Monday, May 23, 2016

Hopkins v Webb, 2016 WL 2770553 (W.D. Wisconsin) [Northern Ireland] [Federal & State Judicial Remedies] [TRO] [Death of Respondent]

          In Hopkins v Webb, 2016 WL 2770553  (W.D. Wisconsin) Petitioner seeking  the return of C.H., the minor child of Mr. Hopkins and respondent, Jackie Lynn Webb initiated this case by filing an ex parte motion for entry of a temporary restraining order. After the court determined that an ex parte TRO was warranted. Ms. Webb and C.H. could not be located but counsel appeared for Ms. Webb. Counsel informed the court that Ms. Webb passed away very recently and that C.H. was  the subject of a temporary custody order of the Sumner County, Tennessee, court. Pursuant to the order, C.H. was in the temporary legal custody of the Tennessee Department of Children’s Services (TDCS). Counsel for Ms. Webb indicated that a member of Ms. Webb’s family intended to seek custody of C.H. and intended to resist Mr. Hopkins’ attempts to return C.H. to Northern Ireland.  To preserve Mr. Hopkin’s right to a decision on the merits of his petition, and to ensure that C.H. was  available for return to his father’s custody, should that be the ultimate result of these proceedings, the court  issued a TRO to C.H.’s current custodian, TDCS, and transferred the case to the United States District Court for the Middle District of Tennessee, where C.H. was currently located. See 22 U.S.C. § 9003(b) (“Any person seeking to initiate judicial proceedings under the [Hague] Convention for the return of a child ... may do so by commencing a civil action ... in the place where the child is located at the time the petition is filed.”). 

Tann v Bennett, --- Fed. Appx. ----, 2016 WL 2753994 (2d Cir .,2016)[United Kingdom][Petition denied] [Age & Maturity]

In Tann v Bennett, --- Fed. Appx. ----, 2016 WL 2753994 (2d Cir .,2016) the Second Circuit, in a summary order, affirmed a judgment which denied the petition of Lisa Tann, a citizen of the United Kingdom who resided in Northern Ireland and was the mother of now 14–year–old J.D., dismissing her petition for J.D.’s repatriation and allowing J.D. to remain in the United States with respondents George Alan Bennett and Miranda Bennett, J.D.’s father and stepmother, pending a custody determination by New York State. It rejected Tann argument that the district court erred in relying on J.D.’s objection to returning to Northern Ireland in denying her petition. It observed that Article 13 of the Hague Convention “permits a court to refuse to order the return of [a wrongfully retained] child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Blondin v. Dubois, 238 F.3d at 166. Whether a child is “old enough and mature enough” for his “views to be considered” is a question of fact, as is the determination that a child actually objects to returning to his country of habitual residece. It pointed out that it reviews de novo the district courts interpretation of the Hague Convention and its application to the facts it has found, and the courts underlying factual determination only for clear error. 
The Court found no clear error in the district court’s conclusion that J.D. had “attained an age and degree of maturity at which it [wa]s appropriate to take account of [his] views.” Hague Convention, art. 13. After observing then nearly thirteen-year old J.D.’s responses and demeanor during an in camera interview, the district court found the child “to be a very intelligent and decent young man,” and concluded that “J.D.’s desire to remain in New York should be respected” pending resolution of the state custody proceedings. In so ruling, the court implicitly found J.D. sufficiently mature for the exception to apply. “This finding, relying as it (in part) did on the Court’s personal observations of [J.D.], is of the sort peculiarly within the province of the trier of fact and is entitled to considerable deference.” Nothing in the transcript of J.D.’s in camera interview suggested that the court’s maturity finding was clearly erroneous. Because the Magistrate Judge was in the best position to gauge J.D.’s maturity level, it did not disturb his finding.
The Second Circuit rejected the argument that J.D. expressed only a “preference” to stay in the United States, as opposed to a specific objection to returning to Northern Ireland, the record shows otherwise. J.D. testified that (1) he did not always feel safe in Northern Ireland, (2) he “would really feel bad” if he were returned, and (3) he might hurt himself or others if he was forced to return. Nor did it find error in the district court’s refusal to consider that respondents’ wrongful retention of J.D. contributed to J.D.’s preference for living in the United States. Nothing in its precedent required such consideration. Rather, its precedent instructs, without qualification, that “a court may refuse repatriation solely on the basis of a considered objection to returning by a sufficiently mature child.” Blondin v. Dubois, 238 F.3d at 166.

