Whether an actual breach of custody rights must occur to establish wrongful retention under the Hague Convention, or if mere notice of an intended future breach suffices to start the one-year clock

The Hague Convention on the Civil Aspects of International Child Abduction requires that any child wrongfully removed from or retained outside their country of "habitual residence" be returned to that country. In Stein v. Kohn, No. 23-8078-cv (2d Cir. 2024). J.S., Z.S., and A.S. were brought from Canada to the United States during the coronavirus pandemic for their mother's medical treatment. The father, Raphael Stein, filed a petition under the Hague Convention seeking the children's return to Canada after the mother filed for divorce and restricted his access to the children. The district court found that March 6, 2021 represented the date of wrongful retention based on Ms. Kohn's communications indicating her desire and intention to remain in the US, contrary to the parties ’ agreement. It is undisputed that Mr. Stein maintained and exercised his full custody rights without interruption until at least January 2022, while the parties were still in the United States for Kohn ’s ongoing treatment. The trial court found, and the Second Circuit affirmed, that Ms. Kohn ’s communications constituted a breach of custody rights, triggering the Convention ’s “One Year ” exception clock. The questions presented are: 1. Whether an actual breach of custody rights must occur to establish wrongful retention, or if mere notice of an intended future breach suffices to start the one-year clock under the Convention; and 2. Whether the "One Year and Settled" exception should be narrowly construed with consideration of the child's ongoing strong ties to their country of habitual residence. 11 IL