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"

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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.

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         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.

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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).

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

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         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.

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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)

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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)

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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).

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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).

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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.

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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.

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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.

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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.

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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".

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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

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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

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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

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     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

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         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.

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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).

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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.

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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.

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         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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

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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

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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.

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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.

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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).

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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.

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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.

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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.

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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.

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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.

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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. Award of attorney fees and out of pocket expenses to the Applicant father. Use of Art. 15 approved of. Discussion of Parental Alienation Syndrome in part. Age & Maturity Annotations by William M. Hilton. Use of Art. 15 is approved by the court.

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

ITALIAN HAGUE APPLICATIONS PROCEDURES

File Name: ITALY.HAG

File Date: 30 Mar 1996

A description of the process for application under The Convention in Italy: Timing, documents needed, etc. Well written and very helpful. Contributed by Roberta Ceschini, Attorney At Law, Rome, Italy.

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

Ivaldi and Ivaldi - New Jersey Superior Court

File Name: Ivaldi_nj.txt

File Date: 15 Mar 1996

Morocco and New Jersey. NJ court finds that The Convention does not apply since Morocco is not a "Contracting State". Court further finds that the UCCJA does not apply. Comments by Wm. M. Hilton.

*J*=========================================================

In re J (1989) United Kingdom.

File Name: INREJ.UK

File Date: 27 Feb 1990

Where a minor was a ward of court, the court had the right to determine the ward's place of residence and could refuse permission for the ward to leave the jurisdiction; that the court had "rights of custody" and was "a person, an institution or any other body" within the meaning of articles 3 and 8 of the Convention; and that, accordingly, a court of a contracting state could be asked to recognize and enforce orders of the court made in wardship proceedings under article 8 of the Convention Discussion of the application of Art. 15, grants finding that removal is wrongful, etc.

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

JANAKAKIS-KOSTUN v JANAKAKIS (Ky. App. 1999)

File Name: Janakakis_ky.txt

File Date: 19 Mar 1999

KY and Greece. Habitual Residence (H/R): Child lived all of her life in Greece but for three or four vists of two or three months. Mother argues that have US SSN, bank accounts, driver's licenses, had consulted US realtor about moving, etc. Court rules H/R is in Greece. Rights of Custody: Ne Exeat order is a right of custody; further the existence of litigation over custody is sufficient to show a right of custody in the "other" parent. Visitation rights may be sufficient to show rights of custody. Art. 13(b0: Defines clear and convincing evidence. Mother attacks Greek judicial system. Greek courts can protect the child. MHP evidence introduced, court did not find it compellling. Custody arguments are not relevant. Cites the Friedrich II criteria. Art. 20 not allowed.

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

Japan, Abduction and Legal Recourse

File Name: Japan_child_custody.txt

File Date: 19 Sep 1996

Japan -- Abduction. Article from 19 Sep 1996 Los Angeles Times describing problems involving abductions and custody law in Japan. Briefly comments on some of the legal issues. Copyright (c) 1996 Times Mirror Company

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

Japan, Child Custody Practices and Procedures

File Name: Custody_right_japan.txt

File Date: Oct 1989

Circular from the Departement of State. Contains information about Japanese custody law, forum selection, enforcement, etc.

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

JAPAN: RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS ON CHILD CUSTODY CASES IN

File Name: Japan_Enforce_Foreign_Jud.txt

File Date: 06 Jun 1997

An article by the Hon. Sumiko Ikemoto. Describes the process for enforcing a foreign custody order in Japan. Discuses opposition to the enforcement of said orders. Footnotes by Wm M Hilton

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

Johnson: Memorandum from US Central Authority to Sweden

File Name: Johnson_001_USCA.txt

File Date: 30 Jan 1996

Virginia and Sweden. Text of Statement of the United States concerning Johnson case over issue of whether or not the parties can select a particular forum. Discusses the facts of the case, habitual residence, consequences, etc. Request is that the Statement be submitted to the Swedish Court on a amici curiae basis.

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

Johnson v Johnson (Sweden 1996)

File Name: Johnson_002_Sweden.txt

File Date: 09 May 1996

Sweden and Virgina. Child is in Sweden for two years pursuant to a joint custody agreement that states all litigation takes place in Virginia, etc. (See Johnson_Virgina.txt). Swedish Court of First Instance and the Intermediate Court of Appeal order child back to Virginia, Swedish Supreme court reverses, finds that since Sweden is the Habitual Residence there is no wrongful act and the child is to stay in Sweden. Attorneys fees discussed.

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

Johnson, US Diplomatic Note No. 64 to Sweden

File Name: Johnson_003_USNote.txt

File Date: 30 Jun 1996

Text of United States Diplomatic Note No 64 to Sweden concerning the Johnson matter. This notes asks that the Swedish Government reconsider its legal definition of habitual residence (hemvist). See other Johson decisions.

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

Johnson, Reply, Swedish Misistry of Foreign Affairs (1996)

File Name: Johnson_004_SWDNote.txt

File Date: 31 July 1996

Reply in response to US Note No 64 of 30 Jun 1996. Discusses the request of the U.S. Government for a consideration of a change in the Swedish method of determining Habitual Residence. Discusses inabilitiy of parties to stipulate to a forum. Johnson case.

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

Johnson v Johnson (Va.App. 1997)

File Name: Johnson_005_VA.txt

File Date: 09 Dec 1997

Virgina and Sweden. Semi Diplomatic parents. Parties agree to very sepecific and multiple terms as to continuing jurisdiction in VA court, no action permitted in any other court. By agreement M moves to Sweden, child is to spend one school year with each parent, M goes first. M files action in Sweden one year later, Sweden holds it is the Habitual Residence. VA finds continuing jurisdiction, VA is not an inconvenient forum. VA court holds M in contempt, changes custody to F. Fact of possible criminal prosecution of M cannot be used as a bar to return of the child to VA.

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

Johnson and Fowler-Winning (UK 1998)

File Name: Johnson_UK.txt

File Date: 24 Mar 1998

UK and Canada. Court finds Art. 13(b) based on mother's fear of drug sellers/users in Montreal, declines to return the children particularly since one was very young and should not be separated from the mother. Case also makes mention that it is an exceptional circumstance to take oral testimony under The Convention. Comments by Wm. M. Hilton.

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

Joliff and Joliff (FRG 1996)

File Name: Jolliff_frg.txt

File Date: 21 May 1996

FRG and US. Court orders return of child, authorizes force, e.g., local bailiff, police. Child removed on 15 May 1995, application filed on 06 Mar 1996, timely. Mother pleads Art. 13(b) on basis of removing child from her. The court denies, stating that even though there will be "fright and burden", only "extraordinary, grave circumstances regarding the well-being of the child may be a reason for overcoming the order to relinquish."

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

  Jordan v Jordan (Mauritius 1999)

         File Name:  Jordan_Mauritius.txt

         File Date:  20 Apr 2000

         Mauritius and South Carolina.  Mauritian court finds
         that The Convention is not in effect because there has
         been no implementing legislation.  Court then finds that
         since the children are of "tender years" their best
         interest overrides the abduction by the mother.  Comment
         by Wm. M. Hilton

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

Journe v Journe (D.Puerto Rico 1995)

File Name: JOURNE.FED

File Date: 29 Nov 1995

Puerto Rico and France. Wrongful removal from France, French custody proceeding dismissed, Court holds that this is a "Waiver" of Father's rights under The Convention. Cites Prevot as "equitable" basis. Comment by Wm. M. Hilton stating that this is an improper result under The Convention.

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

Judicial and Administrative Co-Operation

File Name: Judicial_cooperation.txt

File Date: 04 Jul 1998

Address of Margaret H. Bennett LLB, Solicitor on the occasion of the Hague's 750th anniversary International Law Conference Presented by T.M.C. Asser Instituit 4th July 1998: Judicial and Administrative Co-Operation in Family Law Matters: Co-Operation in Child Abduction and Similar Cases.

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

Jurisdiction Language, Court Orders

File Name: JURISDIC.ASC

File Date:

Jurisdictional terms under the PKPA, UCCJA and the Hague Convention, for use in a court order or similar.

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

Impact on Children of International Abduction

File Name: Impact.txt

File Date: 04 Nov 1999

Abstract: Little is known about the effects on children of crossing international borders during a parental abduction. This presentation, drawn from a sample of 371 searching parents (over half of whom have recovered and 21% of whose children were taken outside the U.S.), will examine the impact on the children of spending some time overseas. By Geoffrey L. Greif, PhD

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

Jurisdiction Language, Hague Convention

File Name: INTERNA.ASC

File Date: 14 Jun 90

Suggested language to be used in orders/stipulations where a child is being taken to a country that is not a contracting member of the Hague Convetion on Child Abudction. CAUTION-- WARNING-NOTICE: There is no guarantee that this will work, but it is better than nothing.

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

Jurisdiction Over an In Utero Child

File Name: In_Utero_jurisdiction.txt

File Date: 21 Feb 1999

Argument for and against a court having jurisdiction over custody of a child in utero, along with the decision of the court. Based upon an actual case in California. H/R Habitual Residence

*K*==========================================================

         Kanth v Kanth (D. Utah 1999)

         File Name:  Kanth_fed_dist.txt

         File Date:  14 Dec 1999

         Australia and Utah.  Father was an academic nomand,
         lived in Utah, Denmark, Utah, Australia, Utah,
         Australia, Utah. Court finds that the was no "settled
         purpose" to stay in Australia, therefore no Habitual
         Residence in Australia.  Court holds that with young
         children intent of parent is of significance and cannot
         be ignored.

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

Dept of Health & Com Services v Karides (Australia 1995)

File Name: Karides_aus.txt

File Date: 23 May 1996

Australia and Virginia. Right of custody fully discussed as well as Art. 13(b). Defenses are to be very restrictively used and are discretioinary. Case to be heard in a summary fashion. Purpose of The Convention is to select the proper forum, e.g, the Habitual Residence. Rights of custody based upon VA law.

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

Keane v Courtwright - Family Court of South Carolina.

File Name: KEANE.SC

File Date: 16 Apr 1991

Illegitmate child wrongfully retained in South Carolina from the UK. Cases is fairly open and shut, but does discuss Wrongful Retention, Art 13 and 20 exceptions, attorney fees. All in all a resonably comprehensive discussion.

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

Kelley v Williams (Canada 1988)

File Name: Kelley_cdn.txt

File Date: 02 Sep 1991

California -- Canada. California action in process, Mother takes children to Canada after interim joint custody order made. Mother raises Art. 13(b) defense. Court reviews CA matter. Main issue is where the full custody hearing should be held. Finds that CA courts can handle the matter, that allegations of Mother are not sufficient to invoke Art. 13(b). Safe harbour return order fashioned, directs Mother to return children to CA an report in to the CA court.

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

Kilgour v Kilgour, [UK 1986] Opinion of Lord Prosser (Scotland)

File Name: KILGOUR.UK

File Date: 15 Jan 1990

Scotland and Canada. Finds that The Convention is not retro- active. Finds that "Wrongful Removal" and "Wrongful Retention" are single events, that is, a "Wrongful Retention" is not an ongoing event. Finds that there can only be either a "Wrongful removal" OR a "Wrongful Retention" but not both, they are mutually exclusive. Discusses effect of Art. 15 determination.

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

Klam and Klam, US Dist Ct., Eastern Dist of NY

File Name: KLAM.FED

File Date: 11 Aug 1992

Discussion of the use of the provisional remedies of ICARA, particularly 42 USC 11604(a) and the request for a Warrant in Lieu of Writ of Habeas Corpus. The court holds that such relief can be obtained under ICARA but there must be a showing of "extraordinary circumstances" Since there was no such showing here the request was not granted.

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

Korn v Korn [US 2002]

File Name: Korn_Alabama.txt

File Date: 25 Jan 2002

Relocation case. Court of First Instance takes testimony as to the "day-to-day dangers of living in Israel due to military and suicide bombings having occurred on random basis" and finds that it would not be in the best interests of the child for the child to live ouside of the US at this time. Automatic transfer of custody of custody if the custodial parents moves from the US to any other country. Zone of War. Extensive comment by W. M. Hilton.

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

Korowin and Korowin HORGEN DIST COURT [Switzerland]

File Name: KOROWIN.SWZ

File Date: 13 Feb 1992

Switzerland and the US. Art. 13(b) application. Court rules that the mother's refusal to return the child cannot be the basis for an application under Art. 13(b) as it is the refusal of the mother to travel with the child that causes the intolerable situation. Discusses "Safe Harbor" to some extent. Issue of fees discussed to some extent. See also BARLOW.SWZ

Lambert and Lambert, Family Court of Australia at Melbourne

File Name: LAMBERT.AUS

File Date: 03 Apr 1987

Australia and Scotland. Discusses the application of Art 13(b) to some extent, but the focus is on the issue of return of a child to its habitual residence even where The Convention does not apply, eg, kidnapping is not tolerated. The text of the order to pick up the child pending hearing is included as well as the return order. Terms of these orders are useful. The court also discusses the concept that if allegations of improper behavior are made then the forum where this behavior occured is presumptively the best forum to hear the matter.

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

Lanzilotta and Tommaso, Volusia Ct., FL

File Name: LANZI.FL

File Date: 11 Oct 1993

Argentina and Florida, U.S.A. The significance of this decision is that it is more or less treats the return as one of routine. The court outlines what it has to show as a matter of law then applies the evidence. A model of its kind. Key Words: Art. 13(b), Art. 20, Rights of Custody, Habitual Residence, Wrongful Removal. Counsel's names appear on the order.

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

Law of Child Custody Jurisdiction

File Name: UCCJA.EXP

File Date: 25 Mar 1991

A memorandum that discusses the basic rules under the UCCJA and the PKPA. Briefly covers the history of the UCCJA and the PKPA. Useful when submission of an issue under the UCCJA/PKPA is done where the review person has no prior information about these two acts.

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Legal Analysis of the Hague Convention

File Name: Legal_analysis_hague.txt

File Date: 26 Mar 1986

The Legal Analysis of the Hague Convention as prepared for the Department of State by Patricia Hoff. Published in the Federal Register on 26 Mar 1986. Appears in numerous journals, etc. Cite as: 51 Fed. Reg. 10,503 (1986) See also the Perez-Vera Explanatory Report (below) which was done by the official reporter to the Convention. Sections are keyed to the pages of the Federal Register.

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

Legalisation, Convention Abolishing

File Name: Legalisation.txt

File Date: 05 Oct 1961

Full text of the "CONVENTION ABOLISHING THE REQUIREMENT OF LEGALISATION FOR FOREIGN PUBLIC DOCUMENTS. TIAS 10072.

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

Leigh v Underwood (Australia 1994)

File Name: Leigh_aus.txt

File Date: 17 Jun 1994

Australia -- US. Court finds that, in the absence of a specific order to the contrary, the Australian joint guardianship law gives each parent a right of custody within the meaning of Arts. 3 and 5. The issuance of an Art. 15 ruling by the court of Habitual Residence at the request of one of the parties is a discretionary act with the court. Art. 15. Rights of Custody

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

Leibovitz v. Leibovitz (Israel 1993)

File Name: Leibovitz_Isreal.txt

File Date: 21 Jun 1993

Israel and California. Acquiescence by inference based on 10 months delay in bringing the action, with action in Israel for the custody of the child, frequent trips to Israel, family in Israel. Ignorance of The Convention is not sufficient to prevent inference. Comments by Wm. M. Hilton

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

Levesque v. Levesque, U.S. Dist. Court of Kansas at Topeka.

File Name: LEVESQUE.FED

File Date: 02 Mar 1993

Germany and Kansas. Detailed discussion of Habitual Residence and acquiescence and/or consent. Refers to Bates, Meredith, Friedrich. Holds that Perez-Vera report is recognized as the official commentary of the Convention. Refers to the Analysis done by the Dept. of State. States that Respondent is to pay all of the fees, costs, expenses of the Applicant since the limited exception does not apply. Holds that all defenses are to be narrowly construed.

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

L.H. v Youth Welfare Office, etc, FRG

File Name: LH.NY

File Date: 12 Mar 1991

Brief mention of Wrongful Removal/Retention. States that The Convention does not apply if there is no wrongful removal or retention. Uses 9 ULA 23, International Proceedings. Does a good job of analyzing this section: Prior Actions, modification, etc.

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

Limitations on The Application of Art. 13(b)

File Name: Art_13(b)_limit.txt

File Date: 11 Mar 1997

Published in the American Journal of Family Law, Summer 1997. Discusses the application of Art. 13(b) and how its application must be severely limited. Cites authority that even where applied it changes the return from mandatory to discretionary and, notwithstanding a finding under Art. 13(b), holds that the child should be returned to his/her Habitual Residence with proper safeguards. Undertakings Safe Harbor

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

     LL. Children, Matter of (New York 2000)

     File Name:  LL_Children_NY.txt

     File Date:  22 May 2000

     New York and The Netherlands.  Art. 13(b) invoked.  Discussion of
     steps the court would have to take to safely return the children
     to The Netherlands using "safe harbor" orders, e.g., arrangments
     with The Netherlands Child Protective Services, etc.  Compares
     this case with Blondin v. Dubois & finds, under similar
     circumstances, that arrangements can be made to safely return the
     children.  Found age and maturity of 15 year old.  Split the
     children.  Trust must be put in courts of H/R of the children.  A
     good discussion of steps to be taken for return when there is
     risk.

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

Loan Program -- Simple Program for Calculating Loans

File Name: LOAN.EXE

File Date: 05 Apr 1992

A simple program to determine a payment schedule given the principle, interest and number of years to run. Shows total interest.

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

Lockley, Application of: Superior Ct of Califonria, Los Angeles

File Name: LOCKLEY.CA

File Date: 27 Jan 1993

New Zealand and California. Four children on holiday to the US for a six months period. Mother did not return as promised. Matter is submitted on written pleadings, no oral testimony allowed. Wishes of 8 year old not determinative. No fees award as neither party has any funds. Summary decision. Language in the order directing the return is useful. Age & Maturity

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

         Long v. Ardestani  (Wisconsin App. 2001)

         File Name: Long_WI.txt

         File Date:  25 Jan 2001

         Wisconsin and Iran.  Court of First Instance and
         Intermediate Court of Appeal allow children to visit
         Iran with their father over the objection of the mother.
         Sets out factors to consider when making such an order.
         Father assures the court that he will return the
         children, puts up substantial assets as part of his
         assurance. Burden of Proof is on the parent who objects
         to the visit.  Base line is Best Interests Of the Child.
         Courts consider that Iran is not a Contracting State to
         The Convention, no diplomatic ties, etc.  WMH Note:
         Case is well worth reading by either side of the issue.

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

Loos v Manuel. New Jersey Chancery Court - Appeals

File Name: LOOS.NJ

File Date: 06 May 1994

FRG and New Jersey. Petitioner's were "foster parents" from FRG and under FRG law they had no rights of custody. Petition denied. Reasonable dicussion about "rights of custody" and whose law is to be applied for this issue. Case discusses sources of information on The Convention, FN 3.

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

Child Kidnapping and the Internet

File Name: Lopez_art.txt

File Date: 11 Aug 1999

This article describes how computer technology can improve lawyers' representation of clients in child kidnapping cases. Governments, non-governmental organizations and individuals have toiled to make information and services freely available on the Internet. The article describes the ways lawyers can use the Internet to better serve their clients in these challenging cases. This articles has a listing of useful websites and their URL.

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

Lops and Lops (11th Cir 1998)

File Name: Lops_fed_appl.txt

File Date: 07 May 1998

FRG and Georgia. Prior actions in state court not found to be res judicata/collateral estoppel. Abstention not permitted. Dissent argues that abstention should have been allowed. Issue and claim preclusion discussed. Tolling of one year period permitted due to concealment of child. Discussion of factors to consider when there is concealment. Factors to be conisdered in the well settled defense discussed, not allowed.

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

Lynn and Lynn NZ District Court at Wellington

File Name: LYNN.NZ

File Date: 29 Jun 1995

New Jersey and NZ. Sole issue is application of Art. 13(b). Father alleges that NJ courts are not capable of determining best interests, sexist, etc. NZ court finds that NJ courts are capable, should be left up to them. States would be offensive in the extreme to presume otherwise. F says won't return, therefore harm. Court states cannot permit a parent to do this would gut The Convention. Coach and Four phrase.

*M*==========================================================

In re M (Minors) (Child abduction: Undertakings)

File Name: In_re_m_uk.txt

File Date: 15 Jul 1994

UK and Israel. Summary Proceedings. Undertaking. Final Order. Approves the use of undertakings to return a child, with guide- lines. Undertakings are to protect the child for a limited period of time and are not to be used to delay the return. An order on a Hague Petition is a Final Order, reviewable only on appeal. Financial hardships are not sufficient to show an Art. 13(b) defense

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

In re M (a Minor) (Habitual Residence) (UK 1996)

File Name: INREM2.UK

File Date: 20 Dec 1995

UK and India. Child in India several years with consent of both parents. M changes mind, brings Wardship in UK. Legal residence is not enough to establish Habitual Residence. Unilateral decision of a parent cannot change Habitual Residence. Habitual Residence is fact determinative.

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

Re M and J (Abduction: International Judicial Collaboration) [1999]

File Name: Re_M_&_J_UK.txt

File Date: 16 Aug 1999

UK and California. UK court initiates contact with the California court via telephone, FAX, e-mail so as to ensure that the children are returned to the Habitual Residence with the minimum amount of trauma. No oral evidence taken, reliance on affidavits noted. Art. 13(b) only available where there is a showing of clear and compelling evidence of the grave risk of harm or other intolerability which must be measured as substantial and not trivial. Undertakings should not be accepted by the court save to the extent that they regulate affairs relating to the children up to but not beyond the door of the court of the children's habitual residence. Communication Evidence

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

Madden v Hoffmann: Dist Court of Christchurch, New Zealand

File Name: MADDEN.NZ

File Date: 30 Jun 1994

New Zealand and Australia. Art. 13(b) defense raised. Use of undertakaings to create a Safe Harbor. Discussion of intent of The Convention and return orders based on conditions imposed for the return. Approves use of such conditions to cause the return.

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

Mahmoud vs Mahmoud (E.D.N.Y 1997

File Name: Mahmoud_fed_dist_np.txt

File Date: 24 Jan 1997

UK - New York. During New York State Court hearing the Respondent moves to remove the matter to the Federal Distrrict Court. Despite the argument that the Petitioner should determine which court, the Federal District Court, under the removal statute, holds that the Respondent can remove and that the New York State Court order is void. Action is dismissed as moot since the child is back in the UK.

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

         Malak, In re Marriage of   (Cal.App. 6 Dist 1986)

         File Name:  Malak_CA_txt

         File Date:  24 Mar 1986

         California and Lebanon.  Issue of enforcement of Islamic
         custody decree in the California court under the UCCJA.
         Enforcement allowed.

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

Matteo v Parodi (Canada 1997)

File Name: Matteo_Montreal_Canada.txt

File Date: 07 Aug 1997

Argentina and Quebec. Finding ordering return appealed and stay of return order denied based on absence of manifest error. Undertaking made to have the child met at the airport in Argentinia by a judge of the Argentine Court.

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

McCullough v McCullough (W.D.Pa. 1998)

File Name: McCullough_fed_dist.txt

File Date: 11 May 1998

Canada and Pennsylvania. Court finds that it can issue a Warrant in Lieu of Writ of Habeas Corpus (WLW) under both Federal and Pennsylvania law. Best Interests considered for limited purpose of the WLW. Court finds that there were rights of custody based upon Canadian statute which gives both parents equal rights of custody. Remaining parent exercised rights of custody by residing with the children and being involved in their daily care and control. Irreparable harm for the WLW found due to the possibility of the children being removed from the jurisdiction pending the Hague hearing. (See also People v Beach (1987) 194 Cal.App.3d 955, 970 for a similar finding.) Federal Court orders U.S. Marshal to pick up the children. Matter to be heard promptly, heard three days later.

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

McOwan v McOwan (1993) Family Court of Australia

File Name: MCOWAN.AUS

File Date: 08 Dec 1993

Australia and UK. Child returned to Australia then F dismisses Australian action, M has no funds, no legal aid. Discussion of undertakings and how they should be applied. Review of general policies of The Convention: Summary Action, Return of Child.

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

Meeting Reports of the daily sessions of the 2nd SCM

File Name: Meeting_rpt_jan93.txt

File Date: 21 Jan 1993

Hague Conference on Private International Law: Daily report of meetings from 18 Jan 1993 to 21 Jan 1993. Seven (7) reports were issued: One after each of the two daily meetings. Contains information as to the sense of the contracting states on the working of The Convention, Art. 13(b), Habitual Residence, Acquiesence, etc. The final form of this report is the OFFICIAL.RPT.

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

Meredith v Basdaras (Greece 1996)

File Name:Meredith_grc.txt

File Date; 21 May 1996

Greece and Alaska. Child wrongfully taken from Alaska to Greece by the father. More than 2 years later mother files action in Greece. Greek court applies Art. 12 limitation, lists factors considered to find that the children were "well settled". Court uses "best interest" standard to find that the children were "well settled" in Greece.

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

Meredith v Meredith -- US District Court of Arizona

File Name: MEREDITH.FED

File Date: 26 Feb 1991

Decision of the United States District Court, Arizona that discusses and defines the term "Habitual Residence". Involves Arizona, United Kingdom and France. Case holds that a temporary removal and subsequent sequestration does not make a Habitual Residence of the child. Tolling

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Mezo v Elmergawi (E.D.N.Y. 1994) 855 F.Supp. 59

File Name: MEZO.FED

File Date: 13 Jun 1994

New York - Egypt - Libya. Court finds that since Egypt and Libya are not contracting states to The Convention, there is no cause of action under The Convention. Discuss purposes of the Convention. Purposes

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Miller v Lahaise (Quebec 1996)

File Name: Miller_cdn.txt

File Date: 11 Oct 1996

Canada -- UK. Wishes of a 12 year old child prevail and provide an exception to the mandatory return under Art. 12. The court in appears to consider the best interets issues in allowing the age & maturity test. Child is interviewed in chambers by the court. Comments by Wm. M. Hilton. Age & Maturity Wishes.

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Modification of a Sister State Custody Order Under the PKPA

File Name: FEDMOD.ASC

File Date: 04 Feb 1989

This is an article that sets out the applicable law as to the modficiation of a sister state decree under 28 USC 1738A: When it may be done and when it may not be done.

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Moore v Moore, Superior Court of DeKalb County, Georgia

File Name: MOORE.GA

File Date: 20 Mar 1990

Georgia and Switzerland. Issue of Habitual Residence. Question as to whether or not a parent intended to move to Switzerland. The court finds he did not and therefore the child's habitual residence remained in Georgia. Has some elements of fraud in the inducement.

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Mohsen v Mohsen, Federal District Court of Wyoming and the UAE

File Name: MOHSEN.FED

File Date: 07 Jun 1989

Federal District Court case. Moving party wants The Convention to apply to a Non-Convention Country (United Arab Emirates). Court holds that since the UAE is not a contracting state The Convention does not applly. See, however Re F (A Minor) United Kingdom Family Law Court of Appeal (Below) where The Convention is applied to a Non-Contracting State.

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Moreno v Mahdi (ED Virginia 1996)

File Name: MORENO.FED

File Date: 29 Mar 1996

Panama and Virginia. Sets fees to be paid in installments, sets out a detailed order for return of the child. Fees

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         Morris and Morris (D Colorado 1999)

         File Name:  Morris_fed_dist.txt

         File Date:  30 Aug 1999

         Colorado and Switzerland.  Issue of Habitual Residence
         (H/R), Court finds always in CO.  When the family left
         CO they had a shared, settled intention to return to CO
         with the child at the end of the sabbatical.  F performs
         many acts as if returning to CO at end of 10 month
         sabbatical.  Fact that M, F and C were physically
         present in Switzerland is not sufficient.  Sabbatical
         cases are persuasive:  Unilateral change of mind does
         not shift H/R, would discourage international travel for
         Cs, miss schoolastic and professional enrichment, etc.

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Morton v Morton (D.Neb. 1997

File Name: Morton_fed_dist.txt

File Date: 30 Oct 1997

UT and FRG. Rights of custody based on visitation, de facto joint legal custody, Ne Exeat order. Specific rights listed to show this. Describes benefits of a) Art. 15 hearing and b) a Request for Assistance. FRG court finds the Art. 15 finding is binding. Full Faith and credit given to the FRG and UT decrees under The Convention. Courts of FRG are courts of competent jurisidiction. Res Juidicata effect discussed. Remedies not exclusive, can use more than one way to cause the return of the child. Approves of advancing travel funds to the abducting parent so she/he can attend. Proper notice given to abducting parent.

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         Motte v Furlanis (Grenoble, France 2000)

         File Name: Motte_France.txt

         File Date:  30 Mar 2000

         France and California.  California awards joint custody,
         issues a Ne Exeat order.  Mother takes child to France,
         alleges abuse, drugs, etc.  Documents from California
         court show no foundation for the allegations.  French
         court relies on the Califonria documents.  Court orders
         the child returned to the US rather than to Italy as the
         father requested.  Father made an undertaking that he
         would bring the child to France to visit with the
         mother.  Father awarded 35,000 FF for costs.  Art. 13(b)
         Undertakings  Attorney Fees

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Mozes and Mozes (DC California 1998)

File Name: Mozes_fed_dist.txt

Fil3 Date: 11 Aug 1998

California and Israel. Sole issue decided was whether or not Habitual Residence had shifted during the period from 26 Apr 97 to 16 Apr 97. Court finds that it did, gives reasons why, cites Bates. An appeal has been filed.

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         In re the Application of Aaron Mozes

         File Name:  Mozes_fed_appeal.txt

         File Date:  09 Jan 2001

         Israel and California.  Issue of whether the children's
         habitual residence (H/R) had shifted during the 51 week
         period the children were in Los Angeles for education
         and acculturation.  Extensive and through discussion of
         H/R, effects of time, desires of parents, nexus of the
         children's life, etc.  Application of Art. 16 and the
         court's jurisdiction to enjoin ongoing state custody
         actions.  Useful interpretation of an aspect of Art.
         13(b).  Reversed and remands Mozes and Mozes (DC
         California 1998) 19 F.Supp.2d 1108.

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M.S., Director General et al and (Australia 1989)

File Name: MS_Australia.txt

File Date: 15 Oct 1998

Australia and Austria. Family and children live in Australia and then travel to Austria, stay for approximately two years. Mother and children return to Australia. Australian court finds that the habitual residence did not shift from Australia to Austria because there was no shared settled purpose. Discussion of passive and active acquiesence.

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Murray, Matter of, Fam. Law Court of Appeal, Australia

File Name: Murray_aus.txt

File Date: 06 Oct 1993

Australia and New Zealand. Counsel must advise court of Hague action. Removal occurs date child crosses border, retention on day s/b returned. Art. 13(b) arguement, must show the Habitual Residence courts will not provide for the safety of the child. Art. 17: Any order made during the pendency of a Hague Petition to be set aside, no effect. UN Convention on Human Rights does not override The Convention. Purpose of The Convention outlined.

*N*==========================================================

N, In re (Child Abduction: Jurisdiction)

File Name: In_re_n_uk.txt

File Date: 31 Aug 1994

UK, CA and Iraq. Child abducted from CA to Iraq, later is brought to UK. UK Court finds that it can issue a pick up order before the child arrives on the basis that sufficient proof was presented that the chould would be in the UK. Notes by Wm. M. Hilton. Jurisidiction.

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Nadler, Matter of (California and Israel)

File Name: Nadler_California.txt

File Date: 17 Jun 1993

The transcript of the decision of the court. Original action in Israel, all move from Israel to the US, Isreal claims ongoing CCSMJ. California finds that Israel does not meet the requirements of the UCCJA and therefore has lost CCSMJ.

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Naraine and Naraine (New Zealand 1997)

File Name: Naraine_NZ.txt

File Date: 14 Oct 1997

UK = NZ Evidence submitted by affidavit. Use of MHP for Art. 13(b) and age and maturity defense. Art. 13(b) harm must be as a result of the return to the UK rather than the parent. Safe Harbour order discussed. Equal dignity discussed. Battered Spouse Syndorme discussed, not allowed. Children's objection must be to return to UK rather than father. Children ordered returned to UK. Matter on appeal. See also Martinez_California.txt for similar finding.

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Navarro, Matter of, Placer County, California

File Name: Navarro_California.txt

File Date: 15 Jan 1990

California and Spain, a wrongful retention (hold over after vacation in the US). Spanish court order sets joint custody. Children held in N. California for about a year, court orders MHP to do report, shows risk of permanent psychological harm, court rules this is fault of mother, finds no grave risk. Children (10 and 12) don't want to go back, court finds mother influences children, rules not sufficient, sends children back to Spain with father. Age of child issue Wishes Very well reasoned opinion. Age & Maturity

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Ne Exeat Agreement and Order

File Name: Ne_exeat_ltr.txt

File Date: 23 Jan 1995

Model order and cover letters for Ne Exeat order and passport control. Order prohibits the removal of the children, asks that no travel documents be issued by US, foreign nations. To be sent to the US Dept. of State and the agencies of the foreign governement.

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Ne Exeat: Request for and Order

File Name: Ne_exeat_req_ord.txt

File Date: 27 Jan 1997

Sample language for an Ex Parte request for a Ne Exeat order and the proposed order. The purpose of this order is to prohibit the removal of the child pennding a hearing on the merits of a Petition under The Convention.

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Netherlands decision of the Childern's Judge

File Name: 13feb91_hol.txt

File Date: 13 Feb 1991

Holland and England. Finds Habitual Residence after four weeks; finds no application of Art. 13(b) on allegations of sexual abuse; applies Art. 18.

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Nicholson v Nicholson (D Kansas 1997)

File Name: Nicholson_fed-dist.txt

File Date: 07 Jul 1997

Kansas and FRG. Sole issue is whether or not the child's alleged desires be followed. Court does an analysis of the age and maturity test. Finds that a 10 year old did not object to going back to the FRG but did not determine whether she had age and maturity. Contrasts returning to a country to being with a parent. Undue influence.

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Non-Exclusivity Feature of The Convention

File Name: NONEXCLU.ART

File Date: 29 Mar 1995

An article by William M. Hilton setting forth the position that The Convention is not the sole means of causing the return of a child and that even if a child is not returned under The Convention, the child may still be returned under other law. Published in the American Journal of Family Law, Summer 1995, Volume 9, Number 2

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Nonprofit Missing Children Organizations

File Name: MISSING.CHL

File Date: 12 May 1991

A selected list of nonprofit organizations (NPOs) serving victims of parental kidnapping and their families throughout the country. This list was compiled by the the National Center for Missing and Exploited Children (NCMEC).

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Nunez-Escudero v Tice-Menley (8th Cir. 1995)

File Name: NUNEZ.FED

File Date: 26 Jun 1995

Mexico and Minnesota. Art. 13(b) as related to best interests and just how much enquiry has to be made as to the living conditions. Backs away from "safe country" to some extent. To be narrowly used. Interpretation of The Convention. Habitual Residence discussed at length, parents choice is not determinative. Possible appoval of "safe harbor" orders (FN 3) Grave Risk

*O*==========================================================

Re: "O" (Minors) [UK 1997]

File Name: Inreo_uk.txt

File Date: 30 May 1997

Sweden and UK. Children abducted from US to Sweden. Sweden finds Art. 13(b) exceptions, goes to appeal. During appeal children abducted to UK, father arrested at Heathrow Airport. Mentions Perez-Vera report with approval. Can only be one hearing under The Convention. Discusses effect of moving child from one contracting state to another. Since Swedish courts are seized of the matter the UK courts cannot interfere. Multiple actions. Presence in forum. Notes by Wm. M. Hilton Selfhelp

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District Attorney v Officer (California 1996)

File Name: Officer_ca.txt

File Date: 17 Dec 1996

Israel -- California. Israeli court grants custody to mother in Dec 95. Ne Exeat order expires Feb 96. Mother and child leave Israel Jun 96 without consent of father. Father applies under The Convention Jul 96. Father sends letter to mother Oct 86 stating, inter alia, "I would never take Esther from you--from her mother. I am willing to sign whatever you ask me to, so that you know you both would not be hindered from leaving the country.... If you want your freedom, I do not want to stand in the way of your happiness." Court finds a) that when mother left father had no rights of custody under Art. 3 and that even if he did he had acquiesced pursuant to Art. 13(a). Rights of Custody Acquiescence.

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Opposing a Petition for Return Under The Convention

File Name: Defend_art.txt

File Date: 01 Jul 1993

Full text of an article presented at the North American Symposium on International Child Abudction: How to Handle International Child Abduction Cases. 30 Sep and 01 Oct 1993. This article discusses the steps one would take in oppsoing a return under The Convention. Written by William M. Hilton, CFLS.

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

O'Sullivan v Anderson (Canada 1998)

File Name: O'Sullivan_cdn.txt

File Date: 06 Aug 1998

British Columbia and Ireland. Primary object is to secure prompt return of child. Law presumes joint custody when parents live together, in absence of proof to the contrary. Art. 13(b) raised by Mother (M) of child. M presents affidavit show Father (F) not a good parent. Court holds this does not make Art. 13(b). M argues that removing C from her, separtion from 12 year old sibling will cause great harm. Court holds proper place to determine this is Habitual Residence of the C: All evidence is there, etc. In alternative court declines jurisdiction. C returned forthwith.

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

Ottens and Ottens (Australia 1988)

File Name: Ottens_aus.txt

File Date: 21 Dec 1988

Australia and Canada, wrongful retention. No requirement that the formalities of a request for return be strictly observed. Defenses Raised: Art. 13(a) (acquiescence): Court finds that while father consented to holiday trip to Hawaii, he did not consent to their further retention and removal to Australia, nor did his actions post removal amount to acquiescence. Art. 13(b): Court requires that Respondent show that there be a grave risk of physical or psychological harm of a substantial nature. Allegations of "a general atmosphere of bullying and abuse which has prevailed in the matrimonial home in Ontario for some significant time" are not sufficient. No risk found.

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

Gollogly and Owen (Australia 1989)

File Name: Owen_aus.txt

File Date: 05 Oct 1989

Alaska -- Australia. Retroactivity issue under Art. 35. Child taken from Alaska in 1986, permanent resident of Australia since Apr 1987. US did not become a contracting state until 01 Jul 1988. Since child was not a Habitual Resident of Alaska when Father obtained custody order in Apr 1989 then there is no wrongful removal or wrongful retention.

*P*=====================================================

Re P (Abduction: Declaration) (UK 1995)

File Name: Rep_uk.txt

File Date: 09 Feb 1995

UK -- California. Discussion of how one requests an Art. 15 declaration, what it can contain, assumptions to be made. Holds that the requested court decides where the habitual residence of the child lies.

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Pacicca & Pacicca: New Zealand Family Court, Nelson.

File Name: PACICCA.NZ

File Date: 23 Sep 1993

New Zealand and New York. Use of affidavits rather then oral testimony. Art. 13(b) invoked, not allowed as was held to be more suitable for the custody hearing in the US. Touches on rights of custody by fact of children just being with a parent. Discussion of the evidentiary burden for an Art. 13(b) request.

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Palle v Palle, Illinois and Austria

File Name: PALLE.IL

File Date: 23 Feb 1990

Return of the children from Illinois to Austria, after 10 months in the US. Issues which may have been raised: Art 13(b), desires of the older child were discussed. This is very short summary from the Bureau of National Affairs. Age Object

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

         Panazatou v Panazatos (Conn.Super 1997)

         File Name:  Panazatou_CT.txt

         File Date:  24 Sep 1997

         Greece and Connecticut.  Art. 13(b) aruged and found
         based on separation of the child from the mother, short
         and long term.  Court finds that harm can be minimized
         if the Mother and Cs go back and have a safe place to
         live.  Undertakings discussed, court looks for data from
         Greece to ensure the execution of the undertakings.
         Court makes effort to communicate directly with the
         Greek court, as under the UCCJA. Consistent with the
         purpose of The Convention.  H/R found in Greece despite
         time Cs had been in CT and intent that they would "some
         day" live in CT.

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Parens Patriae or the Coach and Horses Revisted

File Name: No_hague_art.txt

File Date: 10 Feb 1997

An article discussing some of the steps one may wish to take when children are travelilng to and from countries that are not signatories to The Convention OR when the child's Habitual Residence is going to change from Forum A to Forum B and it is desired to make the orders from Forum A enforceable in Forum A.

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Parental Kidnapping Prevention Act

File Name: PKPA.TXT

File Date: 02 Dec 89

Full text of the federal Parental Kidnapping Prevention Act, 28 U.S.C. 1728A.

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Parental Kidnapping: A New Form of Child Abuse

File Name: Child_abuse_huntington.txt

File Date: Mar 1984

Presentation by Dr. Dorothy S. Huntington at the California Judicial Counsel training seminar in Mar 1984. Discusses the effect of parental kidnapping on children, eg, a form of abuse, etc. A seminal article.

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Parental Kidnapping: Profile of the Kidnapper & Prevention

File Name: Profile_kidnap_lkw.txt

File Date: 16 Feb 1991

Authored by Laurie K. Williams, LMFCC and Daria A. Hilton, BA. Brief article on the profile of a child abducting parent, steps that can taken to minimize the kidnap, etc.

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PAROLE, HAGUE ABDUCTION CASES, SIGNIFICANT PUBLIC BENEFIT

File Name: Parole.txt

File Date: 10 Dec 1998

When a taking parent in a Hague Abduction Convention case is ineligible to enter the United States under U.S. immigration laws, the parent may be paroled into the U.S. through the use of Significant Public Benefit Parole. This file describes the procedure.

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Parsons v Styger Supreme Court of Ontario

File Name: PARSONS.CDN

File Date: 06 Jan 89

California and Canada (Ontario). Art. 13(b) exception requested based on "threat" of father to "kill" the child. Ct: Isolated instance, taken out of context, heat of marriage, no supporting evidence. Not allowed, no hearing on this issue, pleadings sufficient. Art 14 findings of CA court can be noticed. Candian Civil Rights discussed (Similar to Art. 20), not allowed. Undertakings as to return of child. Art. 13(b) Art. 14 Art. 20

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Passport restrictions, Court's Authority

File Name: PASSPORT.RES

File Date: 23 Jun 90

A research Note by David H. Gill, Esq., of San Jose. Goes over the issue of whether or not a court has the power to impound a U.S. Passport, discusses an alternative. Citations made to U.S. Supreme Court cases, etc.

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Passport restrictions, Request For

File Name: PASSPORT.LTR

File Date: 18 May 1994

A form letter to be sent to the Department of State when there is a request for a restriction to be placed on a child's passport. Includes address of the proper agency.

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Pay Without Play: The Futility of Visitation Actions in RURESA Proceedings by Wm. M. Hilton

File Name: NOJUR.MEM

File Date: 10 Jun 93

An article by William M. Hilton describing the requriements for initial Child Custody Subject Matter Jurisdiction under the UCCJA and the PKPA. Cites to many cases for each proposition, e.g., exclusive initial jurisdiction in the "Home State", etc.

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Pefaur vs Pefaur, Dade County, FL: Trial (2) and Appeal.

File Name: PEFAUR.FL

File Date: 26 Oct 93

Argentina and Florida. Child held over after vacation period, parent brings action for custody 16 days after in Florida. Florida court finds no jurisdiction under UCCJA, finds that custody hearings should be held in Argentina. Affirmed by the court of appeal, who also cites The Convention. Useful as an alternative to The Convention. Speaks to the intent of The Convention. When remanded to the trial court, the trial court sets aside the earlier order of the trial court and finds that Florida should exercise jurisdiction under the UCCJA, finds that Art. 13(b) should apply, finds that desires of the oldest child child should be followed. Compare to MURRAY.AUS where Australia held that it was up to the courts of New Zealand to provide protection to the mother in similar circumstances. Age & Maturity Object Desires

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Perez-Vera Explanatory Report

File Name: Perez_rpt.txt

File Date: 17 Jun 1991

The English Language text of the Explanatory Report of the Convention on the Civil Aspects of Intrnational Child Abduction. This would be similar to the Commissioners notes to the Uniform Child Custody Jurisdiction Act. Well worth having if one has a "Hague" case. See also the Legal Analysis of the Hague Convention (above), done by the Department of State.

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

 Pierce v Pierce (Mauritius 1998)

         File Name:  Pierce_Mauritius.txt

         File Date:  20 Apr 2000

         Mauritius and South Carolina.  Mauritian court finds
         that The Convention is not in effect because there has
         been no implementing legislation.  Court then finds that
         since the children are of "tender years" their best
         interest overrides the abduction by the mother; court
         also finds that since the mother refuses to return to
         the U.S., this would not be in the best interests of the
         children.  Comment by Wm. M. Hilton

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

Ponath and Ponath, Fed.Dist.Ct of Utah

File Name: PONATH.FED

File Date: 17 Aug 1993

Germany and Utah. Court finds that lengthy visit in FRG does not become habitual residence since husband coerced wife into staying. Court also finds that husband acquiesced, partially by inaction of husband. Tolling Fraud

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

Pre-Emption of Local Law of Continuing Jurisdiction

File Name: PRE-EMPT.MEM

File Date: 15 Nov 1996

Memorandum of Law as to the pre-emption of local law by the effect of The Convention as to the local law on continuing custody jurisdiction. This is contra to the local law that has developed under the UCCJA. Argument is to have all hearings held in the country of Habitual Residence.

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In re Prevot (6th Cir. 1995)

File Name: PREVOT2.FED

File Date: 14 Jul 1995

France and TN. Doctrine of disentitlement used in appeals court to reverse the granting of a petition for return in the District Court. Petitioner was a fugitive from justice for an unrelated matter. See also PREVOT1.FED, the DC decision.

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

Profiles of the Abductors Most Likely to Suceed

File Name: Profile_abductor.txt

File Date: 15 Jun 1997

An article by Linda Girdner, Janet Chiancone and Janet Johnston. Brief sketch of the Problem of International child abduction, preventive measures, international abductor risks profile, interventions with those fitting the profile and a table of risk factors and preventive interventions.

*Q*==========================================================

Quickest Hague Convention Return

File Name: QUICK.RTN

File Date: 15 Jun 1995

UK and Ireland. Total turn around time is under three hours. Children abducted from Ireland, taken by ferry to Pembroke, Wales and sent back on the next ferry.

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Quinn v Settel (Fla.App. 3 Dist 1996)

File Name: Quinn_fl.txt

File Date: 30 Oct 96

Florida and France. Court discusses the effect of The Convention on the authority to modify an out of country custody determination, infering that The Convention would restrict this power. Comment by William M. Hilton, CFLS to the contra. Vary Modification

*R*==========================================================

Rajaratnam and Hertig, Canton Zurich, Switzerland

File Name: RAJA.SWZ

File Date: 19 Dec 1988

Switzerland and the UK. Discusses joint custody and wrongful removal/retention. Art 13(b) and clear proof requirements. Children's wishes (ages 12 and 14) not followed, not binding on the court. Discussion of Art. 17 and custody orders. Finds rights of custody as a matter of UK law, no significant amount of proof required. Desires Age & Maturity Object

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Reciprocating Jurisdictions for Child Support

File Name: RURESA.591

File Date: 01 May 1991

RECIPROCATING JURISDICTIONS AS OF 1990 - Revised Uniform Reciprocal Enforcement of Support Act of 1968, CCP 1650 to CCP 1199.4. [RUESA] Lists all known forums that are considered Reciprocating Jurisdictions with California. Support orders from California may be enforced in these jurisdictions and support orders from these jurisdicitons may be enforced in California.

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

Recommendation for Visitation as a Function of Child's Age

File Name: HODGES.VST

File Date: 06 Apr 1991

Recommendations for Visitation as a Function of the Age of the Child, adapted from Hodges, W. F. (1991). Interventions for Children of Divorce: Custody, Access, and Psychotherapy, (2nd Edition), New York: John Wiley. Publication due in July, 1991).

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Registration and Enforcement of Sister State Custody Orders

File Name: REGISART.ASC

File Date: 04 Dec 1989

An article originally written for the California Family Law section journal. Describes the process of registering an out of state custody and visitation order, with forms and supporting points and authorities.

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Re P (Minors) (UK 1997)

File Name: ReP2_Minor_UK.txt

File Date: 07 Aug 1997

UK and the US. Mother obtains Ne Exeat order from the UK courts against US diplomat Father as to two minor children. Father and US Government argue diplomatic immunity and, notwithstanding The Convention, etc., the Father cannot be prevented from leaving the UK (the Habitual Residence of the children) with the two children. UK Court agrees, Father and children allowed to leave the UK.

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Re: P (Minors) (UK 1998)

File Name: Rep3_minor_uk.txt

File Date: 11 Mar 1998

UK and Virginia. See also Rep2_Minor_UK.txt. Request for finding under Art. 15. Issue of diplomatic immunity raised by Father. Brief discussion of Habitual Residence and foreign service posting. Court finds that there would be no benefit arising from the appeal and therefore does not allow it but permits a possible re-application in the future. Unclear case.

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Report of the 2nd Special Commission on The Convention

File Name: OFFICIAL.RPT

File Date: 21 Jan 1993

Report of the second Special Commission meeting to review the operation of the Hague Convention on the Civil Aspects of International Child Abduction (18-21 January 1993). Drawn up by the Permanent Bureau. Includes list of participants. This is the final form of MEETING.RPT.

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Request for Assistance from a Responding Nation, Cover Lettr

File Name: ASSISTH.LTR

File Date: 25 Apr 95

Cover letter to the court where the REQUEST FOR ASSISTANCE form is being submitted. Explains to the court the reason why the document is being submitted, etc.

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Request for Assistance from a Responding Nation, Hague Convention

File Name: Request_assistance_hague.txt

File Date: 04 Mar 1993

Request for the assistance of the courts of the Responding Contracting State from the Courts of the State of Habitual Residence. Advises the courts of the Responding Contracting State that there will be cooperation, asks for specific aid, e.g., immediate pick-up of the child, etc.

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Request for Assistance from a foreign court, UCCJA

File Name: Request_assistance_uccja.txt

File Date: 12 Jun 1990

Request made to a foreign court to recognize and enforce a California custody order. Goes through the procedural history of the case, sets up applicable California law, shows that an order is final, is signed by the California Court.

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Resume of William M. Hilton

File Name: Hilton_resume.txt

File Date: 05 Feb 1997

Bill Hilton's resume. Tells of his exploits, articles written classes taught, etc. A form of self engrandizement.

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

Retroactivity argument for the Hague Convention

File Name: RETRO.HAG

File Date: 03 May 1991

Legal argument on the issue of retroactivity of The Convention. Uses both agreement by the resepective nations (wrongful removal) and the ongoing offense nature of a wrongful retention.

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Robinson, Application of (D.Co. 1997)

File Name: Robinson_fed_dist.txt

File Date: 07 Nov 1997

UK and CO. Perez-Vera Reported cited. Discussion of rights of custody, exercising those rights. "Stay Away" orders are not sufficient to vitiate exercise of rights of custody. Age and Maturity (wishes) of children 6 and 11 (tender age), child pressured by abducting parent. Programming noted. Child unduly influenced. No weight given to the preferences. Action filed more than one year after the wrongful removal. Discussion of what constitutes well settled under Art. 12. No tolling for negotiations period. Cites UCCJA. Factors to be considered for well settled.

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

Rochford and Rochford (Italy 1999)

File Name: Rochford_Italy.txt

File Date: 13 Jan 1999

Italy and UK. Child taken from UK to Italy Sep 97 by M, F then returns C to UK in Jan 98, M then takes C to Italy in May 98. Double Removal. Application of Art. 16. Child taken from UK to Italy, there three months, too short to establish a new Habitual Residence. H/R is not the registered residence but the place where the child usually spends most of his time, the center of the child's life. The inevitable pain consequent to the parents' separation cannot be used as an Art. 13(b) defense. Rights of custody discussed.

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

Rodriguez v Rodriguez (D.Md. 1999)

File Name: Rodriguez_fed_dist.txt

File Date:

MD and Venezuela. Severe domestic violence alleged. Use of experts. Finding of Art. 13(b) and reasons for this. Finding, as to the 12.5 year old child that there was an "age and maturity" exception by use if in camera testimony. Further findings under Art. 13(b) that separation of siblings would cause severe emotional harm. Comment by Wm M Hilton

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

Rosenlehner v Rosenlehner (Virginia 1996)

File Name: ROSEN.VA

File Date: 14 Jun 1996

FRG and Virginia. Principle issue rasied was an Art. 13(b) defense. The court finds that return the child to the mother would cause harm, but orders the return of the child to the FRG stating that the FRG courts could determine the proper course of action. Followed the Art. 13(b) theory that if the country and its courts are stable and available then the child returns to its Habitual Residence. Mentions Habitual Residence, Rights of Custody. Annotated by William M. Hilton, CFLS. Art. 15 mentioned

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

Roszkowski v Roszkowska NJ Superior Ct Union County

File Name: ROSKOW.NJ

File Date: 08 Dec 1993

Poland and New Jersey. Move from Poland to NJ, after six months Mother sends child to Poland. F brings divorce, NJ court holds that The Convention Pre-Empts UCCJA. Further finds that UCCJA requires reciprocity and that Poland is not a state under UCCJA. Does long analysis of Habitual Residence (H/R), finds NJ H/R of child. Does a brief overview of Art. 13 defenses, finds none. Holds that there is no requirement for custody order for wrongful act. Holds that 4 1/2 year old is not of suitable age to express opinion. Desires. Habitual Residence. Art 13. Unusual point: Action for return is brought in the H/R rather than in the place where child was taken to. Age & Maturity Fraud ? Object

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

Von Wussow-Rowan v Rowan (E.D. Pennsylvania 1998)

File Name: Rowan_fed_dist.txt

File Date: 06 Aug 1998

Pennsylvania and Switzerland. M wrongfully retains child in Switzerland, F files Hague Action in Switzerland, Swiss court of first instance says PA is Habitual Residence, M wrongfully retains, finds Art. 13(b) exception but does not say why. F appeals in Switzerland and while pending takes child from Switzerland to PA. M brings action in PA, court holds that selfhelp of F is permitted under The Convention since it returned the child to the Habitual Residence. Does not give any weight to the Swiss Art. 13(b) finding since there was no evidence to support this finding. Stays action, tells both parties to litigate custody in Pennsylvania. Comment by Wm. M. Hilton. See also Re: "O" (Minors) [UK 1997]; High Court of Justice, Family Division, 30 May 1997; 3 International Abduction [UK 1997], in Hilton House as: Inreo_uk.txt.

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R.S. v. P.A.

File Name: RSPA_Canada.txt

File Date: 05 Mar 1997

Canada and the UK. The court discusses the implementation of access, the use of affidavits and a rather novel Art. 13(b) defense of deportation from the Habitual Residence. The court invites counsel to obtain information about the parent seeking access by contacting the Habitual Residence.

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Ruling No. 284 of 09 Dec 1991 of the Hungarian Supreme Court

File Name: RULE284.HUN

File Date: 09 Dec 1991

Complete text of Ruling No. 284 of the Civil College, Supreme Court, Republic of Hungary. Discusses what is meant as a "rights of custody" under Art 3 of the Convention in relation to Hungarian custody law. Gives examples of how this is to be applied, eg, when the parents are together, separated, etc. An appendix with some of the text of the referenced law is attached.

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Rydder v Rydder - US Ct of Appeals 8th Cir

File Name: RYDDER.FED

File Date: 13 Feb 1995

Iowa and Poland and/or Sweden. Family lived in Poland but were registered there as resident of Sweden. Mother removes children from Poland, takes to Iowa. Father brings action asking for return to either Poland or Sweden, returned to Sweden. Art. 13(b) defense on basis that removal of child from mother is harmful, denied. Fees of $10,000.00 and related expense of $9,667.40 ordered. Discussion of purpose of The Convention. Habitual Residence Fees

*S*==========================================================

Re S (Minors) (Abduction) UK Court of Appeal

File Name: INRES.UK

File Date: 17 Dec 1992

Pakistan and UK. Non-Hague country. UK has incorporated The Convention into Common Law. UK Court analyzes Pakistani law as to custody and holds that it is not dissimilar to UK law. Finds Habitual Residence of child is Pakistan, orders return. General review of the principals of The Convention.

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Re S (Minors) (Abduction: Acquiescence) (UK 1994)

File Name: Inres2_uk.txt

File Date: 03 Feb 1994

Australia and UK. Age and Maturity test: 9 year old may have sufficient maturity if there is a gate way finding of age and maturity. Once found the court must exercise its discretion as to proper forum (FNC). Scope of enquiry is discussed, use of Mental Health Professional to interview the child is approved. Acquiescence by inactivity. Prima facie case if nothing done for 8 months & Father knew where Children were. Active (Explicit) vs Passive (Silence & inactivity). Discusses inactivity factors -- objective survey of the facts. Active acquiescence to be clear and unequivocal. Mere time alone (less than 1 year) is not sufficient per se. Efforts to persuade the abducting parent to return are not acquiescence. Age & Maturity

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In re S. (Minors) (Abduction: Wrongful Retention)

File Name: Inres3_uk.txt

File Date: 14 Jul 1993

UK and Israel. Parties and children in UK by agreement for a specific period of time. Before the period expires M obtains ex parte custody order from UK courts, states is going to stay in UK. F brings Hague action. Court holds that wrongful retention commenced when custody order was obtained, a breach in the agreement. Some discsussion: Habitual Residence, Rights of Custody, Art. 13(b) (Denied).

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In re S (A Minor) (UK 1997)

File Name: Inres4_uk.txt

File Date: 24 Jul 1997

UK and Ireland. Habitual Residence (H/R) Unmarried parents. H/R of child before death of Mother (M) was that of M, child too young to have H/R of its own. Change of H/R usually requires a significant period of time. Wrongful Removal & Wrongful Retention are separate events occurring on specific occasions because of Art. 12. Rights of custody can be established after a removal in which case the retention becomes wrongful, if H/R has not shifted. Cites Perez-Vera Report with approval.

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Re S (a minor) (abduction) (UK 1993)

File Name: Re_S_(Age_&_Maturity).txt

File Date: 07 Jul 1992

UK and France. Court of appeal. Sole issue is that of Age & Maturity. Affirms lower ruling [In_re_css_uk.txt (INRECSS.UK), below]. Decision of mature 9 year old is decisive. Sets out some criteria: Desires won't be followed if sole purpose is to be with the abducting parent or if the child has been pressured by a 3rd party to make the choice. See TAHAN3.NJ for contra.

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"Safe Harbor" Order

File Name: SAFEHBR.ORD

File Date: 15 Jul 1992

Sample order based on the information set out in the "Safe Harbor" Pleading file (Below). Sets out custody, restrictions, protecticve orders, support, travel expenses. Includes a statement of the local court to the foreign court saying that the interests of the child are paramount.

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"Safe Harbor" Pleading

File Name: SAFEHBR.PLD

File Date: 30 Oct 1991

Sample terms to be used when there are allegations of abuse made by a party in opposition to a request for return under the Convention or under the Emergecny section of the UCCJA. These terms set up a "Safe Harbor" for the child so that there can be no possiblity of abuse or neglect upon return of the child to the proper forum.

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Air France v Saks U.S. Supreme Court 1985

File Name: Saks_usc.txt

File Date: 04 Mar 1985

Gives rules for use of foreign cases and reports in interpreting treaties.

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Salvador and Salvador - Hawaii Frist Circuit, Family Court

File Name: SALVADOR.HI

File Date: 20 Mar 1992

New Zealand and HI: Children sent for holiday period, retained by father. Finding of Habitual Residence, wrongful retention. Mother is from New Zealand, father is from HI. US Military family and had traveled extensively before this action.

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Sanchez Renovales v Roosa -- Hartford-New Britain, CT

File Name: SANCHEZ.CT

File Date: 27 Sep 1991

Spain and Connecticut, wrongful retention. Mother argues that Art. 13(b) applies, two MHP involved, attorney for the children. Court reviews, holds that principal issues appears to be cultural differences, does not allow Art. 13(b). Mother did not meet her "clear and convincing" burden, which was defined. Decision touches on other points of the Convention.

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Santa Clara County, Family Law Rules of court

File Name:Santa_clara_rule_17.txt

File Date: 10 Sep 1993

Rule 17 of the Superior Court of California, County of Santa Clara, Family Law. 10 Sep 1993

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Schroeder v Vigil-Escalera Perez (Ohio 1995)

File Name: PEREZ.OH

File Date: 09 Nov 1995

Spain and Ohio. Court finds acquiesence based on "indetrminate" stay in Ohio even though F in Spain brings his action within six months, citing Ponath for support. Discussion of Habitual Residence, finds that it was in Ohio and not Spain.

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Shalit v Shalit (Dist. Alaska 1998)

File Name: Shalit_dist_fed.txt

File Date: 17 Nov 1998

Alaska and Israel. Original order for custody to mother issued in Alaska in 1989. By agreement the child lives in Israel with Father for about 3 years. Child travels to Alaska for visit with mother. After the last visit mother does not send back to Israel. Court finds that Israel is the Habitual Residence, but that the pre-existing custody order, despite the passage of time, gives the mother a right of custody in Israel and therefore denies the petition. Court rejects legal memorandum from Israel that states that father would have a right of custody. Rights of Custody. Habitual Residence. Comments by Wm M Hilton Affirmed

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Shalit v Coppe (9th Cir. 1999)

File Name: Shalit_fed_appl.txt

File Date: 23 Jul 1999

Alaska and Israel. Rights of Custody Conflicts of Law Standard of Review Habitual Residence (H/R) Review court' findings of fact for clear error and its conclusions about US, foreign, international law de novo. Perez Vera Report recognized as authority. Where there is an existing order for custody then petitioner must show both the internal - domestic law and the conflict of law rules of the state of H/R. This may not apply if the "custody order" was a very recent or an order entered surreptitiously. Three years in Isreal was sufficient to show Israel as the H/R even if designated "temporary". Affirms district court.

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Shamee vs Shamee, Colmar District Court, France

File Name: SHAMEE.FRN

File Date: 12 Mar 1993

An application of Art. 13(b). This case shows how Art. 13(b) was badly misapplied and where it was used to determine the merits of the case. French court of appeal rules that the separation of the child from the kidnapping parent would cause the harm set out in Art. 13(b). With annotations by William M. Hilton.

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Shamsi v Heijkenskold (Sweden)

File Name: SHAMSI.SWD

File Date: 12 Oct 1990

Judgment of the Kopparberg County, Sweden Administrative Court and the Administrative Court of Appeal. Application of Article 13 as to a) Age of Children and their Preference and b) Intolerable Situation based on mere best intersts of child. Trial court allows 14 year old to stay in Sweden but say 9 year old is too young to make that decision, then finds best interests to keep child in Sweden. Reversed on appeal, more than best interests is needed. Age & Maturity

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Sheikh v Cahill (Supp. 1989)

File Name: SHEIKH.NY

File Date: 15 Sep 1989

UK and New York. Child returned to UK. Existence of custody decree in requested state (NY), nationality of the child do not restrict return. The issue of acquiescence is discussed indirectly (a principle feature of this decision) when the father consents to a residence order in the UK after the child was taken from New York by the mother. Habitual Residence discussed. Wrongful Retention. In Camera interview with child: No Art. 13(b), no Age and Maturity. Desires of child.

