Saturday, September 3, 2011

Avendano v Smith, --- F.Supp.2d ----, 2011 WL 3702401 (D.N.M.) [Mexico] [Rights of Custody] [Patria potestas] [Grave Risk of Harm ] [Attorneys fees]

In Avendano v Smith, --- F.Supp.2d ----, 2011 WL 3702401 (D.N.M.) Quesada was from Costa Rica and K. Stoner was born in the United States. Quesada and K. Stoner were married on June 5, 1993 in State College, Pennsylvania. Quesada and K. Stoner moved to Mexico together in 1998. Both Quesada and K. Stoner held permanent positions as professors at the National Autonomous University of Mexico since 1998; K. Stoner no longer held her position at the National Autonomous University of Mexico. Quesada and K. Stoner were the parents of two minor children: Alejandra Quesada Stoner ("A.S.’), born September 29, 2000, in Puerto Vallarta, Jalisco, Mexico; and Victoria Quesada Stoner ("V.S.") , born November 16, 2004, in Morelia, Michocan, Mexico. A. S. and V. S. were American citizens born in a foreign country; Quesada and K. Stoner thought it would be good for them to have dual citizenship. A. S. was now ten years old, and V. S. was six years old. Since their marriage and the birth of their children, Quesada and K. Stoner maintained a home in common wherein they carried out their parental responsibilities towards the children. In the last five years, A. S. and V. S. lived with Quesada and K. Stoner at the family's home at Calle de las Vientas 120, Fraccionamianto Country Club Campestra La Huerta, Morelia, Michoacan, Mexico. Quesada lived with his children all of their lives. Before K. Stoner took the children to the United States, the children went to school in Mexico, and were settled and integrated in Mexico's life and culture.

From August 2008 through August 2009, A. S. and V. S. lived in Los Angeles, California, and attended school while K. Stoner was on sabbatical. K. Stoner and the children lived in Los Angeles alone for several months until Quesada joined them. Quesada's personality changed over the past ten years, and his personality had become worse lately when he was intoxicated. Quesada consumed alcohol to excess at times when he was not working, but when he was with the family. The alcohol was neither a habit nor extreme, but was a concern. Quesada had been abusive towards K. Stoner, especially when he was intoxicated.. Around Easter, in 2008, Quesada, K. Stoner, and the children went on a family vacation to Costa Rica with several members of Quesada's family. Quesada, K. Stoner, the children, and Quesada's family slept in a room together. Late one night, Quesada came back to the room intoxicated. He grabbed K. Stoner's wrists and raped her.K. Stoner was afraid of waking the children, so she did not scream or call out. On December 24, 2009, the family was staying at Quesada's mother's house in Costa Rica. On one occassion K. Stoner tried to calm Quesada's brother down, and Quesada told her "shut up bitch" and hit her. Quesada never harmed his children.

K. Stoner left Mexico with A. S. and V. S. on July 13, 2010, with Quesada's permission.. The plan was that the children were going to be returned to Mexico on August 3, 2010 after their vacation at K. Stoner's parents' house in Las Cruces. K. Stoner and the children were scheduled to return to Mexico on August 3, 2010, and the children were scheduled to start school again in Morelia on August 23, 2010. The children never came back to Mexico; K. Stoner returned to Mexico in early August when Quesada was in the United States for work, and took several household items and the car, which she drove from Mexico to New Mexico without telling Quesada anything. K. Stoner admitted that she deceived Quesada to get herself, and A. S. and V. S. out of Mexico in what she thought was a legal way. K. Stoner left Mexico with the children to travel to the United States and planned to allege that she was fleeing from the abusive behavior.

The District Court found that K. Stoner did not leave Mexico with the children because of abusive behavior; she left because she wanted custody of the children and because she was not securing the custody through divorce negotiations. It also found that Quesada did not acquiesce in K. Stoner's removal of A. S. and V. S. from his custody. At no time did Quesada agree to K. Stoner retaining the children in the United States.. A. S. and V. S. had now successfully completed a year of schooling at Mesilla Valley Christian School. The children were well acclimated to the United States, and they enjoyed it. In September, 2010, Quesada filed a Mexican Petition Under the Hague Convention, asking the Mexico Secretary of State under the Hague Convention to contact the United States Secretary of State. Quesada filed a petition for divorce in Mexico in April, 2011. There was no custody order from any court that has awarded custody of the children to either parent. K. Stoner filed a case seeking a divorce, child support, and child custody in Dona Ana County, State of New Mexico.

On June 23, 2011, Quesada filed a Verified Petition for Return of Children to Petitioner. At the hearing on August 2, 2011, both Quesada and K. Stoner testified. They did not present any other witnesses. The children were present outside of the courtroom, but did not testify.

