New York Matrimonial Trial Handbook

The New York Matrimonial Trial Handbook by Joel R. Brandes is available online in the print edition at the Bookbaby Bookstore and other bookstores. It is now available in Kindle ebook editions and epub ebook editions in our website bookstore. It is also available at Amazon Kindle, Barnes & Noble and Goodreads.

The New York Matrimonial Trial Handbook was written for both the attorney who has never tried a matrimonial action and for the experienced litigator. It is a “how to” book for lawyers. This 836 page handbook focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action. It is intended to be an aid for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. The handbook deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof. There are thousands of suggested questions for the examination of witnesses at trial to establish each cause of action and requests for ancillary relief, as well as for the cross-examination of difficult witnesses. Table of Contents

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Thursday, December 29, 2016

Cisneros v Lopez, 2016 WL 7428197 (D. Nev., 2016)[Mexico] [Grave Risk of Harm] [Petition denied]



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]



          In Hernandez v Cardoso, --- F.3d ----, 2016 WL 7404767 (7th Cir., 2016) the Seventh Circuit affirmed an order of the district court which denied the father’s petition for return of the parties child to Mexico. The parties were both citizens of Mexico who resided in Mexico until December 15, 2014 and were the parents of  A.E., born in 2008, and M.S., born in 2002. Cardoso claimed to have left Mexico with A.E. and M.S. in December of 2014 to escape abuse from Hernandez and protect the children. In August  2015, Cardoso agreed returned M.S. to Hernandez. On December 18, 2015, Hernandez filed a Petition for Return. The District Court found that Cardoso testified credibly that Hernandez would hit her in the presence of A.E. with the intention of having A.E. witness the abuse of his mother. It observed a significant change in the demeanor of A.E. when the child discussed Hernandez, the domestic violence and the possible return to Hernandez’s custody. The District Court found that Cardoso and AE’s testimony about the domestic violence provided clear and convincing evidence that there was a grave risk of physical or psychological harm to A.E. if he was returned to Hernandez’s custody.

The Seventh Circuit observed that Cardoso did not dispute that Hernandez established a prima facie case for wrongful removal. However, Article 13(b) provides that “when there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, the automatic return required by the Convention should not go forward.” Norinder v. Fuentes, 657 F.3d 526, 533 (7th Cir. 2011). The District Court found that both Hernandez and Cardoso used physical discipline of the children. Hernandez testified that he would spank the children with an open hand and described Cardoso’s physical discipline as “more harsh” because she would pull her daughter’s hair and “really fight with her.” Cardoso testified that she would spank the children with her hand or with a shoe. She objected to the way Hernandez disciplined the children because it was “too much” and he would “hit them very hard” with a belt. The District Court questioned A.E. in camera during the evidentiary hearing. A.E. testified that Hernandez would hit him with a belt if he misbehaved “really bad.” He further testified that he saw Hernandez hit Cardoso with a belt and with his hands and saw him give Cardoso a black eye. A.E. said he was “a little bit” afraid of Hernandez.  The District Judge determined that Cardoso’s testimony that Hernandez abused her repeatedly and in the presence of the children was credible, despite the fact that she allowed her daughter to return to Mexico to live with Hernandez and provided inconsistent testimony about whether Hernandez knew she would leave Mexico with the children. Cardoso’s testimony about the abuse was corroborated by A.E., who testified of Hernandez’s physical abuse toward Cardoso and himself. With the deference given to the District Court, the Court found there was no error in the lower court’s credibility determination.  A district court’s credibility findings are ‘binding on appeal unless the [court] has chosen to credit exceedingly improbable testimony.   Moreover, the District Court’s application of the facts in this case to the Article 13(b) “grave risk” standard was appropriate. “[R]epeated physical and psychological abuse of a child’s mother by the child’s father, in the presence of the child (especially a very young child, as in this case), is likely to create a risk of psychological harm to the child.” Khan v. Fatima, 680 F.3d 781, 787 (7th Cir. 2012). The District Court recognized it had to consider “risk in the father’s behavior toward the mother in the child’s presence” in its analysis. Id. The Court having found the factual findings made by the district court supported the conclusion that there was a “grave risk” of physical or psychological harm to A.E. if he was returned to Hernandez’s custody.



