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October 04, 2023 Feature

2022 in Hague Return Proceedings

Robert G. Spector


Most U.S. international family law litigation involves the Hague Convention on the Civil Aspects of International Child Abduction and its implementing legislation, the International Child Abduction Remedies Act (ICARA).1 Federal and state courts have concurrent jurisdiction to decide on a request for the return of a child under the Convention.

The Convention operates to promptly return children to their habitual residence. To obtain an order returning a child, the petitioner must prove that the child was wrongfully removed from, or retained outside of, the child’s “habitual residence”; and that the petitioner had “a right of custody,” which he/she was “actually exercising” (or would have exercised, but for the abduction), under the law of the child’s habitual residence.2 The fact that the child has been granted asylum does not prevent the court from ordering the return of the child.3

I. Applicability of the Abduction Convention

The Child 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.4 It cannot be made applicable to a case by the parties’ stipulation. The Convention ceases to apply when the child in question turns 16.5

II. Habitual Residence of the Child

As in most Hague conventions, the Abduction Convention does not define the term “habitual residence.” In Monasky v. Taglieri,6 the Supreme Court held that “a child’s habitual residence depends on the totality of the circumstances specific to the case.”7 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.”8 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.”9 Some federal circuits will summarily affirm the district court’s determination of habitual residence on the ground that appellate courts must give deference to the trial court’s determination of facts.10

In Oliva v. Espinosa,11 the child was age three at the time of the wrongful retention and five at the time of the decision. “The testimony set forth shows that [he] is living with family and is enrolled in school. No other evidence was proffered as to [his] living arrangements, schooling, or any other information as to his social integration in the United States. However, considering [his] age, his level of familial and social integration demonstrates sufficient settlement into his community in the United States.”12 In Harm v. Lake-Harm,13 the appellate panel affirmed a district court’s totality-of-the-circumstances analysis following Monasky: “There is a plethora of conflicting facts affecting the district court’s ultimate holding, but perceiving no clear error in the district court’s findings of fact or conclusions of law, we affirm.”14 The district court concluded that the young child’s presence in Ireland was transitory and therefore habitual residence did not shift from the United States, where the child was born.15

In In re E.Z.,16 the court concluded that a family that had lived in five different locations and ultimately moved to Iceland for an indefinite period of time had changed the child’s habitual residence to Iceland.17

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.

In Ariza Lopez v. Ash,18 the court found that documents purporting to transfer custody from Ariza to Ash were forged and therefore Ariza retained her right of custody. In Livingstone v. Livingstone,19 petitioner offered no evidence that he retained any right to custody under an Australian protective order and therefore did not have a right of custody.

B. Wrongful Retention

In order to establish a wrongful retention, the petitioner must show that the child has been kept outside his or her country of “habitual residence.” Additionally, “for that retention to be ‘wrongful,’ it must violate the ‘rights of custody’ afforded the petitioner under the laws of the child’s preretention country of habitual residence. . . .20

C. 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.

1. Child Is Settled in His/Her New Environment

Article 12 of the Child Abduction Convention provides that the authorities need not return a child if more than one year has elapsed since the child’s abduction or retention and the child is now settled in the child’s new environment. The well-settled defense does not apply when the petition for return is filed within the one-year period.21

In Argueta v. Lemus,22 the well-settled defense was rejected where “the minor child had connections to family, pets, his school, and his church in Honduras. Here, [the mother] did not [set] forth any proof that the parties’ child has made friends in the United States, that the child’s school proficiency scores have improved since his initial intake tests, that the child is involved in extracurricular activities, or that the child ever had a doctor in the United States. Conversely, [the father] testified that the child had friends in Honduras, obtained medical care in Honduras, was involved in church, and enrolled in school.”23

In Philantrope v. Jean,24 the court found that over a year had passed from the time of the wrongful removal to the petition filing, but the child was “not well-settled in his new environment within the meaning of Article 12 . . . due in part to [the respondent’s] actions of transferring the [c]hild through multiple international and U.S. jurisdictions since his wrongful removal in March 2019.”25 In Karim v. Nakato,26 the mother failed to establish the “well-settled” defense and a father’s return petition was granted where the mother and the child did not have their own home in the United States and lived with the mother’s boyfriend; they were financially dependent on the father; the mother was unemployed and received public assistance; and their asylum petitions in the United States were pending and their “immigration status in the United States [was] uncertain.”27

2. Grave Risk of Harm/Intolerable Situation

a. Golan v. Saada

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.” In determining whether to sustain the defense, the court must consider the nature and frequency of the abuse and the likelihood of its recurrence. The question of whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the child caused by his or her return was decided in 2022 by the U.S. Supreme Court.

