What are the six defenses to child abduction claims under the Hague Convention?
A parent who moves with a child from the child’s home country to another country, or retains the child in the other country, may face accusations that the move or retention is wrongful. The parent who stays behind may assert the parent who moved or kept the child from the home country committed wrongful child abduction in violation of international law.
Unless the parents agree to quick alternative dispute resolution such as mediation or the collaborative process, the parents will face fact-intensive, international litigation. The parent with the child must prove legal justification for removal or retention of the child. This article gives an overview of the Hague Convention defenses to international child abduction claims.
Table of contents
- International Child Abduction: The Hague Convention
- Threshold Question: Where Is the Child’s Habitual Residence?
- First Hague Defense: The Non-Traveling Parent Was Not Exercising Custody Rights
- Second Defense to Child Abduction Claims: The Non-Traveling Parent Acquiesced to the Move
- Third Hague Convention Defense: The Child of Sufficient Age and Maturity Objects to Being Returned
- Fourth Hague Convention Defense: The Child is Well-Settled in the New Environment
- Settled Environment Defense under the Hague Convention: Factors
- Settled Environment Hague Defense Upheld
- Settled Environment Hague Defense Unsuccessful
- Immigration Status: Settled Environment Defense to Child Abduction Claims
- Concealment and Inequitable Conduct: Interplay with the Hague Settled Environment Defense
- Fifth Hague Defense: Grave Risk of Physical or Psychological Harm if the Child is Returned
- Grave Risk of Harm Defense to Child Abduction Claims: What Is Clear and Convincing Evidence?
- More Terminology: What Does “Grave Risk” Mean?
- Grave Risk of Harm Defense to Child Abduction Claims Upheld: Abuse
- Grave Risk of Harm Defense to Child Abduction Claims Unsuccessful: Abuse
- Grave Risk of Harm Defense to Child Abduction Claims: Parent’s Drug Abuse
- Grave Risk of Harm Defense to Claims of Child Abduction: Intolerable Situation
- A Challenging Political Climate or Liking One Country Better Doesn’t Establish Grave Risk of Harm
- Grave Risk of Harm: Intolerable Situation – Past Gang Threats
- Sixth Hague Defense: Fundamental Principles Relating to the Protection of Human Rights and Fundamental Freedoms Do Not Permit Return of the Child
- Searchable Hague Convention Decisions: INCADAT
International Child Abduction: The Hague Convention
The Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980 T.I.A.S. No. 11,670, S. Treaty Doc. No. 99-11 U.N.T.S. reprinted in 51 Fed. Reg. 10494 (1986) (“Hague Convention”) establishes legal rights and procedures for the prompt return of children wrongfully removed or retained. The International Child Abduction Remedies Act (“ICARA”) is the statute in the United States that implements the Hague Convention. 22 U.S.C. §§ 9001-9011. One hundred other countries are Convention signatories. Status Table.
Under ICARA, a person may petition a court authorized to exercise jurisdiction in the country where a child is located for the return of the child to his or her habitual residence in another signatory country. See 22 U.S.C. § 9003; Hague Convention, art. 3(a), T.I.A.S. No. 11,670, at 4. Then the court with proper jurisdiction can determine the underlying, substantive time-sharing (custody) dispute.
In a return action under ICARA, the court’s inquiry, “is limited to the merits of the abduction claim and not the merits of the underlying custody battle.” Pielage v. McConnell, 516 F.3d 1282, 1286 (11th Cir.2008) (quoting Ruiz v. Tenorio, 39 2 F.3d 1247, 1250 (11th Cir.2004)). See also Palencia v. Perez, 921 F. 3d 1333, 1338 (11th Cir. 2019); De Carvalho v. Carvalho Pereira, 308 So. 3d 1078, 1086 (Fla. 1st DCA 2020); 22 U.S.C. § 9001(b)(4); Hamprecht v. Hamprecht, 2012 WL 1890857, Case No. 2:12–cv–125–FtM–29DNF (M.D. Fla. 2012).
Wrongful Removal or Retention Under ICARA
A petitioner establishes wrongful removal or retention under ICARA by demonstrating by a preponderance of the evidence:
(1) the habitual residence of the child immediately before the date of the allegedly wrongful removal or retention was in the country to which return is sought;
(2) the removal or retention breached the petitioner’s custody rights under the law of the child’s habitual residence;
(3) the petitioner was exercising or would have been exercising custody rights of the child at the time of the child’s removal or retention; and
(4) the child has not reached age 16.
See Lops v. Lops, 140 F.3d 927, 936 (11th Cir.1998); Hamprecht v. Hamprecht, 2012 WL 1890857, Case No. 2:12–cv–125–FtM–29DNF (M.D. Fla. 2012); De Jesus Joya Rubio v. Alvarez, 526 F. Supp. 3d 1186, Case No. 1:20-cv-24208-KMM (SD Fla. 2021).
Under the Hague Convention and ICARA, when a child has been wrongfully removed from the child’s home nation-state or “habitual residence,” the court must order the child to be returned to the habitual residence, unless the party removing the child can establish at least one of six narrow affirmative defenses. See Furnes v. Reeves, 362 F.3d 702, 712 (11th Cir. 2004). Hague Convention art. 12, 13, 20.
Threshold Question: Where Is the Child’s Habitual Residence?
Where is a child’s “habitual residence?” The Hague Convention doesn’t define “habitual residence.” But, in 2020, in Monasky v. Taglieri, 140 S. Ct. 719 (February 25, 2020), the United Supreme Court held a child’s habitual residence depends on the totality of the circumstances specific to the case. Nowlan v. Nowlan, Case No. 21-1965 (4th Cir. Jan. 4, 2022). A child resides where she lives. 140 S. Ct. at 726.
Unless the totality of the circumstances dictates otherwise, a child wrongfully removed from her country of “habitual residence” must be returned to that country. See Smith v. Smith, 976 F. 3d 558, 561-62 (5th Cir. 2020); De Los Angeles Gilede Solano v. Parra, Case No. 8:20 cv-2127-T-02CPT (M.D. Fla. September 11, 2020). See also Keating, Amy and Reynolds, Chris, Defining Habitual Residence in the Hague Convention, Family Lawyer Magazine (Fall 2020) (discussing standards for habitual residence).
First Hague Defense: The Non-Traveling Parent Was Not Exercising Custody Rights
The first defense to child abduction claims a traveling parent may raise under the Hague Convention is the person seeking the child’s return wasn’t exercising rights of custody at the time of the removal or retention of the child. Only a party with custody rights can seek return of the child.
Rights of Custody and Rights of Access: First Hague Convention Defense
The Hague Convention, art. 5, distinguishes between “rights of custody” and “rights of access” to a child. Furnes v. Reeves, 362 F.3d 702, 711 (11th Cir.), cert. denied, 543 U.S. 978, 125 S.Ct. 478, 160 L.Ed.2d 355 (2004), abrogated on other grounds by Lozano v. Montoya Alvarez, 572 U.S. 1, 4 (2014).
Rights of custody “shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” Id. (quoting Convention, art. 5(a)) (emphasis added by Furnes). See also Abbott v. Abbot, 560 U.S. 1, 9 (2010). On the other hand, rights of access “shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.” Furnes at 711 (quoting Hague Convention, art. 5(b)).
The Furnes court held a parent’s ne exeat right to prohibit a child from living outside of the child’s habitual residence provides the parent decision-making authority about the child’s international relocation. Such authority is a “custodial right” under the Hague Convention.
Court Rulings May Establish Rights of Custody
A custody ruling from a court from the child’s habitual residence may establish a right of custody. Compare Sanchez v. Suasti, 140 So. 3d 658 (Fla. 3d DCA 2014) (Brazilian court’s ruling a father had a right to prohibit mother from changing children’s country of residence established “rights of custody” under the Hague Convention) with Jaksic v. Serif, Case No. CV-14-01937-PHX-NVW. (D. Arizona November 26, 2014) (Serbian dissolution judgment granted father no express right of custody or unconditional right of access to his son and father was not exercising greater rights when mother removed the child from Serbia).
“Rights of custody” for Hague Convention analysis may arise by operation of civil law establishing parental rights and obligations. See Roque-Gomez v. Tellez-Martinez, No. 2:14-cv-398-FtM-29DNF, 2014 WL 7014547, at *6 (MD Fla. Dec. 11, 2014) (Mexican doctrine of patria potestas — parental authority/responsibility – provided each parent with rights and responsibilities regarding children, including custody and care, which created a “right of custody” under the Hague Convention). See also Garcia v. Angarita, 440 F. Supp. 2d 1364 (SD Fla. 2006) (discussing ne exeat and patria potestas rights father had under Colombian law).
Exercise of Rights of Custody When There’s Been No Court Order
What if there’s been no court order establishing rights of custody? The Hague Convention does not define “exercise” of rights of custody.
