Karpenko v. Leendertz

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 10-1678 & 10-1825

MARINA KARPENKO,

Appellee/Cross-Appellant

v.

PAUL LEENDERTZ,
Appellant/Cross-Appellee

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 5-09-cv-03207)
District Judge: Honorable Thomas M. Golden

Argued July 12, 2010

Before: FUENTES, ALDISERT, and ROTH, Circuit Judges.

(Opinion filed: August 24, 2010)

Stephen J. Cullen, Esquire (Argued)
Kelly A. Powers, Esquire
Joshua J. Gayfield, Esquire
Miles & Stockbridge, P. C.
10 Light Street
Baltimore, MD 21202

Counsel for Appellee/Cross-Appellant
Linda Shay Gardner, Esquire (Argued)
Gardner Law Offices
740 Main Street
Bethlehem, PA 18018

Counsel for Appellant/Cross Appellee

OPINION

ROTH, Circuit Judge:

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.

I. Background

This action follows a long, bitter dispute between
Leendertz and Karpenko over custody of their minor child, E.L.,
born in Pennsylvania in 2001. Leendertz and Karpenko were
married at the time of E.L.’s birth, but separated in 2002 and
officially divorced in 2007. In September 2002, the
Pennsylvania Court of Common Pleas issued an order
incorporating a Custody Stipulation executed by the parties
which provided that (1) Karpenko would obtain primary
physical custody and live with E.L. in the Ukraine, Karpenko’s
native country; and (2) Leendertz would have regular visitation
rights to be arranged in the Ukraine, the Netherlands, or the
United States. Leendertz has family in the Netherlands and, as
a commercial pilot, is able to visit the Netherlands.

2
 Karpenko initially moved with E.L. to the Ukraine, but
at Leendertz’s request, she relocated to Ede, Netherlands. E.L.
arrived in the Netherlands at age two and began attending Dutch
public school at age four. E.L. has numerous Dutch friends and
socializes with Karpenko’s relatives in the Netherlands. E.L.
learned Dutch as her primary language and became immersed in
Dutch culture.

Although Karpenko’s relocation from the Ukraine to the
Netherlands was ostensibly to accommodate Leendertz,
Karpenko refused to allow full visitation in accordance with the
court-ordered Custody Stipulation. In 2007, following further
deterioration of relations, Karpenko moved to a new location in
Ede, Netherlands, and refused to provide Leendertz with her
address or phone number. In 2008, both parties filed petitions
for sole physical and legal custody: she in the Dutch District
Court of Arnhem, he in the Pennsylvania Court of Common
Pleas. The Dutch court stayed Karpenko’s petition pending a
decision by the Pennsylvania court.

By Order of May 20, 2009, the Pennsylvania Court of
Common Pleas granted sole custody of E.L. to Leendertz. That
order purports to (1) transfer sole legal and primary physical
custody to Leendertz; (2) grant Leendertz “sole authority to
apply for and obtain a United States passport for the minor child
without Mother’s consent or authorization and without any
further notice to Mother;” (3) grant Leendertz authority to
“obtain custody of the child at any place that she may be found,
whether in the United States or any other country” without any
further proceedings; (4) grant Leendertz and his sister authority
“to pick up the child at her school or any location;” (5) award
Karpenko visitation rights “as she and the Father may agree;”
and (6) adjudge Karpenko in civil contempt for willfully
violating prior court orders. Karpenko appealed and the
Pennsylvania Superior Court affirmed.

3
 In the Netherlands, a foreign order is not enforceable
until domesticated by a Dutch court. Dutch Civil Code, Title 9,
Article 985, et seq. However, rather than reducing the May 20,
2009, Order to a domestic judgment under Dutch law,
Leendertz arranged to seize E.L. in the Netherlands and return
with her to Pennsylvania without notice to Karpenko or the
Dutch court presiding over the custody proceeding there. On
May 27, 2009, Leendertz located E.L. on the sidewalk outside
her school in the Netherlands. With the help of an unidentified
third party, Leendertz placed E.L. in a car and drove her to
Germany, where they flew to Dubai and ultimately the United
States. Dutch authorities issued an Amber Alert within minutes
of E.L.’s removal. By Order of May 29, 2009, a Dutch court
ruled that (1) at the time of E.L.’s removal, Karpenko and
Leendertz had joint custody under Dutch law; (2) Leendertz
acted unlawfully by removing the child without Karpenko’s
permission; and (3) Leendertz shall immediately return E.L. to
Karpenko. Leendertz refused to comply with the Dutch Order
and currently resides with his new wife and E.L. in
Northampton, Pennsylvania.

