Maryland Family Law Maryland family law opinions and commentary
BOSTON — Where a respondent mother was ordered to return her two children to Canada, that order should be affirmed despite the respondent’s assertion that the lower court erroneously determined that the children’s “habitual residence” is Canada.
“Respondent … challenges the district court’s conclusion that, under the Hague Convention on the Civil Aspects of International Child Abduction (‘Hague Convention’), her two young children must be returned to Canada from their home with her in Massachusetts. Their father, petitioner …, lives in Canada. She asserts that the court misapplied the relevant precedent and erroneously determined that the children’s ‘habitual residence’ is Canada. After carefully reviewing the record and the district court’s factual findings and legal analysis, we detect no error and therefore affirm. …
“The Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, S. Treaty Doc. No. 99–11 (Treaty Doc.), implemented in the United States by the International Child Abduction Remedies Act, 22 U.S.C. §§9001-11, provides that ‘a child wrongfully removed from her country of ‘habitual residence’ ordinarily must be returned to that country.’ Monasky v. Taglieri, 589 U.S. 68, 70-71 (2020). …
“[The respondent] highlights no facts from the period prior to her wrongful retention of the children in August 2024 that the district court failed to consider in its totality-of-the-circumstances analysis. …
“The ‘now-settled’ doctrine has no place in this case. [The father] submitted his petition in January 2025 in Canada and a few weeks later in the United States — well within one year of the wrongful retention. This defense is therefore unavailable. …
“Despite a finding of habitual residence, a court is not required to order the return of the child if the retaining parent ‘establishes by a preponderance of the evidence that [the non-retaining parent] “had consented to … [the] removal or retention.”’ …
“… [The petitioner] did not consent to the children’s retention in Massachusetts. He only consented to living there on a trial basis, repeatedly told [the respondent] that he was unhappy living there and wanted to return to Canada, and did not actively participate in any legal procedures to make Massachusetts the children’s long-term residence before August 28, 2024. The district court considered these facts and found that consent was no defense for [the respondent]. … We find no error in this determination. …
“A court is also not required to order the return of the child to the country of habitual residence if the retaining parent shows ‘that [the non-retaining parent] “had … subsequently acquiesced in [the] removal or retention.”’ …
“We agree with the district court that none of [the petitioner]’s actions demonstrates acquiescence to [the respondent]’s retention of the children in Massachusetts. We emphasize again that, as an affirmative defense, acquiescence is ‘narrowly construed.’ …
“Importantly, the relevant inquiry for acquiescence under the Convention is whether the non-retaining parent ‘subsequently acquiesced in the removal or retention’ of the children. … We have also said that ‘a clear and formal consent order by the non-U.S. parent agreeing to let a state court decide final custody would, both linguistically and for policy reasons, warrant treatment as acquiescence’ or ‘alternatively, [as] a waiver of Hague Convention rights.’ …
“[The respondent] does not raise the concept of waiver. Relying on Nicolson [v. Pappalardo, 605 F.3d 100 (1st Cir. 2010)], [the respondent] argues that [the petitioner] acquiesced to the retention of the children in Massachusetts by, in part, filing his counterclaim. Nicolson does not support her claim of acquiescence. … Here, [the petitioner] requested custody through a counterclaim but otherwise similarly agreed only to temporary custody arrangements while the early divorce proceedings were underway. [The respondent] makes no developed argument as to why we must treat [the petitioner]’s counterclaim as if it is the equivalent of the hypothetical consent order in Nicolson regarding final custody. Indeed, in [the petitioner]’s counterclaim, he asked that the children be removed to Canada. In his subsequent filing, he sought temporary joint custody with [the respondent]. [The respondent] therefore has failed to show that [the petitioner]’s counterclaim contesting [the respondent]’s divorce and seeking custody establishes acquiescence under Nicolson or on any other basis. …
“… Under circumstances involving unequal bargaining power between parents, we have not found a sufficient showing of acquiescence. … So too here.
“In sum, we conclude that the district court’s factual finding that [the petitioner] did not acquiesce to [the respondent]’s retention of the children in Massachusetts was not clearly erroneous.”
Concurring judge’s comments
Lipez, J., concurring. “As we note in the panel opinion, [the respondent] does not develop any argument based on the ‘waiver of Hague Convention rights’ language of Nicolson. There is scant law on the concept of ‘waiver of Hague Convention rights.’ And we do not need to address the waiver issue to resolve this appeal. These circumstances amply justify the panel’s decision to avoid any definitive statement about the waiver issue.
“Still, with an eye on the future development of the law on the waiver of Hague Convention rights, and its relationship to the Treaty’s concept of ‘acquiescence,’ I think it is useful to clarify here Nicolson‘s statement that ‘a clear and formal consent order by the non-U.S. parent agreeing to let a state court decide final custody’ could be treated either as acquiescence or ‘alternatively, [as] a waiver of Hague Convention rights.’ Nicolson, 605 F.3d at 107 (emphasis omitted). When the non-retaining parent ‘agree[s] to let a state court decide final custody,’ … — regardless of outcome — it is in my view more appropriate to refer to that agreement as a waiver of Hague Convention rights rather than as the defense of acquiescence within the meaning of the Convention. That is so because such an agreement does not ‘acquiesce’ to the removal and retention of the children; it allows the state court to make the custody determination. Although the Hague Convention takes precedence over state court proceedings, once a non-retaining parent has clearly and unequivocally agreed to let a state court resolve final custody, that agreement is in effect a willingness to forgo — or waive — their rights under the Hague Convention.
“Moreover, in the wake of such an agreement, it would defeat the Hague Convention’s policy to ‘deter parents from engaging in … forum shopping,’ … if, after significant participation in the state court proceedings, the non-retaining parent could subsequently withdraw that waiver of rights in an attempt to acquire a more favorable result in a different jurisdiction. I emphasize, however, that participation in proceedings to determine temporary custody while litigation under the Hague Convention proceeds does not amount to waiver. Rather, a waiver of Hague Convention rights would occur if the petitioner has clearly and unequivocally agreed to defer to a state court resolution of final custody, effectively submitting to that court’s exclusive jurisdiction, regardless of the outcome.
“Arguably, a non-retaining parent who agrees to allow a state court to resolve a custody dispute is potentially ‘acquiescing’ to the other parent’s retention because such an outcome is possible in the state court proceedings. I nonetheless think it helpful, as a matter of conceptual clarity in the application of the Hague Convention, to recognize the distinction between the Hague Convention’s defense of acquiescence — in which the non-retaining parent is agreeing, by formal order or other ‘clear and unequivocal’ proof, … that the other parent may retain custody — and a waiver of Hague Convention rights — in which the non-retaining parent, the Hague Convention petitioner, gives up the right to have jurisdiction for custody proceedings determined under the Hague Convention.
“I hope that this analytical distinction, unacknowledged by our decision in Nicolson, will be helpful to parties and courts dealing with Hague Convention petitions in the future.”
Giguere v. Tardif (Lawyers Weekly No. 01-182-26) (28 pages) (Lipez, J.) (Lipez, J., concurring) Appealed from a decision by Talwani, J., in the U.S. District Court for the District of Massachusetts. Matthew P. Barach, with whom Barach Law Group LLC was on brief, for the respondent-appellant; Wendy O. Hickey, with whom Maureen McBrien and Brick, Jones, McBrien & Hickey were on brief, for the petitioner-appellee (Docket No. 25-1831) (Aug. 17, 2026).
