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August 29, 2022 Feature

Review of Hague Cases: 2021

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 Federal and state courts have concurrent jurisdiction to decide on 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 The respondent in the case need not claim parental rights. For example, the respondent could be a partner of a parent.6 The Convention ceases to apply when the child in question turns 16.7

II. Habitual Residence of the Child

As in most Hague conventions, the Abduction Convention does not define the term “habitual residence.”8 The U.S. Supreme Court resolved a circuit split concerning this term in Monasky v. Taglieri,9 holding that “a child’s habitual residence depends on the totality of the circumstances specific to the case.”10 The Court noted that “[b]ecause children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are relevant considerations.”11 However, the Supreme Court made clear that “[t]here are no categorical requirements for establishing a child’s habitual residence—least of all an actual-agreement requirement for infants.”12

In J.C.C. v. L.C.,13 the court found that the petitioner father established by a preponderance of the evidence that both he and the respondent mother “intended for El Salvador to be the [c]hildren’s permanent residence prior to their retention in the United States.”14 “Respondent’s decision to retain the [c]hildren past January 21, 2019, was unilateral, as evidenced by [p]etitioner’s continuous attempts to exercise his parental rights at the time of retention and since then.”15

In Stirk v. Lopez,16 although the five-year-old child was born in Florida, the parents raised the child in Juarez and established Juarez as the child’s “permanent home.”17 The child remained in Florida for less than a year and otherwise lived in Mexico, where she attended school; she “enjoyed a close relationship with family in Mexico, and participated in the usual social activity in Juarez.”18 After the mother unilaterally brought the child to Florida, the Florida district court found the child was habitually resident in Mexico and granted the father’s petition for the child to be returned.19

In Smith v. Smith,20 the court determined under the Monasky standard that the child’s habitual residence was in the United States and, in any event, there was no need to remand the case because of the extensive fact finding of the district court.21

In Babcock v. Babcock,22 the court determined that “[a]lthough [the child] had many friends in [Iowa] and a close relationship with his extended family there, Canada remained his country of habitual residence because there was no clear intent by the parties or the child to abandon Canada as the child’s habitual residence.”23 In Sain ex rel. V.R.S. v. Sain,24 the court determined that a stay in the United Kingdom was meant to be temporary as the father and children could not return to China due to the COVID-19 pandemic.25 Therefore, the children’s habitual residence did not change from China to the United Kingdom.26

Finally, in Dumitrascu v. Dumitrascu,27 while the parties’ original intent was to stay in Romania only for a limited amount of time, their plans changed as shown by the petitioner’s consent for the respondent to take the child to the United States for only six months.28 Also, the “petitioner testified that she believed that it was not possible for her to apply for a green card from Romania and that [the] respondent sponsored her first green card from Colorado, which explain[ed] why she made her permission for [the] respondent to remove [the child] from Romania conditional. . . .”29

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 exercis[ing]” that right at the time of removal, or would have exercised that right, but for the removal.30

In Lukic v. Elezovic,31 the court reaffirmed that ne exeat rights constitute a right of custody and therefore justified sending the child back to Montenegro.32 In Stirk v. Lopez,33 the parties’ settlement agreement preserved the father’s patria potestad rights, which include a right of custody.34

B. Exercise of the Right to Custody

Normally, the question of exercise of custody rights is not an issue in the case. The vast majority of cases follow the determination made in Friedrich v. Friedrich35 that “[t]he 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.”36

C. Wrongful Retention

In Babcock v. Babcock,37 the court determined that a wrongful retention occurs when “the noncustodial parent no longer consents to the child’s continued habitation with the custodial parent and instead seeks to reassert custody rights, as clearly and unequivocally communicated through words, actions, or some combination thereof.”38

IV. Defenses

There are a number of defenses that a respondent may assert in arguing that a child should not be returned to the child’s habitual residence. However, the defenses must be timely asserted, and filing a general denial and waiting until opening statements to assert the defense may constitute a waiver.39

A. Child Is Settled in His or 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.”40 The one-year period runs from the date the retention or removal became “wrongful.”41 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.”42

In Luis Alfonso V.H. v. Banessa Cristina A.Z.,43 the court noted that the father had failed to file the action within one year and the court would not exercise its discretion to return the child.44 The factual findings used in determining the “now settled” defense are reviewed under the clear error standard.45

1. Child Not Returned

In de Jesus Joya Rubio v. Alvarez,46 the court found that a child was well-settled when the father filed his Hague petition fifteen months after the child was removed to the United States.47 The fact that the father pursued other legal proceedings did not mitigate his failure to file in time.48

