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September 02, 2020 Feature

Proceedings Under the Hague Child Abduction Convention: 2018–2019

Robert G. Spector


Most U.S. international family law litigation involved the Hague Convention on the Civil Aspects of International Child Abduction1 and its implementing legislation, the International Child Abduction Remedies Act (ICARA).2 U.S. federal and state courts have concurrent jurisdiction to decide on a request for the return of a child under the Convention.

The Convention operates to promptly return children to their habitual residence. To obtain an order returning a child, the petitioner must prove that the child was wrongfully removed from, or retained outside, of the child’s “habitual residence” and that the petitioner had “a right of custody,” which he/she was “actually exercising” (or would have exercised but for the abduction), under the law of the child’s habitual residence.3

I. Applicability of the Child Abduction Convention

The Child Abduction Convention applies only to countries that have ratified or acceded to it, and between countries that have accepted the accession of the other as a treaty partner.4 It cannot be made applicable to a case by the parties’ stipulation. The Convention ceases to apply when the child in question turns sixteen.5

II. Habitual Residence of the Child

A. Intent Cases

The Child Abduction Convention does not define the term “habitual residence.” Courts have made this fact-based determination in a number of cases, leading to a split among the circuits as to its definition.6 The majority view, pioneered by the Ninth Circuit, looks to the parents’ shared intent in determining their child’s habitual residence.7 In some cases, the parties’ intent is clear, for example, as when the parties agreed that the mother could move their child to the United States for one year and then the parties would consider where the child should live thereafter. Under those facts, there is no shared intent for the child’s habitual residence to change to the United States.8

The parties’ intent often has to be inferred from the facts of the case. Therefore, in one case, the court determined that the child’s habitual residence was Italy when the parties’ only shared residence was in Italy, where they lived for more than a year before the child was born. The child went to preschool in Italy, where his doctors and extended family were also located. Before the mother brought him to the United States, the child had only left Italy three times for short trips.9

Such an intent does not mean that the parties intended to permanently relocate the child’s habitual residence. It only means that the parties intended to change the country with which the child would normally identify. Thus, when the father agreed that the mother could relocate the children to the United States for three years, this meant that he agreed that, for at least the next three years, the child’s habitual residence would be the United States. When a petition to return the child was filed after that three-year period, it was reasonable to assume that the child was habitually resident in the United States.10

In another case,11 the court concluded that the objective evidence showed the parties never intended to abandon the Ukraine as the child’s habitual residence. The family spent the overwhelming majority of their lives in Ukraine. The child attended school in Ukraine. Their friends and extended family were almost entirely in Ukraine. There was no objective evidence that the parents jointly decided to abandon Ukraine as their home or to relocate the children to another country regardless of the domicile of one or both parents. While the respondent was determined to relocate to California, the petitioner never shared that firm unconditional intention.

Another case where the child’s habitual residence remained in the United States is Far v. Kendrick.12 Although the children ended up residing in Mexico for nearly three years, the mother always viewed the move as temporary in nature, the father and mother retained strong ties to the United States and came back for frequent visits, the family members retained U.S. citizenship and only had temporary status in Mexico (which lapsed for some of them in 2017), and the father never stopped banking and obtaining car insurance in the United States.

In determining whether the parties agreed to change the child’s habitual residence, the court must often sort through conflicting testimony.13 In one case, there was a remand so the trial judge could sort through conflicting testimony to determine whether the parents agreed that the child’s habitual residence should change to the United States or whether the agreement was contingent upon the father being able to join them. If the latter, then habitual residence did not change from Colombia to the United States.14

B. Acclimatization Cases

The Sixth and Eighth Circuits continue to adhere to the doctrine that a child’s perspective determines its habitual residence. In other words, habitual residence depends on whether the child has become acclimatized to its new country from the child’s point of view. However, the Sixth Circuit recently held that in cases involving very young children, it would be appropriate to use the shared parental intent standard.15 There are some cases, however, involving newborn children where it is impossible to determine acclimatization from the child’s perspective and there is no shared parental intent. The Sixth Circuit, in a major case affirmed en banc,16 the district court determined that the child’s habitual residence was Italy and not the United States. The court held that so long as the district court applies the correct legal standard, the determination of habitual residence is a question of fact subject to a clear-error review and noted that, on this record, the district court could have decided the question either way. The majority took pains to note that its decision does not mean that an infant’s place of birth will always be the habitual residence if it remains there up to the abduction. Such a standard would create its own problems.17 The dissent took the position that in the case of newborn children where there is no parental agreement, the child does not have a habitual residence. Since the burden of proof is on the petitioner to show that the child was abducted from its habitual residence, it would follow that the child has no habitual residence and, therefore, the Convention is inapplicable. The Supreme Court has granted certiorari and will decide the case during the 2019–2020 term.18

In other cases, a child in the United States for one year to attend school has not become so acclimatized to the United States that it would change the child’s habitual residence from Serbia to the United States.19 However, a child from Australia who lived in the United States for approximately ten months before the alleged wrongful retention and developed close relationships with family members in the United States, attended school, made friends, and participated in a variety of extracurricular activities is habitually resident in the United States.20 Under the acclimatization standard, it is rarely possible to decide habitual residence on a motion for summary judgment since it is so fact based.21

III. Rights of Custody and Their Exercise

A removal or retention is only wrongful if the left-behind parent had a right of custody and was “actually exercising” that right at the time of removal, or would have exercised that right but for the removal.

A. Rights of Custody

The Mexican doctrine of patria potestas confers a right of custody upon a child’s parents. Such a right is not extinguished by a divorce decree unless the decree specifically so provides.22 A Guatemalan father of a child born out of wedlock has an obligation to care for, support, educate, and discipline his son—an obligation when breach is punishable by criminal sanctions—and therefore the father was endowed with joint decision-making authority over important aspects of the child’s life giving the father a right of custody.23

A father had no custody rights at the time his child’s mother took the child from Hungary to New York, so the child was not wrongfully removed from Hungary.24 The father did not have custodial rights with respect to the child until a Hungarian court issued an order declaring him to be the child’s father, which did not occur until nearly a year after the mother took the child to New York. Furthermore, the court was aware of mother’s plans to leave Hungary yet did nothing. In another case, the court determined that the father’s custodial rights under Swiss law were not violated because the divorce expressly empowered the mother to relocate with the children to either “the United States or France” “at [or possibly after] the end of the school term.”25

B. Exercise of the Right to Custody

Normally the question of exercising custody rights is not an issue in a case. The vast majority of cases follow the determination made in Friedrich v. Friedrich26 that the only acceptable solution, in the absence of a ruling from a court in the country of habitual residence, is to liberally find “exercise” whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child. Thus, where the evidence conflicts concerning the exercise of custody rights, the more appropriate method of resolving the question is in favor of the parent having actually exercised those rights.27

IV. Defenses/Exceptions

There are a number of exceptions (defenses) that a respondent may assert in arguing that a child should not be returned to the child’s habitual residence.

A. Child Is Settled in His/Her New Environment

Article 12 of the Child Abduction Convention provides that the authorities need not return a child if more than one year has elapsed since the child’s abduction or retention and the child is now settled in the child’s new environment.28 The one-year period runs from the date the retention or removal became “wrongful.”29 A retention occurs not on the date the abducting parent formed the intent to wrongfully retain the child, but rather on the date the petitioning parent learned the true nature of the situation.30

The factual findings used in determining the “now settled” defense are reviewed under the clear-error standard. This defense can only be considered if it has been more than one year between the abduction or retention and the filing of the return petition.31 Given that the date of the wrongful retention is often in dispute, this issue really cannot be decided on summary judgment.32

1. Child Not Returned

A child who showed significant improvement in English, participation in school activities, receipt of several school awards, and that her family in the United States supported her academic and recreational interests is now settled.33

2. Child Returned

In Fernandez v. Bailey,34 the court joined the vast majority of circuits in holding that even if a child is settled in the United States, the court still has the discretion to return the child to its habitual residence. In this case, the mother had abducted her child from Panama for the second time. The Fourth Circuit overturned a trial court’s determination that it had authority to allow the child to stay in the United States even if the petition for return was filed within one year of the abduction.35

