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June 09, 2021 Feature

The Effect of COVID-19 on International Child Abduction Cases

Robert G. Spector & Melissa A. Kucinski

Introduction

Some of the highest conflict litigation in the United States revolves around situations where one parent unilaterally relocates his or her child to another country. The emotions are high and the legal issues are complicated, but now, more than ever, the practical issues are front and center. Since the advent of a global pandemic in 2020, parents have been faced with border closures, canceled flights, health risks, and court delays, all of which have impacted the legal processes to secure the prompt return of their children.

Most U.S. international child abduction litigation involves the Hague Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention)1 and its implementing legislation, the International Child Abduction Remedies Act (ICARA).2 U.S. federal and state courts have concurrent jurisdiction to decide a request for a child’s return under the Hague Abduction Convention.3 The Hague Abduction Convention operates to promptly return a child to the country of that child’s habitual residence.4 To obtain an order for the return of a child, the petitioner must prove that the child was wrongfully removed from, or retained outside of, that child’s “habitual residence” and that the petitioner had “rights of custody” that he or she was “actually exercis[ing]” (or would have exercised but for the abduction) under the law of the child’s habitual residence.5 Coronavirus (also referred to as COVID-19) has disrupted the resolution of cases under the Hague Abduction Convention. The number of cases reaching conclusion during the pandemic has been down, with courts closed, only accepting emergency matters, or significantly backlogged.6 The purpose of this article is to document the effects of COVID-19 on petitions for the return of children under the Hague Abduction Convention.7

I. Commencing a Case

Often a Hague Abduction Convention case begins when the left-behind parent files an application with his or her Central Authority in the country where that parent is sitting,8 which is usually the child’s habitual residence. There have not appeared to be any significant delays in processing these applications.9 When the left-behind parent is outside of the United States, the foreign Central Authority will initially process the application and then ultimately transfer it to the U.S. Central Authority, which is the U.S. Department of State, Office of Children’s Issues.10 The U.S. Central Authority will use its resources to help locate the taking parent within the United States, and may provide guidance to the left-behind parent to locate a lawyer to file the appropriate court case.11 The left-behind parent may file a return petition in the federal or state court located in the district where the child is now located.12

The U.S. Central Authority is housed within the office at the U.S. Department of State that addresses the needs of American citizens overseas, including processing U.S. passport applications.13 Passport agencies throughout the United States were closed or provided limited in-person services for months, and U.S. Embassies and Consulates overseas temporarily suspended routine visa services.14 Given the emergency situations caused by COVID-19, the concern was that the U.S. Central Authority’s work could be impacted. While that does not appear to be the case, some services were delayed, such as processing passport applications, while staff worked from home.

Many left-behind parents are understandably very concerned about the expenses associated with securing their children’s return during the pandemic.15 Many law offices have been working remotely, and courts have been inconsistently open (depending on the policies and procedures implemented in each jurisdiction). Furthermore, there have been tremendous obstacles related to left-behind parents’ travel to participate in litigation (if held in person), including whether they can enter the United States, and whether they have to quarantine for a few weeks before appearing in court.

One of the additional difficulties with initiating a Hague Abduction Convention lawsuit in the United States during a pandemic is service of process on the other party. In the United States, ABC Legal, the U.S.-contracted process server for international service of process within the U.S. under the Hague Service Convention,16 temporarily suspended service until it developed new safety protocols.17

Once a case is commenced, the tendency of U.S. courts has been to hold an evidentiary hearing, and to issue scheduling orders that allow for pared-down discovery. It is not uncommon for parents to hire expert witnesses, engage professionals to conduct psychological evaluations of the child at issue, or seek documentation from schools or childcare centers. With much of the world at a standstill, for some parents it may be difficult, if not impossible, to secure adequate evidence to present the case, thereby impacting the court’s ability to address the various arguments made by each parent.

