Wednesday, December 26, 2012
In Taylor v Taylor, 2012 WL 6631395 (C.A.11 (Fla.)) (Not Selected for publication in the Federal Reporter) Mr. Iverson Taylor, a British citizen, petitioned for relief under the Hague Convention alleging that his wife, Ms. Keysha Taylor, an American citizen, wrongfully retained their daughter, A.T., in Florida since February 2009. The district court conducted an evidentiary hearing and found Mr. Taylor untrustworthy and that his testimony was not credible in a number of areas. Given Mr. Taylor's long history of deception and fraudulent activity, the Eleventh Circuit held that is finding was not clearly erroneous.
The Taylors were married in the United States in 2003. After Mr. Taylor was deported to the United Kingdom for failing to disclose his three theft convictions when he entered the United States, Ms. Taylor joined him. They lived in the United Kingdom together from 2005 until 2009. A.T. was born there in 2007. Mr. Taylor had constant money problems, and he frequently lied to his wife and others to swindle money from them. During their marriage, he was arrested for fraud, but those charges were ultimately dismissed. Ms. Taylor found evidence in Mr. Taylor's emails that he was engaging in fraudulent activities. She also began receiving harassing phone calls from Mr. Taylor's creditors at their home. In November 2008, she received a call from a man who told her that if Mr. Taylor did not pay what he owed, "he would be dead and so would [she]." There were several more calls from that caller during November and December of 2008. Ms. Taylor, an attorney licensed to practice in Florida, was able to support her family for a short time in the United Kingdom by working at a law firm. After A.T. was born, she supported the family with her maternity leave funds and then with funds paid to her based on a separation agreement with her employer. After this money ran out, however, she was unable to find another job in the United Kingdom. Mr. Taylor did not provide a reliable income, and the family was evicted from their home in the United Kingdom in December 2008. They were able to move into another apartment when, as Ms. Taylor testified, Mr. Taylor "came up with a large amount of cash."She did not know the source of that cash but believed it was from illegal activities. Soon after that, they had difficulty paying the rent again. Mr. Taylor was living in a temporary location and planed to move if A.T. was returned to him. He remained unemployed and claimed he supported himself with "outstanding debts and collections on old accounts."
Because of the financial difficulties, the fighting in their marriage, and the frightening
phone calls, Ms. Taylor told Mr. Taylor she wanted to leave the United Kingdom and
take A.T. with her. He refused to give her A.T.'s passport. He also told her that he
"knew people" in the United Kingdom who could "take care" of her. It was only after she signed an agreement promising to bring A.T. back the next month that he gave her the passport. Ms. Taylor returned with A.T. to her parents' house in Florida.
When Ms. Taylor told Mr. Taylor that she would not be returning A .T. to the United
Kingdom, he began to threaten her and her parents. He told Ms. Taylor's mother over
the phone, "I am not gonna stop until I destroy your daughter. She's never gonna work in the United States again."In another call, he told Ms. Taylor that he knew people in Florida who could "take care" of her and he could "have somebody come to [her] house, and when [her] father opens the door, shoot him in the face."He also sent Ms. Taylor an email saying, "You are going to want my mercy soon and you won't get it ... God help you if anything happens to my child." After Ms. Taylor returned to the United States, she filed for bankruptcy. She got a job and was making $85,000 a year. Because of the remaining debts from her marriage, she testified that she still "live[s] paycheck to paycheck." She was unsure if she would be able to get a job in the United Kingdom if she and A.T. moved back, both because of the poor market and because her residency status was uncertain. .
The district court concluded that Ms. Taylor had wrongfully taken A.T. from her
habitual residence in the United Kingdom. She did not dispute that finding. She asserted that returning A.T. would expose her to a "grave risk" as described in Article 13(b). The district court agreed that it would and did not order A.T. returned to the United Kingdom.
The Eleventh Circuit affirmed. It stated that whether there is a "grave risk" to the child as defined in Article 13(b) of the Convention is a mixed question of law and fact, which it reviews de novo. Baran, 526 F.3d at 1345. It reviews the district court's factual findings only for clear error and give substantial deference to the credibility determinations made by the district court. Furnes v. Reeves, 362 F.3d 702, 710, 724 n. 21 (11th Cir.2004).
The Eleventh Circuit observed that the district court provided two primary justifications for its finding that sending A.T. back to the United Kingdom would subject her to a "grave risk" of harm. First, the court reasoned that the anonymous death threats Ms. Taylor received were indicative of future violence: if one person threatened Ms. Taylor, there are likely others who "would not hesitate to threaten to kill, kidnap, or do physical harm to A.T. in order to get Mr. Taylor to pay what he owes." The court made an explicit finding that Mr. Taylor's testimony concerning his current source of income (collection of "outstanding debts") was not credible and concluded that he had been and continued to be engaged in fraudulent activities. Second, the court focused on the threats Mr. Taylor has made against Ms. Taylor: telling her he knew people in the United Kingdom and in the United States who could "take care" of her; threatening to send someone to shoot her father; threatening to ruin her professionally; promising her that she would want his mercy soon and would not get it. The court did not credit Mr. Taylor's assertion that he never threatened Ms. Taylor or her parents and found that "Mr. Taylor threatened to use others to physically harm (and maybe even kill) Ms. Taylor."
The Court pointed out that, as the district court recognized, this case was unique because the risk to A.T. stemmed not only from threats made by her father but also from threats made by an unknown third party. The district court's credibility determinations about the nature of the threats and Mr. Taylor's continued participation in fraudulent activities were not clearly erroneous. The court found that those fraudulent activities had already created-and likely would continue to create-a substantial risk of serious harm to Mr. Taylor's family. Based on the unique facts of this case and the district court's specific credibility determinations, the district court did not err by determining that Ms. Taylor had established a grave risk of harm to A.T. if she is returned to live with Mr. Taylor in the United Kingdom.
Saturday, December 15, 2012
In Fernandez-Trejo v. Alvarez-Hernandez, 2012 WL 6106418 (M.D.Fla.) the district court granted the Petition for the return of the parties seven-year old daughter ("L.F.A.") to Mexico, where Petitioner he and the Respondent were living at the time L.F.A. was born and where she was raised until she was taken to the United States without his consent.
Respondent admitted in her answer that L.F.A. was born in 2005 in Monterrey, Nuevo Leon, Mexico, and wasy seven years of age. Petitioner testified at great length during the hearing about the family's residence in the Punta Esmeralda neighborhood in Juarez, Nuevo Leon, Mexico, at which the Respondent and L.F.A. resided until her departure to the United States in 2011 to, as Respondent put it, give L.F.A. "a better life." There was no credible testimony from either the Petitioner or Respondent that Petitioner consented to L.F .A's departure to the United States. Instead, Respondent proffered a partially translated, unsigned settlement offer that, according to Respondent's own testimony, was never executed by the parties. Accordingly, the Court found that Mexico was the "habitual residence" of L.F.A. and there was no "settled intention" to leave that behind for permanent residence in the United States. See Ruiz v. Tenorio, 392 F.3d 1247, 1252-53 (11th Cir.2004).
The Court pointed out that the existence of rights of custody are determined by the law of the country in which the child habitually resides at the time of removal." Hanley, 485 F.3d at 645. Citing to an English translation of Mexican law, Petitioner urged the Court to find that Petitioner had joint custody of L.F.A. at the time of the alleged wrongful removal to the United States. Petitioner cited to Articles 414 and 415 of the Civil Code of the Mexican State of Nuevo Leon: Article 414. Parental authority/responsibility (patria poteslas) is exerted jointly by both parents. Article 414 bis.In all cases where the mother does not live with the father of her children, she will have the right of preference to keep the children under seven years of age under her care, unless she practices prostitution, pimping or habitual drinking, suffers from a contagious disease or her antisocial behavior represents a serious danger for the health and morality of the children. Article 415 bis.Even if they do not have custody of the minors, those exerting parental authority/responsibility (patria potestas), have a right to coexist (spend time) with their descendants who will be asked for their opinion on the matter once they reach the age of twelve. The exertion of this right depends on it not representing a risk for the minor and for the fulfillment of child -support obligations. Personal relationships between the minor and his or her ancestors shall not be impeded without just cause. Whoever has custody, has the obligation to respect, promote and allow the coexistence of the child with the non-custodial ancestor exerting parental authority/responsibility (patria potestas). "Patria potestas," a legal concept derived from Roman law, provides for the joint exercise of parental authority. Moreno v. Martin, 2008 WL 4716958, at *9 (S.D.Fla. Oct.23, 2008). The right to exercise parental authority is distinguished from the right of custody because the mother of children under the age of seven years "h[as] the right of preference to keep the child [ ] ... under her care," despite the clear right to coexist with both parents. The right to coexist, if it means anything however, must mean that Respondent was not permitted under Mexican law to unilaterally decide to move L.F.A. to the United States, thus depriving Petitioner the ability to interact and coexist with L.F.A. in any meaningful way. See generally Whallon v. Lynn, 230 F.3d 450 (1st Cir.2000) (recognizing affidavits from Mexican lawyers stating that both parents must consent to the removal of a child under Mexican law).
There being no evidence that Petitioner's parental rights had been terminated under Mexican law, or voluntarily relinquished by Petitioner, the Court found that Petitioner met his burden of establishing that L.F.A.'s removal to the United States breached his custodial rights.
The Court found that Petitioner was actually exercising his custody rights at the time of removal. Petitioner and Respondent were not living together in marital bliss. Although the Court did not find sufficient evidence to support any of the competing
allegations of abuse, there was enough evidence to support a finding that Petitioner remained active in the life of L.F .A. Petitioner testified that he moved out of the family home to spare L.F.A. from the incessant fighting. He provided credible testimony that Petitioner and Respondent reached an informal, unwritten custody agreement by which he would have physical custody of L.F.A. every Wednesday and on weekends. Both Respondent and Petitioner testified that child support funds were transferred to a bank account to which Respondent had access. There was ample evidence that Petitioner was involved in her life. That is all that is required. See, e.g., Moreno, 2008 WL 4716958, at *9; Bocquet v. Ouzid, 225 F.Supp.2d 1337, 1346-47 (S.D.Fla.2002).
Respondent raised two affirmative defenses. Respondent's first affirmative defense was that the petition was served greater than one year from the date of removal from Mexico and L.F.A. had become settled in her new environment. There was no dispute that L.F.A. had been in the United States for greater than one year (i.e., she moved here in August 2011).The Eleventh Circuit has held that the one year limitations period in the Hague Convention can be equitably tolled "where the parent removing the child secreted the child from the parent seeking return." Furnes v. Reeves, 362 F.3d 702 (11th Cir.2004); see, e.g., Mendez Lynch v. Mendez Lynch, 220 F.Supp.2d 1347, 1362-63 (M.D.Fla.2002) (tolling the limitations period because the respondent absconded with children without notifying the petitioner). It was clear that Respondent took L.F.A. to the United States without the consent of Petitioner. There was no testimony that Respondent reached out to Petitioner to notify him of L.F.A.'s whereabouts. Instead, Respondent presented evidence of public filings, i.e., state court divorce proceedings and a driver's license application, to support her argument that Petitioner was remiss in his pursuit to locate her. Respondent filed for divorce in the Circuit Court for the Thirteenth Judicial Circuit in and for Hillsborough County, Florida in a case styled, Daymi Alverez-Hernandez v. Hector Jesus Fernandez-Trejo. Petitioner filed a Notice of Hague Convention Proceedings Related to the Wrongful Removal of Minor Child, L.F.A. in that court. The Court rejected any argument that it was incumbent upon Petitioner to sift through the records of the DMV to locate the Respondent's driving records or any one of the twenty circuit courts in Florida to locate a divorce filing. Petitioner testified that he was only able to locate Respondent and L.F.A. with the help of the Mexican and United States Central Authorities. The Court found that the limitations period was appropriately tolled in this case and Respondent was unable to meet her burden of proving this defense.
Moreover, there was not sufficient evidence to find that L.F.A. was "well settled" in the United States as that term is used in the Hague Convention. Whether a child is "well settled" requires "substantial evidence of significant connections to the new environment." In re Ahumada Cabrera, 323 F.Supp.2d 1303, 1313 (S.D.Fla.2004). Courts consider the child's age, stability of the new residence, school attendance, stability of the mother's employment, and the presence of friends or relatives in the new environment to establish significant connections. The testimony adduced at the hearing showed that L.F.A. was brought to Miami, Florida, and then Largo, Florida, living in a total of three (3) residences in the roughly fifteen (15) months since coming to the United States. L.F.A. spoke some English, attended elementary school in Largo. Florida, and stayed at home with a babysitter in the evening while Respondent went to work. Based on all the factors, and considering an ex parte interview with L.F.A., the Court found that L.F.A. was not well settled in the United States. Mendez Lynch, 220 F.Supp.2d at 1363-64 (finding children not well settled in the United States when they lived in seven locations in only a couple years, even though they were attending school and making friends). Accordingly, Respondent failed to meet her burden of proving her first affirmative defense.
Respondent's second affirmative defense was that L.F.A.'s return to Mexico would
"expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." The Court observed that Respondent must prove by clear and convincing evidence that returning to Mexico would place L.F.A. in an "intolerable situation ." 42 U.S.C.11603(c)(2)(A). An "intolerable situation" under Article 13b of the Hague Convention encompasses, for example, sexual abuse by a parent or other familial relative, Grijalva v. Escayola, 2006 WL 3827539, at *6 (M.D.Fla.Dec.28, 2006) (citing Hague Convention, 51 Fed.Reg. 10494-01, 10510 (March 26, 1986)), or when returning the child would place her in a "zone of war, famine or disease[.]" Friedrich v. Freidrich, 78 F.3d 1060, 1069 (6th Cir.1996). The proper focus of the inquiry is the effect on L.F.A. if she is returned to Mexico. See Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir.1995).