Souratgar v Fair, 2016 WL 1168733 (2d Cir., 2016) [Costs & Expenses] [Clearly inappropriate]

In Souratgar v Fair, 2016 WL 1168733 (2d Cir., 2016) the Second Circuit reversed a judgment ordering Respondent Lee Jen Fair to pay to the prevailing petitioner-appellee, Abdollah Naghash Souratgar, $283,066.62 in expenses under the International Child Abduction Remedies Act, which directs district courts to issue such an order “unless the respondent establishes that such order would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3).  It held that the determination requires district courts to weigh relevant equitable factors, including intimate partner violence. Having reviewed all relevant equitable factors, it concluded that, because the respondent showed that the petitioner engaged in multiple, unilateral acts of intimate partner violence against her and that her removal of the child from the habitual country was related to that violence, and because there were no countervailing factors in the record in favor of the petitioner, such an award would be “clearly inappropriate.” 
After Lee departed Singapore, Souratgar filed a petition in the Southern District of New York seeking the return of Shayan to Singapore as provided by the Hague Convention and ICARA. After a hearing the district court granted the petition after concluding that Souratgar had established a prima facie case under the Hague Convention and that Lee had failed to prove either of her two asserted affirmative defenses. See Souratgar I, 2012 WL 6700214, at *4–17. Lee appealed, and a the Court affirmed the judgment. Souratgar II, 720 F.3d at 100. Souratgar then moved in the district court for an order directing Lee to pay his expenses related to Shayan’s return to Singapore. Lee argued that an order directing her to pay Souratgar’s expenses would be clearly inappropriate for two reasons: (1) “Souratgar’s past abusive behavior” against Lee and (2) Lee’s “inability to pay.”  The district court determined that neither argument was persuasive. 

Lee had argued that Article 13(b) should apply as a defense to return because, if returned to Singapore, Shayan would face a grave risk of physical and psychological harm due to Souratgar’s violence. The district court ultimately disagreed, finding no risk of physical or psychological harm to Shayan.  In coming to this conclusion, the district court considered and made numerous factual findings about each party’s allegations of abuse at the hands of the other. 

The district court considered Lee’s allegations that Souratgar: (1) on May 31, 2008, when Lee was pregnant, “hit and kicked her on her head and body,” ; (2) in March 2009, “struck her multiple times on her right shoulder while the child was breastfeeding in her arms,” ; (3) during an argument in late 2009 or early 2010, “took the child out of her arms and started to beat her on the head and back,” ; (4) on January 5, 2010, followed Lee to a neighbor’s house and pulled her back into the marital home, where Souratgar “continued to beat her” causing “scratches and redness on her arms where he had grabbed her,” ; (5) on August 15, 2011, when Lee met Souratgar at his office to pick up packages that belonged to her, “pulled [Lee’s] hands and also pushed” her, from which she “suffered some bruises and scratches on” her chest and hands,; (6) on November 22, 2011, chased Lee by car, attempting to overtake her vehicle “in a reckless and dangerous manner,” and (7) “forced [Lee] to engage in certain sexual acts,”  The district court discredited some of these allegations, including the allegation of sexual assault, but found most of them to be credible. The district court made a factual finding that Souratgar perpetrated repeated acts of intimate partner violence against Lee.

  By contrast, the district court considered Souratgar’s allegation that Lee “had tried to attack him with a knife and chopper a few times,” but found Souratgar’s “account to be exaggerated and not credible. Nowhere in the district court’s decision is there any other suggestion that Lee had committed any violence, nor have we found any in our independent review of the record.

The Second Circuit observed that   ICARA’s presumption of an award of expenses to a prevailing petitioner is subject to a broad caveat denoted by the words, ‘clearly inappropriate.’ “ Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir.2004). This caveat retains “the equitable nature of cost awards,” so that a prevailing petitioner’s presumptive entitlement to an award of expenses is “subject to the application of equitable principles by the district court.”  Generally, in determining whether expenses are “clearly inappropriate,” courts have considered the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition. Where, as here, the respondent’s removal of the child from the habitual country is related to intimate partner violence perpetrated by the petitioner against the respondent, the petitioner bears some responsibility for the circumstances giving rise to the petition. In line with this reasoning, district courts in other circuits have concluded that “family violence perpetrated by a parent is an appropriate consideration in assessing fees in a Hague case.” 

