Michele H.P. Xamplas v. Peter Xamplas

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2025 ME 92
Docket: Ken-24-400
Argued: May 8, 2025
Decided: October 30, 2025

Panel: STANFILL, C.J., and MEAD, CONNORS, LAWRENCE, DOUGLAS, and LIPEZ, JJ. *

MICHELE H.P. XAMPLAS

v.

PETER XAMPLAS

STANFILL, C.J.

[¶1] Peter Xamplas is a Greek and Australian citizen. In the divorce

action between the parties, he filed a petition under the Hague Convention on

the Civil Aspects of International Child Abduction to return the parties’ child to

Greece. The District Court (Augusta, Daniel Mitchell, J.) denied his request and

Peter1 appealed. Peter argues that the court erred when it concluded that Peter

failed to commence a proceeding within one year and that Michele H.P. Xamplas

met her burden of establishing the well-settled-child defense and therefore

denied his petition. Peter further argues that the court abused its discretion in

* Although Justice Horton participated in this appeal, he retired before this opinion was certified.

1 Because the parties share the same last name, we refer to them by their first names.
2

deciding not to return the child to Greece. Although neither party initially

addressed the interlocutory nature of the order,2 we conclude that the trial

court’s order is reviewable under the collateral order exception to the final

judgment rule. We disagree that the court erred or abused its discretion,

however, and affirm the order denying Peter’s petition to return the child to

Greece.

I. BACKGROUND

[¶2] We draw the following facts from the court’s findings, which are

supported by competent evidence in the record. See Yaman v. Yaman, 730 F.3d

1, 10 (1st Cir. 2013).

[¶3] Peter and Michele met in Indonesia and married in Australia in

2018. Peter is a citizen of Greece and Australia; Michele is a citizen of the United

States. The couple’s child was born in Australia on October 22, 2020, and has

an Australian passport. The family lived in Australia until relocating to Greece

on December 7, 2021.

[¶4] In late November 2022, the couple and their child traveled with

round-trip tickets from Greece to Maine, where they planned to celebrate

2 Both parties filed a letter of supplemental authorities on this issue in accordance with our
invitation at oral argument.
3

Christmas and vacation for six or seven weeks. Their accounts differ regarding

the state of their relationship at this time: Peter saw the trip as a vacation, and

Michele was unsure whether she would return to Greece.

[¶5] On January 4, 2023, the day before the family’s return flights to

Greece, Peter was unable to locate the child’s passport. Upon being confronted

by Peter, Michele told him that she and the child would not be returning with

him to Greece. The following day, Peter returned to Greece without Michele or

the child. Peter knew or should have known as of January 4, 2023, that Michele

intended to remain in Maine with the child.

[¶6] Michele and the child lived with Michele’s father in Windsor, Maine,

from January through September of 2023, when Michele and the child moved

to an apartment in Bangor. The child has significant family support in Maine,

including from Michele’s father and sister. The child has secure immigration

status and is entitled to pursue citizenship through Michele.

[¶7] The child began receiving developmental services in early 2023, and

she was diagnosed with autism spectrum disorder in November of that year.

She is enrolled in a therapeutic program where she receives seven hours of

therapy each day to assist her with speech and behavioral development. The

child enjoys and looks forward to attending school every day. The court
4

concluded that the child is well settled in her stable environment. Returning

the child to Greece would be disruptive of her well-settled life in Maine because

she has significant support in Maine, and she does not speak Greek.

[¶8] In June 2023, Michele asked Peter for funds to secure an apartment.

As a result, Peter contacted an attorney to begin the process of petitioning

under the Hague Convention to have the child returned to Greece. On July 17,

2023, Michele filed in the District Court a complaint for divorce against Peter.

On September 25, 2023, Peter filed with the Central Authority of Greece a

petition for return of the child. See Hague Convention on the Civil Aspects of

International Child Abduction art. 6-7, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343

U.N.T.S. 89, reprinted in 51 Fed. Reg. 10,494 (Mar. 26, 1986) [hereinafter cited

as “Hague Convention”] (“A Contracting State shall designate a Central

Authority to discharge the duties which are imposed by the Convention upon

such authorities. . . . Central Authorities shall co-operate with each other and

promote co-operation amongst the competent authorities in their respective

States to secure the prompt return of children and to achieve the other objects

of this Convention.”).

