RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 18a0147p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LIZ LORENA LOPEZ MORENO,

Petitioner-Appellant,

v.

JASON MICHAEL ZANK,

Respondent-Appellee.

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No. 17-2397

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:17-cv-00732—Paul Lewis Maloney, District Judge.

Argued: June 14, 2018

Decided and Filed: July 19, 2018

Before: KEITH, ROGERS, and BUSH, Circuit Judges 

_________________

COUNSEL

ARGUED: Amy Grauman, AVANTI LAW GROUP, PLLC, Wyoming, Michigan, for 

Appellant. Matthew T. Nelson, WARNER NORCROSS & JUDD LLP, Grand Rapids, 

Michigan, for Appellee. ON BRIEF: Amy Grauman, Robert Anthony Alvarez, AVANTI LAW 

GROUP, PLLC, Wyoming, Michigan, for Appellant. Matthew T. Nelson, Peter M. KulasDominguez, Paul H. Beach, WARNER NORCROSS & JUDD LLP, Grand Rapids, Michigan, 

for Appellee.

_________________

OPINION

_________________

ROGERS, Circuit Judge. In this case under the Hague Convention on the Civil Aspects 

of International Child Abduction, a mother seeks the return of a child to Ecuador, the place 

>
No. 17-2397 Lopez Moreno v. Zank Page 2

where the child had become accustomed to living, from a stay with the father in the United States 

that the mother, at least, intended to be temporary. Relief is available under the Convention only 

if Ecuador is the habitual residence of the child. The district court held that the mother’s original 

abduction of the child to Ecuador years earlier meant that Ecuador could not be the child’s 

habitual residence. However, the father had not followed through with Hague Convention 

procedures in Ecuador following the original abduction. Reversal is required because the proper 

remedy for the initial kidnapping to Ecuador was a Hague Convention petition filed in Ecuador, 

subject to applicable limitations and defenses, rather than the self-help remedy of (in effect) later 

re-kidnapping back to the United States. A remand is also necessary, on which various treatybased defenses may be raised.

The child at issue here, BLZ, was born in 2006 in Michigan to the then-married couple of 

Jason Zank, a citizen of the United States, and Liz Lopez Moreno, a citizen of Ecuador. Zank 

and Lopez Moreno divorced in July 2009. Their divorce decree granted Zank and Lopez Moreno 

joint legal and physical custody of BLZ, with alternate weekly custody and twice-weekly 

visitation by each parent. It also prohibited Lopez Moreno from taking BLZ to Ecuador without 

prior notice to Zank.

The concerns implicit in the divorce decree turned out to have been well-founded. In 

December 2009, Lopez Moreno took BLZ to Ecuador with her, in violation of the divorce 

decree. Zank sought and received a court order from a Michigan state court, the Montcalm 

County Circuit Court, temporarily granting him sole legal and physical custody of BLZ. 

Because this proceeding was ex parte, Lopez Moreno was not present during that action.

Once Zank discovered that BLZ had been taken to Ecuador, he contacted the U.S. 

Department of State and filled out a Hague Convention petition with the United States Embassy 

in Ecuador. Zank did not complete the Hague Convention process, however, in that he did not 

file the petition with the Ecuadorian courts, or otherwise attempt to secure the return of BLZ 

through procedures in Ecuador. Zank testified that he had not filed the petition or pursued any 

other remedy in Ecuador because he had suffered what he called “the runaround” from U.S. 

Embassy officials. The district court determined that Zank’s testimony was credible, based in 

part on the fact that the U.S. State Department has in the meantime labeled Ecuador as not being 
No. 17-2397 Lopez Moreno v. Zank Page 3

in compliance with its Hague Convention obligations. The district court, however, did not make 

any finding that Zank had actually been obstructed by any Ecuadorian officials in his failure to 

file a Hague petition or that any petition filed by Zank with an Ecuadorian court would 

ultimately have been futile.

