## Facts

- Joseph P. Simcox and Claire M. Simcox, U.S. citizens, married in 1991 and traveled frequently during their marriage while raising five children.
- The family lived in Mexico for an extended period; their last residence was in Rafael Delgado, Veracruz.
- Claire alleged serious domestic abuse by Joseph, including physical and verbal violence directed at her and the children; the record contained evidence supporting serious abuse.
- In 2004, Claire left Mexico for the United States with some of the children without Joseph’s consent and later lived in Ohio.
- Joseph filed a federal petition under the Hague Convention and ICARA seeking the children’s return to Mexico as their habitual residence.

## Issues

1. Whether evidence of serious domestic abuse established (or strongly implicated) the Article 13(b) “grave risk” exception to return under the Hague Convention.
2. Whether a return order conditioned on “undertakings,” including a requirement that the taking parent return to the habitual-residence country, was feasible, enforceable, and adequate to protect the children.

## Decision

- The Sixth Circuit reversed the district court’s conditional return order and remanded.
- The court agreed with much of the district court’s general Hague Convention analysis but held that the specific undertakings were problematic on this record, especially the requirement that Claire return to Mexico.
- The court directed the district court to reconsider whether any conditions could realistically ensure the children’s safety in Mexico during custody proceedings, given the seriousness of the abuse evidence and the practical limits of undertakings.

## Legal Principles

- Under the Hague Convention and ICARA, a petitioner must show wrongful removal from the child’s habitual residence; return is generally required absent a proven exception.
- Article 13(b) permits denial of return when return would expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation; serious abuse allegations require close judicial scrutiny.
- “Undertakings” may be used to reduce risk associated with return, but only if they are realistic, sufficiently protective, and not dependent on speculative assumptions.
- A court must consider whether proposed undertakings are practically enforceable in the habitual-residence country and whether they adequately address the level of risk shown by the evidence.
- Conditions that effectively rely on compelling the taking parent to return, or that collapse if the parent does not return, may be inadequate to justify return in a serious-abuse case.

## Conclusion

The Sixth Circuit held that, in a Hague Convention case involving substantial evidence of serious domestic abuse, a conditional return order cannot rest on fragile or unenforceable undertakings—particularly one requiring the taking parent to return—and remanded for reconsideration of whether any conditions could ensure the children’s safety if returned.


Simcox v. Simcox, 511 F.3d 594 (6th Cir. 2007)