New York Matrimonial Trial Handbook
The New York Matrimonial Trial Handbook by Joel R. Brandes is available online in the print edition at the Bookbaby Bookstore and other bookstores. It is now available in Kindle ebook editions and epub ebook editions in our website bookstore. It is also available at Amazon Kindle, Barnes & Noble and Goodreads.
The New York Matrimonial Trial Handbook was written for both the attorney who has never tried a matrimonial action and for the experienced litigator. It is a “how to” book for lawyers. This 836 page handbook focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action. It is intended to be an aid for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. The handbook deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof. There are thousands of suggested questions for the examination of witnesses at trial to establish each cause of action and requests for ancillary relief, as well as for the cross-examination of difficult witnesses. Table of Contents
Tuesday, April 12, 2011
A Child is Missing : Dealing With International Child Abduction - An Introduction to The Hague Child Abduction Convention
The Hague Convention (the Convention), ratified by Congress in 1988, was implemented by the International Child Abduction Remedies Act (ICARA) which established the basic procedure for exercising judicial remedies.(ICARA, Pub.L. No. 100-300, 102 Stat. 445 (1988); codified as amended at 42 USC ss11601-11610; See 42 U.S.C. s 11601 (b) for the congressional intent. Regulations are found at 22 CFR Part 94; s53 Fed Reg 23608 (June 23, 1988).) ICARA, whose provisions are in addition to those of the Convention, establishes procedures for the implementation of the treaty in the U.S. and empowers courts in the U.S. to determine only rights under the Convention and not the merits of any underlying custody dispute.
ICARA created a Central Authority to discharge the duties imposed upon the U.S. by the Convention and grants concurrent jurisdiction to federal and state courts to enforce the Convention. 23 C.F.R. s94:2; See 42 U.S.C.A. s11606. (The Office of Citizens Consular Services in the Bureau of Consular Affairs is designated as the U.S. Central Authority. Its address is CA/OCS/CCS, Room 4817, U.S. Department of State, Washington, DC 20520; phone: 202-736-7000, FAX: 202-647-2835.) Regulations, which can be found at 22 C.F.R. Part 94; 53 Fed. Reg. 23608 (June 23, 1988), have been adopted governing the procedures of the Central Authority.
For a list of current signatory partners with the United States see
Article 7 of the Convention requires that Central Authorities around the world cooperate with each other and promote cooperation among the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of the Convention.
Not A Custody Case
A proceeding under the Hague Convention and ICARA is not a custody proceeding; it is a proceeding to compel the return of the child to his country of habitual residence so that the courts of that country can determine questions relating to custody of that child.
Article 3 of the Hague Convention provides that, in order to prevail on a claim, a petitioner must show: 1) That the child was habitually resident in one nation and has been removed to or retained in a different country; 2) That the removal or retention was in breach of the petitioner's custody rights under the law of the country of habitual residence; and 3) That the petitioner was exercising those rights at the time of the removal or retention. The petitioner must establish these requirements by a preponderance of the evidence. 42 U.S.C. s 11603(e)(1)(A).
Once wrongful removal is shown, return of the child is "required" unless the respondent establishes one of four defenses: 1) The proceeding was commenced in the responding state more than one year after the wrongful removal or retention, and "the child is now settled in its new environment" (Article 12); 2) The party now seeking return of the child was not actually exercising custodial rights at the time of the wrongful removal or retention of the child; or there was consent to the removal; or there was acquiescence to the retention (Article 13 (a)); 3) The return of the child would expose him or her to physical or psychological harm "or otherwise place the child in an intolerable situation" (Article 13(b)); or the child objects to being returned and is of such age and maturity that it is appropriate to take account of his views (Article 13 (b)); and/or 4) That human rights and fundamental freedom would be abridged if the return were permitted (Article 20).
Article 35 of the Convention states that a petitioner cannot invoke the protection of the Hague Convention unless the child to whom the petition relates is "habitually resident" in a State signatory to the Convention and has been removed to or retained in a different signatory State. Once this is established, the petitioner must then show that the removal or retention was "wrongful." (Note: Article 4 of the Convention limits its application only to children less than 16 years old who have been "habitually residing" in a contracting state immediately before the breach of custody or access rights, and ceases to apply on the day when the child attains the age of 16.)
This article might at first seem clear enough, but because interpretation of the term "habitual residence" was left to the courts and not defined by the Convention, there has been a constant flow of litigation over its definition. A number of U.S. Circuit Courts have held that it should not be confused with domicile. See, e.g., Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993); Mozes v. Mozes, 239 F.3d 1067 (9th Cir., 2001). Several foreign courts have even held that the subject children in cases brought before them did not have a habitual residence. W and B v. H (2002) 1 FLR 1008 (United Kingdom -- Family Division -- 2002); see also Robertson v. Robertson (1997) 1998 SLT 468, 1997 GWD 21-1000, Inner House of the Court of Session (Second Division) (Scotland); Dickson v. Dickson 1990 SCLR 692, 1990, Inner House of the Court of Session (Scotland).
