Case Update (21 March 2024): Samaan v. Samaan; provisions in a voluntary return order in a Hague Abduction Convention matter
A recent Hague Abduction Convention case in the U.S. District Court for the WD of North Carolina resulted in a consent return order. The order is actually a fascinating example of how parties can tailor a consent order in their Abduction Convention case, without running afoul of the Convention. When parents resolve whether to return their child by agreement, they often want a consent order that relates to more than just the return. They want a robust settlement of their parenting issues. Since the Abduction Convention does not determine custody jurisdiction, and presumably, the court seized with jurisdiction over the Convention case does not have jurisdiction over custody, the framework of a consent order needs to be tailored for that.
A few interesting provisions that are frequently incorporated into consent orders - return or no return - found in this family’s consent order are:
“Father and Mother acknowledge that this Order constitutes a judgment by this Court and is subject to enforcement by the contempt powers of the Court.”
A stipulation as to the habitual residence (or not) of the child. This type of stipulation is, of course, not binding on a court, which may make their own determination as to a child’s habitual residence, but it certainly assists in understanding the parents’ shared intentions at the time of their agreement.
A very concrete date of transition between parents to return to (in this case) Germany.
Requirement that they cooperate to get the child all travel documents, which means permission/agreement that the Mother leave the jurisdiction with the child to travel to D.C. to the Ukrainian Embassy to attend to this matter. In this case, the family agreed to keep in place the restraining order, preventing the Mother from leaving North Carolina pending the transition of the child to the Father, but they carved out a caveat for her to go to D.C.
A clear statement that says, “The Court is informed that the parties have reached a private custodial agreement, however, nothing herein is meant to be a custody determination.” At times, consent orders may specifically incorporate some of the custodial/parenting provisions, but with a recognition that the provisions need to be incorporated into an agreement in the applicable court with jurisdiction to render that agreement a consent order for custody.
A statement of the court’s jurisdiction over the Convention matter, including a reference to art. 7(b) of the Convention related to provisional measures, which are permitted by the Convention.
A strong statement that “[t]his Court has the inherent power to enforce this Consent Order. The parties may return to this Court to enforce the Decrees made herein. Thus, the Court retains jurisdiction for the purpose of enforcing the Consent Order by using its inherent contempt powers.” Compare this strong statement by the court with another case that resulted in a Voluntary Return Order here.
An interesting provision that “[e]ach party agrees to accept service of any contempt or ‘show cause’ pleadings through the email address provided and to waive the formal service requirements set forth in Rule 4 of the FRCP and any applicable foreign rules, or local rules of this Court, including but not limited to, service of a summons, provided such service is likewise delivered by email to the parties’ respective counsel of record…”