In Vite-Cruz v. Sanchez,36 the court considered the following factors in determining the child was not now settled: the child moved homes twice; its mother was completely dependent on her boyfriend, who is undocumented; the child’s primary language was Spanish; and the child needed counseling to help him adjust to the United States.37

B. Grave Risk of Harm/Intolerable Situation

Under Article 13(b), a court need not return a child if “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.”38

1. Defense Not Sustained

Such a defense cannot be decided on a motion to dismiss but requires an evidentiary hearing.39 In determining whether to sustain the defense, the court must consider the nature and frequency of the abuse, the likelihood of its recurrence, and whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the child if returned. In one case, the court’s order to return the child was affirmed because the appellate court noted that both parents have strong familial ties in Mexico, and that there exist responsible parties (other than the mother) who can assist in the child’s transition if the mother chooses not to return with the child. The court ordered the district attorney not to disclose to the father any information relating to the children’s itinerary, temporary custodian, and temporary residence in Mexico.40

Although Article 13(b) requires a finding of harm to the child, most courts recognize that sustained spousal abuse can, in some instances, create such a harm. Where the court considered spousal abuse and found it did not create a grave risk to the child, the appellate court will affirm unless the factual findings are in clear error and there is an abuse of discretion.41

In Eidem v. Eidem,42 the mother argued that the child would be at grave risk if returned to Norway because it would be taken away from the network of doctors overseeing its care in the United States. However, the court determined that the child could receive appropriate care in Norway and the father was willing to administer the health regimen the child needed to develop. In Quinn v. Quinn,43 the court rejected the father’s defense that the child would be in grave risk due to the mother’s mental condition since the evidence showed the mother could manage her condition and still care for the child.

2. Defense Sustained

In Leonard v. Lentz,44 the court previously found an Article 13(b) defense because the child needed medical care for a kidney transplant that was not readily available in Turkey. The father’s petition to have the child returned after the transplant was dismissed as not ripe for decision at the time.

In Farr v. Kendrick,45 the court, in refusing to return the child to Mexico, found “the evidence concerning the father’s administration of corporal punishment is deeply troubling and leads the Court to conclude the grave-risk exception has been satisfied. It is difficult to say what was most troubling—the frequency of the punishment, the unusually stylized manner in which it was administered, or the risk of injury it posed.”46 In Saada v. Golan,47 the court determined that the district court’s use of undertakings did not sufficiently ameliorate the grave risk of harm to the child if he were to be repatriated to Italy; and, therefore, a remand was warranted to allow the district court to determine whether there existed alternative ameliorative measures that either were enforceable by the district court or, if not directly enforceable, were supported by other sufficient guarantees of performance.

C. Mature Child’s Objection

In applying this defense, the court must consider whether the child objects to being returned to the child’s habitual residence and not whether the child has a preference to live in one country over the other. This issue is subject to review under the clear error standard.48

In Djeric v. Djeric,49 the court noted that while the twelve-year-old’s maturity and demeanor were undeniably impressive, “the Court will not exercise its discretionary power to refuse ordering his return because the child’s stated preference did not amount to a ‘particularized objection.’”

D. Human Rights and Fundamental Freedoms

Article 20 provides that the child’s return 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.50 As usual, there were no cases discussing this defense.

E. Consent/Acquiescence to the Removal

In order to show acquiescence, there must be either 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.51 Other courts have required that the totality of circumstances must be examined to determine whether there was consent or acquiescence.52 Thus, there is no consent when the mother allowed the father to bring the child to the United States under the condition he would obtain permission for the wife to also immigrate and he has not done so.

V. Other Issues Under the Child Abduction Convention and ICARA

A. Attorney Fees

Under ICARA, attorney fees and costs are to be awarded to the prevailing petitioner unless the respondent can show that the award would be clearly inappropriate.53 Most circuit courts hold that district courts have broad discretion to determine when an award of costs and fees is appropriate.54 Generally, in determining whether expenses are “clearly inappropriate,” courts have considered the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition. For example, awarding expenses is clearly inappropriate where the prevailing petitioner physically abused the respondent because “a [parent] should not be required under the threat of monetary sanctions to choose between continued abuse (mental as well as physical) and separation from a young child.”55