In Ecuador, Lopez Moreno enrolled BLZ in a private school and arranged for her to have 

language tutoring. BLZ flourished in this environment, participating in a number of 

extracurricular activities and making many Ecuadorian friends. The district court accordingly 

determined that, because BLZ had lived so fully in Ecuador from the ages of 3 to 10, she “had 

been acclimatized to Ecuador and was settled there,” such that she would have met the standards 

for establishing habitual residency in Ecuador.

As Lopez Moreno and BLZ settled into their new Ecuadorian home, tensions between 

Lopez Moreno and Zank also began to subside. Beginning in 2010, Lopez Moreno first 

permitted Zank’s parents, and then Zank himself, to visit BLZ in Ecuador. Although able to visit 

BLZ, Zank did not attempt to take BLZ to the United States Embassy, or to pursue a Hague 

Convention petition in Ecuador during these visits. Zank testified that this apparent lack of effort 

was because Lopez Moreno required him and his parents to surrender their passports before 

visiting BLZ.

In 2014, following several of these visits, Lopez Moreno proposed to Zank that they

formalize the status of BLZ in Ecuador. In 2010, Lopez Moreno had obtained an ex parte order 

from an Ecuadorian court prohibiting BLZ from leaving the country, but Zank had not 

participated in or been a party to that order. Lopez Moreno and Zank therefore began to 

negotiate, and they ultimately reached an accord between themselves. Under their agreement, 

Lopez Moreno received full legal custody of BLZ and an increase in Zank’s child support 

payments from $200 to $300 a month, and Zank “waive[d] pursuing further action arising from 

the arrival of the minor child in Ecuador.” In return for his concessions, Zank received a lifting 

of the 2010 Ecuadorian court order, and Lopez Moreno’s permission to have BLZ visit him in 

Michigan when not in school in Ecuador.
No. 17-2397 Lopez Moreno v. Zank Page 4

Lopez Moreno and Zank tell conflicting stories about how they came to reach this 

agreement. In Lopez Moreno’s telling, she decided to resolve her disagreements with Zank after 

recognizing the harm that the dispute caused to BLZ. In Zank’s telling, Lopez Moreno presented 

him with an ultimatum: agree to her demands or be permanently cut off from BLZ. The district 

court credited Zank’s account over that of Lopez Moreno, as evidenced by the one-sidedness of 

the agreement towards Lopez Moreno. The court also made a specific determination that Zank 

“was coerced into making the agreement.”

Zank and Lopez Moreno brought the agreement to an Ecuadorian family court for 

ratification. The Ecuadorian court approved and ratified the agreement, granting permanent 

custody of BLZ to Lopez Moreno in Ecuador, but permitting BLZ to make temporary visits to 

Zank in the United States. The district court below noted that the Ecuadorian court was 

apparently not apprised of the background of the case, including the fact that Lopez Moreno had 

taken BLZ to Ecuador in violation of the Michigan state court order, or that Zank had attempted 

(though ultimately failed) to file a petition under the Hague Convention.

Following the Ecuadorian agreement, BLZ made one visit to Zank in Michigan in 2014, 

without incident. In 2015, before a second visit of BLZ to Zank in Michigan, Lopez Moreno and 

Zank entered into a second agreement, this one in the United States. This agreement tracked the 

Ecuadorian agreement: it stipulated that BLZ had “established a life in Ecuador,” that primary 

custody should be awarded to Lopez Moreno, that BLZ would be allowed to visit Zank in 

Michigan, and that Zank would pay Lopez Moreno the agreed-upon child support. Lopez 

Moreno and Zank apparently intended to file this agreement with the Montcalm County Circuit 

Court, the court that had granted Zank temporary custody of BLZ in 2009 and never revoked 

Zank’s custody of BLZ. The lawyer that Lopez Moreno chose to draw up and file the second 

agreement apparently bungled the matter, however. The agreement was addressed to an 

uninvolved Michigan court, the Kent County Circuit Court. In addition, as the district court 

determined, the version of the agreement entered into the record leaves it unclear as to whether 

the agreement was actually filed with any court.

