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November 12, 2021 Feature

Proceedings Under the Hague Child Abduction Convention: 2020

By Robert G. Spector


Most U.S. international family law litigation involves the Hague Convention on the Civil Aspects of International Child Abduction (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 resolve a request for the return of a child under the Abduction Convention.3

The Abduction 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 or she was “actually exercis[ing]” (or would have exercised but for the abduction), under the law of the child’s habitual residence.4

I. Applicability of the Abduction Convention

The Abduction Convention only applies to countries that have ratified or acceded to it, and between countries that have accepted the accession of the other as a treaty partner.5 It ceases to apply when the child in question turns 16.6 A person who is not a blood-relative but has provided support and with whom the parental respondent and child live is a proper respondent in a return proceeding.7

II. The Child’s Habitual Residence

In the case of Pope v. Lunday,8 U.S. citizen parents residing in Brazil separated when the mother was five months pregnant. She traveled to the United States, and the children (twins) were born in Oklahoma.9 The father filed a return request under the Abduction Convention, but the court determined that a child cannot, short of unusual circumstances, be a habitual resident of a country where the child has never been physically located.10 Because the children were never in Brazil, were born in the United States, and were the children of U.S. citizens, the Abduction Convention did not apply.11

The Abduction Convention does not define the term “habitual residence.” Until this year, there were two major approaches in U.S. courts to determine a child’s habitual residence. The majority approach focused on the parents’ intent as set out in Mozes v. Mozes.12 However, the Sixth and Eighth Circuits rejected this test and gave more consideration to the child’s perspective, including where the child had spent a period of time sufficient to become “acclimatized.”13

The U.S. Supreme Court resolved this dichotomy in Monasky v. Taglieri.14 Monasky and Taglieri were married in the United States in 2011.15 Two years later, they relocated to Italy, where they both found work.16 The court noted: “[n]either then had definite plans to return to the United States.”17 When they first moved to Italy, they lived together for a year, but “the marriage soon deteriorated,” and Monasky alleged Taglieri was physically violent towards her.18 On March 31, 2015, not long after their daughter A.M.T.’s birth in February 2015 and following an intense argument with Taglieri, Monasky went to the Italian police with her daughter and “sought shelter in a safe house,” and then relocated to live with Monasky’s parents in Ohio.19 Taglieri successfully sought the child’s return.20 With the key issue focusing on the child’s habitual residence, the return order was affirmed by a panel of the Sixth Circuit and then by the circuit en banc.21 The U.S. Supreme Court granted certiorari to decide the appropriate test for determining the child’s habitual residence and to determine the appropriate standard of review in habitual residence cases.22

The U.S. Supreme Court unanimously concluded that a child’s habitual residence is a flexible fact-based determination that should focus on “[t]he place where a child is at home, at the time of removal or retention. . . .”23 This standard gives a trial judge significant deference, to be informed by “common sense” in reviewing the unique circumstances of the case in front of him or her. The U.S. Supreme Court gave little guidance on how best to weigh the different facts that will be presented to the trial judge but left that to the discretion of the judge, with the view that “[n]o single fact . . . is dispositive across all cases.”24 The bottom line: “There are no categorical requirements for establishing a child’s habitual residence—least of all an actual-agreement requirement for infants.”25

The court also determined that the standard of review for trial court determinations on habitual residence is “clear error.”26 This is a much more deferential standard of review than “de novo” review, which had been used by some appellate courts.27

Cases on review must be judged under the new standards set out by Monasky. Therefore, the Ninth Circuit affirmed a district court determination of habitual residence because “[t]he district court’s very thorough findings enable us to conclude that, under the totality of the circumstances, the children’s habitual residence was the United States.”28

In Schwartz v. Hinnendael,29 the court found that American citizens who lived in Mexico for five years were still habitual residents of the United States because they “appear[ed] to have lived as visitors, rather than individuals seeking to become citizens of Mexico. They did not immerse themselves in the culture and establish roots in [the] new country. Their only tie to Mexico, other than their appreciation of the vacation atmosphere in which they lived, was Mr. Schwartz’s job.”30

However, in Chambers v. Russell,31 the court seemingly distinguished Monasky, and applied its circuit’s long-standing approach to look at the parents’ shared intent and the child’s acclimatization.

