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Monday, December 5, 2016

Custodio v Samillan, 2016 WL 7030356 (8th Cir., 2016)[Peru] [Age & Maturity Defense] [Petition denied]

         In Custodio v Samillan, 2016 WL 7030356 (8th Cir., 2016) Custodio and Torres, were Peruvian citizens, who had two children, 16-year-old M. and 15-year-old G. When they divorced the Peruvian court issued a custody order pursuant to which the children lived with their mother for the majority of the year. In November 2013, the Peruvian court authorized M. and G.’s travel to St. Louis with Torres, requiring that they return by March 24, 2014. Torres married an American citizen, and the couple had since had a son. After Torres failed to return the children to Peru by the deadline the Peruvian court issued four orders compelling Torres to return M. and G. to Peru. The district court held a three-day evidentiary hearing. The district court denied the petition. It refused to order return because Torres established the mature child affirmative defense. 

         The Eighth Circuit affirmed.  It agreed with Torres that the appeal was moot as to M. because he had reached 16 years old and the Hague Convention no longer applied to him. Hague Convention art. 4.  It noted that the State Department’s interpretation of the Convention’s age limitation provision was in accord with Torres view which was supported by the official Hague Conference Explanatory Report. Elisa PĂ©rez-Vera, Explanatory Report: Hague Convention on Private International Law ¶ 77 (1981),

         Torres raised the mature child defense under Article 13 of the Convention. The Eighth Circuit noted that in order to carry her burden on this defense, Torres had to must establish by a preponderance of the evidence (1) that the child has “attained an age and degree of maturity at which it is appropriate to take account of its views” and (2) “that the child objects to being returned.” Hague Convention art. 13. The child’s objections can be the sole reason that a court refuses to order return, but when they are, the “court must apply a stricter standard in considering a child’s wishes.” Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 278 (3d Cir. 2007). The sole issue on appeal was whether the district court properly considered G.’s objections. The Court concluded that the question of whether a child objected to return is subject to clear error review. Such deference was appropriate here where the district court observed G. testify twice: first, in chambers outside the presence of the parties and lawyers and later, in open court and subject to cross examination. The district court found that G. wished to remain in St. Louis because he did not want to separate from his mother, stepfather, and two brothers. He did not want to return to Peru because he “does not feel safe with his father.” In chambers, G. said he was afraid of his father, who was “very aggressive” and had previously struck him and his brother. The district court also observed that G. liked his school in the United States and had many friends, whereas he disliked his Peruvian school and had no real friends there. The court found G. to be a “very thoughtful and intelligent” young man whose testimony represented his “genuine thoughts and feelings.”

  The Eighth Circuit rejected Custodios argument  that the district court improperly considered objections relevant only to a custody determination. He contended that a wrongfully removed child may not object based on a wish to live with a particular parent or on circumstances that are the product of the wrongful retention, as decisions based on these objections would embroil the court in the underlying custody dispute. The Court pointed out that with regard to the mature child defense, the Explanatory Report makes clear that a mature child’s views on return can be “conclusive.” The Explanatory Report “does not suggest the child’s interpretation of [his] ‘own interests’ is invalid if it is based” on custody considerations. The drafters of the Convention simply deemed it inappropriate to return a mature child ‘against its will—whatever the reason for the child’s objection. It held that the district court did not err in considering objections that may also be relevant to a custody proceeding.  G.’s testimony included particularized objections to returning to Peru. Based on these facts, the Court held that district court did not clearly err in finding that G.’s statements constituted an objection within the meaning of the mature child defense.