2. Child Returned

In De Carvalho v. Carvalho Pereira,49 the trial court “discussed the evidence presented about the children’s lives in their various residences in the United States, their relatives in both the United States and Brazil, and lack of ties to the community due to their young ages,” and concluded the children were not well-settled in the United States.50 The possibility that the appellate panel “could have ‘gone the other way had it been [their] call’” did “not constitute a clear error of judgment by the trial court.”51

B. Grave Risk of Harm/Intolerable Situation

1. Defense Not Sustained

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.”52 Such a defense generally cannot be decided on a motion to dismiss but requires an evidentiary hearing.53 In determining whether to sustain the defense, some courts have considered “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.”54 In 2021, the question of whether courts must consider “ameliorative measures” after finding a grave risk of harm was pending before the Supreme Court.55 In Rishmawy v. Vergara,56 the respondents failed to prove by clear and convincing evidence that there was a grave risk in returning the child to Honduras.57

In J.C.C. v. L.C.,58 the trial court found that the respondent’s abuse allegations were “undercut by her own testimony that she agreed to [the] [p]etitioner’s primary physical custody of the [c]hildren after the parties divorced and sole physical custody after she moved to the United States.”59 They were “also contradicted by her testimony that she allowed [the] [p]etitioner to spend extended time alone with the [c]hildren after she retained them. . . .”60

In Pozniak v. Shwartsman,61 the court found that “the respondent’s grave risk argument rest[ed] on a faulty premise: that ordering [the child’s] return to Israel require[d] that he be separated from the respondent.”62 There was “no evidence that the respondent could not travel to Israel with [the child], or that returning [the child] to Israel would interfere with the respondent’s custody rights.”63 In Uribe v. Luque,64 the court noted that, at most, the respondent harbored “an amorphous and uncorroborated suspicion that [the petitioner] exposes [the child] to unwholesome influences and fosters unwanted behavior more characteristic of an older child.”65 “Even if true, [the petitioner’s ] conduct [fell] well short of the evidence needed to ‘clearly and convincingly’ prove that complying with the dissolution agreement would expose [the child] to a ‘grave risk’ of harm.”66

Although grave risk to the child is required under 13(b), courts have recognized that “sustained spousal abuse can, in some instances, create [a grave] risk.”67 The Tenth Circuit said “spousal abuse is relevant for Article 13(b) purposes only if it ‘seriously endangers’ the child.”68 There is a difference between “‘[e]vidence 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.’”69 “[A]t 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.’”70 Spousal abuse allegations were not found sufficient to establish a grave risk in Velozny ex rel. R.V. v. Velozny,71 where the incidents were “sporadic and isolated” and the respondent did not allege that the petitioner had physically abused the children.72 Furthermore, the children did not report to the parties’ expert witnesses that they had been abused by the petitioner.73 Additionally, the respondent did not show “that an Israeli court could not provide adequate protection for the children during any divorce or custody proceedings.”74

2. Defense Sustained

In In re M.V.U.,75 a grave risk of harm to the child was found where the evidence and testimony established “a pattern of escalating violence” and “a pattern of interference with [the respondent’s] personal liberty,” which impacted the child’s psychological well-being.76 The respondent showed that the petitioner threatened her to prevent her from working outside the home as a teacher, interfering with her personal liberty.77 A “pattern of escalating domestic abuse” was established by evidence that the petitioner demanded that the respondent obtain an abortion, choked the respondent while she held the child in her arms, and repeatedly threatened the respondent.78

In Sanchez v. Sanchez,79 “credible evidence before the Court regarding past (and possible future) sexual abuse of [the child], including unrebutted expert testimony and [p]etitioner’s own testimony . . . prove[d] the existence (clearly and convincingly) of ‘a grave risk that [the child’s] return [to Honduras] would expose [her] to . . . psychological harm.’”80

In Jacquety v. Baptista,81 the respondent proved by clear and convincing evidence that the child would face a grave risk of harm if the court granted the petitioner’s request that the child be returned to Morocco.82 An expert determined that the child suffered from PTSD because of the petitioner’s domestic violence toward the respondent.83 The expert predicted that if the child returned to Morocco, her “PTSD symptoms would increase and her developmental functioning would regress.”84

A split developed among courts considering the defense regarding whether the court must look to see if the abducted-from country has laws and practices in place that would protect the child from the alleged abuse, and in 2021 this issue was before the U.S. Supreme Court.85 In In re Emilie D.L.M. & Carlos C.,86 the father failed to acknowledge that he had a drinking and abuse problem, and thus no measures from Chile could serve as effective ameliorative measures that would protect the children.87 In Radu v. Shon,88 because the respondent wrongfully removed the children, the district court did not exceed its authority in ordering that the children return to Germany with temporary custody to the respondent pending a decision by a German court.89 However, “in the context of an Article 13(b) finding, the district court needed a fuller record to have sufficient guarantees that the alternative remedy [would] be enforced in Germany.”90 The circuit court sent the case back to the district court to develop a fuller record on the availability of a safe harbor order.91

The issue of whether the court can order a mental health examination of a return proceeding petitioner was discussed in Ilves v. Ilves.92 The court refused to order the examination because the respondent did not allege any specific history of mental illness, or explain why a psychological examination would be likely to show that the petitioner engaged in physical or mental abuse.93

C. Mature Child’s Objection

In applying this defense, the court must consider whether the child objects to being returned to the country of the child’s habitual residence and not whether the child has a preference to live in one country. This issue is subject to review under the clear error standard.94 In Avendano v. Balza,95 the appellate panel affirmed a trial court’s discretion to allow the child’s express preference to stay in the United States. The child was 12 years old and appeared not to be coached and indicated a well-thought-out preference to stay in the United States.96

On the other hand, the court in Chung Chui Wan v. Debolt97 agreed with the guardian ad litem and the experts that the 10-year-old child had not reached an age and maturity to express a preference.98

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.”99 The defense was raised in Chung Chui Wan v. Debolt, where the respondent objected to the children being returned to Hong Kong, but the trial court dismissed it out of hand.100

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.”101 In rare instances, cases involving consent or acquiescence can be decided on summary judgment.102

In Pozniak v. Shwartsman,103 the court determined that the respondent did not consent to the child’s removal to the United States or show that the petitioner had acquiesced to the move.104 There was no evidence of a “‘formal statement’ of the petitioner’s agreement” or of a “consistent attitude of acquiescence over a significant period of time. . . .”105 “On the contrary, the persuasive evidence—the petitioner’s repeated requests that the respondent return [the child] to Israel” and statements made by the respondent—“show[ed] that there was neither consent nor acquiescence.”106

In Alvarez Romero v. Bahamonde,107 the court determined that the petitioner “effectively consent[ed] to the children remaining in the United States with [the] [r]espondent when he went back to Chile, leaving [the] [r]espondent and the children in the United States, and taking the children’s passports.”108

F. Other Attempted Defenses

The “unclean hands” doctrine is not available in return proceedings under the Abduction Convention.109

V. Other Issues Under the Child Abduction Convention and ICARA

A. Attorney Fees

The court does have the authority to request that an attorney volunteer to represent the petitioner in a Hague return action.110

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.”111 Generally, most circuit courts hold that district courts have the broad discretion to determine when an award of attorney costs and fees is appropriate.112 The “clearly inappropriate” inquiry “is necessarily dependent on the facts of each case. . . .”113 However, “the following two considerations are often relied upon in determining whether to grant fees and costs under ICARA—‘whether a fee award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child . . . [and] whether a respondent had a good faith belief that her actions in removing or retaining a child were legal or justified.’”114 In Forcelli v. Smith,115 the court reduced the amount requested “based on equitable considerations,” including that “the determination of habitual residence was a close question,” that there “continue[d] to be reprehensible conduct” on both sides of the case, the ability of the respondent to pay, and the fact that the petitioner’s lawyer incurred much greater fees than the respondent’s lawyer.116 In Hart v. Anderson,117 the court denied an attorney fee award, noting that the amount asked for was four times the amount of the respondent’s pretax earnings.118 The court also found that the doctrine of “unclean hands” applied so as to deny the petitioner’s attorney fee request in that the petitioner’s “pattern of alcohol abuse and violent behavior precipitated [the] [r]espondent’s removal” of the children.119 In Grano v. Martin,120 the court reduced the award by 85%, considering the respondent’s “demonstrated financial hardships.”121 The court noted that the respondent had shown that she was “under financial strain: she has not been able to secure employment in Spain as she is not a legal resident there, and she owes her attorneys over $170,000.”122

In Adkins v. Adkins,123 the court noted that “ICARA provides for an award of necessary expenses incurred” in “‘an action brought under section 9003,’” concerning Abduction Convention proceedings.124 The court determined that “[t]he statute does not authorize the Court to award fees and costs in ancillary matters litigated in other fora, and [the] [p]etitioner [did] not identify any other basis for the Court’s authority to do so.”125 However, in Chambers v. Russell,126 the court refused to hold that the respondent’s earnings were insufficient to support an attorney fee award. The court’s conclusion was based in part on the fact that the respondent had a house of over $200,000.127

In Hulsh v. Hulsh,128 the court found that the petitioner “ha[d] not broken down how the attorneys dedicated their time and ha[d] instead stated in a conclusory manner that they worked the asserted number of hours.” The court found this to be “inadequate.”129 “In requesting, challenging, and granting attorneys’ fees, specificity is critical. A request for fees must be accompanied by ‘fairly definite information as to hours devoted to various general activities, e.g., partial discovery, settlement negotiations, and the hours spent by various classes of attorneys.’”130

