This file describes each of the files available on this system. Unless noted otherwise, all files are in ASCII format. Search file descriptions by key word, e.g., habitual residence, Art. 13(b). When a file contains significant reference to many key words it will contain the key word "generic", e.g., reports, etc.

Note that all new material is placed at the foot of this file under the heading "NEW MATERIAL"

============================================================

18 U.S.C. 1204 International Parental Kidnapping Crime Act

File Name: 18usc1204_fed.txt

File Date: 01 Jan 1994

Full text of 18 United States Code 1204, International Parental Kidnapping Crime Act of 1993. This act makes the removal of a child from the United States or the retention of a child (who had been in the United States) from the Unitd States a Federal felony, subject to fine and/or 3 years in prison.

============================================================

22 Code of Federal Regulations 94

File Name: 22CFR94.TXT

File Date: 03 Mar 1990

Full text of the United States Code of Federal Regulations for the Hague Convention.

=============================================================

25 Questions as to Forum Non Convenes

File Name:25questions_fnc.txt

File Date: 22 Jan 1991

The factors enumerated in Great Northern Ry. Co. (1978) 12 Cal.App.3d 105, 113-115 [90 Cal.Rptr. 461, 466-467] to analyze a case to determine if a forum is the most convenient.

=============================================================

28 U.S.C. 1738B -- FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT

File Name: 1738B.TXT

File Date: 20 Oct 1994

Full text of the FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT. Similar to 28 U.S.C. 1738A, the full faith and credit act for child custody.

=============================================================

29 Summary Decisions, Federal R. of Germany

File Name: 29decisions_frg.txt

File Date: 18 Jan 1993

Summaries of 29 FRG decisions, prepared for the meeting of the Special Commission of Jan 1993 on the Hague Convention of 25 Oct 1980 on the Civil Aspects of International Child Abduction. At some point in the future each decision will be commented on and its description noted. Art. 15 mentioned.

=============================================================

42 United States Code 11601 et seq

File Name: 42usc11601etseq_fed.txt

File Date: 02 Jan 1989

Full text of the International Child Abduction Remedies Act (ICARA). This is the legislation that implements the Hague Convention on Abduction in the United States. A must for any library.

=============================================================

42 USC 652(k) Denial of passports for nonpayment of child support

File Name: 42_USC_652_(k).txt

File Date: 06 Jan 1997

Full text of 42 USC 652(k) which permits the Dept of State to revoke and/or deny issuance of a US Passport if the holder is more than $5,000.00 in arrears.

=============================================================

983.1, Appearances by Military Counsel

File Name: 983_1_crc.txt

File Date: 21 Feb 1992

Text of a California Rule of Court that permits the "base legal officer" to appear on behalf of a service person under certain cirucmstances. Useful when there is an issue of the Soldiers' and Sailors' Civil Relief Act before the court.

=============================================================

1274, California Rule of Court

File Name: 1274_crc.txt

File Date: 09 Feb 1991

Full text of California Rules of Court Rule 1274 which is the statewide child support guidline for California. Includes formulas, etc.

=============================================================

2001, California Rule of Court

File Name: 2001_crc.txt

File Date: 01 Mar 1992

Full text of California Rules of Court Rule 2001 et seq which is the FAX filing and service rule for California. This was fully adopted on 01 Mar 1992 and applies to all California courts. Includes an ASCII version of the FAX Cover Sheet.

=============================================================

5525.9, DoD Directrive, 27 Dec 1988

File Name: 5525_9.txt

File Date: 27 Dec 89

DoD Directive 5525.9 was issued 27 Dec 1988. It permits the enforcement of custody decrees in US military stations overseas (and perhaps in the US), both for civilian and military personell.

==========================================================

A v A [1996] NZFLR 529

File Name: Ava_nz.txt

File Date: 11 Jun 1996

NZ and Denmark. Mother alleges Art. 13(b) defence based on sexual molestation by Father. COFI finds the defence, reversed by High Court, reversal affirmed, holding that adequate safeguards available in Danish Courts and that best interests to be heard in Denmark. Passing reference to Undertakings.

============================================================

In re A (A Minor) - United Kingdom Court of Appeal

File Name: Inrea_uk.txt

File Date: 10 Jun 87

Request for return from Canada on a wrongful retention. Case principally discusses application of Art. 13(b) in the UK: What standards are required, how this can be mitigated. Discusses having a psychologist involved, mentions social studies in the habitual residence. Goes over the effects of money and how that is not an Art. 13(b) issue. Discussion on 13(b) is reasonable. Mentions rights of access as the same as rights of custody.

============================================================

In re A (Minors) (Abduction: Acquiescence) UK Court of Appeal

File Name: Inrea2_uk.txt

File Date: 12 Feb 1992

UK and Australia. Letter by Husband to Wife states she is doing wrong but won't fight it, next day (before she gets letter) changes mind, files for return. UK Court of appeal finds that this is Acquiescence, but point out that court still has discretion to return the child. Case also discusses Art. 13(b). Discusses the concept of acquiesence, how to apply it, when it stays, how it may be withdrawn.

===========================================================

In re A (Minors) (Abduction: Acquiescence) UK Ct. of Appeal

File Name:Inrea3_uk.txt

File Date: 25 Aug 1992

UK and Germany . Acquiescence of father by comments to family of mother in the UK.

===========================================================

Re A and Others (Minors) (Abduction; Habitual Residence)

File Name: Re_a_others_uk.txt

File Date: 31 Jul 1995

UK, US, Iceland. Principal thrust of case is habitual residence (H/R). H/R of child is that of parents. Legal residence of party is not H/R. Cannot unilaterally change H/R. US Military Base is not part of US. A temporary stay of about two years, when it is for a settled purpose, becomes a habitual residnece. A transistory stay, e.g., while traveling from one habitual residence to another, is not a habitual residence since there is no settled purpose.

===========================================================

Re A (Wardship: Jurisdiction)

File Name: Re_A_Ward_UK.txt

File Date: 21 Dec 1994

UK and Pakistan. Child sent to Pakistan from UK for educational purposes. Child in Pakistan about nine monhts. Court rules that this was not a change of habitual residence. H/R

===========================================================

Access (Visitation): Remarks by Adair Dyer 30 Sep 93 NASIOCA

File Name: Remsep93_ad.txt

File Date: 30 Sep 1993

Discussion of Access (Visitation) under The Convention, using Art. 21 and others. Looks at the approaches taken by the various central authorities, e.g., UK, Austria, Canada, etc. Makes some suggestions as to how to obtain access under The Convention.

============================================================

Access (Visitation) Stipulation, One Sided

File Name:Access_stp.txt

File Date: 08 Aug 1992

Stipulation for Access/Visitation, set up so that it compels the receiving parent to return the child at the end of the designated period. Cites appropriate language from the UCCJA, The Convention, Criminal Codes, etc. Strong language on fees and costs.

============================================================

Age and Maturity Criteria

File Name: Views.txt

File Date: 1996

The Views of a Child: Emerging Interpretation and Significance of the Child's Objection Defense Under the Hague Child Abduction Convention Age and Maturity

============================================================

Altheim and Altheim (Argentina 2001)

File Name: Altheim_Argentina.txt

File Date: 05 Oct 2001

Argentina and Israel. Matter to be heard expeditiously and in a summary fashion. F alleges that Israel was only a temporary place of residence. Discussion of the history and application of Habitual Residence (H/R) and finds that Israel was the H/R of the minor child. "Zone of War" issue raised by F as an Art. 13(b) defense to the return. The Argentinean court analyzes this issue, finds that the family had initially accepted this risk by moving to Israel, that Israelis continue to carry out their daily activities, etc. Adds in 11 Sep 2001 attack in New York, putting the entire world on a state of alert. Orders return of the child on 05 Dec 2001 should the situation in Israel stabilize. Zone of War WMH Note: It was reported by counsel in Israel that the child was returned. Award of attorney fees and travel costs.

============================================================

Amer, U.S.A. v. (2nd Cir. 1997)

File Name: Amer_fed_appl.txt

File Date: 23 Mar 1997

NY and Egypt. Application of 18 USC 1204, the International Parental Kidnapping Crime Act of 1993. Conviction upheld. Court holds that only defenses that may be used are those listed in The Act -- none of the Art. 12 or Art. 13 defenses of The Convention would apply. Brief discussion of: habitual residence, rights of custody, Art. 13(b). Comment by Wm. M. Hilton.

============================================================

Analyzing the "Grave Risk" Defense

File Name: Grave_risk_defense.txt

File Date: 29 Jul 1998

An article by the Hon. James D. Garbolino, Superior Court of California, author of "International Child Abduction: Guide to Handling Hague Convention Cases in U.S. Courts" discussing the Art. 13(b) defense under The Convention. Analyzes Steffen F v Severina P. (D.Ariz. 1997) 966 F.Supp. 922, holds that this defense a) should be rarely found and b) still permits the child to be returned.

============================================================

Anton: Article on the Hague Convention (Jul 1981)

File Name: Anton_art.txt

File Date: 01 Jul 1981

Anton: "The Convention on International Child Abduction", The International and Comparative Law Quarterly, Vol 30, Part 3, July 1981, at Page 537. A comprehensive, well written, scholarly article that covers the history of the Convention, its application, etc. A must read.

============================================================

Application of Art. 13(b)

File Name: Art_13b_mem.txt

File Date: 04 Feb 1997

A memorandum of law showing that Art. 13(b) must be used sparingly (if at all). Cites authority for this proposition. Includes list of Exhibits cross linked to this file. Discusses the use of undertakings.

============================================================

Argentina: Operation of Central Authority

File Name: Argentina_cna.txt

File Date: 23 Sep 1996

Argentina: Central Authority. Sets out the policy of the Argentine Central Authority as to the handling of incoming Petitions for return.

============================================================

         Armiliato v Zaric-Armiliato

         File Name:  Armiliato_fed_dist.txt

         File Date:  03 May 2001

         Italy and New York.  Issue of Habitual Residence.  Cites
         Mozes 9th Cir decision with approval, discusses the
         cultural nexus of the child.  Holds that where a child
         is in a forum for a period of time that is both
         temporary and finite, such presence cannot generally be
         considered to be Habitual Residence.  Discusses the
         effect of intent on Habitual Residence.  WMH Note:  This
         case may more or less be classified as a "sabbatical"
         case.

============================================================

RE ARNOLD - Letter requesting publication of this case.

File Name: 13jul90_dca.txt

File Date: 13 Jul 1990 Download Time: 54 secs

Text of the letter sent to the 1rst Appellate District requesting publication of In re Marriage of Arnold (Cal.App. 1 Dist. 1990) 222 Cal.App.3d 499 [271 Cal.Rptr. 624]. This letter sets forth the argument that Canada should be treated as a state under the UCCJA.

============================================================

RE ARTHUR - United Kingdom High Court of Justice - Family

File Name: Arthur_uk.txt

File Date: 13 Jan 1988

Request for return from Australia on a wrongful taking. Issue as to joint legal custody being sufficient to cause a breach of custody rights (it was), effect of economic problems and Article 13(b), the Act governs over the implementing statute, ruling from the originating country as to whether or not a removal was wrongful. Rights of Custody. Consent Order. Stay under Art. 16 discussed. Art. 15 discussed.

============================================================

Attendence List, NASOICA 30 Sep - 01 Oct 1993

File Name: Attend_lst.txt

File Date: 01 Oct 1993

Name, Address, business telephone numbers of those persons who attended the North American Symposium on International Child Abduction in Washington, DC on 30 Sep and 01 Oct 1993

============================================================

Attorney Fees Award, Pleading and Order

File Name:38k_attorney_fees.txt

File Date: 20 Jun 1998

Californnia and Israel. Succesful motion for fees in a Hague Case in the amount of $38,596.03. Shows pleadings, legal argument, supporting declarations and judgment for fees. Payment included fees for counsel in Los Angeles and Santa Clara, California and Israel. Out of pocket expenses of Petitioner, e.g., air fare, meals, travel, etc. weer also included and paid.

