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
Friday, February 17, 2017
Madrigal v Tellez, ______F3d_____, (5th Cir., 2017)[Mexico] [Federal & State Judicial Remedies] [“Return”]
In Madrigal v Tellez, ______F3d_____, (5th Cir., 2017) Jorge Carlos Vergara Madrigal (Vergara) and Angelica Fuentes Tellez (Fuentes) were the parents of two young daughters, ages five and three years. The family resided in Mexico City, Mexico, until April 2015, when Fuentes took the Children on vacation but wrongfully retained them in the United States thereafter. In June 2015, Vergara filed an action under the Hague Convention seeking the return of the Children to Mexico. Following trial, the district court found that Mexico was the state of the Children’s habitual residence, of the Convention, and that Fuentes had wrongfully retained the Children in the United States in violation of Vergara’s custody rights. The district court rejected Fuentes’s argument that the Children would face a grave risk of harm if returned to Mexico, finding that both parents were well able to provide them with adequate protection. In September 2015, the district court issued an order granting Vergara’s petition and requiring Fuentes to “return the Children to Mexico”). In the interim, Fuentes filed with the district court a Rule 60(b) motion to vacate the judgment, arguing that new evidence established that the Children would face a grave risk of harm if returned to Mexico. Vergara filed a “motion to enforce the judgment,” asking, among other things, that the Children be delivered to him for purposes of return to Mexico. On January 29, 2016, the district court denied Fuentes’s motion to vacate and granted in part and denied in part Vergara’s motion to enforce, again ordering Fuentes to return the Children to Mexico but declining to impose any additional requirements.
In early February, Fuentes filed a “Notice of Compliance with Court Order,” in which she represented to the district court that “the Children were returned to Mexico” and that they are “residing” in Ciudad Juarez, Mexico. However, according to Vergara, he subsequently learned that the Children were only spending some week nights in their maternal grandfather’s house in Juarez, while spending weekdays and weekends in El Paso, Texas. Vergara filed a “second supplemental emergency motion for clarification,” asking the court to order Fuentes to deliver the Children and their passports to Vergara and to prohibit the Children’s international travel out of Mexico. In a February 11, 2016, order, the district court denied this motion.
The Fifth Circuit observed that the return remedy is the “central operating feature” of the Convention. Abbott, 560 U.S. at 9. Neither the Convention nor ICARA define the term “return.” It rejected Vergara’s argument that “return” under the Convention requires a restoration of the pre-abduction status quo, connotes permanence, and precludes delivery of a child to individuals with no custody rights. He maintained that the Children had not been returned to Mexico because they
spent the majority of their time in the United States, traveled between the two
countries on a daily basis, and were in the care of third parties who had no
custody rights when they are in Mexico. The Court rejected Vergara’s expansive reading of the Convention’s return remedy as categorically mandating the relief that he sought. The return remedy was designed to ensure that the courts of the state of habitual residence have jurisdiction over the child in order to make custody determinations. Thus, the Convention and its return remedy do not control or regulate children whose custody matters are within the exclusive jurisdiction and control of the state of habitual residence. The parties agreed that Mexican courts now had jurisdiction to decide all custody matters in this case—those custody matters were currently being litigated in Mexico. And the Children’s regular and frequent presence in Mexico allowed Mexican authorities to enforce any judgment by the Mexican courts relating to the Children. Thus, the return remedy’s goals had been
achieved in this case.
Vergara contended that “the Children should have been returned to Mexico City, where among other things they can spend time with both parents and resume attendance at their original school.” The Fifth Circuit held that while the Convention seeks the “restoration of the status quo” in order to deter child abductions,, there is no indication that it is meant to restore the factual pre-abduction status quo in every sense, as Vergara suggested. Indeed, a court’s determination of the location of the child’s residence within the state of habitual residence, the school he or she must attend, and visitation schedules begins to resemble the judgments to be made in a domestic child case. Hague Convention courts are empowered to order the delivery of an abducted child to the petitioning parent for purpose of returning the child to the state of habitual residence. Yet, the Convention’s return remedy “only determines where any custody decision should be made.” Hernandez, 820 F.3d at 786. Vergara’s complaint that the Children were in the care of third parties when in Mexico was not relevant to the Convention’s return remedy because it has no effect on the now-established jurisdiction of the Mexican courts to make custody decisions in this matter. It pointed out that with regard to Vergara’s concerns about the children’s travel out of Mexico, this was within the jurisdiction of the Mexican courts. Subject only to the confines of Mexican law, Mexican courts are free to grant Vergara full custody over the Children and to prohibit or restrict their international travel. It affirmed the district court’s denial of Vergara’s post-judgment motions.