[¶9] The divorce case was scheduled for a hearing on December 1, 2023,

which Peter did not attend. On December 21, 2023, the court issued an order
5

determining that it had “reason to believe [that the] matters will be contested”

because Michele was seeking (1) dissolution of the marriage, (2) division of the

couple’s property including real estate in Greece, and (3) determination of

parental rights and responsibilities.

[¶10] After retaining Maine counsel, on April 19, 2024, Peter filed in the

divorce case a motion to dismiss the complaint and a petition under the Hague

Convention for return of the child to Greece. Michele opposed Peter’s motion

and petition. The court held a two-day hearing on the petition on May 31 and

June 20, 2024. On June 25, 2024, the court issued an interim order, allocating

to Michele the right to enroll the child in a therapeutic program in Maine

pending the outcome of all legal proceedings.

[¶11] On August 15, 2024, the court issued an order denying Peter’s

petition to return the child to Greece. Although the court found that Michele

wrongfully retained the child beginning on January 4, 2023, the court also

found that Peter waited over a year before filing a petition to return the child

and that Michele met her burden of establishing that the child is well settled in

Maine. The court therefore exercised its discretion and determined that the

child should not be returned to Greece. Peter timely appealed, see M.R. App. P.
6

2B(c)(1), and on September 18, 2024, the court issued an order staying the

divorce proceedings pending the outcome of this appeal, see M.R. App. P. 3(c).

II. DISCUSSION

A. Final Judgment Rule

[¶12] Because we generally do not hear interlocutory appeals, we first

determine whether the appealed-from order constitutes a final judgment and,

if not, whether it falls within an exception to the final judgment rule. Bond v.

Bond, 2011 ME 105, ¶ 5, 30 A.3d 816.

[¶13] The United States and Greece are both contracting parties to the

Hague Convention, which governs the procedure for determining whether

wrongfully removed or retained children3 should be returned to their country

of habitual residence. See Hague Convention; U.S. Dept. of State, U.S. Hague

Convention Treaty Partners, https://travel.state.gov/content/travel/en/

International-Parental-Child-Abduction/abductions/hague-abduction-

country-list.html (last visited Oct. 10, 2025) [https://perma.cc/Z8YG-P2BV].

The United States incorporated key parts of the Hague Convention into

3 The term “wrongfully removed or retained” includes the “removal or retention of a child before

the entry of a custody order regarding that child.” 22 U.S.C.A. § 9003(f)(2) (Westlaw through Pub. L.
No. 119-36).
7

implementing legislation known as the International Child Abduction Remedies

Act (ICARA), 22 U.S.C.A §§ 9001-9011 (Westlaw through Pub. L. No. 119-36).

[¶14] The Convention aims to (1) “secure the prompt return of children

wrongfully removed to or retained in any Contracting State” and (2) “ensure

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.

When a child is wrongfully retained in a country other than the child’s country

of habitual residence, the Convention “generally requires [the] country [in

which the child is wrongfully retained] to return the child immediately if the

other parent requests return within one year.” Lozano v. Montoya Alvarez,

572 U.S. 1, 4 (2014); Hague Convention, art. 3, 12; see 22 U.S.C.A. § 9001(a)(4)

(“Children who are wrongfully removed or retained within the meaning of the

Convention are to be promptly returned unless one of the narrow exceptions

set forth in the Convention applies.”). For petitions filed more than one year

after the child’s removal, the court “shall also order the return of the child,

unless it is demonstrated that the child is now settled in its new environment.”

Hague Convention, art. 12.

[¶15] This case began when Michele filed a divorce complaint against

Peter. Peter petitioned pursuant to ICARA and the Hague Convention for the
8

return of the child to Greece not as an independent action but as a request in

the pending divorce action. See 22 U.S.C.A. § 9003(b). There is no final divorce

judgment.

[¶16] “The long-standing final judgment rule requires that, with limited

exceptions, a party may not appeal a decision until a final judgment has been

rendered in the case. A final judgment is a decision that fully decides and

disposes of the entire matter pending before the court[,] leaving no questions

for the future consideration and judgment of the court.” Safety Ins. Grp. v.

Dawson, 2015 ME 64, ¶ 6, 116 A.3d 948 (alteration, citation, and quotation

marks omitted). “Accordingly, an interlocutory order that does not resolve all

pending claims as to all of the parties in an action is not a final judgment for

purposes of the rule.” Est. of Dore v. Dore, 2009 ME 21, ¶ 11, 965 A.2d 862.

