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.
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.
Estrada v. Salas-Perez, 2012 WL 4503147 (N.D.Ill.) [Mexico][Habitual Residence] [Grave Risk of Harm]
In Estrada v. Salas-Perez, 2012 WL 4503147 (N.D.Ill.) Petitioner Enrique Estrada and Respondent Sofia Salas-Perez were the parents of a seven year-old child. On February 13, 2012, Estrada filed a Hague Convention petition in the district court. The district court granted the petition.
Estrada was born in Mexico and moved to the United States in or around 1996. He was a Mexican national. Estrada moved from Illinois back to Mexico in May 2007. . Salas-Perez was born in Mexico and moved to the United States in or around 2001 with her son Rigoberto. She was a Mexican national and currently resided in Illinois.Estrada and Salas-Perez met in Mexico as children. When Salas-Perez first moved to Chicago, Estrada helped her get situated. On October 5, 2004, in Chicago, Salas-Perez gave birth to the child. Estrada's and Salas-Perez's romantic relationship ended in or around May 2006. On July 17, 2006, Estrada filed in the Circuit Court of Cook County, Illinois, a petition to establish his paternity of the child. On August 25, 2006, the Illinois court entered an agreed order awarding Estrada the "sole care, custody, control and education" of the child. Salas-Perez was given weekend visitation rights and was required to pay child support. After losing his job, Estrada decided in 2007 that he wanted to move back to Mexico with the child. Without obtaining Salas-Perez's consent or the Illinois court's permission, Estrada moved with the child to Mexico on May 27, 2007. Salas-Perez did not have advance notice of the move and did not learn that Estrada had left for Mexico with their child until days later. On July 17, 2007, on Salas-Perez's motion, the Illinois court entered an emergency order of protection requiring Estrada to return the child to Illinois, in compliance with the court's August 2006 custody order. On July 26, 2007, Salas-Perez submitted a Hague Convention petition to the United States Department of State, claiming that Estrada's removal of the child to Mexico was wrongful because it violated her custody rights under the Illinois court's August 2006 and July 2007 orders. Salas-Perez's petition eventually was registered in the Family Court of Cuautitlan Izcalli, Mexico. Estrada enrolled the child in kindergarten and elementary school in Mexico. On May 16, 2009, Estrada married a woman named Janet. Estrada did not learn of Salas-Perez's Hague Convention petition until June 2009, when he was served with process by a Mexican court officer.
In January 2010, Salas-Perez, filed a Motion for Modification of Parenting Agreement in the Illinois court. The motion asked the state court to modify the August 2006 order to give Salas-Perez sole custody of the child. In early 2010, Estrada and Salas-Perez spoke about negotiating a custody agreement; Salas-Perez credibly testified at the evidentiary hearing, without contradiction, that Estrada threatened that she would not be able to see the child unless she reached an agreement with him. An agreement was reached with the assistance of the parties' lawyers; Salas-Perez's lawyer was not licensed to practice in Mexico. Salas-Perez's lawyer told her that it might be difficult for the Mexican authorities to bring Estrada into court, and that the fastest and surest way for her to see the child again would be to reach an agreement. In March 2010, the Office of the Secretary of Foreign Relations of Mexico wrote a letter to the Mexican family court reporting that the parties had reached an agreement regarding custody. The letter noted that Salas-Perez had submitted the custody agreement to the Secretary of Foreign Relations for the purpose of having it signed by Estrada and ratified by the Mexican court. Salas-Perez signed the custody agreement at the Mexican Consulate in Chicago in front of a consular official. The custody agreement was entered on March 17, 2010, by the Mexican family court. The court order was signed by the Mexican judge, a representative of the Mexican Ministry of Foreign Affairs, Estrada, Estrada's attorney, and Silvia Torres Elizondo. Elizondo signed on Salas-Perez's behalf, having previously been granted power of attorney.
The March 2010 custody agreement provided for shared custody. It stated that the child shall remain "under the care and attendance of her father [Estrada] in the domicile located in [Cuautitlan Izcalli, Mexico] in reason of considering both convenient and healthy for their minor daughter." It further provided that the child shall attend school in Mexico under her father's "attention," that Salas-Perez shall have phone privileges while the child is in Mexico, and that the child shall visit Salas-Perez in
Illinois during school breaks in December, Holy Week, and the summer. The agreement also provided that the child shall return to Mexico from Illinois around the time school resumes after those breaks. n August 3, 2010, the Illinois court entered an order stating: “As this settlement agreement addresses all issues before this Court and the respondent having moved this Court for leave to withdraw her Motion to Modify the Parenting Agreement, ...respondent is given leave to withdraw her Motion to
Modify the Parenting Agreement.” The order was prepared by Salas-Perez's counsel. In March 2010, July 2010, December 2010, and April 2011, consistent with the March 2010 custody agreement, the child visited Salas-Perez in Chicago for one - to three-week periods. At the end of each of these four visits, Salas-Perez sent the child back to Mexico. The child traveled to Chicago to visit Salas-Perez in May 2011 for summer vacation. Salas-Perez did not allow the child to return to Mexico in August 2011. Salas-Perez retained the child because the child said that she had been abused by Janet (Estrada's wife) in Mexico.
On September 30, 2011, Estrada filed a Hague Convention petition with the Mexican Central Authority seeking the child's return to Mexico. The Mexican Central Authority forwarded the petition to the United States Central Authority on October 3, 2011. The district court found that Salas-Perez retained the child in Illinois in August 2011 by failing to return her to Mexico for the start of the school year and that Mexico was the child's habitual residence immediately before the retention occurred. Estrada's unilateral and unauthorized move of the child to Mexico did not in any respect weigh in favor of finding the child's habitual residence to be Mexico. The child's habitual residence was Illinois in the wake of, and in the years following, Estrada's move to Mexico with the child in May 2007. The child's habitual residence changed from Illinois to Mexico in March 2010, when the Mexican family court entered an order ratifying the custody agreement reached by Estrada and Salas-Perez. The March 2010 custody agreement explicitly manifested Estrada's and Salas-Perez's shared intent as of March 2010 that the child spend most of the year with Estrada in Mexico, where she would attend school, and that she stay with Salas-Perez in Chicago only during school vacations. The agreement resolved the judicial proceeding that the Mexican court opened to adjudicate Salas-Perez's Hague Convention petition, which sought the child's return to Illinois; the agreement therefore manifested Salas-Perez's unequivocal understanding and intent that the child's principal residence be Mexico rather than Illinois.
Salas-Perez contended that the March 2010 custody agreement did not reflect her true intent because it was signed out of fear that Estrada otherwise would have prevented her from seeing the child. The contention was not without force, and had it been made immediately after she signed the agreement, a close question would have been presented. But much water passed under the bridge between March 2010, when the agreement was entered by the Mexican family court, and the summer of 2011;
during that time, Salas-Perez's actions plainly and unequivocally demonstrated that she shared an intent with Estrada that the child's habitual residence be Mexico. Salas-Perez sent the child back to Mexico after four visits to Illinois between March 2010 and May 2011, reflecting her ratification and acceptance of the custody agreement even if it had been coerced at its inception.
The Court held that Estrada had rights of custody over the child under Mexican law at the time of the August 2011 retention.. The custody agreement was entered by the Mexican family court in March 2010, and it required Salas-Perez to return the child to Mexico in August 2011 so the child could resume school there. Estrada's custody rights under Mexican law were beyond any reasonable dispute.
Salas-Perez also argued that Article 16 prohibited the Mexican court from deciding "the merits of rights of custody" while her Hague Convention petition was pending. Convention, art. 16 ("After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice."). The argument failed. The Mexican court that entered the March 2010 order was the very court before which Salas-Perez's Hague Convention petition was proceeding, and Salas-Perez expressly agreed to the entry of that order. Salas-Perez's submission that the Mexican court could not approve a custody agreement that she herself reached with Estrada could not be reconciled with Article 13(a), which excuses an otherwise wrongful removal or retention if "the person ... having the care of the ... child... had consented to or subsequently acquiesced in the removal or retention."Convention, art. 13(a)."[I]t is hard to think of a more formal acquiescence than entering into a consent order providing that the other parent be awarded custody ."
The Court held that Salas-Perez's retention of the child in Illinois breached Estrada's custody rights under the March 2010 custody order. By failing to send the child back to Mexico in August 2011, Salas-Perez deprived Estrada of his right to custody of the child during the school year. Estrada exercised and sought to exercise his rights of custody as of the time of retention. Estrada proved by a preponderance of the evidence that Salas-Perez's retention of the child in Illinois was wrongful under Article 3 of the Convention.
The court held that Salas-Perez did not prove grave risk by clear and convincing evidence. In July 2011, Salas-Perez brought the child to see Jennifer Lara, a licensed clinical professional counselor. Lara's written report of August 12, 2011, was admitted into evidence, and Lara testified at the evidentiary hearing.
On the parties' joint motion, the court appointed Dr. Hector Machabanski, Ph.D., a clinical psychologist, as an expert under Federal Rule of Evidence 706. The parties agreed that the court could consider Dr. Machabanski's report without having to call him to testify. They also agreed that neither party would call the child to testify.
Janet required the child to eat food that had been put in a blender. The court credited Lara's unrebutted testimony that the child understood this to be a form of punishment. But the court also credited Estrada's unrebutted testimony that a doctor in Mexico recommended that the child's food be blended in those instances when the child was experiencing trouble swallowing. The child told Dr. Machabanski that Janet hit her on the arm two or three times, once with a wooden spoon, and that Estrada once hit her on the bottom with a shoe. Lara's report noted that the child said that she had been hit on the arm with a wooden spoon, hit on the bottom (though by Janet, not by Estrada), and thrown onto the couch, but the report did not address the frequency of those physical episodes. Lara's report also noted that the child said that she was forced to eat spicy food without being given water or tea. Dr. Machabanski concluded that "the episodes of hitting in Mexico were rare and unusual events, not recurrent or part of a pattern of violence. Lara testified that she disagree with this conclusion. The court resolves this discrepancy in Dr. Machabanski's favor. Lara's report stated that the child "did not want to return to Mexico with her father ... and his family because they made her feel 'bad.' Lara opined at the hearing that returning the child to Mexico would place her at a grave risk of psychological harm in light of the hitting episodes and the child being required to eat blended food.
Dr. Machabanski's report indicated that when asked about how she was treated in Mexico, her response was 'they treated me well.' When asked about having any problems in Mexico, her answer was 'no.' Later she said that Janet disciplined her, yelled, and hit her. When asked about the hitting, [the child] showed a slight slap on the arm, adding that perhaps it was two or three times and that it was always in the arm and once it happened with a wooden spoon." The report further stated: "When asked about where she would like to live and with whom, [the child] said, 'I don't know' several times. Later, she added that it was a difficult question and that she would like to live with both parents." Dr. Machabanski's report concluded: "While hitting children is not acceptable or an appropriate way of managing or disciplining them, in terms of what is generally defined as child abuse ..., what [the child] seems to report about the incidents in Mexico do not seem to constitute significant or a serious pattern and do not seem to suggest that [the child] would be in any kind of grave risk if she were to return to Mexico. It is possible that the attention given to this matter and/or the reaction of others to the reports of hitting/abuse and other issues in this case would make [the child] highlight or tune into these matters more than might be appropriate. The hitting episodes seem rare and not severe, and [the child] seems to describe her overall life in Mexico as positive and desirable."
The court found Dr. Machabanski's conclusions regarding the risks of returning the child to Mexico more persuasive than Lara's conclusions. The evidence showed that there were a handful of physical episodes during the two years that Janet lived with Estrada and the child. While both Lara and Dr. Machabanski opined that physical discipline was unacceptable, the court agreed with Dr. Machabanski that the "rare and unusual" physical episodes-which in addition to being rare and unusual were not terribly severe when compared by the episodes described in reported Hague Convention cases, did not create a serious risk of physical or psychological harm, let alone a grave risk of such harm. The evidence also showed that the child was required to eat blended-up food on at least one occasion and perhaps others. That may seem unusual, but Estrada and Janet took this step on a physician's advice after the child experienced trouble with swallowing. If Estrada and Janet had not followed that advice, they might have been deemed grossly inattentive for allowing the child to be insufficiently nourished despite having received medical advice on how to address the child's swallowing problems. Their decision to follow the physician's advice could not be deemed to have placed the child at a grave risk of physical or psychological harm.