The Fifth Circuit affirmed that part of the order of the district court that denied her motion to reopen the trial, based upon her attorney's receipt of a single, vague email from an unknown source finding that what may have been a threat in the subject lien was not clear and convincing evidence of a grave risk of harm. There was no text in the body of the email. In October 2016, a Mexican court issued a warrant for Fuentes’s arrest, charging her with the offense of fraudulent administration. In her Rule 60(b) motion she claimed that no bail is available for this offense, and she would therefore be indefinitely separated from the Children if they were to remain in Mexico. Fuentes did not argue that the Mexican judicial system wass corrupt or unfair. The Fifth Circuit held that for it to second-guess the decisions of Mexican courts in their domestic criminal cases would be in serious tension with the principle of international comity, which the Convention seeks to further. Thus, the arrest warrant, did not establish clear and convincing evidence of a grave risk of harm to the Children. Accordingly, it affirmed the district court’s denial of Fuentes’s motion to vacate the Original Return Order.
Tuesday, February 7, 2017
In Raps v Zaparta, 2017 WL 74739 (SDNY, 2017) after the Court granted the petition of Robert Adrian Raps for the return of his child (“J.R.”) to Poland, it granted him an award of attorneys’ fees and costs, pursuant to 22 U.S.C. § 9007(b)(3). In its decision the court indicated that it “was not a close case” but that it was not frivolous.
The petitioner was represented by pro bono counsel. The Court observed that the appropriateness of such an award “depends on the same general standards that apply when attorney’s fees are to be awarded to prevailing parties only as a matter of the court’s discretion. There is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised in light of the [relevant] considerations.” Ozaltin v. Ozaltin, 708 F.3d 355, 374 (2d Cir. 2013) (internal citations and quotation marks omitted). Under the “lodestar” method of evaluating a fee request, the Court must multiply the number of hours reasonably expended by a reasonable hourly rate. Sanguineti v. Boqvist, 2016 WL 1466552, at *2 (S.D.N.Y. Apr. 14, 2016). The Court found the total hours expended –557.31 – to be reasonable under the circumstances and the low rates of $40/hour for out-of-court work and $60/hour for in-court were plainly reasonable. Petitioner sought a total of $36,795.61 in costs actually incurred by or on behalf of petitioner to locate J.R. in the United States and to file and prosecute his petition for the return of J.R. to Poland. These costs included the investigative expenses to locate J.R. ($628.54), travel expenses for petitioner and his sister to attend the evidentiary hearing (both testified) ($1,771.38), and travel expenses related to the return of J.R. to Poland ($2,318.22). These costs also included court reporter fees ($699.30), transcript charges ($1,282.50), translation fees $26,189.13), interpreter fees ($2,115.00), and hotel expenses for petitioner and his sister to attend the evidentiary hearing ($1,791.54). The Court found that the claimed costs constituted “necessary expenses incurred by or on behalf of the petitioner.” 22 U.S.C. § 9007(b)(3).
Although the total amount claimed for attorneys’ fees and expenses was therefore $60,602.64 the Court declined to award this amount because (1) Petitioners counsel agreed to take on the case on a pro bono basis – that is, it did not expect to be paid for its services or reimbursed for its expenses. Although the fact that the firm appeared pro bono does not preclude an award of fees and costs, it does warrant a reduction in the amount awarded. See Smedley v. Smedley, 2015 WL 5139286, at *3 (E.D.N.C. Sept. 1, 2015); Vale v. Avila, 2008 WL 5273677, at *2 (C.D. Ill. Dec. 17, 2008). Awarding petitioner these fees and costs (except for the $4,718.14 he and his sister personally incurred) would not restore him to the financial position he was in had J.R. not been wrongfully removed is one of the purposes of awarding fees and costs; and (2) Respondent was a person of limited financial means. She had negligible liquid assets, and she had been unable to work for more than a year due to various health problems. A losing respondent’s financial straits is a relevant factor in determining whether and how much to award in fees and costs. The Court found that two very good reasons to award substantial fees and costs under Section 9007(b)(3) were (1) an important purpose of such an award is to deter future child abductions; and (2) such an award will encourage lawyers to represent petitioners in Hague Convention cases on a pro bono basis in the future, because such lawyers might at least be able to recover their out-of-pocket costs. The Court found it would not be “clearly inappropriate,” 22 U.S.C. § 9007(b)(3), to order respondent to pay necessary expenses incurred by or on behalf of the petitioner, including legal fees and costs. But it would be clearly inappropriate to award the full amount requested. Accordingly, the Court reduced the full amount requested by two-thirds, such that the amount awarded was $20,200.88.
