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Monday, May 23, 2016

Litowchak v Litowchak, 2015 WL 7428573 (D. Vermont, 2015) [Australia] [Federal & State Judicial Remedies] [Motion to Amend Petition to add Respondents Father as Respondent granted]

           In Litowchak v Litowchak, 2015 WL 7428573 (D. Vermont, 2015) the Court granted the Petitioners motion to amend the petition to add Dr. Alan Betts, Respondent Elizabeth Litowchak’s father, as a respondent. The proposed Amended Petition included allegations related to Dr. Betts’s participation in the alleged abduction of Petitioner’s and Respondent’s children. Respondent opposes the motion, arguing that the proposed amendment was futile because Petitioner lacks standing to sue Dr. Betts. In support of his motion, Petitioner described Dr. Betts’s alleged “role in the removal and retention of the Litowchak children.” Petitioner claimed that Dr. Betts purchased plane tickets for Respondent and the children to leave Australia. He alleged that thereafter Dr. Betts contacted Petitioner’s employer on multiple occasions seeking reimbursement for expenses related to the children, including the plane tickets that facilitated their removal from Australia. Petitioner also asserted that Dr. Betts arranged and provided housing for Respondent and the children after they left Australia, and that Dr. Betts concealed the children’s location from Petitioner. Respondent argued that Petitioner’s proposed amendment was futile because Dr. Betts did not have legal or physical custody of the children, and therefore the court could not provide “the sole remedy available under ICARA: an order directing Dr. Betts to remove the children from the United States and return them to Australia.”  The District Court observed that the  Hague Convention and ICARA provide remedies beyond orders requiring the return of a child. See 22 U.S.C. § 9003(h) (“The remedies established by the [Hague] Convention and this chapter shall be in addition to remedies available under other laws or international agreements.”); 22 U.S.C. § 9004(a) (“In furtherance of the objectives ... of the [Hague] Convention ... [the] court ... may take or cause to be taken measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child’s further removal or concealment before the final disposition of the petition.”). The Court found that  Dr. Betts had a close familial relationship with the children, and the allegations in Petitioner’s proposed Amended Petition concerned Dr. Betts’s role in the removal of the children from Australia and their alleged concealment from Petitioner. Dr. Betts’s actions were therefore clearly within the scope of actions addressed by the Hague Convention. Moreover, the court may redress those allegedly unlawful actions by granting appropriate remedies in addition to the return of the children to Australia. See 22 U.S.C. § 9004(a). Among other remedies, the court may order an injunction requiring Dr. Betts to cease the “further removal or concealment” of the children. 22 U.S.C. § 9004(a). Additionally, to the extent Dr. Betts committed the abduction of the children, he may be liable for Petitioner’s expenses. See 22 U.S.C. § 9007(b)(3) (“Any court ordering the return of a child pursuant to an action brought under [§] 9003 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner[.]”). Respondent thus failed to demonstrate that amendment would be futile. Absent such a showing, leave to amend should be freely granted.

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