  The Eighth Circuit rejected Custodio’s argument that the district court abused its discretion in refusing to order return. He argued that allowing G. to remain in the United States improperly ignored the Peruvian court’s custody orders, which were entitled to deference and comity in this court. The Eight Circuit observed that even though Torres met her burden of proving the mature child affirmative defense applies, the district court has the discretion to refuse to apply the defense and order the return of the child if it would further the aim of the Convention which is to provide for the return of a wrongfully removed child.  District courts may decline to apply a defense where doing so would reward a parent for wrongfully removing or retaining the children in violation of a Contracting State’s custody orders.  It held that while Torres’ actions were concerning, they did  not compel a finding that the district court abused its discretion in refusing to order return. The district court’s decision to respect 15-year-old G.’s opposition to returning to Peru and desire to remain in the United States was not an abuse of discretion. The court acted within its discretion in deferring to the objections of an undisputedly mature child. The district court’s consideration of a mature child’s views may but need not be affected by the wrongful actions of his or her parent.

Ochoa v Suarez, 2016 WL 6956609 (W.D. Mich, 2016)[Mexico] [Age & maturity defense][Petition denied]

        In Ochoa v Suarez, 2016 WL 6956609 (W.D. Mich, 2016) Petitioner, Rosario Ramos Ochoa, a citizen of Mexico, filed a Petition seeking return of her two minor children, MV and GV, to Mexico, their habitual residence. After the Court adopted the Magistrate Judge’s partial Report and Recommendation, which concluded that Petitioner met her burden of establishing a prima facie case for return of MV and GV under the Convention the issues remaining for decision were whether the grave risk and age and maturity exceptions or defenses under Article 13 of the Convention applied.

  On August 2, 2016, after a hearing, a Magistrate Judge issued a report in which she concluded that Respondent failed to establish the grave risk exception by clear and convincing evidence. However, the magistrate judge concluded that MV and GV were of sufficient age and maturity for their wishes to be taken into account. Petitioner  filed an Objection to the Report and recommendation, arguing that the Court should reject the magistrate judge’s recommendation that the Court deny the Petition on the basis that the age and maturity exception applies.  The Court observed that pursuant to 28 U.S.C. § 636(b), upon receiving an objection to a report and recommendation, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” After conducting a de novo review of the report and recommendation, Petitioner’s Objection, and the pertinent portions of the record, the Court concluded that it should be adopted and denied the petition for return.

Smedley v Smedley, 2014 WL 11996390 (E.D. North Carolina, 2014)[Germany] [Federal & State Judicial Remedies] [Comity][Petition granted]

          In  Smedley v Smedley, 2014 WL 11996390 (E.D. North Carolina, 2014) the District Court granted the petition  of the mother, Daniela Smedley (“Daniela”) for the return of her two children, who had been retained in the United States by their father, Mark Smedley.  On July 13, 2011, Daniela, A.H.S. and G.A.S. returned to Bamberg  Germany where the children were born and remained there with them. Mark filed a petition under the Hague Convention in Germany for the return of the children to the United States which was denied, ostensibly on the basis that returning them to the United States would expose them to a serious risk of physical or psychological harm. The District Court of Bamberg found that one of the exceptions in Article 13 precluded the children’s return to the United States. It also  appeared that the District Court of Bamberg found that neither child wanted to return to the United States.  Mark appealed the decision. The Bamberg Higher Regional Court rejected Mark’s appeal. This proceeding was commenced after Mark refused to return the children to Germany after visitation in the United States. The district court rejected Marks argument that it should disregard the Bamberg Higher Regional Court’s findings and conclusions, find that Daniela’s retention of the children in Germany in August 2011 was wrongful, and therefore conclude that the United States was the children’s habitual residence. The district court observed that the Fourth Circuit has recognized that in determining the amount of deference due to a foreign court’s decision, “ ‘judgments rendered in a foreign nation are not entitled to the protection of full faith and credit.’ ” Miller, 240 F.3d at 400 (quoting Diorinou, 237 F.3d at 142-43). Nevertheless, “ ‘American courts will normally accord considerable deference to foreign adjudications as a matter of comity,’ ” and “ ‘comity is at the heart of the Hague Convention.’ ” Despite American courts’ usual practice of according considerable deference to foreign adjudications, the Ninth Circuit Court of Appeals determined that a court may properly decline to extend comity to a foreign court’s Hague petition determination “if it clearly misinterprets the Hague Convention, contravenes the Convention’s fundamental premises or objectives, or fails to meet a minimum standard of reasonableness.” Asvestas, 580 F.3d at 1014. In Asvestas, the Ninth Circuit found that a Greek court’s analysis of a prior Hague petition “misapplie[d] the provisions of the Convention, relie[d] on unreasonable factual findings, and contradict[ed] the principles and objectives of the Hague Convention.” After reviewing the translation of the opinion of the Bamberg Higher Regional Court, the court did not find that “ it clearly misinterprets the Hague Convention, contravenes the Convention’s fundamental premises or objectives, or fails to meet a minimum standard of reasonableness.” Asvestas, 580 F.3d at 1014. The court, therefore, accorded comity to the opinion. 