III. Rights of Custody and Their Exercise

A. Rights of Custody

A removal or retention is only wrongful if the left-behind parent had a right of custody under the law of the child’s habitual residence and was “actually exercising” that right at the time of removal, or would have exercised that right but for the removal.32

In a return proceeding involving Honduras, the court examined the Honduran code to determine if the left-behind parent had a right of custody.33 It concluded that under Honduran law, “parental authority belongs to both parents jointly,” unless the court conferred parental authority on one parent or it was impossible for one parent to exercise authority.34 Therefore, the court concluded that the petitioner had a right of custody because there was no evidence otherwise.35

The Tenth Circuit noted that in Japan, parents can agree on a custodial arrangement that determines whether the left-behind parent will have a right of custody under Japanese law.36 Where the agreement specifically granted the mother “parental authority” giving her the right to determine the child’s residence, the father did not have a right of custody where he could not demonstrate that the language in the custody agreement gave him more than just rights of access.37

In Da Silva v. Vieira,38 the court held that the petitioner grandmother failed to show by a preponderance of the evidence that she had a right of custody, but the co-petitioner father had retained a right of ne exeat under Brazilian law.39

B. Exercise of the Right to Custody

Normally the question of a parent’s exercise of custody rights is not an issue in the case. The vast majority of cases follow the standard in Friedrich v. Friedrich,40 that absent a ruling from a court in the country of habitual residence, a parent is exercising his or her rights by maintaining any sort of regular contact with the child.41

IV. Exceptions to Return

There are a number of exceptions a respondent may assert against returning his or her child. Each exception must be timely asserted, and filing a general denial and waiting until opening statements to assert it may constitute a waiver.42

A. Child Is Settled in His or Her New Environment

Article 12 of the Abduction Convention provides that the authorities need not return a child if more than one year has elapsed since the child’s abduction and “the child is now settled in [the child’s] new environment.”43 The one-year period runs from the date the retention or removal became “wrongful.”44 A retention occurs not on the date the abducting parent formed the intent to wrongfully retain the child, but rather on the date the taking parent’s actions were “so unequivocal that [the left-behind parent] knew or should have known that [the child] would not be returned.”45

The factual findings used in determining the “now settled” defense are reviewed using the clear error standard. This exception can only be considered if the left-behind parent files his or her petition for return more than one year after the wrongful retention or removal.46 When the date of a wrongful retention is in dispute, this issue cannot be decided on summary judgment.47

In Da Silva v. Vieira,48 the court determined that the child was not settled in Florida, with the court relying on the fact that the mother and child overstayed their tourist visas and, despite having applied for asylum, their applications were not yet approved, “nor [was] there any indication their applications [were] meritorious.”49 The court found that “[b]eing subject to removal at any time contradicts being ‘settled’ no matter how pleasant their current living situation.”50

In Da Silva v. De Aredes,51 the appellate panel affirmed the district court’s determination that the child’s “resiliency and ability to form bonds in Brazil would not make her return to Brazil an event that ‘wrench[ed] [her] out of a well-settled position.’”52 In addition, “the district court properly considered the ‘unsettled character’ of the mother and children’s immigration status.53

B. Grave Risk of Harm/Intolerable Situation

1. Child Returned

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.”54 In determining whether to sustain the exception, 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 caused by its return.”55

In Saada v. Golan,56 the Second Circuit concluded that “unenforceable undertakings are generally disfavored, particularly when there is reason to question whether the petitioning parent will comply with the undertakings and there are no other ‘sufficient guarantees of performance.’”57 The court stressed that, on remand, the Eastern District of New York should look for enforceable measures to allow the child to return.58 After communicating with the Italian authorities and the Central Authority, the district court determined that Italian courts were “willing and able to resolve the parties’ multiple disputes, address the family’s history[,] and ensure [the child’s] safety and well-being.”59 After a second appeal, the Second Circuit, on October 28, 2020, affirmed the child’s return to Italy.60

In Valles Rubio v. Veintimilla Castro,61 testimony that the petitioner hit the child with a belt four times and with a stick once and other evidence, “although disturbing,” was insufficient to establish a “sustained pattern of physical abuse” or a “propensity for violent abuse” directed at the child or the mother.62 In addition, the court found that Ecuador could impose and enforce ameliorative measures to protect the child.63

