In the case of Trott v. Trott, the Eastern District of New York granted a father’s petition to have his two daughters returned to Bermuda.
The parties are parents to two daughters. Their eldest child is not the father’s biological daughter, but was raised as his daughter. The youngest is his biological daughter. The children had lived in Bermuda since they were young, but, moved to New York with their mother, without objection by their father (despite a Bermudian ne exeat order being in place) in 2013. During a visit to Bermuda in 2018, the children alerted their father to what amounted to abuse and neglect by their mother. The father refused to return the girls to New York, and their mother pursued a Hague Abduction return petition in the Berumdian courts. The trial court examined whether it would be a grave risk of harm to return the children, ultimately concluded it would not, and asked the parties to identify protective measures available in New York for the girls. The father appealed. The Bermudian appellate court reversed the lower court’s ruling. It concluded that the lower court had not given sufficient weight to the children’s statements that they did not want to live with their mother, and had confused their willingness to visit her with a willingness to reside with her. Further, the court found the lower court did not look at whether returning the children would create an intolerable situation and conditioned their return on unenforceable undertakings. The court concluded the children should remain in Bermuda, at least until the Bermudian family court would determine custody in further proceedings.
In October 2019, the children’s mother petitioned the Bermudian family court for permission to have the children visit her over their winter break until January 3, 2020. The court permitted her to do so after a social worker concluded the children would be safe. Unfortunately, the mother did not return the children as scheduled. Three days after their expected return, their father filed an application with the U.S. Department of State under the Hague Abduction Convention. He then filed the instant case in the federal courts.
The key issue was whether the New York federal court would extend comity to the appellate decision of the Bermudian courts. “Courts may decline to extend comity where the foreign court “clearly misinterprets the Hague Convention, contravenes the Convention’s fundamental premises or objectives, or fails to meet a minimum standard of reasonableness.” The mother argues against recognizing the Bermudian appellate decision indicating that the father had no rights of custody over the eldest child and that the court engaged in an impermissible “best interests of the child” analysis. The federal court disagreed and afforded the order comity.
While the New York court may not have placed the same emphasis on the children’s statements, it is not certain that New York would have dismissed their statements. “The mere possibility that a court in this jurisdiction would reach a different result is not a reason to deny comity; to do so would be contrary to the fundamental goals of the Hague Convention.” Further, the father’s custody rights were not at issue in the mother’s original Hague Abduction return petition in the Bermudian courts; only her rights of custody were at issue.
*As a side note, when you are addressing a Hague Abduction Convention matter for a territory, like Bermuda, be sure to consult the Hague Conference’s status table, specifically under column 5 (extensions of the treaty to territories). Bermuda is, of course, included under the United Kingdom’s extension.