The Second Circuit held that the district court was therefore correct to consider Souratgar’s unilateral violence in its determination of whether to order Lee to pay expenses under ICARA. See Souratgar III, 2014 WL 704037, at *9. However, it  concluded that the district court exceeded its discretion in awarding expenses to Souratgar in light of its fact-finding and its related analysis of the relevant equitable factors. In the course of reviewing the petition, the district court made explicit factual findings that Lee had not committed the violent acts alleged by Souratgar but that Souratgar had repeatedly perpetrated violence against her. Souratgar I, 2012 WL 6700214, at *11. But because Lee had fled the marital home to her sister’s home within Singapore before fleeing the country, the district court found that she “ha[d] not established that the past abuse of her was causally related to her decision to leave Singapore.” Souratgar III, 2014 WL 704037, at *9. The Second Circuit differed with the district court’s conclusion on this point. First, this finding was belied by the record: The district court found that Souratgar’s violence toward Lee did not stop when she left their home. See Souratgar I, 2012 WL 6700214, at *9, *11 (discussing violent incidents in August 2011 and November 2011, after her May 2011 departure from the marital home). Second, it found that Lee’s testimony showed, and Souratgar did not genuinely dispute, that her departure was related to Souratgar’s history of intimate partner violence. Therefore, it found that Souratgar bears some responsibility for the circumstances giving rise to the petition.

Having reviewed all relevant equitable factors, because the respondent had shown that the petitioner engaged in multiple, unilateral acts of intimate partner violence against her and that her removal of the child from the habitual country was related to that violence, and because there were  no countervailing factors in the record in favor of the petitioner, the Second Circuit held that an award of expenses would be “clearly inappropriate.”

In so holding, the Court expressed no opinion about circumstances beyond the facts of this appeal, particularly where countervailing equitable factors are present. It specified that it did not attempt to catalog the possible countervailing equitable factors that a district court may properly weigh. This task is better left to the district courts to develop on a case-by-case basis so that they retain “broad discretion” in applying equitable principles to implement “the Hague Convention consistently with our own laws and standards.”  As a matter of clarification, it agreed with the district court that a respondent’s inability to pay an award is a relevant equitable factor for courts to consider in awarding expenses under ICARA. It noted that intimate partner violence in any form is deplorable, but found that it need not determine in this matter what quantum of violence must have occurred to warrant a finding that fees are “clearly inappropriate,” given the repeated violence established in the record here. Those determinations it left to be resolved as they arise in future cases.

  Given the record in this case, rather than remand, it could not envision any scenario where an award of expenses would not be clearly inappropriate, and therefore reversed the order and vacated the judgment. 

Sanguineti v Boqvist, 2016 WL 1466552 (SDNY, 2016) [Canada] [Costs & Expenses]

In Sanguineti v Boqvist, 2016 WL 1466552 (SDNY, 2016) after the Petition of  Katherine Sanguineti  seeking the return of her son, BAB, to Canada  was  granted, she moved for attorney’s fees and other expenses, seeking a total amount of $195,291.80. The Court awarded fees of $106,642.00, attorney’s costs of $1164.00 and Out of Pocket expenses of $2851.00. The district court observed that ICARA provides that a court “shall” award such expenses, unless the respondent establishes that an award “would be clearly inappropriate.” 22 U.S.C. § 9007. There is a presumption in favor of awarding necessary costs to a prevailing petitioner in a return action. The court has the obligation to determine whether the requested fees and costs were ‘necessary’ to secure the child’s return. The burden of proving that costs are “necessary” falls upon the petitioner.
          Petitioner’s counsel, a solo practitioner, sought attorney’s fees of $186,152.10, which she divided into two categories: 450.4 hours at $400 per hour for attorney services, and 44.9 hours at $129 per hour for what she described as “Secretarial and Paralegal Services.” The Court noted that in return cases under the Hague Convention, the “ ‘lodestar’ approach is the proper method for determining the amount of reasonable attorney’s fees.” Knigge v. Corvese, No. 01 cv 5743 (DLC), 2001 WL 883644, at *1 (S.D.N.Y. Aug. 6, 2001). In calculating the lodestar, or “presumptively reasonable fee,” the district court must first determine the reasonable hourly rate for the attorney’s work, which is the “rate a paying client would be willing to pay.” Arbor Hill, 522 F.3d at 190. As a starting point in determining the reasonable hourly rate, the court should consider the “fees that would be charged for similar work by attorneys of like skill in the area.”  
 Under petitioner’s fee agreement with her attorney the hourly billing rate was $250.00 per hour. However, the attorney contended that her reasonable hourly rate was actually $400.00 per hour, and that she charged petitioner a reduced rate due to petitioner’s exigent circumstances.  The both stated that they had agreed that if petitioner were to prevail in the present action, her attorney would seek fees and costs at her regular hourly rate of $400.00 per hour. The Court held that even when a specific hourly rate is included in a fee agreement, a prevailing party’s attorney may seek fees at the market rate for similar services by lawyers of reasonably comparable skill, experience, and reputation. Awarding attorney’s fees at a higher rate than what was provided for in a fee agreement does not confer a benefit onto a prevailing party.
          The Court held that the attorney’s reasonable hourly rate would be set in the same way that attorneys’ rates are typically set in such cases: by determining the rate a paying client would be willing to pay, and taking account all relevant factors, including “the current market rate in the Southern District of New York ... for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Reiter, 457 F.3d at 233. The Court concluded that a rate of $335.00 per hour was reasonable. The Court also found reasonable $129 per hour for work completed by her that constituted secretarial and paralegal work. The Court found that petitioner was entitled to $142,189.60 in attorney’s fees ($136,713.50 for attorney time, $5,276.10 for non-attorney time, and $200 for her initial one-hour consultation).
          The court awarded counsel sums for copies and filing fees, and awarded petitioner sums for translation costs, trial transcripts which the Court required the parties to obtain in order to reference them in post-trial briefing, travel, food and lodging, but denied the request for fees for mediation services, expenses for the care of CFPC, petitioner’s child not the subject of the current action, and medical care for BAB,.

