New York Matrimonial Trial Handbook

The New York Matrimonial Trial Handbook by Joel R. Brandes is available in Bookstores and online in the print edition at the Bookbaby Bookstore, Amazon Barnes & Noble, Goodreads and other online book sellers. It is also available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore. The New York Matrimonial Trial Handbook is divided into five parts: (1) Preliminary Matters Prior to the Commencement of Trial, Conduct of Trial and Rules of Evidence Particularly Applicable in Matrimonial Matters; (2); Establishing Grounds for Divorce, Separation and Annulment and Defenses; (3) Obtaining Maintenance, Child Support, Exclusive Occupancy and Counsel Fees; (4) Property Distribution and Evidence of Value; and (5) Trial of a Custody Case. There are thousands of suggested questions for the examination and cross-examination of witnesses dealing with very aspect of the matrimonial trial. Click on this link for more information about the contents of the book and on this link for the complete table of contents.

The New York Matrimonial Trial Handbook was reviewed by Bernard Dworkin, Esq., in the New York Law Journal on December 21, 2017. His review is reprinted on our website at http://www.nysdivorce.com with the permission of the New York Law Journal.

Joel R. Brandes, is the author of Law and The Family New York, 2d (9 volumes) (Thomson Reuters), and Law and the Family New York Forms (5 volumes) (Thomson Reuters). Law and the Family New York, 2d is a treatise and a procedural guide. Volume 4A of the treatise contains more than 950 pages devoted to an analysis of the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. It contains a complete discussion of the cases construing the Convention which have been decided by the United States Supreme Court, the Circuit Courts of Appeal, the District Courts, and the New York Courts.


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Wednesday, October 29, 2014

Application of Inna Kharlamova v. Roach, 2014 WL 4983837, (WD, Washington) [Canada] [Habitual Residence][Petition granted]



In Application of Inna Kharlamova v. Roach, 2014 WL 4983837, (WD, Washington)  Inna Kharlamova's petition for return of her two children to Canada was granted. The Petitioner and Respondent weret he parents of two daughter. Both children were born in Toronto, Canada. Petitioner was a Russian citizen who moved to Canada, from Russia, in 2001 and  obtained permanent resident status in Canada. Respondent Peter Roach was an American citizen. 

The Petitioner and Respondent met in Toronto 2001. After the birth of the children Respondent reconciled with his wife in 2006. The two children lived in Canada continuously until 2009. The Respondent maintained contact with his two daughters by visiting with them in Canada fairly regularly and provided financial assistance to the Petitioner for rent, food, various expenses including car insurance and for the girls.

On July 16, 2008 a Final Uncontested Order was entered in the Ontario Court of Justice which gave “final” custody of the two girls to Inna Sexton (Kharlamova) and permitted the Respondent to have access to each child. In addition, the Order permitted the Petitioner “to travel abroad without the consent of the Respondent father and was allowed to obtain, apply and renew passports for each child mentioned above without consent of the Respondent father.”  By letter dated June 22, 2008 the Respondent wrote to the Ontario Court of Justice and stated the following: “The issue of custody arose because of intended travel to Russia. As explained to me an extended stay in Russia required my two children to have Russian documentation, otherwise they would be provided tourist visas and would not be permitted to stay in Russia beyond 30 days. I am agreeing to grant Inna Sexton (Kharlamova) sole custody of the children to prevent any issues with travel, documentation or Russian laws until the children are back in Canada, or until Inna and I make further custody/family arrangements. Inna and I have agreed that I would have unrestricted access and visitation rights to the children.

According to the Petitioner, she obtained the Order from the Ontario Court of Justice to facilitate her plans to go to Russia to see her parents and her son, whom she had not seen since she moved to Canada in 2001. At the time of the trial her son was 17 years old and still resided in Russia. The Petitioner and her two daughters first went to Russia in August 2009 and returned to Canada until early October 2010. While her initial plan was to stay for several months, she extended her stay at her mother's request and because she wanted her daughters to learn more about Russia. The Respondent testified that he thought the Petitioner and the girls were moving to Russia and that Russia would be their home. His conclusion was based on the fact (1) that the Petitioner and the girls moved to Russia and (2) that nothing was left in her apartment as everything had been shipped. Prior to Petitioner and the girls traveling to Russia, the Respondent flew to Canada and helped the Petitioner pack. The Respondent pointed out that the Petitioner shipped 53 boxes of used household and personal effects which had a total weight of 2,576 lbs . Petitioner also stored a number of items in a storage facility in Toronto and left her truck in Toronto as well. These stored items were moved out of the storage facility on April 1, 2011.The Respondent's conclusion that in August 2009 the Petitioner intended to make her home in Russia was not based on a conversation or agreement. 

The Petitioner and the two girls returned to Toronto in October 2010. Following her return, the Respondent flew to Canada and helped the Petitioner find a place to live. The Petitioner next went to Russia with her daughters at the end of June 2011. The Petitioner's purpose of this visit was to see her mother and son and for her daughters to become closer to their brother and grandparents. When she went to Russia this time she stored some of her belongings with a friend, including her truck. The Petitioner provided no testimony regarding how long she initially planned to stay in Russia other than to say that she ended up staying longer than she had planned. She  testified that she never intended to relocate from Canada since becoming a permanent resident there and that testimony was not contradicted. The Respondent offered no testimony regarding any agreement or understanding between him and the Petitioner regarding the reason the Petitioner and the girls returned to Russia in June 2011. The Respondent did testify that the Petitioner was very concerned about not doing anything that would result in her losing her legal resident card with Canada. 

The girls remained in Russia until April 12, 2012, when Petitioner and Respondent agreed to meet each other in Berlin, Germany. The Respondent, with permission of Petitioner, took the two girls to Washington State with him. Prior to April 12, 2012 the girls had never been in the United States and had never lived with the Respondent. The girls  remained in Washington since that time. The parties agreed that initially the reason for the girls going to the United States was due to heart-related health problems of their oldest daughter and the need for evaluation and treatment of that condition. Both parties signed a “Permission to Travel with Minors Letter”  which reflected a travel date to Seattle on April 12, 2012 and an expected date of return of May 23, 2012. The Petitioner said this was needed as she had sole custody of the girls and this document would allow the father to travel with the girls without having any problems. 

After the Respondent picked up the girls in Berlin, the Petitioner went to Egypt in pursuit of her divemaster certification. In an email exchange between the parties on April 21 and 22, 2012  the Petitioner stated that she wanted her children returned on May 27, 2012  which was the date of the return tickets, and she requested that the children been sent to Egypt, where she planned to stay for another month, and then all three would return to Russia. In response the Respondent confirmed that the children would be “coming back on the date on the tickets.”  The girls were not returned in May and the parties eventually agreed that the Respondent would keep the girls over the summer. There clearly was a disagreement between the parties as to whether it was safe for the girls to be in Egypt while the Petitioner was pursuing her divemaster certification. The Respondent felt that there was too much unrest in Egypt so as to make it unsafe for the girls to live there. The Petitioner, on the other hand, felt that Egypt had a lot to offer her girls and she wanted them there with her.  The Petitioner also testified that the Respondent wanted to keep the girls in Washington over the summer because he had such a short period of time with them and he said he would return them in the fall of 2012. 

The testimony of the parties was divergent regarding the reason why the girls were not returned in the fall of 2012. According to the Petitioner, during October 2012 she wanted to know why the Respondent had not returned the girls. The Respondent said he did not have the money to return the girls and he was also working on obtaining citizenship for the youngest daughter. The Respondent told the Petitioner that he wanted to keep the girls with him longer because he thought the youngest might have to be interviewed for citizenship. So Petitioner agreed to leave the girls in the United States while the Respondent pursued citizenship for their daughter. At the time of this decision the Petitioner was not living in Canada. The Petitioner went to Egypt in April 2012 and left Egypt late January 2013. From Egypt she returned to Russia where she remained until mid April 2013 when she returned to Toronto. The Petitioner completed her divemaster training in June 2013 while in Toronto. 

          On May 19, 2013 petitioner sent an email to the Respondent advising him she had purchased tickets for the girls and the Respondent to fly to Canada on July 30, 2013.  Before the scheduled flight the Respondent called the Petitioner and told her he could not fly the girls to Toronto on that date The Petitioner filed her application with the Central Authority in Canada on January 27, 2014. According to the Respondent, the Petitioner told him she had to return to Russia on August 13, 2013 because her husband attacked her mother in her mother's apartment in Russia. The Petitioner returned to Canada on September 10, 2013 and the Respondent had decided prior to that date that he did not want to return his daughters Petitioner. He testified that in September 2013 he told the Petitioner that he was not going to return the girls to her.   The Court concluded that the habitual residence of the two girls, prior to their retention by the Respondent, was Canada. In order to establish a habitual residence, there must be a settled mutual intention of the parents. While there was no direct testimony in this regard, the circumstances surrounding the two girls living in Toronto led to the conclusion that the parents agreed to this as the girls habitual residence. They were both born in Toronto, attended school there when old enough, received medical care and the father visited with them in Canada.

The Respondent argued that the habitual residence in Canada was abandoned in favor of Russia. The court found there was no settled, mutual intention in this regard. There was no evidence presented about the parties having any discussion as to the reason the Petitioner and the girls would be going to Russia in 2009, how long they would be there or that they had any intention of making Russia their home. A letter written by the Respondent to the Ontario Court of Justice merely discussed an “extended stay” in Russia. In addition, the Respondent was very much aware of the fact that the Petitioner did not want to do anything that would cause her to lose her resident status in Canada. The Respondent asserted that the Petitioner and the two girls intended to make Russia their home when they moved there in 2009 because they moved out of the apartment and shipped all their belongings to Russia. The Court held that moving out of a rented apartment, when planning on an extended stay in Russia, cannot lead to the conclusion, without more, that the habitual residence in Canada was going to be abandoned. While the Petitioner did ship a large number of personal items to Russia, she also stored personal property in Canada, including her vehicle. If there had been no intention to return, it was reasonable to assume that the Petitioner would have sold the vehicle rather than stored it. Finally, the Petitioner and the two girls in fact returned to Canada after an extended stay in Russia. For these reasons, the Court concluded that with regard to the 2009 trip to Russia that there was no shared mutual intent to abandon Canada as the habitual residence as there was no agreement between the parties to that effect. 

The Petitioner again moved to Russia from Canada in the end of June 2011. The only testimony regarding the purpose of this trip was from the Petitioner and that was to visit with her mother and son and to have time for her daughters to become closer to their brother and grandparent. This could only lead to the conclusion that there was no shared, mutual settled intention to abandon Canada as the girls habitual residence. Since there was no shared mutual settled intention to abandon Canada, the Court concluded that the Petitioner was away from her habitual residence for a temporary absence of long duration. 

Because there was never a shared mutual intent to abandon Canada as the habitual residence for the two girls, the Court  had to consider whether there were objective facts which pointed to that conclusion. The Court concluded that being present in Russia which permitted her mother and son to move to a larger apartment, starting the process of obtaining real property in Russia, and the permission granted the Petitioner by the Respondent to change the place of registration for the girls in Russia did not point to an intention, on the part of the Petitioner, to change her habitual residence. Rather, the steps taken by the Petitioner were her right as a Russian citizen. Nothing was presented to the Court to show that these actions could only have been taken if the Petitioner intended to reside permanently in Russia. Even marrying while in Russia did  not support the argument of abandonment as her husband, though they were separated, now resides in Canada. 

In addition, there was no evidence before the Court for it to conclude that the Petitioner abandoned Canada as the habitual residence of the girls in favor of the United States. The Court could not conclude that the evidence of acclimatization was sufficient to establish that Canada has been abandoned as the girls habitual residence due to acclimatization. In  light of the Court's direction to “be slow to infer from such contacts that an earlier habitual residence has been abandoned” the Court did not believe that the evidence was sufficient to overcome this directive. The Court concluded that returning the girls to Canada would not be tantamount to taking them “out of the family and social environment in which [their] life has developed. 

The Court concluded that the wrongful retention occurred in September 2013; that  the retention breached the rights of custody attributed to the Petitioner under the law of the habitual residence; and  the Petitioner was exercising her custody rights at the time of the retention.

Dawson v McPherson, 2014 WL 4748512 (M.D.N.C.) [United Kingdom] [Necessary Cos



In Dawson v McPherson, 2014 WL 4748512 (M.D.N.C.)) the petitioner moved pursuant to ICARA, for attorneys fees and expenses after the district court granted his petition for return of his children, C.M.S. and L.S. to the United Kingdom.

The Court's indicated that its decision to order the return of the Children to Petitioner signified that Respondent's actions were wrongful. The Court recognized that ICARA, by providing for an award of attorneys' fees and expenses after a judgment of wrongful removal or retention of a child, contemplates the use of such awards as a deterrent to violations of the Convention. In light of this purpose, and after careful review of the parties' pleadings on this issue, the Court found that Respondent failed to establish that it would be clearly inappropriate for the Court to award attorneys' fees and expenses to Petitioner in this instance. Therefore, the Court only had to determine the reasonableness of the dollar amount requested by Petitioner for fees and expenses related to the return of the Children. Petitioner requested a total of $41,938.57 in attorneys' fees and expenses and $7,795.78 for other, non-legal expenses incurred by Petitioner in securing the return of the Children.

The district court held that it is well established that the "lodestar" for obtaining a Request for method for determining reasonable attorneys' fees.  Consistent with the general acceptance of the method, federal courts have applied the lodestar approach to cases where ICARA is at issue. The lodestar figure is determined by multiplying the number of reasonable hours expended times a reasonable rate. See  Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). To determine the reasonable rate and reasonable number of hours to use in calculating reasonable attorneys' fees under the lodestar approach, the Court is guided by the twelve "Johnson " factors: (1) 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 customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputations, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.  Rum Creek, 31 F.3d at 175; (citing  Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974)). These "Johnson " factors are to be considered as part of the Court's
determination of the reasonable number of hours and the reasonable rate to be used in this case. See  Grissom, 549 F.3d at 320-21. Therefore, in applying the lodestar analysis, the Court has the discretion to reduce the award requested by Petitioner.  Hensley, 461 U.S. at 437. With this standard in mind, the Court determined  whether the number of hours incurred by Petitioner's attorneys in this matter were reasonable.   To establish the number of hours reasonably expended, Petitioner had to  "submit evidence supporting the hours worked." Hensley, 461 U.S. at 433. The court indicated that number of hours should be reduced to exclude hours that are "excessive, redundant, or otherwise unnecessary" in order to reflect the number of hours that would properly be billed to the client.   Where a district court finds a duplication in the hours reported by the attorney of the party requesting attorneys' fees, the court has discretion to exclude from the calculation of attorneys' fees hours that were not "reasonably expended."  Hensley, 461 U.S. at 433. Furthermore, "[w]here the attorney's
documentation is inadequate, or the claimed hours are duplicative or excessive, the [C]ourt may reduce the award accordingly.  Neves, 637 F.Supp.2d at 340 (citing Wasniewski, 549 F.Supp.2d at 972).

The Court found that there was a lack of specificity as it related to some of the work performed by Ms. Dildine, Ms. Hawkins, or Mr. Cox. There was also, what appeared to be duplication of the work done by Ms. Dildine, Ms. Feuchs-Marker, Ms. Hawkins, and Mr. Cox. As such, it was not possible for the Court to isolate or distinguish the exact number of hours Ms. Dildine, Ms. Feuchs-Marker, or their assisting staff spent on performing necessary tasks to prepare for this case or to determine why the efforts of these four individuals, on what appears to be very similar-if not the same-activities, were necessary in this case. Therefore, the Court  reduced the number of hours reported for work done by Petitioner's North Carolina representation by 20%.

 Petitioner's Leeds Representation reported 22.75 hours preparing the December 4, 2013 Request for Return Application under the Hague Convention  and assisted in "subsequent related matters through the end of December 2013." In support of these hours worked, Petitioner filed an affidavit along with an invoice, which purported to breakdown the fees charged for the Leeds Representation. The fee breakdown, however, was not as informative as the itemized list provided by Petitioner's North Carolina Representation. The fee breakdown contained the date of services, a description of services rendered, the name of counsel performing the services, the hours worked, counsel's rate per hour, the amount of time worked, and the billed amount. While the fee breakdown was detailed, in that it told who worked on the case, for how long, and how much was billed for the services, the explanation of the actual services was not descriptive. For instance, the description for one hour, for which the client was billed L921.25, stated "Attendance-Client."   Other examples of billed for time, included descriptions such as, "Long Telephone Calls-Client," Consideration/perusal-Detailed Correspondence/ emails-TOB letter," and "Preparation/drafting-Detailed File Note."  The court pointed out that Petitioner "bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Hensley, 461 U.S. at 437. As it related to his Leeds Representation, Petitioner had failed to meet this burden. The Court was unable to decipher what tasks the Leeds Representation actually performed during the time for which they billed Petitioner based on the fee breakdown submitted by Petitioner. Therefore, it was impossible to know whether Petitioner was billed for duplicative efforts and whether the time billed for was spent on necessary tasks relevant to the action. Accordingly, the Court denied Petitioner's request for attorneys' fees for his Leeds Representation, because the Court could not determine whether any of the hours billed were reasonable in light of the factors to be considered.

   Once a reasonable number of hours has been determined, the Court must determine
a reasonable rate, "calculated according to the prevailing market rates in the relevant community." Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984)."This determination is fact-intensive and is best guided by what attorneys earn from paying clients for similar services in similar circumstances." Rum Creek, 31 F.3d at 175.    Both the Supreme Court and the Fourth Circuit prescribe a method of rate determination whereby the district court uses discretion influenced by "evidence of fees paid to attorneys of comparable skill in similar circumstances." Blum, 465 U.S. at 895;  Rum Creek, 31 F.3d at 175. In this instance, as to Petitioner's North Carolina Representation, the Court reviewed Ms. Dildine's Affidavit submitted by Petitioner and the Court has also reviewed the 2012 North Carolina Bar Association Economic Survey ("North Carolina Survey") outlining estimations of the hourly rates charged by attorneys and support staff. Based on this review, the Court found that a rate reduction was appropriate as to Ms. Dildine, Ms. Hawkins, and Mr. Cox. The Court found that Ms. Dildine's, Ms. Hawkins', and Mr. Cox's rates should be reduced based on this information, in order to achieve congruence with those rates charged for similar services in the North Carolina legal market. Therefore, the Court, in its discretion,  reduced the rates of Ms. Dildine to $215, Ms. Hawkins to $75, and Mr. Cox to $50. However, as to Ms. Feuchs-Marker's fee, the Court found the fee of $375 per hour was reasonable based on Ms. Feuchs-Marker's experience and the amounts billed by those with similar experience in North Carolina.

   Petitioner also requested that the Court award him $6,979.66 for non-legal expenses, for which he could provide documentation. Those amounts were attributed to (1) the cost of the round trip airline ticket for Petitioner; (2) the cost of the one-way airline tickets for the Children; (3) the cost of the change flight fee for Petitioner; (4) the cost of the private investigator hired to locate the
Children in the United States; and (5) Petitioner and the Children's lodging in the United States. The Court found these non-legal expenses to be properly documented and reasonable. Further, such expenses, which were incurred during the pendency of this action, were necessary and not inappropriate pursuant to 42 U.S.C.  11607(b)(3).See  Neves, 637 F.Supp.2d at 344 (finding that airfare, lodging, transportation, postage, and investigative expenses reasonable and necessary under ICARA). Thus, Petitioner was entitled to receive those actual expenses in the amount of $6,979.66, given the Court's finding as to the necessity of those expenses which were related to Petitioner's efforts to obtain the return of the Children under ICARA and the Hague Convention.

   Petitioner also requested an additional $816.12 in court costs relating to his Article 15 Declaration. Petitioner was unable to provide documentation concerning these expenses. Therefore, the Court was unable to assess the validity of such expenses. Accordingly, the Court declined to award Petitioner the expenses for which he could not provide documentation, specifically, as it related to Petitioner's
request for $816.12 in court costs associated with his Article 15 Declaration.

The court ordered that Respondent was to pay to Petitioner the total sum of $30,463.26, reflecting attorneys' fees in the amount of $23,483.60 and necessary expenses in the amount of $6,979.66.


De La Vera v Holguin, 2014 WL 4979854 (D. NJ) [Spain] [Habitual Residence] [Petition granted]



In De La Vera v Holguin, 2014 WL 4979854 (D. NJ) the district court granted the Petition of Washington Alberto Delgado De La Vera for the return of his two minor children to Spain.
Petitioner was a Spanish citizen residing in Zaragoza, Spain, and was the father of two minor children, K.H. and G.H. Respondent Sonia Piedad Holgguin, the mother of K.H. and G.H., was a Spanish citizen living in Trenton, New Jersey, with K.H. and G.H. In April 1999, the parties' first child, K.H., was born in Ecuador. In or around fall 2001, the parties moved with K.H. to Zaragoza, Spain.  The parties' second child, G.H., was born in September 2002 in Spain.. Although Petitioner and Respondent never married, the parties lived together with their two children as a familial unit in Zaragoza, Spain, from fall 2001 until July 2012. K.H. lived eleven years of her life, and G.H. lived ten years of her life, in Zaragoza, Spain. Petitioner was employed as a bus driver for over ten years in Spain. Respondent was primarily a stay at home parent who worked for a few months at a time through job placements by a staffing agency.

In July 2012, Respondent was unemployed and traveled to the United States through a visa-waiver, which permitted her to stay in the United States for ninety days, to find short-term work. Respondent purchased a round trip ticket to Orlando, Florida, arriving July 13, 2012 and with a return flight scheduled for October 5, 2012. Respondent left many of her personal items and effects in Zaragoza when she departed for the United States. Shortly after arriving in the United States, Respondent traveled to Trenton, New Jersey, where she knew classmates from Ecuador, and rented a room. From July 13, 2012, through September 14, 2012, the children resided with Petitioner at the family residence in Zaragoza. In September 2012, Respondent suggested to Petitioner that the children travel to the United States. The children traveled to the United States, arriving in Philadelphia on September 14, 2014, bringing along clothing, school records, immunization records, photographs, karate medals, and K.H.'s guitar. The children left many of their personal items and effects in Zaragoza. The children's return flight was scheduled for October 14, 2012. Petitioner testified that the children's trip to the United States was only supposed to be for one month, during which time they would visit their paternal grandfather and then travel back to Spain with Respondent. Petitioner stated that the children brought the guitar, photographs, and medals to “show their grandfather and to leave some of those things with him as a memento. Petitioner testified that he sent the children to the United States with their school and immunization records because Respondent told him “that all those documents were necessary so that you could move around the United States freely. So that if the police were to stop them by showing those documents, she could be supported by those documents.”
In contrast, Respondent testified that she suggested to Petitioner that the children travel to the United States to live with her and attend school in the United States, but Petitioner said no. Respondent stated then suddenly one day Petitioner called her and told her the children would be arriving in the United States that same week and for Respondent to find out the documents needed for the children to begin school when they arrived. As to the length of the children's stay in the United States, Respondent's testimony was inconsistent. First, Respondent testified that she and Petitioner discussed the possibility of the entire family relocating to the United States, including Petitioner and “the girls would come and then see if they would adapt here. If they didn't get adapted to this place, then we would return.”  Later Respondent, however, insisted that Petitioner “knew from the very beginning that the girls were not going to return to Spain” and that Petitioner was also going to move to the United States permanently.

The Court found that Petitioner initially agreed to allow the children to stay abroad for an indefinite duration to attend school in the United States. Petitioner sent the children to the United States at the beginning of the school year with their school records. Prior to leaving Spain, Petitioner did not send the children to the first few days of their school year in Spain. The Court found incredible Respondent's testimony that both parties agreed, before the children arrived in the United States, that the children were not going to return to Spain and that Petitioner would also relocate to the United States.

In October 2012 Respondent advised Petitioner she was ending her relationship with Petitioner for a new man in the United States and that the children would not be returning to Spain. The Court found that Petitioner did not consent to Respondent keeping the children in the United States and began to make arrangements to travel to the United States to bring the children back to Spain. Petitioner arrived in the United States on November 8, 2012. Petitioner intended to take the children on a trip to visit their paternal grandfather in Massachusetts and then bring the children back to Spain. Petitioner ultimately returned the children back to the custody of Respondent pursuant to a court order for temporary custody obtained by Respondent from the New Jersey Superior Court.
On December 8, 2012, Petitioner returned to Spain without the children because he was required to return to work. On December 11, 2012, Petitioner filed a report with the Spanish Department of Homeland Security stating the children were wrongfully detained in the United States without his consent. On or about December 22, 2012, Petitioner submitted a petition for the return of the children with the Spanish Central Authority. On or about July 10, 2014, Petitioner filed the Petition with the district Court.

During the two years of living in the United States, the children lived with Respondent at three different residences. Currently, Respondent rented two rooms from a couple she met after arriving in Trenton two years ago.  The children shared a bedroom on the same floor as the couple, and Respondent has a room in the basement. Respondent and the children share a kitchen and bathroom with the couple.  Respondent has also held four different jobs while in the United States and was working at a factory making approximately $450 per week.  Respondent did not have legal authority to work in the United States. Both children attended school in the United States for two years but did not participate in any extracurricular activities. The only extended family the children had contact with in the United States was Petitioner's father in Massachusetts but have only visited him on two occasions. They overstayed their visas and are not able to travel outside of the United States to visit other extended family members or Petitioner, and the children did not have healthcare insurance.
The Court interviewed K.H. and G.H. separately in camera.  K.H. was fifteen years old and had just begun the tenth grade. K.H. stated that she preferred to live in the United States but might have been okay with returning to Spain in November 2012 if her mother had returned with her and her sister.  G.H. just turned twelve years old and was in the seventh grade. When asked what types of things she does in the United States with her mother, G.H. could only identify going to the mall and had to be prompted to identify more activities such as playing games. When asked directly, G.H. stated she wanted to remain in the United States but did not give any reasons for her choice.

The Court observed that first step in its analysis was determining the actual date of the children's removal or retention “so as to establish the relevant date of [the children's] habitual residence for purposes of the Convention.” Karkkainen, 445 F.3d at 290. Here, the assertion was that the children were unlawfully retained here by Respondent. In determining the date of a wrongful retention, the court pointed out that Third Circuit has agreed that the wrongful retention does not begin until the noncustodial parent clearly communicates her desire to regain custody and asserts her parental right to have her child live with her.” The Court found that the date of retention may have taken place sometime during October 2012, but began no later than November 9, 2012. Petitioner testified that during October 2012 he contacted Respondent and Respondent told him that she intended to remain in the United States with the children permanently. After the telephone call, Petitioner understood that Respondent did not intend to bring the children back to Spain, informed her that he did not consent to the children remaining in the United States, and planned a trip to the United States to bring the children back to Spain.

Having determined that November 9, 2012 was the measuring date of the children's wrongful retention, the Court had to determine the place of the children's habitual residence as of this date. The record indicates that K.H. and G.H. had only been in the United States for a little over a month when the wrongful retention occurred. It could not be said that K.H. and G .H. became “firmly rooted in their new surroundings.”Karkkainen, 445 F.3d at 292. Furthermore, neither party argued that the children had acclimatized to the United States at the time of retention. It was undeniable that Spain was the children's habitual residence before they traveled to the United States. As there was no shared mutual intent, on the part of the parties, for the children to abandon their prior residence and no evidence that the children were acclimatized to the United States prior to retention, the Court concluded that the children's habitual residence immediately prior to November 9, 2012, was Spain.

The Court found that at the time of the children's retention in the United States, Petitioner had rights of custody as established by Spanish law. Respondent's retention over the children in the United States against Petitioner's will violated Petitioner's right to exercise parental authority over K.H. and G.H. in accordance with the Spanish Civil Code and Spanish Constitution. From July 2012 through September 2012, Petitioner was the primary caregiver of the children while Respondent was in the United States. Respondent acknowledged that Petitioner remained in contact with herself and the children during the first few weeks the children were in the United States. Once Petitioner was informed by the authorities in the United States he was not allowed to take the children with him back to Spain against Respondent's wishes, Petitioner began the legal process to have his children returned. These facts sufficiently establish that Petitioner was exercising his custody rights at the time of wrongful retention. The district court held that  Petitioner satisfied his prima facie burden of proving that K.H. and G.H. were wrongfully retained in the United States.

Respondent raised three affirmative defenses recognized by the Convention: (1) that Petitioner consented and acquiesced to the children's retention in the United States; (2) that proceedings were commenced more than one year after wrongful retention and the children are now “well settled” in the United States; and (3) that the children are at an age and degree of maturity at which it is appropriate to take account of their views, and both children stated they wanted to remain in the United States. The court, however, “retain[s] the discretion to order return even if one of the exceptions is proven.”Feder v. Evans–Feder, 63 F.3d 217, 226 (3d Cir.1995).

Nothing in the record demonstrated that Petitioner consented to the children's permanent retention in the United States or to Respondent making unilateral decisions regarding the children's future, nor was there evidence that Petitioner acquiesced to the present arrangement. The evidence did not support Respondent's contention that the arrangement was permanent. Moreover, since learning of Respondent's decision to retain K.H. and G.H. in the United States, Petitioner  objected and pursued his rights under the Convention. Thus, the record demonstrated that Petitioner agreed to allow the children to visit the United States for an indefinite period, but it was unclear that he agreed to anything beyond that. This intent fell short of the standard for finding consent or acquiescence under Article 13(a) of the Convention.

The Court found that K.H. and G.H. were not sufficiently settled here. The children arrived in New Jersey two years earlier and lived in three different residences, and currently shared an apartment with strangers Respondent had only known for a short period of time. The children were not involved in any extracurricular activities, and the only family they had, outside their mother, was a paternal grandfather they had only seen twice. Furthermore, Respondent's employment is not settled as she testified to having at least four different jobs since her arrival, some with hours in the middle of the night. Respondent testified that she dids not have the legal authority to work in the United States. Finally, while not a dispositive factor, the immigration status of Respondent and the children was a factor that disfavors finding the children settled in their new environment. Respondent and the children originally travelled to the United States on a tourist visa that expired in October 2012 and December 2012, respectively. Respondent had not applied for residency or any other visa on behalf of herself or her children. All three were here illegally and thus subject to deportation at any time. The Court found that Respondent had not proven that K.H. and G.H. have settled in their new environment.

The Court noted that while the child's wishes can be the sole reason that a court refuses to order the return of the child to his or her habitual residence a ‘court must apply a stricter standard in considering a child's wishes when those wishes are the sole reason underlying a repatriation decision and not part of some broader analysis,’ such as whether the child would suffer a grave risk of harm if returned to his or her habitual residence. . In analyzing whether to apply the “wishes of the child” exception a court should consider: “whether the child is of sufficient age and maturity for his or her views to be taken into account” and “whether a child's desire to remain or return to a place is the product of undue influence.” The children were fifteen years old and twelve years old and had been in the United States for just over two years. Both children were informally questioned in the presence of counsel but not the parties. Both children expressed the view that they would prefer to remain in the United States, but only K.H. provided reasons for her preference. K .H. expressed that she believed there were better opportunities for her in the United States than Spain and mentioned that she did not believe her mother would return to Spain if she was sent back there. K.H. acknowledged that her job opportunities and her life in the United States in general are more limited than in Spain because of her immigration status. Both children reported to have contact with their extended family members in Spain and acknowledged the only family they had in the United States was their mother and their paternal grandfather, who they had only seen twice. The Court found that K.H. has reached an age of maturity at which it was appropriate to take account of her views. The circumstances do not warrant providing their views controlling weight.  The children had lived here two years, at least in significant part, as direct result of their wrongful retention here by Respondent. As the Third Circuit noted, “[a] lengthy wrongful retention could enable the child to become comfortable in his or her new surroundings, which may create a desire to remain in his or her new home.”Yang, 499 F.3d at 280. In such a case, “application of the exception ... would reward [a respondent] for violating [a petitioner's] custody rights, and defeat the purposes of the Convention.”

In addition to requesting that this Court order K.H. and G.H.'s return to Spain, Petitioner sought Petitioner's expenses and costs, including attorney's fees and transportation costs, pursuant to 42 U .S.C. § 11607.  The Court had already determined that the assignment of pro bono counsel to Respondent was appropriate due to Respondent's financial circumstances and inability to pay. Thus, an award of expenses and costs would be “clearly inappropriate.” Petitioner's request for expenses and costs was denied.