Davies v Davies, 2017 WL 361556 (SDNY, 2017)[French St. Martin] [Grave Risk of Harm] [Petition denied]
In Davies v Davies, 2017 WL 361556 (SDNY, 2017) Respondent Sally K. Davies was a citizen of the United States and the United Kingdom. Petitioner Christopher E. Davies was born in and is a citizen of the United Kingdom. They were married in 2006., In June 2008, they moved to the Caribbean island of St. Martin, where they purchased a scuba diving center. Ms. Davies gave birth to K.D in 2012. The parties lived together with K.D. in Grand Case, French St. Martin, until July 8, 2016. On July 18, 2016, Ms. Davies left St. Martin with K.D. for New York, without Mr. Davies’s knowledge or consent. Prior to this, K.D. never resided anywhere other than French St. Martin. Ms. Davies and K.D. currently reside at Ms. Davies’s parents’ house in Croton-on-Hudson. The district court found that the child’s habitual residence was French St. Martin, but if the child were returned to French St. Martin Mr. Davies’s extreme psychological abuse of Ms. Davies and K.D. would continue and escalate and there was a grave risk that K.D. would be exposed to severe psychological harm. It also found that the procedures in place in French St. Martin would be insufficient to protect K.D., and there were no ameliorative measures that could reduce the grave risk of harm. It declined to order the return of K.D. to French St. Martin.
During trial, the Court found Ms. Davies to be a credible witness. The Court found that very little of what Mr. Davies said was believable, primarily because it was completely contradicted by the testimony of numerous other witnesses called by Ms. Davies, and lacked any support from disinterested witnesses. The Court found Mr. Davies’s testimony on every significant contested issue to lack credibility.
The court observed that under Article 13(b), a grave risk of harm from repatriation arises in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.” Souratgar v. Lee, 720 F.3d at 103 The potential harm to the child must be severe, and the level of risk and danger required to trigger this exception has consistently been held to be very high.” “The exception to repatriation has been found where the petitioner showed a sustained pattern of physical abuse and/or a propensity for violent abuse that presented an intolerably grave risk to the child.” Souratgar v. Lee, 720 F.3d at 104. Evidence of “prior spousal abuse, though not directed at the child, can support the grave risk of harm defense, as could a showing of the child’s exposure to such abuse.
Dr. Stephanie A. Brandt, a psychiatrist testified as an expert at trial. She concluded that this was a very severe case of domestic violence. She concluded that the mother was a victim of a particularly severe kind of domestic violence, which included strangulation, and concluded that the child was witness to a great deal of violence and was also subject to a certain amount of violence himself. In addition, she diagnosed Ms. Davies with “a quite severe case of Post-Traumatic Stress Disorder of a certain type called dissociative type.” She also testified that domestic violence often escalates after a separation. She explained this is because when the victim of abuse leaves, “the abuser has then lost control, and controlling the victim is an essential part” of the pattern of abuse. Dr. Brandt further testified that the escalation after a separation can continue weeks, months, or longer after the separation, “often ... through the child or through the legal system or through various financial threats.” Dr. Brandt testified there is a consensus in the scientific community that the effects of abuse are essentially the same whether the abuse is directed at the child or whether the child is witnessing the abuse. Based on her observations, Dr. Brandt concluded that returning K.D. “to a place where this [abuse] occurred and to the care of somebody who has abused the mother would set off a tremendous traumatic reaction in” K.D.. She testified that there would be “a very high risk that [K.D.] would become very symptomatic, and that would mean a delay ... or change in his developmental trajectory and not [in a] good direction.”. She also testified that her opinion would not change if K.D. resided part-time with Mr. Davies upon his return to St. Martin, and that her opinion would be the same even if K.D. did not reside with Mr. Davies at all. The Court credited and fully accepted these conclusions. In light of the overwhelming evidence ( as set forth in the courts findings) of Mr. Davies’s extreme violence and uncontrollable anger, as well as his psychological abuse of Ms. Davies over many years, much of which was witnessed by K.D., and the fact that Mr. Davies frequently screamed and yelled at K.D. for no legitimate reason, the Court concluded that both Ms. Davies and K.D. were victims of severe domestic violence and that K.D. was at serious risk of trauma and developmental delay if he were permitted to continue to experience and witness the abuse.