Tuesday, November 13, 2012
In Patrick v. Rivera-Lopez, 2012 WL 5462677 (D.Puerto Rico) Petitioner Lisandro Patrick was a national of the Dominican Republic and a Dutch citizen, who was permanently residing in the United Kingdom (England) when he filed a petition under the Hague Convention for the return of minor child L.N.R. in June 2012. Petitioner claimed respondent Noelia Rivera-Lopez, the mother of the infant, wrongfully removed L.N.R. on March of 2012 from England to Puerto Rico without petitioner's consent.
Petitioner Patrick and respondent Rivera-Lopez were married on June 8, 2010, in Lajas, Puerto Rico, after L.N.R. had been born. Petitioner Patrick submitted that, upon their marriage, he moved to England to set up a family home where respondent and her minor children joined him by January 11, 2011. Petitioner Patrick alleged the parties were all permanent residents of the United Kingdom where petitioner had been employed as a sales assistant, while he was attempting to convert his teaching qualifications so that he could begin working as a primary school teacher in the United Kingdom. Petitioner Patrick submitted that, since January of 2011, all the parties have been living in the United Kingdom as a family until March 6, 2012 when respondent Rivera-Lopez wrongfully removed the child L.N.R., and together with her older child, moved back to Puerto Rico. After several attempts to contact respondent, by March 11, 2012, she notified petitioner they would not be returning to the United Kingdom.
On June 22, 2012, petitioner Patrick filed an action under the Hague Convention. Respondent Rivera-Lopez filed a Motion to Dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The most relevant ground for dismissal of the petition was that he was not exercising the rights of custody or its equivalent in that he had not been granted parental responsibility as to minor L.N.R.
The district court observed that a petition needs to first comply with the requirements set up in the Hague Convention prior to federal court having jurisdiction on the claim. The Court agreed with respondent that petitioner failed to comply with the requirements of wrongful removal under the Hague Convention inasmuch as respondent was not exercising the rights of custody or its equivalent in that he had not been granted parental responsibility as to minor L.N.R. and granted the motion to dismiss.
The Court pointed out that Petitioner Patrick presented with the petition, and respondent included in the motion to dismiss, an affidavit where petitioner acknowledged, prior to L.N.R.'s birth, that the child, male or female, who was to be born from respondent was his. At the time, petitioner indicated he was domiciled in Puerto Rico. It was acknowledged that petitioner Patrick never registered L.N.R. as his daughter after her birth, during their marriage nor prior to the filing of the petition.
Respondent acknowledged petitioner and respondent were the natural parents of the minor L.N.R. and during her stay in England with her two children, they were residing with petitioner Patrick in the same place. The Court held that petitioner Patrick had to establish having rights of custody over L.N.R. that would allow the filing of the petition for return of the child under the Hague Convention to be proper. Respondent argued there was no parental responsibility agreement between the parties nor was there any action commenced where petitioner Patrick requested parental responsibility, guardianship or residence order as to the child. It was uncontested that respondent Rivera-Lopez was the mother of minor L.N.R., who was born in the year 2009 in the city of Mayaguez, Puerto Rico, and who was registered with the Puerto Rico Demographic Registry solely as the child of respondent Rivera-Lopez.
The Court did not need to hold a hearing to determine the child's habitual place of residence because, taking the averments of the petition as true under the motion to dismiss standard, it considered England to be the habitual place of residence of the child immediately prior to her alleged removal. Thus, it used the laws of England to
construe rights of custody of petitioner Patrick over minor L.N.R. The Court found that under the laws of England petitioner did not establish having rights of custody/ parental responsibility over minor L.N.R. Although the laws of England since the key
changes of the Children Act of 1989 were implemented, abandoned the notions of
rights of custody, there are equivalent residence orders and contact orders proceedings to determine any dispute between parents regarding their minor children and these orders encompass the parental responsibility predicate. For purposes of this petition, the law of England refereed to England and Wales.
The Court observed that when a father and a mother are married to each other at the time of the birth of the child, their joint parental responsibility is established at the time of the child's birth. This was not a factual predicate as to petitioner Patrick for at the time of birth of L.N.R. in 2009 they were residents of Puerto Rico and they were not married. Even had the parents been in England at such time, they were still not married until 2010. English law provides: [w]here a child's father and mother were not married to each other at the time of his birth- (a) the mother shall have parental responsibility for the child; (b) the father shall not have parental responsibility for the child, unless he acquires it in accordance with the provisions of this Act. Children Act 1989 (c.41) Part I, s 2(2). Although the Children Act does not employ the word "custody" as a legal term of art, it provides in relevant part that: "[w]here a child's father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child," which is defined as "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property." Children
Act ss 2(1), 3(1) (emphasis added); see Haimdas v. Haimdas, 720 F.Supp.2d 183 (E.D.N.Y.,2010). The most likely way to acquire parental responsibility between unmarried parents after a child's birth is being named as a father in the child's birth certificate. See Amendment to the Children Act of 1989 as reflected in the Adoption and Children Act of 2002, effective in December of 2003. It was undisputed that petitioner Patrick did not appear as the father of minor L.N.R. in her birth certificate. Minor L.N.R. was registered solely in the birth certificate issued in 2009 in Mayaguez, Puerto Rico, by the mother, respondent. Another way to acquire parental responsibility by a father is to make a formal parental responsibility agreement with the mother, which has to be made in the form prescribed under the laws of England and be signed before a court officer. Children Act of 1989 P 4(1)(b). No such formal agreement or court officer documented form had been presented in regard to the parental responsibility of petitioner Patrick. The law of England also allows two other means for unmarried fathers to acquire parental responsibility, that is, by having a parental responsibility order made in his favor under Section 4(1)(c) of the Children Act of 1989 or by having a residence order made wherein a separate Section 4 parental responsibility order must be made. Children Act of 1989, P 12(1).FN13 None of those means were used by petitioner Patrick in this case to acquire parental responsibility of L.N.R.
The inquiry did not end here. The Court examined whether the subsequent
marriage of petitioner Patrick and respondent Rivera-Lopez was sufficient to establish the necessary parental responsibility determination as to minor L.N.R. A stepfather who has married a woman with children may be able to obtain parental responsibility determination under the Adoption and Children Act of 2002 which prospectively is considered to have amended the Children Act of 1989. When parents are unmarried or those who were married after the birth of a child, a father may acquire parental responsibility by being registered as the child's father under the Children Act of 1989, as provided by subsections (1A); or if the father and the child's mother make an agreement providing for parental responsibility of the child or if the court on his application orders that the father shall have parental responsibility. Where the birth was registered after December of 2003, parents will have joint parental responsibility if the details of both parents and their signatures are shown in the child's birth certificate.
None of these situations were present in the instant case.
The Court held that petitioner Patrick failed to establish a prima facie case of wrongful removal under the Hague Convention inasmuch as he had not established that his custody rights were breached and that he was exercising the custody rights at the time of removal.
Petitioner's reply to the motion to dismiss juxtaposed that, as present residents of England, the laws of Puerto Rico would have concluded that upon the parties' subsequent marriage after the birth of L.N.R. on June 8, 2010, when they were
domiciled in Puerto Rico, the illegitimate child would have been legitimated by virtue of the marriage. Thus, the child was to be considered also legitimate under English law and petitioner as the legitimate father would have rights of custody to such a legitimated child. Petitioner referred to law of England at Legitimate Act of 1976, Part 1, Section 3 which provides that: where parents of an illegitimate person marry one another and the father of the illegitimate person is not at the time of marriage domiciled in England and Wales but is domiciled in a country by the law of which the illegitimate person became legitimated by virtue of such subsequent marriage, that person, if living, shall in England and Wales be recognized as having been so legitimated from the date of the marriage.
The district court found that the laws of Puerto Rico did not validate petitioner's averment as to a legitimated child, because a subsequent marriage would not automatically grant a child or children the paternity of the man who thereafter married the mother. Puerto Rico's legislative system allowed no room for liberal interpretation regarding facts of life recorded in Vital Statistics Registry of Puerto Rico and exceptions in its Sections 1041et seq. must be construed restrictively. See Leon Rosario v. Torres, 109 D.P .R. 804 (1980). The marriage of two individuals, whose children had been born prior to their marriage, who have not been registered by both contracting parties as theirs, will not be automatically considered as begotten by the married couple prior to such a marriage. Puerto Rico law requires that the recognition of a natural child be made in a public document or in an affidavit, and upon the presentation of the document or affidavit, the keeper of the Register of Vital Statistics would proceed to register it, and, for that purpose, the corresponding certificate of registration must be filled out. See Ramos v. Rosario, 67 P.R.R. 641 (1947).
Petitioner Patrick never presented to the Puerto Rico Vital Statistics Office the affidavit referred to in his petition where he claimed having recognized the minor L.N.R. who was to be born from respondent Rivera Lopez. For these reasons the court was not in a position to recognize whether the document would be considered as establishing, without more, the paternal rights of petitioner Patrick under Puerto Rico laws or if it would have been accepted as sufficient by the keeper of the Register to recognize L.N.R. as the child of petitioner and respondent. Petitioner did not go either to the Demographic Registry in Puerto Rico to recognize L.N.R. as his daughter following the readily available established procedure for a father to recognize a child as his son or daughter.
The Court dismissed the petition finding that Petitioners parental rights had not been previously established for the Court to exercise its limited jurisdiction under the Hague Convention.
Monday, November 12, 2012
Rodriguez v. Sieler, 2012 WL 5430369 (D.Mont.) [Mexico] [Habitual Residence] [Grave Risk of Harm] [Article 20]
In Rodriguez v. Sieler, 2012 WL 5430369 (D.Mont.) Rocio Jatsuel Chavez Rodriguez's filed a Petition for return. Rodriguez was a Mexican citizen who resided in the State of Nayarit, Mexico, most of her life. She recently moved to the State of Jalisco. Sieler was a United States citizen and resided in Kalispell, Montana. Rodriguez and Sieler met in Nayarit in 1996 when Sieler began doing mission work there through a church. They were married by the church there on May 5, 1999, and were married legally in Kalispell on December 4, 1999. For the next several months, Rodriguez and Sieler lived in Kalispell with Sieler's parents. During this time, Rodriguez was granted temporary residency in the United States, and the couple raised funds from local churches so that they could return to Nayarit to build a church. Rodriguez and Sieler returned to Nayarit in September 2002. They lived together in the house of Rodriguez's parents for the first few years while building a church, and in 2005, a home, in the town of Ursulo Galvan. Sieler was a pastor in the church and Rodriguez worked as a schoolteacher. Their monthly support check from the church was deposited in a joint checking account at the Mountain West Bank in Kalispell, Montana, and both Sieler and Rodriguez paid taxes to the IRS and the Montana Department of Revenue. In 2003, Sieler filed for an "FM3" as a non-immigrated visitor to Mexico doing religious work. During the same year, Rodriguez was granted permanent resident status in the United States. Thereafter, Rodriguez and Sieler returned to the United States annually for four to six weeks at a time, usually during the summers. Sieler testified that as a missionary, he knew his stay in Mexico would not be permanent. However, Rodriguez testified that they never agreed how long they would reside in Nayarit and that she did not believe a move was imminent because Sieler had told her that he had been called to serve in Mexico. Sieler's and Rodriguez's son, P.A.S.C., was born in Mexico on December 20, 2004; he was now 7. C.J.S.C. was born on March 23, 2009; she was now 3. Both children were registered as United States citizens born abroad and issued American passports. However, they lived in Ursulo Galvan with both their parents their entire lives, except for the few weeks a year that the family visited Kalispell. They lived close to Rodriguez's parents and siblings, with whom they spent significant time, and P.A.S.C. attended preschool and primary school there.
In July and August of 2011, the family made their typical summer trip to Kalispell.
Sieler testified that at this time, he had begun to seriously consider moving the family
back to Montana. During the visit, he decided he was going to move. Rodriguez testified that he did not tell her of his plan during this visit and that she would not have agreed to the move. Sieler insisted he did tell her his intention and that while she was not angry, she was not happy about it either and that she neither said she would or would not come with him. The family returned to Mexico on August 20, 2011. Two days later, Sieler's father passed away, and Sieler returned to Kalispell to help settle his family's affairs. Rodriguez and the children joined him in late September, expecting to help out for a couple of months and then to return to Mexico. Rodriguez testified that it was at this time that Sieler first told her he planned to move to Montana permanently. She denied ever agreeing to move or to allow the children to move to Montana. Sieler confirmed that Rodriguez never said she wanted the children to move to Montana permanently, although in his affidavit before the state court, he suggested that Rodriguez was helping him prepare for a permanent move. The parties agreed that the proposed move caused or amplified tensions in their marriage that fall. Rodriguez returned to Mexico with C.J.S.C. on December 25, 2011, because her sister was ill. Sieler and P.A.S.C. returned to Mexico a month later. P.A.S.C. re-enrolled in school in Nayarit.
