Defending Applications from Foreign Countries for Return of Children Pursuant to the Hague Convention on the Civil Aspects of International Child Abduction

father with childReturn of Children Pursuant to the Hague Convention on the Civil Aspects of International Child Abduction

When a parent is subject to an application either in the State Court or the Federal Court for return of a child, or Children who are alleged to be illegally taken from a foreign country and brought to the United States, or wrongfully retained in the United States beyond the agreed upon time frame of temporary absence, there are certain defenses (exceptions and/or arguments) that can be raised by the non-petitioning parent in order to thwart the return.

Provisions of the Hague Convention

“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.

“Article 12: Where a child has been wrongfully removed or retained in terms of Article 3
… the authority concerned shall order the return of the child forthwith.” Id., at 7, 9.
To make a prima facie case for the return of a child, a Petitioning parent must show (1) the child’s habitual residence was the Country of Origin, (2) that he or she had custody rights, and (3) that he or she was exercising those custody rights. If in fact a Petitioning parent is able to prove the above, the burden would then shift to the Respondent to prove certain enumerated defenses and/or exceptions as stated herein.

It is with this backdrop that we begin our discussion of the arguments to be made to defend against any Petition for the Return of a child or children.

(1) Habitual Residence

Firstly, the argument can be that the habitual residence of the child was not in the country from which he or she came, or that the habitual residence of the child has changed because of the length of time that the child had been in the United States and the fact that the child has acclimated to their position in the United States. Acclimatization is the fact that the child of a certain age has gotten used to being in the United States, made friends, started school, etc.
There are variant approaches amongst the circuit courts with respect to the determination of habitual residence. Courts have either taken the view that: (1) the analysis is from the child’s perspective (i.e., Sixth and Eighth Circuits), or (2) an analysis of the parent’s shared intent, (i.e., Second and Ninth Circuits).

a. Parent’s shared intent (i.e. Second and Ninth Circuits)
In Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005) the Second Circuit appeared to base its decision regarding habitual residence upon the Mozes framework. In Gitter, an Israeli couple had a child while living in the United States, Mrs. Gitter initially agreed to move to Israel, and the family closed their American bank accounts, sold their cars, gave away their furniture and enrolled their child in daycare in Israel. Id. at 125-28. Consistent with Mozes, the Court concluded that it is necessary to examine parental intentions in order to view the child’s factual circumstances with the proper degree of perspective. Gitter, 396 F.3d at 132 (“[F]ocusing on intentions give contour to the objective, factual circumstances surrounding the child’s presence in a given location,” which allows one to determine the child’s presence is temporary or permanent.) The Court noted that a court should be slow to find that a child’s habitual residence changed without the presence of shared parental intent. Id. at 133-34. The court further determined that there was no shared parental intent to change the child’s habitual residence and that the mother only agreed to move to Israel temporarily. Id. at 135. Ultimately, the Court remanded the case for further finding relating to the child’s acclimatization to life in Israel. As the Second Circuit stated in Poliero v. Centenaro, 373 Fed. Appx. 102, 2010 WL 1573771 (2d Cir. 2010), the court is to 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.” Citing Gitter, 396 F.3d at 134, the Court further stated that the question can, in turn, be broken down into two components whether the parents formed a shared settled intention to abandon the child’s previous habitual residence and whether the parents have mutually intended that the child acquire a new habitual residence in a new location. However, the Court noted that the second step of the inquiry, as stated in Gitter, requires the court to determine whether, “notwithstanding the intent of those entitled to fix the child’s habitual residence, the evidence points unequivocally to the conclusion that the child has become acclimatized to the new surroundings and that his habitual residence has consequently shifted.” Id. at 133.

There are essentially three categories of parental intent: (1) cases where there is an agreed upon intent to change habitual residence; (2) cases where the parties agree to a temporary relocation and (3) cases involving a relocation for an ambiguous or unspecified period of time. Mozes, 239 F.3d at 1076-77. In the first Mozes category, the courts usually find that relocation amounts to a change in the child’s habitual residence and in category three Courts have tended to find an abandonment of prior habitual residence. However, in category two, where the relocation is for a finite period of time, Courts have generally refused to find a change in habitual residence. See, e.g. In Re: Morris, 55 F. Supp. 2d 1156 (D. Colo. 1999).

b. Child’s Perspective
Some Circuits believe that the proper test for habitual residence should place the emphasis on the child’s point of view. Barzailay v. Barzilay, 600 F.3d 912, 919 (8th Cir). The Third, Sixth, and Eighth Circuits have explicitly subscribed to this point of view. For instance in the Sixth Circuit has “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 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); Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995). Depending on the age of the Children the analysis will vary.

For instance, the Sixth Circuit analysis focuses only on the past experience and perspective of the child in making a habitual residence and not the intentions of the parents. In Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993)(Friedrich I), the Court stated that “[t]o determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions.” As the Fourth Circuit explained, a person “can have only one habitual residence.” Most importantly, a parent cannot create a new habitual residence by wrongfully removing or retaining a child. March v. Levine, 249 F.3d 462 (6th Cir. 2001). One must emphasize that the new country where the child resides from the Child’s perspective is the habitual residence and show that the child has friends, doctors, family, and essentially has “abandoned” or no connection to the former Country.

