USA – NJ – CARO – 1996

USA – NJ – CARO – 1996(Return ordered-Twice) CARO v SHER. In 1993 the mother takes the children to the United Sates for vacation which she was allowed to do by agreement with the father and the court. The mother filed for divorce and custody in the U.S and retained the children there. The father filed for return to Spain. Following a hearing, the trial judge ordered the children returned to Spain holding that Spain was the habitual residence. There was no appeal and the children returned to Spain. In 1996 the mother took the children to the U.S. for vacation and once again informed the father she would not be returning with the children. The father files for their return again. The court ordered the return to Spain.


Caro v Sher (N.J.Super.Ch. 1996)296 N.J.Super. 594 [687 A.2d 354]
1 International Abduction [USA 1996]
Emilio Martin Caro, Petitioner


Susan Sher, Respondent

Superior Court of New Jersey, Chancery Division, Family
Part, Monmouth County

30 Oct 1996


Petitioner: Alberto Ulla, Elizabeth NJ
Candido Rodriguez, Brookly, NY

Respondent: Patricia E. Apy, Red Bank, NJ

Decision by: Hayser, J.T.C., temporarily assigned.

001 <* page 355> Petitioner brings this action seeking
the return of children to the place where they habitually
resided, pursuant to the Convention on the Civil Aspects of
International Child Abduction, adopted at the Hague on
October 25, 1980 (the Convention). The threshold issue is
whether this court should abstain from exercising any
jurisdiction in this matter, beyond ordering the return of
the children, in the absence of clear and convincing
evidence that the custodial issues involved cannot be
evaluated and resolved fairly by the courts where the
children have habitually resided.

I. Factual History

002 Significant facts in this matter are not in dispute.
The parties were married in 1983 in Spain, where they lived.
Petitioner is a Spanish national, and respondent an American
citizen who has lived in Spain substantially since 1975.
Three children were born of the marriage, who are presently
thirteen, eleven and seven years of age.

003 In September, 1992 respondent filed with the Spanish
Tribunal of First Instance in Alicante, Spain for separation
and custody of the children. In February, 1993 a
provisional decree was entered, granting the respondent a
legal separation, as well as primary and residential or
physical custody of the children. She was also granted: use
of the marital home, monthly marital support and payment of
certain legal expenses. Respondent was also granted half of
the children’s Christmas, Easter and summer vacations, which
she was free to take in the United States, after
consultation with the petitioner, or court intervention
thereafter, if necessary.

004 Presumably, in reliance, in part at least, on the
vacation relief granted respondent by the Spanish court, she
traveled with her-children for vacation in the United States
in July, 1993, whereupon she immediately filed in this court
for divorce and custody. Petitioner, thereupon, filed his
first petition for the children’s return to Spain, pursuant
to the Convention.

005 Following a hearing on August 20, 1993, the trial
judge ordered the children’s return to Spain, holding that
it was the country of the children’s “habitual residence”
and that they were “wrongfully retained” from “their country
of habitual residence.” (Trial Court Opinion decided August
20, 1993, pp. 4 and 5). FN1 There was no successful appeal
of this decision, and respondent’s complaint for divorce and
custody was thereafter dismissed <* page 356> with prejudice
by stipulation. The children were returned to Spain.

006 In October, 1993 the provisional separation decree,
which is presently under appeal by the respondent, was
finalized. In September, 1994 respondent filed with the
Spanish court to finally leave Spain with the children and
reside with them in the United States. This petition was
denied on November 16, 1994, and a subsequent appeal to the
Audiencea Provincial (Court of Appeals) of Alicante will not
be heard until September 15, l998 pursuant to that court’s
order of February 1, 1995. This decision was appealed on May
16, 1995, to the Constitutional Court of Madrid and is
pending, also, at this time.

007 Between 1993 and the present, respondent has filed
at least twelve petitions to enforce support payments by the
petitioner, all of which were granted by the Alicante court,
with many decided in a period of approximately thirty’ days.
Respondent has been represented by legal counsel throughout
her various proceedings before the Spanish courts.

