New York Matrimonial Trial Handbook

The New York Matrimonial Trial Handbook by Joel R. Brandes is available in Bookstores and online in the print edition at the Bookbaby Bookstore, Amazon Barnes & Noble, Goodreads and other online book sellers. It is also available in Kindle ebook editions and epub ebook editions for all ebook readers in our website 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 on this link for more information about the contents of the book and on this link for the complete table of contents.

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 http://www.nysdivorce.com 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.


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Thursday, August 15, 2013

Munoz v. Rivera, --- F.Supp.2d ----, 2013 WL 563419 (W.D.Tex.) [Mexico] [Grave Risk of Harm] [Petition Granted]


 In Munoz v. Rivera, --- F.Supp.2d ----, 2013 WL 563419 (W.D.Tex.) Petitioner Munoz was a citizen of the Republic of Mexico. Respondent Ramirez was a citizen of the United States. Petitioner and Respondent were the parents of A.R.R. The child was born in Chihuahua, Chihuahua, Mexico, in April, 2007. She was five years old.. Petitioner and Respondent were not married and had never been married to each

other, nor had they ever cohabited as spouses. On March 18, 2008, the parties officially added Respondent as the father of A.R.R. on the child's State of Chihuahua Civil Registry Birth Certificate. On March 19, 2008, the parties obtained a Consular Report of Birth Abroad of a Citizen of the United States from the U.S. Consulate in Ciudad Juarez, Mexico. A.R.R. was a dual citizen of the Republic of Mexico and the United States.

From birth until on or about a date between June 2011 and August 2, 2011, A.R.R. continuously lived with Petitioner in Chihuahua, Chihuahua, Mexico, with periodic trips to see her father and extended family in the United States. Before A.R.R.'s birth Petitioner moved to Chihuahua, Chihuahua, Mexico, from San Luis Potosi, Mexico, with her three children from a previous marriage: C.D.(age 15), L.G.(age 13), and M.J.(age 12). Petitioner continuously lived in Chihuahua, Chihuahua, Mexico, with all of her children since 2006. Petitioner and Respondent did not have a formal custody or visitation agreement. The parties had a verbal agreement as to visitation that Petitioner would always let Respondent take A.R.R. for visitation if Respondent promised to bring A.R.R. back. Petitioner freely allowed Respondent or Respondent's family members to take A.R.R. from Chihuahua, Chihuahua, Mexico, for visitation in the United States. Except for the last visit, at the conclusion of each visitation A.R.R. was returned to Petitioner's home in Chihuahua, Chihuahua, Mexico.

In early or mid-June of 2011, Respondent and Laura Ramirez (Respondent's sister) picked up A.R.R. from her home in Chihuahua, Chihuahua, Mexico, for a verbally-agreed period of visitation in the United States. The parties further agreed that A.R.R. would travel with Respondent or Respondent's family from Lenorah, Texas, to San Luis Potosi, Mexico, for Laura Ramirez' quinceanera scheduled on or about June 25, 2011. The parties also agreed that Petitioner and her children would travel from

Chihuahua, Chihuahua, Mexico, to San Luis Potosi, Mexico, to attend the quinceanera. On or about June 25, 2011, Petitioner, Respondent, A.R.R., and Petitioner's other children, all attended Laura Ramirez' quinceanera. Petitioner asserted that after the quinceanera, on or about July 1, 2011, she took all of her children, including A.R.R., from San Luis Potosi, Mexico, by bus back to her home in Chihuahua, Chihuahua, Mexico. Petitioner asserted that A.R.R. spent the entire month of July 2011 with her, and in her possession, in Chihuahua, Chihuahua, Mexico. , Respondent asserted that upon conclusion of the quinceanera A.R.R. went directly back to the United States from San Luis Potosi, Mexico, with Respondent's parents. Respondent asserted that A.R.R. had lived with Respondent in Lenorah, Texas, since his parents brought A.R.R. back to Lenorah, Texas, following the quinceanera. Respondent asserted that A.R.R. was with Respondent, and in Respondent's possession, for both July and August 2011. Respondent further asserted that the parties agreed that A.R.R. would be educated in the United States and begin school in September of 2011. Petitioner asserted that the parties agreed that A.R.R. would be educated in Chihuahua, Chihuahua, Mexico, and that she never gave permission for A.R.R. to begin school in the United States.

On or about August 21, 2011, Respondent spoke with Petitioner by telephone and informed Petitioner that he (Respondent) was not going to return A.R.R. to Mexico. Respondent told Petitioner he would bring A.R.R. back in December to visit. On or about August 24, 2011, Respondent enrolled A.R.R. in school in Texas. After Respondent communicated on or about August 21, 2011, that he was not returning A.R.R. to Mexico, Petitioner sought legal assistance from the Human Rights Center for Women, Inc., in Chihuahua, Chihuahua, Mexico. On August 31, 2011, Petitioner filed her Application for Return of Child with the Mexican Central Authorities. Petitioner filed suit in the Western District of Texas, Midland/Odessa Division, for Return of Child on July 19, 2012.

The Court found that the Petitioner established a prima facie case for return. The court found that the facts clearly indicated that both parents shared the intent that Chihuahua, Chihuahua, Mexico, was their child's residence prior to Respondent's taking of A.R.R. with Petitioner's consent, in early to mid-June 2011, to Lenorah, Texas, from Chihuahua, Chihuahua, Mexico. The Court determined that Petitioner never agreed to A.R.R. taking up habitual residence in the United States and never agreed to A.R.R. being enrolled in school in the United States, thus there was no shared parental intent to shift A.R.R.'s habitual residence from Mexico to the United States. See Mozes, 239 F.3d at 1076. The evidence pointed toward Respondent's retention and subsequent enrollment of A.R.R. in school in the United States as Respondent's unilateral action.

The Court determined that the State of Chihuahua, Mexico, in accordance with the Chihuahua Civil Code adheres to the legal doctrine of patria potestad. See Chih. Civ.Code, tit. 8, ch. 1, art. 388 et seq. "Pursuant to that doctrine both parents had joint custody rights. . Article 389 of the Chihuahua Civil Code details how an unemancipated minor child such as A.R.R. is under patria potestad ( parental authority) as long as a relative can exercise parental authority over the child in accordance with the law. Chih. Civ.Code, art. 389; Article 394 explains that even when a person who has patria potestad ( parental authority) over a child, but does not have possession of that child, that person still has the right to live with that child, unless the parent presents a danger to the child. Chih. Civ.Code, art. 394; Petitioner had been exercising patria potestad over A .R.R. since her birth in Chihuahua, Chihuahua, Mexico, in April 2007. See Chih. Civ.Code, art. 389. Although Petitioner had not been in physical possession of A.R.R. since on or about August 2, 2011, she still had patria potestad ( parental authority) under the Chihuahua Civil Code. See Chih. Civ.Code, art. 394. Based on the aforementioned, the Court found that Petitioner had rights of custody conveyed by patria poteststad under the laws of the State of Chihuahua, Petitioner proved by a preponderance of the evidence that Respondent retained A.R.R. in breach of Petitioner's rights of custody under the laws of the child's habitual residence-the Republic of Mexico. Petitioner's made out a a prima facie case for wrongful retention

of A.R.R. by showing that at the time of retention she was actually exercising her rights of custody or would have been exercising those rights but for the retention. Larbie v.. Larbie, 690 F.3d 295, 307 (5th Cir.2012); Convention art. 3(b). The Court pointed out that Courts apply a liberal approach when determining whether rights of custody were actually being exercised. Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 344-345 (5th Cir.2004) (citing Friedrich v. Friedrich, 78 F.3d 1060, 1065-66 (6th Cir.1996)). To show failure to exercise custody rights, the removing parent must show the other parent has abandoned the child." Sealed Appellant, 394 F.3d at 344-345. Respondent made no showing that Petitioner abandoned her child.

Respondent asserted that there was a grave risk of physical and psychological harm if A.R.R. was returned to Petitioner; specifically, asserting that return would be to an intolerable situation. Convention, art. 13(b). Respondent argued that the following provided evidence that return would expose the child to physical or psychological harm or place the child in an intolerable situation: (1) the living environment in Chihuahua, Chihuahua, Mexico; (2) Petitioner's fear of break-ins of her home evidenced by her testimony that she has bars on her doors and windows; (3) Petitioner's extreme economic hardship when compared to Respondent's relative economic affluence; (4) Petitioner's severe financial stress evidenced by her bank records suggesting that Petitioner could not provide basic needs for A.R.R. or Petitioner's three other children; (5) Petitioner's inability to attend a pretrial hearing because she could not afford the cost of a Visa to travel to the United States; (6) a request for financial assistance made on the day before trial by the caretaker watching over Petitioner's other three children in Chihuahua, Chihuahua, Mexico, while Petitioner was in the United States attending these legal proceedings, seeking funds from Carmen Ramirez to purchase food for Petitioner's children; (7) alleged sexual abuse of Petitioner's other child, M.J.(age 12), by Petitioner's boyfriend Maximino Munoz, who lived with Petitioner and her children in their home in Chihuahua, Chihuahua, Mexico.

The court found that poverty and economic hardship are not relevant factors to use when determining whether a court should use its discretionary power in not returning a child to his or her country of habitual residence. A review of deliberations on the Convention revealed that "intolerable situation" was not intended to encompass return to a home where money is in short supply, or where educational or other opportunities are more limited than in the requested State. An example of an "intolerable situation" is one in which a custodial parent sexually abuses the child. If the other parent removes or retains the child to safeguard it against further victimization, and the abusive parent then petitions for the child's return under the Convention, the court may deny the petition. Such action would protect the child from being returned to an "intolerable situation" and subjected to a grave risk of psychological harm. Friedrich v. Friedrich, 78 F.3d 1060, 1068-69 (6th Cir.1996).

