On February 26, 2021, the U.S. District Court for the W. District of Washington granted Mr. Colchester’s request to have his child returned to Spain. When the court issued its return order, it included the following language, ordering Mr. Colchester to “facilitate daily electronic communications between SLC and Ms. Lazaro.” Ms. Lazaro filed a motion in the same federal courthouse, arguing Mr. Colchester was in contempt of the order. He presented evidence, and the court concluded he was not in contempt. This round of court filings in this case raises a whole host of questions.
- When the court required Mr. Colchester to “facilitate daily electronic communications” is that tantamount to issuing a custody order? Is requiring a parent to facilitate communication between parent and child something that requires a judge to analyze the child’s best interests? Can the court seized with the Hague return petition do this, or must the court in the habitual residence (or wherever there is jurisdiction over the child’s custody)? In this case, the Spanish courts had previously issued custody orders for this child. How would the U.S. federal court’s requirement that the father provide virtual access between child and mother meld with the existing Spanish custody order?
- Would a U.S. federal court retain jurisdiction to address contempt of an access provision in its own order once the child is returned to a foreign country? In this case, Mr. Colchester appeared to have participated in the proceedings, so presumably it had personal jurisdiction over him.
- If the mother were seeking to have her access rights respected under the Hague Abduction Convention, would she not need to proceed in the Spanish courts, under the clear reading of the International Child Abduction Remedies Act?
- If the federal court did find Mr. Colchester in contempt, to what effect? Would Spain recognize that contempt order? What impact?
- Was this provision intended to be a stop-gap for this child to, as the court stated, “mitigate the risk of harm” to the child? Is this a situation where the Hague Child Protection Convention may prove useful? (of course, the United States has not yet ratified this treaty, and in this case, there is presumably a current Spanish custody order)