The trials and tribulations of implementing the Hague Convention on international child...

I. INTRODUCTION

The relative ease and affordability of travel and communication and the opening of the world's markets contribute to greater interaction between people from different countries.1 There is an increasing interconnectedness between communities, cultures, and countries across the

globe. As a result, family relationships that cross national borders are increasingly likely. The problems that confront many families, like divorce and child custody disputes, are further complicated when parents are from different countries. Resolution of child custody disputes may be dramatically different under the laws of each parent's country of origin. Parents may have different expectations about child custody. After the breakup of the relationship or marriage, one parent may expect to return to his or her country, making shared custody difficult.

Such complications increase the likelihood of international child abduction.2 International child abduction has a specific meaning in the context of private international law. It is defined as the "unilateral removal or retention of children by parents, guardians or close family members,"3 and is a distinctly different problem than kidnapping by a stranger.

In an attempt to address the problems caused by international child abduction, the Hague Conference on Private International Law (Conference) took up the issue in 1976.4 After several years of researching and studying the issues involved, the organization recognized that the tremendous variation among different countries in addressing custody issues made creating a uniform standard through a convention very difficult.5 The Conference was able to build a consensus for a treaty, however, that would provide for the summary return of an abducted child without an adjudication on the merits, while creating limited exceptions to protect the best interests of the child.6 The final text of the Hague Convention on the Civil Aspects of International Child Abduction (Convention)7 was completed in 1980.8 At that time, four states signed the Convention.9 As of this writing, the Convention has some thirty-seven ratifications and forty-two accessions.10

This Note identifies specific successes and failures of the Convention. Part II.A sets forth the structure and aims of the Convention. Part II.B explains the key concepts of the Convention and illustrates how the Convention has been applied by courts in the United States to disputes involving contracting states. Part III identifies the recurrent problems in satisfactorily resolving disputes under the Convention. Finally, Part IV concludes that in the absence of an international enforcement mechanism, ensuring faithful application of the Convention is difficult and makes a recommendation for addressing this problem. Officials from the executive and legislative branches can help pressure countries to correctly apply the Convention. For example, State Department officials can raise the issue through diplomatic channels and members of congress can advocate for constituents who are litigating claims under the Convention. In addition, members of the media can raise public awareness of the problem and can increase public pressure on countries by providing media coverage of cases in which the Convention is improperly applied.

II. DISCUSSION

The United States is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.11 The Convention was signed on behalf of the United States on December 23, 1981, and was submitted to the Senate for ratification by President Reagan on October 30, 1985.12 The United States ratified the Convention and enacted enabling legislation, entitled the International Child Abduction Remedies Act, in 1988.13 Part II.A, reviews the text of the Convention and sets out the structure and the goals of the Convention. Following, Part II.B, is an explanation of the key concepts of the Convention and an examination of the manner in which the Convention has been applied by the courts in the United States.

A. The Structure and Aims of the Convention

The Preamble of the Convention states "that the interests of children are of paramount importance in matters relating to their custody. . . ."14 The purpose of the Convention is "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access. . . ."15 Article 1 sets forth the goals of the Convention: "a) to secure the prompt return of children wrongfully removed or retained in any Contracting State; and b) to ensure that rights of custody and of access under the laws of one Contracting State are effectively respected in other Contracting States."16 The Convention applies to "any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights."17 It applies only to children under the age of sixteen.18 The Convention further provides that

removal or the retention of a child is to be considered wrongful where-

it is in breach of lights 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.19

This section reflects the Convention's overarching goal of returning children who have been wrongfully removed or retained, and demonstrates the Convention's underlying assumption that the courts in the jurisdiction of a child's habitual residence are those best situated to resolve any custody dispute involving the child.20 The Convention specifically cautions that "[a] decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue."21

Nevertheless, the Convention includes several exceptions that permit courts to deny a request to return a child despite a determination that the child was wrongfully removed or retained. Under Article 12 of the Convention, a request to return a child may be refused where the application for return is filed after one year has elapsed and "it is demonstrated that the child is now settled in its new environment."22 Article 13 permits a court to deny a return where the party opposing the return of a child

establishes that-

the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in a intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.23

Under the varied Article 13 exceptions, a court may refuse to order the return of a child where there is a failure to exercise custody rights, an acquiescence to the removal or retention, a grave risk of harm to the child if return is ordered, or if a mature child objects to the return.24 Further, Article 20 provides a catchall exception allowing a court to refuse a return "if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms."25

To best protect the interests of the child, the Convention requires prompt adjudication of claims and provides a mechanism for the Central Authority in the jurisdiction to inquire into any delay in resolving claims.26 Article 20 directs that

[t] he judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay.27

The Central Authority is to pass along any reply to the party inquiring about the delay.28 This expectation that claims are to be resolved within six weeks and the established procedure for both parties and contracting states to urge adherence to this expedited schedule helps to protect the interests of the child and the parents.

B. Key Concepts in the Convention

1. Habitual Residence

The "habitual residence" of the child is a key concept of the Convention. Many of the Convention's provisions revolve around a determination of the child's habitual residence. The main purpose of the Convention is to ensure that children who have been wrongfully removed or retained are promptly returned "to the State of their habitual residence."29 The definition of wrongful removal or retention depends on whether the action is in breach of custody rights being exercised "under the law of the State in which the child was habitually resident immediately before the removal or retention."30 In addition, the Convention only applies to a child "who was habitually resident in a Contracting State immediately before any breach of custody or access rights."31 Accordingly, the Court in Mohsen v. Mohsen,32 for example, dismissed a father's petition for return of his daughter, finding that the Convention did not apply because the child was a habitual resident of a non-contracting state immediately before the breach of custody rights.33 Interestingly, despite the important role that habitual residence plays in the Convention, this term is not defined in the Convention itself.

In Friedrich v. Friedrich,34 the Sixth Circuit noted that "[t]he Convention does not define 'habitual residence.'"35 Because there was little U.S. caselaw interpreting the Convention, the court looked for guidance to British caselaw interpreting this provision, reasoning that such caselaw "provide[s] the most complete analysis."36 In In re Bates,37 the British High Court of Justice determined "that there is no real distinction between ordinary residence and habitual residence."38 The High Court cautioned, however, that

[i]t is greatly to be hoped that the courts will resist the temptation to develop detailed and restrictive rules as to habitual residence, which might make it as technical a term of art as common law domicile. The facts and circumstances of each case should continue to be assessed without resort to presumptions or pre-suppositions.39