Respondent argued that return of A.R.R. to the child's country of habitual residence, the Republic of Mexico, would pose a grave risk of harm to A.R.R. as return would place A.R.R. in an intolerable situation because of an allegation that sexual abuse was committed against Petitioner's child, M.J. (age 12), by Petitioner's boyfriend, Maximino Munoz, who lived with Petitioner and her children in their home in Chihuahua, Chihuahua, Mexico. The facts revealed that Petitioner's daughter, M.J.(age 12), spoke with Respondent and alleged that Petitioner's boyfriend, Maximino Munoz, touched her in an inappropriate sexual manner. Respondent brought this allegation to the attention of Petitioner and then M.J.(age 12) told Petitioner about the alleged inappropriate touching. Maximino Munoz lived with Petitioner and her four children for approximately two years. At trial, Petitioner testified that M.J. (age 12) had been previously molested and raped by Petitioner's brother. Petitioner pressed charges against her brother, took M.J. (age 12) to a psychologist, therapist, a caseworker at school, and attended group therapy. The brother fled Chihuahua, Chihuahua, Mexico, and had never been prosecuted. After hearing the allegations against Maximino Munoz and upon the urging of Respondent, Petitioner made Maximino Munoz move out in late August 2011. Additionally, Petitioner entered M.J.(age 12) and the entire family into group therapy for approximately three to four months. Petitioner testified that Maximino Munoz was cleared of the allegations during therapy and that she allowed Maximino Munoz to move back into her home in December 2011. Both parties agreed that there were no allegations that Maximino Munoz ever inappropriately touched A.R.R., the subject of the Petition for Return. Respondent, did not present any actual evidence that Maximino Munoz has a history of sexually molesting children or that he actually inappropriately touched M.J.(age 12). Respondent testified that he had knowledge that Maximino Munoz was convicted of criminal charges for sexual assault of a minor, but he produced no evidence of any such conviction that might corroborate his testimony. Petitioner testified that she knew Maximino Munoz served time in prison for a marijuana conviction and was released in 2002. Her testimony indicated that she had information that there were previous legal proceedings against him involving molestation, but she made clear that she had no knowledge of a conviction for any such crime. Based on the evidence presented, Respondent did not meet the burden of proof to prove that A.R.R. would face a "grave risk" of harm by being placed in an intolerable situation upon return to the Republic of Mexico.

The Court found that Respondent failed to establish by a preponderance of the evidence that Petitioner consented to removal or subsequently consented or later acquiesced to A.R.R.'s retention and failed to establish that the "well settled into new environment" affirmative defense was available to Respondent. Petitioner's suit for Return of Child was filed on July 19, 2012, within one-year of A .R.R.'s wrongful retention on or about August 21, 2011.

Paulus ex rel. P.F.V. v. Cordero, 2013 WL 432769 (M.D.Pa.) [Dominican Republic] [Attorney Fees and Costs] [Pro Bono Counsel]



In Paulus ex rel. P.F.V. v. Cordero, 2013 WL 432769 (M.D.Pa.) Petitioner Alberto Eugenio Font Paulus's Motion for an Award of Attorneys' Fees and Costs was before the court. Respondent, Ana Virginia Vittini Cordero, argued that an award of attorneys' fees for Mr. Font Paulus's counsel would be clearly inappropriate because he was represented on a pro bono basis and a fee award would prevent her from providing for herself or her two minor children. Because she had not shown that it would be clearly inappropriate for the Court to order her to pay the necessary expenses incurred by or on behalf of Mr. Font Paulus in this matter, his motion was granted.

Mr. Font Paulus sought reimbursement of $7,251.57 in costs, $1,704 .50 of which he incurred and $5,547.07 of which was incurred by his New York counsel, Vanessa Nadal, Esq. and Tracy Schaffer, Esq. of Jones Day. He stated that he spent $1,704.50 on travel and lodging costs, including: (1) round trip airfare for his flights to and from the United States for the June 2012 hearing; (2) airfare for P.F.V.'s return flight to the Dominican Republic; (3) round trip bus fare to and from Wilkes-Barre, Pennsylvania for himself, his sister, and her husband (who served as a guide and translator) for the hearing; (4) round trip bus fare to and from Pennsylvania for himself, his sister, and her husband to pick up P.F.V.; (4) return bus fare to New York for P.F.V.; and (5) his lodging in Wilkes-Barre for the hearing.

Attorneys Nadal and Schaffer sought reimbursement of $5,547.07 for various necessary expenses incurred on Mr. Font Paulus's behalf in this matter, including: (1) lodging in Wilkes-Barre for the hearing; (2) certified English translations of the Dominican court orders and laws appended to the Petition and Spanish translations of the Petition and Memorandum of Law for Mr. Font Paulus to verify; (3) court filing fees; (4) a translator at the hearing; and (5) the courier service that obtained P.F.V.'s passport from the United States Marshals on Mr.Font Paulus's behalf and verified that Ms. Vittini Cordero had not fled with P.F.V. following her failure to answer Mr. Font Paulus's phone calls for three days following the Court's June 29, 2012 Order.

Ms. Vittini Cordero argued that Mr. Font Paulus's round trip flight from the Dominican Republic to the United States was unnecessary because he could have testified at the June 2012 hearing by telephone or video conference. However, the court found that federal courts have awarded successful ICARA petitioners airfare incurred in traveling to and from the United States to appear in court. See, e.g., Freier v. Freier, 985 F.Supp. 710, 714 (E.D.Mich.1997) (awarding $2,422.00 for Petitioner's round trip and minor child's one-way airfare); Guaragno v. Guaragno, No. 09-CV-187, 2010 WL 5564628, at * 5 (N.D.Tex. Oct. 19, 2010), aff'd, 2011 WL 108946 (N.D.Tex. Jan.18, 2011). Therefore, as Ms. Vittini Cordero had not shown that it would be clearly inappropriate to require her to pay for Mr. Font Paulus's airfare to and from the United States for the hearing, she was be ordered to reimburse him $555.80 for his reasonable and necessary air travel costs. The Court found that the $290.00 in airfare for P.F.V.'s return flight to the Dominican Republic, which Ms. Vittini Cordero had not challenged, was a necessary expense under ICARA.

Ms. Vittini Cordero maintained that the $1,944.00 for interpreting services and $2,111.51 for translation services incurred by Attorneys Nadal and Schaffer were not recoverable because neither the translators nor the interpreter were court-appointed. The court found that she failed to establish that an order requiring her to pay for interpreting and translation services incurred on behalf of Mr. Font Paulus in this matter would be clearly inappropriate. Many federal courts have awarded translation and translator costs to successful ICARA petitioners. See, e.g., Guaragno v. Guaragano, No. 09-CV-187, 2011 WL 108946, at *4 (N.D.Tex. Jan. 18, 2011) (awarding "reasonably and necessarily incurred and adequately documented" translator trial fees and costs of $3,788.75 and foreign document translation fees of $8,702.47); Blanc v. Morgan, 721 F.Supp.2d 749, 768 (W.D.Tenn.2010) (awarding "translation services ... and other incidental expenses contemplated by § 11607(b)(3)"); Neves v. Neves, 637 F.Supp.2d 322, 343-44 (W.D.N.C.2009) (awarding translation costs of $191.25); Antunez Fernandes v. Connors-Fernandes, 259 F.Supp.2d 800, 816-17 (N.D.Iowa 2003) (awarding translation costs of $717.75, including a translator for trial); Friedrich v. Thompson, No. 99-CV-772, 1999 WL 33954819, at *8 (M.D.N.C. Nov. 26, 1999) (awarding expenses for translation of documents from German to English). Ms. Vittini Cordero was ordered to pay for interpreting services and translation services.



Ms. Vittini Cordero contende that Mr. Font Paulus should not be awarded court costs on equitable grounds because he filed this action with unclean hands. The Court held that equitable defense unclean hands defense was inapplicable here. The United States Court of Appeals for the Third Circuit has held that applying "the unclean hands doctrine would undermine the Hague Convention's goal of protecting the well-being of the child, of restoring the status quo before the child's abduction, and of ensuring that rights of custody... of one Contracting State are effectively respected in the other Contracting States." Karpenko v. Leendertz, 619 F.3d 259, 265 (3d Cir.2010). Furthermore, court costs are explicitly mentioned in §11607(b)(3) as "necessary expenses incurred by or on behalf of the petitioner."

Ms. Vittini Cordero challenged the $500.00 in post-hearing investigatory and courier costs incurred by Attorneys Nadal and Schaffer. The court found these services were reasonable and necessary expenses incurred on behalf of Mr. Font Paulus and related to the return of P.F.V.,

The court determined the issue of reasonable attorneys' fees by the lodestar calculation, which entails multiplying the number of hours reasonably expended by each attorney by a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The party seeking fees has the initial burden of presenting evidence that the claimed rates and amounts of time are reasonable. See Pennslyvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986). Once the fee applicant has made this initial showing, "the resulting product is presumed to be the reasonable fee to which counsel is entitled." The opposing party then has the burden of making specific objections to the proposed fee by affidavit or brief. In considering the opposing party's objections, the district court has significant discretion to adjust the lodestar downwards. The Court concluded that Attorney Macdonald-Matthes's figure was $16,380.00 (54.6 hours x $300.00 per hour). Attorney Nadal's figure was $8,910.00 (54 hours x $165.00 per hour). Attorney Schaffer's figure was $11,700.00 (45 hours x $260.00 per hour). When added together, these attorneys' fees, which were "necessary expenses incurred ... on behalf of the petitioner," totaled $36,990.00.



Ms. Vittini Cordero contended that "the integrity of awarding ... fees to counsel who agree to take a case as a pro bono matter is questionable." However, she  failed to establish that ordering her to pay attorneys' fees would be clearly inappropriate, as many federal courts have found counsel representing a successful ICARA petitioner on a pro bono basis are entitled to recover attorneys' fees. See Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir.2010) ("The fact that [successful ICARA petitioner's] lawyers provided their services pro bono does not make a fee award inappropriate."); see also Hamidas v. Hamidas, 720 F.Supp.2d 183, 209 (E.D.N.Y.2010) ("[T]he fact that the petitioner in this case was represented by pro bono counsel does not provide a basis for disregarding the Convention's fee provision."); Sullivan v. Sullivan, No. 09-545, 2010 WL 1651994, at *1 (D.Idaho Apr.20, 2010) ("[E]ven where a [successful ICARA] case is taken on a pro bono basis, the Petitioner is still entitled to recovery of reasonable attorney fees.") Accordingly, the Court rejected Ms. Vittini Cordero's argument..

