6 Defenses To International Child Abduction

by Carlton Fields

A parent who moves with a child from the child’s home country to another country, or retains the child in the other country, may face accusations that the move or retention is wrongful. The parent who stays behind may assert that the parent who moved or kept the child from the home country committed wrongful child abduction in violation of international law. Traveling parents will certainly face fact-intensive, international litigation in which they must prove legal justification for wrongful removal or retention of the child. This article gives an overview of the various defenses the traveling parent may assert.

The Convention on the Civil Aspects of International Child Abduction, executed at The Hague on October 25, 1980 T.I.A.S. No. 11,670 (“Hague Abduction Convention”) establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained. The International Child Abduction Remedies Act (“ICARA”) implements the Hague Abduction Convention in the United States. 42 U.S.C. §§ 11601 – 11611. Under ICARA, a person may petition a court authorized to exercise jurisdiction in the country where a child is located for the child’s return to his or her habitual residence in another signatory country, so that the underlying, substantive time-sharing (custody) dispute can be determined in the correct jurisdiction. See 42 U.S.C. § 11603; Hague Abduction Convention, art. 3(a), T.I.A.S. No. 11,670, at 4. The inquiry by a court in a return action under ICARA "is limited to the merits of the abduction claim and not the merits of the underlying custody battle." Pielage v. McConnell, 516 F.3d 1282, 1286 (11th Cir.2008) (quoting Ruiz v. Tenorio, 392 F.3d 1247, 1250 (11th Cir.2004).

A petitioner establishes the elements of wrongful removal or retention under ICARA by demonstrating by a preponderance of the evidence that: (1) the habitual residence of the child immediately before the date of the allegedly wrongful removal or retention was in the country to which return is sought; (2) the removal or retention breached the petitioner's custody rights under the law of the child's habitual residence; (3) the petitioner was actually exercising or would have been exercising custody rights of the child at the time of the child’s removal or retention; and (4) the child has not reached age 16. See Lops v. Lops , 140 F.3d 927, 936 (11th Cir.1998).

Under the Hague Abduction Convention and ICARA, when a child has been wrongfully removed from the child’s home nation-state or “habitual residence,” the court must order the child to be returned to the habitual residence, unless the party removing the child can establish at least one of six narrow affirmative defenses. See Furnes v. Reeves , 362 F.3d 702, 712 (11th Cir.2004).

First Defense: The Non-Traveling Parent Was Not Exercising Custody Rights
The first defense a travelling parent may raise is that the person having care of the child was not exercising rights of custody at the time of the removal or retention of the child. Although the Hague Abduction Convention does not define “exercise” of rights of custody, courts have found that, in the absence of a ruling from a court in the country of habitual residence, a court should liberally find “exercise” when a parent keeps or seeks to keep any sort of regular contact with the child. See In re Leslie, 377 F.Supp.2d 1232,1243 (S.D. Fla. 2005) (“exercise” is liberally interpreted); In re Ahumada Cabrera, 323 F.Supp.2d 1303, 1312 (S.D. Fla.2004) ; Mendez Lynch v. Mendez Lynch, 220 F.Supp.2d 1347, 1359 (M.D. Fla. 2002) (father exercised rights by supporting the children and visiting regularly, making decisions about school and attending to his daughter’s medical needs); Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 343-44 (5th Cir. 2004) (father who visited the children five times a year and paid child support had exercised custody rights); Friedrich v. Friedrich, 78 F.3d 1060, 1066 (6th Cir. 1996) (any attempt to maintain a somewhat regular relationship with the child should constitute “exercise” of rights of custody and, once a court finds that the parent left behind exercised custody rights in any manner, “it should stop – completely avoiding the question of whether the parent exercised the custody rights well or badly.”); Hirst v. Tiberghien, 2013 WL 1867343 (D. SC 2013) (mother had physical custody of children and had been solely responsible for their care following father’s relocation to the U.S. and prior to the children’s travel to the U.S.); Fernandez v. Somaru, 2012 WL 3553779 *9 (M.D. Fla. 2012) (there was no evidence of any acts by mother that constituted clear and unequivocal abandonment of the child); Garcia v. Varona, 806 F.Supp.2d 1299, 1317 (N.D. GA 2011) (father sought to be a continual presence and influence in the life of the children until the day of their wrongful removal); Giampaolo v. Ermeta, 390 F.Supp.2d 1269 (N.D. Ga. 2004) (father exercised rights of custody by regular involvement with the child’s school).