Where fees are awarded as a condition to petitioner’s voluntary dismissal without prejudice of the return proceeding, the standard governing the attorney fee award is not of ICARA but local law.56

B. Procedural Issues

The voluntary return of the child moots the return proceeding.57

C. Stays

If the state court will not decide all issues, then it is appropriate for the federal court to order a stay in the state court proceedings until such time as the federal court can determine the abduction claim.58

D. Temporary Restraining Orders

A petitioner seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.59 In one case, the court found that the mother did not show a likelihood of irreparable harm in the absence of a TRO. Specifically, she did not present any specific evidence suggesting that the father was likely to flee from Arizona, taking the children with him, in the absence of a TRO. Such a showing is usually necessary to obtain a TRO in an ICARA matter.60

E. Relationship to the UCCJEA

The question of whether a U.S. court should recognize a foreign court’s refusal to return the child is a question of comity. However, a foreign court’s decision on the return question does not decide custody and therefore does not divest a U.S. court of jurisdiction to resolve custody of the child.61

F. Relationship to Asylum Law

In Ordonez v. Benitez-Guillen,62 the court overruled respondent’s motion to dismiss on the ground that the court lacked jurisdiction to order the return of the child because of pending applications for asylum. As the court noted, all case law suggests that courts maintain subject matter jurisdiction over ICARA claims regardless of the asylum status of a respondent and/or minor child.

G. Other Procedural Issues

It is usually never appropriate for a federal court to abstain from deciding an abduction case merely because a proceeding for custody had been previously filed in state court. Abstention is only proper if the state proceeding will decide all the issues in the abduction case.63

A federal court has the authority to allow the left-behind parent to testify remotely. Normally such a request will be granted. Because the court has such authority, any attempt to require the left-behind U.S. citizen to appear and give a deposition pursuant to the Walsh Act64 is likely to fail. The Walsh Act permits a court to exercise jurisdiction over a U.S. citizen and to require him to appear in the United States to testify.65

The court also has the authority to allow the petitioner to proceed in forma pauperis if the petitioner cannot afford the filing fee.66

If the respondent alleges that the petitioner’s inability to care for the child presents an Article 13(b) defense, the trial court can grant the respondent’s request for medical records located in the petitioner’s country.67

Normally post-trial developments will not change the results of a return proceeding.68


1. Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, 1343 U.N.T.S. 89 [hereinafter the Child Abduction Convention].

2. The International Child Abduction Remedies Act, 22 U.S.C. §§ 9001–9011 (1988) (originally enacted as Pub. L. No. 100-300, § 4, 102 Stat. 438 (1988); originally codified at 42 U.S.C. §§ 11603–11610 (1988)).

3. As is often noted, the law of the Child Abduction Convention is relatively straightforward, but the facts can be complicated, although some cases are fairly easy to determine. See, e.g., Quintero v. De Loera Barba, No. CV 5:19-148, 2019 WL 1386556 (W.D. Tex. Mar. 27, 2019), appeal dismissed sub nom. Pinto Quintero v. De Loera Barba, No. 19-50275, 2019 WL 4673234 (5th Cir. Aug. 15, 2019).

4. See Alikovna v. Viktorovich, No. 19-CV-23408, 2019 WL 4038521 (S.D. Fla. Aug. 27, 2019) (dismissing a petition to return a child to Russia because the United States has not accepted Russia’s accession to the Child Abduction Convention).

5. The Child Abduction Convention, supra note 1, at art. 4; Newell v. Demoss, No. 1:18-CV-114-PLR-CHS, 2018 WL 4495022 (E.D. Tenn. Aug. 10, 2018), report and recommendation adopted, No. 1:18-CV-00114, 2018 WL 4494098 (E.D. Tenn. Sept. 19, 2018).

6. Normally a child can have only one habitual residence. There may be some cases where more than one habitual residence is possible, but that cannot occur in a case where a wrongful retention occurred shortly after the child was removed. See De Lucia v. Castillo, No. 3:19-CV-7 (CDL), 2019 WL 1905158 (M.D. Ga. Apr. 29, 2019).

7. It is entirely possible that the parties intended for one child to have its habitual residence in Canada and the other child in Arizona. See Asumadu v. Baffoe, Nos. 18-16658, 18-16720, 2019 WL 1373306 (9th Cir. Mar. 20, 2019).

