International Parental Child Abduction Part II: The Respondent’s Case
When a child is abducted1 by a parent to the U.S., there is a presumption the child should always be returned to the country of habitual residence once the custodial rights of the left-behind parent have been demonstrated. The Convention on the Civil Aspects of International Abduction, done at the Hague on 25 Oct. 1980, hereinafter referred to as “the Convention” or “the Hague Convention.”2 There are limited circumstances where the court has discretion to permit the child to remain in the U.S.3 The exceptions to the mandatory return of a wrongfully removed or retained child denoted in the Hague Convention are:
• When the left-behind parent was not exercising rights of custody or access or consented to the removal or retention, Convention, Art. 13(a);
• If more than one year has elapsed since the removal or retention, the child has become well settled, Convention, Art. 12;
• When the child objects to return, Convention, Art. 13(b);
• If the child would be placed in grave risk of physical or psychological harm or placed in an intolerable situation upon return, Convention, Art. 13(b); or
• If return of the child would not be permitted by fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms. Convention, Art. 20.4
Representing the respondent is a difficult task, because even if one or more of these defenses can be shown, a court is not required to invoke them and has discretion to return the child at any time if it will further the objectives of this international treaty.5
Application and Construction
The respondent who opposes the return of a child under the grave risk/intolerable situation exception or the human rights and fundamental freedoms exception has a “clear and convincing” burden of proof.6 The other exceptions may be met by a preponderance of the evidence.7 As will be explored, the court has discretion to consider evidence regarding a child’s interests under the “well settled” or “grave risk” exceptions to the Convention. The Convention and ICARA remain jurisdictional, however, and prohibit U.S. courts from determining underlying custody claims.8 Federal law also requires the exceptions to be narrowly construed.9 Were a court to give an overly broad construction to its authority to grant exceptions, it would frustrate a paramount purpose of the Convention—namely to “preserve the status quo and to deter parents from crossing international boundaries in search of a more sympathetic court.” Blondin v. Dubois, 189 F.3d 240, 246 (2d Cir. 1999) (cited as Blondin II ).10
Although the Convention specifically applies to parties from signatory countries, Convention, Art. 3, the recently publicized Elian Gonzalez11 case illustrates that a party does not need to be from a member state to seek the return of a child in the U.S. courts.12 The remedies provided under the Convention and ICARA, are cumulative and not exclusive to other laws or international agreements.13
Not Exercising Custody/Acquiescence or Consent
Part I of this article detailed the petitioner’s burden to establish his or her lawful custody rights were being exercised at the time of the child’s removal as provided under the law of the child’s habitual residence. If the respondent can overcome this proof and show the petitioner was not actually exercising the custody rights at the time of removal or retention, the court is not bound to return the child. Convention Art. 13.14
The court is also not bound to return the child if the petitioner had consented to or subsequently acquiesced in the removal or retention. Convention Art. 13. The Convention does not define consent or acquiescence in any more definite manner, nor is there definition or guidance in the text or legislative history of ICARA.15 & #x201c;Acquiescence under the Convention requires either: an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing renunciation of rights; or a consistent attitude of acquiescence over a significant period.16
In Currier v. Currier, 845 F. Supp. 916, 922 (D.N.H. 1994), even where a father secured an agreement granting him sole custody of the children in the event of separation or divorce, the mother’s immediate action to revoke their agreement and to secure custody within the German courts upon the father’s flight at separation was sufficient to overcome the argument that consent was tacitly implied.
