Stein v. Kohn, 2024 WL 4848986 (2d Circuit, 2024) [Canada] [Petition denied] [now settled defense established]

In Stein v. Kohn, 2024 WL 4848986 (2d Circuit, 2024) Petitioner-Appellant Raphael Stein (“Stein”) appealed pro se from the denial of his petition for the return of his three Canadian-born minor children to Montreal, Canada. The petition alleged that the children’s mother, Adeena Kohn (“Kohn”), wrongfully retained the minors in Monsey, New York, after a trip to this country in 2020. Stein faulted the district court’s findings, following a bench trial, that (1) his return petition was untimely filed more than a year after the alleged wrongful retention and (2) the children were “now settled” in Monsey. 

The Court reviewed the district court’s factfinding for clear error and its “application of the Convention to the facts” de novo. The clear error standard is deferential, and the Court will “accept the trial court’s findings unless we have a definite and firm conviction that a mistake has been committed.” Tereshchenko v. Karimi, 102 F.4th 111, 124 (2d Cir. 2024) (quoting Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013)). Because Stein appealed pro se, it construed his briefs liberally to raise the strongest arguments they suggest. 

Stein primarily argued on appeal that Kohn’s wrongful retention of the children occurred not in March or October 2021, but instead at some point in January 2022, when he realized that Kohn had changed the locks on her apartment. The Court observed that the distinction mattered because, if credited, it would mean that Stein’s December 2022 petition was timely and foreclose Kohn’s defense that the children are “now settled” in this country, thereby requiring their return to Canada. It pointed out that in cases where the petitioning parent originally consented to the child’s stay outside its habitual residence, wrongful retention occurs on the date that the petitioning parent is informed that the co-parent will not be returning the child to its country of habitual residence. See Marks, 876 F.3d at 421–22. It saw no error in the district court’s finding that the wrongful retention of the children here occurred on March 6, 2021, or, at the latest, on October 4, 2021. On March 5, 2021, Stein told Kohn that he did not agree with the children staying in New York permanently and that he wanted the family to resume living in Canada as soon as possible. The next day, Kohn responded that the parents were not on the same page and that she would not return to Montreal. Because the parties agreed that Kohn would not live apart from the children, the district court reasonably found that “Stein understood Kohn would keep the children with her wherever she was living.” Alternatively, Kohn’s October 4, 2021 divorce filing, where she sought custody of the children, clearly alerted Stein to her intent to remain in New York with the children. See Hofmann v. Sender, 716 F.3d 282, 291 (2d Cir. 2013). Either way, the wrongful retention occurred more than a year before Stein filed his petition on December 19, 2022, meaning the “now settled” defense was available to Kohn.

 The Second Circuit stated that Article 12 of the Convention requires the district court to grant even an untimely petition for the return of the child to its habitual residence, “unless it is demonstrated that the child is now settled in its new environment.” The respondent bears the burden of proving this “now settled” defense by a preponderance of the evidence. In determining whether a respondent carried this burden, a district court properly considers whether “the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment,” Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir. 2012), an inquiry informed by the following non-exhaustive factors: (1) the age of the child; (2) the stability of the child’s residence in the new environment; (3) whether the child attends school or daycare consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent’s employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent. Here, the district court carefully evaluated each factor. Viewing the record as a whole, it identified no clear error in its factual findings. The children, who at the time of trial were seven, five, and three, had “lived in Monsey for at least half their lives,” with the youngest having “lived in Monsey nearly her entire life.” Thus, the district court reasonably found that “most, if not all,” of the two elder children’s “memories are likely of Monsey, not Montreal.” The district court further found the children to have lived continuously in the same apartment complex for the whole of their time in Monsey, surrounded by their maternal grandparents, “great-grandmother, aunts, and several of the children’s cousins.” Also, each child had consistently attended daycare and school in Monsey and regularly joined Kohn’s extended family at their local synagogue. The children frequently played with local friends and cousins. Nor was there any risk of deportation given that “Kohn is [a] U.S. citizen, and at least the two older children [already] have U.S. passports.” The only factor weighing against settlement is Kohn’s failure to maintain stable employment in New York. The district court was not required to accord this factor great weight because Kohn had the support of her family, and the children enjoyed a stable environment throughout their time in Monsey. 

Urquieta v Bowe, --- F.4th ----, 2024 WL 4630284 (United States Court of Appeals, Second Circuit, 2024)[Chile][Petition denied] [Habitual residence] [Now settled defense established]

 In Urquieta v Bowe, --- F.4th ----, 2024 WL 4630284 (United States Court of Appeals, Second Circuit, 2024) Petitioner-Appellant Maria Elena Swett Urquieta (“Swett”)1 appealed from an order of the United States District Court denying her petition for repatriation to Chile of her minor son S.B.S. from the United States, where S.B.S. was wrongfully retained by his father, Respondent-Appellee John Francis Bowe. 

Swett, a Chilean actress, and Bowe, a writer based in the United States, have a son, S.B.S., who was born in Minnesota in 2012. Swett and Bowe separated shortly thereafter but shared legal custody of S.B.S, who lived in Chile with Swett. While Swett enjoyed sole physical custody, she granted travel authorizations that permitted S.B.S. to visit Bowe in New York City. On December 23, 2022, S.B.S. and Bowe traveled from Chile to New York under a travel authorization that expired on January 8, 2023. This litigation arose because Bowe refused to return S.B.S. to Chile on January 8. Instead, he wrongfully retained S.B.S., enrolled S.B.S. in a school in New York City, and sought sole custody. On February 23, 2024, Swett filed this ICARA petition seeking S.B.S.’s return. The District Court explained that Swett had made out a prima facie case of wrongful retention under the Hague Convention but that S.B.S. need not be returned to Chile because Bowe had established two affirmative defenses available under the Convention,  the “well-settled” defense and the “child objection” defense. 

