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.
Thursday, February 27, 2014
The District Court observed that the 'lodestar' approach is the proper method for determining the amount of reasonable attorneys' fees once a court orders the return of the child under the Hague Convention." (Citing Knigge v. Corvese, 01 Civ. 5743 (DLC), 2001 WL 883644, at *1 (S.D.N.Y. Aug. 6,2001) (quoting Distler v. Distler, 26 F. Supp. 2d 723, 727 (D.N.J. 1998). It observed that "Both [the Second Circuit] and the Supreme Court have held that the lodestar-the product of a reasonable hourly rate and the reasonable number of hours required by the case-creates a "presumptively reasonable fee." (Citing Millea v. Metro-North R. Co., 658 F.3d 154, 166 (2d Cir. 2011). The presumptively reasonable attorney's fee is calculated by setting the reasonable hourly rate and multiplying it by the hours spent on the client's matter. (Citing Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany and Albany Cnty. Bd. of Elections, 522 F.3d 182, 186 (2d Cir. 2008). "The reasonable hourly rate is the rate a paying client would be willing to pay." Id. at 190. The Court should endeavor to determine "the market rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998) (internal quotation marks omitted). The court "should ... bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively." Arbor Hill, 522 F.3d at 190. The starting point is a determination of whether the proposed hourly rate is reasonable in this district for the type of services and work. Id. In setting the reasonable hourly rate, Arbor Hill approves the use of the twelve Johnson factors cited in Arbor Hill and several related considerations: "the complexity and difficulty of the case, the available expertise and
capacity of the client's other counsel (if any), the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), the timing demands of the case, whether an attorney might have an interest (independent of that of his client) in achieving the ends of the litigation or might initiate the representation himself, whether an attorney might have initially acted pro bono (such that a client might be aware that the attorney expected low or non-existent remuneration), and other returns (such as reputation, etc.) that an attorney might expect from the representation." rd. at 184.2 "[Considerations concerning the quality of a prevailing party's counsel's representation 2 See Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 92-93, 96 (1989). "The twelve Johnson factors are: (I) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) normally are reflected in the reasonable hourly rate." Perdue v. Kenny A ex reI Winn, 559 U.S. 542, 553 (2010).
In support of his attorneys' proposed hourly rates, Souratgar's counsel submitted the affirmation of a matrimonial law attorney who attested that counsels billable rates were reasonable in this district for attorneys of their experience and qualifications. The district court appeared to discounted his affirmation because he did not state whether he was experienced in Hague Convention litigation or whether his hourly rate was consistent with the rates of other attorneys in this district who practice in this niche area of law.
The district court pointed out that in determining the reasonableness of the requested attorneys' fees, the Court considers the quality of the work done by the attorneys. The Court concluded that a rate of $425.00 per hour was reasonable on this record for lead counsel and $300.00 was reasonable for his associate. The Court awarded attorneys fees of $217,949.56.
The court held that time billed for dealing visitation disputes during the pendency of the proceeding is not recoverable. See Saldivar v. Rodela, 894 F. Supp. 2d 916, 937 (W.D. Tex. 2012) (denying fees and costs incurred in obtaining a court order providing for increased visitation hours), Aldinger v. Seigler, 338 F. Supp. 2d 296,298 (D.P.R. 2004), affd, 157 Fed App'x 317 (1st Cir. 2005) (reducing fees in part because at least 20 billable hours were spent on visitation issues).
The application sought reimbursement for legal services by foreign attorneys, Gomez and Vasu. Gomez was an Advocate and Solicitor who had practiced law in Singapore for 26 years. Vasu has practiced law in Singapore for 16 years. Gomez and Vasu advised Souratgar’s attorney on the laws of Singapore and Malaysia, discussed legal strategy with him, and reviewed drafts of submissions to this Court and the Second Circuit. The court held that they were not entitled to be compensated for legal advice and strategy regarding Souratgar's case in the district court, nor may they recover for coordination between proceedings in the district court and other foreign tribunals. "[The foreign attorney] did not represent [Petitioner] in the instant action before this Court. There is no showing that [the foreign attorney] is admitted to practice in [this state] or before this Court. [Petitioner] has not submitted any authority which allows this Court to award fees and costs incurred by an attorney who does not represent a patty in an action before this Court." Freier v. Freier, 985 F. Supp. 710,714 (B.D. Mich. 1997). But see Distler v. Distler, 26 F. Supp. 723,728 (D.N.J. 1998) (awarding fees for a foreign attorney who provided legal services to the petitioner in support of the Hague Convention petition).
Gomez testified as a fact witness, not as an expert witness, during the
evidentiary hearing. Souratgar v. Fair, 12 Civ. 7797 (PKC), 2012 WL 6700214, at *1 (S.D.N.Y. Dec. 26, 2012). She was entitled to reimbursement for travel expenses and lost time due to her testimony. Prasad v. MML Investors Services, Inc., 04 Civ. 380 (RWS), 2004 WL 1151735, at *5 (S.D.N.Y. May 24,2004) ("[T]he federal courts ... are generally in agreement that a witness may properly receive payment related to the witness' expenses and reimbursement for time lost associated with the litigation."). The Court awarded fact witness fees of $6,279.52. The Court held that Gomez's business class flight was not compensable at the rate of $ 8,113.00. 28 U.S.C. § l82l(c)(1) provides that a witness shall be paid for "the actual expenses of travel" at the "most economical rate reasonably available." See Salvidar, 894 F. Supp. 2d at 947 (applying 28 U.S.C. § 1821 to a Hague Convention case). Gomez's nightly hotel rate of $369.00 was within the range of reasonableness, and the Court compensated her for three nights. Gomez charged Souratgar a daily fee of $783.63 per day, which she attested was a reduction of her usual rate. The Court found this rate reasonable compensation for her lost time. It observed that the average price of a hotel room in New York City in 2012 was $281.00. See "NYC Statistic page" NYC: The Official Guide, http://www.nycgo.comlarticles/nyc-statistics-page (last accessed January 30,2014). The hearing was held in the month of December which is a peak period and the hearing was convened on relatively short notice. Accordingly, one would expect a higher than average rate.