          The court pointed out that the “clearly inappropriate” standard permits an award of expenses “subject to the application of equitable principles by the district court.” Ozaltin, 708 F.3d at 375. Courts have considered the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition. Souratgar, __ F.3d __, 2016 WL 1168733, at *6. A respondent’s inability to pay an award is a relevant equitable factor for courts to consider in awarding expenses under ICARA.. The Court determined that respondent bore the bulk of responsibility for the circumstances giving rise to the fees and costs associated with the petition. Weighing against an award of necessary expenses was respondent’s alleged financial constraints. He contended that he had a net worth of $603, excluding legal bills. The Court concluded that only a modest reduction in petitioner’s award was appropriate. The Court was mindful that “an expenses award that is greater than a respondent’s total assets” requires, at the very least “a reasoned explanation.” Souratgar, __ F.3d __, 2016 WL 1168733, at *8 n.3. It concluded that an award greater than respondent’s total assets was  justified because respondent had no limitations on his earning ability.  His background, education, and work experience all indicated that he had significant earning potential in the future. Respondent’s spending patterns weighed against a determination that an award of necessary expenses would be “clearly inappropriate.” He spent at the very least, $7,977 every month on expenses, which far exceeded his monthly income and far exceeded what was necessary for respondent’s day-to-day living expenses. Respondent’s inability to pay was predominantly caused by his own spending far above bare necessities. The Court concluded that respondent’s own excessive spending should not serve as a complete bar to petitioner’s recovery. Taking into account respondent’s financial circumstances—including his remaining assets, his liabilities, and his ability to earn a substantial income—as well as all the other equitable factors previously discussed, the Court concluded that a reduction in the total fee award  by 25% was appropriate. The Court was  also satisfied that such a reduction would ensure that the award of necessary expenses does not impede respondent from visiting and caring for BAB in the future. Norinder v. Fuentes, 657 F.3d 526, 536 (7th Cir. 2011) 

Hernandez v Pena, --- F.3d ---, 2016 WL 1719955 (5th Cir.,2016) [Mexico] [now settled] [Petition granted]

