The Importance of Presenting the Correct Documents in an ICARA Case
Certified legal document translation services are often needed in international parental abduction cases. In many instances, domestic disputes can lead to international child custody cases. This case involves a father’s federal suit in the District of Alaska for the return of his minor child to Germany. It is a case filed pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, which was implemented in the US through the International Child Abduction Remedies Act (ICARA). This case, Mooring v. Padilla, Slip. Op. 4:23-cv-00015-JMK, 2023 WL 7321592 (D. Alaska Nov. 7, 2023), is an example of why submitting the right documents is important to support a claim under ICARA.
The Father’s Side of the Story
According to the father, he and the child’s mother lived in Germany starting in 2000. The couple married on September 1, 2002 in California. The couple continued to live in Germany after the birth of their child in 2015. The parents eventually divorced, but they continued living in Germany. The father claims that following the divorce, the parents were granted joint custody of the child and that the father saw the child on a daily basis.
At some point, the father found out that the mother planned to move back to the United States with their child. At that time, the father went to the local court in Germany for help. The father claims that the judge of the local court in Germany issued an order that prohibited the mother from taking the child out of Germany. The father also claims he obtained a restraining order on August 9, 2022 that prevented the mother from leaving Germany with the child. The father says that the mother left Germany with the child on August 10, 2022.
One Year Later
Almost one year after the mother left Germany, the father filed a complaint in federal court in the District of Alaska. In his complaint, the father requested that the mother appear in court, that she surrender passports and other travel documents, that she be prohibited from traveling with the child while the case was pending, and, if she did not appear, that an arrest warrant be issued. The father also wanted the court to issue an order declaring that the mother’s removal of the child from Germany in 2022 was unlawful, ordering the child’s return to Germany and requiring that the mother pay the father’s expenses.
The Mother’s Side of the Story
The mother responded to the father’s complaint with her side of the story. She claims that she had primary custody of the child since the couple’s separation in 2015 and that the father agreed to the child traveling to the US. The mother alleges that there is no active court order in Germany that demands the return of the child. She also states that the father falsely reported that she kidnapped the child. She claims that the report caused her and the child to be detained by law enforcement when they entered the US. She claims that she provided necessary paperwork to authorities and that she and her child were later released. The mother questions whether the father filed the case in good faith.
Father Moves for Expedited Hearing
After the father filed his complaint, the mother filed her answer. The father then filed a motion to set an expedited hearing citing that cases brought under the Hague Convention must be processed promptly by the courts. The father wanted the court to decide the issue of the surrender of the travel documents right away.
Under ICARA, a court is tasked with determining rights under the Hague Convention and not the underlying custody claims. The reason for this is to ensure that the child custody claims are decided in the most appropriate forum, i.e., the country where the child is at home.
A person bringing a case under ICARA must show by a preponderance of the evidence that a child has been wrongfully removed or retained under the Hague Convention. How does a person show this?
Someone requesting relief under ICARA can show that a child was wrongfully removed or retained by providing evidence that he/she had custodial rights (joint or alone) over the child under the law of the State in which the child was “habitually residing” immediately before the removal and that those rights were exercised at the time of the removal or would have been exercised but for the removal.
State of Habitual Residence
The first step is to determine where the child was habitually residing. The court must look to the totality of the circumstances in each case. The court must look to see where the child has integrated into a social and family environment. The question is: where is the child at home? The court must be sensitive to each case’s unique circumstances and use common sense in making its determination of the location of the child’s habitual residence.
Custodial Rights Determination
The second step is to determine whether the parent claiming relief had custodial rights based on the laws of the child’s home country. The parent must have had rights of care and custody of the child including the right to determine the child’s place of residence. Such rights are provided by operation of law, through a judicial or administrative decision or by a legally enforceable agreement between the parents.
Exercise of Custodial Rights
The third step is to show that the parent had exercised the custodial rights granted to him/her or that the rights would have been exercised but for the removal.
If a parent can establish all three requirements under ICARA, the burden of proof then shifts to the objecting parent to show that a narrow exception applies. This can be done by showing that the parent requesting return was not actually exercising custodial rights at the time of removal or had consented (or later acquiesced) to the removal. Another way to prevent the return of the child is for the objecting parent to show that return would result in a grave risk of exposing the child to physical or psychological harm or an intolerable situation or returning the child would not be permitted based on fundamental principles of the requested State regarding protection of human rights and fundamental freedoms.
These exceptions must be proven by clear and convincing evidence. The child may also object to the return and the court may take this objection into consideration if the child has reached a sufficient degree of maturity that would warrant considering the child’s request.
Deficient Pleading due to the Missing German Court Order
In denying the motion, the court determined that the father’s case was deficiently pled, i.e., he did not satisfy the second step outlined above, which requires the father showing he had custodial rights over the child. The court noted that the father referred to an order by the local court in Germany in his papers, but that he did not include a copy of the order.
Under ICARA, the father could submit the order without authentication, but at a minimum, the father had to supply a copy of the German court order. Since the father did not show he had custodial rights over the child, the District Court held that the request for an expedited hearing was premature. The father could renew his motion under ICARA once he provided the documentation demonstrating his custodial rights.
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