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Silverman v Silverman (2001)

File Name: Silverman_fed_appl.txt

File Date: 04 Oct 2001

Israel and Minnesota. Application of the Younger abstention doctrine to a petition under The Convention. Federal courts have the power to dismiss or remand based on abstention principles only where the relief sought is equitable or otherwise discretionary. The Hague Convention mandates that a court that receives a valid Hague petition must determine whether the child has, in fact, been wrongfully removed. Abstention principles do not permit an outright dismissal of a Hague petition.

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Silverman and Silverman (2002)

File Name: Silverman_fed_dist.txt

File Date: 21 Feb 2002

Israel and Minnesota. Question as to whether or not a jury trial could be ordered in a proceeding under The Convention on the Civil Aspects of International Child Abduction, done at The Hague on 25 Oct 1980. Court ruled that it could not

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         Sinclair v Sinclair (6th Cir. Mich. 1997)

         File Name:  Sinclair_fed_app.txt

         File Date:  30 Jul 1997

         Canada and Michigan.  Art. 13(b) argued.  Court finds
         that the Respondent did not carry her burden of showing
         that return of the children to Canada would expose them
         to a grave risk of harm or an intolerable situation and
         that this was supported by the record and is not clearly
         erroneous.  Children returned to Canada.

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

Slagenweit v Slagenweit (Federal N. Dist. Ct of Iowa)

File Name: Slagen_fed_dist.txt

File Date: 28 Oct 1993

FRG and Iowa. Issue of shift of Habitual Residence from FRG to Iowa by acts and unspoken intent of parents. Wrongful Retention case. Court finds that HR did shift, therefore no Wrongful act. Court then discusses affirmative defenses, finds no Art. 13(b) -- both US and FRG are capable of taking care of child; finds that period of Wrongful Retention starts on the day of the retention.

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Slagenweit v Slagenweit (8th Cir. 1995)

File Name: Slagen_fed_appl.txt

File Date: 18 Aug 1995

FRG and Iowa. Factors that the Federal Court permits as legitimate costs in a case under The Convention: Depositions, Translations. Sets out specific Federal sections for this proposition.

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Smith v Smith (Ken.W.Dist. 1997)

File Name: Smith_fed_dist.txt

File Date: 10 Dec 1997

Australia and KY. Habitual Residence cannot be unilaterally changed. Rights of Custody determined by law of H/R. Virtually any contact wtih the children will be an exercise of custody rights. Rights of access briefly touched upon. Art. 13(b) raised, cites Friedrich. Allegations of abuse of parent are not sufficient to show Art. 13(b) towards child; further ameliorated by willingness of H/R courts issuing domestic violence protection orders. Attorney fees granted, amount to be determined.

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State Central Authority (Smith) and Ayob (Australia 1997)

File Name: Smith_and_Ayob_aus.txt

File Date: 28 Feb 1997

Australia, US, Malaysia. Wrongful removal of child from Arkansas to Malaysia. Child then taken to Australia by abductor for a visit. Hague action commenced in Australia. Agreement that child could only travel to Malaysia for brief periods held to be a right of custody. Art. 12 time period runs from date of removal in Arkansas and not date of arrival in Australia. If one year has passed and child is well settled then court has no discretion to return child. Criteria for well settled discussed. Where no evidence presented then assume not well settled. Acquiesence by inaction discussed, impossibility vitiates acquiesence by inaction.

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Sonderup v Tondelli (SA 2000)

File Name: Sonderup_SA.txt

File Date: 04 Dec 2000

South Africa and Canada. Decision of the South African Constitutional court. Holds that a Ne Exeat order is a right of custody under The Convention. Distinguishes Croll v Croll 229 F.3d 133 (2d Cir 2000) holding that Croll is contrary to the weight of authority and follows the descent in Croll. Art. 13(b) defense raised and rejected. Court did an extensive review of the allegations made by the absconding parent and finds that, while there is extensive material that would reflect on the parenting ability of the left behind parent, it was not sufficient for a finding under Art. 13(b). The decision is worth reading whenever an Art. 13(b) defense is raised as it sets out facts and then holds that these facts were not sufficient. Court made extensive use of undertakings to cause the return of the children to Canada. Fees were awarded. A well reasoned case.

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Spanish Civil Code - Excerpt from

File Name:Spain_civil_code_excerpts.txt

File Date: 20 Jun 1991

Excerpts from the Spanish Civil Code: Title V, Concerning paternity and filiation; Title VI, Concerning nourishment between parents; Title VII, Concerning father-child relations; Title VII, Concerning Absence.

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S. v. S, In Re. United Kingdom Family Court

File Name: In_re_css_uk.txt

File Date: 17 Jan 1992

Trial Court and appeals decision on Art 13 issue of age of child as a defense to returning. Some discussion of how to apply this section. Court allows the decison of a "mature" nine year old to be decisive. Points out that can only be used in "extraordinary" circumstances and states that this is one of those circumstances. See TAHAN3.NJ for contra. Wishes Age & Maturity. Affirmed on appeal [Re_S_(Age_&_Maturity).txt (RESA&M.UK) above]

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Steffen F v Severina P. (D.Ariz. 1997)

File Name: Steffen_fed_dist.txt

File Date: 16 Apr 1997

FRG and Arizona. Court find's Art. 13(b) based on harm to child if the child is "unbonded" from the mother who abducted the child and kept the child for nearly a year before the hearing on the petition. Use of experts, discovery.

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Storvik and Storvik (Calif.Super.Ct. 1995)

File Name: Storvik_California.txt

File Date: 26 Jul 1995

California and Norway. Issue of whether or not a temporary stay of one year in California as a visiting scholar changes the Habitual Residence of the child from Norway to California. Court rules it does not. See also Bickerton_California.txt.

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Swiss - US Extradition Treaty

File Name: Swiss-US_Extradition_treaty.txt

File Date: 27 Aug 1998

Full text of the EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE SWISS CONFEDERATION AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA, effective 14 Nov 1990.

*T*==========================================================

T, In re (Minors) (International Child Abduction: Access) UK

File Name: INRET.UK

File Date: 17 Mar 1993

UK and California. Holds that Art. 21 confers no jurisdiction upon a court to determine rights of or enforcement of access. Sole duty of the Central Authority is to refer the matter to a solicitor.

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Tabacchi v Harrison (D. Illinois 2000)

         File Name:  Tabacchi_fed_dist.txt

         File Date:  10 Feb 2000

         Illinois and Italy.  Main issue is Art 13(b):  Level of
         proof, effect of crimingal action in the Habitual
         Residence, effect of undertakings, burden of proof,
         separation of child from the abducting parent (not
         usually sufficient), law of Habitual Residence.
         Discusses and distinguishes physical and emotional harm.
         Discusses Habitual Residence, enumerates factors used to
         determine this; H/R found.  Discusses rights of custody
         and level of proof required to show exercise of those
         rights; exercise found.  Discusses consent and/or
         acquiescence and what is required to establish this; no
         consent/acquiescence found; delay in filing is not
         consent/acquiescence.

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Tahan v Duquette. Quebec and New Jersey - Trial Decision

File Name: TAHAN2.NJ

File Date: 24 Jun 1992 Download Time: 245 secs

Full transcript of the remand hearing of Duquette v Tahan, 252 N.J. Super. 554 [600 A.2d 472]. Court finds that there is no Art 13(b) based on the legal concept that the risk is if the child is returned to the country, not to the parent. Experts involved, accepted by the court. Good discussion on Art 13(b)

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Tahan v Duquette. Quebec and New Jersey - Appellate Decision

File Name: Tahan_appl2_nj.txt

File Date: 18 Sep 1992

Results of appeal of TAHAN2.NJ. Court of Appeal affirms but states the trial court was interpreting Art. 13(b) a bit narrowly, while holding that "Best Interest" arguments are only to be made in the courts of the Habitual Residence. Preference of a nine year old child not considered, even with back-up report of a MHP: "This standard simply does not apply to a nine-year old child." Age of child issue. Wishes Attorneys fees left to the trial court. Age & Maturity

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Tahan v Duquette. Quebec and New Jersey - Trial Court - Fees

File Name: TAHANFEE.NJ

File Date: 14 Oct 1992

Decision by the trial court as to Attorney Fees under The Convention. While argument was made that they were mandatory, the Court found that fees are favored but not mandatory, allows the court some discretion. Awards $7500 against fees of $11,134.48. Court finds the $11K as reasonable, takes into account other factors as well.

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         Tazi, In the Interest of (District Court 2001)

         File Name:  Tazi_TX.txt

         File Date:  26 Jan 01

         Texas and France. Children abducted from France in 1994
         and concealed by the abducting parent despite diligent
         efforts on part of the left behind parent.  Because of
         this concealment the court finds that the one year
         period of Art. 12 is tolled.  Children returned to the
         left behind parent.  Tolling.  Concealment  Attorneys
         Fees

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Third Special Commission: Check List

File Name: 3SCM_chklst.txt

File Date: 01 Jan 1997

The full text of the CHECKLIST OF ISSUES TO BE CONSIDERED AT THE THIRD MEETING OF THE SPECIAL COMMISSION TO REVIEW THE OPERATION OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION. Questions presented to the Thrid Special Commission meeting. Covers all of the sections of The Convention. Generic

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Third Special Commission: Final Report

File Name: 3SCM_Report.txt

File Date: 15 Aug 1997

The full text of the REPORT OF THE THIRD SPECIAL COMMISSION MEETING TO REVIEW THE OPERATION OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION (17 - 21 Mar 1997). Comments by the participants at the 3rd SCM to the check list and other issues presented. Covers all of the sections of The Conventiion. Generic

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Thomson and Thomson, Trial Court Decision

File Name: Thomson_trial_cdn.txt

File Date: 28 Jun 1993

Scotland -- Canada. Footnote by William M. Hilton. No formal application required to hear case under The Convention, cites Art. 29. Declaration of requesting party's counsel admissible. Critical date in Canada is the date of commencement of the hearing: No real and substantial contacts with Canada on that date. Art. 13(b) discussed and level of evidence required. Wrongful Removal based on Ne Exeat order issued by the Court in Scotland. Can make interim orders for the return of the child pending hearing in the Habitual Residence. Undertakings

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Thomson and Thomson (Manitoba Appl. 1993)

File Name: Thomson_appeal_cdn.txt

File Date: 18 Oct 1993

Scotland -- Canada. Formal proof of Scottish orders: Sworn statement by Scottish attorney for father by FAX provides ample proof of orders made in Scotland. Finding of Habitual Residence in Scotland: Only Scotland has a real and substantial connection with the child, Mother cannot unilatrally change this. Finding of Wrongful Removal: Ne Exeat order of Scottish court gives right of custody to that court; order giving Father custody after the removal makes a wrongful retnetion. No Art. 13(b) finding: Evidence of harm to the child by removal from the Mother is irrelevant, harm must be upon return to the other parent. Well settled not to be considered until after 1 year. Duty under The Convention has priority over best interests: Not the function of requested courts to consider best interests, requesting state to hear on merits. Ordering return of child prior to a finding by the Scottish court as to the merits: Interests of child best determined by requesting court. Habitual Residence Wrongful Removal Art. 13(b)

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Thomson v. Thomson (Can.Sup. 1994)

File Name: Thomson_supreme_cdn.txt

File Date: 20 Oct 1994

Scotland -- Canada. Upholds decision to return. Finds Scotland is the Habitual Residence. Holds that Ne Exeat order while in interim proceedings is a right of custody in the trial court, silent as to its effect on a final order. Allows child to remain with Mother until returned to Scotland. Convention mandates a stringent test for grave risk or harm, intolerable situation. Cites support for this point. Substantial, not trivial harm. Art. 13(b) Wrongful Removal

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Thomson v Thomson, Counsel for, Canada

File Name: Thomson_counsel_cdn.txt

File Date: 27 Dec 1995

List of various counsel who participated in one of the hearings on the Thomson matter.

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Thomson v Thomson, Case Comment on, by James G. McLeod

File Name: Thomson_article_cdn.txt

File Date: 6 R.F.L. (4th)

Case comment by James G. McLeod on the decisions of the trial court, court of appeal and the Canadian Supreme Court. Discuss: Ne Exeat, Art. 13(b), Habitual Residence, Wrongful Removal, Wrongful retention. Footnotes by William M. Hilton.

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Toren v Toren (D.Mass. 1998)

File Name: Toren_fed_dist.txt

File Date: 21 Oct 1998

Israel and Massachusetts. Israeli divorce, agreement & order that children live in US for up to 4 years then return to Israel. M moves to modify Israeli orderin MA, F (over a year later) brings Hague action. Court follows Mozes and holds that during the first year in MA the children's Habitual Residence changed from Israel to MA. Court finds "wrongful retention" on day of filing of MA action. Court also finds that action was brought after more than one year and that children were well settled under Art. 12.