In Hernandez v Pena, --- F.3d ---, 2016 WL 1719955 (5th Cir.,2016) six-year-old D.A.P.G. was abducted from his home in Honduras and brought illegally into the United States by his mother Reina Leticia Garcia Peña. Hernandez, filed his return petition two months outside of the one-year period in Article 12 of the Convention, allowing the district court to consider the Convention’s defense that the child is well-settled in his new environment and therefore should not be returned. The district court denied Hernandez’s petition, concluding that D.A.P.G. was well-settled in his current community The Fifth Circuit concluded that the district court erred in its application of this defense. It vacated the district court’s order and granted the petition.
  Pranklin Pleites Hernandez and Reina Leticia Garcia Peña, both Honduran citizens, were the parents of D.A.P.G, who was born in Honduras on September 17, 2009, and grew up in the town of San Antonio, Copán. In 2012, Hernandez and Garcia Peña married, but their relationship deteriorated in the following years and they eventually stopped living together. Without Hernandez’s knowledge, Garcia Peña left San Antonio, Copán, with D.A.P.G. on May 20, 2014, and hired individuals to smuggle herself and D.A.P.G. into the United States. In New Orleans, Garcia Peña and D.A.P.G. lived with Garcia Peña’s boyfriend, also a Honduran citizen, and D.A.P.G.’s four-month-old half-sister, who was born in May 2015. D.A.P.G. is in kindergarten, and Garcia Peña works in the housekeeping department of a hotel. Garcia Peña and D.A.P.G. also attend church regularly. Aside from these connections, however, D.A.P.G. had no family in New Orleans, and both Garcia Peña and D.A.P.G. were involved in active removal proceedings before the New Orleans Immigration Court. After locating D.A.P.G., Hernandez filed a petition under the Convention in the United States District Court for the Eastern District of Louisiana on August 4, 2015, asserting that Garcia Peña wrongfully removed D.A.P.G. from Honduras and seeking D.A.P.G.’s prompt return.
  The district court concluded that the testimony at trial established by a preponderance of the evidence that D.A.P.G. was well-settled in the United States and denied Hernandez’s return petition. It concluded that D.A.P.G.’s immigration status did not outweigh his “age, stability of new residence, school attendance, friendships in the new area, participation in the community and respondent’s employment and financial stability.”  The district court categorized Garcia Peña’s and D.A.P.G.’s immigration status as generally “questionable,” instead of focusing more concretely on their involvement in active removal proceedings.
The Court observed that the underlying purpose of the “now settled” defense is to recognize that at some point a child may become so settled in a new environment that return is no longer in the child’s best interests. Lozano v. Alvarez, 697 F.3d 41, 53 (2d Cir.2012), aff’d sub nom. Lozano v. Montoya Alvarez, ––– U.S. ––––, 134 S.Ct. 1224, 188 L.Ed.2d 200 (2014). The Court joined the circuits that addressed the issue and held that the following factors should be considered: (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 activities; (6) the respondent’s employment and financial stability; and (7) the immigration status of the respondent and child. It observed that Courts diverge, however, with regard to the significance of immigration status, which forms the crux of the parties’ arguments here. The Court observed that in  Lozano, the Second Circuit concluded that “immigration status should only be one of many factors courts take into account .... [and] that, in any given case, the weight to be ascribed to a child’s immigration status will necessarily vary.” 697 F.3d at 56. The Second Circuit also explained that the proper inquiry is not abstract but fact-specific, and is broader than just the threat of deportation. For example, the importance of immigration status “will inevitably vary for innumerable reasons, including: the likelihood that the child will be able to acquire legal status or otherwise remain in the United States, the child’s age, and the extent to which the child will be harmed by her inability to receive certain government benefits.” Id. at 57. The Ninth Circuit also declined to announce a categorical rule for the weight to be given to immigration status. See In re B. Del C.S.B., 559 F.3d at 1010, 1009–10. Unlike the Second Circuit, however, the Ninth Circuit’s focus was not fact-specific but generally emphasized the insignificance of immigration status when there is no concrete threat of removal, devoting extensive commentary to the low-risk of deportation for most undocumented aliens. The Fifth Circuit joined the Second and Ninth Circuits in concluding that immigration status is neither dispositive nor subject to categorical rules, but instead is one relevant factor in a multifactor test. Like the other factors, however, immigration status should not be considered in the abstract. In other words, proper application of the framework does not assign automatic treatment to any particular type of immigration status. Instead, it agreed with the Second Circuit that an individualized, fact-specific inquiry is necessary in every case.
  The Court found that the district court did not clearly err in its factual findings but erred in its legal interpretation and application of the well-settled defense. Although the district court purported to adopt the Second Circuit’s balancing test, it erred in its application by treating immigration status as a factor in the abstract. That is, the district court failed to adequately examine Garcia Peña’s and D.A.P.G.’s actual immigration status. Instead, the district court discredited the impact of immigration status generally by relying on the Ninth Circuit’s reasoning that “the likelihood of deportation of law-abiding aliens ... is small, both because of the sheer number of undocumented immigrants and because the government has set a priority to deport those with criminal records re B. Del C.S.B., 559 F.3d at 1012. This type of broad statement failed to take into account relevant, case-specific distinctions that may exist among and between different immigration statuses. Hence, the district court’s method of analysis and conclusion that D.A.P.G. was well-settled, without a proper analysis of Garcia Peña’s and D.A.P.G.’s specific immigration status, was incorrect.
  The Court held that on de novo review, D.A.P.G. and Garcia Peña’s involvement in active removal proceedings had to be considered when balancing the factors. Garcia Peña admitted she and D.A.P.G. received notice of, but did not attend, scheduled final removal hearings in July 2015. These hearings alone distinguished Garcia Peña and D.A.P.G. from the putative individuals described by the Ninth Circuit who will never have contact with immigration authorities. Moreover, D.A.P.G. and Garcia Peña were both within current DHS civil enforcement priorities as new immigration violators. Giving due consideration to immigration status and considering the other relevant factors listed above, the thin evidence in the record did not demonstrate that D.A.P.G. had formed significant connections to his new environment. D.A.P.G. turned six years old the day before the bench trial. He was a very young child not able to form the same level of attachments and connections to a new environment as an older child. See Lozano, 697 F.3d at 48 (noting that the district court found the five-year-old child “too young to form certain types of connections”). Although D.A.P.G.’s residence was stable, he had lived in New Orleans less than a year. At the time of the bench trial, D.A.P.G. had regularly attended kindergarten for three weeks. D.A.P.G.’s acquaintances in the community were dependent on his mother. He had an infant half-sister who is one of two relatives in New Orleans. In comparison, he had a large extended family through both his mother and father in Honduras. D.A.P.G. attended church regularly with his mother. Garcia Peña was employed in a hotel housekeeping department and was able to provide for D.A.P.G.’s needs. As to the seventh factor,  immigration status. D.A.P.G. and Garcia Peña are both illegally present in the United States and involved in active removal proceedings. This involvement in active removal proceedings and categorization as new immigration violators seriously threatened their ability to remain in the United States. Balancing the above factors on de novo review,  the Court was not persuaded that D.A.P.G. has formed significant connections to his new environment and thus concluded D.A.P.G. was not well-settled under the Convention. 

