Tag: Hague Abduction Convention

International Custody and Brazil

Posted by Ron Kauffman on October 5, 2025

After a mother wrongfully retains a child in Brazil, the father in New Jersey files a Hague Abduction Convention petition in Brazil, and an international custody case under the UCCJEA in Pennsylvania. But is New Jersey the home state if the child has never been there? An appellate court answers that question.

Brazil UCCJEA Hague

A Thrill in Brazil

The child, G.O. was born in September 2020, and lived with his parents in Pennsylvania until April 2021. Then, just before G.O. turned six months old, the parents took their child to Brazil in May 2021 for a one month vacation to see the Mother’s family.

The Father returned to the U.S, but the Mother refused to return with the child, and remained in Brazil with G.O. In July 2021, the Father filed an Emergency Petition to return G.O. from Brazil in Philadelphia. The Mother argued that she had filed for custody in Brazil.

In January 2022, the Mother filed an Emergency Petition for Custody in Pennsylvania, where they used to live, but the Father had moved to New Jersey, and had been residing there for over four months. The Pennsylvania court ruled in December 2024 that Pennsylvania no longer had exclusive, continuing jurisdiction under the UCCJEA to consider custody. The Father appealed.

Florida International Custody

I’ve written and spoken about international child custody cases under the Hague Convention and the UCCJEA before. The Hague Convention seeks to deter abducting parent by eliminating their primary motivation for doing so: to “deprive the abduction parent’s actions of any practical or juridical consequences.”

When a child under 16 who was habitually residing in one signatory country is wrongfully removed to, or retained in, another signatory country, the Hague Convention provides that the other country: “order the return of the child forthwith” and “shall not decide on the merits of rights of custody.”

The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

Florida and almost all U.S. states passed the UCCJEA into law. The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child.

Another important aspect of the UCCJEA is the concept of continuing exclusive jurisdiction. Under the UCCJEA, the state originally making a custody determination retains exclusive continuing jurisdiction until it determines that the child, the child’s parents, and any person acting as a parent no longer have a significant connection with the state, or until any state determines that the child, the child’s parents, and any person acting as a parent no longer reside in the decree-granting state.

Fulfilled in Brazil

On appeal, the Father argued the trial court erred when it divested itself of jurisdiction without properly considering its own prior orders affirming jurisdiction, and by disregarding the Brazilian court’s Hague Convention ruling, which determined that the U.S. is the habitual residence and the Mother’s retention in Brazil unlawful.

The purpose of the UCCJEA, the appellate court noted, is to avoid jurisdictional competition, promote cooperation between courts, deter child abductions and facilitate the enforcement of custody orders of other states.

Jurisdiction under the UCCJEA is based on the home state of the child, where the child lived with a parent for at least six consecutive months immediately before the commencement of a child custody case. When a child is six months of age or younger, home state means the state in which the child lived from birth with a parent.

Here, having found the Pennsylvania court was the home state and properly had jurisdiction, the question became did Pennsylvania lose exclusive continuing jurisdiction when the Mother, child and Father had all left the state.

However, the family court incorrectly held that Brazil had not determined a court of the United States would be the more appropriate forum. In fact, the Brazilian found that the U.S. courts were the more appropriate forum for deciding custody than Brazil.

Additionally, even if Brazil had home state jurisdiction to decide custody, under the Hague Convention, the courts in Brazil are not permitted to decide on the merits of rights of custody until it has been determined that the child should not be returned under the Convention.

Finally, if Pennsylvania had allowed the Mother to wrongfully retain G.O. in Brazil to create exclusive jurisdiction, the appellate court reasoned it would be rewarding the Mother for forum shopping and unjustified behavior.

The opinion is here.

International Custody, Hague Convention, and the Settled Defense

Posted by Ron Kauffman on August 4, 2025

In a recent international custody case for return under the Hague Convention, a mother asserts a defense her son is settled in the U.S. and shouldn’t be returned. But his grades are bad, he misses school, and his connections to his stepfather’s family come at the expense of his longer relationship with family in Brazil. After the trial court orders him returned to Brazil, will the appellate court reverse?

Hague Now Settled

Boa Sorte

Both parents, and the child A.R., are all citizens and natives of Brazil. The parents were married in 2011, and lived in Belo Horizonte, Brazil (meaning “beautiful horizon” and pictured above). In 2016 they separated, and finally divorced in 2021. The parents shared custody of A.R., but A.R. lived with the mother. The mother then began a relationship with a man who immigrated to the United States.

The father signed a passport application that included a travel authorization permitting A.R. to travel outside of Brazil. The mother and A.R. then flew to Mexico, where they crossed the Mexico-United States border in 2022. She then applied for asylum.

Upon discovering the abduction, the father filed a petition to return A.R. to Brazil. The trial court in the U.S. found the father had met his prima facie burden to show A.R. was wrongfully removed from Brazil. Then, it rejected all the affirmative defenses the mother raised about consent, the now settled defense and the grave risk of harm. The Mother appealed.

Florida and the Hague Convention

I have spoken and written about the Hague Abduction Convention and international child custody issues before. The Hague Abduction Convention establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained.

The International Child Abduction Remedies Act is the statute in the United States that implements the Hague Abduction Convention. Under the Act, a person may petition a court authorized to exercise jurisdiction in the country where a child is located for the return of the child to his or her habitual residence in another signatory country, so the underlying child custody dispute can be determined in the proper jurisdiction.

The Hague Convention applies only in jurisdictions that have signed the convention, and its reach is limited to children under 16 years of age. Essentially, The Hague Convention helps families more quickly revert back to the “status quo” child custody arrangement before the wrongful child abduction. The Hague Convention exists to protect children from international abductions by requiring the prompt return to their habitual residence.

But there are defenses too. If return proceedings have been commenced after the expiration of a period of one year, courts can order the return of a child to their habitual residence, unless it is demonstrated that the child is now settled in its new environment.

Não Me Deixe Só

In rejecting the settled defense at the trial level, and ordering the child returned to Brazil, the district court analyzed several factors: age, stability and duration of the residence; whether the child consistently attended school; friends and relatives; involvement in the community and in extracurricular activities; employment and financial stability; and immigration status.

But on appeal, the circuit court found A.R. had lived in the same community for nearly three years, a significant amount of time for a school-age child. Also, his mother has steady employment and income. Those facts, standing alone, weigh heavily in favor of finding A.R. to be “now settled.”

A.R., it was also found, benefitted from a supportive extended family. He had a step-aunt and step-uncle who lived nearby and saw him twice a month. Despite A.R.’s poor grades and disruptive behavior, he arrived from Brazil unable to read or write in Portuguese, let alone in English, and was “meeting expectations of the classroom.”

The circuit court also found that A.R. attended church twice a month, participated in a youth group, had several friends of Brazilian descent, and importantly, played on a Massachusetts soccer team twice a week.

The circuit court remanded for the district court to decide whether, in the exercise of equitable discretion, returning A.R. to Brazil is warranted despite the appellate court finding that his status was “now settled.”

The case is here.

Travel Restrictions to Hague Convention Countries

Posted by Ron Kauffman on April 2, 2025

A recurring international custody problem is should a court place travel restrictions on parents who want to travel internationally to only travel to Hague Convention countries with the children? A married couple from China finds out the extent to which a family court can place such travel restrictions.

Travel Restrictions

China Visit

Zhenzhen Wang (the Wife) and Shengyi Ye (the Husband) were married in Iowa in 2008. They share two children—a son and a daughter. In 2019, Shengyi took a job as a professor in China, while Zhenzhen and the children remained in Iowa.

In 2022, the wife and children visited the husband in China. One day while driving in the car, the parents started fighting, which resulted in the husband abandoning the wife and the children on the side of the road. She took a taxi back to his apartment, where she discovered he had removed the children’s passports, travel documents, and birth certificates from her backpack.

Although he at first denied taking the documents, he later refused to give them back, preventing her and the children from leaving the country. It ultimately took Zhenzhen “six or seven months” to reorder all of the travel documents and return to Iowa.

When the wife and children returned home to Iowa, she petitioned to dissolve the marriage. Shengyi then filed a competing lawsuit in China, which was ultimately dismissed.

The Iowa court awarded her sole legal custody of the children. After considering his prior conduct preventing the children from returning to home to the U.S., and that China may not enforce a United States custodial order, the court required that the father have visitation with the children only in the U.S.

The court also provided him up to ten consecutive weeks of visitation with the children over the summer, and up to four weeks at a time should he travel to the United States during the school year. The husband appealed, arguing that he should be able to take the children to China for visitation.

Florida and the Hague Convention

I often speak and write about the Hague Abduction Convention and international child custody issues. The International Child Abduction Remedies Act is the statute in the United States that implements the Hague Abduction Convention.

Under the Act, a person may petition a court authorized to exercise jurisdiction in the country where a child is located for the return of the child to his or her habitual residence in another signatory country, so the underlying child custody dispute can be determined in the proper jurisdiction.

But it is important to know that the Convention applies as between contracting states only to wrongful removals or retentions occurring after its entry into force in those states. The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession.

In plain language, the Convention enters into force between an acceding State and a member Contracting State only when the Contracting State accepts the acceding State’s accession to the Convention.

Appellate Decision

The appellate court noted that limiting a parent’s ability to travel internationally with his or her children implicates heightened, and at times conflicting, interests. On the one hand, despite the virtues of our state, the court noted:

“[t]he world does not end at the borders of Iowa.”

Children should not easily be denied the opportunity to build meaningful relationships with a parent who resides outside of the United States or fully experience their dual heritage. On the other hand, there may be problems securing the return from a foreign country of a child to a custodial parent in the United States.

The danger of retention of a child in a country where retrieving the child is difficult, if not impossible, is a major factor for a court to weigh. Courts also consider other factors, such as the parent’s domicile, the reasons for visiting, the children’s safety, the age of the children, the parents’ relationship, the viability of bonds or other return measures, and the character and integrity of the parent seeking out-of-country visitation as gleaned from past comments and conduct.

The Iowa Court of Appeals ultimately affirmed. The appeals court noted that China is not a party to the Hague Convention, so the mother would have no recourse should the husband refuse to return the children to the United States.

The Court of Appeals of Iowa decision is here.

Hague Abduction Convention and Force Majeure Clause

Posted by Ron Kauffman on March 25, 2025

Under the Hague Child Convention does a force majeure clause in a marital settlement agreement hold any weight? The question is a frequent international custody issue which arises after parents enter into an agreement allowing their children to travel internationally. In one recent case, two Israeli parents agreed to their children visiting the United States for 60-days with some exceptions.

Force Majeure

Parents at War

The parties in the Hague case are the parents of two children who were both born and raised in Israel. The family members are all Israeli citizens too, but the Mother was also a U.S. citizen. The parties divorced in 2019 in Israel. After the divorce, the Israeli family court awarded the Father with visitation rights, and ordered him to pay child support.

The Mother argued the Father never exercised his rights of custody. However, the Mother would also travel internationally alone, and leave the children with their Father and his new wife. The Father was found to have exercised his visitation rights with the children.

In January 2023, the Mother filed an action in Israel to collect back child-support from the Father. The parents reached an agreement in the Israeli family court in which they stopped collection proceedings, and in return, the Father agreed to let the Mother travel abroad with their two children under certain conditions.

The Mother was allowed to travel internationally with the Children for 60 days. She could extend the 60-day period either by agreement with the Father, and/or limitations unrelated to the Mother’s own actions, such as strikes, COVID-related restrictions, etc.

Then Israel was brutally attacked on October 7, 2023. A month later, the Mother flew with the Children, and her two twins from another relationship, to Florida. The Father agreed to the trip, but then objected after the Mother told him that she planned to keep the Children in Florida until at least January 23, 2024 – 76 days after leaving Israel – and possibly longer if the war persisted.

By April 2024, the Mother had still not returned the Children. Then she dropped the bomb on the Father: she had “discovered that we have peace of mind and a calm life here” and told him that the children didn’t want to return to Israel.

The Father was trapped. He was not allowed to travel to the U.S., and was restricted from holding a passport, due to his owing child-support. The Father then filed a petition for return of the children to Israel under the Hague Convention in a Florida federal court.

At the time of trial from January to February 2025, the parties disagreed as to whether the conditions in Israel, and in particular, whether the cities where each of them lived were safe to return to and an exception to return under their agreement.

Florida Hague Convention

I often speak and write about the Hague Abduction Convention and international child custody issues. In fact, I successfully represented the Father in this Israeli case. What do you do if your children are wrongfully abducted or retained internationally?

The Hague Abduction Convention establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained.

The Hague Convention exists to protect children from international abductions by requiring the prompt return to their habitual residence. But there are defenses too. In the Israeli case, one defense asserted involved an agreement containing a force majeure clause. Essentially, the court was not bound to order the return of the children if the Mother demonstrated by a preponderance of the evidence that the Father gave prior consent to the retention or subsequently acquiesced in their retention.

The argument was central to the case because the Mother relied on language in the agreed child support order that allowed her to travel abroad with the children for up to 60 days unless there was some limitation unrelated to the Mother’s own actions, “e.g., strikes, COVID-related restrictions, etc.”

Force Majeure?

At trial, the Mother argued that, even if the Father had a right of custody under Israeli law, the conditions in Israel following the October 7, 2023 attack qualify as a limitation unrelated to Respondent under the language of the Agreement, which would permit her to keep the Children in Florida beyond 60 days.

The district court disagreed. “The term ‘limitation’ in the Agreement does not encompass the Mother’s personal judgment or view that returning the Children to Israel is unsafe.” In looking at the parties’ agreement, the district court concluded that, based on its customary and normal meaning, “[t]he agreement itself illustrates this definition [of limitation], citing examples such as ‘strikes’ and ‘COVID-19-related restrictions’ – situations that physically restrict Respondent’s ability to return the Children.”

The district court found that a qualifying limitation under the Agreement is one that impedes or prevents the Mother from returning the Children, not one that merely makes return undesirable according to the Mother.

The case is analyzed at MKFL International Family Law here.