The Court of Appeals pointed out that the Article 12 well-settled defense “permits courts to consider the interests of a child who has been in a new environment for more than a year before ordering that child to be returned to [his] country of habitual residency.” Lozano v. Alvarez, 697 F.3d 41, 52 (2d Cir. 2012). The defense is available only if over a year has passed from the wrongful removal or retention until the filing of the Hague Convention petition. The defense requires a respondent to show by a preponderance of evidence that the proceeding seeking the child’s return commenced more than one year “from the date of the wrongful ... retention” and “the child is now settled in its new environment.” Hague Convention, art. 12; 22 U.S.C. § 9003(e)(2)(B). The Court of Appeals agreed with the District Court that the petitioner can consent to an extension of time for the child’s stay, in which case the retention becomes wrongful at the end of the extension. 

The Court observed that that it had not previously decided whether a petitioning parent can extend authorization for a child to remain outside the country of habitual residence after an initial instance of wrongful retention. This extension would postpone the date of wrongful retention to determine whether the well-settled defense is available. It adopted the District Court’s analysis of the defense. It held that the District Court correctly concluded that, even after an initial instance of wrongful retention, a parent may extend authorization for the child to remain outside the country of habitual residence. But it was also right to conclude that Swett did not consensually extend the authorized time and instead merely acceded to circumstances she felt she could not change after Bowe wrongfully retained S.B.S. on January 8, 2023. Swett, ––– F.Supp.3d at –––– – ––––, 2024 WL 2034713, at *31–34. Critically, the District Court found that Swett could not meaningfully consent to Bowe’s continued retention because she lacked any practical ability to control Bowe’s decisions, had already filed a police report in Chile on January 10, 2023, and did not have any firm belief that Bowe would return S.B.S at the end of the extension. The District Court thus correctly found that Bowe’s wrongful retention of S.B.S. occurred on January 8, 2023, and that the well-settled defense was available because Swett did not file her petition until more than a year after that date.

As to the remaining issues raised by Swett on appeal, the Court affirmed for substantially the reasons articulated by the District Court in its opinion and order entered on May 7, 2024.

 

Dashti v Long, --- F.Supp.3d ----, 2024 WL 4614387 (United States District Court, N.D. New York, 2024)[Greece] [Habitual residence] [Rights of Custody] [Motion to dismiss for failure to state a claim granted]

In Dashti v Long, --- F.Supp.3d ----, 2024 WL 4614387 (United States District Court, N.D. New York, 2024) Petitioner Mohammad Ali Dashti’s petition against respondent Brittany Elizabeth Long seeking the return of his minor child, ATD, to Greece was denied.

Dashti and Long began a relationship in 2018. The couple lived together in Athens, Greece. Long became pregnant with ATD in the spring of 2018. Petitioner and respondent became engaged in November of 2018. The couple never married. ATD was born in 2019. ATD is an American citizen. Long and ATD traveled to Florida in March 2020 and were unable to return to Greece until December. Following a family vacation around Europe in December 2022, respondent returned to the United States with ATD. Respondent returned to Athens, Greece with ATD in December 2023. On January 9, 2024, Long called a friend to notify them that she and ATD were being held in Greece by Dashti against their will. The police were called to couple’s apartment and petitioner was arrested. He was released on January 13, 2024. When petitioner returned home, he discovered that Long and ATD had left. Respondent and ATD live together and reside in the Northern District of New York.

The district court rejected Long’s argument that the Court lacks jurisdiction to hear Dashti’s petition because he lacked standing under the Hague Convention because he is not a citizen of a country whose accession to the Convention the United States has recognized. The Court agreed with Dashti that his citizenship is irrelevant to the disposition of his petition. The Hague Convention applies “to any child [younger than sixteen years of age] who was habitually resident in a Contracting State immediately before any breach of custody or access rights.” Convention Art. 3. In other words, the Convention does not contemplate the citizenship of the applicant, or the petitioner. Instead, the Convention applies “as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States.” Convention Art. 35.

Long argued that Dashti has failed to state a valid claim for wrongful removal under ICARA. To be entitled to relief under ICARA, the petitioner must prove his prima facie case of wrongful removal by a preponderance of the evidence. In particular, a petitioner must prove that: “(1) the child was habitually resident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner’s custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention.” Tereshchenko, 102 F.4th at 127 (quoting Gitter, 396 F.3d at 130–31). Upon review, Dashti’s verified petition for the return of ATD was dismissed. Petitioner did not prove by a preponderance of the evidence that he had custody of ATD at the time of his removal. Petitioner asserted that under Article 1515 of the Greek Civil Code, he enjoyed custody of ATD as of March of 2019. a review of the provision of the Greek Civil Code cited by petitioner reveals that he did not have “custody” of ATD. Dashti is not a Greek citizen. He was an Iranian refugee residing in Greece. To the extent that Greek Civil Code was applicable given petitioner’s immigration status, Article 1515 did not vest petitioner with custody of ATD at the time of the child’s removal from Greece. Article 1515 of the Greek Civil Code provides that parental care of children born outside of wedlock belongs to the mother. The Code provides that the father may “partake” in parental care but can exercise it only “if the mother’s parental care has ceased or if the mother cannot exercise it on legal or factual grounds.” Dashti’s verified petition asserted that he and Long were not married when ATD was born. The petition further asserted that they have never been married. Petitioner did not assert that respondent ceased or became unable to exercise her parental care of ATD. Therefore, petitioner did not prove that he had “custody” of ATD under Greek law. Nor did he prove that his custody rights were breached when respondent removed ATD from Greece to the United States.

District Court Cases in Districts Other than New York Reported in 2024

District Court Cases in Districts Other than New York Reported in 2024

[France] [Attorneys Fees & Costs] [not clearly inappropriate] [Significant financial hardship] [Motion for reconsideration denied]

Castang, v. Kim, 2024 WL 3360669 (District Court, N.D. Georgia, 2024)

[France] [Attorneys Fees & Costs] [not clearly inappropriate] [ Significant financial hardship]

Castang, v. Kim, 2023 WL 11845499 (District Court, N.D. Georgia, 2023).

