An American who invited his ex-girl friend to bring his illegitimate daughter back from Poland for a visit, in a situation that began with the mother’s unilateral removal of the child from the U.S., committed a wrongful retention under the Hague Convention. That was the holding in Kijowska v. Haines, ___ F. Supp. 2d ___, 32 FLR 1368 (N.D. Ill. 5/18/06).
The district court granted the Hague petition because the child was definitely a habitual resident of Poland at the time the father took her from the mother at the Detroit airport. The court acknowledged an equitable argument that this could be seen as a re-abduction, because the mother’s original removal of the U.S.-born child from the United States was unilateral, but at the time the mother originally removed the child, this father did not have his name on the birth certificate, she had refused to marry him, and she had immediately told him that she intended to take the child back to Poland when she went. When she left, the child was two months old and it was without the father’s knowledge or consent. Thus the matter of the child’s staying in the U.S. had not been, to say the least, a matter of settled mutual intent. The mother had told the father of her plans to leave during her pregnancy, well before the birth. There was no court order recognizing this man’s paternity or giving him any custodial rights. The father obtained an Illinois court order stating that the mother’s removal of the child was wrongful, but the federal court considered that irrelevant because it was issued after the removal, and the father never pursued custody litigation in Poland. The mother never tried to hide the child or prevent access, and it was the father’s act at the airport that was wrongful.
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