Rodriguez v Yanez, 2016 WL 1212412 (5th Cir., 2016)[Mexico] [Exercise of Rights of Custody] [age and maturity defense] [Further development of the record required to determine whether child objected to return to Mexico]

In Rodriguez v Yanez, 2016 WL 1212412 (5th Cir., 2016) Appellant Pedro Antonio Flores Rodriguez (“Flores”) and Appellee Yolanda Ivonne Salgado Yanez (“Salgado”) were the parents of A.S.F.S., an eleven-year-old girl. A.S.F.S. was born in Chihuahua, Mexico on January 6, 2005. A.S.F.S. lived in Mexico until October 2013, when Salgado took her to the United States without Flores’s permission. On July 17, 2014, Flores filed a petition in the Eastern District of Texas seeking the return of A.S.F.S. to Mexico.

The district court appointed a guardian ad litem for A.S.F.S. and held a show cause hearing. After Flores and Salgado completed their testimony, the district court briefly questioned A.S.F.S. in chambers. A.S.F.S. testified that her relationship with her father was poor. She indicated that Flores never spent time with her and did not even speak to her except to ask questions about Salgado’s love life. A.S.F.S. explained that she “would just go to [her] room” when Flores visited Chihuahua because “he was always drunk” and would say “ugly things ... [l]ike dirty words.” She characterized the relationship between her parents as “[f]ighting” and reported that she had seen Flores “push[ ]” Salgado. At two different points, the district court asked A.S.F.S. whether she was happier living in Mexico or the United States. A.S.F.S. testified that she was happier in Texas, although she was happy living in Mexico too.

In December 2014, the district court issued a decision in Salgado’s favor. The district court denied Flores’s petition because he “was not exercising his custody rights at the time of A.S.F.S.’s removal to the United States.” The district court also denied Flores’s petition for the independent reason that A.S.F.S. “objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of [her] views.”

Upon de novo review, the Fifth Circuit concluded that Flores was exercising his custody rights at the time of removal. Salgado testified  that Flores visited A.S.F.S. at least once every six weeks, or around 8 times a year. Salgado also conceded in her brief that Flores “paid the fees” for A.S.F.S.’s public school in Chihuahua.19 “By visiting [A.S.F.S.] and contributing to [her] financial support,” Flores was exercising his custody rights. Despite these clear parallels, Salgado urges that her “mistress relationship” with Flores distinguished this case. That is, like the district court, she contended that any contact that Flores had with A.S.F.S. was merely incidental to seeing her. The Fifth Circuit held that such arguments, however, go to whether Flores was exercising his “custody rights well or badly.” Regardless of whether Flores was interested in seeing A.S.F.S. when he traveled to Chihuahua, the record was undisputed that he did maintain some sort of relationship with her, which is enough to demonstrate exercise. 
Accordingly, the district court erred in concluding that Flores was not exercising his custody rights at the time of removal.