A look at the developing case law in the U.S. is necessary because the Circuits have not agreed on a test for defining a child's "habitual residence."
In Friedrich v. Friedrich, 983 F.2d 1396, 1401-1402 (6th Cir. 1993), the Sixth Circuit opined that the British courts had provided the most complete analysis of "habitual residence," in absence of guidance in the Convention. The Friedrich court was referring to In Re Bates, High Court of Justice, Family Division, Royal Courts of London, No. CA.122/89, in which Great Britain's High Court of Justice concluded that there is no real distinction between "ordinary residence" and "habitual residence." That court offered a word of caution with regard to decisions as to habitual residence: "It is greatly to be hoped that the courts will resist the temptation to develop detailed and restrictive rules as to habitual residence, which might make it as technical a term of art as common-law domicile. The facts and circumstances of each case should continue to be assessed without resort to presumptions or pre-suppositions." Of course, this offers the attorney representing a party to a Hague Convention proceeding little guidance.
The Sixth Circuit in Friedrich agreed with the Bates court that habitual residence must not be confused with domicile. It concluded that to determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions. On its face, habitual residence pertains to customary residence prior to the removal, so the court must look back in time, not forward. The child's habitual residence can be "altered" only by a change in geography and the passage of time, not by changes in parental affection and responsibility. The change in geography must occur before the questionable removal. Friedrich has been followed by the Fourth (see Miller v. Miller, 240 F.3d 392, (4th Cir.,2001)) and Eighth Circuits; (Rydder v. Rydder, 49 F.3d 369 (8th Cir.,1995)).
In Feder v. Evans-Feder, 63 F.3d 217 (3rd Cir. 1995), the Third Circuit took note of the Friedrich and Bates decisions, pointing out that in Friedrich the court focused on the child, "look[ing] back in time, not forward." It also considered and found In re Bates instructive for the principle that there must be "a degree of settled purpose." The purpose may be one or there may be several and might include education, business or profession, employment, health, family or merely love of the place. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as "settled." The Third Circuit established the rule in Feder 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. A determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there. See also Delvoye v. Lee, 329 F.3d 330 (3d Cir.2003), cert. denied, 124 S. Ct. 436 (U.S. 2003); Whiting v Krassner, 391 F3d 540 (3rd Cir, 2004); Application of Adan, 437 F.3d 381 (3rd Cir. 2006).
In Mozes v Mozes, 239 F.3d 1067 (9th Cir., 2001), the Ninth Circuit engaged in a detailed analysis of the problem. It held that the first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind. One need not have this settled intention at the moment of departure; it could coalesce during the course of a stay abroad that was originally intended to be temporary. Nor need the intention be expressly declared, if it is manifest from one's actions; indeed, one's actions may belie any declaration that no abandonment was intended. If you've lived continuously in the same place for several years on end, for example, the court would be hard-pressed to conclude that you had not abandoned any prior habitual residence. On the other hand, one may effectively abandon a prior habitual residence without intending to occupy the next one for more than a limited period. Whether there is a settled intention to abandon a prior habitual residence is a question of fact.
In those cases where it is necessary to decide whether an absence is intended to be temporary only, the Mozes court found that the intention that has to be taken into account is that of the person or persons entitled to fix the place of the child's residence -- in most cases, the parents or parent with custody. Although the Hague Convention is interested in the habitual residence of only the child, the Ninth Circuit recognized in Mozes that it would seem illogical to focus on the child's intentions, as, "[c]hildren... normally lack the material and psychological wherewithal to decide where they will reside." When the persons entitled to fix the child's residence no longer agree on where it has been fixed, the representations of the parties cannot be accepted at face value, and courts must determine from all available evidence whether the parent petitioning for return of a child has already agreed to the child's taking up habitual residence where it is. The Seventh and Eleventh Circuits have adopted the reasoning of the Ninth Circuit in Mozes v. Mozes. See Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir, 2004); Koch v. Koch, 450 F.3d 703 (7th Cir.,2006).
Despite a willingness to determine "habitual residence" by the parents' intent, the Second Circuit took the inquiry a step further to find that evidence of acclimatization may suffice to establish a child's habitual residence, despite uncertain or contrary parental intent; If the child's life has become so firmly embedded in the new country as to make the child habitually resident there, that finding will trump even lingering parental intentions to the contrary. Gitter v. Gitter, 396 F.3d 124 (2d Cir., 2005). The Gitter court held that in determining a child's habitual residence, a court should first inquire into the shared intent of those entitled to fix the child's residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, however, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' last shared intent.