[Ecuador] [Petition denied] [Habitual residence] [Failure to prove prima facie case] 

Sarzosa, v. Vergara, 2024 WL 3976846, (District Court, S.D. Texas, 2024)

[Finland] [Petition denied] [Habitual residence] [Failure to prove prima facie case] 

Tuomas 2024).

[Bahamas] [Petition denied] [Habitual residence] [Grave risk of harm and Age & Maturity defenses established] 

Johnson v. Johnson, 669 F.Supp.3d 1089, (District Court, D. Colorado, 2024) 

[Japan] [Motion to dismiss for forum non conveniens denied]

Abraham v. Samuel, 2024 WL 3091081 (District Court, C.D. Illinois, 2024).

[El Salvador] [Petition granted] [Now Settled and Grave risk of harm defenses not established]

Abrego, v. Guerra, 2024 WL 2732307, (District Court, W.D. Tennessee, 2024).

[Colombia] [Petition granted] [Habitual residence] [Grave risk of harm not established]

Aguirre, v. Tillman, 2024 WL 1230253 (District Court, D. Colorado. 2024)

[Argentina] [Petition denied] [Habitual residence] 

Alzu v. Huff, 2024 WL 3165485, (District Court, W.D. Missouri, 2024)

[Mexico] [Petition granted] Habitual residence]

Carmona v. Moreno, 2024 WL 579239 (District Court, M.D. North Carolina, 2024).

[Mexico] [Petition granted] Habitual residence]

De La Torre, v. Login, 2024 WL 4527139, (District Court, N.D. California,2024) 

[Mexico] [Petition denied] Now Settled and Grave risk of harm defenses established]

Delgado, v. Marquez, 2024 WL 517874 (District Court, N.D. California, 2024)

[Venezuela] [Petition denied] [Habitual residence] [Now Settled defense established]

Guevara v. Castro, 2024 WL 2967273 (District Court, N.D. Texas, 2024).

[Mexico] [Habitual residence] Petition granted]

Garcia, v. Posada, 2024 WL 1615029 (District Court, N.D. Texas, 2024).

[Israel] [Motion to Dismiss and Motion for Summary Judgment denied]

Goldstein, v. Simon, 2024 WL 2132881(District Court, S.D. Florida, 2024).

[Peru] [Petition granted] [Grave risk of harm defense not established]

Guzman, v. Brazon, 2024 WL 1841602 (District Court, W.D. North Carolina, 2024)

[Scotland] [Petition granted] [Attorneys’ fees and costs] [Not clearly inappropriate] [Reduction for block billing]

Harvey, v. Means, 2024 WL 4144155 (District Court, W.D. Washington, 2024).

[Japan] [Petition denied] [Habitual residence]

Hiroki, v. Hiroki, 698 F.Supp.3d 1023 (District Court, N.D. Ohio, 2023)

[Canada] [Petition granted] [Habitual residence [[Now settled defense not established]

Horacius v. Richard, 2024 WL 996097 (District Court, S.D. Florida, 2024).

[Cyprus] [Settled on consent order for return] [Attorneys fees and costs]

Isaias, v. Araque, 2023 WL 11228077 (District Court, D. New Jersey, 2023).

[United Kingdom] [Habitual residence] [Petition granted] [Grave risk of harm not established]

Keen, v. Bowley, 2024 WL 3259040 (District Court, C.D. California, 2024). 

[Spain] {Petition granted] [Attorneys fees and costs on default] [Full reimbursement granted] 

Llanso, v. Rivers, 2024 WL 776021 (District Court, S.D. Florida, 2024)

[Mexico] [Petition granted] [Consent and Grave risk of harm defenses not established]

Martinez, v. Contreras, 2024 WL 3594471, (District Court, D. Oregon, 2024).

[Mexico] [Petition granted] [Habitual residence] [Grave risk of harm not established]

Toth  v. Toth-Ledesma, 2024 WL 3568591, (District Court, M.D. Pennsylvania., 2024)

[Mexico] [Petition denied] [Habitual residence] [Failure to prove prima facie case]  

Morrison, v. Chang, 2024 WL 1765675, (District Court, W.D. Washington, 2024)

[Mexico] [Petition denied] [Habitual residence] [Failure to prove prima facie case] 

Nolla, v. Vargas, 2024 WL 2976749, (District Court, E.D. Wisconsin, 2024)

[France] [Motion to dismiss under Fugitive Disentitlement doctrine granted]

Paris, v. Brown, 2024 WL 3742317 (District Court, D. Oregon, 2024).

[Australia] [Motion to strike under doctrine of comity denied]

Pedersen, v. Shriver, 2024 WL 3718189 (District Court, N.D. Illinois, 2024).

[Brazil] [ Petition denied] [Retention not wrongful]

Pereira, v. Gunter, 2024 WL 733896 (District Court, M.D. Alabama, 2024)

[Temporary restraining order granted]

Rodriguez, v. Noriega, 2024 WL 689611(District Court, D. Minnesota, (2024)

[Ecuador] [Petition denied] [Habitual residence not established]

Sarzosa, v. Enriquez, 2024 WL 3976846 (District Court, S.D. Texas, 2024).

[Petition dismissed] [Lack of subject matter jurisdiction] 

Saydlin, v. Ashby, 2024 WL 759302 (District Court, M.D. Pennsylvania., 2024)

[Mexico] [Petition dismissed pursuant to the Younger v. Harris abstention doctrine]

Schoner, v. Schoner, 2024 WL 3164524 (District Court, S.D. Ohio, 2024)

[Mexico] [Petition denied] [Habitual residence]

Staggers, v. Timmerman, 2024 WL 3390567 (District Court, S.D. Iowa, 2024).

[Mexico] [Petition granted] Attorneys fees and costs on default] [Not clearly inappropriate] 

Martinez, v. Contreras, 2024 WL 4528208, (District Court, D. Oregon, 2024).

