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.
Monday, June 18, 2012
Anne testified that Ricardo was verbally abusive towards her throughout their marriage. She testified that on at least one occasion Ricardo called her a "hippo" in the presence of M.A.A. and a "bitch" in the presence of E.T.A. Anne also testified that, prior to February 2011, Ricardo experienced several outbursts of violence which involved or were witnessed by his children. Specifically, she testified that Ricardo pushed M.A.A. down onto a bed for insubordination. She further testified that in about 2008 or 2009, Ricardo was driving the family car when he was cut off by a taxi. She testified that Ricardo: used the family car to force the taxi to a stop alongside the road's median, exited the car and assaulted the taxi driver, and broke the taxi's windshield with a theft-deterrent tool used to lock the family car's steering wheel, all observed by M.A.A. and E.T .A., who were passengers in the family car.
In November 2010, Anne told Ricardo she was going to Minnesota for the holidays with M.A.A. and E.T.A. In prior years, Ricardo, Anne, and the children had all visited the United States together for the Christmas-New Year's holiday season. Stephen Campbell offered to purchase Ricardo an air ticket to visit the United States again that year, but Ricardo refused despite Stephen Campbell's urging. Anne had purchased airline tickets paid for by her father for her and the children to leave Peru for the United States on December 23, 2010 and return on February 16, 2011. After Anne, M.A.A., and E.T.A. left for Minnesota, Ricardo could not reach them by telephone over the holiday period. Anne, Susan Campbell, and Stephen Campbell would not return Ricardo's calls, would offer excuses why the children could not talk, or would not answer the phone.
Sometime in early February 2011, Anne informed Ricardo that she would seek a divorce and that M.A.A. and E.T.A. would not return to Peru on February 16, 2011 as planned. Anne made plans to return to Peru from February 11, 2011 to February 16, 2011 to retrieve her and her children's possessions. On February 11, 2011, Anne, accompanied by her brother Jeffrey Campbell, arrived in Lima. Concerned for their safety, Anne and Jeffrey Campbell asked several people to go with them to the apartment she previously shared with Ricardo. Elizabeth Norton LeBoo, Anne's colleague at the Roosevelt School, and Jacob Johansen, an acquaintance of Anne from a prior master's degree program that was also employed by the Roosevelt School, volunteered to assist. On February 13, 2011, accompanied by Jeffrey Campbell, Leboo, and Johansen, Anne returned to the Acosta apartment. While at the apartment, Anne telephoned Ricardo to tell him she was removing clothing and toys. They each testified Ricardo returned to the apartment, crashing his car into a pole outside. Ricardo then broke a window on the taxi they had taken to the apartment and which was awaiting their return. Jeffrey Campbell and Johansen held the door of the apartment shut as Ricardo tried to enter the apartment. Ricardo kicked the door to pieces and forced his way into the home. Ricardo began throwing items at Anne. Ricardo then grabbed a knife and chased the men while the women hid in a backroom. Ricardo chased Johansen outside where Ricardo cut Johansen's leg with the knife. Ricardo returned to the apartment and eventually forced his way into the backroom where he first battered LeBoo and then Anne. Police arrived and, after passively watching the events for some time, restrained Ricardo.
Ricardo's version of the events was entirely different. He testified that it was Anne and her friends that broke doors in his house and "provoked" him. Ricardo testified that Anne attacked him and then Jeffrey Campbell pushed him down and kicked him. Ricardo testified that he did not hurt or attack Anne or LeBoo. He also testified that they took $15,000.00 from the apartment. The court found that Ricardo's version of the events of February 13, 2011 was not credible. His story was inconsistent and evolved as questioning proceeded. The Court found that the testimony of LeBoo was highly credible and the testimony of Jeffrey Campbell was also highly credible. He testified that after Ricardo arrived at the apartment, Ricardo grabbed a knife from the kitchen counter and chased Johansen outside the apartment. Jeffrey Campbell then went to look for Anne and LeBoo. While looking for Anne and LeBoo, Jeffrey Campbell was corned in a hallway by Ricardo, holding out a knife. Jeffrey Campbell testified that Ricardo looked like "an enraged doppelganger" of his former self. Cornered in the
hallway, with Ricardo waving a large kitchen knife, Jeffrey Campbell begged Ricardo to spare his life. Ultimately, Ricardo did. As a result of the incident, Anne sustained injuries, including cuts to her hand requiring stitches and bruises. In the midst of the melee at the apartment, Ricardo called Susan Campbell's cell phone. In a profanity-laced tirade, he threatened to kill Susan Campbell, Stephen Campbell, Jeffrey Campbell, Anne, and Anne's sister.
After leaving the apartment, Ricardo went to the police station while Anne, Jeffrey Campbell, Johansen, and LeBoo went to the hospital and U.S. Embassy before arriving at the police station. At the police station, Ricardo was accompanied by several of his relatives. LeBoo and Jeffrey Campbell testified that the police did not appear to take their version of the events seriously. Jeffrey Campbell testified that the Lima police would not allow Anne and her supporters to leave the station because of concerns about their identification cards. Jeffrey Campbell testified they were eventually released
when he offered cash to an officer as advised by his Peruvian attorney. Afterwards, a police report was issued that stated Ricardo had seen Anne and "her lover" embracing.
After the incident, Ricardo called Rachel Metcalf Harrington, the principal at the Roosevelt School, and threatened to come to the Roosevelt School and kill Anne with a knife. Harrington, testifying telephonically from Peru, stated Ricardo had appeared in television interviews near school property where he has blamed school officials for his problems with obtaining custody of his children. Harrington and the school staff assess the threat posed by Ricardo as serious and have implemented an emergency protocol should he violate the ban on his presence on school property.
In the weeks after Anne's return from Peru, Ricardo made numerous calls to Stephen Campbell and Susan Campbell. He left threatening voicemails. In one voicemail he states, "I'll kill your kids, because she's [Anne is] taking my babies away. And, I promise you, your daughter is going to be killed because she is taking my kids away." He also spoke over the phone to both Stephen Campbell and Susan Campbell. In one live conversation with Susan Campbell, Ricardo threatened to kill M.A.A., E.T.A., and then himself.
On February 16, 2011, Anne met with officers from the Ramsey County Sheriff's Department, and a warrant was issued for Ricardo's arrest on February 18, 2011. On March 2, 2011, Ricardo initiated an action for custody of M.A.A. and E.T.A. before a Peruvian court in Lima. On March 10, 2011, Anne filed a Petition for Dissolution of Marriage, in which she sought custody of M.A.A. and E.T.A., in Minnesota state court in Ramsey County. On November 3, 2011, that Petition was dismissed for lack of jurisdiction. In May 2011, Ricardo traveled to Miami, Florida. Upon arrival, Ricardo was arrested. Id. He was eventually extradited to Minnesota. On September 1, 2011, Ricardo pled guilty in Ramsey County, Minnesota to making terroristic threats in violation of Minn .Stat. s 609.713. After his guilty plea, Ricardo returned to Peru to serve his probation. Visitation with M.A.A. and E.T.A. was arranged by use of the video-conferencing software Skype. The Skype visitation, however, stopped after one visit. Ricardo testified that he stopped the visitation because he preferred to explain what was occurring between him and Anne to his children in person.
While living in Peru, M.A.A. was enrolled in school at the Roosevelt School. Teachers at the Roosevelt School noted M.A.A. had behavioral problems. Harrington testified that M .A.A. told teachers he wanted to kill himself and he was referred to therapy. M.A.A. stopped therapy after two or three sessions because Ricardo felt the family could not afford it and because Ricardo felt, based on his own experiences, that therapy was ineffective. Harrington testified that in her nineteen years of experience as an educator, the severity of M.A.A.'s behavior problems stood out as one of the three most exceptional cases out of the thousands of students she has observed. Stephen Campbell testified that after M.A.A. arrived in the United States in December 2010, Stephen Campbell noticed M.A.A. would have violent outbursts, wet his bed at night, and said he wished he were dead. Stephen Campbell further testified that M.A.A. was now in therapy and his demeanor has improved and bed-wetting abated.
Dr. Jeffrey Edleson testified as an expert witness on behalf of Respondents. Dr. Edleson held a Ph.D. from the University of Wisconsin-Madison School of Social Work, and was a tenured professor at the University of Minnesota-Twin Cities School of Social Work. He testified that Ricardo's history of violence in the presence of others, escalation of violence, threats of suicide, and estrangement from his children were factors indicating a high risk of harm to M.A.A. and E.T.A were they to return to Peru. Dr. Edleson further testified that M.A.A.'s antisocial behavior was consistent with
exposure to domestic violence. RTX052-009 (noting a child's exposure to domestic violence correlates with antisocial behavior, anxiety, depression, and temperament problems). Dr. Edleson testified he believed M.A.A. to be exhibiting signs of depression.
At the close of the evidentiary hearing the court determined that the children were wrongfully retained in the United States, as contemplated by the Hague Convention, and that no other affirmative defenses applied. The sole issue before the Court was whether the affirmative defense in Article 13(b) of the Hague Convention applied. The Court observed that under Article 13(b), the Court is not bound to order the return of either M.A.A. or E.T.A. if "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." . A "grave risk" of physical or psychological harm requires an assessment of whether the child will face "immediate and substantial risk of an intolerable situation" if returned to his or her country of habitual residence. Nunez-Escudero, 58 F.3d at 377.To prevail on an Article 13(b) defense, there must be evidence of a grave risk of harm to each child, not solely to a parent or some other third party. Hague Convention art. 13(b); see also Nunez-Escudero, 58 F.3d at 378 ("[Respondent] must present clear and convincing evidence that the return of the child to [his country of habitual residence] would subject him to a grave risk of harm...."); Charalambous v. Charalambous, 627 F.3d 462, 468 (1st Cir.2010) ("The relevant inquiry is not whether there would be a grave risk of harm to [the child's mother] if she returned to [the country of habitual residence]; rather, the grave risk inquiry goes to the children.") However, where spousal abuse evinces a propensity towards violence and is accompanied by other risk factors specific to the child, a grave risk of harm to a child may be found. Baran v. Beaty, 526 F .3d 1340, 1346 (11th Cir.2008) (upholding finding of grave risk to child where Petitioner physically and verbally abused Respondent in addition to threatening to harm child, berating Respondent for hours in presence of child on one occasion, and handling child irresponsibly while drunk); Van De Sande v. Van De Sande, 431 F.3d 567, 570 (7th Cir.2005) (reversing trial court's finding of no grave risk where evidence showed Petitioner had a propensity for violence based on history of spousal abuse and Petitioner beat and insulted Respondent in presence of children); Walsh v. Walsh, 221 F.3d 204, 220 (1st Cir.2000) (finding grave risk where Petitioner had a history of disobeying court orders, had an "uncontrollably violent temper," had battered his other children, fought people younger than he, and based on the recognition of social science literature and law that spousal abuse is linked to physical and psychological injury to children). In determining whether a grave risk of harm to a child exists, courts may consider the environment to which the child would be returning. Nunez-Escudero, 58 F.3d at 377. In so doing, a court may consider both the resources in the country for dealing with domestic violence and the people awaiting the child. There is no requirement under the Hague Convention that a child actually have been previously harmed physically or psychologically; rather, the relevant inquiry is whether returning the child to the country of his habitual residence would present a grave risk of such harm or otherwise place him in an intolerable situation. Baran, 526 F.3d at 1346.
The district court found that grave risk of harm was proven by clear and convincing evidence and denied his petition. Ricardo had an explosive temper and propensity to maintain a state of violent rage. The breaking of a taxi windshield and assault incident in 2008 or 2009 and the February 13, 2011 apartment melee demonstrated that Ricardo, once enraged, will engage in acts of violence that are severe and not limited to his spouse. The severity of Ricardo's temper was underlined by his beating and threats to Anne but even more remarkably by his use of a weapon on Johansen, a man he had never previously met and did not believe to be his wife's lover; his beating of his wife's colleague LeBoo; and his highly specific threats towards Anne, her family members, and his own children. Ricardo's violent outbursts were not only severe, but they were of a lasting duration. After leaving the police station on February 13, 2011, he or someone acting at his direction attempted to gain access to LeBoo's residence. He also called the Roosevelt School and made highly specific threats. For weeks after the February 13, 2011 incident, he continued to make threatening phone calls to Stephen and Susan Campbell.. The circumstances to which M.A.A. and E.T.A. would return in Peru posed a grave risk of physical harm to them. What appeared to incite Ricardo's violence was the prospect of losing custody of his children. The evidence showed Ricardo did not have the emotional fortitude to acknowledge custody of his children may ultimately be with Anne. Dr. Edelson identified five high risk factors for future severe child abuse, including homicide. All were present in this case including threats by Ricardo to kill himself and his children. The Court was concerned about the police response were Anne, M.A.A., or E.T.A. to be in future physical danger from Ricardo. In light of the local police officers' slow response on February 13, 2011, the requirement to be paid cash prior to allowing the release of Anne and her friends from the police station where they had gone to report a crime, the filing of a false police report, and Ricardo's apparent influence over certain officers, the risk of harm to Anne, M.A.A., E.T.A. was exacerbated. The court found that a grave risk of physical harm to M.A.A. and E.T.A. existed should they be returned to Peru, and a grave risk of psychological harm was also present for M.A.A. and E.T.A. M.A.A. exhibited some behavior indicative of psychological harm.
Both Petitioner and Respondent were dual citizens of Turkey and the United States. They were married on March 24, 2001, and had two daughters, S.E.O. (aged 8) and Y.O. (aged 6). Both children were born in New York and were also dual citizens of Turkey and the United States. Until December 22, 2010, the parties and the Children resided primarily in Turkey, first in Ankara and then in Istanbul. The Children regularly attended school in Turkey.
Respondent alleged that, on December 21, 2010, she and Petitioner had an argument about his drinking problem. During the argument, Petitioner told Respondent to take the Children and get out of the house. He warned her that, if she did not do so, he would fire the staff, close the house and cut her off financially. In her testimony at the hearing, Respondent further alleged that Petitioner shoved
her and threatened to kill her. The next day, December 22, 2010, Respondent decided to take the Children to New York for the holidays, and purchased round trip tickets for a flight out of Turkey. Respondent alleged that she called Petitioner from the Frankfurt airport during a layover to inform him that she was taking the Children to New York, and that Petitioner responded with words to the effect of "fine, stay there." Petitioner denied that the December 21, 2010, encounter and December 22, 2010, conversation ever took place. Since December 22, 2010, Respondent and the Children had been living in New York City.
On January 7, 2011, Petitioner filed an application, pursuant to the Hague Convention, with the Turkish Ministry of Justice, seeking the return of the Children from the United States to Turkey. On January 11, 2011, Respondent, acting through her Turkish attorney, applied for an order of protection against Petitioner. The 2d Uskudar Family Court issued an ex parte order of protection, directing Petitioner to refrain from using violence or threatening language against Respondent, from damaging the personal belongings of other family members, and from disturbing either Respondent or the Children by communication. On February 9, 2011, Respondent commenced a divorce action against Petitioner in the 3d Uskudar Family Court. Petitioner filed a cross-complaint for divorce. The divorce proceedings were currently pending.
On March 22, 2011, the Turkish Court ordered Petitioner to pay Respondent temporary alimony, of 4000 TL for the Respondent, and 3000 TL for each of the children. On May 13, 2011, Petitioner requested that the Turkish Court grant him provisional custody of the Children. The court rejected this request, but issued an order granting Petitioner overnight visitation with the Children, in the United States. Petitioner exercised his visitation rights several times between May 13, 2011, and August 2011, traveling to the United States to see the Children. On July 28, 2011, the Turkish Court issued an order granting Petitioner a two-week visitation period with the Children. On August 12, 2011, the Turkish Court issued an additional order, allowing Petitioner to take the Children outside the United States during the two weeks of visitation, and directing Respondent to give Petitioner the Children's passports. In a September 14, 2011, order, the Turkish Court specifically found that Petitioner "behaved contrary to good will and intentions by not delivering the children [to Respondent] on the appointed date, and that the children needs [sic] the care and compassion of their mothers [sic]." Petitioner ultimately turned the Children over to Respondent's representative on September 18, 2011, but the Children and Respondent remained in Turkey until November 4, 2011. On March 30, 2012, the Turkish Court again denied Petitioner's request for provisional custody of the Children, but reaffirmed the previously established visitation arrangements.
Throughout their lives, the Children had regularly traveled to and spent extended periods of time in New York. The Children were currently enrolled in school in New York and were also involved in various extracurricular activities. They had a close network of friends and family in New York, including Respondent's mother and sisters. Petitioner presently seeks the following permanent relief: 1) An order, pursuant to Article 12 of the Convention, directing the return of the Children to Turkey; 2) an order, pursuant to Article 21 of the Convention, enforcing, so long as the Children remain in the United States, Petitioner's rights of access to the Children (as granted by the Turkish Court); and 3) an order, pursuant to Article 26 of the Convention, directing Respondent to pay the costs incurred by Petitioner in connection with this action.
The Court found that, until December 22, 2010, Turkey was the Children's habitual residence. While the children traveled regularly to the United States, their primary residence was in Turkey, they attended school in Turkey, and their physicians, caretakers, and several extended family members were located in Turkey, The Court further finds that, despite a heavy business travel schedule, Petitioner was exercising custody rights at the time of the alleged wrongful retention.
The first issue was whether Respondent's removal of the children on December 22, 2010, and subsequent retention of them in the United States was wrongful. All of the proffered evidence indicated that Petitioner at no time consented to relocation of the Children's residence to New York. Petitioner has contacted the Turkish Ministry of Justice, sought custody of the Children in Turkish courts, and pursued his petition in the Court. Even if Petitioner approved the continuation of the Children's travel to New York, which was already in progress at the time Respondent allegedly placed the call from the Frankfurt airport, it was clear from the record that Petitioner neither consented or acquiesced in Respondent's subsequent retention of the Children in New York since that time.
Respondent's next argument was that her retention of the Children in New York was not wrongful because she had provisional custody of the Children, and so her retention did not violate Petitioner's custody rights. Respondent bases this reasoning on two premises-first, that Turkish law does not recognize the concept of joint custody and only awards one parent custody of a child upon separation; and second, that the Turkish Court had entered several orders denying Petitioner provisional custody. Thus, Respondent argued, the court orders denying Petitioner's requests for provisional
custody effectively granted Respondent provisional custody.
The Court observed that Turkish Civil Code Article 336 provides that: As long as the mother and the father are married, the custody of children is shared equally between the mother and the father. If they separate or divorce, the judge may decide to give the custody of the children to one of the spouses. In the event of the death of one of the spouses, custody belongs to the surviving spouse. Both Petitioner and Respondent proffered testimony by Turkish legal experts as to the parties' respective custody rights. Respondent's expert witness testified that, once parties separate, a Turkish court must grant provisional custody of the children to one parent or the other. He testified in a conclusory fashion that the various orders issued by the Turkish Court award Respondent provisional custody of the Children and that, by granting Petitioner visitation rights in the United States, the Turkish Court implicitly acknowledged that the Children need not be returned to Turkey. In contrast, Petitioner's expert testified that, during the pendency of divorce proceedings, Turkish courts will typically order children to live with one spouse, but that such an order is not tantamount to a grant of provisional custody, and does nothing to alter the custodial rights of the non-resident spouse. He testified that the orders issued by the Turkish Court to date provided only that the Children would live with Respondent during the divorce proceedings and should not be read to "constitute or 'imply' a termination or suspension of [Petitioner's] custodial rights." He further testified that the Turkish Court lacked the power to order Respondent to return to the United States with the Children, because of the pending Hague Convention petition. Petitioner's Turkish divorce lawyer, corroborated this point, testifying that, at the parties' first appearance in the divorce proceeding, she had advised the Turkish Court that Petitioner had filed a Hague Convention application with the Turkish Ministry of Justice and that the Turkish Court had instructed her to continue with that application process. The Ministry, which is Turkey's designated Central Authority for purposes of the Hague Convention, indicated that Petitioner and Respondent had joint custody of the Children: on April 5, 2012, Judge Seval Arslan of the Ministry wrote to the Department of State, the United States' designated Central Authority, and stated that "although there is a pending divorce case between the parents before the Family Court in Uskudar, the parents still have joint-custody rights and at the time of the wrongful removal they also use [sic] to exercise those rights. In this context under Articles 3 and 12 of the Hague Convention, the [ mother] is in breach of rights of the [sic] custody under the law of Turkey in which the children were habitually resident before the removal,"
Based on the plain language of the Turkish Civil Code's joint custody provision and the evidence concerning the parties' relevant actions and interactions, the Court concluded that Petitioner had met his burden of showing that Respondent's retention of the Children in the United States is wrongful under the Convention.
As more than one year elapsed since Respondent originally removed the children from Turkey in December 2010 the Court was not obliged to order the Children's return to Turkey if Respondent could show that the Children are so well settled in New York that, "at least inferentially, return would be disruptive with likely harmful effects." In re Koc, 181 F.Supp.2d 136, 152 (E.D.N.Y.2001). The affirmative defense that a child is well settled in its new environment is meant to be narrow. See Lozano, 809 F.Supp.2d at 218. Furthermore, "even where the respondent meets his or her burden to show that [the] exception applies, the court may nevertheless exercise discretion to order
repatriation."Id. (internal quotations omitted); see also Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir.1996) ("[A] federal court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention").
The Court observed that some of the factors courts consider in determining whether a child is well settled include: 1) the age of the child; 2) the stability of the child's residence in the new environment; 3) whether the child attends school or day care consistently; 4) whether the child attends church (or another religious institution) regularly; 5) the stability of the mother's employment; and 6) whether the child has friends and relatives in the new area. Lozano, 809 F.Supp.2d at 230-31.
S.E.O. and Y.O. were ages eight and six, respectively, and spent the majority of their lives in Turkey. While Respondent argued that the Children were familiar with New York, their residence in New York was not continuous since the December 2010 removal from Turkey, as the Children spent approximately eight months in New York (December 22, 2010 to August 18, 2011), and then spent two and a half months in Turkey (August 18, 2011 to November 4, 2011), before returning to the United States for another five months (November 4, 2011 to March 30, 2010) before this action was
commenced. The children regularly traveled between Turkey and New York throughout their lives, and were accustomed to spending several months in both countries. The Children attended school consistently in New York, but they also attended school consistently in Turkey and, if returned to Turkey, would re-enroll in their former school. Similarly, while the Children had numerous friends and family in New York, the same was true of their relationships in Turkey. Given the financial resources available to both parties, the stability of Respondent's employment in New York was irrelevant. Considering all these factors, the Court found that Respondent failed to demonstrate by a preponderance of the evidence that the children were so well-settled in New York that returning them to Turkey would be "disruptive with likely harmful effects." In re Koc, 181 F.Supp.2d at 152.
The Court granted th ePetition insofar as it sought the return of the Children to Turkey.
Respondent contended that the Court lacked jurisdiction to enforce Petitioner's rights of access, relying on Article 21 of the Convention, which states that "[a]n application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child." Respondent cited two cases, Wiezel v. Wiezel-Tyrnauer, 388 F.Supp.2d 206 (S.D.N.Y.2005) and Bromley v. Bromley, 30 F.Supp.2d 857 (E.D.Pa.1998), In Wiezel, the court considered whether it "had jurisdiction over an Article 12 claim by a petitioning parent who claimed to have custody rights but is seeking as, a remedy, only visitation and other access rights." 388 F.Supp.2d at 211. The court concluded that it lacked such jurisdiction, and that "the Convention sets forth separate procedures by which signatory nations may enforce access rights of petitioning parents, and those procedures do not involve the federal courts. Similarly, in Bromley, the court concluded that "the plain language of
[Article 21] of the Convention does not provide federal courts with jurisdiction over access rights." 30 F.Supp.2d at 860. In neither case, however, was the petitioning parent alleging wrongful removal of a child under Article 12 and seeking, as ancillary relief, rights of access as ordered by a court in the country of habitual residence. Furthermore, ICARA specifically authorizes a parent to "initiate judicial proceedings under the Convention ... for organizing or securing the effective exercise of rights of access to a child [by] commencing a civil action by filing a petition for the relief sought in
any court which has jurisdiction of such action." 42 U.S.C.A. 11603(b). Given the language of the statute, the Court found that it had jurisdiction to enforce Petitioner's rights of access to the Children, and ordered Respondent to comply with the visitation rights set forth by the Turkish Court's May 13, 2011, Order, so long as the Children remained in the United States.
Mr. Lyon and Ms. Moreland-Lyon met each other while she was on vacation in England in 1995. He was a citizen of the United Kingdom, and she was a citizen of the United States. By the end of 1997 or early 1998, Ms. Moreland-Lyon moved into Mr. Lyon's home in Prestwich, Manchester, England. After dating for four years, the couple married on October 28, 1999. For the next ten or eleven years, the couple lived in Prestwich. But it was normal for Ms. Moreland-Lyon to visit her mother in Kansas annually. While in England, Ms. Moreland-Lyon upgraded her academic qualifications in a school in the United Kingdom and obtained residency.
In March 2009, she gave birth to F.M. S.L. in Manchester. She stayed in the
United States for some of the pregnancy but traveled back to England in January 2009, in part to take advantage of England's universal healthcare system and so that F.M.S.L. would be eligible to receive "child benefit," which is provided to all children born in England. Half of this child benefit was deposited regularly into Ms. Moreland-Lyon's English bank account for F.M. S.L.'s benefit. Mr. Lyon has also deposited money in this bank account for F.M.S.L. for the last three years. Since birth, F.M.S.L. has lived in both the United States and England at various times. In the fall of 2009, Ms. Moreland-Lyon traveled with F.M.S.L. to the United States to attend the Renaissance Festival as she had done in the past. During their time in Kansas, they stayed with Ms. Moreland-Lyon's mother and stepfather in Overland Park, Kansas. Mr. Lyon visited for about a week in October. Ms. Moreland-Lyon and F.M.S.L. returned to England in early December. The couple spent Christmas in Manchester. From December 2009 to August 2010, Mr. Lyon, Ms. Moreland-Lyon, and F.M.S .L. lived in England in the couple's home and did typical family things. In early May 2010, the couple was outbid on a home they were looking at in Prestwich, which upset Ms. Moreland-Lyon. She was eager to move out of their home in Prestwich to this larger home nearby.
Ms. Moreland-Lyon and F.M.S.L. traveled back to Kansas for the Renaissance Festival in August 2010. The plan was for Ms. Moreland-Lyon to remain in Kansas for the duration of the festival and to return to England by October 28. She did not return by that date and decided to remain in Kansas longer. Ms. Moreland-Lyon's mother persuaded her to return to England with F.M. S.L. on May 11, 2011.
Ms. Moreland-Lyon visited the United States for the 2011 Renaissance Festival. She and her husband’s agreement provided that Ms. Moreland-Lyon would leave for the United States on August 4, 2011, and return to England on December 11, and that Ms. Moreland-Lyon and F.M. S.L. would return to the United States on February 1, 2012, and stay through August 14. Ms. Moreland-Lyon testified that she signed the agreement under duress because it was the only way she would get F.M.S.L.'s United States passport returned to her. On August 4, Ms. Moreland-Lyon and the child flew to Kansas. Mr. Lyon drove them to the airport and paid for the tickets. Mr. Lyon traveled
to Kansas in October. During the visit he met with Barbara Lyons, Director of the Johnson County Montessori Preschool and Day Care. The child was currently enrolled and attending the preschool. On December 9, Ms. Moreland-Lyon informed Mr. Lyon that she was not going to return to England on December 11 unless she had assurances from him that he would abide by the terms of the parties mediated agreement. Mr. Lyon provided several written assurances that he would abide by the agreement, yet Ms. Moreland-Lyon has refused to return to England with F.M.S.L.
The child was presently located in the District of Kansas, living with Ms. Moreland-Lyon in Overland Park. As in England, F.M. S.L. had a pediatrician and dentist in Kansas, and was flourishing in his environment. In December 2011, Ms. Moreland-Lyon initiated divorce proceedings against Mr.
Lyon in Kansas state court. The court entered Ex Parte Temporary Orders providing for rights of custody and access to Mr. Lyon and ordered the parties to participate in mediation to come up with a permanent parenting plan. A Decree of Divorce was entered in the case on April 16, 2012. The court found that Ms. Moreland-Lyon and the child "have been actual residents of the State of Kansas since August 3, 2010."The court stayed ruling on the custody of the child pending the outcome of the present Petition for Return of Child.
Mr. Lyon filed a Petition on March 23, 2012. The Court found that his habitual residence was England. F.M. S.L. had traveled back and forth from England to Kansas several times. Since birth he lived in England for approximately 16 months and Kansas for 14 months, not including the last 10 months since he was removed from England. The total number of months F.M.S.L. spent in each country was not determinative of the habitual residence issue. As such, the court had to look to the parents' conduct, intentions, and any agreements they may have made regarding the child's living arrangements before and after removal. It was clear from the testimony that England was the couple's home throughout their marriage. Ms. Moreland-Lyon lived in England throughout the marriage except during her trips to the United States to work at the Renaissance Festival and to substitute teach. But those trips were relatively short in duration. Mr. Lyon continued to live and work in England full-time and only traveled to the United States for brief vacations. Additionally, F.M.S.L. was born in England. He lived in England for the first five months of his life, and returned to the United States only for the Renaissance Festival in 2009, 2010, and 2011. During those three years the plan was that Ms. Moreland-Lyon would reside in the United States with F.M.S.L. during the Renaissance Festival as she had done in the past before he was born. Each year, Ms. Moreland- Lyon unilaterally extended those stays in the United States without Mr. Lyon's consent.
Ms. Moreland-Lyon's changed intentions were the sole reason F.M.S.L. was away from England for long periods of time, and this court found that her unilateral actions did not change F.M.S.L.'s habitual residence. See Mozes, 239 F.3d at 1077. Therefore, England was F.M.S.L.'s habitual residence.
It was undisputed (1) that the parties were married when Ms. Moreland-Lyon removed F.M.S.L. from England, (2) that Mr. Lyon is F.M.S.L.'s father, (3) that the parties divorced on April 16, 2012, (4) that no court has ordered custody in this matter, and (5) that the parties had an informal agreement regarding visitation. Mr. Lyon has rights of custody under English law under the Children Act 1989 and the Child Abduction Act 1984. Both acts provide that couples married at the time of a child's birth have joint parental responsibility for the child. Ms. Moreland-Lyon did not contest that her removal breached these custody rights. Therefore, Mr. Lyon had custody rights to F.M. S.L., and Ms. Moreland-Lyon's removal of the child to the United States violated those rights. It was also uncontested that Mr. Lyon was exercising his custody rights.
The Court rejected Ms. Morlands "well-settled" defense finding that the child was here less than a year. Regardless, the court was not persuaded that F.M. S.L. was well settled in Kansas simply because he had a doctor, dentist, a preschool, and people looking after him in Kansas. The facts indicated F.M.S.L. had those things in England too. There was no dispute that F.M.S.L. was doing well in Kansas or that he was acclimated to living there. But he also had acclimated to life in England, and he was young enough that he could grow accustomed to nearly any location within a short period of time. "[I]n the abscence of settled parental intent, courts should be slow to infer from [the contacts noted above] that an earlier habitual residence has been abandoned." Mozes, 239 F.3d at 1079. For these reasons, the court found that the well-settled exception did not apply.
The court observed that it was not required to return the child if it found that the respondent established that the petitioner consented to or acquiesced in the removal. The consent defense requires that the respondent show that the petitioner consented to the removal before the removal. Acquiescence focuses on the petitioner's conduct after removal. Mrs. Moreland-Lyon argued that Mr. Lyon consented to the removal in August 2011 because he drove her and F.M.S.L. to the airport when they left England. These actions did not indicate that Mr. Lyon consented to F.M. S.L.'s permanent removal from England. Rather, Mr. Lyon did not really have a choice in the situation. Under the mediation agreement, Ms. Moreland-Lyon and F.M.S.L. were scheduled to leave for the United States. Mr. Lyon merely did what was in his nature-he drove his son and wife to the airport because he believed it was the right thing to do.
Ms. Moreland-Lyon argued that Mr. Lyon acquiesced in the removal by meeting with the Montessori school in Johnson County. Yet this did not indicate Mr. Lyon's acquiescence to F.M.S.L. living permanently in Kansas. Mr. Lyon testified that he looked at the school and ultimately enrolled his son there so that he could benefit from the opportunities the school provided. Enrollment in the school only showed that Mr. Lyon was trying to do the best for his son despite the couple's marital problems. Thus, the acquiescence argument failed.
deciding not to return to the family home in England. Her asylum request was initially denied on December 8, 2011, with the statement; Material inconsistency(ies) within your testimony. The mother's present legal residency was far from settled. This was apparently a preliminary rejection; the notice also stated: This is not a denial of your asylum application. A removal hearing was set on April 4, 2013.
On December 27, 2011, the court granted the father's request for a rule to show cause ordering the mother to appear before the court with the children. The mother and father are husband and wife. Both are Nigerian nationals. They were married in Nigeria in 2008, but their marital home was in Bristol, England, where the father practiced medicine with the National Health Service and the mother worked for a victims' rights organization.
Before the birth of their first child on August 31, 2009, the father arranged for the mother to fly from England to Denver, Colorado, where their daughter was born. The mother and infant stayed with the father's sister. On October 22, 2009, the mother returned to the family home in England with their daughter in accordance with the couple's plans. The agreed purpose for the trip was to provide the child with the benefits of United States citizenship. Family life resumed in England. In time, a second child was expected. The couple agreed to follow the same plan for the birth to take place in Denver in order to secure United States citizenship for the new baby. The father purchased round trip tickets, and again the father's sister was to host the wife and their children. The mother traveled from England to Denver on May 9, 2011, accompanied by their daughter. The couple's second child, a son, was born on June 25, 2011. The father expected his wife and children to return within several months of the baby's birth. There were cordial communications between the parents immediately after the baby's birth. The father repeatedly inquired as to when his family would return home. The couple's relationship turned sour on July 27, 2011, when the mother informed the father she was in no hurry to return to England with the children. The father responded with a series of emails, evidencing his anger and frustration. The early emails implored the mother to return with the children, and to at least "make sure you return my kids." At the same time, he threatened to cancel the credit card he had given her if she did not come home. Id. She did not respond. Three days later, he cancelled the credit card because, as he later told his father-in-law, she threatened him with not returning to the United Kingdom with their children.
On August 9, 2011, the mother abruptly left her sister-in-law's Denver home with the children. She did not inform the father or her sister-in-law where she was taking the children. The father's reaction to his wife's disappearance with the children was acute rage, evidenced by his abusive and threatening emails to both the mother and his father-in-law, who lives in Nigeria. It was evident from the emails that the father believed his father-in-law was financially and emotionally supporting the mother's desertion of the marriage and abduction of their children. The father-in-law was an obvious advocate for his daughter. At trial, the father admitted that he "hacked" into his father-in-law's email account, deleting some communications with the mother.
At trial, the father admitted he sent the threatening emails. He explained he was outraged and depressed by the unexpected loss of his family and especially by his wife's refusal to communicate with him. The court found that the father's emails were inexcusably demeaning and threatening. Albeit, aggravated circumstances were involved: the sudden loss of his children and his wife's refusal to even inform him where their children were located. Given this situation, the father's bad behavior in sending emails to the mother and his father-in-law did not support a reasonable inference the
father has a proclivity for violent or abusive behavior. The mother terminated all contact with the father on October 31, 2011. A preponderance of the credible evidence established the mother unilaterally denied the father's parental and custody rights under English law.
The mother attempted to justify her conduct by claiming the father physically and mentally abused her while she lived with him in England. She related three instances of physical abuse, claiming two happened while she was pregnant and one purportedly took place in the presence of their daughter, then less than two years old. The father denied her accusations. The court did not find credible or trustworthy the mother's testimony that she fled from England to the United States out of fear of her husband. The mother was a well-educated and well-spoken university graduate, and she worked as a banker in Nigeria before her marriage. During and after the claimed abuse, she was a divisional administrator for a charitable organization that assisted victims and witnesses of crime, including domestic violence, in England and Wales. She had regular and frequent contact with British law enforcement officers and social services agencies in the course of her work. Yet she never complained to a law enforcement officer or social services agency about mistreatment. This is astounding because she is a sophisticated person on abuse issues and victims' rights. She did not testify that she suffered any actual injury, nor did she seek medical treatment or counseling for the purported assaults. When the mother traveled to the United States with her young daughter, it was for the purpose of providing United States citizenship by giving birth in Denver. The agreed intent of the parents at the relevant time was that the mother would use the round trip tickets to return home as
soon as she and the new baby could do so. She traveled on a tourist visa that was to expire in November 2011. She did not resign from her job until January 2012. Her elusive conduct after her son was born is far more revealing than her trial testimony.
The mother's demeanor in relating the three purported instances of violence was akin to testimony by an aggrieved spouse in an acrimonious divorce proceeding. The same may be said of the trial testimony of her own father. Although he never witnessed the father inflicting harm on the mother, the father-in-law testified that she told him about the husband's alleged abuse. The court does not find the father-in-law's testimony probative or reliable, given the lack of foundation and personal knowledge, as well as his close relationship with the mother. There was no reliable evidence proffered that these attacks happened. More importantly, there was no evidence that the father posed
any threat whatsoever to the safety of his children.
The Court observed that Habitual residence may be established by the shared actions and intent of the parents, coupled with the passage of time. Koch v. Koch, 350 F.3d 703, 715 (7th Cir.2006). The mother and father lived together in England during most of their marriage. The family's home was in England. Both parents were legal English residents and were employed in England. The mother did not resign from her job in England until January 2012, more than six months after traveling to the United States. The mother had an English drivers license reflecting the address of the couple's Bristol home. Their daughter received medical care in Bristol. Pet. Ex. 11 (reflecting also the child's Bristol home address).
She was enrolled in a local nursery school. Overwhelming evidence established that the daughter, like her parents, habitually resided in the United Kingdom. The son was born in the United States. Due to his mother's unilateral decision to remain in the United States against the father's wishes, the son had not lived in England. Nonetheless, at the time of the son's birth, the established family home was in Bristol, England. The father consented to the son's birth in the United States with the joint understanding that his wife would return to England with their children within several months. He purchased round trip airline tickets. The parents' joint intent for the son to live with the family in England was established by a preponderance of the evidence. The mother testified that she traveled to the United States for the express purpose of obtaining United States citizenship for the baby. This reason may have been a ruse, or she may have changed her own intentions after the baby's birth. The mother's reluctance to return to England was not disclosed to the father until she was due to return, several months after the son was born. She did not deny that the family home was in England, and that she lived and worked in England during her marriage until May 11, 2011. The only reason the son has not actually resided in England was the mother's decision to retain the children in the United States.
Birth in the United States does not automatically render the son's habitual residence as the United States. Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir.2006) (Infant born in the United States did not acquire a United States habitual residence when the mother's habitual residence was in Sweden). A preponderance of the evidence established that the shared actions and intent of the parents before the son's birth was that he would reside in the family home in England. This was sufficient to show that the son's habitual residence was in the United Kingdom. The mother's argument that her son's habitual residence is in the United States lacked merit, given that his residence in the county since birth was due to her wrongful retention.
The father's assertion of parental custody rights under English law was uncontested at trial. The mother and father had a joint parental responsibility for their minor children, including the joint right to custody. The evidence was uncontested that the father exercised his joint custody rights with respect to his daughter before she was wrongfully retained in the United States. The family lived together, he provided for his daughter, and the family engaged in regular outings. The father never had contact with his son, who is an infant and is thousands of miles away due to the mother's wrongful conduct. The father repeatedly sought the return of his children and vigorously continues to do so through legal processes. The mother frustrated the father's efforts to exercise his joint right to custody of his children. A preponderance of the evidence establishes that the father had taken every reasonable (and a few unreasonable) means to exercise his joint custody rights.
The mother claimed the children would be at a grave risk of harm because of the father's capacity for violence. The record did not support her argument. The three contested acts of domestic violence she relied on were not credible, much less clear and convincing. She did not claim she suffered any resulting injuries. She never sought law enforcement intervention or complained to a social services agency, despite her work with victims of domestic abuse. Her testimony was implausible, and her father's testimony was based on hearsay. In addition, the mother relied on the father's threatening language in emails after she abducted the children, as a predictor of his capacity for violence. The emails were evidence of bad judgment, a mean spirit, and anger control problems. But the emails must be considered in context. His wife had just abducted the children in a foreign country, for awhile he did not even know where she had taken them, his wife ignored his demand that she bring the children home, and his father -in-law appeared to be supporting her wrongful behavior. The threatening "get even" emails to his wife and father-in-law were not violent behavior, nor was his possibly illegal intrusion into his father-in-law's email account evidence of a grave risk of harm to the children. The father's anger was out of control and his brutish emails were inexcusable. However, this remote form of misbehavior was not clear and convincing evidence of a proclivity for actual violence. There was no evidence to suggest that he ever abused the children or that he presents a grave risk of harm to them.
