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.”

404. Uniform Child Custody Jurisdiction and Enforcement Act §§ 301–302 

(1997). 

405. 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 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

108

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.406

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.407 Mirror-image orders give some assurance that the 

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, 

 

local law enforcement officers that petitioner has the right to remove the child from 

the United States).

406. See Cuellar v. Joyce, 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.”).

407. 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

109

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 

habitual residence is more likely to ensure the parties’ compliance 

than one issued only by the court hearing the petition for return.408

 

408. 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. 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

110

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.409 If this is the case, the child must be returned to the successful 

petitioning parent, regardless of his or her place of residence.410

E. Stays and Mootness

Neither the Convention nor ICARA contain guidelines for the issuance 

of stays by a court hearing a Hague Convention case.411 Granting a 

stay after a return order is issued is governed by the law concerning 

the issuance of stays generally.

412 In the federal courts, four factors are 

considered when determining whether a matter should be stayed 

pending appeal:413

 

409. “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).

410. See, e.g., Pérez-Vera Report, supra note 18, ¶ 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).

411. In Kijowska v. Haines, the court rejected the argument that the UCCJEA

controls the issuance of stays in Hague Convention return cases. 463 F.3d 583, 589 

(7th Cir. 2006). 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.

412. See Fed. R. Civ. P. 62(c). Pursuant to Federal Rule of Appellate Procedure 

8(a)(1)(A), a party must ordinarily apply for a stay in the district court for a stay 

pending appeal.

413. See Hilton v. Braunskill, 481 U.S. 770, 776, 107 S. Ct. 2113, 2119 (1987).
IV. Issuing Orders of Return

111

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;

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.

414 The nearest quote to a policy statement on stays comes from 

Friedrich v. Friedrich, wherein the court noted:

Staying the return of a child in an action under the Convention should hardly be a matter of course. The aim of the 

Convention is to secure prompt return of the child to the 

correct jurisdiction, and any unnecessary delay renders the 

subsequent return more difficult for the child, and subsequent adjudication more difficult for the foreign court.415

When appellate courts order stays in Hague cases, they also usually order expedited appeals.

416 The decision whether or not to grant a 

stay of an order of return lies within the sound discretion of the 

court.417

The federal circuits are split on a related issue regarding stays: 

after a district court orders a child returned, if a stay is not granted 

and the child returns to his or her habitual residence, does the child’s 

return render the case moot? The Third and Fourth Circuits answer 

 

414. See Thapa v. Gonzales, 460 F.3d 323 (2d Cir. 2004).

415. Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060, 1063 n.1 (6th Cir. 

1996). 

416. See, e.g., 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).

417. See, e.g., Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000), cert. denied, 531 

U.S. 1159 (2001); Nicolson v. Pappalardo, 605 F.3d 100, 103 (1st Cir. 2010).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

112

this question in the negative; the Eleventh Circuit has taken the opposite view.

In Fawcett v. McRoberts,

418 mother filed an application for the return of the parties’ child from Virginia to Scotland. The district court 

granted mother’s petition and ordered the child returned. Father voluntarily returned the child, but appealed the order of return and the 

order awarding fees. The Fourth Circuit determined that the case was 

not moot, acknowledging its departure from the Eleventh Circuit.

Citing opinions in the Tenth419 and the Eighth Circuits,

420 as well as 

state appellate decisions,421 the court determined that despite the return of the child to the habitual residence, an appeal could “affect the

matter in issue.”

422 In support of this holding, the court noted that if 

the district court’s order of return was set aside, the petitioning parent 

could voluntarily return the child to the United States. 

Adopting the reasoning in Fawcett, the Third Circuit, in Whiting v. 

Krassner,

423 found that an appeal from an order directing the return of 

a child to Canada was not rendered moot by the child’s return. The 

court reasoned that the state of affairs existing at the time of the appeal could change and require court action. The court also noted that 

relief from an award of attorney fees was part of the appeal; therefore 

 

418. 326 F.3d 491 (4th Cir. 2003), abrogated on other grounds, Abbott v. Abbott, 

130 S. Ct. 1983 (2010).

419. See Ohlander v. Larson, 114 F.3d 1531 (10th Cir. 1997); Navani v. Shahani, 

496 F.3d 1121 (10th Cir. 2007). Both cases contained unusual facts, and it is unclear 

whether the Tenth Circuit’s position on this issue is as clear as Fawcett assumed. 

420. See Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995).

421. See, e.g., Janakakis-Kostun v. Janakakis, 6 S.W.3d 843 (Ky. Ct. App. 1999); 

Dalmasso v. Dalmasso, 9 P.3d 551, 269 Kan. 752 (2000); Harkness v. Harkness, 577 

N.W.2d 116, 227 Mich. App. 581 (Ct. App. 1998); Sampson v. Sampson, 975 P.2d 

1211, 267 Kan. 175 (1999); In re Marriage of Jeffers, 992 P.2d 686 (Colo. App. 1999); 

Bless v. Bless, 723 A.2d 67, 318 N.J. Super. 90 (Super. Ct. App. Div. 1998), superseded 

on other grounds, Dalessio v. Gallagher, 997 A.2d 283, 414 N.J. Super. 18 (Super. 

2010). 

422. Fawcett, 326 F.3d at 494 (citing Church of Scientology v. United States, 506 

U.S. 9, 12, 113 S. Ct. 447, 449 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 

(1895))).

423. 391 F.3d 540 (3d Cir. 2004).
IV. Issuing Orders of Return

113

the issue of fees could not be moot either. These issues were held to 

“affect the matter at issue,” and as a result the case was not moot.424

The Eleventh Circuit reached a contrary result. In Bekier v. Bekier,

425 the district court entered a stay of an order returning the child,

as mother filed a timely appeal and represented that she posted a 

bond. Though mother filed the appeal, she did not actually post the 

bond. Some time later, father returned with the child to Israel. The 

Eleventh Circuit dismissed the case as moot, finding that since the 

father had obtained the relief that he sought—the return of the child—

the court was “powerless to grant the relief requested by [mother].”

426

The Tenth Circuit has also addressed the question of whether the 

return of a child to the habitual residence moots the case. In Ohlander 

v. Larson,

427 mother petitioned for the return of her child from Utah to 

Sweden. She subsequently abducted the child to Sweden without waiting for the court to rule on her petition. The district court refused to 

grant mother’s motion to dismiss her own case on the basis that she 

was in contempt of the district court’s orders. The Tenth Circuit, however, ordered the case dismissed on other grounds. The court made 

reference to the third paragraph of Article 12 of the Convention,

which states: “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.” This provision was interpreted to mean 

that the court no longer had jurisdiction over the case. Without specifically holding that the case was moot because of the child’s absence, 

the court did note that it found little merit in mother’s argument that 

the case was moot, because finding so would legitimize the actions of a 

parent who filed a case, obtained temporary custody of the child, and 

then abducted the child herself. 

 

424. Id. at 546.

425. 248 F.3d 1051 (11th Cir. 2001).

426. Id. at 1055.

427. 114 F.3d 1531 (10th Cir. 1997). 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

114

However, in a later case, Navani v. Shahani,

428 the Tenth Circuit 

did find mootness, but not based simply on the child’s return to the 

habitual residence. Father returned with the child to England, and 

while there he secured a custody order granting him full custody of 

the child and forbidding the child’s return to the United States for 

visits with his mother. Mother’s appeal, even if granted and the case 

reversed, would leave the U.S. court in the position of having to order 

the child returned to England. The English court already determined 

that father, post-abduction, was the appropriate parent to have custody of the child. Because the UK was found to be the child’s habitual 

residence, and the UK court’s order prohibited the child from visiting 

his mother in the United States, there was no possible way mother 

could obtain the relief she sought, which was to have the child retained in the United States. The Tenth Circuit dismissed mother’s appeal on grounds that it was moot. However, the court specifically deferred ruling on the question whether the removal of the child, by 

itself, would moot an appeal.429 See also Leser v. Berridge,

430 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 U.S. to become moot. 

 

428. 496 F.3d 1121 (10th Cir. 2007).

429. Id. at 1132.

430. 668 F.3d 1202 (10th Cir. 2011).
115

V. Procedural Issues

A. Expeditious Handling Required

The Convention makes very clear that abduction cases should be handled promptly and expeditiously. Article 11 states:

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,”

431 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,

432 the Convention exhorts contracting states to use “the most 

expeditious procedures available.”

433

 

431. Convention, supra note 10, Preamble, Article 1.

432. See, e.g., Daunis v. Daunis, 222 Fed. Appx. 32, 2007 WL 786331 (2d Cir. 

2007).

433. Convention, supra note 10, 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 18, 

¶ 63.
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

116

This emphasis on prompt disposition applies to appellate proceedings as well.434 Expedited procedures for briefing and handling of appeals have become common in most circuits.435 Appellate courts have 

also avoided remand by identifying potential remand issues436 and 

resolving factual matters where it is possible to do so based upon a 

“well developed record.”

437

For example, in Charalambous v. Charalambous,

438 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.

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,

439 the court noted that Illinois law prohibited a stay 

of an order enforcing a child custody proceeding while an appeal was 

pending, absent exigent circumstances. However, the Seventh Circuit 

noted that matters relating to procedure in federal courts are governed 

 

434. See, e.g., In re Application of Adan, 437 F.3d 381, 398 (3d Cir. 2006).

435. See, e.g., 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; 

Danaipour v. McLarey (Danaipour I), 286 F.3d 1 (1st Cir. 2002); Diorinou v. Mezitis, 

237 F.3d 133 (2d Cir. 2001); England v. England, 234 F.3d 268 (5th Cir. 2000); 

Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000); Lops v. Lops, 140 F.3d 927 (11th Cir. 

1998); cf. Whiting v. Krassner, 391 F.3d 540 (3d Cir. 2004) (denying requests for stay 

of return order and expedited appeal).

436. 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).

437. See, e.g., Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007).

438. 627 F.3d 462 (1st Cir. 2010).