8. Sundberg v. Bailey, Nos. 18-1021, 18-1403, 2019 WL 1422631 (4th Cir. Mar. 29, 2019); see also Watts v. Watts, 935 F.3d 1138 (10th Cir. 2019) (where the court noted that although the parents had moved their family to Australia, they had intended to stay there for a limited time period while they obtained specialized medical care for one child, and had lived in Australia for about 11 months, and the parents maintained a home in the United States, had left many sentimental possessions in the United States when they had moved to Australia, and maintained U.S. financial ties, including the father’s business and bank accounts there).

9. Saada v. Golan, No. 18-CV-5292(AMD)(LB), 2019 WL 1317868 (E.D.N.Y. Mar. 22, 2019), aff’d in part, vacated in part, remanded, 930 F.3d 533 (2d Cir. 2019).

10. Bandžius v. Šulcaite, No. 18-CV-3811, 2018 WL 5018459 (N.D. Ill. Oct. 15, 2018).

11. Chumachenko v. Belan, No. 18-CV-9728-LTS, 2018 WL 6437062 (S.D.N.Y. Dec. 7, 2018).

12. No. CV-19-08127-PCT-DWL, 2019 WL 2568843 (D. Ariz. June 21, 2019).

13. See Campomanes Flores v. Elias-Arata, No. 3:18-CV-160-J-34JBT, 2018 WL 3495865 (M.D. Fla. July 20, 2018).

14. See Calixto v. Lesmes, 909 F.3d 1079 (11th Cir. 2018) (on remand, the district court concluded that the father’s belief that they would travel to the United States as a family was unfounded particularly in view of the fact that the parents were no longer together at the time); Vite-Cruz v. Del Carmen Sanchez, No. 3:18-CV-01943-DCC, 2019 WL 402057 (D.S.C. Jan. 31, 2019); contrast Nissim v. Kirsh, 394 F. Supp. 3d 386 (E.D.N.Y. 2019) (the court found that the parties’ decision to move to the United States was conditioned on the mother, father, and the child living in the same home as a family. Because the mother eliminated that condition by unilaterally carrying off the child to another home on the other side of the country, there was no mutual agreement that the child’s habitual residence would change from Israel to the United States).

15. Ahmed v. Ahmed, 867 F.3d 682 (6th Cir. 2017); Carvajal Vasquez v. Gamba Acevedo, 931 F.3d 519 (6th Cir. 2019) (applying the “intent” test to children that are two years old).

16. Taglieri v. Monasky, 907 F.3d 404 (6th Cir. 2018) (en banc 10-7), cert. granted, 139 S. Ct. 2691 (2019).

17. The decision appears to overrule Diagne v. Demartino, No. 2:18-CV-11793, 2018 WL 4385659 (E.D. Mich. Sept. 14, 2018), which held that a child who is born when the parents are disputing which country the child should live in has no habitual residence.

18. Taglieri v. Monasky, 907 F.3d 404 (6th Cir. 2018), cert. granted, 139 S. Ct. 2691 (2019) (granting certiorari to determine how a child’s habitual residence under the Child Abduction Convention is determined and whether determinations of habitual residence are reviewed de novo or with any kind of deference to existing decisions).

19. Djeric v. Djeric, No. 2:18-CV-1780, 2019 WL 1046893 (S.D. Ohio Mar. 5, 2019); Djeric v. Djeric, No. 2:18-CV-1780, 2019 WL 2374070 (S.D. Ohio June 5, 2019) (holding that the attorney fee request was drastically reduced due to Mr. Djeric’s impecunious circumstances and his good faith belief that the parties had agreed that he could take the child to the United States).

20. Capalungan v. Lee, No. 2:18-CV-1276, 2019 WL 1872978 (S.D. Ohio Apr. 26, 2019).

21. Capalungan v. Lee, No. 2:18-CV-1276, 2019 WL 1330711 (S.D. Ohio Mar. 25, 2019).

22. Diaz v. Rios Ibarra, No. CV-19-03183-PHX-DWL, 2019 WL 4394491 (D. Ariz. Sept. 13, 2019).

23. Palencia v. Perez, 921 F.3d 1333 (11th Cir. 2019).

24. Mohácsi v. Rippa, 346 F. Supp. 3d 295 (E.D.N.Y. 2018).

25. Pfeiffer v. Bachotet, 913 F.3d 1018 (11th Cir. 2019).

26. 78 F.3d 1060 (6th Cir. 1996).

