Introduction

The case of Roman Tereshchenko v. Yasamin Karimi (102 F.4th 111), adjudicated by the United States Court of Appeals for the Second Circuit on May 16, 2024, presents a significant development in international family law. This case centers around the application of the Hague Convention on the Civil Aspects of International Child Abduction, particularly addressing the circumstances under which a child can be returned to a third country rather than their country of habitual residence. The parties involved are Roman Tereshchenko, the petitioner and father seeking the return of his two children, and Yasamin Karimi, the respondent and mother who relocated with the children from Ukraine to the United States amidst the Russian invasion of Ukraine.

Summary of the Judgment

In this landmark decision, the Second Circuit affirmed the District Court's grant of Tereshchenko's petition under the Hague Convention, ordering the temporary return of the children to Tereshchenko's residence in France instead of their habitual residence in Ukraine. The court acknowledged that while the initial removal of the children from Ukraine was consensual for safety reasons during the Russian invasion, the subsequent undisclosed relocation to the United States by Karimi constituted wrongful retention under Article 3 of the Convention. However, the court identified an error in the District Court's assessment that returning the children to Ukraine would not expose them to a grave risk of harm. Despite this error, the appellate court upheld the decision to permit a temporary return to a third country (France) as an ameliorative measure, given the ongoing conflict in Ukraine. The case was remanded to ensure that the return order is tailored to maintain the jurisdiction of Ukrainian courts over the custody dispute and to prevent an impermissible custody determination.

Analysis

Precedents Cited

The judgment references several key precedents that influenced the court's decision:

• Golan v. Saada (596 U.S. 666, 2022): Established that courts have discretion to impose ameliorative measures under the Hague Convention to protect children from harm without delving into custody determinations.
• BLONDIN v. DUBOIS (189 F.3d 240, 1999): Discussed the limits of ameliorative measures, emphasizing that they must not decide on custody issues.
• Abbott v. Abbott (560 U.S. 1, 2010): Highlighted the Convention's intent to respect custody rights and ensure decisions are made in the child's habitual residence.
• Chevening v. Viganò (Not directly cited but similar in context): Illustrated the court's approach to third-country returns under exceptional circumstances.

Legal Reasoning

The court's legal reasoning focused on interpreting the Hague Convention's provisions in the context of an ongoing armed conflict in Ukraine. The key points include:

• Subject Matter Jurisdiction: The court affirmed that the District Court had jurisdiction under the Convention and ICARA, dismissing claims that consent to initial removal negated jurisdiction.
• Prima Facie Case of Wrongful Retention: Tereshchenko successfully demonstrated that Karimi wrongfully retained the children by relocating to the United States without his consent, breaching custody rights under Ukrainian law.
• Affirmative Defenses: The court rejected Karimi's defenses, including the "now settled" argument and the claim of no grave risk of harm, citing procedural shortcomings and insufficient evidence respectively.
• Third-Country Return: The pivotal legal innovation in this case is the court's acceptance that the Hague Convention permits, under exceptional circumstances, the temporary return of a child to a third country instead of the habitual residence to mitigate grave risks of harm.
• Ameliorative Measures: Emphasizing that such measures must prioritize the child's safety without encroaching on the jurisdiction of the child's habitual residence's courts.

Impact

This judgment sets a critical precedent in international child abduction cases, particularly in conflict zones. It broadens the interpretation of the Hague Convention by allowing for third-country returns as temporary measures to protect children from severe risks, such as those posed by active armed conflict. The decision underscores the court's ability to balance the Convention's intent to respect habitual residence with the imperative to safeguard the child's welfare in extraordinary circumstances. Future cases may reference this decision when facing similar issues of safety amidst geopolitical instability, potentially leading to more flexible applications of international treaties in child custody disputes.

Complex Concepts Simplified

Hague Convention on the Civil Aspects of International Child Abduction

An international treaty that seeks to ensure the prompt return of children wrongfully removed from their country of habitual residence. It primarily focuses on preventing international child abduction by facilitating cooperation between member states.

International Child Abduction Remedies Act (ICARA)

The U.S. statute that implements the Hague Convention, providing the legal framework for handling international child abduction cases within the United States.

Prima Facie Case

A legal standard where the petitioner must present sufficient evidence to support their claim, which, if not rebutted, would be sufficient to win the case.

Wrongful Retention

The unauthorized holding or keeping of a child by one parent against the rights of the other parent, as recognized under the Hague Convention.

Ameliorative Measures

Discretionary actions taken by the court to mitigate potential harm to the child, which may include conditions on the child's return to ensure their safety and well-being.

Third-Country Return

Ordering the return of a child to a country other than their habitual residence, typically as a temporary measure to ensure the child's safety from immediate threats.

Conclusion

The Tereshchenko v. Karimi decision marks a pivotal advancement in the interpretation of the Hague Convention, particularly in the context of global conflicts affecting child custody. By allowing for the temporary return of children to a third country to avert grave risks, the court has demonstrated flexibility in upholding the Convention's objectives while prioritizing the child's safety. This ruling not only addresses the immediate concerns arising from the Russian invasion of Ukraine but also sets a framework for future cases where extreme circumstances necessitate deviations from standard procedures. The requirement to remand for tailoring the return order further ensures that the jurisdiction of the habitual residence's courts is preserved, maintaining the balance between protecting the child's welfare and respecting international legal frameworks.