Case Update (19 February 2026): Kladny v. Deza; child with pending asylum petition in US can be returned under Abduction Convention

The parties are the parents to one child, born in Argentina in September 2018. During the child’s life, the parties also lived in Peru, and, at times, the child resided with her grandparents while her parents were in different countries. Ultimately, in May 2023, the child and her maternal grandparents resumed living in Argentina. The parties reached an agreement in their divorce in July 2023 for the Respondent Mother to be the child’s primary physical custodian. Because the Respondent was then residing in the USA, she delegated primary physical custody to her parents in Argentina. In February 2024, the Father filed for custody modification in the Argentine courts, seeking to increase his parenting time. This resulted in the parents agreeing that the child would spend a few nights a week at the Father’s house. With the Mother’s consent, the Father arranged for the child to receive weekly therapy, starting in March 2024. The therapist saw “only positive interactions between the Child and Petitioner” and the Child “showed no resistance to going with him”. In September 2024, the Respondent withdrew her consent for the child to continue in therapy.

In October 2024, the parties executed a further custody agreement, judicially certified by the Argentine court in December 2024, for the child to stay at Petitioner’s house four consecutive nights a week. His home was also set as the child’s main residence. It allowed for the child to visit Respondent in the USA for 10 days during winter break and 45 days during summer break. The child was scheduled to travel to NY to see Respondent from January 2, 2025, until February 18, 2025. During the first “several days after her arrival in New York, the Child allegedly disclosed to her [Respondent] that Petitioner abused her.” Respondent sought an Order of Protection for herself and the Child on February 11, 2025. It was on February 13, 2025 that the Petitioner first learned of Respondent’s intention to keep the child in the USA. Shortly thereafter, the Petitioner filed a police report and a Hague Abduction application with the Argentine Central Authority. On February 21, 2025, the Respondent filed an affirmative asylum application on the Child’s behalf, which is currently pending. In August 2025, the Child apparently disclosed that Petitioner touched her inappropriately when bathing her.

The Respondent presented four separate arguments, all of which failed to persuade the court: (1) that Argentina was not the child’s habitual residence, (2) that the child’s return would expose them to a grave risk of harm, (3) that the child was mature and objected to a return, and (4) that, because of the child’s pending asylum application, returning the child would violate human rights because it conflicts with the U.S.’s obligation of non-refoulment. The most interesting argument that Respondent made, using Article 20 of the Abduction Convention, was that the child’s return would violate the US’s obligation of non-refoulment. The Court agreed that the U.S. is bound by an obligation of non-refoulment, however, it also stated that “courts have found that a pending asylum application is not a defense under the Hague Convention and that courts have the authority to order a child’s return despite an asylum application.” The court specifically used the word “pending” and didn’t indicate whether a grant of asylum may have a different result. In past U.S. cases, most arguments that explore the tension between returning a child to another country under the Abduction Convention, when the child was seeking asylum in the U.S., focused on the Article 13(b) grave risk, where the courts noted the distinct differences between the evidentiary burden of proving harm in a Hague Convention case vs. an asylum matter. This case argues Article 20, however - the human rights exception. Relatively few sentences were devoted to the analysis, but the district court ultimately concluded that past precedent did not require the judge to forego return because of the open asylum application. Respondent has lodged an appeal with the U.S. Court of Appeals for the Second Circuit. See also Salame v. Tescari for more information on the last time this argument was addressed by a U.S. Court of Appeals.