The District Court granted the Petition. It observed that the Civil Code for the State of Michoacan states: Parental authority/responsibility (patria potestas ) over the children will be exerted: I. By the father and mother. II. By the paternal grandfather and  grandmother or by the maternal grandfather and grandmother, indistinctly, considering those with whom the children will have a better moral, educational, social, economical and family development. ... As long as the child is under parental authority/responsibility (patria potestas ), he or she shall not leave the residence of those who exert it without their permission or by order emitted by an authority legally qualified to do so. Michoacan Civil Code ss 367, 373. It observed that the Federal Civil Code states: Paternal uthority/responsibility (patria potestas ) is to be exerted over the children themselves as well as over their assets. Regarding the care and education of the minors, parental authority/responsibility (patria potestas ) is to be exerted in the manner prescribed by the order pronounced by the judge and in accordance with the Law of Social Prevision of Juvenile Delinquency of the Federal District (Distrito Federal ). .... Parental authority/responsibility (patria potestas ) is exerted by both parents.

When due to any circumstance one of them ceases to exert it, it shall be exerted by the other one. .... As long as the child is under parental authority/responsibility (patria potestas ), he or she shall not leave the house of those who exert it without their permission or by means of an order emitted by an authority legally qualified to do so. 18 Federal Civil Code art. 413, 414, 421.

The Court held that Quesada had established by a preponderance of evidence that the children have been wrongfully removed or retained. A. S. and V. S. were physically present in Mexico "for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from a child's perspective," Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir.1995), because they were born in Mexico and, because, before their removal to the United States, they lived in Mexico and went to school there, except for a year that they spent in Los Angeles when their mother was on sabbatical. Quesada's and K. Stoner's shared intentions regarding their children during the time preceding the abduction reflected an intention to stay in Mexico, because Quesada and K. Stoner owned a house in Mexico, because they were professors at a university in Mexico, and because the children were registered to begin school in Mexico in August, 2010. Because it appeared Quesada had rights of custody under Mexico law, and because K. Stoner did not have the right to remove the children, K. Stoner's removal of the children from Mexico, and retention of the children in the United  States, was in breach of Quesada's custody rights under the laws of Mexico. Although Quesada did not give K. Stoner money for supporting the children since January, 2010, he paid the mortgage of their home where he, K. Stoner, and  the children lived, and throughout the children's lives Quesada and K. Stoner had provided for the children's food, shelter, and education. The District Court found that Quesada was exercising his rights to custody at the time K. Stoner removed the children to the United States, and retained them in the United States, because  he and K. Stoner lived with the children, because he participated in the children's lives, and because he helped to provide the children with food, shelter, and education. See Friedrich v. Friedrich, 78 F.3d at 1066 ("We ... hold that, if a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to 'exercise' those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.").

The District Court found that although K. Stoner argued that Quesada acquiesced or consented in the removal of the children, because he legally abandoned the children by his failure to financially support them, K. Stoner had not directed the Court's attention to authority which states that a person can acquiesce or consent to removal through abandonment. All the cases that the Court found which discuss abandonment related to whether the petitioner exercised his or her rights to custody. Quesada did not consent to the removal or retention under the convention,  because although he consented to the children going on a trip to the United  States, he did not consent to the children staying in the United States. It also found that K. Stoner has not proved by clear and convincing evidence that there was a grave risk that the children will be put in an intolerable situation, or will be subject to physical or psychological harm, if they are returned to Mexico. K. Stoner had not proved by clear and convincing evidence that Quesada's drinking or abuse of her would create a grave risk that the children would be put in an intolerable situation, or would be subject to physical or psychological harm, if they are returned to Mexico. Because there is no evidence that Quesada had abused his children, and because, although Quesada can, at times, drink to excess, he was not an alcoholic and there was no evidence he had been abusive towards his children when he was drinking, there was not clear and convincing evidence that the children would be put in an intolerable situation, or subject to psychological or physical harm, if they were returned to Mexico. Although there was evidence that Quesada raped and abused K. Stoner, "any instances of physical abuse by Petitioner were limited incidents aimed at persons other than the child[ren] at issue, and thus are not sufficient to support application of the 'grave risk' exception."

