New York Matrimonial Trial Handbook
The by Joel R. Brandes is available in Bookstores and online in the print edition , . It is also available and for all ebook readers in our bookstore. The New York Matrimonial Trial Handbook is divided into five parts: (1) Preliminary Matters Prior to the Commencement of Trial, Conduct of Trial and Rules of Evidence Particularly Applicable in Matrimonial Matters; (2); Establishing Grounds for Divorce, Separation and Annulment and Defenses; (3) Obtaining Maintenance, Child Support, Exclusive Occupancy and Counsel Fees; (4) Property Distribution and Evidence of Value; and (5) Trial of a Custody Case. There are thousands of suggested questions for the examination and cross-examination of witnesses dealing with very aspect of the matrimonial trial. Click and
The New York Matrimonial Trial Handbook was reviewed by Bernard Dworkin, Esq., in the New York Law Journal on December 21, 2017. His review is reprinted on our website at with the permission of the New York Law Journal.
Joel R. Brandes, is the author of Law and The Family New York, 2d (9 volumes) (Thomson Reuters), and Law and the Family New York Forms (5 volumes) (Thomson Reuters). Law and the Family New York, 2d is a treatise and a procedural guide. Volume 4A of the treatise contains more than 950 pages devoted to an analysis of the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. It contains a complete discussion of the cases construing the Convention which have been decided by the United States Supreme Court, the Circuit Courts of Appeal, the District Courts, and the New York Courts.
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.
Monday, April 13, 2015
Lawrence v. Lewis, Slip Copy, 2015 WL 1299285 (S.D.Ohio)[United Kingdom] [Temporary Restraining Order]
In Lawrence v. Lewis, Slip Copy, 2015 WL 1299285 (S.D.Ohio) the Petition for return of the child sought, as provisional remedies pursuant to 22 U.S.C. §9004, an immediate Order prohibiting the removal of the child from the jurisdiction of the Court and requiring Respondent to post a bond in the amount of $20,000, to remain in effect until further order of the court. The Court construed this portion of the Petition as a motion for a temporary restraining order.
Based upon the filed papers it found that Petitioner Nathan Lawrence and Respondent Natalie J. Lewis were the biological parents of minor child JRM. JRM was born in 2006, and wasnow eight years old. Petitioner was designated as JRM's father on her birth certificate. As such, pursuant to law, Petitioner has parental responsibility of the child and possesses "all rights, duties, powers, responsibility and authority" given to a parent under the law. (United Kingdom Children Act of 1989). Prior to March 24, 2014, JRM resided in Birmingham, West Midlands, England, United Kingdom for eight years. Pursuant to a Prohibited Steps Order entered by the Birmingham County Court in 2010, Respondent was prohibited from removing JRM from the United Kingdom "without the written consent of every person with parental responsibility for the children or leave of the court." Pursuant to a Contact Order, Petitioner was to have weekly telephone contact with JRM and custody on alternate weekends. Petitioner last saw JRM on March 24, 2014 when, following one of his weekends with JRM, he took JRM to school. Upon learning that Respondent's house had been abandoned, Petitioner contacted the local police, who, in turn, contacted authorities in the United States. Authorities located Respondent in Ohio and took pictures of Respondent and JRM as part of a "safe and well check." Petitioner believed that Respondent and JRM currently resided in Peebles, Ohio. The United Kingdom High Court of Justice ("High Court") issued at least three Orders requiring Respondent to return JRM to the United Kingdom. On December 10, 2014, At Petitioner's request, the High Court entered a publicity order on December 10, 2014. Pursuant to that order, Petitioner discussed the removal of JRM with the British media. Respondent also participated in an interview with the media, in which she indicated that she was in Cincinnati and that her husband is American. On September 25, 2014, the High Court ordered that JRM be designated ward of the court and that Respondent provide JRM's whereabouts in the United States and return JRM to the United Kingdom by October 10, 2014. On October 10, 2014, the High Court entered a second order on requiring the immediate return of JRM. On March 16, 2015, the High Court held Respondent in contempt for failing to adhere to its previous orders and again ordered Respondent to return JRM to the United Kingdom.
The Court evaluated Petitioner's request for provisional relief pursuant to Federal Rule of Civil Procedure 65, which authorizes the Court to grant a temporary restraining order or a preliminary injunction. In determining whether to grant injunctive relief, the Court considers four factors: (1) whether the moving party has shown a strong likelihood of success on the merits; whether the moving party will suffer irreparable harm if the injunction is not issued; whether the issuance of the injunction would cause substantial harm to others; and whether the public interest would be served by issuing the injunction. Overstreet, 305 F.3d at 573. The Court considered these same four factors in determining whether to issue a temporary restraining order or a preliminary injunction. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required. Fed.R.Civ.P. 65(b)(1).
The Court found that petitioner made the requisite showing that JRM was a habitual resident of the United Kingdom before the removal; that the removal breached his rights to custody of JRM, and that he had been exercising his custodial rights at the time of the removal. JRM resided in the United Kingdom for eight years prior to April 24, 2014. Respondent was designated as JRM's father on her birth certificate and, therefore, has parental rights under the Children's Act of 1989. Respondent had been exercising his custodial rights up until JRM's removal. For these reasons, the Court found that Petitioner had shown a sufficient likelihood of success on the merits.
Based on the facts contained in the Petition and the supporting documentation, Respondent retained the child in the United States for close to a year, despite Petitioner's attempts to exercise his custodial rights and garner relief through the High Court. This suggested to the Court that Respondent could seek to remove JRM from this jurisdiction, or further conceal her whereabouts. Such action would defeat the purpose of the Hague Convention and frustrate the effort of this Court in resolving the ultimate disposition of the Petition. Were Respondent to flee the jurisdiction and conceal JRM prior to a hearing before the Court, Petitioner would suffer irreparable harm.This order, if granted, was limited and temporary. Accordingly, the balance of the equities weighed in favor of Petitioner. The court found that the public interest was served by granting the provisional relief sought. Granting the provisional relief sought, as a means to ensure that the matter was adjudicated on its merits, is the public interest. In sum, the four factors discussed above weighed in favor of granting a temporary restraining order that prohibited the removal of JRM from the Southern District of Ohio, pending a final evidentiary hearing on the Petition or until further order of the Court.