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Trial of a Hague Convention Matter, How To

File Name:HAGTRL1.TXT

File Date: 10 Apr 1989

A short discussion on the steps taken to file and hear a Petition for Return of a Child under the Hague Convention. Includes instructions on the Response and practice tips.

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Trial of a Hague Convention Matter, How To, 2nd Article

File Name: HAGTRL2.TXT

File Date: 15 Dec 1992

A second version of the original notes as to handling a Hague matter. Originally published in the American Journal of Family Law; Volume 6, Number 4, Winter 1992; 6 Am.J.Fam.L. 211 (1992)

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Penina Tournai v David Mechoulam - Supreme Court of Israel

File Name: TOURNAI.ISR

File Date: 15 Apr 1992

Israel and France. Joint custody makes a "Rights of Custody" Apparent retroactive application of The Convention. Requirement that these cases been given priority in courts of first instance and court of appeal. Art. 13(b) not to be used for delay. Uniform interpretation should be a goal. No permanent custody arrangements are to be considered. Ne Exeat order discussed.

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Turner, Marriage of, Australia Family Court, Brisbane

File Name: TURNER.AUS

File Date: 27 Jun 1987

Australia and England. The desires of a 13 year old child were followed in keeping the child in Australia. Court reviews the reasons given and finds them mature, backed up by the testimony of a social worker. There were exsiting orders in the UK which are discussed as well. Age & Maturity Object

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Turner v Frowein (Middlesex Sup.Ct. 1998)

File Name: Turner_ct.txt

File Date: 25 Jun 1998

CT and The Netherlands. Child 7.5 years does not have sufficient Age and Maturity, GAL and attorney appointed to represent child's views. Art. 14, Art. 16 mentioned. Netherlands found to be the Habitual Residence, long history there, ongoing permanent contacts in life of child in Netherlands. F exercising rights of custody. Case turns on Art. 13(b) finding by the court of first instance based on alleged sexual misconduct by F. M alleges that Dutch agencies and/or courts would not take any action to protect the child. US agencies find sexual abuse. Court finds that F has sexually abused the child. Moreover M would face undetermined "sanctions" for abducting the child from Holland. Comment by Wm. M. Hilton

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Tyszka and Tyszka -- Michigan Circuit Court

File Name: TYSZKA.MI

File Date: 21 Feb 1991

Michigan and France. Child was wrongfully retained after a visit. Cases discusses acquisence and disaproval of by acts of the left behind party, eg, R/T Ticket. Art 13(b) invoked by abducting parent: Alcohol, drugs, psychiatric problems. Court will not allow: Must be more than "serious". Court discusses and awards fees under the Convention: Hotel, travel, etc., are included. Case has comments by Wm. M. Hilton.

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Tyszka and Tyszka -- Michigan Court of appeals

File Name: TYSZKA2.MI

File Date: 24 Aug 1993

Affirmation of Tyszka and Tyszka Circuit Court of Appeals. Sets out purpose of The Convention: To curb international child abductions. Art. 16 discussion. Holds that once the child is returned to its Habitual Residence then the Habitual Residence is to hear the issues of child custody, it being the forum with subject-matter jurisdiction.

*U*==========================================================

Undertakings and Safe Harbor Orders, Role of

File Name: Undertaking_Rpt.txt

File Date: 30 Nov 95

Full text of the REPORT ON HAGUE CONVENTION OPERATIONS concerning the use of "Undertakings" and "Safe Harbor" orders, particularly between the United States and United Kingdom. Position of the U.S. Dept. of State is set out. Sample form. Undertaking Safe Harbor.

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Uniform Child Custody Jurisdiction Act (UCCJA)

File Name: UCCJA.TXT

File Date: 01 Aug 68

Full text of the UCCJA as presented to the American Bar Association on 01 Aug 1966 with: Prefatory Note and Comments for each section. The comments are very useful in interpreting the UCCJA. This is the "Master" version of the individual state enactments of the UCCJA.

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UCCJA Cases: Alaska

File Name: UCCJACAS.AK

File Date: 03 Sep 92

A listing of all known UCCJA/PKPA cases decided in the Supreme Court of Alaska

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UCCJA Cases: California

File Name: UCCJACAS.CA

File Date: 03 Sep 92

A listing of all known UCCJA/PKPA cases decided in the California courts of appeal and Supreme Court of California.

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UCCJA Cases: Colorado

File Name: UCCJACAS.CO

File Date: 05 Oct 89

A listing of all known UCCJA/PKPA cases decided in the Colorado courts of appeal and the Supreme Court of Colorado.

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UCCJA Cases: Massachusetts

File Name: UCCJACAS.MA

File Date: 15 Mar 90

A listing of all known UCCJA/PKPA cases decided in the Massachusetts courts of appeal and the Supreme Court of Massachusetts.

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UCCJA Cases: Oregon

File Name: UCCJACAS.OR

File Date: 21 Apr 96

A listing of all known UCCJA/PKPA cases decided in the Oregon court of appeal and the Supreme Court of Oregon

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UCCJA Cases: Washington

File Name: UCCJACAS.WA

File Date: 31 Oct 1989

A listing of all known UCCJA/PKPA cases decided in the Washington courts of appeal and the Supreme Court of Washington.

*V*==========================================================

V, Re (Abduction: Habitual Residence) (UK 1995)

File Name: Re_V_HR_UK.txt

File Date: 28 Jun 1995

UK and Corfu. Parties and children live in London during the winter and Corfu during the summer. Court holds that can have "serial" Habitual Residence but not more than one at a time. Presence of children plus list of factors as a guide to finding Habitual Residence. High priority to be accorded to cases, expiditions handling.

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Viola, Matter of - Lucerne Town and Appeals Court, Switzerland

File Name: VIOLA.SWZ

File Date: 02 Apr 1990

Decision of the Lucerne Town Court, followed by an appeal brief followed by the decision of the Lucerne Appeals court. Mother takes 4.5 month old child from NY. Swiss courts hold that Art. 13(b) applies on the mere separation of the child from its mother. Issue of day care as well. This is an example of what Art. 13(b) is not supposed to be used for. Seems to apply the "Best Intersts" standards as a bais for refusal to return under Art. 13(b).

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Viola v Viola (Scotland 1988)

File Name: Viola_uk.txt

File Date: 20 Feb 1987

Canada -- Scotland. Wrongful removal conceded by Respondent. Matter to be handled expeitiously. No delay granted to obtain information under Art. 13 (last part), e.g., social studies, etc., due to the delay it would cause. Art. 13(b) argued on basis that the child is looked after by a 57 year old grandfather who only speaks Italian, has occasional bouts of blindness, severe headaches; that the Father's working hours made him unavailable. Art. 13(b) defense denied: Canada has seized the case and can resolve these issues. Child to be returned forthwith, no delay on return permitted. Art. 13(b) Forthwith

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Viragh v Foldes (Mass. 1993); Hungary vs Massachusetts

File Name: VIRAGH.MA

File Date: 29 Apr 1993

Children taken from Hungary without consent of father. Application of Hungarian law which permits "one year" absence without consent of Hungary. Application of Art. 21 and who sets access (here Massachusets). Discussion of attorney fees. Wrongful Removal, Wrongful Retention discussed. Court discussion of who pays for access to the children. Effect of custody order from Hungary permitting the mother to keep the child as vitiating the wrongfulness. Courts of requested state have jurisdiction over access. Request for Art. 15 determination is denied.

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Visitation, Art. 21, Practical Application Of

File Name: ART21.ART

File Date: 23 Aug 1996

An article that describes the practical application of Art. 21 and access (visitation) under The Convention. This is a "How To" article, comes with copy of Petition for Access, form of undertaking, financial bond (if required), etc. Explains where and how to file and what to ask for, etc.

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Visitation, Temporary, During Litigation, Stipulation for

File Name: Visit_stp.txt

File Date: 08 Apr 1992

This file is a sample order that may be used when the parents are in two different jurisdictions, there is no final order as to the proper jurisdiction and the jurisdiction is in dispute. This order allows for visitation to occur with very strong civil and criminal guarantees that neither parent will violate its terms. The order is only to be filed if there is a significant violation of its terms. Otherwise it is destroyed when the visitation period is over: It does not get filed.

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Walsh, In re (D.Mass. 1998)

File Name: Walsh_fed_dist.txt

File Date: 18 Dec 1998

Ireland and Massachusetts. Through and sound discussion on the application of Art. 13(b). Sole issue before the court was an application of Art. 13(b). Facts show extensive abuse of M by F, some abuse of minor children to a much lesser extent, generally rowdyness of F (Fights, drinking, etc). Court conisders and rejects M's argument that the Irish legal system will not/cannot protect her. Court finds that undertakings are of significant value, orders children returned with undertakings by both parents. Principle purpose of Convention is to return children to their Habitual Residence for hearings on the merits. Cites Air France v. Saks as to use of foreign decisions.

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In re the Application of John Walsh (D.Mass. 1999)

File Name: Walsh2_fed.txt

File Date: 11 Jun 1999

Massachuisetts and Ireland. Application of the "fugitive disentitlement" doctrine. This case analyzes Prevot v. Prevot and finds that, notwithstanding Prevot, the doctrine does not apply because a) the fugitive status must have some connection to the proceeding; b) the fugitive must have been convicted of a crime (Walsh was only indicted) c) no active extradition (Walsh was in Ireland).

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Walton v Walton - S.D. Mississippi

File Name: Walton_fed_dist.txt

File Date: 15 May 1996

Australia and Mississippi. Comprehensive discussion of "Habitual Residence", effect of voluntariness, coercion, etc. Distinguish's Ponath. Makes a distinction between permanent and temporary stay. Finds settled purpose. Cites the Perez-Vera Report. Finds right of custody under Australian law. Approves an undertaking (stipulation) on part of requesting parent.

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Wanninger v Wanniger - D.Mass 1944

File Name: WANNIGR.FED

File Date: 16 Apr 94

MA and FRG. Wrongful Retention. Acquiescence not found. This case distinguishes Re A and another (minors) (abduction: acquiescence) [1992] 1 All ER 929, CA. INREA2.UK.on the BBS. States that principal purpose of The Convention is to ensure the prompt return of children to their Habitual Residence.

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War, Persian Gulf, Effect of Temporary Placement of Child

File Name: CUSTODY.WAR

File Date: 10 Feb 91

Opinion letter to California Family Law Reports as to the effect of the placing of a child by a custodial parent with a third party, e.g., a grandparent, friend, other.

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Ward, In re Marriage of (CA 1992)

File Name: WARD.CA

File Date: 10 Feb 92

Cites of CA and other states' law for the proposition that an attorney who is acting in pro bono is entitled to attorney fees at the "prevailing rate" of that area. The fact that the client gets "free" legal services is not relevant.

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Wardship in the UK as applied to the Hague Convention

File Name: WARDSHIP.UK

File Date: 30 Nov 93

An article from the Lord Chancellor's Dept, Child Abduction Unit that describes "Wardship Proceedings" in the UK and how the effect an application under The Hague Convention.

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Warner v Richardson (EDNC 2000)

File Name: Warner_fed_dist.txt

File Date: 12 May 2000

UK and NC. Issue of whether or not an Art. 15 request would be heard in the NC Court or the Federal District Court. Matter removed from the NC Court then remanded back to the NC Court by the Federal District Court, holding that since the issue was one of the determination of state law then it would be proper to have the NC Court make that determination. Federal District Court rules that they have no jurisdiction to hear this matter.

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Watkins vs. Watkins (FRG 2001)

File Name: Watkins_FRG.txt

File Date: 25 Jan 2001

FRG and Israel. Issue of Habitual Residence (H/R) where child had previously lived in the FRG for one year and then Israel for four months, H/R found to be in Israel since that was the focus of the family. Art. 13(b) and zone of war argument tried, denied. Specific enforcement language. Attorney Fees mentioned. Unilateral decision by one party is not proper. Comment by Wm. M. Hilton.

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Kaplan-White v White (A.D. 2 Dept 1995)

File Name: White_NY.txt

UK, New York, Nevada. UK the Habitual Residence, M takes child to NY for "visit", absconds to NV where there is a 5 month "reconciliation". M then absconds to NY. NV issues ex parte orders causing the child to be returned to NV and thence to the UK. Custody to be heard in Habitual Residence, NY will not take jurisdiction. WMH Notes.

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Wipranik v Wipranik (Cal.App. 2 Dist 2 Div 1998)

File Name: Wipranik_CA.txt

File Date: 03 Apr 1998

California (CA) and Israel. Issues of proper notice, use of affidavits for testimony, minor discussion of Habitual Residence, very minor discussion of Art. 13(b).