The Fifth Circuit observed that in order to establish the age and maturity defense Salgado had to  establish two distinct facts: (a) A.S.F.S. “has attained an age and degree of maturity at which it is appropriate to take account of [her] views”; and (b) A.S.F.S. “objects to being returned.” The main thrust of Flores’s briefing was that Salgado has not established that A.S.F.S. “objects to being returned.” The Court noted that is has “declined to hold, as a matter of law, that any particular age is sufficient or insufficient to meet the defense.” Whether A.S.F.S. “objects to being returned” was more difficult. Salgado and A.S.F.S.’s guardian ad litem both assert that “A.S.F.S. listed [the following] reasons for her objection to returning to Mexico:” • Her father’s psychological harassment of her mother;• Her father’s physical abuse of her mother; • Her father’s use of foul language; • His interrogation of her for information on her mother; • Her fear of her father.

Flores argued that these reasons cannot form the basis of an objection under the Convention. He contended that a wrongfully removed child may not object to returning to her country of habitual residence because she does not want to live with the petitioning parent. The Fifth Circuit held that whether the child wants to live with the abducting parent is very relevant to her interpretation of her immediate “interests.” Indeed, it is likely the most important consideration. A rule formally prohibiting objections based upon this consideration would result in hearings full of winks and nods. An objection by the child to being returned, if found to be a considered and mature decision, will be honored whether or not it rests in part on her objection to living with the abducting parent.  In its order, the district court found that it was “appropriate to take into account A.S.F.S.’s views” because she “exhibited strong cognitive and social abilities, and clearly expressed a desire to remain with [Salgado] in the United States.” The court also noted that A.S.F.S.’s testimony “that she would be happier remaining in the United States because she would have greater educational opportunities, and the ability to learn more languages” “[f]urther confirm[ed] her maturity.” Although these findings adequately explained why A.S.F.S. was mature enough to object, they only hinted at whether she did object and, if so, for what reasons. Rather than speculate, the Fifth Circuit vacated this portion of the district court’s order and remanded to allow the court to reassess whether Salgado had met her burden in light of the legal principles established by the decision. On remand, the district court was ordered to engage in a new colloquy with A.S.F.S. and enter more detailed findings regarding its eventual conclusion.

Gomez v Fuenmayor 2016 WL 454037(11th Cir, 2016)[Venezuela] [Petition denied][Grave Risk of Harm established where violence directed at mother]

In Gomez v Fuenmayor 2016 WL 454037(11th Cir, 2016) the Eleventh Circuit held that sufficiently serious threats and violence directed against a parent can nonetheless pose a grave risk of harm to a child as well.  