============================================================

Aubry v Aubry, New York Family Court

File Name:Aubry_ny.txt

File Date: 16 Sep 1991

Swiss nationals in NY, child born in NY, mother takes child to Switzerland. NY uses the Hague Convention to find that it has child custody jurisdiction. Comments by WMH.

============================================================

Austin v Sorrentino (Italy 1996) Venice Juvenile Court

File Name: Austin_itl.txt

File Date: 27 Jun 1996

California and Italy. Principal issue was whether or not the father had exercised his rights of custody. Italian court held that he did not and therefore there was no right of return. Some discussion of Art. 13(b) based on the "damage" that would be caused by removal of a young child from his mother. Issue of consent touched on, but not well defined. Rights of Custody under California law determined.

============================================================

Australia, Summary of Hague Convention Cases

File Name: Summary_aus.txt

File Date: 02 Mar 1993

A listing and summary of all known cases involving the Hague Convention on Abduction from Australia. Prepared by the Staff of Hon. Justice Peter E. Nygh. Each summary describes the principal point raised. Many of these cases are on the Hilton House BBS and are so noted Contributed by the Hon. Justice Peter E. Nygh.

============================================================

AZ, Re (A Minor)(Abduction; Acquiescence)

File Name: Reaz_uk.txt

File Date: 29 Jul 1992

UK and FRG. Purpose of The Convention is to discourage child abduction and to return a child as quickly as possible to the country of his residence. Acquiescence: Courts should be slow to infer; discussion of passive/active; inactivity over time; infers knowledge of rights, actual knowledge of The Convention not required; conduct inconsistent with the summary return of the child is sufficient; indefinite stay. Discussion of wrongful retention & effect of a custody order (causes retention to be wrongful).

============================================================

A v. B. -- Supreme Court of Israel as High Court of Justice

File Name: AVB.ISR

File Date: 24 May 1992

Application of habeas corpus and The Convention. Court holds they are not exclusive. Both remedies are avaialble concurrently.

*B*==========================================================

B vs B, Family Court of Westerburg, F. R. of Germany

File Name: BVB.FRG

File Date: 29 Sep 92

Abduction for Texas to Germany. Child of very young age, 15 months, breast fed. Court finds that to separate child from mother would cause severe trauma to the child. Finds by implication that there is a wrongful removal. Art. 13(b) found. States that best interests overrides The Convention. Contributed by Dr. Donald J. Cramer of Munich.

==============================================================

B, In re (a minor), UK Court of Appeal, 136 SJ LB 156

File Name: Inreb_uk.txt

File Date: 07 May 92

Reverses court of first instance. Holds that the pendency of an action in the court of first instance is sufficient to show that there is a "rights of custody" within the meaning of Arts 3 and 5 in the court of first instance and therefore removal is wrongful. Finds that there is no "very high degree of intolerability" under Art 13(b) and states that even if an Art 13(b) condition were found it is still discretionary as to whether or not the court may not return the child. Ne Exeat by implication. Art. 15 discussed in footnote by Wm. M. Hilton

==============================================================

B, Re (A Minor) (Abduction) UK Court of Appeal

File Name: Inreb2_uk.txt

File Date; 29 Apr 1994

Australia and the UK. Agreement between the parties is sufficient to establish a right of custody, no court order needed, overrides the legal right of custody in the mother of a child born out of wedlock. Fraud in obtaining acquiescence vitiates the consent and causes a wrongful removal. Wrongful removal and wrongful retention are mutually exclusive acts.

==============================================================

Barraclough, Marriage of, Family Court, Melbourne, Australia

File Name: BARACLH.AUS

File Date: 19 Aug 1987

Australia and England. Issue of whether or not the father had a rights of custody per Article 3. Court ruled that as UK had wardship proceedings, the father had no custody rights and dismissed his petition. Some discussion of Art 16 as well.

=============================================================

Barrios and Sanchez (Australia 1989)

File Name: Barrios_aus.txt

File Date: 14 Jul 1989

Chile - Australia. Issue of age & maturity of children 10 and 8. Little weight given to their wishes: Effect of length of time away from mother, disparate living conditions, etc. No requirement that a MHP be used in this matter. Exceptions to be used sparingly. Effect of length of time children had lived in Chile, etc. Some discussion of acquiescence. Good case on age & maturity.

=============================================================

Bashir and Bashir - Fam.Ct.Australia No. 9435 of 1995

File Name: BASHIR.AUS

File Date: 01 Feb 95

This is not a Hague Case. Discusses the effect of non (illegal?) immmigration status on whether or not one can obtain residence for purposes of divorce. Court holds that non-immigration status does not prevent a party from becomeing a resident for this purpose. Habitual Residence See also DICK.CA on the same point. Contributed by Mr. Justice Kay of Australia.

=============================================================

RE BATES - United Kingdom High Court of Justice - Family

File Name: Bates_uk.txt

File Date: 23 Feb 89

Request for return from the United States on a wrongful taking. Child taken by an agent of the father. Issue of whether or not the US was the habitual residence of a child that had traveled extensively with its parents (rock band). UK Court finds that New York is the habitual residence, orders the return. Effect of other proceedings being heard at the same time in New York and the UK. Less than two week period of time. Regularly cited for habitual residence remarks. Procedure to obtain Art. 15 statement is discussed.

============================================================

Baxley v Baxley, Family Court of Westrn Australia

File Name: BAXLEY.AUS

File Date: 18 Jan 1994

Australia and Michigan. Wrongful Retention. Question of acquiescence, none found. Factors considered: Action started in Michigan, round trip ticket, wife looking for work for husband at his request in Australia, husband sending toys and clothing for the children. Financial inability of wife to return the children not considred.

============================================================

BECKER V. BECKER - Superior Court of New Jersey

File Name: BECKER.NJ

File Date: 28 Aug 1989

Request for return from Australia to US (New Jersey). Children born in US, lived in US then in Australia. Father left Australia with children for "vacation" in NJ, told mother later would not return. Discusses Wrongful Removal, application of Australian law by affidavit of Australian attorney. Effect of "submitting" to NJ jurisdiction. Children ordered returned. Fees awarded.

============================================================

Ben-Even v. Tal (United States 2001)

File Name: Ben-Even_Fed_Dist.txt

File Date: 01 Aug 2001

Israel and the United States (Nevada). Abstention: Not found despite action brought before state court: No order had been issued under The Convention. Habitual Residence (H/R): Mother and C in israel for about 9 months to see if could have better relationship between C and F. Court rules this is a temporary stay, M and C had not given up their prior H/R in Nevada. Lists factors the court used to determine no loss of NV (or gain of Israeli) H/R. Found that holding the passport for the child was significant. Age and Maturity: Although 8 years is too young, views can be considered as they effect the parents. Rights of Custody: Effect of California orders giving M sole physical custody and right to relocate under California law.

==============================================================

Police Cmmr of S. Australia v Bennett AD 1668 of 1993

File Name: BENNETT.AUS

File Date: 04 Jun 1993

Summary disposition on affidavits. Through discussion of habitual residence: time in each forum; unilateral decision of a parent not sufficient; "settled intention" discussed; habitual residence of child is that of the parents; effect of separation on habitual residence; compared to ordinary residence; kidnapping cannot change habitual residence. Rights of custody determined by the law of the habitual residence. Use of correspondence between the parties to show no acquiescence. Art. 13(b) touched upon: Cannot use "Best Interest" standards; heavy level of proof required. More than mere preference of a 9.5 year old child required, wishes not considered. Tolling. Comments by Wm. M. Hilton Desires of child. Age & Maturityu. Object

============================================================

         Director-General et al v Rhonda May Bennett
         (Family Court of Australia 2000)

         File Name:  Bennett2_Australia.txt

         File Date:  16 Mar 2000

         UK and Australia.  Discussion on use of affidavits, need
         for promptness.  Principal & extensive discussion is on
         Art. 13(b) and how it should be used very restrictively.
         Discussion of effect of allegations of the abducting
         parent that he/she cannot travel to the requested state
         and when this may be applied, use of procedures that
         allow remote appearance (telephone, video links). Clear
         and convincing evidence required.  Aboriginal Heritage
         discussed.  Cites Friedrich and other US authority.

============================================================

Benson v Benson (County Admin. Court 1998)

File Name: Benson_Sweden.txt

File Date: 19 Oct 1998

Sweden and California. Four children, born in Sweden. Family lived in Sweden from 1986 to 1997. Family in California from Aug 1997 to Jun 1998. Mother alleges this was not a permanent stay therefore Sweden remains the Habitual Residence. Father claims that family moved from Sweden to California to stay on a permanent bases. Court discuss concept of Habitual Residence, goes over the objective facts and finds that the 10 months stay in CA did not shift the Habitual Residence to California.

============================================================

Berendsen v Berendsen (DC Kansas 1996)

File Name: BEREN.FED

File Date: 22 Mar 1996

Netherlands and Kansas. Discussion of right of custody, holds that do not need a custody order, that organic law of Netherlands giving joint custody to parents is sufficient. Attorney fees awarded. Rights of Custody.

============================================================

Berendsen v Nichols (D.Kan. 1996)

File Name: Berendsen_fed.txt

File Date: 19 Sep 1996

Award of attorney fees and costs. Court sets hourly rate based on the local area, sets out factors to be considered in award of fees: Skill, prior cases, etc. Allows 42 hours for the case. Pays for travel and similar costs for petitioner. Reduces award by 15% based on ability of respondent to pay child support. Total award of $5,840.15. WMH Note: It appears as if attorney fees were reduced due to the skill of the prevailing attorney.

============================================================

Bibliography - International Child Abduction

File Name: HAGUEBIB.001

File Date: 18 Apr 1966

Prepared and contributed by Adair Dyer. Articles appear in English, German, French, Italian, Portugese, Dutch and the Danish language.

============================================================

Bickerton, Marriage of, Contra Costa County, California

File Name: Bickerton_California.txt

File Date: 23 Jul 1991

Canada and California matter. Canadian agreement, no order, that children live in Califonia for one year, Canada for one year, etc. Mother brings action during one of her years in California to modify the agreement. Hague Convention applied: Canada is the Habitual Residence of the children, the retention by the mother over her year is a "Wrongful Retention". See also Storvik_California.txt

=============================================================

Blondin v Dubois (S.D. NY 1998)

File Name: Blondin_fed_dist.txt

File Date: 17 Aug 1998

New York and France. Admission of wrongful removal, argued Art. 13(b). Court finds that there was violence towards the mother, children, allows Art. 13(b) finding, children not return. No discussion of ability of French courts to protect the children. Comment by Wm M Hilton that court should have made inquires as to whether or not French Court would provide protection.

=============================================================

Blondin v Dubois (2nd Cir 1999)

File Name: Blondin_fed_appl.txt

File Date: 17 Aug 1999

New Work and France. Art. 13(b) finding upheld. Courts must make every effort to (1) return the child and (2) safegard child from 13(b) during return. District court is obligated to do what it can to see to the safe return of the children to the Habitual Residence. Use the most expeditious process possible. Exceptions to return are to be narrow. Well settled can be a factor if under one year if there is a grave risk that the child's] return would expose the child to great harm. It is an important treaty commitment to allow custodial determinations to be made by the child's home country. Use of Perez Vera Report approved.

