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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.
FNa1. Bari Brandes Corbin, a member of
this newsletter's Board of Editors, maintains her offices for the
practice of law in Laurel Hollow, NY. She is co-author of Law and the
Family New York, Second Edition, Revised, Volumes 5 & 6 (Thomson-West).
Evan B. Brandes, also a member of this newsletter's Board of Editors,
maintains his office for the practice of law in New York, New York. Both
are Vice-Presidents of Joel R. Brandes Consulting Services Inc., Jersey
City, NJ, and Ft. Lauderdale, FL (www.brandeslaw.com
or
www.nysdivorce.com), and editors of its Web sites. They both
co-author the annual supplements to Law and the Family New York, Second
Edition, Revised.. (c) Copyright, 2008. Joel R. Brandes Consulting
Services, Inc., Bari Brandes Corbin and Evan B. Brandes. All rights
reserved.
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