27. Mendieta Chirinos v. Umanzor, No. 3:18-CV-02668-M, 2019 WL 2287975 (N.D. Tex. May 29, 2019).

28. The Child Abduction Convention, supra note 1, at art. 12.

29. Monzon v. De La Roca, 910 F.3d 92 (3d Cir. 2018) (holding that it is one year from the time the removal or retention became wrongful and the filing of the petition to have the child returned. Seeking the assistance of the Central Authority of the country from which the child was taken does not constitute commencement of a proceeding).

30. Palencia v. Perez, 921 F.3d 1333 (11th Cir. 2019).

31. Malmgren v. Malmgren, No. 18-2200, 2019 WL 211324 (4th Cir. Jan. 16, 2019).

32. Capalungan v. Lee, No. 2:18-CV-1276, 2019 WL 1330711 (S.D. Ohio Mar. 25, 2019).

33. Flores Castro v. Renteria, No. 218CV01739GMNCWH, 2018 WL 8299943 (D. Nev. Nov. 2, 2018), report and recommendation adopted, 382 F. Supp. 3d 1123 (D. Nev. 2019) (noting that the court had previously vacated an order by a Nevada family court awarding guardianship to the paternal grandparents who were using that order to interfere with the Hague court’s temporary visitation schedule).

34. 909 F.3d 353 (11th Cir 2018); see also Monzon v. De La Roca, 910 F.3d 92 (3d Cir. 2018).

35. Malmgren, 2019 WL 211324.

36. 360 F. Supp. 3d 346 (D.S.C. 2018).

37. See also Monzon v. De La Roca, 910 F.3d 92 (3d Cir. 2018).

38. The Child Abduction Convention, supra note 1, at art. 13(b).

39. Flores v. Alvarado, No. 3:17-CV-514-RJC-DSC, 2018 WL 1725615 (W.D.N.C. Apr. 6, 2018).

40. Guzman Estrada v. Ana R., No. E068248, 2018 WL 4927505 (Cal. Ct. App. Oct. 11, 2018), review denied (Jan. 2, 2019).

41. Soto v. Contreras, 880 F.3d 706 (5th Cir. 2018); Gil-Leyva v. Leslie, No. 18-1209, 2019 WL 2651093 (10th Cir. June 27, 2019) (“Evidence of a ‘clear and long history of spousal abuse’ may suffice to show a propensity for child abuse, . . . but isolated incidents of abuse generally demonstrate a risk of harm only to the spouse. At a minimum, the spouse must ‘draw a connection’ showing that the risk such abuse poses to her ‘constitute[s] a grave risk to the children.’”).

42. 382 F. Supp. 3d 285 (S.D.N.Y. 2019), aff’d, No. 19-1417, 2019 WL 6704977 (2d Cir. Dec. 10, 2019).

43. No. 3:19-05010-CV-RK, 2019 WL 2518147 (W.D. Mo. June 18, 2019).

44. 748 F. App’x 87 (8th Cir. 2019).

45. No. CV-19-08127-PCT-DWL, 2019 WL 2568843 (D. Ariz. June 21, 2019).

46. Id.

47. 930 F.3d 533 (2d Cir. 2019).

48. Custodio v. Samillan, 842 F.3d 1084 (8th Cir. 2016).

49. No. 2:18-CV-1780, 2019 WL 1046893 (S.D. Ohio Mar. 5, 2019).

50. The Child Abduction Convention, supra note 1, at art. 20.

51. Diagne v. Demartino, No. 2:18-CV-11793, 2018 WL 4385659 (E.D. Mich. Sept. 14, 2018) (holding that a motion for a new trial and stay pending appeal was denied); see also Djeric, 2019 WL 1046893.