008 On June 28, 1996, respondent’s counsel filed a
petition with the Alicante trial court, giving notice that
with petitioner’s consent, she would again vacation with the
children in the United States from July, 1996 to August 17,
1996, returning in time for the children to start school on
September 9, 1996. FN2 After leaving Spain, respondent’s
counsel filed a second petition with the Alicante court to
finally leave Spain with the children and reside in the
United States. This petition is also pending at this time.

009 Upon arriving in the United States, respondent
advised petitioner that she would not be returning with the
children to Spain. The present petition was filed under the
Convention on September 9, 1996, before this court. A
hearing was conducted on October 9, 1996, at which time
testimony was given by the respondent and her Spanish
counsel, exhibits were admitted into evidence and arguments
were presented as to the threshold issue. Supplemental
memoranda were submitted by the parties, also, as to this

II. Objectives of the Convention

010 The Convention was adopted at the Hague on October
25, 1980. This treaty became effective on July 1, 1988 in
the United States, following the adoption of the
implementing statute, the International Child Abduction
Remedies Act (ICARA), 42 U.S.C.A.  11601 to 11610 (1988).

011 One finding of the ICARA is that “[p]ersons should
not be permitted to obtain custody of children by virtue of
their wrongful removal or retention.” 42 U.S.C.A 
11601(a)(2). Congress declared that there is “the need for
uniform international interpretation of the Convention,” and
That “courts in the United States [are empowered] to
determine only rights under the Convention and not the
merits of any underlying child custody claims.” 
11601(b)(3)(B) and (b)(4). Moreover, the purposes of the
Convention include “ensur[ing] that rights of custody and of
access under the law of one Contracting State are
effectively respected in the other Contracting States.” (The
Convention, Art. 1(b)).

012 State courts have concurrent original jurisdiction
with federal courts to enforce The Convention’s remedies. 42
U.S.C.A  11603(a). However, four requirements must be met
to invoke’ the Convention’s’ relief:

1. The nations involved must be signatories
to the Convention. Roszkowski v Roszkowska
(Ch.Div.1993) 274 N.J.Super. 620, 633, [644
A.2d 1150];

2. The children must be “habitual resident[s]
in a Contracting State immediately before any
breach of custody or access right.” (The
Convention, Art. 4)

3. The children must be under the age of
sixteen. (The Convention, Art. 4); and

4. The children’s removal or retention in a
country other than their place of <* page 357> habitual residence must have been
wrongful, e.g. “it is in breach of rights of
custody attributed to a person …., either
jointly or alone, under the law of the State
in which the child was habitually resident
immediately before the removal or retention.”
(The Convention, Art. 3(a)).

III. Application of the Convention to Pending Matter

013 Spain was an original signatory with the United States
to the Convention. The earlier trial court determined that
the children’s “habitual residence” was in Spain, and that
unappealable conclusion is not disputed in the present
proceedings, despite their vacation visits to the United
States. Collateral estoppel, if not the “law of the case”
must be applied to this issue. Burlington Northern R. Co. v
Hyundai Merchant Marine Co., Ltd (3rd Cir. 1995) 63 F.3d
1227; State v Reldan (1985) 100 N.J. 187, 203 [495 A2d 76].
See also Roszkowski, 274 N.J.Super. at 633 [644 A.2d 1150].
The children are, now, as they were in 1993, under the age
of sixteen.