The Court ordered K. Stoner to "pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, ... and transportation costs related to the return of the child." 42 U.S.C. s 11607(b)(3). To determine attorneys' fees, the Court multiplied "the number of reasonable hours expended by a reasonable hourly rate." Neves v. Neves, 637 F.Supp.2d 322, 339-40 (W.D.N.C.2009)("In determining the amount of reasonable attorney's fees to award under ICARA, federal courts typically apply the lodestar method. Under the lodestar method, the Court multiplies the number of reasonable hours expended by a reasonable hourly rate." (citing Wasniewski v.. Grzelak-Johannsen, 549 F.Supp.2d 965, 971 n. 5 (N.D.Ohio 2008); Distler v. Distler, 26 F.Supp.2d 723, 727 (D.N.J.1998); Freier v. Freier, 985 F.Supp. 710, 712 (E.D.Mich.1997); Berendsen v Nichols, 938 F.Supp. 737, 738 (D.Kan.1996); Flynn v. Borders, No. 5:06-323-JMH, 2007 WL 862548, at *2 (E.D.Ky. Mar. 20, 2007); Friedrich v. Thompson, No. 1:99-CV-772, 1999 WL 33951234, at *3 (M.D.N.C. Nov. 26, 1999)). Quesada filed an affidavit for attorneys' fees and costs. Quesada's attorney, Shane English, represented that his hourly rate was $160.00 per hour until May 31, 2010 and $180.00 per hour thereafter. The Court found that this hourly rate was reasonable for federal court practice in the District of New Mexico. The Court ordered K. Stoner to pay Quesada's attorneys' fees and costs of $14,5 81.72, and transportation costs related to the return of the children.

Application of Garcia v Varona--- F.Supp.2d ----, 2011 WL 3805778 (N.D.Ga.) [Spain] [Rights of custody] [Patria potestas ] [Consent] [Abandonment]

In Application of Garcia v Varona--- F.Supp.2d ----, 2011 WL 3805778 (N.D.Ga.) the District Court granted the petition for return. Petitioner and Yanine Hernandez Varona ("Respondent") were the unmarried parents of two children, A.J.H. and F.J.H. Petitioner was a Spanish national. Respondent was a Cuban national, who possessed a Spanish residency card. Both were born in Seville, Spain and were Spanish nationals. Petitioner was the biological father of both children.

From April 2004 until separating in April 2010, Petitioner and Respondent lived together with the Children in Seville, Spain. Petitioner moved out of the family home in April 2010 because the situation between he and Respondent became intolerable and he had concluded that moving to his mother's house was best for the Children. Between April 2010 and the removal of the Children from Spain in December 2011, the Children resided principally with Respondent. During this period, Petitioner visited the Children every Tuesday and Thursday and the Children lived with him every other weekend. Petitioner also provided 400 Euros a month to Respondent for the support of the Children; paid for A.J.H's English classes; and paid the mortgage and a portion of the utility bills for the home in which Respondent and the Children were living. In July 2010, Respondent visited Florida with the Children to vacation with her maternal relatives there. Petitioner supported the visit to Respondent's family. While driving back from the airport following the vacation to Florida, Respondent claimed she told Petitioner that her and the Children's future was in the United States, and she claimed Petitioner said she could live where she wanted. Petitioner denied that he ever gave consent to allow Respondent to remove the Children to the United States if she chose to reside there.

Believing that Respondent may remove the Children from Spain without telling him, on September 24, 2010, Petitioner initiated a proceeding in Spain to establish "provisional measures" regarding his parental rights. On November 24, 2010, the Spanish Court issued its preliminary order regarding the Emergency Petition. The Spanish Court considered Petitioner's request for "provisional measures," "accepted that the couple have children who are minors," and required Petitioner and Respondent to appear at a hearing on December 15, 2010. The summons and complaint filed in the Spanish Court apparently was not served upon Respondent before she departed Spain. On November 30, 2010, Petitioner went to the Children's school and learned they were absent. Distressed about the location of Respondent and the well-being of the Children, Petitioner began a search to find the Children, and ultimately learned from Respondent's relatives in Spain that she had departed Seville, taking the Children with her that morning. After Petitioner learned Respondent and the Children were no longer in Seville,the parties had a telephone conversation on the evening of November 30, 2010. In the November 30, 2010, telephone conversation, Respondent did not disclose to Petitioner her plans to depart Spain the next day for the United States and to take the Children with her. On or about December 9, 2010, just days before the December 15, 2010, hearing, Respondent informed Petitioner by phone and by a letter sent by facsimile that she had moved to the United States with the Children.

On December 9, 2010, the Spanish Court, after being advised of the possibility that the Children might be removed from Spain by Respondent without the Petitioner's consent, issued a second order. The Spanish Court noted "the possible exit" from Spain of A.J.H. and F.J.H.. The court further noted that the Children had "stopped going to the school where they were registered, [which] reinforces the possibility that the mother wants to leave the country with the minors.". The court's December 9th order prohibited the departure of A.J.H. and F.J.H. from Spain, prohibited the issuance of passports to the Children, and recalled any passports issued to the Children. (Id.). The Spanish Court imposed the removal prohibition "to save, the minors' interests and their rights to relate to their father" as set forth in Article 156 of the Spanish Civil Code. The Spanish Court stated in its order: "In addition in respect
to the article 156 of the Civil Code, Paternal authority will be exercised together by both parents or just by one of them with the other's clear or tacit consent, and in this case there is evidence that the father has expressed his negativity towards leaving the country."

