In an international custody case, can a court order an abducted child be returned to a third country that’s not the habitual residence if the habitual residence has become unsafe? This is a frequent problem under the Hague Convention, and one New York appeals court just answered the question.

Два чоботи – пара

(“Two shoes make a pair”)

Tereshchenko and Karimi married in Odesa, Ukraine, in 2017. They are the parents of two children, one born in Ukraine and another born Florida. They divorced in 2018, and signed a custody agreement under which the children would reside with Karimi and Tereshchenko would “freely visit” with them and participate in their upbringing.

Then Russia invaded Ukraine in 2022. Karimi contacted Tereshchenko in Dubai by phone and asked for the passports so they could quickly leave Ukraine.

He agreed, but asked that they be brought to him in Dubai. Instead, she took the children to Poland, and ultimately to Manhattan. On January 8, the court found the children were “habitual residents” of Ukraine, and return to Ukraine did not pose a grave risk of harm.

The court ordered the return the children to Tereshchenko in France.

Hague Child Abduction Convention

I have written and spoken on international custody and child abduction under the Hague Convention. The Convention’s mission is basic: to return children to the State of their habitual residence to require any custody disputes to be resolved in that country, and to discourage parents from taking matters into their own hands by abducting or retaining a child.

The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody 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.

If an applicant can prove his prima facie case, the abducted children must be promptly returned to their habitual residence. But what if no one is left in the habitual residence?

Розставити всі крапки над “і”

(“Dotting your “i”)

The appeals court noted that both parents agreed to remove the children from Ukraine because of the Russian invasion. And both parents continue to recognize the dangers posed by returning the children to Ukraine.

Notwithstanding the grave risk of harm facing the children if returned to Ukraine, the court agreed a court could return a child temporarily in a third country. The ongoing war in Ukraine simply precluded entry of the ordinary Hague Convention order.

However, even if a court does return a child to a third country instead of the habitual residence, the return order must be tailored to secure the continued authority of the Ukrainian courts over the children and over the parents’ respective custody rights. Absent such tailoring, the order has the effect of an impermissible custody determination.

The Convention did not accept a proposal to the effect that the return of the child should always be to the State of its habitual residence before removal․ The Convention’s silence must be understood as allowing the return of a child directly to the applicant, regardless of the place of residence.

The opinion is available at the invaluable MK Family Law site.