014 Finally, the earlier trial court determined that
“[p]etitioner was exercising his rights of custody pursuant
to the February 22, 1993 Decree” and the Convention’s Art.
5(a), when the children were wrongfully removed from Spain.
(Trial Court Opinion, supra, at pp. 4 and 5). In this
regard, respondent’s Spanish counsel testified at the
hearing that both parents under Spanish law held joint
custody of the children to determine major decisions as to
their development under the concept of “patria potestas,”
with the children’s required residence in Spain. This is
more than “access” being the only right retained by the
petitioner “under the law of the State in which the
[children were] habitually resident.” See the Convention,
Arts. 3(a) and 5. FN3

A. Art. 13(b) — Grave Risk of Harm

015 The Respondent correctly argues that Art. 13(b) of
the Convention provides an exception to the return, of a
Child to the place of habitual residence where “there is a
grave risk that his or her return would expose the child to
physical or psychological harm or otherwise place the child
in an intolerable situation.” She now argues as to the risk
of “physical or psychological harm” if the children are
returned to Spain, having unsuccessfully argued to the trial
court in 1993 that their return would be an “intolerable

016 Specifically, the respondent contends that the
children may be endangered by the petitioner’s conduct and
lack of support and the youngest child’s need for therapy
and medication claimed not available in Spain. Her Spanish
counsel testified that unlike the petition for return filed
in September, 1994, whose focus was the respondent’s
unhappi- <* page 358> ness in continuing to live in Spain
and her and the children’s claimed desire to make a
lifestyle change, the petition for return filed in July,
1996 is directed to the above issues. As indicated, that
latter petition is also pending at this time before the
Spanish court.

B. Art. 20 — Due Process

017 Finally, the respondent argues that under Art. 20 of
the Convention, return may also be refused “if this would
not be permitted by the fundamental principles of the
requested State relating to the protection of human rights
and fundamental freedoms.” Specifically, the respondent
contends that while the Alicante courts may not bear her any
ill will, the delay by the Court of Appeals in hearing her
petition for return filed September, 1994 until September,
1998 violates our fundamental interest in procedural due

018 New Jersey has a long tradition of exercising parens
patriae jurisdiction to protect the safety and welfare of
children having substantial contacts with this State.
Lippincott v Lippincott (E. & A. 1926) 97 N.J.Eq. 617,
619-21 [120 A. 254]. However, custody disputes involving
children residing in another country stand on a different
plane. Schmidt v Schmidt (App.Div. 1988) 227 N.J.Super. 628,
633 [648 A.2d 196].

019 In this regard, the Convention is concerned with
International custody disputes. There, indeed, are
exceptions that would require this court, or any American
court, not to abstain in,the best interests of the child.
However, the court must also be satisfied that the foreign
court would not protect and fairly resolve issues concerned
with the child’s beat interests. While there must be more
than a “cursory evaluation” as to whether the foreign court
can decide the custody dispute, see Tahan v Duquette
(App.Div. 1992) 269 N.J.Super. 328, 334 [613 A.2d 486], the
burden is on the respondent to prove by clear and convincing
evidence” that Art. 20 of the Convention may be invoked. 42
U.S.C.A  11603(e)(2)(A).

020 In Ivaldi v Ivaldi 288 N.J.Super. at 689 [672 A.2d
1226], concerning the return to the United States of a child
living in Morocco, a non-signatory to the Convention, the
Appellate Division still concluded:

Even were we to find that the Family Part had
subject matter jurisdiction, the result would
not be different. In our view, the court
would have been obliged to abstain and defer
to the jurisdiction of the Moroccan court
under recognized principles of international
comity . . . It is the recognition which one
nation allows within its territory to the
legislative, executive, or judicial acts of
another nation, having due regard to the
rights of its own citizens or of other
persons falling within its protection.
(Citations omitted).

Nothing has been presented to the Family Part
or this court indicating that the question of
custody cannot be fairly resolved by the
courts of Morocco. The record is devoid of
evidence suggesting in any way that the best
interests of the child will not be protected.
Under these circumstances, we believe that
the Family Part should have abstained even
assuming that it had subject matter

021 In Tahan, the appellate court agreed with the trial
court that even an “Art. 13 inquiry” under the Convention
was not designed to deal with custody issues and their
factual developments reserved to plenary proceedings before
the foreign tribunal that has original subject matter
jurisdiction, barring a finding after careful scrutiny of
the proofs presented, that a fair and proper resolution of
the dispute cannot be provided by that foreign tribunal. Id
at 334 [613 A2d 486].