After departing Spain, Respondent took up residence with the Children in Georgia at the residence of Mr. Hinojosa. Respondent and the Children were currently living with Mr. Hinojosa. Respondent represented to the Court that she and Mr. Hinojosa were engaged and he was assisting Respondent in obtaining a work permit to remain in the United States. On May 12, 2011, Petitioner filed with the Office of Children's Issues, United States Department of State, an application for the return of the Children. On July 29, 2011, Petitioner filed his Motion Under the Hague Convention for Entry of a Temporary Restraining Order and Scheduling of an Expedited Hearing [2],as well as his Verified Complaint and Petition for Return of the Children [1]. Petitioner sought a temporary restraining order ("TRO") and expedited hearing on his motion for injunctive relief.

A hearing was held by the Court on August 4, 2011, and an order was issued prohibiting the Children from being removed from this jurisdiction and setting an August 25, 2011, date for a trial on the merits.

The District Court observed that non-emancipated children in Spain are under the authority of their parents. C.C., Art. 154. A biological, unmarried parent has the same status under the Spanish Civil Code as a married parent or an adoptive parent. C.C., Art. 108. Article 108 of the Spanish Civil Code uses the term "filiation." C.C., Art. 108. Black's Law Dictionary defines "filiation" as "the fact or condition of being a son or daughter; relationship of a child to parent" and as "judicial determination of paternity." Black's Law Dictionary (9th ed.2009). Spanish parental authority is normally exercised by both parents, or by one of them with the express or tacit consent of the other. C .C., Art. 156. Parental authority includes the duties towards one's children of "looking after them, keeping them in their company, feeding them, educating them and providing them with an integral upbringing." C.C., Art. 154. "Separation, annulment and divorce shall not exonerate parents from their obligations to their children." C.C., Art. 92.1. When parents are living separately, parental authority will normally be exerted by the parent with whom the child is living. C.C., Art. 156. However, when parents are living separately and do not agree on a custodial arrangement, then a judge will decide which parent will take care of the children under legal age. C.C., Art. 159. A judge may also, on request of the other parent and acting on behalf of the child, assign parental authority to be exerted jointly between the parents. C.C., Arts. 156, 158. All parents under Spanish law, including those who are not granted custodial rights, have the right to keep in touch with their underage children, unless a judicial body determines otherwise. C.C., Art. 160. An additional component of parental responsibility in Spain is the doctrine of patria potestad. This doctrine is codified in the Spanish Civil Code at Articles 154 and 156 and translates, respectively, as "authority of the parents" and "parental authority." C.C., Arts. 154, 156; Patria potestad includes the right of a Spanish parent to "make decisions regarding a child's education, well-being, protection, upbringing, and place of residence." See C.C., Arts. 154, 156, 160; Moreno, 2008 WL 4716958, at * 8. Patria potestad encompasses more than the parental authorities and responsibilities in the Civil Code and extends to "parental authority over fundamental decisions in the education and upbringing of the child, including where the child is to reside," and "decisions about ... the children's residence or those which will affect the scholar, health, and religious limits." Black's Law Dictionary defines "patria potestas" as "[t]he authority held by the male head of a family (the senior ascendant male) over his legitimate and adopted children, as well as further descendants in the male line, unless emancipated." Black's Law Dictionary (9th ed.2009).

The Court further observed that under the Convention, rights of custody include "rights relating to the care of the person of a child," and in particular, "the right to determine the child's place of residence." These rights of custody may be based on the law of the state of habitual residence or a judicial decision having legal effect under the law of that state. Because the Children lived in Spain for their entire lives prior to being removed, Spain was their habitual residence and Spanish law applied in determining Petitioner's rights of custody.

The District Court held that the Petitioner had rights of custody under spanish law. Spanish parents have the duty of "looking after [their children], keeping them in their company, feeding them, educating them and providing them with an integral upbringing." C.C., Art. 154. Under the doctrine of patria potestad, Spanish parents also jointly possess authority over fundamental decisions in the education and upbringing of the child, including where the child is to reside. These obligations continue even when parents separate. C.C., Art. 92.1. Although parental authority is principally exercised by the parent with whom the children are living during a separation, that authority is not exclusive to that parent and is subject to a judicial determination where there is disagreement. C.C., Arts. 154, 159. When parents cannot agree on a custodial agreement for minor children or the scope of the parental authority each may assert after separating, the Spanish Court determines these issues. C.C., Arts. 156, 159. Until that determination occurs, both parents continue to enjoy the rights of custody afforded to them as parents under Spanish law, to include those specifically enumerated in Articles 154 and 160 of the Spanish Civil Code, as well as those arising from patria potestad. See C.C., Arts. 92.1, 154, 156, 159-160. Under Spanish law, Petitioner, as a parent, enjoyed authority to communicate with and make decisions regarding the Children that "fall within the ambit of decisions relating to the 'care of the person of the child' within the meaning of Article 5 of the Convention. This decision-making parental authority qualifies as rights of custody as defined by the Convention and understood by our courts. Thus, the Court found that Petitioner established by a preponderance of the evidence that he enjoyed rights of custody under the Convention and Spanish law and that the removal of the Children from Spain violated Petitioner's rights of custody. The Court's conclusion that Petitioner had and was exercising rights of custody when the Children were removed from Spain by Respondent was further supported by the December 9, 2010, judicial decisions of the Spanish Court and Spanish Justice Court. These decisions expressly recognized Petitioner's rights of custody under Spanish law with respect to his relationship with the Children as their biological father, including the right to decide where the Children lived.