In sum, Friedrich and Feder, and the circuits that follow them, engage primarily in a fact-based analysis, focusing on the customary residence of the child prior to his removal. In these circuits, the court's analysis focuses on the child. The Eighth Circuit followed this reasoning in Silverman v. Silverman, 338 F.3d 886, 898 (8th Cir. 2003), in which it held that habitual residence is to be determined by focusing on the settled purpose from the child's perspective immediately before the removal or retention, although parental intent is also taken into account.
In contrast, the Second and Ninth Circuits, and the circuits that follow them, do not equate habitual residence with customary residence. Instead, they focus on the importance of intentions (normally the shared intentions of the parents or others entitled to fix the child's residence) in determining a child's habitual residence. When the persons entitled to fix the child's residence no longer agree on where it has been fixed, courts must determine from all available evidence whether the parent petitioning for return of a child has already agreed to the child's taking up habitual residence where it is.
While the decision to alter a child's habitual residence depends on the settled intention of the parents, it requires an actual change in geography, and requires the passage of an appreciable period of time, one that is sufficient for acclimatization. The Second Circuit takes this further by holding that courts should inquire into the shared intent of those entitled to fix the child's residence at the latest time that their intent was shared, but although this should normally control, courts should also inquire as to whether the the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' latest shared intent.
The next issue to cover, once habitual residence of the child has been established, is whether or not the petitioning party has a right to custody of the child in question.
A parent need not have a custody order to invoke the Convention, but to apply for the return of a child, a parent must be actually exercising "rights of custody" under the law of the country where the child was "habitually residing" at the time of the abduction or wrongful retention. The rights of custody may arise, according to Article 3 of the Convention, 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.
Although the Hague Convention defines "rights of custody," there has been substantial litigation as to whether a party has a right of custody or merely a right of access. This is a key distinction. "Access rights," which are synonymous with "visitation rights," are protected by the Convention but to a lesser extent than custody rights. The remedies for breach-of-access rights are enunciated in Article 21 and do not include the return remedy provided by Article 12. Article 5(b) defines "access rights" as including "the right to take a child for a limited period of time to a place other than the child's habitual residence." A parent who takes a child from the country of its habitual residence to another country that is a party to the Convention for a summer visit pursuant to either an agreement between the parents or a court order is exercising his or her access rights.
"Custody rights" are defined in Article 5(a) as "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Such custody rights are determined by law of child's habitual residence. In addition to including the right to determine the child's residence, the term "custody rights" covers a collection of rights that take on more specific meaning by reference to the law of the country in which the child was habitually resident immediately before the removal or retention. Nothing in the Convention limits this "law" to the internal law of the State of the child's habitual residence. Consequently, it could include the laws of another State if the choice of law rules in the State of habitual residence so indicate. According to Article 3, custody rights may arise: 1) by operation of law; 2) by reason of a judicial or administrative decision; or 3) by reason of an agreement having legal effect under the law of that State.
Ne Exeat Rights and Patria Potestas
The Circuits disagree as to when a parent has a "right of custody" rather than a 'right of access," and there has been much litigation in the district courts regarding the significance of ne exeat rights and patria potestas.
"Ne exeat" has been defined as an equitable writ restraining a person from leaving, or removing a child or property from, the jurisdiction. A ne exeat is therefore often issued to prohibit a person from removing a child or property from the jurisdiction -- and sometimes from leaving the jurisdiction.
In Abbott v Abbott, --- S.Ct. ----, 2010 WL 1946730 the U.S. Supreme Court, in an opinion by Justice Kennedy, held that father's ne exeat right granted by Chilean law was a "right of custody," under the Hague Convention, abrogating Croll v. Croll, 229 F.3d 133, Fawcett v. McRoberts, 326 F.3d 491, and Gonzalez v. Gutierrez, 311 F.3d 942.
Timothy Abbott and Jacquelyn Abbott married in England in 1992. He was a British citizen, and she was a citizen of the United States. Their son A.J. A. was born in 1995. The Abbotts moved to La Serena, Chile, in 2002. There was marital discord, and the parents separated in March 2003. The Chilean courts granted the mother daily care and control of the child, while awarding the father "direct and regular" visitation rights, including visitation every other weekend and for the whole month of February each year. Chilean law conferred upon Mr. Abbott what is commonly known as a ne exeat right: a right to consent before Ms. Abbott could take A.J. A. out of Chile. See Minors Law 16,618, art. 49 (Chile), (granting a ne exeat right to any parent with visitation rights). Justice Kennedy noted that in effect a ne exeat right imposes a duty on one parent that is a right in the other. After Mr. Abbott obtained a British passport for A.J. A., Ms. Abbott grew concerned that Mr. Abbott would take the boy to Britain. She sought and obtained a "ne exeat of the minor" order from the Chilean family court, prohibiting the boy from being taken out of Chile. In August 2005, while proceedings before the Chilean court were pending, the mother removed the boy from Chile without permission from either the father or the court. A private investigator located the mother and the child in Texas. In May 2006, Mr. Abbott filed an action in the United States District Court seeking an order requiring his son's return to Chile pursuant to the Convention and enforcement provisions of the ICARA.