On July 20, 2009, Karpenko filed the instant petition for
return of E.L. under the Convention on the Civil Aspects of
International Child Abduction, done at The Hague on October
25, 1980, T.I.A.S. No. 11,670 at 1, 22514 U.N.T.S. at 98,
reprinted in 51 Fed. Reg. 10, 494 (1986) (Hague Convention),
as codified by the International Child Abduction Remedies Act,
42 U.S.C. 11601, et seq. (ICARA). Karpenko claims she is
entitled to the immediate return of her daughter because
Leendertz wrongfully removed her from the Netherlands to the
United States.

The District Court for the Eastern District of
Pennsylvania granted Karpenko’s petition for E.L.’s return on
March 3, 2010. To avoid potentially relocating E.L. multiple
times during the pendency of this proceeding, however, the

4
District Court stayed enforcement of its Order pending appeal.
Leendertz appeals the District Court’s grant of Karpenko’s
Hague Convention petition. Karpenko cross-appeals the District
Court’s entry of the stay.

II. Jurisdiction and Standard of Review

The District Court properly exercised jurisdiction under
42 U.S.C. § 11603(a), which confers United States district
courts with original jurisdiction over actions arising under the
Convention.1 We have jurisdiction under 28 U.S.C. § 1291.

We review the District Court’s factual findings for clear
error. Factual findings will be upheld so long as the District
Court’s “account of the evidence is plausible in light of the
record, even if . . . we would have weighed the evidence
differently.” Yang v. Tsui, 499 F.3d 259, 270 (3d Cir. 2007).
Conclusions of law are reviewed de novo. Id.

1
The District Court properly rejected Leendertz’s
arguments for abstention under Younger v. Harris, 401 U.S. 37
(1971), and Colorado River Water Conservation District v.
United States, 424 U.S. 800 (1976), because these matters,
raised in this federal court action, were never raised in the
Pennsylvania state court custody proceeding. See Yang v. Tsui,
416 F.3d 199, 202 (3d Cir. 2005). By its own terms, a
proceeding under the Hague Convention is distinct from
determinations of custody, Hague Convention, art. 19 (“A
decision under this Convention concerning the return of the
child shall not be taken to be a determination on the merits of
any custody issue.”), so the pendency of custody proceedings in
state court supplies no reason for a federal court to abstain from
adjudicating a Hague Convention petition.

5
III. Discussion

The Hague Convention, Article 1, sets forth its two
primary objectives: “(a) to secure the prompt return of children
wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law
of one Contracting State are effectively respected in the other
Contracting States.” The Hague Convention does not provide
a forum to resolve international custody disputes, but rather it
provides a legal process “to restore the status quo prior to any
wrongful removal or retention, and to deter parents from
engaging in international forum shopping in custody cases.”
Yang, 499 F.3d at 270. The United States and the Netherlands
are State signatories to the Convention.

Under the Hague Convention, the petitioner bears the
initial burden of proving by preponderance of the evidence that
the child was habitually resident in a State signatory to the
Convention and was wrongfully removed to a different State as
defined by Article 3.2 Karkkainen v. Kovalchuk, 445 F.3d 280,
287 (3d Cir. 2006). “[A] child’s habitual residence is the place

2
Article 3 of the Convention provides:

The removal or the retention of a child is to be considered
wrongful where --

a. it is in breach of rights of custody attributed to
a person, an institution or any other body, either
jointly or alone, under the law of the State in
which the child was habitually resident
immediately before the removal or retention; and

b. at the time of removal or retention those rights
were actually exercised, either jointly or alone, or
would have been so exercised but for the removal
or retention.

6
where he or she has been physically present for an amount of
time sufficient for acclimatization and which has a degree of
settled purpose from the child’s perspective.” Id. at 291-92. In
Yang, we divided the analysis of the petitioner’s burden into
four parts:

A court must determine (1) when the removal or
retention took place; (2) the child’s habitual
residence immediately prior to such removal or
retention; (3) whether the removal or retention
breached the petitioner’s custody rights under the
law of the child’s habitual residence; and (4)
whether the petitioner was exercising his or her
custody rights at the time of removal or retention.

499 F.3d at 270-71. Once the petitioner meets its initial burden,
the respondent may oppose the child’s return by proving one of
five affirmative defenses.3

3
The affirmative defenses require the respondent to prove
(1)that 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 by clear and convincing
evidence; (2) that the child’s return would not be permitted by
the fundamental principles of the requested State relating to the
protection of human rights and fundamental freedoms by clear
and convincing evidence; (3) that the child is now settled in his
or her new environment by preponderance of the evidence; (4)
that the person from whom the child was removed was not
exercising custody rights at the time of removal or retention, or
had consented to or subsequently acquiesced in the removal or
retention by preponderance of the evidence; or (5) that the child
objects to being returned and has attained an age and degree of
maturity at which it is appropriate to take account of its views by
preponderance of the evidence. 42 U.S.C. § 11603(e)(2).