The mother argued that the father's petition should be denied on account of unclean hands, ie., his bad conduct. She relied on evidence that the father intercepted her emails, which allowed him to know she had applied for asylum. The father then sent an email to her asylum attorney, threatening to expose (what he saw as) the fraudulent nature of his wife's asylum claim. The father sent a copy of this email to the Federal Bureau of Investigation. The mother testified that the father also accessed her checkbook in England and used her funds. She again cited his admitted intrusion into his father-in-law's email account. The Court noted that an action under the Hague Convention is purely jurisdictional, it is not appropriate to consider the details of the parties' messy domestic disputes beyond their relevance to those defenses explicitly provided by the Hague Convention. The Hague Convention does not recognize unclean hands as a defense. Karpenko v. Leendertz, 619 F.3d 259, 265 (3d Cir.2010).
The Court also rejected the mothers Article 20 defense. Article 20 provides that a court may refuse to grant a petition under the Hague Convention if the return of the child would violate the United States' principles of human rights and fundamental freedoms. The mother argued that Article 20 was applicable for two reasons: the risk of harm created by returning the children to their father, who she alleges is abusive; and the possibility that the mother returning to the United Kingdom with her children would threaten the mother's pending application for asylum in the United States. The court pointed out that Article 20 is rarely invoked. This defense has never been asserted successfully in a published opinion in the United States. Here, there was no evidence that the children's human rights and fundamental freedoms would be in jeopardy in England in any way.
Article 13 of the Hague Convention provides that an abducted child need not be returned if the complaining parent consented or subsequently acquiesced in the child's removal or retention in another country. The Court found that the father only consented to his daughter traveling to the United States to accompany his wife for the agreed purpose of giving birth to their second child.
He purchased round trip tickets. He demanded that the mother return the children to England when she first revealed she was "not in a hurry" to return. He forcefully and repeatedly reiterated his view that she did not have a right to retain the children in the United States. In asserting this defense, the mother relied on a single email, in which the father stated his exasperation over the situation to his father-in-law. He said he was finished with his wife, but his "children will remain his children" and his wife "can keep them for now." This email sharply contrasts the father's consistent objections to his family remaining in the United States. He had been steadfast in his attempts to ensure their return, as evidenced by his conduct and his credible testimony at trial. A preponderance of the evidence did not support the argument that the father either consented or acquiesced to the mother's wrongful retention of the children in the United States.
The mother raised the defense of abandonment. The court noted that the Hague Convention does not recognize abandonment as an affirmative defense to child abduction. Moreover, the record did not factually support a conclusion that the father ever abandoned his children. Quite to the contrary, the record suggested that the mother abandoned her husband, home and legal residence in England.
The petition was granted for the return to the United Kingdom of the parties' children, identified as "O.U." born in 2009 and "N.U ." born in 2011.
10, 2011 because of work obligations, and that Mrs. Nixon and Aidin would stay on until August 31, 2011 with Mrs. Nixon's parents. Mrs. Nixon had a return ticket booked for August 31, 2011. On August 16, 2011, however, Mrs. Nixon canceled her return flight. On or about August 29, 2011, Mrs. Nixon filed a divorce action in the Eleventh Judicial District Court of New Mexico. On or about August 31, 2011, Mrs. Nixon informed Mr. Nixon by telephone that she was not coming back to
Australia, and that she had filed a divorce action in order to simplify custody.
On September 29, 2011, Mrs. Nixon's counsel advised Mr. Nixon's counsel that she would return to Australia. On October 4, 2011, however, Mrs. Nixon's counsel advised Mr. Nixon's counsel that Mrs. Nixon had changed her mind and intended to remain in New Mexico. Mr. Nixon did not consent to Mrs. Nixon's retention of Aidin in the United States. On October 5, 2011, Mr. Nixon filed the Petition, seeking, inter alia, an order directing that federal marshals and/or other law enforcement personnel be ordered to assist in picking up Aidin and returning him to the custody of Mr. Nixon,
allowing the prompt return of Mr. Nixon and Aidin to Australia, directing that Aidin's travel documents be surrendered with him, and requiring Mrs. Nixon to pay Mr. Nixon's costs and attorney fees. The Court granted the petition.
Mrs. Nixon argued that the United States, rather than Australia, was Aidin's habitual residence, because she never intended to be domiciled in Australia, but rather always intended to move back to Aztec, and, at some point in the past, believed that Mr. Nixon agreed to move to the United States. According to Mrs. Nixon, because Aidin was so young, his habitual residence was connected to his mother, and because she intended to move home to Aztec, Aztec was Aidin's habitual residence. Neither the evidence nor the relevant case law supported Mrs. Nixon's position. It was undisputed that, since their marriage, Mr. and Mrs. Nixon lived continuously in Australia. Mrs. Nixon was a permanent resident of Australia. Aidin was born in Australia and never left Australia until this trip to New Mexico. Mr. Nixon testified that it was never his intent to move to the United States. Mrs. Nixon admitted in her testimony that although she wanted to move back to Aztec at some point in the near future, Mr. Nixon did not share the same intention, and told her in no uncertain terms that he did not wish to relocate there. Mrs. Nixon further admitted that she is presently in the United States for what she intended to be a two-month vacation, and it was not until she had been here for six weeks that she decided not to return to Australia. Mrs. Nixon actually had a ticket to return to Australia with Aidin on August 31, 2011.
Considering Aidin's past experiences and the parties' shared intentions, it was clear that Australia was the only place where Aidin had been physically present for an amount of time sufficient for acclimatization, and which had a "settled purpose" from his perspective. Mr. and Mrs. Nixon had no shared intention that Aidin reside in Aztec, New Mexico. Although the parties brought Aidin to the United States, the trip was intended by both of them to be of a specific period of two months. The fact that Mrs. Nixon unilaterally changed her intentions six weeks into the visit was insufficient to alter Aidin's habitual residence. Aidin was born in Australia and resided exclusively in Australia until Mrs. Nixon retained him in the United States. The Court found that Aidin was a habitual resident of Australia at the time of his retention in the United States.
Because Australia would apply its own laws in this case, Mr. Nixon's "custody rights were determined by Australia's Family Law Act 1975, of which [this Court] may take notice directly." Under Australia's Family Law Act 1975, "in the absence of any orders of court, each parent is a joint guardian and a joint custodian of the child, and guardianship and custody rights involve essentially the right to have and make decisions concerning daily care and control of the child."(Family Law Act 63(F)(1), 63E(1) and (2)). As there were no court orders to the contrary, Mr. Nixon had joint custody and control of Aidin. Accordingly, Mrs. Nixon's unilateral decision to retain Aidin in the United States was in breach of Mr. Nixon's custody rights under the laws of Australia, the state of Aidin's habitual residence.
The evidence demonstrated that, far from abandoning his child, Mr. Nixon lived with Mrs. Nixon and Aidin "as a family." When Aidin was born, Mr. Nixon took four weeks leave from work to care for him. Mrs. Nixon testified that when she was at work every Friday, Saturday and Sunday evening, Mr. Nixon watched Aidin and put him to bed. Mr. Nixon similarly testified that he helped Mrs. Nixon "as much as possible, in terms of raising Aidin," which involved "doing anything from looking after Aidin, ... taking him for walks, bathing him, putting him to bed, reading him stories, playing with him." Accordingly, the Court found that Mr. Nixon was exercising his custodial rights at the time of Mrs. Nixon's retention of Aidin in the United States.
The sole defense argued by Mrs. Nixon was that Aidin would be exposed to a grave risk of harm if returned to Australia. Mrs. Nixon alleged that Aidin would suffer grave harm if he were taken from his mother, as she is still nursing him. Mrs. Nixon alleged that Mr. Nixon was diagnosed with ALS and suffered from obsessive/compulsive disorder, both of which conditions called into question his ability to care for Aidin Finally, Mrs. Nixon alleged that Mr. Nixon informed her that upon her return to Australia, he would take sole custody of Aidin and that she could live "somewhere," perhaps with her brother who lives five hours away from the marital residence, which would be an intolerable situation for Aidin. Mrs. Nixon testified that several times, Mr. Nixon held Aidin and fallen over, and she was worried that he would again hold Aidin and fall. She also testified that Mr. Nixon was controlling and rigid, and disagreed with her as to issues such as Aidin's feeding and sleeping schedules. Additionally, Mrs. Nixon testified that when she asked Mr. Nixon what would happen if she returned to Australia, he "made it clear that [she] might be able to live with him, maybe not." She further testified that, when she asked him where she was supposed to live, he responded, "I don't know, but we'll figure it out," and indicated that he could take leave from work and have primary custody of Aidin for a period of time. Based on this conversation, Mrs. Nixon became afraid that Mr. Nixon expected her to "land in Australia, hand Aidin over, and be basically on the streets." Mrs. Nixon testified: [I]t's still very alarming to fly halfway across the world, get off a plane, and not know where you're going to live and how you're going to be supported, especially with an infant that I'm still breast feeding. That is unacceptable and intolerable for myself and for our son."
The Court observed that federal courts uniformly note that "[t]he bar for proving the 'grave risk' exception is set exceptionally high." Krefter v. Wills, 623 F.Supp.2d 125, 135 (D.Mass.2009). The Court found that Mrs. Nixon's allegations fell short of establishing a grave risk of harm if Aidin was returned to Australia. Mrs. Nixon intended to return to Australia along with Aidin. Accordingly, any danger that would result from Aidin's separation from his mother would not come to pass. Notably, an order that Aidin be returned to Australia is not the equivalent of an order that Mr. Nixon is entitled
to sole custody of Aidin. Mr. Nixon testified that it was not his intention to take sole custody of Aidin upon his return to Australia. He explained that he had the opportunity to take five months paid leave to care for Aidin, so long as "he is designated the primary caregiver," and that this is "an option for discussion with [Mrs. Nixon]." Further, Mrs. Nixon's concerns about Mr. Nixon's fitness as a parent were unsupported. Mr. Nixon testified that he had not been officially diagnosed with ALS, and Mrs. Nixon presented no evidence that any doctor has ever advised him that it is unsafe for him to care for Aidin. Mr. Nixon had been in counseling for years for his emotional issues, and he had never been advised by a counselor that his OCD interferes with his ability to care for Aidin. Until they left for the United States, Mrs. Nixon routinely entrusted Aidin to Mr. Nixon's care. Mrs. Nixon's testimony as to her experience of Mr. Nixon as controlling did not rise to the level required to establish that Aidin's return to Australia will expose him to a grave risk of harm. While her testimony demonstrated parenting and personality differences, such differences were not uncommon, and certainly did not demonstrate that Mr. Nixon posed a danger to his son. Finally, courts routinely have held that financial concerns are insufficient to establish an "intolerable situation." Krefter, 623 F.Supp.2d at 136-37; Wilchynski v. Wilchynski, No. 3:1-CV-63, 2010 WL 1068070, *9 (S.D. Miss. Mar. 18, 2010). Accordingly, Mrs. Nixon's fears about her ability to support herself and maintain a home where she could nurse and properly care for Aidin did not meet the standard necessary to show a risk of grave harm. Because Mrs. Nixon failed to establish a valid defense to her wrongful retention of Aidin in the United States, Aidin had to be returned to Australia.