A court does have authority to order fees and costs even if the child turns 16 after the return order was given.131 However, what can be awarded as costs, as opposed to attorney fees, is limited by 28 U.S.C. § 1920 and does not include the costs of holding a trial remotely.132

The provisions in ICARA authorize the award of attorney fees to the petitioner.133 It follows that nothing in ICARA provides that fees can be awarded to a prevailing respondent.134

B. Procedural Issues

The voluntary return of the child moots the return proceeding.135 A recent indictment for domestic violence on the part of the respondent’s current husband was insufficient to change the court’s mind on the establishment of the well-settled or the grave risk exceptions to return.136

C. Stays

In considering whether to stay a return order in a Hague Convention case, courts consider the traditional stay factors: “(1) whether the stay applicant has made a strong showing that [s]he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”137

In Radu v. Shon,138 the court granted a stay pending appeal because “[c]ase law offer[ed] only minimal guidance regarding how to properly craft remedies allowing for a child’s return under the Hague Convention while avoiding a grave risk of harm under Article 13(b).”139 Furthermore, “[g]iven the scant case law,” the court found that “the first factor—the likelihood of [the] [r]espondent’s success on the merits of her appeal—weigh[ed] in favor of a stay.”140

D. Temporary Restraining Orders

A petitioner seeking a temporary restraining order (TRO) must establish that he is substantially likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the “threatened injury outweighs the harm that the TRO would cause” to the person opposing the TRO, and that the TRO is in the public interest.141 The temporary restraining order can also be extended if the respondent is seeking to avoid service.142

E. 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.143 Abstention is only proper if the state proceeding will decide all the issues in the abduction case.144

A Canadian service member was allowed to testify via videoconferencing due to the difficulty of travel during the pandemic.145 In Romanov v. Soto,146 the court entered temporary orders granting the father’s request for a freeze order and granting the father temporary visitation via video calls of at least 30 minutes every other day.147

Normally post-trial developments will not change the results of a removal proceeding.148 The abducting mother’s contempt proceeding against respondent was dismissed because the father was to “facilitate” daily communications between the child and the mother, “not to ensure that such communications occurred.”149


As usual, there was significant litigation under the Convention. However, as more and more U.S. Supreme Court decisions are decided, this may fall.


1. Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1243 U.N.T.S.89 [hereinafter Abduction Convention].

2. 22 U.S.C. §§ 9001–11.

3. Id. § 9003(a).

4. Abduction Convention arts. 3, 12. The law of the Abduction Convention is relatively straightforward, but the facts can be complicated, and Hague return petitions can rarely be decided on a motion to dismiss. See, e.g., Lorenz v. Lorenz, No. 2:20-cv-13128, 2021 WL 2229288 (E.D. Mich. May 11, 2021), report and recommendation adopted, No. 20-CV-13128, 2021 WL 2226479 (E.D. Mich. June 2, 2021).

5. See Alikovna v. Viktorovich, No. 19-cv-23408-BLOOM/Louis, 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).

6. Rishmawy v. Vergara, 540 F. Supp. 3d 1246, 1273–74 (S.D. Ga. 2021).

7. Abduction Convention art. 4; see, e.g., Noergaard v. Noergaard, 271 Cal. Rptr. 3d 905, 913–14 (2020), review denied (Mar. 10, 2021), cert. denied, 141 S. Ct. 2630 (2021) (child turning 16 while appeal was pending rendered return order appeal moot); Bordelais v. Bordelais, 844 F. App’x 910, 912 (7th Cir. 2021)).

8. See Abduction Convention.

9. 140 S. Ct. 719 (2020).

10. Id. at 723; see Robert G. Spector, Proceedings Under the Hague Child Abduction Convention: 2020, 54 Fam. L.Q. 325, 326–28 (2021); Ann Laquer Estin, Where Is the Child at Home? Determining Habitual Residence After Monasky, 54 Fam. L.Q. 127 (2020).

11. Monasky, 140 S. Ct. at 727.

12. Id. at 728.

13. No. 19-21889 (SWD) (LWD), 2020 WL 6375789 (D.N.J. Oct. 30, 2020), aff’d, No. 20-3289, 2022 WL 985873 (3d Cir. Mar. 31, 2022).