Monday, November 21, 2016

Dias v DeSouza, 2016 WL 6821067 (D. Mass)[Brazil] [Attorneys Fees and Costs]

          In Dias v DeSouza, 2016 WL 6821067 (D. Mass) the Court granted the Petition of Marina De Aguiar for the return  her thirteen-year-old daughter, to Brazil and found that Petitioner had established the prerequisite for an award of necessary expenses under the fee-shifting provision of the ICARA, 22 U.S.C. § 9007(b)(3). Petitioner filed a motion in which Petitioner requested an award of attorneys’ fees in the amount of $28,697.50 and costs in the amount of $1,004.20, for a total award of $29,701.70.  The motion was granted for an amount less than requested by Petitioner. The District Court observed that the primary issues which the Court must resolve in determining whether such an award is appropriate is “first, whether the claimed expenses are ‘necessary,’ and second, whether an order against respondent would be ‘clearly inappropriate.’ ” De Souza v. Negri, No. 14-13788-DJC; 2015 WL 727934, at *2 (D.Mass. February 19, 2015) The burden of proof to establish necessity is upon the Petitioner. The burden to establish that a fee award would be “clearly inappropriate” is upon the Respondent. The Court found that  Petitioner had limited financial means. Petitioner’s  legal team consisted of a paralegal billed at the rate of $150.00 per hour and two partner level attorneys, one of whom billed at the hourly rate of $400.00 and one of whom was billed at the hourly rate of 375.00. The Court found that the rates charged by these attorneys were reasonable considering the usual price charged for similar services in Boston, but were slightly on the high end for similar services in this area. For that reason, it reduced each of the attorney’s hourly rates by $25.00. It reduced the rate charged for the paralegal to $90.00 per hour, which is in line with the rate charged by a moderately experienced paralegal in Central Massachusetts. The Court agreed with Respondent that there was some overlap between the two attorneys and that the sparsity of detail with regard to services rendered warrantsed a reduction in the amount of the fees. Thus, it reduced  each attorneys’ hours by approximately one third. It found all costs ($1,004.20) to have been necessary. Therefore, the total recovery of necessary attorneys’ fees and costs was $18,704.20. The Court found that Respondent  failed to establish that an award of attorneys’ fees and costs to Petitioner would be clearly inappropriate. 

Tuesday, October 25, 2016

Toufighjou v Tritschler, 2016 WL 6122465 (M.D. Florida, 2016)[Canada] [Attorneys’ fees, Costs, and Expenses]

