Case Update (2020): Lopez v. Bamaca; "Actually Exercising" custody rights in the 1980 Convention
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...