The US Supreme Court instructs courts to interpret “rights of custody” broadly to bring as many cases as possible under the Hague Convention. Abbott v. Abbot, 560 U.S. 1 (2010). See In re Leslie, 377 F. Supp. 2d 1232 (SD Fla. 2005) (courts interpret “exercise” liberally).
A parent who keeps or seeks to keep any regular contact with the child has “exercised” custody rights. In Leon v. Ruiz, Case. No. MO:19-CV-00293-RCG (WD Texas March 13, 2020), a mom made no showing that dad abandoned his child, who had been staying with him immediately prior to mom’s removal of the child to the United States from Mexico. Dad was thoroughly involved in the child’s life. He went to birthday parties, her graduation from grade level K-1, and piano recitals. He paid for private school and piano lessons. Applying Mexican law within the State of Quintana Roo, Mexico, where Cancun is, the court found mom had breached dad’s rights of custody. Even with no formal custody agreement between the parents or order, under the patria potestad doctrine, both parents had joint custody rights. The involved dad exercised his.
A Parent’s Regular Involvement with the Child Is Exercise of Custody Rights
As discussed above, parents who haven’t abandoned their kids, but have stayed involved, have exercised their custody rights, even when no court order has formally established them.
For example, in Friedrich v. Friedrich, 78 F. 3d 1060 (6th Cir. 1996), a German dad’s attempt to maintain a regular relationship with the 2-year old child constituted “exercise” of rights of custody under German law, which gives both parents equal de jure custody.
Once a court has found the parent left behind exercised custody rights, “it should stop – completely avoiding the question of whether the parent exercised the custody rights well or badly.” Id. at 1066. Such matters go to the merits of the custody dispute and are beyond the subject matter jurisdiction of the federal court, the job of which is to determine if a parent’s removal of a child from the child’s habitual residence or retention of the child was wrongful.
Keeping or seeking to keep regular contact with a child is exercise of custody rights. A parent can’t fail to ‘exercise’ those custody rights under the Hague Convention short of the parent’s having clearly and unequivocally abandoned the child. Tomynets. v. Koulik, Case No. 8:16-cv-3025-T-27AAS (MD Fla. May 26, 2017) (absent a ruling from a court in the country of habitual residence, when a parent with de jure custody rights keeps or seeks to keep regular contact with the child, the court should find the parent has “exercised” custody rights).
Case Illustrations of Exercising Custody Rights
Multiple Hague cases illustrate this point. For example, see In re Ahumada Cabrera, 323 F. Supp. 2d 1303, 1312 (SD Fla. 2004); Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347, 1359 (MD Fla. 2002) (dad exercised rights by supporting the children and visiting regularly, deciding about school, and attending to his daughter’s medical needs).
In Garcia v. Ramsis, Civil No. 4:21-CV-650-SDJ (ED Tex. January 31, 2022), the dad exercised rights of custody from his daughter’s birth until mom removed her from Spain to the United States, provided the child a home, lived with and interacted with her before mom removed her, assisted with her medical care, and provided food for her).
A similarly involved dad in Stirk v. Lopez, Case No. 8:20-cv-2894-SDM-AAS (MD Fla. March 25, 2021) exercised his custody rights by regularly visiting and financially supporting his daughter and initiating actions to secure her return from Florida to Mexico. Another father’s visiting the children 5 times a year and paying child support had exercised custody rights, in Sealed Appellant v. Sealed Appellee, 394 F. 3d 338, 343-44 (5th Cir. 2004).
Still other cases held a parent who kept involved with the child didn’t abandon the child. For instance, in Fernandez v. Somaru, No. 2:12-cv-262-FtM-29DNF (MD Fla. August 17, 2012), there was no evidence of any acts by a Costa Rican mom that constituted clear and unequivocal abandonment of her child, In Garcia v. Varona, 806 F. Supp. 2d 1299 (ND GA 2011), the father sought to be a continual presence and influence in the life of the children until their wrongful removal from Seville, Spain to Atlanta, Georgia. The father in Giampaolo v. Erneta, 390 F. Supp. 2d 1269 (ND Ga. 2004) exercised rights of custody by regular involvement with his child’s school.
Second Defense to Child Abduction Claims: The Non-Traveling Parent Acquiesced to the Move
Under Article 13(a) of the Hague Convention, a court is not bound to order the return of a child if the respondent demonstrates by a preponderance of the evidence that the person having care of the child gave prior consent to the removal or retention or later acquiesced in the removal or retention. This second Hague Convention defense to child abduction claims is the “consent or acquiescence” defense.
Proof of consent or acquiescence by a parent to a child’s residing in the foreign country rebuts a claim for wrongful removal or retention. See Friedrich v. Friedrich, 78 F. 3d 1060 (6th Cir. 1996) (proving acquiescence requires a showing of a formal act or statement, such as testimony or a written renunciation of rights, or a consistent attitude of acquiescence over a significant period).
Second Hague Convention Defense: What Do Consent and Acquiescence Mean?
Consent refers to the left behind parent’s conduct before the alleged wrongful retention. Baxter v. Baxter, 423 F. 3d 363 (3d Cir. 2005). The parent’s conduct after the retention may inform whether the parent consented to it. See Pflucker v. Warms, Case No. 8:21-cv-1869-WFJ-JSS (MD Fla. October 6, 2021) (among other acts showing consent, mom visited Louisville, Kentucky apartment complexes less than a month before the alleged wrongful retention, a Louisville school one day prior, and, after the retention, leased a Tampa, Florida apartment, enrolled the kids in a Tampa school for 2021-2022, and worked with immigration attorneys to pull together documents to apply for permanent residency in the U.S.).
Subjective Intent of Parent Who Allegedly Consented or Acquiesced to Removal
Determining whether a petitioner consented to a child’s retention requires an inquiry into her subjective intent. Baxter, 423 F. 3d at 371. Likewise, determining a parent’s acquiescence to removal or retention is a subjective inquiry. Id.; Pesin v. Osorio Rodriguez, 77 F. Supp. 2d 1277 (SD Fla. 1999).
Under the Hague Convention, acquiescence “requires either: evidence of 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.” See Roque-Gomez v. Tellez-Martinez, Case No. 2:14-cv-398-FtM-29DNF (MD Fla. 2014).
No Consent or Acquiescence
In Roque-Gomez, mom didn’t acquiesce to her son’s retention in Florida. After living with the child in Mexico for years, she demanded dad return the child to Mexico. She tried to enter the U.S. illegally to retrieve him. She sought the Mexican Central Authority’s help to get him back. See also Friedrich v. Friedrich, 78 F. 3d 1060 (6th Cir. 1996) (German dad did not consent and acquiesce to mom’s removal of their son to Ohio, but resolutely sought custody after she took the child to Ohio, and an isolated, inconsistent, casual statement he allegedly made to a third-party at a cocktail party was insufficient evidence of acquiescing to the removal).
Similarly, in Hamprecht v. Hamprecht, 2012 WL 1890857, Case No. 2:12–cv–125–FtM–29DNF (MD Fla. May 24, 2012) the court found no consent or acquiescence to a son’s remaining indefinitely with mom in Florida. Dad pursued custody in Germany and an ICARA petition in Florida, where mom was wrongfully retaining the child. See also Fernandez v. Somaru, No. 2:12-cv-262-FtM-29DNF (MD Fla. 2012) (mom consented to her daughter’s visiting Florida, but not to dad’s retaining daughter in the U.S. permanently).
Acquiescence Through Acts Before and After Removal or Retention
Compare that outcome with the one in Pflucker v. Warms, Case No. 8:21-cv-1869-WFJ-JSS (MD Fla. October 6, 2021). A dad proved the consent and acquiescence defenses by showing the Peruvian dentist mom acquiesced in their children’s staying in Kentucky. The parents had discussed for a long time and prompted by the effects of the COVID-19 pandemic on the family, decided to move to the United States. WhatsApp messages in evidence showed the parents took acts consistent with applying for permanent residency in the United States.
Delay in Asserting Rights Can Be Acquiescence, But Deception or Concealment Must Be Considered
Concealment and Acquiescence
Delay in asserting a parent’s rights can amount to acquiescence in the child’s removal or retention. But a court must consider the removing or retaining parent’s concealment of the child before finding delay constituted acquiescence.
For example, in Garcia v. Angarita, 440 F. Supp. 2d 1364 (SD Fla. 2006), any delay by a father, who agreed to allow his children to travel to the United States for a brief visit, in notifying the mother he objected to the children’s relocation to the United States, did not constitute acquiescence. Mom never sought his agreement. He never said or did anything that evidenced he acquiesced to relocation. She perpetrated relocation through deception. He acted to secure the return of the children.