II. Inaccessibility of Courts

Once a case has been filed in the abducted-to country, it may take longer than usual before the court is able to schedule a final evidentiary hearing on the return petition because of the pandemic.18 If the courts are not operating normally, there will be an effect on any return proceeding. In Barron v. Kendall,19 the parties were litigating in the state court, at which point the state court judge raised the Hague Abduction Convention issue and ultimately scheduled an evidentiary hearing to address it.20 But due to COVID-19 and court closures, the evidentiary hearing was delayed.21 The left-behind parent subsequently filed a federal court Hague Abduction Convention return proceeding.22 The taking parent requested that the federal Hague Abduction Convention proceeding be dismissed, arguing the abstention doctrine.23 The underlying issue revolved around the fact that the state court judge raised the Hague Abduction Convention issue sua sponte and scheduled an evidentiary hearing without any formal filing by the left-behind parent.24 The practical issue was, however, that the federal court was operating and holding hearings, and the state court had suspended its proceedings due to COVID-19.25 Despite this practical impediment to the left-behind parent proceeding in a timely manner, the federal court dismissed the case, noting that the left-behind parent had not objected to the Hague Abduction Convention claim proceeding in the state court when the state court judge raised the issue and scheduled a hearing.26

There are a number of procedural devices that can lessen the effects of COVID-19 on the court system. For example, courts throughout the United States turned to web-conferencing technology to hold remote hearings online.27 Hague Abduction Convention cases, however, need not be resolved through an in-person evidentiary hearing. Judges can resolve some cases strictly on the pleadings.28 Courts could allow the submission of evidence by alternative means.29 In Guerra v. Rodas, the court used Rule 43(a) of the Federal Rules of Civil Procedure, which provides that “[f]or good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.”30 The court found that “Guerra Guerra’s indigency and extenuating circumstances surrounding the COVID-19 pandemic—including travel restrictions and the need for imposition of safeguards related to the pandemic—constitute[d] ‘compelling circumstances’ that warranted permitting Guerra Guerra to testify remotely.”31

When Guerra Guerra was permitted to testify remotely, “the Court ensured . . . appropriate safeguards were in place,” including “proper identification of Guerra Guerra; the lack of any outside influence on her; and accurate transmission of her testimony.”32 The court, however, noted that “the transmission of Guerra Guerra’s testimony was frequently interrupted and she had to change her location during the course of the proceeding due to transmission difficulties.”33 “[The] [d]efendant, however, raised no objection to [Guerra Guerra’s] remote testimony and the Court otherwise undertook efforts to ensure proper attendant safeguards were in place.”34 One can imagine that this may not be possible for some parties due to lack of internet connectivity.35 The Permanent Bureau of the Hague Conference on Private International Law cautions that courts should “[s]afeguard equality between parties to [Hague Abduction] Convention cases, including by ensuring equal party participation and access to information, resources, and technology, for example equal access to video- and teleconferencing equipment and internet connectivity.”36

III. Effect of Covid-19 on the Treaty Provisions

A. Habitual Residence

The Hague Abduction Convention only operates if the child is taken from that child’s “habitual residence.” The recent case of Monasky v. Taglieri37 defined habitual residence, resolving a circuit split in the United States, making the new standard a fact-intensive case-by-case examination.38 Given the latitude afforded a trial judge to examine the totality of the circumstances, there are a lot of practical questions that COVID-19 presents. For example, if a case is delayed by court closures or a parent is unable to physically return a child safely, will that create a situation where the child’s presence for a longer term may shift that child’s habitual residence? Will a child begin acclimatizing to the new residence during the pandemic? Much social action is now remote. This may mean that the child’s interaction with his or her new environment may be minimal. Remote learning can take place from anywhere; the child does not have to be physically present in any particular community. If these connections happen after the hearing, it should not affect the outcome because post-trial developments normally do not change the outcome.39

As of this writing, the pandemic appears to be abating in the United States. If it does not abate, however, this issue may arise more routinely as court hearings are delayed for even longer and as schools and travel begin reopening.

B. Consent and Acquiescence

Consent and acquiescence are two of the exceptions to a child abduction under the Hague Abduction Convention.40 Consent occurs before the abduction and consists of acts that condone the child’s move from one country to another. Acquiescence occurs after the child has been abducted and is shown by 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.”41 With COVID-19, countries have instituted restrictions on international travel,42 and airline travel has declined significantly.43 There are easily situations where a child, while visiting another country on his or her break from school, could become stuck in the other country, or where the parents have conferred with one another and agreed to delay the child’s return because it is unsafe, or where the parent who is with the child refuses to return the child due to the attendant travel and health issues. It is conceivable that a parent relenting and allowing the child to remain in the foreign country could be construed as consenting, particularly if their agreement is open-ended or indefinite. This will no doubt cause the taking parent to raise the exceptions of consent and/or acquiescence in any Hague Abduction Convention return proceeding.