The court in Friedrich agreed with the British High Court in In re Bates that habitual residence was not the same as domicile and emphasized that "[t]o determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions."40 Mrs. Friedrich was a United States citizen and member of the military stationed in Germany.41 Mr. Friedrich was a German citizen and was employed on the same military base where Mrs. Friedrich was stationed.42 Their son, Thomas, was born in Germany and lived there with his parents until the events at issue.43 Mr. and Mrs. Friedrich had experienced difficulties over the course of their marriage, and ultimately Mr. Friedrich insisted that his wife and son leave the family apartment.44 Shortly thereafter, Mrs. Friedrich returned to the United States with Thomas without Mr. Friedrich's knowledge or consent.45 The lower court found that although the child "was a habitual resident of Germany" up until this particular argument, his habitual residence had been "'altered' from Germany to the United States when Mr. Friedrich forced Mrs. Friedrich and Thomas to leave the family apartment."46 The Sixth Circuit was sharply critical of the lower court's reasoning, stating that "[h]abitual residence cannot be so easily altered,"47 and explained that

Thomas's habitual residence in Germany is not predicated on the care or protection provided by his German father nor does it shift to the United States when his American mother assumes the role of primary caretaker. Thomas's habitual residence can be "altered" only by a change in geography and the passage of time, not by changes in parental affection and responsibility. The change in geography must occur before the questionable removal. . . . If we were to determine that by removing Thomas from his habitual residence without Mr. Friedrich's knowledge or consent Mrs. Friedrich "altered" Thomas's habitual residence, we would render the Convention meaningless. It would be an open invitation for all parents who abduct their children to characterize their wrongful removals as alterations of habitual residence.48

Other courts have adopted a similar interpretation of habitual residence. For example, in Rydder v. Rydder,49 the Eighth Circuit wrote "that there is no real distinction between habitual and ordinary residence," and cited both Friedrich v. Friedrich and the High Court with approval.50 In addition, in Feder v. Evans-Feder,51 the Third Circuit agreed with and adopted the reasoning in Friedrich, Rydder, and In re Bates.62 In Feder, Mr. and Mrs. Feder, both American citizens, met in Germany and their son Evan was born there.53 They returned to live in the United States for several years before moving to Australia.54 Although they were experiencing marital difficulties and Mrs. Feder was reluctant to move to Australia, ultimately she agreed to do so.55 In Australia, Mrs. Feder, an opera singer, accepted a role in an opera for the following year, enrolled Evan in part-time kindergarten, and oversaw renovations to their new home.56 After living in Australia for six months, Mrs. Feder decided to seek a divorce and returned with Evan to the United States; Mrs. Feder specifically hid her intentions from her husband and presented her trip as a vacation to visit her family.57 Mr. Feder returned to the United States on a business trip during Mrs. Feder's "vacation" and was served with divorce papers.58 Mr. Feder returned to Australia and filed a petition under the Convention, seeking a declaration that he, Mrs. Feder, and Evan were all habitual residents of Australia and that Mrs. Feder's removal of Evan was wrongful.59 At the same time, Mr. Feder filed a similar petition in U.S. District Court requesting Evan's return.60 The district court denied Mr. Feder's petition, finding that the United States was Evan's habitual residence.61 The lower court reasoned that "although 'Mr. Feder may have considered and even established Australia as his habitual residence [after living there for nine months], Mrs. Feder assuredly did not [because] she never developed a settled purpose to remain [there].'"62 The Third Circuit was sharply critical of the district court's reasoning and looked to the guidance of Friedrich, Rydder, and In re Bates in ascertaining the proper standard for determining habitual residence.63 The court concluded:

[W]e believe that a child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a "degree of settled purpose" from the child's perspective. We further believe that a determination of whether any particular place satisfies this standard must focus on the child and consist of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there.64

Applying this standard, the Third Circuit determined that Evan was a habitual resident of Australia.65 The court specifically criticized the district court for failing to properly consider the six months that Evan spent living and attending school in Australia immediately before his return to the United States, for placing too much emphasis on the fact that Evan had lived the majority of his life in the United States, and for ignoring the shared intentions of Mr. and Mrs. Feder immediately preceding the return.60

Sampson v. Sampson,67 a recent case from the Kansas Supreme Court, is in accord with this interpretation of habitual residence. In Sampson, the court summarized the legal standard for habitual residence by explaining:

Habitual residence is not a technical term like domicile; it should be understood as being the child's "ordinary residence" at the relevant time; in determining the child's habitual residence, the court should focus on the child, not the parents, and examine the past, not future intentions; and, for a particular residence to be considered habitual, there must be a degree of settled purpose.68

Establishing a habitual residence requires a degree of voluntariness.69 For example, in Ponath v. Ponath,70 a father sought the return of his son to Germany, claiming that the mother had wrongfully removed the child within the meaning of the Convention.71 The couple had gone to Germany on an extended vacation to visit Mr. Ponath's family; however, at the end of the planned vacation, Mr. Ponath prevented Mrs. Ponath from returning to the United States through verbal and physical abuse.72 After several months, Mr. Ponath told her that if she wanted to live without him as her husband and the father of her child, she could return to the United States, and she subsequently returned to the United States.73 In determining the habitual residence of their child, the court stated that it must "entail some element of voluntariness and purposeful design."74 The court held that "coerced residence is not habitual residence within the meaning of the Hague Convention," and concluded that the child's habitual residence was the United States and that this had not been altered by the extended visit.75

2. Wrongful Removal or Retention of a Child

The removal or retention of a child is considered wrongful within the meaning of the Convention when it is in breach of custody rights that were being exercised.76 The Convention recognizes that custody rights "may arise . . . by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State."77 The Convention defines custody rights as including "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence."78 In contrast, the Convention defines rights of access as including "the right to take a child for a limited period of time to a place other than the child's habitual residence."79 The court in Friedrich emphasized "that 'wrongful removal' is a legal term strictly defined in the Convention."80 The court explained as follows: "[i]t does not require an ad hoc determination or a balancing of the equities. Such action by a court would be contrary to the primary purpose of the Convention: to preserve the status quo and to deter parents from crossing international boundaries in search of a more sympathetic court."81

Applying that standard, the court rejected the lower court's determination that Mr. Friedrich had "terminated his actual exercise of his parent custody rights" when he kicked Mrs. Friedrich and their child out of the family apartment and accordingly remanded the case to the lower court to determine whether Mr. Friedrich "was exercising his custody rights at the time of [the child's] removal."82

Similarly, in Feder v. Evans-Feder,83 the Third Circuit explained that deciding a claim for wrongful removal required two separate inquiries: "whether the custody rights Mr. Feder enjoyed under Australian law were breached by the retention and whether Mr. Feder was exercising those rights at the time."84 Under the Convention recognized custody rights "may arise . . . by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State."85 The court consequently looked to Australian law and determined that "in the absence of any orders of court, each parent is a joint guardian and a joint custodian of the child, and guardianship and custody rights involve essentially the right to have and make decisions concerning daily care and control of the child."86 Because Mrs. Feder conceded that Mr. Feder was exercising his custody rights at the time she left Australia with their son, the court concluded that "Mrs. Feder's unilateral decision to retain Evan in the United States was wrongful within the meaning of Article 3 of the Convention."87 The court remanded the case for consideration of Mrs. Feder's affirmative defense that even if the removal was wrongful, return was not the appropriate remedy because Article 13 grants an exception where the return would create a "grave risk" of harm to the child.88 The court cautioned, however, that "the exceptions [in the Convention] are narrowly drawn, lest their application undermines the express purposes of the Convention."89 The purpose of the Convention is to protect children from wrongful removal or retention by facilitating their prompt return to their habitual residence where the courts can best resolve custody disputes and protect parental rights of custody and access.90