While courts applying the Hague Abduction Convention do not consider the merits of parents’ underlying custody claims – the goal is to determine whether the child has been wrongfully abducted and, if so, return the child (see ICARA, 42 U.S.C. § 11601(b)(4)) – proof of a parent’s involvement in the child’s life or lack of exercise of custody rights is important, in both Hague Abduction Convention cases and, on the merits, in contested time-sharing and relocation cases under Florida law. Under Florida’s relocation statute , one factor courts consider in making determinations about whether to permit or deny relocation is, “the nature, quality, extent of involvement, and duration of the child's relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child's life.” Section 61.13001(7), Florida Statutes (2013) . Thus, in Hague Abduction Convention cases brought in Florida for the return of a child to the child’s habitual residence, the defending parent may draw guidance about proof of the non-traveling parent’s failure to exercise contact with a child from cases discussing the nature, quality and extent of parental involvement or “abandonment” of the child.

Second Defense: The Non-Traveling Parent Consented to or Acquiesced to the Move
Under Article 13(a) of the Hague Abduction Convention, a court is not bound to order the return of a child if the respondent demonstrates by a preponderance of the evidence that the person having care of the child gave prior consent to the removal or retention or subsequently acquiesced in the removal or retention. Proof of consent or acquiescence by a parent to a child’s residing in the foreign country rebuts a claim for wrongful removal or retention. See Friedrich v. Friedrich, 78 F.3d 1060, 1070 (6th Cir. 1996) (proving acquiescence requires a showing of a formal act or statement, such as testimony or a written renunciation of rights, or a consistent attitude of acquiescence over a significant period of time). The conduct of a person having care of a child prior to the child’s removal or retention is the relevant conduct to consider in connection with the defense of consent; the person’s conduct subsequent to removal or retention is the relevant conduct to consider in connection with the defense of acquiescence. See Fernandez v. Somaru, 2012 WL 3553779 *12 (M.D. Fla. 2012) .

Delay in asserting a parent’s rights can amount to acquiescence in the child’s removal or retention. Cf. Garcia v. Angarita, 440 F.Supp.2d 1364, 1378 (S.D.Fla.2006) (any delay by a father, who agreed to allow his children to travel to the United States for a brief visit, in notifying the mother that he objected to the children's relocation to the United States did not constitute acquiescence, because the mother never sought his agreement and he never said or did anything that evidenced he acquiesced to relocation; she perpetrated relocation through deception; and he took action to secure the return of the children); In re Leslie, 377 F.Supp.2d 1232 (S.D.Fla.2005) (a father did not acquiesce in the removal of his son from Belize to the United States, to live with the child’s mother and her husband, so as to preclude return of the son to Belize; there was conflicting evidence about whether the mother notified the father of the move, and he aggressively pursued return of the son, both in Belize and the United States).

See also In re Ahumada Cabrera, 323 F.Supp.2d 1303, 1313 (S.D.Fla.2004) (a mother’s retention of a child in the United States only became wrongful when the child’s father became aware of her true intention not to return, even though the father earlier knew the mother and child were not returning on the date they were originally supposed to return and he had agreed to let the child finish the school year; the father made efforts to obtain assistance in Argentina through the Central Authority in obtaining return of the child, rebutting the defense that he acquiesced to the child’s removal); Mendez Lynch v. Mendez Lynch, 220 F.Supp.2d 1347, 1364-65 (M.D. Fla. 2002) (a father was exercising his custody rights over the minor children when their mother removed them from Argentina, even though he was separated from the mother and on a 19-day trip to India when the mother fled; the father had remained in regular contact with the children and paid the family bills); Rodriguez v. Sieler, 2012 WL 5430369 *6 (D. Mont. 2012) (father removed children from Mexico while mother was sleeping and concealed his plan; her later efforts to negotiate a settlement about the children’s care and custody could not be construed as acquiescence in his continued wrongful retention of the children).

Third Defense: The Child of Sufficient Age and Maturity Objects to Being Returned
A court is not bound to order the return of a child if the respondent demonstrates by a preponderance of the evidence that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to consider the child’s views. See Article 13 of the Hague Abduction Convention. There is no specific age at which a child is deemed to be sufficiently mature for the child’s views to be considered. Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 279 (3d Cir. 2007).

