New York Matrimonial Trial Handbook
The by Joel R. Brandes is available in Bookstores and online in the print edition , . It is also available and for all ebook readers in our bookstore. The New York Matrimonial Trial Handbook is divided into five parts: (1) Preliminary Matters Prior to the Commencement of Trial, Conduct of Trial and Rules of Evidence Particularly Applicable in Matrimonial Matters; (2); Establishing Grounds for Divorce, Separation and Annulment and Defenses; (3) Obtaining Maintenance, Child Support, Exclusive Occupancy and Counsel Fees; (4) Property Distribution and Evidence of Value; and (5) Trial of a Custody Case. There are thousands of suggested questions for the examination and cross-examination of witnesses dealing with very aspect of the matrimonial trial. Click and
The New York Matrimonial Trial Handbook was reviewed by Bernard Dworkin, Esq., in the New York Law Journal on December 21, 2017. His review is reprinted on our website at with the permission of the New York Law Journal.
Joel R. Brandes, is the author of Law and The Family New York, 2d (9 volumes) (Thomson Reuters), and Law and the Family New York Forms (5 volumes) (Thomson Reuters). Law and the Family New York, 2d is a treatise and a procedural guide. Volume 4A of the treatise contains more than 950 pages devoted to an analysis of the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act. It contains a complete discussion of the cases construing the Convention which have been decided by the United States Supreme Court, the Circuit Courts of Appeal, the District Courts, and the New York Courts.
Tuesday, May 9, 2017
Matute-Castro, v. Jimenez-Ortiz, 2016 WL 8711076 (E.D. N.Y., 2016) [Ecuador][Now settled][Petition denied]
In Matute-Castro, v. Jimenez-Ortiz, 2016 WL 8711076 (E.D. N.Y., 2016) Santos Hernan Matute-Castro (“Petitioner”), petitioned for an order directing Josselinne Pamela Jimenez-Ortiz (“Respondent”) to return their minor son, M.M.J. to Ecuador.Petitioner alleged that Respondent wrongfully retained their child in New York at the end of a family vacation on August 19, 2013. Respondents motion for summary judgment dismissing the petition was granted.
The parties agreed that the child was wrongfully retained in New York at the end of the family vacation on August 19, 2013.The district court found that since arriving in New York in 2013, Respondent and the child resided with Respondent’s mother, father, younger sister A.J., and a great-uncle named Sergio in a house in Queens, New York. Respondents’ parents owned the house since at least 2013. Respondent’s parents were employed full time and supported Respondent and the child. Respondent’s mother indicated that she and Respondent’s father were willing to support Respondent and the child for as long as necessary. Respondent’s mother stated that Respondent and the child were welcome to live with the family for as long as they would like. The child was covered by health insurance. Both parties agreed that Respondent was a good mother. The child’s regular interactions with about thirty (30) extended family members in New York City and the surrounding region included playing with and being around other children in the family. Aside from spending time with family, the child interacted with other children from the neighborhood. The children attend each other’s birthday parties and some of the children participated in a Tae Kwon Do after school program with the child. The child and Respondent also attend church services. During the 2013-2014 school year, Petitioner enrolled the child in a nursery school program at the YMCA two days per week. Recently, the child completed kindergarten at Achievement First Apollo Elementary School. The child’s primary language was now English. The child received special education services because he was diagnosed with a learning disability and speech and language impairment by healthcare professionals associated with the school’s Committee on Preschool Special Education. In a report of a psychiatric evaluation of the child, dated February 15, 2016, Dr. Stephanie Brandt concluded that, “It is entirely obvious that this rather fragile little boy is in fact happy and thriving in every way.” (Dr. Brandt also noted that, the child “is in fact quite disabled” and further concluded that, “it is my unequivocal professional opinion that the Child is a ‘settled’ child in his current New York home environment.” Since the child arrived to New York, Respondent had not concealed the child’s whereabouts from Petitioner. Respondent facilitated telephone and “Face time” calls between Petitioner and the child and sent Petitioner photos of the child. Respondent believed the child should have a relationship with his father and has made efforts to maintain contact between the child and Petitioner. Respondent and his parents had the resources and ability to visit the child in New York.