This lawsuit ariose from a battle between Salvi and Naser over custody of their four-year-old daughter, M.N. All three individuals were citizens of Venezuela. Salvi and Naser were never married and Naser was now married to Anibangel Molina Anais (“Molina”). Beginning in 2012, Naser and Molina made repeated threats against Salvi and his family. Molina called Salvi’s mother and told her that if Salvi ever returned to Molina’s home seeking to visit his daughter, it would be the last thing Salvi did in his life. Then, in July 2012, Naser and Molina left Venezuela with M.N. and took her to Miami. Salvi filed a petition under the Convention in the United States District Court for the Southern District of Florida and successfully obtained an order requiring that M.N. be returned to Venezuela in his custody. During the course of the court proceedings in Miami, the district judge awarded Salvi primary custody of M.N. while granting Naser visitation rights to be exercised in the presence of a court-appointed supervisor, Karina Lapa. At these visits, which occurred in the United States, Lapa noted Naser’s hostility toward Salvi, including hearing threats made over the course of the ten visits she supervised. Lapa specifically testified that Naser repeated that she was going to make Salvi “pay” for what he had done and said that “something is going to happen” to him when Naser regained custody over M.N. Lapa relayed these threats to Salvi. On one occasion, Lapa found Naser’s mother standing outside the visitation site, reportedly trying to determine where Salvi was coming from with M.N. Lapa said that she was “very concerned” about M.N.’s safety. Upon returning to Maracaibo in Venezuela, Salvi and M.N. went into hiding, preventing Naser from visiting her. At a Venezuelan court hearing attended by both Salvi and Naser shortly after their return to Maracaibo, Naser was accompanied by armed guards, who also accompanied her to every subsequent court date. In October 2013, a Venezuelan court ordered a continuation of the United States federal district court’s custody arrangement, granting Salvi primary custody. Upon hearing this ruling, Naser had an outburst in court, threatening to kill Salvi. Subsequently, Salvi’s girlfriend, Claudia Poblete, picked him up from the courthouse; they were followed for several blocks by individuals on motorcycles. Three days later, Poblete dropped off Salvi, Salvi’s sister, and M.N. at Salvi’s parents’ home after attending a birthday party. The windows of Poblete’s car were tinted black, making it impossible to see inside the vehicle. While driving home, Poblete was shot at and struck three times. Additional bullet holes were found in the side of the car, the headrest of the passenger seat, and above the child seat. Salvi testified that he did not know who shot Poblete because he was not present when it happened. Approximately a week later, Salvi saw Naser at a courthouse in Venezuela and heard Naser telling public defenders there that she was concerned about M.N.’s safety because the earlier shooting had been intended for Salvi. Salvi had told no one about the incident except the attorney he had met with that day. The violence continued on November 2, 2013, as several people broke into Salvi’s parents’ building in Venezuela. The individuals shattered one of the windows of Salvi’s mother’s car and spray-painted on the side of the car in Spanish, “You are going to die.” Moreover, Salvi’s sister and mother testified that they had seen several men enter the garage that housed the car carrying a package and then leave without the package. Later, they discovered that a package containing twenty-five glassine envelopes of cocaine had been placed in the mother’s car. Salvi does not know who broke into and defaced his mother’s car. Throughout this time frame, on approximately five occasions, Naser’s brother and several armed men went to schools in Venezuela where Salvi’s sister worked, seeking information about when she arrived, whom she traveled with, and whether her brother came to the school. They offered money to employees at the schools to obtain this information. On December 20, 2013, a Venezuelan court affirmed the decision granting Salvi primary custody of the child and awarding Naser supervised visits. Just over a week later, Salvi’s mother was arrested after a search of her car by the Venezuelan National Guard discovered drugs. She testified that, as with the first time drugs were planted in her car, she did not know who placed the drugs there. The investigation was reportedly unusual and the charges against her were later dropped. Based on these facts, Salvi testified in federal district court that he feared for his daughter’s safety because of the violence directed against him and his family and the possibility that M.N. would live with Molina, who, Salvi claimed, is involved in trafficking drugs. Salvi added that he made several unsuccessful attempts to obtain from the Venezuelan government protection for himself and his family. Eventually, he said that he was advised by government officials to leave the country because he could not be protected in Venezuela.  On May 7, 2014, the Venezuelan Family Court issued an order revoking Salvi’s custody rights. Salvi, his sister, his mother, and M.N. all have pending asylum applications in the United States.
The district court concluded that, under the Convention, Naser,  the mother, had established a prima facie case requiring the return of her daughter because the father, Salvi, had “wrongfully removed the child from her habitual residence in Venezuela.” However, the district court concluded that the Convention did not require M.N. to be returned to Venezuela because doing so would cause her to face “a grave risk of harm or to be placed in an intolerable situation.” The court highlighted the repeated threats made by Naser and her husband, Molina against Salvi and his family, that Molina was a fugitive “who has repeatedly demonstrated a disregard for the law,” the repeated presence of armed guards at court hearings, reports that Salvi and his family were followed on multiple occasions, the vandalism and destruction of Salvi’s mother’s car, the planting of drugs in that car, and the shooting of Salvi’s girlfriend. The district court squarely laid the blame for these repeated acts on Naser and Molina: The Eleventh Circuit found that the evidence had established that [Naser] and Molina directly made threats, and the evidence also supported the finding that it was highly probable that [Naser] and Molina were involved in the acts of violence against [Salvi] and his family. These acts of violence, although not specifically directed at the child, placed her in a perilous position with a high risk of danger. Even setting aside the risk of physical harm, the Convention’s exception also applies to the grave risk of psychological harm. It seemed almost self-evident that a child raised in an environment where one parent is engaged in a sustained campaign of violence (including the use of deadly force) against the other parent faces just such a grave risk.
To the extent that Naser argued that none of these incidents directly affected M.N. and that no physical harm had yet come to M.N., she was correct. But, the Court previously held  the inquiry under the Convention is not whether the child had previously been harmed. Rather, the question is whether returning the child to Venezuela would expose her to a grave risk of harm going forward. The uncontroverted evidence of intended and actual violence—including the shooting—directed at Salvi and his family yielded every indication of posing a grave risk to those around him, including his daughter. The district judge correctly found that clear and convincing evidence supported a determination that M.N. would face a grave risk of harm if she were to be returned to Venezuela, and that Naser’s petition should be denied. The judgment of the district court was affirmed.