New York Matrimonial Trial Handbook
The by Joel R. Brandes is available in Bookstores and online in the print edition , . It is also available and for all ebook readers in our bookstore. The New York Matrimonial Trial Handbook is divided into five parts: (1) Preliminary Matters Prior to the Commencement of Trial, Conduct of Trial and Rules of Evidence Particularly Applicable in Matrimonial Matters; (2); Establishing Grounds for Divorce, Separation and Annulment and Defenses; (3) Obtaining Maintenance, Child Support, Exclusive Occupancy and Counsel Fees; (4) Property Distribution and Evidence of Value; and (5) Trial of a Custody Case. There are thousands of suggested questions for the examination and cross-examination of witnesses dealing with very aspect of the matrimonial trial. Click and
The New York Matrimonial Trial Handbook was reviewed by Bernard Dworkin, Esq., in the New York Law Journal on December 21, 2017. His review is reprinted on our website at with the permission of the New York Law Journal.
Joel R. Brandes, is the author of Law and The Family New York, 2d (9 volumes) (Thomson Reuters), and Law and the Family New York Forms (5 volumes) (Thomson Reuters). Law and the Family New York, 2d is a treatise and a procedural guide. Volume 4A of the treatise contains more than 950 pages devoted to an analysis of the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. It contains a complete discussion of the cases construing the Convention which have been decided by the United States Supreme Court, the Circuit Courts of Appeal, the District Courts, and the New York Courts.
Friday, August 29, 2014
Berezowsky v Ojeda, 2014 WL 4216286 (5th Cir, 2014) [Mexico] [Habitual Residence] [No Habitual Residence]
In Berezowsky v Ojeda, 2014 WL 4216286 (5th Cir, 2014) Michelle Gomez Berezowsky filed a petition under the Hague Convention, asserting that Pablo Angel Rendon Ojeda had wrongfully removed their child, PARB, from Mexico to Texas. The district court granted Berezowsky's petition and ordered that PARB be returned to Mexico. The Fifth Circuit held that Berezowsky failed to meet her burden of establishing that Mexico was PARB's place of habitual residence. It vacated the district court's order and remanded with instructions to dismiss.
The Fifth Circuit noted that Berezowsky and Rendon were both Mexican nationals. In September 2008, Berezowsky learned that she was pregnant and she and Rendon became engaged. By March 2009, their relationship had deteriorated to the point that Berezowsky moved to her parents' home in Kingwood, Texas, and cut off communication with Rendon. Berezowsky was living in the United States on a student visa. She gave birth to PARB on May 31, 2009, in Kingwood, Texas. Approximately one month after PARB was born, Rendon learned his child's name, sex, and date of birth through a private investigator.
In February 2010, Rendon brought the parties custody dispute to the 410th District Court of Montgomery County, Texas, where Berezowsky and PARB were living at the time. The parents litigated PARB's custody in the Texas state court system for the next two years while PARB continued to live in Texas with his mother. More than a year later, Berezowsky and Rendon stipulated that Rendon was PARB's biological father. The 410th District Court of Texas entered an order awarding Rendon and Berezowsky joint parental rights, and giving Rendon the right to determine PARB's residence (Texas Order). The Texas Order limited PARB's primary residence to three geographic areas in Mexico “until further order of the court of continuing jurisdiction or agreement of the parties.” It also required each parent to give notice to the other before traveling with PARB outside of Mexico. The Texas Order gave Berezowsky standard visitation rights and ordered her to pay child support. Pursuant to the Texas Court Order, Rendon drove across the border with PARB to Cuernavaca, Mexico, in October 2011. Berezowsky moved to Mexico City on October 18, 2011, and then moved to Cuernavaca two weeks later. Berezowsky filed a suit to terminate Rendon's parental rights in Cuernavaca, in the State of Morelos (7th Mexican Court). On January 12, 2012, the 410th District Court of Texas found that Berezowsky was in violation of the possession and access, as well as the passport provisions of the Texas Order, and had wrongfully withheld PARB from Rendon for a period of time greater than one month (Second Texas Order). The 410th District Court of Texas noted that Berezowsky had “claimed to the courts of Morelos[, Mexico,] that the child was abducted from Texas by his father” and then concluded that Rendon was in compliance with the Texas Order, had not abducted PARB from the United States, and had a superior right to possess PARB. The 410th District Court of Texas also issued a temporary restraining order, prohibiting Berezowsky from interfering with Rendon's right to possess PARB, or hiding or secreting PARB. The 410th District Court of Texas suspended Berezowsky's rights to possession of, and access to, PARB pending a further order from that court. On the same day, the 410th District Court of Texas also signed an order clarifying that Berezowsky and her parents were misrepresenting the Texas Order “to the courts of Morelos or the United Mexican States. The 410th District Court of Texas explained that the Texas Order “is a valid, existing, final and enforceable order, and the matter of the primary custody of the child PARB is res judicata.”In addition, the 410th District Court of Texas clarified that unless and until an appellate court reversed the Texas Order, that it would remain both final and enforceable. Subsequently, the 410th District Court of Texas gave Rendon sole custody and the exclusive right to designate PARB's primary residence with no geographic restrictions. Berezowsky was appointed possessory conservator with only the right to receive information from Rendon regarding PARB's health, education, and welfare. Berezowsky was given supervised visits with PARB . Despite this order, Berezowsky continued to maintain possession of PARB in Mexico. In August 2012, she moved from Cuernavaca to Mexico City.
On September 18, 2012, the 11th Mexican Court recognized and enforced the Texas Orders and ordered Berezowsky to immediately surrender PARB to Rendon. On October 11, 2012, Rendon arrived at PARB's school with a group of men just as PARB was being released to go home. Rendon left with PARB. On November 1, 2012, Rendon drove across the border and entered Texas with PARB. The 24th Mexican Court reaffirmed that Berezowsky had exclusive rights to, and custody of, PARB.
On November 30, 2012, Berezowsky filed a petition in the United States District Court for the Southern District of Texas (Southern District Court) under the Hague Convention. In January 2013, the Southern District Court issued an order holding that PARB had been wrongfully removed from Mexico and ordered his immediate return. The order awarded attorney's fees and costs to Berezowsky. The Fifth Circuit reversed, holding that because Berezowsky filed this action under the Hague Convention, she had to demonstrate by a preponderance of the evidence that Mexico was PARB's habitual residence in order to establish her claim that PARB was wrongfully removed, and failed to do so.
The Fifth Circuit observed that courts use varying approaches to determine a child's habitual residence, each placing different emphasis on the weight given to the parents' intentions.”Larbie, 690 F.3d at 310. Like the majority of circuits, it had “adopted an approach that begins with the parents' shared intent or settled purpose regarding their child's residence.” This approach does not ignore the child's experience, but rather gives greater weight to the parents' subjective intentions relative to the child's age. For example, parents' intentions should be dispositive where, as here, the child is so young that he or she cannot possibly decide the issue of residency. 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. It affirms the district court's determination that the parents shared an intent to make a particular country their child's habitual residence unless it is implausible in light of the record as a whole. See Larbie, 690 F.3d at 306. It noted that at least one court has found that it is possible for a young child to have no habitual residence when there is no evidence of a shared intention for the child to be settled in any particular location. See Delvoye v. Lee, 329 F.3d 330, 334 (3d Cir.2003). The mere fact that the parents have consented for the child to move to a new country does not prove that they share the necessary intent to make that new location the child's habitual residence.
The Fifth Circuit found that Rendon and Berezowsky's relationship ended before PARB's birth, and the record did not indicate that the two parents had ever shared any plans regarding his upbringing or future. The district court concluded that Rendon and Berezowsky intended to make Mexico PARB's habitual residence. The district court devoted only one paragraph to the habitual residence analysis, and made the following statements in support of its conclusion that Mexico was PARB's habitual residence:
“Although [PARB] was born in the United States, the facts established that the parents intended to make Mexico [PARB's] habitual residence. Specifically, [Berezowsky] and [Rendon] are both Mexican nationals, they met while residing in Mexico, they are not citizens of the United States, do not own real property in the country, and do not have immigration status that allows them to permanently reside here. Moreover, [Rendon] moved [PARB] to Mexico pursuant to a Texas court order that designated Mexico as [PARB's] place of residence. In the Texas [O]rder, both parents listed Mexico as their place of residence. [Rendon] admitted, and the evidence establishes, that he represented to the Mexican courts that his residence was Mexico. In other words, the evidence establishes that neither parent has meaningful or deep-rooted ties to the United States. Moreover, [PARB] resided in Mexico for approximately thirteen months and was attending school there before [Rendon] removed him to the United States. Therefore, based on these undisputed facts, the Court concludes that Mexico was [PARB's] habitual residence.”
Only the first line of this paragraph references parental intent. The Fifth Circuit found that in reaching this conclusion, it appeared that the district court misunderstood what is required to form a shared parental intent for purposes of the habitual residence determination. A shared parental intent requires that the parents actually share or jointly develop the intention. In other words, the parents must reach some sort of meeting of the minds regarding their child's habitual residence, so that they are making the decision together. Here, the district court did not find that the parents reached an agreement to make Mexico PARB's habitual residence. Instead, the district court focused on the fact that “neither parent has meaningful or deep-rooted ties to the United States.”In doing so, the district court ignored the primary consideration in the habitual residence determination: shared parental intent. Even accepting all of the facts cited by the district court as true, those facts could not support a finding of shared parental intent as understood for purposes of the Hague Convention. In the district court's brief analysis, the court never found that Rendon and Berezowsky reached an agreement or meeting of the minds regarding PARB's future. Likewise, the district court did not make a finding that Berezowsky and Rendon intended to abandon Texas as PARB's habitual residence. Nor did the record support a determination that the parents formed a shared intent to make Mexico PARB's habitual residence. Berezowsky did not even argue that she and Rendon reached an agreement on this issue. Instead, she tried to establish that both she and Rendon separately formed the intent to change PARB's habitual residence, and then argued that this could serve as the basis for a shared parental intent. The Court disagreed and held that Berezowsky failed to meet her burden to establish that she and Rendon shared an intent to change PARB's habitual residence.
In an effort to defeat the 410th District Court of Texas's contrary determination, Berezowsky conceded that Texas was originally PARB's habitual residence, but argued that Mexico has supplanted Texas as PARB's current habitual residence. Berezowsky asserted that the Texas Order, which limited PARB's primary residence to one of three areas in Mexico, established Mexico as PARB's new place of habitual residence. The Fifth Circuit rejected her argument finding that Berezowsky mistakenly conflated that idea of a primary residence with a habitual residence. Berezowsky offered no support for the proposition that the two terms are interchangeable. The Texas Family Code does not define “primary residence” and the court was not aware of any cases that interpret it in a way that would suggest that the term means “habitual residence” under the Hague Convention. As a result, the fact that the Texas Order designated Mexico as PARB's primary residence was insufficient to prove that Mexico also became his habitual residence. Moreover, Berezowsky had not demonstrated that the Texas Order evinced the necessary shared parental intent to establish a habitual residence under the Hague Convention. The mere fact that the Texas Order designated Mexico as PARB's primary residence was insufficient to demonstrate a shared parental intent for Mexico to become his habitual residence. Even assuming arguendo that the separate, uncoordinated intentions of two parents could form the necessary shared intent to change a child's habitual residence, Berezowsky did not meet her burden in proving that each of the parents here had such an intent. Berezowsky did not demonstrate that she intended to make Mexico PARB's habitual residence. Although she now asserted that she intended to abandon Texas, where there is a dispute regarding a child's habitual residence, ‘the representations of the parties cannot be accepted at face value, and courts must determine habitual residence from all available evidence. It examined the evidence presented by Berezowsky, and concluded that she had not demonstrated that she had such an intent.Likewise, Rendon's decision to remain in Mexico during the ensuing months while he battled with Berezowsky over PARB's custody did not indicate a shared intent to raise PARB there. And the Texas Order designating Mexico as PARB's primary residence did not establish Rendon's settled intent to raise PARB in Mexico. This was especially true in light of the fact that Rendon requested and received a revised order lifting this geographic restriction just four months after receiving the Texas Order. By that time, Rendon was no longer in possession of PARB, and was not in a position to determine where PARB would live. Just weeks after Rendon regained possession of his son, he moved back to Texas. These were not the actions of a man with a settled intention for his son to habitually reside in Mexico.
The Fifth Circuit pointed out that the District Court made much of the fact that both Berezowsky and Rendon were Mexican nationals, with no immigration status that allowed them to permanently reside in the United States. While these facts might indicate that Texas was not PARB's habitual residence, they do not prove that the parents established Mexico as the child's habitual residence. Given the constant cross-border battle over his custody, it was possible that PARB had no habitual residence. See Delvoye, 329 F.3d at 334. While it is true that both parents listed locations in Mexico as their residences on the Texas Order, the record also showed that neither parent was living in Mexico at the time that they made these representations to the 410th District Court of Texas. It did not appear that the decision for PARB to reside in either Texas or Mexico was connected to a shared intention to settle their son in that place; rather, the geographic decisions seemed wholly dependent on where the parents happened to be fighting their court battles at the time, and where each parent thought they could gain an advantage. Given the constant disagreement and multiple cross-border moves in the span of a few years, Berezowsky did not meet her burden in proving that she and Rendon shared an intent or settled purpose regarding their child's habitual residence. It did not appear that Berezowsky and Rendon had shared any intention or settled purpose regarding their child since his birth. The district court's determination of habitual residence in this case appeared to have relied upon an understanding of that term that gave insufficient weight to the importance of shared parental intent under the Convention.”Mozes, 239 F.3d at 1084 .11
Wednesday, August 27, 2014
Bowen v. Bowen, 2014 WL 2154905 (W.D.Pa.) [Northern Ireland] [Habitual Residence][Consent] [Wishes of Child] [Petition denied]
In Bowen v. Bowen, 2014 WL 2154905 (W.D.Pa.) the district court denied the Petition of Paula Mary for the return of her ten year-old child, Gregory Patrick Bowen ("Patrick"), to Northern Ireland.
Ms. Bowen, the Petitioner, was Caucasian and a citizen of Northern Ireland, and the Respondent, Mr. Bowen, was an African-American citizen of the United States. Mr. Bowen was unemployed and resided in Pittsburgh, Pennsylvania, where he received Supplemental Security Income and Patrick's welfare checks. Ms. Bowen lived off welfare and her savings in Northern Ireland. The litigants met in Pittsburgh while Ms. Bowen was working at a Pittsburgh hotel on a visa exchange program. The Bowens married on July 30, 2002, and shortly thereafter moved to Tennessee, where Patrick was born on April 10, 2003. The Bowens moved to Florida, where Mr. Bowen served jail time for cocaine possession. In November of 2005, Ms. Bowen, pregnant with the parties' next child, Chloe, moved back to Northern Ireland, taking Patrick with her. Chloe was then born. Mr. Bowen traveled to Northern Ireland and they reconciled on September 3, 2007, Ms. Bowen gave birth to their third child, Paul. Ms. Bowen testified that Mr. Bowen was abusive towards her, and that during one episode, Mr. Bowen shouted at her and grabbed her arm, such that she left Mr. Bowen, out of fear, to stay at a women's shelter for about a month. Mr. Bowen testified that he never hit or threatened to hit Ms. Bowen, and that he witnessed approximately seven (7) occurrences when Ms. Bowen hit Patrick on the head.
Around the summer of 2011, the parties reconciled. Ms. Bowen testified that while the family was together in Northern Ireland, Patrick did not experience any incidents of racism at school. Ms. Bowen also testified that Mr. Bowen exaggerated his experience with racism in Northern Ireland, and explained that she and he conspired with a mutual friend to set up an April 14, 2012 firebombing of Ms. Bowen's vehicle. After she and he
executed this plan, Mr. Bowen claimed that the firebombing was a racist attack,
when instead it was a ploy to get the insurance proceeds from Ms. Bowen's
In May of 2012, Ms. Bowen received inheritance money from her mother. Ms. Bowen used this money to buy five (5) one-way plane tickets for her, Mr. Bowen, and their three children, so that the Bowen family could relocate to the United States. Ms. Bowen had a ten-year ban on her visa to enter the United States, which she claimed was due to her overstaying her visa during her previous visit to this country. Mr. Bowen and Patrick ultimately relocated to the United States. However, Ms. Bowen testified that due to difficulties in her marriage and her visa complications, she ultimately "decided" not to relocate to the United States. Ms. Bowen contended that she never contemplated that Patrick and Mr. Bowen would move to the United States permanently and without her and the remainder of the family. Ms. Bowen expanded upon this premise in her testimony, stating that she wanted Mr. Bowen to stay in Northern Ireland until her visa situation was resolved but Mr. Bowen disagreed, and she did not protest because she was afraid of him. Mr. Bowen testified that on the day that the Bowens were all supposed to leave Northern Ireland, their travel agent informed them that Ms. Bowen's visa problems persisted. Mr. Bowen contended that he and Ms. Bowen agreed that he and Patrick would depart as scheduled for the United States, where Mr. Bowen would work to resolve Ms. Bowen's visa issues so that the family could reunite. Mr. Bowen also stated that he could not stay in Northern Ireland because his legal immigration status there had expired, and he could not obtain his necessary disability benefits.
On July 20, 2012, Mr. Bowen and Patrick left Northern Ireland for the United
States, where they moved in with Clara Jones, Mr. Bowen's ex-sister-in-law, and
her husband Ricky Jones, in Pittsburgh, Pennsylvania. After arriving in Pittsburgh, Mr. Bowen swiftly made inquiries about legal representation to resolve Ms. Bowen's visa issue. He paid $500.00 to Attorney Mark A. Goldstein and signed a July 24, 2012 representation agreement with Goldstein and Associates for immigration legal services. In November of 2012, Ms. Bowen wrote a letter to Mr. Bowen asking that he "do the right thing" and return Patrick to Northern Ireland. However, from the time of Mr. Bowen and Patrick's arrival in Pittsburgh until Mr. Bowen was served with Ms. Bowen's Verified Petition, Mr. Bowen spoke on a weekly basis with Ms. Bowen, and Mr. Bowen testified that he was under the impression that Ms. Bowen and their other children still planned to move to the United States after Ms. Bowen's visa issues were straightened out.
Mr. Bowen testified that in late May of 2013, he learned that Child Protective
Services in Northern Ireland had allegedly removed the parties' two other children
from Ms. Bowen's care and custody as a result of their youngest child's claims
that Ms. Bowen pushed him down a flight of stairs.
On May 24, 2013, Ms. Bowen filed a Verified Petition seeking the return of Patrick to Northern Ireland, Patrick's alleged habitual residence, pursuant to the Hague Convention. The Court appointed Patricia L. Dodge, an attorney, as Guardian ad Litem for Patrick, to represent his interests as a citizen of the United States in this action. On December 12, 2013, Ms. Dodge ("GL" ) filed reports as Guardian ad Litem, in which she set forth her assessment of Patrick and Patrick's interests. During they hearing, Ms. Bowen testified from Northern Ireland via video conference, and Mr. Bowen testified before the Court.
The district court found that on July 20, 2012, Mr. Bowen took Patrick with him when he relocated to Pittsburgh from Northern Ireland. Therefore, the alleged wrongful removal took place on July 20, 2012. The court noted that a child's habitual residence is "the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective." Feder, 63 F.3d at 224. This analysis "considers a child's experiences in and contacts with her surroundings, focusing on whether she developed a certain routine and acquired a sense of environmental normalcy by forming meaningful connections with the people and places she encountered in a country prior to the retention date." Karkkainen, 445 F.3d at 292. Determining a child's habitual residence is a fact-intensive analysis, and "necessarily varies with the circumstances of each case." In re Application of Adan, 437 F.3d 381, 392 (3d Cir.2006). In reaching a habitual residency determination, a court must also consider the "parents' present, shared intentions regarding their child's presence in a particular location." Tsui, 499 F.3d at 272 (citing Baxter, 423 F.3d at 369) "Feder requires that we give independent weight to [the] parents' shared intent. We have held that, in cases involving very young children, the shared intent of the parents in determining the residence of their children is of paramount importance and acclimatization is secondary.... Thus, shared parental intent that a very young child will reside in a new country, even for a limited period of time, is sufficient to establish the child's habitual residence in that country. We give somewhat less weight to shared parental intent in cases involving older children ... who have reached an age where they are capable of becoming "firmly rooted" in a new country. In such cases, our attention generally turns first to the child's perspective, not the parents' intent. But shared parental intent remains relevant to habitual residence in all cases under the Hague Convention.... When the parents share an intent as to the child's habitual residence, it must be given some weight. Were a court to exclude shared parental intent entirely from the habitual residence inquiry, and instead focus solely on a child's contacts and experiences, it would fail to consider whether a parent is acting unilaterally to alter what was jointly intended or agreed upon. Karkkainen, 445 F.3d at 296.
Up until Mr. Bowen relocated with Patrick to the United States on July 20, 2012
when Patrick was nine years old, Patrick had lived in Northern Ireland since 2005,
when Ms. Bowen and Patrick moved there from Florida. Patrick had formed meaningful relationships with his mother's Northern Ireland family, was enrolled in school in Northern Ireland, and participated in activities at the Bosco Youth Club in Newry. Until his departure for the United States in 2012, Patrick had lived in Northern
Ireland for the majority of his life, and, from Mr. Bowen's 2006 arrival there, Patrick and his parents had a marked degree of settled purpose in Northern Ireland. While parents' shared intent is not dispositive in wrongful removal or retention cases involving older children, Mr. and Ms. Bowen had a shared intent, up until Patrick finished out the school year at St. Patrick's Primary School in Newry, and left for the United States with Mr. Bowen, that Patrick would reside in Northern Ireland. It followed that Northern Ireland was Patrick's habitual residence immediately prior to his July 20, 2012 departure for the United States. Mr. Bowen did not dispute that Ms. Bowen had rights of joint custody under Northern Ireland law. Mr. Bowen relocated with Patrick to the United States and Ms. Bowen alleged that Mr. Bowen was keeping Patrick in the United States in a unilateral attempt to establish a new residence for Patrick. Mr. Bowen acted in violation of Ms. Bowen's rights of custody under Northern Ireland law. The court also found that Ms. Bowen was exercising her custody rights at the time of Patrick's alleged removal. The Court found that Ms. Bowen had proven by a preponderance of the evidence that Patrick was wrongfully removed within the meaning of the Hague Convention.
In her Verified Petition, Ms. Bowen conceded that "[i]t was the intention of
the Petitioner and the Respondent, along with their three (3) children (including
Patrick) to relocate to the United States, and one-way plane tickets were purchased for all five (5) family members." However, Ms. Bowen claimed that because her visa problem was not solved by the parties' July 20, 2012 anticipated departure date, and because of "difficulties in the marriage," "[Ms. Bowen] ultimately decided not to relocate to the United States." The record reflected that Ms. Bowen and Mr. Bowen did, as Mr. Bowen represented, come to an agreement that Mr. Bowen would go ahead and relocate to the United States with Patrick on July 20, 2012, work to resolve Ms. Bowen's visa issues, and that Ms. Bowen would bring the remainder of the family to the United States when that resolution was reached. Consistent with this plan of action was a July 24, 2012 Representation Agreement that Mr. Bowen entered into with a Pittsburgh attorney four (4) days after Mr. Bowen's arrival in the United States. As for Ms. Bowen, instead of altogether cancelling her plan to join Mr. Bowen and Patrick in the United States, Ms. Bowen testified that she postponed the departure date of her one-way plane ticket to September 2012, and did the same for her other children, Chloe and Paul. While these tickets eventually went unused due to the continuing ban on Ms. Bowen's travel to this country, Ms. Bowen's choice to postpone her one-way departure to the United States rather than outright cancel her family's relocation plans strongly demonstrated the reality that the Bowens had come to an agreement that their family would permanently relocate to the United States, with Ms. Bowen's visa ban only temporarily putting a wrench in the family's relocation plans until Mr. Bowen could resolve that visa problem, state-side. Ms. Bowen chose to reschedule all of their one-way tickets for two months later. The Court found that Ms. Bowen consented to Patrick's departure with Mr. Bowen, and the scope of this consent was that Patrick would depart for the United States with his father, as part of the Bowens' ultimate plan to relocate to and unify their family in the United States.
The court noted that Article 13(a) of the Hague Convention sets forth the defenses of consent and acquiescence, when it provides that even if the court finds that the child has been wrongfully removed or retained, the court is not required to order the return of the child if the respondent establishes that "the person ... having
the care of the person of the child ... had consented to or subsequently
acquiesced in the removal or retention." Hague Convention art. 13(a)."The consent defense involves the petitioner's conduct prior to the contested removal or retention, while acquiescence addresses whether the petitioner subsequently agreed to or accepted the removal or retention." Baxter, 423 F.3d at 371. The Court found that Ms.
Bowen's actions demonstrated not only her consent to Patrick's removal, but "a
consistent attitude of acquiescence over a significant period of time."
The Court concluded that there was insufficient record evidence for the Court to conclude that the return of the child to Northern Ireland would "put[ ] the child in imminent danger," nor did the record reveal any "serious abuse or neglect, or extraordinary emotional dependence, when the court in [Northern Ireland], for whatever reason, may be incapable or unwilling to give the child adequate protection."See Baxter, 423 F.3d at 373.
The Court noted that the GL' s reports on Patrick shed light on Patrick's views on returning to Northern Ireland, and demonstrated that Patrick has attained a degree of maturity at which it was appropriate for this Court to take account of those views. Contrary to his father's testimony, Patrick explained that "he may have seen a little bit [of racism] himself at school but it did not appear to be a significant issue for him." According to the GL, during her first two visits with Patrick, he actually believed his mother and siblings were coming to the United States in 2014, and "stated that he d[id] not want to live in Northern Ireland, although he would like to visit it again." After the December 2013 evidentiary hearing, the GL visited Patrick again. Patrick was made aware that his mother and siblings would not be relocating to the United States. It was the GL' s conclusion after her third visit with Patrick that he was sad about this development, and sad about the separation of his family. Nevertheless, the GL stated that Patrick continued to express his desire to stay in the United States. The GL concluded that Patrick, at 10, "appears to be a young boy of at least average intelligence and maturity," who "understands that his parents are not likely to reconcile and that his mother and siblings are not coming to the United States to live," and acknowledges that he is sad about the disunion of his family but "[r]egardless of these feelings, however, he remains certain that he wants to stay in the United States, a relatively mature stance for a 10-year-old who has not seen his mother or siblings for over a year." The GL found that Patrick's reasons for not wanting to return to Northern Ireland were "fairly well-grounded in the world of a ten year-old, i.e., that he was born in the United States, that he would be sad if he had to return to Ireland, that he feels closer to his father than his mother and that the racial mix of the population is different in his present environment than it is in Ireland." The GL concluded that it did not appear that any undue influence was imposed on Patrick in order to shape his desire to stay in this country, and importantly, Patrick has never wavered, either prior to or after learning that his mother was not moving to the United States, in his position from the outset of this litigation that he wants to remain in the United States. Importantly, the GL noted that Patrick "appears to have considered the short and long term impact of leaving the country of his birth and living with his mother and not his father."
The Court found that the GL' s conclusions about Patrick's degree of maturity
was consistent with the record as a whole. The district court noted that in its seminal decision on the "wishes of the child" defense, the Tsui court cautioned that a court should not find that such a defense has been established when "it was the passage of time during the years of wrongful retention and litigation of this case that created [the child]'s desire to remain in Pittsburgh," because if the court applied the defense in such a case, "it would encourage parents to wrongfully retain a child for as long as possible." Tsui, 499 F.3d at 280. However, here, the record was devoid of any indication that the passage of time generated Patrick's desire to remain in the country of his birth, or that the passage of time was going to change or is going to change Patrick's desire to remain in the country of his birth. Patrick's wish to remain in the United States, coupled with Ms. Bowen's actions demonstrating her consent with Patrick's move to the United States with Mr. Bowen, and with Ms. Bowen's acquiescence, at least until her letter to Mr. Bowen in November of 2012, revealed that while Ms. Bowen had established her prima facie case of wrongful removal, Mr. Bowen has proven (when considered separately, and as to the last, in conjunction with one another) the affirmative defenses of consent, acquiescence, and the "wishes of the child," which counseled that the Court deny Ms. Bowen's Verified Petition.
Hirst v Tiberhagien, 2014 WL 3687425 (D.S.C.)[United Kingdom] [Necessary Expenses] [ Motion to Reconsider Denied]
In Hirst v Tiberhagien, 2014 WL 3687425 (D.S.C.) Respondent Xavier Emanuel Guillaume Salvatore Tiberghien's moved to reconsider an order of the district court which granted in part and denied in part a motion by Petitioner Amor Paulina Hirst for necessary expenses, and awarded Petitioner legal fees in the amount of $30,577.05 and nonlegal expenses in the amount of $6,640.30, for a total of $37,217.35. Respondent's motion to reconsider was denied.
Petitioner and Respondent were married in 1996, in South Africa. and had two (2) children, M.S.T. and A .D.T., who were born in Johannesburg, South Africa and were citizens of South Africa. Petitioner and Respondent lived together as a family in South Africa until they separated in May 2007 and divorced on July 25, 2008. The parties entered into a Parenting Plan and Settlement Agreement which was adopted by a South Africa High Court. It provided that Petitioner and Respondent would have joint parental responsibility for the children and established that the children would reside with Petitioner, but should have extensive contact with Respondent. However, the children lived with Respondent from September 2008 until February 2011
due to Petitioner being unable to control the children's behavior, specifically M.S.T.'s attempts to run away. In February 2011, Respondent relocated to Greer, South Carolina and Petitioner and Respondent agreed that the children would live with Petitioner until Respondent was able to arrange for them to relocate to the United States. On October 15, 2011, Petitioner married Jamie Hirst, a citizen of the United Kingdom, and Petitioner and the children relocated from South Africa to Manchester, England on November 5, 2011. The children resided with Petitioner and only saw Respondent during visits from February 2011 until January 7, 2013. Petitioner filed this action against Respondent and alleged that Respondent wrongfully retained the children in the United States without Petitioner's consent starting on January 7, 2013. On April 30, 2013, the court granted the Petition and ordered the return of the children to Petitioner. The children returned to the United Kingdom on May 4, 2013. Petitioner filed a motion for necessary expenses on May 17, 2013.
On July 5, 2013, Petitioner contacted Respondent to make arrangements to send the children back to the United States to live with Respondent due to the children's chronic behavioral problems, specifically M.S.T.'s running away from home. The children had been in Respondent's physical custody in Greer, South Carolina since July 30, 2013. Petitioner did not dispute Respondent's claim that the cost of raising the children would be his sole responsibility.
The district court pointed out that under Rule 59(e), a court may "alter or amend the judgment if the movant shows either (1) an intervening change in the controlling law, (2) new evidence that was not available at trial, or (3) that there has been a clear error of law or a manifest injustice." The factors governing the court's discretion in awarding fees and expenses in international child return cases are based upon the same general factors governing the court's discretion to award attorney's fees to prevailing parties. Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir.2013). The Federal Rules of Civil Procedure codify a presumption that prevailing parties are entitled to costs. Marx v. Gen.Revenue Corp., 133 S.Ct. 1166, 1172 (2013). However, upon a finding of the losing party's good faith, a court may deny an award of costs when there would be an element of injustice. Cherry v. Champion Int'l Corp., 186 F.3d 442, 446 (4th Cir.1999). In finding an element of injustice, a court should consider five elements (1) misconduct by the prevailing party, (2) the unsuccessful party's inability to pay the costs, (3) the excessiveness of the costs in a particular case, (4) the limited values of the prevailing party's victory, or (5) the closeness and difficulty of the issues decided. Ellis v. Grant Thornton LLP, 434 Fed. App'x 232, 235 (4th Cir.2011). As to the standard for awards of fees and expenses, ICARA provides a court "ordering the return of a child pursuant to an action brought under section 11603 of this title shall order respondent to pay necessary expenses incurred by or on behalf of the petitioner ... unless the respondent establishes that such order would be clearly inappropriate."42 U.S.C. § 11607(b)(3). While ICARA shifts the burden to the respondent to show why an award of fees, costs, and expenses would be "clearly inappropriate," it also provides the district court with "broad discretion in its effort to comply with the Hague Convention consistently with its own laws and standards. Exercising this discretion, courts have reduced awards based upon a respondent's financial circumstances. See Distler v. Distler, 26 F.Supp.2d 723, 729 (D.N.J.1998); Berendsen v. Nichols, 938 F.Supp. 737, 739 (D.Kan.1996) (reducing award by 15% in light of respondent's financial condition and because awarding full fee would unduly limit respondent's ability to support his children); Rydder v. Rydder, 49 F.3d 369, 373-74 (8th Cir.1995) (reducing fee award by 46% due to respondent's "straitened financial circumstances"); Clarke v. Clarke, C.A. No. 08-CV-690, 2008 WL 5191682, at *3-4 (E.D.Pa. Dec. 11, 2008) (award of fees and costs to father in the amount sought [$163,505.89] was "clearly inappropriate" given respondent's "dire" financial circumstances and court awarded a reduced amount [$77,209.77] after considering respondent's "financial circumstance, and, to some extent, her motivation in creating the need for a Hague Convention petition ... in the first place" and "balancing between what was necessary for petitioner and what is appropriate to assess against respondent"); Willing v. Purtill, Civ. No. 07-1618-AA, 2008 WL 299073, at *1 (D.Or. Jan. 31, 2008) (reducing fee award by 15% due to respondent's financial circumstances, particularly his unemployment); Silverman v. Silverman, No. Civ. 00-2274 JRT, 2004 WL 2066778, at *4 (D.Minn. Aug.26, 2004) (eliminating fee where respondent had no ability to pay, and prevailing petitioner did not abide by prior court orders, had failed to support children financially in the past, and had been physically and mentally abusive to respondent).
Similarly, circuit courts have provided a non-exhaustive set of factors for district courts to consider in exercising their discretion and equitable consideration of claims for fees and expenses. One relevant equitable factor is the reasonable belief that the actions taken are consistent with the law of the country of habitual residency at the time of the child's removal. Ozaltin, 708 F.3d at 375. The court can take this reasonable belief into consideration when determining the amount of the fee award. At least two appellate courts have also recognized that another equitable factor is the impact of the fee award on the ability of the defendant- parent to care for the child. Whallon, 356 F.3d at 139; Rydder, 49 F.3d at 373-74. In Rydder, the Eighth Circuit held that because of a losing respondent's straitened financial circumstances, the award of fees and legal costs was so excessive as to constitute an abuse of discretion. Rydder, 49 F .3d at 373-74. Several district courts have not simply reduced awards of costs in light of a losing respondent's inability to pay, but have denied to award costs at all on the ground that any award would be inappropriate in such circumstances. Montero-Garcia v. Montero, 2013 WL 6048992, at *4-6 (W.D.N.C. Nov. 14, 2013) (declining to award fees to petitioner, because doing so would convert counsel's pro bono work into debt); Lyon v. Moreland-Lyon, 2012 WL 5384558, at *3 (D.Kan. Nov. 1, 2012) (finding that given respondent's financial position, the awarding of any of petitioner's attorneys' fees against the respondent would be clearly inappropriate); Vale v. Avila, 2008 WL 5273677, at *2 (C .D. Ill.2008) (reasoning an award of any attorney's fees is clearly inappropriate because of respondent's inability to pay where respondent "has limited financial means and has found little gainful employment in the United States," and thus awarding the petitioner only out of pocket costs).
In contrast, where the defendant "is not blameless for the current state of affairs," the Tenth Circuit has held that an award of fees and expenses is not "clearly inappropriate." West, 735 F.3d at 933. An award of fees and costs is appropriate when the case falls squarely within the provisions of the Hague Convention. Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir.2010) (finding that respondent owing substantial fees to his own attorney or the prevailing petitioner's attorney provided their services pro bono does not make an award of petitioner's fees "clearly inappropriate."), but see Vale, 2008 WL 5273677, at *2 (stating that although the fact that plaintiff was represented under a pro bono arrangement does not, by itself, render an award of attorney fees clearly inappropriate, it is a factor that can reduce an award.). A reduction in a fee award should not be used to remedy a winning petitioner's past violations of child support obligations. See Whallon, 356 F.3d at 140 (declining "respondent's belated invitation to use a fee award determination arising out of Hague Convention proceedings as a means of rectifying past violations of child support obligations.").
In support of his motion to reconsider, Respondent relied on events that occurred after the court issued the December Order. He alleged that Petitioner
contacted him to take the children on July 5, 2013, and the children have lived with him since July 30, 2013. Respondent alleged that Petitioner demanded that he (1)
pay $4,200.00 to have a custody agreement drafted, (2) pay Petitioner L2,000.00 in British Sterling pounds (approximately $3,000.00) upon her signing the agreement, and (3) purchase round trip tickets costing $5,200.00. Respondent further alleged that he was unable to pay the necessary expenses awarded to Petitioner in the December Order because he has only been able to work fifteen (15) to twenty (20) hours per week since he needed to care for his children his job only paid $9.00 per hour, and he owed legal debt incurred from the ICARA action, which consisted of $12,700.00 of debt incurred when he obtained custody of his children from Petitioner, and $1,000.00 of debt incurred when Petitioner failed to send the children's clothes in July 2013. In addition, Respondent alleged misconduct by Petitioner for denying him the right repeatedly to talk to the children when they were living with her. Respondent submitted the aforementioned facts as evidence that enforcing the December Order would result in a manifest injustice to him since he was carrying the entire financial burden of supporting the children and paying for litigation rendered unnecessary by Petitioner's actions merely eight (8) weeks after the children returned to the United Kingdom.
In her response in opposition to the motion to reconsider, Petitioner asserted that Respondent has misrepresented his financial status to the court and provided numerous exhibits to establish that Respondent is a successful businessman. Upon review, the court did not find that the award of legal fees and non-legal expenses to Petitioner was manifestly unjust based on the information presented by Respondent. Respondent did not submit any documentation (i.e., bank statements, federal tax returns, W-2s) to corroborate that his inability to pay Petitioner expenses is due to financial difficulties. Furthermore, to grant Respondent's motion to reconsider, the court would have to ignore the December Order, in which the court found that Respondent wrongfully detained the children initially. The court noted that ICARA's shifting of the prevailing party's costs to the other party serves two (2) purposes: (1) "to restore the applicant to the financial position he or she would have been in had there been no removal or retention" and (2) "to deter such removal or retention." The court was bound by the presumption that Petitioner as the prevailing party was entitled to the award of attorney's fees and non-legal expenses because Respondent's evidence in support of his claim of financial difficulties did not sufficiently overcome Petitioner's evidence refuting Respondent's claim that he was unable to pay. Accordingly, the court was persuaded that shifting the costs of the ICARA action to Respondent would not create a manifest injustice or be clearly inappropriate.
Panteleris v Panteleris, 2014 WL 3053211 (N.D.Ohio) [Australia] [Habitual Residence] [Rights of Custody] [Petition granted]
In Panteleris v Panteleris, 2014 WL 3053211 (N.D.Ohio) the district court granted the petition of Anthimos Panteleris for return of the children of Anthimos and Aalison Panteleris to Australia. Petitioner Anthimos, was a citizen and resident of Australia. In 2005, while in the United States, Anthimos met and married Respondent Aalison, a United States citizen. Their first child B.P., was born in the United States in November 2006. In March 2007 the family moved to Australia.Their second child, H.P., was born in Australia in November 2008. Their third child, Z.P., was born in Australia in December 2011. All three children were citizens of the United States and Australia.
The Panteleris family lived in Australia for five years. In March 2012 the Panteleris family traveled to the United States. At that time, the children were ages five, three, and four months. During the Panteleris family's time in Australia, Aalison was the primarily breadwinner and Anthimos was the primary caregiver of the children. In March 2012, the Panteleris family arrived in Hawaii, where they remained for approximately four weeks.In April 2012, the Panteleris family came to Salem, Ohio, Aalison's hometown. The couple entered into a 12-month lease on an apartment in the Northern District of Ohio. Anthimos described the Panteleris family's trip to the United States as "an extended, yearlong holiday in the United States, [with he and Aalison] agreeing that the entire family would stay for 6 months, and that, if necessary, Anthimos would then return to Australia to supplement the family's income while the rest of the family remained in the United States for an additional 6 months." At the Hearing, Anthimos testified that the reason for the trip was to allow Aalison to spend time with her family. He explained that, apart from a month-long visit to Ohio in 2008 after the death of her father, Aalison had not seen her family since she moved to Australia. Aalison, for her part, testified that the Panteleris family left Australia with the intention of moving to the United States.
In Ohio, as in Australia, Aalison worked and Anthimos stayed home and cared for the children. Aalison separated from her job in November 2012. Faced with depleted resources, Anthimos returned to Australia to obtain work because he was unable to work in the United States. Anthimos asserted that the couple agreed that, at the end of the year-long holiday in Ohio, Aalison and the children would return to Australia.
On December 2, 2012, Anthimos began working after arriving in Australia but was
laid off shortly thereafter. He stated that he and Aalison agreed the family would delay the return to Australia until he secured new employment. Anthimos began working again in May 2013, at which time he stated that he "contacted [Aalison] to let her know about the job and that he was ready, willing, and able to move the entire family back to their home in Australia." He asserted that Aalison responded that she and the children would not be returning, and that she had met someone else.
On February 28, 2014, Anthimos filed a verified complaint and petition.The district court pointed out that Anthimos stated that he was exercising custody rights under Australian law. Section 111B(4)(a) of the Australian Family Law Act provides in relevant part that "[f]or the purposes of the [ Hague] Convention, each of the parents of a child should be regarded as having rights of custody in respect of the child...." Anthimos submited that he acquired parental responsibility for each of his children by operation of law pursuant to Sections 61 C (each of the parents of a child who is not eighteen has parental responsibility for the child); 69P (presumption of husband's parentage of wife's child when a child is born to a woman while she is married); and 69R (presumption of parentage to a person named as a parent in the child's birth certificate) of the Family Law Act. He further asserted that "[a]t the time of the Children's wrongful retention," he "was exercising his custody rights and maintaining his relationship with all three of the Children within the meaning of Articles Three and Five of the Hague Convention." The Court found that Anthimos had established by a preponderance of the evidence that he had custody rights at the time of the alleged wrongful retention, in May 2013. Moreover, Anthimos had shown by a preponderance of the evidence that he was exercising those rights at the time of the wrongful retention. Anthimos regularly communicated with his children prior to May 2013. They spoke on the telephone and they used Skype on a regular basis. The Court found that Anthimos had shown, by a preponderance of the evidence, that he had custody rights and was validly exercising those rights at the time of the alleged wrongful retention.
The Court observed that Anthimos also had the burden of proving by a preponderance of the evidence that Aalison retained the children away from their habitual residence. See Friedrich I, 983 F.2d at 1400. When analyzing this, courts look to the time just prior to the alleged wrongful retention, in this case, May 2013. In Friedrich I, the Sixth Circuit set out five principles a Court considers in determining the
habitual residence: First, habitual residence should not be determined through the "technical" rules governing legal residence or common law domicile. Instead, courts should look closely at the 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. 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, 507 F.3d at 989 (citing Friedrich I ) the Sixth Circuit borrowed from the Third Circuit's decision in Feder to build upon the rule established in Friedrich I, to hold that "a child's habitual residence is the nation where [ ] the child has been present long enough to allow acclimatization, and where this presence has a 'degree of settled purpose from the child's perspective.'"Id. (citing Feder, 63 F.3d at 224 ). The Robert Court explicitly rejected the Ninth Circuit's standard established in Mozes v. Mozes, 239 F.3d 1067 (2001) that considers the subjective intent of the parents. Robert, 507 F.3d at 990-992. In Jenkins, the Sixth Circuit described several factors it adopted from the Third Circuit's opinion in Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir.2006) to consider when determining a child's habitual residence: [T]he Third Circuit held that academic activities are among the most central ... in a child's life and therefore highly suggestive of acclimatization. The court also noted that social engagements, participation in sports programs and excursions, and meaningful connections with the people and places in the child's [ ] country all point to the child being acclimatized. Additionally, the court held that the fact that [the child] brought more personal belongings with her than usual, in anticipation that she would remain [in the United States] was evidence of a settled purpose to reside in the United States. Jenkins, 569 F.3d at 556 (quoting Robert, 507 F.3d at 996).
Anthimos argued that "[b]efore the events that gave rise to the Petition occurred, Petitioner, Respondent, and their Children lived together in Australia for five years. The oldest of the children was enrolled in kindergarten in Australia, and all three Children actively participated in various activities offered by Australian life. “ Anthimos testified that the two older children went to parks daily, participated in play groups, visited the aquarium and the zoo, the botanical gardens, and various state and national parks. He submitted photographs of B.P. and H.P. playing at parks and playing with goats the Panteleris family had for a time. The eldest child, B.P., was enrolled in "kindergarten," which, in Australia, appears to be similar to nursery school in the United States. He was also part of two play groups, one for over a year. Anthimos would take the second child, H.P., to B.P.'s school for parent volunteer days. H.P. had moderate to severe autism. He was diagnosed in Australia, and had been seeing doctors there for referrals to specialists, although he had not yet commenced treatment there. The youngest child, Z.P., was four months old when the family left Australia, and was present during the family activities or otherwise placed with family or friends.
Anthimos testified that he has five brothers and sisters living in the Melbourne or Sydney area. He further testified that, when he was in the United States, the children communicated with family members via Skype on a weekly basis. When the Panteleris family was living in Australia, they lived for a year with Anthimos's grandmother, in her home, and spent time interacting with family and friends. He submitted photographs of B.P. and H.P. interacting with friends in Australia. Aalison presented testimony that Anthimos's family in Australia was not close, and that the children did not see them much. She agreed, however, that the children saw family members. She also agreed that the children had experiences in Australia and that B.P. has memories of Australia. In support of her assertion that the children's habitual residence was in Ohio, Aalison referred to the boys' schooling and H.P.'s therapy-she did not delineate, however, between the time period before the alleged wrongful retention, in May 2013, and the time period after the alleged wrongful retention until the present.
The Court held that it could not accept evidence of schooling and therapy that occurred after May 2013 to establish habitual residence. See Friedrich I, 983 F.2d at 1401 (stating "habitual residence pertains to customary residence prior to removal. The
court must look back in time, not forward."). The record established that in May
2013 the children had been living in Ohio for approximately thirteen months.
Aalison and Anthimos testified that, during the relevant time period in Ohio, B.P.
was enrolled in kindergarten and H.P. was enrolled in pre-school, and underwent
therapy that the school provided. There was testimony that the children had a
relationship with Aalison's sister and mother, whom both lived nearby. The Court found by a preponderance of the evidence that, from the perspective the children, the
habitual residence of the children was in Australia. and that Aalison wrongfully retained the children in the United States.
Anthimos testified that Aalison advised she would not return the children in May 2013. He filed the petition less than one year later, on February 28, 2014. Aalison contended that Anthimos knew that she was not returning to Australia with the children when he left the United States in December 2012. In May 2013 Aalison advised the children would not be returning to Australia. Aalison alternatively argues that she told Anthimos that their marriage was over "at the end of" February or March, 2013, and that he knew at that time that the children were not coming back to Australia. Telling Anthimos the marriage was over, however, did not necessarily constitute a refusal to return the children. Aalison could not establish by a preponderance of the evidence that the petition was untimely. The Court found that the date of the wrongful retention was May 2013, and the petition was timely because it was filed February 28, 2014, less than one year from the date of wrongful retention. Because the Court found that the petition was timely, evidence from the last two years suggesting that the children were well settled in the United States was inapplicable.
Aalison submitted that Anthimos consented or acquiesced to the children living in the United States. Anthimos consented to the children living in the United States from the time of the Panteleris family's arrival in early 2012 until May 2013. Consenting to a year-long visit, however, does not equal consenting or acquiescing to the children living in the United States permanently. The record supported Anthimos's testimony that shortly after he was told, in May 2013, that the children would not be returning to Australia, he began proceedings with International Social Services in Australia to seek a return of the children.
Aalison argued that Anthimos consented to the children living in the United
States permanently when the family arrived in early 2012. The Court found that Aalison had not shown by a preponderance of the evidence that Anthimos consented or acquiesced in the retention of the children in Ohio.
Aalison argued that there was a grave risk that returning the children would
expose them to physical or psychological harm. See Hague Convention, Article 13b.
In support, Aalison presented testimony by a neighbor, Josiah Deeter. Deeter
testified that when Anthimos was alone with the children during the day, H.P., who
was described by more than one witness as a "runner," would bolt out of the house.
Deeter testified that she had seen H.P. run out into the street, and that she had
found him playing inside of the cars belonging to her and her husband that were
parked in her driveway. Aalison's sister, Aarika Denton, testified that she once
saw Anthimos pull H.P. by the hair to "pull him back" on one occasion when H.P.
was walking by, a prelude to his bolting outside. She testified that H.P. "cried
out in pain" but that there was no bleeding. She also testified that she would
sometimes go to the house and find the children "running everywhere" and that Z.P.
needed her diaper changed. Denton testified that she did not think Anthimos was
able to give the children the amount of attention they needed. The Court found that there was no testimony demonstrating a grave risk to the children and that Aalison had not shown, by clear and convincing evidence, that there was a grave risk of harm to the children if they are returned to Anthimos in Australia.
Aguilera v. De Lara, Not Reported in F.Supp.2d, 2014 WL 3427548 (D.Ariz.)[Mexico] [Grave Risk of Harm] [Petition granted]
In Aguilera v. De Lara, Not Reported in F.Supp.2d, 2014 WL 3427548 (D.Ariz.)
Petitioner Alger Ivan Rodriguez Aguilera filed a "Petition for Return of Child under the Hague Convention." Repondent Gabriela Samaniego De Lara opposed the petition. Petitioner and Respondent were the parents of a nine-year-old daughter, "I.R.," who was born in Aguascalientes, Mexico in 2004. Petitioner and Respondent were not
married at the time, but began living together in Aguascalientes after I.R. was born. Respondent and I.R. moved out of the home in 2006, and, after a period of reconciliation, moved out again in 2008. Respondent continued to live in Aguascalientes with I.R. until July of 2013. The Petitioner maintained a relationship with I.R. Between 2008 and 2013, I.R. attended a private school in Aguascalientes, had medical insurance, was involved with numerous family members on both sides, and had friends. Using a tourist visa, Respondent left Aguascalientes with I.R. on July 5, 2013, telling Petitioner that she and I.R. would visit Respondent's mother in Arizona for one month and would then return. After arriving in Arizona, Respondent informed Petitioner that she and I.R. would not return.
Counsel for Petitioner and Respondent agreed that I.R. was habitually resident in Mexico immediately before her removal and that Petitioner had custody rights under Mexican law. Petitioner's verified petition and supporting affidavit made a sufficient showing that Petitioner was exercising his custody rights at the time of removal. Given these established facts, Respondent's removal of I.R. was "wrongful" within the meaning of Article 3 of the Hague Convention and the Court had to order I.R.'s return to Mexico unless Respondent has established one or more of the exceptions.
The district court found that Petitioner was exercising sufficient parental rights to satisfy the requirements of the Convention. After Respondent and I.R. moved out of his home in 2008, Petitioner continued to see I.R. regularly, took her to his parents' home, movies, parks, and out to eat, picked her up from school on occasion, accompanied Respondent and I.R. to the child's doctor appointments, provided medical insurance for I.R., and provided at least some additional financial support. These activities satisfied the custody requirement of the Hague Convention. This exception, therefore, did not preclude return of I.R. to Mexico.
Respondent presented evidence that Petitioner struck her on five different occasions. She did not testify that medical treatment was required on these occasions. Respondent also testified that Petitioner struck her father in the mouth during a disagreement over whether I.R. should spend time with Petitioner. Respondent testified that I.R. was present when her grandfather was struck, and the evidence suggested that I.R. was present on at least one occasion when Petitioner struck Respondent. Respondent testified that three of the assaults on her occurred before she and Petitioner separated, which would have been in 2008 or earlier. Two assaults apparently occurred after their separation. Nor could the Court determine when the assault occurred on Respondent's father. Given the narrowness of this
exception, and for several factual reasons, the Court could not conclude that Petitioner's assaults on Respondent and her father satisfied the grave risk requirement. The assaults were directed at Respondent and another adult, not I.R. In addition, at least some of the assaults, and perhaps all, occurred several years ago. The Ninth Circuit has instructed that the focus must be on the present-whether a grave risk will exist if the child is returned now. Goudin, 415 F.3d at 1036-37. Moreover, Petitioner was not asking to be granted physical custody of I.R. He made clear at the hearing that he believed Respondent was a good mother and should continue to have full-time custody of I.R. Petitioner simply sought to preserve his rights to have a relationship with I.R. Thus, a return of I.R. to Mexico need not result in her being placed in Petitioner's physical custody.
Respondent and I.R. testified that Petitioner slapped I.R. on one or more occasions and twisted her arm when he was angry. Respondent and I.R. did not testify that these actions caused serious physical injury or required medical attention. Nor did Respondent or I.R. explain whether these actions were disciplinary in nature or simple assaults. Petitioner's actions toward I.R. clearly were relevant to the "grave risk" inquiry. The question was whether slapping a child or twisting her arm shows a grave risk of physical or psychological harm. The Ninth Circuit and other authorities have instructed that the risk of harm must be grave, not merely serious. In addition, Petitioner did not seek custody of I.R. This fact mitigated, to some extent, any risk that might be presented to I.R. by Petitioner's past tendency to slap or twist arms. Courts have also recognized that many countries of habitual residence have the capacity to protect children, including Mexico. For these reasons, the Court concluded that this evidence did not meet the high threshold of clear and convincing evidence that a return of I.R. to Mexico would present a grave risk of physical or psychological harm.
Respondent testified that she has bonded with I.R. and that separating them would seriously damage I.R. In addition, Respondent presented the testimony of Dr.
Leonard D. Goodstein, a consulting psychologist, that separation of I.R. from Respondent would present a grave risk of psychological harm to I.R. The Court noted that several courts have held that separation of a parent and child, although traumatic, is not itself sufficient to satisfy a grave risk exception. See, e.g., Charalambous v. Charalambous, 627 F.3d 462, 469-70 (1st Cir.2010);England v. England, 234 F.3d 268, 270-72 (5th Cir.2000) ; Nunez-Escudero, 58 F.3d at 377. The Court agreed with these decisions. Separation from an abducting parent is a likely consequence in many Hague Convention cases. If the difficulty caused by such separation were deemed sufficient to satisfy the grave risk exception, the purposes of the Convention would be largely frustrated. Parents could carry their children across international borders to obtain an advantage in custody disputes and then defeat return under the Convention by virtue of the fact that return would be traumatic for the child. The Court could not conclude that such a result was intended by the grave risk exception.
Respondent testified at the hearing that she would not return to Mexico because she did not want to subject herself to the abusive and manipulative actions of Petitioner. The Court asked Dr. Goodstein whether a return of I.R. to Mexico with Respondent would present a grave risk of psychological harm, and he was unable to say that it would. Respondent could choose to separate from her daughter and cause the trauma she claimed was substantial, or she could return to Mexico and retain physical custody of I.R. (Petitioner testified that he did not seek to obtain physical custody of I.R.). The Court had difficulty concluding that an abducting parent could invoke the grave risk exception simply by refusing to return to the country of habitual residence with the child. Respondent failed to show by clear and convincing evidence that an order that I.R. be returned presented a grave risk of physical or psychological harm.
It was evident during I.R.'s testimony at the hearing that she was bright, capable, and able to express her views. I.R. stated unequivocally that she did not wish to return to Mexico. When asked why she said: "I don't like seeing my mom sad and I don't want to be sad because of that." When asked leading questions as to
whether her father frightened her and whether that was a reason she did not want to return to Mexico, she said yes. When then asked again how she would feel about returning to Mexico, she said: "Really sad and frustrated because my mom would be really sad and I don't want to not be myself. I like being myself." I.R. also testified that she enjoyed her new school, is doing well, and has many friends, but she did not give these as reasons when asked why she did not want to return to Mexico. The Court concluded that I.R. had not reached the age of maturity sufficient for the Court to rely upon her objection in its ruling. Her primary reason for not wanting to return to Mexico-that it would make her mother sad-appeared to be more a reflection of Respondent's feelings than I.R.'s. It also appeared clear to the Court that I.R. had been influenced in her views by her mother and her mother's parents and other family members. The Court concluded that Respondent had not shown by a preponderance of the evidence that I.R.'s views were sufficiently independent and based on sufficient age and maturity for the Court to given them deference. The Petition for Return was granted.
San Martin v. Moquillaza, Not Reported in F.Supp.2d, 2014 WL 3924646 (E.D.Tex.) [Peru] [Habitual Residence] [Petition granted]
In San Martin v. Moquillaza, Not Reported in F.Supp.2d, 2014 WL 3924646 (E.D.Tex.) on July 7, 2014, Petitioner Ana Maria Veronika Mori San Martin filed an action seeking the return of her nine-year-old and twelve-year-old daughters, both minors ("A.C.C.M.M. and A.A.M.M."), to Peru. An attorney ad litem was appointed to interview the children, and be present during the in camera interview of the children with the Court.
A.C.C.M.M. was born in Peru in 2002, when her mother, Petitioner, was 15
years-old and her father, Respondent, was 22 years-old. In 2005, A.A.M.M. was
born in Peru. Petitioner and Respondent are the biological parents of both
children. Petitioner, Respondent, and the children lived in the same familial
home in Comos, Lima, Peru, until October of 2008, when Respondent left Peru and
moved to the United States for work. He returned to Peru in March of 2009, and
Petitioner and Respondent were married on April 8, 2009. Respondent left Peru
again in May of 2009, and returned in December of 2009. Over the next few years,
this pattern continued with Respondent returning to Peru for approximately one month out of every year, and returning to the United States where he resided for the remaining eleven months. Petitioner and Respondent separated, but continued to act as a married couple until 2012. After their separation, the children continued living with Petitioner in the family home in Comos, Lima, Peru. The children attended school there, and lived close to their aunts and cousins. When Respondent would visit Peru, he would stay with a cousin, but would visit with the children and they would stay with him
at times. Until June of 2013, the children had never left Peru. Petitioner
testified that when Respondent originally left Peru to go to the United States, the plan was to obtain legal resident status for himself, as well as for Petitioner and the children so that the family could move to live in the United States.
In April of 2013, the parties entered into the Final and Complete Certificate of Conciliation that set forth their voluntary compromise and settlement agreement regarding custody of the children, visitation, alimony, and child support. The agreement set out a monthly amount for spousal alimony and a monthly amount of support for the children. The agreement also set out that the children are to reside in the home of their mother in Peru, allowed Respondent to visit the children in Peru as long as he did not alter the schedule of studies, and provided that the children may visit the home of their father in the United States for two weeks in the mid-year school holidays and in the summer holidays, with Respondent bearing the travel expenses and costs for the visits. Both parties signed and fingerprinted the agreement, and both agreed that the agreement was entered into voluntarily.
On June 24, 2013, Petitioner signed an Authorization for Foreign Travel of Children form for both children, which allowed them to travel with Respondent from Peru to the United States beginning on June 25, 2013, and required Respondent to
return the children to Peru on July 10, 2013. The children left Peru with
Respondent on June 27, 2013, and, as of the date of the bench trial, had not been returned to Peru. The evidence revealed that Petitioner agreed to a limited extension of the children's visit to the United States, did not agree to the children's permanent removal from Peru, and that at the end of the requested extension Respondent refused to return the children. On February 12, 2014 petitioner submitted a request to the Central Authority of Peru, and on March 3, 2014, Petitioner's Request for Return of the Children was submitted to the United States Department of State through the Peruvian Central Authority.
The district court pointed out that although not defined in the Convention, a child's habitual residence is the place one would call his customary residence. Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993) (Friedrich I). A person can have only one habitual residence .The Court must look back in time and not forward in determining a child's habitual residence. It was undisputed that the children were habitual residents of Peru before they left with their father in June of 2013. The Court found that the Peruvian Civil Code titled "Codigo de Los Ninos y Adolescentes" provides that when the parents are separated, "the custody of the children or adolescents is determined by mutual agreement between both parents, taking into consideration the child's and adolescent's opinion." Codigo de Los Ninos y
Adolescentes, art. 81. If there is no agreement, " custody shall be resolved by the specialized judge, ordering the measures required to comply with such order."
Petitioner and Respondent in this case entered into a Certificate of Conciliation, which provided that Petitioner has primary custody of the children, and grants Respondent visitation with the children in the United States. It was undisputed that Petitioner had primary custody of the children, and was exercising her custody rights at the time the children were removed. Petitioner thus, satisfied her burden to show by a
preponderance of the evidence that she had custody rights, and that the children
were removed from Peru in violation of those rights.
Respondent and his witnesses testified that Comos, a county in Lima, Peru, where the children and Petitioner resided was a beautiful, but dangerous place.
Respondent testified that when he was ten-years-old, his cousin was kidnapped and strangled near the school, which was five minutes away from the school where the
children are enrolled. Respondent testified that the drivers in Comos are negligent, and that the children witnessed a car accident in which a small child was hit and killed by a car. Respondent testified that there is a lot of criminal activity, and that on many occasions cell phones and wallets are stolen from Petitioner and other family members. Ms. Anglas testified that she feared for all children living in Comos. Ms. Ramirez testified that children are not in danger in Comos, that they live in a suburb area where they have many friends and a police officer that lives nearby. Ms. Ramirez agreed that some bad things have happened to her family members, but that they were many years ago. Respondent also testified that returning the children to Peru would be a grave risk to the children because Petitioner often drank alcohol and left the children either unattended or with another adult so that she could go to parties. Respondent testified that the children have seen their mother intoxicated to the point where she could not stand up or take care of the children. Respondent also testified that on one occasion Petitioner left A.C.C.M.M. alone in the home while she attended a party. Petitioner agreed that she had left A.C.C.M.M. in the home while she attended a party, but stated that another adult, Mr. Diaz, stayed overnight with her, and A.C.C.M.M.'s grandmother arrived in the morning to pick her up. Mr. Diaz agreed that he stayed overnight with A.C.C.M.M. on that occasion, and that he has seen Petitioner consume alcohol at parties. Respondent also testified that Petitioner hit one of the children with a belt on one occasion. Petitioner testified that she has never hit the children with a belt or spanked the children. The court found that this testimony by Respondent was
simply not enough to establish by clear and convincing evidence that the children would be in grave risk of physical or psychological harm if returned to Peru, or
that Peru cannot provide adequate protection to the children.
At the close of the parties' cases, the Court questioned both children separately in camera. The attorney ad litem was present for this questioning and given the opportunity to question her client. The Court found that it was not appropriate to take into account A.A.M.M. or A.C.C.M.M.'s view. During the in camera interview, due to the young age, immaturity, and timidity of A.A.M.M., the Court did not reach the question of whether she would prefer to live in the United States or Peru. A.C.C.M.M., twelve-years-old, testified that when she came to the United States with her father, she thought it was a vacation, but that she was thinking about staying in the United States. Of concern to the Court was that when asked where she would like to live, A.C.C.M.M. stated that she wanted to live with her father and her mother in the United States as one family in one house. A.C.C.M.M. did not appear to grasp that her mother lived in Peru, and, at least for the present time, was not coming to the United States. It was not clear that she understood the purpose of the proceedings, and that gravity of her choice to live in the United States. A.C.C.M.M.'s stated reason for wanting to live in the United States was because she liked the school here better, and it was not as dangerous as it was in Peru. The Court found that A.C.C.M.M. was confused by the circumstances producing the litigation, and did not understand the choice she was being asked to make. The Court found that neither of the children understood the proceedings and their right to state their preferences, and did not unequivocally express a desire to remain in the United States for any reason other than generalized affinity for this country after having lived here for the last year. Thus, the Court found that Respondent failed to meet his burden to establish that one or more of the affirmative defenses apply to prevent the return of the children in this case.