Case Update (8 Feb 2023): In re Marriage of Mwinyelle; there is more than one Hague Convention; know which one you are referencing and how to see if a country is a Contracting State

Husband and Wife engaged in mediation in Arizona that ultimately reached certain settlements. One of those agreements was that "no parent shall be required to give consent to travel to countries that are not signer [sic] to the Hague convention." Post-mediation, the spouses exchanged drafts of a final decree where Wife proposed changing Hague Convention to Hague Abduction Convention. Husband approved of that change. The parties never agreed on a final version of the draft decree, and Husband later moved to set aside two provisions of their agreement, one of which was the language related to the "Hague Convention." His reason for setting aside this language was "because he had assented to the agreement with the 'material understanding' that Ghana was signature to the referenced Hague Convention." After a hearing, the court concluded that the language was valid and binding. The Husband appealed. The appellate court, in an unpublished opinion, affirmed.

"Courts presume the validity of an agreement ... and the party challenging the agreement bears the 'burden to prove any defect.'" The court rejected Husband's argument that he lacked due process since the court afforded both parties sufficient opportunity to present testimony at an evidentiary hearing contesting the agreement's validity. Husband argued that the provision related to the "Hague Convention" is unenforceable because there are multiple Hague Conventions, and without referencing the specific Convention, the provision is "inherently ambiguous." He further argues that his unilateral mistake was his belief that Ghana was a signatory to the Hague Abduction Convention, and that he could therefore travel to Ghana with the children without the Mother's consent. The mother argues that he failed to exercise due diligence as to which countries are signatories to the Hague Abduction Convention. He also accepted the redlined version of the final decree draft, ensuring that everyone had clarity that the Hague Convention referenced in their agreement was the Hague Abduction Convention (not the Adoption Convention, which, at the time of this post is the only "Hague Convention" to which Ghana is a party).