14. Id. at *3.

15. Id.

16. No. 8:20-cv-2894-SDM-AAS, 2021 WL 1139664 (M.D. Fla. Mar. 25, 2021).

17. Id. at *4.

18. Id.

19. Id. at *2, *4, *8; see also Kenny v. Davis, No. 3:21-CV-00023-SLG, 2021 WL 2275983 (D. Alaska May 10, 2021), aff’d, No. 21-35417, 2022 WL 501625 (9th Cir. Feb. 18, 2022) (the fact that the child lived in Alaska for four months, more than one-third of the child’s life, meant that the child’s habitual residence changed from Ireland to the United States); Ho v. Ho, No. 20 C 6681, 2021 WL 2915161, at *9 (N.D. Ill. July 12, 2021) (child was habitually resident in New Zealand when the parties “considered moving out of New Zealand on and off while living there from 2016 to 2020 . . . but never actually executed on any definitive plans to move from New Zealand, despite wishes by [the] [r]espondent to do so”); Pozniak v. Shwartsman, No. 20CV2956AMDRML, 2021 WL 965238, at *7–9 (E.D.N.Y. Mar. 15, 2021) (child who lived in Israel for five years with visits to the United States was habitually resident in Israel).

20. 976 F.3d 558 (5th Cir. 2020).

21. Id. at 563; see also Rodriguez v. Fernandez, 500 F. Supp. 3d 674, 703–09 (M.D. Tenn. 2020) (case determined by burden of proof on habitual residence and petitioner failed to meet his burden); Pope v. Lunday, 835 F. App’x 968, 972 (10th Cir. 2020) (court “not left with a definite and firm conviction of a mistake” at trial level); De Carvalho v. Carvalho Pereira, 308 So. 3d 1078, 1084–85 (Fla. Dist. Ct. App. 2020) (court not left with a feeling of clear error); Minkiewitz v. Becker, No. B299073, 2021 WL 566975, at *3 (Cal. Ct. App. Feb. 11, 2021) (mother could not overcome the Monasky deferential standard of review), review denied (May 12, 2021), cert. denied sub nom. Becker v. Minkiewicz, 142 S. Ct. 568 (2021); Rishmawy v. Vergara, 540 F. Supp. 3d 1246, 1278 (S.D. Ga. 2021) (applying the totality of circumstances test of Monasky, the trial court determined that habitual residence of the child was still in Honduras); Nowlan v. Nowlan, 543 F. Supp. 3d 324, 360–61 (W.D. Va. 2021) (totality of circumstances indicated that Canada was the habitual residence of the child), aff’d, No. 21-1965, 2022 WL 34141 (4th Cir. Jan. 4, 2022), cert. denied, 142 S. Ct. 1390 (2022); Douglas v. Douglas, No. 21-1335, 2021 WL 4286555, at *6 (6th Cir. Sept. 21, 2021) (“No reasonable jury, considering the totality of the circumstances, could conclude that [the petitioner-father] demonstrated by a preponderance of the evidence that [the child’s] habitual residence was Australia as of the operative wrongful-retention date.”), cert. denied, 142 S. Ct. 1443 (2022).

22. 503 F. Supp. 3d 862 (S.D. Iowa 2020).

23. Id. at 877.

24. 548 F. Supp. 3d 1181 (M.D. Fla. 2021).

25. Id. at 1191.

26. Id.

27. No. 21-cv-01813, 2021 WL 4197378 (D. Colo. Sept. 19, 2021), aff’d, No. 21-1341, 2022 WL 1529624 (10th Cir. May 16, 2022).

28. Id. at *1, *8.

29. Id. at *7.

30. Abduction Convention art. 3.

31. No. 20CV3110ARRLB, 2021 WL 466029 (E.D.N.Y. Feb. 9, 2021).

32. Id. at *6–8, *10. The court later refused to stay the return pending appeal. Lukic v. Elezovic, No. 20-CV-3110, 2021 WL 804384 (E.D.N.Y. Mar. 3, 2021). See also Nowlan v. Nowlan, 543 F. Supp. 3d 324, 362 (W.D. Va. 2021), aff’d, No. 21-1965, 2022 WL 34141 (4th Cir. Jan. 4, 2022), cert. denied, 142 S. Ct. 1390 (2022).

33. No. 20-CV-2894, 2021 WL 1139664 (M.D. Fla. Mar. 25, 2021).

34. Id. at *5. See also Aluker v. Yan, No. 20-CV-1117, 2021 WL 972885 (E.D. Va. Mar. 4, 2021) (the court denied the father’s petition for return on the basis that the parties’ settlement agreement granted the wife custody and the husband only visitation), aff’d, No. 21-1279, 2021 WL 3417968 (4th Cir. Aug. 5, 2021), cert. denied, 142 S. Ct. 1413 (2022).

35. 78 F.3d 1060 (6th Cir. 1996).

36. Id. at 1065; see also Lopez v. Bamaca, 455 F. Supp. 3d 76, 83 (D. Del. 2020).

37. 503 F. Supp. 3d 862 (S.D. Iowa 2020).