Having preabduction discussions regarding ultimate relocation to the U.S. is not sufficient to imply consent, nor is allowing the children to attend school during efforts to secure their return. Pesin v. Osorio Rodriquez, 77 F. Supp.2d 1277 (S.D. Fla. 1999). The failure to exercise a provision afforded by a Hong Kong court to prevent the passport division from issuing the child a passport without consent was not sufficient to prove acquiescence in Croll v. Croll, 66 F. Supp. 2d 554 (S.D. N.Y. 1999), which also held that prior discussions of moving to the U.S. is not consent. Sending support payments or gifts is not sufficient to acquiesce, nor is engaging in reconciliation efforts.17 Even if a parent is initially given the ability to travel with the child to the U.S. or stay for a brief period of time, the retention becomes wrongful after the left-behind parent takes action to secure return.18 In Gonzalez-Caballero v. Mena, 251 F. 3d 789 (9th Cir. 2001), however, in addition to other facts, where the left-behind parent gave the moving parent the legal documents necessary for the child to immigrate to the U.S. and indicated his willingness to facilitate immigration through his resident-alien sister, consent was found.19
The prerequisite for asserting the well-settled defense is that one year must have passed from the date of wrongful removal or retention. Convention, Art. 12. The one-year timeframe is not a statute of limitations. The Convention still mandates return of a child when the proceedings have been commenced after a period of one year has elapsed, unless it is demonstrated that the child is now settled in its new environment.
The dynamics of international employment and travel can give rise to a fact-intensive determination as to the date the removal or retention became wrongful.20 There is authority, however, to support an equitable tolling of the one-year period.21 While the Convention itself does not speak to whether the one-year period is tolled by an abducting parent’s concealment, in implementing the Convention and ICARA, lawmakers recognized concealment may have a significant relationship to the delay in making formal application for a child’s return:
The reason for the passage of time, which may have made it possible for the child to form ties to the new country, is also relevant to the ultimate disposition of the return petition. If the alleged wrongdoer concealed the child’s whereabouts from the custodian necessitating a long search for the child and thereby delayed the commencement of a return proceeding by the applicant, it is highly questionable whether the respondent should be permitted to benefit from such conduct absent strong countervailing considerations.22
Allowing a parent who actively conceals a child to profit from his or her wrongful conduct is contrary to the basic principles of equity.23
The Convention prescribes a detailed procedure to be followed in seeking return of abducted children, which includes filing application with the central authority of the country where the children are believed to have been taken.24 The central authority must then ascertain the child(ren)’s location and work toward a voluntary return.25
The delays caused by attempts to peacefully resolve the case should not prejudice a petitioner’s right to secure the return of the children. There are other equitable barriers that may cause a petitioner delays in seeking return, language barriers, lack of financial means to secure counsel, or lack of access to the information or resources to file suit. Accordingly, the purposes of the Convention can be well served in situations where the court orders a child returned despite the establishment of an Art. 12 defense.26 Given that children are quickly adaptable to changes in their environments, the Convention’s purposes should not be frustrated by allowing an argument that a child has acquired a new habitual residence by merely having adapted to a new environment.27
“Well-settled” means more than having a comfortable existence, it includes examining the peculiar circumstances surrounding the children’s living environment.28 In considering this defense, the court can look to a child’s involvement in school, extracurricular activities, community, religious or social activities, and whether the children have established meaningful friendships.29
Child’s Age, Influence and Objection
A child’s age can be a factor in assessing the “well settled” defense. In Zucker v. Andrews, 2 F. Supp. 2d 134, 141 (D. Mass 1998), the court related age to the ability to establish significant connections in finding that a four-year-old boy had become settled in his new environment. The Zucker court contrasted David S. v. Zamira, 574 N.Y.S.2d 429, 433 (1991), where children aged three and one-and-a-half years old were “not yet involved in school, extracurricular, community, religious or social activities which children of an older age would be,” with In re Wojcik, 959 F. Supp. 413 (E.D. Mich 1997) (ages eight and five at the time of the Hague hearing), and In re Robinson, 983 F. Supp. 1339 (D. Colo. 1997) (ages 10 and six), where the courts found the children “old enough to allow meaningful connections to the new environment to evolve.”
The Hague Convention ceases to apply when a child attains the age of 16. Convention, Art. 3. In addition, if the respondent establishes 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 view the court is not bound to return the child. Convention, Art. 13.