7
 The District Court held an evidentiary hearing, after
which it issued the following factual findings and legal
conclusions: E.L. was removed on May 27, 2009, from her
habitual residence in the Netherlands.4 Karpenko had custody
at the time of removal because, under Dutch law, divorced
parents retain joint custody until a Dutch court rules otherwise;
there was no severance of joint custody by a Dutch court as of
May 27, 2009, a point conceded by Leendertz’s expert on Dutch
law. Karpenko was exercising her custody rights at the time of
removal because she was actively involved in E.L.’s daily life.
By removing E.L., Leendertz breached Karpenko’s custody
rights under Dutch law because he resorted to an extreme form
of self-help, “a snatch and run,” rather than registering the
Pennsylvania court’s May 20, 2009, Order in the Netherlands as
required by Dutch law. Leendertz failed to carry his burden of
establishing his affirmative defense, i.e., that granting the
petition would pose a grave risk of physical, sexual, or
psychological abuse upon E.L.’s return.

Leendertz argues that the District Court’s factual findings
are clearly erroneous. We disagree. Leendertz’s claims of error
do not leave us with a firm conviction that any of the factual

4
The District Court explained its holding on habitual
residence as follows:

The child moved with the Mother to the Netherlands when she
was only two years old. The child has lived in the Netherlands
with the Mother for the past six years. At the time she was
removed, the child was attending school in the Netherlands
where she has numerous friends. Her primary language is Dutch
and she was fully involved in all aspects of daily and cultural
life in the Netherlands. There can be no doubt that the
Netherlands, not the United States, is the place where she has
been physically present from the age of two until she was
removed at the age of eight and which held a degree of settled
purpose from the child’s perspective.

8
findings are mistaken. For example, Leendertz argues that the
District Court failed to consider the parties’ settled parental
intent regarding the child’s location in its analysis of habitual
residence. As “critical” evidence of settled parental intent that
E.L. would reside in the United States, Leendertz relies on a
February 28, 2002, custody agreement which purports to
stipulate E.L.’s habitual residence to be the United States. Even
assuming it were possible for parents to contractually stipulate
a child’s habitual residence, Leendertz’s reliance on the
February 28, 2002, agreement is misplaced. That stipulation
was vacated when the Pennsylvania court adopted the parties’
subsequently executed Custody Stipulation on September 19,
2002. The September 19, 2002, Custody Stipulation states that
E.L. would reside in the Ukraine.

In another claim of purported error, Leendertz argues the
District Court disregarded evidence that his conduct complied
with Dutch and American law “[a]t all times,” and therefore he
did not breach Karpenko’s custody rights by removing E.L. from
the Netherlands. Leendertz contends he was legally entitled to
rely on the Pennsylvania court’s May 20, 2009, Order when he
seized E.L. outside her school in the Netherlands. However,
that Order purports to exercise power authorizing conduct by
Leendertz on foreign soil – in particular, a “snatch and grab,” as
accurately characterized by the District Court. A Pennsylvania
state court lacks jurisdiction to authorize such conduct;
therefore, the Pennsylvania court’s May 20, 2009, Order was a
nullity in the Netherlands until domesticated by a Dutch court.
On May 29, 2009, a Dutch court ruled that Leendertz acted
unlawfully by removing the child without Karpenko’s
permission. These facts support the District Court’s finding that
Leendertz breached Karpenko’s custody rights.

We conclude that the District Court’s findings of fact
were not clearly erroneous. We agree with the District Court’s
ultimate assessment: “Under no authority was the Father

9
authorized to snatch the child from her school in the manner he
did.”

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 (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

5
Our sister court has exercised inherent equitable power
to deny relief in the analogous but distinct context of fugitive
disentitlement, which “limits access to courts in the United
States by a fugitive who has fled a criminal conviction in a court
in the United States,” Prevot v. Prevot, 59 F.3d 556, 562 (6th
Cir. 1995) (Hague Convention petition dismissed because
petitioner was a fugitive in the United States), but fugitive
disentitlement does not apply to Karpenko’s conduct here.

10
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.

11
 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 well-
being. 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.