022 Therefore, under the facts of this case, the court
must initially determine whether the claims raised by the
respondent under Art. 13(b) of the Convention may be fairly
addressed by the Spanish courts. As stated by the court in
Loos v Manuel (Ch.Div. 1994) 278 N.J.Super. 607, 612 [661
A.2d 1077]. “in proceedings under the Convention, the
court’s role is not to make traditional child custody
decisions. It is to determine in what jurisdiction the child
should be physically <* page 359> located, so that the
proper jurisdiction can make custody decisions.” FN4

023 As discussed, the respondent has the burden of
proving by “clear and convincing” evidence the return would
violate the “fundamental principles of the requested State
relating to the protection of human rights and fundamental
freedoms” under Art. 20 of the Convention. In that regard,
she argues only that the denial of a return hearing as to
her 1994 petition until 1998 violates our fundamental
principle of procedural due process.

024 Obviously, the concept of “clear and convincing” is
more stringent than the ordinary civil standard of
“preponderance of the evidence,” and is reserved for the
protection of important interests. Santosky v. Kramer
(1982) 455 U.S. 745, 766 [102 S.Ct. 1388, 71 L.Ed.2d 599].
In the context of an Art. 20 defense, it places a heavy
burden on the respondent. History of an enactment, or even a
treaty, can be an aid in understanding the import of a
particular provision. Helfrich v Hamilton Tp.
(App.Div.1981) 182 N.J.Super. 365, 370 [440 A.2d 1366].

025 The Explanatory Report as to the adoption of the
Convention, prepared by Elisa Perez-Vera, states as to Art.
20, at page 462, that:

[T]o be able to refuse to return a child on
the basis of this article, it will be
necessary to show that the fundamental
principles of the requested State concerning
the subject matter of the Convention do not
permit it; it will not be sufficient to show
merely that its return would be incompatible,
even manifestly incompatible, with these
principles . . . A study of the case law of
different countries shows that the
application by ordinary judges of the laws on
human rights and fundamental freedoms is
undertaken with a care which one must expect
to see maintained in the international
situations which the Convention has in view.

[Id at 462, Hague International Child
Abduction Convention: 51 Fed.Req. 1051-11
(1986).(“[T]his exception, like the others,
was intended to be restrictively interpreted
and applied, and is not to be used, for
example, as a vehicle for litigating custody
on the merits or for passing judgment on the
political system of the country from which
the child was removed.”)]

026 Respondent’s Spanish counsel testified, generally,
as to the manner in which custody issues are resolved before
the Spanish courts, including those of Alicante. Apparently,
for example, individual complaints or petitions are filed
stating separate causes of action, without benefit of any
liberal amendment rule such as R.4:9. However, it appears
that there is no corresponding rule for the application of
the entire controversy doctrine, such as R.4:30A.

027 Rulings, at least initially, are made on the basis
of party statements, submitted documents and attorney
argument. Apparently, also, appellate courts do not usually
“exercise such original jurisdiction as is necessary to the
complete determination of any matter on review.” R.2:10-5.

028 Counsel also testified that there exist procedures
for emergent applications to the Spanish courts as to issues
of child abuse and medical emergencies. In custody issues,
psychological reviews are routinely required, usually
through a court list of reviewers that may be supplemented
by a party’s own submitted, voluntary reviews. He also
testified that the Spanish courts’ under a common law rule
now supplemented by a statute, require consultation with
mature children as to their desires for custody and where
they wish to live.