439. 463 F.3d 583, 589 (7th Cir. 2006).
V. Procedural Issues

117

by federal law, not state law, and upheld the stay of an order 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. Both the provisions of the 1980 Convention and 

ICARA contemplate the use of expedited procedures to “guarantee 

that children are returned quickly to the correct jurisdiction.”440 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. 441

3. Relaxed Rules for Admissibility of Documents

Furthering the goal of expedited procedures, ICARA provides a “generous authentication rule”

442 that eliminates the need for authentication for documents that are submitted with the petition for return.443

 

440. Norinder v. Fuentes, 657 F.3d 526, 533 (7th Cir. 2011).

441. Id.

442. March v. Levine, 249 F.3d 462 (6th Cir. 2001). See 42 U.S.C. § 11605:

With respect to any application to the United States Central Authority, or 

any petition to a court under section 11603 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.

443. Brosselin v. Harless, 2011 WL 6130419 (W.D. Wash. 2011) (unreported 

disposition). Brosselin cites to Danaipour v. McLarey (Danaipour II), 386 F.3d 289, 

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. Aven-
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

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Section 11605 of ICARA has been held to authorize consideration of 

translated excerpts from foreign law,444 foreign custody decisions,445

translated documents from foreign courts,446 and affidavits submitted 

by the parties.447

B. 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 

Younger448 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 

parties the opportunity to raise the claims they seek to present in fed-

 

dano v. Smith, ___ F. Supp. 2d ___, 2011 WL 3503330 (D.N.M. 2011) (“This provision [11605] of the International Child Abduction Remedies statute, 42 U.S.C. 

§§ 11601 to 11611, 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.”). 

444. Seaman v. Peterson, 762 F. Supp. 2d 1363 (M.D. Ga. 2011); Norinder v. 

Fuentes, 2010 WL 4781149 (S.D. Ill. 2010) (unreported disposition).

445. Chechel v. Brignol, 2010 WL 2510391 (M.D. Fla. 2010) (unreported disposition); Doudle v. Gause, 282 F. Supp. 2d 922 (N.D. Ind. 2003).

446. Kufner v. Kufner, 480 F. Supp. 2d 491 (D.R.I. 2007).

447. 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).

448. Younger v. Harris, 401 U.S. 37 (1971).
V. Procedural Issues

119

eral court.

449 Courts have been reluctant to apply Younger abstention 

in the context of Hague Convention cases.450

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.451 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.452

The second element under Younger—that state proceedings must 

implicate important state interests—has been interpreted not to apply 

to Hague cases.

453

 

449. See Yang v. Tsui, 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 other circuits. See Yang, 

416 F.3d at 202 n.1. 

450. 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).

451. See, e.g., Barzilay I, 536 F.3d at 850.

452. See, e.g., id.; Yang, 416 F.3d at 203; Karpenko v. Leendertz, 619 F.3d 259, 

262 (3d Cir. 2010).

453. See, e.g., Yang, 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 Fed. Appx. 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 obligations. Deference to a state court’s interest in the outcome of a child custody dispute 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

120

2. Colorado River454 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.455 Abstention under the Colorado River doctrine 

allows for either a stay of proceedings in federal court or a dismissal of 

the action.456

As with Younger abstention, if Hague claims have not been raised 

in the state action, Colorado River abstention does not apply.457 In 

Holder v. Holder (Holder I),

458 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 

grounds that father had initiated the custody proceedings in state 

 

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.”).

454. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 

(1976).

455. Intel Corp. v. Advanced Micro Devices, Inc., 12 F.3d 908, 912 (9th Cir. 

1993).

456. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983).

457. Yang, 416 F.3d at 204 n.5; Escaf, 52 Fed. Appx. 207, 2002 WL 31760202.

458. 305 F.3d 854 (9th Cir. 2002).
V. Procedural Issues

121

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.

459

Colorado River abstention is often invoked when the parallel state 

proceeding includes a claim under the Hague Convention.

460 However, 

a federal court may choose not to abstain for other reasons. In Lops v. 

Lops,

461 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,”

462 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.

463

 

459. Id. at 868.

460. 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).

461. 140 F.3d 927 (11th Cir. 1998).

462. McClelland v. Carland, 217 U.S. 268, 282 (1910).

463. 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).
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3. Rooker-Feldman Doctrine

The Rooker-Feldman464 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.465

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, alleging the state court 

decided the case erroneously.466

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 

forum must be honored.467 In In re Mahmoud,

468 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 

 

464. Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Ct. of App. v. Feldman, 

460 U.S. 462 (1983).

465. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 282–86, 

125 S. Ct. 1517, 1521–23 (2005).

466. 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).

467. 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).

468. No. CV 96 4165 (RJD), 1997 WL 43524 (E.D.N.Y. 1997) (unreported 

disposition).
V. Procedural Issues

123

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 attorney fees and costs. The 

district court found that once removal was effective, the entry of any 

order thereafter by a state court was void.469

C. Comity

In Hilton v. Guyot,

470 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.471 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.

472 For a discussion of comity as it 

pertains to the issue of undertakings, see supra page 99, note 380.

1. Hague Convention Orders of Other Nations

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,

473

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 re-abducted 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 

 

469. Id. at 2 (citing Tarbell v. Jacobs, 856 F. Supp. 101, 104 (N.D.N.Y. 1994)).

470. 159 U.S. 113, 16 S. Ct. 139 (1895). 

471. Id. at 113, 16 S. Ct. at 163–64.

472. Id. at 113, 16 S. Ct. at 202–03.

473. 580 F.3d 1000 (9th Cir. 2009).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

124

language of Hilton and pointing out that in the context of Hague litigation, an international legal framework has been agreed upon by all 

contracting nations. After a review of the decisions of other circuits,474

the court reasoned:

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.475

 

474. 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 

(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.

475. Asvesta, 580 F.3d at 1013–14. See also Carrascosa, 520 F.3d at 259, 263–64 

(denying comity based upon 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”).
V. Procedural Issues

125

2. Enforcement of Foreign Custody Decisions

Comity has been extended to the custody orders of other nations. In 

Navani v. Shahani,

476 the Tenth Circuit found that comity should be 

given to a family court order of England, based upon the English 

court’s interpretation of English law.477

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,

478 father filed an action for return 

of the children to the Dominican Republic. However, the Convention 

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.”

479

D. Petitions for Access Only

Federal courts do not have jurisdiction to order access to a child. In 

Cantor v. Cohen,

480 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 

 

476. 496 F.3d 1121 (10th Cir. 2007).

477. 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).

478. 477 F.3d 767, 783–84 (6th Cir. 2007).

479. Id. at 783 n.12.

480. 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).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

126

obligation upon courts to enforce access rights. No federal case that 

has considered this issue has ruled to the contrary.481

E. Contacting Judges in Foreign Jurisdictions

Although there are few reported examples of U.S. courts communicating directly with courts in other countries,482 it is well known that 

these communications take place. 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 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.483 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. This may be 

 

481. See Cantor’s discussion and rejection of contrary interpretations of Katona v. 

Kovacs, No. 04-2040, 148 Fed. Appx. 158, 2005 WL 2105600 (4th Cir. 2005) (unreported disposition), and Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000); Cantor, 442 

F.3d at 202–06. 

482. See, e.g., Innes v. Carrascosa, 918 A.2d 686, 391 N.J. Super. 453 (Super. Ct. 

App. Div. 2007) (attempting contact with judge in Spain by phone and fax unsuccessfully); 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).

483. 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.
V. Procedural Issues

127

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;484 (2) how to 

better expedite proceedings; and (3) jurisdictional matters.485

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.486 The principles recommended by 

the Permanent Bureau’s Report on Judicial Communications are:

 

484. Article 15 of the Convention provides: 

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.

It may be more expedient than using the procedures under Article 15 to engage in 

judicial communication regarding the existence of the type of order envisioned by 

Article 15.

485. 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. 

486. 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 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

128

• Every judge engaging in direct judicial communications must respect 

the law of his or her own jurisdiction. 

• 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. 

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,

487 including four U.S. network judges designated by the U.S. 

State Department.

488 These judges are available to facilitate contacts 

with foreign judges and to provide logistical information and assistance to judges handling Hague cases.

 

Direct Judicial Communications in Specific Cases, in the Context of the International 

Hague Network of Judges.

487. 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.

488. The list of judges may be found on the Hague website at http://www.hcch

.net/upload/haguenetwork.pdf. 
V. Procedural Issues

129

F. 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.489

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 11603 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.490

Note that ICARA’s provisions relating to fees and costs differ from the 

language contained in Article 26 of the Convention. The Convention 

makes an award of fees and costs discretionary, but ICARA states that 

the court “shall” make the award. ICARA further allocates to the abducting parent the burden of proving that the order is clearly inappropriate. 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 

 

489. Convention, supra note 10, Article 26.

490. 42 U.S.C. § 11607(b)(3) (1988). 
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130

future similar conduct.491 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.492

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.493 After making a lodestar determination, courts may examine whether it is necessary to adjust the 

lodestar figure based on other factors. Those other factors typically494

include the following:

1. the time and labor required

2. the novelty and difficulty of the questions involved

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 

 

491. See Text & Legal Analysis, supra note 65, at 10,511 (Mar. 26, 1986); 

Roszkowski v. Roszkowska, 644 A.2d 1150, 1160, 274 N.J. Super. 620, 639 (Super. 

Ct. Ch. Div. 1993), abrogated on other grounds, Ivaldi v. Ivaldi, 685 A.2d 1319, 147 

N.J. 190 (1996) (referring to provisions of ICARA relating to fees as a “sanction”).

492. Cf. Slagenweit v. Slagenweit, 64 F.3d 719 (8th Cir. 1995) (costs of depositions and translations awarded to prevailing party defending against return). 

493. 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).