=============================================================

Biton and Biton (Isreal Fam.Ct. 1997)

File Name: Biton_Israel.txt

File Date: 28 Dec 1997

Petitioner's claim submitted by affidavit (he remained in California), court points out that this is acceptable, keeps costs down. Principle issues is that the Court holds that whether or not the parents and/or child's have a legal right to live in the US should not effect the decision. The Convention is to be narrowly interpreted towards causing the return of the child. Some discussion of consent and acquiescence. Minor's preference brought up, discussed. Child 11, not given any significant weight, effect of influnce of abductor considered. Fees awarded.

=============================================================

Brennan v Brennan - New York and France

File Name: BRENNAN.NY

File Date: 10 May 96

New York and France. Discussion of Habitual Residence and facts to consider. Distinguishs between a temporary visit vs an indefinite stay.

=============================================================

Briefing on Hague Convention: 06-07 Jan 89 (Gloria F. DeHart)

File Name: RPTJAN89.GDH

File Date: 01 Oct 90

Text of the report of Gloria F. DeHart of the Briefing on the Hague international Child Abduciton Convetion and Related Federal Legislation, 06-07 Jan 1989, Department of State and American Bar Association Headquarters, Washington, D.C. Useful insights as to application of the convention, eg, what is habitual residence, analysis of cases, etc.

============================================================

Bolton v Bolton, Baton Rouge, LA Family Court

File Name: BOLTON.LA

File Date: 04 May 1994

Wrongful removal to LA from UK. Mother raises acquiescence defenses based on plans both had to move to US from UK for economic reasons and because Father had made steps in that direction. Defense disallowed since did not actually move to US. Petition granted. Cites Friedrich. Minor discussion of rights of custody.

============================================================

Briefing on Hague Convention: 06-07 Jan 1989, (Adair Dyer)

File Name: REMJAN89.AD

File Date: 06 Jan 1989

Remarks of Adair Dyer presented at the briefing on the Hague Convention in Washington, DC during Jan 1987. Useful source of information as to how the Convention is to work, definitions of some terms, etc.

============================================================

Bromley v Bromley (E.D. Pa. 1998)

File Name: Bromley_fed_dist.txt

File Date: 15 dEC 1998

Art. 21 issue. Visitation. Court finds that there is no jurisdiction in the Federal Court to invoke Art. 21. The court finds that The Convention " . . . does not provide the courts with independent authority to remedy such a situation." Comment by Wm. M. Hilton

============================================================

Brooke v Willis S.D.N.Y (Federal Court)

File Name: BROOKE.FED

File Date: 02 Aug 1995

New York and England. Primary focus on notice when the abducting parent is concealing themselves. Offers several solutions. Issuance of Habeas Corpus and Warrant in Lieu of Habeas Corpus. Temporary custody under ICARA. Discusses Habitual Residence and effect of settled purpose - holds that one day could be sufficient. Discusses Rights of Custody in UK based on California custody order.

===========================================================

Brown v Brown (Cal.App. 4 Dist 3 Div 1999)

File Name: Brown_CA.txt

File Date: 31 Mar 1999

Austria and California. Court discusses the interation of The Convention and the UCCJA, holds that they are not interlocked with one another. The denial of a Petition for Return under The Convention only means that the child is not to be returned under The Convention and does not restrict other means of return, e.g., UCCJA, etc.

===========================================================

Brown and Brown, Federal Dist. Court, Central Dist, California

File Name: Brown_fed_dist_np.txt

File Date: 07 Jul 1994

Austria and California. Couyrt finds that California Department of Social Services (DSS) wrongfully retained the child in California and that the DSS is a "person" under The Convention but then finds that the child need not be returned under Art. 13(b). Finding of Habitual Residence in Austria and that the stay in California was temporary. Finding of right of custody under Austrian Law. Mater appealed, appeal dismissed as moot as the child was ultimately returned to Austria. See Brown_australia.txt (Below)

============================================================

Brown v Brown, Family Court of Australia at Sydney

File Name: Brown_australia.txt

File Date: 18 Dec 1992

Australia and Austria. Father takes children from Austria when he sees photographs of child in nude sitting with nude older men. Admits abduction, asks for Art. 13(b). Court: behavior of both leaves much to be desired, but will send child back and let Austrian court deal with issues, no harm will come to the child on way back, court in Australia sends its records and the photographs. Sexual abuse. See BROWN.FED (above)

============================================================

Browse file utility

File Name: BROWSE.COM

File Date: 15 Apr 1988

This utility is like the DOS TYPE command except that it displays one screenfull at a time, allows line-by-line review.

============================================================

Buchanan v Buchanan (UK 1998)

File Name: Buchanan_uk.txt

File Date: 11 Mar 1998

NY and Scotland. Family Habitually Resident in Denmark, F abducts children to Scotland. M leaves Denmark, moves to NY. Actions in Scotland, NY. Court holds not an abduction case because neither of the parties wishes to return to Denmark and the Danish courts situation would not exercise jurisdiction. Habitual Residence

============================================================

Burgess v Smid (Netherlands Supreme Court)

File Name: BURGESS.HOL

File Date: 26 Mar 1993

Netherlands and Virginia. Question of shift of Habitual Residence from Virginia to the Netherlands. Court holds this is a factual issue and that Habitual Residence is based upon the intent of the parties: Did they move to the Netherlands with the intent of making it an indefinite stay? The trial court believed the mother's view that they did and hence the Habitual Residence shifted from Virginia to The Netherlands.

============================================================

Burton v Oyekan, Fam.Ct., New York County

File Name: BURTON.NY

File Date: 08 Mar 95

New York, UK and Nigeria. Question of where the Habitual Residence was: UK or Nigeria. Question of credibility of parties as evidence could show either as Habitual Residence. Court found Respondent more credible and therefore Nigeria was the Habitual Residence and since Nigeria is not a Contracting State the Petition was dismissed.

*C*==========================================================

C v C (Abduction; Rights of Custody) Ct of Appeal (Civil)

File Name: Cvc_uk.txt

File Date: 14 Dec 88

UK and Australia. Divorce in Australia, Ne Exeat order held to be a right of custody per Art 3, 5. Cases to be decided summarilly. Art 13(b) denied as Safe Harbor is provided: Travel to Australia, housing, auto, etc. Refusal of mother to accompany child back does not cause Art 13(b) as this is an act of the person doing the removal. Coach and Four phrase. Effect of sanctions awating he parent who takes the child. Rights of Custody.

=============================================================

In re C v S Court of Appeal and House of Lords, UK

File Name: CVS.UK

File Date: 16 Aug 90

Request for return from Australia, unmarried couple. Application of Western Australian law that gives mother physical and legal custody of child. Discussion of "Habitual Residence" vs Domicile of child (as that of mother), case turns on finding that as child's Habitual Residence was that of mother and as mother was habitually resident in UK at time in question for retention, then not wrongful, no return. Rights of custody Illegitimate Temporary Visit Lengthy discussion of Art. 15 and how it is to be applied.

=============================================================

California Family Code Section 3010

File Name: Calif_fam_code_3010.txt

File Date: 14 Feb 1997

Full text of California Family Code Section 3010. This section determines the rights of custody of parents prior to a court order. In general both parents, under this section, have equal rights of custody.

=============================================================

California Pleading Format

File Name: CALIF.PLD

File Date: 29 Oct 1990

Layout of pleading paper as used in a California Domestic relations matter, includes reference to California Rules of Court, shows size of paper, etc.

============================================================

Canadian Annex to the Official Report of the 2nd SCM

File Name: CANADIAN.ANX

File Date: 21 Jan 1993

The full text of the Briefing Note presented by the Canadian delegation to the 2nd Special Commission Meeting, 18-21 Jan 1993. Describes the use of customs and INS to identify children who are crossing international borders.

============================================================

Caro v Sher (N.J.Super.Ch. 1996)

File Name: Caro_nj.txt

File Date: 30 Oct 1996

Spain -- New Jersey. Uniform international interpretation. No merits of underlying custody. Art. 13(b) touched upon. Art. 20 discussed at length as to "due process" claims due to delays in the Spanish Courts, claim rejected, requires a showing of clear and convencing evidence. Presume that foreign courts will protect the child. A forum selection process only. Holds equal dignity between courts who have signed The Convention. Age & maturity discussed. Court declines to interview the children (7 to 13), would add more trauma to their lives. Attorney fees allowed, to be submitted.

============================================================

Case Reporting Form, International Child Abduction.

File Name: QUESTION.ANX

File Date: 21 Jan 1993

Form adopted by the 2nd Special Commission Meeting for reporting cases decided under The Convention.

============================================================

Central Authorities, List of

File Name: Central_auth.txt

File Date: 03 Mar 1997

A list of all known Central Authorities, with names of contact persons, telephone numbers, FAX numbers, etc. Note that the United States Central Authority has requested that all contact be made through the U.S. Central Authority.

============================================================

Charmasson v Charmasson (Canada 1985)

File Name: Charmasson_cdn.txt

File Date: 26 Jul 1985

France -- Canada. No Art. 16 notice received, therefore The Convention was not applicable to effect the jurisdiction of the Canadian court. Ontario (at that time) was not a contracting state, The Convention did not apply.

============================================================

Children's Whereabouts -- Right to Know of

File Name: CHILDADD.PAA

File Date: 21 Aug 1991

Memorandum of law setting forth legal basis for a parent to compell the whereabouts of the children from the other parent or the other parent's attorney over a claim of attorney client privelege.

=============================================================

Ciotola v Fiocca (Ohio Com.Pl. 1997)

File Name: Ciotola_Ohio.txt

File Date: 12 Mar 1997

Ohio and Italy. Constructive notice of hearing permitted by showing of actual knowledge that the action would be filed. Habitual Residence discussed: A finding of "settled purpose" was found. Factors set forth to establish Habitual Residence in Italy. Acquiesence discussed to some extent, none found. Art. 13(b) argued. Cites Friedrich. Mother argues that return of child w/o mother would cause trauma, not allowed. Fact of possible criminal prosecution of abductor cannot be used as a bar to return of the child. Child to be returned to the country (Italy) and not to the father in Italy. "Best Interests" test not allowed: Merits cannot be litigated in an action under The Convention.

=============================================================

CM, Ministry of Justice and (Cyprus 1996)

File Name: Cm_cyprus.txt

File Date: 18 Dec 1996

New York -- Cyprus. Age & Maturity. Desires of age 9 child to stay in Cyprus was heavily influenced by the abducting parent, disallowed this. Acquiescence was touched upon in that the abductor claimed that the mother stated the child could remain in Cyprus. Mother denies, court also finds that her behaviour (commencing the Hague Action, getting a New York Court order, etc) was inconsistent with acquiesence. Art. 13(b) defense denied: Father alleges alcohol, extramarital affairs, interferes with access, living conditions generally bad. Cyprus court finds that the New York Court was seized of the matter and better if these issues were left to New York. Narrow use of Art. 13(b) upheld. Purpose of the convention are to return the child, not to litigate custody.

=============================================================

Coffield, Petition of; Ohio Court of Appeal

File Name: COFFIELD.OH

File Date: 03 Jun 1994

Ohio and Australia. Child removed from Austalia about three years before, in Ohio about 10 months at time of hearing. Art. 12 exception of Well Settled not allowed. Art. 13(b) not allowed: Court found that ". . . proposed evidence on this issue must pertain to the environment in which the child will reside upon returning to the home country . . " No psychological testing permitted. Narrow application of Art. 13(b).

=============================================================

Cohen v Cohen - District Court of Tel Aviv - Israel

File Name: COHEN.ISR

File Date: 25 May 1992

South Africa, New Jersy, Israel. In view of relatively short period of time in New Jersey, mother argues that Israel is the "Habitual Residence", but court finds for New Jersey, seemingly since that was the last place they lived prior to the abduction. Defines "Rights of Custody" as under New Jersey law. Touches on but does not discuss Article 13(b).