Although a grave risk of harm to the child is required under Article 13(b), most courts recognize that sustained spousal abuse can, in some instances, create such a risk. Spousal abuse, one court said, is relevant for Article 13(b) purposes only if it “seriously endangers” the child.64 There is a difference between evidence of a “clear and long history of spousal abuse,” which could “suffice to show a propensity for child abuse,” and evidence of “isolated incidents of abuse,” which “generally demonstrate a risk of harm only to the spouse.” At a minimum, the spouse must “draw a connection” showing that the risk posed by the abuse to her “constitute[s] a grave risk to the children.”65

An appellate court will affirm unless the factual findings were made in clear error and there is an abuse of discretion. In Monroy v. de Mendoza,66 the court found that, although the respondent testified to abuse by petitioner and his father, her testimony did “not constitute clear-and-convincing evidence of a ‘grave’—‘not merely serious’—risk to” the child.67 Moreover, the court found that respondent’s testimony of the petitioner’s abuse of the child, “without substantiation,” did “not rise to the level of clear-and-convincing evidence. . . .”68

With regard to returning the child to an unsafe place, the court in Joya v. Gonzalez concluded that the respondent failed to prove that the father’s alleged participation in antigovernment groups in the habitual residence would endanger the child.69 The court determined the mother’s testimony standing alone was insufficient to prove her allegations.70

2. Child Not Returned

Circuits are now split over whether, upon a finding of a grave risk, the court must then assess whether protective measures exist in the habitual residence. The First Circuit in Díaz-Alarcón v. Flández-Marcel rejected the father’s arguments for returning to Chile with protective measures a child whom the district court determined had been sexually abused by her father and therefore faced a grave risk of harm.71 The court noted the father had the burden of proof and failed to address the “complexities” of the issue.72

In In re NIR, the trial judge denied the child’s return based on expert testimony that the petitioner was “statistically likely” to abuse the child and the petitioner’s threat to show the child “pornographic images” of the respondent.73 The appellate panel affirmed.74

C. Mature Child’s Objection

Under Article 13 of the Abduction Convention, a court may “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.”75 In applying this exception, the court must consider whether the child objects to being returned to his or her habitual residence and not whether the child has a preference as to his or her residence.76 This issue is subject to review under the clear error standard.77 In Jimenéz Blancarte v. Ponce Santamaria, where a 10-year-old child expressed a preference, the court concluded that the child’s testimony about “her school, friends, parents, and future success” was insufficient to meet the “particularized objections required under the [Abduction] Convention.”78

In Avendano v. Balza,79 the court determined, with the help of two experts, that the soon-to-be-12-year-old child was mature enough to express an objection to returning to Venezuela. The child was able to balance the positive and negative aspects of returning versus remaining in the United States.80 It also appeared that the child was not unduly influenced by the parent.81 In Zaoral v. Meza,82 the court returned a child who was almost age 16. At trial, she did not affirmatively “object” to a return to Venezuela.83 Instead, “she prefer[red] to remain in the United States because she would enjoy a better lifestyle here.”84 Her preference was “undercut by the credible evidence that Petitioner would provide [the child] with food, clothing, medical care, family support, and a good education in Venezuela.”85 In Forcelli v. Smith,86 the court returned a child to Germany over the child’s objections, saying, “[w]hile the Court cannot conclude that [the child] was coached, the particular idiomatic use of language and similar arguments calls into question whether [the child’s] preference to remain in the United States is her own, or whether it has been cemented by others.” Finally, in JCC v. LC,87 the judge declined to hear testimony of a 15-year-old who preferred to remain in the United States and her nine-year-old sister because “it would have been redundant, needlessly harmful to the Children, and potentially influenced by Respondent.”88

D. Human Rights and Fundamental Freedoms

Article 20 provides that the return of the child “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.”89 This exception was raised in two cases but rejected by the trial courts.90

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.”91 In Guerra v. Rodas,92 the respondent did not prove consent given the fact that not long after the child was taken from Guatemala, petitioner reported the removal to authorities and then pursued her rights under the Abduction Convention.93

It is the respondent’s burden to prove consent or acquiescence.94 When the only evidence of consent was a letter signed by the petitioner mother’s and her testimony that she signed it under duress, the district court erred in requiring the mother to prove duress by a preponderance of the evidence.95

Finally, because it was clear that, at the time of removal, a father did not agree to an indefinite relocation of his children to California, the mother failed to demonstrate his consent by a preponderance of the evidence.96