In Whallon v. Lynn,91 the First Circuit considered a father's petition for return of his daughter to Mexico.92 The father, Richard Charles Whallon, Jr., and the mother, Diana Lynn, were both American citizens living in Mexico.93 The unmarried couple separated shortly after their daughter, Micheli, was born, and the couple did not enter into a formal custody agreement.94 Micheli lived with her mother in Mexico, but Whallon saw Micheli almost every day and provided her with financial support.95 After several years, Lynn decided to return to the United States and Whallon filed suit to obtain permanent custody and to prevent Lynn from leaving Mexico with Micheli.96 Although the Mexican court ultimately denied his petition, Lynn had already returned to the United States with Micheli.97 Whallon then filed a petition under the Convention in federal court for Micheli's return to Mexico.98 The district court granted the petition, finding that although Lynn had physical custody over Micheli, Whallon had been exercising custody rights within the meaning of the Convention at the time of her removal, and the removal was therefore wrongful.99 The First Circuit agreed with the district court.100 The court looked to Mexican law to determine whether Whallon had rights of custody within the meaning of the Convention, noting that the remedy of return is only available for a breach of custody rights, not for a breach of rights of access.101 The court initially cautioned that the Convention's requirement that courts look to other states' laws required that "[c]are must be taken to avoid imposing American legal concepts onto another legal culture."102 The court found that although Mexican law contained a presumption for maternal custody of children under seven, the doctrine of patria potestas conferred substantial rights upon Whallon, which qualified as custody rights within the meaning of the Convention.103 Patria potestas is a broad doctrine of parental authority, recognized for parents to children born both within and outside of marriage, which "is exercised over the person and the property of the children subject to it. The purpose of its exercise is the comprehensive physical, mental, moral and social protection of the minor child, and it includes the obligation for [the child's] guardianship and education."104 The court concluded that although patria potestas is distinguishable from actual custody, it was stronger than mere access rights and "implie[d] a meaningful, decisionmaking role in the life and care of the child."105 Consequently, Micheli's removal from Mexico was wrongful.106

In Sampson v. Sampson107 the Kansas Supreme Court reviewed a lower court decision granting a father's petition for the return of his two children under the Convention.108 Mr. and Mrs. Sampson were American citizens who were married, had two children, and lived in Israel.109 After roughly seven years Mrs. Sampson moved back to the United States. The children continued to live in Israel with Mrs. Sampson's parents, but Mr. Sampson visited them regularly and provided their financial support.110 After a year Mrs. Sampson returned for a visit to Israel and took the children back to the United States without the knowledge or consent of Mr. Sampson or her parents.111 The divorce decree provided that Mr. Sampson was to retain custody of the children, but Mrs. Sampson argued that because the children were living with her parents Mr. Sampson was not actually exercising his custody rights at the time she removed the children from Israel.112

In assessing Mrs. Sampson's "failure to exercise" defense, the Kansas Supreme Court looked to Freier v. Freier.113 That case, according to the Sampson Court, held that "in the absence of a ruling from a court in the country of habitual residence [a court should] liberally find 'exercise' [of custody rights] whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child."114 The Sampson court followed Freier with approval, agreeing that "if a person has valid custody rights of a child under the law of the country of the child's habitual residence, that person cannot fail to 'exercise' those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child."115 The court further cautioned that

[o]nce it determines that the parent exercised custody rights in any manner, the court should stop-completely avoiding the question whether the parent exercised the custody rights well or badly. These matters go to the merits of the custody dispute and are, therefore, beyond the subject matter jurisdiction of the federal courts.116

3. Summary Return Mechanism

The Convention creates a strong presumption in favor of an order for return for a wrongful removal or retention. Under Article 12 of the Convention, a court is to order the return of a child who has been wrongfully removed or retained in that jurisdiction for less than one year.117 If more than one year has passed, then a court is still to order the return of the child, unless it is established that the child is "settled in its new environment."118 The U.S. legislation implementing the Convention explains that "[c]hildren who are wrongfully removed or retained within the meaning of the Convention are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies."119 In Whallon the First Circuit explained that "[t]he wrongful taking of a child from his or her country of habitual residence normally requires the child's return."120

The return remedy is not available for breach of rights of access.121 As the Second Circuit explained in Croll v. Croll122

an order of return is available as a remedy only for wrongful removals or retentions, and removals or retentions are wrongful only if they are "in breach of rights of custody." The Convention defines rights of custody as "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Rights of custody are distinguished from rights of access, which are defined in the Convention as "the right to take a child for a limited period of time to a place other than the child's habitual residence." The Convention provides recourse in the event a child is removed from an habitual residence in breach of access rights, but those remedies do not include an order of return to the place of habitual residence.123

One of the Convention's primary goals is "to secure the prompt return of children wrongfully removed to or retained in any contrading State."124 Generally, courts in the U.S. have affirmed this principle and have faithfully applied the summary return provision. For example, in Nunez-Escudero v. Tice-Menley125 the Eighth Circuit explained that through the summary return mechanism "the Convention prohibits a court from adjudicating the merits of an underlying custody dispute, and that the Convention's primary purpose is to restore the status quo and deter parents from crossing international borders in search of a more sympathetic court."126 Similarly, in another case, the same court emphasized that in considering a petition under the Convention, a court is not to consider the merits of the underlying case.127 The purpose of the Convention is "to restore the status quo ante," and it does not permit "a court applying the Convention to adjudicate the merits of any underlying custody claims."128 Article 19 explicitly states that "[a] decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue."129 The legislation implementing the Convention reiterates that the Convention and its enabling legislation "empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims."130

4. Exceptions to the Summary Return Remedy

Despite the strong presumption, there are exceptions to the remedy of return. Article 13 provides the following:

[n]otwithstanding the provisions of [Article 12 (establishing the presumption for summary return)], . . . the requested State is not bound to order the return of the child if [the person that] opposed the return establishes that

the person . . . having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in a intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.131

Article 20 provides a catchall exception that allows a court to refuse a return "if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms."132

In explaining the framework of the Convention, the Second Circuit in Blondin v. Debois133 remarked as follows:

[T]he federal statute implementing the Convention makes clear, these . . . exceptions are meant to be "narrow.'" . . . Were a court to give overly broad construction to its authority to grant exceptions under the Convention, it would frustrate a paramount purpose of that international agreement-namely, to "preserve the status quo and to deter parents from crossing international boundaries in search of a more sympathetic court."134