The Court noted that in cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country.” Blondin v. Dubois, 238 F.3d at 163, n.11. It found that Mr. Davies repeatedly lied at trial, and the evidence showed he had tried to circumvent the law in St. Martin when he does not agree with its application to him. Therefore, Mr. Davies could not be trusted to honor any agreements or commitments he might make and that Mr. Davies would not abide by a stay away agreement if K.D. were returned to St. Martin. Second, several experts in St. Martin testified regarding the extremely small size of the island and its community, and the resulting inability to hide or avoid one’s abuser there. St. Martin is a very small island, different from the big French territory ... where a victim of psychological violence can hide. Hiding is not possible in St. Martin. Third, the legal system in St. Martin was inadequate to protect Ms. Davies and K.D. from Mr. Davies’s abuse. In French St. Martin it is not possible to get an immediate order of protection in cases of psychological abuse. Under normal circumstances, to obtain an order of protection, one must send a written request to a clerk in Guadeloupe (there are no clerks in St. Martin), who issues a summons to the accused abuser. This process takes at least fifteen days, and it can take more than a month before the parties are notified that they must appear in court. If an order of protection is eventually granted, it expires after six months. It can only be extended for one additional six month period, and only if divorce proceedings have commenced. An order of protection issued in French St. Martin is not effective in Dutch Sint Maarten.
The court concluded that because of the nature and extent of the allegations here, the procedures in place in St. Martin were insufficient to protect Ms. Davies and K.D. The found there were no ameliorative measures that would protect K.D. from harm if K.D. were returned to St. Martin even during custody proceedings.
In Baker v Baker, 2017 WL 314703 (M.D. Tenn.) the court denied the Petition of Kenneth Baker for an Order directing that the parties’ minor children, LMB and MAB, be returned to Germany.
Petitioner was a Chief Warrant Officer in the United States Army The children’s mother, Respondent Brianne Baker, removed the children from Germany, where he was stationed, on or about May 3, 2016, to the United States. In 2012, the Army issued Orders, with an April 1, 2012 reporting date, taking Petitioner and his family to Wiesbaden, Germany. Petitioner, Respondent, and the children resided in Wiesbaden for three years in a house located off base. On April 22, 2015, the Army issued Orders, with a July 13, 2015 reporting date, to Stuttgart, Germany. Thereafter, the parties and their children made a trip to the United States for four weeks during the summer of 2015 visiting family. During the trip, Respondent told Petitioner she did not want to return to Germany because “she felt [she] was already done with her marriage at that point. Petitioner thereafter promised Respondent that she and the children would be able to return to Tennessee if things did not work out in their marriage. Relying on this promise, Respondent ultimately agreed to return. Petitioner and his family ultimately moved to Stuttgart, Germany. On February 25, 2016, during an argument Petitioner stated that he was going to file for divorce in Germany. At some point during the conversation, Respondent hit him with her iPad. Petitioner allegedly became fearful for his safety, so he took the children and drove to the Military Police station, which was one-quarter mile from the family’s home. When Petitioner arrived at the MP station, the desk sergeant smelled alcohol on his breath, which led to him being charged with a DUI. At some point, on that same evening, Respondent, who admitted to hitting Petitioner, was apprehended and charged with domestic violence. After the February 25, 2016 incident, the parties separated and Petitioner moved into the barracks. The children returned to the house to stay with Respondent, but Petitioner continued to have visitation with the children by agreement of the parties. On February 26, 2016, Petitioner realized that he and Respondent would not be able to reconcile and in order to comply with command’s lawful order, prepared a Memorandum and Personnel Action for the early return of his wife and children. On this document, Petitioner listed the requested return date of June 26, 2016, so that he would have time to file for custody in Germany and prevent EROD orders from being issued. Petitioner then filed a petition for custody of the children in German Civil Court. On April 28, 2016, Respondent was served with a summons to appear in Court on May 4, 2016, via email, and she was personally served on April 29, 2016. On May 3, 2016, Petitioner took the children and flew to the United States, despite having knowledge of the custody hearing that was scheduled for the next day in German Civil Court. On June 17, 2016, Petitioner’s Verified Petition requesting the return of the children was filed with the district Court.