F. Other Attempted Exceptions

The “unclean hands” doctrine is not available in return proceedings under the Abduction Convention.97

G. Recognition of Foreign Hague Proceedings

A Minnesota appellate court held that it need not give comity to a Japanese decision declining to return a child to the United States because the Japanese court contravened “a fundamental purpose of the [Abduction] Convention—to ensure the prompt return of the children—and undermined the Hague Convention’s forum-selection mechanism by allowing [the] mother to wait for changed circumstances that were advantageous to her goal of keeping the children in Japan.”98 The Japanese court modified a prior order requiring the mother to return the children to the United States based on a change in the father’s financial situation after the mother had resisted enforcement of the prior order for more than a year.99 A New York federal court gave comity to a return proceeding in Bermuda.100 Finally, a U.S. federal court did not need to give res judicata effect to a prior Thai custody decision because the Thai court had not decided its case under the Abduction Convention.101

V. Other Issues Under the Abduction Convention

A. Attorney Fees

Under ICARA, attorney fees and costs are to be awarded to the prevailing petitioner unless the respondent demonstrates that the award would be “clearly inappropriate.”102 District courts have broad discretion to determine when a fee award is appropriate.103 The “clearly inappropriate” inquiry is dependent on the facts of each case. However, courts often rely on the following two considerations to determine whether to grant fees: “whether a fee award would . . . significantly impair the respondent’s ability to care for the child” and “whether a respondent had a good faith belief that [his or] her actions . . . were legal or justified.”104 In at least one recent case, the court awarded no fees because it was clear that the respondent father and grandmother could not pay them.105 In another case, the court determined that the parties’ financial situation was not so disparate as to deny fees, although the court noted it would only award fees and costs “reasonably incurred” and reduced the award from the amount sought.106 Courts consider the degree to which the petitioner contributed to the circumstances giving rise to the fees. Thus, in Jimenéz Blancarte v. Ponce Santamaria, the court found that “[p]etitioner’s history of abuse,” causing respondent to flee Mexico with the children, “render[ed] any award of costs and fees clearly inappropriate.”107

Nothing in ICARA permits fees to be awarded to a prevailing respondent.108

B. Stays

The 2020 pandemic created a situation where courts stayed their return orders either because international travel was unsafe109 or countries were limiting or prohibiting entry.110

C. Temporary Restraining Orders

A petitioner seeking a temporary restraining order or 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.”111 Normally such an order will be granted when it is clear that the respondent is likely to leave the jurisdiction with the children.112

D. Other Procedural Issues

It is usually not 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 may be proper if the state proceeding will decide all the issues in the Abduction Convention case using the Abduction Convention.113

A federal court has the authority to allow the left-behind parent to testify remotely.114 When a petitioner refuses to comply with discovery, does not attend required proceedings, and will not comply with the trial court’s orders, dismissal with prejudice is appropriate.115 Courts normally take judicial notice of foreign law without requiring authentication.116 The court in its discretion allowed expert testimony concerning conditions in Guatemala even though the respondent failed to follow civil procedure disclosure requirements with regards to the expert’s testimony; some considerations included the difficulty of the case, the conditions under which the expert was testifying, and the need for haste.117

Normally post-trial developments will not change the results of a removal proceeding.118


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 Abduction Convention].

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

3. Id. § 9003(a).

4. Abduction Convention arts. 3, 12. As is often noted, the law of the Abduction Convention is relatively straightforward, but the facts can be complicated. See, e.g., 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).

5. Alikovna v. Viktorovich, No. 19-CV-23408-BLOOM, 2019 WL 4038521, at *2 (S.D. Fla. Aug. 27, 2019).

6. Abduction Convention art. 4; Newell v. Demoss, No. 1:18-CV-114-PLR-CHS, 2018 WL 4495022, at *2 (E.D. Tenn. Aug. 10, 2018), report and recommendation adopted, 2018 WL 4494098 (E.D. Tenn. Sept. 19, 2018).

7. Jacquety v. Baptista, No. 19 Civ. 9642 (VM), 2020 WL 5946562, at *5–6 (S.D.N.Y. Oct. 7, 2020).

8. Pope ex rel. T.H.L-P v. Lunday, No. CIV-19-01122-PRW, 2019 WL 7116115 (W.D. Okla. Dec. 23, 2019), aff’d, 835 F. App’x 968 (10th Cir. 2020).

