Nicolson v. Pappalardo, 605 F.3d 100 (1st Cir. 2010)

INCADAT legal file Hague parental abduction

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The proceedings concerned a child born in December 2008 to an American mother and an Australian father.
The parents had met in Australia whilst the mother was travelling there. The mother became pregnant and returned to the United States of America. After her return, the father proposed marriage and the couple married in Australia in August 2008.
In November 2008, the father advised the mother that he did not love her and he questioned the marriage. The mother stated that she wished to go back to the United States of America with the child, once the latter was born and permitted to travel. The parents continued to live together.
In March 2009, the mother obtained a United States passport for the child. In exchange for the father signing for the child’s passport, the mother agreed to give the marriage another chance.
On 29 March, the father drove mother and child to a local airport to take a flight to Sydney. In Sydney, mother and child were assisted by the paternal grandmother. The mother advised the grandmother that she did not intend to return from the United States of America. The father flew to Sydney and sought legal advice. He decided not to pursue legal action as he wanted mother and child to return voluntarily. The mother advised that she was open to working on the relationship.
On 2 April, mother and child flew to the United States of America. The mother reserved a return ticket for late May. Initially the parents communicated, but the relationship deteriorated and on 4 May the mother advised the father that she would not be returning.
On 14 May, the mother sought a “Protection From Abuse” (PFA) order.
The father filed a return petition with the Australian Central Authority.
On 4 September, the father’s lawyer attended the final PFA order hearing. The father’s return application was not disclosed to the mother, in case she might leave the jurisdiction. The father agreed to the PFA order, which included elements relating to custody.
On 22 October, the father’s return petition was filed in the District Court for the District of Maine.
The District Court found that the retention of the child was wrongful, the child being habitually resident in Australia. Equally, the father was found to have neither consented to nor acquiesced in the permanent retention of the child. The return of the child was ordered: Nicolson v. Pappalardo, 2009 U.S. Dist. LEXIS 120542 (D. Me., Dec. 28, 2009).
The mother appealed.