The recognition of these rights led to these Spanish judicial decisions to prevent the Children from departing Spain and to issue a criminal indictment against Respondent based on her wrongful removal of the Children from the country. In determining if there has been an exercise of rights of custody, courts within the Eleventh Circuit have favorably used the standard adopted by the Sixth Circuit that "[t]he only acceptable solution, in the absence of a ruling from a court in the country of habitual residence, is to liberally find 'exercise' whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular  contact with his or her child." See, e.g., Friedrich v. Friedrich, 78 F.3d 1060, 1065 (6th Cir.1996) Once a court "determines that the parent exercised custody rights in any manner, the court should stop-- completely avoiding the question whether the parent exercised the custody rights well or badly." Friedrich, 78 F.3d at 1066. Lastly, when one parent removes the child without seeking a ne exeat holder's consent, it is clearly an instance where the right would have been "exercised but for the removal or retention." Convention, Art. 3(b); Abbott, 130 S.Ct. at 1992. The Court found that Petitioner had established by a preponderance of the evidence  that he was actually exercising the rights of custody he had under Spanish law at the time of removal. Petitioner sought to be a continual presence and influence in the life of the Children up until the day of their wrongful removal, seeing them  every Tuesday and Thursday, living with them every other weekend, providing a variety of financial support to them, and resorting to the Spanish Courts to formally establish his ne exeat and custody rights under Spanish law. The Court further found that Petitioner would have exercised his ne exeat right of custody,  as validated by the Spanish Court's judicial decision of December 9, 2010, but for the removal of the Children from Spain without Petitioner's knowledge and without his consent.

Respondent raised the defenses of consent and abandonment. Consent or "acquiescence under the Convention requires either: an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time." Friedrich, 78 F.3d at 1070; see De Vasconcelos v. De Paula Batista, No. 4:10-CV-00628, 2011 WL 806096, at *7 (E.D.Tex. Mar. 1, 2011) (applying the Friedrich standard for acquiescence) Respondent, however, did not offer any factual basis for her claim that Petitioner consented or acquiesced to her removal of the Children to the United States beyond her self-serving testimony that Petitioner said she could take the Children anywhere. The Court, having observed Respondent testify on this matter at  trial, found her testimony unconvincing and not believable. Having had the benefit  of observing Petitioner during his testimony, the Court found highly credible that  he did not and would not have consented to the removal of the Children from Spain. The Court found Respondent has not met her burden of proving by a preponderance
of the evidence that Petitioner consented to the removal of the Children. With regard to the affirmative defense of abandonment, this argument was, at  most, based on Respondent's contention that Petitioner, having moved five minutes  away to reside with his mother, was not actually exercising his custodial rights when the Children were removed. The evidence showed, however, that while Petitioner moved out, he did so in the best interests of the Children, intending to and
remaining actively engaged in their lives, including by being available to care for the Children when Respondent called to say she had to run errands or attend to other matters. A court cannot find a failure to exercise custody rights by a parent "short of acts that constitute clear and unequivocal abandonment of the child." Friedrich, 78 F.3d at 1066; see Moreno, 2008 WL 4716958, at *9. There was simply no evidence of abandonment in this case.

In re Application of Lozano, 2011 WL 3667444 (S.D.N.Y.) [United Kingdom] [Well-Settled in New Environment]

In re Application of Lozano, 2011 WL 3667444 (S.D.N.Y.) the case involved a dispute between Manuel Jose Lozano ("Petitioner") and Diana Lucia Montoya Alvarez ("Respondent"), regarding their five-year-old child. On November 10, 2010, Petitioner filed a Petition for Return of Child to Petitioner pursuant to the Hague Convention requesting that the Court issue an order requiring that his child be returned to London, United Kingdom, to have a British court make a custody determination. The Court held an Evidentiary Hearing on February 2 and 3, 2011. Petitioner testified and observed
the hearing via video conference in the London office of his counsel. The court denied the petition and denied the request for counsel fees on the ground that the child had been in New York for more than a year after the wrongful removal and was well settled in her new environment.

