Case Update (9 July 2024): Lomanto v. Agbelusi; Abduction Convention case is not a case to recognize a foreign order; federal litigants must secure own language interpreters

This is an appeal to the U.S. Court of Appeals for the 2nd Circuit by the Petitioner Father, whose request to return his children to Spain pursuant to the Hague Abduction Convention had been denied by the District Court. The District Court had found that the Mother had, in fact, wrongfully retained the children in New York at the end of a time-limited trip to visit her Mother, but it also found that she had established certain exceptions to the children’s return. The Father had secured a Spanish custody order requiring the Mother to return the children. Instead of filing that in New York’s state courts for registration and enforcement, he sought the return of the children using the Hague Abduction Convention in federal court. On appeal, the Petitioner Father challenged the court’s ruling on the Mother’s exceptions to return, and also argued that the District Court erred when it declined to exercise its discretion to return the children (despite the exceptions), it failed to afford the Spanish court order comity, and it proceeded on Day One of trial without a Spanish-language interpreter. The U.S. Court of Appeals for the 2nd Circuit affirmed.

The Court of Appeals found no error in the District Court’s decision to pinpoint the precise date of wrongful retention as the date when the Mother alerted the Father she would not return with the children, particularly since he then reported her actions promptly to law enforcement and expressed his objection to the retention. In that he filed his petition a few days beyond one year from that date, the Court concluded the children were now settled in New York, even though their immigration status was “unresolved” and that they were residing in a shelter (which, at least in this case, “is a stable environment that provides [the family] with their own apartment, and also provides community and resources”). The District Court’s refusal to exercise discretion to nonetheless return the children to Spain was not an abuse of discretion, as the District Court had explained that it refused based on the children’s interest in remaining settled in New York. Further, the Court of Appeals found that the District Court was not being asked to recognize and enforce a Spanish court order as a matter of comity, but instead to determine a claim under the Hague Abduction Convention. There was no prohibition on the Petitioner filing such a request parallel with “the international return proceedings”. Finally, in federal court, it is the litigant’s obligation to secure foreign language interpretation when needed. The court noted that it had advised Petitioner and his counsel of this obligation, and, on appeal, the Petitioner did not indicate any way in which the lack of an interpreter on the first day of a six-day trial “deprived him of a meaningful opportunity to be heard”.