The dad in In re Leslie, 377 F. Supp. 2d 1232 (SD Fla. 2005) didn’t acquiesce in the removal of his son from Belize to the United States, to live with the child’s mother and her husband. There was conflicting evidence about whether the mother notified him of the move. Further, dad aggressively pursued return of the son, both in Belize and the United States.
Other Case Examples of Parent’s Not Acquiescing to Child’s Removal or Retention
Other cases illustrate this point. In In re Ahumada Cabrera, 323 F. Supp. 2d 1303 (SD Fla. 2004), mom’s retention of a child in the United States only became wrongful when dad learned of her true intention not to return, even though he earlier knew she and child were not returning on the date they were originally supposed to return. He’d agreed to let the child finish the school year. He tried to get assistance in Argentina through the Central Authority to obtaining return of the child. His efforts rebutted the mom’s defense he acquiesced to the child’s removal.
In another case, Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347 (MD Fla. 2002), the court found no acquiescence by a parent to removal. The father was exercising his custody rights over the children when their mother removed them from Argentina, even though he was separated from her and on a 19-day trip to India when she fled. Dad kept in regular contact with the children and paid the family bills.
See also Rodriguez v. Sieler, 2012 WL 5430369 *6 (D. Mont. 2012) (dad removed children from Mexico while mom was sleeping and concealed his plan; her later efforts to negotiate a settlement about the children’s care and custody couldn’t be construed as acquiescence in his continued wrongful retention of the children).
Third Hague Convention Defense: The Child of Sufficient Age and Maturity Objects to Being Returned
A third Hague Convention defense to child abduction claims is the age and maturity defense.
If the responding parent demonstrates by a preponderance of the evidence that the child objects to being returned and has attained an age and maturity at which it’s appropriate to consider the child’s views, a court may deny the other parent’s petition for return of a child. See Article 13(b) of the Hague Convention; Rodriguez v. Yanez, 817 F. 3d 466 (5th Cir. 2016) (the district court had the opportunity to observe and question the child and concluded she had the age and maturity for her views to be considered); England v. England, 234 F. 3d 268 (5th Cir.2000).
Pérez-Vera Explanatory Report Gives Guidance on Hague Convention Defenses
In determining if the child objected to being returned to Mexico, the Rodriguez court drew guidance from The Elisa Pérez-Vera Explanatory Report: Hague Convention on Private International Law — recognized as the official history, commentary, and source of background on the meaning of the provisions of the Convention. Explanatory Report: Hague Conference on Private International Law, 3 Acts and Documents of the Fourteenth Session 426 (1980). See Silva v. Dos Santos, 68 F. 4th 1247 (11th Cir. May 26, 2023); Sealed Appellant v. Sealed Appellee, 394 F. 3d 338 (5th Cir.2004); Gomez v. Fuenmayor, 812 F. 3d 1005, 1011 n. 1 (11th Cir. 2016) (quoting Ruiz v. Tenorio, 392 F. 3d 1247, 1252 n.2 (11th Cir. 2004)).
The age and maturity exception is rooted in a mature child’s autonomy not to be returned against her will and allows her to interpret her own interests. Her choice between two countries is a choice to continue living with the abducting parent or not. The court may give little weight to the child’s objection if the court believes the abducting parent exercised undue influence over the child. See Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F. 3d 259, 279 (3d Cir. 2007); de Silva v. Pitts, 481 F. 3d 1279, 1286 (10th Cir. 2007).
How Old Must A Child Be?
For the third defense to child abduction claims under the Hague Convention, there’s no age at which a child is deemed sufficiently mature for the child’s views to be considered. Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F. 3d 259 (3d Cir. 2007).
In Romero v. Bahamonde, Nos. 20-14557, 21-10378 (11th Cir. May 21, 2021), the Eleventh Circuit Court of Appeals affirmed the District Court’s finding that a 14-year-old girl who provided lengthy, detailed particularized objections to being repatriated to Chile, based on her father’s verbal and physical abuse of her mother, established the age and maturity defense. See also Sadoun v. Guigui, Case No. 1:16-cv-22349-KMM (SD Fla. August 22, 2016) (14- and 12-year old boys who exhibited depth and breadth of conversation that belied their age, objected to returning to France and were of sufficient age and maturity for the court to consider their views).
The Age and Maturity Defense to Child Abduction Claims: Narrow and Subject to Fact-Intensive Analysis
The age and maturity Hague Convention defense must be applied narrowly. England, 234 F. 3d at 272. Each case is fact intensive.
Courts may receive evidence of a child’s objection to being returned to the country of habitual residence in four ways:
(1) the child’s testimony in open court;
(2) interviewing the child in camera;
(3) requesting a psychological evaluation of the child; or
(4) appointing an attorney or guardian ad litem.
Fact Intensive Analysis
Decisions reflect fact-intensive analysis before courts found the age and maturity exception applied or did not. See, e.g., Roque-Gomez v. Tellez-Martinez, Case No. 2:14-cv-398-FtM-29DNF (MD Fla. 2014) (11-year old child’s tendency to be untruthful and entirety of evidence showed he had not attained sufficient maturity to warrant consideration of his opinion he wanted to stay in the US).
In Morales v. Martinez, Case No. 2:14-cv-88-FtM-29CM) (MD Fla. 2014), a 12-year old child’s objection to returning to Mexico was not conclusive. The court exercised its discretion to order her return to habitual residence, to further the aims of the Hague Convention.
The appellate court in Escobar v. Flores, 183 Cal. App. 4th 737, 107 Cal. Rptr. 3d 596 (Cal. App. 3 Dist. 2010) affirmed the trial court’s refusal to return to Chile a 9-year old child. The child was communicative, was under no undue influence, and demonstrated sufficient age and maturity to consider his objection to being returned to Chile.
In contrast, in Lopez v. Alcala, 547 F. Supp. 2d 1255 (MD Fla. 2008), a 7-year-old child hadn’t reached an age and maturity; a 10-year-old sister had, but her wishes were ambivalent. Similarly, a 6-year-old was too young and immature for a court to take her views into account in In re D.D., 440 F. Supp. 2d 1283 (MD Fla. 2006).
Hague Convention Age and Maturity Defense: Young Children’s Views Can Sometimes Be Considered
Some very young children, in contrast, have developed sufficient maturity for courts to consider their views in deciding if the Hague Convention age and maturity defense applies. For example, a 9-year-old child in Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347 (MD Fla. 2002) had reached an age of maturity such that his views should be considered. Likewise, an 8-year-old girl in. Application of Blondin v. Dubois, 78 F. Supp. 2d 283 (S.D.N.Y. 2000) aff’d sub nom. Blondin v. Dubois, 238 F. 3d 153 (2d Cir. 2001), who objected to being returned to an abusive father, was “a remarkably mature” child, “probably in no small part due to the very adult proceedings and issues that she has been confronted with over the past two years.”
Fourth Hague Convention Defense: The Child is Well-Settled in the New Environment
A fourth defense to child abduction claims under the Hague Convention is the well-settled defense (or “settled environment” defense).
A parent who has wrongfully removed or retained a child must return the child to the habitual residence unless the responding parent demonstrates the child is “well-settled” in the new environment. Hague Convention, Article 12.
Two Elements for the Responding Parent to Prove the Settled Environment Defense
A court isn’t bound to order the child’s return if the responding parent demonstrates by a preponderance of the evidence:
(a) the proceedings were commenced more than one year after the wrongful removal or retention, and (b) the child is settled in the new environment.
See Wigley v. Hares, 82 So. 3d 932 (Fla. 4th DCA 2011) (child had not become “settled” in his environment); In re Ahumada Cabrera, 323 F. Supp. 2d 1303 (SD Fla. 2004) (child wanted to remain in the United States and appeared to be happy and doing well, but wasn’t settled in her new environment, where mother was allegedly wrongfully retaining child, had changed the child’s schools and residences approximately 5 times in the 2½ years she’d been in the United States, and any stability she might have had was undermined by mother’s uncertain immigration status).
Applying these elements, the court in Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347 (MD Fla. 2002) found children removed from Argentina weren’t well settled in Florida. They had lived in 7 locations during their 18 months in the United States and had been treated for stress.
“Settled in New Environment” Hague Convention Defense: But What Does “Settled” Mean?
The Convention doesn’t define “settled” or provide guidance. Figueredo v. Del Carmen Rojas, Case No. 3:22-cv-1268-TJC-LLL (MD Fla. April 18, 2023).
