Case Update (2020): Da Silva v. De Aredes; Hague Abduction Convention, Return Orders cannot resolve custody

Abduction

Sep 24

Just before I started this blog, the U.S. Court of Appeals for the First Circuit issued an opinion in the case of Da Silva v. De Aredes (953 F.3d 67 (March 13, 2020)). There were a few issues that the Respondent Mother (de Aredes) argued on appeal, but ultimately the court affirmed the U.S. District Court's order to return the minor child, ACA, to Brazil. It agreed that any potential abuse alleged by de Aredes did not rise to the level of being a grave risk, and despite the Petitioner Father (da Silva)'s court filing beyond one year after the wrongful removal, the child was not settled in East Boston. Perhaps the most interesting part of the First Circuit's opinion, however, was that it remanded the case (despite affirming) for the U.S. District Court to re-word its return order. This is particularly interesting given my last blog post where a U.S. District Court in Arizona crafted a Hague Abduction return order that placed the child in the temporary custody of a particular parent.

The U.S. District Court's order read:

"On January 2, 2020, ACA [the minor child at issue] shall travel to Brazil to reside in the care and custody of the petitioner, Nelio Nelson Gomes da Silva." ... "Any further proceedings regarding ACA's custodial arrangements shall be conducted by the appropriate Brazilian court under Brazilian law."

The First Circuit determined that the underlined language could be read to determine custody of ACA, and this was not permitted under the treaty.

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/