It is important to note that the acclimatization and settled purpose standard does not apply to very young children. Instead, these Courts believe that “it is appropriate to consider the shared parental intention of the parties in cases involving especially young children who lack the cognizance to acclimate to any residence.” Ahmed v. Ahmed, 867 F.3d 682, 690 (6th Cir. 2017). In very young children, thus, the analysis between the two conflicting views is essentially the same.

(2) Article 3(b) and Article 13(a) – That the petitioning parent was not exercising their custody rights at the time of removal of the child.

Under Article 3(b) of the Convention, a party petitioning for return must make a preliminary showing that he or she was exercising custody rights before removal of the child. Article 13(a) discusses the exercise of custodial rights as an affirmative defense that must be established by a preponderance of the evidence. In other words, the party resisting return may assert the affirmative defense that the petitioning parent was not actually exercising custodial rights at the time of retention. This affirmative defense must be established by the preponderance of the evidence. As the Court held in Friederich v. Friedrich (Friedrich II), 78 F.3d 1060, 1065-66 (6th Cir. 1996),  “that, 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 equivocal abandonment of the child. (Footnote omitted). Once it determines that the parent exercised custody rights in any manner, the court should stop-completely avoid any question well the apparent exercised the custody rights well or badly. These matters go to the merits of the custody dispute and are, therefore, the subject matter jurisdiction of the Federal Courts.”

Both states and federal courts have accepted Friedrich II’s analysis of this issue.
Succinctly, for a party not to be exercising his or her custody rights, he or she must essentially have abandoned the child.

(3) Petitioning Parent Did not Have Custodial Rights but mere Right of Access

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), id., at 7. The term is defined broadly and as our United States Supreme Court has stated in Abott v. Abott, 130 S. Ct. 1983 (2010) also includes what are called ne exeat rights. Most Courts had determined whether a parent had a “right to custody” or a mere “right of access.” Interplay between these two concepts and the law of the child’s habitual residence are extremely relevant. One has to look at whether there is an already existing custody decree that gives one parent sole custody or whether joint legal custody has been awarded. Even times when one parent is given sole custody, there still may be relevant ne exeat rights.

(4) Article 13(b) – Grave Risk of Harm

One of the most common claims by a party resisting the return of a child to his or her place of habitual residence is the Article 13(b), Grave Risk of Harm exception. The return of the child to the original country creates a grave risk of harm to the child which would mean he/she is subject to physical or psychological harm or the return would establish an intolerable situation for the child and the family. The Court in Tsui-Yang v. Fu-Chiang Tsui, 499 F.3d 2589, 278-280 (3d Cir. 2005), cautioned that the enumerated defenses were to be construed narrowly so that in the application of those defenses, the underlying purposes of the Convention were not undermined. In Feder v. Evans-Feder, 63 F.3d 217, 222 (3d Cir. 1995), in a remand Order, after reversing on the issue that the Petitioner made a prima facie showing, that in taking evidence, the defenses were to be narrowly construed and potential undertaking for return evaluated for their adequacy and is extremely fact sensitive. The Article 13(b) defense and/or exception must be proven by clear and convincing evidence, which a harder burden the normal preponderance of the evidence standard.

We have used these defenses to prevent a sexually abused child from being returned to London where the father had allowed the child to be molested by a friend. The pivotal point, in this case, was that the Petitioner, who was a British Army officer, made no provisions when he was “billeting” outside of London for the care of the child although he was asked by London Social Services to do so.

We also prevented a child, after two trials and an appeal, from being sent back to Argentina because of sexual abuse to the child and domestic violence to the mother.
You must prove that returning the child would put the child in imminent danger prior to any custody dispute being settled in that country. There is a difference between “harm,” “potential for harm,” and a “grave risk of harm.” Originally, the exception was limited to cases where the child was being returned to an area where there was war, famine, or disease, but it has been expanded to not only psychical but psychological harm to the child as a defense.

In applying the provisions of Article 13(b) the Court is required to engage in an evaluation of the petition, each individual litigant and the credibility of the circumstances to which the minor children will be returned. Friedrich, supra, at 1063. In the seminal case of Friedrich v. Friedrich, supra, 78 F.3d 1060, the Sixth Circuit held that a grave risk of harm for the purposes of the Hague Convention can exist in only two situations. The first is if returning the child would put the child in imminent danger prior to the resolution of the custody dispute in the courts of the country of habitual residence. These would be circumstances such as the return of the child to a zone of war, famine or disease. The second situation is if there is evidence of serious abuse or neglect of the child, or extraordinary emotional dependence and if the courts in the country of habitual residence cannot or will not give the child adequate protection.

