What’s Best for you is not necessarily Best for me (or the children): custody disputes under the Hague Convention

Given the large number of internationally mobile and expatriate families in Bermuda, and relatively high divorce rates locally, it’s no surprise (sadly) that international child custody disputes involving Bermuda and the Hague Convention are relatively frequent.

One example is the case of S v S [2014] EWHC 575 (Fam), a decision of the English High Court.

Another more recent example is the case of Best v Best, in the US District Court, W D Pennsylvania.

According to Federal District Judge David Stewart Cercone, the Petitioner, Joseph E. Best, Jr. commenced  proceedings pursuant to the Hague Convention seeking an order compelling the return of his minor children to Bermuda.

An order directing that the minor children be transferred to his custody, and permitting the petitioner to return to Bermuda with them, was made in Mr. Best’s favour. Mr. Best then issued a Motion for Attorney’s Fees and Costs, which was granted by the Court.

The judgment regrettably provides an object lesson in how NOT to behave when seeking to contest the issue of custody, internationally.

The Judge explained the background and his reasoning as follows, in his judgment dated 28 September 2016:

The minor children are the son and daughter of petitioner and respondent Jada Best. On May 7, 2014, respondent filed an application with the Supreme Court of Bermuda to take the children on a vacation to visit family in Erie, Pennsylvania. It was represented that the trip would be from July 2, 2014 to July 30, 2014. On July 29, 2014, respondent contacted petitioner and indicated she and the children would not be returning to Bermuda until August 9, 2014. Thereafter, petitioner became aware of respondent’s intent to remain in Erie with the children. Petitioner then filed a Hague Abduction application for return of the children.

On August 6, 2014, respondent filed a custody petition in the Court of Common Pleas of Erie County, Pennsylvania. In response, petitioner filed a Rule to Show Cause as to why the complaint should not be dismissed based on the custody of the children being vested in the Bermuda court. After a hearing on October 2, 2014, the Court of Common Pleas issued an order dismissing the custody complaint for lack of jurisdiction.

On March 17, 2015, petitioner filed the instant proceeding seeking the return of the minor children to their habitual place of residence in Bermuda. After giving the parties time to develop the record, an evidentiary hearing was held on August 31, 2015. Following that hearing the court entered an Order on September 1, 2015, declaring that petitioner’s application for relief under the Hague Convention was granted. It then ordered the children to be returned to Bermuda with petitioner and enjoined respondent from interfering with or impeding the orderly transfer of the children to petitioner’s custody and/or their return to Bermuda.

On December 9, 2015, petitioner filed the instant motion seeking the recovery of the attorney’s fees and costs incurred in regaining the children. Petitioner requests a total award of $23,915.14 and has submitted documentation in support.

Respondent challenges petitioner’s motion on the grounds that the custody arrangement governing the children and her removal of them to Erie is still under review by the Supreme Court of Bermuda and therefore an order in favor of petitioner could prove to be prejudicial to her rights in that forum. Consequently, from her perspective awarding attorney’s fees and costs “would be clearly inappropriate” under 22 U.S.C. § 9007(b)(3). Because this argument has no application to the motion at hand and this court already has granted petitioner relief under the Hague Convention, respondent has failed to show it “would be clearly inappropriate” to award necessary fees and expenses.

Respondent’s violation of the statute virtually triggers an award of reasonable attorney’s fees and costs. The traditional “American Rule” provides that the parties are “ordinarily responsible for their own attorney’s fees.” Truesdell v. Philadelphia Housing Auth., 290 F.3d 159, 163 (3d Cir. 2002). Thus, there is a “general practice of not awarding fees to a prevailing party `absent explicit statutory authority.'” KeyTronic Corp. v. United States, 511 U.S. 809, 819 (1994) (quoting Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 262 (1975)).

An exception to the American Rule has been established under the Hague Convention on Civil Aspects of International Child Abduction wherein costs and fees explicitly are provided for in the implementing statute, the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001…

…Petitioner also seeks reimbursement of $2,036.88 in airfare, hotel, and car rental costs. Under 22 U.S.C. § 9007(b)(3), petitioner is entitled to these costs as it was necessary for him (1) to fly to the United States, (2) stay 2 nights in order to attend the hearing, and (3) return with his children to Bermuda. Federal courts routinely have awarded transportation and lodging costs to attend court hearings. See, e.g., Paulus v. Cordero, 2013 U.S. Dist. LEXIS 20198 (M.D. Pa. 2013) (ordering reimbursement of $555.80 for airfare, $619.50 for bus fare, and $122.10 for lodging expenses); Distler, 26 F. Supp. 2d at 728 (awarding $2,422.00 for round trip flight and minor’s airfare for return to his habitual residence) (citing Freier v. Freier, 985 F.Supp. 710, 714 (E.D. Mich. 1997)).”

The judgment has been reported by number of websites and blogs, including:

 

 

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