In Golan v. Saada,28 the U.S. Supreme Court ruled for U.S. citizen Narkis Golan, who married an Italian citizen in Italy and had a son with him there. Golan flew with her son to the United States to attend a wedding in 2018. Instead of returning, Golan moved into a domestic violence shelter with her son. Golan’s husband, Isacco Saada, filed a Hague return petition for the boy.29

The unanimous court noted first that the Abduction Convention is premised on the idea that the interests of children in child custody cases “are best served when custody decisions are made in the child’s country of ‘habitual residence.’”30 The treaty generally requires the “prompt return” of children when wrongfully removed, but there are exceptions.31

A federal court considering Saada’s petition found that Saada sometimes pushed, slapped, and grabbed Golan. He yelled and swore at her. Much of the abuse happened in front of the couple’s son.32 The district court ordered the child’s return to Italy under prior Second Circuit case law obligating it to “examine the full range of options that might make possible the safe return of a child to the home country. . . .”33 Saada’s proposed ameliorative measures included providing Golan with $30,000 for expenses pending a decision on financial support, staying away from Golan pending resolution of the child custody dispute, beginning therapy, and waiving legal fees and expenses. The U.S. Court of Appeals for the Second Circuit at New York found that the measures were insufficient and remanded for consideration of other alternatives.34

The district court approved additional measures, including that an Italian social services agency oversee Saada’s parenting classes and therapy and that visits between Saada and his son be supervised. A protective order barred Saada from approaching Golan for one year. He would also pay $150,000 to facilitate his son’s return to Italy and to pay living costs while Golan and her son resettled.35

The Second Circuit affirmed. The Supreme Court vacated the ruling.36 Justice Sotomayor for the Court noted that courts have discretion under the treaty to grant or deny a return after a finding of grave risk: “Nothing in the Convention’s text either forbids or requires consideration of ameliorative measures in exercising this discretion. The Convention itself nowhere mentions ameliorative measures. Nor does” the International Child Abduction Remedies Act, the federal law implementing the treaty.37

Consideration of ameliorative measures “often may be appropriate,” but “a district court reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings. The court may also find the grave risk so unequivocal, or the potential harm so severe, that ameliorative measures would be inappropriate.”38

The case was remanded to the federal district court to resolve whether to order a return under the legal standard laid out by the Supreme Court. “The District Court should determine whether the measures in question are adequate to order return in light of its factual findings concerning the risk to [the child], bearing in mind that the Convention sets as a primary goal the safety of the child.”39

On remand, the district court determined that the ameliorative measures that the court considered under the old Second Circuit rule were sufficient as a matter of the court’s judicial discretion to allow the child to be returned to Italy.40 In this case, the court found that the protective order issued by the Italian court and the $150,000 payment “prioritize and ensure [the child’s] physical and psychological safety” without the Hague return court entering into the role of the custody court or delaying the resolution of the proceedings.41 Tragically, while an appeal was pending, Golan passed away.42

b. “Grave Risk” Defense Not Sustained

In Soto v. Garcia,43 the court found that “two incidences of kicking and slapping” did not present “the kind of ‘substantial violence’ against a spouse that other courts have cited as constituting ‘grave risk.’”44 In Munoz v. Diaz, the court granted a father’s petition to return the child to Mexico, finding there was “no evidence that the Children have ever been physically, verbally or mentally abused by the Father.”45 While there was evidence of a “family brawl,” “there was no testimony that the Father caused any specific, much less serious, injury to the Mother during the brawl.”46 “While the mother did testify to a few incidents where the Father had been abusive toward her, those occurred while the Children were very young and before the Mother and the Father divorced, and there [was] no evidence that any of the alleged instances resulted in injuries that required the Mother to seek medical treatment.”47 A child’s return may be refused if the country of origin is in a state of domestic terrorism. However, in Salame v. Tescari, the mother failed to present sufficient evidence that Venezuela was “a zone of war, famine, or disease” to deny the children’s return on that basis.48

c. “Grave Risk” Defense Sustained

In Cruvinel v. Cruvinel,49 the court denied a father’s return petition where the father’s abusive behavior harmed the child as well as the mother: “[The child] herself has suffered, and continues to suffer psychological harm as a result of Petitioner’s behavior. The record is replete with instances when Petitioner has sent [the child] alarming, and sometimes threatening text messages, including messages reprimanding [her] for disrespecting and disobeying him and others insisting that her mother is a criminal who must be punished.”