=============================================================

Cohen v Cohen - Supreme Court of New York - Kings County

File Name: COHEN.NY

File Date: 10 Aug 1993

New York and Israel. Removal from NY to Israel and then counter removal from Israel to NY. NY court finds that, at the time of the counter removal, NY and not Israel was the Habitual residence of the children and therefore there was no wrongful removal. Comments by William M. Hilton, CFLS. Habitual Residence, Domicile.

=============================================================

Colli v Colli (Italy 1996)

File Name: Colli_italy.txt

File Date: 28 Dec 1996

UK - Italy. Child held over after summer visit. Italian court "suspends" the return of the child pending a psychological evaluation on the fitness of the parents and whethr or not an order from the UK is final. Comments by Roberta Ceschini, Esq., and Wm. M. Hilton.

=============================================================

Collopy, Marriage of. District Court of Colorado

File Name: Collopy_colorado.txt

File Date: 08 May 1991

Colorado and UK. Wrongful removal and/or retention found. Court goes over Art 13(b) and finds that it can't be used as a "best interest test". Expert used to show Art. 13(b). Putting the child in a serious situation is not a grave risk as contemplated by Art. 13(b). Court finds that child has been in CO over one year and is integrated into the area. Child not returned.

=============================================================

Concealing child, tolling of Art. 12

File Name: Conceal_mem.txt

File Date: 30 Jan 1997

A memorandum arguing that concealing a child tolls the application of the one year period under Art. 12.

=============================================================

CONCEPT OF HABITUAL RESIDENCE, THE by Dr E. M. CLIVE

File Name: Concept_H_R.txt

File Date: 28 Aug 1998

Dr Eric Clive analyses the nature of the statutory concept of habitual residence. He supports the view of the House of Lords that it is a simple concept to be applied by concentrating on the ordinary meaning of the two words and the facts of of the particular case; and he suggests that, in the interests of uniformity among countries, it should be kept simple and not be subject to additional "spurious legal propositions".

=============================================================

In re the Marriage of Condon (Cal.App. 1998)

File Name: Condon_CA.txt

File Date: 23 Mar 1998

California and Australia. Move away case. Sets out three factors to consider, the final being the form of guarantee required in the foreign country that the California order will be followed. Good discussion of issues to consider when the move away is from the United States to a foreign nation. Habitual Residence

=============================================================

The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980

File Name: Hague_con_text.txt

File Date: 23 Dec 88

Full text of the Convention.

============================================================

C. v C. (Saia) (Trieste Juvenile Court)

File Name: CONTA.ITL

File Date: 18 Sep 96

Italy and New York. Children returned to New York over the objections of the mother. Mother argued that there was domestic violence, that the father did not take adequate care of the children, that there was interference by the father's family, etc. Court held that there was not a sufficient showing under Art. 13(b) and ordered the children returned. Comment by counsel for father, foot notes by Wm. M. Hilton.

============================================================

Conway v Dosen (Dist. Mont. 1995)

File Name: CONWAY.FED

File Date: 14 Aug 95

Australia and Montana. Wrongful Retention. Request for permanent injunction against the state court as to ongoing custody decree. Federal Court declines to act. Some discussion on Habitual Residence and purpose of the convention. Dismisses under Art. 12 since the children (at the time of the hearing) were no longer in Montana.

============================================================

Coparenting Agreement, in ASCII text

File Name: COPAR.ASC

File Date: 03 Sep 92

A generic coparenting agreement, 12 sections. This agreement is a neutral, child centered document that permits the parents to reach an agreement in a non-adverserial manner. The focus is on the needs of the child rather than the parent. Contains language for communication, support, enforcement, jurisdiction, etc.

============================================================

Coparenting Agreement, in WordPerfect 5.1 text

File Name: COPAR.WP5

File Date: 03 Sep 92

This is the same as COPAR.ASC except that it is formated in WordPerfect 5.1

============================================================

Cornfeld v Cornfeld (Canada 2001)

File Name: Cornfeld_Canada.txt

File Date: 30 Nov 2001

Canada (Ontario) and Israel. Applications must be handled expeditiously. Adjournmants for iong periods should be avoided. Art. 13(b) raised. The respondent must establish on a balance of probabilities that there is a very strong likelihood that harm will occur. Issue of "Zone of War" in Israel. Art. 13(b) exception denied, children ordered returned to Israel.

============================================================

Cornfeld v Cornfeld (Canada 2001)

File Name: Cornfeld_Appeal_Canada.txt

File Date: 03 Dec 2001

Canada (Ontario) and Israel. Order of the Superior Court of Justice Affirmed as to expidited basis for the hearing on the finding that Art. 13(b) did not apply. Adjournments should not be routinely granted. Court of appeal basically holds that the appellant must make a prima facie showing of prevailing if a stay pending appeal is to be granted. Comment by Wm M Hilton. Zone of War.

============================================================

Coward and Coward, Superior Court of Montreal

File Name: COWARD.CDN

File Date: 23 Jun 1988

Quebec Province. Court finds that the requirements for return are met, no exceptions under Art 13(b), orders the return, orders Juvenile Protection to turn the child over to the father, allows execution during the appeal.

=============================================================

Contracting States to the Convention.

File Name: Go to www.hcch.net for this data.

File Date:  20 Apr 00

A list of all of the countries that are contracting states with the United States in the The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980.

=============================================================

Crofton, Martha and John, Family Court, New York

File Name: CROFTON.NY

File Date: 02 Jul 1992

NY and the UK. Removal from UK to NY, both sides obtain custody orders. Application made to NY Family Court for return. The order is notable for its routine use of The Convention. Analogizes The Convention to the UCCJA. Footnotes by Wm. M. Hilton, cross references other Hilton House Files.

=============================================================

Costa, Peter and Debra, United Kingdom

File Name: COSTA.UK

File Date: 21 Aug 1991

New York and United Kingdom. Defines Wrongful Removal by implication: Access pattern and law of New York imply that the removal of the child by the custodial parent was in breach of the right of the non custodial parent to determine where the child lives. Discusses Art 21 (Access) and who has jurisdiction to make an order for access. War of the Roses

============================================================

Crall-Shaffer v Shaffer (Ohio App. 1 Dist 1995)

File Name: Shaffer_OH.txt

File Date: 19 Jul 1995

France and Ohio. Action under The Convention filed as part of a local domestic relations matter. Dismissal of the domestice relations matter does not cause dismissal of The Convention. Notice and opportunity to be heard discussed briefly. Short note by Wm M Hilton

============================================================

     Croll v Croll (S.D.N.Y. 1999)

     File Name:  Croll_fed_dist.txt

     File Date:  19 Oct 1999

     Hong Kong and New York.  Holds that a Ne Exeat order is a
     right of custody.  Discusses exercising rights of custody
     and holds that even very slight contact is sufficient. The
     fact that the F did not obtain a block on the passport was
     not enough to show acquiescence.  Art. 13(b) invoked, not
     allowed. Court holds that danger, if any, must be to the
     child, not the parent.  Court returns child conditoned upon
     undertakings.  Consent  Rights of Custody

============================================================
 
 

============================================================

         Csoka v Superior Court (Scott-Robson)

         File Name:  Csoka_CA.txt

         File Date:  30 Mar 2000

         California and Sweden.  Court of appeal asks for a)
         effect of CCP 917.7 (Automatic 30 day stay of removal of
         a Ne Exeat order) and b) primia facie showing that
         appeal would be successful.  Court denies the writ,
         finds no prima facie case. Court (mostly) does not
         address the automatic stay and its effect on The
         Convention.  Comment by Wm. M. Hilton on this point.

============================================================

Currier v Currier, (DC NH 1994)

File Name: CURRIER.FED

File Date: 16 Mar 1994

FRG and NH. FRG order for custody to M. M&F sign agreement: Custody to F, M rescinds next day, gets FRG Ne Exeat order, F leaves with children to NH. Court finds H/R is FRG, Rights of Custody in M, reconciliation did not change, no acquiescence due to agreement since was rescinded at once, further FRG action. Art. 13(b) touched on, burden of proof. Case addresses purpose of Convention to cause immediate return to Habitual Residence. If fraud to be determined in FRG. Matter on appeal. Art. 15 mentioned

=============================================================

Custody Order Language

File Name: CUSORDER.ASC

File Date: 13 Oct 89

Suggested sample language for an order to pickup a child in a custody case. Cites California Penal Code Sections 278.5 and 279 and California Civil Code Section 4604. The theory behind this file is to provide language as unambiguous as is practicable.

============================================================

Custody Rights, Australian Law

File Name: CUSRHT.AUS

File Date: 10 Jun 95

Text of Sec 63F of the Australian Family Law Act 1975 showing that, absent an order, both parents have equal rights of custody.

============================================================

Custody Rights, California Law

File Name: CUSRHT.CA

File Date: 08 Dec 94

Opinion of William M. Hilton, Certified Family Law Specialist, California Board of Legal Specialization, as to the rights of custody of parents under California law in the absence of a court order. Discusses application of California Family and Penal Code and the "International Parental Kidnapping Crime Act of 1993", 18 USC 1204. Defined in terms of Arts 3 and 5 of The Convention.

============================================================

Custody Rights, French Law

File Name: CUSRHT.FRN

File Date: 20 May 94

Opinion of Alain Cornec, IAML Attorney, Paris, as to the rights of custody of parents under French law before, during and after divorce. Defined in terms of Arts 3 and 5 of The Convention, appropriate cites to French law.

============================================================

Custody Rights, Israeli Law

File Name: Cusrht_Isr.txt

File Date: 17 Aug 1962

Full text of Chapters 1 and 2 of the Capacity and Guardianship Law of Israel. Sets forth the rights and responsibility of parents in the absence of a court order.

============================================================

Custody Rights, Norwegian Law

File Name: CUSRHT.NOR

File Date: 20 Apr 94

Text of the Norwegian Children's Act of 1981. Discuss rights of parents, child, paternity, etc.

============================================================

Custody Rights, United Kingdom Law

File Name: CUSRHT.UK

File Date: 14 Sep 96

Text of Part 1 and Part 2 of the UK Children Act of 1989, Sections 1 through 16 inclusive. Discusses rights of parents, residence & contact orders, paternity, etc.

*D*=========================================================

David B v Helen O (Fam.Ct. NY 1995)

File Name: DAVID.NY

File Date: 08 Aug 95

Issue of Habitual Residence between New York, England and Nigeria. Discusses objective of The Convention. Does a well reasoned analysis of Habitual Residence and how it has come to be defined as "ordinary residence". Compares to domcile. Gives a list of factors to be considered when this is being analyised, etc. Very good case. Habitual Residence.

============================================================

David S. vs Zamira S, New York Family Court

File Name: DAVID_S.NY

File Date: 31 Jan 1991

Wrongful removal from Canada to US by custodial parent. More than one year in New York. Court finds that, as the children are very young, they have not integrated into the community. No fees as neither can afford to pay them. No Art 13(b) issue raised. No jurisdiction over the merits of the case.

=============================================================

De Arrendondo vs Salto (Cal.Super. 1997)

File Name: Martinez_california.txt

File Date: 04 Feb 1997

Mexico - California. Wrongful retention. Child concealed for about eight months, action filed more than one year after wrongful retention, courts hold Art. 12 is tolled due to concealment. Principal issue is age & maturity. 11 and 12 year old stated that they would rather stay in California but would comply with the court's order to return if it was made. Court finds that the children did not object to being returned in Mexico. Cross examination of MHP as to the interview of the two children. Disucssion of effect of Art. 16.

