Fox Rothschild Achieves Significant Victory in Federal Court for Unusual Family Law Case

August 14, 2008

Fox Rothschild LLP recently helped an Australian client achieve a significant victory in his case to determine whether the U.S. or Australia should have jurisdiction when determining custody of his two children. The case fell under the Hague Convention, making it one of only a few family law cases to be tried in federal court.

“We’re very pleased that we have been able to achieve this victory for our client,” said Judy McIntire Springer, lead partner on the case. “Under the circumstances that were proven at trial, the mother could not have rightfully retained the children in the U.S. We’re glad we were able to help reunite our client and his children.”

The main purpose of the Hague Convention is to deter parental kidnapping. Its primary objectives are to “ensure the prompt return of children to the state of their habitual residence when they have been wrongfully removed and to ensure the rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”

Fox Rothschild’s client, a resident of Australia, and his wife were married in 2001 in New South Wales, Australia. The couple had two children and resided in Australia. In June 2007, the wife and the children traveled to the U.S. for a nine-week vacation. After several months and frequent delayed return dates, our client was served with a Berks County Pennsylvania custody complaint in January 2008. When the wife and children did not return to Australia, our client filed an application for the return of the children under the Hague Convention.

The wife, who filed a counterclaim alleging that returning the children would expose them to risk of physical or psychological harm or otherwise place them in an intolerable situation, retained the children in the U.S. The court determined that the wife’s allegations were unfounded and unsupported, and that her attempts to establish that the children had “acclimated” to living in the U.S. were fundamentally “unfair” since she did not have the father’s consent to retain the children, which breached our client’s custody rights.

On May 27, 2008, after a three-day hearing that took place in April, a judge for the Eastern District of Pennsylvania ordered that the children be returned to Australia within 20 days.

“This was a clear case where our client did not consent to the removal of his children to the United States,” said Springer. “Custody issues must be handled in the children’s place of residence, and for our client, that meant Australia.”

The judge noted that both parents conducted themselves throughout the proceedings as “two parents genuinely concerned for the best interest of their children.”

The wife is pursuing an appeal; however, the children have returned home to Australia after the wife’s several unsuccessful motions filed with the federal trial and appeals courts for the children to remain in the United States during the appeal process.

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