The district court observed that in holding that the habitual residence inquiry focuses on “past experience, not future intentions,” the Sixth Circuit in Friedrich I stated that the future intentions of the parents are “irrelevant.” 983 F.2d at 1401. Thus, the Friedrich I court dismissed arguments that “pertain[ed] to the future” and “reflect[ed] the intentions of [the mother].” (holding that child’s habitual residence was Germany because child was born there and lived there his entire life, despite the fact that his mother, a member of the armed forces, intended to return to the United States upon her discharge). A child’s habitual residence is the nation where, at the time of his/her removal, the child has been present long enough to allow acclimatization, and where this presence has a “degree of settled purpose from the child’s perspective.” Robert v. Tesson, 507 F.3d 981, 993 (6th Cir. 2007) (citing Feder, 63 F.3d at 224).
The district court found that the children’s habitual residence was Germany. Since 2012, the children had lived in Germany continuously for more than four years, excluding a single trip in 2015 of four weeks to the United States, from which they returned to Germany until their most recent trip. Furthermore, the evidence shows that after their return to Germany, the children continued to be involved in community activities. It also found that Petitioner had custody rights under German law and would d have continued to exercise those rights but for the Respondent’s retention of the children in the United States.
The court noted that Article 13(a) of the Convention permits the Court to refuse to order the return of children, despite a wrongful removal or retention, if Respondent proves by a preponderance of the evidence that Petitioner “had consented to or subsequently acquiesced in the removal or retention.” Acquiescence or consent to removal of the child “requires more than an isolated statement to a third-party. Each of the words and actions of a parent during the separation are not to be scrutinized for a possible waiver of custody rights.” Friedrich II, 78 F.3d at 1070. The Respondent testified that the parties had a conversation in July 2015 pertaining her and the children’s return to the United States, where Petitioner promised Respondent that she and the children would be able to return to Tennessee if things did not work out in their marriage. She testified between the summer of 2015 and the February 2016 accident, the parties “probably talked about that kind of stuff daily. It was a big deal.” The Court, found her testimony highly credible that Petitioner consented to the removal of the children from Germany and found for purposes of the Hague Convention, that Respondent gave his consent for Respondent to return to the United States with the minor child.
In Ambrioso v. Ledesma, 2017 WL 27454 (D. Nevada, 2017) the Court denied the Petition of Vladimir Gonzalez Ambrioso (Gonzalez) against Garcia for the return of his child, 2 year old child, Francisco, from the United States to Mexico. Francisco was born on February 7, 2014. In July 2014, Gonzalez purchased a home in the Gran Santa Fe II neighborhood of Cancún. Garcia and Francisco. Gonzalez and Delia had divorced, but they remained close friends. .Gonzalez had simultaneous relationships with both women. Gonzalez maintained separate households for each partner, lived with Delia, and visited Garcia regularly. On March 28, 2016, after a breakup of the couple’s relationship Garcia and her son departed for the United States. On or about April 4 and 5, 2016, Gonzalez sent Garcia a series of text message demanding the return of Francisco. Once Gonzalez learned that Garcia and Francisco were in the United States, he formulated a plan to visit, or possibly join, them in the United States. The couple rekindled their romance. In text messages, Gonzalez sent gifts, contemplated purchasing a home, and had other family members visit on his behalf. Before leaving for the United States, Gonzalez sold his car and Delia sold the home she shared with him. The district court found that after April 4, 2016 Gonzalez made genuine efforts to establish a home for Garcia and Francisco in the United States; and from April 2016 to June 2016, Gonzalez subjectively intended to allow Francisco to remain in the United States indefinitely. In late June 2016, Gonzalez attempted to enter the United States. He and Delia were detained and eventually removed from the United States.In August 2016, Gonzalez retained Nevada counsel, who filed his Hague application. After his removal, Gonzalez’s attitude changed. To that end Gonzalez, started legal proceedings to have Francisco returned to Mexico. Gonzales claimed that between mid–April and late June, 2016, his agreement with Garcia that Francisco should become a permanent resident of the United States and grow up here was a ruse. The court found that for this two and one half month period before Gonzalez’s failed attempt to enter the United States, he in fact intended to allow Francisco to remain in the United States indefinitely.