029 His most relevant testimony, however, concerned the
existence of and reasons for disposition delays, not common
generally, apparently, in Spanish courts, but common for
those of Alicante. This problem affects many litigants, not
only the respondent. It involves an ongoing dispute, if not
political struggle, between those charged with admin- <* page 360> istering a claimed overburdened provincial court
system and those who control the budgetary purse strings. It
is a problem faced by many parties, and not unique only to
Spain — e.g., Flowers u Warden, Connecticut Correctional
Institution (2d Cir. 1988) 853 F.2d 131 (Seventeen-month
delay in bringing state murder defendant to trial during
which time he was incarcerated, did not violate his Sixth
Amendment right to speedy trial where reason for delay was
docket congestion and a rigid chronological approach to case

029 It is also true that counsel testified that the
Alicante court responded quickly to numerous support
enforcement requests of the respondent. However, the issue
goes beyond a cursory consideration of whether or not an
American court believes it can more quickly resolve the
dispute. Friedrich v Friedrich, 78 F.3d at 1067.

030 Therefore, it is important to know what has been the
reaction of the Spanish appellate tribunals to the “Alicante
crises” or similar problems. In this regard, respondent has
provided the court with several Madrid newspaper articles
bearing on this subject. There was no objection by the
petitioner as to the submission of these articles to the

031 In one article, it was reported that the
Constitutional Court in Madrid overturned an Alicante
court’s decision in February, 1994, which set an appeal
hearing date for March,1996 in what is termed “a minor
suit.” The Court held that the right to a trial without
undue delays had been violated, and that such factors as
work overload “do not exonerate the State from fulfilling
its obligation to immediately provide its Department of
Justice with the human and material resources it requires in
order to give it the . . . effectiveness demanded by the
Constitution.” It is before this same Constitutional Court
that the respondent has her appeal pending as to the
September, 1998 hearing established by the Alicante court
for consideration of her return application filed in
September 1994.

032 In a second newspaper article, it was reported that
the National Court of Spain ordered the Government to pay a
litigant damages resulting from unreasonable delays by the
Court of Barcelona, which resulted in a thirty-two month
period during which the petitioner did not receive alimony
payments after filing for separation. This was considered a
violation of the litigant’s right to a speedy trial, whether
civil or criminal, under Article 24 of the Spanish
Constitution. FN5

033 These articles were presumably submitted by the
respondent to demonstrate the problems in the Spanish court
system, but more convincingly show the existence of
realistic and progressive remedies in overcoming the
lethargy of a judicial bureaucracy.

034 It is important, also, to focus on the nature, as
well as status, of the September, 1994 return petition, and
contrast it with the July, 1996 petition, both pending
before the Spanish courts at this time.

035 Respondent’s Spanish counsel testified that the
focus of the 1994 petition is the respondent’s desire to
leave the unhappiness she has experienced in Spain,
including the need for frequent support enforcement
proceedings, and her and her children’s desire to assume a
claimed more stable lifestyle in the United States. It is
questionable if the need to petition a court for support
enforcement, whether granted or denied, is a sufficient
basis to approve a removal petition no more than the fact
that one was an unsuccessful litigant would be the factor to
determine the objective fairness of the judicial system. In
contrast the 1996 petition is focused upon the psychological
health of the children, claimed affected by the continued
strife, and the particular medical needs of the youngest
child, allegedly requiring treatment abroad.

036 Furthermore, the appeal hearing in January, 1997,
will address the substance of the separation decree,
including the issues of support and custody. It will be,
under the Spanish procedures, the first opportunity that
apparently will be given the respondent to testify and
express her concerns as to these and other related issues.

037 <* page 361> It is clear that the Spanish courts’
civil [procedures do not correspond in all respects faith
those in this jurisdiction. However, the signatories to the
Convention, while recognizing that “the interests of
children are of paramount importance in matters relating to
their custody” did not necessarily agree to adopt the
jurisprudence precepts of one signatory and thereby limit
their own sovereignty. See Preamble to the Convention and
Art. 1(b). Art. 1(b), to the contrary, makes it clear that
an objective of the Convention is to ensure that rights of
custody and of access under the law of one Contracting State
are effectively respected in the other Contracting States.”
See also 42 U.S.C.A. 11601(b)(3).