The district court stated that to establish the now settled defense, the respondent must demonstrate, “(1) that the return proceeding was commenced more than one year after the wrongful removal or retention, and (2) that the child ‘is now settled in its new environment. See Lozano v. Alvarez, 697 F.3d 41, 51 (2d Cir. 2012) The parties agreed that the wrongful retention of the child occurred on August 19, 2013, and that the petition was filed in this district, where the child was found, on August 5, 2015, almost two years later. Accordingly, the petition was untimely. Thus, the issue remaining before the court was whether the child was “now settled in its new environment.”
The Second Circuit has held that the word “settled,” “should be viewed to mean that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment.” Lozano, 697 F.3d at 56. When determining if a child is “now settled,” the court may consider “any factor relevant to a child’s connection to his living arrangement.”. Among the factors the court should consider are: (1) the age of the child; (2) the stability of the child’s residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent’s employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent. A court should examine the child’s present circumstances and assess whether a child is “now settled” as of the date of either an evidentiary hearing or when a motion for summary judgment is filed. See Gwiazdowski v. Gwiazdowska, 2015 WL 1514436, at *4 (E.D.N.Y. Apr. 3, 2015) (evaluating factors at time of evidentiary hearing); In re D.T.J., 956 F. Supp. 2d 523, 534 (S.D.N.Y. 2013). Balancing the forgoing factors, the Court concluded that the child was now settled in New York for purposes of Article 12.
In Padilla v. Troxell, 2017 WL 922061 (4th Cir.,2017) Petitioner-Appellant Xochitl Jazmin Velasco Padilla (“Petitioner”) appealed the district court’s denial of her petition for the return of her now five-year-old child J.V. (“Child”), after Respondent Joe Richard Troxell (“Respondent”) took Child to the United States. The district court denied the petition, finding that Petitioner had consented to Child’s removal from Mexico. The Fourth Circuit affirmed.
The petitioner gave birth to Child on May 27, 2011 in the state of Oaxaca, Mexico. Respondent--a U.S. citizen residing in Mexico at the time--offered to provide support for Child. In January 2012, when Child was about eight months old, Petitioner and Respondent agreed that Respondent would serve as Child’s legal father. Respondent registered himself as Child’s father, and his name appeared on the birth certificate. As stipulated by the parties, Respondent was the legal father and had parental rights under Mexican law. For the first two years of Child’s life, although Respondent had little to no physical contact with Child, he did provide financial support. On December 17, 2014, Petitioner and Respondent traveled to Oaxaca to obtain a Mexican passport for Child. After they obtained Child’s passport together, Respondent took Child to his home in Acapulco until Child entered the United States.
During the trial, several inconsistencies in Petitioner’s version of events became apparent. As for the alleged abduction, Petitioner testified that Respondent took Child while she was going to the bathroom, which conflicted with her prior account that Respondent disappeared with Child while she was buying ice cream. Although Petitioner’s sister, Maria Candelaria Velasco Padilla, testified that Petitioner “was always with her baby” before the birth of her third child in 2013, she said nothing to support Petitioner’s narrative of the day of the alleged abduction in December 2014.
Respondent testified as to his version of events, and Ms. Leyva confirmed his account. Respondent also introduced a sworn affidavit from Ms. Banos, Petitioner’s half-sister who was present during the visit to the passport office. In the affidavit, Ms. Banos stated that Respondent had not abducted Child. Respondent argued that the district court should admit the document as self-authenticating Petitioner argued that the document was not self-authenticating as required under Federal Rule of Evidence 902(3). Petitioner stated that the “basis” for the objection was Federal Rule of Evidence 902(3)- but did not argue hearsay.