d. Appointment of Psychologist

In Colchester v. Lazaro,50 the Ninth Circuit noted that neither the Hague Convention nor the ICARA “provides for appointment of a psychologist as of right. . . .”51 However, when a mother alleged abuse by the father and psychological harm to the child and requested that a forensic psychologist evaluate the child in connection with her “grave risk” defense, “the district court’s refusal to permit the requested examination amounted to an abuse of discretion that rendered the subsequent bench trial fundamentally unfair.”52 In Lorenz v. Lorenz,53 the court refused to appoint a psychologist as “neither necessary nor required” to supplement the court’s interviews with the children.54

3. Mature Child’s Objection

The standard here is that the court must determine whether the child “is of sufficient age and maturity for his views to be considered. . . . [T]he Court must [then] evaluate the nature of the objection and determine whether it is a particularized objection or merely a general preference.”55 The court has discretion on whether to interview the child. The court’s decision on whether to hear the child is reviewed for abuse of discretion.56

In Bhattacharjee v. Craig, the court found that a 13-year-old child was not of sufficient maturity to express an opinion since the child’s “responses to even minor adversities [were] exaggerated and disproportionate.”57 The court also noted that it is only in “an extraordinary case when a child under the age of 16 is deemed mature enough for his objection to defeat a meritorious petition for his return under the Hague Convention.”58

4. 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. In Galaviz v. Reyes,59 the parties had two children, ages 5 and 4. They had been living with their mother, the petitioner, in Ciudad Juarez, Mexico, since the parties’ separation. The father had picked them up to bring them to Texas for medical appointments and chose to not return them as planned because their appearance indicated to him that they were being neglected.60 The children were not in school at the time of the retention because the school required the petitioner mother to attend with them to help them with their special needs, and she was unable to do so. The 5-year-old son was diagnosed with autism spectrum disorder and had been undergoing treatment in Juarez with a neurologist and speech and behavioral therapist, but his last appointment was on February 13, 2020, because of COVID. The 4-year-old daughter was not receiving any treatment for her special needs.61 The respondent indicated that post-separation, he “observed a physical and cognitive decline in the children” while in their mother’s care.62 After their retention, they began attending school and were placed in special education classes.63

This case is one of the few where the respondent satisfied the high burden of clear and convincing evidence that returning the children would violate human rights under Article 20 of the Hague Abduction Convention. The court discussed the right to education and cited the Universal Declaration of Human Rights, the U.S. Individuals with Disabilities Education Act, and the Texas Constitution.64 While “the law in Mexico may provide for special education,” the school required the petitioner to be present with the children, and she couldn’t as she had to work; therefore, the children were not attending school.65 The court found that “Petitioner’s inability to be present with the children, as required so that they can attend school, effectively denies the children the fundamental right to an education,” and stated that “[t]he denial of an education to two special needs children in their most formative years utterly shocks the conscience of the court.”66

D. Other Issues Under the Child Abduction Convention and ICARA

1. Attorney Fees

Under ICARA, attorney fees and costs are to be awarded to the prevailing petitioner unless the respondent can show that the award would be clearly inappropriate.67 The “clearly inappropriate” inquiry is necessarily dependent on the facts of each case. 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.68

In Romanov v. Soto,69 the court determined the fees were warranted. The mother presented no evidence of financial hardship, even though she argued the point.70

Local procedural rules governing the timing of attorney fee requests still apply. Therefore, a request filed 45 days after the return of the child was ordered violated the local rule requiring requests to be filed within 14 days and was denied.71

In Pawananun v. Pettit,72 the court found that the attorney fees would not be inappropriate since the respondent’s financial condition still allowed him to visit the children, particularly since he had free flights to Thailand. Nor did he act in good faith in removing the children from Thailand or have a good faith belief that his actions were legally justified.73

The provisions in ICARA authorize the award of attorney fees to the petitioner, not the respondent. However, a court can award sanctions to a prevailing respondent for the bad faith activities of petitioner’s counsel under provisions other than ICARA, such as Federal Rule of Civil Procedure 11(b).74

2. Procedural Issues

A Washington district court found that while the court did not generally pay for court-appointed interpreters in civil cases, this expense was required in Soberano v. Guillen,75 a Hague case involving parties who primarily spoke Spanish.