There are currently no cases addressing these concerns. However, it is possible that these issues could be raised in future cases, as the pandemic drags on.

C. Grave Risk of Harm to the Child

Under Article 13(b) of the Hague Abduction Convention, 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.”44 This necessarily asks the question as to whether ordering a child returned to a COVID-19 hot spot is a grave risk to that child.

On this issue, the British case KR v. HH45 is instructive. In this case, the taking parent argued that it would constitute a grave risk to the child to return the child to Spain because of the COVID-19 pandemic.46 The court said:

Although the course of the pandemic is clearly more advanced in Spain than in the UK, I do not have any evidence from which I can draw a conclusion that either country is any more or less safe than the other. It is clear that the pandemic is a serious public health emergency in both nations and that the number of cases in the UK is expected to continue to rise in the coming weeks. Both countries have imposed significant restrictions on their citizens in an effort to contain the pandemic. I am simply not in a possession [sic] to make any findings as to the relative likelihood of contracting the virus in each country. On the material before me, all that I can conclude is that there is a genuine risk that PT [the child] could contract the virus whether she remains in England or returns to Spain.47

As a result, the judge concluded that while travel is likely to increase the risk of contracting coronavirus, the risk did not amount to a “grave risk” of physical harm under Article 13(b).48 The judge had found that PT was “wrongfully removed from Spain within the terms of” Article 3 of the Hague Abduction Convention, and none of the Article 13 exceptions had been made out.49 Therefore, the court ordered the summary return of PT to Spain.50 It was ordered that PT should be returned to her father’s care and that the father “should implement her return to Spain as soon as reasonably practicable given the global public health pandemic.”51

The authors anticipate that future arguments may be more tailored to the specific children in the case; for example, instead of arguing that the pandemic creates a general grave risk of harm, a parent may argue that a specific child who is at higher risk of contracting COVID-19 (due to a pre-existing health issue) may be placed at grave risk of harm, or that a specific method of travel (like a long-haul flight overseas) may present a greater risk than a car ride across a border. In specific cases, a more detailed analysis may be required than that which was undertaken in KR v. HH. The Hague Conference’s recently published Article 13(b) Guide to Good Practice indicated that, in general, the court would need to determine “whether it is satisfied that the grave risk exception to the child’s return has been established by examining and evaluating the evidence presented by the person opposing the child’s return / information gathered, and by taking into account the evidence / information pertaining to protective measures available in the State of habitual residence.”52

An important consideration when reviewing the Article 13(b) exception is an examination of the protective measures available in the child’s country of habitual residence. COVID-19 is a global pandemic, and, therefore, generally speaking, a child may be no more at risk in one country than another. But COVID-19 has impacted the resources available to its citizens differently depending on the country and the region within the country. For example, if the child would be at risk of abuse or neglect upon return, but the habitual residence has in place adequate measures such as foster care, domestic violence shelters, and access to courts to secure civil or criminal protection orders, then it may be appropriate for the child to be returned to his or her country of habitual residence.53 But there is the potential for COVID-19 to have impacted the measures in place in the habitual residence. If the local courts are inaccessible, if the local police are short-staffed and not responding to calls of abuse or neglect, or if there are overburdened or shuttered shelters, a child who is returned may not have access to the same protective measures that were otherwise available pre-pandemic. This will require a more detailed examination by the trial judge of this family, this child, and the habitual residence when constructing a safe return.

D. One Year and Now Settled

Article 12 of the Hague 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.”54 The one-year period runs from the date the retention or removal became “wrongful.”55 A retention occurs not on the date the abducting parent formed the intent to wrongfully retain the child but rather on the date their actions were “so unequivocal that [the left-behind parent] knew or should have known that [the child] would not be returned.”56

With the court closures, some parents may be waiting to file their Hague Abduction return petitions until the courts fully reopen, and this may actually prejudice that parent. There may be no choice if the court is closed, and this potential creates a concern whether a court closure may make out an exception if the court closure prevents a parent from filing his or her return petition until beyond the one year. In some states, all court filing deadlines were temporarily suspended, although they are now running again.57 There is an issue as to whether this type of temporary deadline suspension would apply to the left-behind parent filing a return petition because of the U.S. Supreme Court’s ruling in Lozano v. Montoya Alvarez.58 That case found that the one-year period set out in Article 12 was not a statute of limitations and could not be tolled.59

So far, the issue has not arisen in the case law under the Hague Abduction Convention. However, it is a possibility, and time will tell if it becomes a problem in Convention cases.