[¶17] Because the order appealed from is not a final judgment, we must

determine whether any exceptions to the final judgment rule justify our review.

See Bond, 2011 ME 105, ¶ 6, 30 A.3d 816.

[¶18] We have recognized a collateral-order exception when “(1) the

decision is a final determination of a claim separable from the gravamen of the

litigation; (2) it presents a major unsettled question of law; and (3) it would
9

result in irreparable loss of the rights claimed, absent immediate review.”

Id. ¶ 11 (quotation marks omitted).

[¶19] We conclude that the collateral-order exception justifies our

review of this interlocutory appeal for the following reasons. First, the Hague

Convention claim is separable from the issues to be adjudicated in the divorce

action. Cf. U.S. Dep’t of Agric., Rural Hous. Serv. v. Carter, 2002 ME 103, ¶ 9,

799 A.2d 1232. The Hague Convention claim is fundamentally about

jurisdiction: whether a court in Maine or Greece should hear the custody

matter, see Lozano, 572 U.S. at 5. It is preliminary to and separate from the

determination of parental rights and responsibilities under 19-A M.R.S. § 1653

(2025).4 There is no meaningful overlap between the Hague Convention claim

and the other divorce and property issues. Compare Hague Convention, art. 3,

12, with 19-A M.R.S. §§ 902, 953 (2025).

[¶20] This conclusion is bolstered by the language of the Convention and

ICARA. Petitions for the return of children can be, and frequently are, brought

as independent actions, separate from any divorce or custody proceeding; in

such cases the order on the petition is a final judgment disposing of all claims.

4 “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.” Hague Convention, art. 19.
10

See 22 U.S.C.A. § 9003(b) (“Any person seeking to initiate judicial proceedings

under the Convention for the return of a child or for arrangements for

organizing or securing the effective exercise of rights of access to a child may

do so by commencing a civil action by filing a petition for the relief sought in

any court which has jurisdiction of such action and which is authorized to

exercise its jurisdiction in the place where the child is located at the time the

petition is filed.”); see, e.g., Lozano, 572 U.S. at 8. That the petition may be filed

as an independent action strongly suggests the issue is collateral to the other

issues in the divorce action.

[¶21] Second, this appeal presents a question of law that, although not

novel, is unsettled in Maine. We have not previously had the opportunity to

interpret the relevant provisions of the Hague Convention as to what

constitutes commencement of a proceeding for return of a child, and our lack

of precedent supports reaching the merits.

[¶22] Finally, absent our immediate review, Peter could irreparably lose

his claimed rights under the Hague Convention. If successful on any of the

issues on appeal, Peter would be entitled to have the child immediately

returned to Greece for a custody determination to take place there, rather than

in Maine. See Hague Convention, art. 12; Lozano, 572 U.S. at 4-5. Awaiting a
11

final judgment in this case would inherently and substantially delay the return

of the child to Greece and thus infringe on Peter’s rights under the Hague

Convention. See Hague Convention, art. 1, 12.

[¶23] Accordingly, we conclude that the collateral order exception to the

final judgment rule justifies reaching the merits of this interlocutory appeal.

B. Denial of Petition to Return the Child

[¶24] The parent petitioning for return of a child bears the initial burden

of establishing, by a preponderance of the evidence, that the child was

“wrongfully removed or retained within the meaning of the Convention.”

22 U.S.C.A. § 9003(e)(1)(A). If a child has been wrongfully retained, the court

must order the return of the child if “at the date of the commencement of the

proceedings before the judicial or administrative authority of the Contracting

State where the child is, a period of less than one year has elapsed from the date

of the wrongful removal or retention.” Hague Convention, art. 12. As relevant

here, when proceedings are commenced more than one year after the wrongful

detention, the court shall nonetheless order the return of the child “unless it is

demonstrated that the child is now settled in its new environment.” Id. The

parent opposing the petition has the burden to establish by a preponderance of
12

the evidence the well-settled-child defense. See 22 U.S.C.A § 9003(e)(2)(B).5

Even when a court finds that the well-settled-child defense has been

established, the court still has the discretion to order the return of the child.

Hague Convention, art. 12; see Yaman, 730 F.3d at 16.

