Salah v. Awes, 629 N.W.2d 99 (Minn. Ct. App. 2001)
- Docket Number
- C4-01-145
- Published
- Yes
- Decision Date
- 2001-06-12
- Name of Court
- Court of Appeals of Minnesota
- Opinion by
- Toussaint Jr., Edward ; Kalitowski, Thomas J
- Counsel for Petitioner
- Tuft, Thomas W
- Counsel for Respondent
- Beaulier, Maury D
- Counsel for Court
- Requesting State
- Canada
- Requested State
- United States of America
- Procedural History
-
Petitioner/father filed suit seeking return of child to Canada from the United States. The district court granted temporary custody to Petitioner/father after an ex-parte hearing but Respondent/mother sought an emergency order re-awarding custody to her. The court set a hearing to determine permanent custody. Petitioner/father moved to dismiss but the motion was denied. Petitioner/father appealed the denial of his motion.
- Summary of Facts
-
: Petitioner/father alleged that the parties were married in Kenya and then they moved to Canada. They separated a year after their child was born and the child stayed with Respondent/mother. Petitioner/father visited the child twice a month and talked with child over the phone. Respondent/mothers phone was eventually disconnected so Petitioner/father went to locate Respondent/mother and the child. Petitioner/father was told they had moved to the United States and that Respondent/mother had married another man. Respondent/mother allegations differed greatly from that of Petitioner/fathers. She alleges that the parties were never married. Petitioner/father told her he could get her into Canada based on false marriage papers and a Canadian sponsorship. Respondent/mother met Petitioner/father at the Canadian border and crossed into Canada where they lived together. When Petitioner/father learned Respondent/mother was pregnant, he demanded she get an abortion and became physically violent. After six months of abuse, Respondent/mother entered a battered-womens shelter where she stayed for seven months. She gave birth to the child during this time. The shelter helped Respondent/mother move to an apartment. Petitioner/father visited Respondent/mother and told her he was sorry about his prior conduct and would change his behavior. Petitioner/father became physically violent and threatened to kill Respondent/mother when she did not want to continue their relationship. Respondent/mother then moved to the United States with the child.
- Defenses Raised
-
Hague Article 12: Waiver and/or 1 year had elapsed since the child had been removed from the petitioning state.
Hague Article 13b: Grave risk of harm to the child if returned to the petitioning country.
- Statutes Considered (ICARA)
- Articles Considered (Hague Convention)
- 1, 12, 13(a), 13(b), 14
- Cases Considered
- Abu-Dalbouh v. Abu-Dalbouh , 547 N.W.2d 700 (Minn.App.1996); Engvall v. Soo Line R.R. Co.,, 605 N.W.2d 738 (Minn.2000).; Friedrich v. Friedrich , 983 F.2d 1396 (6th Cir.1993); Miller v. Miller, 240 F.3d 392 (4th Cir.2001); Rydder v. Rydder, 49 F.3d 369 (8th Cir.1995); Thiele v. Stich, 425 N.W.2d 580 (Minn.1988); Viking Engg & Dev., Inc. v. R.S.B. Enter., Inc., 608 N.W.2d 166 (Minn.App.2000)
- Judicial Outcome or Order
- Reversed and Remanded
- Posted
- 2006-09-14
Why this Project?
We are a team of individuals from various professional backgrounds who are dedicated to creating a comprehensive resource that will enable mothers, domestic violence advocates, attorneys and judges to better prepare themselves for Hague Convention cases in the United States' legal system.