In England v. England, 234 F.3d 268 (5th Cir. 2000), 13-year-old Katarina clearly objected to being returned to Australia. Katarina was maintaining friends in the U.S. and had found stability after having endured a “turbulent history” in orphanages and foster care. Although the district court determined that she was mature enough to have her views taken into account, the circuit court reversed, finding that although her views showed a preference to live in the U.S., she still lacked the maturity to trigger this very narrow exception to the Convention, having been diagnosed with attention deficit disorder, taking Ritalin regularly, and being sad and confused by the circumstances surrounding the Hague litigation. 234 F.3d at 272-73.
In Robinson, the court did not find a 10-year-old child’s objection persuasive due to influence by the parent; however, the court denied return based on the well settled defense.
The trial judge may also entertain a child’s testimony as to other defenses.30
Risk of Physical or Psychological Harm or Intolerable Situation
If the respondent establishes there is grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, the court is not bound to return the child. Convention, Art. 13(b). In addition to the higher burden of proof, the scope of inquiry under this exception has been described as extremely narrow.31 The harm must be “something greater than would normally be expected on taking a child away from one parent and passing him to another.”32 The Sixth Circuit indicated a “grave risk” exists in only two situations: 1) where returning the child means sending him to “a zone of war, famine, or disease”; or 2) “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.”33
We are instructed by the following observation by the U.S. Department of State concerning the grave risk of harm exception:
The provision was not intended to be used by defendants as a vehicle to litigate (or relitigate) the child’s best interests. Only evidence directly establishing the existence of a grave risk that would expose the child to physical or emotional harm or otherwise place the child in an intolerable situation is material to the court’s determination. The person opposing the child’s return must show that the risk to the child is grave, not merely serious.
A review of the deliberations on the Convention reveals that “intolerable situation” was 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.34
Evidence of abuse is considered by Hague courts, and courts have denied a child’s return in cases involving clear and convincing evidence of child abuse.35 The focus must be how the abuse places the child at risk.
In In re Walsh, 31 F. Supp.2d 200 (D. Mass 1998), the father verbally and physically abused the mother. The children were constantly exposed to the parents’ acrimony and occasionally observed the physical abuse against the mother. Despite testimony that the nine-year-old daughter suffered from post-traumatic stress disorder and the daughter objected to returning to Ireland or having anything further to do with her father, the district court upheld the objectives of the Hague Convention and ordered the children’s return.36
Walsh examined a number of Hague cases where the court ordered return of the children even when evidence of more severe abuse was presented. “The decided cases provide a harrowing look at the kinds of deplorable circumstances that, nevertheless, fail to satisfy the article 13b exception.”37 The Walsh court confirmed the grave threat contemplated by the Convention must be directed at the children, and cautioned against deciding custody in Hague cases by default, stating:
The evidence demonstrates that [the father] is intemperate and often unkind to his children and that he spanks and slaps them for minor childish infractions, and of course, there is the constant exposure to verbal and physical conflict within the home. As regrettable, and indeed as reprehensible as this state of affairs may be, it does not furnish grounds to deny the petition.. . . Whatever damage long term exposure to such a poisonous atmosphere may cause, the evidence does not reveal an immediate, serious threat to the children’s physical safety that cannot be dealt with by the proper Irish authorities.