[Cyprus] [Motion to vacate default granted] 

Isaias v. Araque, 2023 WL 11959851, United States District Court, D. New Jersey, 2023}.

Mene v Sokola, 2024 WL 4227788 (S.D. New York, 2024)[Poland][Petition denied][Grave risk of harm]

 

 

In Mene v Sokola, 2024 WL 4227788 (S.D. New York, 2024) the district court denied the Petition of Sebastien Funez Mene which sought the repatriation from the United States to Poland of the parties’ only child, a minor referred to herein as “BFS,” who is alleged to have been unlawfully removed from Poland by Respondent in early 2022.

 

The district court explained that throughout these Hague Convention proceedings, there emerged incontrovertible evidence of Petitioner’s severe, unrelenting psychological and physical abuse of Respondent, often executed in the presence of BFS. These proceedings laid bare numerous instances of Petitioner’s psychological and, to a lesser degree, physical abuse of BFS himself, as well as of other children and animals. Despite Petitioner’s repeated (and at times perjurious) disavowals of the same, evidence surfaced of Petitioner’s extensive criminal history in France and elsewhere, including convictions stemming from years of stalking and harassment of former intimate partners and their families; this criminal history betrayed Petitioner’s propensity to disobey court mandates generally and protective orders in particular. Petitioner revealed himself to be an unreformed narcissist, incapable of acknowledging, let alone appreciating, the consequences of his actions, who has audaciously pursued (mostly groundless) legal actions against Respondent in this and other courts in total disregard for his own misconduct. The Court denied the Petition, finding that repatriation of BFS to Poland would expose the child to a grave risk of harm pursuant to Article 13(b) of the Hague Convention.

 

The Court explained that the only trial testimony the Court found wholly incredible was that of Petitioner. Petitioner repeatedly, and egregiously, lied to this Court throughout these proceedings, including at trial. The Court found that the degree and consistency of Petitioner’s dishonesty with this Court constitutes grounds for the blanket discrediting of his trial testimony.

 

Petitioner Sebastien Funez Mene was born in France in or around 1973. He lived most of his life in France. In 2015, after meeting Respondent, Petitioner moved to Poland and has resided there ever since. Respondent Kaja Sokola was born in Wroclaw, Poland on May 4, 1986. At the age of thirteen, she began modeling professionally; she thereafter lived in New York City “on and off” between the ages of sixteen and twenty-three.  At twenty-three, Respondent returned to Poland to attend the University of Social Science in Wroclaw, where she received a Bachelor’s Degree in Psychology and a Master’s Degree in Clinical Psychology, completing her studies in 2014. The Respondent was a certified addiction and co-dependence psychotherapist and Gestalt psychotherapist.  Respondent had a serious heart condition, namely, an aortic aneurysm, and suffers from arrhythmia.  The parties’ son, BFS, was born in Poland in 2019; today, he was around five-and-a-half years old. BFS had general developmental delays for which he received a variety of special services. Petitioner and Respondent met in May 2015. the first time in person when Petitioner came to visit her in Warsaw, Poland in June 2015. Two days into his visit, Petitioner proposed to Respondent. Respondent happily accepted his proposal. Days later, on June 16, 2015, the pair were married in a church. Shortly after the wedding, Petitioner flew to Lyon, France, where he was then residing with his parents; though the sudden departure upset Respondent, Petitioner assured her that he “had an urgent and important case” that required him to get back to France immediately. In August 2015, Respondent flew to Lyon to rejoin Petitioner. She expressed a desire to meet his family, but Petitioner declined to introduce her to his parents, saying he “didn’t have the time.” After two hours in Lyon, Petitioner drove the couple over 1,700 kilometers back to Warsaw, Poland.  Petitioner thereafter moved into Respondent’s Warsaw apartment, and the parties resided together for the majority of their relationship, with the exclusion of a brief period of separation in 2020-2021. The petitioner had not returned to France since the August 2015 trip. Petitioner underwent surgery on his back shortly after arriving in Poland in September 2015. The pair then had a civil wedding ceremony in a city just outside of Warsaw. At the time of the wedding, Respondent was twenty-nine years old, and Petitioner was forty-two. In 2018, Respondent became pregnant with BFS, as a result of Petitioner’s sexual abuse. The parties stipulated to the following facts: “On March 14, 2022, BFS’s country of ‘habitual residence’ was Poland as used within the context of the [ ] Convention.”  “On March 14, 2022, Petitioner [ ] had rights of custody as defined by Article 5 of the [ ] Convention.”  “On March 14, 2022, Petitioner [ ] would have been exercising his rights of custody pursuant to Article 3(b) of the [ ] Convention if not for the retention of BFS.”  “The retention of BFS on March 14, 2022, was wrongful pursuant to Article 3 of the Hague Abduction Convention.”  The Court found that Petitioner has established a prima facie case for the repatriation of BFS under the Convention.

 

The Court found that throughout the parties’ relationship, Petitioner was psychologically, financially, and physically abusive toward Respondent.  The Court explained that Article 13(b) of the Convention relieves a court from the obligation to order repatriation where “there is a grave risk that ... return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Hague Convention, art. 13(b). Pursuant to ICARA, to invoke the so-called “grave risk exception” or “grave risk defense,” a responding parent must establish by “clear and convincing evidence” that such a risk exists. 22 U.S.C. § 9003(e)(2)(A). Determination of whether a respondent has made this showing is “fact-intensive,” and courts in this Circuit are advised to interpret the grave risk exception “narrowly, lest it swallow the rule.” Souratgar v. Lee, 720 F.3d 96, 103-104 (2d Cir. 2013).  To qualify as a “grave risk of harm” for the purposes of Article 13(b), “the potential harm to the child must be severe.” Swett, 2024 WL 2034713, at *41 (quoting Souratgar, 720 F.3d at 103) (alterations adopted). In this Circuit, the kinds of situations that constitute a grave risk of harm are those in which “the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation,” as opposed to those in which “repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child’s preferences[.]” Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001). Further, whether a grave risk of harm exists depends “not only [on] the magnitude of the potential harm but also the probability that the harm will materialize.” Souratgar, 720 F.3d at 103 (citing Van De Sande v. Van De Sande, 431 F.3d 567, 570 (7th Cir. 2005)).