As support for this defense, Respondent testified generally that there existed drug trafficking activity and gang violence in the proximal location of their residence in Nuevo Leon, Mexico. Respondent testified that on at least one occasion a stray bullet struck the residence. Other than oblique references to the quality of life in Nuevo Leon, Mexico immediately surrounding the Petitioner's residence, there was no testimony that L.F.A. or Petitioner or Respondent was personally threatened or in immediate danger. The living conditions of the surrounding area, even if as they were as deplorable as Respondent contended did not satisfy the "intolerable conditions" defense by clear and convincing evidence. See Avendano v. Smith, 806 F.Supp.2d 1149, 1177 (D.N.M.2011) ("Although Mexico is more dangerous than the United States at this time, intolerable situation was not meant to encompass return to a home where living conditions are less palatable."). Moreover, removing L.F.A. from her mother will not, standing alone, satisfy this burden. See Rydder v. Rydder, 49 F.3d 369, 373 (8th Cir.1995). Accordingly, the Court found that Respondent failed to prove her second affirmative defense.
In Rovirosa v. Paetau, 2012 WL 6087481 (S.D.Tex.) Petitioner, Leandro Ampudia Rovirosa ("Ampudia"), brought an action seeking the return of his son, L.A.V., and daughter, M.A.V., to Mexico from the United States. Ampudia and Vieth were the natural parents of L.A.V. and M.A.V. and were both citizens of Mexico. Vieth had permanent resident alien status in the United States since 1980. L.A.V. was born in August 2005 in Mexico City and had permanent resident alien status in the United States based on Vieth's U.S. immigration status. L.A.V. had a U.S. social security number and a Texas identification card. . M.A.V. was born in June 2007 in Mexico City and had permanent resident alien status in the United States based on Vieth's U.S. immigration status. M.A.V. ha a U.S. social security number and a Texas identification card. Both L.A.V. and M.A.V. possessed only Mexican passports. Ampudia and Vieth lived with their children in a rented home on Contreras Street in Mexico City beginning in 2009. The children attended the Alexander Bain Institute in 2009, 2010, and a portion of 2011. They were driven to this school by a chauffeur employed by Ampudia's employer.
From May 10, 2010, to June 11, 2010, Ampudia received voluntary inpatient treatment for a gambling addiction. Ampudia testified that he no longer gambled as a result of this treatment. After Ampudia's release from the rehabilitation facility, the relationship between the parties deteriorated, and they began to discuss a separation.. On December 18, 2010, Vieth and the children went to Acapulco to visit her family for the Christmas holidays. Vieth, assisted by her friend, Celia Tello, packed up clothing and toys at the Contreras Street residence in preparation for her move to Houston to live with a friend. Vieth and her children drove with Tello and Tello's family to Acapulco with the clothing and toys. Vieth and the children flew from Acapulco to Houston, Texas, on December 26, 2010, and lived with Blomfield and his family until January 14, 2011. Between late December 2010 and early January 2011, Ampudia moved into an apartment approximately twenty minutes away from the Contreras Street residence. Ampudia testified that he believed Vieth was taking the children to the United States to visit her mother in Chicago, but learned that they went to Houston instead. Ampudia was aware that Vieth and his children had stayed with Blomfield when in Houston after the Christmas holidays. Vieth and the children returned to Mexico City on January 14, 2011. Vieth testified that although she considered Blomfield's home in Houston to be her and the children's permanent residence by that time, she returned to Mexico City to straighten out her and Ampudia's finances. According to Vieth, the rent on the Contreras Street residence was months in arrears and the utilities were also past due. She attributed the fault of the non-payments to Ampudia.
In February 2010, Vieth moved into Tello's residence, where Vieth and her children shared a bedroom vacated by Tello's two-year-old daughter. Tello averred that Vieth and the children lived with her through May 2011, when Vieth returned to Houston. Ampudia testified that Vieth and the children continued to reside at the Contreras Street address until June 1, 2011. On May 3, 2011, Vieth filed a petition in the 27th Family Court, Mexico City, D.F., to terminate Ampudia's parental rights on the ground that he had abandoned the children due to non-support. In the petition, she claimed that she had borrowed in excess of $633,000 pesos to support the children after he failed to do so. She also claimed in the petition that he had borrowed in excess of $7,000,000 pesos from her and owed $10,000,000 pesos in gambling debts. She sought $176,828 pesos in monthly support. The Mexican petition claimed expenses for the children's activities in Mexico City during the first quarter of 2011. The petition also avered that Vieth paid rent, maintenance fees and water expenses at the Contreras Street residence through May 2011 by using funds she borrowed. Emma Rovirosa testified that she paid these expenses for the same period of time on behalf of her son, Ampudia.
Ampudia's legal expert, David Lopez testified that, in his opinion, Ampudia, as the natural father of the children, had a right of custody, known as patria potestad, under Mexican law. Ampudia and Vieth lived together as a couple and acted as parents to the children. Cohabitation with a child is a parental right under Mexican law and, even after Ampudia ceased to cohabit with the children, he exercised parental rights by paying for their schooling, visiting the children at school or sporting events and having lunch with them. Lopez testified that the fact that Vieth filed a lawsuit to terminate Ampudia's parental rights was an admission by Vieth that Ampudia had rights to be terminated. And Ampudia's filing a response to Vieth's lawsuit was an assertion of his objection to the termination of his parental rights. Lopez acknowledged that patria potestad may be lost by a failure to pay child support for more than ninety days, but that determination had not been made by the Mexican court and, until that court determined that Ampudia abandoned the children, Ampudia had the presumption of having custodial rights. Lopez opined that Ampudia has rights of custody for purposes of the Hague Convention.
Ampudia testified that, until June 2011, he visited the children once a week, took them to lunch or for ice cream, and attended their school and sporting events.L.A.V. and M.A.V. attended the Alexander Bain Institute from January 2011 to May 2011. On May 23, 2011, Vieth committed in writing to pay the past-due tuition at the Alexander Bain Institute for the months of January 2011 to May 2011 by July 4, 2011. The sum was deducted from Ampudia's salary. On May 20, 2011, M.A.V. and L.A.V. were seen by their pediatrician in Mexico City. Vieth testified that another reason for her return to Mexico City with the children in January 2011 was to renew the passport of M.A.V., which would expire in April 2011. Ampudia's signature was required by law to renew the passport, and, according to Vieth, he delayed complying with her requests to renew the passport for months. On May 31, 2011, Ampudia and Vieth went to the passport office and signed documents renewing M.A.V.'s passport. Ampudia, Vieth and the children had lunch at Ampudia's apartment that same day. Vieth testified that she told Ampudia on May 31, 2011, that she had filed the lawsuit to terminate his parental rights. Vieth conceded that she did not tell Ampudia that she and the children were flying to Houston the following day. On May 31, 2011, Ampudia applied for a passport for himself, replacing one that had been lost. Vieth produced this lost passport, along with his U.S. visa, in discovery in this action, leading Ampudia to conclude that Vieth had retained his passport and visa to prevent him from traveling to the United States in pursuit of her and the children. Vieth denied taking Ampudia's passport but had no credible explanation for its discovery in her possession.