Moreover, it bears emphasis that the appropriate order under the Convention is for the return of the children to the jurisdiction from which they were abducted. This court is not in a position to make a custody order, and the children are not by virtue of this order removed from the care of one parent, or remanded to the custody of the other. Allegations of physical and psychological harm should be considered in the children’s home jurisdiction.38
Although courts may entertain psychological evidence, as in Rodriguez and Walsh, that which is typically reserved for the custody arena is irrelevant in a Hague Convention case.39 The exception for grave harm to the child is not license for a court in the abducted country to speculate on where the child would be happiest.40 A removing parent must not be allowed to abduct a child and then—when brought to court—complain that the child has grown used to the surroundings to which the child was abducted. It is the abduction that causes the pangs of subsequent return.41
The possibility of criminal sanctions against an individual who wrongfully removes or retains a child is not a defense under the Hague Convention.42 In Tabacchi, the court acknowledged that “no court has allowed the pendency of criminal proceedings in the home country to justify failure to return the child to the country of habitual residence.”43 The Tabacchi court faced a number of questions surrounding what would occur in regard to the criminal proceedings upon the abducting parent’s return with the children, but those questions were not sufficiently answered. The court held in the absence of clear and convincing evidence that the return of the children would present a grave risk to the child(ren), evidence concerning the effect of criminal charges must be construed against the abducting parent. Tabacchi, 2000 WL 190576 at 13. The court in Ciotta also takes a hard line in its discussion of pending criminal proceedings relating to the abducting parent’s conduct: “[T]he minor child may be returned to Italy without the [abducting parent] also going to Italy.” Ciotta, 684 N.E.2d at 770.
Even in cases where abuse is found, the U.S. court is charged with evaluating the range of options and protections a child may receive in the home country in order to preserve jurisdiction and the aims of the Convention.44 In Blondin II, the Second Circuit remanded the cause even where abuse by the left-behind parent against the child was found sufficient to trigger the “grave risk” exception. The trial court needed to address whether protections could be afforded by the court of the child’s home country in order to honor the Convention’s commitment to have custody determinations made in the child’s home country. 189 F. 3d at 248.45
If the court elects to return the child, it has the ability to fashion measures to ensure the children’s safety. “Numerous courts granting petitions under the Convention have recognized the legitimacy of exacting appropriate undertakings from the parents designed to ensure that the children will be cared for properly during transit and that no harm will come to the children pending disposition in the country of habitual residence.”46 & #x201c;We acknowledge that courts in the abducted-from country are as ready and able as we are to protect children. If return to a country, or to the custody of a parent in that country, is dangerous, we can expect that country’s courts to respond accordingly.”47
Each return of a child represents a victory in the growing crime of international abduction. The return of a child even amid trying circumstances proves that the Convention has been successful in deterring international forum shopping for custody determinations. The survey of decisions also recognizes the commitment and thoroughness of the U.S. courts in addressing these fact-intensive cases and in upholding the aims of the Convention.
1 The term abduction refers not only to the wrongful removal of a child from habitual country, but also the wrongful retention of a child even though there had initially been consent for the child’s being in the U.S. Convention, art. 3.
2 Convention, Article 12, In re Coffield , 644 N.E. 2d 662 (Ohio 11th D.C.A. 1994).
3 Typically the left-behind parent is the petitioning party in cases brought under the Hague Convention and the abducting parent is the respondent. For purposes of this series of articles, the author has followed that premise in using the terms petitioner and respondent.
4 Due to space constraints and the limited use of this exception in the U.S., is not explored separately within the context of this article. See March v. Levine, 136 F. Supp. 2d 831 (M.D. Tenn. 2000) (return of children to father in Mexico would not deprive them of human rights and international freedoms under the Convention); see also Comment, “Where to Decide the ‘Best Interests of Elian Gonzalez; The Law of Abduction and International Custody Disputes,” 31 U. Miami Inter–Am. L. Rev. 323 (2000).
5 Convention, art. 18, 42 U.S.C. §11601(a)(4), Friedrich v. Friedrich, 78 F.3d 1060 at 1067 (6th Cir. 1996), Tabacchi v. Harrison , 2000 WL 190576 (N. D. III. 2000).
6 42 U.S.C. §11603(e)(2) (The International Child Abduction Remedies Act, 42 U.S.C. §11601, et seq., the federal act adopted to implement the Convention, hereinafter referred to as ICARA).
7 Id .
8 42 U.S.C. §11601(b)(4).
9 42 U.S.C. §11601(a)(4).
10 The Blondin dispute is reported twice at the district level, Blondin v. Dubois, 19 F. Supp. 2d 123 (S.D.N.Y. 1998) ( Blondin I); Blondin v. Dubois , 78 F. Supp. 2d 283 (S.D.N.Y. 2000) ( Blondin III) ; and twice at the appellate level, Blondin v. Dubois, 189 F. 3d 240 (2d Cir. 1999) ( Blondin II ); and Blondin v. Dubois , 238 F. 3d 153 (2d Cir. 2001) ( Blondin IV ).