=============================================================

Delay, Judicial, Effect of on Proceedings Under The Convention

File Name: DELAY.ART

File Date: 21 Aug 95

Published in the American Journal of Family Law, Fall 1995. Compares the UCCJA with The Convetion as to Habitual Residence vs Home State and/or Significant Contacts. Argues that The Convention must be decided as to the facts at the date of the Wrongful Act and that Judicial Delay should have no effect.

=================================================================

DETERMING HABITUAL RESIDENCE

File Name: Determine_HR.txt

File Date: Spring 1997

Ms Hung discusses the concept of Habitual Residence (H/R) in light of the FEDER v.EVANS-FEDER decision. This article surveys the decisional law on this issue as of Spring 1997.

=================================================================

Diab, Matter of. Canada and California

File Name:Diab_cdn.txt

File Date: 17 May 96

Canada (Quebec) and California. Abductor argues Art. 13(b): Economic (Not allowed), California grants sole custody to left behind parent. Canadian court consults with California court and is advised as to California process, interim order set so that child can be returned and de novo hearing had. Safe Harbor order issued by the California court. Habitual Residence discussed, distinguishes temporary vs long term stay. On appeal hearing set for 19 Sep 96,. WMH Note dated 17 Nov 96: Have been advised by Adair Dyer that the appeal was dismissed. Cooperation

=================================================================

Dick, Marriage of (California Appellate Los Angeles)

File Name: DICK.CA

File Date: 26 Apr 93

This is not a Hague Case. Discusses the effect of non (illegal?) immmigration status on whether or not one can obtain residence for purposes of divorce. Court holds that non-immigration status does not prevent a party from becomeing a resident for this purpose. Habitual Residence See also BASHIR.AUS on the same point.

=============================================================

Dickbauer v Dickbauer, NY City Family Court

File Name: DICKBAU.NY

File Date: 29 Feb 1996

New York and Austria. Sole issue of Habitual Residence. Court considers and lists the factors required to make a place the Habitual Residence of the child.

=============================================================

Distler v Distler (Dist NY 1998)

File Name: Distler_fed_dist.txt

File Date: 29 Oct 1998

New York and Isreal. Children returned by consent order. Issue of attorney fees submitted to the court. Court awards $10,717.20 for: Lead and Associate counsel fees, foreign counsel fees and travel costs for the client. Court goes over each item and gives reasons for the award. Footnotes by Wm M Hilton, CFLS as to issue of concealment and service of documents.

=============================================================

Divorce -- Israeli Style

File Name: DIVORCE.ISR

File Date: 26 Jan 1995

A short article by Susan Weiss, Attorney, of Jerusalem, Israel on some problems associated with obtaining a divorce in Israel. Touches on custody, obtaining a get, etc.

============================================================

RE: DUNCAN - High Court of Justice, United Kingdom

File Name: DUNCAN.UK

File Date: 29 Jan 1988

Request for return from Canada on a wrongful removal. Case is a good view of the overall powers of the court as to issues of discovery, finding the child, policy, third party witnesses, joining of a third party, etc. Some (brief) mention of standards for Art. 13(b).

============================================================

Duquette v Tahan, New Jersey, 600 A.2d 472

File Name: TAHAN.NJ

File Date: 18 Nov 91

New Jersey and Quebec. Discusses the effective date of the commencment of proceedings within the meaning of Article 12 of the Convention and the effect of continuing a hearing on that date. General language about the purpose of the Convention. See also TAHAN2.NJ and TAHAN3.NJ

*E*==========================================================

Re E (Abduction: Non-Convention Country) [UK 1999]

File Name: Re_E_non_convention_uk.txt

File Date: 24 Jun 1999

UK and Sudan. Applies the criteria of The Convention to a non-convention country. Excellent discussion on the equal dignity of the respective court systems -- there are to be no "invidious comparisons and inflammatory exclusions" and that one must respect a variety of concepts of child welfare derived from differing cultures and traditions. Children returned to the Sudan.

=============================================================

DHCS v E, Matter of; Fam.Ct. of Australia at Melbourne

File Name: DHCS_V_E.txt

File Date: 23 Dec 92

Art. 13(c): Child objects to being returned. Wishes of child. Child is 11 yrs 3 mos old, MHP states that the child is mature, that the child's wishes should be honored. Court declines to do so holding that the evidence proffered does not meet the standards under The Convention, to be read restrictively. Even if the court accepts the evidence, the return would be at the discretion of the court. Court states that this was really meant to apply to the 15 year old that would be 16 shortly after its return. Cites article by Anton (ANTON.ART) Age & Maturity Decision by Justice Kay.

=============================================================

         El-Hateeb v El Hateeb (Norway 1998)

         File Name:  El_Hateeb_Norway.txt

         File Date:  18 Dec 1998

         Norway and Israel. Testimony given by the Petitioner by
         telephone from Israel to Norway.  Children: 14, 10, 4, 1
         year of age.  Youngest child conceived in Israel, in
         utero about 7 months in Israel, born in Norway, never
         lived in Israel, no Habitual Residence in Israel.  The
         two older children stated they did not wish to return to
         their father. Court finds they have the necessary age
         and maturity (Norwegian guidelines permit children of 7
         upwards to give their view.).  Art. 13(b) successfully
         argued as to domestic violence.  Past "bad acts" not
         controlling as to whether there will be future grave
         risks to the children.  Splitting the children is
         intolerable and violation of human rights.  Art. 20
         argued, not found.  Each party to pay fees and costs.
         Comments by Wm. M. Hilton.

=============================================================

Emergency Jurisdiction Under the UCCJA/PKPA

File Name: EMERGNCY.STD

File Date: 11 Jun 94

This is a sample pleading that covers the use/misuse of Emergency Pleading under the UCCJA/PKPA. A set of points and authorities that sets out the criteria for an "Emergency", what effect the "Emergency" has for initial and modification orders and how long the "Emergency" lasts.

=============================================================

Enforcement Language -- Custody Orders

File Name: Enforce_custody_ord.txt

File Date: 14 Jul 1992

Sample terms used for enforcement of a custody order, includes terms for fees, notice, third party intervention, etc.

=============================================================

Enforcement and Jurisdiction Stipulation

File Name: Enforce_jurisdiction_stp.txt

File Date: 14 Jul 1992

A stipulation that includes enforcement language (fees, sanctions, etc), no modification language, UCCJA and PKPA jurisdictional terms, language from the Hague Abduction Convention. Can be filed once in the record and then applies to any other order that is filed after it.

==============================================================

Equal Dignity of Courts

File Name: Equal_dignity_mem.txt

File Date: 05 Mar 1996

Arguments to show that the courts of one country stand on equal footing with the courts of another country insofar as custody decisions are concerned. Cites to UCCJA, Hague convention, etc.

==============================================================

Escalante and d'Assignies, Los Angeles Superior Court

File Name: Escalante_california.txt

File Date: 08 Dec 1991

Father kidnaps children in France and gets French Ne Exeat order. Mother removes children from France in contravention of the Ne Exeat order, goes to Los Angeles. Request for return filed by father. Days before the decison father abducts children to France. Court finds France as Habitual Residence, removal by mother was wrongful but applies Art 13(b) because of action of father in removing the children in contravention of the Los Angeles Ne Exeat order.

=============================================================

Escalante v Pico d'Aligny d'Assignies - France - Court of Appeal

File Name: Escalante_france.txt

File Date: 29 Jul 1992

Decision of French Court of Appeal. Holds that the mother had exclsuive rights of custody and therefore her removal of the childrn, despite the existence of a Ne Exeat order, was not wrongful. Orders payment of 30,000FR in attorney fees. Some discussion as to what effect a stipulation as to parental rights may have on the court of first instance. A follow up of the Los Angeles case. A tangential reference to Habitual Residence.

=============================================================

Escobar, In the Matter of (NZ 1993)

File Name: Escobar_nz.txt

File Date: 21 Sep 1993

New Zealand from California. Handled expeditiously: Hearing 12 days after receipt by the CnA. Court not to consider custody issues. Heavy burden on abducting parent to prove Art. 13(b). Petitioner appears by affidavit. Investigation of Petitioner by CA officials show no basis for Art. 13(b), their view given significant weight. Mother's testimony is basically about best interests and, even if all believed, does not make out an Art. 13(b) defense. Immediate return ordered.

=============================================================

EVANS V EVANS - United Kingdom Court of Appeal (Civil)

File Name: Evans_uk.txt

File Date: 20 Jul 88

Request for return from Australia on a wrongful retention. Father pleads Art 13(b): Intolerable Situation based on his allegations that mother is promiscuous, uses drugs. Trial court denies request for oral testimony. Court discusses whether or not a social study can be used to make an investigation as to the allegations, does not reach this as relies on the trial court's discretion that the father had not met his burden of proof. Australia in better position to review such allegations, prompt return required under the Convention.

=============================================================

Evidence, Submission of to Court

File Name: EVIDENCE.SUB

File Date: 20 Apr 95

A short form that is used to submit written evidence to the court, citing appropriate sections of The Convention and ICARA in support of the admission of the evidence.

*F*=========================================================

Re F (Minor: Abduction: Jurisdiction)

File Name: In_re_f_uk.txt

File Date: 30 Jul 90

Applies the Hague Convetion to a non-Hague country. Distinguishes between the merits of the case and where the case should be held. Discusses joint right of where the child should live as a rights of custody under the Convention. Very supportive case. Makes an issue of criminal charges being laid against the abducting parent: This would deprive the child of the company of that parent. Criminal Charges Israel

=============================================================

Falls v Downie (Dist.Mass. 1994)

File Name: Falls_fed_dist.txt

File Date: 28 Dec 94

MA and FRG. Child removed to MA with consent of both parents. Period of time that child was to be in MA was "indefinite", i.e., there was intent to settle in MA, there was no expressed intent to have the child return, there was no specific date of return. Petitioned denied since the "Habitual Residence" had swtiched from FRG to MA due to the "indefinite" aspect. Indefinite Habitual Residence

=============================================================

Feder v Evans-Feder, (E.D.Pa 1994)

File Name: Feder_fed_dist_ct.txt

File Date: 31 Oct 1994

Australia - US. Reversed by Feder v Evans-Feder (3rd Cir. 1995). Principle discussion is of habitual residence; rules that unilateral decision by one parent changes habitual residence. Court holds that Art. 15 must be requested by the court hearing a Petition under The Convention. Does not permit the courts of the requesting state to determine if they are the "Habitual Residence" (See also Re P (Abduction: Declaration) (UK 1995) on this point). Art. 13(b) mentioned, not resolved.

=============================================================

Feder v Evans-Feder (3rd Cir. 1995)

File Name: Feder_fed_appl_ct.txt

File Date: 24 Aug 1995

Australia - US. Reversed Feder v Evans-Feder, (E.D.Pa 1994). Cites Perez-Vera Report as recognized authority. Habitual Residence is factual and legal. H/R determined by looking back in time, is the place where child has been physically present for amount of time to show settled purpose from the child's perspective, focus on child's circumstances and parents -shared<- intentions. Indefinite stay in Australia, child in school, purchased home, parent working there. Rights of custody under Australian law found. Undertakings approved. Dissent Art. 13(b) briefly discussed.

=============================================================

Federal Court Complaint for Return of Child, No. 001

File Name: PLEAD.FED

File Date: 03 Mar 92

Sample pleading that was used in an application under the Convention in a Federal District Court. Includes language for a Warrant in Lieu of a Writ of Habeas Corpus, and language for notice of the hearing (as a separte pleading).

=============================================================

Federalization of Family Law

File Name: FEDLAW.MMK

File Date: 12 May 94

An article written and contributed by Merritt McKeon, a first year law student at Cardozo Law School in New York State. The article analysis the UCCJA, the PKPA, The Convention and the International Parental Kidnapping Pretion Act, 18 USC 1204. It compares each to the other, discusses use of each act, "Safe Harbor" techniques, etc. Very thoughtful, well written.