In 2016, Lopez Moreno again sent BLZ to visit Zank for the summer. This visit did not 

go as planned. Zank testified that, during this visit, BLZ told him that Lopez Moreno had 
No. 17-2397 Lopez Moreno v. Zank Page 5

physically abused her, by hitting her and throwing a chair at her, and that she did not wish to 

return to Ecuador. On August 5, 2016, BLZ called Lopez Moreno, and, in a “very fast 

conversation,” BLZ stated that she had learned “the entire truth” about the divorce, believed that 

Lopez Moreno “was a drug user,” and had realized that Lopez Moreno had abducted her to 

Ecuador. However, BLZ did not explicitly say in this conversation that she would not return to 

Ecuador. Even so, on August 10, Zank did not place BLZ on a scheduled flight to Florida to 

visit Walt Disney World with Lopez Moreno’s father, and, on August 15, Zank did not place 

BLZ on a flight scheduled to take BLZ from Michigan back to Ecuador.

On October 10, 2016, Zank filed a petition with the Montcalm County Circuit Court for 

permanent custody of BLZ. The Friend of the Court investigated Zank’s living situation and 

determined that the best interest of BLZ was for Zank to be granted permanent custody of her, 

given, among other things, that Lopez Moreno had violated the 2009 custody order and that BLZ 

voiced a preference for living permanently with Zank. Lopez Moreno was not present in this 

process, apparently because she had not updated her address with the court when she left for 

Ecuador. On October 31, 2016, the Montcalm County Circuit Court granted permanent sole 

custody of BLZ to Zank.

On August 14, 2017, Lopez Moreno filed this Hague Convention petition in U.S. District 

Court, contending that Zank’s retention of BLZ in Michigan was wrongful. The complaint 

sought the immediate return of BLZ to Ecuador and made the allegation, necessary to relief 

under the Convention given Lopez Moreno’s arguments, that BLZ was a habitual resident of 

Ecuador. The district court rejected this argument, however. Although the court acknowledged 

that BLZ had spent such extensive time and maintained such a social connection to Ecuador that 

she would otherwise be deemed a habitual resident of that nation, it held that “because [Lopez 

Moreno] abducted BLZ in violation of Michigan law and brought her [to Ecuador] in 2009,” she 

could not have become habitually resident in Ecuador, and that her habitual residence 

accordingly remained in the United States. The district court proceeded to decide further that, 

because BLZ maintained habitual residency in the United States, the 2009 custody order 

continued to apply to BLZ and the subsequent Ecuadorian and American agreements between 

Lopez Moreno and Zank did not overcome that custody order. The former did not apply because 
No. 17-2397 Lopez Moreno v. Zank Page 6

an Ecuadorian court did not have jurisdiction over an American custody assignment, and the 

latter did not because there was no evidence that the agreement was ever ratified by the 

Montcalm County Circuit Court. Lopez Moreno appeals.

Relief under the Hague Convention, as implemented by the International Child 

Abduction Remedies Act (ICARA), is available only where there is a “removal or retention of a 

child . . . in breach of rights of custody attributed to a person . . . under the law of the State in 

which the child was habitually resident immediately before the removal or retention.” Hague 

Convention on the Civil Aspects of International Child Abduction, Art. 3, Oct. 25, 1980, T.I.A.S. 

No. 11,670. U.S. law provides for a cause of action for the return of a child where a petitioner 

establishes that the “child has been wrongfully removed or retained within the meaning of the 

Convention.” 22 U.S.C. § 9003(e)(1). 

