In re S.L. ( 2021 )

No. 123,535
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Interest of S.L.,
A Minor Child.
SYLLABUS BY THE COURT
1.
The Hague Convention on the Civil Aspects of International Child Abduction,
Oct. 25, 1980, T.I.A.S. No. 11670, 1988 WL 411501 (the 1980 Hague Convention) and
the International Child Abduction Remedies Act, 22 U.S.C. § 9001 et seq. (2018),
provide for the return of children wrongfully removed or retained from their habitual
residence.
2.
The primary purpose of the 1980 Hague Convention is to preserve the status quo
custody arrangement of the parties and to deter a parent from crossing international
boundaries in search of a more sympathetic court. The 1980 Hague Convention
empowers courts to determine only rights under the Convention and not the merits of any
underlying child custody claims.
3.
Courts analyzing claims under the 1980 Hague Convention follow a three-step
analysis. (1) Did an abduction occur? Article 3 defines abduction as a wrongful transfer
or wrongful retention. (2) Does an exception apply? Under Article 13, courts are
permitted to refuse to return a child to their habitual residence if certain narrowly
construed exceptions apply. (3) If a court properly invokes an Article 13 exception, what
is the effect on jurisdiction and custody? In this third step, courts in the child's habitual
residence analyze the foreign court's decision, applying principles of comity.
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4.
To show that an abduction occurred under Article 3 of the 1980 Hague
Convention a petitioner must show that there was a wrongful transfer or a wrongful
retention. A wrongful transfer occurs when one parent removes the child to another
country in breach of the other parent's lawful custody rights. A wrongful retention occurs
when a parent exercising lawful custody rights authorizes the child's transfer to another
country, but then the child is retained in that country in breach of the parent's custody
rights.
5.
If a petitioner shows a wrongful transfer or wrongful retention, the burden shifts to
the respondent to show that an Article 13 exception under the 1980 Hague Convention
applies allowing courts to refuse to return the child. Courts may order a child returned to
their habitual residence even if Article 13 exceptions apply because the language of
Article 13 is permissive and courts are not required to invoke an exception.
6.
The exceptions to the 1980 Hague Convention are intended to be construed and
applied very narrowly to effectuate the objectives of the 1980 Hague Convention.
7.
Although the surroundings to which the child will be returned and the personal
qualities of the people located there are relevant to the inquiry of whether the child will
be exposed to a grave risk of harm, the Article 13(b) exception under the 1980 Hague
Convention was not intended to be used as a vehicle to litigate the child's best interests.
The person opposing the child's return must show the risk to the child is grave and not
merely serious.
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8.
Courts apply principles of comity to decide whether to defer when a foreign court
invokes an Article 13 exception under the 1980 Hague Convention and refuses to return a
child. Under Article 16, when a foreign court correctly interprets the 1980 Hague
Convention and decides not to return the child, then that court may decide on the merits
of rights of custody.
Appeal from Johnson District Court; CHRISTINA DUNN GYLLENBORG, judge. Opinion filed
November 12, 2021. Reversed in part, vacated in part, and remanded with directions.
Valerie L. Moore and Amy Vinton, of Lenexa, for appellants A.L. and M.W.
Ronald W. Nelson and Ashlyn L. Yarnell, of Ronald W. Nelson, PA, of Overland Park, for
appellees E.L. and J.H.
Before GREEN, P.J., CLINE, J., and BURGESS, S.J.
GREEN, J.: S.L. is a minor with dual citizenship in the Netherlands and the United
States. S.L. lived with E.L. (Father) and J.H. (Stepmother) until March 2019, when
Father sent S.L. to stay with his sister A.L. (Aunt) and her partner M.W. (Uncle) for
spring break. Aunt and Uncle filed accusations of child abuse with a child protective
service in the Netherlands. A Dutch court suspended Father and Stepmother's parental
rights. The Dutch court took S.L. into foster care, assigning residential placement with
Aunt and Uncle. Father and Stepmother filed a "Petition for Issuance of Child Abduction
Prevention Measures Under the Uniform Child Abduction [Prevention] Act (UCAPA)" in
Johnson County, Kansas. The trial court determined that it had jurisdiction over S.L. and
ordered her returned to Father and Stepmother in Kansas. Aunt and Uncle appeal, arguing
that the trial court lacked subject matter and personal jurisdiction. Alternatively, Aunt and
Uncle argue that the trial court erred in ordering S.L. returned to Kansas. Because the
Dutch courts properly refused to return S.L. to Kansas, we reverse the decision of the
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Johnson County District Court, vacate the district court orders, and remand with
directions that the district court give comity to the Hague Court of Appeals' decision.
FACTS
S.L. was born in New York, New York, in July 2006. S.L.'s mother died in
September 2008 in New York, New York. Father married Stepmother in December 2008.
Then, S.L., Father, and Stepmother lived in Groenlo, Netherlands, for slightly more than
a year and a half, from December 2008 to July 2010.
In May 2011, the District Court of Amsterdam granted parental authority to
Stepmother, assigning joint parental authority to her and Father. From August 2013 until
March 2019, S.L. lived with Father and Stepmother at the following locations:
• August 2013–July 2015: Overland Park, Kansas
• August 2015–April 2016: New York, New York
• (Lived with paternal grandparents May 2016–August 2016: Groenlo,
Netherlands)
• August 2016–July 2017: Overland Park, Kansas
• August 2017–August 2018: New York, New York
• September 2018–March 2019: Orlando, Florida
In February 2019, S.L., Father, and Stepmother were living in Orlando, Florida,
and S.L. was enrolled at Southwest Middle School in Orange County, Florida. In March
2019, S.L. went to the Netherlands to spend her school spring break with Aunt and
Uncle. S.L. arrived in Amsterdam on March 14, 2019, with a return ticket for March 28,
2019.
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The day after S.L. arrived in the Netherlands, March 15, 2019, Stepmother gave
Aunt and Uncle a power of attorney to make practical decisions about S.L. during her
stay in the Netherlands. That power of attorney expired on August 31, 2019, and was not
renewed or extended. But Father and Stepmother spoke with Aunt and Uncle sometime
during S.L.'s stay and they agreed that S.L. would not return on the date planned. Instead,
she would stay in the Netherlands as late as the end of July so that she could start the new
school year in August 2019.
Aunt and Uncle registered S.L. at their address on April 30, 2019, and enrolled
S.L. in school in the Netherlands. Aunt and Uncle filed accusations with the Council for
Child Protective Services in Arnhem, the Netherlands (Council), accusing Father and
Stepmother of child abuse, neglect, and abandonment. On June 13, 2019, the Council
petitioned the Gelderland District Court to place S.L. under supervision. After a contested
hearing on July 5, 2019, the children's judge authorized Child Protection Gelderland
(Child Protection) to supervise S.L. from July 5, 2019, to July 5, 2020. Child Protection
then assigned custodial placement of S.L. to Aunt and Uncle. Father and Stepmother
appealed the order from the Gelderland District Court to the Arnhem-Leeuwarden Court
of Appeals.
On November 6, 2019, Father and Stepmother also filed a petition with the Court
of the Hague for the return of S.L. under the Hague Convention on the Civil Aspects of
International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1988 WL 411501 (the
1980 Hague Convention). This filing added a second track of litigation, parallel to the
proceedings which began in the Gelderland District Court.
On December 5, 2019, the Arnhem-Leeuwarden Court of Appeals issued its
decision reversing the Gelderland District Court's order placing S.L. with Child
Protection. The appellate court ruled that the lower Dutch court did not have jurisdiction
to consider the Council's request to place S.L. with Child Protection. The appellate court
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also ruled that the United States was S.L.'s "habitual residence" under applicable
European Union law, Brussels II-bis. And the appellate court ruled that Dutch law did not
give the lower court jurisdiction because S.L.'s usual residence was the United States and
no exceptions existed to invoke jurisdiction. In short, the appellate court held that the
lower court did not have jurisdiction under international treaty, European Union law, or
Dutch law. Thus, the appellate court "destroy[ed] the court order of the children's judge at
the court in Gelderland." As a result, the Council's supervision of S.L. ended on
December 5, 2019.
Immediately, Stepmother flew to the Netherlands to retrieve S.L., with an airplane
ticket for S.L. to make the return trip. Stepmother spent December 10, 2019, helping S.L.
to pack her belongings. The family had a farewell party for S.L. that night.
But on December 9, 2019, the Council filed a request with the Gelderland District
Court for the provisional supervision and authorization for out-of-home placement of
S.L. Ruling from the bench, the Gelderland District Court declared it lacked jurisdiction
to hear the Council's request, in keeping with the appellate court decision from just days
earlier on December 5, 2019.
The next day, December 10, 2019, the Council again requested that the district
court temporarily place S.L. under supervision and allow Child Protection to decide
residential placement. The Council added as a new basis for its request that Stepmother
intended to take S.L. back to the United States against her will on December 11, 2019,
without safety guarantees or a child protection plan. This time, the Gelderland District
Court granted Child Protection supervision, authorizing residential placement of S.L. S.L.
did not return to the United States with Stepmother.