=============================================================

Fees, Hague Action, Application For, I

File Name: FEES001.ASC

File Date: 17 Nov 1989

Application for fees and costs under the Convention by Gerald L. Nissenbaum. Shows how to set up the amount. Discusses the Private Attorney General theory.

=============================================================

Fees, Hague Action, Application For, II

File Name: HAGUEFEE.ASC

File Date: 17 Nov 1989

Pleading for fees in a Hague Convention Action. Sets out arguement, legal authority for fees.

=============================================================

Fees, UCCJA Action, Application For

File Name: UCCJAFEE.ASC

File Date: 12 Jun 1994

Pleading for fees in an Interstate Child Custody Jurisdiction action, leagal authority for these fees, etc.

=============================================================

         Finkelstein v Finkelstein (Supreme Court 2000)

         File Name:  Finkelstein_NY.txt

         File Date:  30 Mar 2000

         NY and Israel.  Judge Rigler. Two children taken from NY
         to Israel.  Discussion of factors to consider in
         determining H/R.  Principal issue is that of Rights of
         Custody.  Breach of Rights of Access only, no right of
         return.  Court finds that its order of 30 Mar 2000
         converts the removal of Jun 1999 to a wrongful removal.
         Note by Wm. M Hilton to the contra.

=============================================================

Fjeldheim v Fjeldheim (W.Dist.Mich. So.Div. 1995), No. 1

File Name: Fjeldheim_fed_dist_np1.txt

File Date: 19 Jan 96

Norway and Michigan. Prior to filing of Hague Petition MI family court rules that the Hague exceptions apply. Hague Petition filed in Fedral Court, Respondent says all res judicata. Federal court rules a) Until a Petition is formally filed there can be no subject matter jurisdiction and b) only the agrieved parent/party can file the petition.

=============================================================

Fjeldheim v Fjeldheim (W.Dist.Mich. So.Div. 1995), No. 2

File Name:Fjeldheim_fed_dist_np2.txt

File Date: 29 Apr 96

Norway and Michigan. Preliminary ruling by District Court as to when the date of "Wrongful Retention" should start. Court follows ruling in Friedrich III that Art. 13(b) only applies if the Norwegian court is unable or unwilling to provide the child protection from abuse.

=============================================================

         Flores v. Contreras (Tex.App. Dist. 4 1998)

         File Name:  Flores_TX.txt

         File Date:  17 Jun 1988

         Texas and Mexico, issue of Habitual Residence (H/R).  A
         classic mixed question of law and fact:  Defer to trial
         court as to facts, de novo determination of the law.
         Child lived in Mexico from birth to date of retention,
         50 days total.  Sufficient to establish H/R in Mexico.
         WMH Note:  See the UCCJA/UCCJEA where "Home State" is
         held to be " . . . in case of a child less than 6 months
         old the state in which the child lived from birth with
         any of the persons mentioned."

=============================================================

Foreign Enforcement Cases

File Name: FOREIGN.ENF

File Date: 30 May 90

List of all known cases that involve interaction of foreign country court orders: Recognition, deferral to foreign country, enforcement of orders, modification of orders, etc. CAUTION--WARNING-NOTICE: This IS NOT a complete list, it is only a list of cases that have come to light at this time.

=============================================================

Foreign Enforcement Stipulation

File Name:Foreign_decree_enforce_stp.txt

File Date: 06 Apr 92

A stipulation that provides ground rules for the enforcement of an out of state or out of country custody/visitation orders. Provides sanctions, notice, allocation of jurisdiction, FAX signatures, etc.

=============================================================

Foreign Registration Form

File Name: REGISTER.FRN

File Date: 16 Jun 1995

A sample form used to register a foreign (non U.S.) custody decree. Cites to statutes, case law, Commissioners Notes, etc.

=============================================================

Forms, Hague Convention

This is a subset of files in ASCII format. These forms have been printed in the ABA publication called "International Child Abductions: A guide to the 1988 Hague Convetion, with Forms" (1989). The title of each form as given in that publication will be given, followed by a description.

-------------------------------------------------------------

Petition for Access Under Article Twenty One of the Convention.

File Name: ACCESS.ASC

File Date: 01 Feb 89

Request for visitation (access) under Article 21 of the Convention. Article 21 permits this even where there is no order for custody, visitaiton.

-------------------------------------------------------------

Notice of Petition Under Hague Convention

File Name: NOTICE.ASC

File Date: 01 Feb 1989

Used as a means of providing notice to interested parties that there is an action pending under the Convention.

-------------------------------------------------------------

Request to Stay Action

File Name: STAYACT.ASC

File Date: 01 Feb 1989

Usually filed by the Central Authority, but can be filed by any interested party. This is a request to stay any custody proceedings in the asylum country pending the resolution of a request for return.

-------------------------------------------------------------

Request for Statement of Reasons Under Article 11

File Name: ART11-SO.ASC

File Date: 01 Feb 1989

If there has been no response from the Central Authority after six or more weeks, then they can be requested to provide data as to the status of the case.

-------------------------------------------------------------

Petition for Return of Child to Petitioner

File Name: PETITION.ASC

File Date: 01 Feb 1989

The "First Document" in a Convention proceeding. This is used to initiate the action.

-------------------------------------------------------------

Response to Petition for Return of Child

File Name: RESPONSE.ASC

File Date: 01 Feb 1989

The "Answer", if you would, to a Petition for the Return of A Child. An invert of the Petition.

-------------------------------------------------------------

Warrant In Lieu of Writ of Habeas Corpus

File Name: WARLUWRT.ASC

File Date: 01 Feb 1989

Issued by the Clerk of the Court, directing the local officials to pick up the minor child and take them to court or if no court is in session then to the children's shelter. Used where it is felt that the parent will flee with the child if they are advised that a Convention proceeding is in process.

-------------------------------------------------------------

Order for Issuance of Warrant in Lieu of Writ of Habeas Corpus

File Name: ORDR-WRN.ASC

File Date: 01 Feb 1989

This is the order signed by the Court directing the Clerk of the Court to issue the Warrant.

-------------------------------------------------------------

Petition for A Warrant in Lieu of a Writ of Habeas Corpus

File Name: PERN-WRN.ASC

File Date: 01 Feb 1989

The request to the court for a Warrant in Lieu of a Writ: Gives the reasons why this remedy is required.

-------------------------------------------------------------

Declaration Under Uniform Child Custody Jurisdiction Act

File Name: UCCJA.ASC

File Date: 01 Feb 1989

Provides information to the court where the child has lived for the past five years, other leagal actions, etc.

-------------------------------------------------------------

ORDER DIRECTING RETURN OF MINOR(S) TO COUNTRY OF HABITUAL RESIDENCE (CALIFORNIA)

File Name: RTNORD.CA

File Date: 11 Nov 1989

Court order issued after a hearing and it has been found that a child is to be returned to the Habitural Residence. Not in the ABA Handbook. First used in California

-------------------------------------------------------------

ORDER DIRECTING RETURN OF MINOR(S) TO COUNTRY OF HABITUAL RESIDENCE (FEDERAL REPUBLIC OF GERMANY)

File Name: RTNORD.FRG

File Date: 20 Jun 1992

Court order issued after a hearing and it has been found that a child is to be returned to the Habitural Residence. Not in the ABA Handbook. From the FRG, contributed by Dr. Donald J. Cramer

-------------------------------------------------------------

APPLICATION FOR EXCHANGE OF INFORMATION UNDER ARTICLE SEVEN OF THE CONVENTION

File Name: EXCHARTY.ASC

File Date: 01 Feb 1989

A format for requsting/sending information to another contracting state for, eg, their law, court orders, etc. Not in the ABA Handbook.

-------------------------------------------------------------

AUTHORIZATION EMPOWERING CENTRAL AUTHORITY TO ACT ON BEHALF OF APPLICANT.

File Name: AUTHACT.ASC

File Date: 01 Feb 1989

Allows the CA to act in behalf of the parent, eg, medical care, travel of the child, etc. Not in the ABA Handbook.

-------------------------------------------------------------

STATEMENT OF RESIDENCE OF A MINOR CHILD

File Name: HABRES.ASC

File Date: 01 Feb 1989

A statement by the Court of Habituial Residence as to whether or not the child was a habitual resident, etc. Not in the ABA Handbook.

-------------------------------------------------------------

PLEADING FORMAT

File Name: PLEAD.HAG

File Date: 05 Feb 1993

A cover sheet that should be used whenever a Hague Convention case is filed in a state court. This cover sheet focuses the court on the fact that this is: a) Proceeding under Federal Law; b) A Summary Proceeding; c) Not a custody proceeding.

-------------------------------------------------------------

============================================================

F. v M., Tel Aviv Dist Ct, Israel

File Name:  RE_F_Israel.txt

File Date: 28 Oct 1993

Montreal and Israel. Decision by Hon. Justice Hayim Porat of Tel Aviv. Intrnational uniformity in the method of interpretation and application, cites on this issue. Use of Hilton House BBS as a source of materials. A rights of custody is found based upon the agreement of the parties being needed to remove the children from Canada. Reference is made to the "Parental Alienation Syndrome". Art. 13(b) defense is raised, the court finding that it is improper to base Art. 13(b) on a "Best Interest" test and even if there is a defense, the court still has discretion to return. An Art 13(b) defense requries a very high level of proof. The abducting parent cannot profit from the act of abduction. Use of social reports is discussed. The respondent must show that the return to the Habitual Residence is per se harmful. Desires of the children. Effect of brain washing, alienation must be considered. Desires of children must be based on reality. Key Words: Art. 13(b); Wishes of the Children, Rights of Custody, Joint Legal Custody. Age & Maturity Object

============================================================

Friedrich v Friederich, Federal Dist of Ohio, Western Div.

File Name: Friedrich_fed_dist1.txt

File Date: 10 Jan 1992

FRG and Ohio. US military person takes child from FRG to Ohio. Request for return filed in federal court. Court finds that when German father forced the U.S. mother and child out of the apartment in Germany and the mother took up residence on a military base, then the father no longer was exercising a rights of custody and the habitual residence shifted from the FRG to the US. Case has been reversed on appeal (see following).

=============================================================

Friedrich v Friederich, U.S. Court of Appeal, 6th Cir, No. 1

File Name: Friedrich_fed_appl1.txt

File Date: 22 Jan 1993

First case in the Federal Appeallate system. Very good discussion of Habitual Residence: Not legal residence, must examine past expierence and not future expectations, future plans irrelevant, alter only by change of geography and passage of time. Rights of Custody discussed: Separation does not terminate, look to law of Habitual Residence. Reverses the district court of appeal.

=============================================================

Friedrich v Friederich, Federal Dist of Ohio, Western Div. (Remand Decision)

File Name: Friedrich_fed_dist2.txt

File Date: 28 Apr 1994

Remand decision. Discusses rights of custody, finds must refer to FRG law on this issue. No abandonment of those rights by acts of father. Finds that father was actually exercising his rights of custody. Art. 13(b) raised by mother, based on fact that child had been with mother during the 2.5 year legal process. Despite MHP reports (portiions quoted in decision) court does not find Art. 13(b). Harm only likely if separated from mother and she can accompany the child back to the FRG, ending that problem. Country vs the person. Cannot evaluate custody.