           In Toufighjou v Tritschler, 2016 WL 6122465 (M.D. Florida, 2016) the Magistrate Judge recommended that Plaintiffs motion for attorneys’ fees, costs, and expenses under 22 U.S.C. § 9007(b)(3) be granted in part. Plaintiff incurred $16,675 in legal fees for 44.33 hours expended by Mr. Arenstein, at $600 per hour, and Mr. Min, at $300 per hour. This included costs of $2,155.07, which included expenses for airline, transportation, and lodging incurred by counsel, to attend the hearing ($1,343.83); costs for the filing fee ($400); the special admission fee for Mr. Min to appear pro hac vice ($150); the attorney admission fee for Mr. Arenstein to practice in the Middle District of Florida ($191); the fee for a certificate of good standing for Mr. Arenstein ($18).  The Magistrate found that  the documented hours were necessarily expended and related to the return of A.R.T. Additionally the costs incurred for travel and lodging constituted necessary expenses. The Magistrate also found that $4,564 in legal fees for 12.40 hours expended by Ms. Kay, at $350 per hour, and 1.60 hours expended by a paralegal at $140 per hour, as well as $1,225 in costs, which included the filing fee ($400) and the fee for a transcript of the evidentiary hearing ($825) were necessarily expended during the action and related to the return of A.R.T. Plaintiff was also entitled to recover $400 for the filing fee and costs are recoverable as fees of the clerk under 28 U.S.C. § 1920(1)   Additionally, Plaintiff was entitled to  recover  the costs incurred for airfare, car rental, and parking related to traveling to Florida to attend the evidentiary hearing and returning A.R.T. to Canada. However, the costs incurred for meals while in Florida were not recoverable, as those costs were not related to the return of A.R.T. Plaintiff’s total allowable expenses amounted to $4,732.02.

  The Magistrate rejected defendants argument that she was justified in removing her daughter to Florida, as having no bearing on the propriety of Plaintiff’s claimed expenses. The Court rejected defendants argument that plaintiff’s representation was excessive in light of the straightforward nature of the claims at issue. Defendant did not argue the reasonableness of the rates or hours for Plaintiff’s counsel, only that Plaintiff had too many lawyers because “[o]ne attorney would have been sufficient.” The Magistrate Judge indicated that the cases hold that there is nothing inherently unreasonable about a client having multiple attorneys, and they may all be compensated if they are not unreasonably doing the same work and are being compensated for the distinct contribution of each lawyer. An award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation. The billing records indicated that the hours requested reflected the distinct contribution of each attorney. 

          However, the Court found merit to defendants argument that she had no financial means to pay the requested fees. In cases arising under ICARA, the court may reduce a fee award based on the respondent’s financial situation and resulting inability to pay. E.g., Souratgar v. Lee Jen Fair, 818 F.3d 72, 81 (2d Cir. 2016). Defendant averred  that she was a stay-at-home mother during her marriage and received no spousal or child support from Plaintiff, from whom she had recently divorced, leaving her without assets or income to pay the requested fees.  In light of this the  Court found that a reduction was warranted to account for Defendant’s straitened financial circumstances. Plaintiff’s attorneys’ fees were therefore reduced by 25%, for a total award of $15,554.25 in attorneys’ fees; $1,584 in costs; $4,732.02 in expenses for Plaintiff; and $1,343.83 in expenses for Plaintiff’s counsel, for a total award of $23,214.10.

Thursday, October 20, 2016

Ovalle v Perez, 2016 WL 6082404 (S.D. FL, 2016)[Guatemala] [Habitual Residence of Infant] [Petition granted]