The Wigley court looked to the U.S. State Department for interpretation of what “settled” means:
The Convention does not provide a definition of the term “settled.” However, the U.S. State Department has declared that “nothing less than substantial evidence of the child’s significant connections to the new country is intended to suffice to meet the respondent’s burden of proof.”Public Notice 957, Text & Legal Analysis of Hague International Child Abduction Convention, 51 Fed.Reg. 10494, 10509 (U.S. State Dep’t Mar. 26, 1986)
Settled Environment Defense under the Hague Convention: Factors
Factors to analyze when considering a “settled environment” defense to child abduction claims include:
- The child’s age;
- The stability and duration of the child’s residence in the new environment;
- Whether the child attends school or day care consistently or inconsistently;
- Whether the child has friends and relatives in the new area or does not;
- The child’s participation in community or extracurricular school activities, such as team sports, youth groups, or school clubs;
- The respondent’s employment and financial stability. In some circumstances, we will also consider the immigration status of the child and the respondent. In general, this consideration will be relevant only if there is an immediate, concrete threat of deportation; and
- the reasons for any delay in initiating the petition for the child’s return.
See Da Silva v. Vieira, Case No. 6:20-cv-1301-Orl-37GJK (MD Fla. September 23, 2020). See also Lopez v. Alcala, 547 F. Supp. 2d 1255 (MD Fla. 2008); In re Koc, 181 F. Supp. 2d 136 (ED NY 2001); Wigley (citing In re B. Del C.S.B., 559 F. 3d 999 (9th Cir.2008)); Lozano v. Alvarez, 697 F. 3d 41 (2d Cir. 2012); Litigating International Child Abduction Cases Under the Hague Convention, National Center for Missing & Exploited Children, Training Manual (2012) at pp. 40-41 n. 187.
Nothing less than substantial evidence of the child’s significant connections to the new country will suffice to meet the defending party’s burden of proof of the well-settled exception. See Moura v. Cunha, Civil Action Nos. 1:13-cv-12831-WGY, 1:13-cv-12805-WGY (D. Mass. December 22, 2014) (respondent presented no evidence of the child’s social networks and relationships to find she was well-settled in the US).
Settled Environment Hague Defense Upheld
Cases that have upheld the “settled environment” Hague defense include cases in which the removed or retained children had lived in a stable place while in the U.S., attended the same school, and formed relationships in the U.S.
Figueredo v. Del Carmen Rojas
For example, the well-settled defense carried the day in Figueredo v. Del Carmen Rojas, Case No. 3:22-cv-1268-TJC-LLL (MD Fla. April 18, 2023). There, mom was wrong to take the a 5-year-old son from Venezuela. But, by the time the court was considering her well-settled defense, the nearly 8-year-old child was stable and was thriving in the United States. He lived at the same address and attended the same school since he came to the US. He had flourished in school, had close friends, was well-liked, learned English, and enjoyed swimming and martial arts. Mom had legal work authorization, was an on-the-books employee, and owned a car.
The Court said:
But this case is not just about Mr. Cuenca or Ms. Rojas. C.R. is in this equation too, and he has a happy life, close friends, and settled routine in the United States. Mr. Cuenca has shown that he can readily come to the United States to visit, and he and C.R. talk via FaceTime almost daily. The Court is loath to further disrupt C.R.’s life. Although this is a close case, the Court will not order his return to Venezuela.
Sabbagh v. Aponte
Similarly, a Venezuelan mother who wrongfully took the children to the US successfully asserted the well-settled defense in Sabbagh v. Aponte, Case No. 1:23-cv-20581-PAS (SD Fla. June 2, 2023). She established:
- She had a steady job.
- Her family provides emotional and financial support.
- Her family provided the children stable housing.
- The children were enrolled in school and extracurricular activities.
- The children were learning English quickly.
- She had been the one constant in the children’s lives.
- If the children were to return to Venezuela, they would return to a familiar town but to a foreign living situation — a house they never lived in with a stepmother they never met while physically separated from their mother.
- The father, who successfully kept his worlds separate when the children lived in Venezuela, would assume full-time custodial parenting responsibilities, something he had never done.
- The father was not skilled at emotionally connecting with the children.
- Granting the Father’s petition for return would not restore the status quo for the children, as is intended by the Convention.
The court expressed its frustration about the parents’ inability to resolve their custody issues:
This is a distressing case. Given the undisputed opinion of the parties’ joint expert witness [Note: Miami psychologist Miguel A. Firpi], it is frustrating that two competent adults who obviously love their wonderful and well-settled Children cannot work out a rational plan so that the Children can continue to have a relationship with their Father while not separating them from their Mother, that the Father insists that he does not want to do. Further, while it is unquestionable that Venezuela is the appropriate forum to address the custody dispute between the parents, neither party has made an effort to do so. This Court is not authorized to make that determination. The parents’ refusal or inability to reach a custody resolution, even when urged by the Court at the conclusion of the evidentiary hearing, reflects that the parents cannot put their Children’s interests before their individual motivations.Sabbagh v. Aponte (emphasis added).
Other Well-Settled Children Who Had Been Removed
And, in Roque-Gomez v. Tellez-Martinez, Case No. 2:14-cv-398-FtM-29DNF (MD Fla. December 11, 2014), the court denied return of child to Mexico. The child had lived in Florida for 7 of 11 years of his life in stable living arrangement with his dad and new family in a suitable residence. He had his own room, attended school regularly, and made new friends. Dad, a day laborer, had lived in the US since 1999, married a US citizen, filed US income taxes, and had taken steps to secure a permanent US visa.
Similarly, the father in Tavaras v. Morales, 22 F. Supp. 3d 219 (S.D. NY 2014) proved the settled environment defense to return. He showed his 8-year old daughter had been in the U.S. 15 months, was doing well in public school. She had close friends in New York, lived in a stable household with him and her grandmother. She frequently visited other family members in Manhattan. The daughter stated she’d rather live in New York with her father rather than in Spain with her mother.
Stable New Home and School
Another child got to stay in New York in In re Lozano, 809 F.Supp.2d 197 (S.D. N.Y. 2011). The child, age 5, had become close to family members she’d been living with in NY for 16 months. She was in a stable school environment. She had friends and was participating in activities). A later US Supreme Court decision affirmed the order denying repatriation to the United Kingdom. Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1236, 188 L.Ed. 2d. 200 (2014) (rejecting the doctrine of equitable tolling of the 1-year period within which to bring a wrongful retention petition).
Other children were well settled in stable homes and flourishing in school, justifying applying the settled environment defense. For example, see Castillo v. Castillo, 597 F. Supp. 2d 432 (D. Del. 2009) (11-year old child had 1 residence and 1 school since arriving in the United States when she was 9, received attendance awards, had improved grades, fluency in English, and had many friends at school). See also Silvestri v. Oliva, 403 F. Supp. 2d 378 (D.N.J. 2005) (children had lived in the same town in NJ for 2½ years, attended the same school system, were doing well in school, were fluent in English, and had relationships with friends at school).
Settled Environment Hague Defense Unsuccessful
In contrast, when children lived in various places and attended multiple schools since being brought to the U.S., courts have rejected the settled environment defense to child abduction claims. For example, in Wigley v. Hares, 82 So. 3d 932 (Fla. 4th DCA 2011), a 10-year old son hadn’t become settled in his environment. Although he lived in the same home for 4 years, he hadn’t attended school or been properly home schooled, hadn’t participated in activities, and had limited access to friends and family members. Plus, his mom was an undocumented illegal alien and unemployed.
Similarly, the court rejected the settled environment Hague defense in In re Filipczak, 838 F. Supp. 2d 174 (S.D. N.Y. 2011). There, the kids were 3 and 4 years old. They lived in a domestic violence shelter in Chicago, then in Manhattan, and then with the mother’s fiancé in Connecticut and had gone to multiple schools.
Immigration Status: Settled Environment Defense to Child Abduction Claims
Some courts consider immigration status in the “settled environment” analysis, even if deportation is not imminent. See Da Silva v. Vieira, Case No. 6:20-cv-1301-Orl-37GJK (MD Fla. September 23, 2020) (Brazilian children had overstayed their tourist visas and, although they had applied for asylum in the United States, their applications had not been approved nor was there indication the applications had merit).
See also In re Koc, 181 F. Supp. 2d 136 (E.D.N.Y. 2001); Lopez v. Alcala, 547 F. Supp. 2d 1255 (MD Fla. 2008)(finding that the children’s “residence in this country is not stable because neither [the abducting parent] nor the children have legal alien status and, as such, are subject to deportation at anytime”); Giampaolo v. Erneta, 390 F. Supp. 2d 1269 (ND Ga. 2004) (although 11-year old child had regularly attended school, participated in activities, and made friends in the U.S., she had lived in 3 homes, attended 3 schools, the mother and child were illegally in the U.S., and they would be living with the mother’s husband, a convicted felon under the Georgia Family Violence Act).
Concealment and Inequitable Conduct: Interplay with the Hague Settled Environment Defense
A court may also consider the active measures the person who removed the child has undertaken to conceal the child’s whereabouts, and the prospect that the abducting parent could be prosecuted for violations of law based on the concealment. Lops v. Lops, 140 F. 3d 927 (11th Cir. 1998); Wigley v. Hares, 82 So. 3d 932 (Fla. 4th DCA 2011).