 

Petitioner’s abuse of Respondent compelled a finding that BFS was at grave risk of harm, as did the facts that BFS had been, and would be, exposed to that abuse. Petitioner’s history of difficulty with impulse control, predilection to intense fits of anger, and physical and psychological abuse of Respondent, often in the presence of BFS, was thoroughly supported by the record. So too was Petitioner’s psychological and, at times, physical abuse of BFS himself. The Court found that Respondent had sufficiently invoked the grave risk defense. See, e.g., Davies v. Davies, 717 F. App’x 43, 48-49 (2d Cir. 2017) (summary order) (affirming grave risk determination “premised on overwhelming evidence of [petitioner]’s extreme violence and uncontrollable anger, as well as his psychological abuse of [respondent] over many years, much of which was witnessed by [the child], and the fact that [petitioner] frequently screamed and yelled at [the child] for no legitimate reason”).

 

The finding in Davies v. Davies is illuminative, wherein the Second Circuit affirmed the trial court’s grave risk determination. In that case, the record demonstrated that the petitioner was quick to anger at even the slightest of inconveniences, such as when the respondent “didn’t do the dishes or if the bedroom was messy or if there were clothes on the floor.”  In those instances, the petitioner would scream in the respondent’s face and slam and punch doors. The record also supported the fact that the couple’s child had been a frequent witness to the petitioner’s abuse of the respondent, and that, in some instances, the petitioner had screamed at the child himself. And while the petitioner had never punched or beaten the respondent, he did exhibit violence towards others, including animals, On that record, the Second Circuit affirmed a finding of grave risk in a summary order. The petitioner in Davies and Petitioner in this case exhibited remarkably similar behavior patterns. The record showed that Petitioner’s violent behavior, which included pushing, grabbing, kicking, and hitting Respondent, exceeded that found in Davies. The record also featured several additional aggravating factors not present in Davies, namely, the few isolated instances of Petitioner’s physical abuse of BFS, as well as Petitioner’s well-established criminal history of obsessively targeting former romantic partners. Accordingly, the Court found that the repatriation of BFS to Poland would expose him to a real risk of both psychological and physical harm, and as such is inappropriate.

 

The Court’s analysis of the harm posed by the repatriation of BFS did not end there. The Second Circuit acknowledged that a grave risk of harm, and specifically, psychological harm, can exist where an abducted child with a cognitive disability has been enrolled in specific developmental programming in his new country and removing him from that programming would result in “a severe loss of the skills that he had successfully developed.” Ermini, 758 F.3d at 166. In that decision, facing for the first time the question of whether “this kind of psychological harm” fell within the scope of Article 13(b), the Second Circuit answered in the affirmative. The Second Circuit further noted that “sister signatories [to the Hague Convention] have found the risk of harm ... to be sufficiently grave” in similar circumstances. Here, as the Court detailed in its BFS haf general developmental delays for which he receives extensive therapy, including special education services and speech-language therapy. Moreover, since arriving in the United States, there has been a meaningful improvement in BFS’s “emotional, intellectual, [and] motor skills,” inter alia. Furthermore, as Dr. Fernandez opined, “[a]ny disruption to [this programming] would risk the development of mental health symptoms [ ] such as anxiety and depression,” which “could disrupt [BFS’s] progress.” While the Court did not opine herein on whether BFS’s loss of access to the services he currently received would, in and of itself, constitute a grave risk of harm upon which the Article 13(b) exception may be invoked, the Court did find that such loss supported the Court’s overall finding herein that repatriation poses a grave risk of harm to BFS.

 

The Court found that  Ameliorative Measures Available in Poland Are Not Sufficient to Protect BFS. The Court heard extensive testimony regarding the Polish legal system and its ability to combat domestic abuse. Collectively, the parties’ experts painted a picture of a substantial, multifaceted system of protection for victims of domestic violence in Poland, albeit one that, in practice, operates slowly and inefficiently and bears substantial blind spots, particularly when it comes to the protection of minor children. This finding alone left the Court uncertain that the Polish justice system could eliminate the grave risk of harm posed to BFS by repatriation. The Court found that Petitioner was unlikely to abide by any protective order put in place by a Polish court upon BFS’s repatriation, rendering the salutary effect of such a measure dubious for the purposes of the grave risk analysis. See also Walsh, 221 F.3d at 221 (holding that although the court had “no doubt that [courts of the home country] would issue appropriate protective orders,” repatriation was denied in part because the spouse’s habitual disobedience of such orders would render them ineffective). The Court emphasized Petitioner’s total unwillingness to accept any responsibility for his actions and his lack of understanding of (or reflection on) the same. Petitioner himself described this case as a “domestic violence fairy tale.” (“There have been no incidents of domestic violence perpetrated by Petitioner upon Respondent, in the presence of BFS or otherwise.”)). At trial, Petitioner largely denied having any role in his and Respondent’s marital issues: for instance, he testified that he never started an argument with Respondent after the birth of BFS (a period of almost three years before Respondent fled to the United States). Moreover, when Petitioner did admit that some incident described by Respondent or Respondent’s witnesses had occurred in at least some respect, Petitioner sought to downplay what had happened or to justify his actions, or proceeded to give unresponsive testimony instead. (proceeding to tell a story about a different dog when asked about the incident in which he yelled at Respondent’s mother for feeding the parties’ dogs)).

Because Petitioner refused to accept fault or responsibility for his actions, the Court was doubtful that any therapeutic interventions available in Poland would deter Petitioner from continued abuse or reduce the potential harm to BFS posed by repatriation. See Morales v. Sarmiento, No. 23 Civ. 281 (KPE), 2023 WL 3886075, at *13 (S.D. Tex. June 8, 2023) (finding ameliorative measures insufficient where the petitioner “expressed neither remorse nor reflection about his actions”).

