MK Family Law

On January 28, 2021, the U.S. District Court for the Eastern District of Washington denied a Father's request to return his child to France using the Hague Abduction Convention in the case of In Re Matter of ICJ (Jones v. Fairfield) .  The Father (Mr. Jones) has already appealed. While the trial judge concluded that there would be a grave risk of harm to return the minor child to France, the interesting part of this opinion is that the Court actually found that Mr. Jones was not actually exercising  his rights of custody at the time of the removal, and therefore the removal was not "wrongful" under the treaty.  This prong of the Petitioner's case-in-chief is often given lip-service in Hague abduction litigation, often just being assumed.  The case of Friedrich v. Friedrich had addressed this question in 1996 and said, "The only acceptable solution, in the absence of a ruling from a court in the country of habitual residence, is to liberally find "exercise...

In the U.S. District Court for the District of Delaware case of Lopez v. Bamaca, decided on April 20, 2020 (C.A. No. 19-1001-LPS) , the Court analyzed a Left Behind Parent's exercise of their parental rights over a child that was wrongfully removed from their habitual residence. The 1980 Hague Abduction Convention references a parent's exercise of their custody rights in 2 distinct places in the treaty. In Article 3(b), the Petitioner has a burden of showing that he or she had "actually exercised" rights of custody at the time of the child's retention or removal.  Virtually every circuit in the United States follows the test outlined in Friedrich v. Friedrich (78 F.3d 1060 (6th Cir. 1996)) that says, "nothing short of clear and unequivocal abandonment will prove that the petitioner failed to exercise his or her custodial right." In Article 13(a) of the Treaty, the Respondent may argue an affirmative defense, or exception, to the child's retur...