Moreover, when considered against the facts of this case,
we can see how inappropriate the doctrine of unclean hands
would be because Leendertz engaged in precisely the type of
conduct that the Hague Convention was designed to deter.
Leendertz brazenly violated Dutch law when he snatched his
daughter from school and ran with her from Germany to Dubai
to the United States. Dutch authorities responded by issuing an
Amber Alert, much the way American authorities would respond
if such illegal conduct were to be committed in the United
States.

If Leendertz had simply followed the procedures under
Dutch law to domesticate the Pennsylvania court’s May 20,
2009, Order, the Dutch court would have had the opportunity to
consider this claim of custody. In 2008, when the parties filed
separate custody petitions in the United States and the
Netherlands, the Dutch court stayed Karpenko’s custody
proceeding pending a ruling by the Pennsylvania court rather
than granting Karpenko custody in Leendertz’s absence. The
Dutch court’s handling of the case demonstrates its willingness
to consider Leendertz’s interests and the Pennsylvania court’s

12
decision. By resorting to self-help, Leendertz foreclosed an
opportunity to perfect a claim to custody. We conclude that the
doctrine of unclean hands does not bar Karpenko’s pursuit of
statutory remedies under the Hague Convention to restore the
status quo before E.L’s abduction.

IV. Conclusion

For the above stated reasons, we will affirm the District
Court’s Order, granting Karpenko’s petition under the Hague
Convention, lift the stay of enforcement of that Order so that
E.L. may be returned to the Netherlands immediately, and
dismiss Karpenko’s cross-appeal of the stay as moot.

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 Marina Karpenko v. Paul Leendertz
Nos. 10-1678 & 10-1825

ALDISERT, Circuit Judge, dissenting.

My colleagues conclude that the Hague Convention and
the International Child Abduction Remedies Act (ICARA), 42
U.S.C. §§ 11601-11610, divest this Court of its elemental power
to deny relief to a litigant with “unclean hands” relative to the
equitable remedy sought. I disagree, as I cannot accept that the
Convention sub silentio undermines our power – and indeed, our
obligation – to deny equitable relief to a petitioner who has
engaged in unconscionable conduct directly bearing on the
dispute between the parties. Accordingly, I would raise the
unclean-hands doctrine sua sponte to dismiss Karpenko’s
petition based on her unscrupulous actions in willfully violating
the custody orders of Pennsylvania courts, abusing
Pennsylvania’s legal processes, absconding with the parties’
daughter, E.L., and denying E.L. all access to Leendertz, her
father, since 2006. Because this unconscionable misconduct
relates directly to Karpenko’s claim for return of a child under
the Hague Convention, it operates as a complete bar to her
relief. Respectfully, I dissent.

I.

Both the Hague Convention and its available remedy –
the return of a child – are equitable in nature. See Hazbun Escaf
v. Rodriquez, 200 F. Supp. 2d 603, 611 n.21 (E.D. Va. 2002).1
As with other equitable remedies, therefore, Hague relief is
subject to the equitable doctrine that “he who comes into equity
must come with clean hands.” Precision Instr. Mfg. Co. v. Aut.
Maint. Mach. Co., 324 U.S. 806, 814 (1945) (quotation marks
omitted). The doctrine of unclean 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.” Id. Courts close their doors “only for such
violations of conscience as in some measure affect the equitable
relations between the parties [relative to the relief sought].”
Highmark, Inc. v. UPMC Health Plan, 276 F.3d 160, 174 (3d
Cir. 2001) (quotation omitted). As we have often emphasized,
the nexus “between the misconduct and the claim must be
close.” E.g., In re New Valley Corp., 181 F.3d 517, 525 (3d Cir.
1999).

Although the doctrine of unclean hands is frequently
interposed as an equitable defense, we may raise the doctrine
sua sponte, see Highmark, 276 F.3d at 174, to ensure that our
equitable powers are “never . . . exerted in behalf of one who
has acted fraudulently or who by deceit or any unfair means has

1
See also, e.g., Bell v. Aerodex, Inc., 473 F.2d 869, 872
(5th Cir. 1973) (“[T]he remedy sought . . . dictate[s] whether the
case will be considered an action at law or a proceeding in
equity.”).

2
gained an advantage,” Keystone Driller Co. v. Gen. Excavator
Co., 290 U.S. 240, 245 (1933). As we have explained
previously,

the equitable doctrine of unclean hands is not a
matter of defense to the defendant. Rather, in
applying it[,] courts are concerned primarily with
their own integrity, and with avoiding becoming
the abettor of iniquity.

