Sunday, September 18, 2005

custody - international - Hague Convention

Baxter v. Baxter, Third Circuit Court of Appeals, September 15, 2005

District Court's denial of father's petition for return of child to Australia from the the US reversed by 3d Circuit. Father consented to child's initial removal to the U.S. with the mother, but not the child's retention here. Case remanded for the entry of an order granting the petition for return of the child to the country of habitual residence, Australia.

The Distict Court had jurisdiction under 28 USC 1331, since the action arose under the Hague Convention on the Civil Aspect of International Child Abduction, Oct. 25, 1980, 19 I.L.M. 1501, and its implementing legislation, the International Child Abduction Remedies Act, 42 USC 11601 et seq (ICARA). Under the ICARA, state and federal courts have concurrent original jurisdiction over actions arising under the Hague Convention.

Hague Convention (HC)
The HC has two main purposes
1) to secure the prompt return of children wrongfully removed to or retained in any contracting State, and
2) to ensure that rights of cutsody and access under the law of one contracting State are effectively respected.

The Convention's procedures are designed to restore the status quo prior to any wrongful removal or retention of a child, and to deter parents from engaging in international forum shopping in custody cases. The Convention is not designed to settle international custody disputes, but rather to ensure that cases are heard in the proper court.

To get an order for a child's return, the petitioner has the burden of proving by a preponderance of the evidence that the removal or retention was wrongful under the HC. A removal or retention is "wrongful" where a) it is in breach of rights of custody under the law of the state in which the child was habitually resident immediately before the removal/retention, and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

If the court finds a wrongful removal or retention, the burden shifts to the respondent, who must then prove an affirmative defense of a) consent or acquiescence to the removal or retention, by a preponderance of the evidence, or b) the defense of a "grave risk of harm" to the child, by clear and convincing evidence. Both of these affirmative defenses are narrowly construed, and even a finding of an exception does not automatically preclude an order of return. If a petitioner prevails, the HC requires courts to " 'order the return of the child forthwith.' "

The evidence was clear that father's consent for mother and child to come to the US was conditional and that he did not acquiesce in the child remaining in the US. Acquiescense depends of the parent's subjective intent. There was no settled purpose to leave Australia permanently and no acquiescense, as evidenced by the District Court's own conclusions that a) Australia remained the country of habitual residence at the time of removal, b) the parents were undecided about their next residence, and c) father's prompt contest of mother's decision to remain in the US and move in with a new male partner whom she had known for only a short time.

There was no "grave risk of harm" to the child if he was returned to the father in Australia. Such harm must involve a real risk of being hurt, physically or psychologically, as a result of repatriation, and not just inconvenience or hardship, the elimination of education opportunities, or the child's preferences.

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg