New York Matrimonial Trial Handbook
The by Joel R. Brandes is available in Bookstores and online in the print edition , . It is also available and for all ebook readers in our bookstore. The New York Matrimonial Trial Handbook is divided into five parts: (1) Preliminary Matters Prior to the Commencement of Trial, Conduct of Trial and Rules of Evidence Particularly Applicable in Matrimonial Matters; (2); Establishing Grounds for Divorce, Separation and Annulment and Defenses; (3) Obtaining Maintenance, Child Support, Exclusive Occupancy and Counsel Fees; (4) Property Distribution and Evidence of Value; and (5) Trial of a Custody Case. There are thousands of suggested questions for the examination and cross-examination of witnesses dealing with very aspect of the matrimonial trial. Click and
The New York Matrimonial Trial Handbook was reviewed by Bernard Dworkin, Esq., in the New York Law Journal on December 21, 2017. His review is reprinted on our website at with the permission of the New York Law Journal.
Joel R. Brandes, is the author of Law and The Family New York, 2d (9 volumes) (Thomson Reuters), and Law and the Family New York Forms (5 volumes) (Thomson Reuters). Law and the Family New York, 2d is a treatise and a procedural guide. Volume 4A of the treatise contains more than 950 pages devoted to an analysis of the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. It contains a complete discussion of the cases construing the Convention which have been decided by the United States Supreme Court, the Circuit Courts of Appeal, the District Courts, and the New York Courts.
Sunday, July 29, 2012
Saldivar v Rodela, 2012 WL 2914833 (W.D.Tex.) [Mexico] [Habitual Residence] [Rights of custody] [Consent]
In Saldivar v Rodela, Slip Copy, 2012 WL 2914833 (W.D.Tex.) D.I.R.A. was the only child of Acosta and Rodela. Acosta was a Mexican citizen and held a United States permanent resident card. She lived most of her life in Ciudad Juarez, Chihuahua, Mexico. Rodela, who was an American citizen, grew up in Juarez, until he was twelve years old; he now lived in El Paso, Texas. Ciudad Juarez and El Paso are located next to each other on the border between the United States of America and the United States of Mexico.
In June 2002, Acosta and Rodela got married. Prior to their marriage, they lived in Juarez, but moved to the United States when they got married by the church in August that year. Following their marriage, they lived in El Paso for a few months and then moved back to Juarez around March 2003. In June 2004, D.I.R.A. was born at a hospital in El Paso, Texas. At the time of the child's birth, the parties were living in a rented home in Juarez. After his birth, Acosta, Rodela, and the child stayed in El Paso for a few days-not more than two months by Rodela's account-long enough to allow the mother to recuperate. Thereafter, Acosta and Rodela moved back to Juarez with the child. Once in Juarez, Acosta, Rodela, and D.I.R.A. lived in multiple rented homes, until sometime in 2007, when Rodela and Acosta purchased a house there. The house was located on a street across from and in front of the house of Maria del Rocio Acosta Saldivar, Petitioner's sister. The family lived together in the purchased house until October 2010, when Rodela and Acosta separated and he moved to El Paso. Since their separation, D.I.R.A. lived with his mother in that house until his removal to the United States in January 2012. Acosta continued to live there.
After the parties' separation in 2010 and prior to D.I.R.A.'s removal in January 2012, D.I.R.A. spent weekends with his father in El Paso. On occasion, the father visited the child in Juarez during weekdays after his school. During his school-break in summer 2011, D.I.R.A. stayed with his father in El Paso for three to four weeks. On August 10, 2011, Rodela filed a petition for divorce in the 388th Judicial District Court of Texas in El Paso. In his petition, he also sought sole custody of D.I.R.A. Acosta was not aware of this filing until sometime later. On Saturday, January 7, 2012, shortly before noon, Rodela arrived at the family's house in Juarez to take D.I.R.A. to El Paso. Acosta believed the child's trip to El Paso would be for that weekend only. She asked Rodela to return the child by 9:00 p.m. on Sunday, January 8, 2012, and Rodela agreed. The child picked up a few toys and his backpack, and left with the father. On January 8, when the child was not returned, Acosta called Rodela on his cellphone several times beginning at around 9:00 p.m., but her calls went unanswered. On the morning of January 9, she called Rodela again and asked him to return the child. Rodela instructed her to meet at the Ysleta-Zaragoza International Bridge for the purpose of returning D.I.R.A. When she arrived at the bridge on the Mexican side, she called Rodela on his cellphone, and he told her that he could not cross the bridge because he had lost his wallet and his ID. Explaining that it would not be safe for the child to cross over to the Mexican side by himself, Rodela instructed Acosta to cross the bridge to the American side to pick up the child. When she did as instructed, a process server approached her and served her with Rodela's petition for divorce. Neither Rodela nor D.I.R.A. met Acosta at the bridge; D.I.R.A. was not returned. D.I.R.A. now resided with his father at his paternal grandmother's home in El Paso.
On March 5, 2012, Acosta filed a petition under the Convention with the District Court. On March 28, 2012, Acosta filed a petition for divorce in the First Family Court of Bravos Judicial District in Juarez. In that petition, she also sought custody of the child. The District Court found that at the time of his removal, D.I.R.A. was enrolled in second grade at Colegio Latino Americano in Juarez and was mid-way through 2011-2012 academic year. Prior to that, he completed first grade and kindergarten, also in Juarez. Beginning January 9, 2012, he attended Lujan Chavez Elementary School in El Paso. At around the age of three, D.I.R.A. began to show signs of developmental and behavioral problems. He had difficulties with sustaining attention, following instructions, dealing with authority figures, and interacting with children of his age. The mother described that on occasion, he would refuse to go outside of home, would be found naked in the home, and would hit himself and cry. Between 2008 and 2010, he received therapy at a Chihuahua state facility, where twice a week he attended classes for children with special needs. With therapy, his condition improved, but in the recent years, following his parents' separation, it worsened.. During the parties' marriage and prior to their separation, Rodela held jobs in El Paso, though he lived in Juarez. During the same period, Acosta did not work. After their separation, she began to work in Juarez and continued to work there as of this date.
Acosta requested that D.I.R.A. be returned to Mexico because Rodela's retention of the child in the United States was wrongful under Article 3 of the Convention. The Court observed that in Mozes v Mozes, 239 F.3d 1067, the Ninth Circuit set out an elaborate approach for determining a child's habitual residence.. Under this approach, the focus of the inquiry is the parents', not the child's, subjective intention about the child's habitual residence. In applying that approach, a court must also inquire whether the child has lived in the country for "an appreciable period of time ... that is sufficient for acclimatization." D.I.R.A. lived essentially his entire life in Mexico. Although he was born at a hospital in El Paso, his parents were residing in Juarez for more than a year at the time of his birth. Following his birth, they stayed in El Paso for a few days and then returned to Juarez with the newborn. Since then, D.I.R.A. lived in Juarez until his removal in January 2012. There, he grew up surrounded by members of his extended family including his maternal grandmother, aunts, uncles, and eighteen cousins. With them, he developed a meaningful relationship. Acosta's sister (Rocio), who lived across from the child's house, cared for the child whenever Acosta had to run an errand. With his cousins, he celebrated holidays and birthdays. Moreover, in Juarez, he completed his kindergarten and first grade education, and at the time of his removal, he was enrolled in second grade. He also had friends with whom he played soccer after school. These facts led to the conclusion that D.I.R.A. was highly acclimatized and firmly rooted in Juarez. Rodela contended that when they translocated from the United States to Mexico in or around March 2003, they had a mutual intention that their stay in Mexico would last for a temporary period of time until they were financially able to buy a home in El Paso; the parties had lived in El Paso for six to eight months following their marriage. Acosta flatly denied that, stating that they moved to Mexico to live there for the long haul. Although the parties agreed that economic reasons motivated their move to Mexico (housing was cheaper in Juarez than in El Paso), Acosta testified that they had another reason for the move: Rodela, who grew up in Juarez until he was twelve years old, liked living there. Rodela's contention notwithstanding, subsequent events suggested that the parties adopted Juarez as their home. By late 2010, when the parties separated, they had lived together in Juarez for more than seven years. In 2007, they even bought a house in Juarez (the house appears to have been paid for in full at the time of its purchase), where the child and the parties lived. During this period, the only routine aspect of their daily lives that had a connection to the United States was Rodela's employment in El Paso. (In this part of the world, living on one side of the border and working on the other side is fairly commonplace.) Under these facts, even if the parties had a shared intention to someday return to the United States, they effectively abandoned their prior residence in that country and established a new one in Mexico. Rodela pointed out that Acosta obtained a U.S. resident alien card in 2009 and a Texas driver's license in 2010, which, according to him, indicated that they shared an intent to move back to El Paso. According to Acosta, she acquired the resident alien card as insurance against a possible eventuality. At best, the mother's acquisition of the resident alien card and the driver's license suggested that they were developing a tenuous plan to someday move to the United States and abandon their residence in Mexico. However, the parties never actually followed through with that plan. While the transformation of a child's habitual residence depends upon the settled intention of the parents, it cannot be accomplished "by wishful thinking alone." Mozes, 239 F.3d at 1078. It "requires an actual change in geography, as well as the passage of an appreciable amount of time." Koch v. Koch, 450 F.3d 703, 715 (7th Cir.2006). The Court found that the parties had no shared, settled intention about the child's habitual residence. Thus, to the extent that D.I.R.A. was highly acclimatized in Mexico, the Court concluded that Mexico was the country of his habitual residence immediately prior to his removal to the United States.
Acosta claimed that her "rights of custody" arose by operation of Chihuahua's civil law doctrine or institution of patria potestad, meaning parental rights or authority. At trial, Acosta submitted into evidence an affidavit by Mexican attorney Mariano Nunez Arreola, which explained some of the relevant Mexican laws.. Pursuant to Rule 44.1, Arreloa's affidavit was acceptable as proof of Mexican laws. The Court relied upon Arreola's affidavit and, when necessary, upon publically available, relevant materials on Mexican laws. The Court found that under the Mexican law, Acosta and D.I.R.A. were domiciled in Chihuahua at the time of his removal to the United States. Consequently, Mexico's choice of law rules directed that the Chihuahua Civil Code governed the determination of whether Acosta had "rights of custody" under the Convention.
The Court noted that the institution of patria potestad "regulates relations between parents and children until the latter reach the age at which they must fend for themselves." It is largely governed by the civil codes of Mexican states. Designed to protect the interest of children, patria potestad constitutes the "most comprehensive" right that a parent can exercise over the person and property of his or her minor children. As with the Federal Civil Code and the civil codes of other Mexican states, Chihuahua's Civil Code embodied the same concept of patria potestad comprising a bundle of correlative rights over a minor child. Chih. Civ.Code, tit. 8, ch. 1, art. 388 et seq. These rights are equally shared by the mother and the father. Id ., art. 391 (providing that parental authority over children shall be exercised by the father and mother). In case of separation, parents can "agree on the terms of their exercise of parental authority, particularly in regards to the custody and care of minors," and if the parents are unable to reach an agreement, a judge decides the parents' respective rights. Chih. Civ.Code, art. 393; Absent an agreement or a court ruling, the parents' rights and obligations under patria potestad continue during their separation. Chih. Civ.Code, art. 393; Following their separation in 2010, Acosta and Rodela had not reached a formal agreement as to their parental rights over D.I.R.A. Moreover, there has not been any court ruling regarding the allocation of their rights; nor has there been any court judgment that stripped of either parent's patria potestad over D.I.R. A. The Court t found that Acosta and Rodela continued to jointly and severally share all of the rights derived from the institution of patria potestad. Cf. Hague Convention, arts. 3(a)-(b) (recognizing that "rights of custody" may be held "jointly or alone"). Chihuahua's institution of patria potestad gave Acosta both "the right relating to the care of the person of the child" and "the right to determine the child's place of residence" as contemplated under Article 5(a) of the Convention. The Chihuahua Civil Code's provisions governing patria potestad expressly gave her the rights to live with the child, to provide physical care (guarda ) to the child, to educate the child, and to discipline the child. Chih. Civ.Code, arts. 390, 394, 399, 400, 402; Additionally, parents with patria potestad are required to raise their minor children correctly and to conduct themselves in a manner so as to set a good example for their children. Id. art. 400. These extensive rights are clearly the "right[s] relating to the care of the person of the child." Hague Convention, art. 5(a). Moreover, while the Chihuahua Civil Code gives a parent having patria potestad over a child the right to live with that child, it also places a reciprocal obligation on the child not to leave the home of that parent without her permission. Chih. Civ.Code, arts. 394, 398. See also Chih. Civ.Code, art. 32(1) (providing that an un-emancipated minor, like D.I.R.A., is deemed as legally domiciled with the person who exercises patria potestad over him). It followed therefore that Chihuahua's patria potestad gave Acosta, who was free to reside anywhere, the right to determine D.I.R.A.'s "place of residence"-be it an address in Mexico or the country of residence-and consequently the "right to determine the child's place of residence." Hague Convention, art. 5(a); Abbott, supra, 130 S.Ct. at 1991. That conclusion was further reinforced by the amendatory language of Article 398 of the Chihuahua Civil Code. Article 398 gives a parent the right to consent before her child can be removed or retained away from Mexico. Article 398 is therefore a ne exeat-plus provision. Under ne exeat, a civil law doctrine, a parent's consent is required before her child can be taken to another country. The Supreme Court has held that ne exeat rights are "rights of custody," reasoning that ne exeat gives a parent the right to determine his child's country of residence, and thereby the right to "determine the child's place of residence" as contemplated under Article 5(a) of the Convention. Abbott, 130 S.Ct. at 1990-91. Acosta's Article 398 right to consent gave her the right to determine D.I.R.A.'s country of residence, and thereby the right to "determine the child's place of residence."
Accordingly, the Court concluded that Acosta's rights pursuant to Chihuahua's institution of patria potestad were "rights of custody" under the Convention. The Court found that Rodela's retention of D.I.R.A. in the United States was in breach of Acosta's custody rights. Specifically, because Acosta did not consent to Rodela's retention of the child in the United States, his retention was in breach of Acosta's right to consent before D.I.R.A. could be retained away from Mexico, as provided under Article 398 of the Chihuahua Civil Code. His retention also breached Acosta's other rights under Chihuahua's patria potestad, such as her rights to live with the child and care for the child, as his retention precluded her from exercising those rights.
The court found that she was actually exercising her custody rights at the time of D.I.R.A.'s removal and retention. Courts in this country have construed the term broadly in order to avoid crossing the line into a consideration of the underlying custody dispute. Sealed Appellant, 394 F.3d at 344. Under the courts' liberal construction, a non-removing parent with rights of custody cannot fail to exercise those rights short of acts that constitute abandonment of the child. Id. at 345.The non-removing parent need only adduce "some preliminary evidence that he or she actually exercised custody of the child, for instance, took physical care of the child."
Having found that Acosta established a prima facie entitlement to the return remedy, the court pointed out that respondent asserted the defense of consent. A child may not be returned to his country of habitual residence if the removing party can show, by a preponderance of the evidence, that the non-removing party "had consented to ... the removal or retention." Hague Convention, art. 13(a); 42 U.S.C. s 11603(e) (2)(B)."The consent defense involves the petitioner's conduct prior to the contested removal or retention." Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir.2005) (citations omitted). The consent inquiry turns on the subjective intent of the parent who is claimed to have consented. .Further, " 'each of the words and actions of a parent during the separation are not to be scrutinized for a possible waiver of custody rights.' " Simox v. Simox, 511 F.3d 594, 603 (6th Cir.2007).
Rodela testified that during the last week of December 2011, he met with Acosta in Juarez to discuss the child's schooling. At the meeting, he related to Acosta that he wanted the child to attend school in El Paso. He also testified that previously the parties had exchanged emails, wherein he explained that it would be too expensive to have the child reside in Mexico (thus be considered a resident of Mexico for purposes of tuition and fees) and attend school in El Paso; he suggested that the child should live with Rodela's mother in El Paso. The meeting and the emails show, according to Rodela, that Acosta agreed to let the child live and attend school in El Paso beginning January 2012. He further testified that he made arrangements for the child to live with Rodela's mother at her home in El Paso, and that a few days before D.I.RA.'s removal, Rodela moved into her home (previously he stayed with his uncle in El Paso). Thus, when he arrived at Acosta's house on January 7, 2012, Rodela maintained, he did not agree to return the child by the next day; he was there to pick up the child and relocate him to El Paso permanently. During her testimony, Acosta denied that she ever agreed to let the child live and attend school in El Paso.
The determination of this issue turned on who was more credible. To that end, the timing of and the surreptitious manner in which Rodela served process on Acosta undercut his credibility. On the morning of January 9, when the mother called him for the child's return, he instructed her to meet him at the Ysleta-Zaragoza International Bridge. According to his own testimony, they were going to discuss the child's schooling at the bridge, but he also gave Acosta specific instructions to cross the bridge so that she could be on the American side of the border (he testified that she was supposed to cross over the bridge). But what transpired next at the bridge was not a meeting for such a discussion, but a service of process on Acosta; neither Acosta nor D.I.R.A. was there to meet her. Accordingly, the Court found that at the time D.I.R.A. was removed to the United States, Acosta agreed only to let the child stay with Rodela until January 8, 2012, and that she did not consent to Rodela's retention of the child in the United States beyond that date.
At trial, Rodela alleged that Acosta subjected the child to physical and psychological abuse. He averred that, on several occasions, Acosta struck the child with a stick and a belt. At times, he further claimed, Acosta struck her hand to the child's head, face, and leg. He also asserted that Acosta yelled at the child. These conducts, according to Rodela, resulted in family violence under Texas law. At trial, Rodela introduced a demonstrative evidence of the stick: it is 1-1/2 feet long, 1-1/2 inches wide, and 1/4 inches thick, and weighs about two ounces. According to the testimony of Rocio, Petitioner's sister, Rodela used to bring those sticks to the parties' home because the child liked to play with them and use them as swords. Rodela testified that although he never saw any marks on D.I.R.A.'s body, the child suffered psychological harm. He related that the child "freezes"-presumably because of the psychological harm done to him by his mother. Acosta testified that she had one such stick. In her family, she explained, such sticks are known as "magic stick" or the "wisdom stick," and they are used to discipline children: swat a child with it once and she/he will be scared of it. In case of D.I.R.A, she would say in his presence "where is that stick?" or "I am going to look for the stick"; that, she said, would be enough to secure his obedience. She further testified that during the child's entire life, she struck him with the stick only on three occasions; and on each occasion, she struck him only once and only on his buttocks. She also testified that on one occasion, when the child was hitting the wall with a belt, she took the belt away from him and struck him with the belt. Other than these four occasions, she stated, she never hit the child. She vehemently denied Rodela's characterization that she abuses or hits the child as a matter of course. Acosta also introduced a deposition testimony by one Veronica S. Torres, who was a special education teacher at Centro de Atencion Multiple, a Chihuahua state facility in Juarez. It was there that the child received therapy for his developmental and behavioral problems between 2008 and 2010. Torres's testimony revealed that after D.I.R.A.'s removal, Rodela took the child to Torres, asking her to evaluate whether the child had been a victim of mistreatment. She testified that based on her evaluation, she observed no sign of any physical or psychological mistreatment. She further testified that over the course of her dealing with D.I.R.A. since 2008, she never observed any sign that the child might have been subjected to any aggression, mistreatment, or abuse. At trial Rodela presented no expert or opinion (other than his own) testimony in support of his allegations of physical and psychological harm, even though prior to trial, he filed a witness list, listing as witnesses, among others, a child protective representative and a licensed professional counselor, who allegedly treated the child for physical and emotional harm. The Court found that the evidence presented fails to meet the demanding burden for establishing an exception under Article 13(b) of the Convention. Accordingly, Rodela's defense on this ground failed and the court granted the petition for return to Mexico.
In Edoho v Edoho, 2010 WL 3257480, (S.D. Texas, 2010) Godwin A. Edoho filed a petition for the return of his children to the Bahamas. On June 24, 2000, Godwin A. Edoho and Ekekere G. Edoho' were married in Lagos, Nigeria. By September 2002, they had moved to the Bahamas where they co-habitated as man and wife. Ekekere testified that Godwin regularly threatened to kill her. On September 19, 2003, the Bahamian police were called to the Edoho's home for a domestic disturbance. They warned Mr. Edoho to be on good behavior towards his wife. Ekekere testified that the threats did not cease until the time that she moved out. The couple's first son, Uduak Edoho ("Uduak"), was born in the Bahamas on January 11, 2004. He was now 6 years old. The couple's second son, Emem Edoho ("Emem"), was born in the Bahamas on August 19, 2006. He was 4 years old. According to Godwin's petition, Ekekere moved out of the marital home on March 17, 2008 while he was at work. Ekekere filed for maintenance and custody of the children. And, on April 8, 2008, the Bahamian court entered an order granting her custody of the children. Godwin was to keep the children three days a week; the balance of their time was spent with Ekekere. Additionally, the order stipulated that all travel must be agreed upon by the parents or, if necessary, granted by the court. On July 7, 2008, Ekekere filed for divorce predicated on cruelty. In her petition she alleged inter alia that Godwin had subjected her to physical, verbal, and emotional abuse; that he was violent and hot tempered; and that at one point he threatened to kill her and send her corpse back to Nigeria.
In September 2008, Ekekere left The Bahamas, taking Uduak and Emem with her. She traveled to Houston and lived openly with her sister, her sister's husband, and her sister's four children. At some point in September, Godwin called Ekekere's job and was told that she was traveling on vacation and would return at the end of November.
On September 2, 2008, Godwin filed an answer in the divorce proceedings denying the allegations of cruelty on his part and counterclaiming that, in fact, Ekekere was the violent one. He alleged, among other things, that she had attacked him with a cooking fork and a kitchen knife; that she refused to wash or clean the home; and that she tried to have him deported. At some point in early December of 2008, Godwin called Ekekere's place of work again and was told she was still not back from vacation.
Three months later, on March 13, 2009, Godwin filed a missing persons report with the Bahamian Police Department. According to the Bahamian Police report Godwin came home from work to find his wife and children missing on September 1, 2009.
On March 19, 2009, the Bahamian court entered an order disolving the marriage between Godwin and Ekekere, finding that Godwin's allegations of cruelty supported the dissolution. This order was entered against Ekekere in abstentia and her petition was dismissed for failure to prosecute. Ekekere remarried on March 24, 2009. She and the two boys moved in with her new husband, Frederick Pearson.
On May 4, 2009, Godwin filed an application for assistance with the U.S. Department of State pursuant to the Hague Convention requesting access to his children. He stated on his application that he was requesting access. On May 20, 2009, the Bahamian Ministry of Foreign Affairs contacted the U.S. Department of State regarding Godwin's Hague Convention application for access to his children. The letter stated that Godwin "does not wish to pursue voluntary return through a U.S. Department of State voluntary return letter." Notably, the letter also stated that Godwin "is in receipt of information from a private investigator that suggests his wife and children are allegedly in the state of Texas. Apparently, one of his children has been registered at a school in that state."
On July 24, 2009, the Bahamian Ministry of Foreign Affairs notified the U.S. Department of State that Godwin had opted to change his Hague Convention application from being granted access to the children to having the children returned to the Bahamas. . Godwin testified that on September 10, 2009, the Bahamian court issued an order granting him full custody of both children and enjoining Ekekere from removing the children from the jurisdiction of the court. However, the record contained only the pleading requesting custody, but no court order granting custody.
Godwin filed a petition for return of the children in the Southern District of Texas on May 25, 2010. The court held a hearing on the petition for return of the children. Godwin testified that he diligently sought his children's whereabouts. The letter dated May 20, 2009 from the Bahamian ministry stated that Godwin was in receipt of information that his wife and children were in Texas. Therefore, the Court concluded that Godwin knew his children were in Texas before May 20, 2009. Godwin explained that the reason he waited from the time he discovered their whereabouts until May 25, 2010 to file his petition was that it took him that entire period of time to retain a lawyer sufficiently versed in the Hague Convention to accept his case. Notably, Ekekere found and retained lawyers to defend her in this case within a few days. And, the U.S. Department of State has significant resources available to all parties involved in these Hague Convention cases, including lawyer referrals. Godwin's argument, therefore, lacked plausibility.
During her testimony, Ekekere alleged that Godwin was abusive to her and the children. She further explained that because her immigration status in the Bahamas was based on her nursing job and her marriage to Godwin, she lived in constant fear that Godwin would have her deported by using his influence to have her nursing contract cancelled. She also made specific allegations that Godwin had sexually abused their older son. Ekekere testified that the oldest son—Uduak—would start first grade this year. He attended kindergarden here last year. He was on the soccer team, had participated in a summer reading competition, and sang in the family's church's choir. She testified that the younger son—Emem—while too young for school participated karate class. Both children regularly attended Sunday school at the family's church along with their cousins. Ekekere had remarried to Frederick Pearson. The children got along well with their stepfather, calling him Daddy Fred. At the time of the hearing Pearson was unemployed. However, he had a job interview and testified to his intent to get a job through which he could buy health insurance for his wife and stepsons. Ekekere testified that she was in the process of applying for an adjustment of immigration status based on her marriage. The adjustment would also apply to the children.
The District Court observed that where, as here, the petition for return is brought more than a year after the removal of the children, the removing parent can prevent return by demonstrating that the children are settled in their new environment. Convention, art. 12. The Ninth Circuit had recently addressed the well-settled defense. "In determining whether a child is settled within the meaning of Article 12, we consider a number of factors that bear on whether the child has "significant connections to the new country." These factors include: (1) the child's age; (2) the stability and duration of the child's residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child has friends and relatives in the new area; (5) the child's participation in community or extracurricular school activities, such as team sports, youth groups, or school clubs; and (6) the respondent's employment and financial stability. In some circumstances, we will also consider the immigration status of the child and the respondent. In general, this consideration will be relevant only if there is an immediate, concrete threat of deportation. Although all of these factors, when applicable, may be considered in the "settled" analysis, ordinarily the most important is the length and stability of the child's residence in the new environment." In re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir.2009) (quoting 51 Fed.Reg. at 10509). "Additionally, for the child to be well-settled, the court should consider more than whether he or she has a comfortable material existence, taking into consideration the child's living environment and any active measures taken to conceal a child."
Van Driessche, 466 F.Supp.2d at 848.
The Court found that the children were well-settled in Houston and denied the petition for return. The had been in Houston for almost two years. They lived close to extended family with which they had significant contact. They both participated in activities, attended Sunday school, and went to church regularly. The older child had already attended one year of school here and was enrolled in first grade starting this fall. Although the mother and step-father were unemployed at the time of the hearing, they both testified to their efforts to gain employment and were employable.
The record reflected that Godwin suspected his children's presence in Texas sometime before May 20, 2009. Since he filed his petition on May 25, 2010, over a year passed from discovery to filing. The Court noted that the one year period may be equitably tolled if Godwin could demonstrate that Ekekere secreted the children away from him. Furnes v. Furnes, 362 F.3d 702, 723 (11th Cir.2004). "[A] court may equitably toll the one-year period where two related conditions are met: (1) the abducting parent concealed the child and (2) that concealment caused the petitioning parent's filing delay." In re B. Del C.S.B., 559 F.3d at 1015. This determination is an equitable one, taking into account all of the facts surrounding the removal and discovery of the children, including the efforts made to secrete the children by the removing parent, and the efforts made to locate the children by the non-removing parent. The Court found that Ekekere made no effort to conceal the children. While she did not inform Godwin of her whereabouts, she went to live openly with a known relative, she did not change her name or the children's names, and she enrolled Uduak in school. Even if Ekekere had made some effort to conceal her whereabouts, the concealment did not cause the petitioning parent's filing delay. Godwin waited six months from the time his wife left The Bahamas with the children before filing a missing persons report with the Bahamian Police. The efforts he did take to find them could not be described as determined or diligent. For example, he called her work to determine if they knew her whereabouts, but only once a month. And, he sent his family in Nigeria to her family to ask her whereabouts, but not until June 2009. Additionally, the record reflects that his other efforts were equally desultory. Therefore, the court found that equitable tolling was not appropriate in this case.
E.D.T. ex rel. Adamah v. Tayson, Not Reported in F.Supp.2d, 2010 WL 4116666 (E.D.N.Y.) [United Kingdom] [Attorneys fees and Costs]
In E.D.T. ex rel. Adamah v. Tayson, Not Reported in F.Supp.2d, 2010 WL 4116666 (E.D.N.Y.) Petitioner Ides Adamah successfully petitioned for the return of her child ("E.D.T.") to the United Kingdom pursuant to the Hague Convention. See Adamah v. Tayson (In re E.D.T.), 2010 U.S. Dist. LEXIS 54172, 2010 WL 2265308 (May 27, 2010 E.D.N.Y.). Petitioner then sought reimbursement from respondent Evans Tayson ("Tayson") of costs incurred pursuant to 42 U.S.C. 11607(b)(3).
Adamah did not seek an award of attorney's fees against Tayson, only costs, including reimbursement for: (1) filing fees for commencement of her petition for the return of her child; (2) fees related to service of process; (3) costs of procuring transcripts of depositions, the hearing and other trial proceedings; (4) disbursements for postage, telephone calls, copying costs, messenger service and local transportation; and (5) airfare for Adamah's attendance at trial-related proceedings and the collection of her daughter. In support of her motion, she submitted documentation and/or invoices attesting to the foregoing costs, with the exception of travel expenses for two plane trips. Further, apart from airfare, the remainder of Adamah's costs were out-of-pocket expenses incurred by her counsel on her behalf.
The Court observed that an award of costs to a prevailing petitioner is mandatory under ICARA unless the respondent establishes that "such order would be clearly inappropriate." 42 U.S.C. 11607(b) (3). After being duly served with Adamah's motion for costs, Tayson failed to respond or to otherwise defend against the petition; therefore, he did not establish that an award of costs against him would be inappropriate.
The Court held that the travel expenses Adamah incurred were clearly "transportation costs related to the return of the child," 42 U.S.C. 11607(b) (3), and she was entitled to reimbursement for those travel expenses for which she had airfare charges. The Court observed that as to the expenses her counsel incurred on her behalf, the Second Circuit has held that reasonable, identifiable out-of-pocket disbursements ordinarily charged to clients are recoverable. See United States Football League, 887 F.2d 408, 416 (2d Cir.1989); Kuzma v. Internal Revenue Service, 821 F.2d 930, 933-34 (2d Cir.1987) (providing a non-exclusive list of recoverable costs, including photocopying, travel and telephone costs). Payment is not permitted, however, for items that constitute routine office overhead. See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir.1998). Based on a review of Adamah's application, the Court found that the costs incurred on her behalf were recoverable. Adamah's motion is granted and she was awarded costs in the total amount of $9,408.95.
Rivera Rivas v. Segovia, Not Reported in F.Supp.2d, 2010 WL 5394778 (W.D.Ark.) [El Salvador] [Well-Settled in New Environment]
In Rivera Rivas v. Segovia, Not Reported in F.Supp.2d, 2010 WL 5394778 (W.D.Ark.) Dinora del Carmen Rivera Rivas filed a Petition for Return of Child to Petitioner. Both parties testified at the hearing, with Petitioner appearing telephonically from El Salvador. Petitioner had local counsel present in the courtroom, and Salvadoran counsel present with her in El Salvador. An interpreter was also provided by the Court.
The minor child, K.S.R., was born to Dinora del Carmen Rivera Rivas and Nathan Christian Segovia in El Salvador on August 30, 2003. The parents were never married . Both parents were born in El Salvador, but Segovia, previous to his relationship with Rivas and the birth of K.S.R., immigrated to the U.S. and obtained dual citizenship. The Respondent was a citizen of both the United States and El Salvador. K.S.R. was granted U.S. citizenship shortly after birth in addition to her Salvadoran citizenship. After her birth, K.S.R. lived continuously with her mother in El Salvador. Segovia visited K.S.R. occasionally in El Salvador but maintained his home with his family in Arkansas. Segovia also spoke frequently with K.S.R. by telephone.
On April 5, 2009, Segovia took K.S.R., with Rivas's permission, to the United States for what was to be a one week vacation to Disneyland and an opportunity for K.S.R. to meet her half-siblings. Segovia and K.S.R. were scheduled to return to El Salvador on April 11, 2009. Rivas contends that when she called to check on K.S.R. after the flight to the US, Segovia informed her that they had not gone to Disneyland but were, instead, in Arkansas at Segovia's residence. Segovia at some point told Rivas that he thought it would be better for K.S.R. if she lived with him in the United States.
K.S.R. was now 7 years old. Segovia presented evidence indicating that K.S.R. was well-adjusted to her life and family in the United States. She attended school and received good grades. She went on family trips with her father, step-mother, and half-siblings, and evidence presented by Segovia indicated that she got along well with her half-siblings. Phone records filed by Segovia, and testimony from both parties, indicated that Rivas had frequent contact with the family since K.S.R.'s arrival in the United States, although Rivas claimed that her contact with K.S.R. has been limited by Segovia.
Rivas filed a complaint pursuant to the Hague Convention on the Civil Aspects of International Child Abduction on July 9, 2010. Segovia contended that more than a year passed between retention of the child and commencement of proceedings in contravention of Article 12 of the Convention, and the child was now "settled in her environment." Segovia contended that Article 13 of the Convention does not require return of the child if it is established by clear and convincing evidence that return of the child will result in psychological or physical harm. Segovia contended that the child need not be returned, under Article 12, if the child has "attained an age and degree of maturity at which it is appropriate to take account" of their views and they object to being returned.
The Court noted that some of Segovia's allegations were previously considered in Arkansas State Court, in an ex parte proceeding which ultimately granted custody to Segovia. The Court emphasized that Article 16 of the Hague Convention provides that proceedings in an abducted-to-nation (here the United States) may not determine custody issues. Hague Convention, Art. 16. The Convention imposes and requires a preliminary determination of which country has jurisdiction to consider custody questions. Silverman v. Silverman, 338 F.3d 886, 890 n. 8 (8th Cir.2003). While this Court, in its discretion, may take into consideration the reasoning behind the Arkansas State Court's findings, Miller v..Miller, 240 F.3d 392,402 (4th Cir.2001), the Court is not bound by those findings and limits itself to consideration of only the narrow question presented by Rivas's Petition under the Convention.
Segovia did not dispute that Rivas could meet her initial burden of establishing wrongful retention under the Convention. Accordingly, the Court found that Rivas could satisfy her burden of establishing that K.S.R. was wrongfully retained in the United States by Segovia.
The Court found that Segovia left El Salvador with K.S.R. on April 5, 2009. They were to return to El Salvador on April 11, 2009. Rivas did not file this Complaint until July 9, 2010. Using either of the April dates, more than a year passed between the wrongful removal/retention and the commencement of proceedings. However, the Respondent should not benefit from the effects of his own actions and the barriers the Petitioner faces in bringing an action. Antunez-Fernandes, 259 F.Supp.2d at 815; see also 51 Fed.Reg. 10,494, 10,509 (1986) ("The reason for the passage of time, which may have made it possible for the child to form ties to the new country, is also relevant to the ultimate disposition of the return petition."). In this case, both parties admitted that there were ongoing discussions about arriving at a mutual agreement for the return of the child. Although an agreement was never reached, it would not be a stretch of logic for Rivas to have believed that Segovia may have eventually returned K.S.R. without the intervention of the courts. Rivas started the process required by the Convention, by filing an Application with the Central Authority in El Salvador, in October of 2009. The Court held that Segovia should not be allowed to benefit from any lingering hope that Rivas may have had in reaching a more amicable solution or for any obstacles Rivas may have faced in ensuring that her application was processed expeditiously. For these reasons, the Court found that the reasons for the passage of time after K.S.R. was removed from El Salvador, mitigate against allowing Segovia to benefit from the effects of his own actions in wrongfully retaining K.S.R. in the United States.
Segovia presented much evidence that K.S.R. was well-settled in Arkansas. K.S.R. received good grades in school and her artwork was entered into a local contest. Segovia provided pictures of her interacting with family and friends in various situations. Both Rivas and Segovia testified that K.S.R. continued to have frequent contact with her mother. K.S.R. had other family in El Salvador as well, including half-siblings. Therefore, although K.S.R. had, naturally, grown accustomed to her environment in the United States over the past year, she also maintained consistent ties with her habitual residence of El Salvador. The Court had no doubt that K.S.R. would be academically successful in El Salvador. K.S.R., in speaking directly with the Court in camera, with only the judge and a clerk present, expressed that, while she enjoyed living in the United States, she missed her mother. The Court found that Segovia had not met his burden of establishing, by a preponderance of the evidence that the "well-settled defense" should apply in this case and prevent the return of K.S.R.
to her habitual residence of El Salvador. Even had Segovia, been able to establish this affirmative defense, the Court stated that it would find, in its discretion, that ordering K.S.R.'s return would nevertheless be necessary to further the aims of the Convention. The Court noted that Segovia retains Salvadoran citizenship but chose not to avail himself of any judicial remedies available to him in El Salvador to seek custody of his daughter. Instead, he chose to retain his daughter in the United States and seek custody of K.S.R. here. This was precisely the kind of situation that the Convention was designed to discourage.
At the evidentiary hearing, Segovia argued that K.S.R. would be at risk if returned to El Salvador because she may have witnessed an act of domestic violence between her mother and another woman. Rivas denied that any such incident had ever taken place. The Court held that regardless of whether the incident occurred, the type of risk Segovia sought to establish would not rise to the kind of "grave risk" contemplated by the Convention. "[O]nly severe potential harm to the child will trigger this Article 13b exception." Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir.1995). There are two types of grave risk that are appropriate under Article 13(b): sending a child to a 'zone of war, famine, or disease,' or in cases of serious abuse or neglect." (Friedrich II, 78 F.3d at 1060 and Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir.2001)). This exception was not intended to apply to a "return to a home where money is in short supply, or where educational or other opportunities are more limited ... An example of an 'intolerable situation' is one in which a custodial parent sexually abuses the child." 51 Fed.Reg. 10494.
The Court observed that "may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Hague Convention, Art. 13. Pitts, 481 F.3d 1279, 1286 (10th Cir.2007)). A child's expression of a generalized desire to remain in a familiar place, without more particularized objections to being returned, are generally insufficient to invoke the application of this exception. The Court, without making a finding as to whether a seven-year-old may have the sufficient age and maturity to invoke this exception, found that K.S.R. was not of sufficient age and maturity to warrant the application of the exception in this particular case. Furthermore, K.S.R. did not express any particularized objections to being returned to El Salvador during in camera conversation. Therefore, the Court found that application of this exception was not appropriate in this case. Accordingly, Petitioner Dinora del Carmen Rivera Rivas's Petition for Return of Minor Child was granted.
Etienne v. Zuniga, Not Reported in F.Supp.2d, 2010 WL 4918791 (W.D.Wash.) [Mexico][Well-Settled in New Environment]
In Etienne v. Zuniga, Not Reported in F.Supp.2d, 2010 WL 4918791 (W.D.Wash.) Raphael Noel Etienne ("Etienne") filed a petition seeking the return of his two minor children to Mexico. On June 2, 2010, the Court issued findings of fact and conclusions of law and denied the petition for return with respect to E.N. based on her objections to return. The Court found that there was substantial evidence that B.N. was well-settled in the United States. However, the Court reserved judgment on the well-settled issue and other defenses, with respect to B.N., finding it would benefit from the report of a child psychologist, or similar professional, based on his or her interview with B.N. with respect to his life in Mexico, his relationship with his parents, and his life in the United States.
The parties agreed to have Joanne Solchany, PhD, ARNP, a professional who specialized in working with children, interview B.N. and submit her report to the Court. In the Court's June 2, 2010, order containing its findings of fact and conclusions of law, the Court reserved ruling on whether Respondent Beatriz Villarreal Zuniga ("Villarreal") had proven by a preponderance of the evidence that B.N. was well-settled in the United States as defined in Article 12 of the Convention. The Court observed that because the Court concluded that Etienne did not file his petition within one year of the wrongful retention of the children Villarreal was entitled to demonstrate that B.N. should not be returned because they are now settled in their new environment. See Convention, art. 12. The Court now concluded that B.N. was well-settled in the United States . It noted that Courts analyzing this defense have weighed several factors in determining whether a child is "settled" for purposes of this defense. In re B. DEL C.S.B., 559 F.3d 999, 1009 (9th Cir.2009); In re Koc, 181 F.Supp.2d 136 (S.D.N.Y.2001); In re Robinson, 983 F.Supp. at 1346; Zuker, 2 F.Supp.2d at 141. In In re B. DEL C.S.B., the Ninth Circuit adopted a list of six factors it considered relevant to a court's determination of whether a child is now settled in a new environment: (1) the child's age; (2) the stability and duration of the child's residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child has friends and relatives in the new area; (5) the child's participation in community or extracurricular school activities, such as team sports, youth groups, or school clubs; and (6) the respondent's employment and financial stability. In addition to these six factors, the Ninth Circuit decided that, in some cases, a court should consider the immigration status of the child and the respondent. However, the Ninth Circuit in In re B. DEL C.S.B. concluded, as a matter of first impression, that lack of lawful immigration status is not determinative of whether a child is "settled" for purposes of Article 12 of the Convention and such status is relevant only where an "immediate, concrete threat of deportation" exists. "Although all of these factors, when applicable, may be considered in the 'settled' analysis, ordinarily the most important is the length and stability of the child's residence in the new environment."
When Villarreal and the children arrived in Washington in July of 2008, they lived with Villarreal's uncle, Filiberto Zuniga ("Filiberto"). Villarreal and Filiberto had disagreements while she and her children were living with him. On the evening of Thanksgiving day in 2008, Villarreal and the children came back to Filiberto's home and the family would not open the door for them. Villarreal and the children spent that night in a hotel. The next day, they moved into a house. Approximately two weeks later, Villarreal and her children moved into an apartment in Tacoma, Washington. Approximately six months later, Villarreal and her children moved into the apartment in Lakewood, Washington, where they now resided. B.N. was currently in the second grade at a public elementary school in Lakewood, Washington. He was doing well academically in school and had many friends. He enjoyed school, playing with his friends that lived near his apartment, and playing video games. B.N. also very much enjoyed going to church and was active with the church's children's group.
Villarreal had held several part-time jobs since she and the children have lived in Washington. She is not currently receiving any public assistance from Washington, with the exception of medical coupons. She currently earned money by selling jewelry at a swap meet. Villarreal had a petition for asylum pending with the United States Department of Homeland Security and applied for employment authorization from U.S. Citizenship and Immigration Services that, at the time of trial, was still pending approval. At the time of trial, Villarreal had received an offer of employment with an insurance company pending the approval of her application for work authorization.
The Court concluded that the factors weighed in favor of concluding that B.N. was well-settled as defined by Article 12 of the Convention and that Villarreal had shown substantial evidence of B.N.'s significant connections to the United States. Specifically, the Court found that while B.N. was not of an age where his objection to removal was on its own, insufficient to prevent removal, he was of an age and maturity level where he was able to explain his choices and requests and able to make connections to the community in which he lived that the age factor weighed in favor of finding him well-settled. Next, the Court found that while Villarreal and her children have had multiple residences since coming to the United States, the fact that they lived at their current residence for almost two years constituted a stable environment such that this factor weighed in favor of finding B.N. well-settled. Third, B.N. attended the same school and actively participated in the same church for almost two years, both of which weighed in favor of finding him well-settled. Although B.N., and Villarreal, described their relationship with their relatives in the area as somewhat tumultuous, B.N. had a significant amount of friends surrounding his residence as well as friends at his school and church. The fact that B.N. had been able to adapt to the new environment and make friends easily weighed in favor of finding him well-settled. Next, B.N.'s participation in swimming and very active participation in his church's youth group weighed in favor of finding him well settled. Finally, Villarreal's employment and financial stability had been somewhat of an issue, although the children had never gone without basic necessities and she had never received public assistance. Dr. Solchany reported that at the time she interviewed B.N., Villarreal had recently started a job working in a chiropractic clinic. Based on Villarreal's history of employment and financial situation, the Court concluded that this factor was neutral. In addition, the Court concluded that Villarreal's immigration status was not determinative or even relevant, as such status is only relevant if an "immediate, concrete threat of deportation" exists, which has not been shown. In re B. DEL C.S.B., 559 F.3d at 1009. Therefore, the Court concluded that the factors laid out by the Ninth Circuit, when taken as a whole, weighed in favor of concluding that B.N. was well-settled in his new environment.
B.N.'s perspective on his relationships with his parents also weighed in favor of concluding that he is well-settled in the United States as he considered his living situation with his mother his home and he viewed Mexico as a place he would go to visit his father.
The Court concluded that B.N. was "well-settled" in the United States as defined by Article 12 of the Convention. Etienne's petition, with respect to B.N., was denied based on his being "well-settled" in the United States.
Respondent initiated divorce and custody proceedings in El Paso County in Colorado Springs in April of 2010.FN2 Petitioner responded by filing under the Treaty for Kaan's return through the German and American Central Authorities. There were there are no existing custody orders or agreements between the parties, and no proceedings other than these pending in any other court or tribunal. Since there was no formal custody order or agreement between the parties the rights and responsibilities to make legal decisions for the child were presumed to be shared in this case. Petitioner contended he exercised this right in Germany by allowing Kaan to visit the United States with his mother and that Respondent violated it by remaining in the United States longer than they had agreed.
The District Court found that Kaan child lived in the United States for the first six months of his life. He moved with his parents to Germany at that time, and lived there for two and a half years. He resided in the United States since his mother decided to take him from Germany ten months ago. The determinative factor in deciding whether Germany remained Kaan's habitual residence was the intention of the parties when they left the United States and moved to Germany. If they intended to create a home there permanently or for an indefinite period of time, Germany was the child's habitual residence. See In re Morris, 55 F.Supp.2d 1156, 1161 (D.Colo.1999) (Babcock, J.) ("Where the duration of a stay in a foreign country is intended to be indefinite, the habitual residence of a child is usually in that foreign country"). If, however, they manifested a different intent, by leaving possessions behind or otherwise evincing an intent to return to the United States after a short stint in Germany, the United States may still be the child's habitual residence. The Court found that the parties intended to create their home in Germany when they left when Kaan was six months old, and intended to remain there indefinitely. Kaan lived in Germany for most of his young life, where his parents leased an apartment, and where his father was and remained employed. Respondent was not employed outside the home in Germany, and was not currently employed in the United States. There was no intent to change that residence when Respondent left for the United States ten months earlier, and Respondent's refusal voluntarily to return him to Germany was in contravention of his father's equal custodial rights. In this regard, Respondent's removal of the child was per se wrongful.
Salinier v. Moore, Not Reported in F.Supp.2d, 2010 WL 3515699 (D.Colo.) [France] [Attorneys Fees and Costs]
The Petitioner sought $24,397.67 in attorney fees, $3,350.84 in costs for litigating all aspects of this case, and $4,482.87 in travel and lodging expenses. In response, while Respondent does not contest "the reasonableness of the fees incurred ... [Respondent] suggest[s] that the paralegal time was excessive and that Respondent should not have to be liable for the costs for the travel expenses of Petitioner's Wife and other relatives." Respondent also contended that a fee award would be "clearly inappropriate" because it would limit her ability to support herself and her four other children.
The Court observed that : "The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). "In other words, to determine the reasonableness of a fee request, a court must begin by calculating the so-called 'lodestar amount' of a fee, and a claimant is entitled to the presumption that this lodestar amount reflects a 'reasonable' fee. Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir.1998)"A district court should approach this reasonableness inquiry 'much as a senior partner in a private law firm would review the eports of subordinate attorneys when billing clients.' "However, '[t]he record ought to assure [the appellate court] that the district court did not eyeball the fee request and cut it down by an arbitrary percentage.'
Petitioner sought fees in the amount of $24,397.67-76 .9 hours at $200 per hour for Attorney Courtney Leathers and 55.5 hours at $100 per hour for Paralegal Cathy Butler. Respondent suggested, without providing any supporting authority or documentation, that the number of paralegal hours spent on this case was excessive. Respondent does not object to the $3,350.84 request for costs.
The Court noted that in determining the reasonableness of the hours expended, it must consider several factors, including: (1) whether the amount of time spent on a particular task appears reasonable in light of the complexity of the case, the strategies pursued, and the responses necessitated by an opponent's maneuvering; (2) whether the amount of time spent is reasonable in relation to counsel's experience; and (3) whether the billing entries are sufficiently detailed, showing how much time was allotted to specific task. See Ramos v. Lamm, 713 F.2d 546, 553-54 (10th Cir.1983),
The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed." Hensley, 461 U .S. at 433. The Tenth Circuit has noted that "[c]ounsel for the party claiming the fees has the burden of proving hours to the district court by submitting meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks." Case, 157 F.3d at 1250. "A district court is justified in reducing the reasonable number of hours if the attorney's time records are 'sloppy and imprecise' and fail to document adequately how he or she utilized large blocks of time. Once the court has adequate time records before it, "it must then ensure that the winning attorneys have exercised 'billing judgment.' " Case, 157 F.3d at 1250 (quoting Ramos, 713 F.2d at 553). "Billing judgment consists of winnowing the hours actually expended down to the hours reasonably expended." "Hours that an attorney would not properly bill to his or her client cannot reasonably be billed to the adverse party, making certain time presumptively unreasonable." In other words, the district court should exclude from this initial fee calculation hours that were not 'reasonably expended.' " Hensley, 461 U.S. at 434 (quotation omitted). "After examining the specific tasks and whether they are properly chargeable, the district court should look at the hours expended on each task to determine if they are reasonable." "The Ramos court suggested that among the factors to be considered were (1) whether the tasks being billed 'would normally be billed to a paying client,' (2) the number of hours spent on each task, (3) 'the complexity of the case,' (4) 'the number of reasonable strategies pursued,' (5) 'the responses necessitated by the maneuvering of the other side,' and (6) 'potential duplication of services' by multiple lawyers. Roberts, 160 F.3d at 1281 (quoting Ramos, 761 F.2d at 554). "In this analysis, [the court should] ask what hours a reasonable attorney would have incurred and billed in the marketplace under similar circumstances."
Petitioner's counsel submitted detailed billing records that "reveal, for each lawyer [and paralegal] for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks." Considering the Ramos factors, the court found that a large majority of the tasks Petitioner's counsel billed would normally be billed to a paying client. It found that although this case was resolved quickly, it involved highly contested, complex and sensitive issues. The court was unpersuaded by Respondent's argument that excessive paralegal hours were billed. In response, Petitioner's counsel stated that "it is this firm's policy to utilize paralegals to keep costs down for our clients, as it would be twice as expensive to have attorneys handling all tasks." The Court found Petitioner's counsel's billing statements reasonable and necessary. As to the hourly rate, the Tenth Circuit indicates that "the court must look to 'what the evidence shows the market commands for civil rights or analogous litigation.' The "local market rate" is usually the state or city in which counsel practices. Ellis v. Univ. of Kansas Medical Center, 163 F.3d 1186, 1203 (10th Cir.1998). The court is also entitled to consider the quality of counsel's performance in setting the fee. Ellis, 163 F.3d at 1203.