038 The specific custody concerns that the respondent
has raised can and should be addressed in a plenary hearing.
However, we cannot simply assume that these concerns, both
under Art. 13(b) of the Convention, and even Art. 13(a),
cannot be resolved adequately by the courts in the place of
habitual residences. FN6

039 Has the respondent demonstrated by “clear and
convincing” evidence that the delay in acting upon the 1994
removal petition reaches beyond being “manifestly
incompatible”, (Explanatory Report of the Convention, at p.
462), with our concept and principle of procedural due
process, requiring the invocation of Art. 20 of the
Convention? A careful review of the testimony, exhibits and
record presented to the court requires this question to be
answered in the negative.

040 The 1994 removal petition is only one aspect of the
respondent’s present proceedings before the Spanish courts
in the total interests of the children. It is clear from the
record that since, at least, 1993, she has had a
single-minded determination to return to the United States
with her children. This is understandable in human terms in
that she believes they will live better and happier here.

041 However, as to this specific petition, while there
has been a delay in the lower Spanish court as to
resolution, respondent is presently before the
Constitutional Court, which the record shows is not
unwilling to address such a problem and grant appropriate
relief where necessary. In determining the issue of
procedural due process, it is appropriate to consider the
effective availability of appellate review as a remedy for
trial delays. Furthermore, the 1996 return petition pending
is more directed to respondent’s present concerns for the

042 Moreover, the issues of custody and support,
including the psychological impact on the children, as well
as the medical needs of the youngest child, are presently
before the Spanish courts. Finally, the Alicante court has,
at least, not been reticent to enforce support obligations
on behalf of the respondent and children.

043 In the final analysis, there is nothing the leads
this court to conclude that the Spanish courts would not
address the respondent’s present, specific custody concerns
in the best interests of the children. If these concerns
could not be addressed by the foreign courts, this court
would still have to consider whether the exceptions under
Art. 13(a) and (b) of the Convention should be applied, and
have required proofs presented by the respondent.

044 To conclude that even in the presence of a claimed
“grave risk of harm,” no consideration must be given as to
whether the foreign courts can adequately address that issue
under some minimum concept, for example, of procedural due
process, would maker mockery of the Convention. Every
nation would <* page 362> carve out a broad exception under
an individual concept of parens patriae and the treaty would
be meaningless. To avoid such an inappropriate result,
consideration of an Art. 20 defense under the facts of such
a case as the present must be a threshold issue for
resolution, before any other possible exceptions are
analyzed under the Convention.

045 Finally, respondent has requested that the court
interview, at least, the older children to determine their
wishes as to the return to Spain. Art. 13 of the Convention
also provides that “[t]he judicial … authority may also:
refuse to order the return of the child if it finds that the
child objects to being returned and has attained an age and
degree of maturity at which it is appropriate to take
account of its views.”

046 It is noted that the above provision is
discretionary Such interviews will have no impact on the
threshold issue as to whether the Spanish courts can fairly
address respondent’s present custody concerns under Art. 20
of the Convention.

047 Furthermore, as testified by respondent’s Spanish
counsel, the Spanish courts must consider the wishes of the
children in finally resolving custody, as well as return,
issues. Finally, the certification of the respondent makes
clear, if accepted, the emotional trauma the children, ages
seven through thirteen, have experienced in this continuous
struggle between the parties over the last three years. The
court will not add to their discomfort as argued by the
petitioner, and test to what degree their present views
simply reflect the emotional upheaval and their desire,
finally, for normalcy and permanency, here if not in Spain.

048 The petition is granted to the extent that the
children shall be returned forthwith to Spain, the place of
their habitual residence from which they were wrongfully
removed under Art. 3 of the Convention for proper
determination of the custody issues raised by the respondent
and pending before the Spanish courts.