E. Ordering the Child’s Return

Finally, if a court orders a minor child’s return to his or her habitual residence, the question arises as to timing. When would the court order the child’s return? The Hague Abduction Convention contemplates a “prompt” return, but also a safe return. Would a court consider ordering the child’s return but setting the return date out for a future time, such as when flights are back to normal, the home country has certain virus numbers under control, the Centers for Disease Control and the U.S. Department of State reduce their travel alert levels, etc.? A few recent Hague Abduction Convention cases have addressed this issue, albeit with limited discussion.

In Gallegos v. Garcia Soto,60 the court stayed its return order “indefinitely, until such time as the Court and the parties [could] be reasonably confident that the COVID-19 pandemic no longer render[ed] international travel unsafe and widespread social distancing practices [were] no longer necessary.”61 The language used by the court is relatively open-ended and could be interpreted differently by each parent; the court indicated that this issue would “be determined during or after a status conference with the parties.”62 One reading the opinion might ask what criteria the court would use to make this determination, given the ongoing nature of the pandemic, and significant differences in virus numbers and vaccine access in each jurisdiction.

The issue also arose in Guerra v. Rodas,63 where the court noted that there was a ban on travel to and from Guatemala due to the pandemic.64 The parties agreed to a stay of the child’s return “until the travel ban is lifted and international travel is no longer deemed unsafe due to the pandemic.”65 Given the mandate of the Hague Abduction Convention that the child is to be returned promptly, the court ordered the parties to give status updates to the court regarding the child’s ability to travel safely to Guatemala, with the updates to be provided “on or before the 3rd day of each month.”66 The court also entered an order that prohibited the child from being removed from the western district of Oklahoma.67

Conclusion

As the Permanent Bureau of the Hague Conference on Private International Law pointed out, the Hague Abduction Convention continues to be effectively applied in times of COVID-19 through the cooperation and the sharing of resources between authorities.68 The best interests of the child remain of paramount importance, in particular to help mitigate the impact of the COVID-19 crisis on the child. In the long run, this can be achieved by communication and collaboration among members of the judiciary across borders through direct judicial communications and the International Hague Network of Judges.69 Further, cooperation among Central Authorities may ameliorate some potential delays in returning children, such as the government providing information on travel or border closures. This will help to put practical arrangements in place that allow for the door-to-door safe return of the child, including ensuring the placement of the returning child on flight priority lists, the purchase of medical and travel insurance in the case of COVID-19 infection, and, where necessary, self-isolation facilities at the destination.

At some point all of this will pass, and the world will return to some semblance of normalcy. In the interim, hopefully this article will have addressed a number of the major concerns. While COVID-19 will hopefully be coming to a close proximate to this Article’s publication, a widespread or global crisis could significantly impact our justice system again in the future, raising similar or identical arguments by parents. Most certainly, the arguments and challenges outlined in this article will continue to be relevant during future pandemics and crises. The treaty itself has fared quite well, and most courts have slowly been able to navigate the law. However, considering the practical realities of this situation, there may be room for conversations about alternative ways to resolve these complex global disputes, such as through mediation,70 including online dispute resolution,71 remote hearings, and electronic courts.

Endnotes

1 . Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89 [hereinafter Hague Abduction Convention].

2 . International Child Abduction Remedies Act (ICARA), 22 U.S.C. §§ 9001–11.

3 . Id. § 9003(a).

4 . Hague Abduction Convention, supra note 1, arts. 1, 3, 12.

5 . Id. arts. 3, 12. As courts have noted, the law of the Hague Abduction Convention is relatively straightforward, but the facts can be complicated. See, e.g., Pinto Quintero v. De Loera Barba, No. 5:19-148, 2019 WL 1386556, at *3 (W.D. Tex. Mar. 27, 2019), appeal dismissed pursuant to appellant’s motion, No. 19-50275, 2019 WL 4673234 (5th Cir. Aug. 15, 2019).

6 . The authors received only 12 cases through notification services from March through September 2020.

7 . There is also room here for the application of the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. Particularly important is the ability to order temporary urgent measures. Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children art. 11, Oct. 19, 1996, 35 I.L.M. 1391 (1996), https://assets.hcch.net/docs/f16ebd3d-f398-4891-bf47-110866e171d4.pdf. Unfortunately, the United States has not ratified this Convention. See Status Table, 34: Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, Hague Conf. on Priv. Int’l L. (last updated Oct. 29, 2020), https://www.hcch.net/en/instruments/conventions/status-table/?cid=70.