On June 1, 2011, Vieth purchased airline tickets for herself and the children to travel from Mexico City to Houston, Texas, later that same day. The children ha continuously resided in Houston, Texas, since June 1, 2011. Ampudia was served with Vieth's lawsuit to terminate his parental rights on June 10, 2011. He filed his answer and countersuit for visitation rights on June 29, 2011. That case was being actively litigated in Mexico City. Ampudia testified that he was unaware of where his children were after June 1, 2011. Ampudia concluded that Vieth and the children were in the United States because the automatic voice mail message on Vieth's phone was in English. Ampudia asserted that Vieth never answered his calls or voice mails, and the first time he learned that Vieth and the children were in Houston, Texas, was when Blomfield phoned him on August 18, 2011. Blomfield averred that while he was certain that Ampudia knew that Blomfield lived in Houston, he could not say that Ampudia knew exactly where he lived. Contradicting Ampudia's testimony in part, Vieth testified that Ampudia, along with his father and brother, spoke to M.A.V. on her birthday in June 2011 via Vieth's cell phone.. M.A.V. and L.A.V. attended summer camps in Houston, Texas, during the summer of 2011. M.A.V. and L.A.V. attended The School at St. George Place, a public elementary school in Houston, for the 2011-2012 academic year. Ampudia's parents traveled to Houston, Texas, several times to visit the children.
Their first visit was in September 2011. Because Vieth had Ampudia's U.S. visa in her
possession when she traveled to Houston in June 2011, Ampudia could not travel to the United States until he obtained a replacement visa, which he was not able to do until January 2012. In April 2012, Ampudia traveled to Houston to see the children.
The children were presently enrolled in The School at St. George Place for the
2012-2013 academic year. Since October 2012, Vieth worked in Mexico several
days a week. In her absence, the children were cared for by Blomfield, his wife, and a
family member of Vieth.
In support of her claim of abandonment, Vieth testified that eight months passed before Ampudia paid any child support, that he failed to help with the children, failed to take them to school and did not feed or clothe them. The district court held that this was a claim reserved for the Mexican court. Vieth testified that she was a public figure in Mexico because of her employment as an actress. She believed that her children might be kidnapped because of Ampudia's gambling debts. Vieth also feared that the children may be harmed in an earthquake or fire. She acknowledged that her fears of kidnapping did not prevent her from returning from Houston with the children in January 2011. Vieth also conceded that she made several personal appearances at public events with the children but felt safe because of the security provided by the sponsors of the events.
The district court found that Ampudia had established by a prima facie case preponderance of the evidence that, under the laws of Mexico, he had rights of custody over L.A.V. and M.A.V. and that he was exercising his rights of custody over L.A.V. and M.A.V. at the time of the children's removal from Mexico by Vieth; that Mexico was L.A.V.'s and M.A.V.'s habitual residence before their removal from Mexico by Vieth; and that Vieth wrongfully removed L.A.V. and M.A.V. from their habitual residence in Mexico in violation of Ampudia's rights of custody over the children.
Given that Ampudia established by a preponderance of the evidence each of the elements required by the Hague Convention to show that Vieth wrongfully removed L.A.V. and M.A.V. from Mexico, and given that Vieth has failed to meet her burden that any of the exceptions apply to the facts of this case, the court ordered the return of L.A.V. and M.A.V. to Mexico, their habitual residence prior to their wrongful removal by Vieth.
Monday, December 3, 2012
In Pignoloni v Gallagher, Slip Copy, 2012 WL 5904440 (E.D.N.Y.), Petitioner Fabrizio Pignoloni ("Petitioner") filed a petition under the Hague Convention
seeking an order directing Respondent Luise Ann Gallagher ("Respondent") to
return their two minor sons, E.G.P. and A.T.P. to Italy. Respondent maintained that
her removal and retention of the children were authorized by a consensual separation
agreement signed by Petitioner and ratified by an Italian court. The Court found that the consensual separation agreement authorized Respondent to return to the United
States with the children and therefore denied Petitioner's application for relief.
In December 2003, Petitioner, an Italian citizen, met Respondent, a United
States citizen, in New York. During that time, Respondent worked full-time at Polo Ralph Lauren ("Polo") as a technical designer, and Petitioner managed Soho IT Services, an information technology company that he owned for over twenty years, as of the date of the hearing in this action. On June 24, 2005, Petitioner married Respondent in New York, and shortly thereafter, returned to Italy. At the time of their marriage, Respondent worked at Polo and continued to work there until the end of On November 28, 2005, Petitioner's and Respondent's first son, E.G.P., was born in New York. In January 2006, Respondent and E.G.P. relocated to Italy. Respondent
returned to work in or around late 2006 or early 2007 and thereafter completed
various part-time projects for Polo in New York, requiring her to leave Italy for
weeks or months at a time. A.T.P. was born on September 18, 2008 in Ancona, Italy, and Respondent resumed her part-time work for Polo in New York a few months later. After the birth of A.T.P., Petitioner and Respondent experienced marital discord. During the summer of 2010, Respondent traveled to New York for a few months to work. Between June and August 2010, Respondent worked in New York for about two or three months without interruption. Upon Respondent's return to Italy, the marital problems reemerged, resulting in the parties' consensual separation.
In September 2010, Petitioner and Respondent formally entered into a separation agreement, which was ratified by an Italian court. Both parties were represented by counsel when they negotiated the terms of and entered into the September 2010 Separation Agreement. In accordance with the September 2010 Separation Agreement, Petitioner moved out of the parties apartment immediately after the separation. During this time, Respondent stopped working in order to stay home with A.T.P., who was diagnosed with muscular dystrophy, and did not return to work until approximately May 2011. Petitioner continued working to support the family and to pay Respondent the monthly child and spousal support obligations required under the September 2010 Separation Agreement which required Petitioner to pay Respondent 500 per month in spousal support and 400 in child support for their two children. On April 29, 2011, Petitioner and Respondent signed a supplemental separation agreement that was subsequently integrated into the September 2010 Separation Agreement. In connection with the April 2011 Separation Agreement, Petitioner and Respondent were represented by Attorneys. On May 25, 2011, the Italian court ratified the April 2011 Separation Agreement, and the presiding judge so ordered the agreement. The April 2011 Separation Agreement contained provisions related to Petitioner's support obligations, Respondent's rights to travel for work, the parties' rights to travel with the children, and the parties' respective custody rights. Paragraph C of the April 2011 Separation Agreement set forth the joint custody rights of Petitioner and Respondent and specified that the children will live with Respondent in their Via Minucia apartment. Paragraph C further stated that the "mother, at the end of the children's school commitments, will also be able to spend one month in the company of the children in Italy or in any other place outside Italy, either in Europe as well as in the United States or in any other part of the world, as long as it has previously been agreed on with the husband." Paragraph D of the April 2011 Separation Agreement stated that "Mr. Pignoloni will take exclusively upon himself the obligation of child support paying to the wife 200/00 (two hundred/00 euros) ... for each son to be deposited, within the first five days of every month, in the bank checking account in the name of Mrs. Gallagher." Paragraph E of the April 2011 Separation Agreement reflected a reduction of 400 per month in spousal support from the September 2010 Separation Agreement as follows: "Fabrizio Pignoloni binds himself to pay to the wife spousal support of a monthly amount of 100/00 (one hundred/00 euros) ... within the first five days of every month by means of a credit transfer to the bank checking account in the name of Mrs. Gallagher."
