*1 1.2111(d)(2)®. im- § We will vacate material rule
permissible relationship rule, order the reinstate- 10-year-hold of 47 C.F.R. previous version
ment of 1.2111(d)(2), matter to
§ and remand the proceedings. further FCC KARPENKO, Appellee/Cross-
Marina
Appellant LEENDERTZ, Appellant/Cross-
Paul
Appellee.
Nos. 10-1825. Appeals, States Court of
United
Third Circuit. July 12,
Argued 2010.
Opinion Aug. Filed: *2 (2) would have
country; arranged to be visitation regular Netherlands, Ukraine, or the Unit- *3 family in the has Leendertz ed States. and, pilot, as a commercial Netherlands the able to visit Netherlands. Cullen, (Argued), Esquire J. Stephen E.L. to initially moved with Karpenko Gay- Powers, J. Esquire, Joshua Kelly A. Ukraine, request, at Leendertz’s the but P.C., Stockbridge, field, Miles & Esquire, Ede, E.L. Netherlands. she relocated MD, Baltimore, Appellee/Cross-Appel- for age at two and in the Netherlands arrived lant. at public age Dutch school began attending Gardner, (Argued), Esquire Shay Linda Dutch friends four. E.L. has numerous PA, Offices, Bethlehem, for Law Gardner relatives in Karpenko’s with and socializes Appellee. Appellant/Cross Dutch as E.L. learned Netherlands. the im- language and became primary ALDISERT, FUENTES, and Before: in Dutch culture. mersed ROTH, Judges. Circuit Karpenko’s relocation Although was osten- to the Netherlands the Ukraine OPINION Leendertz, Karpen- sibly to accommodate ROTH, Judge: Circuit in accor- visitation ko refused to allow full Custody the court-ordered minor dance with Leendertz, father Paul 2007, further de- following In appeals Stipulation. in proceeding, at issue this child relations, moved Karpenko of terioration petition of a grant District Court’s Netherlands, Ede, and to a new location mother, Karpenko, by the Marina filed her ad- with provide Leendertz Con- refused child’s return under In both phone or number. Interna- dress Aspects of on the Civil vention physical and petitions for sole parties filed following For Child Abduction. tional Dutch District custody: she in the legal Kar- grant of reasons, will affirm the we Arnhem, Pennsylvania in the he the minor Court and order petition penko’s Dutch court of Common Pleas. mother return to her immediate child’s pending deci- Karpenko’s petition stayed Netherlands. Pennsylvania court. by sion Background I. 20, 2009, Pennsyl- By Order of granted sole Pleas Court Common dispute vania long, bitter This action follows That order custody of E.L. to Leendertz. over Karpenko Leendertz and between (1) pri- and legal sole transfer child, E.L., purports born their minor custody of (2) Leendertz; custody to mary physical Kar- in 2001. Leendertz Pennsylvania authority apply Leendertz “sole grant E.L.’s the time of married at penko were passport for obtain a United States officially for and birth, 2002 and separated in but consent Mother’s minor child without September in 2007. divorced any further without is- or authorization Pleas of Common Pennsylvania Court (3) au- Mother;” Leendertz grant Custody notice to incorporating an order sued custody of the child at thority to “obtain which parties executed Stipulation found, whether may be (1) any place that she obtain Karpenko provided country” any other with in the United States custody and live primary physical (4) grant further any proceedings; Ukraine, native without E.L. authority and his sister pick “to July On Karpenko filed the up location;” the child at her school or instant for return E.L. (5) award visitation “as the Convention on the Aspects Civil (6) she and may agree;” the Father Abduction, International Child done at The adjudge Karpenko in civil contempt for Hague October T.I.A.S. No. willfully violating prior court orders. Kar- 11,670 1, 22514 U.N.T.S. reprinted, penko appealed and the Su- (1986) 51 Fed.Reg. (Hague Con- perior Court affirmed. vention), as codified the International Netherlands,
In the Child foreign Act, order is Abduction Remedies 42 U.S.C. *4 11601, § not enforceable until (ICARA). domesticated et seq. Karpenko Code, Dutch Dutch 9, court. Civil Title claims she is entitled to the immediate 985, seq. However, Article et rather than return of daughter because Leendertz 20, reducing May 2009, Order to a wrongfully removed her from the Nether- domestic judgment law, under Dutch lands to the United States. Leendertz arranged to seize E.L. in the The District Court for the Eastern Dis- and Netherlands return with her to Penn- trict granted Karpenko’s sylvania without notice to Karpenko or the petition for E.L.’s return 3, on March Dutch presiding court over the custody 2010. To potentially avoid relocating E.L. 27, proceeding 2009, there. On May Leen- multiple times during the pendency of this dertz located E.L. on the sidewalk outside proceeding, however, the District Court her school in the Netherlands. With the stayed enforcement of its Order pending help of an party, unidentified third Leen- appeal. appeals Leendertz the District placed dertz E.L. in a car and drove her to grant Court’s of Karpenko’s Hague Con- Germany, they where flew Dubai and petition. vention Karpenko cross-appeals
ultimately the United States. Dutch au-
the District
entry
stay.
Court’s
of the
thorities
issued
Alert
Amber
within
minutes of E.L.’s
By
removal.
Order of
II.
Jurisdiction
and Standard of Re-
29,
2009,
(1)
a Dutch court ruled that
view
removal,
the time of E.L.’s
and
joint
Leendertz had
custody under
The District Court properly exercised
(2)
law;
Dutch
Leendertz
unlawfully
acted
jurisdiction under 42
11603(a),
§
U.S.C.
by removing the child
without
which confers United States district courts
(3)
permission; and
shall
imme-
original
with
jurisdiction over actions aris-
diately return E.L. to Karpenko. Leen-
ing under the Convention.1
juris-
We have
dertz
comply
refused to
with the Dutch
diction under
§
28 U.S.C.
Order and currently
with
resides
his new
wife and
E.L. Northampton, Pennsylva-
We review the District Court’s
nia.
factual findings for clear error. Factual
1. The
properly rejected
2005).
terms,
District
Leen-
By
proceeding
its own
arguments
dertz’s
for abstention
under Youn
Convention is distinct from deter-
Harris,
ger
37,
746,
v.
401 U.S.
91 S.Ct.
27
Convention,
custody, Hague
minations of
art.
(1971),
L.Ed.2d
("A
669
River
Colorado
Water
19
decision under this Convention con-
States,
Conservation District v. United
424
cerning the return of the
shall
child
not be
U.S.
96 S.Ct.
cases.”
Under the petitioner evidentiary the initial burden of The District held an bears by preponderance hearing, following of the evidence after which it issued the proving evidence; (2) provides: convincing 2. Article 3 of the Convention clear and that the permitted by would not be child’s return The removal or the retention of a child is to principles requested wrongful fundamental State be considered where— rights relating rights protection a. it is in breach of of at- human and person, tributed to a an institution or by fundamental freedoms clear and convinc- alone, body, jointly or evidence; (3) other either ing that the child is now settled the law of the State which the child was by preponder- in his or her new environment habitually immediately resident before evidence; (4) person ance of the that the from retention; removal or whom the child was removed was not exercis- b. at the time of removal or retention ing custody rights at the time of removal or exercised, actually were either those retention, subsequent- had consented to or or alone, jointly or or would have so been ly acquiesced by in the removal or retention but for the removal or retention. exercised evidence; (5) preponderance of the or objects being child returned and has require respon- 3. The affirmative defenses age degree maturity at attained an (l)that grave prove dent that the risk appropriate which it is to take account of its expose him or her to child's return by preponderance views of the evidence. physical psychological harm or otherwise 11603(e)(2). § place U.S.C. the child in an intolerable situation conclusions: residence to be the Even findings legal factual United States. 27, 2009, May assuming possible parents it were E.L. was removed on contractually stipulate her residence the Netherlands.4 child’s habitual habitual residence, custody at the time of re- Leendertz’s reliance on the Karpenko had law, 28, 2002, because, February agreement under Dutch divorced is mis- moval joint custody placed. stipulation until a Dutch That was vacated when parents retain otherwise; Pennsylvania adopted par- court there was no sever- court rules joint custody by subsequently Custody Stipu- a Dutch court as ties’ executed ance of 27, 2009, point September Sep- conceded Leen- lation on 2002. The May 19, 2002, Custody Stipulation Dutch law. expert dertz’s on tember exercising custody rights was states E.L. would reside actively she was time of removal because Ukraine. daily By removing life. involved E.L.’s In another claim of purported er E.L., breached cus- Leendertz ror, argues Leendertz the District Court tody rights under Dutch law because he disregarded evidence that his conduct com self-help, form resorted to extreme plied with Dutch and American “[a]t law run,” registering “a snatch and rather than times,” all and therefore he did not breach 20, 2009, Pennsylvania May court’s Karpenko’s custody rights by removing required by Order the Netherlands as E.L. from the Netherlands. carry Dutch law. Leendertz failed to his rely he legally contends was entitled to establishing his affirmative de- burden of court’s
fense, i.e.,
granting
petition
that
the
he
E.L.