The central issue in this case is whether Lopez Moreno’s questionable removal of BLZ 

from Michigan to Ecuador in 2009 precluded the possibility that BLZ had become habitually 

resident in Ecuador for purposes of Lopez Moreno’s Hague Convention challenge to Zank’s

retention of BLZ in Michigan in 2016. If the answer is yes, and BLZ was a habitual resident of 

Michigan in 2016, then Lopez Moreno could get no relief under the Convention,1 and that is the 

end of the case because such relief under the Convention is all that her complaint sought. If the 

answer is no, and BLZ in 2016 was a habitual resident of Ecuador for Hague Convention 

purposes, then that conclusion destroys the basis for the remainder of the district court’s analysis 

examining whether Zank’s retention of BLZ in 2016 was a breach of United States law. 

Accordingly, we do not need to address that latter analysis, and it is sufficient on this appeal for 

us to resolve only the determinative habitual residence issue. When reviewing a Hague 

Convention petition claiming that a child was wrongfully abducted from a previous residence, 

“a court in the abducted-to nation has jurisdiction to decide the merits of an abduction claim, but 

not the merits of the underlying custody dispute.” Friedrich v. Friedrich (Friedrich II), 78 F.3d 

1060, 1063 (6th Cir. 1996). 

 

1Relief under the Convention requires a showing that a removal or retention is contrary to the law of the 

state of habitual residence, and Lopez Moreno makes no argument that Zank’s retention of BLZ violated Michigan 

law.
No. 17-2397 Lopez Moreno v. Zank Page 7

The Hague Convention requires the return of a child wrongfully removed or retained 

contrary to “the law of the State in which the child was habitually resident,” Hague Abduction 

Convention, Art. 3, but the Convention does not itself define the term “habitual residence.” We 

have held that, for children above the age of cognizance, cf. Ahmed v. Ahmed, 867 F.3d 682, 689 

(6th Cir. 2017), a habitual residence is “the nation where, at the time of [her] removal, the child 

has been present long enough to allow ‘acclimatization,’ and where this presence has a ‘degree 

of settled purpose from the child’s perspective.’” Robert v. Tesson, 507 F.3d 981, 993 (6th Cir. 

2007) (quoting Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995)). Lopez Moreno argues 

that Ecuador meets that standard here, and so qualifies as BLZ’s habitual residence.

The district court found that, by 2016, Ecuador met all requirements to have become 

BLZ’s habitual residence, given that she had lived there continuously since the age of three, and 

maintained an active social, familial, and academic life in that nation. Zank does not challenge 

the facts underlying this conclusion, and the assessment is clearly correct. From BLZ’s 

perspective, at the time of Zank’s retention of her in the United States, Ecuador was the place in 

which she possessed all degrees of settled purpose. The only basis for deciding that BLZ was 

not habitually resident in Ecuador in 2016 is the purported illegality of Lopez Moreno’s actions 

in 2009 in taking BLZ to Ecuador in the first place. But that is not enough to trump the 

acclimatization standard, at least where Zank failed to pursue all treaty-based remedies in 

Ecuador to secure BLZ’s return to the United States.

The object and purpose of the Hague Convention is to provide an international legal 

scheme 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.” Hague Abduction Convention, Preamble. The Convention accordingly seeks to 

avoid the harms to a child’s well-being that come from being torn from the surroundings to 

which the child has been accustomed. See id.; see also H.R. Rep. No. 100-525 (1988), at 5, 

reprinted in 1988 U.S.C.C.A.N. 386, 386–87. States party to the Convention therefore undertake 

to return a wrongfully taken child when proceedings are brought promptly, subject to certain 

exceptions related to the child’s welfare and desires. The Convention also allows a person 

seeking relief to bring these proceedings without the assistance of State agents by “applying 
No. 17-2397 Lopez Moreno v. Zank Page 8

directly to the judicial or administrative authorities of a Contracting State.” Hague Abduction 

Convention, Art. 29.