11 Elian Gonzalez was from Cuba, a nonsignatory country. Presently 62 countries have contracted to uphold the Convention. See Hague Conference on Private International Law Web site, hcch.net/e/members/members.html.
12 An applicant may apply directly to the U.S. Central Authority. 42 U.S.C. §11602 (1).
13 42 U.S.C. §11601 (3)(h).
14 In part I, the difficulty of establishing this exception was examined. Recall Friedrich v Friedrich , 983 F.2d 1396 at 1401–2 (6th Cir. 1993), which held 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.
15 Friedrich II, 78 F.3d at 1069.
16 Id. at 1070.
17 Pesin , 77 F. Supp.2d at 1285), Tabacchi v. Harrison , 2000 WL 190576 (N. D. LII. 2000), Wanninger v. Wanninger, 850 F. Supp 78 (D. Mass 1994).
18 Wanninger , 850 F. Supp 78; Tabacchi, 2000 WL 190576.
19 See also In re Ponath , 829 F. Supp. 363, 368 (D. Utah 1993) (court found consent where petitioner expressly permitted respondent to return to U.S. with child and willingly remained in Germany for more than six months).
20 See Zucker v. Andrews , 2 F. Supp. 2d 134 (D. Mass 1998), Ciotta v. Fiocca , 684 N.E. 2d 763 at 768 (Ohio Com. Pl. 1997), and Schroeder v. Vigil-Escalera Perez, 664 N.E. 2d 627 (Ohio 1995) (retention was not “wrongful” until the parties actually began a “battle” over custody of the child).
21 Lops v. Lops , 140 F. 3d at 927, 946 (11th Cir. 1998) (two-and-a-half-year delay not sufficient given abducting parent’s active measures to conceal whereabouts).
22 Text & Legal Analysis, 51 Fed. Reg. 10494, 10509 (1986).
23 See Lops , 140 F. 3d 927.
24 Application is also typically made through the central authority of the left-behind parent’s state, if the country is signatory to the Convention.
25 David S. v. Zamira , 574 N.Y.S.2d 429 at 433 (1991); Convention , Article 7(c) (settlement and voluntary return encouraged under the Convention).
26 See Garbolino, Handling Hague Convention Cases in the U.S. Courts , Chapter 5, The National Judicial College, 3d Ed. (2000).
27 Id . at 154.
28 Lops, 140 F.3d at 946.
29 David S ., 574 N.Y.S.2d at 433, and Application of Robinson, 983 F. Supp 1339 (D. Colo. 1997) (six- and 10-year-old children were “settled” having lived in same area for 22 months, doing well in school, actively involved with extended family, participating in extracurricular activities and had made friends).
30 See Rodriguez v. Rodriguez , 33 F. Supp. 456 (MY 1999) (12-year-old child interviewed in chambers regarding abuse outside of parents’ presence), Blondin v. Dubois , 19 F. Supp.2d 123 (S.D.N.Y. 1998) ( Blondin I ) (court considered eight-year-old daughter’s testimony regarding abuse).
31 Coffield, 644 N.E.2d at 664.
32 Friedrich II, 78 F.3d at 1068.
33 Id. at 1069. Due to space constraints and the limited use of this exception in the U.S., “zone of war” is not explored separately within the context of this article. See Freier v. Freier , 969 F. Supp 436 (E.D. Mich. 1996) (despite newspaper articles of skirmishes, a headline which dubbed the situation one of the “the worst clashes since 1987-1993,” testimony from the respondent confirming fear and anxiety about the unrest and ongoing tension in the country, and about random car and bus bombings, the court did not find sufficient evidence for Israel to be “zone of war” in that no schools were closed, business were open and the petitioner was able to leave the country).