Order when
seized
outside her
sexual,
pose
grave
physical,
risk of
or
However,
school in the Netherlands.
that
E.L.’s return.
psychological
upon
abuse
purports
Order
to
power
exercise
authoriz
argues
ing
by
that the District
conduct
on foreign
Leendertz
Leendertz
soil—
findings
clearly
particular,
factual
are
errone
a “snatch and
accu
grab,”
Court’s
as
disagree.
rately
by
ous.
Leendertz’s claims of
characterized
the
We
District Court.
A Pennsylvania
jurisdic
error do not leave us with a firm conviction
state court lacks
conduct; therefore,
findings
that
of the factual
are mistak
tion to authorize such
20, 2009,
that
example,
argues
May
en. For
the
court’s
nullity
to
the
was a
District Court failed
consider
Order
the Netherlands
parties’
parental
regarding
by
settled
intent
until
a Dutch
domesticated
court. On
analysis
the child’s location in its
of habitu
a Dutch court ruled that
unlawfully by
al
As “critical” evidence of set Leendertz acted
removing
residence.
parental
Karpenko’s permission.
tled
intent that E.L. would reside
the child without
States,
in the
on a
support
United
Leendertz relies
These facts
the District Court’s
28, 2002, custody agreement
finding that
February
Karpen
Leendertz breached
custody
which purports
stipulate
rights.
to
E.L.’s habitual
ko’s
explained
holding
fully
4. The District Court
its
Dutch and she was
involved in all as-
habitual residence as follows:
pects
daily
of
and cultural life in the Nether-
The child moved with the Mother to the Neth-
lands. There can be no doubt that the Neth-
years
erlands,
States,
only
erlands when
two
old.
she was
place
not the United
is the
The child has lived in the
with
Netherlands
physically present
where she has been
past
years. At
time
the Mother for the
six
age of two until
at the
she was removed
removed,
attending
she was
the child was
age
eight
degree
of
and which
held
of set-
in the
nu-
school
Netherlands where she has
purpose
perspective.
tled
from the child’s
primary language
merous
Her
friends.
it,
implements
the District Court’s
demonstrates
their
We conclude
clearly erroneous.
findings
purpose
protect
of fact were not
is to
of
well-being
with the District Court’s ulti-
agree
We
preamble
children. The Convention’s
em-
authority
“Under no
mate assessment:
phasizes that “the interests of children are
the Father authorized to snatch the
was
paramount importance
in matters relat-
manner he
child from her school
ing
custody”
expresses
to their
a de-
did.”
protect
sire to
children from the harms
by
caused
wrongful
removal.
Con-
argument,
At oral
a member of
vention, preamble. The conduct of the
panel posed
question
this
a novel
which
parents, other than the claim of abduction
parties
or briefed
or
was not raised
retention,
is not
mentioned
by the District Court: Should
considered
except
Convention
the extent
equitable power
this
exercise its
may
that that conduct
be relevant to one of
deny relief under the
Convention
Moreover,
the affirmative defenses.
arti-
with
because
filed this
provides
cle 19 of the
that a
unclean hands? The doctrine of unclean
decision
to return
child under the Con-
hands,
equitable
maxim that
named
vention
is not determination on the mer-
into
come with
equity
“he who comes
must
custody. Custody
its of
is to be decided
hands,”
self-imposed
clean
“is a
ordinance
by a court of the child’s “habitual resi-
equity
that closes the doors of a court of
purpose
dence.” The
of the Convention is
inequitableness
with
or bad
one tainted
safeguard
the child
discouraging kid-
faith
to the matter in which he
relative
napping
in connection with
dis-
relief,
improper may have
seeks
however
putes.
of the defendant.” Pre
been the behavior
Mfg.
v. Auto.
cision Instrument
Co.
un-
application
We conclude
Co.,
Mach.
Maint.
324 U.S.
clean hands doctrine would undermine the
(1945).