In July 2007, after holding a bench trial during which only Mr. Abbott testified, the District Court denied relief. The court held that the father's ne exeat right did not constitute a right of custody under the Convention and, as a result, that the return remedy was not authorized. (495 F.Supp.2d 635, 640.)
The United States Court of Appeals for the Fifth Circuit affirmed on the same rationale. The court held the father possessed no rights of custody under theConvention because his ne exeat right was only "a veto right over his son's departure from Chile.". The court expressed substantial agreement with the Court of Appeals for the Second Circuit in Croll v. Croll, 229 F.3d 133 (2000). Relying on American dictionary definitions of "custody" and noting that ne exeat rights cannot be " 'actually exercised' " within the meaning of the Convention, Croll held that ne exeat rights are not rights of custody. A dissenting opinion in Croll was filed by then-Judge Sotomayor. The dissent maintained that a ne exeat right is a right of custody because it "provides a parent with decision making authority regarding a child's international relocation." The Courts of Appeals for the Fourth and Ninth Circuits adopted the conclusion of the Croll majority. See Fawcett v. McRoberts, 326 F.3d 491, 500 (C.A.4 2003); Gonzalez v. Gutierrez, 311 F.3d 942, 949 (C.A.9 2002). The Court of Appeals for the Eleventh Circuit followed the reasoning of the Croll dissent. Furnes v. Reeves, 362 F.3d 702, 720, n. 15 (2004). Certiorari was granted to resolve the conflict. 557 U.S. ----, 129 S.Ct. 2859, 174 L.Ed.2d 575 (2009).
Justice Kennedy noted that the provisions of the Convention of most relevance at the outset of the discussion are as follows:
"Article 3: The removal or the retention of the 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.
* * *
"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.
He also noted that the Convention's central operating feature is the return remedy. When a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must "order the return of the child forthwith," unless certain exceptions apply. A removal is "wrongful" where the child was removed in violation of "rights of custody." The Convention defines "rights of custody" to "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." Art. 5(a). A return remedy does not alter the pre--abduction allocation of custody rights but leaves custodial decisions to the
courts of the country of habitual residence. Art. 19. The Convention also recognizes "rights of access," but offers no return remedy for a breach of those rights. Arts. 5(b), 21.
The parties agreed that the Convention applied to this dispute. A.J. A. was under 16 years old; he was a habitual resident of Chile; and both Chile and the United States are contracting states. The question was whether A.J. A. was "wrongfully removed" from Chile, in other words, whether he was removed in violation of a right of custody.
The Court's inquiry was shaped by the text of the Convention; the views of the United States Department of State; decisions addressing the meaning of "rights of custody" in courts of other contracting states; and the purposes of the Convention, which were all discussed in the opinion. After considering these sources, the Court determined that Mr. Abbott's ne exeat right is a right of custody under the Convention.
The Court consulted Chilean law to determine the content of Mr. Abbott's right, while following the Convention's text and structure to decide whether the right at issue is a "righ[t] of custody." Chilean law granted Mr. Abbott a joint right to decide his child's country of residence, otherwise known as a ne exeat right. Minors Law 16,618, art. 49 (Chile), provides that "[o]nce the court has decreed" that one of the parents has visitation rights, that parent's "authorization ... shall also be required" before the child may be taken out of the country, subject to court override only where authorization "cannot be granted or is denied without good reason." Mr. Abbott had "direct and regular" visitation rights and it followed from Chilean law, that he had a shared right to determine his son's country of residence under this provision.
To support the conclusion that Mr. Abbott's right under Chilean law gave him a joint right to decide his son's country of residence, it was notable that a Chilean agency had explained that Minors Law 16,618 is a "right to authorize the minors' exit" from Chile and that this provision means that neither parent can "unilaterally" "establish the [child's] place of residence." (Citing Letter from Paula Strap Camus, Director General, Corporation of Judicial Assistance of the Region Metropolitana, to National Center for Missing and Exploited Children (Jan. 17, 2006), App. to Pet. for Cert. in Villegas Duran v. Arribada Beaumont, No. 08-775, pp. 35a-37a, cert. pending.)
