Case Update (11 August 2023): Peyre v. McGarey; Mother's good faith belief that relocating the children was agreed upon by Father means the Father gets no fee award under ICARA

Aug 22

The International Child Abduction Remedies Act, which is the U.S. implementing legislation for the Hague Abduction Convention, provides that "[a]ny court ordering the return of a child pursuant to an action brought under [ICARA] shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate." In other words, there is a presumption that the prevailing petitioner will be granted a fee award in a Hague Abduction Convention case in the United States

After the father, in the instant case, secured a return order from the U.S. District Court in Arizona to France, he requested a fee award of $32,165 in fees, $8,592.21 in costs, and $7,867.55 in travel expenses. The Mother argued that the award would be "clearly inappropriate" because: (a) the case was close, (b) she has strained financial circumstances, and (c) she had a good faith belief that her removal of the children from France was lawful. She also argued that the Father's lawyer's time was inflated, incomplete, and unrelated to this case.

In adopting the Eleventh Circuit's approach, the court defined "clearly inappropriate" as either a financial hardship that would significantly impair the respondent's ability to care for the child and/or whether the respondent had a good faith belief that retaining/removing the child was legal or justified. The court ultimately found the second of these two in this case, finding that the court "did not discount the possibility that the Mother may have honestly, if incorrectly, believed that her trip on June 30, 2022 was a permanent move being made with Father's blessing" and "[a]lthough the existence of 'some miscommunication or misunderstanding' on Mother's part was irrelevant for liability purposes (because 'it is only Father's subjective intent that matters for purposes of Mother's consent defense,'), that misunderstanding has renewed salience here."

Therefore, the Father's request was denied. No fee award ordered.

Melissa Kucinski

Melissa Kucinski works with family lawyers to strategically resolve their clients’ complex international cases. A fellow of the AAML, the IAFL, and chair of international family law committees in the American Bar and New York State Bar Associations, Melissa is a respected colleague to have on any legal team. A former consultant for the Hague Conference on Private International Law, member of the Uniform Law Commission’s Joint Editorial Board on Uniform Family Laws, and member of the U.S. Secretary of State’s Advisory Committee on Private International Law, Melissa maintains a robust network to help her clients in international disputes.

https://mkfamily.law/