New York Matrimonial Trial Handbook
The by Joel R. Brandes is available in Bookstores and online in the print edition , . It is also available and for all ebook readers in our bookstore. The New York Matrimonial Trial Handbook is divided into five parts: (1) Preliminary Matters Prior to the Commencement of Trial, Conduct of Trial and Rules of Evidence Particularly Applicable in Matrimonial Matters; (2); Establishing Grounds for Divorce, Separation and Annulment and Defenses; (3) Obtaining Maintenance, Child Support, Exclusive Occupancy and Counsel Fees; (4) Property Distribution and Evidence of Value; and (5) Trial of a Custody Case. There are thousands of suggested questions for the examination and cross-examination of witnesses dealing with very aspect of the matrimonial trial. Click and
The New York Matrimonial Trial Handbook was reviewed by Bernard Dworkin, Esq., in the New York Law Journal on December 21, 2017. His review is reprinted on our website at with the permission of the New York Law Journal.
Joel R. Brandes, is the author of Law and The Family New York, 2d (9 volumes) (Thomson Reuters), and Law and the Family New York Forms (5 volumes) (Thomson Reuters). Law and the Family New York, 2d is a treatise and a procedural guide. Volume 4A of the treatise contains more than 950 pages devoted to an analysis of the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. It contains a complete discussion of the cases construing the Convention which have been decided by the United States Supreme Court, the Circuit Courts of Appeal, the District Courts, and the New York Courts.
Thursday, December 29, 2016
In Cisneros v Lopez, 2016 WL 7428197 (D. Nev., 2016) Petitioner, Respondent, and their daughters, AVES who was nine years old and AIES who was two years old were all Mexican citizens. Respondent and the children left Mexico for the United States on March 17, 2015. Petitioner initiated the case in the district court on January 12, 2016. The Magistrate Judge found that Petitioner met his burden of establishing his case-in-chief for the return but given the clear and convincing evidence of physical and psychological abuse, that returning the children to Mexico would pose a grave risk to their physical and psychological well-being, and recommend that the petition for return be denied. Respondent testified regarding domestic violence. AVES also testified that she saw Petitioner hit Respondent, causing her nose to bleed on two occasions; that when they were on a family camping trip, Petitioner threatened to kill her, AIES, and Respondent; that she was afraid of her father; that she was afraid of the dark and that she had nightmares “[a]bout my dad killing my mom.” When asked whether she feels safe living in Mexico, AVES testified that “I’m scared that my dad [sic] kill my mom.” AVES objected to being returned to Mexico and wanted to stay in the United States. Respondent’s witness Dr. Norman Roitman, an expert in psychiatry testified that AVES maturity level was advanced beyond her chronological age by one or two years, to age ten or eleven. Based on his evaluation, Dr. Roitman diagnosed AVES with post-traumatic stress disorder (“PTSD”) and adjustment disorder with anxiety and depression. Dr. Roitman stated that AVES “has a close anxious bond with her mother, has separation anxiety that’s separate and apart from the PTSD, and separation from her mother could constitute the beginning of a significant psychiatric injury.” He further testified that separating AVES from her mother could result in “posttraumatic reinjury.” Dr. Roitman’s opinions were uncontroverted and were the only evidence before the court on whether returning AVES to Mexico would cause her PTSD to worsen. The Magistrate judge found that Respondent presented evidence of domestic violence directed at her by Petitioner over the course of their nine-year relationship, including physical and emotional abuse. There was some evidence of physical abuse against AVES. Respondent presented uncontroverted evidence that Petitioner caused significant psychological harm to AVES, as well as specific evidence of potential harm that AVES would suffer if she returned to Mexico. Dr. Roitman concluded AVES should not be returned to her father. Based on Dr. Roitman’s uncontroverted expert opinion testimony, the court found there was a grave risk that return would subject AVES to psychological harm. In addition, there was evidence that returning her to Mexico would expose her to grave risk of physical harm due to escalating domestic abuse. There was evidence that the day before Respondent left home with the children, Petitioner hit AVES in the face, causing her lip to split, and that Petitioner threatened to kill both of the children. The court found that in addition to the risk of psychological harm, there was a grave risk that return would expose AVES to physical harm. Given that Respondent has established the grave-risk defense as to AVES, the court recommended that the petition be denied as to AIES as well, citing Miltiadous v. Tetervak, 686 F. Supp. 2d 544, 556 (E.D. Pa. 2010) (declining to separate siblings and finding that the younger sibling who was not suffering from PTSD would be exposed to the same grave risk of harm as the older sibling suffering from PTSD).
Saturday, December 24, 2016
Hernandez v Cardoso, --- F.3d ----, 2016 WL 7404767 (7th Cir., 2016) [Mexico] [Grave Risk of Harm Defense] [Petition denied]
Pennacchia v Hayes, --- Fed.Appx. ----, 2016 WL 7367848 (9th Cir.,2016)[Italy] Habitual Residence] [Petition denied]
Pliego v Hayes, 2016 WL 7048693 (6th Cir., 2016) [Turkey] [Grave Risk of Harm] [Attorneys Fees] [Petition Granted]
Rath v Marcoski, 2016 WL 7104872 (M.D. Florida, 2016)[Czec Republic] [Habitual Residence] [Petition granted]
Application of Gonzales v Batres, 2015 WL 12831299 ( D. NM, 2015)[Mexico] [Habitual Residence] [Petition granted]
In re Application of Gonzales v Batres, 2015 WL 12831299 ( D. NM, 2015) the district court granted the petition and ordered the immediate return of the Children to Petitioner’s custody in Mexico. Petitioner and Respondent were Mexican citizens. Respondent was a lawful permanent resident of the United States living in Las Cruces, New Mexico. After Respondent lawfully entered the United States, he hired a third party to bring Petitioner and her two children from a previous relationship unlawfully into the United States. After Petitioner moved into Respondent’s home their children E.E.C.M. and D.M.C.M. were born in that city. Both of the Children were United States citizens. Petitioner decided to end the relationship with Respondent, and on April 3, 2013, without informing Respondent, took the Children, along with her two older children, to Gómez Palacio, Durango, Mexico, where Petitioner and her four children moved in with Petitioner’s mother. Respondent discovered Petitioner’s whereabouts and traveled to Gómez Palacio on April 5, 2013, at which time he saw Petitioner and the Children. Respondent visited the Children in Gómez Palacio approximately every other weekend thereafter, sometimes taking them to the home of his mother. The parties entered into an Agreement on November 29, 2013, which gave Petitioner primary custody of the Children while allowing Respondent to visit with the Children every other weekend. After picking up the Children for a scheduled visitation on Saturday, December 14, 2013, Respondent returned to the United States with the Children without Petitioner’s consent.