=============================================================

Friedrich v Friederich, U.S. Court of Appeal, 6th Cir, No. 2

File Name: Friedrich_fed_appl2.txt

File Date: 13 Mar 1996

Appeal of the Federal District Court after remand. Good discussion of what is meant by "rights of custody" and "exercising rights of custody." Sets out policy that exceptions are to be very narrowly construed. Discussion of acquiesence, holds that there was none. Art. 13(b) raised as a defense and rejected, holding can only exist in two situations: If there is a war, famine, or diseases, etc., and/or second where court of habitual residence may be incapable or unwilling to give the child adequate protection. Rights of Custody

=============================================================

         Friedrich v Thompson (M.D. N. Carolina 1999)

         File Name:  Friedrich_fed_dist3.txt

         File Date:  26 Nov 1999

         FRG and North Carolina.  Respondent's request for
         abstention denied since the state issue was custody and
         that Respondent could not bring a Hague action, this was
         the exclusive right of Petitioner, Federal Court had
         exclusive jurisdiction over Hague petition.  Court
         compelled to exercise jurisdiction.  Issue Art. 16
         order.  Abduction only, not custody.  Consent for visit
         is not acquiescense to retain child.  Art. 13(b) raised,
         denied with discussion, in camera meeting.  Age and
         Maturity raised, denied with discussion; coaching.

=============================================================

         Friedrich v Thompson (M.D. N. Carolina 1999)

         File Name:  Friedrich_fed_dist4.txt

         File Date:  26 Nov 1999

         Finding and order of the court as to attorney fees and
         costs.  Describes how fees are awarded, what factors are
         considered, hourly rate, etc. Useful to show what the
         Federal Courts consider in awarding fees under The
         Convention.

=============================================================

Freier & Frier, US Dist Ct, E Dist of Michigan

File Name: Freier_fed_dist1.txt

File Date: 04 Oct 1996

Michigan and Isreal. Cases discusses Habitual Residence, Exercise of Rights of Custody and Art. 13(b). Art. 13(b) is looked at in the context of Israel and its problems: Occasional bombing, civil unrest, etc. Court holds that, under present circumstances, the return of the child to Isreal would not be prevented by the current state of affairs in Israel. Use of telephone testimony from Israel.

=============================================================

Freier v Freier (E.D.Mich 1997)

File Name: Freier_fed_dist2.txt

File Date: 15 Jul 1997

Michigan (MI) and Germany. Order on attorney fees. Court goes over what is and is not allowable for fees in a Convention Case. Awards $15,727.07 but disallows an additional $12,000 more or less. Useful case to use when preparing a request for fees under The Convention.

*G*==========================================================

G, In re (Convention; Access) Court of Appeal, UK

File Name: INREG.UK

File Date: 09 Dec 1992

Applies Art. 21 to a child in the UK where the original access order was from Canada. Power is limited to obtaining counsel, legal aid. UK court varies the Canadian order, cuts off access rights in Canada which had been granted as a condition for allowing removal of the child from Canada. Notes by Wm. M. Hilton

=============================================================

Gaudin v. Remis (9th Cir. 2002)

File Name: Gaudin_fed_appl.txt

File Date: 11 Mar 2002

Hawa'ii and Canada. Application of Perez Vera Report, No. 110 holding that the child did not have to be returned to his/her H/R but could be returned to any other place except to the place where the child was abducted to, here Hawa'ii. Question of whether or not the parent had permanently taken up residence in Hawa'ii.

=============================================================

Gazi and Gazi, Full Fam.Ct. of Australia at Sydney

File Name: GAZI.AUS

File Date: 18 Dec 1992

Australia and France. Court holds that proceedings under The Convention are, with rare exceptions, summary in nature and that the court is to proceed on affidavits. No cross examination of the parties or the affidavits was permitted, no direct testimony was permitted although the trial court did permit both sides to address the court on their position. Proceedings under The Convention are to be heard promptly. Secondary issue: A Ne Exeat order is a rights of custody under Arts. 3 and 5

=============================================================

General Registration Form

File Name: REGISTER.GEN

File Date: 16 Sep 1989

A sample form used to register a custody decree from another state. Cites to statutes, case law, etc. A good generic form.

=============================================================

         Gerbatsch v Gerbatsch (S.D. Calif. 1999)

         File Name:  Gerbatsch_fed_dist.txt

         File Date:  07 Jul 1999

         California and FRG.  Petitioner files in Federal Court,
         Respondent brings abstention motion, granted.  Comment
         by Wm. M Hilton as to whether this should have been
         granted.

=============================================================

Gibson v Ehejer (Canada 1988)

File Name: Gibson_cdn.txt

File Date: 14 Dec 1988

Georgia -- Canada. Art. 16 applied. Wrongful removal conceded. Court not to make a decision on the merits. Art. 14 applied as to Georgia law. Art. 20 touched on, does not apply. Art. 13(b) discussed, requires some of quite severe and threatening nature, does not exist, even on a prima facie case. Age & Maturity of 7 year old not given any weight. Fees awarded.

=============================================================

Global Cooperation, The Hague Convention and.

File Name: GLOBAL.AD

File Date: 31 Aug 1994

An article by Adair Dyer, Deputy Secretary General of the Permanent Bureau on Private International Law. Based on a paper delivered at the Prograrnme on International Rights of the Child, Queen Mary and Westfield College, London. Discusses the successes and failures of The Convention. Makes specific reference to key case law under Art. 13(b).

=============================================================

         Gonzalez-Caballero, In re the Application of Evelyn
         (Dist. Az. 2000)

         File Name:  Gonzalez_fed_dist.txt

         File Date:  06 Apr 2000

         Arizona and Panama.  Scope of interim orders (pending
         the actual hearing on the Petition) shown.  Comment by
         Wm M Hilton as to the use of inteim orders and what they
         may contain.

=============================================================

Grimer and Grimer Fed Dist Court of Kansas

File Name: GRIMER.FED

File Date: 08 Dec 1993

Kansas and UK (Toto not in court). Parallel action in state court for enforcment of UK order. Use of state facilities to pickup and hold the child pending hearing in the Federal court. Detailed order on attorney fees.

=============================================================

GSPONER V JOHNSTONE, Austrailian Family Court

File Name: GSPONER.AUS

File Date: 23 Dec 1988

Limits the application of Article 13(b). Discusses evidentiary requirements. Finds that the Convention should be a summary proceeding. Holds that the place where the evidence of the alleged acts exists is in the best position. Assumes that the country of habitual residence is capable of resolving the merits of the case. Grave Risk refers to risk arising from return to the country of application, not the parent. Art. 15 is cited, not discussed.

=============================================================

Gunsburg v Greenwald, Supreme Court of Israel

File Name: GUNSBUR1.ISR

File Date: 18 Nov 1983

Supreme Court of Isreal holds that neither fees nor bonds can be charged for an appeal under Art. 22 and 26

=============================================================

Gunsburg v Greenwald - Supreme Court of Israel

File Name: GUNSBUR2.ISR

File Date: 14 Aug 1995

Isreal and New York. Children returned to NY. Ne Exeat order & shared responsibilities held to be a rights of custody. Judicial delay cannot be used as a reason to not send the children back to the Habitual Residence. While it is possible that acquiesence may be inferred if there is a long delay in filing, this is not true if there are acceptable reasons for the delay such as concealment. Art. 13(b) is to be given a narrow and literal interpretation and to be used very restrictively, clear and convincing evidence is required. On the other hand the obligation to return is to be broadly interpreted. The Convention is to be given uniform interpreation in all countries.

*H*==========================================================

H v. H, Family Court of Vechta, F. R. of Germany

File Name: HVH.FRG

File Date: 05 May 1992

Wrongful removal of two children from the UK to Germany. Finds Art. 13(b) because of bonding of children to mother; finds Art. 13(phantom c) as to desires of children since they both speak German fluently considering their age. Contributed by Dr. Donald J. Cramer of Munich. Wishes Age & Maturity Object

=============================================================

H v. H., United Kingdom Court of Appeal

File Name: HVH.UK

File Date: 19 Jul 1996

England and Israel. Question of acquiescence by actions of the aggrieved parent. Court of appeal finds that failure to promptly demand immediate return coupled with negotiations to settle and offer to have child for holidays and return the child was acquiescence. Comment on this point by Wm. M. Hilton, CFLS.

=============================================================

H, In Re -- United Kingdom [1990]

File Name: INREH.UK

File Date: 16 Jan 1990

Wrongful removal from Canada to the UK. Case holds that the removal of a child by the custodial parent when there is an order not to remove the child from the jurisdiction is a wrongful removal. Court bases this (in part) on an opinion from the Central Authority in Ontario. Ne Exeat.

=============================================================

In re H and Others (Minors) (UK 1997)

File Name: Inreh_and_others_uk.txt

File Date: 10 Apr 1997

UK and Israel. Sole question of acquiescence. House of Lords decision, finds that acquiescence requires a finding of the subjective state of mind of the wronged parent. Parties may negotiate for return without this being held acquiescence. Appoves the use of U.S.A. and French cases in support of the court's findings. Holds that decisions under The Convention should be uniform world wide.

=============================================================

HABITUAL RESIDENCE OF THE CHILD

File Name: CRAWFORD.ART

File Date: Jun 1992

Article from The Law Journal of Scottish Universities, Jun 1992 Part 2 by Elizabeth B. Crawford that reviews case law as of 1992 and comments on the findings, trends, etc. Useful article when contemplating the issue of Habitual Residence. Comments by Wm. M. Hilton.

=============================================================

Hadjittofi vs Hadjittofi (New York 1996)

File Name: Hadjittofi_ny.txt

File Date: 02 Oct 1996

Cyprus - NY. Purpose of Convention is to secure prompt return, no custody based on wrong doing. Acquiescence is discussed: 3 tier test of Friedrich; Prompt and active pursuit of remedies is contra to a finding of acquiescence. Art. 13(b) argued based on potential of warfare in Cyprus, denied; comparison made to juvenile violence in NY state. Age & maturity. The 7 year is just too young. The 9 year was seen by a MHP, wants NY but has many contacts with Cyprus, very strong attachment to brother, should not separate. Send both back. No stay pending appeal. Separate action for attorney fees.

=============================================================

Habsburg vs Donath (Austria)

File Name: Habsburg_Austria.txt

File Date: 12 Feb 1997

Austria and Canada. A bare Ne Exeat order is not a "right of custody" within the meaning of Art. 3 since it did not specifically grant the left behind parent control over the place of residence. Holds that The Convention should be uniformly interpreted. Rights of Custody.

=============================================================

Haefeli and Warren, Collier County, Florida.

File Name: HAEFELI.FL

File Date: 21 Feb 1989

Florida, UK and Switzerland. Transcript of Proceedings. Mother and child are HR of Switzerland, there is a rights of custody pursuant to a UK order. Father takes child and is chased across Europe, caught in Florida, seemingly through the help of INTERPOL. Court orders the return of the child, Father to pay $9318.46 in fees and costs. Case done on very short notice. Father takes child as he cannot get access. Issue of Habitual Residence raised by father: In and out of Switzerland, UK

=============================================================

Hague Convetion: Memo of Law Explaining

File Name: Hague_Memo_Law.txt

File Date: 21 Jul 1999

A Memorandum of law that is filed with the petition for return of a child. It is a generic brief that explains The Convention, provides copies of The Convention, ICARA, etc. It can (and should) be amplified upon when necessary. A good starting point.

==============================================================

Hague Language for agreements

File Name: NOHAGUE.LNG

File Date: 08 May 1991

Language that may be used in agreements when one or both of the parties will be living in a country that is not a contracting state to The Convention on the Civil Aspects of International Child Abduction, done at the Hague on 25 Oct 1980

=============================================================

Hague Meeting, Oct 1989 - Conclusions

File Name: 23OCT89.SCM

File Date: 26 Oct 1989

Official conclusions of the Special Commission of Oct 1989 on the operation of the Hague Convention of 25 Oct 1980 on the Civil Aspects of International Child Abduction, by the Permanent Bureau. Disusses the results of the Convention being in force to 26 Oct 1989.