993,
267 omitted). petitioner engaged lief to a who has As we have often emphasized, directly bearing unconscionable conduct on the nexus “between the misconduct and dispute parties. between the Accord- the claim must be close.” E.g., In re New (3d ingly, I would raise the unclean-hands doc- Valley Corp., 525 Cir. 1999). sponte Karpenko’s trine sua to dismiss unscrupulous based on her actions Although the doctrine of unclean hands willfully 'violating orders of frequently interposed is as an equitable courts, abusing Pennsylva- defense, we raise the doctrine sua legal processes, absconding with the nia’s sponte, Highmark, see 276 F.3d at E.L., parties’ daughter, denying E.L. equitable ensure that our powers are “nev- Leendertz, father, all access to since er ... exerted behalf of one who has 2006. Because this unconscionable mis- fraudulently acted or who deceit or directly conduct relates unfair gained means has an advantage,” claim for return aof child under Keystone Driller Co. v. Gen. Excavator Convention, it operates as com- Co., 240, 245, 290 U.S. 54 S.Ct. 78 plete Respectfully, bar to her relief. (1933). L.Ed. 293 As we have explained dissent. previously, equitable doctrine of unclean hands I. is not a matter of defense to the defen- Both the Convention and its Rather, it[,] dant. in applying courts remedy return of a available child— —the are primarily concerned with their own are equitable nature. See Hazbun Escaf integrity, avoiding becoming and with Rodriquez, F.Supp.2d 611 n. iniquity. abettor of (E.D.Va.2002).1 with equita As other Ctr., McMonagle, Ne. Women’s Inc. v. remedies, therefore, ble Hague relief is (3d Cir.1989) (citations 1342, 1354 F.2d subject equitable to the doctrine that “he omitted). quotations Consequently, it is equity who comes into must come with prerogative, obligation, our and even our Mfg. clean hands.” Precision Instr. Co. v. to shut this Federal Court’s doors “in li- Co.,
Aut. Maint. Mach.
324 U.S.
remedy-seeker
mine” to a
who has com
(1945) (quota
65 S.Ct.
Atomic
v.
486 U.S.
sis afforded no
solicitude for
(1988),
1704,
Convention claims. See id.
269 view, cipled refusing apply demonstrate that basis for to the un- my these cases subject range ground to the full clean-hands doctrine on the that it Hague litigation is nonstatutory equitable appli- Hague objectives. doctrines “undermine[s]” of See indicated, Maj. Op. controversies. As at 265. cable other remedy return-of-child is es- because the majority “fugitive The states that disen- Hague petition is sentially equitable, apply titlement does not to of unclean subject equity’s to doctrine here,” Maj. Op. conduct at n. 265 but hands. justification offers no distinguishing be majority tween equitable fugitive finds the unclean-hands doctrines of inapplicable Hague litigation doctrine disentitlement and unclean hands. readily “would undermine the concede that because it unclean-hands goal protecting inapplicable of the well- doctrine is to categories Convention’s some child, lawsuits, restoring litigants the status of as when being represent abduction, interest, public e.g., and of quo before the child’s Perma Life Mufflers rights Corp., ‘that and of v. Int’l ensuring Parts 392 U.S. (1968) Contracting of one 20 (pari
access under the law 88 S.Ct. L.Ed.2d 982 effectively delicto respected private State are the other defense unavailable anti ” Maj. they at trust Contracting Op. impor States.’ 265 cases because “serve[] 1(b)). Convention, (quoting Hague public purposes”), private art. tant or act as attorneys general, But much. argument proves e.g., Ring too ASPCA Circus, 244 apply equitable deny ling Bailey When we doctrines to Bros. & Barnum & (D.D.C.2007) (unclean-hands remedy to which a claimant is otherwise F.R.D. 53 entitled, necessarily litigation we subordinate the defense unavailable in under the Species obligation Endangered private substantive law to our Court’s Act because litigants overriding pol further jurisprudential reputation public defend our “the animals”). icy in favor of integrity. protecting Cases under the Con- Thus, exception. foreclosing But vention have been no the rationale the unclean- fugitive when courts have dis- hands doctrine in those cases—that un applied matters, litigant entitlement doctrine to clean hands should not bar a from they Hague policies achieving public have a broad benefit—-is absent subordinated of American criminal in individual cases under the Con pro- deter “abuses Prevot, cess,” majority’s position vention. can the “promot[e] 59 F.3d Nor courts, justified operation by magnitude the efficient of the dis- be reference to the eourag[e] flights justice, rights implicated Hague litigation. from avoid[ ] (1st Walsh, prejudice other side Walsh v. caused See Cir.2000) (“To Pesin, status,” appellant’s fugitive parent bar a who has lost a Likewise, arguing F.3d at 1253. at least one court child from even the child was country to another Hague policies wrongfully has subordinated removed is harsh.”). view, my magnitude too policies underlying the doctrine of waiver. Joume, heightens profound obligation our to en F.Supp. See 48. Unless the majority prepared exempt Hague liti- sure that this Court does not become gation instrumentality iniquity the doctrines of waiver in relation to both disentitlement, prin- rights.4 it those fugitive lacks Through ages, great drama- any showing fugitive that the has im- writers and status tists have sounded the call for the intervention
paired
parent”).
