Case Update (8 Aug 2024): Pedersen v. Shriver; Australian custody order not recognized as matter of comity to preclude Respondent from arguing grave risk in Hague case
In this Hague Abduction Convention return proceeding, a Father in Australia sought the return of his minor child from Illinois. He filed his petition in the U.S. District Court for the ND of Illinois. In the Respondent Mother’s Answer, she plead the affirmative defense that returning the minor child to Australia would expose the child to a grave risk of harm. As part of her answer, she outlined certain allegations of abuse that she asserts were perpetrated by the Father against the child. The allegations were “largely the same violence and abuse allegations that she raised-and that the Australian Court considered-during the custody proceedings” that occurred in late 2022. The Respondent had made a large number of complaints to the Australian authorities, and argued the same allegations in the Australian custody case, that the Father verbally, physically, and sexually abused the child. With each allegation, the authorities in Australia investigated the accusations, and “found that RP was safe in the care of either parent.” The Australian court issued a custody order granting both parents equal custodial rights, and putting in place a prohibition on both parents from relocating the child without written agreement or court order. The Mother’s reports to the Australian authorities continued after the custody order, and, on April 21, 2023, during a scheduled changeover, she did not appear to deliver the child to the Father. She had unilaterally relocated the child to Illinois.
The Petitioner “moves to strike several paragraphs and affirmative defense allegations from the [Respondent’s] answer, arguing that the Court should apply the doctrine of comity to preclude Respondent from raising the abuse allegations that Petitioner believes have been previously raised and adjudicated by the Australian Court during the custody proceedings.” Petitioner claims that the Respondent’s grave risk of harm defense is “almost entirely an attempt to re-litigate her false, albeit salacious, allegations in a new venue, hoping for a different outcome than she received the first time.”
FRCP Rule 12(f) permits a court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous matter”.
The Petitioner requested that the federal court here extend comity to the Australian Court’s adjudication so that the abuse allegations need not be “tried afresh.” The Respondent argued 3 things, only one of which the court addressed. Those three things included: (1) the issues in the Hague case are different from the custody case so the federal court cannot afford “full faith and credit” to the foreign court (note, the Respondent meant comity, not FFC); (2) the goal of the Hague Convention means that the “grave risk exception supersedes the principles and purposes of comity”; and (3) “the Australian Court purportedly offended United States public policy and procedure.”
As a general principle, American courts typically accord considerable deference to foreign adjudications as a matter of comity, but courts are not entitled to extend comity on issues the foreign court did not decide. The Petitioner here cited to several cases that addressed whether to extend comity to a foreign court’s Hague petition, but they did not address whether to extend comity to a “foreign court’s unrelated custody decision (or, for that matter, any non-Hague petition).” A Hague case and a custody case are distinct proceedings, for very different purposes with different legal standards and burdens of proof. The federal court here cited to a 2020 case that addressed the same issue and concluded it would not afford comity to a foreign court’s custody proceedings/filings. (See Pawananun). Petitioner further cited additional cases, claiming that federal courts have “routinely” extended comity to a foreign court’s custody determination when adjudicating the prima facie elements of a Hague Convention petition. But, that is not the case here, where Petitioner was attempting to preclude certain defenses from being raised.
Petitioner separately argued res judicata, but could not meet the legal pre-requisites to make this a successful argument, according to the court.
The Petitioner’s Motion to Strike was denied.