Souratgar requested expert fees in the amount of $21,500. He sought $13,000 in
fees for the expert testimony of Awad, an expert on Singapore and Malaysian law. The Court found that "To determine whether an expert's proposed rate is reasonable, courts in this Circuit are guided by eight factors: (1) the [expert]'s area of expertise, (2) the education and training that is required to provide the expert insight that is sought, (3) the prevailing rates for other comparably respected available experts, (4) the nature, quality and complexity of the discovery responses provided, (5) the cost of living in the particular geographic area, (6) the fee being charged by the expert to the party who retained him, (7) fees traditionally charged by the expert on related matters, and (8) any other factor likely to be of assistance to the court in balancing the interests implicated by Rule 26." Matteo v. Kohl's Dep't Stores, Inc., 09 Civ. 7830 (RJS), 2012 WL 5177491, at *5 (S.D.N.Y. Oct. 19,2012), affd, 533 Fed App'x 1 (2d Cir. 2013).
Awad testified at trial regarding Islamic family law and the Singapore legal system. He testified that he is admitted to practice law in New York and New Jersey, and that a substantial part of his practice is devoted to matrimonial litigation. He also testified that he has certain expertise in Islamic family law and the family laws of Muslim countries. He stated on the record that he billed at the rate of $550.00 per hour. The court pointed out that in support of this motion, Souratgar provided no evidence of Awad's rate, the services provided, or any data regarding comparable experts. He did not establish what work Awad conducted that would make his fees reasonable. Souratgar did not provide relevant documentation of the services provided to him by Awad, or any evidence of Awad's compensation rate. The Court held that "In the face of very limited evidence, a court may, in its discretion, simply apply an across-the-board reduction of expert's fees. Matteo, 2012 WL 5177491, at *5. The Court awarded expert witness fees of $2,400.
The Court found that there is no authority allowing a prevailing party to recover expert witness fees of a witness who did not testify at trial." Freier v. Freier, 985 F. Supp. 710, 714 (E.D. Mich. 1997). Accordingly, Souratgar's request for Dr. Lubit's fee ( a child psychologist) was denied.
Souratgar sought $2,038.00 for his round trip flight from Singapore to New York,
$1,479.00 for his change of flight from New York to Singapore and his son's return flight to Singapore. The Court granted his motion for travel expenses in the amount
Souratgar sought lodging fees totaling $22,579.84. The Court found that Souratgar did not establish that the cost of his accommodations was reasonable. Souratgar stayed in Kingston, New York, during the proceedings, which is located approximately 100 miles from the courthouse located in Manhattan. Souratgar only argued that the costs of lodging were reasonable because of the "cost of living in the New York metropolitan area." Souratgar did not demonstrate that an average rent of approximately $2,800.00 per month in Kingston, New York was reasonable. Therefore the Court found that a reduction in the lodging costs of 25% was appropriate given the lack of documentation supporting the rate as reasonable. The Court granted Souratgar's motion for lodging expenses in the amount of $16,934.88.
The court noted that a petitioner may be entitled to recover investigation costs if such costs are "necessary" to secure the return of the child. Neves v. Neves, 637 F. Supp. 2d 322, 344 (W.D.N.C. 2009) (finding, after reviewing supporting documentation, that an expense of $10,324.65 in investigative fees was reasonable and necessary). The Court reviewed the supporting documentation for the investigative fees.
While some award of investigative fees was appropriate, it found that the fees should be reduced, as not all expenses were necessary to secure the child's return and Souratgar did not demonstrate that the rates charged by the investigators were reasonable. Souratgar submitted invoices from three separate investigative firms. The Court did not find that investigative fees incurred after the issuance of the warrant were necessary to secure the return of the child. Just as attorney's fees regarding visitation are not recoverable under the ICARA, investigator hours supervising visitation and other investigative work after the issuance of the warrant are not recoverable. Additionally, investigative hours spent conducting background checks on potential lawyers to bring the petition were not necessary to secure the return of the child, and are not compensable. Souratgar did not demonstrate the reasonableness of the rates paid for the investigative services. The court noted that "If the parties do not provide sufficient evidence to support the moving party's interpretation of a reasonable rate, a court may use its discretion to determine a reasonable fee. Matteo, 2012 WL 5177491, at *5 (discussing expert and expert investigator fees). The Court concluded that of the $92,958.10 in fees incurred, $44,328.50 were necessary costs to secure the child's return.
The Court pointed out that Fair argued that awarding any fee would be clearly inappropriate because: (1) of Souratgar's past abusive behavior towards Fair. (2) her inability to pay; (3) her son would be adversely affected by any award because further financial strain will impede her ability to pay her Singapore counsel, which would prevent her from obtaining representation in future custody hearings and may result in the complete loss of the child's relationship with Fair.
The Court found that Souratgar engaged in abusive conduct towards Fair.
Souratgar v. Fair, 2012 WL 6700214, at *11. But Fair did not establish that the past abuse in this case made an award of fees clearly inappropriate. Fair did not establish that the past abuse of her was causally related to her decision to leave Singapore with her son in violation of a court order issued by a court of that country.
Fair asserted that she lacked the financial resources to pay any award. She was represented by pro bono counsel. Fair attested that pro bono representation in Singapore was unavailable to her. She stated that she owed approximately $17,600 in car payments and $3,820.45 in attorney's fees to the law firm that represented her in proceedings in Singapore. Fair had not worked in 5 years. She did not provide the Court with any other information regarding her current income. Her Central Provident Fund Board Account, contained $149,558.59. While it ws not clear that Fair would be able to access the funds in her CFP account in the near future, she did not demonstrate that she would never have access to those funds. Fair owned a one-third interest in a family property in Malaysia. Fair asserteds that she held this interest in trust for
her brother; however, Fair came forward with nothing other than her say-so to support the claim of trust. In the absence of documentation for the alleged trust arrangement, she failed to establish that this interest would not be properly reachable by the judgment.
Fair's claim as to the effects in custody proceedings if an award of fees was
entered against her was speculative. Fair provided the Court with a bill from her Singapore lawyers but did not demonstrate, beyond speculation, that she would
be unable to acquire representation in the Singapore proceedings as a result of a fee award. Fair did not provide the Court with any concrete information about how her lack of funds might affect her under Singapore or Malaysian law. She did not endeavor to explain whether and to what extent her wages may be subject to garnishment or pension assets reached, whether and to what extent her interest in property jointly owned with others in Malaysia could be reached, whether and to what extent a judge presiding over a divorce proceeding with her present husband, Souratgar, could take account of the judgment in adjudicating her rights to any marital or other property. Instead, Fair speculated that she was likely to face jail time because Mr. Souratgar's Singapore lawyer has made it clear that Souratgar intends to pursue his contempt of court application". Fair did not proved the Court with any documentation of her assets or income beyond the CFP account and the deed of her interest in her family's home.
The court concluded that Fair had not established that an award would be clearly inappropriate, and that she wrongfully removed her son from Singapore and absconded to the United States. By doing so, she violated an order of the Court in Singapore and demonstrated an indifference to whether the young boy would ever see his father again. An unreduced award on the basis of Fair's inability to pay would not be "clearly inappropriate."
Vasquez v Vasquez, 2013 WL 7045041 (N.D.Tex.)[Mexico] [Consent] [Grave Risk of Harm] [Petition Denied]
In Vasquez v Vasquez, 2013 WL 7045041 (N.D.Tex.) On April 11, 2013 Petitioner Ana Carolina Vazquez filed a Petition for return of M.V., a child born of the non marital union of Petitioner and Respondent to Mexico, where M.V.
had been residing for seventeen consecutive months. The Court granted the petition.
Petitioner was a Mexican citizen who was brought to the United States at the age
of eight and remained in the United States from that time forward without proper
documentation. Petitioner primarily lived in Texas during her residence in the United States. In 2004, Petitioner and Respondent, a United States citizen, met and began a romantic relationship. The two never married. They lived together with Respondent's son from a previous relationship, M.G.V, at Respondent's parents' house and at a separate apartment. M.V. was born in 2007 in the United States. M.V. was a United States citizen. She lived with Petitioner, Respondent, and Respondent's son from her birth until she was two years old. In January 2010, Petitioner was arrested at J.C. Penney for theft. M.V. was with Petitioner when Petitioner was arrested. At the time of the arrest, Petitioner called Respondent to alert him to the fact that she had been arrested and that he needed to pick up M.V. at the store. After some time had passed and Respondent had not arrived, one of the police officers at the store called
Respondent and told Respondent to come to the store. Respondent testified that he
had to pick up his mother prior to picking up M.V. and that the drive to the store was long. The police officers would not wait any longer, took Petitioner with them, and left M.V. with a store employee. Upon Respondent's and his mother's arrival at the store, they found M.V. with the store employee with a soiled diaper. After Petitioner's arrest, the immigration authorities discovered that Petitioner was unlawfully residing in the United States. Petitioner consequently remained detained with immigrations services from the date of her arrest until her removal to Mexico on April 26, 2010. Petitioner was removed to Mexico and immediately traveled to Linares, Nuevo Leon, Mexico to live with her grandmother, Rebeca Alanis, at Ms. Alanis' house. Petitioner lived at Ms. Alanis' house in Linares from that date through the present. During Petitioner's detention and in the two months immediately thereafter, M.V. lived with Respondent.
In July 2010, M.V. traveled from the United States to Linares, Mexico to stay with Petitioner and Ms. Alanis. Respondent's mother, Ramona Vasquez, took M.V. from the Dallas, Texas area to Mexico. Ramona testified that she had a letter from Respondent and a separate letter written by her, the latter of which was notarized by Ramona's sister-in-law Norma Rodriguez. Apparently, when a minor is traveling across the border without a parent, the minor must have a notarized letter signed by the parent permitting the child to cross the border and outlining where the child would stay and with whom the child would stay. Petitioner admitted that she and Respondent had not decided M.V.'s length of stay. Petitioner testified that the plan at that time was for M.V. to be in Mexico, then go to the United States, then go back to Mexico, etc. The parties did agree that M.V. would remain in Linares with her mother and maternal great-grandmother until October 2010. Although M.V. was going back to the United States in October, Petitioner enrolled her in the first year of a three-year kindergarten program at the school in Linares where Petitioner was working as an English teacher.
In October 2010, Respondent went to Mexico with his friend, Lorenzo Dillon.
Respondent and Lorenzo met up with Petitioner and M.V. in Reynosa, a city near the
Mexican-United States border. The purpose of the trip was for Respondent to pick
up M.V. and take her to Texas for a few months. M.V. remained in Texas from October 2010 through January 2011. On January 11, 2011, M.V., accompanied by Ramona Vasquez, traveled from the United States to Linares, Mexico. Ramona dropped M.V. off at the border with Petitioner's cousin, who then delivered M.V. to her mother's care. M.V. remained in her mother's care in Linares, Mexico from January 2011 until Respondent's alleged wrongful removal of her in June 2012, approximately seventeen months.
In August 2011, Respondent and his son took a trip to Linares, Mexico to
Petitioner's and Ms. Alanis' home. On the second-to-last day of his visit,
Respondent told Petitioner that he was taking M.V. with him back to the United
States. Petitioner testified that she was unaware of Respondent's plan and
immediately objected. Petitioner testified that the parties came to an agreement that Petitioner that M.V. would permanently remain in Mexico. Respondent admitted that he and Petitioner "were trying to come to an agreement."Respondent also admitted that he ultimately allowed M.V. to remain in Mexico. However, Respondent testified that he felt that he had no choice since M.V. was enrolled in pre-school in Mexico. The next day, Respondent and his son returned to the United States without M.V.
On December 7, 2011, Respondent and one of his cousins discussed via e-mail
M.V.'s return to the United States. Respondent admits that he talked to his cousin
about "tricking" Petitioner by pretending to want to be a family again and taking
M.V. back to Texas for a short period of time. On December 24, 2011, Respondent and his son took another trip to Linares, Mexico to celebrate the Christmas holiday. On Christmas 2011 morning Respondent packed M.V.'s items and then he, his son, and M.V. took a taxi to the bus station and then boarded a bus for the United States.
Petitioner testified that she woke up around 10:30am and was surprised to see that
Respondent, his son, and M.V. were gone. She testified that she was "in shock." After the police confirmed that they had stopped Respondent, Petitioner's uncle drove her to the location where Respondent, his son, and M.V. were being held. At that time, Petitioner and Respondent spoke with the police. The parties argued, disputing whether M.V. was allowed to go to the United States and whether Petitioner had consented to it. Petitioner alleged that she had not consented to it and asked Respondent why, if she had consented, did he fail to disclose M.V.'s departure and prevent Petitioner from saying goodbye to M.V. The police told the parties that the police could not resolve the conflict, so Respondent and Petitioner had to come to an agreement between themselves regarding M.V. or they would both go to jail. Respondent testified that Petitioner was willing to go to jail, but he was not, so he had no choice but to allow Petitioner to take M.V. In contrast, Petitioner testified that, after their discussion, Respondent admitted that he "did wrong" and that Petitioner should keep M.V. Ultimately, Respondent agreed to leave M.V. in Mexico. He and his son took a second bus back to the United States.
The district court found that the evidence and credible witness testimony demonstrated by a preponderance of the evidence that M.V.'s habitual residence at the time of her removal in June 2012 was Mexico, that Respondent breached Petitioner's custodial rights by removing M.V. from Mexico, and that Petitioner was actually exercising her custodial rights at the time of M.V.'s removal. Accordingly, the Court concluded that Petitioner met her prima facie burden under Article 3 of the
Hague Convention and under the ICARA for a claim of wrongful removal and
Respondent's first affirmative defense alleged that Petitioner consented to
Respondent's removal of M.V. from Mexico in June 2012. Respondent raised a theory that Petitioner agreed to permit Respondent to take M.V. to Mexico with him if Respondent would buy Petitioner a car and give her cash. In support of this theory, Respondent presented his testimony and the testimony of his son. Both stated that the purpose of their June 2012 trip to Reynosa, Mexico was to take M.V. back to the United
States in exchange for giving Petitioner a car and cash. Respondent stated that
the car was for M.V. (even though M.V. could not yet drive and the car would be
used by Petitioner), because M.V. asked for it and Respondent would not say "no"
to M.V. The Court stated that if the plan was to swap M.V. for the car, why would Respondent buy a car in Mexico for M.V. in exchange for taking M.V. to the United States where she would not have access to the car? The evidence showed that
Respondent stated at various times that he had bought a car in Mexico, that he had
partially paid for a car in Mexico, or that they were just going to look at cars
in Mexico. There was no car. Neither Respondent nor his son presented credible testimony, given that their stories differed from each other, their stories differed from their own prior deposition testimony, and given that their stories just did not make any sense. Respondent's evidence was insufficient to show that Petitioner consented to Respondent taking M.V. to the United States in June 2012. The credible evidence presented at trial demonstrated that Petitioner did not consent to M.V.'s removal to the United States in June of 2012.
Respondent testified that Petitioner had stated since her departure from the
United States that she wanted to return to the United States. The evidence and testimony presented primarily demonstrated Petitioner's desire or consideration of return to the United States, but only through lawful means and prior to M.V.'s removal. The Court rejected the respondents argument that Petitioner's alleged desire to return to the United States equated with a post-removal acquiescence of M.V.'s removal there.
Respondent raised the "grave risk" defense under Article 13b of the Hague
Convention" "[A] grave risk or intolerable situation exists where return of the child would send the child to a 'zone of war, famine, or disease,' or in cases of serious abuse or neglect." Vazquez v. Estrada, 3:10-CV-2519-BF, 2011 WL 196164, at *5 (N.D.Tex. Jan.19, 2011) (citing Silverman v. Silverman, 338 F.3d 886, 900 (8th Cir.2003), and Friedrich, 78 F.3d at 1069). "A grave risk of harm can be established when return of the child to the country of habitual residence puts the child in 'immediate danger
prior to resolution' of the underlying custody dispute." Gallardo, 2013 WL
3803905, at *13. Respondent raised three reasons why he believed returning M.V. to Mexico would result in grave risk to her. First, Respondent put forth testimony from
himself and his mother Ramona Vasquez alleging that, when Petitioner was arrested
in January 2010, M.V. was left at J.C. Penney with a store employee and her diaper
was very soiled. The court held that evidence of the incident of Petitioner's arrest did not constitute clear and convincing evidence of grave risk to M.V. if she is returned to Mexico. First, the incident does not involve the sort of "serious abuse or neglect" as contemplated by the Hague Convention. Second, although M.V.'s being left
with a store employee was indeed a product of Petitioner's arrest, the police
officers made the decision to leave M.V. with the store employee and Respondent
himself admitted that he did not go directly to the store upon learning that he
needed to pick up M.V. There were thus contributing factors to M.V.'s being left
with a stranger and having a dirty diaper. Third, Respondent did not provide
evidence of alleged neglect other than this single incident. The Court rejected Respondent's theory of grave risk due to abuse and neglect. Next, Respondent alleged that Mexico was a dangerous country and M.V.'s return there would put her at grave risk. The sole evidence presented at trial in support was Respondent's own testimony that there have been shootings in Linares, Mexico, where Petitioner lived. On cross examination, Respondent admitted that he had only read or heard of the shootings and was unaware of the circumstances surrounding the shootings. This
evidence fell far short of the standard for proving grave risk to M.V. in Mexico.
Silverman v. Silverman, 338 F.3d 886, 901 (8th Cir.2003) Respondent argued that M.V. would be put at grave risk in Mexico because Petitioner could not afford electricity and food. Respondent's evidence of grave risk in this respect was minimal and, in any event, was negated by Petitioner's credible explanations.
Cascio v Pace, --- F.Supp.2d ----, 2014 WL 197724 (N.D.Ill.)[Italy] [Rights of Custody] [Public Service Org] [Consent] [well settled] [Petition denied]
In Cascio v Pace, --- F.Supp.2d ----, 2014 WL 197724 (N.D.Ill.) Petitioners, Silvestre Cascio and an Italian public services agency, Azienda Servizi Alla Persona Ambito 9 ("ASP"), petitioned for return of Cascio's two minor children, FC and MC, who were residing in Rockford, Illinois with their mother, respondent Rosa Maria Pace. The district court denied the petition.
Cascio was a citizen and permanent resident of Italy. Pace was born in Rockford, Illinois, and had dual U.S. and Italian citizenship. Cascio and Pace married in late 2000. The children were both born in Italy, and both had dual U.S. and Italian citizenship. Between 2000 and 2012, the family lived in Italy, with Cascio providing for the economic needs of the family and Pace acting as a homemaker. In September 2010, Cascio and Pace got into a physical altercation which began with Cascio kicking Pace in her backside and resulted in Pace calling the police. After a police investigation, the matter was referred to the Italian minors court who appointed ASP to monitor and supervise the children, provide support to the parents in parenting skills, and to provide marital mediation between Cascio and Pace. ASP also had to approve, and in turn seek judicial approval of, any decision to move the children. ASP never removed the children from the physical custody of their parents. During nearly all of the summers between 2000 and 2012, the family vacationed in Rockford, where Pace's mother and extended family lived, for approximately three months at a time. In June 2012, Pace brought the children to Rockford for a summer vacation after informing ASP that she would return on September 2, 2012. Cascio joined Pace and the children on July 27, 2012. The entire family had tickets to return to Italy on September 2, 2012. In late August, Cascio and Pace had an argument in the presence of the children, wherein Pace made it known that she would prefer not to return to Italy, but rather wanted the family to relocate to the United States. Despite that argument, and continued tension for the remainder of the vacation, Pace began packing to return the family to Italy in early September. On the morning of September 2, 2012, Pace informed Cascio that she and the children would not be returning to Italy with him that afternoon, and asked that he move to the United States and stay with them. After a period of silence, and then some discussion, Cascio indicated that he consented to her staying in the United States (which he testified meant the children would remain as well) and would move with her to Rockford. Following the meeting, Cascio made a phone call, packed his clothing, and rode to the airport with Nunzio Pace, where he boarded a plane and left for Italy. Pace testified that Cascio returned to Italy to dispose of their property and see to his job, but promised he would return by no later than Christmas. Indeed, Pace and Nunzio Pace both testified that Cascio discussed local employment opportunities and even what car he would like to purchase in the United States on the drive to the airport. Cascio, on the other hand, testified that he only agreed to permit Pace to stay because he felt he was under duress, alone as he was, at the time of the meeting and that he needed to agree in order to be able to catch
his flight. He also testified that he thought he could subsequently change Pace's
mind and he never had any intention of relocating to the United States or
consenting to the children's permanent relocation. Beginning the next day, Cascio made it clear to Pace that he would not be returning to the United States and that he
wanted her and the children to rejoin him in Italy. Pace made it equally clear
that she did not plan to return to Italy with the children. ASP was informed of
Pace's failure to return on October 1, 2012, after the family missed an ASP-ordered appointment with a psychologist. ASP and Cascio filed a joint petition pursuant to the Hague Convention on September 27, 2013, a few weeks more than a year after Pace and the children failed to return from Rockford. Cascio has remained in contact with the children through Skype and telephone calls.
Pace offered proof as to the children's life in Rockford, which was
relevant to one of the exceptions in the Hague Convention. MC, the younger child, was four years old, enrolled in pre-school, and spent considerable time with Pace's family and extended family in Rockford. MC spoke English almost exclusively, despite Pace and Nunzio Pace's attempt to keep him bilingual. Similarly, FC, the elder child, was enrolled in his second year of school in Rockford, participated in activities, spent time with friends, attended church, and also spends time with Pace's family. According to Pace, FC struggled with English when he first arrived, but quickly caught on and now remains bilingual. Cascio testified, however, that FC spends more time in the home, seems bored, and is not as active as he was in Italy. As to the children's living conditions, Pace and the children live with Pace's mother. Pace works full-time as a bank teller, making $10.24 an hour. The children currently lack health insurance, but are currently provided healthcare by a state program and are in good health. Pace's mother financially assists Pace. The unrebutted testimony at trial was that, based on Pace's family support structure and her own employment, the children were well-provided for in Rockford and enjoy regular outings and significant stability in their lives.
The parties agreed that the children's place of habitual residence was Italy immediately prior to their retention in the United States. The parties agreed that
Cascio had rights of custody, but Pace objected that ASP's rights were "more of a
supervisor than a custodian" and thus "should not be considered by this Court to
be a custodian." Based on the controlling case law, the court rejected that argument. The unchallenged testimony concerning ASP's obligations to the children included the fact that the family was not permitted to move the children without first obtaining leave from ASP and the minors court. That was sufficient in and of itself-the Supreme Court has held that the right to veto a child's move, a so-called ne exeat right, qualifies as being a right of custody under the Hague Convention as the right to "determine the child's place of residence." See Abbott v. Abbott, 560 U.S. 1, 10-21, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010). Although Pace correctly pointed out that ASP never exercised the authority, the uncontroverted testimony also suggested that ASP had the authority to remove the children from their parents' care had it been determined necessary to protect the welfare of the children. Accordingly, ASP proved by a preponderance of the evidence that it also had "rights of custody" on which it may base a petition for return. See E. Sussex Children Servs. v. Morris, 919 F.Supp.2d 721, 730-31 (N.D.W.Va.2013) (collecting cases which hold that public social services organizations can have "rights of custody" under the Convention). The court found that both Cascio and ASP were exercising their custody rights at the time of the retention. Consequently, both petitioners met their burden to show a prima facie case for wrongful retention of the children in the United States.
Pace first argued that the children should not be returned to Italy, notwithstanding the prima facie proof, because Cascio consented to the children remaining in the United States."The consent exception applies when a petitioning parent, either expressly or through his conduct, agrees to a removal or retention before it takes place." Walker, 701 F.3d at 1122. Cascio argued that his agreement was given under duress and that his subsequent conduct showed that he never actually consented to the retention. Based upon, inter alia, Cascio's admitted willingness to invent testimony under oath to shade the truth in his favor, the court found Cascio's testimony to be without credibility. The court found that Cascio expressly consented
to the retention before it occurred, and that his later change of heart is
irrelevant. The court found that Pace had proven by a preponderance of the evidence that the retention of the children was not wrongful, based on consent, as against Cascio's rights of custody. This conclusion did not end the matter, as there was no evidence that ASP ever consented to, or thereafter acquiesced in, the retention of the children in the United States. The court found that Pace had not proved by a
preponderance of the evidence that the retention of the children was not wrongful,
based on consent, as against ASP's rights of custody.
The Court observed for the “settled” defense to apply, Pace had to prove by a
preponderance of the evidence that (1) the petition for return was filed more than
a year after the retention; and (2) the children were settled in their new
environment in Rockford. See Habrzyk, 759 F.Supp.2d at 1028-29. Here, although the retention began on September 2, 2012 and the petition was not filed until September 27, 2013, Petitioners argued that some form of equitable tolling should apply to reduce the approximately thirteen months between the retention and the filing to some amount of time less than a year, thereby making the exception inapplicable. The Court observed that even those cases which permit equitable tolling do so only where there is evidence of fraudulent concealment, that is, where there is evidence that the abducting parent took affirmative steps to conceal their location from the other parent (and presumably others who have rights of custody). See Duarte, 526 F.3d at 570. Here, there was no evidence of fraudulent concealment, Pace took no affirmative steps to hide the children's location from either Cascio or ASP. Accordingly, even if equitable tolling applies in the event of fraudulent concealment (an issue on which the court passed no judgment), that would nevertheless provide no relief to Cascio or ASP. The factors courts consider in determining if a child has significant
connections to the new country include: (1) the child's age; (2) the stability
and duration of the child's residence in the new environment; (3) whether the
child attends school or day care consistently; (4) whether the child has friends
and relatives in the new area; (5) the child's participation in community or
extracurricular school activities, such as team sports, youth groups, or school
clubs; and (6) the respondent's employment and financial stability. Id. As to the age of the children, FC was nine as of the time of briefing and MC was four. Although Cascio argued that MC's young age cut in favor of finding that Pace has not met her burden, courts have been far from consistent in whether they consider a young age to be in favor of a finding of settled. See Broca v. Giron, No. 11 CV 5818(SJ)(JMA), 2013 WL 867276, at *6 (E.D.N.Y. Mar. 7, 2013). Although MC's age might raise an
inference that he was less likely to form an attachment to a particular place, in
this case, the testimony revealed that MC switched to English as his primary
language. His mother and Nunzio Pace both indicated that they had struggled to
keep him bilingual in Italian but had been largely unsuccessful thus far. Thus,
the court founds that MC's young age did not weigh against applying the exception.
As to the second, third, fourth, and fifth factors, they all weighed in favor of finding that Pace has met her burden to show that the children were settled. The sixth factor, Pace's employment and financial situation, was somewhat more complicated. Pace was employed full time and making slightly more than ten dollars an hour. However, she admitted in her petition for divorce that she lacked the capability to provide for her family by herself. Also, the court was concerned that the children lacked health insurance, notwithstanding Pace's testimony that they were in good health and receive some health care from a state program. In contrast, however, it was clear that Pace receives support from her sizeable family in the area and there was no testimony to support the conclusion that the family support is in any danger of ending. Balancing those factors, the court found that Pace met her burden to prove by a preponderance of the evidence that the children were settled in their new environment in Rockford, Illinois. The petition was denied.
Slight v. Noonkester, 2014 WL 282642 (D.Mont.)[Ireland] [Wrongful Retention] [Chasing order] [Well-Settled] [Petition Denied]
In Slight v. Noonkester, 2014 WL 282642 (D.Mont.) Petitioner David Slight ("David") filed Petition for Return of Child against Respondent Ingrid Noonkester
("Ingrid") David is an Irish citizen who has resided in Dublin all of his life. Ingrid
was a Lithuanian citizen who at some point moved to Dublin. In June 2004, David
and Ingrid met and began a relationship. David and Ingrid lived together until their separation in January of 2010. In November of 2005, David and Ingrid's son, L.S., was born. After their separation, David and Ingrid shared responsibilities as to L.S.'
upbringing. Ingrid exercised custody the majority of the time. In May 2012, the parties arranged for Ingrid to leave L.S. in David's custody on May 25, 2012. However, Ingrid never arrived at the designated location with L.S. Instead, on May 25, 2012, Ingrid and L.S. boarded a plane and flew to the United States, with their ultimate destination being Brady, Montana. The purpose of traveling to Montana was to move in with Alan Noonkester ("Alan"). Alan and Ingrid decided to live together after meeting on the
internet. . Ingrid only decided to move L.S. out of Ireland after consulting materials
provided by Treoir, which is an Irish organization that supplies information to unmarried parents. The materials informed Ingrid that under Irish law, the mother is the sole guardian of a child born unto unmarried parents. Accordingly, unless the father petitions a court for joint guardianship, the mother can remove the child from Ireland without the father's permission. David had no knowledge of Ingrid's plans, nor did he ever consent to L.S.' departure from Ireland. In addition, at no time prior to L.S.' departure did David ever apply to an Irish court for guardianship, custody, or access.
At some point in 2012, David filed a petition for L.S.' return with the Irish Government. David claimed that this petition was denied due to the fact that David was not a guardian of L.S. at the time of the abduction. On June 5, 2012, David applied to the Dublin Metropolitan District Court for both sole custody of L.S. and to be named his guardian. On September 11, 2012, the Dublin Court appointed David as both joint custodian and joint guardian of L.S. In the order appointing David joint custodian, the Court stated that: Provided that the party to whom custody/access of the said child(ren) is hereby given shall not remove the said child(ren) from the jurisdiction of this Court without having first obtained in writing of the other party or the leave of this Court or of any other Court of competent jurisdiction. On April 15, 2013, David filed an application for access under the Hague Convention with the Ireland Department of Justice and Equality.
After their arrival in the United States, Ingrid and L.S. moved to Brady, Montana, to move in with Alan. Ingrid and Alan married in August of 2012. While in Brady, L.S. attended school in the Dutton/Brady School District from August 2012 until February 2013. After his arrival in Montana, L.S. developed a close relationship with Alan. L.S. and Alan have good relationship, with the two participating in typical father-son activities. L.S. also developed close and meaningful relationships with Alan's two children from a prior relationship. L.S. also has developed close ties with his step-grandparents. In February 2013, Alan, Ingrid, and L.S. moved to Worden, Montana, so that Alan could take a job at the Signal Peak coal mine. In the fall of 2013, L.S. enrolled at the Huntley Project Elementary School. L.S. had done well at school and obtained good grades. Despite being in second grade, he read eighth grade-level chapter books. After his move to Worden, L.S. developed more close ties to family members. Ingrid and L.S. did not face an immediate threat of deportation. Ingrid and Alan visited the U.S. Citizenship and Immigration Services Field Office in
Helena, where they receive assurances that Ingrid was in the country legally. She
did face several restrictions, such as being unable to work and if she leaves
the U.S., she will not be allowed to return. Therefore, Ingrid did not hold
employment and was a homemaker. Ingrid was in the process of applying for status
as a permanent resident for herself and L.S.
David filed the Petition and commenced the action on December 27,
2013. Ingrid filed a Rule 12(b)(6) Motion to Dismiss, arguing that under Irish law, L.S.' removal could not have been unlawful as David did not have any custodial rights. David conceded that Ingrid did not wrongfully remove L.S. from Ireland, but responded that Ingrid wrongfully retained L.S. after the Dublin Court named David as a joint custodian and joint guardian. The Court found that David's claim failed because Ingrid had not retained L.S. in violation of David's rights of custody. David conceded that Ingrid did not wrongfully remove L.S. when she left Ireland on May 25, 2012. When determining a party's custody rights in the child's prior habitual residence, the Court must look to that country's law. Hague Convention, Art. 14; see also Whallon v. Lynn, 230 F.3d 450, 456 (1st Cir.2000). In Ireland, if a child is born to unmarried parents, only the mother is the guardian of the child. Guardianship of Infants Act, 1964, Part II, s 6(4) (Act No. 7/1964) (Ir.), available at http://
www.irishstatutebook.ie/1964/en/act/pub/0007/index.html. The unmarried father
may petition a court to be appointed guardian and secure custody rights. Id.,
Part II, s 11; see also Redmond v.. Redmond, 724 F.3d 729, 732 (7th Cir.2013).
Accordingly, if an unmarried Irish father fails to apply for an order granting
him custody prior to his child's departure from Ireland, than that removal is
not unlawful. J. McB. v. L.E.,  IESC 48, P 32(Ir.). Since David did not
apply to be named a guardian over L.S. prior to May 25, 2012, Ingrid's removal
of L.S. was not wrongful.
David relied on a wrongful retention theory. David argued that while
Ingrid's removal of L.S. was not wrongful, the September 11, 2012 Dublin Court
orders appointing him joint guardian made Ingrid's retention of L.S. in the U.S.
wrongful and in violation of Irish law. The Court rejected David's argument.
This was not a typical wrongful retention claim. When a party applies for custody after the other parent leaves the country, the subsequent order is referred to as a "chasing order." Courts typically do not give deference to chasing orders. See Feder v. Evans-Feder, 63 F.3d 217, 231 n.3 (3d Cir.1995) (where neither the trial or appellate court considered an order granting custody that the father obtained from an Australian court after the mother and child had left for the U.S.). "[C]ourts have repeatedly assumed rights of custody for purposes of Article 3 of the Convention means rights of custody at the time of removal." White v. White, 718 F.3d 300, 307 (4th Cir.2013).
The Court observed that there is nothing in the Convention requiring the recognition of an ex post facto custody order of foreign jurisdictions. In Redmond, a factually similar case dealing with unmarried parents in Ireland, the Seventh Circuit did not give weight to an Irish court's order granting the father joint guardianship after the mother and child had moved to the U.S. 724 F.3d at 742. The Court specifically rejected the father's contention that the mother wrongfully retained the child in the U.S. after the father obtained the Irish court order naming him guardian over the child. The Court noted that the "Hague Convention is an anti-abduction treaty; it is not a treaty on the recognition and enforcement of [foreign] decisions on custody." Id. Enforcing chasing orders is beyond the Hague Convention's concept of wrongful retention. Id. at 740. Applying those principles here, the district court held that the Dublin Court's issuance of its Sept. 11, 2012 orders did not render Ingrid's retention of L.S. wrongful. When Ingrid and L.S. left the U.S. on May 25, 2012, she did not violate David's custody rights, as none existed. When David subsequently applied for and received guardianship over L.S., this did not mean that Ingrid's retention breached David's rights of custody. Such chasing orders do not create a wrongful retention under Art. 3 of the Convention. This is because the Court must look to the custody rights existing at the time of removal. White, 718 F.3d at 307. Since David did not have any custody rights when Ingrid left Ireland, her retention of L.S. in the U.S. is not wrongful.
However, the court found that Respondent established the "settled" defense, and denied the petition. If more than a year has elapsed from the date of the wrongful removal or retention, the Court must order the return of the child "unless it is demonstrated that the child is now settled in its new environment." Hague Convention, Art. 12. David did not file the Petition until December 27, 2013. He argued that the filing of the Petition should be equitably tolled based on the fact that he sought the return of L.S. through the Ireland Department of Justice and Equality and the U.S. Department of State, but he got hung up on bureaucratic delays. Equitable tolling stays the running of Art. 12's one year timeline for the "settled" defense. Furnes v. Reeves, 362 F.3d 702, 723 (11th Cir.2004). It applies when "circumstances suggest that the abducting parent took steps to conceal the whereabouts of the child from the parent seeking return and such concealment delayed the filing of the petition for return. Duarte v. Bardales, 526 F.3d 563, 570 (9th Cir.2008). Only the Fifth, Seventh, and Ninth Circuits allow equitable tolling in Hague Convention cases. Lozano v. Alvarez, 697 F.3d 41, 55 (2d Cir.2012). The Court refused to expand equitable tolling beyond active concealment as the Ninth Circuit has refused to do so. Equitable tolling only applies "where two related conditions are met: (1) the abducting parent concealed the child and (2) that concealment caused the petitioning parent's filing delay. " Id. Equitable tolling does not apply if the petitioner knew of the child's location. Id . at 1015. David knew of L.S.' location in late July 2012 and had regular contact with L.S. Since Ingrid did not take steps to actively conceal L.S.' location after David learned of his address in Montana, equitable tolling did not apply.
The Court indicated that to determine whether a child is "settled," the following factors must be considered: (1) the child's age; (2) the stability and duration of the child's residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child has friends and relatives in the new area; (5) the child's participation in community or extracurricular school activities, such as team sports, youth groups, or school clubs; and (6) the respondent's employment and financial stability. B. Del C.S.B., 559 F.3d at 1009. In addition, the child's immigration status may only be relevant "if there is an immediate, concrete threat of deportation." In addition, this Court may also consider the child's wishes if he has "attained an age and degree of maturity at which it is appropriate to take account of its views." Hague Convention, Art. 13. In applying the factors, the Court concluded that L.S. was settled in Montana. Additionally, L.S. obtained the level of maturity where the Court could consider his viewpoints. L.S. told the Court that he wanted to stay in Montana. L.S. would like to maintain a relationship with David, but he did not want to be returned to Ireland. L.S. has expressed a desire to someday visit David in Ireland.
In Larrategui v. Laborde, 2014 WL 128048 (E.D.Cal.) Petitioner Daniel Carlos Chiramberro Larrategui and Respondent Valeria Eguiguren Laborde ("Respondent") were both born in Argentina. They met and began dating in 1996 and began cohabitating in 1997. S.C. was born in Argentina in December 1999. In or about 2002, Petitioner and Respondent separated when S.C. was two years old. When the parties separated, S.C. resided primarily with Respondent, but Petitioner frequently spent time with S.C. When S.C. was about two to three years old, she was diagnosed with Developmental Dysphasia. In Argentina, through the Hospital Aleman, S.C. was under the care of numerous physicians and mental health professionals, including Dr. Hernan Amartino ("Dr.Amartino"). In Argentina, S.C. was attending Colegio Bilingue Armonia, a school that integrates students with Special Education Needs. In 2006, Respondent began discussing with Petitioner the possibility of S.C. relocating to the United States in the spring of 2007. In 2007, Respondent moved to the United States from Argentina. She was currently married and had a son of approximately three and a half years old. When Respondent left to the United States, Petitioner cared for S.C. Child custody proceedings occurred in Argentina beginning in 2007. In 2010, an Argentina court granted Petitioner full custody of S.C. Beginning in 2009, S.C. began experiencing emotional outbursts. In November 2012, through an Argentina court order, Respondent was allowed to bring S.C. to the United States from December 13, 2012, until January 29, 2013. S.C. did not return to Argentina by January 29, 2013. S.C. was currently enrolled at Monte Vista Middle School, a public school in San Joaquin County. In the United States, S.C. was evaluated by Dr. Crawford in 2012 and then again in 2013. Dr. Crawford determined that S.C. "runs the risk of psychotic breakdown, and if not supported adequately is in danger of developing a Borderline Personality Disorder." The Kaiser Permanente medical group diagnosed S.C. with Borderline Intellectual Functioning and a mood disorder. S.C. was currently attending weekly therapy sessions.
Respondent did not dispute that S.C. was a habitual resident of Argentina and was being wrongfully retained in the United States, but she argued that S.C. should not be returned because S.C. was in grave risk of physical and psychological
harm because S.C. had serious medical and mental health needs and the resources in
place in Argentina, including Petitioner's understanding of S.C.'s needs, were
gravely inadequate to provide the necessary care to S.C.
The district court observed that a parent may establish a grave risk to
defeat or delay the return of a child "by showing that it would disrupt an ongoing
course of medical treatment and severely impact the child's health. But the parent
would have to provide clear and convincing evidence both (1) of the child's
serious medical needs and (2) of the home country's inability to provide the
necessary care." Cuellar v. Joyce, 596 F.3d at 511.
Unlike the district court's finding in Cuellar (i.e., that the child
suffered of "ataxia," which was based on testimony and written statements made by
an unidentified physician, a professor, and a registered nurse), here, there was
substantial and credible evidence to show that S.C. had Borderline Intellectual
Functioning and a mood disorder that may develop into a more serious condition,
including a Borderline Personality Disorder. Furthermore, there was evidence that
there was an ongoing course of medical treatment. Accordingly, the Court found by
clear and convincing evidence that S.C. had serious medical needs. It also found that there was was insufficient evidence that S.C. could not receive the medical care she requires in Argentina. At best, the evidence demonstrated that S.C.'s medical care in the United States may be better than that provided to her in Argentina. Regardless,
the comparison of whether one country's medical opportunities are better than
another's does not constitute a grave risk of harm as contemplated by the drafters
of the Hague Convention nor is it within the purview of 42 U.S.C. s 11603. Accordingly, Respondent failed to prove by clear and convincing evidence that S.C.'s home country was unable to provide the necessary care and, therefore, no grave risk of harm if S.C. was returned to Argentina.
The Court granted the Petition and imposed narrowly focused undertakings to ensure that S.C. received the necessary medical treatments and ensured that Respondent was allowed access to and visitation with S.C. See Kufner, 480 F.Supp.2d at 516 (adopting similar undertakings to ensure that the children received medical care and the respondent was allowed to visit the children).