The district court found that the Children’s habitual residence was in Durango, Mexico. Although the Children were only living in Mexico for approximately eight months prior to their removal, Re Bates and Feder made clear that habitual residence may be established in such a brief period if the parents’ shared intentions and the children’s living arrangements “amount[ ] to a purpose with a sufficient degree of continuity to enable it properly to be described as settled.” Re Bates, 1989 WL 1683783. This may be true even if the Children spent a majority of their lives in the United States before arriving in Mexico, and even though the Children were U.S. citizens, seeFriedrich I, 938 F.2d at 1401. Here, E.E.C.M. had begun schooling in Durango, and D.M.C.M. had sometimes received medical care in that state, both of which are strong evidence of settled purpose. Moreover, although Respondent was plainly not happy about the prospect of his children living away from him in Mexico, his frequent visits to Gómez Palacio and the Agreement he worked out with Petitioner, whatever its legal effect, were evidence that both parents were planning their lives around the Children living in Durango. The fact that a child has spent most of his or her life in one country, while sometimes relevant, is not dispositive. Feder, 63 F.3d at 224. The Court rejected Respondents argument that it was Petitioner who wrongfully removed the Children from the United States without Respondent’s consent, implying that the Children’s habitual residence should be measured from just prior to that removal. However, Respondent never filed a petition under the Hague Convention alleging that Petitioner wrongfully removed the Children. Once a petition is filed, a court should consider only whether a respondent’s removals of a child are wrongful” rather than “whether the petitioner’s removals of the child were wrongful.” Ohlander, 114 F.3d at 1539-40. Thus, the fact that the Children may have been habitual residents of the United States until Petitioner took them to Durango, Mexico was irrelevant to the proceedings. The appropriate point in time to consider in this case was not when Petitioner fled with the Children to Mexico, but when Respondent fled with the Children to the United States. Because the parents’ shared intentions showed acclimatization and a degree of settled purpose for the Children in Mexico on the date of their removal from that country, the Court held, inter alia, that the Children’s habitual residence at the time of removal was Mexico.
Villatoro v Figueredo, 2015 WL 12838861 (M.D. Florida, 2015)[Guatamala] [Federal & State Judicial Remedies] [Stay pending appeal]
Smedley v Smedley, 2014 WL 11996390 (E.D. North Carolina, 2014)[Germany] [Federal & State Judicial Remedies] [Comity][Petition granted]
Olson v Olson, --- F.Supp.2d ----, 2013 WL 12147783 (M.D. Tenn., 2013) [Hungary] [Consent and Aquiesence] [Age of Maturity Defense] [Petition granted]
In Olson v Olson, --- F.Supp.2d ----, 2013 WL 12147783 (M.D. Tenn., 2013) the district court granted the Petition of Simona Oana Olson for an Order directing that the parties’ minor children, L.S.O. and S.M.O., be returned to Hungary. Petitioner and Respondent married in 1996 in Bucharest, Romania. The parties moved to Visalia, California, approximately a month-and-a-half later to be close to Respondent’s parents. In September 1999, while living in Dallas, Texas, they had twin boys.Approximately five years later in 2004, the family moved to Budapest, Hungary. According to Petitioner, they moved to Hungary for three reasons: Petitioner wanted to attend dental school, Respondent wanted to get his master’s degree, and they wanted to be closer to Petitioner’s family in Bucharest, Romania. The parties purchased a home in approximately 2005, which located in Budapest, Hungary. They resided in Budapest, Hungary, as a family, until 2008, when Respondent took employment in Bucharest, Romania, some eleven to twelve hours drive away from their home. During that time, the couple lived in two different apartments, Respondent lived with Petitioner’s sister and her family in Romania, while Petitioner and the children remained at the family home in Hungary. The parties had plans for moving at the conclusion of Petitioner’s education in Hungary, so they would be in the same country as a family. With these plans in mind, the parties entered into a Residential Lease Agreement with David Barnie and Alexis Barnie for a term of one year in June 2012. As planned on July 30, 2012, the children traveled from Hungary to the United States in the care of a paternal aunt and arrived in the United States on July 31, 2012. Once in the United States, the children engaged in a summer vacation with their paternal grandparents. On August 12, 2012, while the children were enjoying their summer vacation, Petitioner and Respondent moved much of their belongings to Bucharest, Romania. Petitioner had graduated from dental school approximately a month prior to their relocation. Once in Romania, Petitioner applied for her Romanian dental license, and she was waiting on her license. Respondent left Budapest, Hungary, as planned, to retrieve the children, on a round-trip plane ticket on September 10, 2012. On September 20, 2012, neither the children nor Respondent returned to Hungary. Between September 17 and 18, 2012, Petitioner sent multiple Facebook messages and tried to call Respondent numerous times during the night. On September 17, 2012, Respondent advised Petitioner that he was extending the children’s stay in America until he and she could reach an agreement on how to proceed with the marriage and divorce. On September 24, 2012, Respondent obtained an Ex Parte Order of Custody from the Sumner County, Tennessee, Circuit Court. Respondent responded to the United States Central Authority refusing a voluntary return on October 22, 2012. On February 14, 2013, Petitioner’s Verified Petition requesting the return of the children was filed with the Court.
The district court found that although the the children were United States citizens, were already fluent in English, and were temporarily enrolled in a Tennessee public school, these facts, were not sufficient to outweigh the volumes of evidence suggesting the children would have perceived, and in fact did perceive, their stay in the United States to be merely a temporary vacation. The evidence about the children’s lives in Hungary and their own statements indicated that immediately prior to their retention in the United States, Hungary was their habitual residence. The district court found that the petitioner made out a prima facie case and that the respondent did not establish consent or acquiescence. Petitioner’s agreement to allow the children to travel to the United States for a vacation did not constitute consent to their relocation here, and the actions she took to secure their return under the Hague Convention overwhelmingly supported the finding that she did not consent to their permanent residence in the United States. Moreover, Respondent has failed to prove that Petitioner acquiesced in his retention of the children in the United States. Although Respondent argued that Petitioner agreed to an extension of the vacation, this delay did not indicate her acquiescence to the children’s retention in the United States. Petitioner never said nor did anything which would constitute acquiescence. Rather, after learning of Respondent’s intentions, and before she even knew Respondent had begun divorce proceedings, Petitioner’s Hungarian Application for Return had been filed with the Hungarian Central Authority. Further, her attempt to negotiate a Tennessee parenting plan with Respondent did not constitute acquiescence.
Based upon the consideration of the children’s testimony, the Court concluded both children reached the age and maturity level at which their objections, if any, should be taken into account. The court found that the children were impressive, well-mannered, and articulate thirteen-year-old boys. Given the choice, both children would prefer to remain in the United States. Although the children displayed a preference (and particularly S.M.O., a strong preference) for remaining in the United States, neither boy expressed an objection to his return. The court concluded that absent such objection the maturity exception defense was not established by Respondent.
Anderung v Anderung, 2013 WL 12142385 (S.D. Iowa)[Sweden] [Habitual Residence] [[Grave risk of harm] Petition granted]
In Anderung v Anderung, 2013 WL 12142385 (S.D. Iowa, 2013) the district court granted the Petition of Magnus Anderung (Magnus), to have the couple’s minor child, L.A, returned to Sweden. Magnus was a citizen of Sweden. Raina was a citizen of the United States. They were married in Iowa, in June 2007. After the wedding, the couple traveled to Magnus’ hometown of Gavle, Sweden, where they lived with Magnus’ mother while Magnus took a summer job. The couple returned to New York City at the end of August 2007. Late in September 2007, Magnus and Raina returned to Gavle and moved into an apartment. The couple stayed in Gavle until March 2008. In March 2008, the couple moved to Surrey, England, and lived in an apartment. In October 2008, the couple was residing in London and got into an argument.The police arrested Magnus and charged him with second-degree assault. Once the trial began, Magnus decided to plead guilty. After Magnus was released from the London jail, the couple reconciled, and in January 2009, Raina became pregnant with L.A. In May 2009, the couple moved back to Sweden. L.A. was born in Sweden on September 27, 2009.Magnus testified, that by May 2011, at least twice a month Raina was assaulting him and threatening to call and tell the police that he had hit her. On October 18, 2011, Magnus filed for divorce in the District Court of Gavle and sought sole custody of L.A. Magnus gave his his express consent for L.A. to travel from Sweden on May 27, 2012, for a visit to the U.S. Reina testified that, it was by mutual agreement that Raina and L.A. would come to the U.S. and stay indefinitely and that Magnus would join them at a later date Magnus disputed Raina’s contention and argues Raina wrongfully retained L.A. in the U.S. after August 25, 2012.
The district court found that the child’s habitual residence was Sweden. On May 27, 2012, when L.A. and Raina left Sweden, L.A. was two years and eight months old. L.A. was born in Sweden, lived her entire life in Gavle, Magnus’ mother and three of his siblings lived in Gavle, and L.A. attended preschool classes with other children in Gavle. Raina testified that she took mostly summer clothing and a few of L.A.’s toys and only brought to the U.S. what she could fit into four suitcases. The court observed that from a child’s perspective, to be taken away from the only place known to her as home without saying goodbye to immediate family or friends and to have most of her belongings left behind is inconsistent with a settled purpose to abandon that country as the child’s habitual residence. The court found that the parents’ conduct leading up to Raina and L.A.’s departure belies the assertion that when Raina left on May 27, 2012, the couple had a “settled purpose” to abandon Sweden. Raina did not move out of her apartment in Gavle and continued to pay rent even though she had a month-to-month lease and could have discontinued the lease at any time; Raina informed L.A.’s preschool that L.A. was taking summer vacation and would return in August; Raina took only summer clothing and a few of L.A.’s toys and keepsakes, leaving most of their belongings in Sweden; Raina obtained round-trip rather than one-way tickets from Sweden to the U.S.; Raina did not notify the Swedish Social Insurance Agency that she was permanently leaving Sweden and instead continued to receive benefits for at least three months after she left; and neither Magnus nor Raina withdrew their divorce and custody proceedings that were pending in the District Court of Gavle. The record evidence simply does not support Raina’s contention that the couple had a settled purpose to abandon the country of mutual residence, Sweden, to take up residence in the U.S. Approximately eight weeks passed between August 25, 2012, the onset of L.A.’s wrongful retention in the U.S., and October 31, 2013, when Magnus filed an application for assistance under the Convention with the Swedish Foreign Ministry. Magnus filed the Verified Complaint in this case on February 14, 2013. The Court held that to find Raina’s assertions that L.A. had become acclimatized in the U.S. support a finding that the U.S. has become L.A.’s habitual residence would run contrary to the purposes of the Convention. An abducting parent who retains a child in a foreign country and argues against the child’s return because a change in residence would be demonstrated traumatic for the child runs contrary to the purposes of the Convention.
The evidence in this record that Magnus gave his consent for L.A. to come to the U.S. for a visit from May 27, 2012, until August 25, 2012. Raina’s assertions failed to demonstrate acquiescence. The Court rejected Raina’s argument that L.A. would be at grave risk of harm and should not be returned to Sweden due to Magnus’ history of violence and because of the failure of the Swedish judicial system to provide protection. Magnus and Raina had a history of volatile arguments but there were no major incidents from the time Raina became pregnant in 2009 until September 2011. There was no evidence that Magnus ever harmed L.A. Raina’s criticism of inaction by the Swedish authorities was also contrary to the record. The Court was confident that, contrary to Raina’s assertions, Sweden had a competent child welfare system in place. The court found that Raina utterly failed to present any evidence, that L.A. would be at grave risk of harm if she is returned Sweden and that Raina had not met her burden of proving an affirmative defense preventing L.A.’s return to Sweden.
Monday, December 5, 2016
Custodio v Samillan, 2016 WL 7030356 (8th Cir., 2016)[Peru] [Age & Maturity Defense] [Petition denied]
In Custodio v Samillan, 2016 WL 7030356 (8th Cir., 2016) Custodio and Torres, were Peruvian citizens, who had two children, 16-year-old M. and 15-year-old G. When they divorced the Peruvian court issued a custody order pursuant to which the children lived with their mother for the majority of the year. In November 2013, the Peruvian court authorized M. and G.’s travel to St. Louis with Torres, requiring that they return by March 24, 2014. Torres married an American citizen, and the couple had since had a son. After Torres failed to return the children to Peru by the deadline the Peruvian court issued four orders compelling Torres to return M. and G. to Peru. The district court held a three-day evidentiary hearing. The district court denied the petition. It refused to order return because Torres established the mature child affirmative defense.
The Eighth Circuit affirmed. It agreed with Torres that the appeal was moot as to M. because he had reached 16 years old and the Hague Convention no longer applied to him. Hague Convention art. 4. It noted that the State Department’s interpretation of the Convention’s age limitation provision was in accord with Torres view which was supported by the official Hague Conference Explanatory Report. Elisa Pérez-Vera, Explanatory Report: Hague Convention on Private International Law ¶ 77 (1981), https://assets.hcch.net/upload/expl28.pdf.
Torres raised the mature child defense under Article 13 of the Convention. The Eighth Circuit noted that in order to carry her burden on this defense, Torres had to must establish by a preponderance of the evidence (1) that the child has “attained an age and degree of maturity at which it is appropriate to take account of its views” and (2) “that the child objects to being returned.” Hague Convention art. 13. The child’s objections can be the sole reason that a court refuses to order return, but when they are, the “court must apply a stricter standard in considering a child’s wishes.” Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 278 (3d Cir. 2007). The sole issue on appeal was whether the district court properly considered G.’s objections. The Court concluded that the question of whether a child objected to return is subject to clear error review. Such deference was appropriate here where the district court observed G. testify twice: first, in chambers outside the presence of the parties and lawyers and later, in open court and subject to cross examination. The district court found that G. wished to remain in St. Louis because he did not want to separate from his mother, stepfather, and two brothers. He did not want to return to Peru because he “does not feel safe with his father.” In chambers, G. said he was afraid of his father, who was “very aggressive” and had previously struck him and his brother. The district court also observed that G. liked his school in the United States and had many friends, whereas he disliked his Peruvian school and had no real friends there. The court found G. to be a “very thoughtful and intelligent” young man whose testimony represented his “genuine thoughts and feelings.”
The Eighth Circuit rejected Custodios argument that the district court improperly considered objections relevant only to a custody determination. He contended that a wrongfully removed child may not object based on a wish to live with a particular parent or on circumstances that are the product of the wrongful retention, as decisions based on these objections would embroil the court in the underlying custody dispute. The Court pointed out that with regard to the mature child defense, the Explanatory Report makes clear that a mature child’s views on return can be “conclusive.” The Explanatory Report “does not suggest the child’s interpretation of [his] ‘own interests’ is invalid if it is based” on custody considerations. The drafters of the Convention simply deemed it inappropriate to return a mature child ‘against its will—whatever the reason for the child’s objection. It held that the district court did not err in considering objections that may also be relevant to a custody proceeding. G.’s testimony included particularized objections to returning to Peru. Based on these facts, the Court held that district court did not clearly err in finding that G.’s statements constituted an objection within the meaning of the mature child defense.
The Eighth Circuit rejected Custodio’s argument that the district court abused its discretion in refusing to order return. He argued that allowing G. to remain in the United States improperly ignored the Peruvian court’s custody orders, which were entitled to deference and comity in this court. The Eight Circuit observed that even though Torres met her burden of proving the mature child affirmative defense applies, the district court has the discretion to refuse to apply the defense and order the return of the child if it would further the aim of the Convention which is to provide for the return of a wrongfully removed child. District courts may decline to apply a defense where doing so would reward a parent for wrongfully removing or retaining the children in violation of a Contracting State’s custody orders. It held that while Torres’ actions were concerning, they did not compel a finding that the district court abused its discretion in refusing to order return. The district court’s decision to respect 15-year-old G.’s opposition to returning to Peru and desire to remain in the United States was not an abuse of discretion. The court acted within its discretion in deferring to the objections of an undisputedly mature child. The district court’s consideration of a mature child’s views may but need not be affected by the wrongful actions of his or her parent.
In Ochoa v Suarez, 2016 WL 6956609 (W.D. Mich, 2016) Petitioner, Rosario Ramos Ochoa, a citizen of Mexico, filed a Petition seeking return of her two minor children, MV and GV, to Mexico, their habitual residence. After the Court adopted the Magistrate Judge’s partial Report and Recommendation, which concluded that Petitioner met her burden of establishing a prima facie case for return of MV and GV under the Convention the issues remaining for decision were whether the grave risk and age and maturity exceptions or defenses under Article 13 of the Convention applied.
On August 2, 2016, after a hearing, a Magistrate Judge issued a report in which she concluded that Respondent failed to establish the grave risk exception by clear and convincing evidence. However, the magistrate judge concluded that MV and GV were of sufficient age and maturity for their wishes to be taken into account. Petitioner filed an Objection to the Report and recommendation, arguing that the Court should reject the magistrate judge’s recommendation that the Court deny the Petition on the basis that the age and maturity exception applies. The Court observed that pursuant to 28 U.S.C. § 636(b), upon receiving an objection to a report and recommendation, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” After conducting a de novo review of the report and recommendation, Petitioner’s Objection, and the pertinent portions of the record, the Court concluded that it should be adopted and denied the petition for return.
Smedley v Smedley, 2014 WL 11996390 (E.D. North Carolina, 2014)[Germany] [Federal & State Judicial Remedies] [Comity][Petition granted]
In Smedley v Smedley, 2014 WL 11996390 (E.D. North Carolina, 2014) the District Court granted the petition of the mother, Daniela Smedley (“Daniela”) for the return of her two children, who had been retained in the United States by their father, Mark Smedley. On July 13, 2011, Daniela, A.H.S. and G.A.S. returned to Bamberg Germany where the children were born and remained there with them. Mark filed a petition under the Hague Convention in Germany for the return of the children to the United States which was denied, ostensibly on the basis that returning them to the United States would expose them to a serious risk of physical or psychological harm. The District Court of Bamberg found that one of the exceptions in Article 13 precluded the children’s return to the United States. It also appeared that the District Court of Bamberg found that neither child wanted to return to the United States. Mark appealed the decision. The Bamberg Higher Regional Court rejected Mark’s appeal. This proceeding was commenced after Mark refused to return the children to Germany after visitation in the United States. The district court rejected Marks argument that it should disregard the Bamberg Higher Regional Court’s findings and conclusions, find that Daniela’s retention of the children in Germany in August 2011 was wrongful, and therefore conclude that the United States was the children’s habitual residence. The district court observed that the Fourth Circuit has recognized that in determining the amount of deference due to a foreign court’s decision, “ ‘judgments rendered in a foreign nation are not entitled to the protection of full faith and credit.’ ” Miller, 240 F.3d at 400 (quoting Diorinou, 237 F.3d at 142-43). Nevertheless, “ ‘American courts will normally accord considerable deference to foreign adjudications as a matter of comity,’ ” and “ ‘comity is at the heart of the Hague Convention.’ ” Despite American courts’ usual practice of according considerable deference to foreign adjudications, the Ninth Circuit Court of Appeals determined that a court may properly decline to extend comity to a foreign court’s Hague petition determination “if it clearly misinterprets the Hague Convention, contravenes the Convention’s fundamental premises or objectives, or fails to meet a minimum standard of reasonableness.” Asvestas, 580 F.3d at 1014. In Asvestas, the Ninth Circuit found that a Greek court’s analysis of a prior Hague petition “misapplie[d] the provisions of the Convention, relie[d] on unreasonable factual findings, and contradict[ed] the principles and objectives of the Hague Convention.” After reviewing the translation of the opinion of the Bamberg Higher Regional Court, the court did not find that “ it clearly misinterprets the Hague Convention, contravenes the Convention’s fundamental premises or objectives, or fails to meet a minimum standard of reasonableness.” Asvestas, 580 F.3d at 1014. The court, therefore, accorded comity to the opinion.
Monday, November 21, 2016
In Dias v DeSouza, 2016 WL 6821067 (D. Mass) the Court granted the Petition of Marina De Aguiar for the return her thirteen-year-old daughter, to Brazil and found that Petitioner had established the prerequisite for an award of necessary expenses under the fee-shifting provision of the ICARA, 22 U.S.C. § 9007(b)(3). Petitioner filed a motion in which Petitioner requested an award of attorneys’ fees in the amount of $28,697.50 and costs in the amount of $1,004.20, for a total award of $29,701.70. The motion was granted for an amount less than requested by Petitioner. The District Court observed that the primary issues which the Court must resolve in determining whether such an award is appropriate is “first, whether the claimed expenses are ‘necessary,’ and second, whether an order against respondent would be ‘clearly inappropriate.’ ” De Souza v. Negri, No. 14-13788-DJC; 2015 WL 727934, at *2 (D.Mass. February 19, 2015) The burden of proof to establish necessity is upon the Petitioner. The burden to establish that a fee award would be “clearly inappropriate” is upon the Respondent. The Court found that Petitioner had limited financial means. Petitioner’s legal team consisted of a paralegal billed at the rate of $150.00 per hour and two partner level attorneys, one of whom billed at the hourly rate of $400.00 and one of whom was billed at the hourly rate of 375.00. The Court found that the rates charged by these attorneys were reasonable considering the usual price charged for similar services in Boston, but were slightly on the high end for similar services in this area. For that reason, it reduced each of the attorney’s hourly rates by $25.00. It reduced the rate charged for the paralegal to $90.00 per hour, which is in line with the rate charged by a moderately experienced paralegal in Central Massachusetts. The Court agreed with Respondent that there was some overlap between the two attorneys and that the sparsity of detail with regard to services rendered warrantsed a reduction in the amount of the fees. Thus, it reduced each attorneys’ hours by approximately one third. It found all costs ($1,004.20) to have been necessary. Therefore, the total recovery of necessary attorneys’ fees and costs was $18,704.20. The Court found that Respondent failed to establish that an award of attorneys’ fees and costs to Petitioner would be clearly inappropriate.
Tuesday, October 25, 2016
Toufighjou v Tritschler, 2016 WL 6122465 (M.D. Florida, 2016)[Canada] [Attorneys’ fees, Costs, and Expenses]
In Toufighjou v Tritschler, 2016 WL 6122465 (M.D. Florida, 2016) the Magistrate Judge recommended that Plaintiffs motion for attorneys’ fees, costs, and expenses under 22 U.S.C. § 9007(b)(3) be granted in part. Plaintiff incurred $16,675 in legal fees for 44.33 hours expended by Mr. Arenstein, at $600 per hour, and Mr. Min, at $300 per hour. This included costs of $2,155.07, which included expenses for airline, transportation, and lodging incurred by counsel, to attend the hearing ($1,343.83); costs for the filing fee ($400); the special admission fee for Mr. Min to appear pro hac vice ($150); the attorney admission fee for Mr. Arenstein to practice in the Middle District of Florida ($191); the fee for a certificate of good standing for Mr. Arenstein ($18). The Magistrate found that the documented hours were necessarily expended and related to the return of A.R.T. Additionally the costs incurred for travel and lodging constituted necessary expenses. The Magistrate also found that $4,564 in legal fees for 12.40 hours expended by Ms. Kay, at $350 per hour, and 1.60 hours expended by a paralegal at $140 per hour, as well as $1,225 in costs, which included the filing fee ($400) and the fee for a transcript of the evidentiary hearing ($825) were necessarily expended during the action and related to the return of A.R.T. Plaintiff was also entitled to recover $400 for the filing fee and costs are recoverable as fees of the clerk under 28 U.S.C. § 1920(1) Additionally, Plaintiff was entitled to recover the costs incurred for airfare, car rental, and parking related to traveling to Florida to attend the evidentiary hearing and returning A.R.T. to Canada. However, the costs incurred for meals while in Florida were not recoverable, as those costs were not related to the return of A.R.T. Plaintiff’s total allowable expenses amounted to $4,732.02.
The Magistrate rejected defendants argument that she was justified in removing her daughter to Florida, as having no bearing on the propriety of Plaintiff’s claimed expenses. The Court rejected defendants argument that plaintiff’s representation was excessive in light of the straightforward nature of the claims at issue. Defendant did not argue the reasonableness of the rates or hours for Plaintiff’s counsel, only that Plaintiff had too many lawyers because “[o]ne attorney would have been sufficient.” The Magistrate Judge indicated that the cases hold that there is nothing inherently unreasonable about a client having multiple attorneys, and they may all be compensated if they are not unreasonably doing the same work and are being compensated for the distinct contribution of each lawyer. An award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation. The billing records indicated that the hours requested reflected the distinct contribution of each attorney.
However, the Court found merit to defendants argument that she had no financial means to pay the requested fees. In cases arising under ICARA, the court may reduce a fee award based on the respondent’s financial situation and resulting inability to pay. E.g., Souratgar v. Lee Jen Fair, 818 F.3d 72, 81 (2d Cir. 2016). Defendant averred that she was a stay-at-home mother during her marriage and received no spousal or child support from Plaintiff, from whom she had recently divorced, leaving her without assets or income to pay the requested fees. In light of this the Court found that a reduction was warranted to account for Defendant’s straitened financial circumstances. Plaintiff’s attorneys’ fees were therefore reduced by 25%, for a total award of $15,554.25 in attorneys’ fees; $1,584 in costs; $4,732.02 in expenses for Plaintiff; and $1,343.83 in expenses for Plaintiff’s counsel, for a total award of $23,214.10.
Thursday, October 20, 2016
Ovalle v Perez, 2016 WL 6082404 (S.D. FL, 2016)[Guatemala] [Habitual Residence of Infant] [Petition granted]
In Ovalle v Perez, 2016 WL 6082404 (S.D. FL, 2016) the District Court granted the Petition of Maria Alejandra Reyes Ovalle’s Petition for the return of E.L. to Guatemala with his mother. Petitioner was a successful Guatemalan entrepreneur who owned a home and auto mechanic shop in Mixco, Guatemala. Respondent was a divorced United States citizen originally from Guatemala, who owned businesses in the United States and a shop in Guatemala, which was managed by Petitioner’s mother’s half-sister. He was a resident of Hollywood, Florida. In March, 2015, Respondent traveled to Guatemala for eight days to accompany Petitioner to her friend’s wedding. Petitioner became pregnant during this trip. In June, 2015 Petitioner traveled to the United States to visit with Respondent and returned to Guatemala on July 9, 2015. In mid-September, Petitioner was seven months pregnant. Petitioner decided to return to Florida to attempt to make the relationship work. Petitioner agreed to give birth in Florida. Petitioner travelled back to Florida on October 4, 2015, and accepted an engagement ring but never wore the ring. Petitioner who was in the United States on her tourist visa remained in Florida until the end of February, 2016. Petitioner did not close any of her bank accounts in Guatemala, construction continued on her investment property, and she continued to earn income from her business there, with her mother’s assistance in running the daily operations. The parties’ son, E.L., was born on December 17, 2015. Respondent and Petitioner returned to Guatemala on February 26, 2016. On March 1, 2016, Petitioner obtained “Security Measures,” the equivalent of a restraining order, to prevent Respondent from removing E.L. from Guatemala but did not inform Respondent of the Security Measures, even though she told him, that she would not be returning to the United States because she was afraid of losing her son. Petitioner stayed in Guatemala with E.L. and Respondent returned to the United States on March 4, 2016. On March 6, 2016, before he learned of the existence of the Security Measures, Respondent initiated custody proceedings in Florida, and obtained an Order to Pick-Up Minor Child (the “Pick-Up Order”). Respondent, did not tell Petitioner that he had initiated proceedings, or that he had obtained the Pick-up Order. Respondent filed a response in opposition to the Security Measures on March 11, 2016. Between March and July, 2016, E.L. lived with the Petitioner and her parents. Respondent periodically sent money to Guatemala for the baby upon Petitioner’s request. Respondent traveled three times to Guatemala, from April 1-3, May 6-8, and May 29-June 1. During these visits, Respondent visited Petitioner and E.L. at Petitioner’s parents’ house. Respondent did not inform Petitioner about the Pick-Up Order or the scheduled hearing in Florida. Nor did the Respondent seek relief from the Guatemalan Court despite the filing of his response to the Security Measures. Respondent arrived in Guatemala on July 15, 2016 for the childs baptism. The following day, Respondent asked Petitioner to accompany him to drop off an invitation to the baptism. Petitioner, Respondent, and E.L. travelled together in her car to deliver the invitation. At the time, E.L. was asleep in Respondent’s arms. Rather than wake him, Respondent asked Petitioner to take the invitation to the front door. When she did, he got out of the car, placed E.L. in his car seat, and drove off, leaving Petitioner behind. He then traveled by bus with E.L. through Mexico. Five days later, when Respondent and E.L. arrived in the United States, Respondent advised Petitioner that E.L. was with him and that the baby was fine.