The problems in Sieler's and Rodriguez's marriage continued in Mexico. For the next four months, Sieler continued to advocate moving the family to Kalispell, and Rodriguez continued to resist his plan. She began contemplating separation. On May 7, 2012, still in Nayarit, during an argument, it appeared that Rodriguez suggested that Sieler could take P.A.S.C. and that she could take C.J.S.C. if they separated. Sieler contended she meant that he could take P.A.S.C. to the United States permanently. Rodriguez denied she gave permission for Sieler to permanently remove P.A.S.C. from Mexico or her care. She testified that she meant that a short separation might help them resolve their difficulties and that they could each take care of one of the children during that separation. When Rodriguez awoke the next morning, Sieler and both children were gone. She went to one of Sieler's fellow missionaries who told her that Sieler had taken P.A.S.C. and C.J.S.C. and left for the United States. Sieler finally contacted Rodriguez from Kalispell and informed her that neither he nor the children were returning to Mexico. Rodriguez did not agree to that arrangement. Within days, Sieler initiated dissolution and custody proceedings in Kalispell, and Rodriguez made efforts through the Mexican and United States consulates in Guadalajara, Jalisco, Mexico, to initiate return proceedings. Rodriguez's efforts resulted in the present case. The state court proceedings in Kalispell were stayed pending resolution of this petition.
The district court found that the habitual residence of both children was Mexico. "Being habitually resident in a place must mean that you are, in some sense, 'settled' there-but it need not mean that's where you plan to leave your bones." When determining a child's habitual residence, the Court must consider "the parents' present, shared intentions regarding their child's presence." Their intentions may be express or inferred through their actions. Where it is alleged that a child has acquired a new habitual residence, the Court must find the parents shared a "settled intention to abandon" the prior habitual residence. Mozes v. Mozes, 239 F.3d 1067, 1073 (9th Cir.2001) The habitual residence of both P.A.S.C. and C.J.S.C. was Mexico, where they were born and raised. Both children resided in Ursulo Galvan in a house with their parents from the time they were born until they were removed to the United States by their father. Their family on their mother's side was in Nayarit, and P.A.S.C. attended preschool and primary school there. Though C.J.S.C. was very young, she was born in Mexico while her parents were habitually resident there. Thus Mexico was her initial habitual residence, and no circumstances had changed that. The children visited Kalispell, Montana, on summer vacations and when their paternal grandfather passed away, but they always returned to Mexico, and their parents never mutually agreed that they should move to Montana. Mexico provided the family and social environment in which the children's lives developed.
Sieler emphasized that the work of a missionary is often transient, and that Rodriguez knew this when they were married. He also noted that the children were American citizens and that Rodriguez was a permanent resident of the United States, which requires a person to plan to reside permanently in the United States at some future point. He suggested that Rodriguez may have been equivocal at times about whether she would eventually agree to move the family to Montana. These facts did not alter the Court's conclusion, however. The decision to alter a child's habitual residence cannot be accomplished through wishful thinking alone or by unilateral action. Mozes v. Mozes, 239 F.3d 1067, 1073 (9th Cir.2001) It was evident from both parties' testimony that when it came down to it, Rodriguez refused to move to the United States though Sieler insisted. Nor did she ever expressly or through her actions indicate that she intended either child to move permanently to the United States in May 2012. There was no evidence she made arrangements to move herself or the children to the United States, and she consistently expressed disagreement with Sieler's intention to move.
Even if, during their argument on May 7, 2011, Rodriguez gave Sieler permission to take P.A.S.C. to the United States, the consent of the parent left behind "is not usually enough to shift" the child's habitual residence absent other circumstances from which the Court can infer a shared intent that the child abandon the previous habitual residence. Rodriguez denied any intent to allow the move to be permanent, and her testimony was entirely credible. It was not reasonable for Sieler to take Rodriguez's statement as permission to take either or both children from the country and her care permanently. Moreover, when Rodriguez woke to find the children and Sieler gone, she immediately objected and persistently sought their return ever since. There was no evidence of a "shared, settled intent" that the children abandon their habitual residence of Mexico for a new habitual residence in the United States.
There was no parenting plan, judicial or administrative decision, or other agreement regarding custody of P.A.S.C. and C.J.S.C. Thus, the law of the children's habitual residence, Mexico, governed the question of whether Rodriguez has custody rights over the children. The Court observed that custody law in Mexico is based on the concept of "patria potestas " or "patria potestad." Patria potestas is common to all of Mexico's states, including Jalisco, where Rodriguez was currently residing, and Nayarit, where the children were born and raised. Patria potestas governs the relationship between parents and their children, conferring upon both parents, jointly, the broadest possible right over their children's care, custody, and well-being. Title 8, ch. 1, art. 406
Nayarit Code. The patria potestas right has consistently and rightly been recognized as a right of custody under the Hague Convention. The term "right of custody" is construed broadly under the Convention, and, in both Nayarit and Jalisco, the right of patria potestas clearly encompassed the right to care for a child and determine the child's residence, see Nayarit Civil Code, art. 405, doc. 6-3 ("Parental authority/responsibility (patria potestas ) is to be exerted over the children themselves as well as over their assets and is instituted for their care and protection."); Ramirez, 2012 WL 606746, (citing Jalisco Civil Code, art. 581). Additionally, the Nayarit Civil Code specifically provided that a child shall not leave the parents' residence without their permission, and in Jalisco as well, both parents must consent to the removal of the child from the country. Ramirez, 2012 WL 606746.
Once custody rights are established, it is presumed that a person who has care of her child is exercising her custody rights, and it is the respondent's burden to prove otherwise. Convention, art. 13(a). There was no evidence presented that Rodriguez was not exercising her custody rights at the time the children were removed from Mexico in May 2012 or that she had lost those rights and responsibilities under articles 435 or 436 of the Nayarit Civil Code. Moreover, the children were living with both parents, as they had throughout their lives, up through the morning of their departure, and they were cared for by both Rodriguez and Sieler. Accordingly, Rodriguez established that she had joint custody rights over P.A.S.C. and C.J.S.C. under Mexican law and that she was actually exercising those rights at the time of their removal. Alleging that the P.A.S.C. and C.J.S.C. were removed from Mexico without her consent, Rodriguez established a prima facie case that there removal and retention in the United States was wrongful.
