Monday, December 28, 2015
Tann v Bennett, 807 F.3d 51 (2d Cir 2015)[United Kingdom] [Federal and State Judicial Remedies] [Appeal]
In Tann v Bennett, 807 F.3d 51 (2d Cir 2015) Petitioner Lisa Tann appealed from the denial of her petition filed under the International Child Abduction Remedies Act . Tann, a citizen of the United Kingdom who resided in Northern Ireland, alleged that Respondent George Bennett wrongfully abducted their son, J.D., to the United States. The district court denied Tann's petition, finding that even though Northern Ireland was J.D.'s habitual residence, the child's preference for staying in the United States excepted him from being returned. Tann appealed the district court's judgment to this Court. While that appeal was pending, the Family Court of Orleans County, State of New York, granted full custody to George Bennett. The Bennetts moved to dismiss Tann's appeal as moot, on the grounds that the Court can no longer grant effective relief. The Second Circuit denied the motion. It observed that a case is moot when the issues presented are no longer ‘live’ or the parties ‘lack a legally cognizable interest in the outcome.’ ” Blackwelder v. Safnauer, 866 F.2d 548, 551 (2d Cir.1989) (quoting Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982)). It rejected the Bennetts argument that the appeal was moot because the New York court's custody determination resolved the parties' dispute such that the Second Circuit could no longer grant Tann's requested relief. It pointed out that the Hague Convention provides that “[t]he sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention.” Hague Convention, art. 17.In her appeal Tann contended that the district court erred in holding that J.D. should continue to reside in the United States and that the New York courts are thereby authorized to resolve the underlying custody dispute on the merits. The court pointed out that if it reversed the district court's judgment and find that Northern Ireland was J.D.'s habitual residence and no exception applied to prevent his return, J.D. could be returned to Northern Ireland. In that event, the Northern Ireland courts would have jurisdiction to determine the merits of the underlying custody dispute. Holding that Tann's petition was moot because the Bennetts received a favorable custody determination in a potentially friendlier New York court could encourage the jurisdictional gerrymandering that the Hague Convention was designed to prevent.
Matter of Adamis v. Lampropoulou, 2015 WL 2344079 (EDNY, 2015)[Petition denied] [Greece] [Consent] [Age and Maturity] [Video testimony] [in camera]
In Matter of Adamis v. Lampropoulou, 2015 WL 2344079 (EDNY, 2015) Petitioner Nikolaos Adamis filed a verified petition, for the return of his minor son, D.A., against D.A.'s mother, who was living with D.A. in Douglaston, New York at the time. Because Adamis was in Greece for the entire proceeding, he testified and participated in the proceeding via video conference, as did two other witnesses located in Greece. The Court interviewed D.A. in camera, but on record and in the presence of both parties' counsel, to determine his wishes regarding his place of residence. At the conclusion of the trial, the Court denied the petition for return.
D.A. was the son of Petitioner and Respondent. At the time of the trial, D.A. was 12 years old. Petitioner was a U.S. and Greek citizen who was living in the United States in the 1990s. Respondent was a Canadian citizen of Greek heritage who moved to New York with her family in 1968. On September 2, 2001, Petitioner and Respondent wed in Greece. After the events of 9/11, which occurred only days later, Petitioner decided that they would relocate, with Toula, he child from a previous marriage, to Greece. Petitioner and Respondent moved to Greece for a "better lifestyle." D.A. was born in Greece in October 2002, and lived there continuously until he was brought to the United States by his mother in December 2013. Discussions about moving to the United States began when D.A. was in fourth grade, prompted by the difficulties he was facing in school. After D.A. told his mother he could no longer handle his school situation, she told Petitioner that they had to move to the United States for D.A.'s sake. Petitioner responded, Okay, okay, whatever makes you happy." It took time, however, to raise the money to move to the United States. Thereafter, D.A.'s mother repeatedly raised the topic of moving with Petitioner, and he told her several times that they could go. In the summer of 2013, D.A.'s mother began planning the move in earnest. She told D.A. that they were going to move, and began packing their household items and personal belongings to be shipped to the United States. D.A. spoke to his father directly about the move, saying that there were things that he (D.A.) could not do in Greece and that he wanted to move. D.A.'s father simply responded, "okay, okay." Many people in Porto Rafti knew about the move, including D.A.'s school, his classmates and their families, the family's neighbors, and Respondent's friends and co-workers. In fact, her co-workers performed a farewell song for D.A.'s family at the annual Thanksgiving dinner shortly before they moved, and D.A.'s school class also held a farewell party for him. On December 13, 2013, Respondent and D.A. left Porto Rafti to travel to the United States. By that time, the house was almost empty, except for furniture that did not belong to the family, Petitioner's personal belongings, and unwanted personal items D.A. and Respondent left behind. Petitioner was at the Porto Rafti home that day, having come home the night before so that he could say goodbye. After Respondent and D.A. left for the United States in December 2013, Petitioner changed his mind about letting D.A. live in the United States. 14 On January 6, 2013, when Respondent called Petitioner, he asked her when they were returning to Greece. Respondent told Petitioner that they were not returning to Greece and reminded him that he knew that they were moving, that they had spoken about the move many times, and that he had seen them packing their belongings. On January 22, 2014, Respondent went to the Greek Ministry of Justice, and filed a complaint pursuant to Article 13 of the Hague Convention, seeking the return of D.A. to Greece.
During the trial, the Court interviewed D.A. in the presence of Petitioner's and Respondent's counsel. The Court's assessment of D.A. was that he was an unusually poised and mature adolescent, who was comfortable with adults, and engaged readily and openly with the Court. The Court found D.A. perceptive, bright, forthright, rational, friendly, credible, and serious about his education. His answers and demeanor evinced clarity about his wishes and the reasons for them, and complete awareness of the consequences of the court proceeding. D.A. wanted to "stay in America." He believed that "America's definitely better to live all year around" because his "whole family is here…. There's a better school here, and I just like it overall here." Since arriving in the United States, D.A. had been living in an apartment with his mother and sister in a building where his mother's aunt and uncle also live. D.A. and his sister each had their own bedroom. D.A. was very close to his sister, Toula, and would not want to return to Greece if she remained in the United States, which was her current plan.
The parties stipulated to Petitioner's prima facie case for wrongful removal. They agreed that (1) D.A.'s habitual residence at the time of his removal was Greece, and (2) Petitioner had custodial rights pursuant to Greek law. It found that Petitioner consented to D.A. moving with his mother and sister from Greece to the United States on December 13, 2013. This evidence included the testimony of Respondent, Toula and D.A., as corroborated by December 2013 audio recording of Petitioner stating that he had given permission for them to move. The Court found that Petitioner consented to Respondent's removal of D.A. from Greece on December 13, 2013, and his retention in the United States thereafter. See In re Kim, 404 F. Supp. 2d at 520-21 (determining, based on the credibility of the witnesses, that the respondent established by a preponderance of the evidence that the petitioner consented to the child's move).
The Court found that the age and maturity exception provided another basis for refusing to order D.A.'s return to Greece and that D.A. was sufficiently mature to object to his return and has credibly done so. The Court's finding was based largely on its interview of D.A. The Court found D.A. to be an exceptionally bright, thoughtful, sociable and well-adjusted adolescent. The Court also found that D.A.'s reasons for wanting to remain in the United States were rational and well-considered: (1) superior educational opportunities, especially in D.A.'s areas of interest, i.e., science and computer science; (2) the chance to participate in a wide range of extracurricular activities; (3) an abundance of relatives with whom he is very close; and (4) more and better friendships. The sincerity and rationality of D.A.'s motivations and desires was corroborated by the testimony of D.A.'s family members, who credibly testified about how much fuller and happier D.A.'s life has become since moving to the United States.
Fuentes Rangel v Woodman, --- Fed.Appx. ----, 2015 WL 3405132 (C.A.11 (Ga.)) [Mexico][Habitual Residence]
In Fuentes Rangel v Woodman, --- Fed.Appx. ----, 2015 WL 3405132 (C.A.11 (Ga.)) Daniel Scott Woodman appealed the district court's order granting Elizabeth Fuentes-Rangel's petition for return of their then-5-year-old child, NRW, to Mexico. On appeal Woodman argued that the district court erred as a matter of law by determining NRW's habitual residence based on the facts and circumstances immediately prior to Woodman's retention. According to Woodman, the determination of habitual residence in the prima facie case for the return of a minor child under the Convention and ICARA is made based on the facts and circumstances at the time of the hearing or trial. The Eleventh Circuit held that Woodman's interpretation of the law was incorrect. To establish a prima facie case for return of a child, the petitioner must establish by a preponderance of the evidence the child has been "wrongfully removed or retained within the meaning of the Convention."22 U.S.C. s 9003(e)(1)(A). Article 3 of the Convention, in turn, provides a retention is "wrongful" if, among other things, "it is in breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention." Thus, a threshold question in deciding a case under the Convention is, what was the child's habitual residence "immediately before the removal or retention."?. The district court's interpretation of the law was correct.
Garcia v. Pinelo, --- F.3d ---- (2015), 2015 WL 9300618 (7th Cir., 2015)[Mexico] [Rights of Custody] [Patria potestas][mature child exception]
In Garcia v. Pinelo, --- F.3d ---- (2015), 2015 WL 9300618 (7th Cir., 2015) Raul Salazar Garcia and Emely Galvan Pinelo, were both Mexican citizens. Their child D.S., was born in Monterrey, Nuevo León, Mexico in 2002. In 2006, a Nuevo León court entered a custody order recognizing Gal-van and Salazar as D.S.’s parents. The court awarded physical custody of D.S. to Galvan and gave Salazar weekly visitation rights. In late 2012, Galvan requested Salazar’s assistance in obtaining a passport and visa for D.S. to visit the United States. She intended to visit relatives in Texas and then to take D.S. to either Disney World or Disneyland. Before that trip took place, however, she became engaged to an American citizen named Rogelio Hernandez, whom she married in July 2013. Around this time, she decided that she wanted to move with D.S. to the United States. While Galvan had told Salazar about her initial plans to travel with D.S. to the United States as a tourist, she did not advise him of her change in plans. Salazar became suspicious, however, when he saw news of Galvan’s engagement on Facebook. That led to a meeting among Galvan, Salazar, and D.S. on July 30, 2013, at a Starbucks in Monterrey. Galvan and Salazar agreed then that D.S. would move to Chicago with his mother and stay there for one school year. What was not clear was what was to happen at the end of that year. Salazar recalled that the parties agreed that D.S.’s wishes would be dispositive, and Galvan thought that the two parents simply agreed to conduct further discussions. Ultimately Salzar filed a petition for return with the Mexican Central Authority who transferred the petition to the United States Department of State, which filed it in the district court on December 2, 2014. . The district court granted the petition. The Seventh Circuit affirmed.
The Seventh Circuit held that (1) the Hague Convention is no exception to the general rule, reflected in Federal Rule of Civil Procedure 44.1, that an issue about foreign law is a question of law, not fact, for purposes of litigation in federal court; (2) that Salazar had the necessary custodial right (referred to in Mexico either by its Latin name, patria potestas, or occasionally by its Spanish name, patria potestad ) over D.S. at the time when Galvan refused to permit his return to Mexico. Because D.S.’s habitual residence was Mexico, Galvan’s retention of D.S. was wrongful under the Convention; and (3) the district court had adequate reason to refuse to defer to D.S.’s indications that he prefers to stay in the United States. .
The Court noted that the district court appointed a guardian ad litem for D.S. At first, D.S. did not indicate a preference for either Mexico or Chicago. Over time, however, his views evolved. In late April 2015, D.S. told his guardian that he wanted to stay in Chicago. The district court conducted an in-camera hearing with D.S.,by then 13 years old, to ascertain his views. D.S. told the judge that he preferred to stay in Chicago because it had better schools and opportunities, was safer, and he did not want his mother to be forced to pay Salazar’s costs and fees. He indicated that he wanted to finish eighth grade in Chicago, but that if he were not admitted to a good high school after eighth grade, he might return to Mexico. While he stated a preference for remaining in Chicago, he did not object to returning to Mexico. At some point while all this was happening, Galvan’s had overstayed their tourist visas and had no other basis for staying in the United States. This meant that she probably could not travel outside the United States, even to visit D.S. This news prompted Galvan to request a second in-camera hearing between the judge and D.S. She believed her immigration difficulties would change D.S.’s mind: since she would be unable to visit him in Mexico, it would be very difficult for D.S. to see his mother, possibly for a very long time. The district court obliged. During the second hearing, D.S. more clearly objected to returning to Mexico. While he gave several reasons for doing so, he also indicated that he would not object to returning if Galvan’s immigration situation were quickly resolved and she could travel freely between the United States and Mexico.
After a hearing the district court granted summary judgment for Salazar. It found as a matter of fact that when Salazar and Galvan met in the Monterrey Starbucks in July 2013, they agreed that it would be D.S.’s decision whether to remain in Chicago after one school year had passed. It also found that Mexico was D.S.’s country of habitual residence. Applying the law of the Mexican state of Nuevo León, the court found that Salazar had the right of patria potestas over D.S., and that this qualified as a “right of custody” for purposes of the Convention. This meant that as of the summer of 2014 D.S. was wrongfully retained. The court found that D.S. had eventually objected to returning to Mexico, and that he was sufficiently mature. It nonetheless declined to give effect to D.S.’s wishes, because it determined that doing so would not serve the purposes of the Convention. It thus ordered D.S. to be returned to Mexico.
The Seventh Circuit observed that the doctrine of patria potestas is a gender-neutral legal regime that regulates the relationship between parents (or parent-like figures) and their children. The court has recognized patria potestas as a right of custody” within the meaning of the Convention. Altamiranda Vale v. Avila, 538 F.3d 581, 587 (7th Cir.2008). Galvin denied that Salazar has such a right on two bases. Primarily, she asserted that he never possessed the patria potestas right over D.S.;and that any patria potestas right he may have held was extinguished by a 2006 custody agreement. The Court rejected both arguments. The Court observed that some courts have held that patria potestas may be extinguished by a custody agreement. See, e.g., Gonzalez v. Gutierrez, 311 F.3d 942, 954 (9th Cir.2002), abrogated by Abbott, 560 U.S. at 10, 22; see also Avila, 538 F.3d at 587. None of these decisions, however, cite any Mexican law for this proposition, nor did if find any basis for it in the Civil Code for Nuevo León. The Court held that patria potestas cannot be lost through a custody agreement. Even if it were theoretically possible for a parent to lose patria potestas through a custody agreement, this custody agreement would not suffice.
The Court pointed out that the district court had the discretion to refuse to return D.S. to Mexico if Galvan proved by a preponderance of the evidence that D.S. “object[ed] to being returned and ha[d] attained an age and degree of maturity at which it is appropriate to take account of [his] views.” Hague Convention art. 13, T.I.A.S. No. 11670 (mature-child exception). The district court found that D.S. was sufficiently mature to invoke the exception, and we see nothing in the record to cast doubt on that assessment. The district court also found that D.S. eventually stated his objection to being returned to Mexico during the second in-camera hearing. Both formal prerequisites for this exception were therefore satisfied. The Seventh Circuit held that nonetheless, the exception did not automatically apply in such a case, and it retained discretion to follow the rule rather than the exception. A district court retains discretion not to apply an exception, and that its decision either way is reviewed only for abuse of discretion. Here, the district court decided that it would be inconsistent with the aims of the Convention to refuse to repatriate D.S. It noted D.S.’s ambivalence before he finally objected to returning to Mexico, and the fact that D.S.’s objection was founded “almost entirely” on his belief that his mother would not be able to travel to and from Mexico because of her immigration status. The court was particularly struck by the fact that D.S. stated that he would not object to return if his mother’s travel to and from Mexico were not impeded, based on the assumption that she could obtain the proper visa within six months. The court’s greatest concern was it believed that the application of the mature-child exception in this case would reward Galvan for problems of her own making. Her immigration status was unstable because she (and D.S.) overstayed their tourist visas. It reasoned that allowing D.S. to stay in the United States would allow Galvan to benefit from her own violations of the Convention and U.S. immigration laws. The district court was concerned that exercising the exception in this case would set a precedent that allows a parent to prevent the return of a child by problems of his or her own making. It reasoned that an inquiry into a litigant’s subjective intentions is a difficult endeavor, and one potentially subject to abuse by savvy litigants. It would be difficult for a court to smoke out bad faith in these situations. Neither the Convention nor ICARA forbids the district court to take these concerns into account when it makes its ultimate decision.
Ortiz v. Martinez, --- F.3d ---- (7th Cir., 2015) 2015 WL 3650649 [Mexico][Petition denied][Grave risk of harm]
In Ortiz v. Martinez, --- F.3d ---- (7th Cir., 2015) 2015 WL 3650649 Mr. Ortiz and Ms. Martinez were the parents of two minor children, A.O., a seven-year-old girl, and L.O, a sixteen-year-old boy. Prior to August 2011, Mr. Ortiz and Ms. Martinez lived together with their two children in Mexico City. In August 2011, the couple and their two children traveled to Chicago to visit Ms. Martinez's parents and siblings, all of whom lived in the Chicago area. The couple purchased round-trip tickets, with Mr. Ortiz scheduled to return to Mexico on August 13 and Ms. Martinez and the children scheduled to return on August 20. Mr. Ortiz returned to Mexico on his scheduled departure date. Ms. Martinez and the children, however, did not. When contacted by Mr. Ortiz, Ms. Martinez informed him that she and the children would not be returning to Mexico. She accused Mr. Ortiz of sexually molesting A.O. and told him that she was keeping the children in the United States for A.O.'s safety.
Mr. Ortiz filed action in the district court in May 2012 .Because the case involved allegations of sexual abuse, attorneys for both parties agreed that the court should appoint a psychologist to evaluate the children. In May 2013, the district court held a hearing. The court conducted in camera interviews with L.O. and A.O. and received the experts report and testimony. During the hearing, the district court heard substantial evidence indicating that Mr. Ortiz had sexually abused A.O. Ms. Martinez testified that she had witnessed Mr. Ortiz inappropriately touching their daughter in her vaginal area and had frequently observed signs of such abuse. A.O. corroborated her testimony during her in camera interview, explaining, with words and gestures, how her father had put his finger in her vaginal area while the two were showering. Dr. Machabanski further substantiated these allegations. At trial, Dr. Machabanski testified that A.O. exhibited behavior consistent with having suffered sexual abuse. As detailed in his report, A.O. also exhibited strong negative emotions toward her father through her playtime behavior. Based on these and other factors, Dr. Machabanski testified that, in his “professional opinion, [A.O.] was telling the truth.”5In August 2013, the district court issued a written order denying Mr. Ortiz's petition. The court determined that Ms. Martinez had presented sufficient evidence to establish the “grave risk” defense under Article 13(b). The court credited Ms. Martinez's evidence that Mr. Ortiz previously had molested A.O. and, based on that abuse, determined that A.O. would face a grave risk of similar harm by her father if returned to Mexico. The district court independently found that L.O. was old enough and mature enough such that his desire to remain in the United States should be credited. Based on these findings, the district court denied Mr. Ortiz's petition. The Seventh Circuit affirmed. It rejected Mr. Ortiz contention that the district court erred in finding that he had sexually abused A.O. and thus that she faced a grave risk of harm if returned to Mexico. It observed that the Convention's mandatory-return rule is subject to the affirmative defense of grave risk: [T]he judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that—... b there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Hague Convention, art. 13(b). Sexual abuse constitutes a “grave risk” of physical or psychological harm. Similarly, sexual abuse, particularly by a custodial parent, is a well-recognized example of an “intolerable situation” within the meaning of this exception. The party opposing the return of a child has the burden of establishing this exception by clear and convincing evidence. 22 U.S.C. § 9003(e)(2)(A).
Mr. Ortiz contended that the finding was based on unreliable evidence and thus was clearly erroneous. The Circuit Court of Appeals found that the district court explicitly acknowledged that Ms. Martinez had to meet the demanding “clear and convincing” standard. The evidence of sexual abuse was substantial and sufficient to meet that standard. During her testimony, Ms. Martinez described, in detail, how she had seen Mr. Ortiz molesting A.O. in the shower and how, on a separate occasion, she had overheard A.O. tell her father, while the two were showering, not to touch her private areas anymore. This testimony was consistent with A.O.'s description of events during her in camera interview. Finally, in his expert testimony and report, Dr. Machabanski opined (1) that A.O. exhibited behavior consistent with having suffered sexual abuse; (2) that she exhibited strong negative emotions toward her father through her playtime behavior; and (3) that, in his “professional opinion, she was telling the truth.”
The Seventh Circuit found that the district court did not commit clear error. As the Supreme Court has noted, the clear error standard “demands even greater deference to” a district court's factual findings “[w]hen [those] findings are based on determinations regarding the credibility of witnesses.” Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). As a practical matter, this means that such findings “can virtually never be clear error,” unless premised on testimony that is “internally inconsistent,” facially implausible, or “contradicted by extrinsic evidence.” In other words, a district court's credibility findings are “binding on appeal unless the [court] has chosen to credit exceedingly improbable testimony.” Discrepancies arising from impeachment, inconsistent prior statements, or the existence of a motive do not render witness testimony legally incredible.” None of Mr. Ortiz's contentions were sufficient to render the evidence credited by the district court “legally incredible.” Consequently, it concluded that the district court did not clearly err in finding that Mr. Ortiz had sexually abused A.O. Because Ms. Martinez's presented sufficient evidence to establish the “grave risk” exception, the district court properly denied Mr. Ortiz's petition.
Wednesday, May 20, 2015
In Rana v Multani, Slip Copy, 2015 WL 2330163 (S.D.N.Y.) the district court dismissed the Hague Petition for lack of subject matter jurisdiction. The Petitioner alleged he and respondent were married on July 16, 2010, in New York City. Petitioner is a United States citizen, and respondent became a legal resident of the United States after the parties were married. According to petitioner, in the fall of 2012, he and respondent were preparing for the birth of their first child. However, shortly before respondent was expected to give birth, she left the United States and journeyed to her parents' home in Ontario, Canada. On October 16, 2012, the parties' son, R.R., was born in Ontario. R.R. has lived in Canada with respondent since his birth. Petitioner alleged respondent wrongfully removed R.R. from the United States, thereby breaching his custodial rights in violation of the Hague Convention, and asked the Court to enter an order permitting him rights of access, or rights of visitation, to R.R.
The Court observed that ICARA § 9003(b) states: Any person seeking to initiate judicial proceedings under the Convention for the return of a child or for arrangements for organizing or securing the effective exercise of rights of access to a child may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed. Thus, when a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must 'order the return of the child forthwith. Abbott v. Abbott, 560 U.S. 1, 9 (2010). Petitioner sought an order granting him visitation rights. However, petitioner alleged R.R. was abducted to Canada, where he was born and had since resided with respondent. As such, the Hague Convention and ICARA direct petitioner to commence his action in Canada. Hofmann v. Sender, 716 F.3d 282, 290 (2d Cir.2013) ("ICARA provides that any person seeking to initiate judicial proceedings under the Convention for ... securing the effective exercise of rights of access to a child may do so by commencing a civil action in a state or federal court in the place where the child is located at the time the petition is filed."
The district court observed that in Rein v. Rein, 1996 WL 273993 (S.D.N.Y. May 23, 1996), the court faced the same issue and found it lacked jurisdiction to hear the petitioner's claim. There, the petitioner alleged his daughter was a habitual resident of France wrongfully removed to England, and sought an order restoring his parental rights. The court found the petitioner had not alleged his daughter "was abducted to the United States," and therefore, she was not located in a place where it could "exercise jurisdiction over her." Because the petitioner's daughter was located in England, the court reasoned, any petition pursuant to the Hague Convention had to be brought there. The same reasoning applied here. Petitioner did not allege R.R. was abducted to the United States. R.R. was allegedly being held in Canada. Accordingly, any petition pursuant to the Hague Convention had to be brought there. This Court held that it could not issue an order granting petitioner visitation rights because, R.R. was not in the United States. The Court expressed no opinion regarding an individual's right to bring a Hague Convention petition when the child allegedly abducted was not yet born. Respondents request for an award of attorney's fees and costs pursuant to ICARA § 9007 was denied as that statute only authorizes an award of attorney's fees and costs for a prevailing petitioner.
Monday, May 18, 2015
Taveras ex rel. L.A.H. v. Morales, --- Fed.Appx. ----, 2015 WL 2263023 (C.A.2 (N.Y.)) (summary order) [Spain] [Now Settled]
In Taveras ex rel. L.A.H. v. Morales, --- Fed.Appx. ----, 2015 WL 2263023 (C.A.2 (N.Y.)) (summary order) Petitioner-appellant Inocencia Herrera Taveras appealed from an order of the district court denying her petition for return of her child, L.A.H., to Spain. Taveras argued that the district court erred in determining that she had filed her petition more than a year after L.A.H. was first wrongfully retained in the United States by her father, respondent-appellee Jose Alonzo Morales. The district court ruled that Taveras's petition was filed more than a year after the wrongful retention of L.A.H. began, that L.A.H. was "now settled" in the United States, and that it was in the best interests of L.A.H. that she be allowed to remain here, and therefore declined to order that L.A.H. be returned to Spain. Taveras did not challenge on appeal the district court's finding that L.A.H. was settled in the United States, or its exercise of its discretion not to return her to Spain. She argued only that the district court erred in determining when L.A.H. was first wrongfully retained, that she filed her petition within a year of the correct date, and that the "now settled" defense was therefore not
available to Morales.
The Court of Appeals pointed out that the significance of that determination was that under the Hague Convention, if Taveras petitioned for the return of L.A.H. within a year after the wrongful retention of L.A.H. began, the district court was mandated to return the child to Spain in the absence of certain narrow affirmative defenses. If the petition was not filed within that period, and if L.A.H. was "now settled" in the United States, the district court had discretion whether to order her return. See Hague Convention art. 12.
The Court indicated that it reviews the district court's interpretation of the Hague Convention de novo, and its factual determinations under a deferential "clearly erroneous" standard, accepting the district court's findings of fact "unless we have a definite and firm conviction that a mistake has been committed." Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir.2013).
Taveras argued that the district court applied the wrong legal standard in
determining when the wrongful retention began, because it should have required a
"clear and unequivocal" communication by Taveras to Morales that she did not
consent to L.A.H.'s continued stay in the United States as a prerequisite to
finding that Morales's retention of L.A.H. had become wrongful. The Court of Appeals held that it need not decide whether the formulation urged by Taveras was the
correct standard for determining when wrongful retention begins. Assuming arguendo that such a standard applied, the district court determined that it was met here, finding that Taveras had "made her demand [for the return of L.A.H.] sufficiently
clear to [Morales]" by the end of summer 2012, and that Morales's retention of
L.A.H. beyond that period was therefore wrongful. Acknowledging that where "one parent fails to inform the other parent that she does not consent to the child's stay beyond a particular date, it would be difficult to say that retention beyond that date is wrongful," the district court distinguished the situation at bar as "not such a case."
The Court of Appeals affirmed. It held that the district courts finding was far from clearly erroneous. The district court based it on: (1) Taveras's testimony that she spoke to Morales "[m]any a time during the months of August and September ," and (2) her "unequivocal" testimony, that she did not consent to L.A.H.'s stay beyond the end of summer 2012. The court also referenced Morales's testimony that, during that same period, Taveras "continued insisting" that he send L.A.H. back to her. It saw no reason to disturb the court's finding in the face of that evidence.
Saturday, May 16, 2015
In Gee v. Hendroffe, 2015 WL 2151885 (S.D.Tex.) Petitioner moved for Attorney's Fees and Costs after the Court ordered the return of Petitioner's children to South Africa, and ordered that Respondent pay "all costs and fees incurred by Petitioner to recover the children as required under 42 U.S.C. Sec. 11607. In his motion, Petitioner requested $14,111.00 for "airline tickets, hotel, car rental and
food costs and expenses." In support, Petitioner submitted airplane, car rental, and hotel (or "airbnb") receipts totaling $12,743,84. The Court pointed out that insofar as the $1,367.16 discrepancy between requested and documented non-legal fees included food costs, Petitioner had not submitted any receipts for food costs. The court cited In re Application of Hirts, CIV.A.03-CV-03156, 2004 WL 1588227, at *1 (E.D.Pa. July 13, 2004), aff'd sub nom. Hirts v. Hirts, 152 Fed. Appx. 137 (3d Cir.2005) (granting airfare, hotel costs, and car rentals but holding "Petitioner's costs incurred in caring for himself and his children are in no way 'related to the return of the child[ren],' as required by 42 U.S.C. § 11607(b). Petitioner would have incurred the costs of feeding, clothing and otherwise supporting his children and himself whether his children were in the United States or Germany.") Respondent was directed to pay $12,743.84 for airline tickets, hotel, and car rental expenses with interest at .11 percent per year compounded annually from the date of the order.
Petitioner requested $39,727.80 for "legal fees, costs and expenses." Petitioner submitted legal bills totaling $39,727.44. Petitioner alleged "total legal fees, costs and expenses" were $57,829.80, but only requested $53,838 . Petitioner only submitted receipts for $52,471.28. The Court observed that the Fifth Circuit had examined the legal fees charged by Petitioner's counsel, Laura Dale, in a similar case. Salazar v. Maimon, 750 F.3d 514, 523 (5 th Cir.2014). The Fifth Circuit affirmed the district court's finding Dale's rates to be reasonable but her time spent on the case to be excessive. The court found that here Ms. Dale billed $450 per hour for 1.5 hours; an associate, $250 for 41.25 hours; and a paralegal, $150 for 15.25 hours; minus a 25% courtesy discount on all fees. The associate and counsel of record, Ashley Tomlinson, one of the associates in Salazar, filed a declaration stating: "I am very familiar with the hourly rate that attorneys at my level of practice charge in matters of this nature. At least one third of my practice involves multi-jurisdictional conflicts, particularly actions brought under The Hague Convention... in which I specialize. This case included a show cause hearing and an evidentiary hearing, the latter lasting 5.5 hours. Billing statements provided by Petitioner include similar detail as the ones submitted in Salazar, including entries for communication with client or co-counsel that do not indicate the subject of the communication. Costs include "Color Copies, 500.00."
Petitioner also submitted a legal bill from counsel in Las Vegas totaling $27,892.21, related to a prior Hague Convention action in the U.S. District Court in Nevada. The bill included 88.8 hours at hourly rates of $150, $250, and $325, without explanation of who was doing the work. The bill also included a lump sum paid to another attorney without any explanation: "Cal Potter, Esq., 2000.00." The Nevada action included three court appearances totaling two hours and thirty-eight minutes and eight motions totaling 73 pages excluding exhibits. Respondent Hendroffe and the children failed to appear at the Nevada hearings in violation of multiple orders. The first Order gave Respondent over a month to prepare her travel plans, yet she waited until one week before the hearing to request a telephonic appearance. Respondent traveled to at least three different continents during the time relevant to this litigation. Respondent fled with the children to Malaysia. The case was then dismissed for lack of personal jurisdiction. Gee v. Hendroffe, No. 2:13-cv-01582-JCM-NJK. During the final hearing in Nevada, Petitioner informed the court he would seek attorney's fees and costs, but these were not available under Section 11607 in the absence of an order to return the children. 42 U.S.C.§ 11607(b) ("[A]ny Court ordering the return of the children... shall order the Respondent to pay necessary expenses...."). The district court held that although Petitioner's attorney fees in Nevada arose in a different proceeding, they were "necessary expenses incurred by or on behalf of the Petitioner including court costs [and] legal fees" in obtaining an order to return the children.
Hendroffe did not file a response to the motion and did not establish
that an attorney fee award would be "clearly inappropriate." 42 U.S.C.A. § 11607. The court observed that courts exercise wide discretion in reducing fee awards under Section 11607 based on equitable considerations such as the respondent's ability to pay. Citing Salazar v. Maimon, 750 F.3d 514, 523 (5 th Cir.2014) (affirming reduction of "almost fifty percent"); Whallon v. Lynn, 356 F.3d 138, 139 (1st Cir.2004) (65%); Rydder v. Rydder' 49 F.3d 369, 373-374 (8 th Cir.1995) (46%, resulting in fees of $10,000). Given Hendroffe's failure to provide documentation of financial status or to respond at all and her flouting of court orders, the Court found that an equitable reduction was not warranted and that legal expenses and costs requested were reasonable and necessary, with the exception of the $1,367.16 undocumented non-legal expenses and an unexplained $2,000 payment by Kelleher & Kelleher to Cal Potter, Esq.
Respondent was directed to pay $11,835.23 to Laura Dale & Associates, P.C. ; and $25,892.21 to petitioner for attorney's fees, expenses and costs paid to his Nevada counsel Kelleher & Kelleher all with interest at .11 percent per year compounded annually from the date of the order.
Friday, May 1, 2015
[Mexico] [Federal & State Judicial Remedies][Temporary Restraining Order]
In Mendoza v. Pascual, 2015 WL 1880309 (S.D.Ga.) Petitioner filed a Petition Under the Hague Convention Seeking Return of the parties Child to Petitioner in Mexico along with a Motion for an Ex Parte Temporary Restraining Order
According to the petition Petitioner was L.D.M.'s mother, and Respondent his father. They were both citizens of Mexico having been married in Oaxaca, Mexico. Petitioner and Respondent had two other children, both of whom resided with Petitioner in Mexico. Petitioner and Respondent moved to the United States from Mexico in 2004, along with their oldest child. Petitioner gave birth to L.D.M. in Statesboro, Georgia, on October 15, 2006. In May 2010, Petitioner and Respondent agreed that Petitioner would return to Mexico with L.D.M. On May 26, 2010 Respondent signed a notarized statement acknowledging Petitioner's return to Mexico with L.D.M. In June 2010, Petitioner, L.D.M., and her other two children went to Mexico. Respondent stayed in the United States, having promised to send money to his family and to return to Mexico within one year. Respondent never returned to Mexico, and stopped contacting Petitioner or sending any financial support soon after Petitioner and her children arrived in Mexico. From June 9, 2010 until March 15, 2014, L.D.M. resided continuously with Petitioner at their residence in Mexico. During this time, Petitioner provided financial and other support for L .D.M. In February 2014, Respondent contacted Petitioner and asked that L.D.M. visit him in the United States. Petitioner agreed to let L.D.M. visit his father. At that time, L.D.M. was continuously enrolled in a primary school in Mexico. On March 15, 2014, L.D.M. flew from Mexico to the United States. In April 2014, Respondent asked Petitioner if L.D.M. could stay with him in the United States until the end of the school year. In June, 2014, Petitioner asked Respondent to return L.D.M. to Mexico so that L.D.M. could begin his next school term. Respondent refused to return L.D.M. to Mexico. Despite repeated requests to have L.D.M. returned to Mexico, Respondent has not returned L.D.M. to Mexico. Petitioner believed that L.D.M. was currently residing under the care of Respondent, his girlfriend, or his sister in Statesboro, Georgia, and that Respondent was not a citizen of the United States and was not lawfully present in the United States. Petitioner filed the petition on April 16, 2015.
The district court observed that Injunctive relief of the nature sought by Petitioner "is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). A plaintiff seeking such injunctive relief must make four showings: "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest."
The court found that Petitioner had shown a likelihood of success. Petitioner had shown that she had custody rights over L.D.M., and was exercising those rights at the time of his retention in Statesboro, because L.D.M. had resided continuously with her and his siblings in Mexico from June 9, 2010 until March 15, 2014 (Petition 2 19) and Petitioner has provided L.D.M.'s financial support for most or all of his life. Petitioner had also shown through her complaint that Respondent retained L.D.M. in Statesboro in violation of Petitioner's custody rights by first agreeing to keep L.D.M. only until the end of the 2014 school year , but then refusing to return L.D.M. to Mexico after the school year had ended. Because Petitioner had shown that she held and was exercising rights of custody over L.D.M. at the time he was wrongfully retained by Respondent in Statesboro, Georgia, Petitioner had shown that she had a likely success on the merits of her Petition under the Hague Convention.
The court stated that before the Court may issue an injunction, the Plaintiff must show that irreparable harm is not merely possible, but likely. Winter, 555 U.S. at 22.
"An injury is 'irreparable' only if it cannot be undone through monetary remedies."
United States v. Jenkins, 714 F.Supp.2d 1213, 1221 (S.D.Ga.2008). Petitioner alleged that Respondent, a citizen of Mexico, was not lawfully present in the United States. Because Respondent was not lawfully residing in the United States, it was likely that
an Order to appear in federal court for a full hearing on Plaintiff's motion for a
preliminary injunction will incentivize Respondent to flee the Court's jurisdiction with
L.D.M. If Respondent were to remove L.D.M. from the Court's jurisdiction, Petitioner
would be denied her opportunity to seek L.D .M.'s return to Mexico under the Hague
Convention. The likely harm to Petitioner, then, was exceedingly high, as she may not be able to continue a relationship with her son absent an injunction. Furthermore, an ex parte Order, issued without notice to Respondent, was appropriate under these circumstances due to the nature of the irreparable harm that Petitioner feared. Because there was a risk that Respondent may flee the Court's jurisdiction with L.D .M. when he learned of Petitioner's Petition under the Hague Convention, it was proper for the Court to grant Petitioner's request for the temporary restraining order rather than require Petitioner to notify Respondent of her Petition without an enforceable injunction in place at the time of such notification. Therefore, Plaintiff had shown that irreparable harm will likely ensue if the Court does not issue a temporary restraining order.
The Court weighed the equities and found that several equitable considerations weigh in Petitioner's favor. Petitioner had certain custody rights over L.D.M. under the laws of Mexico. The provisions of the Hague Convention and the ICARA were the only legal recourse available to her under the present circumstances, where her son had been wrongfully retained in Statesboro, Georgia in violation of her custody rights. If Respondent were to be notified of Petitioner's Petition without a legally enforceable order enjoining him from removing L.D.M. from the Court's jurisdiction, Petitioner's only available recourse for the return of her son would be thwarted. The stakes for Petitioner, then, were high. Very few equitable factors weighed in favor of Respondent. The temporary nature of the injunction would not greatly inhibit his rights or ability to travel, as the requested injunction is limited to keeping L.D.M. within this Court's jurisdiction for less than two weeks. The requested injunction would present little, if any, inconvenience or harm to Respondent. Upon weighing the above factors, the Court concluded that the balance of the equities favored Petitioner insofar as the court considered her request for an ex parte temporary restraining order.
The Court found that the public has an interest in seeing the custody rights of parents residing in other nations enforced in the United States' courts through the Hague Convention and ICARA. The Court concluded that the public interest in granting a temporary restraining order favored Petitioner.
The court granted Petitioner's request for a temporary restraining
order. The Court enjoined Respondent from allowing L.D.M. to be removed from the Southern District of Georgia pending a hearing on Petitioner's request for a preliminary injunction and was directed to bring to the preliminary hearing on May 6 any passports in his and/or L.D.M.'s name. It directed that pursuant to Federal Rule of Civil Procedure 65(c), the Petitioner must post bond with the Clerk of the U.S. District Court in the amount of $1,000.
Alcala v. Hernandez, 2015 WL 1893291 (D.S.C.) [Mexico] [Federal & State Judicial Remedies][Testimony by Video]
In Alcala v. Hernandez, 2015 WL 1893291 (D.S.C.) the Petitioner, a citizen of Mexico currently residing in Cosolapa, Oaxaca, Mexico, brought the federal court action to secure the return of his two children, F.C.G., his nine-year old son, and A .C.G., his two-year-old son. Because of his inability to be present in Court to testify, Petitioner filed a Motion, requesting the Court permit him and Mr. Monterosas to testify, if necessary, by Skype or telephone under Rule 43(a). As good cause for permitting him to do so, Petitioner argued that he and Mr. Monterosas cannot travel because: they likely would be unable to obtain a passport or visa to travel to the United States, and; both were financially unable to travel to the United States. Petitioner was granted leave to proceed in the District Court without prepaying costs in part because he makes roughly ten-thousand dollars per year, below the poverty guidelines. Petitioner argued that appropriate safeguards would be present to ensure compliance with the mandates of Rule 43(a), such as his accurate identification by consular officials, his seclusion during the testimony to prevent outside influence, and his willingness to arrive early to test the technology involved so as to avoid interruptions during the trial.
The District Court granted the motion. It observed that Rule 43(a) permits a court to take remote testimony "[f]or good cause in compelling circumstances and with appropriate safeguards." Courts within this jurisdiction have applied Rule 43(a)
to allow parties and witnesses to testify remotely. Courts applying Rule 43(a) have established several situations justifying a court in permitting remote testimony. One such situation is the inability to obtain a visa to enter the country. See, e.g., El-Hadad v. United Arab Emirates, 496 F.3d 658, 668-69 (D.C.Cir.2007) (finding remote testimony from Egypt appropriate when the witness could not obtain a visa to enter the United States); Haimdas v. Haimdas, 720 F.Supp.2d 183, 187 (E.D.N.Y.2010) (testifying from London because of the inability to obtain a visa), aff'd, 401 F. App'x 567 (2d Cir.2010). Other justifications include the burden of international travel, e.g., Lopez v. NTI, LLC, 748 F.Supp.2d 471, 480 (D.Md.2010),FN3 and even the impact that traveling will have on one's business, e.g., Dagen v. CFC Grp. Holdings Ltd, No.
00 CIV. 5682, 2003 WL 22533425, at *1 (S.D.N.Y. Nov. 7, 2003).
Coupled with the general relaxation of procedural rules to promote conformity with the overarching goals of the convention, i .e., the expedient return of the children, sufficient cause existed for the Court to grant the Parties' request. It found that Petitioner and Mr. Monterosas were likely unable to obtain a visa, both for reasons outside of their control and due to their indigent status. As explained by an experienced immigration attorney who submitted a declaration in response to Petitioner's first request to testify remotely, Petitioner would be required to travel to the nearest consular office to apply for a visa. Once he arrived and paid the application fee, there is no guarantee that he would have received a visa. In fact, the attorney opined that it was likely that Petitioner would be denied a visa outright because of his limited financial resources. Furthermore, because Petitioner did not have a valid passport, he would not be able to even apply for the visa. Therefore, the Court found Petitioner and Mr. Monterosas' inability to obtain a visa and their financial inability to travel satisfied the "good cause in compelling circumstances" to permit their testimonies by Skype or telephone under Rule 43.
The court found that the Parties had also shown that appropriate safeguards were in place. Fed. Rules Civ. P. 43(a). The advisory committee's notes to Rule 43(a) suggest that appropriate safeguards should be in place to ensure: (1) Accurate identification of the witness; (2) Protection against influence from persons present with the witness; and (3) Accurate transmission. Several examples of procedures used to satisfy the rule include: requiring that a notary identify the witness and swear that witness in remotely. Mission Capital Works, Inc. v. SC Rests., Inc., No. C-07-1807, 2008 WL 5100313, at *1 n. 12 (W.D.Wash. Dec. 3, 2008); ensuring that the witness is alone in the room and has been provided with the documentary evidence in advance. Scott Timber, Inc. v. United States, 93 Fed. Cl. 498, 501 (Fed.Cl.2010); and requiring the movant to pay all costs associated with the remote testimony and requiring that it be tested with the Court's IT personnel prior to the trial it which it is used. Monserrate v. K .K. Mach. Co., No. 10-3732, 2013 WL 1412194, at *4 (E.D.N.Y. Apr. 8, 2013).
The court directed that the following procedural safeguards be in place to ensure that Petitioner and Mr. Monterosas' remote testimony will satisfy Rule 43(a): “Petitioner and Mr. Monterosas will report to the Foreign Relations Secretary's local office in Cordoba, Veracruz, Mexico, on May 11, 2015, and May 12, 2015, by 8:30 AM EST; When at the appropriate local office, Petitioner and Mr. Monterosas will provide sufficient documentation to a consular official who will verify their identities with the Court prior to their testimony; Petitioner and his counsel will troubleshoot any problems with the technology in advance of the trial, and will work with the translator and Court/Consular staff to ensure that he and Mr. Monterosas can be heard and understood; Petitioner and Mr. Monterosas will testify separately, in a closed room, free of any outside influence (both in-person and through other technological means) on their testimonies; All documentary evidence presented to Petitioner and Mr. Monterosas will be marked prior to the trial and provided to them to facilitate their testimony; and Petitioner (through counsel) will pay any costs associated with the remote testimony.”
In Pliego v. Hayes, 2015 WL 1893426 (W.D.Ky.) the court granted Petitioner’s request for an Order directing that the parties' minor child be returned to Turkey. The petitioner filed a motion for attorneys fees requesting attorney's fees of $150,182.85. This include: attorney Rebecca McKelvey's 157 hours, billed at $285 and $295 ($47,082.50); attorney Brenton Lankford's 170.5 hours, billed at $250 and $260, ($47,692); Pliego's state court counsel Stephanie Ritchie's 22.10 hours, billed at $200 ($4,420); two paralegals, 182.61 hours billed at $140 ($30,955); for a total of $130,150.00. Additionally, the petitioner requested his expenses to attend trial ($1,089.88 for petitioner's airline ticket; $850.89 for his mother's airline ticket; $882.37 for hotel; $162.36 for rental car, taxi, and parking; and $317.03 for meals); expenses for the return of the child ($1,509.52 for Petitioner's airline ticket plus fees for change to ticket; $1,775.12 for airline ticket for the child; $1,906.51 for hotel; $971.79 for rental car; $63.26 for taxi; $248.00 for parking; and $187.04 for meals); trial expenses ($383.25 for deposition transcripts; $2,500 for expert witness fee; and $532.64 for translation/interpreter fees) as well as $500 for supervision fee for visitation with the child; a $481.00 service of process fee; and $5,671.75 for the attorney affidavit of Rebecca McKelvey.
In her response to the motion, the respondent argued that she was currently in Turkey seeking custody of her son, and her visa did not allow her to work. She added
that, "[e]ven prior to traveling to Turkey, [the Respondent's] finances were severely
constrained. She worked part-time at a library, making $10.25 dollars per hour. She
resided with her mother, and relied on financial help of her family to support herself and
her son. She had no medical insurance, instead relying on Medicaid for herself and her
son....".When the Respondent lived abroad with the Petitioner, she was a stay-at-
home mother and the Petitioner was the family's sole provider. The Respondent stated
that, "[o]ther than a single $1,000 payment, [the Respondent] has received no child
support or financial assistance from [the Petitioner] since April 2014. This is despite the
fact that [the Petitioner] earns the equivalent of over $159,000 USD a year, in salary
alone, along with numerous savings accounts and substantial investments.... The Respondent argued that she did not have the assets or income to pay the Petitioner's attorney's fees. She owned no real property. She did not own an automobile. She had no investments and no savings. A judgment awarding legal fees to the Petitioner could never be satisfied by her, and it would prevent her from supporting her child for years to come." She also argued that the fees were excessive, and also that certain fees should not be included, such as costs for Petitioner's state court counsel, visitation expenses, meals, and airline change fees due to the child's illness.
The district court observed that where the attorney's documentation is inadequate, or the claimed hours are duplicative or excessive, the court may reduce the award accordingly. Wasniewski v. Grzelak-Johannsen, 549 F.Supp.2d 965, 972 (N.D . Ohio 2008)." ICARA gives courts the discretion to reduce or even eliminate a respondent's obligation to pay a prevailing petitioner's attorney's fees and costs where such an award "would be clearly inappropriate." 42 U.S.C.§ 11607(b)(3).
The Court observed that some charges-including meals and hotels, and state court counsel-seemed excessive but it did not question the accuracy of the documented time spent. However, it found that the Respondent was incapable of paying the amount of fees requested and that it would be "clearly inappropriate" to enter a judgment against her for the full sum. Based on a review of the information and supporting documents, the Court reduced the overall legal fees by 50%. Therefore, Petitioner was awarded $75,091.425 for reasonable attorney's fees and costs.
Saturday, April 18, 2015
In Velasquez v. Funes de Velasquez, 2015 WL 1565142 [E.D. Virginia ] [El Salvador] [Habitual Residence] [Grave Risk of Harm]
In Velasquez v. Funes de Velasquez, 2015 WL 1565142 [E.D. Virginia ] on December 11, 2014, Oscar Edgardo Velasquez, an El Salvadorian citizen filed suit against his estranged wife Maria Teresa Funes de Velasquez, also an El Salvadorian citizen under the International Child Abduction Remedies Act.
On March 3, 2006, Oscar and Maria were married in El Salvador. Maria gave birth to their eldest daughter, M.D.F., approximately one year later on March 21, 2007 in San Salvador, El Salvador. Subsequently, Maria gave birth to their youngest daughter, M.A.F., on March 6, 2009 in San Salvador, El Salvador. At the time Oscar filed the Petition, the daughters were seven years old and five years old, respectively. Since his retirement in 2000 he had not worked. He invested in property, including property in the United States. Prior to November of 2013, Oscar and Maria lived with the daughters in their family residence in Santa Elena, El Salvador. The daughters were enrolled in the “Profesor Lisandro Arevalo” Educational Complex in Santa Elena, El Salvador; as of April of 2014, the eldest daughter was enrolled in second grade, while the youngest daughter was enrolled in kindergarten.
The court observed that the United States Department of State has identified El Salvador as one of the most violent countries in the world. (“There are no areas within the city of San Salvador (or the country of El Salvador) that are deemed free of violent crime.”) Crime in El Salvador is unpredictable, gang-centric, and directed against both known victims and targets of opportunity. Extortion is “a very common and effective criminal enterprise” in El Salvador. “Recent progress in the reductions of homicides has not been accompanied by a significant reduction in the extortion that often leads to other violent crimes.” To combat the high incidence of extortion, in 2006, the police department formed an Anti–Extortion Task Force. On February 25, 2011, Oscar and Maria received a telephone call at the family residence. The caller attempted to extort money from Oscar by threatening to kidnap or otherwise harm Maria and their daughters. Later that day, Oscar reported this extortion and threat of violence to the Anti–Extortion Task Force of the National Civil Police Department. Three days after the filing of this report, on February 28, 2011, the police and the Attorney General of El Salvador granted “victim status” to Oscar and his family under the Special Law for the Protection of Victims and Witnesses. Under this statutory protection, only investigators, prosecutors, and judges would have access to the family members' personal information. In all administrative and judicial records, because he was a victim of extortion, Oscar would be known by the password “MILTON.”
In the fall of 2011, the family traveled to Kentucky to visit Oscar's brother and Maria's family. Maria testified that they inquired about political asylum during this stay in the United States, due to the violence in El Salvador, and specifically, the threatening telephone call.
They traveled to the United States again in 2013 to visit family. On or around December 26, 2013, in El Salvador, Maria's sister received a threat from a gang of three people who came to her house while she was preparing to feed the cows. The gang specifically threatened to kill Maria if she ever returned to El Salvador from the United States. Maria's sister reported this threat to the police. Maria's mother contacted Oscar in the United States to tell him about this latest threat. On January 26, 2014, Oscar returned to El Salvador alone, without Maria and the daughters. At the same time, Maria and the daughters briefly stayed with her brother, Oscar Funes, in North Carolina. After a couple weeks in North Carolina, Oscar's nephew Llefren Velasquez picked up Maria and the daughters and drove them back to Manassas, Virginia.
The parties agreed that one purpose for Oscar's solo trip to El Salvador was to investigate the latest threat made against Maria's life. But Oscar also traveled to El Salvador to retrieve money so that he could purchase a house in the United States upon his return. The court found that between December of 2013 and February of 2014, when visiting relatives on the East Coast, Oscar's statements and conduct reflected his intent to purchase a home and settle his family in the United States. Oscar voiced dual intentions of buying a house and immigrating to the United States to others, who testified at trial. Additionally, Oscar went to the office of immigration attorney Luis Gonzalez in Arlington, Virginia, where Oscar inquired about acquiring an “investor's visa” and that his older daughter from his first marriage was assisting him in acquiring green cards for the family. Oscar admitted that one of the reasons he went back to El Salvador in January of 2014 was to get money to buy a house in the United States. Oscar also acknowledged meeting with an immigration attorney, where he explored the possibility of green cards for himself, Maria, and the daughters. Oscar returned to the United States on February 20, 2014, after he investigated the threat from December. Notably, Oscar entered the United States without a return flight to El Salvador for himself, Maria, or the daughters. Oscar was reunited with Maria and the daughters at Llefren and Jenny's townhouse in Manassas, Virginia, where they had been staying since their return from North Carolina; indeed, Oscar stayed there as well. The very next day, on February 21, 2014, Oscar and Maria took the daughters to get various immunizations for the purpose of enrolling them in the Prince William, Virginia public schools. Both Oscar and Maria visited the school that the daughters would attend.
However, only four days later, on February 25, 2014, Oscar booked a nonstop flight from Washington, D.C. to San Salvador for himself, Maria, and the daughters, which was to depart three days later, on February 28, 2014. There was no direct evidence in the record to suggest what prompted Oscar to book this flight. The evidence did show, however, that at some point between February 21, when the daughters were vaccinated, and February 25, when Oscar bought tickets for the flight to El Salvador, Oscar discovered that Maria was involved in a romantic relationship with another man, Stanley Mejia. Subsequently, on February 27, 2014, Maria told Oscar that she and the daughters would not be returning to El Salvador and instead were staying in Manassas, Virginia. The same day, Maria called the police alleging that Oscar was attempting to kidnap the daughters. The next day, Oscar returned to El Salvador alone. Maria and the daughters did not travel back to El Salvador with Oscar on February 28, 2014, but instead, stayed in the United States. Subsequently, in Prince William County, Virginia, the oldest daughter enrolled in elementary school on March 6, 2014, and the youngest daughter enrolled in pre-kindergarten activities on September 2, 2014. The daughters socialized with friends and attended birthday parties on the weekends. Maria and the daughters attend church on Sundays. Maria's sister lived in Maryland and she had uncles in the area. Maria and the daughters still residde at Llefren and Jenny's house in Manassas, Virginia with their three children and Stanley Mejia. In January or February of 2015, Maria met with an immigration attorney to discuss and pursue asylum for her and the daughters because she did not want to return to El Salvador due to the threats and instability. Maria filed for divorce in Prince William County, and Oscar filed for divorce in El Salvador.
The district court found that Maria's retention of the daughters was not wrongful because the daughters' habitual residence at the time of retention was the United States. Alternatively, even if the Court found in Oscar's favor on the first issue, the Court held that it would also find that returning the daughters to El Salvador posed a grave risk of physical harm. Accordingly, Oscar's petition was denied and dismissed.
The Court concluded that the daughters were habitually resident in the United States immediately prior to their retention under the two-part framework that has been adopted by the Fourth Circuit. Maxwell, 588 F.3d at 251. Because minor children like the daughters “normally lack the material and psychological wherewithal to decide where they will reside,” the Court looks to the shared parental intent of Oscar and Maria as the “persons entitled to fix the place of the child[ren]'s residence.” Mozes, 239 F.3d at 1076 ( As the court in Mozes recognized, in cases such as this where “the persons entitled to fix the child[ren]'s residence no longer agree on where it has been fixed ... [the Court] must determine from all available evidence whether the parent petitioning for return of [the] child[ren] has already agreed to the child[ren]'s taking up habitual residence where it is.” Based on the findings of fact, the Court concluded that this was a case “where the petitioning parent had earlier consented to let the child stay abroad for some period of ambiguous duration ... [and that] despite the lack of perfect consensus, the court finds the parents to have shared a settled mutual intent that the stay last indefinitely.” This finding supported the ultimate conclusion of “a mutual abandonment of the child's prior habitual residence. Oscar and Maria intended to abandon El Salvador and settle in the United States immediately prior to February 27, 2014, the date of retention. First, Oscar and Maria both had employment opportunities in the United States, the new country of residence.Second, even though Oscar had not yet purchased a home in the United States at the time of retention, nor had he sold his home in El Salvador, his actions, when viewed objectively, show that he intended to do so. Third, immediately prior to February 27, 2014, the date of retention, Oscar and Maria's marriage was stable.Fourth, there was no evidence in the record regarding “the retention of close ties to the former country [El Salvador],” or “the storage and shipment of family possessions.” Accordingly, these factors weighed neither in favor of El Salvador or the United States as the country of habitual residence.Fifth, Oscar, Maria, and the daughters had no legal status in the United States immediately prior to February 27, 2014. This weighs against the conclusion that the United States was the country of habitual residence. However, this factor is mitigated by the evidence in the record that shows both Oscar and Maria sought counsel from an immigration attorney regarding their status in the United States, and that Maria has subsequently taken steps to obtain asylum for her and the daughters. Lastly, the home environment in the United States was relatively stable immediately prior to the date of retention. Until Oscar discovered Maria's involvement with another man, the evidence in the record suggested that this home environment for the daughters was stable. This stands in stark contrast to the home environment in El Salvador, which was visited in December of 2013 by an armed gang that threatened the life of Maria and her daughters, should they ever return to El Salvador. Accordingly, this factor also supported a finding of parental intent to settle in the United States. Maxwell, 588 F.3d at 252. Ultimately, the objective evidence in the record, when viewed in light of the factors utilized by the Fourth Circuit, established by a preponderance of the evidence that Oscar and Maria shared parental intent for the daughters to habitually reside in the United States.
The court pointed out that the second question under the Mozes test is “whether there was an actual change in geography coupled with the passage of an appreciable period of time, one sufficient for acclimatization by the children to the new environment.” Maxwell, 588 F.3d at 251. After turning to the objective factors announced in Maxwell, the Court concluded the daughters had acclimatized to the United States. First, the daughters were enrolled in Prince William County Public Schools. The daughters had been enrolled in school in the United States for a longer period of time than their enrollment in El Salvadorian schools.The youngest daughter was only eligible to be enrolled in pre-school activities the past fall at the age of five years old. And the eldest daughter was previously enrolled in school in Kentucky around 2011 for a period of time. Conversely, the only evidence of the daughters' schooling in El Salvador was a letter from the school that acknowledged their enrollment as of April of 2014. Thus, the daughters' lengthier period of schooling in the United States supported the conclusion that the daughters had acclimatized to the United States. Second, the daughters participated in social activities in their community and through school. Third, the relative stay of the daughters in the United States was shorter than the time they had spent in El Salvador, which counseled against acclimatization. Lastly, both daughters were still very young, which weighed in favor of their acclimatization to the United States. There was no evidence in the record about the daughters' familial or societal connections to El Salvador. Conversely, the daughters traveled to the United States at least once per year and had been in the United States close to one and a half years. They were both attending school and learning English. Moreover, Maria and the daughters had extended family in the United States. Thus, the young age of the daughters suggested that they had not yet acclimatized to El Salvador, but instead have started to acclimatize to the United States. The Court found that ordering the daughters return to El Salvador would not be tantamount to returning them home. Instead, ordering such a return would be tantamount to ripping the daughters out of a familial and social environment to which they have started to acclimatize, for the reasons discussed above. The Court therefore found that “there was an actual change in geography coupled with the passage of an appreciable period of time, one sufficient for acclimatization by the children to the new environment.” Accordingly, the second factor also supported the conclusion that the daughters were habitually resident in the United States at the time of retention. For these reasons, the Court concluded that Maria's retention of the daughters in the United States was not wrongful.
In the alternative the court found by clear and convincing evidence that the daughters faced a grave risk of exposure to physical harm if the Court were to order their return to El Salvador with Oscar. The Court could not order their return for at least three specific reasons. First, El Salvador is one of the most dangerous and violent countries in the world. Even though homicides have decreased in recent years, extortion has not decreased and is more prevalent than ever. Second, this violence has specifically manifested itself in the form of at least two known threats of physical violence to Oscar's wife and daughters. In the most recent threat of December of 2013, three armed gang members confronted Maria's sister in person, held a machete to her throat, and threatened the life of Maria if she ever returned. This is a specific threat of violence that represents a grave risk of physical harm to Maria and her daughters should they return to El Salvador. Stated differently, it is not merely a possibility, but an actual, physical threat. Third, the Court found that these threats were credible because Oscar's daughter from a previous marriage was kidnapped and held for ransom over multiple days. This daughter was rescued and brought to safety only after an armed raid by the El Salvadorian military and a $30,000 payment by Oscar. Even though both extortion threats in this case had been reported to the police, there was no evidence in the record that any arrest was made, that either threat was not credible, and that additional threats or kidnap attempts would not happen in the future. The Court was not willing to order the return of two minor children to such a dangerous environment given the grave risk of physical harm they face in the form of extortion and kidnapping.
In re ALC, --- Fed.Appx. ----, Not for publication, 2015 WL 1742347 (C.A.9 (Cal.)) [Sweden] [Habitual Residence]
In re ALC, --- Fed.Appx. ----, Not for publication, 2015 WL 1742347 (C.A.9 (Cal.)) Sarodjiny "Sarah" Carlwig appealed the decision and order of the district court sending A.L.C. and E.R.S.C., her dual-national American and Swedish children, to Sweden.
The Ninth Circuit affirmed that part of the judgment of the district court that found A.L.C. was a habitual resident of Sweden, where he now resided with his father, Andreas Carlwig. It observed that when a child moves between nations and a parent files a Convention petition revealing a dispute over habitual residence, we first "look for the last shared, settled intent of the parents." Valenzuela v. Michel, 736 F.3d 1173, 1177 (9th Cir.2013). When an examination of shared intent does not resolve a dispute between two potential habitual residences, a child's newer residence can be found to be the child's habitual residence when "the objective facts point unequivocally" to "the child's relative attachments to the two countries [changing] to the point where requiring return to the original forum would now be tantamount to taking the child out of the family and social environment in which its life has developed," a process known as acclimatization. Mozes v. Mozes, 239 F.3d 1067, 1081 (9th Cir.2001). The court is mindful that it must be "slow to infer from contacts with a new country that an earlier habitual residence has been abandoned, both because the inquiry is fraught with difficulty, and because readily inferring abandonment would circumvent the purpose of the Convention."
It found that when the Carlwig family moved to Sweden in 2012, the Carlwigs abandoned any habitual residence that the family shared in Dubai, A.L.C.'s 2008 birthplace, and they established a regular household together, enrolled A.L.C. in local pre-school, and supported A.L.C.'s participation in soccer, swimming, and martial arts. A.L.C. spent time with his father's relatives and demonstrated fluency in the Swedish language. Over thirteen months, A.L.C.'s circumstances and activities demonstrated that he acclimatized to Sweden and that country became the primary locus of his life. It agreed with the district court that A.L.C. became a habitual resident of Sweden.
In February 2013, A.L.C. traveled to Los Angeles with his pregnant mother, leaving his father behind in Sweden. During several month in Los Angeles, A.L.C.
did develop contacts in the United States. Ms. Carlwig enrolled A.L.C. in summer camp, pre-school, and extracurricular activities. However, A.L.C.'s contacts developed in the shadow of disagreement between his parents over the trip's purpose. Ms. Carlwig argued that she intended to move permanently to the United States with A.L.C. The district court found that Mr. Carlwig believed the trip's purpose was for Ms. Carlwig to give birth and recover before returning with the children to Sweden. The district court did not err in holding that Mr. Carlwig intended A.L.C.'s trip to last approximately six months. During A.L.C.'s time in the United States, Mr. Carlwig maintained active involvement in his son's life, arranging regular communication with A.L.C. from Sweden, visiting A.L.C. in Los Angeles, and making preparations for A.L.C.'s return to Sweden. There was no evidence in the record of a shared parental intent for A.L.C. to move permanently to the United States and there was significant evidence of Mr. Carlwig actively objecting to A.L.C.'s time in Los Angeles lasting more than six months.
Without a shared parental intent for a permanent change of habitual residence, the court found that A.L.C.'s contacts and relative attachments in Los Angeles were insufficient to prove unequivocally that he had acclimatized to United States or that his habitual residence in Sweden had been abandoned. The district court was correct to order A.L.C. returned to his habitual residence, Sweden.
The Court vacated the judgment of the district court that E.R.S.C. was a habitual resident of Sweden. The district court clearly erred in finding E.R.S.C. could be a habitual resident of a nation in which she never resided. It held that it "interpret[s] the expression 'habitual residence' according to the ordinary and natural meaning of the two words it contains." "Habitual residence" describes "a factual state of affairs"
and [we] recognize[d] the obvious truth that "habitual residence cannot be acquired without physical presence." E.R.S.C. had never been to Sweden prior to the execution of the district court's order. The district court's effort to sift through the past intentions of Sarah and Andreas Carlwig to find a moment of settled, shared intent for E.R.S.C. to someday reside in Sweden was erroneous. It rejected the other rationales cited by the district court in deciding E.R.S.C. was a habitual resident of Sweden. The district court's explanations that it would be untenable to split up the siblings for custody determinations and that Mr. Carlwig was employed in Sweden while Ms. Carlwig "is unemployed here in the U.S. and rel[ies] on financial support from [the] Father as well as governmental assistance," because they go to the merits of the custody claims and are not relevant to the Convention's required analysis. See 22 U.S.C. s 9001(b)(4). It held that the district court clearly erred in finding E.R.S.C. was a habitual resident of Sweden and it vacated its decision.
The Ninth Circuit agreed with the district court's determination that E.R.S.C. was not a habitual resident of the United States. It observed that a child's "place of birth is not automatically the child's habitual residence." Holder, 392 F.3d at 1020. The court has found that when "a child is born where the parents have their habitual residence, the child normally should be regarded as a habitual resident of that country."E.R.S.C. was not born into that simple situation. Nor was E.R.S.C.'s habitual residence derived automatically from her mother's location and caregiving. See Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 379 (8th Cir.1995); Friedrich v. Friedrich, 983 F.2d 1396, 1401-02 (6th Cir.1993) . Justifying E.R.S.C.'s habitual residence as the United States based on her contacts in Los Angeles was ineffective as "it is practically impossible for a newborn child, who is entirely dependent on its parents, to acclimatize independent of the immediate home environment." When a child is born under a cloud of disagreement between parents over the child's habitual residence, and a child remains of a tender age in which contacts outside the immediate home cannot practically develop into deep-rooted ties, a child remains without a habitual residence because if an attachment to a State does not exist, it should hardly be invented. The Court found that E.R.S.C.'s nine months as an infant in Los Angeles did not result in E.R.S.C. acquiring habitual residence in the United States when E.R.S.C.'s parents never shared an intent for her to reside in the United States beyond Ms. Carlwig's period of recovery after giving birth.
Thus when Mr. Carlwig filed his Convention petition in February 2014, E.R.S.C. did not have a habitual residence. E.R.S.C.'s retention by her mother in the United States was not wrongful under the Convention and the district court erred in ordering E.R.S.C.'s return to Sweden. Further, E.R.S.C. was not wrongfully retained by her father in Sweden under the Convention now as she was not removed from her country of habitual residence to Sweden. Because E.R.S.C. had no habitual residence, no further analysis of this matter under the Convention and its implementing legislation was possible, as the Convention does not apply to a child who was never wrongfully removed or retained.
The Curt recognized that while it did have the equitable power to undo the district court's action by issuing a re-return order, see Chafin v. Chafin, 133 S.Ct. 1017, 1024 (2013), but it declined to do so.
The district court's decision is was affirmed in relation to A.L.C. and vacated in relation to E.R.S.C.