8 . Hague Abduction Convention, supra note 1, art. 8.

9 . However, there has been anecdotal evidence heard by the authors from some in the Hague that postal mail has been horrible since COVID-19.

10 . Hague Abduction Convention, supra note 1, arts. 8–9; United States of America—Central Authority, Hague Conf. on Priv. Int’l L., https://www.hcch.net/en/states/authorities/details3/?aid=133 (last updated Aug. 27, 2020); International Parental Child Abduction, U.S. Dep’t of State—Bureau of Consular Affairs, https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction.html (last visited Feb. 14, 2021).

11 . See Legal Information for Parents, U.S. Dep’t of State—Bureau of Consular Affairs, https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/abductions/legain-info-for-parents.html (last visited Feb. 14, 2021).

12 . 22 U.S.C. § 9003(a); see Using the U.S. Justice System, U.S. Dep’t of State—Bureau of Consular Affairs, https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/abductions/legain-info-for-parents/using-US-justice-system.html (last visited Feb. 14, 2021).

13 . See U.S. Dep’t of State—Bureau of Consular Affairs, https://travel.state.gov/content/travel.html (last visited Feb. 14, 2021).

14 . Passport Operations in Response to COVID-19, U.S. Dep’t of State—Bureau of Consular Affairs, https://travel.state.gov/content/travel/en/traveladvisories/ea/passport-covid-19.html (last visited Feb. 14, 2021); Suspension of Routine Visa Services, U.S. Dep’t of State—Bureau of Consular Affairs, https://travel.state.gov/content/travel/en/News/visas-news/suspension-of-routine-visa-services.html (last updated July 22, 2020).

15 . E-mail from Rebecca Chaplin, Australia’s Central Authority, to Robert G. Spector & Melissa A. Kucinski (Aug. 6, 2020) (on file with authors).

16 . Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163.

17 . See Steve Carrigan, COVID-19: ABC Legal Paused Process Service Nationwide, ABC Legal, https://www.abclegal.com/blog/suspending-process-service-corona-19 (updated July 13, 2020); International Service of Process Overview, ABC Legal, https://www.abclegal.com/international/service-of-process-overview (last visited Feb. 14, 2021).

18 . See, e.g., Barron v. Kendall, No. 20-cv-00648-AJB-KSC, 2020 WL 2521915, at *1 (S.D. Cal. May 18, 2020). In some cases, the procedure has gone as planned without any reference to court delays caused by COVID-19. See Forcelli v. Smith, No. 20-699 (JRT/HB), 2020 WL 5015838, at *6 (D. Minn. Aug. 25, 2020) (four-day Zoom hearing conducted in June 2020; petition and answer/counter petition were filed in March and April 2020); Trott v. Trott, No. 20-CV-1392 (AMD) (CLP), 2020 WL 4926336 (E.D.N.Y. Aug. 21, 2020) (granting petition filed on March 16, 2020, where factual issues had been decided by Bermuda court in 2019); Radu v. Shon, No. CV-20-00246-TUC-RM, 2020 WL 5576742, at *1 (D. Ariz. Sept. 17, 2020) (hearing held in July and August on petition filed in June 2020), stay issued pending appeal, 2020 WL 6741538 (D. Ariz. Nov. 17, 2020); Da Silva v. Vieira, No. 6:20-cv-1301-Orl-37GJK, 2020 WL 5652710, at *1, *2 (M.D. Fla. Sept. 23, 2020) (hearing held in August on petition filed in July 2020).

19 . No. 20-CV-00648-AJB-KSC, 2020 WL 2521915 (S.D. Cal. May 18, 2020).

20 . Id. at *1.

21 . Id.

22 . Id. at *2.

23 . Id.

24 . Id.

25 . Id. at *3.

26 . Id.

27 . See, e.g., Zoom Information and YouTube Support, Tex. Jud. Branch, https://www.txcourts.gov/court-coronavirus-information/electronic-hearings-zoom/ (last visited Feb. 15, 2021). See also Articles in this issue: Lynda B. Munro & Nicole M. Riel, Our Virtual Reality: Facing the Constitutional Dimensions of Virtual Family Court, 54 Fam. L.Q. 246 (2020); Elizabeth G. Thornburg, Observing Online Courts: Lessons from the Pandemic, 54 Fam. L.Q. 181 (2020).

