The U.S. District Court for the SDNY ordered two minor children, who had been born in NY, but had lived their entire lives with their parents in the Dominican Republic, back to their habitual residence. The children’s mother had moved the children from Santo Domingo to Santiago about 7 months after the parties divorced by consent in the Dominican courts. On August 22, 2021, about a month later, the mother removed the children from the DR and took them to NY, where they are, at present, living. In the months leading up to the removal, the father had not seen the children.

The key legal issue argued between the parents was whether the petitioner father had been actually exercising his rights of custody. This issue is, oddly, delineated in two places in the treaty. First, the father must prove, by a preponderance of the evidence, that he was actually exercising his rights under Article 3(b) to make out his prima facie case. Then, if raised, the respondent mother must prove, by a preponderance of the evidence, that the petitioner was not actually exercising his rights under Article 13(a).

In this case, the father was able to prove that he spent significant time every week with the children, and that he was an active participant in their school and activities. The burden then shifted to the mother, who argued that in the few months before the children’s removal, the father had not even seen the children. The court concluded that the father had a legitimate reason for not seeing the children – that he had actually requested time with them, but was not permitted time with them. He described at least one situation where he was offered time, and when he showed up at the respondent’s house, the children were not permitted outside to see him. The court concluded that he wanted to exercise his custodial rights, and made attempts to maintain contact with the children.

The court also rejected the mother’s argument that returning the children would expose them to a grave risk of harm. The court concluded that the parties were “poorly suited for one another” but that Article 13(b) does not establish an exception to return based on the parents’ relationship or reasons for seeking a divorce.