Case Update (18 Sept 2025): Aubert v. Poast; separating children presents grave risk of harm to both
The parties are parents to two children, both born in Norway. The children resided in Norway, spending significant time (at first) with both parents, who were eventually residing separately. Both parents accused the other of domestic abuse, and the Respondent Mother lodged complaints with Norwegian authorities on several occasions, which were ultimately unsubstantiated due to insufficient evidence. Respondent then began withholding time between the Father and children, but the parents ultimately reached a temporary agreement for three supervised visits between Father and children. The assigned therapist observed positive interactions during these visits. In May 2024, before the third supervised visit, the Mother took the children to Wisconsin, with the Father’s permission, to attend her father’s funeral. Ultimately she decided not to return. The Norwegian courts declined to make any orders while the children were outside of Norway, so the Father pursued the children’s return using the Hague Abduction Convention.
A key issue was whether the Father had a right of custody under Norwegian law. With regard to both children, the Father had supervised visits by a temporary agreement. With regard to the one child, APA, the Father admitted that the Mother had sole parental responsibility, because the parents were living under separate roofs when the child was born. Under the Norwegian Children’s Act, the parent with sole parental responsibility may relocate the child out of Norway, but must provide notice to the other parent so the non-relocating parent could force mediation and/or seek recourse in the Norwegian courts. The Mother did not provide notice, but she had the legal authority to relocate the child out of Norway. The Father argued that the notice provision, in essence, granted him a ne exeat right, which would have given him a right of custody (see Abbott v. Abbott). The district court disagreed. Therefore, without a right of custody, the court denied the Father’s request to return APA. The parents acknowledged that the Father had joint parental responsibility over their other child, LPA, as they were residing together when that child was born. This gave the Father a right of custody over LPA.
The only viable argument presented by the Respondent was that separating the siblings, since presumably the Father had proven his prima facie case to return LPA but not APA, would expose the children to a grave risk of harm. The court agreed. The parents had both admitted that separating “them would cause psychological harm to both children.” Therefore, the court declined to return either child.
As an aside, the Mother also argued Article 20 - that returning LPA would violate fundamental principles of human rights - because you cannot remove a U.S. citizen from the United States. The court dismissed that argument outright.