Justice Kennedy stated that the Convention recognizes that custody rights can be decreed jointly or alone, see Art. 3(a); and Mr. Abbott's joint right to determine his son's country of residence was best classified as a joint right of custody, as the Convention defines that term. The Convention defines "rights of custody" to "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." Art. 5(a), . Mr. Abbott's ne exeat right gave him both the joint "right to determine the child's place of residence" and joint "rights relating to the care of the person of the child." Mr. Abbott's joint right to decide A.J. A.'s country of residence allowed him to "determine the child's place of residence." The Convention's protection of a parent's custodial "right to determine the child's place of residence" includes a ne exeat right. Mr. Abbott's joint right to determine A.J. A.'s country of residence also gives him "rights relating to the care of the person of the child." The Court of Appeals described Mr. Abbott's right to take part in making this decision as a mere "veto," 542 F.3d, at 1087; but even by that truncated description, the father had an essential role in deciding the boy's country of residence. For example, Mr. Abbott could condition his consent to a change in country on A.J. A.'s moving to a city outside Chile where Mr. Abbott could obtain an astronomy position, thus allowing the father to have continued contact with the boy.
Justice Kennedy indicated that it was "is beside the point" whether a ne exeat right does not fit within traditional notions of physical custody The Convention defines "rights of custody," and it is that definition that a court must consult. This uniform, text-based approach ensures international consistency in interpreting the Convention. It forecloses courts from relying on definitions of custody confined by local law usage, definitions that may undermine recognition of custodial arrangements in other countries or in different legal traditions, including the civil-law tradition. The Court of Appeals' conclusion that a breach of a ne exeat right does not give rise to a return remedy would render the Convention meaningless in many cases where it is most needed. Any suggestion that a ne exeat right is a "righ[t] of access" is illogical and atextual.
Ms. Abbott contended that the Chilean court's ne exeat order contained no parental consent provision and so awarded the father no rights, custodial or otherwise). Justice Kennedy responded that even a ne exeat order issued to protect a court's jurisdiction pending issuance of further decrees is consistent with allowing a parent to object to the child's removal from the country. The Court did not decide the status of ne exeat orders lacking parental consent provisions, however; for here the father relied on his rights under Minors Law 16,618. Mr. Abbott's rights derived not from the order but from Minors Law 16,618. That law requires the father's consent before the mother can remove the boy from Chile, subject only to the equitable power family courts retain to override any joint custodial arrangements in times of disagreement. Minors Law 16,618; The consent provision in Minors Law 16,618 confers upon the father the joint right to determine his child's country of residence. This is a right of custody under the Convention.
Justice Kennedy noted that the "Perez-Vera Report", was cited by the parties and by Courts of Appeals that have considered this issue. (See 1980 Conference de La Haye de droit international prive, Enl & egrave; vement d'enfants, E. Perez-Vera, Explanatory Report (Perez-Vera Report or Report), in 3 Actes et Documents de la Quatorzi & egrave;me session, pp. 425- 473 (1982). Justice Kennedy stated that the Court need not decide whether this Report should be given greater weight than a scholarly commentary. He pointed out that the Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed.Reg. 10503-10506 (1986) identifying the Report as the "official history" of the Convention and "a source of background on the meaning of the provisions of the Convention", indicates that the Report had not been approved by the Conference, and it is possible that, despite the Rapporter's [sic] efforts to remain objective, certain passages reflect a viewpoint which is in part subjective".
Justice Kennedy pointed out that while a parent possessing a ne exeat right has a right of custody and may seek a return remedy, a return order is not automatic. Return is not required if the abducting parent can establish that a Convention exception applies. One exception states return of the child is not required when "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." Art. 13(b). If, for example, Ms. Abbott could demonstrate that returning to Chile would put her own safety at grave risk, the court could consider whether this is sufficient to show that the child too would suffer "psychological harm" or be placed "in an intolerable situation." The Convention also allows courts to decline to order removal if the child objects, if the child has reached a sufficient "age and degree of maturity at which it is appropriate to take account of its views." Art. 13(b). The proper interpretation and application of these and other exceptions are not before the Court. It stated that these matters may be addressed on remand. The judgment of the Court of Appeals was reversed, and the case was remanded for further proceedings consistent with the opinion. Chief Judge Roberts and Justices Scalia, Ginsburg, Alito, and Sotomayor joined. Justice Stevens, with whom Justice Thomas and Justice Breyer joined, dissented in a separate opinion.
"Patria potestas" has been explained as follows: "The authority held by the male head of a family (the senior ascendant male) over his legitimate and adopted children, as well as further descendants in the male line, unless emancipated. 42 Black's Law Dictionary (8th Edition 2004).
In Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000), the First Circuit held that a father had "rights of custody" under Mexican law, which was the law of the child's habitual residence at time of her removal, as the doctrine of patria potestas gave the father custodial rights greater than mere visitation rights, notwithstanding the Mexican court's rejection of the father's petition to terminate the mother's parental rights. The court held that the Affidavit of a Mexican attorney indicating that both parents exercise patria potestas rights under Mexican law and stating that both parents must consent to the removal of the child under Mexican law was an acceptable form of proof in determining issues of foreign law, and was permitted under the Hague Convention.
In Hanley v. Roy, 485 F.3d 641 (11th Cir. 2007), the Hanleys were the Irish maternal grandparents of Roy's children. Their daughter, Margaret, married Roy, a United States citizen, in England in 1986, and the two resided in England together. In 1997, shortly after the couple's separation and the birth of their third child, Margaret was diagnosed with cancer and wanted to return to Ireland.
The Hanleys bought Margaret and the children a house in Ireland, and Roy eventually rejoined the family there. In March 2000, Margaret executed a will designating the Hanleys as trustees of her estate and testamentary guardians of the children. After she died, Roy and the children continued to live with the Hanleys until July 29, 2005, when Roy suddenly moved the children from Ireland to Florida without the Hanleys' knowledge or consent, leaving only a note behind. The Eleventh Circuit held that the substantive rights the Hanleys enjoyed as testamentary guardians under Irish law were sufficient to create "rights of custody" under the Convention.
Exercising Rights of Custody
The Circuits appear to be in agreement as to when a parent is "exercising' rights of custody.
In Friedrich v. Friedrich (II), 78 F3d 1060 (6th Cir. 1996), the Sixth Circuit held that a person having valid custody rights to a child under the law of the country of the child's habitual residence cannot "fail to exercise" those custody rights under the Hague Convention, short of acts that constitute clear and unequivocal abandonment of the child. Once a court determines that the parent exercised custody rights in any manner, the court should stop it's inquiry into the exercise of custody rights, completely avoiding whether the parent exercised those rights well or badly. The rule enunciated by the Sixth Circuit in Friedrich was adopted in by the Second Circuit in Croll.
In Sealed Appellant v Sealed, 394 F3d 338 (5th Cir. 2005), the Fifth Circuit adopted the reasoning from Friedrich II and held that in the absence of a ruling from a court in the child's country of habitual residence, when a parent has custody rights under the laws of that country, even occasional contact with the child constitutes "exercise" of those rights. To show failure to exercise custody rights, the removing parent must show the other parent has abandoned the child.
Similarly, in Bader v. Kramer, 484 F.3d 666 (4th Cir. 2007), the Fourth Circuit held that it will 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. See also Baxter v. Baxter, 423 F3d 363 (3d Cir. 2005). The Bader court pointed out in a footnote that this approach will not apply when the country of habitual residence, by law, expressly defines the exercise of custody rights for purposes of the Hague Convention. Similarly, when a competent judicial tribunal in the country of habitual residence has made a determination as to whether a parent was exercising his custody rights, that determination will normally be conclusive.
The Hague Convention establishes four defenses to the return of a child who has been wrongly taken from its habitual residence: 1) The proceeding is commenced in the responding state more than one year after the wrongful removal or retention, and "the child is now settled in its new environment" (Article 12); 2) The party now seeking return of the child was not actually exercising custodial rights at the time of the wrongful removal or retention of the child; or there was consent to the removal; or there was acquiescence to the retention (Article 13 (a)); 3) The return of the child would expose him or her to physical or psychological harm "or otherwise place the child in an intolerable situation"(Article 13(b)); or the child objects to being returned and is of such age and maturity that it is appropriate to take account of his views (Article 13 (b)); and 4) That human rights and fundamental freedom would be abridged if the return were permitted (Article 20).
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 articles 13b or 20 of the Convention applies, and, by a preponderance of the evidence, that any other exception set forth in article 12 or 13 of the Convention applies. 42 U.S.C. 11603(e). 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 (Article 18).
Article 12: One-Year Limitations Defense
Where a child has been "wrongfully removed" or "wrongfully retained" in terms of Article 3 of the Convention, and, at the date of commencement of the judicial proceedings in 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 must order the return of the child. Even where the proceedings have been commenced after the expiration of the period of one year, the return of the child must be ordered, unless it is demonstrated that the child is now settled in its new environment.
The International Child Abduction Remedies Act defines the term "commencement of proceedings" as the commencement of a civil action by the filing of a petition in any court which has jurisdiction and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed. 42 U.S.C.A. s11602(f)(3). However, it does not define when a removal or retention becomes unlawful, and that is a question of fact for the court to determine.