Paragraph F of the April 2011 Separation Agreement set forth Petitioner's obligation to pay the rent on the Via Minucia apartment and provided that "Fabrizio Pignoloni binds himself to pay the rent of the apartment in Via Minucia, equal as of today to 456/00 monthly ... by making payment directly to the owners." Paragraph F further stipulated that "[i]n the case of relocation agreed on between the spouses of Mrs. Gallagher and the children to a different lodging, he binds himself to pay the new rent up to 600/00 monthly. Paragraph L delineated Respondent's right to travel to New York for work reasons and stateed that Petitioner "authorizes temporary transfers of his wife to New York or to the United States generally for work reasons and for certain periods of time limited to the execution of the work itself ... [and] authorized the wife's departure from the home for a few days to sit for job interviews."
Paragraph O, a new provision added to the April 2011 Separation Agreement at the request of Respondent, provided that [i]n case of non-payment of several monthly rent installments by Mr. Pignoloni resulting in lawsuits on behalf of the owners / or of non-bank-deposit for at least four months of the support for the children and for the wife and should the wife be unable, not having any type of income of her own, to support and maintain the children and herself, Mr. Pignoloni is willing to authorize the wife to return with the children to the United States to her family's home provided that the wife proves that she has found a job of her own. Petitioner testified that he and his attorney had no objection to the addition of Paragraph O because he believed that Paragraph O was essentially meaningless and did not change anything with respect to his rights even though Respondent accepted a lower support payment in exchange for including Paragraph O in the April 2011 Separation Agreement. Respondent, who was to receive 400 less per month in spousal support under the April 2011 Separation Agreement, believed that Paragraph O was an important "safety net" that permitted her to return to the United States with the children in the event that Petitioner failed to comply with his support obligations under the separation agreement.
Petitioner conceded that between September 2011 and April 2012, he failed to deposit the required monthly payments of 500 into Respondent's bank account within the first five days of each calendar month, as required by the April 2011 Separation Agreement. The evidence revealed deficiencies in Petitioner's total spousal and child support obligations in the amount of 500 per month between the months of September 2011 and April 2012. Petitioner routinely failed to pay rent for the Via Minucia apartment where Respondent and the children resided, resulting in the commencement of an eviction proceeding. Respondent credibly testified that between September 2011 and April 2012, she would have been unable to pay for
her living expenses, childcare expenses, and the rent. On February 28, 2012,
Petitioner signed a new lease for a different residence in Ascoli Piceno. During the last week of March 2012, Respondent and the children moved out of the Via Minucia
apartment and into the new residence. Petitioner testified that he paid rent in advance
for the new apartment for the months of April, May, and June 2012. At trial, Petitioner
and Respondent advanced seemingly contradictory testimony regarding whether
Respondent notified Petitioner and obtained his express consent to travel to New York with the children prior to her departure in April 2012. The Court found resolution of this factual dispute unnecessary to determine the issues before the court, but found Respondent's testimony to be credible.
On April 24, 2012, Respondent departed from Italy with the children and
traveled to New York. Prior to her departure, Respondent did not provide Petitioner with any contact information for herself or the children because Petitioner had all of Respondent's contact information for Respondent's family in the United States. On or around June 6, 2012, Petitioner filed an application under the Hague Convention with the Italian Central Authority, although it did not appear that Respondent was notified of that Hague Convention application. On June 24, 2012, Respondent sent Petitioner an e-mail, in which she expressed her intent to remain in the United States with the children and stated the following: Fabrizio, Due to your failure to support the children and I by not paying 9 months support and 18 months of our rent which had caused us to be evicted. The children and I are staying here in the United States because I have found a job and will provide them with the necessary care in a stable enviornment [sic]. regards, Louise Gallagher Pignoloni
On July 3, 2012, Petitioner filed the Hague Convention petition in the United States District Court for the Eastern District of New York. On July 27, 2012, Respondent filed her Answer to the Hague Convention Petition. In that Answer, Respondent argued that her removal and subsequent retention of the children in the United States were justified because the conditions of Paragraph O of the April 2011 Separation Agreement were satisfied by (1) Petitioner's failure to pay rent and support payments and (2) Respondent's acquisition of stable employment with Polo.
The District Court held that the interpretation and application of Paragraph O read in the context of the April 2011 Separation Agreement was crucial to the court's ultimate determination regarding whether the Respondent's removal and retention of the children in the United States was wrongful. Paragraph O, stated as follows:
[i]n case of non-payment of several monthly rent installments by Mr. Pignoloni
resulting in lawsuits on behalf of the owners / or of non-bank-deposit for at least four months of the support for the children and for the wife and should the wife be unable, not having any type of income of her own, to support and maintain the children and herself, Mr. Pignoloni is willing to authorize the wife to return with the children to the United States to her family's home provided that the wife proves that she has found a job of her own.
The District Court observed that in the Second Circuit, the law is " 'unsettled
when it comes to applying either a federal common law choice of law rule or state
choice law principles in non-diversity cases.'" (quoting Pescatore, 97 F.3d at 12).
Nevertheless, both federal and state choice of law approaches demand the application of Italian contract law when interpreting, construing, and applying Paragraph O of the April 2011 Separation Agreement. The April 2011 Separation Agreement was negotiated in Italy, entered into in Italy with the advice of Italian attorneys, and thereafter approved by an Italian court. Consequently, it held that Italian substantive law, specifically those provisions set forth in the Italian Civil Code, must guide the interpretation, construction, and application of Paragraph O and the rest of the April 2011 Separation Agreement. The court took judicial notice of and relied chiefly upon the Italian Civil Code provisions as critical guideposts in its interpretation, construction, and application of Paragraph O and the rest of the April 2011 Separation Agreement.
The district court observed that other courts in the Second Circuit have applied foreign contract and domestic relations law in interpreting parties' mutual agreements in Hague Convention cases. See A.A.M. v. J .L.R.C., 840 F.Supp.2d 624, 629-39 (E.D.N.Y.2012), aff'd, Mota v. Castillo, 692 F.3d 108 (2d Cir.2012). The court construed the September 2010 and April 2011 Separation Agreements as valid contracts under Italian law.