Ms. Vittini Cordero also claimed that an award of $36,900.00 in attorneys' fees was clearly inappropriate because it would render her, a minimum wage earner and single mother of two children, unable to provide for herself or her children. The court held that while it may reduce a fee award in a Hague Convention case if it prevents the respondent-parent with straitened financial condition from caring for his child, a reduction on the account of straitened financial condition, will not be applied to litigation costs and out-of-pocket expenses...." Saldivar, 2012 WL 4497507, at *16 (citing Rydder, 49 F.3d at 374; Whallon, 356 F.3d at 139). Although Ms. Vittini Cordero claimed that an order requiring her to pay $36,990.00 in attorneys' fees would be "clearly inappropriate" due the financial strain it would place her and her minor children under, she failed to provide any evidentiary support for this position. The record was devoid of any evidence or documentation showing Ms. Vittini Cordero's employment status, income, or assets. Nor did it contain any evidence that she had two minor children and was their sole provider. Ms. Cordero was be ordered to pay $16,380.00 in fees to Attorney Macdonald-Matthes, $8,910.00 in fees to Attorney Nadal, and $11,700.00 in fees to Attorney Schaffer.

Gallardo v. Orozco, --- F.Supp.2d ----, 2013 WL 3803905 (W.D.Tex) {Mexico] [Habitual Residence] [Patria Potestad] [Petition Granted]

In Gallardo v. Orozco, --- F.Supp.2d ----, 2013 WL 3803905 (W.D.Tex) Petitioner Gallardo was a citizen of the Republic of Mexico and Respondent Orozco was a citizen of the United States. Petitioner and Respondent were the parents of G.G. who was born in Denton, Texas, in May of 2005. G.G. was currently 8 years old. Petitioner and Respondent were married in Las Vegas, New Mexico, on December 18, 2006.

 In 2007, Petitioner and Respondent relocated with G.G. from Los Alamos, New Mexico, to Puerto Penasco, Sonora, Mexico. Petitioner and Respondent had a shared intent to move G.G. from the United States to Puerto Penasco, Sonora, Mexico. Since 2007 when the entire family relocated to Puerto Penasco, Sonora, Mexico, from Los Alamos, New Mexico, until on or about July 26, 2012, G.G. continuously lived with Petitioner in Puerto Penasco, Sonora, Mexico.. Respondent lived with Petitioner and G.G. in Puerto Penasco, Sonora, Mexico, for approximately two years, until he moved to Midland, Texas. In 2008 Petitioner and Respondent attempted to reunite and relocate to the United States. Petitioner tried to return to the United States illegally and was arrested on December 29, 2008, while attempting to cross the Rio Grande near the port of entry at El Paso, Texas. Respondent was in the United States awaiting Petitioner's crossing. Petitioner served approximately twenty-one (21) days for her illegal re-entry after prior removal stemming from this arrest. Upon release from custody in January 2009, Petitioner was deported to Ciudad Juarez, Chihuahua, Mexico, where Respondent picked her up and returned her to Puerto Penasco, Sonora, Mexico. After Respondent drove Petitioner to Puerto Penasco, Sonora, Mexico, Respondent lived with Petitioner and G.G. for approximately seven months before
 moving permanently to Midland, Texas. G.G. remained in Puerto Penasco, Sonora, Mexico, with Petitioner. Petitioner and Respondent had a shared intent that G.G. remain with Petitioner in Puerto Penasco, Sonora, Mexico. Thereafter, Respondent's mother, who resided in Puerto Penasco, Sonora, Mexico, would bring G.G. to Midland, Texas, to visit Respondent during the summer while G.G. was on vacation from school. Petitioner consented to these trips. Each visit would last approximately one-to-two months. At the end of each scheduled visit G.G. would be returned to Puerto Penasco, Sonora, Mexico.. G.G. has attended school in Puerto Penasco, Sonora, Mexico, since the 2009-2010 school year. G.G. was enrolled in school in Puerto Penasco, Sonora, Mexico, for the 2012-2013 school year.

 Petitioner asserted that on or about July 25, 2012, Respondent came to Puerto Penasco, Sonora, Mexico, to have a few days of visitation with G.G. at his parents' home in Puerto Penasco. Petitioner asserted that she agreed to allow Respondent to have overnight visitation with G.G. at his parents' home and that Respondent was scheduled to return G.G. after a few days. Petitioner further asserted that instead of returning G.G. to Petitioner as scheduled, Respondent removed G.G. to the United States without her permission. In contrast, Respondent asserted that prior to arriving at Puerto Penasco, Sonora, Mexico, in late July 2012, Respondent arranged with Petitioner to take G.G. to Midland, Texas, for approximately a month to 45 days. It was Respondent's position that Petitioner agreed and consented to the visitation. Respondent asserts that before he took G.G. to Midland, Texas, the parties discussed the possibility of G.G. staying in the United States to attend school. Respondent asserts that Petitioner agreed to think about it, but did not agree at that time to allow G.G. to stay and attend school in Midland, Texas. Respondent asserted that Petitioner gave Respondent G.G.'s birth certificate. Respondent asserted that he agreed to return G.G. if Petitioner wanted G.G. returned and not enrolled in school in Midland, Texas. Respondent further asserted that after G.G. was in Midland, Texas, the parties continued to have discussions about enrolling G.G. in school. On July 31, 2012, Petitioner sent and Respondent received a text message informing Respondent that G.G.'s school in Puerto Penasco, Sonora, Mexico, started on August 20, 2012, and that G.G. needed to be back by that day. On August 22, 2012, Petitioner sent and Respondent received a text message demanding that Respondent return G.G. to her in Puerto Penasco, Sonora, Mexico. After Respondent received the text message from Petitioner demanding G.G.'s return, Respondent told Petitioner that he was going to enroll G.G. in school in Midland, Texas. Petitioner objected to Respondent enrolling G.G. in school in Midland, Texas. G.G. started school in Midland, Texas, on August 27, 2012.

 The court observed the Fifth Circuit adopted its framework for making country of habitual residence determinations. Larbie v. Larbie, 690 F.3d 295, 310 (5th Cir.2012). The inquiry balances the interests of the child with the intentions of the parents. Larbie, 690 F.3d at 310. A court's "inquiry into a child's habitual residence is not formulaic; rather it is a fact-intensive determination that necessarily varies with the circumstances of each case." When determining a child's country of habitual residence, analysis focuses on the "parents' shared intent or settled purpose regarding their child's residence." The inquiry balances the interest of the child with the parents intentions, but gives greater weight to the parents' subjective intentions when the child is relatively young and incapable of deciding residency.

 The court found that the facts indicated that both parents shared the intent that Puerto Penasco, Sonora, Mexico, was their child's residence prior to Respondent's taking of G.G. to Midland, Texas, with or without Petitioner's consent, in late July of 2012. Petitioner established that in 2007, Respondent and Petitioner, together, moved their child G.G. to Puerto Penasco, Sonora, Mexico, from Los Alamos, New Mexico. After relocating to Puerto Penasco, Sonora, Mexico, Respondent lived in Mexico with Petitioner and G.G. for approximately two years. The parents' mutual decision to move their child to Mexico from the United States and relocate to Puerto Penasco, Sonora, Mexico, provided strong evidence of shared parental intent in 2007 to make the Republic of Mexico their child's country of habitual residence. Additionally, Respondent moved permanently to Midland, Texas, in 2009, leaving G.G. with Petitioner in Puerto Penasco, Sonora, Mexico. Even though no formal custody agreements existed, the parties arranged visitation. Respondent's mother who resided in Puerto Penasco, Sonora, Mexico, would bring G.G. to Midland, Texas, to visit Respondent during the summer while G.G. was on vacation from school. Petitioner allowed G.G. to go on these trips to visit Respondent and each visit would last approximately one to two months. At the end of each scheduled visit G.G. would be returned to Puerto Penasco, Sonora, Mexico. The parents' decision for G.G. to remain in Puerto Penasco, Sonora, Mexico, with summer visitation in the United States, also provided strong evidence of shared parental intent that the Republic Mexico was G.G.'s country of habitual residence.

 The question remained whether G.G.'s habitual residence was abandoned, thus changing from Puerto Penasco, Sonora, Mexico, to the United States. The threshold test for determining whether the parties intended for G.G. to " 'abandon the [habitual residence] left behind' " was whether both parties shared that intention. Larbie, 690 F.3d at 310-11. "[I]n the absence of settled parental intent, courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned." Mozes, 239 F.3d at 1079. Without shared parental intent the " 'prior habitual residence should be deemed supplanted only where the objective facts point unequivocally to this conclusion.' " Larbie, 690 F.3d at 311. In cases such as this in which the parties no longer agree where the child's habitual residence is fixed and "the representations of the parties cannot be accepted at face value ... courts must determine from all available evidence whether the parent petitioning for return of a child has already agreed to the child's taking up habitual residence where it is." Mozes, 239 F.3d at 1076.

 After an exhaustive review of all available evidence the Court determined that Petitioner never agreed to G.G. taking up habitual residence in the United States and never consented to G.G. being enrolled in school in the United States. There was, therefore, no shared parental intent to shift G.G.'s habitual residence from Mexico to the United States. The evidence pointed toward Respondent's retention and subsequent enrollment of G.G. in school in the United States as Respondent's unilateral action.

 Petitioner satisfied the threshold requirement for cases arising under the Convention by establishing that the child's country of habitual residence prior to removal or retention was the Republic of Mexico. Petitioner proved by a preponderance of the evidence that Respondent removed or retained G.G. in the United States, "somewhere other than the child's habitual residence." The State of Sonora, Mexico, in accordance with the Sonora Civil Code adheres to the legal doctrine of patria potestad. See Son. Civ.Code, tit. 8, ch. 1, art. 578 et seq.; "Pursuant to that doctrine both parents have joint custody rights." The Court found that Petitioner had rights of custody conveyed by patria potestad under the laws of the State of Sonora, Mexico. Petitioner proven by a preponderance of the evidence that Respondent removed or retained G.G. in breach of Petitioner's rights of
 custody under the laws of the child's habitual residence-the Republic of Mexico and that such at the time of removal or retention she was actually exercising her rights of custody or would have been exercising those rights but for the removal or retention. Larbie v. Larbie, 690 F.3d 295, 307 (5th Cir.2012); Convention art. 3(b).).