Ne. Women’s Ctr., Inc. v. McMonagle, 868 F.2d 1342, 1354 (3d
Cir. 1989) (citations and quotations omitted). Consequently, it
is our prerogative, and even our obligation, to shut this Federal
Court’s doors “in limine” to a remedy-seeker who has
committed “some unconscionable act [with an] immediate and
necessary relation to the equity that he seeks.” Keystone, 290
U.S. at 245.

Contrary to the majority’s conclusion, the doctrine of
unclean hands is fully applicable to litigation under the Hague
Convention. Although the majority is correct that the unclean-
hands doctrine is not among the Convention’s enumerated
exceptions, I presume that “Congress is knowledgeable about
existing law pertinent to the legislation it enacts,” Goodyear
Atomic Corp. v. Miller, 486 U.S. 174, 185 (1988), including the
doctrines of equitable tolling and fugitive disentitlement, as well
as the unclean-hands doctrine, applicable to suitors seeking
equitable relief. Consequently, I do not share the majority’s

3
difficulty in locating “any authority that would support dismissal
of a Hague Convention petition on grounds of unclean hands.”
Maj. Op. at 11. The long arm of equity is present here. Indeed,
the equitable nature of the Convention’s remedy renders the
unclean-hands doctrine fully applicable in Convention cases.
Nothing in ICARA or the Convention specifies otherwise. That
is all the “authority” I require.2

The majority is mistaken in assuming that Hague
litigation is immune from traditional equitable doctrines. In
Journe v. Journe, 911 F. Supp. 43 (D.P.R. 1995), a district court
invoked its “equitable powers” and the doctrine of waiver to
dismiss Dr. Journe’s petition for the return of his children under
the Hague Convention. Id. at 47-48. After his wife removed his
children from France to Puerto Rico, Dr. Journe voluntarily
dismissed his divorce and custody proceedings in French court.
Id. at 48. In view of those facts, the court held that Dr. Journe
“waived” his Hague remedy by “eschew[ing] [his] opportunity
to resolve the custody dispute in his native France.” Id. In the
court’s view, Dr. Journes’s conduct evinced “an intent to
relinquish his rights to have the custody issues decided by the
courts of France.” Id. Significantly, the court’s waiver analysis
afforded no special solicitude for Hague Convention claims. See

2
See also Prevot v. Prevot, 59 F.3d 556, 566 (6th Cir.
1995) (leaving open the question whether “unclean hands” may
be asserted as a “defense” or exception in a case under the
Hague Convention).

4
id.

Courts have similarly invoked their equitable powers to
deny Hague relief under the fugitive disentitlement doctrine. In
Prevot v. Prevot, 59 F.3d 556 (6th Cir. 1995), the Court of
Appeals for the Sixth Circuit applied the doctrine to reverse the
district court’s grant of the Hague petition of Mr. Prevot, a
fugitive from the United States. Id. at 566-567. In the court’s
view, “nothing in the [Hague] Convention or [ICARA] . . .
purports to strip an American court of the powers inherent to it
as a court,” including the powers to “react to abuses of
American criminal process, to defiance of judicially-imposed
obligations owed to victims of crime, and to flights from
financial responsibilities to our government.” Id. at 566. Other
courts have followed suit. See Pesin v. Rodriguez, 244 F.3d
1250, 1253 (11th Cir. 2001) (applying the doctrine to dismiss
the fugitive mother’s appeal from the district court’s order
granting the father’s Hague petition, reasoning that “[w]e cannot
permit [her] to reap the benefits of a judicial system the orders
of which she has continued to flaunt”); Sasson v. Shenhar, 667
S.E.2d 555, 564 (Va. 2008) (affirming the appellate court’s
dismissal of the father’s Hague appeal on fugitive disentitlement
grounds). Additionally, those courts that have declined to apply
the disentitlement doctrine have done so based on specific
factual circumstances, and have not determined the doctrine to
be categorically inapplicable to claims of wrongful removal

5
under the Hague Convention.3 In my view, these cases
demonstrate that Hague litigation is subject to the full range of
nonstatutory equitable doctrines applicable in other
controversies. As indicated, because the return-of-child remedy
is essentially equitable, a Hague petition is subject to equity’s
doctrine of unclean hands.