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Wojcik, Application of v Wojcik (E.D.Mich. 1997)

File Name: Wojcik_fed_dist.txt

File Date: 11 Feb 1997

Michigan and France. Issue of Art. 12 and settled into the environment. Court finds that "ordinary" contacts with the new forum, coupled with delay in bringing the action and other equitable issues, make a child settled into the new forum, weighs these against the H/R contacts. Court determines that an action is commenced in the U.S. when the matter is filed in the State or Federal court, not when the application is made to the Central Authority. Footnotes by Wm. M. Hilton

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Wolfe and Wolfe, Dist. Ct. of Wellington, New Zealand

File Name: WOLFE.NZ

File Date: 16 Feb 93

New Zealand and Texas. Child removed from TX and taken to New Zealand. Discusses Rights of Custody (good discussion), finds that rights under an access order can be a rights of custody, defines where a child may live. Goes into acquiesence and finds that the behavior of the parties is controlling. Goes over Art. 13(b) and specific allegations of sexual misconduct, etc. Not allowed, says that burden is on party bringing the allegations, high burden.

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Wright v Gueriel, Tribual de Grand Instance, Abbeville, France

File Name: Wright_france.txt

File Date: 06 Oct 93

France and New York. Art. 13(b) defense successfully raised based on abuse of the mother rather than the children. Discussion of the level of the abuse and possible death of the children due to instability of Father.

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Zajaczkowski v Zajaczkowska - Fed Ct MD

File Name:Zajaczkowski_fed_dist_np.txt

File Date: 26 Jul 1996

Maryland and Poland. Ruling by the Federal District court that the matter should be put on a fast track, that it should be heard in summary fashion and therefore Federal Habeas Corpus should be used. Custody not to be considered by the court. Purpose. ORDER TO SHOW CAUSE for the Habeas Corpus included.

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Zenel v. Haddow (Scotland 1993)

File Name: Zenel_UK.txt

File Date: 20 Jul 1993

Scotland and Australia. Shift in Habitual Residence from Scotland to Australia found due to passage of time (15 months) and interaction, e.g., new kitchen in house, hunting for larger quarters, etc. Consent found because of an agreement made 15 months prior that permitted the mother to travel to Australia from Scotland with the understanding that if the reconciliation did not work out the child could return to Scotland. The court in Scotland finds that the agreement was consent within the meaning of Art. 13(a) of The Convention. Consent Acquiescence

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Zimmermann and Zimmerman -- Dallas County, Texas.

File Name: Zimmerman_texas.txt

File Date: 18 Oct 1991

Wrongful removal from England to Texas. Article 13(b) raised by mother. Court finds that there might be substantial harm to return the children to the father but orders the children returned to the UK under the care of the mother, to report in to the CA in UK. Fees of $19K awarded to father with interest. Use of Safe Harbor technique.

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Zuker v Andrews (D. Mass. 1998)

File Name: Zuker_fed_dist.txt

File Date: 10 Apr 1998

Arentina and Massachusetts. Discussion of Habitual Residence and how it shifts, selection of the date of wrongful retention and factors to be considred in a "well settled" argument. While the discussion of the selection of the date and the "well settled" factors are soundly made, the finding of the court that MA had become the Habitual Residence is questionable.

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Ben Said vs Lebouef [France 2002]

File Name: BenSaid_France.txt

File Date: 19 Jul 2002

France and Israel. Father (F) argues that the decision of a religious court as to custody is not valid. Court finds joint rights of custody under Israeli law. The fact that the Cs are in a boarding school does not mean that the placing parent no longer exercises rights of custody. F claims Art. 13(b) exception due, Zone of War. Mother argues that all had moved to Israel with full knowledge of the conditions in Israel. Israel has always been tense. Court is aware of the randomness of suicide attacks, but risk must be strictly assessed. The specific area of Israel has not been subject to attacks. Infrastructure working. Cs must be especially and personally exposed to physical danger. Children returned to Israel.

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Canetti vs Thorpe (Italy 1999)

File Name: Canetti1_Italy.txt

File Date: 31 Mar 1999

Italy and the UK. Art. 15 request made by the UK court to the Italian court. Italian court grants the Art. 15 request and then provides a through analysis as to the rights of custody of the unmarried parents, setting out the relevant factors, finds that there is no wrongful retention in the UK. Matter affirmed on appeal. See Milan Court of Appeals Canetti vs Thorpe (Italy 1999), No 2

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Canetti vs Thorpe (Italy 1999) (Court of Appeals)

File Name: Canetti2_Italy.txt

File Date: 20 Jul 1999

Italy and UK. Art. 15 request made by the UK to the Italian Juvenile Court which finds that there was no wrongful retention in the UK. Appeal taken and denied. Discussion of rights of unmarried parents in Italy. See Canetti vs Thorpe, No. 1.

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Concedda vs Caviglia

File Name: Concedda_Italy.txt

File Date: 19 Jul 2002

Italy and Minnesota. Application of Art. 12 well settled not allowed due to concealment of the child and efforts by other parent to locate, application would not be equitable. Age and maturity argument of 9 1/2 year old not allowed. (clearly not) Art 13(b) raised based on trauma associated with relocation, i.e., returning the C to Italy, argument rejected. A well reasoned opinion on the purpose of the Convention. Courts in the US and Italy have equal dignity.

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Danaipour v. McLarey (1st Cir 2002)

File Name: Danaipour_app_fed.txt

File Date: 12 Apr 2002

Massachusetts and Sweden. Application of Art. 13(b). Court holds that the Hague Court has a duty to determine grave risk.

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Dorfman v Dorfman (Italy 2002)

File Name: Dorfman_Italy.txt

File Date: 18 Mar 2002

Italy and Vermont. Notice of the hearing date to the lawyer is sufficient. Cannot require drug testing on mere allegations of the opposing party. Children, eight and six, are too young to question. Father has and exercised his rights of custody. Art. 13(b) invoked by Mother. Suffering of the children is due to ordinary breakdown of the marriage, does not rise to Art. 13(b) level. Third child born while the Mother was in Italy, does not fall under The Convention since he was born in Italy. Two older children returned to Vermont. In Utero. Pregnant.

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DS vs VW

File Name: DS-VS-VW_Canada.txt

File Date: 02 May 1996

Quebec and Maryland

Even though the parties admitted that the Act was applicable to the proceedings, the courts are not bound by that admission. The parties cannot attribute jurisdiction to a court that it does not have.

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United States v Fazal [US 2002]

File Name: Fazal_fed_dist.txt

File Date: 13 Feb 2002

US and India. Application of 18 USC 1204 based on abduction of children from the US to India. IPKCA does not preclude criminal prosecutions of a parent but simply encourages a civil remedy under the Hague Convention. Since India is not a signatory, an international civil remedy is not available, and criminal prosecution is an effective recourse to deter child kidnapping. Affirmative defenses under the UCCJEA and The Convention, denied.

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Restitution of Children (Maturity) [FRG 1999]

File Name: 17DEC99FRGPAS.txt

File Date: 17 Dec 1999

FRG and the UK. Issue of consideration of the wishes of minor children. Court holds that a 9 year old does not possess the required maturity to decide over his or her future education, while a 7 year old child is generally capable between joining the judo club or the soccer club. The court then holds that children in that age range are capable of deciding which parent they will live with. Alienation.

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Dennis v Gerlinde (FRG 1996)

File Name: 09OCT96FRGPAS.txt

File Date: 09 Oct 1996

FRG and France. Court of first instance orders return, M conceals the child for 2 1/2 years with the maternal grand mother. During this period the child, now nine, is alienated from the F and objects to being with him. FRG court rules that there is sufficient age and maturity and gives significant weight to the child's wishes. Court also finds under Art. 13(b) that child would suffer greatly if separated from the M who refuses to leave the FRG to take part in litigation in France. Alienation

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In re the Minority of Child (FRG 1999)

File Name: 15NOV99FRGPAS.txt

File Date: 15 Nov 1999

FRG and UK. Return denied under Art. 13(b) due to the strong attraction of the child to the mother and the "danger" to the child if the child is separated from the mother. M refuses to return to the UK. Issue of alienation.

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Genish v Director-General (Australia 2002)

File Name: Genish_Australia.txt

File Date: 27 May 2002

Australia and Israel. Issue of application of "Zone of War" variation on the Art. 13(b) defense. Two children ages 9 and 5. Usual defenses against return argued by the mother: H/R, Rights of Custody, Exercise of rights of custody, consent, acquiescence, etc. All denied. Case turns on an Art. 13(b) under the "Zone of War" variation. Court analyzes the requirements for the finding of an Art. 13(b) defense. Court uses DFAT travel advice to establish clear and compelling evidence of a grave risk that return of the children to Israel would expose them to harm under the "Zone of War" variation.

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"S" (A Child)

File Name: INRES5_UK.txt

File Date: 03 Jul 2002

UK and Israel. This case througly construes Art. 13(b) and the "Zone of War" exception. A parent cannot rely on its own wrongdoing to justify the child's non-return. One must apply a stringent test. The current situation in Israel (Jul 2002) does not rise to grave risk of harm. This is an International Treaty obligation which we must honour, respecting the predominant objective of the prompt return of children for their future to be decided by the courts of their habitual residence. Undue delay defeats that purpose. In considering an appeal the prospects of success will be considered. Expierence of counsel and the court of first instance will be considered.

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K.G. v. C.L.G.

File Name: KGVCLG_Canada.txt

File Date: 29 Apr 2002

Saskatchewan and Montana, native American. Request to a) enforce MT tribal court order of b) return under the Convention. Application of The Convention to native Americans. Effect of reconciliation on Right of custody. Presumption of equal dignity of courts. An application under the Hague Convention is not a determination as to what may be the appropriate custodial or parenting arrangement. It is a question of which jurisdiction ought to determine such issues. A party cannot create the circumstances that would allow Art. 13(b). Cs to be returned to MT, let MT an dthe Tribal Court sort out who should have CCSMJ in this case. Fees not awarded

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Director General vs Prokop [Australia 2002]

File Name: Prokop_Australia.txt

File Date: 22 May 2002

Australia and Zimbabwe. Issues of Diplomatic Immunity raised under Art. 13(b): Since no court would be available in Zimbabwe due to the diplomatic immunity, there would be an intolerable situation. Waiver of immunity discussed. Failure to provide a court in the country of Habitual Residence is an Art. 13(b) defense. Comment by Wm. M. Hilton.

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Silverman v Silverman [USA 2002]

File Name: Silverman3_fed_dist.txt

File Date: 08 May 2002

Minnesota and Israel. Issues of Habitual Residence (H/R), Zone of War, domestic violence and desires of 10 year old raised. Primary purpose of Hague is to restore the status quo, deter forum shopping. Need mutual intent to change H/R and must each abandon original H/R in order for the H/R to shift. H/R did not change despite 11 months in Israel. Finds that Israel is a Zone of War. Suicide Bombers. Degree of settlement of the child used to bolster Art. 13(b) defense. Court takes judicial notice of events in Israel via newspapers, Dept. of State information.

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Abargil and Abargil

File Name: Abargil_CA.txt

File Date: 12 Mar 2003

Use of parole visa (M has a 10 year re-entry bar with the US). Discuss effect of out of imigratiion status. Finds that Israel per se is not a Zone of War and that there are sections of Israel that are relatively safe. Cites to world wide danger. Requires registration of decree in Israel and that CA maintain jurisdiction exclusively. Follows Condon.

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Bucher, Andreas, Comment on Swiss decision

File Name: Bucher_Swz.txt

File Date: 13 Sep 2001

Comment by Prof Andreas Bucher in opposition to the Swiss Court's ruling denying the enforcement of decision to return [the child]and that the Hague Convention is not applicable in the enforcement phase and the best interests of the child take precedence.

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Holder and Holder (9th Cir 2002)

File Name: Holder_dca.txt

File Date: 02 Sep 2002

WA, CA and Germany. Reverse court of first instance for abstaining. Should have been promptly heard by the Federal District Court. The Convention is but one means of causing return of a child. Raising an issue of child custody in the court of first instance prior to brining an actiion under The Convention has no preclusive effect.

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Director General v Patel

File Name: Patel_Australia.txt

File Date: 14 Jan 2003

Australia and New Jersey. Art. 13(b) invoked on behalf of mother based on her threats of suicide if she were to go to the USA Grave Risk

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Name of Case Nadarajan M. v. Sandra W.

File Name: Nadarajan_CA.txt

File Date: 20 Nov 2002

California and South Africa (SA). Issue of effect of ne exeat order coupled with access rights. Declaration as to local law by the Central Authority however, does not carry the force of law. Despite statute prohibiting removal of a child unilaterally, substantial evidence supports the finding that Father had no guardianship or custodial rights when the child was removed to California. Discusses but does not apply Croll.