Because Petitioner sought provisional relief without notice to Respondent, the request met additional requirements. The Court found that Petitioner had set forth specific facts that clearly showed that immediate and irreparable injury, loss, or damage would result to the movant before the adverse party could be heard in opposition. In light of Respondent's failure to comply with orders issued by the High Court, including an order that Respondent provide JRM's whereabouts in the United States, the risk that Respondent would attempt to evade an order from the Court by removing her from the Southern District of Ohio was likely. This would undoubtedly cause irreparable injury to Petitioner. For these same reasons, notice would defeat the purpose of the provisional relief sought.
Rule 65(c) of the Federal Rules of Civil Procedure requires that the movant post a security bond in the event that the Court grants a temporary restraining order. The Sixth Circuit has repeatedly held that District Courts possess discretion to issue such injunctive relief without the positing of a bond. The Court exercised its discretion in favor of foregoing the posting of a bond by Petitioner, and denied Petitioners request for an order directing the Respondent to post a bond.
For the foregoing reasons the court directed that Respondent Natalie J. Lewis shall not remove JRM, nor allow any other person to remove JRM, from the jurisdiction of the Southern District of Ohio pending a final evidentiary hearing on the Petition or further order of the Court. This Temporary Restraining Order expired fourteen (14) days from the entry of the Order.
Ostos v Vega, 2015 WL 569124 (N.D. Texas, Dallas Division) [Mexico] [Motion to dismiss] [Maintain Statues Quo] [Guardian Ad Litem] [Expedited Discovery]
In Ostos v Vega, 2015 WL 569124 (N.D. Texas, Dallas Division) the district court denied the Respondents Motion to Dismiss; denied the Request for Expedited Discovery; denied the Request for Appointment of a Guardian Ad Litem; and granted the Request for Keeping Status Quo During Pendency of Litigation.
On November 6, 2014, Petitioner Bernice Vega Ostos brought an action against Defendant Jose Alfredo Vega pursuant to the Hague Convention. Ms. Vega–Ostos and Mr. Vega are the parents of J.G.V., who was eight years old. Ms. Vega–Ostos alleged in her Petition for Return of Child that in removing J.G.V. from his habitual residence in Mexico, where J.G.V. resided with his mother, and bringing him to the United States to reside with his father in Dallas, Texas, Mr. Vega violated her custody rights under Mexican law and the parties' custody agreement under a Final Decree of Divorce entered on November 8, 2012, by the 302nd Judicial District Court, Dallas County, Texas. Ms. Vega–Ostos sought an order requiring Mr. Vega to return J.G.V. to Mexico. Pending a hearing in the court, Ms. Vega–Ostos requested: that she be given immediate access to J.G.V.; that Mr. Vega be prohibited from removing J.G.V. from the jurisdiction; that Mr. Vega be required to turnover to the court J.G .V.'s travel documents; and that the court set an expedited hearing on her Petition. Ms. Vega–Ostos also seeks to recover her attorney's fees and costs incurred as a result of this action.
Mr. Vega moved to dismiss the action, contending that it does not fall under the ICARA and instead merely involves the issue of whether a modification of the parties' custody agreement should be granted by the 302nd Judicial District Court, Dallas County, Texas, which entered the parties' Final Decree of Divorce. Mr. Vega asserted that he filed a motion with the state court to modify the parties' parent-child relationship as to J.G.V. on August 12, 2014. Mr. Vega contended that he has lived in Dallas County for several years and has never hidden from Ms. Vega–Ostos the whereabouts of J.G.V., who was currently residing with him and attending school in Texas. Mr. Vega contended that, even assuming that the ICARA applies, Ms. Vega–Ostos cannot establish the requisite prima facie case under the ICARA because: (1) J.G.V. is not a habitual resident of Mexico; and (2) he is not in breach of any custody or court order. According to Mr. Vega, he is a joint managing conservator under the Final Divorce Decree and, as such, has the right to ensure that J.G.V. is not placed in harm's way. Mr. Vega further asserted that he has affirmative defenses under Article 13 of the Convention that would allow J.G.V. to remain in his custody in the United States. Mr. Vega contended that returning J.G.V. to Mexico would subject him to a grave risk of physical or psychological harm or otherwise place J.G.V. in an intolerable situation. In addition, Mr. Vega contends that J.G.V objected to returning to Mexico, and that J.G.V. has reached an age and level of maturity appropriate for the court to take into account J.G.V's view as to whether he should be returned to Mexico. Mr. Vega therefore requested that Petition filed by Ms. Vega–Ostos be denied and dismissed. Ms. Vega opposed the motion.
The court observed that to defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim meets the plausibility test “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While a complaint need not contain detailed factual allegations, it must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”Twombly, 550 U.S. at 555 . The “[f]actual allegations of [a complaint] must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”Id.(quotation marks, citations, and footnote omitted). When the allegations of the pleading do not allow the court to infer more than the mere possibility of wrongdoing, they fall short of showing that the pleader is entitled to relief. Iqbal, 556 U.S. at 679. In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. In ruling on such a motion, the court cannot look beyond the pleadings. The pleadings include the complaint and any documents attached to it. In this regard, a document that is part of the record but not referred to in a plaintiff's complaint and not attached to a motion to dismiss may not be considered by the court in ruling on a 12(b)(6) motion. The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid claim when it is viewed in the light most favorable to the plaintiff. . While well-pleaded facts of a complaint are to be accepted as true, legal conclusions are not “entitled to the assumption of truth.”Iqbal, 556 U.S. at 679 . Further, a court is not to strain to find inferences favorable to the plaintiff and is not to accept conclusory allegations, unwarranted deductions, or legal conclusions. The court did not evaluate the plaintiff's likelihood of success; instead, it only determined whether the plaintiff has pleaded a legally cognizable claim.