On December 20, 2019, Stepmother requested two temporary protection from
abuse orders in Johnson County, Kansas, on behalf of S.L. The trial court granted the
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petitions, issuing one order that Uncle was to have no contact with S.L. and another order
prohibiting Aunt from having contact with S.L. At the time, S.L. was living with Aunt
and Uncle in the Netherlands and the record does not make clear if the Johnson County
protection from abuse orders had any practical effect. On one order, the trial court
determined that it had child custody jurisdiction because Kansas is the home state. On the
other order, the trial court was silent on the jurisdiction issue.
On January 6, 2020, the Gelderland District Court upheld its order from
December 10, 2019, which placed S.L. in foster care.
On January 30, 2020, the Court of the Hague denied Father and Stepmother's
request to return S.L. to the United States. The Court of the Hague confined itself to the
narrow question of whether S.L. had been abducted within the meaning of Article 3 of
the 1980 Hague Convention. Under Article 3, an abduction occurs when there is either an
unauthorized transfer or an unauthorized detention. The court easily concluded that there
was no unauthorized transfer of S.L. because Father and Stepmother sent her to the
Netherlands and agreed to the trip. The court then determined that Child Protection's
supervision of S.L. was not an unauthorized detention because Child Protection acted
under court order. The only period during which Child Protection was not authorized to
detain S.L. by court order was from December 5, 2019, to December 10, 2019. The Court
of the Hague determined that S.L. was not in fact detained at all during that time but was
available to fly back to the United States with Stepmother and nearly did.
And the Court of the Hague ruled that the December 10, 2019 Gelderland District
Court order did not conflict with the temporary protection from abuse orders from the
Johnson County District Court entered on December 23, 2019. The Court of the Hague
determined that the orders did not cover the same ground because the protection of abuse
orders did not determine custody:
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"[T]he court order of the US court in Kansas is not aimed at taking child protection
measures for [S.L.] in America. This order does not share the same idea as where the
[temporary] supervision and custodial placement is aimed at, namely to protect [S.L.] in
connection with a serious threat to her development."
After the Court of the Hague ruled that there had been no abduction under Article
3 of the 1980 Hague Convention, it addressed residential placement of S.L. and child
protection measures. The Court of the Hague "consider[ed] that not this court, but the
court in Gelderland or the Courthouse of Arnhem-Leeuwarden has the authority to decide
on the parents' requests." Father and Stepmother appealed.
But also, on February 10, 2020, Father and Stepmother filed the petition at issue in
this case. Their "Petition for Issuance of Child Abduction Prevention Measures Under the
Uniform Child Abduction [Prevention] Act (UCAPA)" requested that the Johnson
County District Court issue a warrant to take immediate physical custody of S.L. Father
and Stepmother then moved for ex parte temporary orders the next day, February 11,
2020. On February 13, 2020, the Johnson County District Court issued ex parte
temporary orders, ordering Aunt and Uncle to immediately return S.L. to Father and
Stepmother.
On February 20, 2020, the Council added a fourth layer of litigation. At this point,
the Gelderland District Court's decision to place S.L. in foster care was then on appeal.
Second, the Court of the Hague's decision that the 1980 Hague Convention did not apply
to S.L. was on appeal. Third, the Johnson County District Court had yet to decide if S.L.
had been abducted under UCAPA, although it had issued temporary ex parte orders. And
fourth, on February 20, 2020, the Council petitioned the Gelderland District Court to end
or suspend Father and Stepmother's custody of S.L.
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On March 5, 2020, the Arnhem-Leeuwarden Court of Appeals upheld the
Gelderland District Court's order of December 10, 2019, which placed S.L. with Child
Protection. The Arnhem-Leeuwarden Court of Appeals, however, upheld the Gelderland
District Court as right for the wrong reasons. The Arnhem-Leeuwarden Court of Appeals
noted that the lower court had derived its jurisdiction from European Union law, namely
Article 20 of Brussels II-bis. The Arnhem-Leeuwarden Court of Appeals disagreed,
pointing out that it had just stated on December 5, 2019, that Brussels II-bis could not
provide jurisdiction because S.L.'s habitual residence was the United States. Thus, it
would be difficult to arrive at a different conclusion when the Council made a new
request for supervision on December 10, 2019. The Arnhem-Leeuwarden Court of
Appeals stated the following:
"Another complicating factor in the assessment of the jurisdiction question is that the
duration of [S.L.'s] stay in the Netherlands on reference date December 10, 2019 is partly
based on an—as it turned out—unauthorized decision of the juvenile court. The question
whether [S.L.] had her habitual residence in the Netherlands (or in the United States of
America) on December 10, 2019 is therefore not easy to answer in the opinion of the
court."
But the Arnhem-Leeuwarden Court of Appeals ruled that the decision of habitual
residence could remain undecided because the Dutch courts could derive their
jurisdiction from the Hague Convention on Jurisdiction, Applicable Law, Recognition,
Enforcement and Co-operation in Respect of Parental Responsibility and Measures for
the Protection of Children, Oct. 19, 1996, 35 I.L.M. 1391 (1996 Hague Convention). "In
all cases of urgency, the authorities of any Contracting State in whose territory the child
or property belonging to the child is present have jurisdiction to take any necessary
measures of protection." 1996 Hague Convention, 35 I.L.M. 1391, art. 11(1). The
Arnhem-Leeuwarden Court of Appeals ruled that the Dutch courts had jurisdiction to
take necessary measures of protection because S.L. was present in the contracting state of
the Netherlands and the measures in question were urgent.
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The Arnhem-Leeuwarden Court of Appeals agreed with the Gelderland District
Court that the matter was urgent on December 10, 2019, because Stepmother intended to
take S.L. back to the United States immediately. The appellate court echoed the Council's
concerns for S.L. if Stepmother took her back to the United States, relying heavily on
S.L.'s own statements. S.L. told the Council that there was arguing at home, "that she
feels that she must do everything to please the stepmother, that she has moved many
times, that the stepmother strikes her and that she wants to stay in the Netherlands and
wants peace." Father confirmed S.L.'s account, stating "that the family has moved often,
that there are always a lot of arguments at home, that domestic violence has taken place
between the father and the stepmother, that the stepmother takes out her emotions on
[S.L.] and that the stepmother [strikes S.L.] and yells at her." Aunt and Uncle also
confirmed that there were "many problems between the father and the stepmother, that
the stepmother always criticizes [S.L.] and that she does not hesitate to use physical
violence." Based on those statements, the Council had serious concerns about S.L.'s basic
care and safety with Father and Stepmother. Those concerns, combined with
Stepmother's plan to take S.L. back to the United States on December 11, 2019, led the
appellate court to conclude that the case was urgent on December 10, 2019, under Article
11(1) of the 1996 Hague Convention.
The Arnhem-Leeuwarden Court of Appeals ruled that Article 11(1) granted
jurisdiction of the Dutch courts over the case. Article 15(1) addresses which law the
Dutch courts would apply to the case: "In exercising their jurisdiction under the
provisions of Chapter II, the authorities of the Contracting States shall apply their own
law." 1996 Hague Convention, 35 I.L.M. 1391, art. 15(1). The Arnhem-Leeuwarden
Court of Appeals determined that the applicable Dutch law was Article 1:257 of the
Dutch Civil Code, stating that there is no appeal from decisions based on Article 1:257.
The court then declared Father and Stepmother "inadmissible," essentially dismissing the
appeal by its order of March 5, 2020.
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On March 9, 2020, the Gelderland District Court granted the Council's
February 20, 2020 request to suspend the custody of Father and Stepmother and assigned
provisional guardianship to Child Protection. In doing so, the court ruled that it had
jurisdiction under the 1996 Hague Convention, just as the appellate court had said days
earlier, on March 5, 2020. The Gelderland District Court then assessed if it could suspend
Father and Stepmother's custody of S.L. under Article 1:268 of the Dutch Civil Code,
given the facts before it:
"At least since the summer of 2019, [S.L.] has repeatedly indicated to various people and
agencies that she does not want to return to her father and stepmother because she fears
for her emotional and physical safety. . . . [S.L.] reaffirmed that she does not want to
return to a parenting situation where the stepmother abuses her and her father is unable to
protect her. . . . In addition, the father and stepmother are unable, in collaboration with
agencies such as the [Council] and [Child Protection], to provide information about
[S.L.]'s parenting situation in America. They take the position that [S.L.] should return
immediately and have no regard for her signals and feelings of insecurity and their role in
it. In fact, they assign the cause of these signals to [S.L.] and the family where she is
currently staying. They are also very negative about [S.L.]'s late mother and the maternal
family, putting a burden on [S.L.]'s development of identity. The father and stepmother
are now so strongly opposed to [S.L.]'s stay with family in the Netherlands that they
cannot even restore (emotionally) safe contact with [S.L.] through Facetime, for
example."
