In the U.S. District Court for the District of Delaware case of Lopez v. Bamaca, decided on April 20, 2020 (C.A. No. 19-1001-LPS), the Court analyzed a Left Behind Parent’s exercise of their parental rights over a child that was wrongfully removed from their habitual residence.
The 1980 Hague Abduction Convention references a parent’s exercise of their custody rights in 2 distinct places in the treaty.
In Article 3(b), the Petitioner has a burden of showing that he or she had “actually exercised” rights of custody at the time of the child’s retention or removal. Virtually every circuit in the United States follows the test outlined in Friedrich v. Friedrich (78 F.3d 1060 (6th Cir. 1996)) that says, “nothing short of clear and unequivocal abandonment will prove that the petitioner failed to exercise his or her custodial right.”
In Article 13(a) of the Treaty, the Respondent may argue an affirmative defense, or exception, to the child’s return by proving, by the requisite burden of proof under the U.S. implementing legislation, that the person (i.e., the Petitioner) was not “actually exercising the custody rights at the time of removal or retention …”.
In the Lopez v. Bamaca case, the Respondent Mother argued that despite Petitioner Father meeting his burden under Article 3(b) and demonstrating he actually exercised his custody rights at the time of the child’s removal to the United States, there exists a different standard for her to meet her burden under Article 13(a) to prove the exception. In other words, she argued that she need not meet the “abandonment” test, and instead could look to the domestic law of the child’s habitual residence (here, Mexico) and determine whether he was actually exercising custody rights under that law. She cited to a provision in Mexican law that would imply that he may not have provided sufficient food, shelter, and care for a requisite timeframe to meet this “actual exercise” requirement.
The Delaware court concluded, however, that the “actual abandonment” test did apply to both Article 3(b) and Article 13(a) and it was clear the Petitioner Father had not abandoned his child. The child was ordered returned to Mexico.