The issue of whether the court should permit the petitioner and other witnesses to testify by videoconference is up to the judge’s discretion. In Krause v Krause,76 the court denied petitioner’s request to testify in this way because neither his military service nor his alleged financial reasons were sufficient.77

A respondent who articulated no real legal objections to the report of the magistrate judge has waived any further argument to the enforcement of the magistrate judge’s order.78

3. 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.”79

4. Temporary Restraining Orders

A petitioner seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.80

In Kitam v. Moussi,81 the court denied the petitioner’s request for an ex parte order prohibiting the respondent from leaving Alameda. “Nothing in the record” supported finding that the respondent was “poised to leave Alameda, California, where he appears to have lived for some time. If anything, the exhibits attached to the complaint indicate that [the respondent] intends to stay in the United States.”82

5. Enforcement of Foreign Orders

A Kansas court determined that it should give comity to the Netherlands decision not to return the child.83

6. 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. However, where the state case was ongoing the district court properly abstained from deciding whether the state’s order requiring the petitioner to post a bond in order to visit with his children was appropriate.84

Stays pending appeal are generally frowned upon in a proceeding under the Hague Convention. “Courts apply four factors to determine whether to stay a return order: (1) whether the applicant has made a strong showing that she is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether the issuance of a stay will substantially injure other interested parties; and (4) any risk of harm to the public interest. Stays are not routinely granted merely because an appeal is pending,” especially in a case under the Hague Convention.85


1. Originally codified at 42 U.S.C. §§ 11601–10; recodified as 22 U.S.C. §§ 9001–11.

2. As is often noted, the law of the Abduction Convention is relatively straightforward, but the facts can be complicated. Although some cases are fairly easy to determine, Hague return petitions can rarely be decided on a motion to dismiss. Lorenz v. Lorenz, No. 20-CV-13128, 2021 WL 2229288, at *3 (E.D. Mich. May 11, 2021), report and recommendation adopted, 2021 WL 2226479 (E.D. Mich. June 2, 2021).

3. Salame v. Tescari, 29 F.4th 763, 771 (6th Cir. 2022).

4. See Safdar v. Aziz, 342 Mich. App. 165, 177–78 (Mich. Ct App. 2022) (Pakistan has acceded and the United States has accepted the accession, and courts in relocation cases should not further analyze Pakistan’s compliance with the Convention).

5. Abduction Convention art. 4; Bourdelais v. Bourdelais, 844 F. App’x 910, 912 (7th Cir. 2021) (child turned 18 during the proceeding and this rendered the return moot).

6. 140 S. Ct. 719 (2020).

7. Id. at 723.

8. Id. at 727.

9. Id. at 728; see, e.g., Pflucker v. Warms, No. 8:21-CV-1869-WFJ-JSS, 2021 WL 4593824 (M.D. Fla. Oct. 6, 2021). Although giving lip service to Monasky, some courts still use parental intent as the primary factor in determining habitual residence. See Soto v. Garcia, No. 3:22-CV-0118-B, 2022 WL 780701, at *7 (N.D. Tex. Mar. 15, 2022).

10. Nowlan v Nowlan, No. 21-1965, 2022 WL 34141 (4th Cir. Jan. 4, 2022), cert. denied, 142 S. Ct. 1390 (2022).

11. No. 20cv1133-JAH-DEB, 2021 WL 4554579 (S.D. Cal. Oct. 5, 2021).

12. Id. at *6.

13. 16 F.4th 450 (4th Cir. 2021).