Pennacchia v Hayes, --- Fed.Appx. ----, 2016 WL 7367848 (9th Cir.,2016)[Italy] Habitual Residence] [Petition denied]



          In Pennacchia v Hayes, --- Fed.Appx. ----, 2016 WL 7367848 (9th Cir., 2016) the Ninth Circuit affirmed a judgment which denied Danilo Pennacchia’s petition for return of his minor child to Italy. In observing that the dispute centered around the habitual residence of the child the court pointed out that to determine a child’s habitual residence, they first look for the last shared, settled intent of the parents.  It explained that the district court concluded SAPH’s habitual residence was the United States, and that in doing so, the court applied the correct legal standard by focusing on the shared, settled intent of the parents. The district court acknowledged that the parents’ testimony differed concerning their intentions at the time they left the United States, but found Pennacchia’s “testimony lacked credibility and evidence to support his position.” The Ninth Circuit indicated that it gives heavy deference to factual determinations such as which witnesses to believe and which documents corroborate the most credible version of disputed testimony. The district court found Pennacchia agreed to and signed several documents, that supported the mother’s testimony and evidenced the parties’ initial agreement that “their living arrangement in Italy was conditional and ‘a trial period.’ It held that the district court did not err when it concluded that, for both parents, “the settled intention was for SAPH’s habitual residence to be the United States.

The Ninth Circuit indicated that for SAPH’s habitual residence to change, “the agreement between the parents and the circumstances surrounding it must enable the court to infer a shared intent to abandon the previous habitual residence.” Mozes, 239 F.3d at 1081. Although it is possible for a child’s contacts standing alone to be sufficient for a change of habitual residence, in view of ‘the absence of settled parental intent, [we] should be slow to infer from such contacts that an earlier habitual residence has been abandoned.’ To infer abandonment of a habitual residence by acclimatization, the ‘objective facts [must] point unequivocally to [the child’s] ordinary or habitual residence being in [the new country].’  It indicated that SAPH had significant contacts in Italy, but the district court did not find a shared parental intent to abandon her habitual residence in the United States or that the objective facts pointed unequivocally to a change in SAPH’s habitual residence. Pennacchia did not meet his burden on acclimatization, and therefore, the district court did not err by concluding SAPH’s habitual residence under the 1980 Hague Convention remains the United States.
         


Pliego v Hayes, 2016 WL 7048693 (6th Cir., 2016) [Turkey] [Grave Risk of Harm] [Attorneys Fees] [Petition Granted]



In Pliego v Hayes, 2016 WL 7048693 (6th Cir., 2016) the state of habitual residence was Turkey, where the Petitioner father was assigned as a Spanish diplomat. The mother removed the child to the United States twice, and twice was ordered by the district court to return the child to Turkey.( Pliego v. Hayes, 86 F.Supp.3d 678, 696–97 (W.D. Ky. 2015) (“Pliego I”); Pliego v. Hayes, No. 5:15–CV–00146, 2015 WL 4464173, at *7 (W.D. Ky. July 21, 2015) (“Pliego II”). During the second proceeding, Pliego took steps for his diplomatic immunity to be waived, which would be necessary for Turkish courts to adjudicate the child’s permanent custody if his second ICARA petition was successful and the child was returned to Turkey. The Spanish Embassy sent diplomatic notes to Turkish authorities waiving Pliego’s immunity from jurisdiction and execution with regard to the custody case. The mother appealed the second return order, arguing that there was a grave risk of an “intolerable situation” because the father’s diplomatic status undermined the ability of the Turkish courts to properly adjudicate custody.

As an initial matter, the Sixth Circuit held that the case was not moot. By appealing Pliego II, Hayes was asking in effect for a “re-return” order instructing that the child be brought back from Turkey to the United States. Such a re-return order may be difficult to enforce, but this alone does not render an ICARA case moot, Chafin v. Chafin, ––– U.S. ––––, 133 S.Ct. 1017, 1023–26, 185 L.Ed.2d 1 (2013). The essential facts have not changed since Hayes’s appeal of Pliego II. The child was still in Turkey. An exit ban still prevented either parent from taking him outside of that country. Turkish courts were still adjudicating the underlying custody dispute. Accordingly, this case was not moot.

The Sixth Circuit held that the treaty phrase “intolerable situation,” under the second prong under Article 13(b) can encompass situations where the courts of the state of habitual residence are practically or legally unable to adjudicate custody. However, that was not the case here because, as found by the district court, the waiver by the Spanish government of the father’s diplomatic immunity sufficiently permitted the Turkish courts to adjudicate custody. The Sixth Circuit held that Hayes failed to establish an “intolerable situation” under the facts of this case, and review of the facts was for clear error. Simcox v. Simcox, 511 F.3d 594, 601 (6th Cir. 2007). None of the district court’s findings of fact were clearly erroneous, and they clearly established that Turkish courts could properly adjudicate the underlying custody dispute and protect the child.