The court found that Gonzalez established a claim for return under 22 U.S.C. § 9003(e)(1). However, if also found that the Acquiescence exception applied. “[A]cquiescence under the Convention requires either:  an act or statement with the requisite formality, such as testimony in a judicial proceeding;  a convincing written renunciation of rights; or  a consistent attitude of acquiescence over a significant period of time.” Friedrich v. Friedrich, 78 F.3d 1060, 1070 (6th Cir. 1996). “Courts have held the acquiescence inquiry turns on the subjective intent of the parent who is claimed to have acquiesced.” Rehder v. Rehder, No. C14–1242 RAJ, 2014 WL 7240662 at* 5 (W.D.Wa. Dec. 19, 2014).The court’s acquiesce analysis focused on the third option: “a consistent attitude of acquiescence over a significant period of time.”12 Friedrich, 78 F.3d at 1070. From the case law the court distilled two rules: 1) action is a stronger indicator of acquiesce than inaction, compare Giles, 2012 WL 704910 at *7 (finding inaction over a 12–month period was acquiescence), with Culculoglu, 2013 WL 4045905 at *11(finding a 4–month period of active support was acquiescence), and 2) the more unambiguous the indictors of acquiesce are, the shorter a period of the time the petitioner’s behavior needs to continue before a court may find that the petitioner has acquiesced to the removal. See Culculoglu, 2013 WL 4045905 at *11. When these rules are applied this action, the court found that Gonzalez did acquiesce to Francisco remaining in the United States indefinitely. Consistent with his behavior throughout his relationship with Garcia, Gonzalez had a change of heart once he learned that Francisco was in the United States. He quickly reestablished contact with Garcia and rekindled their romance. Garcia credible testified that Gonzalez commented that it would be better if Francisco grew up in the United States and that on at least one occasion the couple had phone sex. From about mid–April 2016 to late June 2016, Gonzalez began helping mother and son get established in Las Vegas: 1) he contacted a realtor to look for a home; 2) he sent gifts and financial support; and 3) he sent his brother Elpidio to establish businesses in the Las Vegas area. The court concluded that Gonzalez’s actions were motivated by his subjective intent to allow Garcia to keep Francisco in the United States. He provided financial support for his child including taking the extraordinary step of looking for a house for him. He maintained contact with the child and Garcia and on at least one occasion expressed a desire for Francisco to remain in the United States. Further supporting this conclusion, Gonzalez took steps to relocate to the United States. He explored the possibility of setting up businesses in the United States, he sold his car, and had Delia sell their current home. In short, for a period of two and a half months, Gonzalez demonstrated a consistent attitude of acquiescence. Given the unambiguous nature of Gonzalez’s actions, the tumultuous nature of the couple’s relationship, and the court’s factual findings regarding Gonzalez’s subjective intent from April 2016 to June 2016, the court found that two and one half months was a sufficiently significant period of time to support a finding of acquiescence by a preponderance of the evidence.
Hogan v Hogan, 2017 WL 106021 (E.D. Va., 2017) [Spain] [Federal & State Judicial Remedies] [Diplomatic Immunity]
In Hogan v Hogan, 2017 WL 106021 (E.D. Va., 2017) Petitioner sought the return of the children to Spain. Respondent moved to dismiss it pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court denied the motion.
Petitioner and Respondent married in 2001. Both were U.S. citizens. Petitioner and Respondent had two children together, GTH and JWH, who were citizens of both the United States and Brazil. Respondent was employed by U.S. Immigration and Customs Enforcement. In 2012, Respondent accepted a three-year assignment in Spain as an attaché to the United States embassy in that country. Petitioner and the couple’s two children relocated to Spain in June of 2013, where the family resided for the following three years. Shortly before her assignment was to expire, Respondent informed Petitioner that she intended to file for divorce, seek a new job, and relocate their children to the United States. Petitioner objected to the removal of their children from Spain, as they were thriving in their Spanish community. Several weeks later, in the early hours of November 17, 2016, Respondent removed the children from their home in Spain without warning and took them to the airport. Respondent then flew with the children to the United States, where she has since resided with them. Respondent’s assignment in Spain terminated, and Respondent intended to remain in the United States with the children against Petitioner’s wishes.
