The case of the day is Giguère v. Tardif (1st Cir. 2026). The husband and the wife were both Canadian citizens whose young children were born in Canada. In 2022, they moved to Massachusetts with their children, entering the country on non-immigrant visas, to help the wife’s family business get established in the United States. Eventually they sold their home in Canada and bought property here, but they had different perspectives on the change. The wife thought they had “decided to sell their home in Canada because they enjoyed their life in the United States enough to stay permanently.” The husband thought the sale was a “temporary ‘financial decision.’” They continued to disagree about what the future held for them. In August 2024, while the husband was visiting Canada, the wife withdrew all the money from their joint accounts in Canada and refused to bring the children for a visit to Canada, as she had previously agreed. Shortly thereafter, she brought a divorce petition in Massachusetts. In that proceeding, the husband sought custody of the young children, and he also brought proceedings under the Hague Child Abduction Convention in the federal court, which led to a stay of the custody proceedings in the state court after the parties had entered into a stipulation about physical custody for a defined period of time. The judge ordered the children returned to Canada, finding that their habitual residence was there. The wife appealed.

The allegedly wrongful “removal or retention,” which is key to the Convention analysis, occurred when the wife refused to bring the children for the previously agreed visit to Canada, and the question was whether the children were then “habitually resident” in the United States, or in Canada. The court noted the lack of a shared parental intent, the temporary nature of their visa, and traditional factors such as their drivers’ licenses, the situs of their joint accounts, the location of their personal property, etc., and found that the lower court had not clearly erred.

Next, the court turned to the wife’s affirmative defenses, including, notably, the defense of acquiescence. The focus was on the husband’s counterclaim in the divorce case, which asked the Massachusetts court to award custody, and on his entry into stipulations in the Massachusetts case. While a “a clear and formal consent order by the non-U.S. parent agreeing to let a state court decide final custody” would be enough to show acquiescence, the doctrine in narrow, and the court found that the husband had not acquiesced.

Friend of Letters Blogatory Melissa Kucinski, author of the Family Law Across Borders blog and one of the real experts, has criticized Judge Lipez’s concurring opinion:

Here is the problematic part of the waiver-acquiescence discussion in the concurrence. It framed the discussion around the custody case, making an argument that if a non-retaining parent enters into a consent order (but not a counterclaim) in the state family court case, ceding the right to “have jurisdiction for custody proceedings determined under the Hague Convention”, it is a waiver. But, there are significant issues with this statement and the extraneous, potentially unnecessary language in the concurring opinion. This blog urges you to read the Uniform Law Commission’s Commentary distinguishing custody jurisdiction from a request to return a child under the Hague Abduction Convention. The two are different. A Hague Abduction Convention suit does not determine where a custody suit may be filed – it is not a jurisdictional treaty. Furthermore, a parent cannot consent to subject matter jurisdiction in a state court case. Custody jurisdiction is subject matter jurisdiction. Furthermore, and unique to this particular case, Massachusetts is the only state that still uses the old version of the uniform act on custody jurisdiction. So, what might be said for Massachusetts may be different for every other U.S. state in terms of custody jurisdiction.

I chime in simply to add that Massachusetts is behind the times across the board in its adoption of the most modern versions of uniform laws in private international law and related areas. We still have the Uniform Foreign Money Judgment Recognition Act on the books and are in the small minority of states that require reciprocity as a condition for recognition of a foreign judgment. And we have not yet adopted the Revised Uniform Arbitration Act, let alone a statute better suited to international arbitration. I hope our legislature will make modernization more of a priority than it has until now.