Respondent did not contest Ms. Leathers' hourly fee of $200 or Ms. Butler's hourly fee of $100, and thus, the court found the rates to be reasonable. It also found the request for $3,350.84 in costs to be reasonable.
In light of Respondent's financial status and her obligations to her children, the court held that it would be "clearly inappropriate" for Respondent to pay for Petitioner's parents' airplane tickets. However, it found that Respondent was financially responsible for costs associated with the travel of Petitioner's wife, who testified at the hearing. Accordingly, Petitioner's request for travel and lodging expenses was reduced by the total cost of Petitioner's parents' airplane tickets.
Respondent asserts that she was a stay-at-home mother. She was currently pregnant and the primary caretaker of three minor children ages 12 years, 2 years and 8 months. Respondent stated that she was unemployed, had only nominal assets and any award of fees and costs would "substantially impair ... [her] ability to support herself, her unborn child and her four living children." The Court had discretion pursuant to 42 U.S.C. s 11607(b)(3), to reduce any potential award to to allow for the financial condition of the Respondent. See Rydder v. Rydder, 49 F.3d 369, 373-74 (8th Cir.1995). Accordingly, it believed a fee award which unduly limited Respondent's ability to support her children would be "clearly inappropriate." As a result, it reduced the attorneys fee by 25% or $6,099.42. See Berendsen v. Nichols, 938 F.Supp. 737, 739 (D.Kan.1996) (reducing fee award by 15% to account for respondent's financial condition).
Petitioner was awarded attorney fees in the amount of $18,298.25, which was the original fee award, $24,397.67, reduced by 25% or $6,099.42. Petitioner was awarded costs for litigating all aspects of this case in the amount of $3,350.84. Petitioner was awarded $4,482.87 in travel and lodging expenses reduced by the total cost of Petitioner's parents' airplane tickets.
Thursday, July 19, 2012
Velasquez v Green, 2012 WL 2885662 (E.D.Tex.)) [Canada] [Well-Settled in New Environment] [Age and Maturity]
JCVG was born in Canada on March 1, 2000. Petitioner and Respondent were never married, and there was no formal custody agreement in place. Petitioner alleged that from her birth until late 2010, JCVG resided with her mother in Canada, with her father, Respondent, visiting her occasionally. In late 2010, with the apparent consent of her mother, JCVG traveled from Canada to Texas to visit her father for the holidays. According to Petitioner, the understanding between the parties was that JCVG would return to Canada at the start of 2011. Respondent claimed that the parties never agreed to a temporary stay in Texas but that the plan was for JCVG to come to live with him indefinitely. In any event, JCVG remained in Texas since late 2010 and did not return to Canada. Several months after JCVG came to Texas, Respondent commenced custody proceedings in Texas state court, seeking custody of his child.
At the hearing held on June 6, 2012, the Court heard testimony and Petitioner a submitted documentary evidence including, JCVG's Canadian birth certificate, JCVG's Canadian social security and insurance cards, JCVG's Canadian medical and school records, a Tenancy Agreement for Petitioner in Canada, and Facebook communications between Petitioner and Respondent and Petitioner and her daughter. Petitioner also introduced a copy of the Denton County Petition for Conservatorship of JCVG filed by Respondent and asked that the Court take judicial notice of a Canadian statute regarding custody. By agreement of the parties, the Court questioned JCVG in the courtroom outside the presence of her parents or any witnesses. Counsel for both sides were present but were not permitted to question the witness.
Petitioner testified that she lived in Canada since 1990 and had been a Canadian citizen since 1995. She had a job as a flower designer and was in school for real estate. According to Petitioner, she and Respondent met in 1998 but never lived together and were never married. Their child, JCVG, was born in March of 2000 in Canada, had a Canadian social security number, and was a Canadian citizen. Petitioner testified that she regularly took JCVG to the doctor in Canada, that JCVG received all required vaccinations, and that JCVG was enrolled in school in Canada and involved in after school programs there. Petitioner testified that Respondent would see his daughter a few times a month or over a weekend and sometimes take her to his home in Buffalo and then return her to Canada. According to Petitioner, with the exception of an extended visit to Texas in the summer of 2010, those visits were never longer than a weekend. Petitioner testified that she agreed to allow JCVG to visit her father in Texas for the 2010 winter holiday but expected Respondent to return JCVG to Canada at the end of January 2011. According to Petitioner, it was not until October 2011, when she was served with court papers from Texas seeking custody of JCVG, that she realized that Respondent planned on keeping JCVG in Texas. She subsequently testified that JCVG went to Texas in "December 2009 or 2010 or somewhere around there."Despite Petitioner's confusion, her pleadings, as well as other witnesses' testimony, indicated that the removal/retention at issue involved a winter 2010 trip to Texas.
Respondent testified that he was present at JCVG's birth and that he would see his daughter almost daily from 2000 until 2003. After that, he would visit her approximately two weekends out of the month. After moving to Texas in 2007, Respondent testified, he would visit JCVG a few times a year and made regular phone calls to her. Respondent claimed that Petitioner surrendered custody to him in Buffalo in November 2010. According to Respondent, due to ongoing health and legal issues with Petitioner and difficulties she was facing with JCVG's behavior, he and Petitioner arranged for JCVG to live with him in Texas in November 2010. Respondent conceded that they never determined how long JCVG would live with him but stated that the intention of the trip was more than just a holiday visit. Respondent testified that he and Petitioner decided that his mother would meet Petitioner and JCVG in Buffalo and then his mother would return with JCVG to Texas on November 22, 2010. According to Respondent, JCVG spent Thanksgiving 2010 with him in McKinney, Texas. Respondent also testified that he enrolled JCVG in McKinney schools in November 2010. Respondent stated that this was why he had requested her school and shot records from Petitioner. According to Respondent, JCVG started school in Texas on December 8, 2010, had only missed three days of classes since being in Texas schools, received B’s in her classes, and participated in sports since moving there. Respondent testified that Petitioner only called her daughter 11 times since the move to Texas and he had not changed his phone number since moving there. According to Respondent, JCVG talked to her mom frequently on Facebook and Respondent never restricted any calls from Petitioner. Respondent testified that Petitioner did not ask for him to return JCVG until September 2011.
There was no question here that, prior to November 2010, JCVG was a habitual resident of Canada. As shown by Petitioner, and not disputed by Respondent, she was born there, received medical care there, and was schooled there.
It was undisputed that there was no formal custody agreement in place as to JCVG when she left Canada in 2010. The court observed that when no formal custody agreement exists between the parents, courts must apply the laws of the country of the child's habitual residence to determine if the non-removing parent had "rights of custody" within the meaning of the Convention. Sealed v. Sealed, 394 F.3d 338, 343 (5th Cir.2004). Petitioner cited to Ontario law, R.S.O.1990, Chapter C.12(20)(4), which provides "[w]here the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody ... is suspended until a separation agreement or order otherwise provides." The Court found that Petitioner established that she had ne exeat rights as to JCVG when she left for Texas in November 2010.
The court found that the evidence supported Respondent's claim that-at the time JCVG left Canada, the plan was for her to remain in Texas indefinitely. The Court was not convinced that Petitioner had shown by a preponderance of the evidence that JCVG was wrongfully retained in Texas. Nor was the Court convinced that Respondent had shown by of preponderance of the evidence Petitioner's consistent attitude of acquiescence over a significant period of time. Because there was significant dispute as to whether Petitioner consented to have JCVG live in Texas and because some of Petitioner's testimony lacked credibility and was inconsistent with both her pleadings and the testimony of other witnesses, the Court was hesitant to find that Petitioner sustained her burden in showing wrongful retention. The Court held that it need not make a determination as to wrongful retention to find that JCVG need not be returned to Canada until a further custody order is issued as the Court found exceptions to return applied.
The Court pointed out that Article 12 of the Convention is very clear that the Court looks to the date on which these proceedings were commenced in applying the one-year limitations period. see, e.g.,Muhlenkamp v. Blizzard, 521 F.Supp.2d 1140, 1152 (E.D.Wash.2007). This case was filed on February 8, 2012. JCVG was removed from Canada in November 2010. Petitioner asked the Court to look to the filing of the Denton County petition for conservatorship to determine when JCVG was wrongfully retained. Petitioner testified that she was served with the state court action in October 2011 and claimed that it was not until this date, almost a year after JCVG went to Texas for the holidays, that she realized that Respondent would not be returning her daughter to Canada. Thus, Petitioner argued, this was the date that triggered the running of the one-year limitations proceedings. The Court disagreed .The Court found that the proceedings were not commenced within a year of any wrongful retention, which occurred, if at all, sometime in January 2011, based on Petitioner's position at the time suit was filed.