The exceptions established in Articles 13 and 20 for failure to exercise custody rights, consent or acquiescence to a wrongful removal or retention, grave risk to the child, objection by the child, and protection of fundamental rights and freedoms are available as affirmative defenses in response to a petition for return under the Convention.

a. Failure to Exercise, Consent, or Acquiesce

In considering a "failure to exercise" defense to a petition for return, in Sampson the Kansas Supreme Court determined that a court should "liberally find 'exercise' [of custody rights] whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child."135 The Sampson court accepted the reasoning of a Michigan court that a "person cannot fail to 'exercise' . . . custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child."136

Under the facts of a particular case, a court may conclude that a party has consented to the removal or retention. For instance, in Ponath v. Ponath,137 Mr. Ponath sought return of his son to Germany, claiming Mrs. Ponath had wrongfully removed the child.138 The couple had gone to Germany to visit his family and Mr. Ponath had prevented Mrs. Ponath, through verbal and physical abuse, from returning to the United States with their child.139 Mr. Ponath told her that if she wanted to live without him as her husband or father of their child then she could leave Germany.140 She subsequently returned to the United States with the child, and Mr. Ponath made no attempt to contact or visit the child for almost six months.141 Although the court ruled that Mr. Ponath's coercive tactics had not altered the child's habitual residence from the United States to Germany,142 the court found that the father had consented to Mrs. Ponath's return with the child and his "failure, for almost six moths, to make any meaningful effort to obtain return of the minor child" supported this determination.143

The Massachusetts District Court considered a defense of acquiescence in response to a petition for return under the Convention in Wanninger v. Wanninger.144 Mr. Wanninger was a German citizen who met his wife, a U.S. citizen, while studying in the United States.145 The couple married, lived, and had children in Germany where the children spent their entire lives.146 Mrs. Wanninger returned with the children to the United States to visit her family.147 She subsequently notified her husband of her decision not to return to Germany with the children.148 In defending against Mr. Wanninger's petition for the children's return to Germany, Mrs. Wanninger asserted that her husband had acquiesced to their return to the United States and that his claim was therefore barred.149 The court rejected her claim and concluded that Mr. Wanninger's consent to her return to the United States for a visit did not constitute acquiescence "to the children's permanent retention in the United States once he realized that his marriage was irreconcilable."150

In Teireiro Fernandez v. Yeager, the Michigan District Court ruled that a father's petition for return was prohibited under the Convention because he only had rights of access, which do not provide for this remedy.151 The court based the denial on the alternative grounds that the father had acquiesced or consented to the children's removal, relying on the fact that he "did not take any action with respect to the children for almost three years" after their mother returned with them to the United States.152

b. Grave Risk

Under Article 13 of the Convention, a court may refuse to order the return of a child if there is a "grave risk" that the return would be physically or psychologically harmful to the child or would "otherwise place the child in a intolerable situation."153 In Nunez-Escudero v. Tice-Menley154 the Eighth Circuit interpreted the grave risk exception.155 The father, a Mexican citizen, sought the return of his daughter to Mexico after the mother returned to the United States with the baby.156 The district court denied his petition, finding that the mother had proven that the grave risk exception applied.157 The mother had presented an affidavit claiming that her husband had been verbally, physically, and sexually abusive toward her, that she had been prohibited from leaving the family home without her husband or father-in-law, and that her father-in-law had been verbally abusive toward her.158 The court looked to the interpretations offered by other signatories to the Convention and found that the Supreme Court of Canada had analyzed the language of the Convention as well as cases from other signatory countries and had determined that "only severe potential harm to the child will trigger this Article 13b exception."159 The Supreme Court of Canada went on to explain its reasoning:

In brief, although the word "grave" modifies "risk" and not "harm," this must be read in conjunction with the clause "or otherwise place the child in an intolerable situation." The use of the word "otherwise" points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of art. 13(b) is harm to a degree that also amounts to an intolerable situation.160

The Eighth Circuit reversed, determining that the evidence was not sufficient to establish the grave risk exception because "[t]he evidence is general and concerns the problems between [the mother], her husband and father-in-law."161 The lower court had "based its order on the baby's age, the impact of separating the baby from his mother, and the possibility that the baby could be institutionalized during the pendency of the Mexican custody proceedings."162 The Eighth Circuit found that the lower court had incorrectly considered the possible separation of the baby from its mother in evaluating the grave risk defense and found most of the evidence the mother presented to be irrelevant to evaluating that defense.163 The court explained as follows:

The Article 13b inquiry does not include an adjudication of the underlying custody dispute and only requires an assessment of whether the child will face immediate and substantial risk of an intolerable situation if he is returned to Mexico pending final determination of his parents' custody dispute. It is not relevant to this Convention exception who is the better parent in the long run, or whether [the mother] had good reason to leave her home in Mexico and terminate her marriage to [the father], or whether [the mother] will suffer if the child she abducted is returned to Mexico.164

The Convention, however, specifically provides that in considering the Article 13 exceptions, a court "shall take into account the information relating to the social background of the child."165 The court acknowledged that a court "must be empowered to evaluate the surroundings to which the child is to be sent and the basic personal qualities of those located there," and remanded the case for the district court to reconsider the issues with this guidance.166

c. Objection by the Child

Article 13 permits a court to deny a petition for return if the "child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views."167 The Convention does not specifically define the age at which a child has reached the requisite maturity. It does specify, however, that the Convention does not apply after a child reaches the age of sixteen,168 so presumably a child may attain the requisite level of maturity before that time.

Few decisions have provided an in-depth analysis of this provision. For example, in Tahan v. Duquette,169 a New Jersey court, without any substantial discussion, found that a nine-year old child had not yet attained that level of maturity.170 The court acknowledged that the Convention permits consideration a child's objections where the child has achieved sufficient maturity, but stated, even after reviewing the evaluation of a court appointed psychologist, that "[t]his standard simply does not apply to a nine-year old child."171 In England v. England,172 the Fifth Circuit reversed a lower court ruling which had taken into consideration the objections of a thirteen-year old child.173 The father was petitioning for the return of his children to Australia after the mother had wrongfully retained them in the United States.174 Karina, who was thirteen-years old, had been adopted by the Englands after a "'turbulent' history in orphanages and foster care and . . . 'difficult' adoption proceedings."175 The lower court considered evidence that Karina had friends in the United States and preferred it to Australia.176 The Fifth Circuit concluded that the turbulence of her childhood, her diagnosis with learning disabilities and attention deficit disorder, and her confusion regarding the litigation clearly indicated that she was not sufficiently mature to permit consideration of her views within this exception.177

d. Protection of Fundamental Rights and Freedoms

Article 20 provides an exception to the return remedy where return "would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms."178 In Freier v. Freier,179 Mrs. Freier objected to a petition for the return of their daughter to Israel, the child's habitual residence, claiming that an order of return would violate Mrs. Freier's freedom to travel.180 Mr. and Mrs. Freier were U.S. citizens, but lived for many years in Israel and had a child there.181 Mrs. Freier returned to the United States ostensibly for a visit to her family, but then declared her intention to obtain a divorce and not return to Israel.182 An Israeli court then entered an injunction which prohibited Mrs. Freier and the child from leaving Israel until the divorce and custody disputes were resolved.183 In assessing Mrs. Freier's claim that this injunction violated her fundamental freedoms, the district court noted that although it had focused primarily on Mrs. Freier's fundamental rights, it was not clear that Article 20 was addressed to parents' right as opposed to children's rights.184 The court concluded, however, that Mrs. Freier and the child could pursue these due process claims in the Israeli courts and that the Israeli courts could sufficiently protect these rights.185