38. Id. at 874 (quoting Blackledge v. Blackledge, 866 F.3d 169, 179 (3d Cir. 2017)).

39. Leon v. Ruiz, No. 19-CV-00293, 2020 WL 1227312, at *6 (W.D. Tex. Mar. 13, 2020); see also Orellana Joya v. Munguia Gonzales, No. 20-236, 2020 WL 1181846, at *7 (E.D. La. Mar. 12, 2020).

40. Abduction Convention art. 12.

41. Id. 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 Raca, 910 F.3d 92, 99 (3d Cir. 2018).

42. 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).

43. 512 F. Supp. 3d 633 (W.D. Va. 2021).

44. Id. at 636, 647. The same was true in Bejarno v. Jimenez, where the court held that the respondent had met her burden of showing that the child was well-settled in the United States, and that her immigration status was not determinative of whether the child was well-settled. 837 F. App’x 936, 937 (3d Cir. 2021).

45. Bejarno, 837 F. App’x at 937.

46. 526 F. Supp. 3d 1186 (S.D. Fla. 2021).

47. Id. at 1203–04.

48. Id. at 1195–96, 1203.

49. 308 So. 3d 1078 (Fla. Dist. Ct. App. 2020).

50. Id. at 1085.

51. Id.

52. Abduction Convention art. 13.

53. See, e.g., Flores v. Alvaradon, No. 317CV00514RJCDSC, 2017 WL 8780151, at *2 (W.D.N.C. Dec. 11, 2017), report and recommendation adopted sub nom. Flores v. Alvarado, No. 3:17-cv-514-RJC-DSC, 2018 WL 1725615 (W.D.N.C Apr. 6, 2018).

54. Simcox v. Simcox, 511 F.3d 594, 608 (6th Cir. 2007).

55. Saada v. Golan, 833 F. App’x 829 (2d Cir. 2020), cert. granted, 142 S. Ct. 638 (2021), vacated and remanded, Golan v. Saada, 142 S. Ct. 1880, 1888 (2022) (“The Second Circuit’s categorical requirement to consider all ameliorative measures is inconsistent with the text and other express requirements of the Hague Convention.”).

56. 540 F. Supp. 3d 1246 (S.D. Ga. 2021).

57. Id. at 1288; see also Chung Chui Wan v. Debolt, No. 20-cv-3233, 2021 WL 1733500, at *9–10 (C.D. Ill. May 3, 2021) (finding the political climate of Hong Kong did not present a specific grave risk to the children and that the respondent also failed to prove other grave risk arguments). The court awarded Wan $310,933.50 in attorney fees and $134,355.95 in costs. Wan v. Debolt, No. 3:20-CV-3233, 2021 WL 3510232 (C.D. Ill. Aug. 10, 2021), appeal dismissed, No. 21-2705, 2022 WL 808230 (7th Cir. Jan. 12, 2022).

58. No. 19-21889, 2020 WL 6375789 (D. N.J. Oct. 30, 2020), aff’d, No. 20-3289, 2022 WL 985873 (3d Cir. Mar. 31, 2022).

59. Id. at *3.

60. Id.; see also Pawananun v. Pettit, 508 F. Supp. 3d 207 (N.D. Ohio 2020) (court returned children; called allegations of abuse “equivocal”); Stirk v. Lopez, No. 8:20-cv-2894-SDM-AAS, 2021 WL 1139664, at *2, *7 (M.D. Fla. Mar. 25, 2021) (mother allowed father increased visitation, thereby undermining her grave risk defense); Vieira v. De Souza, No. CV 21-10697-WGY, 2021 WL 2980729, at *3 (D. Mass. July 15, 2021) (“[G]rave risk would not befall the [m]inor upon his or her return to Brazil because none of the allegations of domestic abuse were directed at the [m]inor.”), aff’d, 22 F.4th 304 (1st Cir. 2022); Ho v. Ho, No. 20 C 6681, 2021 WL 2915161, at *13 (N.D. Ill. July 12, 2021) (“Respondent’s allegations, when taken together, do not rise to a pattern of abuse that warrants in this particular legal context the Court finding by clear and convincing evidence a grave risk to the child from witnessing or being subject to such alleged threats and physical incidents.”).

61. No. 20-CV-2956 (AMD) (RML), 2021 WL 965238 (E.D.N.Y. Mar. 15, 2021).

62. Id. at *12.

63. Id.

64. No. 8:21-cv-934-SDM-CPT, 2021 WL 3518154 (M.D. Fla. May 3, 2021).

65. Id. at *4.

66. Id. (citation omitted).

67. Gallegos v. Garcia Soto, No. 1:20-CV-92-RP, 2020 WL 2086554, at *3 (W.D. Tex. Apr. 30, 2020) (quoting Soto v. Contreras, 880 F.3d 706, 712–13 (5th Cir. 2018)), appeal dismissed, No. 20-50458, 2020 WL 7240010 (5th Cir. July 8, 2020).