1. One-Year Commencement Period

[¶25] Peter contends that the court erred in finding that he waited more

than a year to petition for the return of the child and, therefore, the court was

required to order the return of the child to Greece without consideration of the

well-settled-child defense. He asserts that the court erred in finding that the

child was wrongfully retained on January 4, 2023, instead of July 17, 2023,

when Michele filed for divorce, and therefore a year had not passed before

commencement of the proceeding to return the child. He further argues that

even if the child was wrongfully retained on January 4, 2023, he commenced

the proceedings within one year because he filed a petition for return of the

child on September 25, 2023, with the Central Authority of Greece.

5 Although ICARA refers to this as an exception, 22 U.S.C.A. § 9003(e)(2)(B), courts generally have

referred to it as a defense and we continue this practice.
13

a. Date of Wrongful Retention

[¶26] “A wrongful retention occurs when a parent exercising lawful

custody rights authorizes the child’s transfer to another country, but then the

child is retained in that country in breach of the parent’s custody rights.” In re

S.L., 503 P.3d 244, 258 (Kan. Ct. App. 2021); see Hague Convention, art. 3 (“The

removal or the retention of the child is to be considered wrongful where . . . it

is in breach of rights of custody attributed to a person, . . . either jointly or alone,

under the law of the State in which the child was habitually resident

immediately before the removal or retention; and . . . 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.”); see also Abbott v.

Abbott, 560 U.S. 1, 8-9 (2010); Swett v. Bowe, 733 F. Supp. 3d 225, 274-75

(S.D.N.Y.), aff’d sub nom. Urquieta v. Bowe, 120 F.4th 335 (2d Cir. 2024). “To

establish a prima facie case of wrongful retention under the Hague Convention

and ICARA, a petitioner must show by a preponderance of the evidence that:

(1) the habitual residence of the child immediately before the date of the

alleged wrongful retention was in a foreign country; (2) the retention is in

breach of custody rights under the foreign country’s law; and (3) the petitioner
14

was exercising custody rights at the time of the alleged wrongful retention.” Id.

at 263 (quotation marks omitted).

[¶27] We review the court’s factual findings, including the date of

wrongful retention of the child, for clear error. See Yaman, 730 F.3d at 10. We

“will affirm those findings as long as they are supported by competent evidence

in the record, even if the evidence might support alternative findings of fact.”

Bergin v. Bergin, 2019 ME 133, ¶ 12, 214 A.3d 1071 (quotation marks omitted).

[¶28] When a petitioner originally consents to a child’s travel with a fixed

return date, retention may be considered wrongful as of the date on which the

child ought to have returned. Swett, 733 F. Supp. 3d at 274-75. Here, the court

did not clearly err in finding that the child was wrongfully retained beginning

January 4, 2023. The parties came to the United States with a fixed return date.

There is competent record evidence that Michele communicated to Peter her

plan to leave him, that she told him on January 4, 2023, that she did not intend

to return with him or permit the child to return to Greece, that she did in fact

stay in Maine with their child, and that Peter knew or should have known in

January 2023 that Michele intended to remain in Maine. Despite Peter’s

contention to the contrary, the record supports the court’s finding that the child
15

was wrongfully retained as of January 2023, before Michele filed her divorce

complaint in July 2023.

b. Date of Commencement of Proceeding

[¶29] Peter also argues that even if wrongful retention of the child began

in January 2023, he nonetheless commenced a proceeding for return of the

child within one year, necessitating that the child be returned. We review

de novo whether Peter’s September 25, 2023, filing with the Central Authority

of Greece commenced the proceedings under the Convention. See Yaman,

730 F.3d at 10.

[¶30] ICARA provides that “the term ‘commencement of proceedings,’ as

used in article 12 of the Convention, means, with respect to the return of a child

located in the United States, the filing of a petition in accordance with

subsection (b) of this section.” 22 U.S.C.A. § 9003(f)(3). Subsection (b) provides

that “[a]ny person seeking to initiate judicial proceedings under the Convention

for the return of a child or for arrangements for organizing or securing the

effective exercise of rights of access to a child may do so by commencing a civil

action by filing a petition for the relief sought in any court which has

jurisdiction of such action and which is authorized to exercise its jurisdiction in
16

the place where the child is located at the time the petition is filed.” Id. § 9003(b)

(emphasis added).

[¶31] Accordingly, courts have consistently held that to commence

proceedings under the Hague Convention, a petition must be filed in a court

where the child is located and not in the Central Authority of the country of

habitual residence. See, e.g., Monzon v. De La Roca, 910 F.3d 92, 98-99 (3d Cir.

2018); da Costa v. de Lima, No. 22-cv-10543, 2023 WL 4049378, at *7 (D. Mass.

June 6, 2023), aff’d, 94 F.4th 174 (1st Cir. 2024); de Jesus Joya Rubio v. Alvarez,

526 F. Supp. 3d 1186, 1203 (S.D. Fla. 2021). Because the child was in the United

States and not Greece, Peter did not commence the proceedings until he filed

his petition in a Maine court on April 19, 2024.

[¶32] We therefore discern no error in the court’s conclusion that the

child was wrongfully retained as of January 2023 and that Peter commenced

proceedings under the Convention on April 19, 2024, more than a year later.

2. Well-Settled-Child Defense

[¶33] Peter next argues that the court erred in concluding that the child

is settled in Maine. Michele bore the burden to establish the well-settled-child

defense. 22 U.S.C.A. § 9003(e)(2)(B). We review the court’s finding that the
17

child is well settled in her new environment for clear error. See Yaman,

730 F.3d at 10; da Silva v. de Aredes, 953 F.3d 67, 72 (1st Cir. 2020).

[¶34] “The ‘well-settled’ defense grew out of the understanding of the

framers of the Convention that there could come a point at which a child would

become so settled in a new environment that repatriation might not be in its

best interest.” Swett, 733 F. Supp. 3d at 273-74 (quotation marks omitted).

“Courts look to the totality of the circumstances in determining whether a child

is now settled.” da Silva, 953 F.3d at 75. When analyzing whether a child is well

settled, courts often consider the stability of a child’s living arrangements, the

child and family’s support network including family and friends, participation

in community activities, the parent’s employment and financial stability, the

consistency with which the child attends school or daycare, the age of the child,

and the stability of the child’s immigration status. See, e.g., id.; Alcala v.

Hernandez, 826 F.3d 161, 174 (4th Cir. 2016); Rodriguez v. Noriega,

732 F. Supp. 3d 990, 1001 (D. Minn. 2024); Swett, 733 F. Supp. 3d at 280.

[¶35] We conclude that the court did not err in determining that Michele

met her burden of establishing the well-settled-child defense. The court’s

factual findings are supported by competent evidence in the record, including

Michele’s testimony explaining the stability of her and the child’s living
18

environment, the support they have from her father and sister who live nearby,

her current employment and plan to work as a teacher, the extensive services

the child receives to support her in her development and behavior challenges

due to her autism spectrum disorder, and the child’s enthusiasm for going to

school. The court further considered the young age of the child—which the

court weighed against finding her settled. The court appropriately applied its

findings to the well-settled-child defense, and we affirm its determination that

Michele established the defense.

3. Decision to Not Return Child to Greece

[¶36] Finally, Peter argues that the court erred in declining to use its

discretion to return the child to Greece. We review for abuse of discretion a

court’s decision to not return a child after finding that a defense applies. See

Yaman, 730 F.3d at 10.

[¶37] As noted above, even upon the successful showing of the

well-settled-child defense, the court retains discretion to order the return of the

child. Hague Convention, art. 12; da Costa v. de Lima, 94 F.4th 174, 180 (1st Cir.

2024). The First Circuit has termed this determination “a matter of equitable

discretion.” da Costa, 94 F.4th at 180 (quotation marks omitted). “Given the

elasticity of that term, a court may consider the abducting parent’s misconduct,
19

together with any other relevant circumstances, such as whether return would

not be harmful or disruptive even though the child has become settled, in

deciding whether to order [the child’s] return.” Id. (quotation marks omitted).

[¶38] The court engaged in a thoughtful analysis, weighing appropriate

facts, including Michele’s conduct, the disruption in the child’s life should the

court order her return to Greece, the importance of the child’s maintaining a

relationship with her father, and the policies underlying the Convention. The

court concluded that “[t]o remove her now from the place where she has

important supports to a country whose language she does not speak would

strike the wrong balance, notwithstanding the countervailing considerations.”

We discern no abuse of discretion in the court’s decision to not return the child

to Greece, and accordingly we affirm the court’s order denying Peter’s petition.

The entry is:

Judgment affirmed.

Dana R. Prescott, Esq. (orally), Prescott Jamieson Murphy Law Group, LLC, Saco,
for appellant Peter Xamplas

Jed Davis, Esq., and Jennifer S. Sparda, Esq. (orally), Jim Mitchell and Jed Davis,
P.A., Augusta, for appellee Michele H.P. Xamplas

Augusta District Court docket number FM-2023-240
FOR CLERK REFERENCE ONLY