Petitioner argued that Paragraph O contemplates satisfaction of the following three requirements before Respondent is authorized to return to the United States with
the children: (1) Petitioner must fail to pay several monthly rent installments
resulting in a lawsuit OR must fail to deposit into Respondent's bank account four
months of spousal and child support; (2) Respondent must be unable to support the
children and herself and must not have any income of her own; and (3) Respondent
must prove to Petitioner that she has found a job of her own. Petitioner further argues that Respondent cannot have any income in Italy in order to satisfy the second condition because the language of Paragraph O stipulates that she be "unable, not having any type of income of her own." Petitioner lastly contends that, even upon satisfaction of the three required conditions, Respondent must still seek authorization from Petitioner because the contractual language only indicates that he "is willing to authorize" Respondent's return with the children to the United States and thus provides no guaranteed right for her to leave Italy and return to the United
States with the children.
Respondent argued that Paragraph O constituted authorization by the Petitioner, ratified by the Italian court, for her to return to the United States with the children upon satisfaction of the following two conditions: (1)(a)Petitioner must fail to pay several installments of rent resulting in lawsuits against the Petitioner and Respondent, OR (b)Petitioner must fail to pay at least four months of child and spousal support, and Respondent must be unable to support herself and the children as a consequence; and (2) Respondent must demonstrate that she has found a job of her own. Respondent maintains that, based upon common sense, grammar, and logic, the requirement that Respondent be "unable to support herself" applied only to the circumstance in which Petitioner has failed to pay four months of spousal and child support and not to the alternative circumstance in which Petitioner had failed to pay his rental obligations. (Id. at 6-7, 9.) Respondent contended that Paragraph O was a self-executing provision and that she need not obtain further additional authorization from Petitioner or go back to the Italian court before exercising her right to return to the United States with the children and remain there once the conditions of Paragraph O have been satisfied.
The district court rejected Petitioner's interpretation of Paragraph O and found that the interpretation offered by Respondent was reasonable and supported by the facts and the law.
The Court agreed that the language of Paragraph O of the April 2011
Separation Agreement contemplated two separate contingencies under which the
Petitioner and the Italian court authorized Respondent to exercise her right to
return with the children to the United States. Under the first contingency in
Paragraph O, Petitioner and the Italian court authorized Respondent to return to
the United States with the children (1) if Petitioner failed to pay several rent
installments resulting in legal proceedings against the Petitioner and Respondent
and (2) if Respondent could demonstrate that she found a job. Under the second
alternative contingency, Respondent was authorized to return to the United States
with the children (1) if Petitioner failed to deposit into her account at least
four months of spousal and child support; (2) if Respondent was without income
that would enable her to support herself and the children in Italy in light of
Petitioner's failure; and (3) if Respondent could demonstrate that she found a
job. The court thus agreed with Respondent that the condition requiring Respondent
to be "unable to support herself" applied only to the circumstance in which
Petitioner fails to deposit four months of spousal and child support payments as
required by the separation agreement. The structure and text of Paragraph O
supported this interpretation.
Applying Paragraph O according to the interpretation set forth above, the court
concluded that the conditions of Paragraph O have been met and that Respondent was therefore authorized to remove the children from Italy and to return with them to
the United States.
The Court found that the children's habitual residence at the time of their removal was Italy. The Italian court ratified and so ordered the April 2011 Separation Agreement only after "[c]onsidering the opinion expressed by the public
prosecutor's office ... after having verified that the conditions of the separation are not contrary to the law, the public order and the public morality." Thus, Paragraph O permitted Respondent to remove the children and relocate to the United States. The Court held that as testified to by Petitioner's Italian law expert, in Italy, where, as here, an agreement sets forth conditions triggering a parent's right to remove the children and relocate to another country, the realization of those conditions alone is sufficient to permit that parent to exercise that right. The Court rejected Petitioner’s reliance upon a letter from the Italian Central Authority, in which the Central Authority apparently determined that Respondent's removal of the children was wrongful under 574-bis of the Italian Penal Code. In its letter, the Central Authority advised that Respondent was under criminal investigation for child abduction under Italian Penal Code 574-bis and that "in spite of the agreements signed within consensual separation proceedings, [Respondent's] sudden disappearance with her children without previously informing the father thereof is considered as a criminal offence in our legal system." The court accorded no weight to the cursory statement contained in the Central Authority's letter, particularly in light of the admitted lack of notice and opportunity for Respondent to offer facts that would have provided the Italian authorities with a more complete and balanced understanding of the circumstances. The court noted that, as it had previously determined at trial, the Central Authority's letter, although admitted into evidence, did not constitute an Article 15 letter under the Hague Convention because neither the court nor the United States Department of State requested Petitioner to obtain this ruling from the Central Authority. see Hague Convention, art. 15. Moreover, even if the letter were an Article 15 determination, the court could take notice of, but was not bound by that determination. See Norden-Powers, 125 F.Supp.2d at 635 n. 1 (noting that the court "may under Article 15 take notice of ... decisions" made by the Australian family court).
For these reasons, the court found that Petitioner had failed to establish, by
a preponderance of the evidence, that his custody rights were violated and that
Respondent's removal of the children was wrongful within the meaning of the Hague
Convention. As such, Petitioner failed to establish his prima facie case that
Respondent's removal of the children on April 24, 2012 was wrongful. The Court concluded that Paragraph O constituted Petitioner's pre-committed consent to Respondent's departure from Italy conditioned upon the satisfaction of Paragraph
O's enumerated conditions. A.A.M., 840 F.Supp.2d at 632 (quoting Hague Convention,
art. 13(a)). Paragraph O set forth the parameters that would trigger Petitioner's consent to Respondent's removal of the children to the United States. All of those parameters were indisputably met.
In addition to Petitioner's failure to satisfy his prima facie burden to establish that the children were removed wrongfully in violation of his custody rights, Respondent also established, by a preponderance of the evidence, that Petitioner both consented to Respondent's removal of the children when Respondent informed him of her plans prior to her departure in April 24, 2012, and also consented by agreeing to Paragraph O, pursuant to which the conditions precedent came to pass prior to her removal of the children from Italy.
Paragraph O also authorized Respondent to retain the children in the United
States in late June 2012. In many ways, the court's analysis with respect to
Respondent's April 2012 removal of the children from Italy applied with equal, if
not greater, force to Respondent's retention of the children in June 2012. All of
the conditions precedent necessary to trigger Respondent's retention rights under
Paragraph O came to pass prior to her June 2012 determination to retain the
children in the United States. Petitioner had already failed to pay months of rent
and child and spousal support, and Respondent, who had a job of which Petitioner
was fully aware, was unable to support herself and the children in Italy because
of Petitioner's routine failure to satisfy his obligations under the April 2011
Separation Agreement. The court determined that Paragraph O of the April 2011 Separation Agreement, the conditions of which were fully satisfied by Petitioner's routine failure to fulfill his support and rent obligations, by Respondent's job as the owner of her own company and a freelance worker for design companies (and Petitioner's knowledge thereof), and by Respondent's inability to support herself and the children because of Petitioner's habitual failure to comply with his court-ordered support obligations-authorized Respondent to return and remain in the United States with the children. Petitioner's request for relief under the Hague Convention was denied and the petition was dismissed.