The Friedrich approach has been followed by most U.S. courts, e.g. Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995); Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir. 1995). However, U.S. courts have sometimes strained to find ways to avoid the approach in specific cases. The Respondent must prove this allegation by clear and convincing evidence in order to establish the exception. ICARA § 9003(e)(2)(A). Although there is conflict among the circuits with respect to what constitutes a grave risk of physical or psychological harm to a child, it is clear that the burden of establishing this exception is incredibly high. For example, in the First Circuit, a respondent must establish by clear and convincing evidence a pattern of sexual or physical abuse of child or parent in order to invoke the Article 13b grave risk exception. See e.g., Danaipour v. McLarey, 386 F.3d 289 (1st Cir. 2004); Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000), cert. denied 531 U.S. 1159 (2001). In the Sixth Circuit, in order for the Article 13b exception to apply, a respondent must establish by clear and convincing evidence that a child would be returned to war, famine or disease; or that it is a serious case of abuse where the court in the country of habitual residence cannot protect the child. See e.g., Friedrich, II, 78 F.3d 1060. In Baxter v. Baxter, 423 F.3d 363 (3d Cir. 2005) the Court made particular note of the Sixth Circuit’s approach to interpreting the exception as applicable only to situations where a child would be returned to war, famine, disease, or serious abuse.

The Court in Baxter found that the respondent had not met his burden of proving grave risk by clear and convincing evidence. Id. The Baxter Court noted that in order to meet his burden under Article 13b, a respondent must establish “that the alleged physical or psychological harm is a great deal more than minimal” and that the alleged harm must be “something more than would normally be expected on taking a child away from one parent and passing him to another.” Baxter, 423 F.3d at 373 n. 8 (citing Whallon v. Lynn, 230 F.3d 450, 459 (1st Cir. 2000) (internal citations omitted)). The Court also recognized that the article 13b exception does not allow a court to engage in a custody determination or “to address such questions as who would be the better parent in the long run.” See id. 33.

As the Second Circuit stated in Ermini v. Vittori, 758 F.3d 153, 164 (2d Cir. 2014) a “grave risk” of harm does not exist when repatriation “might cause inconvenience or hardship, eliminate certain education or economic opportunities, or not comport with the child’s preference.” Citing Blondin v. Dubois (Blondin IV), 238 F.3d 153, 162 (2d Cir. 2001). A grave risk of harm exists when repatriation would make the child face a real risk of being hurt, physically or psychologically. Ibid. The potential for harm must be severe and there must be a probability that the harm will materialize. Ibid. (citing Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013). The 2nd Circuit in Ermini, supra, was the first Court that extended the grave risk of harm analysis to a child’s medical condition, namely, autism irrespective of whether any abuse occurred. The Child, in that case, was not considered to be “high functioning,” and the expert opined that removal of the child from the existing program would cause a definite harm to the child. There is only one other case in the Country to date that has discussed autism as it relates to a child and in that case, the Magistrate who presided over the matter distinguished Ermini, supra, and held that the child was “high functioning.” The Magistrate further stated that just because the United States may have better doctors, does not equate to a grave risk of harm if the child was returned. With that said, the floodgates for litigation regarding a child’s illness or medical condition may be now open for many other Respondents to claim a “grave risk of harm” to the return of his or her child because of a medical condition.

(5) Article 20 Exception

This exception is rarely used but usually pled in a Verified Answer to a Petition. An Article 20 exception to a return states that the child should not be because it violates fundamental principles of international human rights. The Perez Vera report describes the Article 20 exception to return as a “careful compromise.” It is intended to represent more than a mere “public policy” exception. Understandably, a finding that a foreign legal system violates the internationally protected human rights of a child would be expected to give rise to few cases among Treaty participants. Reference to general principles of international human rights are not sufficient, the defense requires a showing that the principles cited have been accepted in the law of the requested State and that those same principles are applicable to their own domestic cases and is a single defense in Hague Convention international abduction cases. A Respondent must prove this allegation by clear and convincing evidence in order to establish the exception. ICARA § 9003(e)(2)(A). To date, there is not one Court in the United States that has used an Article 20 exception to deny a Petitioner for return.

(6) Age and Maturity

Although the Hague Convention applies to any child under 16 years of age, it can
sometimes be established that if the child is of a specific age and maturity, it is appropriate to take his or her views into consideration before making such a determination. The Court need not rely exclusively or extensively upon the child’s view. The Court therein must look at the potential that the child was unduly influenced by the retaining parent in making this determination. Article 13 of the Hague Convention specifically provides that court may refuse “the order of return of the child if it finds the child objects to return and it has reached the age of degree of maturity at which it is appropriate to take account of its views.” While it is acknowledged that the Court in Blondin v. Dubois, 78 F.Supp. 2d 283 (SDNY 2000) hinted that even an 8-year-old child may reach the age and maturity to take into account his or her views, the Court did not rely exclusively or extensively on the child’s views. There are no established criteria or tests to determine “maturity” in regard to the exception but the Second Circuit has observed as a general matter the standard should be a demanding one. Haimdas v. Haimdas, 720 F. Supp. 2d 183, 206 (EDNY 2010). Moreover, the Convention merely calls for a Court to “take account of” a mature child’s objection to return, not to accede to it automatically. Id. at 204. There is no hard and fast rule with respect to age, but the older the child the more a Court will consider his or her wishes.

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