14. Id. at 452.

15. Id. at 456; see also Garcia v. Ramsis, No. 4:21-CV-650-SDJ, 2022 WL 1036770, at *2 (E.D. Tex. Apr. 6, 2022) (“Among other things, S.J.G. only lived in the United States for one month prior to Ramsis removing her to the United States in 2020, Ramsis and Garcia were not living in the United States at the time of S.J.G.’s birth, and Ramsis and Garcia are not American citizens. Most importantly, Ramsis cannot establish the United States as S.J.G.’s habitual residence by unilaterally removing her to the country, as the relevant time period is the time ‘immediately before’ removal or retention.”) (citations omitted); Cole v. Cole, 187 N.E.3d 957, 962 (Ind. Ct. App. 2022) (“Within about one week of obtaining his Permanent Resident Card, Father terminated the lease to the family’s apartment in Germany; he agreed to liquidate a substantial portion of the family’s assets; he agreed to ship, at significant cost, the vast majority of the family’s remaining personal property from Germany to the United States; and he agreed to deposit the entirety of the family’s financial assets into an account in South Bend. And, shortly after arriving in the United States, Father purchased a vehicle for more than $43,000 in cash and spent more than $3,000 on a new bed frame and mattress. These are not actions one typically takes when he sees his or his family’s residence in a location as transitory.”); Guzzo v Hansen, No. 4:22-CV-15 PLC, 2022 WL 3081159 (M.D. Mo. Aug. 3, 2022) (child’s visits to the United States from Spain did not change habitual residence); Interest of A.Y.S., No. 12-21-00074-CV, 2022 WL 868046 (Tex. Ct. App. Mar. 22, 2022) (reversing trial court that incorrectly relied on parental intent test), review denied (Oct. 14, 2022). It appears that the Monasky decision has substantially reduced the amount of litigation concerning habitual residence.

16. No. 1:21-cv-06524-MKV, 2021 WL 5106637 (S.D.N.Y. Nov. 2, 2021).

17. Id.; see also Soulier v. Matsumoto, No. 20-4720, 2022 WL 2666946, at *13 (D. N.J. July 8, 2022) (“It is abundantly clear that the shared parental intent was for the stay in New Jersey to be temporary until July 2019, unless Petitioner secured a job, which became evidently unfeasible early on.”); Tsuruta v. Tsuruta, 620 F. Supp. 3d 942, 952 (E.D. Mo. 2022) (“[A]lthough the evidence regarding the intentions of L.T.’s parents is conflicting, it generally supports a finding that the parents had the settled purpose of creating a home in Japan—perhaps not forever, but for a significant period of time. The Tsurutas have never lived together as a family in the United States. In contrast, the Tsurutas lived together in Japan for almost three years, where they lived in a rented apartment (and later in a house they purchased), placed their child in daycare/school and extracurricular activities, and pursued their own business and personal interests.”).

18. No. 22-1053, 2022 WL 3328888 (W.D. La. Aug. 11, 2022).

19. No. 22-cv-00472-RM, 2022 WL 3699832 (D. Colo. Aug. 26, 2022).

20. Pflucker v. Warms, No. 8:21-cv-1869-WFJ-JSS, 2021 WL 4593824, at *6 (M.D. Fla. Oct. 6, 2021).

21. Garcia v. Ramsis, No. 4:21-CV-650-SDJ, 2022 WL 1036770 (E.D. Tex. Apr. 6, 2022).

22. No. 3:21-cv-209-NBB-JMV, 2022 WL 880039, at *9 (N.D. Miss. Mar. 9, 2022), report and recommendation adopted, 2022 WL 879494 (N.D. Miss. Mar. 23, 2022).

23. Id. In In re Akin, 274 A.3d 569 (N.H. 2022), the trial court found that even assuming that the child was well settled in New Hampshire, it would return the child to Turkey.

24. No. 21-81398-Civ-Cannon, 2021 WL 4896266 (S.D. Fla. Oct. 19, 2021).

25. Id. at *1.

26. No. 21-11458-WGY, 2022 WL 1597955 (D. Mass. May 20, 2022).

27. Id. at *16. But see Baez v. Paraskevas, No. 2 CA-CV 2022-0022-FC, 2022 WL 3368498, at *5 (Ariz. Ct. App. Aug. 16, 2022) (“Here, the trial court considered all the relevant factors and determined Paraskevas met her burden. We therefore cannot say the court erred by determining the child was wellsettled in Arizona even though she was two and a half years old.”).

