2nd Circuit: Temporarily Returning Child To Third Country Is Permissible ‘Ameliorative Measure’
A child may be returned temporarily to a third country as an “ameliorative measure” if returning the child to his “habitual residence” would pose a “grave risk” of harm, the 2nd U.S. Circuit Court of Appeals has ruled in a case brought under international child abduction laws.
In Tereshchenko v Karimi (Docket No. 24-172-cv), the plaintiff, Roman Tereshchenko, and the defendant, Yasamin Karimi, were divorced. They were both Ukrainian citizens and had two children together. Upon Russia’s invasion of Ukraine in 2022, Tereshchenko agreed that Karimi would remove their children from Ukraine, their place of habitual residence, for safety reasons. Tereshchenko requested that Karimi take the children to Dubai, where he has a home and an office. Instead, Karimi took the children to locations that she did not disclose to Tereshchenko, including to the United States in July 2022.
Tereshchenko filed a petition with the U.S. District Court, Southern District of New York, for the return of the two children. He filed the petition under the Hague Convention on the Civil Aspects of International Child Abduction (“Convention”), as implemented by the International Child Abduction Remedies Act (ICARA), 102 Stat. 437, as amended, 22 USC § 9001 et seq. The U.S. District Court granted Tereshchenko’s petition and ordered the children be returned to him at his residence in France.
Karimi appealed that decision to the 2nd U.S. Circuit Court of Appeals. She also filed a motion for expedited consideration and an emergency stay. The 2nd Circuit granted the motion to expedite and entered a temporary stay pending a decision. Soon after, the 2nd Circuit denied Karimi’s motion for a stay. In April 2024, Karimi filed a letter informing the U.S. District Court that the parties had agreed Tereshchenko would take the children to France in late April 2024. As a result, the 2nd Circuit issued a stay and ordered that the children “shall remain in the United States pending our resolution of this appeal.”
On appeal, the 2nd Circuit affirmed in part and remanded the case. The federal appeals court also vacated the stay that was entered pending the resolution of the appeal.
“We … conclude that Tereshchenko proved a prima facie case of wrongful removal or retention under Article 3 of the Convention, and we identify no abuse of discretion in the District Court’s decision to exclude Karimi’s proffered evidence relating to Article 12’s ‘now settled’ defense,” the 2nd Circuit wrote.
“We find error, however, in the District Court’s determination that the children would not be exposed to a grave risk of harm if they were returned to western Ukraine,” the 2nd Circuit said. “Nevertheless, and in part because of that grave risk of harm, we conclude that this is one of the rare cases in which the Convention permits - as a temporary ameliorative measure - a district court to order the return of the children not to their place of habitual residence but to the petitioner in a third country. We therefore affirm the District Court’s order to that extent.”
Judge Susan L. Carney, Judge Richard J. Sullivan and Judge Eunice C. Lee were on the federal appeals court panel that issued the 34-page opinion.
Ameliorative Measures Allowed
On appeal, Karimi argued that third-country returns “are never permissible” under the Convention.
The 2nd Circuit disagreed, noting a District Court may impose an “ameliorative measure” and order the temporary return of a child to a country that is not his or her place of habitual residence. “[W]e are not persuaded that [third-country returns] are categorically barred by the Convention, especially when the third-country return is a temporary ameliorative measure designed to protect the child from a grave risk of harm.”
To support its finding in this regard, the 2nd Circuit pointed out the Convention’s text “does not, at least in express terms, require that the child be returned to the place of habitual residence in all cases.” Rather, the Convention’s text “uses the full phrase ‘return to the State of [the child’s] habitual residence’ only in the Preamble; the rest of the Convention uses the unqualified phrase ‘return of the child,’” the federal appeals court said. “The Convention’s text thus leaves room to consider whether - although it presumes return to the country of habitual residence - it should be understood to preclude an order requiring the child’s return to a petitioner who is no longer in the country of habitual residence.”
Therefore, “[w]e think that the Convention’s text cannot be read to bar categorically the return of a child to a petitioner in a country other than the place of habitual residence,” the 2nd Circuit stated, pointing out that a “commentary document” known as the Pérez-Vera Report was prepared “contemporaneously” with Convention’s formulation. “Akin to a legislative history of the Convention, it has served as ‘an authoritative source for interpreting the Convention’s provisions.’ … It advises that the Convention’s use of the unqualified ‘return of the child’ language (as opposed to ‘return of the child to the State of habitual residence’) was deliberate.”
Quoting the Pérez-Vera Report, the 2nd Circuit observed:
“The Convention did not accept a proposal to the effect that the return of the child should always be to the State of its habitual residence before removal. . . . [W]e must not forget that it is the right of children not to be removed from a particular environment which sometimes is a basically family one, which the fight against international child abductions seeks to protect. Now, when the applicant no longer lives in what was the State of the child’s habitual residence prior to its removal, the return of the child to that State might cause practical problems which would be difficult to resolve. The Convention’s silence on this matter must therefore be understood as allowing the authorities of the State of refuge to return the child directly to the applicant, regardless of the latter’s present place of residence. … (emphasis added).”
