The minor child at issue, SL, is currently living with her aunt and uncle in the Netherlands. In 2008, the child’s mother passed away, and the father remarried. In May 2011, a Dutch family court granted parental authority of the child to the child’s father and stepmother. The three proceeded to live in a variety of cities, including Overland Park, Kansas, New York, and Orlando. In March 2019, while the family was living in Orlando, Father and Stepmother sent SL to visit her aunt and uncle in the Netherlands. The trip was scheduled to last 2 weeks. The family members spoke and agreed the child would stay until late July 2019. Sometime in late spring, the aunt and uncle filed abuse and neglect charges against the parents in the Netherlands, and that case proceeded to court. The child was placed with the aunt and uncle. Simultaneous to fighting those proceedings, the father and stepmother filed a Hague Abduction return petition in the appropriate court in the Netherlands.
There are a variety of proceedings that have been litigated and appealed among these family members. There is the Hague Abduction return petition, which was denied at the trial level, appealed, and then denied again on a different basis. There are two Dutch court proceedings related to the child. There is a Kansas protection order proceeding and a Kansas proceeding seeking the return of the child using the UCCJEA and/or UCAPA.
Underlying all of this litigation is a child who has apparently told Dutch authorities, and was confirmed by her own father, that she did not want to return to the USA because of the acrimony and domestic violence between her father and stepmother, the abuse by her stepmother towards her, her father’s inability to protect her, and the instability of their moving around.
The real question is whether Kansas has jurisdiction over this child. The Dutch court ultimately concluded it had jurisdiction, as the child’s habitual residence, after the child was not returned under the Hague Abduction Convention. In October 2020, the Dutch courts terminated the father and stepmother’s parental rights. In an order dated November 2020, the Kansas court ordered SL returned to her father and stepmother. This opinion addresses the aunt and uncle’s appeal of that order.
The Kansas appellate court danced around an interesting issue: just because the court seized with the Hague Abduction return petition refused to return the child does not confer jurisdiction over this child’s custody to the Dutch family courts. The Hague Abduction Convention does not determine custody. So, even if a U.S. court respects the foreign jurisdiction’s conclusions in the Hague Abduction matter, it may, nonetheless, conclude that the U.S. court has jurisdiction pursuant to the UCCJEA.
The Kansas court discussed whether to afford comity to the Dutch non-return order, noting that traditionally U.S. courts will afford comity unless the foreign court clearly misinterpreted the treaty. In this case, the Kansas court did afford the Dutch non-return order comity. It should not, however, follow that the Kansas courts then do not have jurisdiction over the child’s custody. It might be inconvenient to resolve custody in Kansas. A Kansas custody order may have little to no effect in the Netherlands with Dutch courts concluding, under Dutch domestic law, that it had jurisdiction. There is no Hague Child Protection treaty in the United States (yet). We are left with the UCCJEA to determine if Kansas has jurisdiction over this child’s custody.
The Kansas courts seem to try to use the language of Article 16 of the Hague Abduction Convention to conclude that the country where the child remains post-abduction (i.e., here the Netherlands) would naturally have jurisdiction over the child. This is an incorrect reading of Article 16. The Hague Abduction Convention does not dictate custody jurisdiction. In the U.S., the UCCJEA does. U.S. law does not base custody jurisdiction on habitual residence. It appears the Netherlands does, but that is not the law in the U.S. Ultimately, when looking at the UCCJEA, the Kansas appellate court concluded that it had no UCCJEA jurisdiction – the child had lived in Florida immediately before her trip to the Netherlands (Kansas is not the home state); the child has been in the Netherlands now for 2 years (Kansas has no significant connections to the child); the Netherlands accepted/asserted jurisdiction, not declined it; and there is no vacuum to fill in terms of jurisdiction.
The court throws a little nugget in at the end, questioning whether, since the original parental authority/custody order in 2011 came from the Netherlands, perhaps the Dutch courts have maintained continuing, exclusive jurisdiction all along. But, the Kansas court never really took this line of reasoning any further.
Finally, the court concluded that UCAPA is intended to prevent abductions, not address concerns/complaints post-alleged abduction.