=============================================================

Hague Meeting, Jan 1993, Check List

File Name: 21JAN93.CKL

File Date: 10 Jan 1993

A list of questions and issues to be considered at the Second meeting of the Special Commission of Jan 1993. This may be used as an agenda for the meeting.

=============================================================

H and S, In Re -- House of Lords, United Kingdom

File Name: INREH&S.UK

File Date: 13 Jun 1991

Case holds that a wrongful retention is not an ongoing offense, that removal and retention are mutually exclusive and that removal or retention was from the jurisdiction of the habitual resident rather than from that person themself. Court of Appeal and House of Lords Decision. Single Event

=============================================================

Hallam and Hallam, Milwaukee County, WI

File Name: HALLAM.WI

File Date: 19 Sep 1991

Wisconsin and UK. Discuss whehter or not there was consent within the meaning of Article 13(a). Holds that interim or conditional consent is not consent within this section. Holds to a higher standard for consent. Acquiesence discussed

=============================================================

Harkness v Harkness (Mich.App 1998)

File Name: Harkness_mi.txt

File Date: 30 Jan 1998

Michigan and FRG. Habitual Residence is the primary issue. Parents and children live in FRG, Father is US Military. While Father is on combat duty Mother and children travel to MI for a long term visit. Mother returns to FRG without children. FRG remains the Habitual Residence since there was no "shared present intent" for the children to live in MI. Cites findings why this was so: Apartment, possessions, etc., in FRG No indication that parents were going to abandon FRG as residence.

=============================================================

         Harliwich v Harliwich (Conn. Super. 1998)

         File Name:  Harliwich_CT.txt

         File Date:  03 Dec 1998

         Connecticut and New Zealand (NZ).  M has primary
         custody, F has and regularly exercises access under NZ
         order, M takes C from NZ to CT. CT finds that removal
         was ". . .  was wrongful as both a breach of the
         applicant's right to determine the child's place of
         residence as well as the applicant's right of access."
         Minor issue of consent (none found) and age and maturity
         (C was 11, was resistant to access).  C returned to NZ.
         This case used rights of access (in part) to show a
         "right of custody".

=============================================================

Harsacky v Harsacky (Ky.App. 1996)

File Name: Harsacky_ky.txt

File Date: 11 Oct 1996

Finland -- Kentucky

Detailed discussion of what factors are to be considered when determining where the habitual residence lies. Family moved from US to Finland, stayed about two years then moved from Finland to Texas. M argues "vacation", F argues "permanent". Court reivews actions: Moved furniture, personal property, looked for work, etc. Very through analysis. Habitual Residence.

=============================================================

Hawke and Gamble (Canada 1998)

File Name: Hawke-Cdn.txt

File Date: 28 Sep 1998

Canada (BC) and Texas. Good basic case on the proper operation of The Convention. Good but limited discussions on a) Rights of Custody; b) Habitual Residence and factors to consider; c) Art. 13(b) and factors to consider (not allowed); d) age and maturity of 10 and 7 year old children (not considered). Court focuses on the fact that all of the principle evidence in this matter was in Texas and that Texas was in the better position to act. Children returned.

=============================================================

Hayward and Hayward - NZ Family Court 1994

File Name: Hayward_nz.txt

File Date: 19 Dec 1994

California and New Zealand. Court finds that there was no acquiescence. Discussion of the effect of imigration status and how it effects Habitual Residence. Art. 13(b) discussed, not allowed as a defense, save for a hearing on the merits in the country of Habitual Residence.

=============================================================

Hemard v Hemard (N.D.Texas 1995), Number 7-94-CV-110X

File Name: Hemard_fed.txt

File Date: 08 Feb 1995

Texas and France. Child wrongfully removed from France, concealed in Texas. Court holds that Art. 12 one year period tolled due to concealment. Wishes of bright 9 year old not considered. Art. 13(b) not allowed on allegations of sexual abuse. Fed Ct dismisses the Texas Family Law Proceeding. Text of order for return included. Tolling. Desires Wishes Age & Maturity Object

===============================================================

         Hernandez and Lopez (Mexico 2000)

         File Name:  Hernandez_Mexico.txt

         File Date:  21 Jan 2000

         Mexico and California. California District Attroney
         appears at a hearing in Mexico on behalf of the
         requesting parent.  Mexican court finds that is has the
         authority to return the child to California but not to
         make any decisions as to custody.  Mexican court holds
         that the abducting parent can litigate the best
         interests of the child in the California courts.   The
         effect of having a representative of the US Central
         Authority (the California DA) present was instrumental
         in having the child returned.

===============================================================

Hickman and Hickman, Supreme Court of Ontario

File Name: Hickman_cdn.txt

File Date: 20 Jul 1989

Order for the return of a child from Canada to England, covers transportation, costs of travel for child and adult attorney fees.

============================================================

Hicks and Hicks - Family Court of Australia at Sydney

File Name: Hicks_aus.txt

File Date: 10 Apr 1987

Australia and the UK. Walks one through Article 3. Finds that a statute that makes custody of a child joint in a general basis gives both parents a rights of custody, finds the rights of custody being exercised by the parent being present in the household. Holds that the removing party be given time to prove if Article 13 applies but does not discuss Article 13 beyond this.

============================================================

Hill and Hill (Canada 1989)

File Name: Hill_cdn.txt

File Date: 15 Feb 1989

Oregon -- Canada. Finds that there is joint custody absent a court order under Oregon Law. Habitual Residence is the last place the child lived with both parents before there was a unilateral act of removal. More recent relevant evidence is in Oregon. Finds Wrongful Removal, returns child. Fees awarded.

============================================================

Hungarian Family and Guardianship Act (Partial)

File Name: Familylaw_hun.txt

File Date: 26 Feb 1992

This was received by FAX from the Department of State on 26 Feb 1992 as part of a longer transmission. It was sent as part of a package from Hungary. This appears to establish a "Rights of Custody" per Arts 3 and 5.] ACT No. VI. 1952 ON MARRIAGE, FAMILY AND GUARDIANSHIP (Uniform text determined in Act No. I. 1974, and amended by Act No. IV. 1986) CHAPTER SEVEN: The Parental Supervision and Minors Under State Care.

============================================================

Hungarian Court of 1rst Instance and Appeals Decision

File Name: 14jul88_hun.txt

File Date: 14 Jul 1988

Finds wrongful removal from France. Discusses the Art 13(b) exceptions and finds none and then states that even if the wife's allegations are believed, the husband had created a "Safe Harbor" for her return. See SAFEHBR.ORD below.

============================================================

Hurtado vs Ruiz (Superior Ct of California 1997)

File Name: Hurtado.txt

File Date: 10 Apr 1997

California and Mexico. Summary return of child to Mexico. Undertakings requested by the court to ensure the same return of the child to Mexico. Mexican government to provide such assurances. Transcript of proceedings.

============================================================

Hutchison and Hutchison, Supreme Court of Ontario

File Name: HUTCHSON.CDN

File Date: 25 Apr 1989

Ontario and Tennessee. Must resolve Hague Convention before any action on custody. Removal of the child does not cause the other spouse to immediately cease to exercise custody. Art 13(b) argued: Separation from other siblings. No Art 13(b), Tennessee Court will come to a right and proper decision. Finds Habitual Residence in Tennessee, no Art 13(b) evidence. Immediate return ordered, no hearing on the merits permitted.

*I*==========================================================

Ieronimakis, In re Marriage of (Wash.App. 1992)

File Name: Ieronimakis_wa.txt

File Date: 15 Jun 1992

Washington State (WA) and Greece. M abducts child from Greece to WA, files 3 weeks later. WA holds that Greece is the "home state" (similar to "Habitual Residence"), that contacts are in Greece, etc. Reverses court of first instance. Lengthy dissent holding that because Greece does not use same standards as WA, then Greece should not have jurisdiction over custody. Not a Hague case, but mentions The Convention. Discusses Art. 13(b) like factors re: Domestic Violence, alcohol. Comments by Wm. M. Hilton.

=============================================================

Index to documents of the 1rst and 2nd Special Commission

File Name: OFCLRPT.NDX

File Date: 21 Jan 1993

An index to the reports of the 1rst and 2nd Special Commission meetings, including documents annexed to the reports.

=============================================================

Intake Form for US DoS APPLICATION FOR ASSISTANCE etc

File Name: INTAKE.FOR

File Date: 15 Sep 1994

This file is used to gather the information required on the US Dept. of State form APPLICATION FOR ASSISTANCE UNDER THE HAGUE CONVENTION ON CHILD ABDUCTION. It provides more space than on the form. Usually given to clients to fill out.

=============================================================

Inter Court Communications under the PKPA and the UCCJA

File Name: JUDCLCOM.ASC

File Date: 20 Jan 1990

An article written for CJER as part of a training conference. Discusses inter-court communications and transfer of information between courts. Touches on some of the issues to be covered in an inter-court matter.

============================================================

         International Child Custody; A common Law Judicial
         Conference; 17-21 Sep 2000; "Best Practices"

         File Name:  Best_Practices.txt

         File Date:  21 Sep 2000

         Judges representing the six delegations (Australia,
         Canada, Ireland, New Zealand, United Kingdom and the
         United States) attending the Common Law Judicial
         Conference on International Child Custody hosted by the
         U S Department of State (Washington, DC, September
         17-21, 2000) propose the following `best practices' to
         improve operation of the Convention of 25 October 1980
         on the Civil Aspects of International Child Abduction
         ("Hague Child Abduction Convention") The views expressed
         are those of the judicial members of the delegations,
         and do not necessarily reflect the official views of
         their countries or judiciaries.

============================================================

INTERPOL Presentation at the 2nd Special Commission Meeting

File Name: INTERPOL.ANX

File Date: 21 Jan 1993

Presentation for the meeting of the 2nd Special Commission on Internatoinal Child Abduction. Describes the role of INTERPOL, how it works, etc.

============================================================

International Abduction of Children - Australian Perspective

File Name: ABDUCT.KAY

File Date: dd Apr 1990

An article presented by Hon. Justice Jospeh V. Kay of the Family Court of Australia at Melbourne. Discusses common law and the Hague Convention, implies that the Convention now may be part of the common law. States that the Hague Convention is to be followed strictly, etc.

============================================================

I.N. v A.S. et al (Israel 2001)

File Name: INVS_Israel.txt

File Date: 28 Nov 2001

Israel and Sweden. Child was returned to Sweden six (6) days after the action was filed in Israel. Deference given to the courts in Sweden as to all issues on the merits of the matter. Wishes of 13 year old child were given due weight but were not followed by the court. Use of settlement by the court was effective. Prompt return. Notes by Wm. M. Hilton.

============================================================

Isaac v Rice (N.D.Miss. 1998)

File Name: Isaac_fed_dist.txt

File Date: 28 Jul 1998

Mississippi and Israel. Child abducted to Israel in 1986, M goes to Israel in May 1997, removes child to MS, no consent. F files under The Convention, Petition denied: Israel, despite the length of time child was there, was not the H/R because child was there w/o consent of both parents. Must consider the shared intentions of the parents. Age and Maturity raised and granted, child is 15, 9 months before 16. Child concealed for about 10 years in Israel, may have been an implicit argument.

============================================================

Issak v Issak - District Court of Tel Aviv, Israel - Judge Porot

File Name: ISSAK.ISR

File Date: 03 Mar 1993

A well reasoned case. Abduction from New York to Israel. Specific discussion on the following: Habitual Residence, Rights of Custody, Acquiescence and/or consent (inplied and explicit), Art. 13(b) harm, Art. 13(phantom c) on wishes of the children. A