 

 

Goldstein v. Simon, Not Reported in Fed. Rptr., 2024 WL 4284921 (11th Circuit, 2024)[Israel][Petition denied] [Habitual residence]

In Goldstein v. Simon, Not Reported in Fed. Rptr., 2024 WL 4284921 (11th Circuit, 2024) the Eleventh Circuit affirmed the judgment of the district court which denied the petition for return.

Brooke Goldstein and Matthew Simon, the mother and father, had three children together. All three children were born in New York, but the family often traveled domestically and internationally. Before 2020, the family lived in Brooklyn, the Hamptons, and Los Angeles. The family moved to Israel in December 2020, and halfway through 2021, the children became Israeli citizens and obtained Israeli passports. During the next few years in Israel, the children visited doctors, were enrolled in schools, and participated in extracurricular activities. The children speak English, but not Hebrew. The family went on vacation to Italy in October 2023, and during that time, Hamas attacked Israel. As a result, the family decided to move elsewhere because of the war. They settled in Miami where the children enrolled in school and participated in extracurricular activities. The children visited doctors and spent time with extended family in the area. For the 2024–2025 school year, the children are enrolled in schools in Miami and Israel.

In late 2023, the mother and father began to disagree about keeping the family in Miami versus returning to Israel. As a result, the mother filed an ICARA petition in federal district court seeking to require the father to return the children to Israel. The mother and father continued living together in Miami with their children when the mother filed her petition, alleging the father’s wrongful retention. The district court denied the petition. It determined that the children’s habitual residence was Florida. Alternatively, the district court concluded that, even if the children’s habitual residence were in Israel, the father did not wrongfully retain the children or prevent the mother from taking them to Israel.

 

          The Court observed that a child’s habitual residence presents ... a ‘mixed question’ of law and fact—albeit barely so.” Monasky, 589 U.S. at 84. This review is considered “mixed” because it first reviews, under a de novo standard, whether the judge applied the correct legal standard to determine the habitual residence.  If the trial judge correctly applies the “totality of the circumstances” standard to determine habitual residence, then it reviews the factual findings made by the court for clear error. Review for clear error is highly deferential. This deference is overcome only when “ ‘on the entire evidence’ we are ‘left with the definite and firm conviction that a mistake has been committed.’ ”

 

          It rejected the mothers arguments that (10 Israel was the correct habitual residence of the children; (2) that  the father wrongfully retained the children by refusing to approve of their return to Israel; and (3) that even though the district court did not reach the issue, that the father failed to present sufficient evidence that the children would be in grave danger if returned to Israel. The father disagrees with the mother’s contentions. The Court started and ened with the first issue. It pointed out that the Hague Convention, as implemented by ICARA, applies to “Contracting States,” which, here, are the United States and Israel. So, even though the district court’s determination was specific to Florida, we must determine whether the district court clearly erred in finding that the United States is the children’s habitual residence. Because it concluded the district court did not clearly err in finding the children’s habitual residence to be in the United States, we need not address the other issues on appeal. The district court correctly applied the totality of circumstances as the legal standard to determine habitual residence. This standard is a “fact-driven inquiry” depending on the “specific circumstances of the particular case.” Monasky, 589 U.S. at 78. The only question is whether the district court clearly erred in any fact findings. The mother points to several fact findings that she says are clearly erroneous. We disagree.

 

First, it rejected the mother’s argument that the district court used an incorrect wrongful retention date in its habitual residence determination. Habitual residence is determined “at the time of removal or retention[.]” Monasky, 589 U.S. at 77. To establish this date, ICARA requires the mother to prove, by a preponderance of evidence, when the father wrongfully retained the children. See Seaman, 766 F.3d at 1257. The district court found that the mother neither alleged a specific date nor did she dispute the father’s proposed date. Based on this finding, the district court determined that the date of the filed petition would serve as the date of wrongful retention. Although the record reflects a disagreement between the mother and father before the filed petition, it could not say the district court clearly erred in its finding that, if the father wrongfully retained the children, he did so as of the date of the mother’s petition.

 

     It also rejected her argument that the district court disregarded the parties’ shared intent (or lack thereof) when they returned to the United States from Israel. Shared intent is not “dispositive[,]” Monasky, 589 U.S. at 78, and “it cannot alone transform the habitual residence.” Ruiz v. Tenorio, 392 F.3d 1247, 1253 (11th Cir. 2004). Contrary to the mother’s argument, the district court found that the parties shared an intention of staying in Florida until the war in Israel ended—or, at a minimum for six months to a year. Ample evidence in the record supported that intention, and the mother filed her petition during this period. Accordingly, it was not left with a “definite and firm conviction” that the court erred..

 

The mother contended that the children’s habitual residence never changed from Israel. It rejected this argument. It could not say that the record compelled that finding. The mother had to show, by a preponderance of evidence, that the children were “habitual resident[s] of [Israel] immediately before retention in the United States[.]” Chafin v. Chafin, 742 F.3d 934, at 938 (11th Cir. 2013) To determine the children’s habitual residence, the district court relied on “objective facts,” Ruiz, 392 F.3d at 1255, like the children’s enrollment in schools and extracurriculars in the United States. It also based its finding, in part, on the father’s “credible testimony,” to conclude that the children’s residence was the United States at the time of the filed petition. When a district court makes determinations based on witness credibility, we give “even greater deference to the trial court’s findings[.]”. Being “sensitive to the unique circumstances of the case[,]” Monasky, 589 U.S. at 78 (quoting Redmond v. Redmond, 724 F.3d 729, 744 (7th Cir. 2013)), the district court also considered the family’s transitory history—they had often moved to different cities, states, and countries for short periods of time—as relevant to whether the children had established a habitual residence in the United States. In light of the unique circumstances of this case, the district court determined that the mother did not meet her burden in demonstrating that Israel was the children’s habitual residence at the time of the alleged retention, and we cannot say the district court committed clear error in making that determination.