The Court held that respondent did not show by a preponderance of the evidence, that the petitioner "consented to or subsequently acquiesced in the removal or retention" of the children from their habitual residence. He removed both P.A.S.C. and C.J .S.C. from Mexico without Rodriguez's consent. He did so secretly, while Rodriguez was sleeping, and prevented her from learning of his plan until he was already out of the country. Sieler admitted that he did not have permission to take C.J.S.C. out of the country. However, he insisted that Rodriguez consented to his removal of P.A.S.C. based on her alleged statement, just hours before he took P .A.S.C. from the country, that they could separate and he could take care of P.A.S.C. and she could take care of C.J.S.C. This statement, made during a late-night argument, was not sufficient to establish consent to P.A.S.C.'s removal from Mexico. There was no evidence the couple shared an understanding that P.A.S.C. would thenceforth live in the United States with Sieler. Even if this disputed and broad statement could be construed as consent to take P.A.S.C. out of the country, Rodriguez immediately and vehemently objected to Sieler's retention of P.A.S.C. in the United States and his intent to keep both children here permanently. Rodriguez's efforts to negotiate some settlement about the children's care and custody, despite Sieler's unilateral actions, could not be construed as acquiescence in P.A.S.C.'s continued retention in the United States, particularly as no agreement was reached and Rodriguez persisted in her efforts to have both children returned to Mexico. The Court held that P.A.S.C. and C.J.S.C. were wrongfully removed from Mexico, in violation of Rodriguez's custody rights, on May 8, 2012 when Sieler took them out of the country or, at the latest, were wrongfully retained in the United States when Rodriguez objected to Sieler's plan to keep them in the United States permanently.
Sieler urged the Court to apply the grave risk of harm exception here based on increased violence in Mexico due to drug cartel activity. The once quiet State of Nayarit was under military control due to the cartels, there were bodies hanging off overpasses; random shootings throughout the city; and ambushes at police check points. Sieler's sister-in-law was caught in a shooting at the grocery store in which 8 people were killed and many others wounded. Kidnappings, home invasions, and robberies greatly increased. The same sister -in-law was later robbed at knife point in her home, which was close to the children's grandparents' house where Rodriguez and the children spent a significant amount of time. Additionally, Sieler alleged that his brother-in-law might be involved in a drug cartel and that the house across from the family's home in Ursulo Galvan is a "drug house." Finally, he noted that houses in Nayarit as well as the rest of Mexico typically have reinforced doors and bars on the windows and that children are taught in school what to do if a shooting takes place. Sieler indicated that he had read about the general increase in violence in newspapers of general circulation and warnings from the United States Department of State, and that he had heard stories of kidnappings and other incidents from church members and friends. Rodriguez testified that much of the violence Sieler described had occurred in Tepic, the capital of Nayarit, which was two and half hours from Ursulo Galvan.
The Court pointed out that like the other exceptions," the grave-risk exception is " 'drawn very narrowly lest its application undermine the express purposes of the Convention, to effect the prompt return of abducted children. The risk must be "grave, not merely serious," and the exception should only be applied in "extreme cases,". Educational or economic opportunities or other such advantages are not appropriate considerations under the grave-risk inquiry. Blondin v. Dubois, 238 F.3d 153, 161-62 (2d Cir.2001); Cuellar, 596 F.3d at 511. Additionally, "because the Hague Convention provides only a provisional, short-term remedy in order to permit long-term custody proceedings to take place in the home jurisdiction, the grave-risk inquiry should be concerned only with the degree of harm that could occur in the immediate future." Gaudin, 415 F.3d at 1037. The Sixth Circuit has held that a grave risk of harm can be found "when return of the child puts the child in imminent danger prior to the resolution of the custody dispute, e.g., returning the child to a zone of war, famine, or disease." Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir.1996). Courts have construed this standard narrowly, in conformance with the goals of the Hague Convention. In Silverman v. Silverman, for example, the Eighth Circuit rejected the district court's finding that Israel constituted a "zone of war" warranting the application of the grave-risk exception, holding that there must be "specific evidence of potential harm to the individual children." 338 F.3d 886, 900 (8th Cir.2003). Allegations of "general regional violence, such as suicide bombers, that threaten everyone in Israel" were "not sufficient."
The Court observed that at least two district courts have considered facts strikingly similar to those alleged by Sieler. In Vazquez v.. Estrada, the district court rejected the respondent's argument that returning the child to Monterrey, Mexico, would expose her to a grave risk of physical harm due to the "'spiraling violence and surge in murders in Monterey' and because of 'specific violent acts that have been committed in the school [the child] attended in Monterrey and in the neighborhood where Petitioner resides.' " 2011 WL 196164, *5 (N.D.Tex. Jan. 19, 2011). A surge of violent activity, drug cartel activity, and a dangerous neighborhood were not sufficient to find that Monterrey was a "zone of war." Likewise, the district court in Castro v. Martinez held that the respondent failed to allege a grave risk when he alleged, among other things, that the area was burdened by drug cartel activities, the child had seen a Mexican police officer arrest and possibly beat an individual; the petitioner's home was unsafe; the child possibly saw violent acts in Mexico; and one or more of the mother's relatives may be members of a "gang cartel." --- F.Supp.2d ----, 2012 WL 359901, *2 (W.D.Tex. Feb. 2, 2012). The Court held that respondent did not meet the burden of proving a grave risk or intolerable situation by clear and convincing evidence.. He did not present "specific evidence of potential harm to the individual children" and most of his concerns were based on second- and third-hand accounts of violence in the region.
A court is not required to return a child to its habitual residence when the return
"would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. Art. 20. The exception is construed even more narrowly than the grave-risk exception. Sieler contended the exception applied because "[t]he due process rights and fundamental freedom of Nayarit and Mexico in general are not at the same high level as the United States," he may face charges in Mexico and be arrested if he returns, he believes he would be in danger in Mexico, and he cannot access the judicial system in Mexico." Sieler provided no evidence, except his own speculation, to support his allegations and has therefore failed to establish the Article 20 exception by clear and convincing evidence.
