120 F.4th 335
2d Cir.2024Background
- Maria Elena Swett Urquieta (Swett), a Chilean national, and John Francis Bowe (Bowe), a U.S.-based writer, share legal custody of their son S.B.S., who mainly resided with Swett in Chile.
- Swett permitted S.B.S. to visit Bowe in New York in December 2022 under a travel authorization that expired on January 8, 2023.
- Bowe retained S.B.S. in New York after the authorization expired, enrolled him in school, and sought sole custody, prompting Swett to seek S.B.S.'s return under the Hague Convention.
- Swett filed her petition for repatriation on February 23, 2024, more than a year after the alleged wrongful retention.
- The District Court found that Bowe had wrongfully retained S.B.S. but ruled in Bowe's favor based on two affirmative Hague Convention defenses: the "well-settled" and "child objection" defenses.
- The Second Circuit affirmed the District Court's denial of Swett's petition, agreeing with its legal and factual determinations.
Issues
| Issue | Swett's Argument | Bowe's Argument | Held |
|---|---|---|---|
| Date of wrongful retention for ‘well-settled’ defense | Consent for extension was not given after January 8 | No new wrongful retention after possible extensions | Wrongful retention occurred January 8, 2023 |
| Application of ‘well-settled’ defense | Petition timely due to lack of clear consent | More than a year passed; child is settled in NY | Defense applies; time ran from January 8, 2023 |
| Parent's ability to extend retention after wrongful act | Subsequent acquiescence should negate initial wrong | Extension after wrongful retention is legally possible | Parent could extend, but no genuine consent found |
| Application of ‘child objection’ defense | No sufficient objection or should not be dispositive | Child objects to return; defense should prevent repatriation | Defense applies; District Court's factual findings affirmed |
Key Cases Cited
- Lozano v. Alvarez, 697 F.3d 41 (2d Cir. 2012) (explained well-settled defense under Hague Convention)
- Taveras v. Morales, 22 F. Supp. 3d 219 (S.D.N.Y. 2014) (addressed wrongful retention and parental consent in Hague proceedings)