28. 142 S. Ct. 1880 (2022).

29. Id. at 1889.

30. Id. at 1888.

31. Id.

32. Id. at 1889.

33. Id. at 1890 (citation omitted).

34. Id. at 1890–91.

35. Id. at 1891.

36. Id. at 1896 (vacating and remanding Saada v. Golan, 833 F. App’x 829 (2d Cir. 2020)).

37. Id. at 1892.

38. Id. at 1895.

39. Id. at 1896.

40. Saada v. Golan, No. 1:18-CV-5292 (AMD) (RML), 2022 WL 4115032 (E.D.N.Y. Aug. 31, 2022), vacated and remanded sub nom. In re B.A.S., No. 22-1966, 2022 WL 16936205 (2d Cir. Nov. 10, 2022).

41. Id. at *5. In Radu v. Shon, No. CV-20-00246-TUC-RM, 2022 WL 4099225 (D. Ariz. Aug. 22, 2022), the trial court also determined that the child should be returned after its decision was remanded by the Ninth Circuit to reconsider in light of Golan v. Saada.

42. In re B.A.S., 2022 WL 16936205, at *1.

43. No. 3:22-CV-0118-B, 2022 WL 780701 (N.D. Tex. Mar. 15, 2022).

44. Id. at *9; see also Salame v. Tescari, 29 F.4th 763, 768 (6th Cir. 2022) (single instance of father’s abuse of mother was insufficient to establish the 13(b) defense); Vieira v. De Sousa, 22 F.4th 304, 309 (1st Cir. 2022) (evidence of abuse toward the mother, which was not directed toward the child, was not established to be “of a nature sufficient to trigger the grave risk exception”).

45. No. 4:22-cv-9, 2022 WL 1093270, at *11 (S.D. Ga. Apr. 12, 2022).

46. Id.

47. Id.

48. 29 F.4th at 770; see also Argueta v. Lemus, No. 3:21cv209-NBB-JMV, 2022 WL 880039, at *8 (N.D. Miss. Mar. 23, 2022) (testimony did “not meet the level of ‘intolerable situation’ as contemplated by the Convention” to deny returning the child to Honduras), report and recommendation adopted, 2022 WL 879494 (N.D. Miss. Mar. 23, 2022).

49. 19-CV-4237 (LDH) (SIL), 2022 WL 757955, at *7 (E.D.N.Y. Jan. 10, 2022).

50. 16 F.4th 712 (9th Cir. 2021).

51. Id. at 716.

52. Id. Subsequently the trial court issued an order allowing the psychological evaluation to take place in Spain and the psychologist agreed to do it in one week. Colchester v. Lazaro, No. C20-1571 MJP, 2022 WL 1078573 (W.D. Wash. Apr. 11, 2022).

53. No. 2:20-cv-13128, 2021 WL 5549062 (E.D. Mich. Oct. 1, 2021).

54. Id. at *4.

55. Bhattacharjee v. Craig, No. 4:21-CV-00826-SEP, 2021 WL 4504376, at *3 (E.D. Mo. Oct. 1, 2021).

56. J.C.C. v. L.C., No. 20-3289, 2022 WL 985873 (3d Cir. Mar. 31, 2022).

57. 2021 WL 4504376, at *4.

58. Id. at *5.

59. EP-21-CV-00286-FM, 2022 WL 620702 (W.D. Tex. Feb. 22, 2022).

60. Id. at *1–2.

61. Id. at *2.

62. Id. at *3.

63. Id.

64. Id. at *6.

65. Id.

66. Id. The respondent also demonstrated that returning the children would place them in a grave risk. Id. at *7.

67. Ascanio v. Crespo, No. 21-cv-23396-Cooke/Damian, 2022 WL 1812251 (S.D. Fla. May 11, 2022), report and recommendation adopted, 2022 WL 1801109 (S.D. Fla. June 2, 2022).

68. See Bhattacharjee v. Craig, No. 4:21-cv-00826-SEP, 2022 WL 2915545, at *4, 6 (E.D. Mo. July 25, 2022); Webster-Colquhoun v. Colquhoun, No. 21-CV-7101 (KMK), 2022 WL 2866470 (S.D.N.Y. July 21, 2022).