The doctrine of equitable tolling has been applied to this defense even though it is not mentioned in the Hague Convention or ICA. In Furnes v. Reeves, 362 F.3d 702 (11th Cir., 2004) the Eleventh Circuit rejected an assertion that plaintiff's petition was not timely filed because it was filed more than a year following the child's removal from Norway. The district court had concluded that the limitation period was equitably tolled until the plaintiff located the child, and determined that the petition was filed within one year of such location.
Article 20: Human Rights Defense
The return obligation of Article 12 is limited by Article 20, which states:
"The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms."
The language of Article 20 has no known precedent in other international agreements to serve as a guide in its interpretation. This exception, like the others, was intended to be restrictively interpreted and applied, and is not to be used, for example, as a vehicle for litigating custody on the merits or for passing judgment on the political system of the country from which the child was removed.
Article 13(a): The Consent or Acquiescence Defense
Under Article 13(a), the judicial authority may deny an application for the return of a child if the person having the care of the child was not actually exercising the custody rights at the time of the removal or retention, or had consented to or acquiesced in the removal or retention. This exception derives from Article 3(b), which makes the Convention applicable to the breach of custody rights that were actually exercised at the time of the removal or retention, or which would have been exercised but for the removal or retention.
The person opposing return has the burden of proving that custody rights were not actually exercised at the time of the removal or retention, or that the applicant had consented to or acquiesced in the removal or retention. The applicant seeking return need only allege that he or she was actually exercising custody rights conferred by the law of the country in which the child was habitually resident immediately before the removal or retention. The statement would normally include a recitation of the circumstances under which physical custody had been exercised, i.e., whether by the holder of these rights, or by a third person on behalf of the actual holder of the custody rights. The applicant should append copies of any relevant legal documents or court orders to the return application. Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10494-01, 1986 WL 133056 (F.R.).
The consent and acquiescence inquiries are similar in their focus on the petitioner's subjective intent. 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. Acquiescence inquiry turns on the subjective intent of the parent who is claimed to have acquiesced.Wanninger v. Wanninger, 850 F.Supp. 78 (D. Mass, 1994). The defense of consent need not be expressed with the same degree of formality as acquiescence in order to prove the defense under article 13(a). See, e.g., In re Kim, 404 F. Supp. 2d 495 (SDNY 2005) (to establish consent defense, party must establish by a preponderance of the evidence that other parent had the subjective intent to permit removal of the child for an indefinite or permanent time period). The Third Circuit explained this difference between acquiescence and consent in Baxter v. Baxter, 423 F3d 363 (3d Cir. 2005), where it held that Article 13(a) does not provide that if a parent consents to removal of the child for a period, under certain conditions or circumstances, retention of the child beyond those conditions or circumstances is necessarily permissible. 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 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.
Article 13(b): The 'Grave Risk of Harm' Defense
In accordance with Article 13(b), a child will not be ordered returned where 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 provision was not intended to be used by defendants as a vehicle to litigate (or relitigate) the child's best interests.
The person opposing the child's return must show that the risk to the child is grave, not merely serious. The definition of an "intolerable situation" was also not intended to encompass return to a home where money is in short supply, or where educational or other opportunities are more limited than in the requested State. An example of an "intolerable situation" is one in which a custodial parent sexually abuses the child. If the other parent removes or retains the child to safeguard it against further victimization, and the abusive parent then petitions for the child's return under the Convention, the court may deny the petition.
This is another area that has been the subject of extensive litigation under the Hague Convention, as courts have struggled to define situations that constitute a "grave risk of harm. In Friedrich v. Friedrich, 78 F3d 1060 (6th Cir. 1996), the Sixth Circuit stated that it believed that a "grave risk of harm" for the purposes of the Convention can exist in only two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute -- e.g., by returning the child to a zone of war, famine, or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.
In Blondin v. Dubois, 189 F3d 240 (2d Cir. 1999), the Second Circuit discussed and explained the factors which may be considered in the grave risk of harm defense. The District Court in that case had found that in the years that he lived with the respondent mother in France, petitioner Blondin repeatedly beat her and one of the couple's two children, forcing the mother to move with the children to shelters. After they reconciled and respondent and the children moved back into the petitioner's home, the beatings resumed. Thus, the respondent felt compelled to move with the children to the United States. Blondin petitioned for their return. The Second Circuit determined the evidence supported the District Court's factual determination that there was a grave risk of harm, but remanded the case for further consideration of a range of remedies that might allow both the return of the children to their home country and their protection from harm, pending a custody determination by a French court with proper jurisdiction. It raised the question whether the District Court could have protected the children from the "grave risk" of harm that it found, while still honoring the important treaty commitment to allow custodial determinations to be made if at all possible by the court of the child's home country.