Thus, each case is fact intensive. See Escobar v. Flores, 183 Cal. App. 4th 737, 750-51, 107 Cal.Rptr.3d 596, 606-07 (Cal.App.3 Dist. 2010) (affirming trial court’s refusal to return to Chile a nine-year old child, who was extremely communicative, was under no undue influence, and demonstrated sufficient age and maturity to take into account his objection to being returned to Chile); Lopez v. Alcala, 547 F.Supp.2d 1255, 1259 (M.D.Fla.2008) (one of the children, age seven, had not reached an age and degree of maturity; the other, age 10, had, but her wishes were ambivalent); Mendez Lynch v. Mendez Lynch, 220 F.Supp.2d 1347, 1362 (M.D.Fla.2002) (a nine-year-old child had reached an age of maturity such that his views should be considered); In re D.D., 440 F.Supp.2d 1283, 1297 (M.D. Fla. 2006) (a six-year-old child had not reached an age and degree of maturity to make it appropriate to take her views into account); Application of Blondin v. Dubois, 78 F. Supp. 2d 283, 296 (S.D.N.Y. 2000) aff'd sub nom. Blondin v. Dubois, 238 F.3d 153 (2d Cir. 2001) (a daughter who objected to being returned to an abusive father was "a remarkably mature eight-year-old, probably in no small part due to the very adult proceedings and issues that she has been confronted with over the past two years.")

In Florida, one time-sharing factor courts consider is, “the reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.” See section 61.13(3)(i), Florida Statutes (2013) . Likewise, in determinations about whether to permit a parent to relocate with a child, courts applying Florida’s relocation statute must evaluate among many factors, “the child’s preference, taking into consideration the age and maturity of the child.”See section 61.13001(7)(d), Florida Statutes (2013) .

Fourth Defense: The Child is Well-Settled in the New Environment
The child must be returned unless it is demonstrated that the child is now “well-settled” in the new environment. Hague Abduction Convention, Article 12. A court is not bound to order the return of a child if the defending parent demonstrates by a preponderance of the evidence that (a) the proceedings were commenced more than one year after the date of the wrongful removal or retention, and (b) the child is now settled in the new environment. See Wigley v. Hares, 82 So. 3d 932, 941-42 (Fla. 4th DCA 2011 (based upon the evidence as found by the trial court, the child had not become “settled” in his environment); In re Ahumada Cabrera, 323 F.Supp.2d 1303, 1314 (S.D.Fla.2004) (even though child wanted to remain in the United States and appeared to be happy and doing well, she was not settled in her new environment, where mother was allegedly wrongfully retaining child, she had changed schools and residences approximately five times in the two-and-a-half years she had been in the United States, and any stability she might have enjoyed was undermined by mother's uncertain immigration status); Mendez Lynch v. Mendez Lynch, 220 F.Supp.2d 1347, 1363 (M.D. Fla. 2002) (children removed from Argentina were not well settled in Florida because they had lived in seven different locations during their two years in the United States and had been treated for stress).

The Wigley court looked to the U.S. State Department for interpretation of what “settled” means:

The Convention does not provide a definition of the term “settled.” However, the U.S. State Department has declared that “nothing less than substantial evidence of the child's significant connections to the new country is intended to suffice to meet the respondent's burden of proof.” Public Notice 957, Text & Legal Analysis of Hague International Child Abduction Convention, 51 Fed.Reg. 10494, 10509 (U.S. State Dep't Mar. 26, 1986).

Factors to analyze when considering a “settled environment” defense include:

  1. the child's age;
  2. the stability and duration of the child's residence in the new environment;
  3. whether the child attends school or day care consistently;
  4. whether the child has friends and relatives in the new area;
  5. the child's participation in community or extracurricular school activities, such as team sports, youth groups, or school clubs; and
  6. the respondent's employment and financial stability. In some circumstances, we will also consider the immigration status of the child and the respondent. In general, this consideration will be relevant only if there is an immediate, concrete threat of deportation.

See Wigley (citing In re B. Del C.S.B. , 559 F.3d 999, 1009 (9th Cir.2008) ). See also Litigating International Child Abduction Cases Under the Hague Convention , National Center for Missing & Exploited Children, Training Manual (2007) at p. 43 n. 175 .

Cases that have found the “settled environment” defense applied include those in which the removed or retained children had lived in a stable place while in the United States, attended the same school, and formed relationships in the United States. See, e.g., Esquivelzeta v. Sohn , ___ WL _____, Case No. B235003 (Cal. Ct. of Appeal, 2d App. Dist, 8th Div. 2013) (children were settled in Los Angeles, had lived in a stable home, had continuity at school for a year, excelled in school, and had activities and friends at school and in the neighborhood); Lozano v. Alvarez, 809 F.Supp.2d 197, 230-231 (S.D.N.Y. 2011) (five-year-old child had become close to family members she had been living with in New York for 16 months, was in a stable school environment, had friends, and was participating in activities); Castillo v. Castillo, 597 F.Supp.2d 432, 440-441 (D.Del. 2009) (11-year old child had one residence and one school since arriving in the United States when she was nine, received attendance awards, had improved grades, was fluent in English, and had many friends at school); Silvestri v. Oliva, 403 F.Supp.2d 378, 388 (D.N.J. 2005) (children had lived in the same New Jersey town in for two-and-a-half years, attended the same school system, were doing well in school, were fluent in English, and had friends at school).

In contrast, cases that found the “settled environment” defense did not apply did so when children had lived in various places and attended multiple schools since being brought to the United States. See Wigley v. Hares , 82 So. 3d at 942 (10-year-old son had not become settled in his environment because, although he lived in the same home for four years, he had not attended school or been properly home schooled, had not participated in activities, had limited access to friends and family members, and his mother was an unemployed, undocumented illegal alien); Filipczak v. Filipczak (In re Filipczak) , 838 F.Supp.2d 174, 181 (S.D.N.Y. 2011) (children were three and four years old and lived in a domestic violence shelter in Chicago, then in Manhattan, and then with the mother’s fiancé in Connecticut, and had attended multiple schools).

In addition, some courts consider immigration status a factor in the “settled environment” analysis, even if immediate deportation is not imminent.See In re Koc, 181 F.Supp.2d 136, 154 (E.D.N.Y.2001); see also Lopez v. Alcala , 547 F.Supp.2d 1255, 1260 (M.D.Fla.2008) (finding that the children's “residence in this country is not stable because neither [the abducting parent] nor the children have legal alien status and, as such, are subject to deportation at anytime”); Giampaolo v. Erneta , 390 F.Supp.2d 1269, 1282-1283 (N.D.Ga. 2004) (although 11-year-old child had regularly attended school, participated in activities, and made friends in the United States, she had lived in three different homes, attended three different schools, the mother and child were illegally in the United States, and they would be living with the mother’s husband, a convicted felon under the Georgia Family Violence Act).

A court may also consider the active measures the person who removed the child has undertaken to conceal the child's whereabouts, as well as the prospect that the abducting parent could be prosecuted for violations of law based on the concealment. Lops v. Lops , 140 F.3d 927, 946 (11th Cir.1998) ; Wigley v. Hares , 82 So. 3d 932, 941-42 (Fla. 4th DCA 2011) . There is a split among federal circuit courts regarding whether the one year period in Article 12, after which the defending parent may assert the “well-settled” defense, is subject to equitable tolling because of that parent’s conduct in concealing the child’s whereabouts. Compare Yaman v. Yaman , 2013 WL 4827587 (1st Cir. (N.Y.) 2013) and Lozano v. Alvarez , 697 F.3d 41, 51 (2d Cir. 2012), cert. granted in part , 133 S. Ct. 2851 (2013), with Furnes v. Reeves , 362 F.3d 702, 723-24 (11th Cir. 2004) and Duarte v. Bardales , 526 F.3d 563, 570 (9th Cir. 2008) The Supreme Court has granted certiorari as to this question. Lozano v. Alvarez , 133 S. Ct. 2851 (2013) .

Fifth Defense: There is Grave Risk of Physical or Psychological Harm if the Child is Returned
A court is not bound to order the return of a child if the respondent demonstrates by clear and convincing evidence that there is a grave risk that the child's return would “expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Article 13(b) of the Hague Abduction Convention.

Detailed country-by-country information on procedures if a child has been moved to another country is available at the U.S. Department of State website. In 2013, the U.S. Department of State’s Office of Children’s Issues submitted to Congress a report on compliance by treaty members identifying the Department’s concerns about fulfillment of its obligations under the Hague Abduction Convention to return children. The report illustrates the various assertions that may be raised by parties or by judicial or governmental authorities called upon to assist with return of children. Although such statistics may assist in establishing the “grave risk of harm” defense, a parent need not prove that the child’s country of habitual residence is unable or unwilling to protect the child from the grave risk of harm that would accompany the child’s return.

The trial court found a mother proved the defense of grave risk of harm in denying a father’s petition to return the child to St. Kitts, in Wigley v. Hares, 82 So. 3d 932, 941-42 (Fla. 4th DCA 2011) . The Fourth District Court of Appeal determined that testimony that the child would be upset and psychologically harmed by his return, would not meet the grave harm test. But the mother’s testimony about threats and abuse by the child’s father provided clear and convincing evidence that return would place the child at risk of grave harm. See also Acosta v. Acosta, 2013 WL 3970239 (8th Cir. (Minn.) 2013) (affirming district court’s finding that suicidal and abusive father, his sustained, uncontrolled rage, and his inability to cope with the prospect of losing custody would expose them to a grave risk of harm if they were to return to Peru).

On the other hand, in Lopez v. Alcala, 547 F.Supp.2d 1255 (M.D.Fla.2008) , clear and convincing evidence did not establish such a grave risk that two children would be harmed, if returned to their father in Mexico. Likewise, in In re D.D., 440 F.Supp.2d 1283, 1298-99 (M.D. Fla. 2006) , there was no credible evidence the father had ever physically or psychologically harmed the child and the child’s living conditions in France did not evidence intolerable conditions. In Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347, 1364-65 (M.D. Fla. 2002) , children were ordered to be returned to Argentina, despite testimony by a professor of political science and international studies that Argentina was in a state of economic and civil disorder, posing a risk of harm to the children if they were returned.

Sixth Defense: Fundamental Principles Regarding the Protection of Human Rights and Fundamental Freedoms Do Not Permit Return of the Child
Under Article 20 of the Hague Abduction Convention, a court is not bound to order the return of a child if the travelling parent demonstrates, by clear and convincing evidence, that return of the child would not be permitted by fundamental principles of the country of habitual residence relating to the protection of human rights and fundamental freedoms. The defense is directed to concerns about harms arising from returning a child to a country when “human rights concerns, most likely defined within the parameters of other international agreements, would prohibit return." Aldinger v. Segler, 263 F.Supp.2d 284, 290 (D.P.R.2003) .

The defense is rarely invoked and apparently has not been successfully asserted in the United States. See Walker v. Kitt, 900 F. Supp. 2d 849, 863-64 (N.D. Ill. 2012) (mother utterly failed to provide clear and convincing evidence that return of child to Israel would “shock the conscience.”) “To refuse to return a child for anything less than gross violations of human rights would seriously cripple the purpose and effectivity of the Convention.” Id. See also Hazbun Escaf v. Rodriguez, 200 F. Supp. 2d 603 (E.D. Va. 2002) (a search by the court yielded no authority applying the defense); Castro v. Martinez, 872 F. Supp. 2d 546, 557 (W.D. Tex. 2012) (declining to apply the exception where the respondent alleged that corruption in Mexico would prevent a fair determination of child custody upon the child's return); Aly v. Aden, 2013 WL 593420 (D.Minn. 2013) (the same allegations the court found to be insufficient to establish the grave risk of harm defense were insufficient to establish the “fundamental humanitarian rights” defense). See also Weiner, Merle H., Strengthening Article 20, 38 U.S.F.L. Rev. 701 n. 71 (2004) .

Decisions from other countries under Article 20 are likewise rare. In one such case, recognizing the defense, a Spanish court denied a father’s petition for return of a child to Israel from Spain. The child and mother were Spanish citizens. The court found that return would be contrary to principles of Spanish law concerning the protection of human rights and basic liberties. Following the parties’ divorce and mother’s taking the child to Spain, the father applied for, and an Israeli court granted him, sole custody upon a finding that the mother was ‘Moredet,” a status under Jewish law meaning she was a ‘rebellious wife.’ The Spanish court determined this finding would result in the absolute negation of the mother’s parental rights and status in the Israeli community and declined to return the child. In Re S., Auto de 21 abril de 1997, Audiencia Provincial Barcelona, Sección 1a .

Proving claims in international child abduction cases under the Hague Abduction Convention requires analysis and careful development of all evidence and testimony that may support or defeat defenses to claims of wrongful abduction. This article provides a useful framework for such analysis of the defenses that may be raised.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Carlton Fields | Attorney Advertising

Written by:

Carlton Fields

Carlton Fields on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.