Case Update (31 Oct 2024): Swett v. Bowe; while a parent can consent to extend their child’s time away from the habitual residence, that is not the case after a wrongful retention
The U.S. Court of Appeals for the Second Circuit affirmed a district court order denying the return of a child to Chile under the Hague Abduction Convention. At trial, the Respondent Father had successfully argued two separate exceptions to returning the child. The first was that the Petitioner had filed her request to return the child beyond one year and the child was now settled; and, the second was that the child was mature and objected to return. The COA addressed the first on appeal to clarify the law, and affirmed on both, relating back to the district court’s decision-making.
In this case, the now settled exception was front and center because the parties disagreed as to the date that the child’s retention became wrongful in New York. On December 23, 2022, the child traveled with Respondent from Chile to New York under a travel authorization that expired on January 8, 2023. The Petitioner’s lawsuit was filed on February 23, 2024, more than one year from the date of the alleged wrongful retention. Her argument on appeal focused on the fact that she apparently consented to the child remaining in New York beyond January 8th, so that her filing in February 2024 was, in fact, not beyond one year from the date the retention became wrongful.
The COA clarified that “the petitioner can consent to an extension of time for the child’s stay, in which case the retention becomes wrongful at the end of the extension.” But, here, the question really is whether the petitioning parent can extend their authorization for the child to remain outside of their habitual residence after an initial instance of wrongful retention. In other words, there were facts adduced at trial that demonstrated that the retention became wrongful on or around January 8, 2023, and then the Petitioner apparently consented to the child’s continued presence in New York for a brief period longer. In this case, the COA opined that the Petitioner did not consensually extend the time for the child to remain in New York - she merely “acceded to circumstances she felt she could not change after [Respondent] wrongfully retained [the Child] on January 8, 2023.” She lacked any ability to control the Respondent’s decisions, she had already filed a police report in Chile on January 10, 2023 related to the abduction, and she did not have any firm belief that Respondent would return the child at the end of the extension.