9. Id. at *1, *4.

10. Id. at *4–5.

11. Id.

12. 239 F.3d 1067, 1078–82 (9th Cir. 2001).

13. See, e.g., Robert v. Tesson, 507 F.3d 981, 993 (6th Cir. 2007); Cohen v. Cohen, 858 F.3d 1150, 1153 (8th Cir. 2017).

14. 140 S. Ct. 719 (2020); see Ann L. Estin, Recent Developments in Family Law: Where Is the Child at Home? Determining Habitual Residence After Monasky, 54 Fam. L.Q. 127, 129 (2020).

15. Monasky, 140 S. Ct. at 723.

16. Id. at 724.

17. Id.

18. Id.

19. Id.

20. Id.

21. Id. at 725.

22. Id. at 725–26.

23. Id. at 726.

24. Id. at 727.

25. Id. at 728.

26. Id. at 723.

27. Id. at 726, 730.

28. Farr v. Kendrick, 824 F. App’x 480, 481 (9th Cir. 2020); see also Smith v. Smith, 976 F.3d 558 (5th Cir. 2020); Forcelli v. Smith, No. CV 20-699, 2020 WL 5015838 (D. Minn. Aug. 25, 2020).

29. No. 20-C-1028, 2020 WL 6111634 (E.D. Wis. Oct. 16, 2020).

30. Id. at *3.

31. No. 1:20CV498, 2020 WL 5044036, at *5 (M.D.N.C. Aug. 26, 2020).

32. Abduction Convention art. 3.

33. Bardales v. Lamothe, 423 F. Supp. 3d 459, 466 (M.D. Tenn. 2019).

34. Id. at 466–67.

35. Id. at 467; see also Orellana Joya v. Munguia Gonzales, No. CV 20-236, 2020 WL 1181846, at *6 (E.D. La. Mar. 12, 2020) (in the absence of a custody decree or inability of a parent to exercise custody rights, Honduran parents both have patria potestas rights and therefore a right of custody).

36. Ogawa v. Kang, 946 F.3d 1176, 1177, 1182 (10th Cir. 2020).

37. Id. at 1179–82.

38. No. 6:20-CV-1301-ORL-37GJK, 2020 WL 5652710 (M.D. Fla. Sept. 23, 2020).

39. Id. at *4. “A ne exeat right is ‘the authority to consent before the other parent may take the child to another country.’” Id. (citation omitted).

40. 78 F.3d 1060, 1065–66 (6th Cir. 1996).

41. For a recent case, see Lopez v. Bamaca, 455 F. Supp. 3d 76, 82 (D. Del. 2020).

42. Leon v. Ruiz, No. MO:19-CV-00293-RCG, 2020 WL 1227312, at *6 (W.D. Tex. Mar. 13, 2020).

43. Abduction Convention art. 12.

44. 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. Monzon v. De La Roca, 910 F.3d 92, 98–99 (3d Cir. 2018).

45. 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. 2019).

46. Malmgren v. Malmgren, 747 F. App’x 945, 946 (4th Cir. 2019); see also Chambers v. Russell, No: 1:20CV498, 2020 WL 5044036, at *9–10 (M.D.N.C. Aug. 26, 2020).

47. Capalungan v. Lee, No. 2:18-cv-1276, 2019 WL 1330711, at *5 (S.D. Ohio Mar. 25, 2019).

48. No. 6:20-cv-1301-Orl-37GJK, 2020 WL 5652710 (M.D. Fla. Sept. 23, 2020).

49. Id. at *5.

50. Id.

51. 953 F.3d 67 (1st Cir. 2020).

52. Id. at 75.

53. Id. But see Bejarno v. Jimenez, No. 19-17524, 2020 WL 4188212, at *10–11 (D.N.J. July 21, 2020) (the court determined that a six-year-old child was well-settled in the United States and therefore would not be returned to Honduras notwithstanding uncertainty as to the child’s and parent’s immigration status), aff’d, 837 F. App’x 936 (3d Cir. 2021).

54. Abduction Convention art. 13(b).

55. Simcox v. Simcox, 511 F.3d 594, 608 (6th Cir. 2007); see Valles Rubio v. Veintimilla Castro, 813 F. App’x 619, 621–22 (2d Cir. 2020) (evidence showed proceeding in Ecuador would be capable of protecting the child).