The Gelderland District Court made the following custody determination, stating:
"The court considers that it is necessary in the interest of [S.L.] to suspend the
custody of the father and stepmother and to charge [Child Protection] with provisional
guardianship. The custody decisions necessary for [S.L.], such as enrollment at school,
can then be taken with due haste. And this prevents the—not inconceivable—situation
that [S.L.] will be picked up from the foster parents by her father and stepmother, without
any form of guidance and guarantee of assistance in the United States. Although the
father and stepmother may have submitted a plan in case [S.L.] returns to them, this plan
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does not confirm the feasibility and involvement of child protection (agencies) in the
United States with this plan. In the judgment of the court, this plan therefore offers
insufficient guarantees for a responsible return of [S.L.]. When [S.L.] must return to the
father and stepmother, [S.L.] must do so safely, under the guidance of professional care
providers. The concerns expressed by [S.L.] about the period in which she lived with her
father and stepmother have not subsided, especially now that the relationship between
[S.L.] and her father and stepmother has deteriorated sharply in recent months. The court
is of the opinion that in order to realize any return in a responsible manner, it is necessary
that [Child Protection] will supervise this return, preferably in collaboration with care
providers in the United States."
Thus, the Gelderland District Court temporarily suspended parental custody rights
over S.L. The court would not make a final decision while the Court of the Hague's
decision on the 1980 Hague Convention was still pending on appeal.
On March 20, 2020, Aunt and Uncle moved to dismiss in Johnson County,
Kansas, alleging various deficiencies in Father and Stepmother's UCAPA petition.
On March 25, 2020, the Hague Court of Appeals affirmed the decision of the
Court of the Hague to not return S.L. to Father and Stepmother in the United States. The
Hague Court of Appeals upheld the lower court's decision as right for the wrong reasons.
The heart of the Court of the Hague's ruling was that there was no unauthorized detention
under Article 3 of the 1980 Hague Convention because a court order authorized Child
Protection to supervise S.L. The Hague Court of Appeals disagreed, holding that
temporary protective measures would not end parental custody rights:
"The circumstance that in the interim by provisional ruling custody measures have been
taken, in the form of placement under supervision and an authorization for custodial
placement, and the circumstance that finally the custody of the parents over the minor
was recently suspended, do not, in the opinion of the court, give grounds for the judgment
that the withholding cannot be or is no longer in breach of the custody rights of the
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parents as described in article 3 section 1, opening lines and sub a [of the 1980 Hague
Convention]. The aforementioned provisional protective measures and the provisional
custody are, after all, by nature emergency measures that temporarily limited,
respectively suspended, the parental authority of the parents. However, this does not
negate the fact that the custody rights currently still lie with [both the] parents—until the
competent legal authorities in substance rule otherwise in a main proceeding. In addition,
pursuant [to] article 17 [of the 1980 Hague Convention], the sole fact that a provisional
decision with regards to the custody was made in the Netherlands cannot be the bases for
a refusal of returning the child pursuant [to] the [1980 Hague Convention]."
The Hague Court of Appeals held that S.L.'s residence is the United States, Father
and Stepmother had custody, and Father and Stepmother did not give permission for
Child Protection to keep S.L. in the Netherlands. Thus, S.L.'s stay in the Netherlands is
an unauthorized detention under Article 3 of the 1980 Hague Convention. As a result, the
court concluded "that non-facilitation of return of the minor is unlawful in the meaning of
article 3 section 1 [of the 1980 Hague Convention], which would be, after all, in conflict
with the decision of the authoritative parents that the minor should have been returned to
the US."
Nevertheless, the Hague Court of Appeals did not order the return of S.L. to her
parents. Having found a breach of custody rights under Article 3 of the 1980 Hague
Convention, the court determined that "the immediate return of the minor to the US
should follow in principle, unless there are one or more grounds for refusal in the
meaning of article 13 of the [1980 Hague Convention]." The court then cited such
grounds under Article 13 for refusing to return the minor.
The Hague Court of Appeals reviewed the record, including the proceedings in the
Gelderland District Court and Arnhem-Leeuwarden Court of Appeals, the report of a
court-appointed guardian, and a report prepared by the Council, before concluding that
"serious concern exists regarding the physical and the emotional safety of the minor at
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the parents' home." The court pointed to the record of family discord and physical abuse
before invoking this exception. Further, under Article 13 of the 1980 Hague Convention,
a judicial authority may also refuse to order the return of the child if it determines that the
child resists return and has reached an age and degree of maturity that justifies taking her
opinion into account. The court then cited evidence that S.L. strongly resists return to the
United States, including the guardian's statement that S.L. was "very scared, sad and
confused" at the thought of having to return to her parents. The court then ruled that S.L.
possessed the degree of maturity for the court to take account of her views under Article
13 of the 1980 Hague Convention. Thus, the Hague Court of Appeals affirmed the Court
of the Hague's refusal to return S.L. to the United States.
On May 18, 2020, the Gelderland District Court issued its first follow-up order
after having suspended Father and Stepmother's parental rights on March 9, 2020. The
court pointed to the recent Hague Court of Appeals decision, which cited Article 13 of
the 1980 Hague Convention for its refusal to return S.L. to the United States. The court
also noted that it had to wait for that Hague Court of Appeals decision because a
Netherlands family court could not decide the underlying custody dispute until after the
Hague court had decided not to return the child. Also, the Arnhem-Leeuwarden Court of
Appeals had already determined that it had the authority to not return S.L. by invoking
Article 11(1) of the 1996 Hague Convention in its order of March 5, 2020. Now, the
Gelderland District Court revisited the issue of its jurisdiction over S.L.'s case.
The Gelderland District Court determined that S.L.'s habitual residence was the
Netherlands. The court considered the length of time S.L. had been in the Netherlands,
her wish to continue living with her extended family and her cousin, who is
approximately the same age, and her education at a school in the Netherlands. The court
compared these factors with the lack of attachment and stability S.L. felt toward her
Father and Stepmother. The court concluded that it had jurisdiction under Article 8
Brussels II-bis because S.L.'s habitual residence was the Netherlands. But the Gelderland
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District Court did not make a final determination on Father and Stepmother's parental
rights, instead ordering the parties to submit additional evidence.
On July 30, 2020, the Johnson County District Court denied Aunt and Uncle's
motion to dismiss and motion to set aside the ex parte temporary orders. The district court
reasoned that
"the right to file an action for child custody under the UCCJEA [Uniform Child Custody
Jurisdiction and Enforcement Act] or under UCAPA isn't tied to a parent having legal
custody and isn't nullified by a suspension of parental rights in child protection
proceedings. . . . Instead, the clear focus of the UCCJEA and UCAPA is to allow the
assertion of child custody jurisdiction by 'a parent or person acting as a parent.'"
The court ruled that Kansas had child custody jurisdiction under three provisions of
K.S.A. 2020 Supp. 23-37,201: (1) significant connection jurisdiction, (2) more
appropriate forum jurisdiction, and (3) vacuum jurisdiction. The district court further held
that "a refusal to return a child on a finding of 'grave risk' under the [1980] Hague
Abduction Convention does not deprive a court having appropriate jurisdiction from
asserting child custody jurisdiction or itself ordering a return." Thus, the court held that it
had jurisdiction. Aunt and Uncle moved the court to alter or amend its judgment.
On August 27, 2020, the Gelderland District Court denied Father and Stepmother's
petition for provisional access and restoring contact with S.L. by telephone or video
conferencing. The court held that under Dutch law a child is entitled to interact with her
parents and with those who have a close personal relationship with her. The court denies
this interaction only if: (1) the interaction would seriously harm the child's mental or
physical development, (2) the parent or person who has a close personal relationship with
the child is manifestly unfit or must be considered manifestly unable to interact, (3) the
child aged 12 years or older has expressed serious objections to interacting with her (in
this case, S.L.'s) parent or with those with whom she has a close personal relationship, or
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(4) the interaction is otherwise contrary to the child's overriding interests. The court then
found that contact with Father and Stepmother has made S.L. feel unsafe, sad, and
unpleasant. The court also quoted disapprovingly from a letter, which Stepmother wrote
to S.L. as "not the way to get closer to" S.L. The court stated that no one benefitted from
Stepmother's following statements to S.L.:
"So I need you to fully understand that you will never, ever find peace in your life as long
as you refuse to negotiate an arrangement to come home, because no matter how much
you tell people you want to stay there, we will continue to fight against you to bring you
home, because we feel that we know what is best for you as your parents."
The Gelderland District Court ruled that contact between S.L. and her parents was
not in S.L.'s best interests, primarily because her parents had shown that they could not
interact with S.L. without pressuring her. In making its decision, the court affirmed its
previous decision that it had jurisdiction because S.L.'s habitual residence was the
Netherlands.
On September 15, 2020, the Johnson County District Court granted Aunt and
Uncle's motion to alter or amend. The court reviewed the decisions of the Gelderland
District Court in which that court declared its jurisdiction. The Johnson County District
Court understood that Father and Stepmother were appealing the Dutch court's decision
and directed counsel to provide updates on that appeal.
On October 15, 2020, the Johnson County District Court denied Aunt and Uncle's
motion to dismiss. The court held that it had exclusive jurisdiction under the UCCJEA to
determine child custody. The court ordered the return of S.L. to Father and Stepmother in
the United States.
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On October 20, 2020, the Gelderland District Court terminated the custody of
Father and Stepmother. In doing so, the court concluded:
"The court concludes that [S.L.] has been experiencing insecurity and uncertainty
in her life for a long time and that it is particularly important for [S.L.] that she has peace
of mind to be able to develop adequately. A lighter measure, such as the family
supervision order, is not appropriate, because it is not possible to work on a return of
[S.L.] to the situation with her father and stepmother in the US. This is also due to the
fact that the father and stepmother are unable to cooperate with [Child Protection] and to
act reliably in this."
On November 10, 2020, the Johnson County District Court denied Aunt and
Uncle's second motion to dismiss. The court reaffirmed its child custody jurisdiction
under the UCCJEA and confirmed that the United States is S.L.'s habitual residence. It
also ruled that the most recent order of the Gelderland District Court did not change any
of its rationale or holdings on jurisdiction. The Johnson County District Court further
ruled that the Dutch court's termination of Father and Stepmother's custody could not
justify dismissal because the Dutch court acted without jurisdiction.
On November 19, 2020, the Johnson County District Court ordered the return of
S.L. to her Father and Stepmother.
Aunt and Uncle timely appeal.
ANALYSIS
Did the Hague Court of Appeals follow the 1980 Hague Convention when it refused to
return S.L. to the United States?
Aunt and Uncle argue that the Johnson County District Court erred by
disregarding the most recent determinations of the Dutch courts. Father and Stepmother
17
argue that the later decisions of the Dutch district courts were at odds with the earlier
appellate court rulings and should be ignored. But the Gelderland District Court's
determination that it has jurisdiction follows from the Hague Court of Appeals' decision
not to return S.L. under the 1980 Hague Convention. Because the recent Dutch court
orders correctly make a final custody determination, we reverse the Johnson County
District Court decision.
The Dutch orders at issue are based on the 1980 Hague Convention. The Ninth
Circuit Court of Appeals had this to say about the 1980 Hague Convention:
"Adopted in 1980, the Hague Convention on the Civil Aspects of International
Child Abduction is intended to prevent 'the use of force to establish artificial
jurisdictional links on an international level, with a view to obtaining custody of a child.'
Despite the image conjured by words like 'abduction' and 'force,' the Convention was not
drafted in response to any concern about violent kidnappings by strangers. It was aimed,
rather, at the 'unilateral removal or retention of children by parents, guardians or close
family members.' . . . The preamble to the Convention describes the signatory states as
'[d]esiring to protect children internationally from the harmful effects of their wrongful
removal or retention,' effects which are thought to follow when a child 'is taken out of the
family and social environment in which its life has developed.' [Citations omitted.]"
Mozes v. Mozes, 239 F.3d 1067, 1069-70 (9th Cir. 2001), abrogated on other grounds by
Monasky v. Taglieri, 589 U.S. __, 140 S. Ct. 719, 206 L. Ed. 2d 9 (2020).
Congress implemented the Convention in the United States by enacting the International
Child Abduction Remedies Act (ICARA) in 1988. 22 U.S.C. §§ 9001 et seq. (2018);
Sampson v. Sampson, 267 Kan. 175, 176, 975 P.2d 1211 (1999).
The primary purposes of the 1980 Hague Convention include (1) preserving the
preabduction status quo of custody arrangements of the parties, and (2) deterring a parent
from crossing international boundaries in search of a more sympathetic court. Lops v.
Lops, 140 F.3d 927, 936 (11th Cir. 1998); Friedrich v. Friedrich, 78 F.3d 1060, 1063-64
18
(6th Cir. 1996). Under the 1980 Hague Convention, "when a child who was habitually
residing in one signatory state is wrongfully removed to, or retained in, another, Article
12 [of the Convention] provides that the latter state 'shall order the return of the child
forthwith.'" Mozes, 239 F.3d at 1070. A wrongful transfer occurs when one parent
removes the child to another country in breach of the other parent's lawful custody rights.
Sampson, 267 Kan. at 178. A wrongful retention occurs when a parent exercising lawful
custody rights authorizes the child's transfer to another country, but then the child is
retained in that country in breach of the parent's custody rights. See, e.g., Mozes, 239
F.3d at 1070, 1085.
A court in the abducted-to nation has only the authority to determine the merits of
the abduction claim, but not the merits of the underlying custody claim. See Blondin v.
Dubois, 189 F.3d 240, 245 (2d Cir. 1999). The 1980 Hague Convention relies on the
principle that the country in which the child is a habitual resident is in the best position to
decide upon questions of custody and access. Croll v. Croll, 229 F.3d 133, 137 (2d Cir.
2000), abrogated on other grounds by Abbott v. Abbott, 560 U.S. 1, 130 S. Ct. 1983, 176
L. Ed. 2d 789 (2010). The Mozes court points out the key concept of the 1980 Hague
Convention:
"The key operative concept of the Convention is that of 'wrongful' removal or
retention. In order for a removal or retention to trigger a state's obligations under the
Convention, it must satisfy the requirements of Article 3:
"The removal or the retention of a child is to be considered wrongful where—
a) it is in breach of rights 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
b) 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."
Mozes, 239 F.3d at 1070.
19
"If it is determined the child has been removed from its habitual residence, the
petitioner parent must show by a preponderance of the evidence that the removal was
wrongful." Sampson, 267 Kan. at 179. If the petitioner establishes a wrongful transfer or
retention, then the burden shifts to the respondent to show that an exception to the
Convention applies. Dalmasso v. Dalmasso, 269 Kan. 752, 757, 9 P.3d 551 (2000). One
such exception, which appears in an unnumbered paragraph of Article 13 of the
Convention, provides as follows: "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." 1980 Hague Convention, T.I.A.S. No. 11670, 1988 WL 411501, art. 13; de Silva
v. Pitts, 481 F.3d 1279, 1286 (10th Cir. 2007).
This exception, often called the age and maturity exception, is further explained by
the legislative history of the Convention.
"Elisa Pérez-Vera served as 'the official Hague Conference reporter for the Convention,'
and her explanatory report 'is recognized by the Conference as the official history of and
commentary on the Convention and is a source of background on the meaning of the
provisions of the Convention.' See Hague International Child Abduction Convention;
Text and Legal Analysis, 51 Fed. Reg. 10494, 10503 (1986)." Whallon v. Lynn, 230 F.3d
450, 455 n.5 (1st Cir. 2000).
The Explanatory Report: Hague Conference on Private International Law (1980),
available at https://assets.hcch.net/docs/a5fb103c-2ceb-4d17-87e3-a7528a0d368c.pdf
(Pérez-Vera Report) explains the age and maturity exception from Article 13:
"[T]he Convention also provides that the child's views concerning the essential question
of its return or retention may be conclusive, provided it has, according to the competent
authorities, attained an age and degree of maturity sufficient for its views to be taken into
account. In this way, the Convention gives children the possibility of interpreting their
20
own interests. Of course, this provision could prove dangerous if it were applied by
means of the direct questioning of young people who may admittedly have a clear grasp
of the situation but who may also suffer serious psychological harm if they think they are
being forced to choose between two parents. However, such a provision is absolutely
necessary given the fact that the Convention applies, ratione personae, to all children
under the age of sixteen; the fact must be acknowledged that it would be very difficult to
accept that a child of, for example, fifteen years of age, should be returned against its
will. Moreover, as regards this particular point, all efforts to agree on a minimum age at
which the views of the child could be taken into account failed, since all the ages
suggested seemed artificial, even arbitrary. It seemed best to leave the application of this
clause to the discretion of the competent authorities." de Silva, 481 F.3d at 1286 (quoting
Pérez-Vera Report ¶ 30, p. 433).
Procedurally, federal law provides that state courts and federal courts have
"concurrent original jurisdiction of actions arising under the Convention." 22 U.S.C.
§ 9003(a) (2018). Thus, persuasive authority applying the 1980 Hague Convention comes
from both federal and state cases. One such case is de Silva, because of the exception
invoked.
Petitioner-appellant S.L.V.M. Cyndie de Silva appealed the judgment of the
federal district court denying the return of her son, Jonathan, to her custody in Canada.
The district court ruled that Jonathan's habitual residence was in Canada but invoked the
age and maturity exception to allow him to remain in Oklahoma pending a custody
determination. The de Silva court noted that the Convention permits the courts of the
abducted-to country to refuse to order the return of a child if the child objects and has
attained an age and degree of maturity at which it is appropriate to take his (in that case,
Jonathan's) views into account. The district court interviewed Jonathan in camera and
considered his wish to remain in Oklahoma, expressed without apparent adult
indoctrination. The de Silva court's ruling on the 1980 Hague Convention also suggested
a jurisdiction analysis:
21
"Given the court's duty to consider Jonathan's best interest and to determine whether he
was of sufficient age and maturity to weigh in on this matter, we find no error in the
district court's ultimate conclusion that Jonathan should remain in Oklahoma while
Oklahoma courts decide the custody matter. We hold that, under the unusual
circumstances of this case, it is appropriate to refuse repatriation to Canada solely on the
basis of Jonathan's desire to stay in Oklahoma." (Emphasis added.) de Silva, 481 F.3d at
1288.
The de Silva court did not explain how its refusal to return Jonathan to Canada
transferred the jurisdiction of his habitual residence, Canada, to the abducted-to state of
the United States so that Oklahoma courts could decide custody. Nevertheless, a court in
a Hague Convention contracting state usually respects another contracting state's decision
unless it clearly misinterprets the 1980 Hague Convention. This type of review was at
issue in Asvesta v. Petroutsas, 580 F.3d 1000 (9th Cir. 2009).
Despina Asvesta, a Greek citizen, and George Petroutsas, a dual citizen of Greece
and the United States, had moved their minor child between the two countries. When the
mother kept the child in Greece, the father filed a 1980 Hague Convention petition in
Greek courts. After the Greek courts denied the father's petition, he elected the self-help
remedy of taking the child from Greece and bringing the child to the United States. Then
the mother filed her own 1980 Hague Convention petition with a federal district court in
California. That court deferred to the Greek court's earlier decision to keep the child in
Greece. The Ninth Circuit Court of Appeals reversed, outlining when comity is
appropriate and when it is not.
"The Ontario Court of Appeal in Pitts v. De Silva, 2008 ON.C. LEXIS 34 (Jan.
10, 2008), adopted an approach similar to that of Diorinou [v. Mezitis, 237 F.3d 133 (2d
Cir. 2001),] and Carrascosa [v. McGuire, 520 F.3d 249 (3d Cir. 2008),] in determining
whether it should accord deference to the Tenth Circuit's affirmance of a district court's
Hague Convention judgment that refused under Article 13 to return a child to Canada.
The Ontario court observed that '[t]he combination of comity, on the one hand, and of the
22
need to preserve the Hague Convention's effectiveness, on the other, calls for courts to
avoid interfering, as much as possible, with foreign interpretations of the Convention.'
Nonetheless, the court determined that in some instances, deference could be properly
withheld if the foreign decision 'evinces a clear misinterpretation of the Hague
Convention or fails to meet a minimum standard of reasonableness.' As in Diorinou and
Carrascosa, the Ontario Court of Appeals considered whether the district court, which
the Tenth Circuit had affirmed, conducted a proper analysis under Article 13. Concluding
that it had, the Ontario court extended deference to the Tenth Circuit's decision.
[Citations omitted.]" Asvesta, 580 F.3d at 1013.
The Asvesta court, however, did not explain how this comity allowed the
abducted-to contracting state to gain jurisdiction over the underlying custody dispute.
But the de Silva court's decision not to return Jonathan to his habitual residence
makes it similar to the Hague Court of Appeals' decision here not to return S.L. to the
United States. Here, the Hague Court of Appeals held that S.L. had been wrongfully
retained from the country of her habitual residence. But then the appellate court invoked
two exceptions.
First, the Hague Court of Appeals invoked Article 13(b) of the 1980 Hague
Convention, which United States courts have called the "grave risk of harm exception."
See, e.g., Friedrich, 78 F.3d at 1068. This exception states that the abducted-to
contracting state is not bound to order the child's return if "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 an intolerable situation." 1980 Hague Convention, T.I.A.S. No. 11670, 1988
WL 411501, art. 13. Significantly, the translated decision of the Hague Court of Appeals,
which is included in our appellate record, states that "serious concern exists regarding the
physical and the emotional safety of the minor at the parents' home." We note, however,
that a "serious concern" about the physical and the emotional safety of a minor in the
parents' home may not meet the narrow application of the grave risk exception.
23
Second, the Hague Court of Appeals invoked the age and maturity exception, as
did the de Silva court. The appellate court heard from S.L. before the hearing on
March 12, 2020, at which point S.L. was 13 years old. As of July 2021, she is now 15.
The Hague Court of Appeals ruled that S.L. is of the age and maturity that justifies taking
her opinion into account, and she has strongly and consistently objected to returning to
the United States. The de Silva case provides persuasive authority that the Hague Court
of Appeals had the authority to invoke the age and maturity exception under Article 13 of
the 1980 Hague Convention and refuse to return S.L. to the United States.
Should this court honor the Dutch court's decision under principles of international
comity?
The question of whether the Hague Court of Appeals could invoke an exception is
only the first step. The next step is deciding if that decision was proper such that we
should honor the decision or give it deference. Rather than a typical standard of review,
we apply the principles of comity.
Ordinarily, an appellate court determines habitual residence under the deferential
"clear error" standard. Monasky, 140 S. Ct. at 730. That is, if the countries' positions were
reversed and we were reviewing the Johnson County District Court's determination of
S.L.'s habitual residence under the 1980 Hague Convention, then we would review the
decision for clear error.
But here, Father and Stepmother filed their petition under the 1980 Hague
Convention in the Netherlands. Thus, we must decide what effect the Dutch courts'
resolution of Father and Stepmother's Hague Convention petition had on subject matter
jurisdiction. A proper analysis begins by distinguishing between subject matter
jurisdiction and the doctrine of international comity.
24
Subject matter jurisdiction is the legal authority of the court to hear a type of case
or dispute. A court must have subject matter jurisdiction to enter a valid judgment. If a
court lacks subject matter jurisdiction, its actions have no legal force or effect, and the
court's orders are void. In re Estate of Heiman, 44 Kan. App. 2d 764, 766, 241 P.3d 161(2010). Parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel; a
failure to object to the court's jurisdiction does not invest the court with the requisite
subject matter jurisdiction. Goldman v. University of Kansas, 52 Kan. App. 2d 222, 225,
365 P.3d 435 (2015). Courts are obligated to raise and address an apparent lack of subject
matter jurisdiction even if the parties have not. Whether jurisdiction exists is a question
of law over which this court's scope of review is unlimited. In re Care & Treatment of
Emerson, 306 Kan. 30, 33-34, 392 P.3d 82 (2017).
"Under comity principles, 'courts of one state give effect to the laws and judicial
decisions of another, not as a matter of obligation but out of deference and respect.'" In re
A.A.-F., 310 Kan. 125, 139, 444 P.3d 938 (2019) (quoting Padron v. Lopez, 289 Kan.
1089, 1108, 220 P.3d 345 [2009]). Comity is "at the heart of the [Hague] Convention."
Diorinou, 237 F.3d at 142. "The careful and thorough fulfillment of our treaty obligations
stands not only to protect children abducted to the United States, but also to protect
American children abducted to other nations—whose courts, under the legal regime
created by this treaty, are expected to offer reciprocal protection." Blondin, 189 F.3d at
242. Thus, "American courts will normally accord considerable deference to foreign
adjudications as a matter of comity." Diorinou, 237 F.3d at 142.
But courts of the United States have declined to extend comity to foreign Hague
Convention orders if they found that the foreign court's decision "'clearly misinterprets
the [1980] Hague Convention, contravenes the Convention's fundamental premises or
objectives, or fails to meet a minimum standard of reasonableness.'" Smedley v. Smedley,
772 F.3d 184, 189 (4th Cir. 2014) (quoting Asvesta, 580 F.3d at 1014). Analyzing the
foreign court's decision before extending or declining comity is an important step. "In the
25
exercise of comity that is at the heart of the Convention (an international agreement, we
recall, that is an integral part of the 'supreme Law of the Land,' U.S. Const., art. VI), we
are required to place our trust in the court of the home country to issue whatever orders
may be necessary to safeguard children who come before it." Blondin, 189 F.3d at 248-
49.
Comity in a 1980 Hague Convention case typically means that a domestic court
considers whether to accept the foreign court's adjudication of the child's return and the
consequences of that decision. See Diorinou, 237 F.3d at 139; Cook v. Arimitsu, No.
A19-1235, 2020 WL 1983223, at *4 (Minn. Ct. App. 2020) (unpublished opinion), cert.
denied 141 S. Ct. 1514 (2021). Some appellate courts have reviewed a trial court's
deference or refusal to defer to a foreign judgment de novo, as they would with questions
of res judicata or collateral estoppel. See Diorinou, 237 F.3d at 140.
When domestic courts accept a foreign tribunal's adjudication of the 1980 Hague
Convention, they first analyze the foreign court's decision under a comity analysis. In
Diorinou, a Greek court implicitly ruled that the mother's retention of the children in
Greece was not wrongful and explicitly stated that the grave risk exception in Article 13
would apply even if the retention were wrongful. 237 F.3d at 144. The Diorinou court not
only extended comity to the Greek court's decision not to return the children, but also
ruled that Greece had valid jurisdiction to decide the underlying custody dispute. 237
F.3d at 146.
In Smedley, the Fourth Circuit Court of Appeals extended comity to a German
court's analysis of the 1980 Hague Convention even though the German court never
decided the children's habitual residence. The Smedley court determined that the question
of habitual residence was not dispositive or even helpful because an affirmative defense
under Article 13 would apply anyway. The Smedley court also ruled that the German
26
court's factual determination from the evidence was at least minimally reasonable. 772
F.3d at 190.
Cooperation and comity both came into play in Matter of Marriage of Long and
Borrello, 4 Wash. App. 2d 231, 421 P.3d 989 (2018). Courts in both Italy and
Washington agreed that Washington was the child's habitual residence. Thus, the Italian
court held that its temporary emergency orders regarding the child were effective only
"until 'such time when the American court will be able to evaluate the array of elements
indicated so far' and 'may make any final decision attributable to it alone.'" 4 Wash. App.
2d at 237. The Marriage of Long and Borrello court upheld the trial court's order to
return the child to Washington and its entry of a temporary parenting plan, ruling that the
trial court had jurisdiction under the UCCJEA and its order did not contravene the rule of
comity. 4 Wash. App. 2d at 245.
Even where domestic courts find themselves at odds with foreign courts, they still
typically engage in a comity analysis. When the Asvesta court reversed the lower court, it
laid out the reasons that the court should not defer to the Greek courts' decisions. The
Asvesta court specified that the Greek courts' analysis misapplied provisions of the 1980
Hague Convention, contradicted the principles and objectives of the 1980 Hague
Convention, and relied on unreasonable factual findings. 580 F.3d at 1010.
In Guimaraes v. Brann, 562 S.W.3d 521 (Tex. Ct. App. 2018), the Texas Court of
Appeals declined to extend comity to a 1980 Hague Convention judgment from a
Brazilian court:
"[A] court in the United States does not automatically lose jurisdiction to decide
custody issues once a co-signer of the Hague Convention determines that the child will
not be returned to the United States. Instead, the trial court here should examine the
foreign court's opinion to determine whether it 'clearly misinterprets the Hague
27
Convention, contravenes the Convention's fundamental premises or objectives, or fails to
meet a minimum standard of reasonableness.'
"Thus, even though Guimaraes's brief does not address the merits, analyze, or
evaluate the propriety of the Hague Convention Order or the order affirming it, this Court
will do so in reviewing the propriety of the trial court's decision not to extend comity to
that order. [Citations omitted.]" 562 S.W.3d at 539 (quoting Asvesta, 580 F.3d at 1014).
Ultimately, the Guimaraes court ruled that the Brazilian court had "disregard[ed]
the plain language of the Hague Convention" in applying the "well-settled" exception to
Article 12, which allows the court not to return a child if the child is now settled in their
new environment. 562 S.W.3d at 541 (explaining that the exception could only apply if
the parent had waited more than one year before petitioning for the return of the child).
And the Guimaraes court ruled that the Brazilian court wrongfully considered the
underlying merits of the custody action, that is, the child's best interests, rather than limit
itself to the merits of the abduction claim. 562 S.W.3d at 543.
In Cook, the Minnesota Court of Appeals ruled that the orders of a Japanese court
applying the 1980 Hague Convention fell short under a comity analysis. The mother was
ordered to return the children to the United States, refused to comply, and later sought to
modify the return order because the father's finances had deteriorated. The Cook court
ruled that the Japanese court wrongly rewarded the mother for her noncompliance when
it modified its original order and allowed the mother to keep the children in Japan. "The
Japanese orders abandoned a fundamental purpose of the Hague Convention—to ensure
the prompt return of the children—and undermined the Hague Convention's forum-
selection mechanism by allowing mother to wait for changed circumstances that were
advantageous to her goal of keeping the children in Japan." Cook, 2020 WL 1983223, at
*4.
Here, the Johnson County District Court cited Katz v. Katz, 986 N.Y.S.2d 611, 117
A.D.3d 1054 (N.Y. App. Div. 2014). In Katz, the mother took the child to the Dominican
28
Republic, and the Dominican Republic court denied the father's 1980 Hague Convention
petition for return. The Dominican Republic court found that if the child were returned,
"she would be exposed to a violation of her fundamental rights due to issues of domestic
violence." 986 N.Y.S.2d at 612. Without analysis of comity or of the Dominican
Republic court's decision, the Katz court asserted that it had jurisdiction over the
underlying custody dispute: "A decision under the Convention is not a determination on
the merits of any custody issue, but leaves custodial decisions to the courts of the country
of habitual residence." 986 N.Y.S.2d at 613. It is not readily apparent why the Katz court
did not do what the Diorinou and Smedley courts did and extend comity to the Dominican
Republic court's decision. And it is not clear why the Katz court did not analyze comity
before rejecting the foreign court's decision, as the Asvesta, Guimaraes, and Cook courts
did. The opinion does not make clear whether the Katz court disregarded the Dominican
Republic court's decision because it was wrongly decided, because comity was not
appropriate, because of implicit judicial bias, or some other reason. This lack of analysis
makes Katz the least persuasive of the three previously cited cases.
This requires us to analyze the Hague Court of Appeals' application of the 1980
Hague Convention. The court invoked two exceptions to permit S.L. to stay in the
Netherlands, and we focus on whether the court invoked these exceptions properly. The
court did not order S.L. to return to the United States (1) because there was a grave risk
that her return would expose her to physical or psychological harm or otherwise place her
in an intolerable situation and (2) because she objected to being returned and she has
attained an age and degree of maturity at which it is appropriate to take account of her
views. The Hague Court of Appeals properly applied the age and maturity exception.
"Given the fact-intensive and idiosyncratic nature of the inquiry, decisions
applying the age and maturity exception are understandably disparate." de Silva, 481 F.3d
at 1287. The courts in Gallardo v. Orozco, 954 F. Supp. 2d 555, 578-79 (W.D. Tex.
2013), and Simcox v. Simcox, 511 F.3d 594, 604 (6th Cir. 2007), refused to apply the age
29
and maturity exception because the child was eight years old. But in Anderson v. Acree,
250 F. Supp. 2d 876, 882-83 (S.D. Ohio 2002), the court applied the exception to an
eight-year-old who calmly and readily answered questions, pointed to New Zealand on a
globe, understood the difference between truth and a lie, and understood her obligation to
tell the truth. Some courts have extended the exception to children as young as 10 and 11
years old. Aranda v. Serna, 911 F. Supp. 2d 601, 611-12, 614-15 (M.D. Tenn. 2013)
(consulting The 1980 Hague Convention on the Civil Aspects of International Child
Abduction, A Guide for Judges [Federal Judicial Center 2012]). Meanwhile, other courts
have declined to extend the exception to children as old as 12 years. See Babcock v.
Babcock, 503 F. Supp. 3d 862, 880-81 (S.D. Iowa 2020).
The exception can only apply when the child or children have expressed an
objection. In Avendano v. Smith, 806 F. Supp. 2d 1149, 1177 (D.N.M. 2011), the court
did not apply the age and maturity exception because it did not hear testimony in open
court, interview the children in chambers, or receive a letter or other communication from
the children. In Velozny on behalf of R.V., N.V., and E.V. v. Velozny, No. 20 CIV 6659
(GBD), 2021 WL 3115870 (S.D.N.Y. 2021), the children were ages 15, 12, and 4 years
old. But the Velozny court did not apply the age and maturity exception even to the 15-
year-old because the children expressed merely a preference rather than a particularized
objection. 2021 WL 3115870, at *12-13.
Further, when the child objects to being returned, that objection cannot be coached
or imposed on the child. In Babcock, the court did not apply the age and maturity
exception for two major reasons. First, the child's reasons for staying in the United States
had to do with his school, friends, and sports and were a more generalized preference
than particular objection. Second, the Babcock court suspected undue influence from the
father, who bought the child a dirt bike shortly before he was to return to Canada. 503 F.
Supp. 3d at 881.
30
In Yang v. Tsui, No. 2:03-cv-1613, 2006 WL 2466095 (W.D. Penn. 2006)
(unpublished opinion), the court quoted the Pérez-Vera Report on the age and maturity
exception, but also noted a problem with courts applying the Article 13 exceptions too
freely:
"To conclude our consideration of the problems with which this paragraph deals,
it would seem necessary to underline the fact that the three types of exception to the rule
concerning the return of the child must be applied only so far as they go and no further.
This implies above all that they are to be interpreted in a restrictive fashion if the
Convention is not to become a dead letter . . . [A] systematic invocation of the said
exceptions, substituting the forum chosen by the abductor for that of the child's residence,
would lead to the collapse of the whole structure of the Convention by depriving it of the
spirit of mutual confidence which is its inspiration." 2006 WL 2466095, at *15 (quoting
Pérez-Vera Report ¶ 34, pp. 434-35).