          The Sixth Circuit rejected Pliego’s requests for an award of attorneys’ fees and costs incurring during this appeal. It noted that Article 26 of the Hague Abduction Convention provides that “[u]pon ordering the return of a child ... the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, ... to pay necessary expenses incurred by or on behalf of the applicant.” The ICARA provision implementing this language provides that “[a]ny court ordering the return of the child pursuant to an action brought under [ICARA] shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner.” 22 U.S.C. § 9007(b)(3) (2012). The Court held that  these provisions apply only to courts “ordering the return of the child.” Thus, this provision did not apply to it, which was not a court ordering the return of the child but was a court affirming another court’s order to return the child. This interpretation was supported by the decisions of sister circuits that have addressed the issue. Hollis v. O’Driscoll, 739 F.3d 108, 113 (2d Cir. 2014); West v. Dobrev, 735 F.3d 921, 933 n.9 (10th Cir. 2013). However, it did not reach the issue of whether the district court that ordered the child’s return in Pliego II may, upon separate motion, award fees incurred on this appeal.



Ochoa v Suarez, 2016 WL 6956609 (W.D. Mich, 2016)[Mexico] [Age & maturity defense][Petition denied]



In Ochoa v Suarez, 2016 WL 6956609 (W.D. Mich, 2016) Petitioner, Rosario Ramos Ochoa, a citizen of Mexico, filed a Petition seeking the 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 the 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.

Sabria v Perez, 2016 WL 7155744 (D. Oregon, 2016)[Mexico][ Habitual Residence] [Petition denied]



          In Sabria v Perez, 2016 WL 7155744 (D. Oregon, 2016) Plaintiff Anita Castro Sarabia (“Castro”) filed a complaint requesting the court order the return of KMRC, her seven-year-old son with defendant Bulmaro Ruiz Perez (“Ruiz”), to Mexico. The district court found that the United States was the child's habitual residence and dismissed the complaint. It found that in 2008, Castro and Ruiz met in Albany, Oregon. They lived together for a few months before separating. Castro gave birth to KMRC in April 2009.  In 2011 Castro had Ruiz’s permission to travel for seven months to Mexico, Castro’s native land. However, she and the child remained there for four years,  until he was retained in the United States in 2015, by Ruiz, after a visit to Oregon. The Court pointed out that a young child may acquire a new habitual residence in one of two ways: (1) through the parents’ shared settled intention to abandon the initial habitual residence; or (2) if “the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.” Mozes, 239 F.3d at 1076. Neither had occurred here. The district court found that Castro made the unilateral decision to change KMRC’s country of habitual residence from the United States to Mexico. Ruiz never consented or acquiesced to that change. Ruiz always firmly wished for KMRC to return to live in the United States. The Court's reading of Mozes, along with practically no evidence of KMRC’s acclimatization in Mexico, led it to conclude that Castro failed to meet her burden of demonstrating Mexico was KMRC’s country of habitual residence.


Thomas v Orion, 2016 WL 7046564 (M.D. Florida, 2016)[Canada] [Grave Risk of Harm][Petition denied]



In Thomas v Orion, 2016 WL 7046564 (M.D. Florida, 2016) Thomas filed a Petition against Jean Marceau Orion on June 9, 2016, seeking the return to Canada of the Parties’ three children, JMO, who was 12 years old and was born in 2004 in Miami, Florida; SRO who was 10 years old and was born in 2005 in Fort Myers, Florida; and MWO who was 9 years old and was born in 2007 in Fort Myers, Florida, and lived in Canada since 2008 with Thomas. She alleged Orion wrongfully retained the Children in Lehigh Acres, Florida, after a visit on June 28, 2015, when they did not return as agreed in August 2015. Orion was married and living with his wife and the Children in Lehigh Acres, Florida. The Children were enrolled in the Lee County School System and did not wish to be returned to Canada. Orion asserted he kept the Children in Florida because of a DPG report from 2013 and the statements made by the Children that they were physically abused. He also had concerns about the comments made by MWO that he sometimes went hungry.  The testimony presented at the hearing established that since July 2008 the Children attended school, went to church, and lived with Thomas in Canada. Orion sent child support payments to Thomas in Canada and traveled to Canada to visit with the Children on a yearly basis. The Children had not returned to the United States between 2008 and June 2015. There was an agreed upon date—August 2015—for the Children to return to Canada. The Court found by a preponderance of the evidence that the Children were habitual residents of Canada at the time they came to Florida and Orion retained them past the agreed upon date of return. The Court concluded that Thomas has established a prima facie case for return. However, it denied the petition finding that evidence presented at the hearing established that returning the Children to Canada and Thomas would expose them to grave physical or psychological harm. The last report submitted by DPG established the Children's’ living conditions were deplorable. The floors were filthy, dried food stuck to the walls, the refrigerator door was open to the point the inside was no longer cool, and there was very little food inside. MWO reported that he was hungry at school because he did not get any breakfast and noted that he only had cereal for supper the night before. MWO was physically hit by his oldest half-brother, DD. MWO also reported that Thomas hit him with a hair brush on his hand and back. Thomas admitted that her estranged husband Bonomo also hit the Children. The Children reported that Bonomo would sometimes have the oldest child, JMO, and/or DD hit the younger children while he watched. In 2008, DD reported to school authorities that Thomas stuffed socks into his mouth as a form of punishment. Further, Thomas admitted instructing the Children to keep quiet and not to report any physical abuse they received or any meals they missed. Given the abuse suffered by the Children at the hands of Thomas and Bonomo, the lack of food, the uncleanliness of the living environment, and Thomas’ proclivity to attach herself to men she did not know well, the Court found by clear and convincing evidence there was a grave risk of physical or psychological harm that would be caused by returning the Children to Canada. The Court denied the petition.