As discussed above, the exceptions to the summary return remedy, set out in Articles 13 and 20, are narrowly drafted and are intended to be applicable to only the most exceptional circumstances. Proper application of these exceptions promotes the Convention's goals to protect the best interest of the child, to allow the courts in the child's habitual residence to resolve the underlying custody dispute, and to facilitate recognition of parental custody rights from another jurisdiction.

III. ANALYSIS

A. Problems in the Application of the Convention

As discussed in Part II.B,186 U.S. courts have been largely successful in faithfully applying the Convention to attain its primary objectives: (1) ensuring prompt return of children wrongfully removed or retained; (2) protecting rights of access; (3) and allowing courts in the child's state of habitual residence to resolve any underlying custody dispute. Often, when courts have gotten it wrong, reviewing courts have been available to correct these errors and provide guidance on resolving disputes under the Convention.187 The difficulty, however, is that the Convention ultimately provides no enforcement mechanism or oversight body to ensure that contracting states properly implement it.188 Several commentators have observed that although courts mostly have remained faithful to the Convention's objectives, there have been cases which have raised concerns.189 For example, when

[f]aced with sustained non-compliance there is little Contracting States can do; certainly there is no mechanism within the text of the Convention. There can of course be informal contact between the State concerned, or indeed the matter may be raised at a diplomatic or even ministerial level. Failing that, consideration can be given to the issue at a Review Special Commission [of the Hague Conference on Private International Law] . . . . Ultimately, in the absence of any sanction the operation of the Convention depends upon the goodwill of the signatory States.190

Recently publicized custody disputes have demonstrated this serious shortcoming, as discussed below.191

B. Discussion of High Profile Cases

The controversy over custody of Elian Gonzalez raised awareness of the particular difficulties presented by international custody disputes.192 Elian Gonzalez is a young Cuban boy who was found at sea, clinging to an inner tube on Thanksgiving Day in 1999.193 Elian's mother, stepfather, and others drowned after their small boat experienced engine trouble and capsized during their attempt to flee Cuba and reach America.194 Elian's father Juan Miguel Gonzalez, who lived in Cuba, immediately demanded that his son be returned to Cuba and asserted that his mother had illegally left Cuba with Elian.195 Elian's relatives in Miami, Florida clearly stated their intention to prevent Elian's return to Cuba.196 As the public controversy over Elian's custody continued, the possibility of passing legislation to grant Elian U.S. citizenship and other attempts to keep Elian in the United States raised serious concerns for U.S. parents seeking to assert their own custody rights abroad.197 These parents and the U.S. State Department agreed that "[i]f Elian remain[ed] in the United States . . . it [would] make it even harder to retrieve their [own] children from other countries."198

Although Cuba is not a signatory to the Convention,199 analysis of the custody dispute under the Convention is enlightening as an illustration of how the principles of the Convention could be applied. In Cuba, Elian lived with his mother and stepfather, but he had regular contact with his father.200 Juan Miguel was exercising his custody rights at the time Elian's mother made the unilateral decision to leave Cuba with Elian.201 Consequently, Elian's removal was wrongful within the meaning of the Convention.202 Elian's mother's death left Juan Miguel as the proper guardian, absent a showing he was unfit.203 If Elian's mother had not died during her attempt to flee to the United States, however, the standard remedy for wrongful removal would be return.204 In evaluating the possible exceptions to the return remedy, there was no indication that Juan Miguel had failed to exercise his custody rights or consented or acquiesced to Elian's removal.205 Because Elian was only six years old, it is unlikely that a court would have considered any possible objections to his return to Cuba.206 The grave risk and fundamental rights exceptions, however, are more difficult to dismiss. Nevertheless, if these exceptions are evaluated with the clear objectives of the Convention in mind, they are not applicable. Considering Elian's close relationship with his father, Elian would not be at grave risk of facing an intolerable situation.207 Although Americans may disapprove of Cuba's political system and human rights record, the fundamental rights exception should not be used to impose American legal and political values on contracting states. Therefore, Elian's return would be the proper outcome of this case under the Convention.

The media frenzy that swirled around Elian resulted in increased press coverage and public awareness of other international custody disputes.208 The Washington Post ran a story that detailed the repeated attempts of Joseph Cooke, a U.S. father, to regain custody or visitation of his children in Germany.209 Mr. Cooke met his wife, a German woman, while he was in the military stationed in that country.210 They were married and had two children while living in the United States.211 During a period of marriage difficulties depression, however, Mrs. Cooke took the children to Germany for a vacation.212 Without her husband's knowledge or permission, she checked herself into a German mental health clinic and requested that the German government take custody of the children, who were one and two years old at the time.213 The German government then placed the children in foster care.214 Neither his wife nor her family would give Mr. Cooke any information about the whereabouts of his children.215 When he finally learned that they were in foster care, the foster family denied having the children and obtained an order from a German court that prohibited Mr. Cooke from removing the children, but he was never notified.216 Meanwhile, Mr. Cooke was awarded custody of the children in a New York court.217 He contacted the foster family again, who this time admitted having the children but threatened to call the police if he tried to come and get them.218 After getting a court order under the Convention and traveling to Germany with his attorney, the German courts granted him only brief, supervised visitation with the children and would not permit him to bring them back to the United States.219 Mr. Cooke has continued to fight for custody of his children, despite a German court ruling that "[t]he children had bonded with the foster family" and would remain in Germany.220

Another incident documented other parents' struggles to gain custody or visitation rights to their children who are in foreign countries.221 Jim Rinaman, a District of Columbia resident, has been fighting for custody and visitation of his daughter who was taken to Germany in 1996 by his wife.222 The German courts repeatedly refused his requests for custody or visitation of his daughter.223 After media and congressional attention to the plight of similarly situated parents, Mr. Rinaman was finally permitted to visit with his daughter in Germany.224

Members of Congress have rebuked a number of countries, including Germany, for their failure to comply with the Convention.225 U.S. Representative Nick Lampson (D-TX) has worked to raise awareness of the problem of international child abduction. Representative Lampson has frequently spoken on the U.S. House of Representatives floor about individual families struggling for custody or visitation rights abroad.220 In addition, the House passed a resolution criticizing Germany, along with several other countries and urging compliance with the international treaty.227

The International Child Abduction Remedies Act228 requires that the Secretary of State issue a report on the implementation and operation of the Convention each year.229 As required, the reports include a list of "countries that have demonstrated a pattern of noncompliance with the obligations of the Convention" and also identify countries about which the State Department is concerned.230

The increased media and public attention, along with the political pressure arising out of a planned visit to Germany by then-President Clinton, eventually resulted in Germany issuing "new steps" to help U.S. parents pursue claims of parental child abduction.231 The focus on Germany, however, was short-lived. The Washington Post reported that "[t]hree weeks after German Chancellor Gerhard Schroeder promised to help arrange visitation for American families embroiled in custody disputes, local German authorities have curtailed the visiting rights of the family in a celebrated case, apparently in retaliation for speaking to the press."232

As these examples demonstrate, although the Convention is drafted to ensure the prompt return of children and to protect custody rights, it contains broadly-drafted exceptions which can easily frustrate the purpose of the Convention. As many courts have explained, the exceptions to the summary return remedy are intended to be interpreted narrowly.233 Broad interpretation of these exceptions would undermine the Convention's goals by permitting courts outside the child's habitual residence to decide underlying custody disputes and thereby encouraging parents to move to a different jurisdiction in hopes of achieving a more favorable result. As commentators have recognized because there is no enforcement mechanism within the framework of the Convention, contracting states' compliance is dependent on "goodwill."234 Consequently, it is critical that courts narrowly construe these exceptions and apply them only where absolutely necessary.

In addition, officials from the legislative and executive branches must use their influence to pressure non-compliant states into properly enforcing the Convention. The International Child Abduction Remedies Act235 contemplates exactly this type of intervention and requires the State Department to report on its efforts to help find solutions for any unresolved cases.236 The General Accounting Office (GAO) has authored reports which are critical of the State Department's efforts in pursuing the return of abducted children.237 The report identified a "lack of systematic and aggressive diplomatic efforts to improve international responses to parental child abduction."238 A subsequent report by the GAO reiterated the need for "expanded diplomatic efforts" to resolve claims under the Convention, but noted that "[t]he State Department acknowledges that it needs to take a more proactive role in promoting greater compliance with the Hague Convention."239

The International Child Abduction Remedies Act240 requires the State Department to issue an Annual Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction.241 This report identifies countries that are non-compliant or of concern and sets out the particular deficiencies of these countries in handling disputes under the Convention.242 The report also provides a listing of the cases that remain unresolved eighteen months after filing and an explanation of the actions taken by the Department of State to facilitate a resolution of the case.243 As noted in the introduction, however, the report cannot provide an entirely complete assessment of the success of the Convention because it only includes claims under the Convention made directly through the U.S. Central Authority for the return of children to the United States.244 Convention petitions may also be filed through the Central Authority of another state or with a foreign court; these types of petitions are not included in the annual report.245

Secretary of State Colin Powell has praised the efforts of the State Department to resolve disputes xinder the Convention.246 Secretary Powell noted that he personally spend a great deal of time on the issue of parental child abduction.247 It appears that substantial progress has been made to increase compliance with the Convention through the work of the State Department. For example, it was the political pressure on Germany leading up to President Clinton's visit that led German officials to take action to help Joseph Cooke.248 After local German officials backed away from this advance, an Assistant Secretary of State for Consular Affairs who was traveling to Germany, was quoted as saying that she would "be raising [the] issue with every person she meets with in the German government."249 In April 2001 the GAO reported that substantial progress had been achieved in improving the application of the Convention in Germany; but, the report cautioned that because the changes had been recently implemented more time was necessary to determine their ultimate success and the report noted that certain problems still had not been addressed by German officials.250

IV. CONCLUSION

To ensure the continued success of the Convention, the legislative and executive branches must maintain a commitment to advocate for the rights of U.S. parents in their efforts to resolve international custody disputes. U.S. courts have been largely successful in resolving cases brought under the Convention in a manner consistent with the Convention's purposes and objectives. Too often, however, the courts in other contracting states fail to do the same. Because there is no international entity with the authority to oversee and ensure compliance with the Convention, U.S. officials must assume this responsibility through diplomatic and public pressure.

FOOTNOTE

1. See PAUL R. BEAUMONT & PETER E. MCELEAVY, THE HAGUE CONVENTION ON INTERNATIONAL GHILD ABDUCTION 2 (P.B. Carter ed., 1999).

2. See id.

3. Id. at 1.

FOOTNOTE

4. See id. at 16-17.

5. See id. at 20-21.

6. See id. at 20-23.

7. The Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 98 [hereinafter Convention].

8. See Beaumont & McEleavy, supra note 1, at 23.

9. See id.

10. See The Hague Conference on Private International Law Status Sheet for The Hague Convention on the Civil Aspects of International Child Abduction, available at http://www.hcch.net/e/status/abdshte.html (last updated Oct. 24, 2002). Under the terms of the Convention, it is "open for signature by States which were Members of the Hague Conference on Private International Law at the time of its Fourteenth Session." Convention, supra note 7, art. 37. "Any other State may accede to the Convention." Id. art. 38. However, "[t]he 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." Id.

FOOTNOTE

11. See Convention, supra note 7, at 2.

12. See Message from the President of the United States Transmitting The Hague Convention on the Civil Aspects of International Child Abduction, S. TREATY DOC. No. 99-11, at 2-3 (1985).

13. International Child Abduction Remedies Act, 42 U.S.C. [sec] 11601-10 (1994).

14. Convention, supra note 7, at 98.

15. Id.

16. Id. art. 1.

17. Id. art. 4.

18. See id.

FOOTNOTE

19. Id. art. 3.

20. See id. arts. 1, 19.

21. Id. art. 19 (emphasis added).

22. Id. art. 12.

23. Id. art. 13.

FOOTNOTE

24. Id.

25. Id. art. 20.

26. Id.

27. Id.

28. See id.

29. Convention, supra note 7, at Preamble; Id. art. 1.

30. Id. art 3.

FOOTNOTE

31. Id. art 4.

32. Mohsen v. Mohsen, 715 F. Supp. 1063 (D. Wyo. 1989).

33. See id. at 1065.

34. Friedrich v. Friedrich, 983 F.2d 1396 (6th Cir. 1993).

35. Id. at 1400-01.

36. Id.

37. In re Bates, No. CA 122.89, slip op. (High Ct. of Justice, Family Div. 198923, 1989) (unpublished opinion) available at http://www.hiltonhouse.com/cases/Bates_uk.txt.

38. See Friedrich, 983 F.2d at 1401 (quoting In re Bates, No. CA 122.89, slip op.).

39. Id. (quoting In re Bates, No. CA 122.89, slip op. (internal quotations omitted)).

40. Id.

41. See id. at 1398-99.

42. See id.

FOOTNOTE

43. See id.

44. See id. at 1399.

45. See id.

46. See id. at 1401.

47. See id.

48. Id. at 1401-02 (emphasis added).

49. Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995).

50. See id. at 373.

51. Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995).

52. See id. at 222-24; In re Bates, No. CA 122.89, slip op.

53. See id. at 218.

FOOTNOTE

54. See id.

55. See id at 219.

56. See id. at 219.

57. See id. at 219-20.

58. See id. at 220.

59. See id.

60. See id.

61. See id.

62. Id. (citing Feder, 866 F. Supp. 860, 866 (E.D. Pa. 1994)).

63. See id. at 222-24.

64. Id. at 224.

FOOTNOTE

65. See id. at 224-25.

66. See id.

67. Sampson v. Sampson, 975 P.2d 1211 (Kan. 1999).

68. Id. at 1215.

69. See Ponath v. Ponath, 829 F. Supp. 363, 367 (D. Utah 1993).

70. Id. at 363.

71. See id. at 364.

72. See id. at 366.

73. See id.

74. Id. at 367.

FOOTNOTE

75. See id. at 368 (emphasis added).

76. See Convention, supra note 7, art. 3; see also Feder, 63 F.3d 217, 225; supra notes 51-66 and accompanying text (determining wrongful retention involves two inquiries: whether custody rights were breached by retention and whether rights were being exercised).

77. Convention, supra note 7, art. 3.

78. Id. art. 5.

79. Id.

80. See Friedrich, 983 F.2d 1396, 1400; see supra notes 34-48 and accompanying text.

81. Id.

82. See id. at 1400-03.

83. 63 F.3d 217; see supra notes 51-66 and accompanying text.

FOOTNOTE

84. Id. at 225.

85. Convention, supra note 7, art. 3.

86. Feder, 63 F.3d at 225 (footnotes omitted).

87. Id. at 226.

88. See id. at 226-27.

89. Id. at 226.

90. Convention, supra note 7, at 98, art.1.

91. Whallon v. Lynn, 230 F.3d 450 (1st Cir. 2000).

92. See id. at 452.

93. See id.

94. See id.

FOOTNOTE

95. See id. at 252-53.

96. See id. at 453.

97. See id.

98. See id.

99. See id.

100. See id. at 459.

101. See id. at 454-55.

102. Id. at 456.

103. See id. at 456-58.

104. Id. at 457.

FOOTNOTE

105. See id. at 458.

106. See id. at 459.

107. Sampson v. Sampson, 975 P.2d 1211 (Kan. 1999); see supra note 67 and accompanying text.

108. See Sampson, 975 P.2d, at 1213.

109. See id. at 1215.

110. See id. at 1215-16.

111. See id. at 1216.

112. See id. at 1217.

113. Freier v. Freier, 969 F. Supp. 436 (E.D. Mich. 1996).

114. See Sampson, 975 P.2d at 1217.

115. Id. at 1218 (quoting Freier, 969 F. Supp. at 441).

FOOTNOTE

116. Id. (emphasis added).

117. Convention, supra note 7, art. 12.

118. Id.

119. 42 U.S.C. [sec] 11601(a)(4) (2000).

120. Whallon, 230 F.3d at 459.

121. See Convention, supra note 7, art. 3 (referring only to custody, not access rights).

122. Croll v. Croll, 229 F.3d 133 (2d Cir. 2000).

123. Id. at 137 (citations omitted).

FOOTNOTE

124. Convention, supra note 7, art. 1.

125. Nunez-Escudero v. Tice-Menley, 58 F.3d 374 (8th Cir. 1995).

126. Id. at 376.

127. Rydder, 49 F.3d 369, 372; see supra note 49 and accompanying text.

128. Id.

129. Convention, supra note 7, art. 19 (emphasis added).

130. 42 U.S.C. [sec] 11601(b)(4) (1994) (emphasis added).

FOOTNOTE

131. Convention, supra note 7, art. 13, at 101.

132. Id. art. 20, at 101.

133. Blondin v. Dubois, 189 F.2d at 240, 246 (2d Cir. 1999) (emphasis added).

134. Id. at 246 (quoting Friedrich, 983 F.2d 1396, 1400) (citations omitted).

135. Sampson, 975 P.2d at 1217.

136. Id. at 1218 (quoting Freier, 969 F. Supp. 436, 441).

137. Ponath, 829 F. Supp. at 364.

FOOTNOTE

138. See id.

139. See id. at 366.

140. See id.

141. See id. at 366-67.

142. See id. at 367-68.

143. See id. at 368.

144. See Wanninger v. Wanninger, 850 F. Supp. 78, 81 (D. Mass. 1994).

145. See id. at 79-80.

146. See id. at 80.

147. See id.

148. See id.

149. See id. at 81-82.

150. Id. at 82.

FOOTNOTE

151. See Teijeiro Fernandez v. Yeager, 121 F. Supp. 1118, 1126 (W.D. Mich. 2000).

152. See id. at 1124.

153. Convention, supra note 7, art. 13.

154. Nunez-Escudero, 58 F.3d at 374.

155. See id. at 377.

156. See id. at 375.

157. See id. at 376.

158. See id.

159. Id. (quoting Thomson v. Thomson, 119 D.L.R. 4th 253, 286 (Can. 1994)).

FOOTNOTE

160. Id.

161. Id. at 377.

162. Id.

163. See id.

164. Id. (citation omitted).

165. Convention, supra note 7, art. 13.

166. Nunez-Escudero, 58 F.3d at 378 (quoting Tahan v. Duquette, 613 A.2d 486, 489 (N.J. Super. App. Div. 1992)).

FOOTNOTE

167. Convention, supra note 7, art. 13.

168. See Convention, supra note 7, art. 4.

169. Tahar v. Duquette, 613 A.2d 486 (N.J. Super. Ct. App. Div. 1992); see supra note 166 and accompanying text.

170. See id. at 490.

171. Id. at 490 & n. 1.

172. England v. England, 234 F.3d 268 (5th Cir. 2000).

173. See id. at 269.

174. See id.

175. Id. at 270.

176. See id. at 272-73.

177. See id.

FOOTNOTE

178. Convention, supra note 7, art. 20.

179. Freier v. Freier, 969 F. Supp. 436 (E.D. Mich. 1996); see supra note 115 and accompanying text.

180. See id. at 443-44.

181. See id. at 437-39.

182. See id. at 438-39.

183. See id.

184. See id. at 444.

185. See id.

186. See supra notes 29-185 and accompanying text.

FOOTNOTE

187. See, e.g., Friedrich, 983 F.2d 1396, 1401-02; see supra notes 34-48 and accompanying text (reversing lower court determination on habitual residence and remanding with instructions for further consideration); Nunez-Escudero, 58 F.3d 374, 377; see supra notes 125-126 (reversing lower court determination on grave risk and remanding with guidance for reconsidering issue).

188. See Convention, supra note 7; BEAUMONT & MCELEAVY, supra note 1, at 241-42.

189. See BEAUMONT & MCELEAVY, supra note 1, at 241.

190. Id. at 242.

191. See infra notes 192 and accompanying text.

192. See Marcia M. Reisman, Comment, Where to Decide the 'Best Interests' of Elian Gonzalez: The Law of Abduction and International Custody Disputes, 31 U. MIAMI INTER-AM. L. REV. 323 (2000).

193. See Sue Anne Pressley, Young Refugee at Center of International Dispute: Father, Cuba Want Return of Boy Rescued at Sea, WASH. POST, Nov. 30, 1999, at A3.

194. See id.

FOOTNOTE

195. See id.

196. See id.

197. See Cindy Loose, Anxious Eyes on Elian Case; Parents in International Custody Battles Fear Impact, WASH. POST, Feb. 3, 2000, at A1.

198. Id.

199. See The Hague Conference on Private International Law Status Sheet for The Hague Convention on the Civil Aspects of International Child Abduction, at http://www.hcch.net/e/status/abdshte.html (last updated Oct. 24, 2002).

200. See Karen DeYoung & Sue Anne Pressley, U.S. Orders Return of Cuban Boy; INS Says His Father is Entitled to Custody, WASH. POST, JAN. 6, 2000, at A1.

201. See id.

202. See, e.g., Whallon, 230 F.3d 450, 459; See supra notes 91-106 and accompanying text (finding wrongful removal where father had frequent contact with child).

203. See DeYoung & Pressley, supra note 200.

204. See Convention, supra note 7, art. 1; see also supra note 19 and accompanying text.

205. See, e.g., Feder, 63 F.3d 217, 225 (finding exercise of custody rights); supra notes 84-87 and accompanying text; Wanninger, 850 F. Supp. 78, 82 (finding conduct did not constitute acquiescence); supra notes 144-50 and accompanying text.

FOOTNOTE

206. See, e.g., Tahan, 613 A.2d 490 (refusing to consider objection by nine year old); supra notes 169-70 and accompanying text.

207. See, e.g., Nunez-Escudero, 58 F.3d 374, 377; see supra notes 154-66 and accompanying text (finding that circumstances of abuse toward mother not alone sufficient to establish grave risk exception).

208. See supra notes 192 and accompanying text.

209. See Cindy Loose & William Drozdiak, A Family Kept Apart; U.S. Father Loses Custody of Children to German Couple, WASH. POST, May 7, 2000, at A1.

210. See id.

211. See id.

212. See id.

213. See id.

214. See id.

215. See id.

216. See id.

FOOTNOTE

217. See id.

218. See id.

219. See id.

220. Id.

221. See Loose, supra note 197.

222. Id.

223. See id.

224. See Cindy Loose, German Promise of Visitation Applauded; U.S. Parents of Abducted Children Caution Limited Access is Only "First Step", wash. post, May 31, 2000, at A22.

225. See Loose & Drozdiak, supra note 209; William Drozdiak, Germany Bows to U.S. on Custody Disputes, wash. post, May 30, 2000, at A1.

226. See, e.g., 146 Gong. Rec. H9638-04 (2000) (statement of Rep. Lampson) (urging compliance with the Convention in Mr. Goldstein's effort to obtain the return of his daughter from Switzerland).

227. See Loose & Drozdiak, supra note 209; Drozdiak, supra note 225; H. R. Con. Res. 293, 106th Cong., 146 CONG. REC. 5758 (2000) (enacted).

FOOTNOTE

228. 42. U.S.C. [sec][sec] 11601-10 (2000); supra note 13 and accompanying text.

229. See 42 U.S.C.A. [sec] 11601 (West 2000) (historical and statutory notes).

230. Id.; see, e.g., U.S. DEP'T OF ST., Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction (2000) available at http://www. travel.state.gov/2000_Hague_Compliance_Report.html (last visited Sept. 3, 2002).

231. See Loose, supra note 224; Cindy Loose, Germany Moves to Help Parents in Child Abductions, WASH. POST, Sept. 21, 2000, at B2.

232. Cindy Loose, U.S. Family is Dealt a Blow; Child Visitation Curtailed Despite German Promises, WASH. POST, June 22, 2000, at A22.

233. See, e.g., Blondin, 189 F.3d 240, 246 (quoting Friedrich, 983 F.2d 1396, 1400) (citations and footnote omitted) (emphasizing need for narrow construction of exceptions to summary return remedy).

FOOTNOTE

234. See BEAUMONT & MCELEAVY, supra note 1, at 241-42.

235. See 42 U.S.C. [sec][sec] 11601-10 (2000); supra note 13 and accompanying text.

236. See 42 U.S.C.A. [sec] 11601 (West 2000) (historical and statutory notes).

237. See, e.g., U.S. GEN. ACCT. OFFICE, Federal Response to International Parental Child Abductions 1-2, 6 (Oct. 14, 1999), available at http://www.gao.gov.

238. Id. at 1-2.

239. U.S. GEN. ACCT. OFFICE, Specific Action Plan Needed to Improve Response to Parental Child Abductions 12-13 (Mar. 2000), available at http://www.gao.gov.

240. See 42. U.S.C. [sec][sec] 11601-10 (2000); supra note 13 and accompanying text.

241. See 42 U.S.C.A. [sec] 11601 (West 2000) (historical and statutory notes).

242. See, e.g., U.S. DEP'T OF ST., Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction (2001) [hereinafter 2001 Report] available at http://www.travel.state.gov/2001_Hague_Compliance_Report.html.

243. Id. Attachment A available at http://www.travel.state.gov/2001_Hague_Compliance_Attachment.html.

FOOTNOTE

244. 2001 Report, supra note 242, at 1.

245. Id.

246. Secretary of State Colin L. Powell, Address at the White House Conference on Missing, Exploited, and Runaway Children (Oct. 4, 2002).

247. Id.

248. See Cindy Loose, Germany Aids U.S. Father; Federal Officials Intervene in Custody Flap, WASH. POST, July 27, 2000, at A1.

249. Loose, supra note 232, at A22.

250. U.S. GEN. ACCT. OFFICE, Changes to Germany's Implementation of the Hague Child Abduction Convention 1, 3-9 (Apr. 2001), available at http://www.gao.gov.

AUTHOR_AFFILIATION

Saniya O'Brien*

AUTHOR_AFFILIATION

* Saniya O'Brien is currently a law clerk for the Honorable Alan Kay, a Magistrate Judge in the United States District Court for the District of Columbia; Smith College A.B., 1995; The George Washington University Law School, J.D., 2002 with Highest Honors and Order of the Coif.