Recent Hague Convention District Court Cases - Mcelligott v. Mcelligott, 2023 WL 5932947 (D. New Jersey, 2023)[Ireland][Petition granted] [Wishes of the Child Defense] [Indue influence]

 Mcelligott v. Mcelligott, 2023 WL 5932947 (D. New Jersey, 2023)

 The District Court granted the Petition by Stephen McElligott for the return of his minor child C.M., to Ireland. Petitioner Stephen McElligott was born in Ireland and was an Irish citizen. Respondent Audrey McElligott (nee Mocco) was born in New York and was an American citizen. The parties were married on November 10, 2009, in Ireland where they lived together until November 14, 2022. The parties’ older son, C.M., was born in Ireland on April 9, 2011, and lived in the family home in Ireland with both parents until November 14, 2022. On November 14, 2022, Petitioner gave written consent to Respondent to travel to the United States with C.M. and J.M. from November 14, 2022, until November 28, 2022.  C.M. was a citizen of Ireland. J.M., a second son, was born in Ireland on March 19, 2013, and lived in the family home in Ireland with both parents and his older brother, C.M. The Court concluded that Petitioner made out a prima facie case under the Convention that C.M. was wrongfully retained in the United States after removal from his habitual residence in Ireland, in violation of Petitioner’s custody rights under Irish law, which he was exercising at the time of wrongful retention. The Court found that C.M. offered rational and particularized reasons for opposing return, beyond a mere “generalized desire” to remain where he was. The Court found that C.M.’s desire to remain in the United States and not return to Ireland was the product of undue influence. The Court found that the child’s wrongful detention in New Jersey for what was approaching a year among his mother and her close-knit family, all of whom view Petitioner very negatively and apparently had no hesitation in expressing the same in front of C.M. — coupled with the welcome American accoutrements such as summer camps, cellphones, and private gyms that were not afforded to him in Ireland — had understandably but improperly contributed to his desire to remain here.  Accordingly, the Court exercised its discretion under the Convention to find that this is not an appropriate case in which to deny the Petition. C.M. must return to his father and brother in Ireland.

 

 

Green v Phuong, 2023 WL 5608992 ( Ninth Circuit, 2023) [Indonesia][ Subject matter jurisdiction ][Petition denied]

 [Indonesia][ Subject matter jurisdiction ][Petition denied]

 

In Green v Phuong,  2023 WL 5608992 ( Ninth Circuit, 2023) Richard Lee Green appealed pro se from the district court’s judgment dismissing for lack of subject matter jurisdiction his action under the Hague Convention. The Ninth Circuit held that the dismissal of Green’s action was proper because Green did not allege facts sufficient to show that his children were “habitually resident in a Contracting State” because Indonesia is not a Convention signatory. See Convention, Art. 4 (providing that the Convention applies “to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights”)