494. 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, 2010 WL 2867593 (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).
V. Procedural Issues

131

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

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.495

ICARA gives courts discretion to reduce or to eliminate attorney 

fees and cost awards where such awards would be “clearly inappropriate.”496 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,497 a party’s lack of financial resources,498 disparity 

between parties’ financial resources,499 representation by multiple law 

firms,500 unclean hands, and failure to provide adequate financial support for the subject child.501

 

495. Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir. 2010); Haimdas v. Haimdas, 

720 F. Supp. 2d 183, 209 (E.D.N.Y. 2010). 

496. Distler v. Distler, 26 F. Supp. 2d 723, 729 (D.N.J. 1998).

497. Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir. 2004); Berendsen v. Nichols, 

938 F. Supp. 737 (D. Kan. 1996). 

498. Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995).

499. In re Polson, 578 F. Supp. 2d 1064 (S.D. Ill. 2008).

500. Aldinger v. Segler, 338 F. Supp. 2d 296 (D.P.R. 2004).

501. Silverman v. Silverman, 2004 WL 2066778 (D. Minn. 2004) (unreported 

disposition).

133

VI. Case Management

Effective case management of Hague Convention cases can significantly facilitate the adjudication of these time-sensitive matters.502 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,

503 including setting a timetable for discovery and motions, 

trial on an expedited basis, and other pretrial considerations.

504

A. Securing the Child’s Safety from Further Removal or 

Concealment

As soon as possible, the court must address the issue of ensuring that 

the child is safe and not in danger of being re-abducted. ICARA vests 

courts with the power to use provisional remedies available under 

state or federal law to secure the child.505 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.

 

502. 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). 

503. 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.

504. 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).

505. 42 U.S.C. § 11604(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 11603(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.” 
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134

1. State Laws Regarding Removal of Child from Home Without 

Notice

ICARA also 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.”

506 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,

507 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;

 

506. 42 U.S.C. § 11604(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 upon 

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).

507. 4 F. Supp. 2d 411 (W.D. Pa. 1998).
VI. Case Management

135

and when relevant,

• the possibility of harm to other disinterested persons; and

• consideration of the public interest.

508

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.509 In Velez v. Mitsak,

510 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.

3. Bonds

Some courts have required, or considered, the posting of bonds to 

ensure that children are not spirited away from the jurisdiction of the 

court.511 The purpose of the bonds is to provide some measure of insurance to a left-behind parent that if the child is re-abducted pending 

the proceedings, sufficient resources will be available to fund efforts to 

 

508. Id. at 415 (citing Acierno v. New Castle Cnty., 40 F.3d 645, 653 (3d Cir. 

1994) (citations omitted)).

509. 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).

510. Velez, 89 S.W.3d 73.

511. 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).
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

136

locate and file new litigation. For example, in Lops v. Lops,

512 the 

South Carolina state court allowed the abducted children to be placed 

in the custody of the paternal grandmother subject to an “adequate 

security bond.”

513

4. Deposit Passports

In order to deter any threat of re-abduction 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.

514 This measure is one of the least invasive available and provides an effective 

method of securing the child in most cases. Requiring the deposit of 

passports is an effective deterrent against the re-abduction of children 

who are U.S. citizens.

515 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 

 

512. 140 F.3d 927 (11th Cir. 1998).

513. Id. at 948.

514. 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).

515. 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.
VI. Case Management

137

must be expedited. Time frames for discovery, the submission of 

briefs, and other processes should be shortened, enabling efficient and 

expedited preparation for trial.

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.516 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.517 The U.S. State Department utilizes 

federal poverty guidelines in assessing whether a person qualifies for 

pro bono or reduced-fee representation.

518 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 cases.

 

516. 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.” 

517. As a result of taking the reservation described in note 516 above, the U.S. 

government does not provide any funds for the payment or reimbursement of legal 

costs incurred by the parties.

518. 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. 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

138

Under some circumstances, courts will appoint an attorney pro 

bono to represent the parent who allegedly abducted the children.519

Courts have also appointed counsel for children who are the subject of 

the action.520

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.521 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,

522

saving time by focusing on 

the issues in contention.

At the case-management conference, the court can inquire as to 

how the parties intend to present their evidence.523 Some cases can be 

 

519. 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).

520. 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)).

521. 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.

522. 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 is 

the child’s habitual residence). 

523. 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 
VI. Case Management

139

tried by submitting the matter on the parties’ declarations or affidavits.524 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.525

E. Mediation

It is possible for the parties to participate in mediation after a petition 

for return has been filed.526 A court may properly inquire at a pretrial 

 

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 WL 327559 (1994).

524. 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, 63 Cal. App. 4th 315 (Ct. App. 1998) (hearing and determining case on the parties’ declarations in addition to testimony); Lieberman, 625 

F. Supp. 2d at 1114.

525. See Scheduling Order in Charalambous v. Charalambous, No. 2:10-cv-375, 

2010 WL 3613747 (D. Me. 2010) (unreported disposition); Escobar v. Flores, 107 

Cal. Rptr. 3d 596, 183 Cal. App. 4th 737 (Ct. App. 2010) (having petitioner participate in pretrial hearing by telephone). 

526. 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. 
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

140

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.527 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.528

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.

 

Mass. 2009) (mediation held before a magistrate judge); Philippopoulos v. Philippopoulou, 461 F. Supp. 2d 1321 (N.D. Ga. 2006) (mediation conducted pending the 

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).

527. Hague Conference on Private International Law, Preliminary Document, 

Draft Guide to Good Practice, Part V—Mediation, May 2011.

528. 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).
141

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

142

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

143

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

144

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

145

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.
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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 
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147

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.
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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.
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149

However, a Contracting State may, by making a reservation in accordance with Article 42, object to the use of either French or English, but 

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.
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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;
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151

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.

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.
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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.

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.
Appendix A: Text of the 1980 Convention

153

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.

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 
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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.

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.
Appendix A: Text of the 1980 Convention

155

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; 

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.

157

Appendix B: International Child 

Abduction Remedies Act

§ 11601. 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 -

(A) the international character of the Convention; and
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(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. 

§ 11602. 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;

(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
Appendix B: International Child Abduction Remedies Act

159

(9) the term “United States Central Authority” means the agency 

of the Federal Government designated by the President under 

section 11606(a) of this title. 

§ 11603. 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

(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. 
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(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

161

§ 11604. 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 11603(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 

11603(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. 

§ 11605. Admissibility of documents

With respect to any application to the United States Central Authority, 

or any petition to a court under section 11603 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. 

§ 11606. 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.
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(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. 

§ 11607. 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 11603 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 11603 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. 
Appendix B: International Child Abduction Remedies Act

163

§ 11608. 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 -
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(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. 

§ 11609. Interagency coordinating group

The Secretary of State, the Secretary of Health and Human Services, 

and the Attorney General shall designate Federal employees and may, 

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 
Appendix B: International Child Abduction Remedies Act

165

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. 

§ 11610. 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.

167

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

 ̈ Do the parties wish to engage in mediation?

o Is the case appropriate for mediation?

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?

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?
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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?

o Did the abducting parent conceal the child from the left-behind 

parent (equitable tolling of one-year period)?

 ̈ 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?

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
169

Appendix D: Countries Where Convention 

Is In Force with United States

(current to May 2012)

Country Date of EIF Country Date of EIF

Argentina 06/01/91

Australia 07/01/88

Austria 10/01/88

Bahamas, The 01/01/94

Belgium 05/01/99

Belize 11/01/89

Bosnia/Herzegovina 12/01/91

Brazil 12/01/03

Bulgaria 01/01/05

Burkina Faso 11/01/92

Canada 07/01/88

Chile 07/01/94

China (Hong Kong and Macau 

only)

Hong Kong 09/01/97

Macau 03/01/99

Colombia 06/01/96

Costa Rica 01/01/08

Croatia 12/01/91

Cyprus 03/01/95

Czech Republic 03/01/98

Denmark 07/01/91

Dominican Republic 06/01/07

Ecuador 04/01/92

El Salvador 06/01/07

Estonia 05/01/07

Finland 08/01/94

France 07/01/88

Germany 12/01/90

Greece 06/01/93

Guatemala 01/01/08

Honduras 06/01/94

Hungary 07/01/88

Iceland 12/01/96

Ireland 10/01/91

Israel 12/01/91

Italy 05/01/95

Latvia 05/01/07

Lithuania 05/01/07

Luxembourg 07/01/88

Macedonia, Rep. of 12/01/91

Malta 02/01/03

Mauritius 10/01/93

Mexico 10/01/91

Monaco 06/01/93

Montenegro 12/01/91

Netherlands 09/01/90

New Zealand 10/01/91

Norway 04/01/89

Panama 06/01/94

Paraguay 01/01/08

Peru 06/01/07

Poland 11/01/92

Portugal 07/01/98

Romania 06/01/93

Saint Kitts & Nevis 06/01/95

San Marino 01/01/08

Serbia 12/01/91

Slovakia 02/01/01

Slovenia 04/01/95

South Africa 11/01/97

Spain 07/01/88

Sri Lanka 01/01/08

Sweden 06/01/89

Switzerland 07/01/88

Turkey 08/01/00

Ukraine 09/01/07

United Kingdom 07/01/88

Bermuda 03/01/99

Cayman Islands 08/01/88
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

170

Country Date of EIF

United Kingdom (cont’d)

Falkland Islands 06/01/98

Isle of Man 09/01/91

Montserrat 03/01/99

Country Date of EIF

Uruguay 09/01/04

Venezuela 01/01/97

Zimbabwe 08/01/95
171

Table of Authorities

Cases

A.C. v. P.C., [2004] HKMP 1238 (H.K.) ................................................................73, 74

Abbott v. Abbott, 542 F.3d 1081 (5th Cir. 2008).........................................................39

Abbott v. Abbott, 560 U.S. ____, 130 S. Ct. 1983 (2010)........ xii, xiii, 2, 12, 13, 14, 27, 

32, 39, 40, 112

Acierno v. New Castle County, 40 F.3d 645 (3d Cir. 1994) ......................................135