52. Cocom v. Timofeev, No. 2:18-CV-002247, 2019 WL 76773 (D.S.C. Jan. 2, 2019).

53. Sundberg v. Bailey, No. 1:17-CV-00300-MR-DLH, 2019 WL 2550541 (W.D.N.C. June 19, 2019) (holding that the above process may also include expenses and fees incurred when the original order for fees has to be defended on appeal).

54. West v. Dobrev, 735 F.3d 921, 932 (10th Cir. 2013); Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir. 2004).

55. Asumadu v. Baffoe, No. CV-18-01418-PHX-DLR, 2019 WL 1531793 (D. Ariz. Apr. 9, 2019) (holding that costs are not awarded due to petitioner’s abuse of respondent); see also Vite-Cruz v. Del Carmen Sanchez, No. 3:18-CV-01943-DCC, 2019 WL 402057 (D.S.C. Jan. 31, 2019) (holding that the court denied any recovery for fees and costs because “Respondent is indisputably indigent and has a large family to support in the United States. In the event Respondent was even able to pay costs, it would be to the detriment of her other children.”); Quintero v. Loera Barba, No. CV 5:19-148, 2019 WL 3604615 (W.D. Tex. Aug. 6, 2019) (contrasting that when the mother’s claim of indigence is rebutted by evidence of her lifestyle, the trial court did not reduce the father’s attorney fee claims).

56. Arjouan v. Cabre, No. 117CV00782PJKJHR, 2018 WL 4571663 (D.N.M. Sept. 24, 2018).

57. Garcia v. Segovia, No. 1:17 CV 239, 2017 WL 6757647 (W.D.N.C. Nov. 22, 2017).

58. Sundberg v. Bailey, No. 1:17-CV-00300-MR-DLH, 2017 WL 5760104 (W.D.N.C. Nov. 28, 2017), aff’d, 765 F. App’x 910 (4th Cir. Mar. 29, 2019).

59. Muwakil-Zakuri v. Zakuri, No. 17-CV-2062 (JCH), 2017 WL 6453399 (D. Conn. Dec. 11, 2017); Hodge v. Hughes, No. 18-CV-21571, 2018 WL 2688800 (S.D. Fla. Apr. 23, 2018); Cocom v. Timofeev, No. 2:18-CV-002247, 2018 WL 3958129 (D.S.C. Aug. 17, 2018) (enjoining the father and his mother from removing the child).

60. La Salle v. Adams, No. CV-19-04976-PHX-DWL, 2019 WL 3933750 (D. Ariz. Aug. 20, 2019).

61. Guimaraes v. Brann, No. 01-16-00093-CV, 2018 WL 3543022 (Tex. App. July 24, 2018).

62. No. 2:18-CV-1191, 2019 WL 2289831 (S.D. Ohio May 29, 2019).

63. See Bordelais v. Bordelais, No. 17 C 4697, 2017 WL 6988655 (N.D. Ill. Dec. 19, 2017) (holding that a federal return case is a duplicate of the state case and therefore abstention is proper).

64. 28 U.S.C. § 1783 (1964).

65. Teller v. Helbrands, No. 19-CV-3172-SJB, 2019 WL 3779863 (E.D.N.Y. Aug. 12, 2019); Teller v. Helbrands, No. 19-CV-3172-SJB, 2019 WL 3975555 (E.D.N.Y. Aug. 21, 2019) (later contrasting when the court held that when the father indicated he would not come to the United States to testify, a subpoena under the Walsh Act would be issued).

66. Griffiths v. Weeks, No. 18-CV-60729, 2018 WL 7824478 (S.D. Fla. Apr. 5, 2018); La Salle v. Adams, No. CV-19-04976-PHX-DWL, 2019 WL 3933750 (D. Ariz. Aug. 20, 2019).

67. Quinn v. Quinn, No. 3:19-05010-CV-RK, 2019 WL 1460928 (W.D. Mo. Apr. 2, 2019).

68. Wtulich v. Filipkowska, No. 16-CV-2941 (JO), 2019 WL 2869056 (E.D.N.Y. July 3, 2019).

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Robert G. Spector


Robert G. Spector is the Glenn R. Watson Chair and Centennial Professor of Law Emeritus at the University of Oklahoma College of Law in Norman, Oklahoma, and is a member of the Family Law Quarterly Editorial Board.