The district court observed that the purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint; the Court “must accept as true all of the factual allegations contained in the complaint,” drawing “all reasonable inferences” in the plaintiff’s favor. E.I. du Pont de Nemours & Co., 637 F.3d at 440. Respondent’s Motion appeared to take as its premise that Respondent was presently entitled to diplomatic immunity in Spain. (“The Respondent’s family members, including the children at issue herein enjoy precisely the same privileges and immunities as their diplomat Mother. This immunity acts as a legal barrier which precludes any Spanish court from exercising personal jurisdiction over Respondent as well as the parties’ children.”) Respondent’s Motion argued that the Petition must be dismissed because the Hague Convention is “inapplicable” to the custody dispute underlying the Petition. She contended that she and her family were entitled to diplomatic immunity in Spain under the Vienna Convention on Diplomatic Relations due to Respondent’s work as an attaché to the United States embassy. The Motion claimed that because her family cannot be haled into Court in Spain, “no Spanish court has jurisdiction to issue an enforceable custody order” should the Court order the children returned to that country. The Court found that Respondent failed to establish that she presently enjoyed diplomatic immunity in Spain. Respondent’s diplomatic position was of limited duration and its term expired. She ceased working as an attaché to the United States embassy in Spain on December 14, 2016. Article 39 of the Vienna Convention on Diplomatic Relations provides that “[w]hen the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so.” As Respondent’s position with the embassy terminated and she left Spain her diplomatic immunity in Spain had come to an end. Accordingly, diplomatic immunity would not bar custody proceedings initiated in that country.
Respondent also claimed that her earlier immunity prevented her children from accruing “habitual residence” status in that country. She contends that her diplomatic immunity created a “bubble” around her family, such that they could not be considered to reside in Spain in a legal sense. Respondent had no legal authority to support this novel proposition, and the Court found her argument unpersuasive. The Court observed that in Pliego v. Hayes, 86 F. Supp. 3d 678 (W.D. Ky. 2015), the wife of a Spanish diplomat residing in Turkey abducted their son and brought him to the United States. The court rejected the mother’s argument that the father’s diplomatic status prevented him from meaningfully possessing custodial rights in Turkey, reasoning that nothing in Turkish law precluded him from doing so. The Vienna Convention provides “absolute immunity from criminal prosecution and protection from most civil and administrative actions,” which is to say immunity from the enforcement of local law. In addition, diplomats are immune from the receiving state’s “jurisdiction to prescribe” to the extent that laws effecting their position, such as laws regulating employment and national service, are “incompatible with...diplomatic status.” Restatement (Third) of Foreign Relations Law § 464 (1987). Beyond this, however, “a diplomatic agent is subject to law generally” in the receiving state. The Court found that diplomats and their families do not exist in the legal “bubble” Respondent posited.
In Alanis v Reyes, 2017 WL 416306 (N.D. Miss., 2017) the Court granted the petition of Lourdes Guadalupe Lored Alanis and found that her daughter, DFB, was wrongfully retained from her habitual residence of Mexico by Respondent Jose Carmen Badillo Reyes.
Both Petitioner and Respondent were citizens of Mexico. They began a relationship in in Mexico. Respondent later moved to the United States. Petitioner later moved to the United States, and both of them resumed their relationship. Both Petitioner and Respondent also testified that they were in the United States illegally. DFB was born on September 9, 2007 in Southaven, Mississippi. DFB was a citizen of the United States. Both Petitioner and Respondent were acknowledged as DFB’s biological parents on her birth certificate. Respondent has since questioned whether he was the father of DFB. Respondent testified that he ordered a paternity test kit on the internet and, according to the instructions, sent to the testing company samples of DFB’s saliva and his own, as well as photographs. Respondent testified that the result of that paternity test was that he was not the father of DFB. From September 2007 to December 2009, Petitioner, Respondent, and DFB lived together in Mississippi. Neither Petitioner nor Respondent had any “immigration status that allow[ed] them to permanently reside in the United States”. On December 3, 2009, Respondent executed a notarized travel permit for DFB to travel with Petitioner. It was undisputed that both parties intended that DFB would move to Mexico with Petitioner. Petitioner and DFB moved to Petitioner’s family home in Mexico in December 2009 or early 2010. Petitioner and Respondent apparently ended their relationship. For at least two years, Respondent remained in communication with Petitioner and DFB and sent money to cover their basic needs. Petitioner began living with a man, Ruben Gonzalez Espinoza. Petitioner and Espinoza had two children. Petitioner, Espinoza, DFB, and the other two children lived together until August of 2016. On August 14, 2016, Petitioner granted temporary authorization for DFB to travel with Epinoza’s sister, Anel G. Valdivia, from Mexico to Valdivia’s home in Irving, Texas. Petitioner also granted temporary custody of DFB to Valdivia for the time that DFB was in the United States. Respondent subsequently discovered that DFB was in Irving, Texas. Respondent testified that he traveled to Irving to DFB’s school and requested to take her with him. However, the school principal and administrators denied his request, purportedly because Respondent did not have paperwork demonstrating that he was the child’s father. Respondent took DFB for one weekend with Valdivia’s consent, but not Petitioner’s, and when Petitioner learned that DFB had visited with Respondent, she was not pleased. Respondent then retrieved paperwork demonstrating that he was the father of DFB. On August 31, 2016, Respondent traveled to Irving, Texas; showed up at Valdivia’s residence with a police officer from the Irving Police Department; and demanded custody of DFB as her father. Petitioner maintained that during this event, Valdivia called Petitioner and had her talk to the police officer and that Petitioner “asked him not to allow [Respondent] to take [DFB] with him” and explained their situation to him. The police officer nonetheless allowed Respondent to take DFB with him, stating that Respondent’s paperwork demonstrated that he was the father of the child and had the right to take the child. Respondent subsequently took DFB to Horn Lake, Mississippi, against Petitioner’s wishes. Petitioner maintained that more than ten times she requested that Respondent return DFB to Petitioner in Mexico, but that Respondent refused to respond to her requests and stopped answering Petitioner’s phone calls.
The Court held that in cases such as this one, where the child is so young that she cannot possibly decide the issue of residency, see England v. England, 234 F.3d 268, 273 (5th Cir. 2000), “the threshold test is whether both parents intended for the child to abandon the [habitual residence] left behind,” see Delgado, 837 F.3d at 578 (citing Larbie, 690 F.3d at 310–11). The Fifth Circuit indicates that “context, rather than specific periods of time spent in one location or another, is key to the concept” and that the “primary consideration in the habitual residence determination [is] shared parental intent.” Berezowsky, 765 F.3d at at 467–69. The Court found that Petitioner demonstrated by a preponderance of the evidence that DFB’s habitual residence was Mexico. Neither Petitioner nor Respondent was in the United States legally. Their illegal immigration status and the unsteady and temporary nature of their living arrangements in the United States indicated that the United States was not DFB’s habitual residence. Both parties agreed that Petitioner and DFB would move to Mexico. Because Petitioner had no legal basis for entering the United States, Respondent could not reasonably have expected her to return to the United States with DFB. Furthermore, Respondent’s doubts as to whether he was the father of the child raised a question as to whether he even had parental rights. Regardless, both parties agreed that DFB lived continuously in Mexico from 2010 to 2016, where she attended school. Petitioner began living with a man, Espinoza, and Petitioner and Espinoza had two children together. Respondent sent Petitioner money to cover basic needs for at least two years after Petitioner and DFB moved to Mexico. The Court concluded that Petitioner demonstrated by a preponderance of the evidence that DFB’s habitual residence was Mexico.
The Court also found that Petitioner had rights of custody with respect to DFB at the time of the wrongful retention. According to the Family Code of the State of San Luis Potosi, she had parental rights with respect to DFB for the approximate six years the two lived in Mexico, enrolling her in school and extracurricular activities, maintaining a household wherein DFB resided, and otherwise engaging in parental responsibilities, The Court also found that Petitioner demonstrated exercise of the rights of custody at the time of the wrongful retention of DFB. Although Petitioner temporarily agreed to allow DFB to attend school in the United States with Valdivia, by definition, that was a temporary arrangement. Further, the Court found a crucial factor in the determination was the arrangement for Valdivia to transport DFB to her mother’s home in Mexico on weekends and holidays. At the hearing, Petitioner argued that it was akin to a boarding school situation. The Court found this analogy to be well taken. Given all the facts and testimony before the Court, Petitioner demonstrated that Respondent wrongfully retained DFB in the United States away from her habitual residence in Mexico.
Finally, the Court found that Respondent failed to demonstrate any applicable affirmative defenses. Respondent did not plead any defenses, as he filed no responsive pleading to the verified petition