Tuesday, November 27, 2012
Vujicevic v Vujicevic, 2012 WL 5896766 (S.D.N.Y.) [Croatia] [Federal & State Judicial Remedies] [Service of Process]
In Vujicevic v Vujicevic, 2012 WL 5896766 (S.D.N.Y.) petitioner filed a Verified Petition for the Return of the Child to Croatia on September 21, 2012. On October 9,
2012, petitioner filed a Petition for Warrant in Lieu of Writ of Habeas Corpus. Six days later, on October 15, 2012, the Court filed a Memorandum declining to grant the Petition for Warrant due to lack of personal jurisdiction, without prejudice to reconsideration if petitioner later established jurisdiction. Vujicevic v. Vujicevic, No. 12 Civ. 7149, 2012 WL 4948640 (S.D.N.Y. Oct. 15, 2012). In its Memorandum, the Court noted that it could exercise personal jurisdiction over respondent only if respondent had been served. The Court also observed that service was specifically required by the International Child Abduction Remedies Act, 42 U.S.C.11601-11610 (2006) (citing 28 U.S.C. s 1738A(e) (2006); 42 U.S.C. § 11603(c); N.Y. Dom. Rel. Law § 76-d (McKinney 2012)). Because the docket sheet indicated that respondent had not yet been served, the Court concluded that it did not have personal jurisdiction over respondent.
On October 16, 2012 petitioner filed a Motion for an Order to the United States Marshal to Serve Respondent. In that Motion, petitioner noted that under ICARA,
service must be effected pursuant to New York law, specifically section 308 of the
C.P.L.R. (citing Vujicevic v. Vujicevic, 2012 WL 4948640; Ebanks v. Ebanks, No. 07-CV-314, 2007 WL 2591196, at *3 (S.D.N.Y. Sept. 6, 2007)). Petitioner argued that service under subsections (1), (2), or (4) of section 308 was impracticable because petitioner was unaware of respondent's exact whereabouts or her "actual place of business, dwelling place or usual place of abode.".Petitioner contended, however, that respondent was likely present in New York State and that service under subsection 308(5) was appropriate. C.P.L.R. §308 provides, in part:"Personal service upon a natural person shall be made by any of the following methods: ... 5. in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section.". Noting that the Court had authority to order the U.S. Marshal to effect service and that the Department of State had information that might aid the Marshal in locating respondent, petitioner moved for an Order to Show Cause, to prohibit the removal of the child from this jurisdiction, and to direct the U.S. Marshal to serve respondent and to seize all passports and travel documents for respondent and the child.
On October 22, 2012, the Court issued an Order to Show Cause, directing, that the U.S. Marshal "(I) serve Respondent with a copy of th [e] Order, as well as the Verified Petition (and all attachments), and (ii) seize all passports and travel documents for the Respondent Adriana Vujicevic and the Child, ."Vujicevic v. Vujicevic, No. 12 Civ. 7149 (S.D.N.Y. Oct. 22, 2012). Since the Order to Show Cause was issued, the U.S. Marshal diligently attempted to serve respondent. The Marshal was not been able to serve respondent within New York State.
The Court noted that under Rule 4(m) of the Federal Rules of Civil Procedure, a petitioner has 120 days from the date on which his Verified Petition was filed to achieve service. Although New York law governs the method by which the Hague Convention petitioner was required to effect service, Federal Rule of Civil Procedure 4(m) governs the deadline for service. If a petitioner fails to serve a respondent within 120 days, "the court-on motion or on its own after notice to the [petitioner]-must dismiss the action without prejudice against that [respondent] or order that service be made within a specified time."Fed.R.Civ.P. 4(m). The Court directed that unless petitioner effected service or could show good cause why his time to serve should be extended, the matter would be dismissed without prejudice on January 22, 2013.
Tuesday, November 20, 2012
In Walker v Walker, 2012 WL 5668330 (C.A.7 (Ill.) Iain Walker, a citizen of Australia, filed suit to compel his wife, Norene, a citizen of the United States, to return the couple's three children to Australia. Iain and Norene were married in Chicago in 1993. They lived in Seattle, Washington, until 1998 when they moved to Perth, in Western Australia. The couple's eldest child was born in the United States in 1997, but lived in this country only one year; the two younger children were born in Australia in 1999 and 2001.
Although Norene testified that she and Iain initially intended to stay in Australia for only five years, they ended up spending 12 years there. Over this period, they and their children appeared to be well-settled: they owned a home, furniture, and a dog named Chubba; the children attended school, had friends, and participated in activities; and Iain worked as a software test engineer while Norene cared for the children.
In June 2010, the Walkers traveled to the United States. When they left Australia,
both Iain and Norene expected that Norene and the children would remain in the United States for six months to one year. According to Iain, the plan was for Norene and the children to live with Norene's parents in Chicago while the family demolished its existing house in Perth and built a new one. According to Norene, the trip was intended as an extended prelude to a permanent move to the United States; she testified that Iain promised to look for a job in Chicago and that they looked at real estate in San Francisco and Seattle. Although both recalled that Norene and the children had concrete plans to return to Australia by June 2011 at the latest, Norene labeled this most likely a temporary visit and Iain understood it to be a permanent return. After spending several weeks with Norene and the children in the United States, Iain returned to Australia in late July 2010. In November, Norene filed for divorce in Cook County, Illinois. As of that time, she said, she had not made up her mind whether she (and presumably the children) would remain in the United States permanently or return to Australia.
Upon receiving Norene's petition for divorce, Iain's lawyer in Australia sent a letter to Norene's attorney offering to settle the divorce out of court. The letter also dealt with the division of property. Notably, the letter explicitly referred to the Hague Convention. On Iain's behalf, the lawyer asserted that "[t]he parties' habitual residence is quite clearly Australia," and that Iain "would clearly be entitled to bring an Application under the Hague Convention to have the children returned to Australia."In closing, the letter stated "this offer is open for a period of 7 days ... and if not accepted [Iain] will then proceed to exercise his full rights pursuant to the Hague Convention, and do all that is required to ensure that proceedings are transferred" to the Family Court of the State of Western Australia. The January 21 letter marked a turning point for Norene. She regarded it as giving her permission to stay in the United States and indicating that Iain "didn't want the kids." She testified that shortly after receiving the letter, she made up her mind not to return to Australia. The negotiations ended without a resolution in mid-February. Iain immediately filed a request for the return of the children with the Australian Central Authority charged with administering the Convention. In May, Iain filed a petition for return in the district court for the Northern District of Illinois. Following a two-day evidentiary hearing, the district court denied the petition.
The Seventh Circuit rejected Noreens argument that the case was mooted by an Illinois state-court judgment awarding sole custody of the children to Norene.
According to Norene, the Illinois judgment conclusively resolved the parties'
custody dispute in her favor and precluded the court from ruling that the Hague
Convention required the custody determination to occur in the courts of Australia.
It observed that Article 17 of the Hague Convention expressly states that "[t]he sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention." This treaty provision qualifies the finality of any state-court custody judgment and thus ensures that there is still a live controversy before the federal court.