In 2014, the United States Supreme Court, resolving a split among Federal Circuit Courts, held the 1-year period in Article 12, after which a parent may assert the “well-settled” defense, is not subject to equitable tolling. Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 188 L.Ed. 2d. 200 (2014). But the parent’s inequitable conduct would weigh heavily in favor of returning a child even if she became settled. Id. See also Romero v. Bahamonde, Nos. 20-14557, 21-10378 (11th Cir. May 21, 2021) (finding the retaining parent’s well-settled defense applied).
Fifth Hague Defense: Grave Risk of Physical or Psychological Harm if the Child is Returned
Widespread in Hague Convention cases is the defense to child abduction claims known as the “grave risk of harm” defense. Indeed, the US Supreme Court has referred to the “grave risk” defense to return of a child as the Convention’s prime exception. Monasky v. Taglieri, 140 S. Ct. 719 (February 25, 2020); Silva v. Dos Santos, 68 F. 4th 1247 (11th Cir. May 26, 2023).
A court is not bound to order the return of a child if the responding parent demonstrates by clear and convincing evidence grave risk the child’s return would “expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Article 13(b) of the Hague Convention; Monaksy.
Grave Risk of Harm Defense to Child Abduction Claims: What Is Clear and Convincing Evidence?
A parent defending a petition for return of a child with the grave risk of harm Hague defense must prove it by “clear and convincing” evidence. But what does that mean?
The Court summarized the clear and convincing standard in Colon v. Mejia Montufar, 470 F. Supp. 3d 1280 (SD Fla. 2020):
“Clear and convincing evidence is a `demanding but not insatiable’ standard, requiring proof that a claim is highly probable.'” Nejad v. Attorney Gen., State of Ga., 830 F.3d 1280 (11th Cir. 2016) (citation omitted). “`[H]ighly probable’ is a standard that requires `more than a preponderance of the evidence but less than proof beyond a reasonable doubt.'” Id.(citation omitted); see Ward v. Hall, 592 F.3d 1144 (11th Cir. 2010). Moreover, “[o]nly evidence directly establishing the existence of a grave risk … is material to the court’s determination.” Gomez, 812 F.3d at 1012 (citation omitted).
One Witness’s Testimony Can Satisfy the Burden to Prove “Grave Risk” by Clear and Convincing Evidence
Even with no independent corroboration by another witness of a defending parent’s testimony, a factfinder’s believing a single witness’s testimony can satisfy the burden to prove a fact by clear and convincing evidence.
This principle played out in Silva v. Dos Santos, 68 F. 4th 1247 (11th Cir. May 26, 2023). There, the district judge could have found a Brazilian father’s “noncredible denials and non-denial denials” corroborated the mother’s testimony about abuse. In resolving a mother’s “grave risk of harm” defense to the father’s petition for return of their daughter under the Convention, the district court expressly disbelieved his testimony. Still, that didn’t mean the mother’s testimony about his prolonged alleged abuse and grave risk to the daughter if the court ordered return to Brazil was uncorroborated.
Indeed, discredited or false explanations may be substantive evidence to corroborate a fact. United States v. Eley, 723 F. 2d 1522 (11th Cir. 1984); United States v. Brown, 53 F. 3d 312 (11th Cir. 1995); McGautha v. California, 402 U.S. 183 (1971); United States v. Margarita Garcia, 906 F. 3d 1255 (11th Cir. 2018); Swaters v. Osmus, 568 F. 3d 1315 (11th Cir. 2009).
More Terminology: What Does “Grave Risk” Mean?
In evaluating the Hague grave risk of harm defense, there’s no clear definition of “grave risk.” Luis Ischiu v. Gomez Garcia, 274 F. Supp. 3d 339 (DC MD August 14, 2017). The removing parent must show the risk to the child is “grave, not merely serious.” Friedrich v. Friedrich, 78 F. 3d 1060, 1068 (6th Cir. 1996) (quoting Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10494-01, 10510 (Mar. 26, 1986)).
Even with no clear definition of “grave risk,” courts describe two situations that present “grave risk of harm” to a child: (1) “returning the child to a zone of war, famine, or disease,” and (2) evidence of “serious abuse or neglect, or extraordinary emotional dependence.” Baran v. Beaty, 526 F. 3d 1340, 1347 (11th Cir. 2008) (quoting Friedrich v. Friedrich, 78 F. 3d 1060 (6th Cir. 1996)); Gil-Leyva v. Leslie, Case No. 17-cv-01406-KLM (D. Colo. April 17, 2018).
Grave Risk Examples from the US State Department
The US State Department gives examples to illustrate the principles underlying the grave risk exception.
- Not grave risk: situations in which money at home is scarce or educational opportunities are limited.
- Grave risk: a parent’s sexual abuse of a child where the court’s denying a petition for return under the Convention would protect the child from being returned to an intolerable situation.
The Hague defenses to returning a child to the habitual residence, including the “grave risk of harm” exception, are prospective, not retrospective. See Sierra v. Tapasco, Case No. 4:15-CV-00640 (SD Tex. September 28, 2016)(past acts of domestic abuse or drug activity in home are insufficient to show grave risk of harm); Sanchez v. R.G.L.,761 F. 3d 495, 509 (5th Cir. 2014).
Discretion to Consider Ameliorative Measures: Grave Risk of Harm Defense
Once a trial court has found return would expose the child to a grave risk of harm, the court isn’t required to examine all possible “ameliorative measures” before denying a petition for return. Golan v. Saada, 142 S. Ct. 1880, Case No. 20-1034 (2022). Ameliorative measures are steps that could lessen risk of grave harm to a child if the court ordered return.
By providing a court “is not bound” to order return upon making a grave risk finding, Article 13(b) of the Hague Convention lifts the return requirement. That leaves a trial court discretion to grant or deny return. Golan.
In Golan, the United States Supreme Court rejected an abusive Italian dad’s argument the Hague Convention implicitly requires a court, when determining if the grave risk of harm defense applies, to consider if any ameliorative measures are available.
Whether or not there’s a grave risk of harm is different from whether ameliorative measures could mitigate the risk, although the questions often overlap. See Simcox v. Simcox, 511 F. 3d 594 (6th Cir. 2007).
Keeping the Children Safe After Return: Ameliorative Measures
Consideration of ameliorative measures must prioritize the child’s physical and psychological safety. A court may decline to consider imposing ameliorative measures when it’s clear they wouldn’t work because the risk is so grave. Sexual abuse of a child is an example of an intolerable situation. Further, a court may decline to consider imposing ameliorative measures where it reasonably expects they won’t be followed. Walsh v. Walsh, 221 F. 3d 204 (1st Cir. 2000).
On the other hand, the district court in Radu v. Shon, 62 F. 4th 1165 (9th Cir. March 13, 2023) ordered children returned to Germany from the US, where their mom had taken them. But the return order included ameliorative measures to mitigate risk of harm.
Ameliorative Measures: Questions of Foreign Law
In Radu, the district court granted the German dad’s petition for return, but found there was a grave risk of psychological harm to the children if they returned to Germany in his custody. So, the court also found the grave risk would be mitigated if the children returned to Germany in mom’s temporary custody. Thus, the court ordered mom to return with the children and retain custody until the German courts could resolve the merits of the underlying custody dispute.
The 9th Circuit remanded for the district court to determine if the US District Court’s order would be enforceable in Germany. Mom presented an expert German attorney. He testified Germany would not enforce the order because it didn’t recognize ameliorative measures. Further, he testified, a German court could take up to six months to decide custody. And, because the children were not German citizens, neither parent could initiate German custody proceedings or obtain foreign protective measures.
Foreign Law: State Department and Official Foreign Central Authorities
Under Federal Rule of Civil Procedure 44.1, interpretation of foreign law “must be treated as a ruling on a question of law.” The court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. Fed. R. Civ. P. 44.1. Further, the court has an independent obligation to adequately ascertain relevant foreign law. de Fontbrune v. Wofsy, 838 F.3d 992 (9th Cir. 2016). To fulfill the court’s obligation, it may conduct its own research and consider relevant material it finds. The basic way for proving foreign law is through expert testimony. Universe Sales Co., Ltd. v. Silver Castle, Ltd., 182 F.3d 1036 (9th Cir. 1999).
International comity requires American courts to consider carefully a foreign country’s views about what is own laws mean. Still, deference has limits. Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co., ___ U.S. ___, 138 S. Ct. 1865, 201 L. Ed. 2d 225 (2018).
