Van de Sande v. Van de Sande

Davy Van de Sande (plaintiff), a native of Belgium, and Jennifer Van de Sande (defendant), an American, married and had two children. They lived in Belgium. In 2004, when the couple’s oldest child was four, they visited Jennifer’s family in the United States. Jennifer told Davy at that time that she and the children would not return to Belgium with him. Davy went back to Belgium and obtained an ex parte order awarding him custody of the children. He then filed an action against Jennifer in a United States district court pursuant to the International Child Abduction Remedies Act (ICARA). ICARA, which implemented the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), empowered a person whose child had been abducted to the United States to file a federal court petition for a “remedy of return.” The Hague Convention allowed the abductor to keep the child in the United States, however, upon a clear and convincing showing of a “grave risk” that the child’s return would expose him or her “to physical or psychological harm or otherwise place the child in an intolerable situation.” Jennifer offered affidavits by herself, family members, and a friend that attested to Davy’s abuse. He had physically and verbally abused Jennifer for years, including in the presence of their children. He had also physically abused their older child. In addition, Davy had threatened to kill them all. The district judge granted summary judgment to Davy, principally on the ground that the children could be protected in Belgium. Jennifer appealed.