Likewise, the U.S. Department of State recognized that Article 12 of the Convention “does not technically require that the child be returned to his or her State of habitual residence,” the 2nd Circuit noted. “While cautioning that ‘in the classic abduction case’ return to the country of habitual residence ‘will occur,’ it explained that ‘[i]f the petitioner has moved from the child’s State of habitual residence the child will be returned to the petitioner, not the State of habitual residence.’”
In addition, the U.S. Supreme Court “has instructed that both these extra-textual sources deserve consideration,” the 2nd Circuit said, citing Golan v Saada, 596 U.S. ___ (2022). “In conjunction with the Convention’s text, these sources suggest to us that in some exceptional cases it is appropriate, and lawful under the Convention, for courts to deviate from the typical remedy and to return a child to a petitioner who is at the time of the order located in a third country.”
Accordingly, “[w]e see no reason why the Convention would categorically bar district courts from, as an ameliorative measure, ordering a child to temporarily reside in a third country to mitigate a grave risk of harm in the state of habitual residence,” the 2nd Circuit wrote. “As the Supreme Court has made clear, district courts have wide latitude to fashion a remedy in such circumstances; this includes the power to keep the child here or to send her home, optionally with additional measures to mitigate any risk of harm. … Of course, that discretion is limited to a certain extent, in that district courts may not impose permanent or unqualified ameliorative measures that amount to a custody determination or that interfere with custody proceedings in the courts in the place of habitual residence. … But so long as those limits are respected, nothing in the Convention appears to bar a district court, in exercising its ameliorative discretion, from sending the child temporarily to a third country to avoid the risk of harm in the state of habitual residence.”
Order Needs ‘Further Shaping’
The 2nd Circuit continued by saying that although the District Court correctly ordered the children’s return to Tereshchenko, it “impermissibly effected a custody determination.”
The District Court’s order sending the children to live with Tereshchenko in France “is an ameliorative measure that properly considers ‘the interests of [the] children,’” the 2nd Circuit explained. “It avoids the grave risk of harm that the children would face if returned to western Ukraine. … [T]he order seems to us particularly appropriate in this case, where one of the children is a U.S. citizen and subject to the Department of State’s advisory against travel to Ukraine.”
Further, the District Court’s order “promoted several other relevant interests” under the Convention, the 2nd Circuit noted. Those interests included:
“the child’s need for contact with the non-abducting parent.”
“the non-abducting parent’s interest in exercising the custody to which he or she is legally entitled.”
“the need to discourage inequitable conduct.”
“the need to deter international abductions generally.”
Therefore, the District Court was “justified in deviating from the Convention’s typical remedy of return to the country of habitual residence in favor of ordering return elsewhere in the care of the petitioning parent,” the 2nd Circuit stated.
However, the District Court’s order was “too open-ended” and “in effect granted Tereshchenko permanent custody over the children in France,” the 2nd Circuit observed. “This is a right that he did not previously enjoy. The Ukrainian executive order issued on March 21, 2022, in response to the war with Russia, … grants relatives generally the equal right to unilaterally remove children from the country. But it does not purport to give Tereshchenko as an individual custody rights over the children in Ukraine or anywhere else. And although Tereshchenko has prevailed thus far before the Guardianship Body and the Ukrainian Court in his search for a custody ruling favorable to him, those decisions are stayed as a matter of Ukrainian law pending appeal. … In any event, neither decision awarded Tereshchenko a right to have the children reside with him in France.”
Here, the District Court’s order “imposes no limitation as to the ‘time and scope’ of the children’s residence in France [with Tereshchenko] … or on other aspects of his rights to have them reside with him,” the 2nd Circuit explained. “Most crucially, it contains no conditions designed to preserve the authority of the Ukrainian Courts while the children stay with Tereshchenko in France, safe from the war in Ukraine. Accordingly, we think the order needs further shaping to avoid having the practical effect of granting Tereshchenko physical custody over the children in France. Such additional terms can be shaped and imposed expeditiously, we believe, and without further fact-finding.”
Accordingly, the District Court on remand “should fashion a limited and temporary order that directs the children to stay with Tereshchenko in France, commits Tereshchenko to making the children available for the Ukrainian custody proceedings as required by those courts, and directs the parties to abide by the final custody determination of those courts,” the 2nd Circuit held. “Such tailoring would help ensure that the order serves the goals of the Convention and would align more closely with the Convention’s general principle that ‘the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence.’ … The order should not unconditionally expand Tereshchenko’s custody rights.’”
Therefore, “we remand the case to allow the District Court to amend its current order by adding such directives, taking into account any relevant developments since the January [2024] hearing,” the 2nd Circuit concluded.