69. No. 3:21-cv-779-MMH-MCR, 2022 WL 3646325 (M.D. Fla. Aug. 24, 2022).

70. Id. at *4–5.

71. Sanchez v. Iduarte, No. 4:21-cv-0984-P, 2022 WL 1540581 (N.D. Tex. May 16, 2022).

72. No. 1:20CV1081, 2022 WL 99721 (N.D. Ohio Jan. 11, 2022).

73. Id. at *2–3.

74. Soberano v. Guillen, No. C21-1084 RSM, 2022 WL 1092675 (W.D. Wash. Apr. 12, 2022).

75. No. C21-1084 RSM, 2022 WL 110470, at *2–3 (W.D. Wash. Jan. 12, 2022).

76. No. 1:21-cv-01706-JLT-SAB, 2022 WL 1292261 (E.D. Cal. Apr. 29, 2022).

77. Id. at *3–4.

78. Lorenz v. Lorenz, No. 20-cv-13128, 2022 WL 1178501 (E.D. Mich. Apr. 20, 2022). The actual Hague proceeding in the Lorenz case was ultimately dismissed as moot since the children had been returned to Germany. Lorenz v. Lorenz, No. 2:20-cv-13128, 2022 WL 1400850 (E.D. Mich. Mar. 16, 2022).

79. Chafin v. Chafin, 568 U.S. 165, 179 (2013) (citations omitted); Dumitrascu v. Dumitrascu, No. 21-cv-01813-PAB, 2021 WL 4861837 (D. Colo. Sept. 15, 2021) (respondent unlikely to succeed on appeal due to the new definition of habitual residence); Dumitrascu v. Dumitrascu, No. 21-1341, 2022 WL 1529624 (10th Cir. May 16, 2022) (affirming district court determination of habitual residence).

80. Rodriguez v. Molina, 608 F. Supp. 3d 791 (S.D. Iowa 2022). See also McIntyre v. Smith, No. 21-cv-2182 (WMW/LIB), 2021 WL 5167280 (D. Minn. Oct. 7, 2021); Martínez v. Palmer, No. 4:21-cv-00520-DCN, 2022 WL 671212 (D. Idaho Mar. 7, 2022); Lopez v. Ash, No. 22-1053, 2022 WL 1207146 (W.D. La. Apr. 22, 2022); Vonnahme v. Lugo, No. 2:22-cv-00707-JAD-NJK, 2022 WL 1444645 (D. Nev. May 5, 2022); Aredes v. Aredes, No. 1: 22-cv-10666-IT, 2022 WL 2442631 (D. Mass. June 8, 2022).

81. No. 21-cv-09235-JD, 2021 WL 6617457 (N.D. Cal. Dec. 21, 2021).

82. Id. at *1; see also Bouillon v. Garcia, No. 2:22-cv-00123-DCN, 2022 WL 888707 (D. Idaho Mar. 25, 2022) (no need for a temporary restraining order where the evidence showed the parties had been in contact with each other and the issues could be resolved in a preliminary injunction proceeding); Krause v. Krause, No. 1: 21-cv-01706-JLT-SAB, 2022 WL 1605382, at *7 (E.D. Cal. May 20, 2022 (temporary restraining order was “unnecessary to preserve the status quo and to prevent irreparable harm to the Petitioner”); Brandt v. Caracciolo, No. 3:22-CV-00304-KDB-DSC, 2022 WL 2541997, at *2 (W.D.N.C. July 7, 2022) (denying temporary restraining order where “[t]he alleged unlawful removal of the Children from Sweden happened over a year ago, and Petitioner has offered no specific facts on which the Court could conclude that the Respondent is likely to act wrongfully if he is served with notice of this action and given an opportunity to appear and respond to Petitioner’s requests for relief”).

83. Interest of S.L., 503 P.3d 244 (Kan. Ct. App. Nov. 12, 2021).

84. Matrai v. Hiramoto, No. 21-15084, 2021 WL 5276021 (9th Cir. Nov. 12, 2021); see also Dawson v. Dylla, No. 21-1225, 2021 WL 5232251 (10th Cir. Nov. 10, 2021).

85. See Garcia v. Ramsis, No. 4:21-CV-650-SDJ, 2022 WL 1271129, at *1 (E.D. Tex. Apr. 28, 2022).

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Robert G. Spector

University of Oklahoma Law Center

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