28 . See email from Gary Caswell, Esq., to authors (June 14, 2020, 10:09 pm) (on file with authors) (“First time I never went to Court, never saw the Judge, and never had gotten essentially an Article 18 return with no trial!”).

29 . Guerra v. Rodas, No. CIV-20-96-SLP, 2020 WL 2858534, at *2 n.3 (W.D. Okla. June 2, 2020).

30 . Fed. R. Civ. P. 43(a); Guerra, 2020 WL 2858534, at *2 n.3.

31 . Guerra, 2020 WL 2858534, at *2 n.3.

32 . Id. See also Gil-Leyva v. Leslie, 780 F. App’x 580, 587–89 (10th Cir. 2019) (affirming use of Federal Rules of Civil Procedure Rule 43(a) in the context of a Hague proceeding, where there was good cause for the magistrate judge to allow the petitioner to testify remotely); Chambers v. Russell, No. 1:20CV498, 2020 WL 5044036, at *3 (M.D.N.C. Aug. 26, 2020) (the parties agreed, because of COVID-19, to hold the trial by videoconferencing).

33 . Guerra, 2020 WL 2858534, at *2 n.3.

34 . Id.

35 . See Bejarno v. Jimenez, No. 19-17524, 2020 WL 4188212, at *3 n.9 (D.N.J. July 21, 2020) (“[T]he Court was forced to adjourn the second day of hearings due to the COVID-19 pandemic, and then wait until the parties acquired adequate technology to conduct the remainder of proceedings by way of video conference.”), aff’d, 837 F. App’x 936 (3d Cir. 2021).

36 . See Permanent Bureau, Hague Conf. on Private Int’l L., Toolkit for the 1980 Child Abduction Convention in Times of COVID-19 (Oct. 6, 2020), https://assets.hcch.net/docs/2aee3e82-8524-4450-8c9a-97b250b00749.pdf. In some cases, it seems as though the trial took place without any delays or technical challenges related to COVID-19. See Zaoral v. Meza, No. H-20-1700, 2020 WL 5036521, at *1 (S.D. Tex. Aug. 26, 2020) (discussing findings based on August 2020 trial).

37 . 140 S. Ct. 719 (2020).

38 . Id. at 723, 726–30; see Ann Laquer Estin, Where Is the Child at Home? Determining Habitual Residence After Monasky, 54 Fam. L.Q. 127 (2020).

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

40 . Hague Abduction Convention, supra note 1, art. 13(a).

41 . See Djeric v. Djeric, No. 2:18-cv-1780, 2019 WL 1046893, at *5 (S.D. Ohio Mar. 5, 2019) (quoting Flores-Aldape v. Kamash, 202 F. Supp. 3d 793, 804 (N.D. Ohio 2016)).

42 . The United States, through presidential Proclamations, restricted entry to the United States of certain foreign nationals who had been in countries with high COVID-19 transmission rates. See, e.g., Proclamation No. 9984, 85 Fed. Reg. 6709 (Jan. 31, 2020); Proclamation No. 9993, 85 Fed. Reg. 15045 (Mar. 11, 2020). The United States and Mexico also issued a joint statement restricting nonessential travel between the countries. See Joint Statement on US-Mexico Joint Initiative to Combat the COVID-19 Pandemic, U.S. Dep’t of Homeland Sec. (Mar. 20, 2020), https://www.dhs.gov/news/2020/03/20/joint-statement-us-mexico-joint-initiative-combat-covid-19-pandemic. Travel was also restricted along the Canada-U.S. border, and the European Union also restricted U.S. citizens’ travel to the EU. See, e.g., Fact Sheet: DHS Measures on the Border to Limit the Further Spread of Coronavirus, U.S. Dep’t of Homeland Sec. (Oct. 19, 2020), https://www.dhs.gov/news/2020/10/19/fact-sheet-dhs-measures-border-limit-further-spread-coronavirus; COVID-19 Traveler Information, U.S. Dep’t of State—Bureau of Consular Affairs, https://travel.state.gov/content/travel/en/traveladvisories/ea/covid-19-information.html (last updated Jan. 25, 2021); COVID-19: Travel, Quarantine and Borders, Gov’t of Can., https://travel.gc.ca/travel-covid (last visited Feb. 15, 2021); Travel During the Coronavirus Pandemic, European Comm’n, https://ec.europa.eu/info/live-work-travel-eu/coronavirus-response/travel-during-coronavirus-pandemic_en (last visited Feb. 15, 2021).

