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Case Update: Hague Abduction Convention, Return Orders cannot resolve custody

Just before I started this blog, the U.S. Court of Appeals for the First Circuit issued an opinion in the case of Da Silva v. De Aredes (953 F.3d 67 (March 13, 2020)).   There were a few issues that the Respondent Mother (de Aredes) argued on appeal, but ultimately the court affirmed the U.S. District Court's order to return the minor child, ACA, to Brazil.  It agreed that any potential abuse alleged by de Aredes did not rise to the level of being a grave risk, and despite the Petitioner Father (da Silva)'s court filing beyond one year after the wrongful removal, the child was not settled in East Boston.  Perhaps the most interesting part of the First Circuit's opinion, however, was that it remanded the case (despite affirming) for the U.S. District Court to re-word its return order.  This is particularly interesting given my last blog post where a U.S. District Court in Arizona crafted a Hague Abduction return order that placed the child in the temporary custody of a part…

Case Update: Hague Abduction Convention and the Grave Risk of Harm

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On September 16, 2020, the U.S. District Court for the District of Arizona returned the parties' children to their habitual residence of Germany.  In the case of Radu v. Shon, the Respondent Mother (Shon) conceded that her removal of the children from Germany in June 2019 was wrongful.  She argued 2 exceptions to their return: consent/acquiescence and grave risk of harm.  The court focused predominantly on the grave risk of harm arguments.Shon argued that the Petitioner Father (Radu) was emotionally and psychologically abusive towards her and the children in Germany, causing them to fear Radu.  Shon alleged that Radu had an explosive temper, he yelled, degraded her, and used derogatory language. Further, she argued that Radu banged his hands on the table, threw objects, and once slapped her.  The Court noted that none of this caused the children to require medical attention and no one sought a protective order or filed a police report because of this behavior. "The Court may …

Case Update: Hague Abduction Convention, comity to a Hague order from foreign jurisdiction

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In the case of Trott v. Trott, the Eastern District of New York granted a father's petition to have his two daughters returned to Bermuda.The parties are parents to two daughters.  Their eldest child is not the father's biological daughter, but was raised as his daughter.  The youngest is his biological daughter.  The children had lived in Bermuda since they were young, but, moved to New York with their mother, without objection by their father (despite a Bermudian ne exeat order being in place) in 2013.  During a visit to Bermuda in 2018, the children alerted their father to what amounted to abuse and neglect by their mother. The father refused to return the girls to New York, and their mother pursued a Hague Abduction return petition in the Berumdian courts.  The trial court examined whether it would be a grave risk of harm to return the children, ultimately concluded it would not, and asked the parties to identify protective measures available in New York for the girls.  Th…

Case Update: International Criminal Kidnapping, Extortion, Restitution

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A recent 10th Circuit Case, United States v. Mobley, addressed an appeal of a crime that related back to the mother's abduction of her children to Russia.Mobley (Father) and Osipova (Mother) had a daughter.  Shortly after Mobley filed for divorce in Kansas, Osipova abducted their daughter to Russia.  At the time of the abduction (April 2, 2014), Osipova was seven months pregnant with the couple's second child.  She gave birth 2 months after her arrival in Russia.  Two weeks after the abduction, the Father secured a sole custody order from Kansas related to the eldest child.  Shortly after the youngest child's birth in Russia, the father secured a divorce and sole custody order from Kansas for that child. (Note - this is a criminal case, so I am not clear how the Kansas court had jurisdiction under the UCCJEA over the youngest child to issue an initial child-custody determination).  In Spring 2015, Osipova secured a divorce, and custody and child support order from the Russ…

Case Update: UCCJEA home state, temporary absence due to child abduction

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The Maryland Court of Special Appeals issued an unreported opinion in the case of Olarinde v. Korede on August 20, 2020.  In the opinion, the court examined subject matter jurisdiction and whether Maryland was the "home state" of the parties' children so that Maryland could issue its initial child-custody determination.  The trial court concluded Maryland was the home state.  The COSA agreed.  The parents have 4 children - 2 born in Nigeria and 2 born in the United States.  The family took up residency in Maryland in 1999.  The couple are dual Nigerian-U.S. nationals.  In 2009 or 2010, the Father returned to Nigeria, traveling to Maryland for months at a time.  The parties' two eldest children left Maryland at various points in time, traveled to Nigeria and resided there, but ultimately returned to Maryland.  At this time, both are emancipated.  On August 2, 2016, the Father filed for divorce and custody in Maryland, but claimed that the children resided with him in …