In Lyon v. Moreland-Lyon, 2012 WL 5384558 (D.Kan.) the petitioner Kevin Lyon's moved for attorneys fees after the court granted his Petition for Return and ordered that his son F.M.S.L. be returned to England. The Court observed that the International Child Abduction Remedies Act provides that a court ordering the return of a child pursuant to an action brought under the act "shall" order the respondent to pay the petitioner's "necessary expenses" unless the respondent shows that such an order would be "clearly inappropriate ."
The petitioner provided proof of the requested fees and expenses. The court found that all of the amounts were "related to the return of the child," as required by 42 U.S.C. 11607(b) and declined to reduce the amount requested. It considered the total sum of $18,565.30 in fees, costs and expenses in calculating an appropriate award to petitioner.
Respondent argued that awarding any attorneys' fees and costs would be clearly
inappropriate because of the respondent's "straitened financial circumstances."
The court noted that it has the discretion to reduce any potential award to allow for the financial condition of the respondent. Berendsen v. Nichols, 938 F.Supp. 737, 739 (D.Kan. Sept. 19, 1996). In Berendsen, the court reduced the fee award in an ICARA case by 15% because of the respondent's financial status. Respondent relied on an ICARA case from the Eastern District of Pennsylvania to argue that no fees should be awarded against her. The court in In re Application of Hirts, found it clearly inappropriate to award any of the petitioner's $31,958.45 in expenses and costs against one respondent who had "straitened financial circumstances." See 2004 WL 1588227 at *1 n. 1. In that case the court explained that the respondent held assets totaling $610.22, was unable to become employed because of her immigration status, resided with her children in a women's shelter, and received government assistance to cover their daily living expenses.However, the court held the other respondent in the case responsible for paying $20,000 of the petitioner's expenses. The court explained that the second respondent held assets of $42,695.73 and received a pension of $300 per month. Additionally, the court noted that she had no obstacle preventing her from working in some capacity. Although the court stated that this second respondent suffered from straitened financial circumstances, it pointed out that her position was "in no way as severe" as the first respondent's. As a result, the second respondent was required to pay the petitioner's expenses, but the court reduced the amount by 37%.
The district court recognized the respondent's straitened financial circumstances. She had no job in England, no income, no car, and no savings. She applied for financial aid and housing benefits in England, but was been unable to receive either because of a habitual residence test. Respondent was living on loans from her family to support herself and her young child. Respondent had not identified any obstacles preventing her from getting a job. However, petitioner stopped paying $450 per month in child support to respondent in February 2012. Since February, respondent received only $189 from petitioner in child support. Meanwhile, respondent paid $3,031.49 in moving and basic living expenses. Additionally, she paid $2,505.00 for airline tickets to England for a hearing at the High Court in London. Although petitioner was ordered by the court to pay for those airline tickets he had not reimbursed respondent for them. Given the respondent's financial position, the court found that awarding any of petitioner's attorneys' fees against the respondent would be clearly inappropriate and denied the motion.
Sunday, November 4, 2012
Walker v. Kitt, --- F.Supp.2d ----, 2012 WL 5237262 (N.D.Ill.) [Israel] [Grave Risk of Harm] [Article 20]
Petitioner and Respondent both joined the Black Hebrew Israelite community in Dimona, Israel in the 1970's, as children. Members of the Community recite vows each year in which they promise not to question the judgment of the leader of the Community, who is Considered to be the spiritual Messiah. The Community permits polygamous marriage, and the Israeli government recognizes such marriages as legitimate. In general, women in the Community are subservient to men. A woman's path in life consists of getting married and serving her husband. Petitioner testified that if a woman acts not in accordance with her husband's wishes, she should be punished.
Respondent testified that women are not able to express themselves in the Community. Several additional witnesses testified that women in the Community do not have the ability to make decisions governing their own lives, but that the leader and the men make the decisions. Respondent began to pursue Petitioner when she turned seventeen and was of age to be allowed by the Community to do so. On April 30, 2003, Respondent married Petitioner, becoming his second concurrent wife. Petitioner has six children with his first wife. Before they married, Petitioner's first wife slapped and spat on Respondent. Respondent testified that after the marriage, she continued to be disrespected and verbally abused by Petitioner's first wife, and that she was treated like a servant by Petitioner and his first wife. Respondent gave birth to the Child in Israel in September 2004. Respondent moved out of Petitioner's house in May 2005, but after Petitioner reported her action to Community officials, she moved back in. In October 2005, Respondent again moved out of Petitioner's house and into her father's, taking the Child with her. Petitioner ordered Respondent to return to his house, but she refused. In October 2005, shortly after she moved out of Petitioner's house, the Community leadership requested that Respondent travel to the United States to work in one of the Community's restaurants. She explained to Petitioner and several members of the Community leadership that she did not want to be separated from her daughter, but she was told to go anyway. Respondent believed that if she did not obey the Community leadership, she could be expelled from the Community. Respondent left Israel to come to the United States at the request of the Community leadership in December 2005. She returned to Israel in May 2007 and stayed with her sister. Respondent and Petitioner were not on speaking terms, and the Child stayed with Respondent at her sister's. Respondent returned to the United States in August 2007. She again visited Israel in June 2009. ( She stayed in Israel for six months, and the Child stayed with her during this period. Respondent's mission ended in 2009, yet she returned to the United States in December 2009. Respondent returned to Israel in June 2011, and she remained there until she left for the United States with the Child in September 2011.
In a declaratory judgment action in September 2011, an Israeli family court issued an order, based on DNA testing, declaring Petitioner's paternity of the Child. The Child was currently eight years old. She lived in Israel her entire life until Respondent brought her to the United States in September 2011. Petitioner and Respondent agreed that the Child would visit the United States with Respondent until the end of the Jewish holiday season in November 2011.(Petitioner and Respondent reported to the Child's school and the United States Embassy in Israel that the Child would return to Israel after less than two months. Respondent and the Child resided in the Washington, D.C. area from September 2011 until the filing of this action in July 2012. Respondent testified that, once in the United States, the Child "began to cry regularly, saying she did not want to go back to Israel, but that she wanted to stay with [Respondent] in the U.S. instead." In late October, Petitioner requested that Respondent's brother, who was planning a trip to Israel, bring the Child with him. Respondent understood the agreement to entail Petitioner's coming to the United States to retrieve the Child and did not allow the Child to return to Israel with Respondent's brother. In November 2011, Respondent retained the Child beyond the two-month visit that she and Petitioner had agreed upon. Respondent testified that she received phone calls from Petitioner's family informing her that Petitioner was planning on kidnaping the Child.