43 . See 2020 Passenger Totals Drop 60 Percent as COVID-19 Assault on International Mobility Continues, Int’l Civ. Aviation Org. (Jan. 15, 2021), https://www.icao.int/Newsroom/Pages/2020-passenger-totals-drop-60-percent-as-COVID19-assault-on-international-mobility-continues.aspx.

44 . Hague Abduction Convention, supra note 1, art. 13(b).

45 . [2020] EWHC 834 (Fam)(UK), https://www.incadat.com/en/case/1460.

46 . Id. at 8, ¶ 29.

47 . Id. at 12–13, ¶ 47(3).

48 . Id. at 13, ¶ 47.

49 . Id. ¶ 49.

50 . Id.

51 . Id. at 14, ¶ 52.

52 . Hague Conf. on Priv. Int’l L., 1980 Child Abduction Convention Guide to Good Practice: Part VI – Article 13(1)(b), at 31 (2020), https://www.hcch.net/en/publications-and-studies/details4/?pid=6740.

53 . Id. at 34–35, 38–39.

54 . Hague Abduction Convention, supra note 1, art. 12.

55 . The one year runs from the time the removal or retention became wrongful until 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. Id.; see Monzon v. De La Roca, 910 F.3d 92, 96, 98–99 (3d Cir. 2018).

56 . Lopez Moreno v. Zank, 456 F. Supp. 3d 904, 909 (W.D. Mich. 2020); see also Palencia v. Perez, 921 F.3d 1333, 1342–43 (11th Cir.), cert. denied, 140 S. Ct. 533 (2019).

57 . See, e.g., Third Emergency Joint Order Regarding the COVID-19 State of Disaster, SCAD No. 2020-36, ¶ 5 (Okla. & Okla. Crim. App. Apr. 29, 2020), https://www.oscn.net/images/news/SCAD-2020-36.pdf (deadlines suspended from March 16 through May 15, 2020).

58 . 572 U.S. 1 (2014).

59 . Id. at 15.

60 . No. 1:20-CV-92-RP, 2020 WL 2086554 (W.D. Tex. Apr. 30, 2020), appeal dismissed, No. 20-50458, 2020 WL 7240010 (5th Cir. July 8, 2020).

61 . Id. at *8.

62 . Id. at *1. The court further indicated that it would “schedule status conferences as necessary to determine the precise date and the logistics of Y.E.G.’s return, involving the Mexican Consulate when appropriate and keeping in mind the need to ensure Y.E.G.’s return is both ‘prompt’ and ‘safe.’” Id. at *8.

63 . No. CIV-20-96-SLP, 2020 WL 2858534 (W.D. Okla. June 2, 2020).

64 . Id. at *7.

65 . Id.; cf. Sacchi v. Dervishi, No. 19-cv-06638-SK, 2020 WL 3618957, at *10 (N.D. Cal. July 2, 2020) (“If travel is allowed due to COVID-19 (Coronavirus Disease), Dervishi shall return the children to Milan, Italy within fourteen days of this Order. If Italy is not allowing flights in from the United States, Dervishi shall return the children within fourteen days of any travel restrictions being lifted.”).

66 . Guerra, 2020 WL 2858534, at *7.

67 . Id.

68 . See Permanent Bureau, supra note 36.

69 . See The International Hague Network of Judges, Hague Conf. on Priv. Int’l L., https://www.hcch.net/en/instruments/conventions/specialised-sections/child-abduction/ihnj (last visited Feb. 13. 2021).

70 . Hague Conf. on Priv. Int’l L., Guide to Good Practice Under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Mediation (2012), https://assets.hcch.net/docs/d09b5e94-64b4-4afe-8ee1-ab97c98daa33.pdf.

71 . Michael Coffee, Cross-Border Issues Associated with the Use of Online Dispute Resolution for International Family Law Matters, Fam. Ct. Rev. (forthcoming 2021).

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Robert G. Spector & Melissa A. Kucinski

Robert G. Spector is the Glenn R. Watson Chair and Centennial Professor of Law Emeritus at the University of Oklahoma Law Center. Melissa A. Kucinski is a private practice family lawyer and mediator in Washington, D.C.