The Court accepted Mr. Nixon's proposed undertakings, and ordered that Mrs. Nixon will continue to live in the marital residence, and Mr. Nixon will provide Mrs. Nixon with maintenance and support, until such time as the courts in Australia make other arrangements for the parties.
Carrasco v. Carrillo-Castro, --- F.Supp.2d ----, 2012 WL 1948996 (D.N.M.)[Mexico] [Habitual Residence]
In June 2010, Flor and N.C. with Daniel's consent, left for Chihuahua, Mexico. Both parties testified that they did not discuss a specific date on which Flor and N.C. would return to the United States. According to Flor, in advance of that trip, she told Daniel on several occasions that she wanted to move back to Mexico to be near her family, and intended to find a place to live and work there. With regard to the June trip in particular, Flor testified that she told Daniel that she planned to look for a place to live and a job while she was in Mexico, and that if she found a job, she might not return to the United States. According to Daniel, Flor told him she had already gotten a job in Mexico, and that she and N.C. would live there while she was working. He further testified that although they did not discuss how long Flor and N.C. would be in Mexico, it was supposed to be temporary, "for a relatively short time." .According to Daniel, he told Flor that he did not want N.C. to live in Mexico, and that Flor assured him that she and N.C. would return to Albuquerque in several months..
While they were in Mexico, Flor and N.C. lived with Flor's mother in Chihuahua. Until January 2011, Flor's mother cared for N.C. while Flor was at work. Beginning in January 2011, N.C. attended a daycare center in the mornings and stayed with Flor's mother in the afternoons. N.C. spent time with family at social gatherings, and played with cousins and friends from the neighborhood. His health was good, and according to Flor, he had a regular doctor that he saw every month. Daniel spoke to N.C. almost daily. In September 2010, Flor sent N.C. to Albuquerque with her mother to see Daniel.
Flor picked N.C. up at the end of the visit and brought him back to Mexico. In November 2010, Flor's mother again brought N.C. to Albuquerque to see Daniel. Flor, too, came to Albuquerque at that time, and stayed with her sister. N.C. stayed with Flor for the month of November and the first two weeks of December. He stayed with Daniel for the last two weeks of December for the holidays. While N.C. was with Flor, he saw Daniel daily. In November, Flor took N.C. for a check-up with his primary care physician in Albuquerque. Daniel testified that during Flor's stay in Albuquerque, she advised him that she intended to remain in Mexico, where she had gotten a good job. The parties together decided to enter into a written agreement regarding N.C.'s care and the distribution of their assets. Flor testified that the intent of the agreement was for N.C. to stay with her in Mexico, and to prevent future problems with visitation. .Daniel similarly testified that he entered into the agreement in order to "stay in contact" with N.C. while he and Flor were in Mexico. .He further testified that he understood that Flor would stay in Mexico, and while she was in Mexico, she would guarantee that he would see his son. Accordingly, on November 4, 2010, the parties entered into a written agreement, which was signed and notarized. The agreement provides as follows: By means of this document, we the interested parties Flor Jazmin Carrasco Lopez and Daniel Carrillo Castro arrived at an agreement as to the care of our son [N.C.]. In which we understand that for every 2 months that [N.C] spends living with his mom Flor Jazmin Carrasco in the city of Cuahutemoc Chihuahua. The following month he shall spend in the care of his dad Daniel Carrillo Castro in the city of Albuquerque New Mexico. In addition in this document we record how our assets were distributed as of our separation.
The agreement did not include any time limits on the arrangement for N.C.'s care, or any date on which Flor and N.C. would return to the United States. Despite his testimony that Flor advised him of her intention to remain in Mexico, where she had gotten a good job, Daniel also testified that he believed the agreement would be temporary, and that he repeatedly asked Flor to move back to Albuquerque. Daniel provided no factual basis, such as evidence that Flor's job was a temporary position, to support his testimony as to the temporary nature of Flor's stay in Mexico.
Both parties testified that they understood the agreement would have to change when N.C. started school. Flor testified that she told Daniel that once N.C. started school, N.C. should visit Daniel during school vacations. However, Flor also testified, as did Daniel, that Daniel had always intended for N.C. to attend school in the United States, and had made that intention known to Flor. When asked in what grade he thought N .C. would start school, Daniel responded, kindergarten. Flor and N.C. returned to Mexico at the end of December 2010. In keeping with the parties' written agreement, in March 2011, Flor sent N.C. to Albuquerque with her mother to see Daniel. N.C. remained in Albuquerque for one month, and then returned to Mexico. Although, pursuant to the parties' written agreement, N.C. was to spend the month of June 2011 with Daniel, N.C. did not travel to Albuquerque at that time. Flor testified that she did not bring or send N.C. to Albuquerque both because Daniel had threatened to keep N.C. in the United States if she did, and because neither Flor nor her mother was able to bring N.C. to the United States. Specifically, Flor's visa had expired and she was unable to procure a new visa, and Flor's mother was unavailable. The Court found Flor's testimony credible.
Flor testified that for approximately one week in June, she and N .C. traveled to an area that made it difficult to have telephone contact. .According to Flor, she told Daniel in advance about the trip. On the other hand, Daniel testified that he was unable to reach N.C. by telephone for approximately one week, and had not been advised by Flor that they would be traveling and unreachable. Daniel testified that because he had not heard from N.C, he decided that N.C. should stay with him in the United States, and sought legal assistance to effectuate that decision.
Flor testified that after June 2011, Daniel changed. He stopped threatening her and "became nice" again. In September 2011, in keeping with the parties' written agreement, Flor sent N.C. to Albuquerque with her sister. Flor expected that Daniel would send N.C. back to her at the end of the month. At that time, N.C. spoke no English.
Although the parties' agreement required him to return N.C. to Flor at the end of September, Daniel refused to allow N.C. to return to Mexico. Flor testified that Daniel told her at the end of September that he was not going to send N.C. back. Consistent with Flor's testimony, at one point in the hearing, Daniel admitted that he decided to retain N.C. at the end of September and then began a custody proceeding so that Flor would not find out about the proceeding until it was too late for her to refuse to send N.C. to see him. At another point in the hearing, Daniel provided contradictory testimony that he had told Flor in August that he intended to start a custody proceeding, and that she would not be able to take him back to Mexico at the end of September .Daniel testified that Flor "knew perfectly well what [he] was going to do" before she sent N.C. to the United States. The Court did not find credible Daniel's testimony that Flor knew in advance of the September trip that he intended to keep N.C. This testimony was simply not believable, and inconsistent with Flor's testimony, which the Court found credible.
In November 2011, Daniel filed in the Second Judicial District Court, State of New Mexico, a Petition to Establish Parentage, and to Determine Child Custody, Timesharing, and Child Support Obligation, in which he sought primary physical custody of N.C. In that proceeding, Daniel specifically requested that the state court enter an order prohibiting the removal of N.C. from the United States. Accordingly, on November 15, 2011, the state court entered a temporary order prohibiting the removal of N.C. from the State of New Mexico by one parent without the written consent of the other parent. Since sending him to Albuquerque in September 2011, Flor has spoken to N.C. daily, but has not been able to see him. Flor attempted to travel to Albuquerque in November 2011, but was unable to enter the United States. To date, Flor was unable to procure the necessary documents to travel to the United States.