On remand, the District Court found that if the mother and children returned to France, they would be eligible for social services and free legal assistance. The petitioning father had also agreed to help them financially and to stay away from the mother and children until custody rights were adjudicated. However, the court also found that these arrangements would not mitigate the grave risk of psychological harm to the children that a return to France would entail. The court, which denied repatriation, based its determination on uncontested expert testimony that the children would suffer from post-traumatic stress disorder upon return to France and on the wishes of the child who had been physically abused by her father to remain in the United States. The decision was upheld on appeal.
In Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003), cert. denied, 124 S.Ct. 1062, (U.S. 2004), the district court found that even if the children's habitual residence was in Israel, they need not be returned to Israel because they would face a grave risk of physical harm there due to the belief that the general violent situation in Israel made it a zone of war, and thus dangerous to children.
The Eighth Circuit reversed, finding fatal the district court's failure to cite any evidence that the children were in any more specific danger living in Israel than they were in when their mother voluntarily moved them there in 1999.
In March v. Levine, 136 FSupp2d 831 (M.D. Tenn. 2000), aff'd, 249 F3d 462 (6th Cir. 2001), cert. denied, 534 US 1080 (2002), the Sixth Circuit held that in evaluating whether there is grave risk of harm to the child, the court is not to make a determination of the child's best interest. The maternal grandparents' allegation that the father had killed the mother was insufficient to establish a grave risk that return of the children to their father in Mexico would expose them to harm despite outstanding criminal complaints against the father in Mexico, absent evidence that the father had ever abused the children.
In Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000), the husband, who had earlier absconded to his native Ireland after being charged with criminal offenses in the United States, petitioned for return of the children after they were taken to United States by his estranged wife. The District Court granted the petition. The First Circuit reversed, holding that the wife, who had wrongfully brought the children to United States from their habitual residence in Ireland, showed by clear and convincing evidence that the children faced a grave risk of exposure to physical or psychological harm if they were returned to her husband in Ireland.
The husband had a long history of spousal abuse, of fights with others, and had shown a chronic disobedience of court orders in both the United States and Ireland. Because there was every reason to believe that he would violate any Irish court order made to protect the children, return to Ireland was not required.
The case law reflects that even when confronted with a grave risk of physical harm, certain courts have allowed the return of a child to the country of habitual residence, provided sufficient protection was afforded. See cases cited in Walsh v Walsh, 221 F3d at 204, 221 (1st Cir. 2002). That protection may take the form of "undertakings," or enforceable conditions of return that may be ordered to mitigate the risk of harm occasioned by the child's repatriation. See Feder v. Evans-Feder, 63 F3d 217, 226 (3rd Cir.1995). The concept of "undertakings" is based neither in the Convention nor in the implementing legislation of any nation; rather it is a judicially created concept, developed in the context of British family law. See P.R. Beaumont & P.E. McEleavy, The Hague Convention on International Child Abduction 156-59 & n. 183 (1999).
Undertakings may include such conditions as, for example, ordering the child's return to his country of habitual residence, subject to placement of the child in the temporary custody of a third party (e.g., foster care) in that country until the home country's courts sort out permanent custody issues. However, courts are reluctant to order undertakings because such action may involve the court in adjudicating the merits of the underlying custody dispute. Undertakings are primarily to be used to return the parties to the status quo that existed before the unlawful taking or retention of the child took place, but return to the status quo when a child was previously in an abusive situation is, obviously, not desirable.
Article 13: The 'Wishes of the Child' Defense
Article 13 permits a court to 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 application of this exception is not mandatory. This discretionary aspect of Article 13 is especially important because there is a real potential for the brainwashing of the child by the alleged abductor. 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.
When is a child sufficiently mature to offer a valid opinion as to his preferences? The numbers vary, and there is no cut-off. Rather, the totality of the circumstances should be taken into consideration. In Raijmakers-Eghaghe v. Haro, 131 F.Supp.2d 953 (E. D. Mich. 2001), the court held that it was not precluded, as a matter of law, from taking into account the views of an eight-year-old child under the maturity exception of the International Child Abduction Remedies Act, as the Convention contained no age limit for applying this exception. However, in Yang v. Tsui, 2006 WL 2466095 (W.D.Pa., 2006), the court found that although the unlawfully detained child wished to stay in the United States and not return to Canada, that desire was the product of the passage of time during the litigation, and giving in to that desire would eviscerate the purpose of the Convention.
When relying on this defense to the return of the child, courts are required by the final paragraph of Article 13 to take into account information relating to the child's social background provided by the Central Authority or other competent authority in the child's State of habitual residence. This provision has the dual purpose of ensuring that the court has a balanced record upon which to determine whether the child is to be returned, and preventing the abductor from obtaining an unfair advantage through his or her own forum selection and the resulting ready access to evidence of the child's living conditions in that forum. Hague International Child Abduction Convention; Text and, 51 Fed.Reg. 10, 494.