Petitioner and Respondent, who were both originally from Colombia, met and began dating in early 2004 in London. Petitioner moved into Respondent's flat about two or three months after they began dating. At the time they met, Respondent was not working and received government benefits; Petitioner worked in maintenance for a tax office and also had a nighttime cleaning job. The Parties never married. After the Parties moved in together, Petitioner mainly financially supported the household, while Respondent was responsible for cooking, cleaning, and taking care of their child
after her birth. Respondent received incapacity benefits because she suffered from depression. Respondent testified that when she arrived in London, she became very depressed because she missed her family and was unable to obtain a professional job like she had in Colombia; after she resigned from the job that she did have, she was very frustrated and became more depressed, and her doctor prescribed her Prozac. Respondent took Prozac for several years, but stopped when she first became pregnant with Petitioner's child; however, she started taking it again in 2008 before she left Petitioner. Petitioner claimed that although they had normal couple problems, generally they were "very happy together" and had a good relationship. Although Respondent agreed that they were very happy at the beginning and describes Petitioner as charming, kind, fun, and spontaneous when she initially met him, she testified that after a month of living together, he began to treat her badly, insult her on a regular basis, and be generally very controlling. Respondent described a pattern of physical and emotional abuse. She testified that Petitioner tried to kick her in the stomach when she was pregnant, pulled her out of bed one night when she received a wrong number phone call and called her a prostitute, and raped her four times. In addition, Respondent maintained that Petitioner repeatedly told her that she was stupid and useless and that her friends and family hated her, often told her to kill herself, and threatened to take the child away from her. Petitioner denies ever hitting or raping Respondent, forbidding her from speaking to her family or friends, or pushing her while she was pregnant, and testified that he never insulted, threatened, or raised his voice to Respondent. Respondent also testified that Petitioner drank heavily and watched pornography. In contrast, Petitioner testified that he did not watch pornography , and denied that he drank a lot or had ever been so drunk that he did not know what he was doing, although he admitted that he sometimes has drunk about three beers in an evening. In May 2009 Respondent and the child moved to a shelter. After Respondent left Petitioner and took the child with her, Petitioner attempted to locate Respondent and the child through the United Kingdom court system. When Respondent moved to New York, she was treated by the therapist who diagnosed her with post-traumatic stress disorder ("PTSD") based on her symptoms, which included heightened startle response, hypervigilance, nightmares, tearfulness, and flashbacks. The Court found that Petitioner's claims that he never insulted or mistreated Respondent in any manner were not credible. The Court found that there was insufficient evidence to conclude that Petitioner either sexually or otherwise physically abused the child in any manner.

In November 2008, Respondent came to New York to visit her sister Maria and attempt to gather evidence to support Respondent's and Petitioner's case regarding a problematic loan. During this time, the child stayed in London with Petitioner and Petitioner's mother who was visiting from Colombia. Petitioner claimed that when he picked Respondent up at the airport upon her return, Respondent "was a completely different person" than when she left London a week earlier and she demanded that Petitioner and his mother leave their house immediately. Respondent testified that when she returned from New York, Petitioner and his mother were acting very suspicious and the child was acting fearful and strange around Petitioner; Respondent became extremely scared, and decided to leave. On the following day, November 19, 2008, Respondent left to bring the child to nursery school and never returned. Respondent and the child resided at a shelter, from November 24, 2008, until July 3, 2009. On July 3, 2009, Respondent and the child left the United Kingdom, traveling first to France and then to New York, where they had lived since July 8, 2009. Petitioner described a multitude of channels that he pursued in an attempt to find his child and resolve the situation. After having "exhausted all possibility that [the child] was still in the [United Kingdom]," on March 15, 2010, Petitioner filed a Central Authority for England and Wales Application Form seeking to have the child returned to the United Kingdom; the application was sent to the United States Department of State Office of Children's Issues on March 23, 2010. The application detailed more of the steps that Petitioner undertook to find Respondent and the child and indicated that Petitioner believed that Respondent and the child were in Manhattan.

Since arriving in New York, Respondent and the child lived with Respondent's sister Maria, Maria's partner, Respondent's niece (Maria's daughter), and the niece's two-year-old daughter. Maria worked as a nanny for the same family for four years; Maria's partner owned a grocery business. Maria financially supported Respondent and the child and, in return, Respondent cooked, cleaned, and took care of the children.