of the other
day equity
reflected modern
of relief now
*11
that,
majority
ap
majority
finally
is also concerned that
The
The
contends
even
unclean-hands doctrine
if
plication
Hague
subject
of the
Convention is
to the
hands,
in
commonplace Hague
inappropriate
would be
Conven
doctrine of unclean
it
matters,
wrongful
tion
removal “is
in
in
engaged
because
this case because “Leendertz
likely
precisely
type
when strained rela
most
occur
of conduct
that
parents
designed
tions between
are at their worst”
Convention was
to deter.”
may
Maj.
matter,
parents
Op.
and after “one or both
at 266. As a factual
I
[have]
custody
disagree.
majority
with the other’s
acknowledges,
interfere[d]
but
rights.” Maj.
They
atOp.
downplays,
265.
fear that
the fact
that Leendertz re-
the unclean-hands doctrine will
daughter
eviscerate moved his
to the United States
“remedy
in
pre
Pennsylva-
Convention’s
reliance on an order from a
[for]
venting]
cycle
of abduction and re-ab
nia
purported
court that
to authorize him
duction,
custody
an outcome which would inflict
to “obtain
any place
of the child at
found,
harm on
may
needless
vulnerable children.”
that she
be
[including “at her
Maj.
school,”]
But
Op.
argument
at 266.
that
as
whether
the United States or
apply
any
country.”
sumes that we would
the doctrine
App.
Sig-
other
445-447.
woodenly,
sensitivity
nificantly,
without
to the acri
additionally specified
it
that
frequently
monious factual circumstances
proceedings
further
or
“[n]o
further
attending Hague petition
Here, I
required
cases.
orders shall be
for Father
admonition,
Supreme
heed the
Court’s
obtain
App.
child.”
445-
context,
fugitive
disentitlement
that
Although
Pennsylvania
court
“restraint,”
courts must exercise
denying may
authority
have lacked the
to enter an
only
relief
response
as
“reasonable
order with such a huge sweep, that order
it.” De doubtless made this case of unlawful re-
problems
provoke
and needs that
gen, Here,
U.S.
II.
sages, Karpenko has threatened Leendertz
again
that he will never see E.L.
and has
equitable
The
doctrine of unclean hands
that,
her,
warned him
if he
to see
tries
applies
party seeking
when a
relief has
Karpenko
change
will
the child’s name and
committed an “unconscionable” act that is
get
passport.
her
new
Id. Other evi-
“immediately
equity
par
related
Karpenko maligned
dence indicated that
ty
respect
litigation.”
seeks
Leendertz and denied the child access
Highmark,
Additionally,
When the District Court
Kar-
duty-bound
deny Karpenko
equi-
are
all
penko’s
Child,
Petition for Return of
she
table
relief
view of her unconscionable
very nearly
making
succeeded
the fed-
and fraudulent conduct—her manipulation
eral court system
ineq-
an “abettor” of her
Ctr.,
legal process,
of the American
uitable conduct.
Ne.
her defiance
See
Women’s
orders,
of court
unrelenting iniqui-
Keystone, 290 54 S.Ct. U.S. un- Karpenko’s I would hold case, hearing
clean bar us from her hands granting requested
much less relief.
Accordingly, pro- I would remand these
ceedings entry District Court dismissing petition. order stated, I
For the reasons heretofore re-
spectfully dissent. LIZARDO, Appellant
Juan Francisco
UNITED of America. STATES
No. 08-2044.
United States of Appeals,
Third Circuit.
Submitted Under Third Circuit 34.1(a) 3,May
LAR 2010. Aug.
Filed: