Child Abduction • Hague Convention Petition • Child Retention Date

Blackledge v. Blackledge, PICS Case No. 17-1288 (3d Circ. May 9, 2017) Krause, J. (38 pages).

The court concluded that for purposes of the Hague Convention on the Civil Aspects of International Child Abduction, the retention date of a child is the date beyond which the noncustodial parent no longer consents to the child's continued habitation with the custodial parent and seeks to reassert custody rights. The court affirmed an order denying father's Hague Convention petition.

The parties are the natural parents of a minor son, J.B., a U.S. citizen born in the Ukraine. Father is a U.S. citizen who resides in Germany. Mother is a Ukrainian citizen and lawful permanent resident of the U.S. who resides in Pittsburgh with J.B. While the family lived in multiple places, in the spring of 2011, father accepted a job in Germany and mother enrolled in a Ph.D. program at the University of Pittsburgh and moved there with J.B. In 2013, mother and son agreed to move to Germany for two years. In August 2015, mother and J.B. returned to Pittsburgh, though the parties allegedly agreed that they would divorce and that J.B. would later spend alternating years in Germany. Ultimately, mother denounced the notion of J.B. returning to Germany and secured an interim custody order. In July 2016, father petitioned in federal district court, seeking J.B.'s return to Germany under the Hague Convention on the Civil Aspects of International Child Abduction. Here, father appealed the district court's denial of his petition alleging that mother wrongfully retained their then-eight-year-old son in the U.S. in violation of the Hague Convention. The appellate court concluded that the parents' shared intent was that J.B. would move to the U.S. not for a transient visit, but with a “settled purpose.” The court noted that a petitioner who initiates judicial proceedings for the return of a child under the Hauge Convention bears the burden of proving the child has been wrongfully removed or retained. Based on the retention date and J.B.'s habitual residence immediately prior to that retention date, the district court found that father had not met his burden of proving a wrongful retention. The court found that the district court erred in determining the retention date by looking solely to father's original consent for J.B. to reside in Pittsburgh through August 2016. The district court failed to assess whether father's subsequent communications with mother, up to and including his filing of a Hague Convention petition, effected withdrawal of that consent, the court reasoned. After considering Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006), the court held that the retention date is the date beyond which the noncustodial parent no longer consents to the child's continued habitation with the custodial parent and seeks to reassert custody rights, as clearly and unequivocally communicated. In this matter, father's consent expired and thus J.B. was “retained” on the date father filed his Hague Convention petition, the court concluded. The court further found that the parents' shared intent was for J.B. to move to the U.S. with a degree of settled purpose and that the district court properly found that J.B. had acclimatized to the U.S. by the date of retention. As such, the U.S. was J.B.'s habitual residence immediately prior to the retention date and his retention was not wrongful under the Hauge Convention.

Child Abduction • Hague Convention Petition • Child Retention Date

Blackledge v. Blackledge, PICS Case No. 17-1288 (3d Circ. May 9, 2017) Krause, J. (38 pages).