56. 930 F.3d 533 (2d Cir. 2019).

57. Id. at 540 (citations omitted).

58. Id. at 541–42.

59. Saada v. Golan, No: 1:18-CV-5292 (AMD) (SMG), 2020 WL 2128867, at *1 (E.D.N.Y. May 5, 2020), aff’d, 833 F. App’x 829 (2d Cir. 2020).

60. Saada v. Golan, 833 F. App’x 829 (2d Cir. 2020).

61. No. 19-CV-2524(KAM)(ST), 2019 WL 5189011 (E.D.N.Y. Oct. 15, 2019), aff’d, 813 F. App’x 619 (2020).

62. Id. at *24–25.

63. Id. at *30–32. For another case that did not recognize a 13(b) defense, see LaSalle v. Adams, No. CV-19-04976-PHX-DWL, 2019 WL 6135127, at *9 (D. Ariz. Dec. 19, 2019) (trial court found that husband did “not come close to” establishing a grave risk defense).

64. Gil-Leyva v. Leslie, 780 F. App’x 580, 590 (10th Cir. 2019).

65. Id. at 590 (“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.’”) (citations omitted); see also da Silva v. de Aredes, 953 F.3d 67, 73–74 (1st Cir. 2020); Gallegos v. Garcia Soto, No. 1:20-CV-92-RP, 2020 WL 2086554, at *3–4 (W.D. Tex. Apr. 30, 2020), appeal dismissed for want of prosecution, No. 20-50458, 2020 WL 7240010 (5th Cir. July 8, 2020).

66. No. 3:19-CV-1656-B, 2019 WL 5204832 (N.D. Tex. Oct. 16, 2019), vacated in part on other grounds, 2019 WL 9047217 (N.D. Tex. Nov. 4, 2019).

67. Id. at *2.

68. Id.; see also Hart v. Anderson, 425 F. Supp. 3d 545, 571 (D. Md. 2019). In Ajami v. Solano, No. 3:19-cv-00161, 2020 WL 996813, at *17 (M.D. Tenn. Feb. 28, 2020), the court found that one instance of domestic abuse did not present a grave risk of harm, particularly when the respondent failed to prove that there was any risk of future harm to the children should they be returned to Venezuela. The same was true in Jimenéz Blancarte v. Ponce Santamaria, No. 19-13189, 2020 WL 38932, at *4, *6 (E.D. Mich. Jan. 3, 2020), where there was some abuse to the wife, but the children had not been exposed to it, the children were not afraid of the father, and the children only learned of the father’s mistreatment of the mother through the mother.

69. Orellana Joya v. Munguia Gonzales, No. CV 20-236, 2020 WL 1181846, at *9 (E.D. La. Mar. 12, 2020).

70. Id.; see also Colon v. Mejia Montufar, 470 F. Supp. 3d 1280, 1294 (S.D. Fla. 2020) (evidence of “gangs” threatening the child was not sufficient to sustain defense).

71. 944 F.3d 303, 313–15 (1st Cir. 2019).

72. Id. at 314–15.

73. 797 F. App’x 23, 26 (2d Cir. 2019).

74. Id.

75. Abduction Convention art. 13.

76. Jimenéz Blancarte v. Ponce Santamaria, No. 19-13189, 2020 WL 38932, at *7 (E.D. Mich. Jan. 3, 2020).

77. Custodio v. Samillan, 842 F.3d 1084, 1089 (8th Cir. 2016).

78. Jimenéz Blancarte, 2020 WL 38932, at *7.

79. 442 F. Supp. 3d 417, 424, 429–30 (D. Mass. 2020), aff’d, 985 F.3d 8 (1st Cir. 2021).

80. Id. at 429.

81. Id. at 430; see also Colon v. Mejia Montufar, 470 F. Supp. 3d 1280, 1296 (S.D. Fla. 2020) (12-year-old mature enough to object to being returned to Guatemala).

82. No. CV H-20-1700, 2020 WL 5036521, at *14 (S.D. Tex. Aug. 26, 2020), appeal dismissed for want of prosecution, No. 20-20506, 2021 WL 1311116 (5th Cir. 2021).