Petitioner filed a Petition and Emergency Petition for Warrant of Arrest, which was granted and Petitioner was given temporary custody of the Child pending resolution of his petition for her return. A hearing was held on October 11. Respondent did not provide any evidence or arguments that the removal was not wrongful either in her response or in the evidentiary hearing. Given that the Child lived in Israel from the time she was born until Respondent brought her to the United States in September 2011, a fact the parties stipulated to, the Court found that the Child was a habitual resident of Israel. The Israeli law relevant here, provided by Petitioner, is Israel's Capacity and Guardianship Law of 1962. The law provides that parents, as the natural guardians of their minor children, have "the right to the custody of the minor, to determine his place of residence and the authority to act on his behalf."Capacity and Guardianship Law, 5722-1962, 16 LSI 106, 14-15 (5722-1961/62) (Isr.). As the Child's natural father, Petitioner had custody rights over her, which were breached by Respondent's retention of the Child past the agreed-upon time period. If a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to 'exercise' those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child." Friedrich v. Friedrich, 78 F.3d 1060, 1066 (6th Cir.1996)(Friedrich II ). No such acts were present in this case; in fact, by Respondent's own admission, Petitioner cared for the Child during the time periods when Respondent was in the United States and was a good father. Finally, Petitioner obtained an ex parte decision in the Beer Sheva Family Court in Israel declaring that Petitioner and Respondent have joint custody rights under Israeli law, and that Respondent's actions had violated Petitioner's custody rights.
Thus, the Court found that Petitioner has met his initial burden and has established a prima facie case of wrongful retention under the Hague Convention.
The Court rejected the affirmative defenses asserted by Respondent. Respondent did not provide the Court any reasons or evidence indicating that the Child should be considered of sufficient age and maturity to have her views considered. The Court conducted an in camera interview with the Child on October 11, 2012. The Court asked the Child where she considered "home." The Child answered firmly and without hesitation, "in Israel." "The Court found it unnecessary to determine whether the Child was of sufficient age and maturity to have her views considered because the Child did not give any indication that she would prefer to remain in the United States. Thus, Respondent's assertion of the "age and
maturity" exception failed because the Child did not object to returning to Israel.
Respondent contended that the Court should refuse to return the child based on Article 13(b) of the Convention. Respondent believed "there is a grave risk that the child would be exposed to physical and psychological harm and that the child would be put in an intolerable situation" if the Court ordered her return to Israel. Respondent contended, and introduced multiple witnesses at the evidentiary hearing to testify, that women are subordinate to men in the Community. Respondent testified that the Child should stay in the United States where she would have better opportunities for education and self-expression than she would in the Community. Additionally, Respondent testified that she had been mistreated by Petitioner's first wife and treated as a servant in Petitioner's household. Respondent's mother, who had lived in the Community at least part-time for 35 years, expressed concern that as the daughter of Petitioner's second wife, the Child may not receive the same opportunities or affection as his other children.
The Court commended Respondent's desire to provide better educational opportunities for her daughter while admonishing her methods. However, the Article 13(b) exception is "not intended to encompass return to a home where money is in short supply, or where educational or other opportunities are more limited than in the requested State. The lack of opportunities available to women in general and children of second wives more specifically does not approach a "grave risk of harm" or an "intolerable situation" for the purposes of the Convention. The Court did not condone the subordination of women. Given the testimony about the lack of meaningful educational opportunities and the limited roles available for women in the Community, the Court empathized with Respondent's desire to raise her daughter in the United States. However, where the Child may be better off is a custody matter, which is reserved for the courts in the country of her habitual residence. The Court concluded that returning the Child to a community that may only ever afford her second-class status because of her gender does not pose a grave risk of harm as intended by Article 13(b) of the Convention. Respondent testified that she believed Petitioner was a good father; that she believed he would protect the Child from harm; that he had never abused or neglected the Child or any of his other children; that Respondent felt comfortable with the Child visiting and staying with Petitioner; and that she had never had any reason to contact the police or social services about Petitioner.
Respondent appealed to the exception provided in Article 20 of the Hague Convention. Article 20 states that "[t]he return of the child ... may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms." Hague Convention, art. 20. Respondent contended that "[p]olygamy is illegal in the United States without exception. And molestation and the subjection of women are considered to be against the fundamental principles of this society." Respondent argued that even if Israel has laws with respect to those behaviors, "the government acquiesces, at least in the polygamy realm." Respondent filed a supplemental brief alleging that "[e]qual protection of women is a fundamental principle in the United States." Respondent argues that because "[t]he principles and practices of this community are anathema to the fundamental principles of the United States relating to the protection of human rights and fundamental freedoms of women," the Child's "future prospects in this community will be affected negatively by the role designated to women." Finally, Respondent suggested that the facts that all adults in the Community pledge yearly oaths of allegiance and obedience to the leader and that the Child "may inevitably have to pledge oaths and submit to the wishes of the leader" might "utterly shock the conscience"of the Court.
Both Respondent and the Court were unable to find a single decision from a court in the United States in which a child was not repatriated based on Article 20. Respondent's counsel admitted failure to find precedent but argued that "there has to be a case where [Article 20] does apply." The court held that this case is not it. While polygamy is certainly illegal in this country, and the systemic subordination of women is incompatible with the United States' aim of equality, "the Convention requires that the fundamental principles of the State not permit the return of the child; merely offending principles espoused in [United States] laws is insufficient." Habrzyk v. Habrzyk, 759 F.Supp.2d 1014, 1027 (N.D.Ill.2011) .The narrow jurisdiction of the Court, however, was limited to determining if any defense exists to the mandatory repatriation of the Child for the purposes of custody proceedings in Israel. Unfortunately, the fact that the Child may not have as robust rights as a man when she reaches maturity does not shock the conscience under Article 20. Cultural gender inequality is a serious issue. However, accepting cultural gender inequality as a sufficient basis for an Article 20 defense would undermine the Convention. To invoke Article 20 to refuse to return a child for anything less than gross violations of human rights
would seriously cripple the purpose and effectivity of the Convention. The Court found that Respondent had failed to provide the clear and convincing evidence necessary in asserting an Article 20 defense.