Therefore, if Convention procedures are not fully pursued when a child is first abducted, 

it makes little sense to categorically permit later self-help abduction in the other direction, after 

the child has been acclimatized in the second country. First, permitting re-abduction results in a 

total disregard for the limits that the Convention puts on the remedy for the first abduction, such 

as time limits,2 and exceptions for the child’s welfare or mature preference. Second, permitting 

abduction for a second time carries the same threat to the child’s well-being of being torn from 

an accustomed residence. The Convention scheme achieves its purposes only if Convention 

processes are applied, with applicable exceptions, each time a child is abducted from a country in 

which the child has been acclimatized. The rule applied by the district court in this case is not 

consistent with such a scheme.

At least two of our sister circuits have come to a similar conclusion. The Eleventh 

Circuit recently addressed the situation of a child who was born in the United States, was taken 

by the mother to Guatemala in what the father believed was a wrongful manner, and then was 

kidnapped back to the United States by the father. Ovalle v. Perez, 681 F. App’x 777, 779 (11th 

Cir. 2017). The Ovalle court held that the child’s habitual residence was in Guatemala, at least 

for purposes of the mother’s subsequent Hague petition seeking to remedy the re-abduction, 

given the father’s reliance on self-help, and, in part, his “failure to ‘pursue his legal remedy’ 

under the Hague Convention.” Id. at 783 (quoting Kijowska v. Haines, 463 F.3d 583, 588–89 

(7th Cir. 2006)). In Kijowska, the Seventh Circuit provided the following alternative reasoning 

for its determination that a child brought to Poland and subsequently retained there was a 

habitual resident of that nation:

Suppose that [the child]’s habitual residence when her mother took her to Poland 

in December 2004 was the United States and that [her mother]’s removal of her 

was wrongful. [The father]’s remedy would have been to file a petition under the 

Hague Convention and its implementing federal statute. He did not do that. He 

merely sought a custody order from an Illinois state court and then used that order 

 

2A petition must be filed within one year of removal, or else significant defenses to a return order apply. 

See, e.g., Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1229 (2014) (citing Hague Abduction Convention, Art. 12).
No. 17-2397 Lopez Moreno v. Zank Page 9

to help obtain the self-help remedy of taking the child from the airport. To give a 

legal advantage to an abductor who has a perfectly good legal remedy in lieu of 

abduction yet failed to pursue it would be contrary to the Hague Convention’s 

goal of discouraging abductions by denying to the abductor any legal advantage 

from the abduction. By failing to pursue his legal remedy, [the father] enabled 

[the child] to obtain a habitual residence in the country to which her mother took 

her, even if the initial taking was wrongful. For as we have seen, there is no doubt 

that if the circumstances in which [the child] was taken to Poland are set to one 

side, by May 2005 she was indeed a habitual resident of Poland.

Kijowska, 463 F.3d at 588–89.

Zank seeks to defend the district court’s decision based on a statement in our decision in 

Friedrich I, that a fundamental purpose of the Hague Convention is to “deter parents from 

crossing international boundaries in search of a more sympathetic court.” Friedrich v. Friedrich 

(Friedrich I), 983 F.2d 1396, 1400 (6th Cir. 1993). But Friedrich I did not deal with the 

situation here. We said in Friedrich I that “the change in geography must occur before the 

questionable removal . . . . If we were to determine that by removing [a child] from his habitual 

residence without [one parent]’s knowledge or consent [the other parent] ‘altered’ [the child]’s 

habitual residence, we would render the Convention meaningless.” Id. at 1402. Here, by 

contrast, the relevant change in geography clearly preceded the removal or retention being 

questioned, that is, the subsequent retention by Zank. It is very different to say that in the 

absence of a Hague Convention suit, the non-suing parent can use self-help much later, and be 

free from suit by the parent who never had the chance to defend against such a previous petition, 

with whatever defenses might properly have been available then.

The other cases cited by Zank also do not support what the district court did in this case. 

