On July 7, 2021, the U.S. District Court for the District of Maryland denied Mr. Hart’s request for attorney fees on the papers. On November 22, 2019, Mr. Hart had successfully secured the return of his minor children to France using the Hague Abduction Convention.
The parties met in Mali in 2010, married, and had 2 children (each child was born in the United States due to subpar prenatal care in Mali, but the family returned to Mali after each child’s birth). In January 2016, the family evacuated to France after a terrorist attack in Mali, and began living in a home owned by Mr. Hart’s mother. In Summer 2016, both parents agreed that they would remain in France indefinitely. In August 2018, the family relocated to the Philippines, with the agreement that they would stay there no longer than one year. While in the Philippines, two physical altercations occurred, both precipitated by alcohol use. In July 2019, the family returned to France. A few days later, Mr. Hart, intoxicated, instigated physical contact that resulted in Ms. Anderson falling through a glass door. Two days later, she took the children to Maryland, without notifying Mr. Hart. Mr. Hart’s request to return the children under the Hague Abduction Convention was granted, and one year later, he petitioned for payment of his legal fees under ICARA. The Fourth Circuit has found that district courts have “limited discretion” to determine “the circumstances of a case overcome the rebuttable presumption in favor of a fee award” (see Sundberg v. Bailey, 765 F.App’x 910). The Fourth Circuit found 2 examples of when a fee award would be “clearly inappropriate” under ICARA: (1) where the respondent acted “in good faith,” and, (2) when the award would “impair the respondent’s ability to care for the child.” The Third Circuit adds a third example: “unclean hands” or when IPV influences the decision to remove the child.
Ms. Anderson did not act in good faith. She never seriously disputed that Mr. Hart had and was exercising custody rights. She focused her argument, instead, on the fact that she believed the family were residents of the Philippines, and it was not a treaty party to the Hague Abduction Convention, so the treaty was therefore not available to seek their return. A fee award would, however, significantly impair Ms. Anderson’s ability to care for the children. The requested fees are over $98,000, but she earns only $500 per week at present. She is using her meager earnings to visit the children in France and litigate their custody and access in French courts. Finally, the court found that Mr. Hart’s repeated “pattern of physical and verbal abuse, alcohol abuse, and unpredictable behavior significantly contributed to [Ms. Anderson’s] decision to remove herself and the children.”