Uprooting Children in the Name of Equity

78 Pages Posted: 1 Aug 2019

See all articles by Merle Hope Weiner

Merle Hope Weiner

University of Oregon - School of Law

Date Written: July 28, 2010

Abstract

Uprooting Children in the Name of Equity provides an analysis of a disturbing phenomenon: U.S. courts are using equitable estoppel to render inapplicable one of the few defenses available to respondents under the Hague Convention of the Civil Aspects of International Child Abduction [the “Hague Convention”], i.e., the article 12(2) “well-settled” defense. Uprooting Children in the Name of Equity describes the doctrine as it has emerged and then argues that the doctrine is incompatible with the Convention’s legislative history. Nor does it find adequate support in executive branch documents or foreign case law. The principle policy basis offered in support of the doctrine is that it helps deter the concealment of children. This piece questions whether equitable estoppel is necessary or effective in furthering that objective. The piece concludes by suggesting that the most optimal outcomes for abducted children would occur if courts stayed focused on the assessment demanded by article 12((2): whether one year has passed between the wrongful removal or retention and the date the petitioner commenced proceedings, and (2) whether or not the child is now well settled. Concealment is relevant to the latter question, and courts should address it as part of their fact finding on that issue.

Keywords: Abduction, Hague, Estoppel, Children

JEL Classification: K33, K36

Suggested Citation

Weiner, Merle Hope, Uprooting Children in the Name of Equity (July 28, 2010). Fordham International Law Journal, Vol. 33, p. 409, 2010, Available at SSRN: https://ssrn.com/abstract=3428077

Merle Hope Weiner (Contact Author)

University of Oregon - School of Law ( email )

1515 Agate Street
Eugene, OR Oregon 97403
United States
541-346-3857 (Phone)
541-346-1564 (Fax)

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