Because more than a year had elapsed, the Court then looked to whether JCVG was well-settled. It noted that Courts determining whether a child is well-settled can look to the following factors: (1) the age of the child; (2) the stability and duration of the child's new residence; (3) whether the child attends school or daycare consistently; (4) whether the child has friends and relatives in the new area; (5) the child's participation in community or extracurricular school activities, such as team sports, youth groups, or school clubs; (6) whether the child attends church regularly; and (7) the father's employment and financial stability. Edoho v. Edoho, 2010 WL 3257480, 6 (S.D.Tex.2010); Van Driessche v. Ohio-Esezeoboh, 466 F.Supp.2d 828, 847 (S.D.Tex.2006). "[F]or the child to be well-settled, the court should consider more than whether he or she has a comfortable material existence, taking into consideration the child's living environment and any active measures taken to conceal a child." Van Driessche, 466 F.Supp.2d at 848.
Having considered the testimony presented, the Court found that JCVG was well-settled in the United States. Since coming to Texas, she has been enrolled in-and regularly attended-school. She testified to having friends and appeared to be a well-adjusted pre-teen girl. She lived her father, her brother, and her paternal grandmother. She testified that she had a close relationship with her grandmother (an individual who appeared to be active in JCVG's daily life) and had a good relationship with her father. Moreover, her father was employed and appeared financially stable. More than one year had elapsed since JCVG came to, and remained in, Texas, and she was well-settled here. Thus, the exception set forth in Article 12 of the Hague Convention applied and return was not appropriate.
The Court also found that JCVG's desire to remain in Texas should be taken into account. The Hague Convention permits the Court to refuse to return a child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of her views. Art. 13. It is not enough that the child has maintained friendships, prefers her new residence over the country of removal, or enjoys a more stabilized situation to support a finding that the child is mature enough for the Court to take into account her views. England v. England, 234 F.3d 268, 272 (5th Cir.2000). No age is too young or old enough as a matter of law for the exception to apply, but must be determined on a case-by-case basis. When questioning JCVG, it was clear to the Court that she was sufficiently mature such that her wishes should be taken into account. She, unlike many seasoned counsel and adults who appear before the Court, listened to directions, heeded the Court's warnings regarding proper court conduct, and was a polite in her testimony. She behaved appropriately, was well-spoken, and even knew the precise name of her father's employer. She also testified that she preferred to remain in Texas in part because she was receiving a better education here. The Court found this statement exemplified her level of maturity and that her wishes were another basis to deny the request that she be returned to Canada.
Because the Court found that even if there were wrongful retention, Respondent satisfied the well-settled and age and maturity exceptions outlined in the Hague Convention, the Magistrate found that Petition for Return of Child should be denied and this matter should be closed on the Court's docket.
Thursday, July 12, 2012
On March 26, 2012, Nathan arrived at the couple's apartment to find his wife
and children absent without any indication of their whereabouts. He soon discovered that the family's legal documents, including passports and birth certificates, were missing, as were the children's toys. Nathan discovered email messages containing receipts for airline tickets to San Francisco, where Heidi's brother lived. Nathan contacted Heidi's brother in San Francisco and asked him to meet her at the airport and help her care for the children.
Nathan was eventually able to make contact by email with Heidi, although she was unwilling to talk to him on the phone. During these conversations, Nathan learned that Heidi was concerned that he had developed a brain tumor and Heidi feared that violence would befall the children and herself at Nathan's hands. However, Nathan never threatened Heidi or the children, nor had there ever been any domestic violence in the family. Nathan's general practitioner never recommended that he be psychologically evaluated, nor had Nathan ever experienced an episode that he would characterize as "manic," "bipolar," or "clinically depressed."
On April 7, Nathan arrived at Heidi's mother's house in the United States while Heidi was en route to her mother's house. Nathan then met with Heidi on April 9 and asked her to return the children to Switzerland, but Heidi indicated that she was not willing to do so. During the conversation, Nathan observed that Heidi, who appeared to have lost about twenty pounds, looked off into the distance and would then return to the conversation with "new ideas." Nathan and Heidi met with a doctor at the University of California-Irvine on April 11. The doctor suggested that Heidi may be suffering from an unknown psychological problem and recommended that Heidi be admitted for a 72-hour inpatient evaluation. Following an incident outside the doctor's office, Nathan returned to Heidi's mother's home and, with Heidi's mother's approval, took the children to his brother's home in Carmel, Indiana, where the children still were. The children communicated daily with their mother by video chat, and Nathan received approximately ten text messages and five emails per day from Heidi.
After relocating the children to Indiana, Nathan traveled to Switzerland, where
he filed for legal separation and also filed a Hague petition with the Central Authority. While in Switzerland, Nathan underwent an MRI according to his agreement with Heidi that they both would seek medical evaluation. The MRI results were normal. Nathan has since returned to the United States, where he rented an apartment for himself and his two children while waiting for this matter to be resolved.
The District Court observed that a petitioner seeking return of children must show by a preponderance of the evidence that (1) a child under sixteen years of age was (2) wrongfully removed (3) from his or her habitual residence. There can be no dispute as to the first element of Nathan's case: the Luedtke children are well under the age of sixteen. Because whether the removal is wrongful depends on the habitual residence of the child, the Court turns to analysis of that element next. It noted that Courts should interpret "habitual residence" according to the "ordinary and natural meaning of the two words it contains, as a question of fact to be decided by reference to all the circumstances of any particular case." Koch, 450 F.3d at 712 (describing the habitual residence test articulated in Mozes v. Mozes, 239 F.3d 1067, 1076 (9th Cir.2001), and adopting its approach). With respect to young children, the intent of the child's parents rather than the intent of the child is most useful in determining the child's habitual residence. Koch, 450 F.3d at 713. In determining the parents' intent, the court considers whether the parents' primary "residence was effectively abandoned and a new residence established by the shared actions and intent of the parents coupled with the passage of time." In doing so, the court may consider actions as
well as declarations.
Here, the evidence clearly established that the Luedtkes intended to abandon
the United States and make Switzerland their habitual residence. As a preliminary
point, the record revealed that the Luedtke family had lived in Switzerland for the
past six years. While sheer length of stay is not dispositive, other evidence indicated that the Luedtkes had abandoned residence in the United States and established residence in Switzerland. Nathan was recently awarded tenure status as a professor of organic chemistry at the University of Zurich. Because Heidi did not testify at the hearing, it was more difficult to discern her intent. However, the Court found that her decision to seek a larger flat, which required committing to a one-year lease, to accommodate the Luedtkes' growing family spoke to her intent to make her home in Switzerland. For these reasons, the Court concluded that the Luedtkes abandoned any residence they had in the United States and, at the time Heidi brought the children to the United States, their habitual residence was Switzerland.
The District Court found that the removal of the children from Switzerland was wrongful. Pursuant to Article 297, paragraph 1 of the Swiss Civil Code, parents exercise custody jointly during marriage. Furthermore, pursuant to paragraph two of the same Article, if the parents cease living together or they are separated, the court may award
parental custody to one spouse. There was no evidence to suggest that, at the time
Heidi removed the children from Switzerland, any court order existed as to custody
of the Luedtke children. For this reason, the Court concluded that Nathan and Heidi had joint parental custody under Swiss law at the time the children were removed. Thus, when Heidi took the children to another country, she effectively precluded Nathan from caring for the children or having any say in where the children would reside. The removal of the children from Switzerland breached Nathan's custody rights and constitutes wrongful removal. The Court had little trouble concluding that Nathan was actually exercising his custody rights, given his testimony that he participated in caring for the children on evenings and weekends.
Heidi argued that the children should not be returned to Switzerland because
doing so posed a grave risk of psychological harm to the children. While Heidi argued that Nathan posed a risk of harm to the children, she offered little evidence supporting her allegations. The only evidence Heidi pointed was the fact that the Swiss Court where the petition for separation was pending requested psychological evaluations of both parents. But this "evidence" shed little light, if any, on whether Nathan posed a risk of grave harm to the children; especially given that, in the meantime, the Swiss Court has ordered that custody remains with both parties. As such, Heidi fell far short of stablishing a risk of harm by clear and convincing evidence. Nathan Luedtke's Petition for Return of Children was granted.