Case Update (31 Oct 2025): Aubert v. Poast; court divested of jurisdiction cannot order provisional remedies

The parties were litigants in a Hague Abduction Convention matter, which concluded in mid-September 2025 with an order denying the Father’s request to return his children to Norway. He has noted an appeal of the court’s order. In doing so, he returned to the district court and asked for a continuation of the provisional remedies that the court had originally put in place during the pendency of his Hague litigation, namely weekly visits. On the merits, the district court said it supported the requested visitation. The court had found no grave risk of harm, and that the Mother had “spoken negatively about [the Father] in the children’s presence, denied him access to them, and otherwise influenced the children’s feelings about him.” During the prior visits, the psychologists who observed “reported consistently positive interactions between [the Father] and the children.” Having said that, the district court denied the Father’s request. It concluded that during an appeal, it had very limited jurisdiction over “limited ancillary issues unrelated to the merits of the case, such as issues related to attorney fees, costs, and the registration of judgments.” The Father argued that provisional remedies are an ancillary issue, unrelated to the merits of the case, but the court disagreed. In citing to the U.S. implementing statute, it said that provisional remedies are permitted by “any court ‘exercising jurisdiction of an action’ for return…” Since the district court reached a final decision on the action for return, it is divested of jurisdiction over “the main action” and lacks “any authority under ICARA to order provisional remedies.”

The Father did cite to a case from the district court in Illinois, whereby two parents jointly requested that the district court enter a consent order for visitation in a Hague case that was on appeal. But, this district court distinguished it because the other case was by consent. The district court noted that the Father “must direct his request for provisional remedies to that court [the Court of Appeals to which he is appealing].”