Case Update (2020): Pawananun v. Pettit; Hague Abduction Convention, issue preclusion & comity from a prior custody case

Aug 11

In the case of Pawananun v. Pettit, the U.S. District Court addressed the Plaintiff’s Motion to Strike the Defendant’s asserted defense of a grave risk of harm if the children were returned to Thailand.

The parties were married and had two daughters. The family lived in Thailand. When the parents separated and divorced, they agreed to joint custody, sharing time with their daughters on a week-on, week-off schedule. Thereafter, the Plaintiff Mother, began a relationship with a man named Roger Ian Hardy. The Defendant Father alleges that Mr. Hardy touched his daughters inappropriately. His oldest daughter allegedly reported this behavior to her Father, and subsequently reported to a psychologist that Mr. Hardy inappropriately touched her younger sister.

Defendant Father petitioned a Thai Court to revoke Plaintiff Mother’s custodial rights/parental powers because the Mother supported Mr. Hardy, despite the alleged behavior. The Thai Court refused to revoke the Mother’s parental rights. Defendant Father removed the minor children to the United States, and the Plaintiff Mother filed a return petition under the Hague Abduction Convention in the U.S. District Court for the Northern District of Ohio. Defendant Father asserted several exceptions to the children’s return, including that doing so would place the children in a grave risk of harm under Article 13b. The Plaintiff Mother filed a Motion to Strike this exception, alleging issue preclusion (that the Thai Court already addressed this issue) and comity (that the Thai Court’s order should be recognized as a matter of comity).

The federal court denied the Mother’s Motion to Strike. A Motion to Strike is typically “viewed with disfavor” and is a “drastic remedy.” But, the Motion to Strike ultimately failed for a key reason - the Thai Court did not adjudicate a Hague petition. In other words, it did not decide the same issue before the federal court. The Thai Court resolved custody, and the issue is quite different when assessing a grave risk of harm. The Father may argue a grave risk under Article 13b.

The case shall continue…

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/