Here is a post by first-time guest author and friend of Letters Blogatory Melissa Kucinski. Melissa practices family law at MK Family Law in Washington, and she focuses on cross-border cases. She has just started a blog on “family law across borders,” which I’ll be keeping an eye on. Melissa comments on a new Abduction Convention case in the Western District of Texas, in which the judge ordered the return of a child but stayed his order indefinitely in light of the pandemic. I don’t have a view on whether or not this is sensible, but I suspect we will be seeing many judges grapple with such questions, in this context and others.
As I write this blog post, the U.S. east coast is nearly two months into a quarantine imposed by the COVID-19 pandemic. The public health crisis has all but shut down our court systems, and, for the first time ever, our U.S. Supreme Court held oral argument live, accessible to the public, all by telephone. It is inevitable that we will start seeing court opinions where COVID-19 plays a prominent role. On April 30, 2020, in Gallegos v. Garcia Soto (W.D. Tex. 2020), we see the first reference to COVID-19 in a Hague Child Abduction case in the United States. The Hague Child Abduction Convention is a private international law treaty that secures the prompt return of a child abducted by her parent to a treaty partner country. Its entire goal is to return the family to the status quo so that the parents can litigate their underlying child custody case in the appropriate jurisdiction.
In Gallegos, the child was, in fact, returned to its habitual residence (Mexico) using this treaty. The case focused on the Respondent Mother’s argument that the Father’s spousal abuse presented a grave risk to the minor child under Article 13(b) of the treaty. The court ultimately found too little nexus between the mother’s alleged abuse and any grave risk to the child.
The grave risk argument should have taken center stage in any Hague Child Abduction case, especially with the recent release of a Guide to Good Practice by the Hague Conference on this very exception. However, the most interesting part of the Gallegos case was the judge’s decision to stay his own return order indefinitely because of the COVID-19 pandemic. The court specifically said that this stay would remain in effect “until such time as the Court and the parties can be reasonably confident that the COVID-19 pandemic no longer renders international travel unsafe and widespread social distancing practices are no longer necessary.” The judge’s broad language leaves open the possibility that this child may not return to Mexico any time soon, and generates questions, such as the standard for safe international travel and what evidence would satisfy both the court and the parties that the child could return to Mexico safely.