The U.S. federal implementing legislation for the Hague Child Abduction Convention, the International Child Abduction Remedies Act, includes a fee-shifting provision that awards the prevailing Petitioner his or her fees and costs in a return proceeding, unless the Respondent demonstrates that such an award would be clearly inappropriate. That was the case for Mr. Lukic and Ms. Elezovic.
The court considered the following factors in determining whether a fee award against Ms. Elezovic would be clearly inappropriate: ” (1) whether there was a reasonable basis for removing the children to the United States …; (2) whether either party engaged in forum shopping …; (3) the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition …; (4) a respondent’s inability to pay an award …; (5) whether fees and costs will deter such conduct from happening in the first place …; and (6) whether the case is not a difficult one and falls squarely within the heartland of the Hague Convention ….”
In this case, Mr. Lukic asks only for reimbursement for his plane ticket to come to the United States and pick up the child and return him to Montenegro. The equitable factors seemed mixed, with the Court focusing a lot on how Ms. Elezovic was not forum-shopping and the family was litigating its custody dispute in the correct forum in Montenegro. The lynchpin, however, was that Ms. Elezovic lacked any assets and relied on family to survive. “Respondent’s current separation from her child is more than just punishment for her unlawful actions. Taxing her negligible assets would be needlessly punitive and ‘clearly inappropriate.'” Mr. Lukic’s fee petition was denied.