See Miller v. Miller, 240 F.3d 392, 400 (4th Cir. 2001); Kijowska, 463 F.3d 588–89; NunezEscudero v. Tice-Menley, 58 F.3d 374, 379 (8th Cir. 1995). Miller’s statement about the effect 

of a previous wrongful removal was dicta in light of that case’s holding that there was no initial 

wrongful removal or retention there. See Miller, 240 F.3d at 401. Kijowska, as noted above, 

directly supports our analysis. In Nunez-Escudero, the Eighth Circuit rejected an argument that 

habitual residence follows the mother, citing our language in Friedrich I. See Nunez-Escudero, 

58 F.3d at 379 (citing Friedrich I, 983 F.2d at 1402).
No. 17-2397 Lopez Moreno v. Zank Page 10

We do not address the situation where someone in Zank’s position actually filed a Hague 

petition in Ecuador. Here, Zank brought no such case in Ecuador. Zank testified that he meant 

to file a Hague petition, but did not do so because he encountered what he calls “the runaround” 

from officials at the U.S. Embassy in Ecuador. Any lack of help by U.S. embassy officials is 

clearly not enough to say that Zank could not have brought an action in an Ecuadorian court. 

The record is also not sufficient to overcome our general presumption about the adequacy of 

remedies available in a country that is party to the Hague Convention. We also do not address 

the situation where a properly filed Hague petition was denied. But in that situation a U.S. court 

would presumably at least give that Ecuadorian decision substantial deference. See Diorinou v. 

Mezitis, 237 F.3d 133, 143 (2d Cir. 2001). 

This is also not a case that raises the issue of what a U.S. court should do when a treaty 

partner renounces, or consistently violates, a treaty that is implemented by statute. Although the 

district court credited a report from the U.S. Department of State indicating that Ecuador has 

been delinquent in its Hague obligations since 2014, the report says nothing about Ecuador’s 

compliance with the Convention in 2009 or 2010. Such a report does not absolve Zank of his 

obligation to fully pursue all available Hague Convention procedures in Ecuador, including filing 

a petition with the Ecuadorian courts.

Our holding that Ecuador was the habitual residence of BLZ in 2016 does not 

automatically mean that Zank must return her now. Just as Lopez Moreno could have raised 

defenses to a Hague Convention case had one been brought in Ecuador, Zank can raise such 

defenses in this case on remand. Several such defenses were raised by Zank in the district court 

below, but the district court had no occasion to reach them. For instance, Zank contended below 

that Lopez Moreno had failed to file the petition within the one-year limit following the wrongful 

retention, because Zank contended that this retention began on August 10, when Zank did not 

place BLZ on the flight to Florida. If Zank is correct, then under the Convention return to 

Ecuador would not be required if BLZ had become “settled” in Michigan, because the Hague 

Convention does not require return after a year if “it is demonstrated that the child is now settled 

in its new environment.” Hague Abduction Convention, Art. 12. In addition, a district court 

hearing a Hague petition may refuse to return a child otherwise required to be returned if “the 
No. 17-2397 Lopez Moreno v. Zank Page 11

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.” Simcox v. Simcox, 511 F.3d 594, 603 (6th Cir. 2007) 

(citing Hague Abduction Convention, Art. 13). In this case, BLZ was born in 2006 and may 

therefore possess the age and maturity to have her views taken into account. We have held that 

the maturity defense is a case-specific one, and requires specific fact-finding by the trial court as 

to the ability of the child to form those wishes. See id. At oral argument in this appeal, counsel 

for Lopez Moreno agreed that such arguments could be addressed in the district court should 

Lopez Moreno succeed in obtaining a remand.

We therefore remand this case to the district court for a first evaluation of Zank’s 

defenses against Lopez Moreno’s prima facie Hague Convention case. Such a remand is 

warranted because these defenses are all fact-intensive ones, generally requiring specific and 

detailed fact-finding by the district court. See Friedrich II, 78 F.3d at 1067.

The judgment of the district court is reversed and the case is remanded for further 

proceedings consistent with this opinion.