049 Pursuant to 42 U.S.C.A.  11607(b)(3), reasonable
counsel fees and costs-will be awarded the petitioner,
subject to the right of the respondent to demonstrate that
such an award of fees and costs would be clearly
inappropriate. Cross certifications and/or briefs as to
this issue shall be submitted within ten days, together with
a proposed Order to be prepared by petitioner’s counsel.

1. The earlier trial court also decided that “the merits
of a custody and visitation dispute” were to be
resolved by the appropriate Spanish court. Id. at 1O.

2. Despite the fact that the earlier trial court
determined in 1993 that the children were wrongfully
removed and had to be returned to Spain, the Spanish
court did not thereafter modify or rescind the
respondent’s right to vacation with the children in the
United States. In fact, it was during 1995 summer
vacation in the United States that the youngest child
was diagnosed with an attention deficit disorder and

3. Contrast the present situation with that in Ivaldi v.
Ivaldi (App.Div. 1996) 288 NJ.Super. 575 [672 A.2d
1226], wherein under the separation agreement, the
respondent (defendant) not only had physical custody of
the child, but also had the right to take up residence
in her own country of Morocco with the child, while
clearly acknowledging in the agreement only the
petitioner’s visitation rights in the United States.
Respondent, herein, also argues that the petitioner has
abandoned any “custody” or “access” rights, as of
January, 1996, if not earlier, limiting himself to
“brief contacts” thereafter. See Respondent’s
Certification, dated September 24, 1996, paragraphs 14
and 15. However, the certification also reflects the
children’s difficulties in parental reconciling with
their father. Needless to say, the petitioner’s
certification presents a different picture as to his
interest in his children, beyond the two petitions he
has timely filed in this court for their return to
Spain. Furthermore, as the respondent’s Spanish counsel
testified, the initial issues of custody and support
will be further addressed, enlarged, rescinded and/or
modified with party testimony at an appeal hearing
before the Audiencia Provincial in January, 1997. At
this point, the issue is clouded not only by the
competing certifications, but the pending court
proceedings in Spain. Nevertheless, if this was the
sole issue present in this controversy, further inquiry
might be warranted. See the Convention, Art. 13(a)
(“[T]he requested State is not bound to order the
return of the child if the person . . . which opposes
its return establishes that . . . the person . . .
having the care of the . . . child was not actually
exercising custody rights at the time of the removal or
retention.”). Moreover, contrast the petitioner’s
actions in the present matter with those of the
defendant in Schroeder v. Vigil-Escalera Perez (Ohio
Com.P. 1995) 76 Ohio.Misc.2d 25 [664 N.E.2d 627, 631].
Finally, Art. 21 of the Convention provides that even
the “right of access” may be effectively protected “in
the same way as an application for the return of a
child” for custody violations.

4. In Friedrich v Friedrich (6h Cir. 1996) 78 F.3d 1060,
1067, the court stated: “All four of [the] exceptions
[under the Convention] are ‘narrow,’ 42 U.S.C.A. 
11601(a)(4). They are not a basis for avoiding return
of a child merely because an American court believes it
can better or more quickly resolve a dispute.
[Citation omitted] … In fact, a . . . court retains,
and should use when appropriate the discretion to
return a child, despite the existence of a defense) if
return would further the aims of the Convention.
[Citation omitted].”

5. One can only wonder as to the reaction of budgetary
leaders in this or any other American jurisdiction if
such a novel remedy for the effect of backlogs
resulting from claimed budgetary constraints was

6. As stated by the Friedrich court:

The exception for grave harm to the child is not
license for a court in the abducted-to country to
speculate on where the child would be happiest. That
decision is a custody matter, and reserved to the court
in the country of habitual residence.
. . . . .
[W]e acknowledge that courts in the abducted from
country are as ready and able as we are to protect
children. If return to a country or to the custody of a
parent in that country is dangerous we can expect that
country’s courts to respond accordingly . . . . And if
Germany really is a poor place to grow up, as
[respondent] contends, we can expect the German courts
to recognize that end and award her custody in America.
[Id. at 1068 (emphasis added).]