The Yang court went on to say that it must be satisfied that the child's objections to
return reflect "her own mature opinion and are not merely the conduit for the opinions of
others." 2006 WL 2466095, at *15. The Yang court ultimately did not give the 10-year-
old child's opinion sufficient weight to apply the age and maturity exception because of
evidence of outside influence. 2006 WL 2466095, at *15.
Here, the record puts S.L. in the same category as the minor in de Silva. S.L. was
13 years old when she first appeared at the Arnhem-Leeuwarden Court of Appeals in
November 2019, "wanting to be heard by the court without the presence of any
beneficiaries." She is now 15 years old. The record leaves an ambiguity as to whether
Aunt and Uncle contacted Child Protection on their own or whether S.L. prompted them
to do so. The record is opaque on how the process began, and we would need to make an
inference either way. But what is abundantly clear is S.L.'s consistent objections to
returning to the United States with Father and Stepmother, with no evidence in the record
showing her opinion is the result of undue influence.
31
The Hague Court of Appeals properly applied the age and maturity exception. S.L.
fits almost precisely under the reason the Convention drafters included the exception in
the first place. "'[I]t would be very difficult to accept that a child of, for example, fifteen
years of age, should be returned against its will.' Elisa Pérez-Vera, Explanatory Report:
Hague Conference on Private International Law ¶ 30, in 3 Acts and Documents of the
Fourteenth Session 426, 433 (1980)." Felder v. Wetzel, 696 F.3d 92, 101 (1st Cir. 2012).
In some cases, a court would have no trouble concluding that the age and maturity
exception applies based on observations and evidence. See McManus v. McManus, 354 F.
Supp. 2d 62, 71 (D. Mass. 2005). This is one of those cases. The Hague Court of Appeals'
order did not clearly misinterpret the 1980 Hague Convention, contravene the
Convention's fundamental premises or objectives, or fail to meet a minimum standard of
reasonableness. The Hague Court of Appeals' decision is entitled to comity from us.
The Hague Court of Appeals also applied the grave risk exception. Article 13 of
the 1980 Hague Convention provides that a court is not bound to order the return of the
child if the person who opposes the child's return establishes that 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 an intolerable situation. Some courts have applied this exception quite
narrowly, using it to refuse to return a child to a "zone of war, famine, or disease" or in
cases of "serious abuse or neglect." Friedrich, 78 F.3d at 1069.
The Sixth Circuit Court of Appeals stressed three factors in determining if there is
a grave risk of harm to the child: (1) the serious nature of the abuse, (2) the extreme
frequency with which the abuse occurs, and (3) the reasonable likelihood that the abuse
will occur again absent sufficient protection. Simcox, 511 F.3d at 609. To review, S.L.
told the Council the following: She explained that arguing was occurring in the home.
S.L. stated she felt that "she must do everything to please the stepmother, that she has
moved many times, that the stepmother strikes her and that she wants to stay in the
Netherlands and wants peace." S.L.'s Father acknowledged her account. He stated:
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"[T]he family has moved often, that there are always a lot of arguments at home, that
domestic violence has taken place between the father and the stepmother, that the
stepmother takes out her emotions on [S.L.] and that the stepmother [strikes S.L.] and
yells at her." Also, Aunt and Uncle confirmed that there were "many problems between
the father and the stepmother, that the stepmother always criticizes [S.L.] and that she
does not hesitate to use physical violence."
Based on what S.L., her Father, and Aunt and Uncle told the Council, Aunt and
Uncle have met their burden of showing by clear and convincing evidence that a grave
risk of harm existed in this case.
After the Dutch court refused S.L.'s return, which court had jurisdiction?
But the crux of the dispute here is whether a Kansas court could properly exercise
jurisdiction over the underlying custody case. The 1980 Hague Convention empowers
courts to determine rights only under the Convention and not the merits of any underlying
child custody claims. See Babcock, 503 F. Supp. 3d at 869.
"This means that in cases involving the 1980 Hague Abduction Convention, a federal
court decides only the issue as to whether the child should be returned under that
Convention. However, should one of the defenses be established and the child not
returned, further issues concerning jurisdiction and the substantive custody determination
must be left to state courts." Spector, Memorandum: Accommodating the UCCJEA and
the 1996 Hague Convention, 63 Okla. L. Rev. 615, 623 (2011).
Unfortunately, Professor Spector's 2011 memorandum advising how to implement a
newly signed treaty into United States law was premature. In 2010, the United States
signed the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition,
Enforcement and Co-operation in Respect of Parental Responsibility and Measures for
the Protection of Children. But the United States has yet to ratify the 1996 Hague
33
Convention. Thus, Professor Spector's statement that "issues concerning jurisdiction . . .
must be left to state courts" accurately describes the problem before us but provides little
guidance.
If the foreign court has properly invoked the exception, such that principles of
comity apply, does it take jurisdiction, and how? Frustratingly, the de Silva court simply
assumed without explaining that, after Oklahoma courts properly refused to return the
child to Canada, Oklahoma courts would also take child custody jurisdiction from
Canada. 481 F.3d at 1288. As Spector's article maintained, these problems must be left to
the state courts. But the Katz court arrived at the opposite conclusion while failing to
analyze how a New York state court had jurisdiction over custody of a child who would
not return from the Dominican Republic. 986 N.Y.S.2d at 613. The Katz court did not lay
out a comity analysis before declining to defer to the foreign court. Contra Cook, 2020
WL 1983223, at *4-5. The Katz court did not address the effect of the child's permanent
absence on jurisdiction.
Colorado, however, has dealt with temporary absence. In In re T.L.B., 272 P.3d
1148, 1152 (Colo. App. 2012), the trial court invoked the grave risk exception and
refused to return the child to Canada, but only until the Canadian court could enter an
order, or for a maximum of one year. The In re T.L.B. court rejected the mother's
argument that Article 16 of the 1980 Hague Convention compelled a different result. The
mother argued that the Colorado court should take jurisdiction over the underlying
custody dispute, asserting that Article 16 of the 1980 Hague Convention required the
court to take jurisdiction. But Article 16 is written in the negative, telling courts what not
to do. Article 16 bars the judicial and administrative authorities of the abducted-to
country from deciding on the merits of rights of custody "until it has been determined that
the child is not to be returned" to the abducted-from country. 1980 Hague Convention,
T.I.A.S. No. 11670, 1988 WL 411501, art. 16. The In re T.L.B. court did not interpret
Article 16 as requiring the abducted-to country to decide custody in all cases in which the
34
child is not returned. Rather, Article 16 permitted the trial court to exercise temporary
emergency jurisdiction and allow the abducted-from country, Canada, to exercise custody
jurisdiction. 272 P.3d at 1155. The In re T.L.B. court did not need to address whether
Colorado could take over custody jurisdiction if it permanently refused to return the child
to Canada. That issue was outside the scope of its opinion because the Colorado court did
not attempt to take permanent jurisdiction. It seems no state has yet outlined how a
refusal to return a child under an exception to the 1980 Hague Convention affects the
jurisdiction over the underlying custody dispute.
To answer this question, we would need to return to the text of the 1980 Hague
Convention. As in In re T.L.B., the relevant provision is Article 16 because it describes a
properly invoked exception allowing authorities to refuse to return the child. In full,
Article 16 states:
"After receiving notice of a wrongful removal or retention of a child in the sense
of Article 3, 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 until it has been determined that the child is not to be returned under
this Convention or unless an application under this Convention is not lodged within a
reasonable time following receipt of the notice." 1980 Hague Convention, T.I.A.S. No.
11670, 1988 WL 411501, art. 16.
"The clear import of treaty language controls unless 'application of the words of
the treaty according to their obvious meaning effects a result inconsistent with the intent
or expectations of its signatories.'" Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S.
176, 180, 102 S. Ct. 2374, 72 L. Ed. 2d 765 (1982) (quoting Maximov v. United States,
373 U.S. 49, 54, 83 S. Ct. 1054, 10 L. Ed. 2d 184 [1963]); see Vienna Convention on the
Law of Treaties, arts. 31-32, May 23, 1969, 1195 U.N.T.S. 331. Treaty interpretation
under Articles 31-32 of the Vienna Convention on the Law of Treaties materially follows
the same methods to discern meaning as statutory interpretation. Bhala & Witmer,
35
Interpreting Interpretation: Textual, Contextual, and Pragmatic Interpretative Methods
for International Trade Law, 35 Conn. J. Int'l L. 58, 69, 74 (2020). Courts avoid
interpreting statutes in a way which renders them meaningless, presuming that
legislatures do not intend to enact meaningless legislation. Montgomery v. Saleh, 311
Kan. 649, 655, 466 P.3d 902 (2020). Thus, courts should avoid interpreting provisions
within a treaty in a way which renders them meaningless.
To give effect to Article 16, an abducted-to contracting state must have the
authority to decide on the merits of rights of custody after it has been determined that the
child is not to be returned. Simply put, if the new country cannot ever take jurisdiction,
then Article 16 is a nullity. The text of Article 16 has no effect and no meaning unless the
abducted-to country can decide custody after properly invoking an exception to the 1980
Hague Convention. Congress has implemented the 1980 Hague Convention through
ICARA. 22 U.S.C. §§ 9001 et seq. "Congress presumably does not enact useless laws."