34 Friedrich II, 78 F.3d at 1068-69, 51 Fed. Reg. at 10510.
35 See Turner v. Frowein, Docket No. FA-97-0084450 (Conn. Super. Ct. Jun 25, 1998) (petition denied on overwhelming evidence that father had sexually molested son); Rodriguez v. Rodriguez , 33 F. Supp 2d 456 (1999) (returned denied where psychological evidence confirmed children suffered post traumatic stress syndrome from abuse); and Blondin I-IV.
36 See also Tabacchi, 2000 WL 190576 at 12 (court held to qualify as a grave risk of harm under the convention, the risk had to be to the child(ren) amid heated quarrels between the parents and several instances of physical violence against mother); Croll v. Croll, 66 F. Supp. 2d 554 (S.D.N.Y. 1999) (exception only applicable when the child, as opposed to a parent, would be placed in danger if returned).
37 Walsh, 31 F. Supp.2d at 205, citing Steffen F. v. Servina P. , 966 F. Supp. 922, 926 (D. Ariz. 1997) (no grave risk despite high probability that boy’s sister had been sexually molested; clear and convincing standard not met); Nunez-Escudero v. Tice-Menley, 58 F. 3d 374, 377 (8th Cir. 1995) (allegations of physical and sexual abuse against mother and generally among members of husband’s family immaterial to the article 13b inquiry); K. v. K ., 3 F.C.R. 207 (Eng. Fam. 1997) (petition granted despite child witnessing several incidents of violence against mother) (other citations omitted).
38 Walsh, 31 F. Supp.2d at 206. See also Ciotta, 684 N.E.2d at 769 (where facts surrounding incidents of abuse seriously contested and respondent never reported abuse to authorities or sought medical attention, court failed to find serious risk of harm); Dalmasso v Dalmasso, 9 P.2d 551 at 558–9 (Kan. 2000) (use of corporal punishment not sufficient to show great risk of harm); and Croll, 66 F. Supp. 2d at 562 (no “grave risk” found despite testimony regarding alleged abuse and respondent never filed allegations of abuse of self or child, nor demonstrated that the Hong Kong courts would be incapable or unwilling to protect the child should she be placed in an at-risk situation).
39 Coffield, 644 N.E.2d at 665.
40 Friedrich II, 78 F.3d at 1068.
41 Id .
42 Ciotta, 684 N.E.2d at 770.
43 But see In re Prevo t, 59 F.2d 556 (Tenn. 1995) (father seeking return of children to France was disentitled from asserting claim under ICARA where father was fugitive from U.S. courts in connection with violation of probation); and Pesin (fugitive disentitlement doctrine precluded appeal by mother compelling her to return the children to father in Venezuela, where mother repeatedly ignored contempt sanctions and became a fugitive after issuance of a bench warrant for her arrest).
44 Garbolino, supra note 26.
45 On remand, the district court still did not order return of the child because the father had engaged in such extensive physical abuse of the child that return to France would result in further trauma). Blondin III; see also Blondin IV, 238 F. 3d 153 (affirming Blondin III ).
46 Walsh, 31 F. Supp.2d at 207; see also Feder v. Evans-Feder, 63 F.3d 217 at 226 (3d Cir. 1995).
47 Friedrich II, 78 F.3d at 1068; see also Janakakis-Kostun v Janakakis . 6 S.W.3d 843, 850–52 (Ky. App. 1999) (no evidence to suggest child faces danger in Greece or that the Greek courts would not properly protect the respondent or child).
Rana Holz is a partner in the law firm of Rubinstein & Holz, P.A., in Ft. Myers. She has practiced exclusively in the area of family law and related appeals since graduating from Stetson University College of Law in 1991. Ms. Holz is a frequent author and speaker on paternity and child support issues and has served on the Family Law Section Executive Council, Commentator Committee, Support Issues Committee, Legislative Committee, and as an editor of this column.
This column is submitted on behalf of the Family Law Section, Richard D. West, chair, and Kristen Adamson, guest editor.