The district court observed that to determine habitual residence in the case of an infant,, the Court looks at the parents’ shared intent or settled purpose regarding their child’s residence. Where a matrimonial home exists, i.e., where both parents share a settled intent to reside, determining the habitual residence of an infant presents no particular problem. Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir. 2003). However, where there is no marital home and an unsettled relationship between the parents, as in this case, the determination of a settled intent becomes more problematic. Furthermore, where the conflict is contemporaneous with the birth of the child, no habitual residence may ever come into existence. The Court noted that the facts were similar to those in Delvoye, supra, and after examining the facts decided that there was no shared intent to reside in either Florida or Guatemala.
The district court concluded that E.L. became habitually resident in Guatemala prior to the time of his removal by Respondent to the United States finding Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006) to be instructive. It observed that upon Petitioner’s informing Respondent that she and E.L. would remain in Guatemala, Respondent voluntarily returned to the United States on his planned departure date. Even though Respondent immediately filed a custody proceeding upon his return to the United States, the Court, like the Seventh Circuit in Kijowska, found his efforts were of little relevance. If Respondent believed that Petitioner’s decision to keep E.L. in Guatemala was wrongful, the proper legal remedy was to file his own petition under the Convention, which he did not do. Instead, he returned to the United States and engaged in exactly the type of behavior the Convention is designed to prevent, by filing a custody proceeding in a jurisdiction where he admittedly knew the law would be more favorable to him. The court indicated that the failure to file a Convention petition in and of itself may have been sufficient to have enabled E.L. to establish habitual residence in Guatemala. Further factors weigh in favor of the Court’s determination. Petitioner and Respondent continued to communicate between March and July of 2016, and upon Petitioner’s request, Respondent continued to send money to Guatemala for the baby multiple times. During these communications, Respondent expressed that he missed his son and Petitioner, how much he loved them both and his belief that their relationship could work, and entreated her to return; at the same time that Petitioner made it clear that she did not share the same feelings. Even so, Respondent returned to Guatemala three times between March and July, visiting with E.L. and Petitioner each time. At no time, during any of these visits did Respondent inform Petitioner that he had sought relief from the Florida court regarding custody or that he was attempting to enforce any rights Respondent believed he had been granted by a Florida court. During this period, Respondent was aware that E.L. was living in the same house with Petitioner, his grandparents and uncle, with whom he was bonding. Petitioner was still breastfeeding the child, the child was regularly seen by a pediatrician and attended church with Petitioner and her family. Respondent also did not resist or oppose Petitioner’s plans to baptize E.L. in Guatemala. By the time Respondent abducted E.L. in July, the baby had been living for four months in Guatemala with Petitioner and her family. The Court found hat E.L. did not have a habitual residence until one was established with Petitioner in Guatemala.
Monday, October 10, 2016
Guevara v Soto, 2016 WL 4921546 (E.D. Tenn., 2016) [Mexico] [Federal & State Judicial Remedies] [Enforcement of Judgment for Return]
In Guevara v Soto, 2016 WL 4921546 (E.D. Tenn., 2016) on April 15, 2016, the Chief District Judge granted the Plaintiff’s Petition for Return of his Child to Mexico. In the Memorandum the Chief District Judge stated, “The parties are to decide among themselves the means and manner of the child’s return to Mexico.” The parties were unable to decide among themselves the means and the manner of the child’s return to Mexico, and the issue was referred a Magistrate who, after a telephonic hearing, orally ordered the Respondent to transport the child to La Luz, Michoacan, Mexico, by May 16, 2016. The Petitioner filed an emergency Petition alleging the Respondent did not comply with the order. He requested, inter alia, that a Warrant of Arrest issue to bring the child and the Respondent into Court and that the Court order the child to be delivered immediately to the Petitioner in the United States so that the child may be transported to La Luz, Michoacan, Mexico. After a hearing the Court certified the following factual findings: On April 15, 2016, the Chief District Judge ordered the Respondent to return the child to Mexico, the country of the child’s habitual residence. Subsequently, on May 2, 2016, the undersigned verbally ordered the Respondent to transport the child to La Luz, Michoacan, Mexico, by May 16, 2016. Since the trial in this matter, the Petitioner maintained regular contact with the child using the Respondent’s cellular telephone. However, on May 2, 2016, when the Respondent attempted to contact the child, the cellular telephone would not ring. On May 16, 2016, the date the child was to be returned to La Luz, Mexico, the Petitioner visited Respondent’s grandparents, where Respondent previously lived, but the child and the Respondent were not there. The Petitioner made approximately four or five trips to La Luz, Mexico but has been able to locate the child.
The Court found that the Respondent failed to comply with the Order, which ordered the Respondent to return the child to La Luz, Mexico, by May 16, 2016. The Court found no reason to reopen the case for the issuance of provisional remedies requested in the Emergency Petition because federal procedural and state substantive laws supported Petitioner’s requested relief. Instead it found that the Respondent had violated the Chief District Judge’s Order and its Order and Recommended that the Chief District Judge issue a show cause order to Respondent to appear at a date certain before the District Judge to show cause why she should not be held in contempt for failing to obey the Court’s Orders. It also recommended pursuant to Federal Rules of Civil Procedure 70 that “the Clerk of Court issue a writ of attachment to direct the United States Marshals Service to attach the child and deliver the child to the Tennessee Department of Human Services for temporary placement. The Tennessee Department of Human Services shall make the appropriate arrangements with the U.S. Central Authority for the child’s return to Mexico or to Petitioner. The Tennessee Department of Human Services shall coordinate with Petitioner’s counsel and the U.S. Central Authority to effectuate a smooth transfer of the child to Petitioner or to Mexico at an appropriate border station.” It also recommended that the child’s name be placed in the Children’s Passport Issuance Alert Program so that the Petitioner may be alerted if someone applies for the child’s passport.
In Best v Tamplin, 2016 WL 5402717 (W.D. Penn., 2016) Petitioner Joseph E. Best, Jr. sought attorney’s fees and costs pursuant to 22 U.S.C. § 9001 (formerly 42 U.S.C. § 11601) and 22 U.S.C. § 9007(b)(3) (formerly 42 U.S.C. § 11607(b)(3)) after his petition for an order compelling the return of his minor children to Bermuda was granted. Respondent challenged the motion on the grounds that the custody arrangement governing the children and her removal of them to Erie was still under review by the Supreme Court of Bermuda and therefore an order in favor of petitioner could prove to be prejudicial to her rights in that forum. Consequently, from her perspective awarding attorney’s fees and costs ‘would be clearly inappropriate‘ under 22 U.S.C. § 9007(b)(3). The district court held that this argument had no application to the motion and the court already granted petitioner relief under the Hague Convention. Therefore, respondent failed to show it ‘would be clearly inappropriate‘ to award necessary fees and expenses.
The district court held that Respondent’s violation of the statute virtually triggers an award of reasonable attorney’s fees and costs under 22 U.S.C. § 9007(b)(3), unless respondent establishes that they ‘would be clearly inappropriate.‘ The lodestar approach is the appropriate method for this court to use in determining the amount of reasonable attorney’s fees that should be awarded to the prevailing party. Distler v. Dislter, 26 F. Supp.2d 723, 727 (D.N.J. 1998). Petitioner’s attorney sought $199.72 per hour. The court found this hourly rate to be reasonable. She documented 102.5 hours, which when multiplied by the reasonable hourly rate of $199.72 produced a total of $20,471.30. Respondent failed to challenge petitioner’s request or provide specific reasons as to why an award of this amount would be unreasonable or ‘clearly inappropriate.‘ Accordingly, petitioner’s request for attorney’s fees was reasonable and was approved. Petitioner also sought reimbursement of $2,036.88 in airfare, hotel, and car rental costs. Under 22 U.S.C. § 9007(b)(3), petitioner is entitled to these costs as it was necessary for him (1) to fly to the United States, (2) stay 2 nights in order to attend the hearing, and (3) return with his children to Bermuda. Federal courts routinely have awarded transportation and lodging costs to attend court hearings. See, e.g., Paulus v. Cordero, 2013 U.S. Dist. LEXIS 20198 (M.D. Pa. 2013) (ordering reimbursement of $555.80 for airfare, $619.50 for bus fare, and $122.10 for lodging expenses); Distler, 26 F. Supp. 2d at 728 (awarding $2,422.00 for round trip flight and minor’s airfare for return to his habitual residence) (citing Freier v. Freier, 985 F. Supp. 710, 714 (E.D. Mich. 1997)). Petitioner provided sufficient documentation regarding these expenses and respondent failed to present a persuasive argument suggesting that an award of actual airfare, lodging, and transportation costs would be ‘clearly inappropriate.‘ Accordingly, she was ordered to pay $2,036.88 for his reasonable and necessary costs. Petitioner’s request for $1,407.26, which was charged to petitioner by counsel as actual out of pocket costs also was also approved as necessary costs. However, $250.00 requested for petitioner’s food and miscellaneous costs while in Erie on August 31, 2015, and September 1, 2015, was denied as he would have had to eat and incur similar sundry expenses even in the absence of the hearing.
Fernandez v Bailey, 2016 WL 5149429 (M.D., FL ., 2016) [Panama] [Well-settled] [Petition denied][ testify via video transmission][in camera interview]
In Fernandez v Bailey, 2016 WL 5149429 (M.D., FL ., 2016) the district court denied Petitioner Roque Jacinto Fernandez’s Petition for Return of his Children to Panama. Petitioner, a Panamanian citizen, and Respondent an American citizen working in Panama, were involved in a romantic relationship. Respondent gave birth to the couple’s twin sons, C.R.F.B. and R.J.F.B., on August 18, 2008. Although Respondent and Petitioner never married, Petitioner’s name was on the children’s birth certificates. In May of 2009, Respondent left Panama with the children and moved to Missouri without Petitioner’s consent. On May 13, 2010, Petitioner filed his first petition under the Hague Convention, seeking the return of the children to Panama. The District Court ordered that Respondent return the children to Panama in September of 2010. 2010 WL 3522134, at *3 (E.D. Mo. Sept. 1, 2010), modified, 2010 WL 5399220 (E.D. Mo. Dec. 23, 2010). As a result of a prior felony conviction he received while living in the United States as a juvenile, Petitioner was unable to obtain a visa and attend the 2010 hearing in person. Pursuant to the Missouri court’s order, Respondent returned to Panama with the children. In Panama, Petitioner initiated custody proceedings and criminal charges against Respondent for the previous removal of the children. Pursuant to the ongoing custody proceedings, Petitioner had visitation rights to visit with the children every other weekend. Because of the contentious relationship between the parents, the Panamanian court designated a local children’s police station as the drop-off and pick-up location for these visits. On February 2, 2014, Respondent and the children flew from Panama to Tampa, Florida. Petitioner was unaware that Respondent and the children had moved to Florida. Before learning that the children were in the United States, and in late January of 2015, the Panamanian immigration authorities informed Petitioner that the children had left Panama nearly a year earlier on February 2, 2014. Petitioner then filed a Hague Convention application in late February of 2015. The United States Department of State provided information regarding the location of the children to Petitioner, eventually disclosing the children’s current location in Tampa, Florida. On August 24, 2016, Petitioner filed his Verified Petition for Return of Children to Panama
The district court found that the petitioner established a prima facie case for return, and found that respondent did not establish the grave risk of harm defense nor the wishes of the child defense. However, it found that the children were wrongfully removed more than one year before the petition and that the children we is now settled in their new home. Hague Convention, art. 12. To fall under this exception, “the child must have significant connections demonstrating a secure, stable, and permanent life in his or her new environment.” Alcala v. Hernandez, 826 F.3d 161, 170 (4th Cir. 2016) It found that during their time in Florida, the children resided in two locations, both in the Tampa Bay area. Both residences were in the same general area. The children built relationships with Respondent’s family members since their arrival in the United States. Although the distance between the children and these relatives prevented daily interaction, the Court found that the children built a meaningful connection with their extended family while living in Florida. Since enrolling in their current school in Tampa in April of 2015, the children attended consistently and earned all satisfactory or excellent marks on their report cards. The elementary school gave the children awards for good behavior and citizenship. The children made friends and participated in extracurricular activities. While living in St. Petersburg, they played in a local t-ball league. Later, at the children’s request, Respondent registered them to play on a club soccer team, for which they travel with their teammates and play competitively. Last summer, Respondent enrolled the children in a Christian summer camp, where the children participated in adventurous activities like rock-climbing and archery. Respondent was an American citizen working in a well-paying job, which Respondent testified partially motivated her move from Panama to Florida. She had been steadily employed since her arrival and has sufficient financial resources to keep a live-in nanny to help with child-care. The Court found that Respondent had a stable career and adequately provides for the children. The Court was not persuaded that Respondent used the concealment tactics alleged by Petitioner. Regardless, if they were used, the Court found that these tactics had not prevented the children from forming a permanent and stable connection to their new environment. The children attended the same school for over a year, were enrolled in school and extracurricular activities in their own names, and had lived in only two homes in the Tampa Bay area since their arrival from Panama. The children were thriving in Florida. The Court believed that the children’s interest in settlement outweighed the other interests that would be served by returning the children to Panama. The Court was deeply disturbed by Respondent’s actions. This was the second time Respondent has removed the children from Panama without Petitioner’s consent. Because Petitioner had been unable to secure a visa to attend the 2010 Hague Convention hearing because of his prior conviction, Respondent likely knew that Petitioner could not travel to the United States to search for the children or participate in person if future custody proceedings were initiated here. While preventing this type of forum-shopping by parents was a major motivation for the enactment of the Hague Convention, the interest in discouraging wrongful removals like that perpetrated by Respondent is not enforced at any cost under the Hague Convention. Lozano, 134 S. Ct. at 1235. The Court found that the children’s interest in settlement outweighed the other interests of the Hague convention because disruption of the stable and permanent connection the children established to their new home would be harmful. The fact that Petitioner may have had a good reason to file his petition over a year after the children’s removal did not negate the harm that would come to the children if they were removed from their new environment.
Sierra v Tapasco, 2016 WL 5402933 (S.D. Texas, 2016)[Mexico][Habitual Residence][Petition granted][Grave Risk of Harm Not Established]
In Sierra v Tapasco, 2016 WL 5402933 (S.D. Texas, 2016) Petitioner Jaimes and Respondent Nasly Ximena Riascos Tapasco (“Riascos”) met in Charlotte, North Carolina in 2006. They moved in together and on July 23, 2009, they had a child, K.J.R. In 2011, one of their family arguments grew into a domestic dispute in which the police were called. Jaimes’s pleaded guilty to the charge. Riascos was a Colombian national and Jaimes was a Mexican national. Although Riascos was in the United States on a visa, Jaimes was here illegally. AS a result of his arrest for domestic violence he departed the country voluntarily, leaving open the possibility of returning to the United States legally in the future. Riascos agreed to allow K.J.R. to return to Mexico with Jaimes and executed a notarized travel authorization to this end. The parties disagreed as to whether K.J.R.’s move to Mexico was intended to be temporary or permanent. Riascos testified that she returned to Mexico in July 2014 because of Jaimes threats to keep the child from her and to celebrate K.J.R.’s birthday. Riascos alleged that although she did not tell Jaimes she was coming to Mexico for K.J.R.’s birthday, she did notify him once she arrived.. She testified that after her arrival she went to Jaimes’s home with his sister because she was afraid to go alone on account of his recent threats. When they arrived, Jaimes allegedly began verbally and physically assaulting Riascos in front of his sister and daughter, throwing K.J.R. onto the bed during the altercation. Riascos testified that it was only after enduring this abuse and hearing how unhappy her daughter was that she decided to leave Mexico with K.J.R. immediately.. According to Jaimes, he was not aware that Riascos was in Mexico on the eve of his daughter’s birthday and he never saw her. He testified that he slept alone at his home and early the next morning his sister called to tell him that K.J.R. was gone.. Jaimes immediately notified the authorities who began a search for the girl, but it was not until November that he received official confirmation that she was residing in Houston, Texas with Riascos.
The district court found that Jaimes and Riascos shared a mutual intent that the United States be K.J.R.’s habitual residence for the first three years of her life. They lived here together as a family with no intention of leaving until Jaimes was faced with immigration difficulties. The question was whether the parties had shared intent for K.J.R. to abandon her habitual residence here and establish a new one in Mexico when she left the United States with her father in October 2012. The Court observed that whether the parties thought that Jaimes might one day return to the United States did not mean that the United States remained the child’s habitual residence. Norinder v. Fuentes, 657 F.3d 526, 534 (7th Cir. 2011) Because parents will often disagree about what their shared intentions were, once litigation is underway, courts must take account of the parents’ actions as well as what they say. In such cases, context, rather than specific periods of time spent in a particular location, is the key to the concept of habitual residence. Berezowsky, 765 F.3d at 467. When parties argue that their intent was to eventually return rather than to establish a new residence, courts will look to the circumstances of the family’s move to assess parental intent. Acts of permanence such as selling cars, belongings, and homes, as well as the type of belongings brought to the new residence, often indicate the parties’ intention to make a permanent move.
The record indicated that K.J.R. and Jaimes’s move to Mexico was not temporary. Jaimes signed over his tax refunds and bank accounts in America so that Riascos could access the funds after he left; he signed a voluntary immigration departure form, purchased one-way tickets to Mexico City, obtained a written release from Riascos to take the child, and departed with K.J.R. Soon after, he rented and established a home for the family. Although she herself never fully moved to Mexico, up until six months before the abduction Riascos regularly visited K.J.R. and Jaimes for extended periods of time.. During those visits, the three of them lived together under a single roof as a family. K.J.R. never returned to America with her mother after any of her visits. K.J.R.’s bedroom in Mexico was full of all of her belongings, many of which Respondent brought to her there. Furthermore, after K.J.R.’s fourth birthday, Riascos took steps to purchase the property Jaimes and K.J.R. were living in as an investment because it had another apartment attached that the family could rent out. Most importantly, K.J.R. was also enrolled in school in Mexico, which was slated to begin over a year after her fourth birthday. This was sufficient contextual evidence that the parties had a shared intent that Mexico was to be K.J.R.’s habitual residence. The court also found that the record discredited Riascos’s claims that the agreement was for K.J.R. to return to the United States after her fourth birthday. The record suggested that the parents did in fact “jointly develop the intention” that K.J.R. was to abandon her habitual residence in the United States and establish a new habitual residence in Mexico. The district court found that Jaimes established that Mexico was the habitual residence of the child. It then found that under Mexican Law of patria postes Petitioner had rights of custody and that he was exercising those rights at the time of the removal, thus establishing a prima facie case.
The district court rejected the Respondents grave risk of harm defense. It observed that under Article 13(b), spousal abuse is only relevant if it seriously endangers the child. Souratgar v. Lee, 720 F.3d 96, 103–04 (2d Cir. 2013). There was no evidence that K.J.R. was targeted or at risk during the 2011 domestic violence incident, or that she even observed it. Riascos’s speculation and the parties’ conflicting testimony was insufficient to meet the high threshold for a grave harm defense. It noted that the exceptions to return are prospective, not retrospective. Sanchez v. R.G.L., 761 F.3d 495, 509 (5th Cir. 2014). As a result, past acts of domestic abuse or drug activity in the home are insufficient to show grave risk of harm. When the child observed parental abuse in the past, if the parents’ current living situation makes it unlikely that the child will do so again, there is no grave risk of harm. The Court, inter alia, also rejected the argument that K.J.R. would be in grave danger if she was returned because Jaimes lived in one of the highest crime areas of the city. Living conditions marked by poverty, sociopolitical unrest, or community violence are insufficient to show grave risk of harm or intolerable situation.