United States v. Castleman, 572 U.S. 157, 178, 134 S. Ct. 1405, 188 L. Ed. 2d 426 (2014)
(Scalia, J., concurring). Presumably, the United States does not participate in drafting,
and does not sign and ratify, useless treaties.
Our reading of Article 16 finds support in the Pérez-Vera Report:
"[T]he competent authorities of [the abducted-to state] are forbidden to adjudicate on the
matter when they have been informed that the child in question has been, in terms of the
Convention, wrongfully removed or retained. This prohibition will disappear when it is
shown that, according to the Convention, it is not appropriate to return the child . . . . In
fact, it is perfectly logical to provide that this obligation will cease as soon as it is
established that the conditions for a child's return have not been met, either because the
parties have come to an amicable arrangement or because it is appropriate to consider
[one of] the exceptions provided for in articles 13 and 20." Pérez-Vera Report ¶ 121, p.
463.
36
Further, without Article 16, the 1980 Hague Convention would still lead to the
same result under an analysis of habitual residence. "The place where a child is at home,
at the time of removal or retention, ranks as the child's habitual residence." Monasky, 140
S. Ct. at 726. Father and Stepmother have argued repeatedly to the Kansas and Dutch
courts that S.L.'s habitual residence was the United States when her retention occurred.
But locating a child's home is a fact-driven inquiry which cannot be reduced to a
predetermined formula. "Common sense suggests that some cases will be
straightforward." Monasky, 140 S. Ct. at 727. This is not one of those cases. It has three
unusual components.
First, the standing custody order from 2011 onward was the order from the
Amsterdam District Court awarding custody of S.L. to Father and Stepmother jointly.
Second, there was no ongoing custody battle at the time of S.L.'s retention. That is, this
case does not involve the usual occurrence of one parent taking the child to a different
country seeking a more sympathetic court. Finally, the date of retention is difficult to
calculate, given there was a break in proceedings from December 5 to December 10,
2019, when S.L. could have returned to the United States.
The negotiation and drafting history of the 1980 Hague Convention shows that the
particulars of a case dictate the child's habitual residence. The Pérez-Vera Report called
habitual residence "a question of pure fact," deliberately chosen over formal legal
concepts like domicile and nationality because of the flexibility the term affords. Pérez-
Vera Report ¶ 66, p. 445. "The aim: to ensure that custody is adjudicated in what is
presumptively the most appropriate forum—the country where the child is at home."
Monasky, 140 S. Ct. at 727. In de Silva, that country was the United States because of the
de Silva court's rightful invocation of the age and maturity exception. Here, the Hague
Court of Appeals correctly decided that S.L. will not live in the United States against her
will. Surely the fact that she will not return impacts the factual question of whether this
country remains her habitual residence.
37
Critically, the Johnson County District Court did not analyze whether to extend
comity to the Dutch courts, whether Father and Stepmother's 1980 Hague Convention
petition was wrongly denied, or whether the Dutch courts' refusal to return S.L. would
change her habitual residence. Instead, its UCCJEA analysis concluded that Kansas may
not have had "home state" jurisdiction, but it had jurisdiction over S.L.'s custody under
"significant connections" jurisdiction, "more appropriate forum," and "vacuum"
jurisdiction.
The UCCJEA provides a prioritized listing of bases upon which child custody
jurisdiction may properly be found. K.S.A. 2020 Supp. 23-37,201(a)(1) allows
jurisdiction if the child lived in Kansas with a parent or person acting as a parent for six
or more months before the commencement of the proceeding and the child is absent from
Kansas but a parent or person acting as a parent continues living in this state. Aunt and
Uncle argue that because this provision does not apply to S.L., the Johnson County
District Court could not have jurisdiction. They are correct that this provision does not
apply to S.L. since she went from Florida to the Netherlands and did not live in Kansas
for six or more months before this proceeding. But they are wrong that the analysis ends
with this home state jurisdiction. Three other bases for jurisdiction are possible, although
none of them give Kansas jurisdiction in this case.
The second basis for jurisdiction is conjunctive in critical ways. A Kansas court
has jurisdiction under K.S.A. 2020 Supp. 23-37,201(a)(2) if no court has home state
jurisdiction and (A) the child and the parents, or the child and at least one parent or
person acting as a parent have a significant connection with the state other than mere
physical presence, and (B) substantial evidence is available in this state concerning the
child's care, protection, training, and personal relationships. Even if no other court has
home state jurisdiction, Kansas court jurisdiction will fail under both (A) and (B). First,
both formulations under (A) require the child be involved. Second, whether it is one
parent or both, the child must also have significant connections with Kansas. Significant
38
connections are also compared with the connections of the child against other potential
states. See In re Marriage of Harris, 20 Kan. App. 2d 50, 58-60, 883 P.2d 785 (1994).
S.L. had not lived in Kansas for two years, had not been enrolled in school, and had no
more extended family than she had in the Netherlands. Father's parents and Aunt and
Uncle lived in Groenlo, Netherlands, while Stepmother's mother lived in Overland Park,
Kansas. More importantly, Kansas would also need to have substantial evidence
concerning S.L.'s care, protection, training, and personal relationships. Up to this point,
S.L. had been enrolled in school in Florida, presumably where her school records and
friends would be. But the proceedings in the Netherlands show evidence concerning S.L.,
in contrast to very little evidence produced in Kansas.
Third, Kansas would have jurisdiction if all courts having home state or
"significant connection" jurisdiction declined to exercise their jurisdiction on the ground
that Kansas courts were the more appropriate forum to determine custody. Here, the
Netherlands asserted rather than declined jurisdiction. If the Netherlands had no
jurisdiction to assert, then Kansas would have vacuum jurisdiction. In either case, the
"more appropriate forum" would not apply.
Finally, Kansas would have jurisdiction if no court of any other state would have
jurisdiction. This vacuum jurisdiction would apply if the Hague Court of Appeals had
incorrectly asserted Article 13 exceptions such that comity did not apply. If the Dutch
court had misinterpreted the 1980 Hague Convention or contravened its principles, then
the Netherlands could not properly exercise jurisdiction and Kansas would fill that
vacuum. But in this case, the Johnson County District Court erred in determining that it
had jurisdiction under the UCCJEA because it did not analyze the Hague Court of
Appeals' decision under principles of comity. The Johnson County District Court could
only fill the vacuum left behind after reviewing and rejecting the Dutch court's 1980
Hague Convention analysis.
39
Finally, the order which gave Stepmother custody, along with Father, over S.L. in
the first place was the 2011 order from the Amsterdam District Court. But the question of
whether this order provided the Netherlands with exclusive, continuing jurisdiction under
K.S.A. 2020 Supp. 23-37,202 is not properly before us.
Does the Uniform Child Abduction Prevention Act provide for the requested relief?
Aunt and Uncle argue that the filing of an action under the UCAPA is improper.
Father and Stepmother respond that they are S.L.'s parents and an "abduction" has
occurred, justifying a petition under UCAPA. Because Father and Stepmother seek a
remedy under UCAPA without providing any authority showing that UCAPA allows
such a remedy, the Johnson County District Court erred in granting their petition. In
particular, the purpose of the UCAPA is as follows:
"The purpose of the Uniform Child Abduction Prevention Act is to deter both predecree
and postdecree domestic and international child abductions by parents, persons acting on
behalf of a parent or others. Family abductions are preventable through identification of
risk factors and imposition of appropriate preventive measures." 2 Elrod, Kansas Law &
Practice: Kansas Family Law § 13:26 (2021 ed.).
Thus, the purpose of the UCAPA is specifically to prevent abduction. Sherer, The
Maturation of International Child Abduction Law: From the Hague Convention to the
Uniform Child Abduction Prevention Act, 26 J. Am. Acad. Matrim. Law. 137, 151
(2013). Then, an order under UCAPA could, for example, require the respondent to
surrender the child's passport. Uniform Child Abduction Prevention Act (Statutory Text,
Comments and Unofficial Annotations by Linda D. Elrod, Reporter), 41 Fam. L.Q. 23, 45
(2007). Father and Stepmother here have provided no authority that UCAPA could
provide the relief they seek.
40
Aunt and Uncle accuse Father and Stepmother of forum shopping, saying they
simply do not like the Dutch court rulings and are trying to force a different result. The
cases mentioned in this opinion point to the 1980 Hague Convention as an exclusive
remedy for returning a child to the country of habitual residence. Father and Stepmother
do not explain how the remedies can exist side by side or how UCAPA could provide
them with relief that the 1980 Hague Convention could not. They do not cite a single case
to either the Johnson County District Court or to us where UCAPA was applied in the
way that they request.
We reverse the decision of the Johnson County District Court, vacate the orders of
the Johnson County District Court, and remand with directions to give comity to the
Hague Court of Appeals.
Reversed in part, vacated in part, and remanded with directions.
41