To gain understanding about the laws and procedures of another country, the United States Department of State and foreign Central Authorities are proper and useful resources when evaluating a foreign legal landscape. See Convention Art. 7. Blondin v. Dubois, 189 F.3d 240 (2d Cir. 1999); Radu v. Shon, 11 F.4th 1080 (9th Cir. 2021) [Radu I], vacated,___ U.S. ___, 142 S. Ct. 2861, 213 L.Ed.2d 1086 (2022), in light of Golan v. Saada, ___ U.S. ___, 142 S. Ct. 1880, 213 L.Ed.2d 203 (2022). Formal notice of a court’s intent to research foreign law is not required. G&G Prods. LLC v. Rusic, 902 F. 3d 940 (9th Cir. 2018).
So…how have courts weighed testimony about domestic violence and abuse in analyzing the grave risk of harm defense under the Hague Convention?
Grave Risk of Harm Defense to Child Abduction Claims Upheld: Abuse
Sustained abuse by a parent and probability that severe potential harm will materialize can establish the grave risk of harm defense under the Hague Convention.
For example, for years, a Chilean father abused the children’s mother, beating her so severely that she miscarried and breaking her ribs and nose. When she finally escaped the abuse, which the children witnessed, the father left them and their mother homeless and hungry. In the children’s presence, when they were with him, he abused drugs, including in their presence.
The Eleventh Circuit upheld the credibility determinations and fact findings by the United States District Court for the Middle District of Georgia, which accepted the mother’s grave risk of harm defense and denied the abusive father’s petition to return the children to Chile. Romero v. Bahamonde, Nos. 20-14557, 21-10378 (11th Cir. May 21, 2021).
Port St. Lucie Florida Grave Risk Case: Wigley v. Hares
The trial court found a mother proved grave risk of harm in denying an abusive father’s petition to return the child to St. Kitts from Port St. Lucie, Florida. In Wigley v. Hares, 82 So. 3d 932 (Fla. 4th DCA 2011), the Fourth District Court of Appeal determined that testimony the child would be upset and would be psychologically harmed by returning him would not meet the grave harm test. However, the mother’s testimony about threats and abuse by the child’s father provided clear and convincing evidence that return would place the child at risk of grave harm.
Likewise, in Acosta v. Acosta, 725 F. 3d 868 (8th Cir. 2013), the court upheld the district court’s finding that a suicidal and abusive father’s sustained, uncontrolled rage, and his inability to cope with the prospect of losing custody, would expose children to a grave risk of harm if they returned to Peru.
Grave Risk Defense: Threats to Harm the Child
The Eleventh Circuit has found the standard for the grave risk defense met “where the father had verbally and physically abused the mother in the child’s presence, and threatened to harm the child, but did not physically abuse the child.” Baran v. Beaty, 526 F. 3d 1340 (11th Cir. 2008).
In a similar case, the Sixth Circuit found grave risk of harm. See Simcox v. Simcox, 511 F. 3d 594 (6th Cir. 2007). Evidence showed the father’s physical abuse involved “repeated beatings, hair pulling, ear pulling, and belt-whipping” and psychological abuse included “profane outbursts and abuse of the children’s mother in their presence.” Simcox, 511 F. 3d at 608-09. See also Gomez v Fuenmayor, 812 F. 3d 1005 (11th Cir. 2016)(a pattern of death threats and violence against a father, including a shooting, established a grave risk of harm even though the threats were not specifically directed against the child).
Another abusive father who petitioned for return of his children met a similar fate. In Sadoun v. Guigui, Case No. 1:16-cv-22349-KMM (SD Fla. August 22, 2016), the father physically abused his children. Overwhelming evidence established he psychologically abused them and their mother—at whom he hurled “obscene epithets” in the children’s presence.
Further, evidence established other indicia of domestic violence and his reckless disregard for his family’s safety when he drove drunk. The Court concluded: “[I]t would be irresponsible to think the risk to the children less than grave,” quoting Van De Sande v. Van De Sande, 431 F. 3d 567 (7th Cir. 2005). Thus, through clear and convincing evidence, the mother established returning the children to France would expose them to a grave risk of physical or psychological harm.
What to Do When a Parent’s Denials Are Not Credible?
More recently, a Brazilian father sought return of a child from the US. In support of the mother’s “grave risk of harm” defense, she alone testified that dad physically abused her in their daughter’s presence and emotionally abused the daughter. This testimony could be clear and convincing evidence returning the daughter to Brazil would place her at grave risk of harm. The mother alleged and testified:
- the physical abuse began during her pregnancy and continued almost daily;
- the father pushed her grandmother down when she asked him to leave, causing her to fall and break two ribs;
- he fed the family’s kitten to a pit bull and, as the kitten was dying, set it on fire; and
- The shared intimate photos of her on social media.
The Eleventh Circuit Court of Appeal held the district judge could have found the father’s “noncredible denials and non-denial denials” corroborated the mother’s testimony about abuse. But the district court was under the misimpression the rule that a criminal defendant’s statements, if a jury disbelieves them, may be considered as substantive evidence of the defendant’s guilt didn’t apply in the civil context. United States v. Brown, 53 F. 3d 312 (11th Cir. 1995). The Eleventh Circuit remanded the case for the district court to decide if it would give weight to the father’s denials and treat them as corroborating mom’s testimony.
Grave Risk of Harm Defense to Child Abduction Claims Unsuccessful: Abuse
In contrast, in Marquez v. Castillo, 72 F. Supp. 3d 1280 (MD Fla. December 5, 2014), a mother, who wrongfully removed her son from Mexico, failed to show by clear and convincing evidence a grave risk of harm to the child if he were returned to Mexico. Her assertions of fear for her life, the child’s father’s home being in a dangerous neighborhood with active drug activity, and the father’s being “very controlling” and not allowing her to leave the home without an escort, were too vague and generalized, rather than clear and convincing evidence necessary to support the Hague grave risk of harm defense.
The Grave Risk of Harm Defense is Narrow
In Morales v. Martinez, Case No. 2:14-cv-88-FtM-29CM) (MD Fla. 2014), the court rejected the narrow “grave risk of harm” Hague defense to child abduction claims. The defense requires alleged physical or psychological harm to be “a great deal more than minimal,” “severe potential harm to the child,” and “greater than what is normally expected when taking a child away from one parent and passing the child to another parent.” (Internal citations omitted).
The child’s mother presented no evidence the father ever physically harmed the child, or the child would be exposed to physical or psychological harm if returned to Mexico. Although the mother testified she was subjected to abuse and mistreatment, she failed to substantiate her testimony or prove the child was subjected to the same abuse.
The grave risk Hague defense failed to carry the day in Lopez v. Alcala, 547 F. Supp. 2d 1255 (MD Fla. 2008). Clear and convincing evidence did not establish such a grave risk that two children would be harmed, if returned to their dad in Mexico.
Another mom’s grave risk defense met a similar fate in Garcia v. Ramsis, Civil No. 4:21-CV-650-SDJ (ED Tex. January 31, 2022). She failed to connect risk of spousal abuse to her to eminent possible grave risk to the child if the child were returned to Spain, which would need to consider such allegations in custody proceedings on the merits there.
Yet another responding mom failed to establish the Hague grave risk of harm defense in In re D.D., 440 F. Supp. 2d 1283, 1298-99 (MD Fla. 2006). There was no credible evidence the dad had ever physically or psychologically harmed the child and the child’s living conditions in France evidenced no intolerable conditions.
Abuse Is Only Relevant to the Grave Risk Hague Defense If It Seriously Endangers the Child
Abuse is only relevant under Article 13(b) if it seriously endangers the child. That wasn’t the case in In re RVB, 29 F. Supp. 3d 243 (ED NY 2014). There, the mother failed to establish by clear and convincing evidence a grave risk of harm to a daughter if she were returned to Columbia. Mom alleged domestic violence that happened years prior to the parents’ divorce and that the 8-year-old child liked America “much much better.” These allegations were insufficient.
Grave Risk of Harm Defense to Child Abduction Claims: Parent’s Drug Abuse
Drug use may present grave risk of harm, supporting the Hague defense to a petition by a parent claiming wrongful child abduction for return of a child.
After a court determines if alleged drug use occurred, it must consider how such conduct, if confirmed, would affect the child if the court were to order return of the child to the habitual residence. Mlynarski v. Pawezka, 931 F. Supp. 2d 277 (D. Mass. 2013), aff’d, No. 13-1361, 2013 WL 7899192 (1st Cir. May 8, 2013) (grave risk not found where dad had a “susceptibility to taking psychoactive substances” and occasionally smoked marijuana). The grave risk of harm defense did not succeed in Velonzy Ex. Rel. RV v. Velonzy, No. 20 Civ. 6659 (GBD) (SD NY July 22, 2021) (past drug use was not in the children’s presence and did not rise to the level that put them in grave risk of harm).