68. Id. at *4 (quoting Gil-Leyva v. Leslie, 780 F. App’x 580, 590 (10th Cir. 2019)).

69. Id. (quoting Gil-Leyva, 780 F. App’x at 590).

70. Id. (quoting Gil-Leyva, 780 F. App’x at 590).

71. 550 F. Supp. 3d 4 (S.D.N.Y. 2021), aff’d, No. 21-1993-CV, 2021 WL 5567265 (2d Cir. Nov. 29, 2021).

72. Id. at 19–20.

73. Id. at 20.

74. Id. at 22.

75. 178 N.E.3d 754 (Ill. App. Ct. 2020).

76. Id. at 763.

77. Id. at 759, 764.

78. Id. at 764.

79. No. 1:18CV449, 2021 WL 1227133, at *4 (M.D.N.C. Mar. 31, 2021).

80. Id. (citation omitted).

81. 538 F. Supp. 3d 325, 375 (S.D.N.Y. 2021).

82. Id.

83. Id.

84. Id.

85. Saada v. Golan, 833 F. App’x 829 (2d Cir. 2020), cert. granted, 142 S. Ct. 638 (2021), vacated and remanded, Golan v. Saada, 142 S. Ct. 1880 (2022).

86. 279 Cal. Rptr. 3d 330 (Cal. Ct. App. 2021).

87. Id. at 335; see also In re I.M.J., 13 F.4th 753, 764 (9th Cir. 2021) (“‘[T]he district court erred in failing to consider alternative remedies by means of which [ICJ] could be transferred back to [France] without’ placing her in an intolerable situation.”) (citation omitted).

88. 11 F.4th 1080 (9th Cir. 2021).

89. Id. at 1085, 1090.

90. Id. at 1090.

91. Id. at 1090–91.

92. No. 21-cv-387-wmc, 2021 WL 3771708, at *1 (W.D. Wis. Aug. 25, 2021).

93. Id. at *4.

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

95. 985 F.3d 8 (1st Cir. 2021).

96. Id. at 13–16; see also Dubikovskyy v. Goun, No. 2:20-CV-04207-NKL, 2021 WL 456634, at *9 (W.D. Mo. Jan. 7, 2021) (a sufficiently mature 12-year-old was entitled to stay in the United States).

97. No. 20-CV-3233, 2021 WL 1733500 (C.D. Ill. May 3, 2021).

98. Id. at *9; see also Berenguela-Alvarado v. Castanos, No. 19-22689-CIV, 2020 WL 10055693, at *4–5 (S.D. Fla. Apr. 21, 2020) (court refuses to follow a six-year-old’s opinion on the issue of his return to Chile), aff’d, 820 F. App’x 870 (11th Cir. 2020).

99. Abduction Convention art. 20.

100. 2021 WL 1733500, at *12.

101. Diagne v. Demartino, No. 2:18-cv-11793, 2018 WL 4385659, at *8 (E.D. Mich. Sept. 14, 2018) (citation omitted).

102. See, e.g., Velozny v. Velozny, 550 F. Supp. 3d 4, 15–18 (S.D.N.Y. 2021), aff’d, No. 21-1993-CV, 2021 WL 5567265 (2d Cir. Nov. 29, 2021).

103. No. 20CV2956AMDRML, 2021 WL 965238, at *11 (E.D.N.Y. Mar. 15, 2021).

104. Id.

105. Id.

106. Id.

107. No. 1:20-CV-104 (LAG), 2020 WL 8459278 (M.D. Ga. Nov. 19, 2020), aff’d sub nom. Romero v. Bahamonde, 857 F. App’x 576 (11th Cir. 2021).

108. Id. at *11.

109. LaSalle v. Adams, No. CV-19-04976-PHX-DWL, 2019 WL 6135127, at *7 (D. Ariz. Nov. 19, 2019).

110. Fajardo Garzon v. De Hoffman, No. 2:21-CV-10340, 2021 WL 1259462, at *2 (E.D. Mich. Apr. 6, 2021).

111. 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 WL2550541, at *2 (W.D.N.C. June 19, 2019).

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

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

114. Id. (citation omitted).

115. No. 20-699 (JRT/HB), 2021 WL 638040, at *4 (D. Minn. Feb. 18, 2021).

116. Id.; see also Lukic v. Elezovic, No. 20-CV-3110 (ARR)(LB), 2021 WL 1904258, at *2 (E.D.N.Y. May 12, 2021) (respondent had no assets or income to pay an award of costs); Vieira v. De Souza, No. 21-10697-WGY, 2021 WL 2980729, at *4 (D. Mass. July 15, 2021) (court found “it was clearly inappropriate to impose those cost[s] and fees upon the pro se De Souza in the absence of evidence that she had a job or how she paid for her living arrangements”), aff’d, 22 F.4th 304 (1st Cir. 2022).