The majority finds the unclean-hands doctrine
inapplicable in Hague litigation because it “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.’” Maj. Op. at 11-12 (quoting Hague
Convention, art. 1(b)). But that argument proves too much.
When we apply equitable doctrines to deny a remedy to which
a claimant is otherwise entitled, we necessarily subordinate the

3
See March v. Levine, 249 F.3d 462, 470 (6th Cir. 2001)
(observing that “[g]iven the fundamental rights at issue, . . .
disentitlement will generally be too harsh a sanction in a case
involving an ICARA petition,” and declining to disentitle the
petitioner based on civil contempt orders unrelated to the
parties’ Hague dispute); Walsh v. Walsh, 221 F.3d 204, 216 (1st
Cir. 2000) (holding that dismissal under the fugitive
disentitlement doctrine would be “too harsh[,] particularly in the
absence of any showing that the fugitive status has impaired the
rights of the other parent”).

6
substantive law to our Court’s obligation to defend our
jurisprudential reputation and integrity. Cases under the Hague
Convention have been no exception. Thus, when courts have
applied the fugitive disentitlement doctrine to Hague matters,
they have subordinated Hague policies to deter “abuses of
American criminal process,” Prevot, 59 F.3d at 566, “promot[e]
the efficient operation of the courts, discourag[e] flights from
justice, and avoid[] prejudice to the other side caused by the
appellant’s fugitive status,” Pesin, 244 F.3d at 1253. Likewise,
at least one court has subordinated Hague policies to the policies
underlying the doctrine of waiver. See Journe, 911 F. Supp. at
48. Unless the majority is prepared to exempt Hague litigation
from the doctrines of both waiver and fugitive disentitlement, it
lacks a principled basis for refusing to apply the unclean-hands
doctrine on the ground that it “undermine[s]” Hague objectives.
See Maj. Op. at 11.

The majority states that “fugitive disentitlement does not
apply to Karpenko’s conduct here,” Maj. Op. at 11 n.5, but
offers no justification for distinguishing between the equitable
doctrines of fugitive disentitlement and unclean hands. I readily
concede that the unclean-hands doctrine is inapplicable to some
categories of lawsuits, as when litigants represent the public
interest, e.g., Perma Life Mufflers v. Int’l Parts Corp., 392 U.S.
134, 138-139 (1968) (pari delicto defense unavailable in private
antitrust cases because they “serve[] important public
purposes”), or act as private attorneys general, e.g., ASPCA v.
Ringling Bros. & Barnum & Bailey Circus, 244 F.R.D. 49, 53

7
(D.D.C. 2007) (unclean-hands defense unavailable in litigation
under the Endangered Species Act because private litigants
further “the overriding public policy in favor of protecting the
animals”). But the rationale foreclosing the unclean-hands
doctrine in those cases – that unclean hands should not bar a
litigant from achieving a broad public benefit – is absent in
individual cases under the Hague Convention. Nor can the
majority’s position be justified by reference to the magnitude of
the rights implicated in Hague litigation. See Walsh v. Walsh,
221 F.3d 204, 216 (1st Cir. 2000) (“To bar a parent who has lost
a child from even arguing that the child was wrongfully
removed to another country is too harsh.”). In my view, that
magnitude heightens our profound obligation to ensure that this
Court does not become an instrumentality of iniquity in relation
to those rights.4

4
Through the ages, great writers and dramatists have
sounded the call for the intervention of relief now reflected by
modern day equity precepts. “Rigorous law is often rigorous
injustice,” wrote the Roman playwright Terence (185-159 B.C.)
in Heautontimorumenos act. iv, sc. 5, l. 48. Years later Cicero
(106-45 B.C.) wrote that “‘extreme law, extreme injustice’ is
now become a stale proverb in discourse.” I. De Officiis, ch.10.
This aphorism echoed in Jean Racine’s 1664 observation that
“extreme justice is often injustice.” Frères Ennemies, act iv. sc.
3. Then came Voltaire in 1718: “Mais l’extrême justice est une
extrême injure.” Oedipus, act iii, sc. 3.

8
 The majority is also concerned that application of the
unclean-hands doctrine would be commonplace in Hague
Convention matters, because wrongful removal “is most likely
to occur when strained relations between parents are at their
worst” and after “one or both parents may [have] interfere[d]
with the other’s custody rights.” Maj. Op. at 12. They fear that
the unclean-hands doctrine will eviscerate the Hague
Convention’s “remedy [for] prevent[ing] a cycle of abduction
and re-abduction, an outcome which would inflict needless harm
on vulnerable children.” Maj. Op. at 12. But that argument
assumes that we would apply the doctrine woodenly, without
sensitivity to the acrimonious factual circumstances frequently
attending Hague petition cases. Here, I heed the Supreme
Court’s admonition, in the fugitive disentitlement context, that
courts must exercise “restraint,” denying relief only as a
“reasonable response to the problems and needs that provoke it.”
Degen, 517 U.S. at 823-824. Applying that teaching, I would not
deny Hague relief as a matter of course whenever one parent has
done something to “interfere with the other’s custody rights,”
Maj. Op. at 12, as I agree that this may be relatively
commonplace in heated custody battles. I accept that the
unclean-hands doctrine must be applied with restraint, but I
insist that it must be applied. Unless the Supreme Court instructs
otherwise, I refuse to interpret the Hague Convention to afford
unconditional relief to a litigant whose exceptional, inequitable,
and reprehensible misconduct is a direct, but-for cause of the
unlawful removal of which she complains.