Rath v Marcoski, 2016 WL 7104872 (M.D. Florida, 2016)[Czec Republic] [Habitual Residence] [Petition granted]




          In Rath v Marcoski, 2016 WL 7104872 (M.D. Florida, 2016) the United States Magistrate Judge recommended that the fathers Petition for an order directing the return of his minor child, L.N.R., to the Czech Republic be granted. Petitioner was a citizen of the Czech Republic. He and a law partner had a law firm in Prague. Respondent, Veronika Marcoski was born in the Czech Republic and resided there until age fourteen.when she moved to Redington Beach, Florida.  Respondent passed the Florida Bar exam in 2010 and was later admitted to the Florida Bar in 2012.  After Respondent met petitioner Respondent began spending significant time in the Czech Republic. In April 2014, Petitioner and Respondent jointly purchased a residence with a right of first refusal in the event either wanted to sell their ownership share. On July 14, 2015, L.N.R. was born in Miami, Florida. After  L.N.R.’s birth in July 2015 through January 2016, Petitioner and Respondent were in a committed relationship with a shared intent for the foreseeable future to live with L.N.R in the Czech Republic. Respondent resided at times in the Czech Republic from 2012 through August 2014. The Magistrate Judge found that Petitioner’s case was established by a preponderance of the evidence. He found that Respondent’s expressed desire to give birth to L.N.R. in the United States, and later pursuit of United States citizenship for L.N.R., were only reflective of Respondent’s desire for L.N.R. to have dual citizenship, like her, so that L.N.R. would be able to avail himself in the future of the benefits that result from the dual citizenship. He did not find that Respondent’s desire to give birth in Miami and a Declaration of Intent to become a citizen demonstrated an intent by Respondent to reside in the United States with L.N.R. He found that after L.N.R.’s birth, Petitioner, Respondent, and L.N.R. resided together as a family, and, more significantly, Petitioner and Respondent had, at that time, a mutual settled intent to reside as a family in the Czech Republic.  Petitioner and Respondent were not married, and, from L.N.R.’s birth in July 2015 to the eventual end of their relationship in January 2016, there were signs that Petitioner and Respondent’s relationship was deteriorating. However, Petitioner demonstrated, by a preponderance of the evidence, that at least up to L.N.R.’s first Christmas in 2015, Petitioner and Respondent had a mutual settled intent to reside as a family with L.N.R. in the Czech Republic. See Delvoye, 329 F.3d at 333 (stating “the mere fact that conflict has developed between the parents does not ipso facto disestablish a child’s habitual residence, once it has come into existence”). The Magistrate concluded that L.N.R.’s habitual residence was in the Czech Republic; that Petitioner established a prima facie case of wrongful removal; and that no defenses to return had been established. 

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]



          In Villatoro v Figueredo, 2015 WL 12838861 (M.D. Florida, 2015) the district court denied the Respondents motion for a stay of the judgment which granted the fathers petition and ordered that SEM be returned to Guatemala for any custody proceedings.  In deciding the motion the court considered “(1) whether the stay applicant has made a strong showing that [she] is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Chafin v. Chafin, 133 S. Ct. 1017, 1027 (2013). The Court found that Respondent’s failed to make of showing that she was likely to succeed on the merits, and the  balance of the other factors did not“weighs heavily in favor of granting the stay.” Garcia-Mir, 781 F.2d at 1453. Respondent acknowledged, that if she were to prevail on appeal, she would be able to obtain a re-return order. It was not clear that Respondent would be unable to enforce, or that Petitioner would refuse to comply with, a re-return order. Further, a stay would substantially injure SEM, who would lose precious time to readjust to life in Guatemala, where she has resided her entire life prior to her removal to the United States.


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.



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.


Ochoa v Suarez, 2016 WL 6956609 (W.D. Mich, 2016)[Mexico] [Age & maturity defense][Petition denied]



        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.