 Respondent Orozco pleaded the grave risk affirmative defense. Respondent elicited testimony from Petitioner admitting that she worked late hours at a casino. In addition, Respondent questioned whether Petitioner works, or had worked in the past, as a prostitute. Petitioner denied the allegations of prostitution and no other evidence of such activities was placed before the Court. Respondent's argument that return of G.G. to the child's country of habitual residence, the Republic of Mexico, would pose a grave risk of harm to G.G. because of Petitioner's work at a casino and unsupported allegations of prostitution fell extremely short of reaching the high threshold necessary to establish the grave risk of harm affirmative defense.

 Respondent pleaded, and argued at trial, that Petitioner consented or subsequently acquiesced to Respondent removing G.G. from Puerto Penasco, Sonora, Mexico, to Midland, Texas. When examining a consent defense, a court considers what the petitioner actually agreed to when allowing the child to travel outside of its country of residence and the scope of the petitioner's consent. Larbie, 690 F.3d at 309. In contrast, the "acquiescence [defense] addresses whether the petitioner subsequently agreed to or accepted the removal or retention." When examining an acquiescence defense, "'each of the words and actions of a parent during the separation are not to be scrutinized for a possible waiver of custody rights.' " Simcox v. Simcox, 511 F.3d 594, 603 (6th Cir.2007). The defense of acquiescence has been held to require "an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude
 of acquiescence over a significant period of time." Friedrich, 78 F.3d at 1070. Respondent's affirmative defense of consent failed on his own testimony. Respondent's argument that Petitioner acquiesced to the removal or retention of G.G. in the United States also fell short. There was no evidence before the Court that Petitioner subsequently acquiesced to G.G.'s removal or retention in the United States.

 Respondent asserted that G.G. objected to being returned, and should not be returned to Petitioner in Puerto Penasco, Sonora, Mexico. The court undersigned met in camera with G.G., who had recently turned 8 years old. The Fifth Circuit has previously held that a 13 year-old child did not meet the degree of maturity required to object and determine where he/she wanted to live. In the Courts opinion GG was not of sufficient age and maturity for the Court to take into account her objection to being returned to Mexico.

 The Court granted the petition. 

Mlynarski v. Pawezka, --- F.Supp.2d ----, 2013 WL 1150310 (D. Mass, 2013) [Poland] [Grave Risk of Harm] [Petition Granted]


 In Mlynarski v. Pawezka, --- F.Supp.2d ----, 2013 WL 1150310 (D. Mass, 2013) Petitioner filed a motion for an order to return his minor son to Poland after Respondent removed him and brought him to Massachusetts. Petitioner and Respondent were the biological parents of A.M., who was born on April 2, 2007. Although Petitioner and Respondent were never married, they resided in the same home in Poland, in the later stages of Respondent's pregnancy and until August 2, 2007, when Respondent left with A.M. and moved in with her aunt in the same town. Respondent testified that before she "escaped" from the residence (Petitioner's parents' house), Petitioner held her captive in the basement where she was only able to eat the eggs and jam stored there. She also testified that during these several months Petitioner verbally and physically abused her and sexually abused the infant A.M.


Within months of leaving the residence, Respondent sought child support through the Polish court and began receiving approximately $100 per month. In or around February of 2008, however, a custody dispute arose. Petitioner filed an action to regulate his contact with A.M., while Respondent, represented by counsel, countersued to terminate Petitioners parental rights. In August of 2008, the Polish court received a psychological report from the Diagnostic and Consultation Family Center, which had conducted evaluations of Petitioner and Respondent at the court's request. he report indicated that, while Respondent was socially and emotionally immature, suffered from extreme helplessness, and made decisions regarding A.M. based on her emotions rather than his developmental needs, she fulfilled her duties as a mother and had a great bond with As to Petitioner, the report stated that he could control his behavior but that he did not perceive, understand, or take responsibility for his own mistakes; the report also indicated that Petitioner had a high self-evaluation. The report concluded that, because of Respondents "low level of social and emotional maturity" and her resulting inability to "fully understand the minors needs," Petitioners contact with A.M. was "indispensable." However, considering Petitioners own "low level of social maturity" and "susceptibility to taking psychoactive substances," the report recommended that Petitioners visits with A.M. be facilitated in a controlled environment accompanied by the presence of a supervising court monitor. On February 19, 2009, after Respondent withdrew her request to terminate Petitioner's parental rights, the Polish court granted Petitioner supervised visitation with A.M. at specified dates and times. Following that order, the parties continued their ongoing legal battle over their respective rights. Petitioner continued to seek the enforcement of the order regulating his contact with A.M., while Respondent continued her efforts to limit Petitioner's parental authority.

In July of 2009, Respondent, after claiming that her intention was to bring A.M. to the United States for a short holiday visit, received permission from the Polish court to obtain a passport for him. In March of 2010, after learning that Respondent applied for a permanent immigrant visa for A.M. as a child of a United States citizen—Respondent had become a United States citizen when, as a thirteen-year-old and living here, her father became a citizen—Petitioner sought to reverse the court's decision. On March 15, 2010, the Polish court—concerned that there was a "high probability" that A.M. would stay in the United States permanently without Petitioner's consent—issued an order prohibiting Respondent from taking A.M. outside Poland until at least the completion of the court proceedings. Despite that order, Respondent left with A.M. and brought him to the United States on April 4, 2010. On March 23, 2011, Petitioner initiated the present action seeking A.M.'s return to Poland.

Respondent, appealed the Polish court order prohibiting her from leaving Poland and traveling with A.M. to the United States. On June 16, 2011, the Court of Appeals in Poland denied Respondents appeal, citing Petitioners interest in maintaining ties with his son; the court found that both parents "are entitled to parental authority over [A.M.] and each of them is obliged and also entitled to exercising the same."

There was no question but that (1) A.M. was a habitual resident of Poland at the time of his removal, (2) Petitioner had "rights of custody" at the time, and (3) was actually exercising those rights.
Respondent claimed that there would be a grave risk of physical and psychological harm to A.M. were he to be returned to Poland. The court observed that a "grave risk" means a "more than serious" risk; Respondent claimed that Petitioner "sexualized" A.M. from the time of his birth in April of 2007 until she moved out of Petitioners home in August of that year. Respondent submitted photographs Petitioner allegedly took of A.M.'s genitals when he was only several months old as well as a brief video (taken by Respondent) showing Petitioner, wearing one of Respondents dresses, gently swinging A.M. in his arms. Respondent also testified that Petitioner would suck on A.M.'s penis when he cried in order to calm him, claiming this to be a Native American practice. She testified as well that Petitioner, when they resided together, often was under the influence of drugs when he cared for A.M. and, as a result, posed a risk to his safety. The court pointed out that the First Circuit has held that sexual abuse by a parent is an example of an Article 13(b) defense justifying non-return. Danaipour, 286 F.3d at 16. Drug use, under certain circumstances, also may qualify as grave-risk conduct. The evidence proffered by Respondent with regard to Petitioner's drug use includes her own testimony and the psychological report provided to the Polish court. The report indicated that Petitioner had a "susceptibility to taking psychoactive substances," smoked marijuana occasionally, but had ceased doing so in August of 2007 when asked by Respondent. The court credited that evidence accordingly. Respondent's allegations of sexual abuse, on the other hand, were far less persuasive. There was no mention of such abuse in the psychological report issued to the Polish court. Granted, Respondent testified that she was reluctant to bring this to the attention of the psychologist, but nonetheless the fact remains that no such information is contained in the report. Second, certain of Petitioner's photographs of A.M. while an infant, although questionable, do not amount, in the court's opinion, to sexual "abuse." Third, the allegations of Petitioner's engaging in what he described as a "Native American" practice, if practice it be, are disturbing but nonetheless vague and uncorroborated; had Respondent been as concerned about this at the time as she is presently, it was curious that she did not insist on sharing that information with the investigating psychologist. Most importantly, Respondent did not testify to or set forth any probative evidence to support her contention that, were A.M. to return to Poland, he would "certainly be at risk for more of the same type of abuse."

Respondent argued the court should consider the "well-settled" doctrine in the context of her grave risk argument. In support, Respondent cited Blondin v. Dubois, 238 F.3d 153, 164 (2d Cir.2001), which held that a court may consider evidence that the child is "so deeply rooted in the United States" that there would be a grave risk of psychological harm if the child were to be returned to the home country. The First Circuit, however, in a ruling which is binding on the court, had chosen to "disregard the arguments that grave risk of harm may be established by the mere fact that removal would unsettle the children who have now settled in the United States." Walsh, 221 F.3d at 222 n. 14. "That," the First Circuit stated, "is an inevitable consequence of removal."


Respondent's one remaining justification to remain in the United States was her concern that the Polish court system is ill-prepared to protect A.M. In support, Respondent cited a report prepared by the United States Department of State that discusses Poland's problems with domestic violence against women and low conviction rates in cases involving incidents of child abuse. This was evidence of the weakest sort. The court was not convinced that the report sufficiently demonstrated that the Polish court system was incapable of enforcing its visitation orders or of protecting A.M. from abuse during the pendency of the parties' dispute.

Respondent asserted that Petitioner "acquiesced" to A.M.'s living in the United States by his complete lack of communication or even an attempt to communicate with [Respondent], the child, or any member of [Respondents] extended family here in the United States. Respondent claimed that even though Petitioner had her relatives contact information in the United States and her own email addresses, he made no effort to contact them. Respondent's argument was not persuasive. Even if her assertions were true, a lack of communication, by itself, is not sufficient to establish that it was Petitioners subjective intent to acquiesce to A.M.'s living in the United States. Even if credited, Petitioners lack of communication was at best an ambiguous indication of his intention to allow A.M. to permanently reside in the United States.

Hirst v. Tiberghien, 2013 WL 1867343 (D.S.C.) United Kingdom] [Age & Maturity] [Guardian] [Visitation] [Petition Granted]


 In Hirst v. Tiberghien, 2013 WL 1867343 (D.S.C.) Petitioner Amor Paulina Hirst filed a Petition for Return the parties' two minor children to the United Kingdom. The court sua sponte issued an Order Appointing a Guardian Ad Litem to conduct an independent, balanced and impartial investigation for the court into the facts relevant to the Return petition and the defenses raised by Respondent. The lay Guardian Ad Litem conducted in-person interviews with the children individually, Respondent and his wife, as well as Skype interviews with Petitioner and her husband. The GAL also contacted friends of the parties and several of the children's teachers in Manchester, England. Upon the completion of her investigation, the GAL issued a report containing a summary of her investigation, which essentially provided the court with a timeline of the relevant events and previewed the arguments that the parties eventually made at trial. The GAL acknowledged that she could provide no expert opinion as to the maturity of the children, but asserted that the children's desire to remain with their father was strong. The GAL provided a copy of the report to the court and the parties on April 22, 2013. The court entered the report into evidence at trial as its own exhibit. The court also interviewed the children on the record in camera outside the presence of the parties and their counsel.


Petitioner and Respondent were married on May 17, 1996, in South Africa. They had two male children-M.S.T., born in 2002, and A.D.T., born in 2003-both born in Johannesburg, South Africa. At the time of the trial, M.S.T. was ten (10) years old and A.D.T. was nine (9) years old. The children were citizens of South Africa by virtue of their birth in South Africa and held South African passports. The children also held Belgian passports by virtue of their father's Belgian citizenship. Their Belgian passports afforded the children European Union citizenship, which thereby allowed them to live in the United Kingdom with no additional visa or immigration requirements.

The parties and the children lived together as a family in South Africa until the parties separated in May 2007. The parties were divorced on July 25, 2008. At the time of the divorce, the parties entered into a Parenting Plan and Settlement Agreement which was adopted by a South African High Court. The South African Order resolved all issues of custody of M.S.T. and A.D.T., giving the parties joint parental responsibility for the children. It further provided that the children should reside with their mother and should have extensive contact with their father. Following the separation, Respondent left Johannesburg and took a job in Ballito, South Africa, roughly 380 miles from Johannesburg. Several months following the divorce, the parties mutually agreed that the children would live with their father in Ballito. The children lived with their father from on or around September 2008 to on or around February 2011. When Respondent decided to relocate to Greer, South Carolina, in or around February of 2011, he and Petitioner agreed that she would resume custody of the children until Respondent was established and could arrange for the children to join him in the United States. These plans changed on or around June 2011 due to Respondent's inability to raise the funds necessary to arrange for the children's visas and their travel to the United States. Petitioner retained physical custody of the children since March 2011.

On or around October 15, 2011, Petitioner married Jamie Hirst , a citizen of the United Kingdom. On November 5, 2011, the children relocated from South Africa to Manchester, England in the United Kingdom and moved into Jamie's two-bedroom flat. Respondent arranged for the children to receive their Belgian passports, which enabled the children to enter and live in the United Kingdom. Respondent also provided Petitioner with his written consent for the children to travel from South Africa to the United Kingdom. Upon arrival, Petitioner enrolled the children in Norden Community Primary School. The children attended the Norden School since their arrival in November 2011 and up until December 2012 when they left for their Christmas vacation with Respondent in the United States. Both Petitioner and the children registered for medical care through the United Kingdom's National Health Service. On December 23, 2012, the children travelled from the United Kingdom to the United States to visit Respondent at his new home in Greer, South Carolina. This was the children's first visit to the United States. The parties and the children all agreed that the trip was intended to be a three-week visit, not a permanent relocation. The parties agreed that the children would return on January 7, 2013, which was the first day school resumed after the Christmas holiday. On January 2, 2013, Respondent informed Petitioner by Skype that he would not be returning the children to the United Kingdom as previously agreed and would instead have the children live permanently with him in Greer, South Carolina.



In or around March 2013, Petitioner filed a Verified Petition for Return with the court. Petitioner and Jamie came to the United States for the Show Cause hearing on March 29, 2013. At the end of the hearing, Petitioner requested visitation with the children while in the United States which the court granted. The children initially refused to leave the courthouse with Petitioner and Jamie. The Court interviewed A.D.T. and M.S.T. separately in camera in the presence of the court reporter, a law clerk, and a courtroom deputy.

Respondent conceded that Plaintiff met her prima facie case for a wrongful return. As to habitual residence, Respondent did not establish that there was a shared intent by both parents for the children to abandon the United Kingdom and move to the United States in December 2012. Notwithstanding evidence of a prior shared intent in 2011 for the children to come live with Respondent in the United States, all of the parties understood the December 2012 trip to be a temporary visit with a definitive return date. Additionally, the court found that the children's fourmonth stay in the United States was not sufficient to establish that they were acclimatized to their new environment such that returning them at this point "would now be tantamount to taking the child out of the family and social environment in which its life has developed. Therefore, the court found that the children were habitually resident in the United Kingdom. Respondent further stipulated at trial that Petitioner had rights of custody of the children under the Hague Convention and under the relevant law of the United Kingdom, and that Petitioner was exercising that custody at the time of the children's wrongful retention. Petitioner was also exercising her custody rights at the time Respondent retained the children in the United States. Petitioner met her burden of proving by a preponderance of evidence that Respondent's retention of the children in the United States was wrongful within the meaning of the Hague Convention.

The district court found no proof that the children had been exposed to any sexual abuse. Respondent's claim that Petitioner repeatedly forced the children to watch video footage in an effort to frighten them or psychologically torture them was not credible. Respondent's allegations that Petitioner regularly told lies about the father clearly would not rise to the level of psychological torture such that the grave risk exception would be applicable. Many of the Respondent and the children's claims were, at most, allegations of poor parenting, including Petitioner's alleged drinking and smoking, her alleged use of foul language toward the children, and her alleged tendency to sleep late, which left the children to prepare their breakfast and ready themselves for school on their own. Other allegations were those that could be made by many ten and eleven year old boys in similar situations, such as the allegations that Petitioner's imposed punishment for small offenses was excessive, that they had no privacy, that their parents fight too much, and that one parent speaks ill of an ex-spouse. Respondent's complaints that Petitioner lets the children walk to school on a busy road and let them go out at night by themselves did not establish that the children were or will be in actual danger in Manchester. Finally, even if these allegations of mistreatment, either individually or collectively, caused the court to be as concerned as Respondent apparently was, the alleged mistreatment would still not meet the standard as outlined in the Fourth's Circuit decision in Miller, since a court in the United Kingdom can be trusted to adequately respond to these issues and provide protection for the children. See Miller, 240 F.3d at 402.

Respondent did not prove by a preponderance of the evidence that the children were of an age and maturity such that their wishes should be taken into account in determining the issue of return. Both M.S.T. and A.D.T. were polite, smart boys. Notwithstanding the impact on the children of the instant custody matter, neither boy seemed to be especially sophisticated or to have reached a maturity beyond their years. The burden of demonstrating maturity lies with the party asserting the defense. Respondent provided no expert evidence or expert testimony regarding the children's maturity level. Even if the court were to find the children sufficiently mature, other factors would weigh against declining to issue a return. First, the children expressed a preference to remain in Greenville rather than a strong objection to returning to Manchester. The children's objections to Manchester mostly involved an aversion

to the rainy climate and a lack of places to play. However, both children mentioned that they enjoyed playing sports at their school and the overwhelming evidence suggested that the children were involved in at least three sports teams or clubs. Surely, then, the children had adequate places to play and were not completely deterred from doing so by the climate in Manchester. Additionally, both children stated that they had friends in Manchester and both stated that they liked their teachers at school. Both children also commented on the fact that the people of Greenville were on the whole very friendly as compared to the people of Manchester. The children's preference for the temperate climate and southern hospitality of Greenville, as well as their affinity for their father's yard, was not sufficient to invoke Article 13's narrow exception. Furthermore, the children's preference for Greenville over Manchester could not be "born of rational comparison" between life in the United States and life in the United Kingdom. See Castillo, 597 F.Supp.2d at 441. While the children had been in the United States, the children had not been in school and from their in camera testimony, they had clearly been having fun playing with their father, watching crime dramas on television, and exploring the city's attractions and restaurants. Even if the children were mature enough to make a decision about where they wished to grow up, neither child offered well-considered reasons why staying in Greenville would be preferable or beneficial that were not related to their leisure and pleasure. In addition to their stated desire to remain in Greenville, the children also expressed a desire to stay with their father. It was clear to thecourt that the children had been influenced by their parents' bitter and contentious relationship. At present, the children sided with their father and believed that their mother lied when she told them that Respondent left the family and South Africa for another woman. Both children mentioned this alleged lie during their in camera testimony, leaving little doubt that this perceived breach of trust was at the heart of the children's animosity toward their mother. The fact that they had been physically separated from their mother for the last four months while the instant custody battle ensued, during which time Petitioner sought to insulate the children from the stress of the proceedings by not discussing the issue with them, surely exacerbated the children's confusion about the situation and negative feelings toward their mother. Statements from those involved with the children's life in Manchester stood in stark contrast to the picture painted by Respondent and reported by the children about the children's home life in the United Kingdom. Such contradictions provided further circumstantial evidence that the children's objections to the return had been influenced by either their parents or the events surrounding the instant custody dispute, which therefore counseled against giving the children's objections determinative weight.

The court found that the instant dispute was a custody matter involving the children's preferences with regard to which parent they wanted to live with, not well reasoned particularized objections to their return to their place of habitual residence.

Headifen v. Harker 2013 WL 2538897 (W.D.Tex.) [New Zealand] [Habitual Residence] [Petition Denied]




In Headifen v. Harker 2013 WL 2538897 (W.D.Tex.) Headifen filed a petition for return of a minor to New Zealand. Headifen was a national and citizen of New Zealand, and a naturalized citizen of the United States. Headifen first came to the United States in 1984, and began an extended residence in this country beginning in 1985, initially on a student visa.He subsequently married an American citizen, and acquired United States citizenship thereby. Headifen and his first wife moved to Austin, Texas around 1991, and ultimately built a home, at 6201 Lost Horizon Drive. Harker was a national and citizen of South Africa, and a naturalized citizen of the United States. They were married on September 16, 2005, in Austin, Texas. Headifen then sponsored Harker's United States citizenship. A.H.H., was born to other parents in August 2008, in Austin. She was adopted by Headifen and Harker shortly thereafter.

The family moved to New Zealand on December 3, 2009. They lived there together until August 2012, when Headifen and Harker separated. Harker claimed the move was intended to be temporary, motivated in large part by Headifen's wish to be with his aging mother in her final days, having been out of the country when his father passed away. Harker claimed the family's time in New Zealand was expected to last no more than twelve to eighteen months, and they planned to return to Austin afterwards, to raise A.H.H. in America. The family resided with Headifen's sister for the first four months, then leased a house in the Auckland area under an annual lease. The couple encountered both financial and marital difficulties in New Zealand. Headifen never obtained, and apparently never meaningfully sought, any gainful employment in New Zealand, other than his essentially self-employed efforts to grow an internet business. Savings were exhausted after 2009 . At this time, Headifen professed the family was unable to move back to Texas because it was too expensive. After an abortive effort to start a clothing importer's business, Harker therefore sought and obtained employment in September 2010, landing a job with a New Zealand company.

Harker threatened to separate from Headifen sometime in 2011. Although matters apparently improved somewhat for awhile, the family finances continued to suffer. Headifen remained essentially unemployed. Headifen allegedly refused to pay any share of the couple's living expenses, thus frustrating Harker's efforts to save money for the return to the United States. With the couple's lease set to expire in mid-2012, Harker again sought to return to the United States. However, the couple instead separated in July or August 2012, with Headifen moving back in with his sister, while Harker leased a different house. The two agreed to have a "working separation," and Harker claimed Headifen still agreed all three would eventually return to Austin. After the separation in August 2012, the parents shared custody of A.H.H from August of 2012 until on or about April 2, 2013. Harker claimed she and Headifen still agreed to ultimately return A.H.H. to Austin, even after the two separated. She asserted Headifen simply asked if they could wait until the end of the New Zealand summer (which ended in March) to move back to Austin. According to Harker, this plan was abruptly rejected by Headifen when he announced, in a February 18, 2013 email, his new desire for A.H.H. to remain in New Zealand "for her schooling years." At this point, Harker had already given three-months resignation notice to her employer. She had also begun searching for work in the United States, including interviewing in November 2012 with Office Max in Chicago.

After the February 18 email, Harker determined to unilaterally return with A.H.H. to the United States. She accordingly, in secret, made travel plans for herself and the minor. She also arranged to have all their personal belongings shipped back to Austin. On April 2, 2013, Harker emptied joint bank accounts for some $8,000, without Headifen's knowledge or permission. As she was boarding the flight, Harker emailed Headifen, announcing what she had done. Upon arrival, Harker immediately filed a divorce and custody suit in the 261st District Court of Travis County. The state court apparently issued its standard, mandatory "Standing Order Regarding Children, Property and Conduct of the parties." Headifen's American counsel filed this case on April 24. Headifen sught an order returning A.H.H. to New Zealand, and access to her while she is still in the United States. In a series of orders, the Court previously set terms allowing Headifen temporary shared custody over A.H.H., and requiring counsel for each side to retain A.H.H.'s and their clients' passports and travel documents pending the outcome of this case.

There was no dispute Headifen had parental rights to A.H.H., nor was was there any dispute Headifen was exercising those rights as of April 2, 2013. Harker had not raised any defenses, and there was no question her removal of A.H.H. from New Zealand was "wrongful" under the Convention , if New Zealand was A.H.H.'s habitual residence. Resolution of Headifen's Petition turned on which country A.H.H. habitually resided. The Court observed that under the shared-intent approach, "courts should begin an analysis of a child's habitual residence by considering the relevant intentions [of the parents]." Gitter v. Gitter, 396 F.3d 124, 132 (2d Cir.2005) "[W]e will presume that a child's habitual residence is consistent with the intentions of those entitled to fix the child's residence at the time those intentions were mutually shared." However, the inquiry does not end there, and an absence of shared intent to adopt a new habitual residence can be overcome where, "notwithstanding the intent of those entitled to fix the child's habitual residence, the evidence points unequivocally to the conclusion that the child has become acclimatized to his new surroundings and that his habitual residence has consequently shifted." In noting this, the Second Circuit provided a fairly easy hypothetical example: a child who spent fifteen years living in another country might be a habitual resident of the country, regardless of any parental intent to maintain a habitual residence elsewhere. Gitter, 396 F.3d at 133. Mozes cautions courts should be " 'slow to infer' that the child's acclimatization trumps the parents' shared intent." The Second Circuit describes this situation as "relatively rare." Gitter, 396 F.3d at 134. The Fifth Circuit was in accord with the foregoing discussion from Mozes and Gitter. Larbie states: In such cases, the threshold test is whether both parents intended for the child to "abandon the [habitual residence] left behind."Absent shared intent, "prior habitual residence should be deemed supplanted only where 'the objective facts point unequivocally' to this conclusion."Notably, when "the child's initial move from an established habitual residence was clearly intended to be for a specific, limited duration[,] ... most courts will find no change in habitual residence."Mere retention in another country and "private reservations" or intentions that are made "manifest and definitive" only after the child has left its country of origin are generally insufficient to establish intent to change a child's habitual residence. 690 F.3d at 310-311

The Court found that Headifen failed to meet his burden as to habitual residence. Headifen and Harker gave conflicting testimony about the nature of their stay in New Zealand, with Headifen testifying it was intended to be of unlimited duration, and asserting there was no definite plan to ever return to Austin. Harker testified the plan was always for the family to return to Austin, and the sojourn in New Zealand was originally intended to last for only twelve to eighteen months. However, on cross-examination, Headifen admitted he agreed in July 2012 to return to the United States. The Court found Harker and her supporting witnesses to be more credible on this point. Headifen's testimony to the effect he and Harker never had any discussion about how long they would remain in New Zealand was simply not credible. It was belied by Headifen's admitted knowledge Harker never wanted to live there permanently. Although there was supporting testimony from Headifen's friends at the hearing, the Court found heir testimony means little, because social friends might well be unaware of a married couple's personal plans and conversations. Harker testified, in strong terms, she could never reside permanently in New Zealand, and professed grave reservations about moving there at all. This wasapparently based on her impression of New Zealand following a visit there sometime after the couple was married, but before the events at issue here. She explained she had only agreed to go in 2009 based on Headifen's promise the family would only remain in New Zealand for a year to eighteen months. It was confirmed by Headifen, who agreed during his own testimony Harker did not want to reside indefinitely in New Zealand. Headifen volunteered he had hoped Harker would in time change her mind about New Zealand, but this was apparently a private reservation. Such "private reservations" do not suffice to establish intent to change the minor's habitual residence. Larbie, 690 F.3d at 311 . Even though the exact length of the stay was left open to negotiation, the court was able to find nosettled mutual intent from which such abandonment of the United States could be be inferred." At no point prior to February 18, 2013, did either parent indicate a desire to abandon the previously agreed plan to return A.H.H. to Austin. On February 18, Headifen announced to Harker that he had changed his mind, and openly conceded: "Obviously this means a change in that we're staying in New Zealand and not moving to Austin. " Any doubt on this score was dispelled by the great weight of other evidence in this case, including (1) the arrangements for A.H.H.'s education, (2) the family's housing, (3) pervasive official and business ties with Austin which endured throughout the time in New Zealand, and (4) as late as October 4, 2012, Headifen indicated his continued assent to return to Texas. Based on all of the foregoing evidence, the Court found that Headifen and Harker never had a shared intention to make New Zealand A.H.H.'s habitual residence. Rather, the Court found they did have a shared intention, until February 18, 2013, to maintain Austin as A.H.H.'s habitual residence.

Having weighed the threshold question of parental intent, the Court considered whether " 'objective facts ... unequivocally' " indicated Headifen and Harker's shared intent to keep the United States as A.H.H.'s habitual residence was nevertheless supplanted by the practical effects of A.H.H.'s time in New Zealand. Larbie, 690 F.3d at 311. The Court found no such unequivocal indication was present here. Headifen and Harker gave conflicting testimony as to what A.H.H.'s life in New Zealand was like. Headifen briefly testified A.H.H. was fully involved with his family and relatives in New Zealand, including aunts and uncles, and a nephew who is the same age. Harker testified Headifen's family wanted little to do with her or A.H.H., refused to spend time with A.H.H., and expected Harker to simultaneously care for her daughter and take over numerous other household responsibilities, while Headifen was constantly out sailing or engaged in other leisure pursuits without Harker or A.H.H. Headifen offered no other evidence to establish A.H .H.'s acclimatization to New Zealand. For some nine months, after Harker obtained employment, A.H.H.'s care was primarily handled by a French au pair, who apparently cared for A.H.H. at the family's leased home. This was not indicative of integration into the New Zealand setting. Although A.H.H. was enrolled in a preschool afterwards, and presumably adapted to this setting in a normal way, the Court was not persuaded this was unequivocal evidence.

Because there was no shared parental intent to make New Zealand the habitual residence, and because there were no unequivocal facts demonstrating A.H.H. nevertheless became acclimated to New Zealand, the Court concluded Austin, not New Zealand, remained A.H.H.'s habitual residence. As such, Headifen has failed to establish a necessary element for relief under ICARA, and his Petition was denied.

Aranda v Serna, 2013 WL 665064 (M.D.Tenn.) [Mexico] [Well Settled ][Age and Maturity] [Petition Denied]

In Aranda v Serna, 2013 WL 665064 (M.D.Tenn.) Petitioner Nora Lizeth Saavedra Aranda filed a Petition against Respondent Rosendo Elizondo Serna for the return of the parties' two children to her in Mexico. The parties were married in Mexico on August 5, 1999. They moved from Mexico to Franklin, Tennessee, on December 31, 1999. They had two minor children together, J.E. and A.E. J.E. was born December 6, 2000, while A.E. was born January 31, 2002. Both children were born in Franklin, Tennessee, and both were U.S. citizens. In May 2003, Ms. Saavedra and the children moved from Franklin, Tennessee to Mexico. Mr. Elizondo remained living in Franklin. The parties were divorced in Mexico on or about January 31, 2007. The parties stipulated to the Mexican Divorce Decree, which gave Petitioner complete physical custody of the minor children, and gave Respondent weekend visitation as long as he resided in Mexico.The Decree provides that the children were to live with Ms. Saavedra in Nuevo Leon, Mexico. Itrequired Mr. Elizondo to return the children to Ms. Saavedra in Neuvo Leon at the conclusion of each of his visits, and provided that Mr. Elizondo was entitled to have the children visit him for a month during summer vacation, after which he was to return them to Ms. Saavedra in Neuvo Leon. On May 21, 2010, Ms. Saavedra signed a document permitting Ms. Anna Maria Garcia to travel with the children to their father's house in the United States for their month-long summer vacation. Ms. Saavedra was exercising rights of custody under the parties' Divorce Decree at the time they came to the United States to visit Mr. Elizondo in May 2010. At the time, the children's country of habitual residence was Mexico. Under the Divorce Decree, Mr. Elizondo had the right to have the children visit for "a month long summer vacation." Thus, the children should have been returned to Ms. Saavedra in June 2010. The parties apparently agreed at some point that the children would be returned by the end of the summer of 2010. That did not occur, apparently in part because they had started school in Franklin and had begun studying English, and in part because A.E. had begun exhibiting unusual behavior. Petitioner consented only to the children's visiting with Mr. Elizondo until the end of July 2010. The parties, subsequently agreed that the children would reside with Mr. Elizondo until December 2010. In December 2010, Ms. Saavedra asked Mr. Elizondo to send the children back.. Mr. Elizondo, however, told her that he would not be returning the minor children to Mexico. The Petition was filed March 29, 2012.

The Magistrate found that while A.E. and J.E. were visiting Respondent during the summer of 2010, Respondent learned that A.E. had been sexually abused in Mexico. Respondent told Petitioner that he was going to keep the children "here longer in order to do studies on [A.E.] because we wanted to know why she was banging her head against the wall and why she was biting the carpet." In 2009, A.E. was abducted or kidnapped by a man named Marcelino. At the time, A.E. was in the custody of her mother in Mexico. Marcelino was criminally charged, and A.E. testified against him. He was given probation for the abduction and attempted rape of A.E. Petitioner, however, did not admit that A.E. was sexually assaulted; Petitioner thought only that A.E. was the victim of an attempted sexual assault. The record was unclear as to whether Petitioner informed Respondent of the incident, and if so, when she informed him and what she told him about it. Both children testified at the trial. They were sworn appropriately, and both testified through an interpreter. They testified in chambers by agreement of the parties, with only the attorneys, the interpreter, the Court, and a Court Reporter, present. No objections were raised to the competency of either child to testify.

At the time of the trial, A.E. was 10 years old. A.E. was in the 4th Grade at Johnson Elementary School in Franklin. She testified with regard to the sexual assault.;" A. When my mom and I were in Mexico and I was playing with my little girlfriend, and then a man came over. He called me over, and then he threw money on the ground. And then I thought it was for me so I went toward it. And then the man just started grabbing me. And so, you know, my girlfriend was there with me, and-and then so she went with her mother. But then that man grabbed me by the eyes, and I couldn't see anything, then-so we went over to his house, and then he took out the keys, and then he pulled down my pants. And he also pulled down my under pants. Q. Did anything else happen? A. I don't remember."



At the time of the trial, A.E. was seeing Claudia Avioa-Lopez, a Counselor and Clinical Social Worker, once a week. She was also taking medication to "keep [her] calm." J. E., who was 11 years old (almost 12) at the time of the trial also testified. She was in the 6th Grade at Freedom Intermediate School. She had been there two years. J.E. helped A.E. get up in the morning and helps ger her ready for school. .Angelina cooked breakfast and her father took her to school every morning He also picked her up every afternoon. She said that neither Respondent nor his attorney told her what to say while testifying. She stated that she would rather stay with her father than go to Mexico with her mother, because "[i]t's better here." She testified. At the time of the trial, J.E. was seeing a therapist. Mr. Elizondo refused to send his children back to Mexico because of "the problem" that his daughter had. If nothing had happened to his daughter, he would have sent the children back. Respondent also presented the testimony of five witnesses, four of whom were teachers of the children in Franklin, who all testified that J.E. was severely disturbed. Ms. Williams had never encountered a student as disturbed as A.E. .J. E., however, was sweet and shy, diligent in her work and a well rounded individual who was good with other children and adults. Claudia Avioa Lopez, a "Master's Clinical Social Worker," testified at the trial. According to Ms. Lopez, A.E. had evidence of trauma and was having hallucinations, would scream and cry, saying things like "he's there, he's going to get me, he's there." .A.E. "would get upset a lot because she remembered and she reported that she had been sexually abused, and she would talk about it and start crying." Ms. Lopez had been seeing A.E. for over 2 years, and A.E. had made significant process. She had about 86 sessions with A.E..

The court found that Petitioner established a prima facie case for the return of the children. It observed that Article 12 generally provides that where a child has been wrongfully retained and, at the date of the commencement of the proceedings before the judicial authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful retention, the authority concerned shall order the return of the child forthwith. Importantly, Article 12 also provides: The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Respondent's first argument was that the affirmative defense set forth in Article 12 (one year/now settled) has been shown by a preponderance of the evidence. By her own testimony, Ms. Saavedra knew in December 2010 that Mr. Elizondo would not return the children to Mexico. The Petition in this case was not filed until March 19, 2012, more than a year later. Petitioner admitted she "has not met the strict requirements of the one-year rule...." but argued that she was "not sitting on her rights" and that the one year period was subject to equitable tolling.

While the Sixth Circuit has not spoken to whether the one year period was subject to equitable tolling, the Court adopted the reasoning set forth in Lozano v. Alverez, 697 F.3d 41 (2nd Cir.2012) which set forth three reasons why equitable tolling is not applicable. The Sixth Circuit had not adopted a test for whether children are "now settled" for Article 12 purposes. Thus, the Court looked to the factors set forth in the frequently cited case of In re Koc, 181 F.Supp.2d 136, 152 (E.D.N.Y.2001). In Koc, the Court listed the following factors for consideration: (1) The age of the child; (2) The stability of the child's residence in the new environment; (3) Whether the child attends church regularly; (4) The stability of the [Respondent's] employment; and (5) Whether the child has friends and relatives in the area.

The court found that A.E. and J.E. had made numerous friends in Franklin, had strong bonds with their teachers, and had made significant progress in their educations. Both spoke English and both attend church every Sunday with their father. They have lived in the same residence for more than two years. Mr. Elizondo worked two jobs for 5 years and his employment was stable. He was a model employee according to his boss. Petitioner argued that the children were not settled in part because of Mr. Elizondo's immigration status. The Lozano Court, considering whether the child in that case was settled, discussed the fact that neither the mother nor the child were legally residing in the United States. With respect to the final factor, Judge Karas rejected Lozano's argument that the child could not be settled (as a matter of law) so long as she lacked lawful immigration status. Instead, he stressed that "there is nothing to suggest that, at this moment, or in the near future, the immigration status of the child and Respondent is likely to upset the stability of the child's life here in New York." The Court agrees with this reasoning and, therefore, discounted the immigration status of Mr. Elizondo. The Court concluded by a preponderance of the evidence that Petitioner delayed more than one year since the wrongful retention and that both children were now settled in their new environment. The children's return to Mexico would be disruptive with likely harmful effects. Respondent, therefore, prevailed upon this affirmative defense.

Respondent had also raised the "mature child's objection" set forth in Article 13. Petitioner admitted that, even when J.E. was living with her, she was more mature than most girls her age. Mr. Elizondo agreed with this assessment. J. E.'s maturity was further shown by her concern for A. E., and her "taking care" of A.E. J.E. was 11 years old, almost 12, at the time of the trial. The Court had the opportunity to observe J.E. closely while she was testifying, and concluded that she has attained an age and degree of maturity at which it is appropriate to take account of her views. With regard A. E., who was 10 years old at the time of the trial, the Court had the opportunity to observe her closely during her testimony. She calmly explained the incident that had occurred in Mexico. She has made significant progress in her behavior and in her school subjects since she came to Franklin in 2010.

Additionally, as Ms. Lopez testified, at approximately the end of 2011, A.E. approached her stating that she wanted to tell her father the story of what had had happened to her. This very significant fact evinced A. E.'s maturity. Her maturity was further shown by her work on Ms. Surbaugh's "summer notebook" project. The Court concluded, by a preponderance of the evidence, that both children were of an appropriate age and degree of maturity that their views should be considered. Both children testified that they would rather stay in the United States with their father than go back to Mexico with their mother. Both children also testified that their father had not told them how they should testify. Thus, Respondent had proven the "mature child's objection." The Court directed that the Petition be dismissed.

Selo v. Selo, 2013 WL 878959 (E.D.Mich.) [Switzerland] [Habitual Residence] [Petition Denied]


 In Selo v. Selo, 2013 WL 878959 (E.D.Mich.) Petitioner Jean-Loic Selo filed this action against Respondent Mother Dawn Michelle Levites Selo on September 25, 2012, seeking immediate return of the couple's minor child, J.P.S., to Switzerland.

The court found that Mr. Selo was a citizen of France. Mrs. Selo had dual citizenship and was a citizen of both the United States and France. Mr. Selo and Mrs. Selo were married in France on December 20, 1997. They had one minor child, JPS, who was born in France in 2001. JPS also had dual citizenship and was a citizen of both the United States and France. JPS was discovered to have a coarctation of the aorta at the age of two. Prior to 2007, the Selo family had lived together at different residences in both Switzerland and France. Mr. and Mrs. Selo both knew that Mrs. Selo was unhappy living in Europe because she felt isolated and because she missed her family members who were in the United States. On or about April 1, 2007, Mr. Selo, Mrs. Selo, and JPS moved from France to the martial residence in Switzerland. In 2008, JPS was enrolled in Conlara School's Home education program in Switzerland. During the time period from 2010 to 2011, Mrs. Selo was unhappy in the marriage. Mrs. Selo believed that Mr. Selo was emotionally abusive toward her and was controlling in the relationship. Mrs. Selo and JPS left Switzerland on February 13, 2011. At that time, JPS was habitually resident in Switzerland. The purpose of the trip was to visit Mrs. Selo's family. Mr. Selo took them to the airport. They took two suitcases and a backpack with them. Mrs. Selo and JPS had round-trip tickets for the flight. The trip was projected to last for about two months, or until April 29, 2011. Mr. Selo consented to the trip. After arriving in the United States, Mrs. Selo and JPS stayed at the home of her parents, David and Karen Levites, in Brighton, Michigan. When she arrived in the United States, Mrs. Selo was confused and unsure about her marriage. Mrs. Selo began receiving counseling. Soon after they arrived here, Mrs. Selo enrolled JPS in a home-schooling program through a local organization. Through that organization, JPS  participated in a home-school co-op program where he spent time attending classes at the organization and engaged with other children in the program. He also participated in a theater program. Although Mrs. Selo served as JPS's primary instructor, JPS also had a tutor in Michigan. JPS had been speaking English, and writing in English, since arriving in the United States. Mrs. Selo and JPS were scheduled to return to Switzerland on April 29, 2011. On April 12, 2011, Mrs. Selo postponed their return to Switzerland. Mr. Selo was disappointed that Mrs. Selo wanted to postpone their return, but agreed that she could do so. On June 28, 2011, Mrs. Selo confirmed with Mr. Selo that she had a return flight booked for herself and JPS with arrival in Switzerland to be on July 7, 2011. On July 5, 2011, Mrs. Selo informed Mr. Selo that she was delaying their July 7, 2011, return. Mrs. Selo told Mr. Selo that she and JPS would return and arrive in Switzerland on August 28, 2011. During the July 5, 2011, conversation, Mrs. Selo told her husband that she had started therapy in the United States. She stated that she needed to work on her self-esteem and also wanted to work on communication problems in the marriage. Mrs. Selo also suggested that Mr. Selo see a therapist in Switzerland.

After that conversation, Mr. Selo found a therapist, that Mrs. Selo approved of, and began therapy in Switzerland. On August 26, 2011, Mrs. Selo told Mr. Selo that she and JPS would not return on August 28, 2011. On that date, Mr. and Mrs. Selo had a long conversation via skype. Mrs. Selo told Mr. Selo that she and JPS would not be returning on August 28, 2011, as planned, and she did not know when they would return. She told Mr. Selo that her therapists had helped her realize that this was not a good time for her to return to Switzerland. Mrs. Selo stated that she wished to remain in the United States and continue counseling. She told Mr. Selo that she thought it would be best if Mr. Selo remained in Switzerland and continued receiving counseling there Mr. Selo responded that he too wanted to work on making the marriage work. He told Mrs. Selo that he would continue therapy in Switzerland and would keep her informed about his progress. On August 27, 2011, Mr. and Mrs. Selo agreed that Mrs. Selo and JPS would remain in the United States for an undefined period of time, while the couple lived apart and separately received counseling. In November of 2011, Mr. and Mrs. Selo and JPS went to Las Vegas, Nevada, along with Mrs. Selo's parents. Mrs. Selo, JPS, and Mrs. Selo's parents stayed together in one hotel while Mr. Selo stayed at another hotel. Mr. and Mrs. Selo continued seeing their respective therapists and discussing the state of their marriage. In December of 2011, Mr. Selo came to the United States to visit JPS for approximately a week. By April of 2012, Mrs. Selo had decided that she wanted to proceed from a separation to a divorce. Mrs. Selo signed a Complaint for Divorce, and collateral documents required for a divorce in Livingston County, Michigan on April 24, 2012; these were filed with the court on April 25, 2012. Mr. Selo, however, was not aware of the filing at that time. Mr. and Mrs. Selo continued seeing their respective therapists and discussing the state of their marriage. Between December of 2011, and August of 2012, JPS did not see Mr. Selo in person. During that time period, Mr. Selo communicated with JPS via text, telephone, and skype. The next time that Mr. Selo came to the United States was on August 14, 2012. Mr. Selo had spoken with JPS via skype the day prior, August 13, 2012, and Mr. Selo thought that JPS seemed upset during the call. Mr. Selo then booked a flight to the United States. Mr. Selo arrived at Mrs. Selo's parents house in Brighton, Michigan on August 14, 2012. Mr. Selo did not advise Mrs. Selo that he was coming.

On August 15, 2012, Mr. Levites handed Mr. Selo an envelope containing divorce papers. On August 15, 2012, Mr. Selo was served with process in the Livingston County divorce and custody action by Mrs. Selo's father at the Levites' home in Brighton, Michigan. Mr. Selo was very upset. He believed that he and his wife were still working on saving their marriage. Mr. Selo went back to his hotel and contacted Mrs. Selo via e-mail and telephone. Mr. Selo communicated that he no longer agreed to JPS remaining in the United States. On August 15, 2012, Mrs. Selo filed a motion in the Livingston County divorce case requesting full legal and physical custody of JPS with Mr. Selo to have parenting time only in Michigan. Mr. Selo returned to Switzerland. Mr. Selo initiated this action on September 25, 2012, by filing his Petition for Return of Child. JPS had now been in the United States for more than two years.

As of August 14, 2012, JPS had been living in the United States continuously for more than eighteen months. He had not traveled back to Switzerland at any point. JPS became very close with his maternal grandparents, David and Karen Levites, since coming to live with them in February of 2011.



Mr. Selo alleged that Mrs. Selo wrongfully retained JPS in the United States although his habitual residence is in Switzerland. Here, it was undisputed that Mr. Selo had rights of custody and was exercising those rights prior to the alleged retention. The court found that there was there was no retention of JPS in the United States by Mrs. Selo until August 15, 2012 when Mr. Selo clearly communicated to Mrs. Selo that he no longer consented to JPS remaining in the United States and took actions to regain custody and have JPS returned to Switzerland. Thus, because August 14, 2012, was the last date upon which JPS was present in the United States with Mr. Selo's permission, the retention began on August 15, 2012. The Court observed that Frederich I "provides five principles" regarding habitual residence which must guide "more complicated decisions." Robert, 507 F.3d at 989 (6th Cir.2007)."First, habitual residence should not be determined though the 'technical' rules governing legal residence or common law domicile. Instead, courts should look closely at '[t]he facts and circumstances of each case. Second, because the Hague Convention is concerned with the habitual residence of the child, the court should consider only the child's experience in determining habitual residence." "Third, this inquiry should focus exclusively on the child's 'past experience.' 'Any future plans' that the parents may have 'are irrelevant to our inquiry.' "Fourth, a person can have only one habitual residence.' " Fifth and finally, a child's habitual residence is not determined by the nationality of the child's primary care-giver. Only 'a change in geography and the passage of time' may combine to establish a new habitual residence." . In Robert, however, the Sixth Circuit concluded that Mozes wasincompatible with the standards set forth in Friedrich I and it clearly rejected the standards set forth in Mozes. Robert, 507 F.3d at 989-992. Although the Robert court concluded that Mozes was inconsistent with Friedrich I, it determined that "not all post-Friedrich I developments should be rejected by the Sixth Circuit." Id. at 992.After reviewing some post-Friedrich I cases, the Robert court ultimately set forth the proper standard, given the developments which it accepted: [W]e hold that child's habitual residence is the nation where, at the time of their removal [or retention], the child had been present long enough to allow acclimatization, and where this presence has a 'degree of settled purpose from the child's perspective.'Feder, 63 F.3d at 224. Such a holding is not only consistent with the collective wisdom of many of our sister Circuits, but it is also consistent with Friedrich I's holding that a habitual residence inquiry must 'focus on the child, not the parents, and examine past experience, not future intentions." 983 F.2d at 1401. Robert, 507 F.3d at 993. There are several factual circumstances which a court should consider in determining whether or not a child's stay in a new country meets the tests of "acclimatization," and "settled purpose." Academic activities are among the most central in a child's life and are therefore highly suggestive of acclimatization. Id. Other factors to be considered include participation in sports programs and excursions and meaningful connections with the people and places in the child's new country. The Court held that it was bound to follow Sixth Circuit authority and that authority maked clear that the Court cannot look to the subjective intentions of the parents in determining the child's habitual residence. Robert, 507 F.3d at 989-92.

It was undisputed that JPS's habitual residence was Switzerland in February of 2011. The Court found that his habitual residence had altered to the United States by August of 2012. A child's habitual residence may be altered "only by a change in geography and the passage of time." Friedrich I, 983 F.2d at 1402. And the change in geography must have occurred before the questionable removal or retention. Here, the change in geography occurred prior to any wrongful retention by Mrs. Selo. The change in geography occurred on February 13, 2011, when Mrs. Selo and JPS came to the United States, with Mr. Selo's consent. And both parents later agreed that JPS could remain in the United States with Mrs. Selo for an undetermined period of time, while Mr. and Mrs. Selo lived apart and separately received counseling. It was not until August 15, 2012, that Mrs. Selo's retention of JPS in the United States was without Mr. Selo's consent. But by that time, JPS had been living continuously in the United States for more than eighteen months. This rather extensive passage of time, when viewed from the child's perspective, altered JPS's habitual residence.

The Sixth Circuit considers a child's habitual residence to be "the nation where, at the time of [a wrongful retention], the child has been present long enough to allow acclimatization, and there this presence has a degree of settled purpose from the child's perspective." Robert, 507 F.3d at 993. Academic activities were among the most central in a child's daily life and consideration of this factor here weighed in favor of the United States being JPS' habitual residence as of August 14, 2012. By August of 2012, JPS had participated in a home-schooling program through a local organization in Michigan for nearly eighteen months. JPS had also established meaningful relationships with his relatives in the United States that weighed in favor of the United States as his habitual residence. JPS ha become very close with his maternal grandparents, David and Karen Levites, since coming to live with them in February of 2011. JPS had also been spending time with Mrs. Selo's sister Kim (his aunt) on a regular basis. JPS also had friends in the neighborhood and through school and extracurricular activities. JPS's best friend is a boy named Joe who lives very close to the Levites residence in Brighton. JPS now had a cardiologist in Michigan who he has seen multiple times and with whom he now has an established patient relationship. JPS had his own bedroom at the Levites residence in Brighton, Michigan and it was a typical bedroom of a child his age. JPS has gone on various outings and excursions while in the United States. This United States-centered experience contrasted dramatically with JPS's lack of contact with Switzerland during this time period. After arriving in the United States on February 13, 2011, JPS never returned to Switzerland. In sum, over a period of more than eighteen months, JPS became more and more socialized in the United States, such that his habitual residence as of August of 2012 was the United States. Accordingly, after applying the standards set forth by the Sixth Circuit, the Court found, by a preponderance of the evidence, that by August of 2012, JPS was a habitual resident of the United States, and denied the petition.