Extreme Drug Abuse
An extreme example of a parent’s rampant drug abuse while her son was sleeping upstairs at home or was at school illustrates conduct justifying the court’s accepting the Hague grave risk of harm defense. Wertz v. Wertz, Case No. 7:18cv00061 (WD Virginia March 30, 2018). Dad removed an 8-year-old son from his habitual residence in Canada to Virginia. Mom petitioned for return of her 8-year-old son to Canada under the Hague Convention and ICARA.
Dad alleged, and mom admitted, she used cocaine, crack cocaine, heroin, crystal meth, marijuana over 20 years and prescription drugs, including Dilaudid, Ritalin, Percocet, OxyContin, Ativan, Adderall, morphine, methadone, diazepam, benzodiazepine, suboxone, amphetamine, and ketamine. Mom sold Ritalin and marijuana on the street. She engaged in prostitution to support her drug habit and exposed her children to men to dangerous convicts. Further, mom had a relationship with a domestic abuser charged with sexual abuse of the child.
“…the evidence establishes Petitioner’s unrelenting addiction transcends every other aspect of her life, without regard to the consequences to her child. The petitioner in this case has a staggering history of drug abuse…. The severity of Petitioner’s drug use and the effects it has had on L.E.W. are unlike anything the court has come across in other Hague Convention cases. The evidence documents the substantial likelihood of ongoing substance abuse.”
The court concluded unconditional return to mom’s custody in Canada would expose the child to physical or psychological harm or otherwise place him in an intolerable situation.
When a court finds grave risk of harm, the court may order return of the child to his habitual residence with conditions known as “undertakings.” These conditions to mitigate risk to the child are enforceable. They allow courts to evaluate placement options and legal safeguards in the habitual residence to keep the child safe while courts there determine custody on the merits. Wertz; Walsh v. Walsh, 221 F. 3d 204 (1st Cir. 2000); Luis Ischiu, 274 F. Supp. 3d at 354-55; Van De Sande v. Van De Sande, 431 F. 3d 567 (7th Cir. 2005).
Grave Risk of Harm Defense to Claims of Child Abduction: Intolerable Situation
Under the Hague Convention, a parent may establish the grave risk of harm defense to a parent’s child abduction claim by showing clear and convincing evidence the child’s return would place the child in an “intolerable situation.”
Hague Grave Risk of Harm Defense: When May a Court Find an Intolerable Situation?
Courts have applied the “intolerable situation” Hague Defense in limited circumstances. The exception did not apply in De Lucia v. Castillo, Case No. 3:19-CV-7 (CDL) (MD Georgia April 29, 2019) (concluding mother who moved the children from Italy to Georgia failed to prove by clear and convincing evidence grave risk of harm that returning the children to Italy would place them in an intolerable situation).
- When courts of the child’s country of habitual residence can’t make decisions regarding custody rights and protect the child. Pliego v. Hayes, 843 F. 3d 226 (6th Cir. 2016) (discussing “intolerable situation”).
- When the child’s habitual residence has no adequate treatment facilities for a child with a serious medical condition. Ermini v. Vittori, 758 F. 3d 153 (2d Cir. 2014) (an autistic child faced a grave risk of harm if returned to Italy because there were no adequate treatment facilities there).
- When the child would be returned “to a zone of war, famine, or disease.” Friedrich v. Friedrich, 78 F. 3d 1060 (6th Cir. 1996).
- When a custodial parent has sexually abused the child. Hague International Child Abduction Convention, Text and Legal Analysis, 51 Fed. Reg. 10494-01, 10510 (Mar. 26, 1986); Golan v. Saada, 142 S.Ct. 1880, Case No. 20-1034 (US Supreme Court Jun 15, 2022).
A Challenging Political Climate or Liking One Country Better Doesn’t Establish Grave Risk of Harm
To establish a grave risk of harm defense to a child abduction claim, a parent can’t rely on general regional violence. Instead, there must be clear and convincing evidence of a specific risk of harm to the child. Generalized and unsupported assertions the habitual residence is dangerous don’t establish grave risk of harm. See Da Silva v. Vieira, Case No. 6:20-cv-1301-Orl-37GJK (MD Fla. September 23, 2020).
Other cases consistently reject generalized concerns about political unrest or dangerous conditions in the country of habitual residence and require clear and convincing specific evidence to support the Hague grave risk of harm defense. See, e.g., Figueredo v. Del Carmen Rojas, Case No. 3:22-cv-1268-TJC-LLL (MD Fla. April 18, 2023)(mother’s evidence of economic and humanitarian upheaval in Venezuela was insufficient to deny a return order under Article 13(b)); Salame v. Tescari, 29 F. 4th 763 (6th Cir. 2022); Rishmawy v. Vergara, Civil Action No. 4:21-cv-35 (SD GA May 21, 2021) (father’s personal belief Honduras is generally so dangerous the child should not be returned there, even with evidence of past gun violence the mother’s family experienced, without evidence she or the child had been the target of violence or threats, did not meet the standard for showing a grave risk of harm).
General Evidence of Economic and Civil Disorder
In Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347 (MD Fla. 2002), the court ordered children be returned to Argentina, despite testimony by a professor of political science and international studies that Argentina was in a state of economic and civil disorder, posing a risk of harm to the children if they were returned.
See also Silverman v. Silverman, 338 F. 3d 886 (8th Cir. 2003) (general regional violence in Israel did not establish a “zone of war”). Living conditions marked by poverty, sociopolitical unrest, or community violence don’t show grave risk of harm or an intolerable situation. Vazquez v. Estrada, 3:10-CV-2519-BF, (ND Tex. Jan. 19, 2011) (evidence that the community where the parent lived is dangerous due to surge in cartel activity didn’t establish it was a “zone of war”).
Drugs and Crime: Generalized Dangerous of Country of Habitual Residence Doesn’t Establish the Grave Risk Hague Defense
Likewise, the dad in De La Riva v. Soto, 183 F. Supp. 3d 1182 (MD Fla. 2016) claimed fear returning his son to Mexico because of crime and drug cartels. The Court concluded that a U.S. Department of State travel advisory and the father’s testimony about generalized “dangerousness” of Mexico fell short of directly establishing by clear and convincing evidence that his son would face grave risk of harm contemplated by the Hague Convention if he were to return to Mexico.
The court denied another father’s “grave risk” defense in Tavarez v. Jarrett, 252 F. Supp. 3d 629, 640-41 (SD Tex. May 16, 2017) and ordered him to return the child to Mexico. The father had alleged Mexico’s health care was inadequate, and there was a higher risk of disease and crime rate where the mother sought the child’s return. Similarly, a mom failed to show grave danger if a child were returned to Mexico because of high crime in Mexico City. See Sierra v. Tapasco, Case No. 4:15-CV-00640 (SD Tex. September 28, 2016).
Generalized Risk of Violence: Protests and Political Climate
A father unsuccessfully asserted Hong Kong’s political climate created a grave risk of harm to his son and daughter in Chung Chui Wan v. Debolt, No. 20-cv-3233 (CD Ill. May 3, 2021). Dad argued China’s passing on June 30, 2020, and implementing the National Security Law for Hong Kong in response to large-scale protests in Hong Kong, would put the children in a “psychological war unleashed” and force them to live in fear of expressing their fears, stifle their speech, and psychologically traumatize them. But the harms the father described were hypothetical and generalized, rather than particular to the children. Generalized risk of violence in a country is insufficient to establish the grave risk of harm defense. Silverman v. Silverman, 338 F. 3d 886 (8th Cir. 2003).
Grave Risk of Harm: Intolerable Situation – Past Gang Threats
In Colon v. Mejia Montufar, 470 F. Supp. 3d 1280 (SD Fla. 2020), a mom’s evidence fell short that returning her 12-year-old son to Guatemala would place him in an intolerable situation. In March 2019, MS-13 gang members in Guatemala went to her child’s school twice and threatened to kill him and her if he didn’t join the gang and sell drugs. The child’s half-brother was forced to join MS-13. The Guatemalan police told the mom they could do nothing because she couldn’t identify the men. The mother fled to Florida.
The court concluded the past threats didn’t indicate probability of future violence or harm. There was no clear and convincing evidence MS-13 members were highly probable to harm or forcibly recruit siblings of other gang members, or the men had a continued interest in recruiting the child. See also Salguero v. Argueta, 256 F. Supp. 3d 630 (ED NC 2017) (past threats were insufficient to apply the “grave risk” exception, where the parent offered no evidence MS-13 gang members had targeted, harassed, or threatened the child in the 18 months since their initial threat).
Although the mother’s “grave risk of harm” defense failed in Colon, the court applied the third Hague defense discussed above (age and maturity defense) and denied the father’s petition for return of the child to Guatemala.