          In Ovalle v Perez, 2016 WL 6082404 (S.D. FL, 2016) the District Court granted the Petition of  Maria Alejandra Reyes Ovalle’s Petition for the return of E.L. to Guatemala with his mother. Petitioner was a successful Guatemalan entrepreneur who owned a home and auto mechanic shop in Mixco, Guatemala. Respondent was a divorced United States citizen originally from Guatemala, who owned businesses in the United States and a shop in Guatemala, which was managed by Petitioner’s mother’s half-sister. He was a resident of Hollywood, Florida. In March, 2015, Respondent traveled to Guatemala for eight days to accompany Petitioner to her friend’s wedding. Petitioner became pregnant during this trip. In June, 2015 Petitioner traveled to the United States to visit with Respondent and returned to Guatemala on July 9, 2015.  In mid-September, Petitioner was seven months pregnant. Petitioner decided to return to Florida to attempt to make the relationship work. Petitioner agreed to give birth in Florida. Petitioner travelled back to Florida on October 4, 2015, and  accepted an engagement ring but never wore the ring. Petitioner who was in the United States on her tourist visa remained in Florida until the end of February, 2016. Petitioner did not close any of her bank accounts in Guatemala, construction continued on her investment property, and she continued to earn income from her business there, with her mother’s assistance in running the daily operations. The parties’ son, E.L., was born on December 17, 2015. Respondent and Petitioner returned to Guatemala on February 26, 2016. On March 1, 2016, Petitioner obtained “Security Measures,” the equivalent of a restraining order, to prevent Respondent from removing E.L. from Guatemala but did not inform Respondent of the Security Measures, even though she told him, that she would not be returning to the United States because she was afraid of losing her son. Petitioner stayed in Guatemala with E.L. and Respondent returned to the United States on March 4, 2016. On March 6, 2016, before he learned of the existence of the Security Measures, Respondent initiated custody proceedings in Florida, and obtained an Order to Pick-Up Minor Child (the “Pick-Up Order”). Respondent, did not tell Petitioner that he had initiated proceedings, or that he had obtained the Pick-up Order. Respondent filed a response in opposition to the Security Measures on March 11, 2016. Between March and July, 2016, E.L. lived with the Petitioner and her parents. Respondent periodically sent money to Guatemala for the baby upon Petitioner’s request. Respondent traveled three times to Guatemala, from April 1-3, May 6-8, and May 29-June 1. During these visits, Respondent visited Petitioner and E.L. at Petitioner’s parents’ house. Respondent did not inform Petitioner about the Pick-Up Order or the scheduled hearing in Florida. Nor did the Respondent seek relief from the Guatemalan Court despite the filing of his response to the Security Measures.  Respondent arrived in Guatemala on July 15, 2016 for the childs baptism. The following day, Respondent asked Petitioner to accompany him to drop off an invitation to the baptism. Petitioner, Respondent, and E.L. travelled together in her car to deliver the invitation. At the time, E.L. was asleep in Respondent’s arms. Rather than wake him, Respondent asked Petitioner to take the invitation to the front door. When she did, he got out of the car, placed E.L. in his car seat, and drove off, leaving Petitioner behind. He then traveled by bus with E.L. through Mexico. Five days later, when Respondent and E.L. arrived in the United States, Respondent advised Petitioner that E.L. was with him and that the baby was fine.

The district court observed that to determine habitual residence in the case of an infant,, the Court looks at the parents’ shared intent or settled purpose regarding their child’s residence. Where a matrimonial home exists, i.e., where both parents share a settled intent to reside, determining the habitual residence of an infant presents no particular problem. Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir. 2003). However, where there is no marital home and an unsettled relationship between the parents, as in this case, the determination of a settled intent becomes more problematic. Furthermore, where the conflict is contemporaneous with the birth of the child, no habitual residence may ever come into existence.  The Court noted that the facts were similar to those in Delvoye, supra, and after examining the facts decided that there was no shared intent to reside in either Florida or Guatemala. 
The district court  concluded that E.L. became habitually resident in Guatemala prior to the time of his removal by Respondent to the United States finding Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006) to be instructive. It observed that upon Petitioner’s informing Respondent that she and E.L. would remain in Guatemala, Respondent voluntarily returned to the United States on his planned departure date. Even though Respondent immediately filed a custody proceeding upon his return to the United States, the Court, like the Seventh Circuit in Kijowska, found his efforts were of little relevance. If Respondent believed that Petitioner’s decision to keep E.L. in Guatemala was wrongful, the proper legal remedy was to file his own petition under the Convention, which he did not do. Instead, he returned to the United States and engaged in exactly the type of behavior the Convention is designed to prevent, by filing a custody proceeding in a jurisdiction where he admittedly knew the law would be more favorable to him. The court indicated that the  failure to file a Convention petition in and of itself may have been sufficient to have enabled E.L. to establish habitual residence in Guatemala. Further factors weigh in favor of the Court’s determination. Petitioner and Respondent continued to communicate between March and July of 2016, and upon Petitioner’s request, Respondent continued to send money to Guatemala for the baby multiple times. During these communications, Respondent expressed that he missed his son and Petitioner, how much he loved them both and his belief that their relationship could work, and entreated her to return; at the same time that Petitioner made it clear that she did not share the same feelings. Even so, Respondent returned to Guatemala three times between March and July, visiting with E.L. and Petitioner each time. At no time, during any of these visits did Respondent inform Petitioner that he had sought relief from the Florida court regarding custody or that he was attempting to enforce any rights Respondent believed he had been granted by a Florida court. During this period, Respondent was aware that E.L. was living in the same house with Petitioner, his grandparents and uncle, with whom he was bonding. Petitioner was still breastfeeding the child, the child was regularly seen by a pediatrician and attended church with Petitioner and her family. Respondent also did not resist or oppose Petitioner’s plans to baptize E.L. in Guatemala. By the time Respondent abducted E.L. in July, the baby had been living for four months in Guatemala with Petitioner and her family. The Court found hat E.L. did not have a habitual residence until one was established with Petitioner in Guatemala. 