83. Id.

84. Id.

85. Id.

86. No. CV 20-699 (JRT/HB), 2020 WL 5015838, at *10 (D. Minn. Aug. 25, 2020).

87. No. CV1921889SDWLDW, 2020 WL 6375789 (D.N.J. Oct. 30, 2020).

88. Id. at *5.

89. Abduction Convention art. 20.

90. Monroy v. de Mendoza, No. 3:19-CV-1656-B, 2019 WL 5204832, at *2 (N.D. Tex. Oct. 16, 2019), vacated in part on other grounds, 2019 WL 9047217 (N.D. Tex. Nov. 4, 2019); Gallegos v. Garcia Soto, No. 1:20-CV-92-RP, 2020 WL 2086554, at *8 (W.D. Tex. Apr. 30, 2020), appeal dismissed for want of prosecution, No. 20-50458, 2020 WL 7240010 (5th Cir. July 8, 2020).

91. Diagne v. Demartino, No. 2:18-CV-11793, 2018 WL 4385659, at *8 (E.D. Mich. Sept. 14, 2018) (citation omitted), appeal dismissed, No. 18-2128, 2019 WL 1620805 (6th Cir. Apr. 1, 2019); see also Djeric v. Djeric, No. 2:18-cv-1780, 2019 WL 1046893, at *5 (S.D. Ohio Mar. 5, 2019).

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

93. Id. at *4.

94. Id.

95. Berenguela-Alvarado v. Castanos, 950 F.3d 1352, 1356, 1360–62 (11th Cir. 2020). On remand the trial court ruled in the petitioner’s favor. Berenguela-Alvarado v. Castanos, No. 19-22689-CIV, 2020 WL 10055693, at *5 (S.D. Fla. Apr. 21, 2020), aff’d, 820 F. App’x 870 (11th Cir. 2020). In a subsequent appeal, the respondent argued the court did not apply the Monasky decision. The Eleventh Circuit rejected this argument and determined that the trial court applied a totality of the circumstances test. Berenguela-Alvarado v. Castanos, 820 F. App’x 870, 873–74 (11th Cir. 2020).

96. Sacchi v. Dervishi, No. 19-CV-06638-SK, 2020 WL 3618957, at *10 (N.D. Cal. July 2, 2020).

97. LaSalle v. Adams, No. CV-19-04976-PHX-DWL, 2019 WL 6135127, at *7 (D. Ariz. Nov. 19, 2019); Rodriguez Palomo v. Howard, 426 F. Supp. 3d 160, 178 (M.D.N.C. 2019), aff’d, 812 F. App’x 155 (4th Cir. 2020).

98. Cook v. Arimitsu, No. A19-1235, 2020 WL 1983223, at *4 (Minn. Ct. App. Apr. 27, 2020) (emphasis in original), review denied (Minn. July 23, 2020), cert. denied, 141 S. Ct. 1514 (2021).

99. Id. at *4–5.

100. Trott v. Trott, No. 20-CV-1392 (AMD)(CLP), 2020 WL 4926336, at *5 (E.D.N.Y. Aug. 21, 2020).

101. Pawananun v. Pettit, No. 1:20CV1081, 2020 WL 4462255, at *3 (N.D. Ohio Aug. 8, 2020).

102. 22 U.S.C. § 9007(b)(3). This may also include expenses and fees incurred when the original order for fees has to be defended on appeal. Sundberg v. Bailey, No. 1:17-CV-00300-MR-DLH, 2019 WL 2550541 (W.D.N.C. June 19, 2019).

103. West v. Dobrev, 735 F.3d 921, 932 (10th Cir. 2013); Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir. 2004); Nissim v. Kirsh, No. 1:18-cv-11520, 2020 WL 3496988 (S.D.N.Y. June 29, 2020). When the abducting parent made no response to the fee application and it appeared that the petitioner’s law firm already reduced the amount by 30%, the trial court found no reason to further reduce the amount of the fees. Orellana Joya v. Munguia Gonzales, No. CV 20-236, 2020 WL 1904010 (E.D. La. Apr. 17, 2020); see also Beard v. Beard, No. 4:19-cv-00356-JAJ, 2020 WL 4548253, at *1 (S.D. Iowa June 19, 2020) (case for fees was undefended; amount requested granted).

104. Cocom v. Timofeev, No. 2:18-cv-002247-DCN, 2019 WL 5964634, at *2 (D.S.C. Nov. 13, 2019) (citation omitted).

105. Id. at *3; see also LaSalle v. Adams, No. CV-19-04976-PHX-DWL, 2019 WL 6135127, at *11 (D. Ariz. Nov. 19, 2019) (awarding only some of mother’s costs because of father’s financial status and reasons for taking the children).

