Category Archives: Unclean Hands

Third Circuit Affirms Return of Child to Netherlands

619 F.3d 259 Marina KARPENKO, Appellee/Cross-Appellant v. Paul LEENDERTZ, Appellant/Cross-Appellee. Nos. 10-1678, 10-1825. United States Court of Appeals,Third Circuit. Argued July 12, 2010. Opinion Filed: Aug. 24, 2010.

” Paul Leendertz, father of the minor child at issue in this proceeding, appeals the District Court’s grant of a petition filed by the mother, Marina Karpenko, for the child’s return under the Hague Convention on the Civil Aspects of International Child Abduction. For the following reasons, we will affirm the grant of Karpenko’s petition and order the minor child’s immediate return to her mother in the Netherlands.”


Rejection of Unclean Hands claim against Petitioner:

  At oral argument, a member of this panel posed a novel question which was not raised or briefed by the parties or considered by the District Court: Should this Court exercise its equitable power to deny relief under the Hague Convention because Karpenko filed this petition with unclean hands? The doctrine of unclean hands, named for the equitable maxim that “he who comes into equity must come with clean hands,” “is a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant.” Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 814, 65 S.Ct. 993,89 L.Ed. 1381 (1945). The doctrine may be raised sua sponte, Highmark, Inc. v. UPMC Health Plan, 276 F.3d 160, 174 (3d Cir.2001); the question then is whether its application is appropriate here.

Karpenko’s conduct in the Netherlands was decidedly not commendable; it was wrong for her to interfere with Leendertz’s visitation rights and to refuse to disclose the child’s new address after relocating. But we are not aware of any authority that would support dismissal of a Hague Convention petition on grounds of unclean hands. 5 The language of the Hague Convention, and of ICARA which implements it, demonstrates that their purpose is to protect the well-being of children. The Convention’s preamble emphasizes that “the interests of children are of paramount importance in matters relating to their custody” and expresses a desire to protect children from the harms caused by wrongful removal. Hague Convention, preamble. The conduct of the parents, other than the claim of abduction or retention, is not mentioned in the Hague Convention except to the extent that that conduct may be relevant to one of the affirmative defenses. Moreover, article 19 of the Convention provides that a decision to return a child under the Convention is not a determination on the merits of custody. Custody is to be decided by a court of the child’s “habitual residence.” The purpose of the Convention is to safeguard the child by discouraging kidnapping in connection with custody disputes.

We conclude that application of the unclean hands doctrine would undermine the Hague Convention’s goal of protecting the well-being of the child, of restoring the status quo before the child’s abduction, and of ensuring “that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Hague Convention, art. 1(b).

Furthermore, wrongful removal of a child is most likely to occur when strained relations between parents are at their worst. As part of the irresponsible behavior that may accompany such strained relations, one or both parents may interfere with the other’s custody rights. The Hague Convention discourages parents from resorting to the most extreme form of interference, child abduction, by providing a judicial remedy for removal. If relief for abduction were unavailable to parents with allegedly unclean hands, the well-being of the abducted child, which is a main purpose of the Hague Convention, would be ignored. There would be no remedy to prevent a cycle of abduction and re-abduction, an outcome which would inflict needless harm on vulnerable children.”

” As we have mentioned, a petitioner’s prior conduct may be relevant to determining whether relief should be granted, but such conduct does not destroy eligibility to file a claim under the Hague Convention. Once a petition is filed, the court will consider the petitioner’s prior conduct in the context of the respondent’s affirmative defenses, such as an assertion that returning the child would pose a grave risk of harm. The affirmative defenses allow consideration of those aspects of the petitioner’s conduct which directly relate to the child’s wellbeing. Here, Leendertz did raise the affirmative defense of physical or psychological harm to the child. The District Court found for Karpenko on this issue. In addition, any irresponsible conduct by either party will be a consideration by the proper court in future custody proceedings.”