Respondent has not had a job since she came to the United States. Because Respondent and the child had British passports, they were allowed to enter the United States without a visa; however, Respondent testified that they are currently overstayed, and have been since October 2009. Respondent testified that she was consulting with immigration authorities about the possibility of being sponsored by Maria, who was a United States citizen. The child attended the same school since she and Respondent arrived in New York and was enrolled in kindergarten; according to Respondent, the child was doing very well in school. On the Academic Standards Report at the end of that school year, the teacher wrote that the child "has made a lot of progress socially [and] is beginning to assert herself more [; she] is progressing academically as well." After arriving in New York, Respondent and the child began receiving therapy from a psychiatric social worker at a family medical clinic in July 2009.

The District Court found that Petitioner has adequately established a prima facie case of wrongful retention under the Hague Convention. Respondent did not attempt to argue otherwise. The court observed that the Court "is not bound to order the return of the child if the person ... which opposes its return establishes that ... there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Hague Convention, art. 13(b). Respondent had to establish this defense by "clear and convincing evidence." 42 U.S.C. s 11603(e)(2)(A). This defense recognizes that "[t]he interest of the child in not being removed from its habitual residence ... gives way before the primary interest of any person in not being exposed to physical or psychological danger or being placed in an intolerable situation." Blondin v. Dubois, 238 F.3d 153, 161 (2d Cir.2001) ("Blondin IV" ). However, "[t]he level of risk and danger required to trigger this exception has consistently been held to be very high." The Court found that Petitioner's claim that he never mistreated Respondent through any verbal abuse was not credible. However, the Court was presented with much less evidence regarding any physical abuse by Petitioner, and, the evidence was entirely insufficient to find that Petitioner abused the child physically, sexually, or psychologically. Although the therapist testified that the child clearly showed signs of trauma when they first met, the therapist was unable to pinpoint the source of that trauma. There was reason to believe that, whether in combination or in isolation, the time the child spent at the shelter, as well as being uprooted from her life in the United Kingdom, could have been the cause, or the primary cause, of the trauma that the child was suffering upon her arrival in the United States. The Court therefore agreed with the Petitioner’s expert’s conclusion that based on the record before the Court, it was impossible to determine, by even a preponderance of the evidence, that the child's trauma was caused by anything Petitioner did to the child. The Court therefore agreed with Petitioner that Respondent failed to carry her burden of establishing by clear and convincing evidence that returning to the United Kingdom would pose a grave risk of harm to the child. There was insufficient evidence that merely returning to the United Kingdom--even if that country was the site of some of the child's trauma, whether caused by the child witnessing Petitioner's abuse of Respondent or by being in the shelter--in and of itself would present a grave risk.

The Court noted that the Convention provides that where a period of more than one year has elapsed between the dates of the wrongful removal of the child and "the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is," the judicial or administrative authority "shall [ ] order the return of the child, unless it is demonstrated that the child is now settled in its new environment." Hague Convention, art. 12. For this defense to apply, Respondent must persuade the Court, by a preponderance of the evidence, that the child should not be returned to the United Kingdom because the child has been in New York for more than one year and has become settled. See 42 U.S.C. s 11603(e)(2)(B).

In the instant case, the Petition was filed more than a year after the wrongful removal of the child. The child was removed from the United Kingdom in July 2009 and Petitioner did not file his Petition in this Court until November 10, 2010. Petitioner asserted that the one-year period should be equitably tolled because Respondent concealed the whereabouts of the child from Petitioner, preventing him from timely filing his Petition. Petitioner maintained that the Article 12 defense was not available to Respondent and that the Court must order the child's return. The Court observed that neither the Hague Convention nor ICARA mention equitable tolling, and the Second Circuit has not considered whether the one-year period in Article 12 may be tolled. However, a number of courts outside the Second Circuit have applied equitable tolling, concluding that refusing to toll the one-year period would create incentives for abducting parents to conceal the child's whereabouts until after one year had lapsed and thus reward the behavior the Convention seeks to prevent. However, the only court within the Second Circuit to consider this issue determined that equitable tolling does not apply to the Article 12 settled defense. See Matovski, 2007 WL 2600862, at *11. The Matovski court concluded that "the one-year period in Article 12 is not a limitations period, nor is it analogous to a limitations period [because] ... '[a] petition for return of the child is not barred if it is filed over one year from the date of removal.' "