 

Finally, it rejected the mother’s challenge to the district court’s assessment of the children’s acclimatization to the United States. Applying the Monasky factors, the district court considered, among other facts, the children’s extracurricular activities, the location of their belongings, and their relationship with family in Florida. While the mother argued that the youngest child could not have acclimated, it could not say the district court erred in evaluating this evidence as to the children. Facts pertaining to the children’s acclimatization to the United States are relevant to assess a child’s habitual residence, and therefore, the district court did not clearly err in its consideration of them.

 

 

Horacius v Richard, Not Reported in Fed. Rptr., 2024 WL 3580772 (11th Circuit, 2024)[Canada] [Petition granted] [Habitual residence] [Exercise of discretion to order return dispositive]

In Horacius v Richard, Not Reported in Fed. Rptr., 2024 WL 3580772 (11th Circuit, 2024) the Eleventh Circuit affirmed the of the district court, granting Eric John Horacius’s petition for the return of Richard’s and Horacius’s minor child, A.H., to Canada.

Richard and Horacius were married in Canada in 2018. Horacius was a dual citizen of the United States and Canada. Richard and A.H. were  Canadian citizens. At the time of A.H.’s birth, in March 2020, Richard and Horacius lived together in Quebec. Around December 2020, when A.H. was nine months old, Richard and Horacius took A.H. to the Dominican Republic to visit Richard’s parents. The parties left the Dominican Republic in February 2021 and traveled directly to Florida. From February 2021 until the alleged wrongful retention began in March 2022, A.H. lived with Richard and Horacius at the home of Richard’s sister in Miramar, Florida, “by mutual agreement of the parties.” A.H. has biological brothers, grandparents, and extended family in both Canada and Florida. While living with Richard and A.H. in Florida, Horacius: (1) obtained a Florida driver’s license using Richard’s sister’s Miramar address; (2) applied for and received a notary commission in Florida using the Miramar address; (3) obtained a Florida concealed weapons permit using the Miramar address; and (4) registered to vote in Florida and maintained active voter status there at the time of trial. Horacius also filed affidavits of support with United States immigration authorities for Richard and A.H. to become permanent United States residents, and he listed the Miramar address as his residence on the affidavits. In January 2022, after A.H. had been living in Florida for nearly a year, Horacius left and returned to Canada alone. The following month, in February 2022, Richard filed a divorce petition against Horacius in Florida state court. Horacius then purchased and sent airline tickets for Richard and A.H. to return to Canada around March 2022, but Richard refused to return.

 

Richard’s refusal to return with A.H. to Canada, in March 2022, marked the point at which the alleged wrongful retention began. Horacius filed his ICARA petition in November 2023. By the time of trial, in January 2024, A.H. had been living in Florida for nearly three years. The district court granted the petition.

 

On appeal, Richard argued that the district court erred in (1) concluding that A.H.’s habitual residence was Canada; (2) determining that she had violated Horacius’s rights of custody under Canadian law; and (3) rejecting her defense based on A.H.’s well-settled status in the United States. The Eleventh Circuit affirmed the district court’s factual findings and its exercise of discretion to return A.H. to Canada.

 

Although neither the Hague Convention nor ICARA defines the term “habitual residence,” precedent interpreting the phrase has looked to whether a child has lived in the place with “a sufficient degree of continuity to be properly described as settled.” (quoting Ruiz v. Tenorio, 392 F.3d 1247, 1252 (11th Cir. 2004)). When analyzing whether a child’s habitual residence has changed from one country to another, we have “held that ‘[t]he first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind.’ ” “The ‘unilateral intent of a single parent,’ ” is not enough, standing alone, “to change a child’s habitual residence.”. Instead, “a court must ... determine whether the parents or guardians ... shared an intent to change the child’s habitual residence.” Richard’s first argument was that the district court erred in concluding that A.H.’s habitual residence was Canada. She argued that A.H. spent significantly more time in the United States than in Canada, and she pointed to several facts in the record that supported the conclusion that she and Horacius shared an intent to live in the United States. She noted that she and Horacius had obtained an early termination of the lease of their condominium in Canada; that Horacius obtained a Florida driver’s license and Florida notary public commission using their address in Florida; and that Horacius sought to buy a home in Florida. The district court found Richard not to be credible regarding the parties’ intention to relocate to the United States, and the Court held it must afford that finding significant deference. The district court also correctly identified the applicable “totality-of-the-circumstances standard,” so review of its conclusion about A.H.’s habitual residence was only for clear error. Monasky, 589 U.S. at 84. While review of the record evidence showed that it is a close call whether A.H.’s habitual residence was Canada, rather than the United States, it did not have a “definite and firm conviction that a mistake has been committed.” Instead, the record contains sufficient evidence to support the district court’s conclusion that Canada was A.H.’s habitual residence. Among this evidence was the fact that Richard stated that the family’s stay would be temporary to obtain a B-2 visa when she entered the United States. In addition, Horacius’s and Richard’s belongings remained in a storage unit in Canada during their stay in Florida. Although Richard applied for American citizenship during her time in Florida, that application did not weigh heavily in her favor, as citizenship and residence are not coterminous. For instance, Horacius was a citizen of both Canada and the United States but was only a resident of Canada. Given the facts and the district court’s credibility determination, it could not be said that the district court’s view of the evidence was an impermissible one. Therefore, Richard had not shown clear error in the district court’s conclusion that A.H.’s habitual residence was Canada.