9
 The majority contends finally that, even if the Hague
Convention is subject to the doctrine of unclean hands, it
inappropriate in this case because “Leendertz engaged in
precisely the type of conduct that the Hague Convention was
designed to deter.” Maj. Op. at 13. As a factual matter, I
disagree. The majority acknowledges, but downplays, the fact
that Leendertz removed his daughter to the United States in
reliance on an order from a Pennsylvania court that purported to
authorize him to “obtain custody of the child at any place that
she may be found, [including “at her school,”] whether in the
United States or any other country.” App. 445-447.
Significantly, it additionally specified that “[n]o further
proceedings or any further orders shall be required for Father to
obtain custody of the child.” App. 445-447. Although the
Pennsylvania court may have lacked the authority to enter an
order with such a huge sweep, that order doubtless made this
case of unlawful removal an exceptional one. Here, Leendertz
did not eschew legitimate legal processes for self-help; he did
not remove his child to the United States because he was
unwilling or unable to obtain judicial relief. Indeed, given
Leendertz’s multi-year effort to gain access to his daughter
through the court system, I doubt he would have removed the
child to the United States but-for the Pennsylvania court’s order
purporting to authorize his actions. I am aware of no other case
in which a Hague respondent effected an unlawful removal that
was purportedly authorized by an American court. Under these
circumstances, I conclude that Leendertz’s conduct was
qualitatively different from that which “Hague Convention was

10
designed to deter,” Maj. Op. at 12, and I find the Convention’s
deterrence rationale completely inapplicable in this case.

In sum, I would hold that the doctrine of unclean hands
is fully applicable in Hague Convention cases, as “[p]ublic
policy . . . makes it obligatory for courts to deny a plaintiff relief
once his ‘unclean hands’ are established.” Gaudiosi, 269 F.2d at
882. Although I recognize that we must measure
“unconscionable conduct” with sensitivity to the factual
peculiarities of Hague cases, I would not except Hague litigation
from this longstanding principle. I now turn to the application of
these precepts to the uncontroverted facts of this case.

II.

The equitable doctrine of unclean hands applies when a
party seeking relief has committed an “unconscionable” act that
is “immediately related to the equity the party seeks in respect
to the litigation.” Highmark, 276 F.3d at 174. Additionally, the
nexus “‘between the misconduct and the claim must be close.’”
Id. (quoting New Valley, 181 F.3d at 525). I would hold that
Karpenko’s conduct in this case was both unconscionable and
directly related to her petition for the equitable remedy of return
of a child under the Hague Convention. Accordingly, I would
reverse the District Court and remand for the entry of an order
dismissing her petition.

In September 2002, Leendertz and Karpenko entered a

11
stipulation in which they agreed that Karpenko would have
primary physical custody of the child in the Ukraine, subject to
Leendertz’s right to visit the child four times per year, for a total
of thirteen weeks. Karpenko v. Leendertz, No. 09-03207, 2010
WL 831269, at *1 (E.D. Pa. Mar. 4, 2010) (District Court’s
Return Order & Opinion); see App. 265-267 (stipulation). The
stipulation was entered as an Order of the Court by a judge of
the Pennsylvania Court of Common Pleas. Karpenko, 2010 WL
831269, at *1. As agreed, Karpenko thereafter moved with the
child to the Ukraine. Id. In May 2003, she relocated to the
Netherlands, apparently at Leendertz’s request. Id.

Since 2006, Karpenko has unconscionably denied
Leendertz all access to the child, in complete violation of the
parties’ 2002 agreement and the laws of both the United States
and Holland. See id. at *2. Additionally, when Karpenko moved
with the child to a new address in the Netherlands in 2007, she
did not provide Leendertz with her new address or telephone
number. Id. In numerous telephone messages, Karpenko has
threatened Leendertz that he will never see E.L again and has
warned him that, if he tries to see her, Karpenko will change the
child’s name and get her a new passport. Id. Other evidence
indicated that Karpenko maligned Leendertz and denied the
child access even to Leendertz’s relatives in the Netherlands.
See App. 455. In my view this conduct is malicious and
unconscionable; it goes far beyond a simple “interfere[nce] with
[Leendertz’s] custody rights.” Maj. Op. at 12.

12
 Karpenko also behaved unconscionably in disregarding
the custody orders of Pennsylvania courts and manipulating
those courts to her advantage. Not insignificantly, Karpenko
first obtained the right to leave the United States with E.L. via
the September 2002 order of the Pennsylvania Court of
Common Pleas. See Karpenko, 2010 WL 831269, at *1-2. To
obtain that right, Karpenko pledged that Leendertz would have
rights of visitation and access and promised not to challenge the
custody agreement. Id.; App. 266-267. That pledge proved
entirely specious, however, as Karpenko went on to disregard
each of her court-ordered obligations once she departed the
United States. Karpenko first disregarded the court’s order with
respect to Leendertz’s visitation rights; by 2006, she was
determined to deny him any and all access to the child. See
Karpenko, 2010 WL 831269, at *2. Then, in February 2008, she
petitioned a Dutch court for sole custody of E.L., this time
disregarding the Pennsylvania court’s order insofar as it bound
her not to challenge the parties’ September 2002 agreement. See
id. On May 23, 2008, Leendertz filed petitions in Pennsylvania
court for Modification of a Custody Order and for Civil
Contempt. Id. Karpenko sought a continuance of those
proceedings, and in exchange for that continuance, Karpenko
promised the court that she would permit Leendertz to visit with
the child pending the full hearing. See App. 336, 405. Pursuant
to that promise, the court entered an order granting Leendertz
partial physical custody in the Netherlands during the week of
October 26 to November 30, 2008. App. 429. But Karpenko’s
promise was yet another subterfuge; predictably, she defied the

13
court and refused to permit Leendertz to visit with his daughter.
App. 452. In view of those circumstances, a Pennsylvania court
entered a contempt order against Karpenko on May 20, 2009.
Karpenko, 2010 WL 831269, at *2; App. 448-456. That court
additionally awarded Leendertz full custody over E.L. and
authorized him to “obtain custody . . . at any place that she may
be found.” Karpenko, 2010 WL 831269, at *2; App. 446.

When the District Court granted Karpenko’s Petition for
Return of Child, she very nearly succeeded in making the
federal court system an “abettor” of her inequitable conduct. See
Ne. Women’s Ctr., 868 F.2d at 1354. As the District Court
granted Karpenko’s Hague petition, it observed, but apparently
minimized, Karpenko’s complete lack of credibility throughout
the proceedings. Karpenko, 2010 WL 831269, at *3.
Nevertheless, the District Court’s subsequent Stay Order
memorialized its distrust of the litigant who had achieved
success on the merits of her Hague claim. In that order, the
District Court assumed Karpenko would defy almost any court
order adverse to her, emphasizing its “concern[] that the Mother
[would] not comply with an Order from the Third Circuit
ordering the child’s return to the United States.” Karpenko v.
Leendertz, 2010 WL 996465, at *2 (E.D. Pa. Mar. 15, 2010)
(District Court’s Stay Order). To circumvent an adverse order,
the Court predicted that “[t]he Mother may . . . flee with the
child to an unknown location in Europe and change the child’s
name, as she has threatened to do in the past.” Id. In my view,
Karpenko’s inequitable conduct toward Leendertz thus

14
continued as she invoked the District Court’s power against him,
while making it clear that she did not consider herself to be
bound by its orders. Unlike my colleagues, I would not permit
her to employ the power of the federal courts in this abusive
manner. Additionally, in view of Karpenko’s evident disdain for
American courts, I believe it is only fitting to deny her “the
benefits of a judicial system the orders of which she has
continued to flaunt,” Pesin, 244 F.3d at 1253, just as we do in
fugitive disentitlement cases.

Karpenko’s petition under the Hague Convention is but
her latest effort to make American courts the instrumentalities
of her inequitable conduct. In my view, we are duty-bound to
deny Karpenko all equitable relief in view of her unconscionable
and fraudulent conduct – her manipulation of the American legal
process, her defiance of court orders, and her unrelenting
iniquity toward Leendertz. It is plain that Karpenko seeks equity
in this Court after she “gained an advantage” by “act[ing]
fraudulently, [by] deceit, [and by] unfair means.” Keystone, 290
U.S. at 244-245. I would hold that Karpenko’s unclean hands
bar us from hearing her case, much less granting her requested
relief. Accordingly, I would remand these proceedings to the
District Court for entry of an order dismissing Karpenko’s
petition. For the reasons heretofore stated, I respectfully dissent.

15