It distinguished Navani v. Shahani, 496 F.3d 1121 (10th Cir.2007) which did not address this question. The issue of habitual residence, and thus the question of which country's courts had the power finally to determine custody under the Convention, was not before the court in Navani. Here, Iain and Norene disputed habitual residence. Until that question is resolved, it could not say which country's courts had the power to resolve the issue of custody. As Article 17 of the Convention implies, this antecedent question must be answered before the court knows what weight to give to the judgment of the Illinois court. Accepting Norene's position that an abducting parent may render a petition for return moot by racing to a courthouse in her chosen country to obtain a custody judgment would turn the Convention on its head. To consider this case moot would encourage the very sort of jurisdictional gerrymandering the Convention was designed to prevent.
The Court of Appeals also held that the district court's decision to admit the January 21 letter into evidence over Iain's objection that the letter was an offer of settlement and thus inadmissible under Federal Rule of Evidence 408 was error. Iain challenged the district court's findings that he (1) failed to establish that the children were habitually resident in Australia; (2) failed to establish that he was exercising his custody rights; and (3) consented to the children remaining permanently in the United States.
The district court identified May 4, 2011, the day Iain filed his petition for return in the district court, as the date the retention began. It considered that to be the date when
Iain first "unequivocally signaled h[is] opposition to [the children's] presence in the
United States."Although Iain had expressed his intent to file a petition for return of the children in the January 21 letter (and again in a follow-up letter on February 16), the district court declined to view these statements as "unequivocal[ ] signal[s]" of opposition because, in the court's view, "it was apparent that Petitioner was referring to the Convention as a bargaining chip." Nothing but speculation supported the
district court's "bargaining chip" idea. The January 21 letter unequivocally said that "[t]he parties' habitual residence is quite clearly Australia."It goes on to point out that the "clearly appropriate forum" for the parties' divorce proceedings is Australia and that it is "an abuse of process to unilaterally decide to remain in the United States."It then repeats that "Western Australia is the habitual residence of the children."Finally, the letter announces Iain's intent to file a petition under the Hague Convention, a step that he confirmed in his February 16 letter. Under the circumstances, it was hard to see how much more "unequivocal" one could be. For purposes of analysis, the court assumed that the retention began on January 21, or, at the latest, several weeks thereafter.
The Court of Appeals observed that to prevail on his petition, Iain was required to show that Australia was the children's habitual residence at the time of their retention in the United States. It explained in detail how to determine a child's habitual residence in Koch v. Koch, 450 F.3d 703 (7th Cir.2006). In a case of wrongful detention the court determines a child's habitual residence by asking whether a prior place of residence ... was effectively abandoned and a new residence established by the shared actions and intent of the parents coupled with the passage of time. Because the parents often dispute their intentions, "the court should look at actions as well as declarations" in determining whether the parents "shared an intent to abandon a prior habitual residence."
The district court found that the children's habitual residence became the United States by January 21, 2011, at the latest. This conclusion was premised on the
following findings: that Iain consented to the children's living in the United States in
the January 21 letter; that five months passed between the letter and the filing of
the petition for return in district court; and that Iain and Norene looked for houses in
the United States. The first finding fundamentally misreads the January
21 letter. The problem with the second finding was that Iain took prompt steps to secure the children's return by filing a request for return with the Australian Central Authority in mid-February 2011, as soon as it became apparent that a negotiated settlement was not forthcoming. The Court could not find enough in the record to support the conclusion that Iain and Norene arrived in the United States with the shared intention of abandoning Australia and establishing a new habitual residence here.
Assuming that the children's habitual residence was Australia, Iain must still show he
was "actually exercis[ing]" his custody rights at the time of the retention. Art. 3. The
standard for finding that a parent was exercising his custody rights is a liberal one, and courts will generally 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." Bader v. Kramer, 484 F.3d 666, 671 (4th Cir.2007) Indeed, "a person cannot fail to 'exercise' [his] custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child." Friedrich, 78 F.3d at 1066. Although it acknowledged the liberal nature of the standard, the district court nevertheless found that Iain had "abandoned" his children. In support of this rather
extreme conclusion, the court noted that Iain did not return to the United States after
July 2010, that he ceased supporting Norene financially after January 21, 2011, and
that his January 21 letter was mainly concerned with "the negotiation of support
payments and property settlement." All of those things may be true, but they did not add up to "unequivocal abandonment" of the children (as opposed, perhaps, to Norene). The district court overlooked Norene's undisputed testimony that Iain keeps "regular contact" with the children by speaking to them weekly over Skype. Just as the January 21 letter did not show that Iain consented to the children's remaining in the United States, it similarly did not show that Iain was interested exclusively in reaching a settlement regarding marital property. A letter that requests custody for the children's entire summer vacation plus Christmas and asks for multiple visitation opportunities at other times of the year can hardly be characterized as indifferent to custody issues.
lain's lack of financial support after January 21, 2011, was not enough for a finding of abandonment. Because non-exercise is evaluated at the time of the retention, which must have occurred on January 21 or shortly thereafter, lain's failure to provide support after the retention was irrelevant to whether he was exercising his custody rights when the wrongful retention began. See, e.g., Baxter v. Baxter, 423 F.3d 363, 369 (3d Cir.2005) The cases that address some version of this issue have found that a parent does not fail to exercise his custody rights merely by failing to provide financial support for some period prior to the removal or retention. The Court could not find on the current record that Iain's failure to provide financial assistance while Convention proceedings are pending amounted to a failure to exercise his custody rights.
Even if Iain had established a case for return under the Convention, he could
have waived that right if he consented to, or acquiesced in, the children's remaining in the United States with their mother. Art. 13. Consent and acquiescence are analytically distinct defenses to return under the Convention. Baxter, 423 F .3d at 371. The consent exception applies when a petitioning parent, either expressly or through his conduct, agrees to a removal or retention before it takes place. A parent's consent need not be formal, but "it is important to consider what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country. Acquiescence is implicated if a petitioning parent agrees to or accepts a removal or retention after the fact. Baxter, 423 F.3d at 371. Unlike consent, acquiescence must be formal, and might include "testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time." One way or another, the "exceptions [must] be drawn very narrowly lest their application undermine the express purposes of the Convention. The Article 13 exceptions are permissive: a court may order return even if it finds that the parent opposing the petition has established that one of the exceptions applies.
The district court found that Norene had established consent. The bases for this
conclusion were the January 21 letter, which the district court characterized as indicating Iain's "unconditional consent" to the children remaining in the United States, Iain's failure to visit the United States after July 2010, and his failure to provide financial support. The January 21 letter could not be read as an expression of consent, let alone unconditional consent, to anything. The letter was an opening offer, a single stage in a negotiation; it conceded nothing and in any event was rendered null by the parties' failure to come to an agreement. Apart from the letter, the district court's remaining justifications were either clearly erroneous or irrelevant.
Having concluded that the district court's decision the Court remanded for further fact finding setting forth the questions the district court must resolve taking evidence as necessary.