The District Court agreed with the conclusion reached in Matovski finding that the one-year period is not a statute of limitations and, therefore, it is not subject to equitable tolling. A petitioner is not barred from bringing a petition after the one-year period has lapsed; rather, after that point, a court must consider the countervailing consideration that the child may now be better served remaining where he or she is currently located. It was clear, from both the wording of Article 12 and the Perez-Vera Report, that the purpose of the settled defense is not to give petitioners a reasonable amount of time in which to bring their claims, as is the function of most statutes of limitations. Instead, the purpose is to take into account that if the child has become settled, its interests have to be weighed. And the Convention decided that after one year had passed, the child's interests would almost presumptively carry more weight than the interest of a petitioner. Because the child had been in New York for approximately sixteen months at the time the Petition was filed, the Court must consider whether the child had become settled in her new environment. To establish the merits of this exception, Respondent "had to show by a preponderance of the evidence that the child was in fact settled in or connected to the new environment so that, at least inferentially, return would be disruptive with likely harmful effects." Koc, 181 F.Supp.2d at 152; see also Matovski, 2007 WL 2600862, at * 13 ("Respondent must marshal substantial evidence of the child's significant connections to New York." Among  the factors that courts have considered in determining whether or not a child has become settled are: "the age of the child[;] the stability of the child's residence in the new environment[;] whether the child attends school or day care consistently [;] whether the child attends church [or other religious institutions] regularly[;] the stability of the mother's employment[;] and whether the child has friends and relatives in the new area." Koc 181 F.Supp.2d at 152; see also Matovski, 2007 WL 2600862, at *13; Reyes Olguin, 2005 WL 67094, at *8. Here, a number of these factors supported a finding that the child was now settled. At the time Petitioner initiated this action, by all indications, the child had been living in one place for sixteen months, which is a long period of time in the life of a five-year-old. Since they arrived in New York, Respondent and the child had lived in the same location with Respondent's sister, the sister's partner, Respondent's niece, and the niece's daughter; the child had become close to this family, and also saw other extended family who lived nearby on the weekends. Her school records showed that she was enrolled in pre-kindergarten last year, and currently attended kindergarten at the same school. The child's pre-kindergarten report cards stated that she was progressing socially and academically. Respondent testified that the child had made friends at school with whom she sometimes played after school and met at the park or library, went to ballet class, and attended church. Both experts testified that Respondent appropriately cares for the child, and the child told Petitioner’s expert, Dr. Fraser that she loved where she lived and was happy in New York. The therapist also testified that the child had improved dramatically since she began seeing her and seemed to be doing very well here in her current environment. However, Respondent was unemployed and she and the child are entirely dependent on Respondent's sister Maria and Maria's partner for financial support. The Court pointed out that in Matovski, the court concluded, in similar circumstances to here, that the mother's inconsistent employment history was not a major factor because the children and mother were financially supported by the children's grandparents, with whom the children and mother lived, rendering their overall financial stability "reasonably assured." Matovski, 2007 WL 2600862, at * 14 (determining that overall, there was "substantial, persuasive evidence" that the children had significant connections to their new environment because they had lived in the same home since arriving in New York, consistently attended school and activities with the same classmates, socialized and played with many friends, and were attached to their large extended family in New York). In contrast, in Koc, the  court viewed the mother and child's financial dependence on the mother's parents as a negative factor, see Koc, 181 F.Supp.2d at 154, but there they also received support from public services, and had only lived with the child's grandparents for the first three months of the twenty-seven months that they had been living in New York prior to the filing of the petition. Under the circumstances presented the Court found there was nothing to suggest that the financial and other support that the child and Respondent were receiving from Maria's family was in jeopardy, or is unlikely to continue for the foreseeable future. There was also some concern as to the immigration status of Respondent and the child. They have both overstayed their visas and were not legally in the United States. In Koc, the court, in determining that the child was not settled, took into account that she and her mother had overstayed their visas and were in the country illegally, which the court noted would make it virtually impossible
for the child to see her father if she remained in the country. However, the Ninth Circuit has rejected the idea that immigration status should render an otherwise settled child not settled, concluding that immigration status should only be a significant factor in the settled analysis if there is an immediate, concrete threat of deportation. See B. del C.S.B., 559 F.3d at 1010-14. Here, there was no indication that Respondent and the child faced an imminent, or any, threat of deportation, and there was unrefuted testimony from Respondent that she was looking into methods to gain legal status, including having her sister Maria, who was a United States citizen, sponsor Respondent and the child for citizenship. There was nothing to suggest that, at this moment, or in the near future, the immigration status of the child and Respondent was likely to upset the stability of the child's life here in New York.

The child's life does not have to perfect for her to be settled. Viewing the totality of the circumstances, the description of the child's life, as presented to the Court, suggests stability in her family, educational, social, and most importantly, home life the Court concluded that the preponderance of the evidence demonstrated that the child was settled in her current environment. To uproot her once again would be extremely disruptive; she reached the "point at which [she has] become so settled in [her] new environment that repatriation [is] not ... in [her] best interest." Blondin IV, 238 F.3d at 164. Accordingly, the Court found that the elements of the Article 12 defense had been met.

The Court chose not to exercise its discretion to order the child returned even though she was now settled. Accordingly, the Petition was denied. Because the Court was denying the Petition, Petitioner's request for an order directing Respondent to pay Petitioner's legal costs and fees was also denied.