On January 31, 2022, in an unreported opinion, the Maryland Court of Special Appeals affirmed a custody order issued by the Prince George’s County Circuit Court. In this particular case, the child was born in early 2016. The parents, never married, separated in early 2018. In or about September 2018, Mother and child relocated to Mexico to “further” distance herself from the father. Before the relocation, the Father filed for custody and served Mother with the lawsuit. She never responded, never participated, and a default entered against her, which resulted in a joint legal and shared physical custody arrangement. About one year later, in February 2020, the Mother learned of the custody order. She moved to vacate it immediately, and requested a hearing. She also filed a motion to modify custody and child support in PG County Circuit Court. The court found a material change in circumstances based primarily on the fact that the Father made no efforts whatsoever to enforce the custody order for more than a year while the Mother and child lived in Mexico.

The Father contended that it is difficult to enforce a custody order in a foreign court, and that he would be required to initiate a lawsuit in Mexico if he were to use the Hague Abduction Convention to seek the child’s return to the United States. The Court of Special Appeals, unfortunately, mis-analyzed this law. The court states, “Father is mistaken when he asserts that the Hague Convention requires a court in Mexico to initiate the proceeding.” It then cites to the federal implementing legislation and concludes that the Father could have used the Convention by filing in PG County Circuit Court. The Court of Special Appeals is unequivocally wrong, and mis-read ICARA, the Convention’s U.S. implementing legislation. The Father would have been required to go to a court in Mexico, where the child was sitting, and prove to a Mexican judge that the United States was the child’s habitual residence, that the father had a right of custody, and that he was actually exercising it, to invoke the return remedy available under the Hague Abduction Convention. Alternatively, the Convention provides for a remedy of respecting access rights (albeit a bit amorphously). The Father could have taken his Maryland custody order to Mexico, and attempted to register it and enforce it.

It is unclear whether this misstatement of the law would change the court’s views in this proceeding, but it is a fairly large error.