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Return child to place of habitual residence


Case Commentary: Cuellar v. Joyce
Stephen B. Ruben

Cueller V. Joyce is an important case when evaluating whether you should represent a client who seeks to oppose the return of a child to his or her place of habitual residence under the Hague Convention. As noted by Justice Kozinski, the Hague convention seeks to deter parents from abducting their children across national borders by limiting the main incentive for international action'the forum shopping of custody disputes. Hague Convention procedures are an available remedy in the United States when a child under age 16 has been "wrongfully removed or retained" from the child's "habitual residence." The Court must determine the merits of the abduction, but should not be used as an ad hoc forum for a formal custody determination by the party opposing the removal.

Professor Richard Joyce built a sailboat and set sail for Panama where he met Ledya Cuellar, an exotic dancer in a Panamanian neighbor that he described as "slum- like" "beyond the end of the road" and "very dangerous." Despite these claimed environmental adversities, true love prevailed. Richard and Leyda were married in Panama and nineteen months later, a daughter, K.C. was born. Richard skillfully arranged his ploy and gave Leyda the slip at the Sydney Airport with K.C in tow, leaving Leyda even without a passport. Leyda's journey in tracking K.C. led to the Blue Sky country of Montana where she filed her action in United States District Court for the District of Montana seeking K.C's return. Clearly, the facts support that K.C. was wrongfully removed, K.C's habitual residence was Panama, Leyda was exercising her custody rights at the time of the removal, and most importantly Leyda in no manner consented to the removal given the dramatic scene at the Sydney airport. Nevertheless, the District Court withheld relief and denied Leyda the return of K.C. K.C. would continue to remain in Montana with her father. The Court concluded that K.C. would be placed in grave risk if she were returned to Panama. The trial court was persuaded by Joyce's presentation of unsuitable living conditions. Joyce alleged that K.C. and Leyda had lived in a home without running water; residents in their neighborhood used a creek and outhouse for waste disposal; Leyda's home has no climate control, no refrigerator and little furniture.

Keep in mind that once a plaintiff in an international child custody dispute establishes that removal was wrongful, the child must be returned unless the defendant can establish one of four defenses. Two of these defenses can be established by a preponderance of the evidence, 42 U.S.C.S. Section 11603(e)(2)(B): the proceeding was commenced more than one year after the removal of the child and the child has become settled in his or her new environment, Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, art. 12; or, the person seeking return of the child consented to or subsequently acquiesced in the removal or retention, art. 13a. The other two defenses must be shown by clear and convincing evidence, 42 U.S.C.S. Section 11603(e)(2)(A): there is a grave risk that the return of the child would expose his or her to physical or psychological harm, art.13b; or, the return of the child would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms, art. 20.

The Cuellar case focuses on the grave risk exception and required the Appellate Court denovo review of the facts assessing whether or not the burden of proof of clear and convincing evidence was met. Justice Koskinski Chief Judge of the Ninth Circuit was simply not persuaded and clearly made the right call in returning the child to Leyda, the primary custodial parent and return to Panama. Neither the medical or psychological concerns raised by Professor Joyce provided clear and convincing evidence to show that the return by K.C. to Panama would pose a grave risk. The Court accepted the diagnosis that K.C. exhibits 'ataxia' based on three suspect sources. The first was an unidentified physician. The second source was the testimony of a professor of early childhood education. The third source, a written statement by the Professor's sister, a registered nurse, truly was not an objective witness nor was she available for cross examination.

To add insult to injury, the Court also overstepped the purview of the Hague convention and got directly into parental fitness and custody issues. The Court relied on self-serving and uncorroborated testimony that K.C. apparently fell seven feet to the ground from a concrete platform. They also relied on uncorroborated testimony that sometimes KC was cared for in Panama by a sick relative. The Court concluded that Leyda was so neglectful that it would be unsafe to give her custody of K.C. As Justice Koskinski correctly assessed, the Trial Court clearly overstepped its bounds and addressed the ultimate question of custody. This is far beyond the purview of the Hague Convention which deals with child abduction.

Practice tips

Keep in mind when assessing whether there is a legitimate defense for opposing the return, a removing parent such as our dear Professor must not be allowed to abduct a child and then, when brought to court, complain that the child has grown used to the surroundings to which they were abducted. The disruption of the usual sense of attachment that arises during most long stays in a single place with a single parent should not be a "grave" risk of harm for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction.

The Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, art. 13a, provides a defense to an action for return if the petitioner consented to or subsequently acquiesced in the removal or retention of the child. The Hague Convention does not define consent or acquiescence in any more definite manner, and there is no statement to guide us in the text or legislative history of the International Child Abduction Remedies Act, 42 U.S.C.S. '' 11601-1161 Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. Ohio 1996)

Aquiescence to the removal of the child under the Hague Convention on Civil Aspects of International Child Abduction, Oct. 25, 1980, requires either: 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 of time. As Justice Kosinki noted in his opinion, the only evidence of consent that Professor Joyce presented was that Leyda allowed herself to be separated from him and K.C. at the airport in Sydney. Being a successful victim of this sleight of hand and carefully crafted abduction can never prove consent.

Thus, a word to the wise you should instruct your client to secure a formal consent in writing from the custodial parent living outside the United States with unequivocal language if a child is permitted to stay indefinitely in the States. Additionally, the non-custodial parent should send written confirmation of this indefinite stay in the United States. This written confirmation must include where the child will be residing.

Be sure that the non-custodial parent receives written proof of delivery of this confirmation prior to the child's departure.

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