The Convention is implemented through the ICARA. Under the ICARA, state courts and federal district courts have concurrent original jurisdiction over actions arising under the Convention. 22 U.S.C. § 9003(a). J.G.V. was located in Dallas County, Texas, when Ms. Vega–Ostos filed her Petition under the Convention. The court therefore has jurisdiction over this action, and, for the reasons herein explained, it was irrelevant whether there is a motion pending to alter the parties' custody agreement in state court.
A parent's removal or retention of a child is considered wrongful “when he or she removes or retains the child outside the child's country of habitual residence, and this removal: breaches the rights of custody accorded to the other parent under the laws of that country; and, at the time of removal, the non-removing parent was exercising those custody rights.”Appellant v. Sealed Appellee, 394 F.3d 338, 343 (5th Cir.2004) (citing Convention, art. 3). “[R]ights of custody” are “rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence.”Abbott, 560 U.S. at 9 (quoting Convention, art. 5(a)). Pursuant to Article 3 of the Convention, rights of custody may arise from operation of law, from a judicial or administrative decision, or from a legally binding agreement. Convention, art. 3. Neither the Convention nor ICARA defines “habitual residence.” Larbie v. Larbie, 690 F.3d 295, 310 (5th Cir.2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 1455 (2013).“The inquiry into a child's habitual residence is not formulaic; rather it is a fact-intensive determination that necessarily varies with the circumstances of each case.”It is irrelevant under the Convention “whether there is a custody dispute concerning [the] child pending at the time of removal.”Appellant, 394 F.3d at 343. The Convention's return remedy does not change custody rights that existed prior to the wrongful removal of a child and is not a determination regarding the merits of any custody issue. Abbott, 560 U.S. at 9 (citing Convention, art. 19). If a petitioner shows by a preponderance of the evidence that the removal or the retention of the child was wrongful, the burden shifts to the respondent to prove an applicable affirmative defense. See 22 U.S.C. § 9003(e)(1).
Ms. Vega–Ostos alleged in her Petition that she had custodial rights under Mexican law and the exclusive right under the parties' divorce decree to designate J.G.V.'s primary residence without regard to geographic location; that J.G.V. has been a habitual resident in Mexico “since shortly after his birth” until he was wrongfully removed from Mexico; and that she was exercising her custodial rights at the time J.G.V. was wrongfully removed from Mexico by Mr. Vega. Ms. Vega–Ostos's pleadings are not verified as she maintains. The Petition is accompanied by a verification, but Ms. Vega–Ostos did not sign the verification. The court nevertheless determined that Ms. Vega–Ostos's factual allegations, while sparse, were sufficient to state a claim for wrongful removal and return under the Convention. Although Mr. Vega asserted that he has affirmative defenses under the Convention, dismissal of Ms. Vega–Ostos's Petition was not appropriate under Rule 12(b)(6), as the facts supporting his affirmative defenses and Ms. Vega–Ostos's claim under the Convention needed to be developed in an evidentiary hearing. Further, it was irrelevant for purposes of the Convention whether Mr. Vega has filed a motion in state court to alter the parties' custody arrangement. The court therefore denied the Motion to Dismiss.
The court noted that the Convention requires courts to “act expeditiously in proceeding for the return of children.”Convention, art. 11. It found that Mr. Vega's request for discovery, even on an expedited basis, would necessarily delay the proceedings. Moreover, Mr. Vega did not explain what discovery is needed. The court therefore denied the Request for Expedited Discovery. The Court observed that Federal Rule of Civil Procedure 17(c)(2) requires a court to appoint a guardian ad litem for a minor whose interests are not represented in an action. The district court noted that Mr. Vega had not set forth any specific reason as to why he believed appointment of a guardian ad litem was necessary in this case, and the court determined that J.G.V.'s fundamental interests under the Convention were adequately represented, as both parties were making an effort in this case to represent those interests. The court therefore denied the Request for Appointment of a Guardian Ad Litem.
Mr. Vega essentially requested to retain custody of J.G.V. pending the resolution of this action. In response, Ms. Vega–Ostos contended that allowing Mr. Vega to retain J.G.V. pending the resolution of this action would constitute an improper custody decision by the court and contravene the Convention's purpose of restoring the pre-abduction status quo and to deterring parents from crossing borders in search of a more sympathetic forum. The court disagreed with Ms. Vega–Ostos's assertion that a ruling by the court to maintain the status quo during the pendency of this action would amount to a custody determination. For this reason, and because neither party had pointed the court to any authority dealing with a request to maintain the status quo during the pendency of a claim under the Convention, the court granted the Request for Keeping Status Quo During Pendency of Litigation.
In Mendez v. May, --- F.3d ----2015 WL 627215 (1st Cir.,2015) the district court granted the father's petition and ordered the child's return. The First Circuit reversed the district court's grant of the petition.
Petitioner was a citizen of Argentina who resided in Buenos Aires. Respondent was a U.S. citizen and permanent resident of Argentina. Respondent gave birth to their child, C.F.F.M., in Buenos Aires on December 3, 2007. C.F.F.M. was a citizen of both Argentina and the United States. The family lived together until 2009, when the couple's romantic relationship deteriorated and Petitioner moved out. That summer, the parties reached a child custody agreement which provided that C.F.F.M. would reside with his mother and granted the father visitation from Thursday evenings until Sunday nights. Per the 2009 agreement, Respondent could travel outside Argentina with C.F.F.M. for fifteen days in the Argentine winter and up to forty-five days during the Argentine summer; the agreement required Petitioner to authorize Respondent's travel with C.F.F.M. in accordance with that plan. The parties experienced difficulties in their parenting relationship after they ceased cohabiting.
In December 2012, the parties negotiated and executed a new coparenting agreement. Respondent retained custody and the agreement reduced Petitioner's visitation. The 2012 agreement permitted Respondent to travel abroad with the child for up to forty-five days each year; Petitioner would execute trip-specific authorization each time. In spring 2013, Respondent began to consider leaving Argentina to find work elsewhere. She discussed her interest in moving with Petitioner, who opposed her leaving Argentina with C.F.F.M. The parties were unable to come to an agreement, even after mediation in July 2013. The next month, Respondent accepted a job offer in Boston with a September 2013 start date. The parties discussed her upcoming move shortly after she accepted the job offer. During an August 13, 2013 Skype conversation, Respondent urged Petitioner to pursue work or educational opportunities in Boston. Petitioner expressed openness to potentially moving to Massachusetts along with Respondent and C.F .F.M., but the parties reached no agreement during the conversation.
The two met in person three times in August and September 2013 to discuss potential arrangements if C.F.F.M. were to relocate to the United States. During the third meeting, Petitioner agreed to allow C.F.F.M. to move to Massachusetts with Respondent. Respondent proposed that C.F.F.M. could travel back to Argentina during U.S. school vacations and agreed to increase Petitioner's visitation time in anticipation of the move. The same day, the two relayed these plans to C.F.F.M. In accordance with their discussions, Respondent left Argentina to begin her job in mid-September 2013. C.F.F.M. remained in Argentina in the care of Respondent's mother, and Petitioner assumed the agreed-upon increased visitation schedule. The parties corresponded by email after her departure to discuss a new coparenting agreement and to set an exact date for C.F.F.M.'s move. Petitioner preferred a January 2014 move so that the child could complete his school year in Argentina; Respondent wanted him to move before the December holidays so that he could spend time with her family before beginning school in Boston. Petitioner objected to the December departure, reasoning that Respondent's family could see C.F.F.M. any time now that the child was moving to the United States, but confirmed a January 8, 2014 move date. In their correspondence, Respondent expressed frustration that even though the two had agreed that C.F.F.M. should move to the United States and Respondent had relocated to Boston with that decision in place, Petitioner had yet to draft or sign a new coparenting agreement. After an acrimonious Skype exchange on October 23, 2013, Respondent emailed Petitioner and asserted that she would invoke her forty-five days per year vacation time in order to allow C.F.F.M. to leave for Boston in early December.
After that email, the parties' communication broke down. Petitioner initiated multiple court proceedings. Respondent returned to Argentina in late November and again in late December to attend court proceedings. At a hearing on Petitioner's criminal complaints, a criminal court judge reduced Petitioner's visitation and prohibited him from having overnight visits with C.F.F.M. Respondent returned to Boston and then came back to Argentina on February 9, 2014. The family court judge held a hearing the next day to address Petitioner's temporary custody proceeding and Respondent's filing to obtain travel authorization for C.F.F.M. to visit the U.S. for forty-five days, pursuant to the parties' 2012 agreement. On February 14, the judge issued a decision denying Respondent's request for travel authorization. That same day, Respondent left Argentina with her mother and C.F.F.M. The district court found that Respondent knew of the Argentine family court's order denying her travel authorization before she left Buenos Aires that day. She drove to a border town near Brazil and Paraguay, and on February 15, made three trips into Brazil and Paraguay in search of an airport where C.F.F.M. could travel to the United States without scrutiny of his visa. On February 16, 2014, Respondent and C.F.F.M. flew out of Paraguay to the United States. Respondent did not inform Petitioner that she had left Argentina; he discovered that C.F.F.M. was no longer in the country when the child did not attend his first week of school in March. Petitioner found Respondent's work phone number and repeatedly called her office. She confirmed that C.F.F.M. was in Boston under her care.
On April 11, Petitioner filed for Hague Convention remedies with a central authority in Argentina. On July 15, the Argentine family court judge issued an opinion finding that Respondent wrongfully removed C.F.F.M. under the Hague Convention and that C.F.F.M.'s habitual residence at the time of removal was Argentina.
C.F.F.M. and Respondent lived in Roslindale, Massachusetts since February 2014. C.F.F.M. attended a Boston public school. Petitioner filed the action in the district court on October 6, 2014. The court issued its order granting the petition and ordering the child's return on January 16, 2015.
The First Circuit indicated that its review begins and ends with the question of C.F.F.M.'s habitual residence at the time of removal. Removal under the Hague Convention is only appropriate if the child is being retained in a country other than his or her place of habitual residence. Sánchez–Londoño, 752 F.3d at 540. The Convention itself does not define “habitual residence,” leaving the interpretation of the term to the judicial and administrative bodies of signatory nations. In determining a child's habitual residence, the First Circuit looks first to the shared intent or settled purpose of the persons entitled to determine the child's permanent home; as a secondary factor, it may consider the child's acclimatization to his or her current place of residence. Sánchez–Londoño, 752 F.3d at 540, 542. Typically, evidence of acclimatization alone cannot establish a child's habitual residence in the face of shared parental intent to the contrary. Neergard–Colón, 752 F.3d at 532. The question of habitual residence is a highly fact-specific inquiry that turns on the particular circumstances of each unique case. In discerning the parties' intentions, the court will look “specifically to the last moment of the parents' shared intent.” Mauvais, 772 F.3d at 12. Where a child has moved with a parent from one country to another, the record must evidence the parties' latest settled intention for the child to abandon a former place of habitual residence and acquire a new one. Darin, 746 F.3d at 11. In other words, the court “ ‘must determine from all available evidence whether the parent petitioning for return of a child has already agreed to the child's taking up habitual residence where it is.’ “ Id.(citing Mozes, 239 F.3d at 1076). The district court's ultimate determination of habitual residence is a mixed question of law and fact reviewed de novo, with subsidiary findings of the parties' intent reviewed for clear error. Neergard–Colón, 752 F.3d at 530.
The Court of Appeals observed that the district court found in its opinion, that during a meeting at a Buenos Aires restaurant in early September 2013, Petitioner agreed to let C.F.F.M. move to Boston after the close of the child's school year in Argentina. The same day, the parties together told their son that he would move to Massachusetts with Respondent. Nevertheless, the district court found that Petitioner and Respondent “came close to forming ... a shared intent, [but] did not actually do so.” The Court held that this finding constituted clear error. The record was replete with Petitioner's own statements acknowledging and planning for the child's upcoming move, particularly during September and October of 2013, after Respondent moved to Boston and before the parties' relations broke down and Petitioner initiated civil and criminal proceedings against Respondent and her mother. For example, on September 30, 2013, in response to Respondent's request for C.F.F.M. to fly to the United States that December, Petitioner wrote in an email, “I would prefer if you can wait until he moves to you by the end of the year.... I really do not see the point of him going there when it would be just two or three weeks before he moves there .”On October 10, Petitioner suggested that Respondent meet him and C.F.F.M. in Miami in January 2014 and then take the child back to Boston, since Petitioner and his family had planned to be in Florida for a family trip that month. After Respondent suggested that Petitioner and C.F.F.M. meet her in New York to celebrate the New Year, Petitioner said he would check with his family but stated, “For now, what is sure is January the 8th.”Even during a tense Skype exchange on October 23, 2013, Petitioner expressed his understanding that C.F.F.M. would permanently move to the United States at the turn of the new year. Respondent renewed her request for C.F.F.M. to move before January 8, 2014, alluding to her family's holiday celebration in New York; Petitioner responded that “[C.F.F.M.] will be in the us [sic] in january [sic]” and that Respondent's family “will have plenty of time [to spend with the child] know [sic] that [C.F.F.M.] is going to be in the us [sic] living there.”After this Skype exchange, Respondent emailed Petitioner and stated that she would invoke her forty-five day travel authorization in order to take C.F.F.M. with her to Boston on December 4, 2014, triggering the breakdown in the parties' communications.
Even though Petitioner changed his mind and decided that he did not want C.F.F.M. to move to Boston, the record established that the last shared intent of the parties was for their son to relocate permanently with his mother soon after C.F.F.M. finished the Argentine school year in December 2013. The “unilateral wishes of one parent are not sufficient” to overcome the last settled purpose of the parents. Sánchez–Londoño, 752 F.3d at 540. In Re Bates, a United Kingdom decision considered a leading case on habitual residence, the parents' intention for the child to live in New York for a set period of time governed even where the parents made the decision while touring the Pacific Northwest, and had borrowed a New York apartment for later that spring only on a temporary basis. Re Bates, No. CA 122/89, High Court of Justice, Family Div. Ct. Royal Courts of Justice, United Kingdom (1989), available at1989 WL 1683783. The mother brought the child from the West Coast to New York while the father, an Englishman, continued on to Asia. A few days later, the father telephoned his daughter's nanny and told her to take the child to London, where the father owned a house. The mother filed a petition under the Hague Convention in the British courts immediately after she discovered that the child and nanny were gone. The British court found the child habitually resident in New York, reasoning that the “arrangements that had been agreed, however acrimoniously” by the parties “amounted to a purpose with a sufficient degree of continuity to enable it properly to be described as settled,” though at the time the parents made the decision the child had only briefly visited New York before. Here, the district court erroneously reasoned that Petitioner never signed a written agreement memorializing the parties' new parenting plan, and refused to issue a travel authorization permitting C.F.F.M. to leave Argentina. But the parties did not make their joint decision for C.F.F.M. to move to the United States contingent on signing an official instrument; like in Re Bates, the parties verbally agreed to the plan. While in some circumstances, written evidence of a parties' agreement may inform a court's decision-making, we reject the idea that such formal documentation is required to establish the settled intention of the parties.
Additionally, the district court misapplied the governing law of the First Circuit when it held that a change in habitual residence “requires an actual ‘change in geography.” The First Circuit pointed out that it has never added such a requirement in the context of the habitual residence test. It has explicitly described a change in the child's geography as but one “consideration[ ] for the court” and “one factor in our [habitual residence] analysis,” not as a full-fledged prerequisite. Darin, 746 F.3d at 12–13; see also Mauvais, 772 F.3d at 14 (“ ‘[F]actors evidencing a child's acclimatization to a given place-like a change in geography combined with the passage of an appreciable period of time—may influence our habitual residence analysis.’ ”) (quoting Sánchez–Londoño, 752 F.3d at 542). There may be situations in which an actual change in the child's geography factors heavily in the habitual residence analysis. It emphasized that a child's presence in a new country of habitual residence is not required to effectuate his parents' settled intention to abandon his old place of residence and acquire a new one. A contrary requirement would incentivize a feuding parent to move his or her child immediately upon the formation of an agreement even if, as here, it would be better for the child to finish out a school year or wait until the parent has settled the family's living situation before the child joins her.
Finding clear error in the district court's factual findings concerning the parties' intent, and errors of law in the district court's application of the Convention to the facts of this case, it held that the United States was the child's habitual residence at the time of removal based on his parents' mutual and settled agreement to move him there. No actual change in the child's geography is required to effectuate that last shared intent, nor must the parties' intent be memorialized in a written document. Mindful that the question of parents' shared intent “is not a uniformly applicable ‘test’ for determining habitual residence,” it cautioned that its holding rested of the particular facts of this case.
Petitioner did not prove that he sought to return C.F.F.M. to the child's country of habitual residence, one of the three elements of a prima facie case of wrongful removal. Because Petitioner did not meet his burden to establish a presumption of wrongful removal, the Court did not reach other arguments raised by the parties, including the affirmative defense of consent.
Margain v Ruiz-Bours, Not for publication, 2015 WL 500685 (9th Cir., 2015) [Mexico] [Now Settled Defense]
In Margain v Ruiz-Bours, Not for publication, 2015 WL 500685 (9th Cir., 2015), Mauricio Fernandez Margain (“Mauricio”) appealed from the district court's denial of his petition for the return of his minor daughter to Mexico. The Ninth Circuit affirmed the judgement of the district court because it concluded that the court correctly determined, without deciding the habitual residence questions, that the child was “settled” within the meaning of Article 12 of the Convention.
The Ninth Circuit observed that Article 12 of the Convention states the general rule that when a court receives a petition for return within one year after the child's wrongful removal, the court shall order the return of the child forthwith. Lozano v. Montoya Alvarez, 134 S.Ct. 1224, 1229 (2014) Article 12 also contains an affirmative defense: “If the abducting parent can show that the petition for return was filed more than a year after the wrongful removal or retention occurred, and ‘that the child is now settled in its new environment,’ the abducting parent can overcome the presumption in favor of return.” Courts may consider a number of factors that bear on whether the child has significant connections to the new country. The respondent must establish the Article 12 exception by a preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(b).
The Court found that the district court's finding that the child's mother, Elsa Lourdes Ruiz–Bours (“Elsa”), moved with her daughter to Tucson in July 2012, more than one year before Mauricio filed his petition in September 2013, is supported by the record, so the district court did not clearly err in so finding. Elsa introduced into evidence a receipt regarding a transaction she conducted at a clothing store in Tucson on July 6, 2012. She also produced evidence of money orders drawn on July 11, 2012 from a bank in Tucson to a residential leasing company, which she explained were the first payment and deposit for the apartment in which they were residing. This evidence, along with the trial testimony, sufficiently establishes that Elsa and her daughter had lived in Tucson for more than one year at the time Mauricio filed his Convention petition. The district court did not clearly err in finding that Mauricio filed his petition more than one year after the alleged wrongful removal.
The district court’s conclusion that the child was now settled had ample support in the record. For example, Elsa's child psychology expert testified that the child had a “normal” emotional status for a five-year old child, and was “well acclimated” to her home and community. He noted that the child had friends with whom “she's very involved,” and that she liked her school and teacher. Other witnesses testified that the child had friends in the Tucson area. The child had lived with Elsa in Tucson for a longer period of time than she did in Mexico, and Mauricio has offered no evidence that her situation or environment was “unstable.” The “length and stability of the child's residence in the new environment” is “ordinarily the most important” factor in the “settled” analysis. It agreed with the district court that the child was settled in her new environment. Moreover, no equitable factors counseled against application of the Article 12 exception, as the record supported the district court's conclusion that Mauricio was not diligent in locating the child in Tucson. See Lozano, 134 S.Ct. at 1237–39 (Alito, J., concurring).
Panteleris v. Panteleris, --- Fed.Appx. ----, 2015 WL 468197(6th Cir., 2015) [Australia] [Habitual Residence]
In, Panteleris v. Panteleris, --- Fed.Appx. ----, 2015 WL 468197(6th Cir., 2015) the Sixth Circuit affirmed the district court's grant of plaintiff Anthimos Panteleris's petition for return of their three children to Australia.
Anthimos Panteleris, a citizen of Australia, and Aalison Panteleris, a citizen of the United States, married in the United States in 2005. Four months after their first child was born in the United States, the family traveled to Australia in March 2007. The Pantelerises had two more children in Australia. The family lived together in Australia until they traveled to the United States in March 2012. Mr. Panteleris testified that the family intended to take a six-month to one-year extended vacation to visit Ms. Panteleris's family in Ohio, similar to a holiday Mr. Panteleris had taken with his parents when he was four years old. Ms. Panteleris testified that the family had relocated to the United States indefinitely. At the time of their arrival in the United States, the children were aged five years, three years, and four months. In April 2012, after visiting Hawaii for several weeks, the family arrived in Ms. Panteleris's hometown of Salem, Ohio. They moved into an apartment with a one-year lease. Ms. Panteleris obtained employment and Mr. Panteleris, who could not work under his visa status, stayed at home with the children. The eldest two children were enrolled in school. Ms. Panteleris later quit her job in November 2012, and the family's savings were largely depleted. On December 2, 2012, Mr. Panteleris returned to Australia alone. Mr. Panteleris testified that he returned to Australia to obtain employment and prepare for the family's return to Australia. According to Mr. Panteleris, after he secured a stable job, he requested in May 2013 that Ms. Panteleris and the children return to Australia but Ms. Panteleris refused.
Mr. Panteleris filed a petition for return of the children in United States district court on February 28, 2014. The court held a five-hour evidentiary hearing. In July 2014, the court issued an opinion and order granting plaintiff's petition and ordering the children returned to Australia. There the Sixth Circuit granted defendant's emergency motion to stay the order pending appeal.
The Court pointed out that in a case involving an action for return of a child under the Hague Convention, it reviews the district court's findings of fact for clear error and reviews its conclusions about American, foreign, and international law de novo.” Simcox v. Simcox, 511 F.3d 594, 601 (6th Cir.2007).
In this case, the district court found that, at the time of wrongful retention, Mr. Panteleris was exercising his custody rights under the Australian Family Law Act by maintaining a relationship with his children. On appeal, Ms. Panteleris did not dispute that Mr. Panteleris had custody rights, but argued that he voluntarily relinquished his rights by returning to Australia and making only “sporadic” attempts to contact the children. The Court found that this recharacterization of the facts fells short of “clear and unequivocal abandonment.” The district court addressed this issue in detail, observing that “courts should ‘liberally find “exercise” whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.’ “ The district court found that Mr. Panteleris “regularly” communicated with his children between December 2012 and May 2013, the date of wrongful retention. Moreover, although Mr. Panteleris did not provide direct financial support, Ms. Panteleris made withdrawals from the parties' joint bank account in Salem, Ohio, and Mr. Panteleris offered to reimburse her for family expenses if she provided him with bills or receipts. There was no evidence that Ms. Panteleris had provided Mr. Panteleris a bill or receipt that he refused to pay. Moreover, the court observed that “[t]he record is replete with [Mr. Panteleris's] well-documented visa difficulties and references to the poor financial situation of the Panteleris family. It follows that the family members could ill afford airline tickets to Australia, and the three children, one of whom was autistic and the eldest of whom was now seven, could not safely fly unaccompanied.” The district court thus concluded that Mr. Panteleris had not failed to exercise his custody rights during the relevant time period. The district court did not clearly err.
The Sixth Circuit pointed out that a child's country of habitual residence is a question of fact that the court reviews for clear error. Jenkins v. Jenkins, 569 F.3d 549, 556 (6th Cir.2009); Robert v. Tesson, 507 F.3d 981, 995 (6th Cir.2007). Although the Convention does not define “habitual residence,” the Court has held that “a child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child's perspective.” Robert, 507 F.3d at 998. It has established five principles to consider in determining a child's habitual residence: First, habitual residence should not be determined through the technical rules governing legal residence or common law domicile. Instead, courts should look closely at the facts and circumstances of each case. Second, because the Hague Convention is concerned with the habitual residence of the child, the court should consider only the child's experience in determining habitual residence. Third, this inquiry should focus exclusively on the child's past experience. Any future plans that the parents may have are irrelevant to its inquiry. Fourth, a person can have only one habitual residence. Finally, a child's habitual residence is not determined by the nationality of the child's primary care-giver. Only a change in geography and the passage of time may combine to establish a new habitual residence. Robert, 507 F.3d at 989 (citing Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir.1993) (“Friedrich I ”)).
In this case, the district court considered the children's activities in Australia, including school, social engagements, and meaningful connections to people and places in Australia. It also considered the children's activities and meaningful connections in the United States, but observed that it could not accept evidence of habitual residence for dates after May 2013 because Sixth Circuit precedent instructs courts to look back in time from the period of wrongful retention, not forward. The district court also considered the children's belongings that the family brought to the United States and items left in Australia. Weighing all the evidence, the district court concluded that Mr. Panteleris had established by a preponderance of the evidence that the children were habitual residents of Australia at the time of the wrongful retention.
On appeal, Ms. Panteleris argued that the court's factual finding was clear error because a period of one year is significant in the lives of young children and, under the Friedrich I factors, the children had acclimatized to the United States. The Sixth Circuit held that Ms. Panteleris's first argument reflected a difference of opinion on how to weigh the evidence, but not clear error. Ms. Panteleris failed to establish that the district court clearly erred in finding that, in light of all the evidence, Australia was still the children's habitual residence from their perspective.
The Sixth Circuit rejected Ms. Panteleris argument that the court should “the subjective intent of the parents” as an additional factor in determining a child's habitual residence, at least with respect to young children and those with developmental disabilities. The Court noted that it had previously considered similar arguments. In Robert v. Tesson, 507 F.3d at 990–91, it rejected the Ninth Circuit's approach in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001), which considers “the subjective intentions of the parents [as] all but dispositive of a child's habitual residence.” It found the Ninth Circuit's rule “inconsistent” with Friedrich I and “the Convention's goal of deterring parents from crossing borders in search of a more sympathetic court” because such a rule “empowers a future abductor to lay the foundation for an abduction by expressing reservations over an upcoming move.”Robert, 507 F.3d at 992. Nevertheless, it left open the possibility that “a very young or developmentally disabled child may lack cognizance of their surroundings sufficient to become acclimatized to a particular country or to develop a sense of settled purpose.”. However, because that case did not present such facts, it “express[ed] no opinion on whether the habitual residence of a child who lacks cognizance of his or her surroundings should be determined by considering the subjective intentions of his or her parents.” It did not need to decide whether the Pantelerises' subjective intent should be considered because it would not change the outcome in this case under the deferential standard of review. The district court explicitly found that even if it were to consider the subjective intent of the parents, “the evidence submitted as to the intent of the parents favors [Mr. Panteleris's] version that the parties intended to stay in Ohio for one year.” Just as the district court's factual finding of the children's habitual residence was not clear error, Ms. Panteleris did not show that the district court's implicit credibility determination favoring Mr. Panteleris's version was clear error in light of all the evidence.
Friday, April 10, 2015
In Gwiazdowski v. Gwiazdowska, 2015 WL 1514436 (E.D.N.Y.) on February 11, 2014, Cezary Gwiazdowski ("Cezary") brought a petition pursuant to the Hague Convention for the return to Poland of his two children, K.G. and M.G., who resided in the United States with Anetta Gwiazdowska ("Anetta"), his wife and the biological mother of the two children, since April 2011.
The District Court found that the petitioner made out a prima facie case for return and addressed the Article 12 defense in its opinion. It observed that under Article 12 of the Hague Convention, if a Hague Convention petition is filed more than one year after the wrongful removal, the Court "shall ... order the return of the child, unless it is demonstrated that the child is now settled in its new environment." The respondent bears the burden of establishing this defense by a preponderance of the evidence. 22 U.S.C. §9003(e)(2)(B). Though the Convention does not define the term "settled," the Second Circuit has stated that the term "should be viewed to mean that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment." Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir.2012).
The Court held a hearing, and with consent from both parties, the Court interviewed K.G. (age 10) and M.G. (age 8) in camera outside of the presence of the parties and their respective counsel. It observed that this procedure "is consistent with those adopted by district courts in Hague Convention cases." Haimdas v. Haimdas, 720 F.Supp.2d 183, 187 n. 1 (E.D.N.Y.2010).
The district court found that in July 2003, the couple married in a Polish Catholic church in Brooklyn, New York, a choice they made so that Anetta's mother, who lived in Maspeth, New York, could attend the wedding. The couple returned to Elblag, Poland soon afterwards and had two sons, K.G., born in 2004, and M.G., born in 2008. On April 11, 2011, Anetta left Poland with the children and moved into her mother's home in Maspeth. Anetta did not inform Cezary that she was taking the children or obtain his consent to do so. For the first several months following her departure, Cezary held out hope that she would return to Poland and resume their life together, though the couple spoke infrequently on the phone. However, in early 2012, Anetta informed Cezary that she did not intend to return to Poland and wanted to file for divorce. Cezary traveled to New York in March 2012 to speak to her and the children in person. When Anetta refused to meet with him or let him speak with the children, Cezary consulted a lawyer and filed a custody petition in Family Court. The Family Court proceedings apparently languished until late 2013, when Anetta filed her own custody petition in Family Court.. During the pendency of the Family Court proceedings, Cezary was permitted to speak with Anetta and the children three times a week over Skype, and was permitted to occasionally visit the children in the United States. Since March 2012, he visited the children approximately five times a year. On June 10, 2014, the Department of State sent a letter to the Family Court informing the court that Cezary had filed an application with the Department of State for the return of the children. The letter further informed the Family Court that, under Article 16 of the Hague Convention, the court should defer decision on the merits of rights of custody until Cezary's Hague Convention petition was
adjudicated. See Hague Convention art. 16 ("After receiving notice of a wrongful
removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention...."). Despite this letter, on December 17, 2014, the Family Court entered a final order in Anetta's custody proceeding. The order granted legal and physical custody of the children to Anetta, and granted Cezary visitation with the children on a schedule set by the Family Court, subject to the condition that "[Cezary] must not remove the children outside and beyond the United States" and that "[t]he children's passports are to remain in the possession of [Anetta]." In February 2015, Cezary traveled to the United States and went on vacation with the children to the Pocono Mountains in Pennsylvania. Cezary plans to return to the United States in April 2015 for M.G.'s First Holy Communion. When he is in Poland, Cezary speaks with his children on Skype every Monday, Wednesday, and Friday, though he complained that "maybe 30 percent of [the time] they are not available.”
The Court concluded that Anetta's removal of the children in April 2011 was wrongful under the Hague Convention. The children were habitually resident in Poland at the time of the removal. Cezary was exercising his custody rights at that time, since Cezary and Anetta lived together and had joint custody of the children at the time of removal. Anetta's removal of the children appeared to have been in breach of Cezary's custody rights under Polish law. See In re Skrodzki, 642 F.Supp.2d 108, 115 (E.D.N.Y.2007).
However, the Court found that Anetta established that the children are now settled in the United States. The petition was filed almost three years after Anetta's removal of the children from Poland, and the "settled" defense was available to Anetta. See Hague Convention, art. 12. It observed that to determine whether a child a settled, a district court must consider a variety of factors, including:(1) the age of the child; (2) the stability of the child's residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent's employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent. Lozano, 697 F.3d at 57.
The Court addressed these factors in turn. If noted that the stability of a child's residence "plays a significant role in the 'settled' inquiry." In re D.T.J., 956 F.Supp.2d 523, 535 (S.D.N.Y.2013). K.G. and M.G. lived at Anetta's mother's house since moving to the United States and felt comfortable in their home environment. The Court concluded that the children had a stable and happy home in New York. Cezary acknowledged that the children had a group of friends in school here, a fact confirmed by K.G. and M.G. during the in camera interview. By contrast, the children did not appear to have significant attachments to Poland. Further, while the children had several relatives who lived in Poland, Anetta testified that most of their family members live eight hours from Elblag by train and Cezary did not dispute this fact. It was therefore unclear how much contact the children would have with these family members even if they lived with Cezary in Elblag. K.G. and M.G. attended Saint Stanislaus Kostka School in Maspeth, New York, since August 2011. The children's school records demonstrated that they were in regular attendance and received good grades. In addition, both parents acknowledged that K.G. and M.G. regularly attended church in the United States. K.G. received his First Holy Communion in 2014, while M.G. was scheduled to receive his First Holy Communion in April. K.G., who was 10 years old, and M.G., who was 8, were old enough to form meaningful attachments to their new environment. See In re Robinson, 983 F.Supp. 1339, 1345 (D.Colo.1997) (concluding that 10-year-old and 6-year-old "are old enough to allow meaningful connections to the new environment to evolve ...[while] children of a very young age are not"). Anetta was not currently employed in the United States but was attending university and studying to receive a medical license in the United States. It was unclear whether Anetta would be able to find employment once she completed her studies or how much she would earn if she does. However, Anetta testified that her mother and stepfather, who collectively earned approximately $200,000 a year, significantly contributed towards the children's expenses. As the Second Circuit has noted, "[t]he importance of a child's immigration status [for the 'settled' defense] will inevitably vary for innumerable reasons, including: the likelihood that the child will be able to acquire legal status or otherwise remain in the United States, the child's age, and the extent to which the child will be harmed by her inability to receive certain government benefits." Lozano, 697 F.3d at 57. Anetta and the children were currently residing in the United States on F1 non-immigrant visas, which allowed them to remain in the United States as long as Anetta remained in school. The fact that the children were here legally was a positive factor in the "settled" analysis. See Demaj v. Sakaj, No. 3:09-CV-255, 2013 WL 1131418, at *23 (D.Conn. Mar. 18, 2013) (concluding that mother and children's approval for nonimmigrant U visas supported the mother's "settled" defense). However, the Court was unclear whether Anetta would be able to obtain legal residence in the United States when her student visa ends, and Anetta presented no evidence of how she intended to pursue legal status upon completion of her studies. After weighing all of these factors, the Court concluded that Anetta met her burden of demonstrating by a preponderance of the evidence that the children were settled in their current environment. The Court found that the elements of the Article 12 defense had been met.
The Court also considered whether it should exercise its discretion to repatriate K.G. and M.G. notwithstanding that Anetta has established an affirmative defense under the Hague Convention. See Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir.1996) ("[A] federal court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention."). Since there was no evidence that Anetta's relocation to the United States was motivated by a desire to remove the children to a jurisdiction more favorable to her custody claims, the Court saw no reason to do so. See In re D.T.J., 956 F.Supp.2d at 549 (declining to exercise discretion to remove children, notwithstanding affirmative defense, because there was no evidence that mother removed children to obtain a more favorable custody ruling). Cezary's petition was denied.