On March 13, 2012, Flor filed the Petition, seeking, inter alia, an order directing prompt return of N.C. to Mexico, his habitual residence, and an order directing Daniel to pay her legal costs and fees. On April 10, 2012, Daniel filed an answer denying the allegations in the Petition. On May 3, 2012, the Court held an evidentiary hearing at which both parties testified. The Court observed term "habitual residence" is "not defined by either the Hague Convention or the ICARA." Kanth v. Kanth, 232 F.3d 901, 2000 WL 1644099, *1 (10th Cir. Nov. 2, 2000). Rather, a child's habitual residence "is defined by examining specific facts and circumstances." Accordingly, the inquiry into a child's habitual residence "is a fact-intensive determination that necessarily varies with the circumstances of each case." Whiting v. Krassner, 391 F.3d 540, 546 (3d Cir.2004). The federal circuit courts have interpreted the term "habitual residence" differently. In Feder, the Third Circuit held that a child's habitual residence is "the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective." 63 F.3d at 224. Considering N.C.'s past experiences and the parties' shared intentions, the Court found that Mexico was the place where N.C. had been physically present for an amount of time sufficient for acclimatization, and which has a "settled purpose" from his perspective. See Feder, 63 F.3d at 224. Since he was born, N.C. lived with Flor. When Daniel and Flor separated, N.C. continued to live with Flor. When Flor left for Mexico in June 2010 to look for work and a place to live, N.C, with Daniel's permission, went with her. At the time, N.C. was two and one-half years old. In November 2010, when Flor told Daniel that she had found a job and would remain in Mexico indefinitely, Daniel again consented to Flor taking N.C. with her. At no point did the parties discuss a specific date on which Flor and N.C. would return to the United States. Other than three trips to visit his father, N.C. lived with Flor in Mexico until his retention in the United States in September 2011, when he was just over four years old. N.C. spoke only Spanish. From the time he first arrived in Mexico until his September 2011 trip, N.C.'s grandmother cared for him, at least for part of the day each weekday, and beginning in January 2011, N.C. attended daycare every weekday morning. N.C. established a relationship with his extended family, spending time at social gatherings, and playing with cousins. He also established friendships with neighborhood children. Although he had primary care physicians in New Mexico as well, N.C. established a relationship with a doctor in Mexico, whom he saw every month. N.C.'s fifteen months in Mexico-which, at four years old, was almost thirty percent of his life-living with the primary caretaker he had always known, surrounded by his extended family, and speaking the only language he had ever known, was sufficient for him to become acclimatized. See Falls v. Downie, 871 F.Supp. 100, 102 (D.Mass.1994) (finding twenty-one month old child had become "completely accustomed to life in this country and with his father and grandparents" where he had been living in the United States for eight months). Further, from his perspective, N.C.'s purpose of living in Mexico-to remain with his mother where she had decided to make a life for herself-had a sufficient degree of continuity to be properly described as settled. The fact that N.C. spent some time during this fifteen-month period in Albuquerque does not change this analysis, as "[i]t is clear ... that an existing habitual residence in a country is not lost by the mere fact of leaving the country for a temporary absence which is intended to be of a short duration."E.M. Clive, The Concept of Habitual Residence, 1997 Jurid. Rev. 137, 142. This is true even if Daniel intended for N.C. to return to the Albuquerque two years later to attend kindergarten, or, indeed, even if Daniel was under the impression that Flor was planning to return to the United States after a short time. As Feder makes clear, one need not intend to stay somewhere permanently, or even indefinitely, so long as "the purpose of living where one does has a sufficient degree of continuity to be properly described as settled." Feder, 63 F.3d at 223. Accordingly, "Feder requires only a degree of settled purpose to accompany the move, even if such purpose is only for a limited period." Whiting, 391 F.3d at 549 (holding that shared intent by parents that child live in Canada for period of two years fulfills Feder requirement that her move to Canada was accompanied by a degree of settled purpose). That requirement was met easily here. Both parents agreed that Flor would return to Mexico for some period of time with N.C. The amount of time was left open, and Daniel agreed that N.C. should go
with Flor. These arrangements "amounted to a purpose with a sufficient degree of
continuity to enable it properly to be described as settled." Levesque v. Levesque, 816 F.Supp. 662, 666 (D.Kan.1993) . For these reasons, under the Feder test, the Court concluded that Mexico was N.C.'s habitual residence at the time of his retention in the United States.
The Court reached the same conclusion under the Mozes test. The circumstances surrounding N.C.'s stay in Mexico were such that, "despite the lack of perfect consensus", the Court found that Flor and Daniel shared a settled mutual intent that N.C.'s stay in Mexico last indefinitely. See Mozes, 239 F.3d at 1077-78. Flor and Daniel shared a settled mutual intent that N.C.'s stay in Mexico last indefinitely. As this is the case, the Court inferred a mutual abandonment of N.C.'s prior habitual residence in the United States. Daniel's stated intention that N.C. return to Albuquerque to attend kindergarten did not change this analysis. Flor and N.C. left for Mexico in June 2010. Daniel was not eligible to begin kindergarten until September 2012. Accordingly, even if the parties shared a settled mutual intent that N.C.'s stay in Mexico last for two years, this period was too long to expect N.C. to live abroad-in his parents' native country-without acquiring habitual residence. Under the Mozes test, the Court concluded that Mexico was N.C.'s habitual residence at the time of his retention in the United States.
The Court noted that its determination regarding N.C.'s habitual residence was further supported by the fact that Daniel has no legal status in the United States. "An unlawful or precarious immigration status ... is [ ] a highly relevant circumstance where, as here, the shared intent of the parties is in dispute." Although N.C, himself, is a United States citizen, he was only four years old, and thus needs to rely on the stability of his primary caretaker for several years to come. Unfortunately, Daniel is unable to offer that stability. Accordingly, although not determinative of this Court's decision, Daniel's status is a factor weighing in favor of finding Mexico to be N.C.'s habitual residence.
N.C.'s habitual residence at the time of retention was the State of Chihuahua, Mexico. Accordingly, the law of Chihuahua, Mexico governs the decision as to whether Flor had custody rights at the time Daniel retained N.C. in the United States. Title Eighth of the Civil Code for the State of Chihuahua contains several provisions defining the scope of parental authority/responsibility, or patria potestas. Under this Title, the Code provides that parental authority/responsibility over children will be exerted by the father and mother. Civil Code, Art. 391(1). Further, the Code provides that in the event of a separation between the parents, both parents are required to continue fulfilling their obligations, and may agree upon the terms of its exertion, particularly in all things concerning the care and custody of the minors. Art. 393. In the case of disagreement between separating parties, a judge will decide the matter. Id. The Code specifies that those who exert parental authority/responsibility have a
right to coexist (spend time) with their children, even if they do not have custody, unless it represents a danger to the child. Id. Art. 394. Further, the Code provides that as long as the child is under parental authority/responsibility, he shall not leave the house of those who exert it without their permission. Id. Art. 398. Finally, the Code provides that the abduction or retention of the minor outside of his habitual residence without the permission of those exerting parental authority/responsibility or custody grants the right to initiate the restitution procedure contemplated in the Code of Civil Procedure.
The doctrine of patria potestas set forth in the Code "implies a meaningful, decision making role in the life and care of the child." Whallon, 230 F.3d at 458. Accordingly, the rights of parental authority/responsibility afforded to Flor, as N.C.'s mother, pursuant to these Code provisions was sufficient to establish that she had rights of custody for purposes of the Hague Convention. Under the Code, Flor had the right to exert parental authority/responsibility, and the right to spend time with N.C. Daniel violated those rights by retaining N.C. in Albuquerque after the date upon which the parties agreed N.C. would be returned to Mexico. Assuming the Mexican courts would honor the parties' agreement here, Daniel was in violation of that agreement when he retained N.C. Further, Daniel retained N.C. outside of his habitual residence without Flor's permission, thus violating the Code. Accordingly, the Court found that Daniel's unilateral decision to retain N.C. was in breach of Flor's custody rights under the laws of N.C.'s habitual residence at the time of his removal.
The Court "liberally find[s] "exercise" whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child ." Friedrich, 78 F.3d at 1067. Accordingly, "if a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to 'exercise' those custody rights under the Hague Convention
short of acts that constitute clear and unequivocal abandonment of the child." The evidence demonstrated that, far from abandoning her child, Flor was living with and caring for N.C. in Mexico. Although, pursuant to the parties' agreement, she sent N.C. to spend the month of September with Daniel, she intended to continue to live with and care for Daniel upon his expected return at the end of the month. Accordingly, the Court found that Flor was exercising her custodial rights at the time of Daniel's retention of N.C. in the United States.
The Court concluded that Flor established by a preponderance of the evidence that Mexico was N.C.'s habitual residence, that Daniel's retention of N.C. in the United States was in breach of Flor's custody rights under Mexican law, and that Flor was exercising her custody rights at the time of retention. Accordingly, Flor made a prima facie case of wrongful retention. The burden thus shifted to Daniel to establish a defense. Daniel, however, did not assert any defense to Flor's prima facie case of
wrongful retention. Accordingly, the Court ordered the return of N.C. to Mexico.
In Hamprecht v Hamprecht, 2012 WL 1890857 (M.D.Fla.) Petitioner and respondent were both born in Germany, and had always been German citizens. They were married in Germany on December 16, 1994, and became the parents of sons born in 1995, 1997, and 2005 in Germany. The family resided in Germany until February 18, 2009, when they came to the United States. Prior to that time the family had often traveled to the United States, but no member of the family ever attempted to obtain United States citizenship. The child at issue in this case was the youngest son, referred to as "F.H.", who was born in Germany on October 25, 2005.
Petitioner was the Chief Executive Officer (CEO) for Tube Technology Systems AG (TTS AG), a company located in Massen, Brandenburg, Germany. TTS AG currently manufactured and supplied specialized braking systems to Volkswagen, Audi, Lamborghini, and Bentley automobiles. Petitioner traveled extensively on his German passport. Respondent had not been employed outside the home. The parents wanted to immerse their oldest two sons in English, and decided to come to the United States for an extended stay. Petitioner testified that the stay in the United States was to coincide with his temporary employment duties, and the family never intended to stay permanently. Respondent testified that it had always been the plan and intent to move permanently to Florida.
In 2008, the parties sold their house in Germany, which was about 350 miles from the TTS AG plant, and moved to rental property in Dresden, Germany closer to the company. On August 28, 2008, petitioner purchased a $739,000 waterfront home on Harbour Circle in Cape Coral, Florida. Subsequent correspondence from respondent and her attorney refers to this house as the parties' "vacation home." The parties also began making arrangements for their trip to the United States, checking on schools for the two older sons and checking on how to enter the United States. On February 4 or 5, 2009, respondent and F.H. were issued six-month B-2 (visitor) visas at the U.S. Embassy in Berlin, Germany, while the other two boys were issued F-1 (student) visas. Petitioner was admitted to the United States pursuant to the waiver program. Petitioner, respondent, and their three sons arrived in the United States on February 18, 2009.
Upon their arrival in the United States, the family lived in the vacation home in Cape Coral and the two older boys enrolled in a private school in Fort Myers, Florida.
Petitioner would travel back and forth to Germany for his employment activities while his family remained in Florida. TTS AG maintained an apartment for petitioner in Berlin, Germany. Shortly thereafter, TTS AG decided to expand its production to the United States. In March 2009, TTS AG incorporated Tube Technology Systems, Inc. (TTS Inc.) as a wholly owned Florida subsidiary. TTS AG asked petitioner to run the United States affiliate in addition to his other duties with TTS AG. Respondent's six-month visitor status was to expire on August 17, 2009. In a letter dated July 12, 2009 to the United States Citizenship and Immigration Services (USCIS), respondent's attorney submitted an application for an extension of respondent's B-2 status. Attached to the attorney's letter was an undated letter by respondent to the USCIS requesting the extension of her B-2 status. Respondent's letter stated she was "requesting that my stay be extended until to allow me to remain with and care for my young sons until we return to Germany at the end of the school year. They are currently enrolled with valid F-2 student visas in a private program at Canterbury School in Fort Myers, Florida." Both letters referred to an enclosure of a copy of a warranty deed to "our vacation home" in Florida. Respondent's "application for extension of temporary stay" was approved effective from August 18, 2009 through February 16, 2010.
