by Jeremy D. Morley
www.international-divorce.com

I argued a case this morning before the U.S. Court of Appeals for the Second Circuit on the issue of determining the correct date of the alleged wrongful retention of children in a case brought under the Hague Abduction Convention.

The first step in a Hague Abduction Convention case is usually to fix the date on which the alleged wrongful removal or retention took place. The critical issue of determining the child's habitual residence cannot be determined without first deciding the relevant date. Article 3 of the Convention directs courts to only one point in time: the time “immediately before the removal or retention.” Similarly, Article 12 of the Convention provides that a wrongfully removed or retained child who is now settled in its new environment need not be returned if a period of more than one year has elapsed “from the date of the wrongful removal or retention.” 

In a wrongful taking case there is little or no question about the date of the event since it occurs on the date that the child is removed from the country in which the child was habitually residing. living. 

But determining the date of a wrongful retention is more difficult. It can often be unclear exactly when a wrongful retention occurred, because, for example, the parents might have agreed to a temporary trip away from the place where the child has been living but the subsequent date when that is converted into a retention is often unclear. Complications can often arise because retaining parents may conceal their true intentions or lie about them. In many cases, temporary vacations overseas become permanent relocations, either because the taking parent tricks the other parent or because during a vacation the taking parent has a change of mind. 

In such cases, courts must decide whether the wrongful act occurred on:
•    The date that the child should have been returned, such as the date that a planned vacation was scheduled to end or the date on the airline return tickets; or 
•    The date that the retaining parent subjectively decided to not return the child; or
•    The date that the retaining parent communicated the intention to not return the child; or 
•    The date that the left-behind parent understood, or should have understood, that the other parent was not intending to return the child; or
•    The earliest or the latest of any such event.

A particular issue arises when, prior to the date of the child's required return, a parent announces in advance a refusal to return the child on that future time or at any future time. There is substantial authority in support of the proposition that it is the date of a pre-return date refusal that is the date of the wrongful retention. 

There is some older U.S. authority for the proposition that even a clearly articulated decision in advance of an agreed return date not to return the child does not constitute the date of a wrongful retention. In Toren v. Toren, 191 F.3d 23 (1st Cir. 1999), the parents had agreed that their children would spend a fixed amount of time in the United States before returning home to Israel. The mother filed for divorce and custody of the children in Massachusetts before the scheduled return date. Did the one-year period commence on the date that the mother filed the demand for custody, or served the demand, or on the scheduled return date? The court held that the wrongful act did not occur until the scheduled return date, even in the face of clear evidence that the mother had made and communicated her decision not to return before that date. It ruled that, 

To the extent that the father's argument is based on the mother's future intent, the father is seeking a judicial remedy for an anticipatory violation of the Hague Convention. But the Hague Convention only provides a cause of action to petitioners who can establish actual retention. Therefore, we do not see how a petitioner like the father, alleging only an anticipatory retention, can invoke the protections of the Hague Convention.

Following Toren, a district court in the same circuit likewise held that the date of wrongful retention was the date the child was scheduled to return home, not when the father had earlier told the mother that he would not do so. Falk v. Sinclair, 2010 WL 723744 (D. Me. 2010).The court stated that the wisdom of this approach was illustrated by the specific facts of the case because, although the respondent had told the petitioner that he intended not to return the child on the appointed date, the petitioner credibly testified that she continued to expect that the respondent would indeed return the child on that date and, indeed, she had gone to the airport to meet the scheduled flight. Similarly, a district court in Florida held that the date of wrongful retention begins when the agreed date for return passes, not when the earlier notice of an intent is given. Chechel v. Brignol, 2010 WL 2510391 (M.D. Fla. 2010).

The Second Circuit has rejected the Toren approach. In Marks on Behalf of SM v. Hochhauser, 876 F.3d 416 (2d Cir. 2017) it upheld the lower court's determination that, when a mother took a child from Thailand for an agreed three-week trip to New York, the retention occurred when, after only two weeks in New York, the mother told the father that she would not return the child. Even though after two weeks she was still allowed to remain in New York with the child for another week without violating her promise to return on the ticketed departure date, the retention was wrongful from the date that she stated that she would not do so. 

In Lomanto v. Agbelusi, 2023 WL 4118124 (S.D.N.Y. June 22, 2023), aff'd 2024 WL 3342415 (2d Cir. July 9, 2024), a father initially consented to the children traveling from Spain to the United States to visit the mother's family and provided a letter authorizing the travel with no return date. The original plan was for the children to return to Spain with the children at the end of August. Although the exact date changed a few times, the final agreed-upon plan was for the children to return on August 28, 2021. But on August 24, 2021, the mother told one of the children that they would not return to Spain and would stay staying in New York City, where she had already enrolled the children in school. One child and then the mother told this to the father the same day. The father reported the to the police in Spain the next day that his children had been “kidnapped.” The district court held, and the Second Circuit affirmed, that the date of the wrongful retention was August 24, not August 28.  

The Seventh and the D.C. circuits have followed the Second Circuit. In Baz v. Patterson, 100 F.4th 854, 865 (7th Cir. 2024), the father brought his child from Germany to Illinois for agreed parenting time pursuant to a German consent order, but before the agreed return date he filed a case in Illinois for a temporary exclusive custody order in violation of the German order. The Seventh Circuit upheld the district court's ruling that the date of wrongful retention was the date when the father filed his Illinois case, since that was when the mother learned the true nature of the situation. 
 
In Abu-Haidar v. Sanin Vazquez, 945 F.3d 1208, 1218 (D.C. Cir. 2019). the D.C. Circuit Court stated that, “There is some intuitive logic to the notion that, when the parents agreed that the child would remain in a certain place until a specified date, no retention occurs before that date as long as the child remains there.” It then found that the “fundamental flaw with this theory” is that, by filing a case for custody in D.C. court and stating that she intended to remain in Washington with the children, she thereby rejected and sought to depart from the previous mutual arrangement. 

Similarly, the UK Supreme Court analyzed the issue with great care and accepted the concept that an announced refusal to return would constitute a wrongful retention, even though it preceded the scheduled return date. In the matter of C (Children) [2018] UKSC8. 

In the case argued this morning, my client won at the district court level, based in large part on the issue of the date of the alleged abduction. The Second Circuit will now decide whether to affirm that decision.