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Karpenko v Leendertz, --- F.3d ----, 2010 WL 3326131 (3rd Cir. (Pa.) 2010)

E.L., was born in Pennsylvania in 2001. Leendertz and Karpenko separated in 2002 and divorced in 2007. In September 2002, the Pennsylvania Court of Common Pleas issued an order incorporating a Custody Stipulation executed by them which provided that (1) Karpenko would obtain primary physical custody and live with E.L. in the Ukraine, Karpenko's native country; and (2) Leendertz would have regular visitation rights to be arranged in the Ukraine, the Netherlands, or the United States. Leendertz had family in the Netherlands and, as a commercial pilot, was able to visit the Netherlands. Karpenko initially moved with E.L. to the Ukraine, but at Leendertz's request, she relocated to Ede, Netherlands. E.L. arrived in the Netherlands at age two and began attending Dutch public school at age four. E.L. had numerous Dutch friends and socialized with Karpenko's relatives in the Netherlands. E.L. learned Dutch as her primary language and became immersed in Dutch culture.

Karpenko refused to allow full visitation in accordance with the court-ordered Custody Stipulation. In 2007, following further deterioration of relations, Karpenko moved to a new location in Ede, Netherlands, and refused to provide Leendertz with her address or phone number. In 2008, both parties filed petitions for sole physical and legal custody: she in the Dutch District Court of Arnhem, he in the Pennsylvania Court of Common Pleas. The Dutch court stayed Karpenko's petition pending a decision by the Pennsylvania court. By Order of May 20, 2009, the Pennsylvania Court of Common Pleas granted sole custody of E.L. to Leendertz. That order purported to (1) transfer sole legal and primary physical custody to Leendertz; (2) grant Leendertz "sole authority to apply for and obtain a United States passport for the minor child without Mother's consent or authorization and without any further notice to Mother;" (3) grant Leendertz authority to "obtain custody of the child at any place that she may be found, whether in the United States or any other country" without any further proceedings; (4) grant Leendertz and his sister authority "to pick up the child at her school or any location;" (5) award Karpenko visitation rights "as she and the Father may agree;" and (6) adjudge Karpenko in civil contempt for willfully violating prior court orders. Karpenko appealed and the Pennsylvania Superior Court affirmed. The court noted that in n the Netherlands, a foreign order is not enforceable until domesticated by a Dutch court. Dutch Civil Code, Title 9, Article 985, et seq. However, rather than reducing the May 20, 2009, Order to a domestic judgment under Dutch law, Leendertz arranged to seize E.L. in the Netherlands and return with her to Pennsylvania without notice to Karpenko or the Dutch court presiding over the custody proceeding there. On May 27, 2009, Leendertz located E.L. on the sidewalk outside her school in the Netherlands. With the help of an unidentified third party, Leendertz placed E.L. in a car and drove her to Germany, where they flew to Dubai and ultimately the United States. Dutch authorities issued an Amber Alert within minutes of E.L.'s removal. By Order of May 29, 2009, a Dutch court ruled that (1) at the time of E.L.'s removal, Karpenko and Leendertz had joint custody under Dutch law; (2) Leendertz acted unlawfully by removing the child without Karpenko's permission; and (3) Leendertz shall immediately return E.L. to Karpenko. Leendertz refused to comply with the Dutch Order and currently resided with his new wife and E.L. in Northampton, Pennsylvania.

On July 20, 2009, Karpenko filed the petition for return of E.L. The District Court granted Karpenko's petition for E.L.'s return on March 3, 2010. The Court of Appeals noted that the District Court held an evidentiary hearing, after which it issued the following factual findings and legal conclusions: E.L. was removed on May 27, 2009, from her habitual residence in the Netherlands. Karpenko had custody at the time of removal because, under Dutch law, divorced parents retain joint custody until a Dutch court rules otherwise; there was no severance of joint custody by a Dutch court as of May 27, 2009, a point conceded by Leendertz's expert on Dutch law. Karpenko was exercising her custody rights at the time of removal because she was actively involved in E.L.'s daily life. By removing E.L., Leendertz breached Karpenko's custody rights under Dutch law because he resorted to an extreme form of self-help, "a snatch and run," rather than registering the Pennsylvania court's May 20, 2009, Order in the Netherlands as required by Dutch law. Leendertz failed to carry his burden of establishing his affirmative defense, i.e., that granting the petition would pose a grave risk of physical, sexual, or psychological abuse upon E.L.'s return.

Leendertz argued that the District Court disregarded evidence that his conduct complied with Dutch and American law "[a]t all times," and therefore he did not breach Karpenko's custody rights by removing E.L. from the Netherlands. Leendertz contended he was legally entitled to rely on the Pennsylvania court's May 20, 2009, Order when he seized E.L. outside her school in the Netherlands. However, that Order purported to exercise power authorizing conduct by Leendertz on foreign soil--in particular, a "snatch and grab," as accurately characterized by the District Court. The Court of Appeals noted that a Pennsylvania state court lacks jurisdiction to authorize such conduct; therefore, the Pennsylvania court's May 20, 2009, Order was a nullity in the Netherlands until domesticated by a Dutch court. On May 29, 2009, a Dutch court ruled that Leendertz acted unlawfully by removing the child without Karpenko's permission. These facts supported the District Court's finding that Leendertz breached Karpenko's custody rights. The Court agreed with the District Court's ultimate assessment: "Under no authority was the Father authorized to snatch the child from her school in the manner he did."

At oral argument, a member of the panel posed a novel question which was not raised or briefed by the parties or considered by the District Court: Should this Court exercise its equitable power to deny relief under the Hague Convention because Karpenko filed this petition with unclean hands? The Majority noted that the doctrine of unclean hands, named for the equitable maxim that "he who comes into equity must come with clean hands," "is a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant." The Court noted that Karpenko's conduct in the Netherlands was decidedly not commendable; it was wrong for her to interfere with Leendertz's visitation rights and to refuse to disclose the child's new address after relocating but it was not aware of any authority that would support dismissal of a Hague Convention petition on grounds of unclean hands. The Court concluded that application of the unclean hands doctrine would undermine the Hague Convention's goal of protecting the well-being of the child, of restoring the status quo before the child's abduction, and of ensuring "that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." Hague Convention, art. 1(b). Furthermore, wrongful removal of a child is most likely to occur when strained relations between parents are at their worst. As part of the irresponsible behavior that may accompany such strained relations, one or both parents may interfere with the other's custody rights. The Hague Convention discourages parents from resorting to the most extreme form of interference, child abduction, by providing a judicial remedy for removal. If relief for abduction were unavailable to parents with allegedly unclean hands, the well-being of the abducted child, which is a main purpose of the Hague Convention, would be ignored. There would be no remedy to prevent a cycle of abduction and re-abduction, an outcome which would inflict needless harm on vulnerable children.