 

Richard did not dispute that Horacius had custody rights relating to A.H. under Canadian law, nor argued that he was not exercising those rights when the retention of A.H. began. She only disputed that her retention of A.H. breached Horacius’s custody rights. However, she conceded at trial that Horacius “should be involved in major decisions involving A.H.” and that she had made “major decisions such as schooling and medical treatment for A.H. without first speaking” to him. Richard’s counsel also conceded at oral argument that Horacius was attempting to exercise his rights of custody both before and after he left Florida, including by insisting that A.H. return to Canada. The Court concluded that these concessions, when considered with the facts described above and our review of Canadian law, show that the district court’s finding that A.H.’s retention violated Horacius’s custody rights was, again, a “permissible view[ ] of the evidence.”.Because Richard had not shown clear error in this respect either, the Court affirmed the district court’s findings that A.H.’s retention breached Horacius’s “custody rights under the law of Canada” and that Horacius “had actually been exercising those custody rights at the time of [A.H.’s] retention.” Horacius, therefore, established the second and third elements of his prima facie case.

 

The district court found that Richard had not shown that A.H. was well-settled in the United States. Even if she had, the district court ruled that it would exercise its discretion to order A.H.’s return. See Fernandez, 909 F.3d at 363. Because the latter ruling was dispositive, the Court did not address Richard’s well-settled affirmative defense. See Fla. Wildlife Fed’n Inc. v. United States Army Corps of Eng’rs, 859 F.3d 1306, 1316 (“We may affirm the district court’s ruling on any basis the record supports.”). Richard’s briefing on appeal does not challenge the district court’s alternative conclusion that it would exercise its discretion and order A.H. returned to Canada notwithstanding Richard’s well-settled defense. Thus, it concluded that any challenge to the district court’s ruling on that front was forfeited.

 

Castang v Kim, Not Reported in Fed. Rptr., 2024 WL 3949445 (11th Cir., 2024)[France][Petition granted][Attorneys fees and Costs][Dire financial condition not clearly inappropriate]

 

In Castang v Kim, Not Reported in Fed. Rptr., 2024 WL 3949445 (11^th Cir., 2024) the Eleventh Circuit held that the district court did not abuse its discretion in awarding attorneys fees.

Igor Castang and Katherine Kim had a child who was born in France in 2018. In 2021, a French court directed the two to share custody of the child. Their relationship deteriorated, and without telling Castang, Kim took the child to Atlanta, Georgia, in 2022. Castang filed an ICARA petition, which the district court granted. It ordered the father to be allowed to take physical custody of the child to return the child to France. Kim appealed and the Eleventh Circuit affirmed the district court. Castang then moved the district court for an award of attorney’s fees and costs under Section 9007(b)(3), which provides that after ordering the return of a child, the district court “shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner ... unless the respondent establishes that such order would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3). Kim opposed that motion. The district court granted Castang’s motion but reduced the fee award based on Kim’s financial hardship. It first determined that the proper award based on the hours Castang’s attorneys worked, their hourly rates, and other costs incurred was $144,513. It then considered Kim’s financial circumstances—that she represented that she had no income or assets, could not afford to travel to visit her child in France, was $5,613.87 in debt, her bank account had a monthly deposit of $430.77, and withdrawals of $392, and that she had no annual income. Given her situation, the district court determined that an award of $144,513 was “clearly inappropriate” because it would cause her a significant financial hardship that would impact her ability to care for her child, so it reduced the award by one-third to $96,342. It reasoned that although she was in a dire financial position, she likely had some income to sustain her living in the United States, and she presented no evidence that she could not work in the United States to earn income and pay an award.

 

The Court explained that it reviews an award of attorney’s fees for abuse of discretion, and questions of law in reaching a fee award de novo.  Kim’s first argument that ICARA does not allow for the reduction of a fee award was rejected as no authority supported Kim’s argument. District courts have the authority to reduce a requested award of attorney’s fees and costs.

 

Kim’s second argument that the district court lacked sufficient evidence to support its pre-reduction award of $144,513 was rejected. She argued that the district court impermissibly relied on affidavits that opined on other attorneys’ hours worked and had no other evidence to consider for those hours. In calculating an award of fees and costs, district courts may consider billing records and affidavits, and they may rely on their knowledge and expertise in determining a fee award. See Barnes, 168 F.3d at 428. And when, as here, a party opposing a fee award makes a specific objection, the district court’s order “should consist of more than conclusory statements.” But “[u]ltimately, the computation of a fee award is necessarily an exercise of judgment, because ‘[t]here is no precise rule or formula for making these determinations.’ ” It could not be said that the district court abused its discretion in determining that this was a reasonable amount. And even if it did, given the district court’s reduction of the award to significantly less than the $122,199.50 for which the district court considered affidavits, any error was harmless. See Skanska USA Civil Se. Inc. v. Bagelheads, Inc., 75 F.4th 1290, 1309 (11th Cir. 2023) (“An error is harmless unless ‘it affects the substantial rights of the parties’ such that the reviewing court cannot confidently say that ‘the judgment was not substantially swayed by the error.’ ”).

 

Finally, it rejected Kim’s argument that she presented evidence that any award would impose a financial hardship on her that would prevent her from caring for her child, and thus any award was “clearly inappropriate.” She pointed to evidence that she had no income or assets, could not afford to travel to visit her child in France, was $5,613.87 in debt, had a monthly deposit of $430.77 and withdrawals of $392, and had no annual income. The Court noted that it has  recognized that a relevant consideration for whether an award is clearly inappropriate is whether “a fee award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child.” Rath, 898 F.3d at 1311. Although it had not considered what qualifies as a “financial hardship,” district courts in the circuit had. They consider the respondent’s financial status, current and future employment, and any special circumstances that could prevent the respondent from paying an award. And when district courts find that a requested fee award would impose a financial hardship, they often reduce the fee award rather than declining to impose an award altogether. The district court found that an award of $144,513 would impose a financial hardship on Kim that would impair her ability to care for her child, so it reduced the award by one-third. In coming to that conclusion, it considered the evidence Kim now relied on about her financial status. It also reasoned that she likely had some source of income to sustain herself and the absence of any evidence that she could not work in the United States.  The Court acknowledged that Kim presented evidence of a dire financial position, but could not say the district court abused its discretion in concluding that the reduced award was not “clearly inappropriate.” Absent some evidence of an inability to earn income, the district court was within its discretion to find that Kim had the ability to work to support herself and pay the costs and fees.