Norinder v. Fuentes, No. 10-2753 (7th Cir. 2011), is the rare case in federal court, and even rarer in the federal appellate system, to address custody issues. The Hague Convention on the Civil Aspects of International Child Abduction, T.I.A.S. No. 11,670 (Oct. 25, 1980), entitles a person whose child has been wrongfully removed to the U.S. in violation of the Convention to petition for the return of the child to his or her country of “habitual residence”. The one exception addressed by the Court of Appeals relates to a case where there is clear and convincing proof that there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The case involves a custody battle between two physicians. The international practice teachings from the decision including the following:
First, the Court of Appeals affirmed that cases in U.S. federal court properly are subject to the U.S. Federal Rules of Civil Procedure. Describing the argument for a different set of procedural (specifically discovery) rules “a non-starter”, the Court of Appeals said:
There is no question that the Federal Rules of Civil Procedure apply to cases brought under the Act and the Convention in federal court.
The Court upheld the District Court’s handling of discovery in the case.
Second, the Court affirmed the District Court’s refusal to permit a continuance in the proceeding based on the international and treaty-based nature of the claim:
The denial of a continuance was the correct course here because of the time-sensitive nature of the case, filed as it was under an international convention designed to protect children unlawfully abducted to foreign countries. Courts have leeway to limit discovery in many circumstances where the additional discovery would undermine the litigation.
Third, the Court found that the “habitual place of residence” should be defined “based on the everyday meaning of those words rather than on the legal meaning that a particular jurisdiction attaches to them”. This approach avoids the peril of forum shopping, said the Court.
Fourth, the Court affirmed the lower court’s determination that no clear and convincing proof had been adduced justifying overriding the Convention’s conclusion that the child should be returned to his habitual residence.