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Hague Convention: Wrongful Removal of a Child

In the case, Mendez v. May, the First Circuit of the U.S. Court of Appeals was faced with the question whether pursuant to The Hague Convention on the Civil Aspects of International Child Abduction ("the Convention) the seven-year-old son of the parties should return to Argentina.

The Convention is a multilateral agreement among approximately ninety countries, including the United States, intended to combat international child abductions during domestic disputes. The Convention seeks to enforce custody rights and secures the prompt return of children wrongfully removed to or retained in any contracting state. The Convention's underlying principle is that the courts of a child's country of habitual residence should be the entities to make custody determinations in the child's best interest.

A petitioner seeking the return of a child under the Convention must establish the child's wrongful removal by a preponderance of the evidence. The petitioner must show that he or she (1) seeks to return the child to the child's country of habitual residence, (2) had custody rights immediately prior to the child's removal, and (3) was exercising those rights.

If these three elements are met, and the petitioner has commenced judicial or administrative proceedings within one year of the date of wrongful removal, the Convention commands that the court reviewing the petition shall order the return of the child forthwith.

Background: The father is a citizen of Argentina and the mother is a U.S. citizen and permanent resident of Argentina.  The parties began dating in 2005 and lived in the U.S. for a brief period of time before settling in Buenos Aires in 2006. Their son was born in 2007 and is a citizen of both Argentina and the U.S. The parties never married and lived together until 2009, when the father moved out. The parties reached a child custody agreement which provided that their son would reside with his mother and granted the father visitation. Per the 2009 agreement, the mother could travel outside Argentina with their son. 

The parties experienced difficulties in their parenting relationship after they ceased cohabiting. The parties engaged in several discussions, and the father agreed to allow their son to move to Massachusetts with his mother. They agreed that their son would travel back to Argentina during U.S. school vacations.

Thereafter, communication between the parties broke down and mother in violation of a court order issued in Argentina, removed the child and fled to Massachusetts.

Subsequently, the father filed a petition claiming that the mother wrongfully removed the child to the United States in February 2014. After a three day bench trial, the district court granted the father's petition and ordered the child's return, reasoning that the child's habitual residence lay in Argentina because the petitioner never fully agreed to allow their son to move to the United States.

After reviewing the record, the U.S. District Court of Appeals, concluded that the father did not prove that he seeks to return the child to the child's country of habitual residence, one of the three elements of a prima facie case of wrongful removal. Because father did not meet his burden to establish a presumption of wrongful removal, the court did not hear other arguments raised by the parties, including the affirmative defense of consent.

Thus, the Court of Appeals reversed the district court's grant of the father's petition and the order of return to Argentina.

Contact the Law Offices of Renee Lazar on matters of wrongful removal under the Hague Convention.

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