Ahumada Cabrera, In re, 323 F. Supp. 2d 1303 (S.D. Fla. 2004)........ 24, 31, 55, 57, 69

Air France v. Saks, 470 U.S. 392 (1985).........................................................................2

Aldinger v. Segler, 263 F. Supp. 2d 284 (D.P.R. 2003) ....................................13, 83, 85

Aldinger v. Segler, 338 F. Supp. 2d 296 (D.P.R. 2004) ........................................20, 131

Altamiranda Vale v. Avila, 538 F.3d 581 (7th Cir. 2008).................................32, 34, 35

Anderson v. Acree, 250 F. Supp. 2d 872 (S.D. Ohio 2002)....................................72, 90

Andreopoulos v. Nickolaos Koutroulos, 2009 WL 1850928 (D. Colo. 2009) .............91

Antunez-Fernandes v. Connors-Fernandes, 259 F. Supp. 2d 800 (N.D. Iowa 2003). 9, 81

Application of Adan, In re, 437 F.3d 381 (3d Cir. 2006)................. 36, 81, 82, 103, 116

Application of McCullough on Behalf of McCullough, 4 F. Supp. 2d 411 

(W.D. Pa. 1998)...............................................................................................31, 134

Application of Ponath, In re, 829 F. Supp. 363 (D. Utah 1993)...................................53

Armiliato v. Zaric-Armiliato, 169 F. Supp. 2d 230 (S.D.N.Y. 2001).............................28

Asvesta v. Petroutsas, 580 F.3d 1000 (9th Cir. 2009)............... 15, 21, 64, 75, 123, 124

Avendano v. Smith, 2011 WL 3503330 (D.N.M. 2011).............................................118

Axford v. Axford, 2009 WL 2030755 (E.D. Pa. 2009)................................................136

B. Del C.S.B., In re, 559 F.3d 999 (9th Cir. 2009) ........... 44, 56, 57, 65, 69, 70, 71, 116

Bader v. Kramer (Bader I), 445 F.3d 346 (4th Cir. 2006).............................................30

Ballen v. City of Redmond, 466 F.3d 736, 746 (9th Cir. 2006) .................................130

Baran v. Beaty, 526 F.3d 1340 (11th Cir. 2008)...... 3, 15, 43, 64, 80, 82, 101, 105, 138

Barrera Casimiro v. Pineda Chavez, 2006 WL 2938713 (N.D. Ga. 2006)....................89

Barzilay v. Barzilay (Barzilay I), 536 F.3d 844 (8th Cir. 2008)............................37, 119

Barzilay v. Barzilay (Barzilay II), 600 F.3d 912 (8th Cir. 2010).......... 15, 37, 38, 43, 45

Bates, In re, [1989] No. CA 122-89, High Court of Justice, Family Div., Royal 

Courts of Justice (U.K.) .....................................................................................41, 48

Baxter v. Baxter, 423 F.3d 363 (3d Cir. 2005)..................................................74, 75, 76

Bekier v. Bekier, 248 F.3d 1051 (11th Cir. 2001)...............................................112, 113

Belay v. Getachew, 272 F. Supp. 2d 553 (D. Md. 2003)...................................24, 70, 71

Berendsen v. Nichols, 938 F. Supp. 737 (D. Kan. 1996)............................................131

Blanc v. Morgan, 721 F. Supp. 2d 749 (W.D. Tenn. 2010)................. 24, 46, 67, 69, 72

Blanchard v. Bergeron, 489 U.S. 87 (1989) ................................................................130

Bless v. Bless, 318 N.J. Super. 90 (1998) ....................................................................112
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

172

Blondin v. Dubois (Blondin I), 189 F.3d 240 (2d Cir. 1999)............... 82, 101, 103, 104

Blondin v. Dubois (Blondin II), 238 F.3d 153 (2d Cir. 2001)...................44, 87, 88, 103

Blondin v. Dubois, 78 F. Supp. 2d 283 (S.D.N.Y. 2000) ..............................80, 103, 140

Bocquet v. Ouzid, 225 F. Supp. 2d 1337 (S.D. Fla. 2002)............................................71

Brennan v. Cibault, 643 N.Y.S.2d 780, 227 A.2d 965 (1996).......................................20

Bromley v. Bromley, 30 F. Supp. 2d 857 (E.D. Pa. 1998).....................................27, 125

Brooke v. Willis, 907 F. Supp. 57 (S.D.N.Y. 1995).....................................34, 46, 47, 98

Brosselin v. Harless, 2011 WL 6130419 (W.D. Wash. 2011).....................................117

Brown v. Orange County Dept. of Social Services, 91 F.3d 150 (9th Cir. 1996) .........27

C v. S (Minor: Abduction: Illegitimate Child), [1990] 2 All E.R. 961 (Eng.) ..............45

Cantor v. Cohen, 442 F.3d 196 (4th Cir. 2006)...........................................64, 125, 126

Caro v. Sher, 296 N.J. Super. 594 (1996) .....................................................................86

Carrascosa v. McGuire, 520 F.3d 249 (3d Cir. 2008).....................................36, 86, 124

Castillo v. Castillo, 597 F. Supp. 2d 432 (D. Del. 2009) ............................13, 70, 72, 90

Casulli v. Falcone, 2002 WL 479855 (D.N.H. 2002)..................................................134

Cerit v. Cerit, 188 F. Supp. 2d 1239 (D. Haw. 2002).................................................121

Charalambous v. Charalambous, 2010 WL 3613747 (D. Me. 2010) .................133, 139

Charalambous v. Charalambous, 627 F.3d 462 (1st Cir. 2010)............. xi, 43, 111, 116

Chechel v. Brignol, 2010 WL 2510391 (M.D. Fla. 2010)...........................................118

Church of Scientology v. United States, 506 U.S. 9 (1992)........................................112

Ciotola v. Fiocca, 86 Ohio Misc. 2d 24 (1997)...........................................................102

Coffield, In re, 96 Ohio App. 3d 52 (1994)...................................................................69

Cohen v. Cohen, 158 Misc. 2d 1018, 602 N.Y.S.2d 994 (1993)...................................52

Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) .....120, 121

Copeland v. Copeland, 134 F.3d 362 (4th Cir. 1998)................................................121

Crall-Shaffer v. Shaffer, 105 Ohio App.3d 369, 663 N.E.2d 1346 (1995)....................98

Croll v. Croll, 229 F.3d 133 (2d Cir. 2000)..................................................................39

Cuellar v. Joyce, 596 F.3d 505 (9th Cir. 2010) ....................................................79, 108

Cuellar v. Joyce, 603 F.3d 1142 (9th Cir. 2010) ........................................................131

Currier v. Currier, 845 F. Supp. 916 (D.N.H. 1994)..................................................138

D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983) .....................................35, 122

Dalessio v. Gallagher, 997 A.2d 283, 414 N.J. Super. 18 (Super. 2010).....................112

Dalmasso v. Dalmasso, 269 Kan. 752 (2000) .............................................................112

Danaipour v. McLarey (Danaipour I), 286 F.3d 1 (1st Cir. 2002) ................ 64, 79, 81, 82, 

99, 101, 104, 105, 108, 109, 111, 116

Danaipour v. McLarey (Danaipour II), 386 F.3d 289 (1st Cir. 2004)....104, 117, 122, 139

Daunis v. Daunis, 22 F.3d Appx. 32 (2d Cir. 2007)...................................................115

David S. v. Zamira, 151 Misc. 2d 630, 574 N.Y.S.2d 429 (1991) ...............................135

de Silva v. Pitts, 481 F.3d 1279 (10th Cir. 2007) .....................................88, 89, 91, 124

Degen v. United States, 517 U.S. 820 (1996)..........................................................95, 96

Delgado-Ramirez v. Lopez, 2011 WL 692213 (W.D. Tex. 2011).................................93

Delvoye v. Lee, 329 F.3d 330 (3d Cir. 2003)................................................................59
Table of Authorities

173

Di Giuseppe v. Di Giuseppe, 2008 WL 1743079 (E.D. Mich. 2008)............................91

Diabo v. Delisle, 500 F. Supp. 2d 159 (N.D.N.Y. 2007)...............................................28

Diaz Arboleda v. Arenas, 311 F. Supp. 2d 336 (E.D.N.Y. 2004) ............................90, 91

Diorinou v. Mezitis, 237 F.3d 133 (2d Cir. 2001)........................... 33, 44, 64, 116, 124

Distler v. Distler, 26 F. Supp. 2d 723 (D.N.J. 1998)...........................................130, 131

Doudle v. Gause, 282 F. Supp. 2d 922 (N.D. Ind. 2003) ...........................................118

Duarte v. Bardales, 526 F.3d 563 (9th Cir. 2008) ......................................61, 64, 70, 71

Edoho v. Edoho, 2010 WL 3257480 (S.D. Tex. 2010).................................................71

El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155 (1999)...............................2

England v. England, 234 F.3d 268 (5th Cir. 2000)..................... 64, 87, 88, 89, 90, 116

Escaf v. Rodriguez, 52 Fed. Appx. 207 (4th Cir. 2002)......................................119, 120

Escobar v. Flores, 183 Cal. App. 4th 737 (2010)........................................................139

Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005).................122

Falk v. Sinclair, 692 F. Supp. 2d 147 (D. Me. 2010) ..............................................25, 64

Families, Youth & Community Care, Director-General Department of v. Moore, 

[1999] FLC 92-841 (Austl.).....................................................................................66

Fawcett v. McRoberts, 326 F.3d 491 (4th Cir. 2003)...........................................39, 112

Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995)..................9, 29, 31, 42, 43, 45, 46, 48, 

52, 99, 104

Flynn v. Borders, 472 F. Supp. 2d 906 (E.D. Ky. 2007)...............................................61

FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834 (3d Cir. 1996)........119

Foster v. Foster, 654 F. Supp. 2d 348 (W.D. Pa. 2009)..............................................103

Freier v. Freier, 969 F. Supp. 436 (E.D. Mich. 1996).....................................77, 86, 107

Friedrich v. Friedrich (Friedrich I), 983 F.2d 1396 (6th Cir. 1993).... 42, 45, 46, 47, 48

Friedrich v. Friedrich (Friedrich II), 78 F.3d 1060 (6th Cir. 1996) ......9, 30, 64, 65, 67, 

75, 77, 78, 80, 111

Furnes v. Reeves, 362 F.3d 702 (11th Cir. 2004)...................................................39, 71

Gatica v. Martinez, 2011 WL 2110291 (S.D. Fla. 2011).............................................139

Gaudin v. Remis, 334 Fed. Appx. 133 (9th Cir. 2009).................................................61

Gaudin v. Remis, 415 F.3d 1028 (9th Cir. 2005)...........................................3, 104, 116

Geiser v. Valentine, No. 80286/07, slip op. 52046(U), 851 N.Y.S.2d 65 (Sup. Ct. 2007)...21

Giampaolo v. Erneta, 390 F. Supp. 2d 1269 (N.D. Ga. 2004)............. 30, 32, 55, 57, 69

Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005)...............................................................44

Glagola v. Glagola, 2003 WL 22992591 (E.D. Mich. 2003).......................................133

Gonzales v. Gutierrez, 311 F.3d 942 (9th Cir. 2002).............................................32, 39

Gonzalez Locicero v. Nazor Lurashi, 321 F. Supp. 2d 295 (D.P.R. 2004) .............81, 88

Gonzalez-Caballero v. Mena, 251 F.3d 789 (9th Cir. 2001) ........................................74

Grammes v. Grammes, 2003 WL 22518715 (E.D. Pa. 2003).............................108, 126

Greene v. Greene, 1990 WL 56197 (Tenn. App. 1990)..............................................135

Grieve v. Tamerin, 269 F.3d 149 (2d Cir. 2001)..................................................20, 119

Grijalva v. Escayola, 2006 WL 3827539 (M.D. Fla. 2006)...........................................90

Hague Child Abduction Application, In re, 2008 WL 913325 (D. Kan. 2008) ............86
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

174

Haimdas v. Haimdas, 720 F. Supp. 2d 183 (E.D.N.Y. 2010)............. 64, 65, 88, 91, 131

Hanley v. Roy, 485 F.3d 641 (11th Cir. 2007) .....................................................29, 139

Harkness v. Harkness, 577 N.W.2d 116, 227 Mich. App. 581 (Ct. App. 1998)....51, 52, 112

Harsacky v. Harsacky, 930 S.W.2d 410 (Ky. Ct. App. 1996) .................................20, 48

Hazbun Escaf v. Rodriquez, 200 F. Supp. 2d 603 (E.D. Va. 2002).................85, 89, 134

Hilton v. Braunskill, 481 U.S. 770 (1987) ..................................................................110

Hilton v. Guyot, 159 U.S. 113 (1895).........................................................................123

Holder v. Holder (Holder I), 305 F.3d 854 (9th Cir. 2002)............. 10, 67, 92, 120, 122

Holder v. Holder (Holder II), 392 F.3d 1009 (9th Cir. 2004).......................42, 115, 116

Ibarra v. Quintanilla Garcia, 476 F. Supp. 2d 630 (S.D. Tex. 2007) ......................32, 70

Innes v. Carrascosa, 391 N.J. Super. 453 (2007)........................................................126

Intel Corp. v. Advanced Micro Devices, Inc., 12 F.3d 908 (9th Cir. 1993) ...............120

Ish-Shalom v. Wittman, 797 N.Y.S.2d 111 (App. Div. 2005).......................................39

Ivaldi v. Ivaldi, 685 A.2d 1319, 147 N.J. 190 (1996)..................................................130

J.E.A. v. C.L.M., 220 D.L.R. (4th) 577 (N.S.C.A.) (2002)............................................74

Jaet v. Siso, 2009 WL 32570 (S.D. Fla. 2009).............................................................102

Janakakis-Kostun v. Janakakis, 6 S.W.3d 843 (Ky. Ct. App. 1999)................54, 85, 112

Jenkins v. Jenkins, 569 F.3d 549 (6th Cir. 2009)...............................................3, 38, 77

Johnson v. Georgia Highway Exp. Inc., 488 F.2d 714 (5th Cir. 1974)......................130

Johnson v. Johnson, 26 Va. App. 135 (Ct. App. 1997).................................................46

Journe v. Journe, 911 F. Supp. 43 (D.P.R. 1995)................................................8, 91, 92

Justice de Paix du cercle de Lausanne, decision of 6 July 2000, J 765 CIEV 112E 

(Switz.).....................................................................................................................74

Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006)............................15, 24, 45, 64

Karpenko v. Leendertz, 619 F.3d 259 (3d Cir. 2010) ......................................8, 93, 119

Katona v. Kovacs, 148 Fed. Appx. 158 (4th Cir. 2005)..............................................126

Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006).............................. 6, 42, 55, 58, 116

Kim, In re, 404 F. Supp. 2d 495 (S.D.N.Y. 2005) ...................................................20, 74

Klam v. Klam, 797 F. Supp. 202 (E.D.N.Y. 1992)......................................................134

Koc, In re, 181 F. Supp. 2d 136 (E.D.N.Y. 2001) .......................................55, 57, 69, 70

Koch v. Koch, 450 F.3d 703 (7th Cir. 2006)................................... 43, 44, 53, 111, 116

Kofler v. Kofler, 2007 WL 2081712 (W.D. Ark. 2007) ................................................91

Krefter v. Wills, 623 F. Supp. 2d 125 (D. Mass. 2009)............ 81, 98, 99, 101, 138, 140

Kufner v. Kufner, 480 F. Supp. 2d 491 (D.R.I. 2007) ..................................99, 118, 136

Kufner v. Kufner, 519 F.3d 33 (1st Cir. 2008)................................ 33, 90, 99, 102, 138

L.H. v. Youth Welfare Office of Wiesbaden, 150 Misc. 2d 490, 568 N.Y.S.2d 852 

(Fam. Ct. 1991)..................................................................................................................27

Laguna v. Avila, 2008 WL 1986253 (E.D.N.Y. 2008)...................................................91

Lalo v. Malca, 318 F. Supp. 2d 1152 (S.D. Fla. 2004)..................................................32

Leser v. Berridge, 668 F.3d 1202 (10th Cir. 2011).....................................................114

Leslie, In re, 377 F. Supp. 2d 1232 (S.D. Fla. 2005)...............................................20, 96

Levesque v. Levesque, 816 F. Supp. 662 (D. Kan. 1993) .............................................52
Table of Authorities

175

Lieberman v. Tabachnik, 625 F. Supp. 2d 1109 (D. Colo. 2008).... 32, 87, 91, 138, 139

Lopez v. Alcala, 547 F. Supp. 2d 1255 (M.D. Fla. 2008)..................................57, 72, 87

Lops v. Lops, 140 F.3d 927 (11th Cir. 1998) .................. 10, 69, 70, 116, 121, 135, 136

Lutman v. Lutman, 2010 WL 3398985 (M.D. Pa. 2010)........................................69, 71

Ly v. Heu, 296 F. Supp. 2d 1009 (D. Minn. 2003).....................................................125

Mahmoud, In re, 1997 WL 43524 (E.D.N.Y. 1997)....................................................122

March v. Levine, 249 F.3d 462 (6th Cir. 2001)................................................8, 95, 117

Marriage of Jeffers, In re, 992 P.2d 686 (Colo. App. 1999) ........................................112

Marriage of Saheb and Khazal, In re, 377 Ill. App. 3d 615 (Ill. App. 2007) ...............135

Matovski v. Matovski, 2007 WL 2600862 (S.D.N.Y. 2007)..............................73, 88, 89

Maxwell v. Maxwell, 588 F.3d 245 (4th Cir. 2009) ...............................................44, 54

McClary v. McClary, 2007 WL 3023563 (M.D. Tenn. 2007).................................42, 91

McClelland v. Carland, 217 U.S. 268 (1910)..............................................................121

McCubbin v. McCubbin, 2006 WL 179792 (W.D. Mo. 2006).....................................86

McManus v. McManus, 354 F. Supp. 2d 62 (D. Mass. 2005).................................83, 90

Medellin v. Texas, 552 U.S. 491 (2008)........................................................................12

Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347 (M.D. Fla. 2002) .... 31, 71, 85, 100

Meredith v. Meredith, 759 F. Supp. 1432 (D. Ariz. 1991) ...........................................58

Mero v. Prieto, 557 F. Supp. 2d 357 (E.D.N.Y. 2008)..................................................72

Mezo v. Elmergawi, 855 F. Supp. 59 (E.D.N.Y. 1994) .................................................97

Miller v. Miller, 240 F.3d 392 (4th Cir. 2001) ...............................................42, 64, 125

Mills v. Green, 159 U.S. 651 (1895)...........................................................................112

Miltiadous v. Tetervak, 686 F. Supp. 2d 544 (E.D. Pa. 2010)..........................57, 58, 83

Mohamud v. Guuleed, 2009 WL 1229986 (E.D. Wis. 2009) .......................................61

Moreno v. Martin, 2008 WL 4726958 (S.D. Fla. 2008)..............................................107

Morris, In re, 55 F. Supp. 2d 1156 (D. Colo. 1999)................................................46, 49

Morrison v. Dietz, 2008 WL 4280030 (W.D. La. 2008).......................................77, 122

Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983).........120, 121

Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001)........... xiv, 6, 14, 44, 47, 48, 54, 55, 77, 116

Navani v. Shahani, 496 F.3d 1121 (10th Cir. 2007)...................................112, 114, 125

Neves v. Neves, 637 F. Supp. 2d 322 (W.D.N.C. 2009)...............................81, 130, 136

Ngassa v. Mpafe, 488 F. Supp. 2d 514 (D. Md. 2007)..................................................90

Nicolson v. Pappalardo, 605 F.3d 100 (1st Cir. 2010).... 15, 43, 44, 59, 64, 76, 91, 111, 116

Noel v. Hall, 341 F.3d 1148 (9th Cir. 2003) ................................................................35

Norden-Powers v. Beveridge, 125 F. Supp. 2d 6334 (E.D.N.Y. 2000) .........................81

Norinder v. Fuentes, 2010 WL 4781149 (S.D. Ill. 2010) ...........................................118

Norinder v. Fuentes, 657 F.3d 526 (7th Cir. 2011) .....................................44, 117, 130

Nunez-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir. 1995)........... 53, 58, 60, 80, 81

Ohlander v. Larson, 114 F.3d 1531 (10th Cir. 1997).................................................112

P. v. B. (No. 2) (Child Abduction: Delay), [1999] 4 I.R. 185, 2 I.L.R.M. 401 (Ir.)......66

Perez v. Garcia, 148 Wash. App. 131 (Ct. App. 2009)...........................................31, 71

Pesin v. Rodriguez, 244 F.3d 1250 (11th Cir. 2001)........................................8, 96, 133
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

176

Pesin v. Rodriguez, 77 F. Supp. 2d 1277 (S.D. Fla. 1999)......................................32, 96

Philippopoulos v. Philippopoulou, 461 F. Supp. 2d 1321 (N.D. Ga. 2006) ........25, 140

Pielage v. McConnell, 516 F.3d 1282 (11th Cir. 2008)........................................26, 110

Pitts v. De Silva, 2008 ONCA 9, [2008] 289 D.L.R. 4th 540 (Can. Ont.) ..................124

Polson, In re, 578 F. Supp. 2d 1064 (S.D. Ill. 2008)...................................................131

Prevot v. Prevot, 59 F.3d 556 (6th Cir. 1995)....................................................8, 94, 95

Quinn v. Settel, 682 So.2d 617 (1996 Fla. App.)..........................................................46

R.P.B., In re, 2010 WL 339812 (Ohio App. 2010)........................................................61

Raijmakers-Eghaghe v. Haro, 131 F. Supp. 2d 953 (E.D. Mich. 2001)........................90

Re C. (Abduction: Settlement), [2004] EWHC 1245 ...................................................73

Re C. (No. 2), [2005] 1 FLR 938 ..................................................................................74

Re M. and Another (Children) (Abduction: Rights of Custody), [2007] UKHL 55, 

[2008] 1 AC 1288 ....................................................................................................66

Re S. (A Minor) (Abduction), [1991] Fam. 224 (EWCA (Civ.)) (Eng.)......................66

Reed v. Rhodes, 179 F.3d 453 (6th Cir. 1999)...........................................................130

Rigby v. Damant, 486 F. Supp. 2d 222 (D. Mass. 2007).............................................122

Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007).............................................45, 46, 116

Robinson, In re, 983 F. Supp. 1339 (D. Colo. 1997)....................................................69

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)...............................................35, 122

Roszkowski v. Roszkowska, 274 N.J. Super. 620, 644 A.2d 1150 (1993)..................130

Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004).........................................................42

Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995)........................... 7, 43, 64, 81, 112, 131

S.J.O.B.G., In re, 292 S.W.3d 764 (Tex. App. 2009).....................................................27

Samman v. Steber, 2005 WL 588313 (Va. App. 2005)...............................................135

Sampson v. Sampson, 267 Kan. 175 (1999) .........................................................77, 112

Schroeder v. Vigil-Escalera Perez, 76 Ohio Misc. 2d 25 (1995)...................................24

Sealed Appellant v. Sealed Appellee, 394 F.3d 338 (5th Cir. 2004)...........................116

Seaman v. Peterson, 762 F. Supp. 2d 1363 (M.D. Ga. 2011) .....................................118

Secretary for Justice (New Zealand Central Authority) v. H.J., [2007] 2 NZLR 

289 (SC) (N.Z.)........................................................................................................66

Sewald v. Reisinger, 2009 WL 150856 (M.D. Fla. 2009)..............................................86

Shalit v. Coppe, 182 F.3d 1124 (9th Cir. 1999).....................................................30, 51

Silverman v. Silverman (Silverman I), 267 F.3d 788 (8th Cir. 2001)............................. 119

Silverman v. Silverman (Silverman II), 338 F.3d 886 (8th Cir. 2003)...28, 42, 43, 53, 119

Silverman v. Silverman, 2004 WL 2066778 (D. Minn. 2004)........................................ 131

Silverman v. Silverman, 312 F.3d 914 (8th Cir. 2002)..................................................... 43

Simcox v. Simcox, 2008 WL 2924094 (N.D. Ohio 2008) ..........................................105

Simcox v. Simcox, 511 F.3d 594 (6th Cir. 2007)......... 3, 14, 43, 44, 75, 80, 82, 83, 89, 

100, 101, 105, 111, 116

Skrodzki, In re, 642 F. Supp. 2d 108 (E.D.N.Y. 2007) .................................................90

Slagenweit v. Slagenweit, 64 F.3d 719 (8th Cir. 1995) ..............................................130

Slagenweit v. Slagenweit, 841 F.Supp. 264 (N.D. Iowa 1993)......................................24
Table of Authorities

177

Sorenson v. Sorenson, 2008 WL 750531 (D. Minn. 2008)...........................................28

Sorenson v. Sorenson, 559 F.3d 871 (8th Cir. 2009)...................................................43

Soucie v. Soucie, [1995] S.C. 134, S.C.L.R. 203 (Scot.) ...............................................66

Steffen F. v. Severina P., 966 F. Supp. 922 (D. Ariz. 1997)..........................................81

Stern v. Stern, 639 F.3d 449 (8th Cir. 2011)................................................................45

Stevens v. Stevens, 499 F. Supp. 2d 891 (E.D. Mich. 2007).........................................75

Sullivan v. Sullivan, 2010 WL 227924 (D. Idaho 2010).............................................108

Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176 (1982)...............................13

Tahan v. Duquette, 259 N.J. Super. 328 (1992) ...........................................................90

Tarbell v. Jacobs, 856 F. Supp. 101 (N.D.N.Y. 1994).................................................123

Taveras v. Taveraz, 477 F.3d 767 (6th Cir. 2007)................................................16, 125

Thapa v. Gonzales, 460 F.3d 323 (2d Cir. 2004) .......................................................111

Thomson v. Thomson, [1994] 3 S.C.R. 551, 119 D.L.R. (4th) 253 (Can. S.C.C.)........23, 80

Toren v. Toren, 191 F.3d 23 (1st Cir. 1999)..........................................................25, 51

Toren v. Toren, 26 F. Supp. 2d 240 (D. Mass. 1998)...................................................72

Troxel v. Granville, 530 U.S. 57 (2000)........................................................................95

Trudrung v. Trudrung, 2010 WL 2867593 (M.D.N.C. 2010)....................................130

Trudrung v. Trudrung, 686 F. Supp. 2d 570 (M.D.N.C. 2010) .......................89, 90, 91

Tsai-Yi Yang v. Fu-Chiang Tsui, 2006 WL 2466095 (W.D. Pa. 2006).........................91

Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259 (3d Cir. 2007)............ 30, 64, 77, 88, 89

Tsarbopoulos v. Tsarbopoulos, 176 F. Supp. 2d 1045 (E.D. Wash. 2001) ..........54, 101

Turner v. Frowein, 253 Conn. 312 (2000).................................................................101

United States v. Barnette, 129 F.3d 1179 (11th Cir. 1997) ..........................................96

Van de Sande v. Van de Sande, 2008 WL 239150 (N.D. Ill. 2008) ............................140

Van De Sande v. Van De Sande, 431 F.3d 567 (7th Cir. 2005)....... 33, 80, 82, 101, 103

Van Driessche v. Ohio-Esezeoboh, 466 F. Supp. 2d 828 (S.D. Tex. 2006)....33, 70, 125

Velez v. Mitsak, 89 S.W.3d 73 (Tex. App. 2002)........................................................135

Viragh v. Foldes, 415 Mass. 96, 612 N.E.2d 241 (1993)........................................27, 33

Viteri v. Pflucker, 550 F. Supp. 2d 829 (N.D. Ill. 2008).........................................13, 17

Von Kennel Gaudin v. Remis, 282 F.3d 1178 (9th Cir. 2002)...................................110

Von Wussow-Rowan v. Rowan, 1998 WL 461843 (E.D. Pa. 1998).............................93

Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000)............. 81, 82, 83, 84, 85, 95, 100, 104, 

111, 118, 138

Walsh, In re, 31 F. Supp. 2d 200 (D. Mass. 1998)......................................................118

Wanninger v. Wanninger, 850 F. Supp 78 (D. Mass. 1994)...................................20, 75

Wasniewski v. Grzelak-Johannsen, 2007 WL 2344760 (N.D. Ohio 2007)..................91

Wasniewski v. Grzelak-Johannsen, 549 F. Supp. 2d 965 (N.D. Ohio 2008)..............138

Welsh v. Lewis, 740 N.Y.S.3d 3355 (App. Div. 2002)..................................................39

Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000) .................. 30, 31, 43, 82, 83, 116, 126

Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir. 2004) .................................................131

Whiting v. Krassner, 391 F.3d 540 (3d Cir. 2004)................................ 44, 50, 112, 116

Wiezel v. Wiezel-Tyrnauer, 388 F. Supp. 2d 206 (S.D.N.Y. 2005) ............................125
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

178

Wiggill v. Janicki, 262 F. Supp. 2d 687 (S.D. W. Va. 2003).......................................125

Wilchynski v. Wilchynski, 2010 WL 1068070 (S.D. Miss. 2010)........................81, 102

Wipranik v. Superior Court, 63 Cal. App. 4th 315 (1998).........................................139

Witherspoon v. Orange County Dept. of Social Services, 646 F. Supp. 2d 1176 

(C.D. Cal. 2009).....................................................................................................119

Wojcik v. Wojcik, 959 F. Supp. 413 (E.D. Mich. 1997)...............................................68

Yang v. Tsui, 416 F.3d 199 (3d Cir. 2005).....................................................6, 119, 120

Young v. United States, 535 U.S. 43 (2002) .................................................................71

Younger v. Harris, 401 U.S. 37 (1971)........................................................................118

Zuker v. Andrews, 1999 WL 525936 (1st Cir. 1999)...................................................44

Zuker v. Andrews, 2 F. Supp. 2d 134 (D. Mass. 1998)...........................................24, 49

Statutes

8 U.S.C. § 1158 .............................................................................................................57

18 U.S.C. § 1204 ..................................................................................................... ix, 97

28 U.S.C. § 636(b)(1)(B)............................................................................................115

28 U.S.C. § 1350 ...........................................................................................................16

28 U.S.C. § 1441 ...........................................................................................................10

42 U.S.C. § 11601 .............................................................................. x, 3, 5, 10, 63, 118

42 U.S.C. § 11601(b)(3)(B)..........................................................................................13

42 U.S.C. § 11601(b)(4) ........................................................................................... ix, 3

42 U.S.C. § 11602(7) ............................................................................................ xiii, 27

42 U.S.C. § 11603(a).................................................................................................6, 10

42 U.S.C. § 11603(b) ....................................................................................................20

42 U.S.C. § 11603(e).................................................................................................6, 21

42 U.S.C. § 11603(e)(1)(A)..........................................................................................21

42 U.S.C. § 11603(e)(2)(A)..........................................................................................78

42 U.S.C. § 11603(e)(2)(B) ..........................................................................................64

42 U.S.C. § 11603(f)(3)................................................................................................68

42 U.S.C. § 11603(g) ..................................................................................................107

42 U.S.C. § 11604(a)...................................................................................................133

42 U.S.C. § 11604(b) ............................................................................................10, 134

42 U.S.C. § 11605 ...................................................................................................6, 117

42 U.S.C. § 11607(b) ......................................................................................................6

42 U.S.C. § 11607(b)(3) .............................................................................................129

50 U.S.C. § 501 .............................................................................................................86

Law No. 16,618, Julio 22, 1966, Diario Oficial [D.O.] (Chile) ....................................40
Table of Authorities

179

Other Authorities

William J. Clinton, President’s Signing Statement for H.R. 3378, 993 U.S.C.C.A.N. 

2424-1 (1993)..........................................................................................................97

James D. Garbolino, International Child Custody: Handling Hague Convention Cases 

in U.S. Courts (National Judicial College 2000)......................................................90

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 ..............................................................28, 128

Hague Conference on Private International Law, Preliminary Document, Draft Guide 

to Good Practice, Part V – Mediation, May 2011 ..................................................140

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) ...................................................107

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 ......................................................................................128

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, 14, 21, 30, 36, 41, 42, 45, 60, 64, 66, 79, 82, 115

Response to International Parental Kidnapping: Hearing Before the Senate Committee 

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.)...................................................................................88

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)....78, 98

Uniform Child Custody Jurisdiction and Enforcement Act...... xiii, 7, 66, 107, 110, 126
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

180

Rules

Federal Rule of Appellate Procedure 8(a)(1)(A) ........................................................110

Federal Rule of Appellate Procedure 32.1.......................................................................2

Federal Rule of Civil Procedure 16 .......................................................................xv, 133

Federal Rule of Civil Procedure 17(c) ........................................................................138

Federal Rule of Civil Procedure 44.1 ............................................................................30

Federal Rule of Civil Procedure 62(c) ........................................................................110

Federal Rule of Civil Procedure 65 .............................................................................134

Federal Rule of Civil Procedure 72(b)........................................................................115

Treatises

E.M. Clive, The Concept of Habitual Residence, The Juridical Review part 3.................59

Linda Silberman, Interpreting the Hague Abduction Convention: In Search of a Global 

Jurisprudence, 38 U.C. Davis L. Rev. 1049, 1054 (2005).....................................3, 14

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)............9, 13, 

14, 15, 20, 22, 31, 33, 36, 41, 60, 64, 65, 66, 67, 68, 77, 79, 81, 82, 85, 88, 110, 130

Convention Articles

Preamble..................................................................................................................7, 115

Article 1...................................................................................................................7, 115

Article 2.......................................................................................................................115

Article 3.................................................................................... 7, 23, 27, 29, 35, 68, 127

Article 3(a)..............................................................................................7, 12, 23, 27, 76

Article 3(b)....................................................................................................7, 21, 23, 76

Article 4...................................................................................................................41, 60

Article 5.........................................................................................................................38

Article 7.........................................................................................................................11

Article 7(b)..................................................................................................................133

Article 11......................................................................................................... xi, 12, 115

Article 12.......... 8, 21, 23, 26, 44, 55, 56, 63, 64, 65, 66, 68, 70, 71, 72, 73, 85, 91, 113

Article 13............................................................ 9, 21, 61, 64, 65, 74, 81, 87, 88, 90, 91

Article 13(a)..................................................................................... 8, 63, 74, 75, 76, 77

Article 13(b)................ 8, 21, 43, 53, 63, 64, 65, 78, 79, 81, 82, 83, 84, 88, 98, 99, 102, 

103, 104, 124
Table of Authorities

181

Article 16...........................................................................................................6, 20, 119

Article 17.................................................................................................................34, 35

Article 18.....................................................................................................65, 66, 67, 73

Article 20.................................................................. 8, 21, 63, 64, 65, 78, 85, 86, 87, 91

Article 21...............................................................................................................61, 125

Article 26.............................................................................................................129, 137

Article 29.......................................................................................................................61

Article 31.......................................................................................................................31

Article 34.......................................................................................................................67

Article 35.......................................................................................................................16

Article 36.......................................................................................................................60

Article 38.......................................................................................................................16

Article 42.....................................................................................................................137

Webpages

http://hcch.e-vision.nl/index_en.php?act=publications.details&pid=2779&dtid=3 ....14

http://travel.state.gov/abduction/attorneysjudges/attorneysjudges_4306.html......................10

http://travel.state.gov/abduction/resources/congressreport/congressreport_1487.html ......15

http://www.hcch.net/index_en.php?act=conventions.text&cid=24 .............................10

http://www.hcch.net/upload/haguenetwork.pdf .........................................................128

http://www.incadat.com/index.cfm?act=text.text&lng=1.............................................15

183

Index

abstention

Colorado River................................. 120

duty to exercise jurisdiction ........... 121

Rooker-Feldman............................... 122

Younger............................................ 118

access

distinguished from custody ........ 27, 38

petitions for..................................... 125

accession

acceptance of..................................... 16

acquiescence

burden of proof................................. 74

generally............................................ 74

subjective intent................................ 75

administrative procedure........................ xi, 19

age

age and maturity defense ................. 87

jurisdiction........................................ 60

agreement to return child

anticipatory breach ........................... 25

Alien Tort Statute..........................................16

alternatives to return...................................102

appeal

return of child during ..................... 112

standard of review...................................43

Argentina .......................................... 32, 49, 85

Article 12 .......................................................72

equitable tolling ................................ 71

Article 15 request..........................................28

Article 18

interplay with Article 12................... 66

asylum............................................................57

conditions......................................... 58

attorney fees and costs

amount............................................ 130

appeal from order granting ............. 112

authority for.................................... 129

clearly inappropriate....................... 131

lodestar ........................................... 130

purposes.......................................... 129

Australia................... 29, 48, 54, 59, 65, 73, 76

barring order..................................................85

Belgium..........................................................59

bonds

posting of ................................ 113, 135

Brazil..............................................................61

British Columbia...........................................30

burden of proof

case in chief....................................... 21

clear and convincing evidence .... 22, 78

defenses............................................. 22

generally............................................ 21

Canada.............................................. 31, 44, 50

case for return

basic elements..............................xiii, 7

case management

appointed counsel........................... 137

conference....................................... 138

generally.................................... xv, 133

security of child .............................. 133

timelines.......................................... 136

Central Authority.. xi, 13, 18, 19, 68, 92, 109, 

115, 142, 144, 145, 146, 148, 149, 150

role .................................................... 11

chasing orders.......................................29, 102

child abuse

intolerable situation .......................... 81

child custody..............................................ix, 3

child settled .............................................68–70

Children’s Passport Issuance Alert 

Program.................................................136

Chile...............................................................40

China .............................................................73

coercion

generally............................................ 53

non-removal order............................ 54

Colombia .......................................................85

comity

as basis for exercising jurisdiction.. 125

denial of .......................................... 123

enforcement of foreign custody 

orders ........................................ 125

examining foreign orders................ 123

refusal to grant.................................. 87

commencement of proceedings...................68

defined .............................................. 68
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

184

common-law countries

undertakings used in ........................ 98

communication

between judges........................ xvii, 128

concurrent jurisdiction

removal ........................................... 122

Congress.....................................10, 13, 42, 97

consent...........................................................74

contempt............................................... 96, 113

Convention

purposes generally ....................... ix, 13

signed.................................................. 1

counsel for children ....................................138

criminal proceedings............................ 98, 102

custody agreements

definiteness....................................... 36

custody rights

Abbott decision.................................. 40

administrative agencies holding ....... 27

broad definition ................................ 40

burden in case-in-chief ..................... 21

by agreement..................................... 35

generally........................................... xiii

holders of .......................................... 27

judicial or administrative decision.... 32

non-exercise...................................... 21

operation of law ................................ 30

order approving, necessity................ 36

orders................................................ 34

temporary custody order .................. 33

Cyprus ...........................................................57

Czech Republic ...........................................114

defenses

basic elements.............................. xiv, 8

burdens of proof ............................... 63

discretionary ..................................... 65

generally............................................ 63

interpretation.................................... 64

narrowly defined........................... 8, 22

non-discretionary.............................. 66

procedural......................................... 63

return despite establishment............. 65

delay

more than a year ............................... 68

reasons for......................................... 12

two prongs of defense ....................... 68

deportation....................................................55

threat of............................................. 56

discovery schedule.....................117, 133, 137

domestic violence

clear and convincing evidence .......... 83

degrees of .......................................... 83

directed at parent only ...................... 83

generally............................................ 82

mediation ........................................ 140

domicile .........................................................42

Dominican Republic .............................16, 125

Egypt..............................................................97

England...........................34, 73, 114, 123, 125

entry into force, date.......................................2

equitable defenses, generally........................91

equitable tolling.............................................67

courts approving ............................... 70

denied ............................................... 71

generally............................................ 70

non-acceptance by other states......... 73

not approved..................................... 72

standard of review............................. 71

state courts........................................ 71

evidence

declarations or affidavits................. 139

live testimony.................................. 139

ex parte

custody decree .................................. 33

exercise of custody rights

acts constituting................................ 77

defined .............................................. 77

placement of child with third party .. 77

expeditious handling

appeals ............................................ 116

generally...................................... x, 115

reasons for delay ............................. 115

Federal Rules of Civil Procedure

applicability..................................... 116

foreign law

proof of ............................................. 30

forensic evaluation........................................82

form of action................................................20

forum shopping.............................................42

foster care ....................................................135

France ................................46, 88, 92, 94, 103

fugitive disentitlement .................... 91, 94–96
Index

185

full faith and credit.........................33, 35, 107

inapplicable to foreign judgments .... 33

fundamental purposes...............................ix, 6

Germany ................ 25, 30, 33, 51, 52, 81, 120

grave risk

child abuse ........................................ 81

courts unable to provide protection . 79

defined .............................................. 79

domestic violence ............................. 82

generally...................................... xv, 78

separation from primary caregiver.... 80

sexual abuse ...................................... 82

Greece .............................................54, 75, 123

habeas corpus................................................86

warrant in lieu................................... 20

habitual residence

acclimitization................................... 46

after only one day ............................. 47

agreements establishing .................... 37

asylum............................................... 57

change by wishful thinking .............. 47

change in geography required .......... 37

coercion ............................................ 53

different territorial units................... 31

domicile ...................................... 42, 43

duration of stay................................. 49

fact driven ......................................... 42

future intent...................................... 45

generally..................................... xiii, 41

immigration status............................ 55

infants......................................... 58–60

intent to abandon........................ 44, 54

lack of mutual intent .................. 48, 52

law relating to custody rights ........... 41

length of stay..................................... 50

majority view .................................... 44

mutual intent to change.................... 48

mutual settled intent......................... 47

nationality and citizenship................ 43

not defined by Convention ............... 41

only one ............................................ 46

orders fixing place of ........................ 37

parent intent negated........................ 46

parents’ change in residence ............. 49

past experiences................................ 45

physical abuse ................................... 53

physical presence .............................. 52

right to determine residence ............. 39

rights relating to care of child........... 39

settled purpose.................................. 42

UK definition .................................... 42

Hague Judicial Network .....................xvii, 128

Hague Permanent Bureau......xii, 15, 127, 128

Hilton, William M., Esq..................................3

Hong Kong ....................................................73

House of Lords..............................................66

immigration status........................................55

affecting habitual residence .............. 55

child settled....................................... 56

implementing legislation................................1

INCADAT......................................................15

individual territories

within countries................................ 31

infants

habitual residence does not follow 

mother......................................... 60

International Child Abduction Remedies Act 

(ICARA)........................x, 3, 5, 10, 13, 21, 

22, 25, 63, 68, 71, 110, 118, 129, 130, 

133, 134, 137

International Parental Kidnapping Crime 

Act (IPKCA).......................................ix, 97

interpretation.................................................12

executive interpretation.................... 13

uniform international interpretation 13

intolerable situation

financial conditions........................... 81

generally...................................... xv, 78

Ireland......................................................73, 84

Islamic law.......................................................9

Israel..............................25, 37, 38, 51, 52, 113

Japan ..............................................................16

Jordan ..........................................................134

judicial communication

concerning merits of case ............... 127

direct............................................... xvii

generally.......................................... 126

judicial independence ..................... 126

logistics ........................................... 126

safeguards ....................................... 128

judicial independence.................................128
The 1980 Hague Convention on the Civil Aspects of International Child Abduction

186

jurisdiction

concurrent......................................... 10

where child is located ....................... 20

legal representation

pro bono and reduced fee ............... 137

Libya...............................................................97

mediation

agreements...................................... 140

delay caused by ............................... 140

generally.......................................... 139

member states................................................16

approval of Convention ...................... 9

mens rea .........................................................23

Mexico ............................31, 56, 60, 65, 86, 95

military

families.............................................. 42

parent in.................................... 51, 120

mirror-image orders...................xvii, 100, 108

limitations....................................... 108

recognition of.................................. 109

moot case ............................................. 110–14

National Conference of Commissioners 

on Uniform State Laws.............................9

Native Americans..........................................28

ne exeat......................................12, 39, 40, 168

negotiations

for return by Central Authority ........ 19

Netherlands...................................................26

non-Hague country.......................................97

objection to return

age and maturity ............................... 88

age of child........................................ 90

burden of proof................................. 87

court’s discretion .............................. 87

in camera interviews......................... 90

manner of hearing............................. 90

objections vs. wishes......................... 88

preponderance of the evidence ......... 87

return despite objection.................... 65

sole basis for denial of petition ......... 88

two-step process ............................... 88

undue influence ................................ 89

official history and commentary ..................14

Panama ..........................................................32

parallel jurisdiction

issues............................................... 118

passports

deposit of ........................................ 136

patria potestas................................................31

defined .............................................. 31

Poland............................................................55

Post Traumatic Stress Disorder....................84

preponderance of the evidence ....................22

prima facie case

generally............................................ 20

primary caretaker........................................102

abduction by ..................................... 29

pro bono ......................................................131

prompt return .............................................115

protection of human rights and fundamental 

freedoms

generally............................................ 85

provisional remedy ........................... ix, 3, 133

Puerto Rico....................................................92

racial prejudice

constituting grave risk ...................... 81

ratification

member states and party states......... 16

versus accession ................................ 16

re-abduction.......... 73, 93, 113, 133, 135, 136

reconciliation.................................................76

of marriage ........................................ 54

relocation

for limited time ........................... 47, 49

indefinite period of time ................... 47

removal of case............................................122

res judicata.....................................................37

restraining orders..........................................85

return orders

generally................................... xvi, 107

particularity..................................... 107

safety of child.................................. 107

to other than habitual residence ..... 110

under other laws............................... 67

return refused

alternatives to.................................. 102

alternatives, duty to consider.......... 102

ameliorative measures..................... 103

Roman law.....................................................31

safe harbor orders ..............................xvii, 109

Scotland .................................................23, 112

selection of forum .......................................122
Index

187

Servicemembers Civil Relief Act ..................86

sexual abuse...................................................82

sister state signatories

cooperation with............................... 11

decisions of ....................................... 12

member states................................... 16

number of ......................................... 14

party states........................................ 16

Spain ..................................................... 86, 126

standard of review.........................................43

state law

application of .................................... 10

removal of child from custodial 

parent........................................ 134

status quo ante...............................................29

stays

appellate courts issuing .................. 111

child custody proceedings .................. 6

discretion ........................................ 111

factors for granting ......................... 110

generally.......................................... 110

stipulation

for return......................................... 114

Sweden............................................46, 82, 113

Switzerland............................................. 49, 93

temporary restraining order.......................134

threats

concealment or abduction .............. 133

U.S. State Department............xi, 9, 11, 12, 13, 

15, 19, 128, 137

Central Authority for U.S.................. 11

Children’s Passport Issuance Alert 

Program..................................... 136

informs courts of cases filed ............. 11

locating counsel for applicants....... 137

Office of Children’s Issues........... xi, 13

Text & Legal Analysis.... 15, 60, 64, 66, 

68, 81, 110

views on interpretation of 

Convention ................................. 12

UCCJEA.................... xiii, 7, 66, 107, 110, 126

unclean hands.........................................91, 93

undertakings..........................................82, 102

absent 13(b) defense ......................... 99

appropriate use ................................. 99

enforceability .................................. 100

extensive ......................................... 104

financial assistance.......................... 101

generally..................................... xvi, 98

parent to accompany child.............. 105

primary caretaker............................ 101

protective orders............................. 101

vacating chasing orders................... 102

when inappropriate......................... 105

United Kingdom .............................. 41, 65, 66

United States Marshals Service............xvi, 108

Venezuela ................................................34, 96

waiver.............................................................91

wrongful removal

commencement date ......................... 24

defined .......................................... 7, 23

generally............................................ 23

under law of habitual residence........ 28

vs. wrongful retention....................... 23

wrongful retention

anticipatory breach ........................... 26

by grandparents ................................ 95

commencement date ......................... 24

defined .............................................. 23

determining date of........................... 68

Younger abstention......................................118

zone of war....................................................79
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 

Magistrate Judge John M. Facciola, U.S. District Court for the District of Columbia 

Judge James B. Haines, Jr., U.S. Bankruptcy Court for the District of Maine 

Judge James F. Holderman, Jr., U.S. District Court for the Northern District of Illinois 

Judge Michael M. Melloy, U.S. Court of Appeals for the Eight Circuit 

Judge Edward C. Prado, U.S. Court of Appeals for the Fifth Circuit 

Judge Kathryn H. Vratil, U.S. District Court for the District of Kansas 

Judge Thomas F. Hogan, 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 programs for judges and 

court staff, including video programs, publications, curriculum packages for in-court 

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 two divisions work closely with two units of 

the Director’s Office—the Information Technology Office and the Communications 

Policy & Design Office—in using print, broadcast, and online media to deliver education and training and to disseminate the results of Center research. 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 assesses how to inform federal judicial personnel 

of developments in international law and other court systems that may affect their 

work.