On June 10, 2021, the U.S. District Court for the W.D.Va. granted Bryce Nowlan’s request to have his daughter AEN returned to Canada using the Hague Abduction Convention. The child is the subject of competing custody cases in Virginia and Canada, and was already the subject of a prior Hague Abduction case in Canada. The timeline is highly intricate, but a lot revolves around allegations by both parents that the other is abusive and has substance abuse issues.
AEN was born in Virginia. Her father, Bryce, is Canadian and lives in Ontario. Her mother, Nina, is American, and lives in Virginia. Shortly after the child’s birth, Nina moved to Watertown, NY (unable to enter Canada) so that AEN could be closer to her father, but after a fight, Nina and AEN moved back to the maternal grandmother’s house in Virginia. Nina had a fight with her mother, and CPS intervened. In March 2017, Nina and Bryce met with CPS and reached an agreement that AEN would live with Bryce in Canada. Nina believed it was only to be for 4-months. Regardless, Bryce refused to return AEN or let Nina see AEN based on communications he had with CPS that indicated Nina was not following their recommendations for certain treatment and interventions. In August 2017, Nina apparently reported Bryce to federal authorities for kidnapping. In November 2017, Bryce filed a custody suit in Canada. In January 2018, Nina filed one in Virginia, which proceeded, with the Virginia courts concluding that Canada was a mere temporary absence from Nina’s home state of Virginia. The court-appointed-GAL sought to dismiss the Virginia custody suit in September 2018, arguing that the Canadian courts could provide protection, due process, and had more evidence. In March 2019, Nina filed a Hague Abduction return proceeding in Canada. Bryce stipulated that he had wrongfully retained the child in Canada beyond July 2017, but, by then, the child had become now-settled, so Nina’s request was denied. Finally, in early February 2020, in time for a February 6, 2020 Canadian custody hearing, Nina was able to enter Canada. The Canadian courts granted her temporary access in Canada, and put in place a ne exeat provision, so she would not remove AEN. Nonetheless, Nina removed AEN a few weeks later, taking her to Virginia, arguing medical neglect. In later March 2020, Nina and her mother claim that AEN told them that her father had inappropriately touched her. This had not been disclosed in a March 11, 2020 FBI forensic examination of AEN. Nina took AEN to a few appointments after these disclosures, but there were no records indicating any concerns about sexual abuse until May 17, 2020. AEN was then placed in play therapy, where she made disclosures to the therapist as well. The Virginia custody case was dismissed on March 20, 2020, but then resumed on July 28, 2020 since AEN was back in Virginia. After 2 and a half days of trial in the Hague Abduction matter, the Virginia court appointed 2 neutral experts to explore whether the child had been sexually abused and whether any abuse would continue if returned.
The two key legal issues before the court were: the child’s habitual residence in Canada and whether it would be a grave risk to return her. The court concluded that it could not defer to the Canadian court’s prior finding that Bryce had wrongfully retained the child in Canada in 2017, nor the Virginia family court’s finding it had jurisdiction. Once the Canadian court denied Nina’s request to return AEN, that case was done, and Canada then became the child’s habitual residence under the Monasky totality-of-the-circumstances test. Further, the Virginia family court’s conclusion that it had jurisdiction to resolve custody, based on only one parent’s assertions, is not to be conflated with the remedy available in a Hague Abduction case over whether to return or not return a child to that child’s habitual residence. A Hague Abduction case is not a determination of which court in which country has jurisdiction over the custody matter. Finally, based on the neutral experts appointed by the court, and the court’s credibility assessment of the witnesses, it concluded that Nina did not meet her high burden of demonstrating a grave risk.