Monday, October 10, 2016

Guevara v Soto, 2016 WL 4921546 (E.D. Tenn., 2016) [Mexico] [Federal & State Judicial Remedies] [Enforcement of Judgment for Return]

            In Guevara v Soto, 2016 WL 4921546 (E.D. Tenn., 2016)  on April 15, 2016, the Chief District Judge granted the Plaintiff’s Petition for Return of his Child to Mexico. In the Memorandum  the Chief District Judge stated, “The parties are to decide among themselves the means and manner of the child’s return to Mexico.” The parties were unable to decide among themselves the means and the manner of the child’s return to Mexico, and the issue was referred a Magistrate who, after  a telephonic hearing, orally ordered the Respondent to transport the child to La Luz, Michoacan, Mexico, by May 16, 2016. The Petitioner filed an emergency Petition alleging the Respondent did not comply with the order. He requested, inter alia, that a Warrant of Arrest issue to bring the child and the Respondent into Court and that the Court order the child to be delivered immediately to the Petitioner in the United States so that the child may be transported to La Luz, Michoacan, Mexico. After a hearing the Court certified the following factual findings:  On April 15, 2016, the Chief District Judge ordered the Respondent to return the child to Mexico, the country of the child’s habitual residence. Subsequently, on May 2, 2016, the undersigned verbally ordered the Respondent to transport the child to La Luz, Michoacan, Mexico, by May 16, 2016. Since the trial in this matter, the Petitioner maintained regular contact with the child using the Respondent’s cellular telephone. However, on May 2, 2016, when the Respondent attempted to contact the child, the cellular telephone would not ring. On May 16, 2016, the date the child was to be returned to La Luz, Mexico, the Petitioner visited Respondent’s grandparents, where Respondent previously lived, but the child and the Respondent were not there. The Petitioner made approximately four or five trips to La Luz, Mexico but has been able to locate the child. 

         The Court found that the Respondent failed to comply with the  Order, which ordered the Respondent to return the child to La Luz, Mexico, by May 16, 2016. The Court found no reason to reopen the case for the issuance of provisional remedies requested in the Emergency Petition because federal procedural and state substantive laws supported Petitioner’s requested relief.  Instead it found that the Respondent had violated the Chief District Judge’s Order and its Order and Recommended that the Chief District Judge issue a show cause order to Respondent to appear at a date certain before the District Judge to show cause why she should not be held in contempt for failing to obey the Court’s Orders. It also recommended pursuant to Federal Rules of Civil Procedure 70 that  “the Clerk of Court issue a writ of attachment to direct the United States Marshals Service to attach the child and deliver the child to the Tennessee Department of Human Services for temporary placement. The Tennessee Department of Human Services shall make the appropriate arrangements with the U.S. Central Authority for the child’s return to Mexico or to Petitioner. The Tennessee Department of Human Services shall coordinate with Petitioner’s counsel and the U.S. Central Authority to effectuate a smooth transfer of the child to Petitioner or to Mexico at an appropriate border station.” It also recommended that the child’s name be placed in the Children’s Passport Issuance Alert Program so that the Petitioner may be alerted if someone applies for the child’s passport.