Child abduction

• Author: International Law Group, PLLC
• Pages: 122-123

Page 122

This case involves custody claims by the divorced parents of a minor child under 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. 49 (the Convention). Despina Asvesta (Mother), a Greek citizen and the Mother of the minor child retained custody of the minor child in Greece after travelling there for a short visit. The child's father, George Petroutsas (Father), a dual U.S. and Greek Citizen, secreted the child back to the U.S. during a court-ordered visit.

The father petitioned a Greek court for the return of the child under the Convention, which it denied. After the father took the child from Greece and returned to the U.S., the mother petitioned a California federal court under the Convention for the return of the child. The District Court granted the mother's petition on the basis of comity to the Greek court's decision. The father appealed. The U.S. Court of Appeals for the Ninth Circuit reverses the District Court's decision and remands the case for further proceedings.

The Convention requires that the court of the country to which the child has been removed, return a wrongfully removed or retained child to his or her country of "habitual residence," unless the removing party establishes an exception or defense. Unless and until there is a determination against the child's return, "the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody." See Art. 16.

The Court finds that the District Court's grant of comity to the Greek court was improper. The Court explains that the decision to extend comity to a foreign judgment may depend on a profound inquiry into the propriety of the foreign court's application of the Convention, as well as on considerations of due process and fairness. A court "may properly decline to extend comity to the Greek court's determination if it clearly...