106. Wtulich v. Filipkowska, No. 16-CV-2941 (JO), 2020 WL 1433877, at *1–2 (E.D.N.Y. Mar. 24, 2020).

107. No. 19-13189, 2020 WL 428357, at *1 (E.D. Mich. Jan. 28, 2020); cf. Rosasen v. Rosasen, No. CV 19-10742-JFW (AFMx), 2020 WL 4353679, at *4 (C.D. Cal. June 5, 2020) (respondent’s actions were responsible for causing most of the attorney fees and therefore petitioner’s application was granted).

108. Stone v. Stone, No. 19-17962, 2020 WL 491194, at *1 (D.N.J. Jan. 30, 2020).

109. Gallegos v. Garcia Soto, No. 1:20-CV-92-RP, 2020 WL 2086554, at *8 (W.D. Tex. Apr. 30, 2020), appeal dismissed for want of prosecution, No. 20-50458, 2020 WL 7240010 (5th Cir. July 8, 2020).

110. Guerra v. Rodas, No. CIV-20-96-SLP, 2020 WL 2858534, at *7 (W.D. Okla. June 2, 2020); Sacchi v. Dervishi, No. 19-cv-06638-SK, 2020 WL 3618957, at *10 (N.D. Cal. July 2, 2020). See generally Robert G. Spector & Melissa A. Kucinski, The Effect of COVID-19 on International Child Abduction Cases, 54 Fam. L.Q. 268 (2020).

111. Muwakil-Zakuri v. Zakuri, No. 17-CV-2062, 2017 WL 6453399, at *1 (D. Conn. 2017) (citation omitted); Hodge v. Hughes, No. 18-cv-21571-SCOLA, 2018 WL 2688800, at *1 (S.D. Fla. Apr. 23, 2018); Cocom v. Timofeev, 2018 WL 3958129, at *2 (enjoining the father and his mother from removing the child).

112. E.g., Jimenéz Blancarte v. Ponce Santamaria, No. 19-13189, 2020 WL 38932, at *1 (E.D. Mich. Jan. 3, 2020); Sandoval Quintana v. Quintana Dolores, No. 3:19-cv-00730-MMD-WGC, 2019 WL 6790654, at *4 (D. Nev. Dec. 12, 2019).

113. See Barron v. Kendall, No. 20-cv-00648-AJB-KSC, 2020 WL 2521915, at *4–6 (S.D. Cal. May 18, 2020) (where state court had scheduled a hearing on the Abduction Convention petition, abstention was proper even if the state court hearing had been postponed due to COVID-19 concerns); Cordoba v. Mullins, No. 20 C 2721, 2020 WL 3429771, at *4 (N.D. Ill. June 23, 2020) (abstention was proper when the same issues were presented to the state court judge).

114. Guerra v. Rodas, No. CIV-20-96-SLP, 2020 WL 2858534, at *2 n.3 (W.D. Okla. June 2, 2020); see Spector & Kucinski, supra note 110, at 272–73.

115. Teller v. Hellbrans, No. 19-CV-3172-SJB, 2019 WL 5842649, at *6 (E.D.N.Y. Nov. 7, 2019), appeal dismissed (2d Cir. Feb. 7, 2020).

116. Nunez Bardales v. Lamothe, 423 F. Supp. 3d 459, 465 (M.D. Tenn. 2019).

117. Foster v. Foster, No. 19-cv-656-wmc, 2019 WL 6255215, at *2 (W.D. Wis. Nov. 22, 2019); see also Schwartz v. Hinnendael, No. 20-C-1028, 2020 WL 5946998, at *1 (E.D. Wis. Oct. 7, 2020) (petitioner’s statement that he “reserve[d] the right to call additional witnesses for rebuttal purposes” and subsequent identification of the witness was sufficient to notify respondent of the rebuttal witness).

118. Wtulich v. Filipkowska, No. 16-CV-2941 (JO), 2019 WL 2869056, at *2–3 (E.D.N.Y. July 3, 2019).

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By Robert G. Spector

Robert G. Spector is the Glenn R. Watson Chair and Centennial Professor of Law Emeritus at the University of Oklahoma Law Center.