Hague Convention Compliance Reports – Country-by-Country Statistics
Detailed country-by-country information on procedures if a child has been moved to another country is available at U.S. Department of State website. The U.S. Department of State Office of Children’s Issues submitted to Congress a Compliance Report dated April 2023 summarizing compliance in 2022 by treaty members. The Report identifies 14 countries the Department cited as demonstrating a pattern of noncompliance in 2022 with fulfilling their obligations under the Hague Convention to return children: Argentina, Belize, Brazil, Bulgaria, Ecuador, Egypt, Honduras, India, Jordan, Republic of Korea, Peru, Romania, Russia, and the United Arab Emirates. In September 2022, the Department submitted its Action Report on International Child Abduction.
The Report illustrates assertions parties, or judicial or governmental authorities called upon to assist with return of children, may raise. Such statistics may assist in establishing the “grave risk of harm” Hague Convention defense. But a parent doesn’t need to prove that the child’s country of habitual residence is unable or unwilling to protect the child from the grave risk of harm that would accompany the child’s return. Gomez v Fuenmayor, 812 F. 3d 1005 (11th Cir. 2016) (district court was not required to find the habitual residence, Venezuela, was unable to protect the child from a proven grave risk of harm); De Lucia v. Castillo, Case No. 3:19-CV-7 (CDL) (MD Georgia April 29, 2019) (the court doesn’t have to find the home country can’t protect the child from a grave risk of harm).
Sixth Hague Defense: Fundamental Principles Relating to the Protection of Human Rights and Fundamental Freedoms Do Not Permit Return of the Child
A sixth and final defense to child abduction claims under the Hague Convention is the human rights defense.
Under Article 20 of the Hague Convention, a court is not bound to order the return of a child if the travelling parent demonstrates, by clear and convincing evidence, that return of the child would not be permitted by fundamental principles of the country of habitual residence relating to the protection of human rights and fundamental freedoms. The defense is directed to concerns about harms arising from returning a child to a country when “human rights concerns, most likely defined within the parameters of other international agreements, would prohibit return.” Aldinger v. Segler, 263 F. Supp. 2d 284 (D. P.R. 2003).
The Article 20 Hague defense is rarely invoked and, when it is, rarely succeeds.
The father who lost on his grave risk of harm defense in Chung Chui Wan v. Debolt, No. 20-cv-3233 (C.D. Ill. May 3, 2021) (see earlier discussion about that defense) failed to establish the Article 20 defense.
The court cited Uzoh v. Uzoh, 2012 WL 1565345, at *7 (N.D. Ill. 2012), which observed, the Article 20 Hague defense has never been asserted in a published in the United States. See also Garbolino, James, Fed. Jud. Ctr., The 1980 Hague Convention on the Civil Aspects of International Child Abduction: A Guide for Judges 85 n. 332 (2012); Souratgar v. Fair, 720 F. 3d 96 (2d Cir. 2013) (denying Article 20 defense, noting it has yet to be used by a federal court to deny a petition for repatriation); Walker v. Kitt, 900 F. Supp. 2d 849 (ND Ill. 2012) (mother utterly failed to provide clear and convincing evidence that return of child to Israel would “shock the conscience.”)
The International Academy of Family Lawyers (IAFL) commended the Walker v. Kitt court’s words:
To invoke Article 20 to refuse to return a child for anything less than gross violations of human rights would seriously cripple the purpose and effectivity of the Convention.
Walker v. Kitt, 900 F. Supp. 2d 849, 864 (ND Ill. 2012)
See International Academy of Family Lawyers, Amicus Brief, G. v. G., Case No. UKSC 2020/0191, In the Supreme Court of the United Kingdom (January 17, 2021).
Unsuccessful Article 20 Defense to Child Abduction Claims
See also Castro v. Martinez, 872 F. Supp. 2d 546 (WD Tex. 2012) (declining to apply the exception where the respondent alleged that corruption in Mexico would prevent a fair determination of child custody upon the child’s return); Aly v. Aden, 2013 WL 593420 Civil No. 12-1960 (JRT/FLN) (D. Minn. 2013) (the same allegations the court found to be insufficient to establish the grave risk of harm defense could not establish the “fundamental humanitarian rights” defense). See also Weiner, Merle H., Strengthening Article 20, 38 U.S.F.L. Rev. 701 n. 71 (2004).
The United States Second Circuit Court of Appeals rejected a mother’s broad assertion that a country’s (Singapore) Syariah courts (which, she claimed would inevitably grant custody to the child’s father) are incompatible with principles, “relating to the protection of human rights and fundamental freedoms” of the United States. Souratgar v. Fair, 720 F. 3d 96 (2d Cir. 2013). Despite political sympathies the mother’s general assertions might engender, the court declined to rule categorically that the mere presence of a Syariah Court in a foreign state, whose accession to the Convention the United States has recognized, per se violates all notions of due process. Souratgar, 720 F. 3d at 108. The court affirmed the grant of the father’s petition for his son’s repatriation to Singapore. Id. at 109.
Hague Defense – Article 20: Foreign Countries
Decisions from other countries under Article 20 are rare. In one case, recognizing the defense, a Spanish Court denied a father’s petition for return of a child to Israel from Spain. The child and mother were Spanish citizens. The court found that return would be contrary to principles of Spanish law concerning protecting human rights and basic liberties.
Following the parties’ divorce and mother’s taking the child to Spain, the father applied for, and an Israeli court granted him, sole custody upon a finding that the mother was ‘Moredet,” a status under Jewish law meaning she was a ‘rebellious wife.’ The Spanish court determined this finding would cause the absolute negation of the mother’s parental rights and status in the Israeli community and declined to return the child. In Re S., Auto de 21 abril de 1997, Audiencia Provincial Barcelona, Sección 1a. See also Carrascosa v. McGuire, 520 F. 3d 249, 261-63 n.28 (3d Cir.2008) (criticizing a Spanish court’s using Article 20 to justify denial of repatriation and its construing an agreement not to take child out of the United States without both parents’ consent as violating fundamental rights under the Spanish Constitution for citizens to travel and choose their place of residence).
The court in Costa Rica applied the Article 20 human rights defense to a dad’s child abduction claims against a mom in L.R.C., a favor de I.C.R., y E.C.R., contra el Juzgado de Niñez y Adolescencia y El Tribunal de Familia, INCADAT Ref. HC/E/CR 1320, Exp: 13-003521-0007-CO, Res. No. 006644-2013, Sala Constitucional de la Corte Suprema de Justicia, Costa Rica (May 17, 2013).
Dad petitioned for return of two daughters, born in 2001 and 2006 in the U.S., where they were raised, went to school, and developed a social network. In July 2011, they entered Costa Rica and started school there. In November 2011, the father requested the mother’s voluntary return of the girls to the US, which the Costa Rican Central Authority promoted. The mother refused.
A Costa Rican court ordered their return. Mom appealed unsuccessfully. She filed a petition for habeas corpus. The court granted the petition and ordered the girls not to be returned to the United States. In reaching its decision to refuse return, the Constitutional Division found compelling that the children had developed significant relationships in Costa Rica at school, with their family, and with their social network, and forcing them to leave the country against their wishes would harm them.
An Israeli mother established the Article 20 human rights defense to the father’s claim she wrongfully abducted her three children from Israel and fled to Canada. The court found return to Israel would violate Canada’s fundamental principles relating to protecting the mother’s and children’s human rights, and their fundamental freedoms to live free from serious risk of persecution.
The parents married in 2009 in Israel and had their children there. They separated. Mom got a protection order from the Israeli Family Court and began divorce proceedings in the Sharia Court. That court gave temporary guardianship to dad and ordered that mom’s rights of custody terminate. She took the children to her parents’ home.
The next day a grenade exploded outside their house. Two days later, she left Israel with the 3 children and grandparents. They moved to Canada, which granted the mother and children refugee status, because they’d face persecution in Israel. This refugee status put the burden on the father, which he failed to meet, to rebut a presumption against “non-refoulement” (forcible return of refugees or asylum seekers to a country where they are liable to face persecution). Therefore, the presumption protected mom and children for the purposes of applying the Hague Convention Article 20 defense. Sabeahat v. Sabihat, 2020 ONSC 2784, FS-18-0099 (May 7, 2020).
Searchable Hague Convention Decisions: INCADAT
As the court in Rodriguez v. Yanez, 817 F. 3d 466, 477 n. 44 (5th Cir. 2016) noted, the Hague Conference on Private International Law maintains a database of decisions concerning the Convention “to promote mutual understanding, consistent interpretation and thereby the effective operation of the … Convention.” International Child Abduction Database (INCADAT), Hague Conference on Private International Law. The database is searchable by keyword and Hague Convention article (e.g., “Article 20”). Search the database by specific Hague defenses to child abduction claims.
Proving defenses to child abduction claims under the Hague Convention requires analysis and development of all evidence and testimony that may support or defeat defenses to claims of wrongful abduction or retention. This article provides a framework for such analysis of the defenses the responding parent may raise.