On November 18, 2009, TTS Inc. applied for a L-type visa for petitioner, which was granted on November 20, 2009. A L-type visa is a nonimmigrant temporary visa to effectuate an intracompany transfer of an executive or manager to the United States. In February 2010, petitioner formally agreed to establish and manage TTS Inc. for the manufacture of specialty automobile brake systems for United States automakers. On February 11, 2010, petitioner became the CEO of TTS Inc. pursuant to an additional employment contract with TTS AG and TTS Inc. This additional employment contract, which was governed by German law, was to terminate on November 30, 2011. TTS AG officials variously estimated the project would take 18 to 24 months, and then petitioner was to return to Germany. Because her visa extension would expire soon, in a February 10, 2010 letter by counsel, respondent applied for a change of her B-2 status to an L-2 status and an extension until January 31, 2011 to coincide with petitioner's L-1 status. This application was approved on April 2, 2010, and respondent was given L-2 status (which was derivative of and dependent upon her husband's L-1 status) through January 31, 2011. A similar status change was granted for F.H. on May 5, 2010. Petitioner traveled back and forth to Germany, and researched a location in the United States for the new TTS Inc. plant.
The parties' two older sons re-enrolled in their private school for the 2010 school year. Petitioner's business activities were succeeding. Petitioner and respondent, however, were having marital difficulties. To address their immigration statuses, both petitioner and respondent filed additional applications for extensions. On November 9, 2010, respondent applied for an extension of her L-2 status through January 30, 2013. On November 17, 2010, TTS Inc. filed a petition with the USCIS for an extension of petitioner's L-1A status based upon his employment. TTS Inc. reported that petitioner had negotiated incentives with the City of Auburn, Alabama, hired a consultant to assist with preliminary work in setting up a production facility, shipped machinery and equipment required to begin operations, and reached an agreement with Volkswagen to supply its brake systems. TTS Inc. stated that the dates of intended employment were January 31, 2011 to January 30, 2013.
On December 16, 2010, both petitions were granted. Petitioner was issued an extension of the L-1 visa to stay in the United States through January 30, 2013, based upon his continued employment for TTS Inc. Respondent was granted a "temporary stay" extending her stay in the United States through January 30, 2013. This form notified respondent that her nonimmigrant status was based on the separate nonimmigrant status held by virtue of her husband's authorized employment in the United States. In February 2011, respondent signed contracts with the private school for all three of her sons for the 2011 school year. By a letter dated March 16, 2011, respondent filed an application for permission to accept employment in the United States. This was approved on May 26, 2011. In March 2011, the parties sold the vacation house in Cape Coral because it was too small for the family, and began planning to build a new house. On March 15, 2011, respondent purchased a lot in the Gulf Harbor Yacht and Country Club, in Fort Myers, Florida, for $320,000. Petitioner retained a real estate developer and former neighbor to design a custom residence with over 6,400 square feet of living space at an estimated cost of $1.25 million. The design process would be completed, but was eventually cancelled due to the marital difficulties. In March 2011, during an exchange of emails between petitioner in Germany and the designer, petitioner made reference to a "move to Fort Myers full time" and requested that the design process be expedited.
Marital difficulties continued during the design process for the new house. Respondent had opened up a bank account in her own name at a Florida bank in March 2011. The parties separated in about August 2011. In September 2011, petitioner discovered that respondent was having an on-going extramarital affair.
On September 26, 2011, respondent took in excess of $330,000 from a joint account with petitioner and deposited it in her sole account in the Florida bank. By mid-October 2011, petitioner had physical custody of the two older boys and respondent had physical custody of F.H. Both parents, however, remained active in the care and upbringing of all three sons. On October 13, 2011, respondent filed a domestic violence action against petitioner and obtained a state court temporary restraining order. On October 20, 2011, petitioner filed for petition for divorce in the Lee County Circuit Court, stating that he and respondent "have been residents of the State of Florida for more than six months next before filing this petition." Florida law requires that at least one of the parties to a divorce proceeding have been a Florida resident for more than six months.Fla. Stat. 61.021.Petitioner dismissed the divorce petition on December 6, 2011. Respondent, however, filed a cross-petition for divorce, which remained pending but was stayed by agreement of the parties.
On November 9, 2011, the state court entered an Order on Stipulation for No Contact directing petitioner to have no contact with respondent, and directing dismissal of the temporary injunction. Without informing respondent, on November 14, 2011, petitioner and the two older sons left Florida for Germany. Respondent had possession of the passports for all three sons. On November 15, 2011, petitioner and his two older sons went to the German embassy in Florida where they obtained emergency documents for the two older sons to return to Germany. They left for Germany later that day and arrived on November 16, 2011.
On or about November 17, 2011, both parents filed motions in the divorce proceeding asking for a temporary parenting plan. Petitioner and respondent both asked for custody of all three children. On December 7, 2011, the state court entered an order granting temporary custody of all three children to the mother and directing that the two older children be returned to Florida.
On November 21, 2011, TTS Inc. withdrew its November 18, 2009, petition for nonimmigrant worker status for petitioner. The USCIS revoked the petition effective that date. The last time respondent attempted to contact her two sons in Germany, or to speak with them when they attempted to contact her, was in the end of November 2011. Petitioner tried to contact respondent and F.H. repeatedly by email, but respondent has never returned the contact or allowed F.H. to do so. Additionally, respondent had not let F.H. contact his father or paternal grandparents since that time.
On January 3, 2012, petitioner filed an Application for Regulation of Parental Custody in a German court regarding his three sons. Petitioner sought full parental custody, or alternatively, the right to determine the place of residence of his three sons.
Respondent's immigration status in the United States was derivative of petitioner's status, which was dependent upon his employment in the United States. Respondent therefore applied for and was accepted as a student at Edison State College for classes beginning January 12, 2012. By a January 10, 2012, letter authored by counsel, respondent filed an application with the USCIS for an extension/change of nonimmigrant status. Respondent's January 3, 2012 application requested an F-1 (student) status, independent of any application or status of petitioner, stating that she traveled on a German passport and was not an applicant for an immigrant visa. Respondent's signed Certificate of Eligibility for Nonimmigrant (F-1) Student Status stated she had been accepted at Edison State College for classes majoring in Early Childhood Education and Teaching, which she expected to complete "not later than 05/05/2014."Respondent certified that "I seek to enter or remain in the United States temporarily, and solely for the purpose of pursuing a full course of study at the school...." In a separate Affidavit of Stephanie Hamprecht dated January 3, 2012, respondent stated that she was currently present in the United States pursuant to a grant of Change of Status to L-2 status as a dependent spouse "during my husband's temporary work assignment" valid from February 1, 2011 to January 30, 2013; that her husband had filed for divorce; that while divorce proceedings are pending, and after the termination of the marriage, she "wish[ed] to stay in the United States to pursue a degree in Early Child Education in order to better my chances of employment in Germany"; that she was not employed during her 17 year marriage, and therefore "I will have difficulty finding employment upon my return to Germany without any kind of formal education"; that after completion of her program at Edison Community College "I plan on moving back to my residence in Germany, where I have a strong support circle made up of many friends and a large family and where I have a strong financial standing"; and that "I own property in Dorsten, Germany, where I plan to return and seek employment upon the termination of my program at Edison Community College."
On February 24, 2012, the requested change of status to F-1 (student) was granted for respondent. The approved "temporary stay" was valid for the duration of respondent's student status. In a March 7, 2012 letter by counsel, respondent caused an application to be filed on behalf of F.H. requesting a change of status to F-2 status. The application stated that F.H. was "supported by my mother, based on whose principal status I am applying." The application remained pending as the USCIS issued a Request for Evidence on May 1, 2012 requiring a Dependant Copy of the SEVIS Form I-20 by June 3, 2012. In an April 5, 2012, answer to request for admission, respondent stated:"Respondent denies that she ever intended to return to Germany after moving to the United States."
The District Court found that the retention of F.H. in the United States was clearly with the petitioner's consent until November 14, 2011, the date petitioner left for Germany with his two other sons. It observed that the Eleventh Circuit has adopted an approach to determine habitual residence. Determination of a habitual residence focuses on the existence or non-existence of a settled intention to abandon the former residence in favor of a new residence, coupled with an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized. Ruiz, 392 F.3d at 1253-54,adopting the approach set forth in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001). The Court concluded that petitioner has established by a preponderance of the evidence that F.H.'s habitual residence remained Germany.
It found that the parents never had a shared intention to abandon Germany as a habitual residence and to make the United States the habitual residence for themselves or F.H. Both parents clearly had the shared intent to come to the United States for some period of time. There was an agreement to stay for the duration of petitioner's employment activities in the United States. Petitioner maintained this was the extent of the agreement, while respondent asserted that it was agreed they would never again reside in Germany.
The Court did not find respondent's testimony regarding their agreement to remain permanently in the United States to be credible. Respondent had shown a propensity to make whatever statement was in her best interest at the time in this regard. Petitioner testified before the Court that since February 18, 2009, it has been her intent to live permanently in Florida; that this intent has never changed; and that since her arrival in the United States she never intended to return to Germany. In an April 5, 2012, answer to requests for admissions, respondent denied "that she ever intended to return to German after moving to the United States." And yet, in July 2009, respondent told the USCIS that she was requesting a visa extension to stay with her children "until we return to Germany at the end of the school year." In January 2012, respondent told the USCIS she was requesting a student visa to complete her education so as to "better my chances for employment in Germany." Respondent said she owned property in Dorsten, Germany, "where I plan to return and seek employment upon the termination of my program" at school. The Court found that the parents never had the settled intention of abandoning Germany as their habitual residence in favor of the United States.
It was undisputed that respondent had maintained custody of F.H. in the United States, and refused to allow petitioner to communicate with F.H. and refused to allow F.H. to communicate with petitioner. Respondent retained F.H.'s German passport (until surrendered to the court), has declined to return F.H. to Germany, and initiated legal proceedings to prevent that from occurring. The Court found that there was a "retention" of F.H. within the meaning of the Hague Convention from at least November 17, 2012 forward.
The Court concluded that the evidence in this case established that respondent's retention of the child was a wrongful retention under the Hague Convention. Respondent's refusal to allow communication between F.H. and petitioner, and her unilateral retention of F.H. without the consent of petitioner, violated petitioner's custody rights under German law. Petitioner also established he was exercising his rights of custody at the time the child was wrongfully retained. Petitioner continued to see and
visit with the child and participate in his life prior to leaving for Germany. After November 14, 2011, petitioner made multiple efforts to maintain contact with the child as well as to obtain custody of F.H.