Case Update (1 Oct 2024): Guevara-Martinez v. Department; a Hague Abduction Convention return request must be made by a proper court filing

In an unpublished opinion, the Court of Appeals of Virginia addressed an appeal by a father who is a resident of Honduras with regard to his child who was “abducted” by the child’s mother to Virginia and then removed from her care. At some point after July 2019, the mother unilaterally removed the child from Honduras and brought the then-five-year-old child into Virginia because of what she described as the father’s “constant physical and psychological abuse.” In October 2019, the Alexandria Department of Community and Human Services (the Department) received reports alleging abuse and neglect by the mother and concerns about her mental health. Throughout this process, the father consistently told the Department that the mother had taken the child without his permission. On October 30, 2019, the City of Alexandria Juvenile and Domestic Relations District Court (JDR) entered a child protective order and temporary order awarding the mother’s friend sole legal and physical custody of the child, however, in or about April 2020, the mother’s friend indicated she could no longer care for the child. The Department determined that the father was not a placement option, so the child was placed in foster care and the father was advised of certain requirements that he needed to complete so that he could be reunited with the child. This was around the time of COVID, and the father further lacked a passport or visa, so many of the requirements were fulfilled (or at least attempted) by the father virtually, including treatment team meetings and family partnership meetings. During this process, several of the father’s relatives, including his parents and older children, were interviewed, and all recommended that the child remain in the USA and not return to the father in Honduras. Further, the Department raised concerns that the father’s conversations with the child caused the child “distress” because the father often discussed the child’s return to Honduras.

In October 2021, the Department petitioned to terminate the father’s parental rights and recommended foster care with a goal of adoption or relative placement. The father’s parental rights were terminated, and he appealed to the Circuit Court. On November 14, 2022, with the child now age 8, the father appeared in person before the Circuit Court for a hearing. The father again stated that he wanted the child to return to Honduras with him. The father elaborated that he had filed “a report with immigration to have [the child] returned to Honduras” and asked the Department to return the child to him. The Court nonetheless terminated the father’s rights, and the father appealed.

Of interest to the international family law practitioner is the father’s appellate argument that the court lacked jurisdiction because of the Hague Abduction Convention. The father had, in fact, stated, numerous times to numerous people/agencies that the child had been abducted and that he wanted the child returned. Honduras and the United States are treaty partners. The Court of Appeals noted, however, that to use the Hague Abduction Convention for a child who has been allegedly abducted into the United States, the person seeking the child’s return was required to file a petition in a court where the child is located, and then show, by a preponderance of the evidence, that the child’s removal or retention was wrongful. The court noted that the father had not filed a petition under the U.S. implementing legislation (the International Child Abduction Remedies Act) and therefore, the Convention is not implicated in this case. Therefore, independently of that, since the Hague Abduction Convention was never invoked in a proper court filing, and therefore never addressed, the court had jurisdiction under the Virginia Code.

Separately from the international family law argument, the court did reverse and remand because the Circuit Court had prematurely terminated the father’s parental rights. Upon a rehearing en banc, on September 2, 2025, the Court of Appeals affirmed the Circuit Court.