117. No. GJH-19-2601, 2021 WL 2826774, at *5–6 (D. Md. July 7, 2021).

118. Id. at *5.

119. Id. at *6.

120. No. 19-CV-6970(CS), 2021 WL 3500164 (S.D.N.Y. Aug. 9, 2021).

121. Id. at *9.

122. Id.; see also Berenguela-Alvarado v. Castanos, No. 19-22689-CIV-COOKE/GOODMAN, 2020 WL 7774730, at *5–6 (S.D. Fla. Dec. 8, 2020) (the court slightly reduced the number of hours worked by the attorney on the ground that the work could have been delegated to a paralegal), report and recommendation adopted, No. 19-22689-CIV, 2020 WL 7770399 (S.D. Fla. Dec. 30, 2020).

123. No. 19-cv-05535-HSG, 2020 WL 6508616 (N.D. Cal. Nov. 5, 2020).

124. Id. at *1 (quoting 22 U.S.C. § 9007(b)(3)).

125. Id. at *2.

126. No. 1:20CV498, 2021 WL 1581074, at *2 (M.D.N.C. Apr. 22, 2021).

127. Id.

128. No. 19 C 7298, 2020 WL 6381362 (N.D. Ill. Oct. 30, 2020).

129. Id. at *2.

130. Id. (citation omitted). On the refiling, the court reduced the lead attorney’s fee from $600 to $650 an hour to $425 and did not allow recovery for additional work. Hulsh v. Hulsh, No. 19 C 7298, 2021 WL 963770, at *3–4 (N.D. Ill. Mar. 15, 2021).

131. Noergaard v. Noergaard, 271 Cal. Rptr. 3d 905, 915 (Cal. Ct. App. 2020, review denied (Mar. 10, 2021), cert. denied, 141 S. Ct. 2630 (2021).

132. Jacquety v. Tena Baptista, 549 F. Supp. 3d 293, 299 (S.D.N.Y. 2021).

133. 22 U.S.C. § 9007(b)(3).

134. Stone v. Stone, No. 19-1796, 2020 WL 491194, at *1 (D.N.J. Jan. 30, 2020).

135. Garcia v. Segovia, No. 1:17 cv 239, 2017 WL 6757647, at *2 (W.D.N.C. Nov. 22, 2017), report and recommendation adopted sub nom. Garcia v. Sanchez Segovia, No. 1:17-CV-00239-MR-DLH, 2017 WL 6731717 (W.D.N.C. Dec. 29, 2017).

136. See Francis ex rel. K.K.S.F. v. Culley, No. 20-CV-3326 (PKC) (SJB), 2021 WL 3660719 (E.D.N.Y. Aug. 18, 2021).

137. Chafin v. Chafin, 568 U.S. 165, 179 (2013) (citation omitted).

138. No. CV-20-00246-TUC-RM, 2020 WL 6741538 (D. Ariz. Nov. 17, 2020).

139. Id. at *2.

140. Id. Later, the court denied an award of attorney fees because it “could interfere with [the] [r]espondent’s ability to care for [the children], given her limited financial means.” Radu v. Shon, No. CV-20-00246-TUC-RM, 2021 WL 1056393 (D. Ariz. Mar. 19, 2021) (noting that the respondent was the children’s “primary caregiver,” that she made $14.30 an hour, and that she was “restricted in her capacity to work due to the COVID-19 pandemic”).

141. Mendoza v. Solado, No. 1:21-CV-1795-SCJ, 2021 WL 3508690, at *3 (N.D. Ga. May 3, 2021).

142. Sanchez v. Pliego, No. 21-1849 (MJD/BRT), 2021 WL 4026363, at *2 (D. Minn. Sept. 3, 2021).

143. See, e.g., Soulier v. Matsumoto, No. 20-4720, 2020 WL 8186164, at *3 (D.N.J. Dec. 4, 2020).

144. Id. at *2–3.

145. Nowlan v. Nowlan, No. 5:20cv00102, 2021 WL 217139, at *1 (W.D. Va. Jan. 21, 2021).

146. No. 3:21-cv-779-MMH-MCR, 2021 WL 4033576 (M.D. Fla. Sept. 3, 2021).

147. Id. at *1–2.

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

149. Colchester v. Lazaro, NO. C20-1571-JCC, 2021 WL 2915411, at *1–2 (W.D. Wash. July 12, 2021).

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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 Law Center.