In its opinion, the district court found Petitioner had established, that [Child] was wrongfully removed.” Nevertheless, the district court found that Respondent had “adequately shown” that Petitioner consented to Child’s removal from Mexico, a defense under the Hague Convention. In reaching these conclusions, the district court made an express credibility determination. The court stated that “Petitioner’s testimony raised serious doubts about her credibility,” and that the “ease with which she misl[e]d the court” on at least one issue--the number and birth order of her children-- “calls into question all of her factual testimony.”. Accordingly, the district court found that there was “only one credible version of events: Respondent’s.” As for the sworn statement of Ms. Banos, the district court admitted the affidavit into evidence as “self-authenticating under Federal Rule of Evidence 902(8).”
The Fourth Circuit observed that consent and acquiescence are two separate and “analytically distinct” affirmative defenses. Whereas the consent defense concerns the petitioner’s conduct before the contested removal or retention, the acquiescence defense concerns whether the petitioner subsequently agreed to or accepted the removal or retention. A petitioner’s statements or conduct-formal or informal--can manifest consent. For both the consent and acquiescence defenses, the inquiry turns on the petitioner’s subjective intent. “To establish consent, we focus on the parties’ conduct prior to the removal or retention. However, a petitioner’s conduct after removal can further inform whether she consented at the time of removal.” Determining whether the preponderance of the evidence supports a petitioner’s subjective intent to consent to removal is naturally “fact-intensive.” Accordingly, this inquiry depends to a considerable extent on the district court’s factual and credibility determinations.
The Fourth Circuit found that Petitioner’s conflicting testimony about basic personal information led the district court to question “all of her factual testimony.”The district court ultimately concluded Respondent’s version of events was the only credible one. It owed this express credibility determination substantial deference. Bolstered by the credibility determination, it agreed with the district court’s legal conclusion that a preponderance of the evidence demonstrates Petitioner consented to Child’s removal to the United States. The district court found that Petitioner willingly accompanied Respondent to obtain Child’s passport and agreed to surrender custody to Respondent so that Child could have a better life. Ms. Leyva’s testimony and the sworn affidavit of Petitioner’s half-sister, Ms. Banos, corroborated Respondent’s story. The text messages-- exchanged between September 2015 (a little more than six months after Child’s removal) and January 2016--reinforced the conclusion that Petitioner consented to removal of Child to the United States. Respondent acknowledged that Petitioner never told him she wanted him to bring Child into the United States illegally, and how a Child is removed is one factor to consider in assessing the scope of consent. Still, Petitioner repeatedly said that Child was better off with Respondent in the United States, thus suggesting that she did not view Respondent as an abductor. In the context of Respondent’s impending move to the United States, the combination of Petitioner’s conduct in signing for Child’s passport and her statements during the passport visit to Respondent that Child would be better off with him--as well as her subsequent text messages expressing same--all supported the conclusion that she consented to Child’s relocation.
In Neumann v. Neumann, 2017 WL 1162926 (6th Cir., 2017) the district court ordered two children to be returned to Mexico after analyzing whether, under the terms of the Convention, returning them posed “a grave risk” of “expos[ing] [them] to physical or psychological harm or otherwise plac[ing] [them] in an intolerable situation.” The district court concluded that the return posed no such grave risk. Because JMN turned sixteen years old while this action was pending, the district court ordered Ms. Neumann to return only JSN and MKN to Mexico. The district court declined to order JSN and MKN into Mr. Neumann’s custody—just back to Mexico. The Sixth Circuit vacated the district court’s return order, and remanded for further proceedings consistent with the opinion.
On December 1, 2016, after oral arguments. Mr. Neumann’s counsel represented to the court that in November 2016—six months after the district court’s return order—Mr. Neumann returned indefinitely to Michigan after a job reassignment. Counsel also represented to the court that while Mr. Neumann’s stay in Michigan was indefinite, Mr. Neumann may be assigned to a job in India, too. Counsel further represented that if the court were to affirm the district court’s return order, Mr. Neumann would return to Mexico to receive the children. The children, Mr. Neumann, and Ms. Neumann were all in Michigan. Ms. Neumann and the children had been there for more than two years—since December 2014. Mr. Neumann had been there for about five months—since November 2016. When the district court ordered Ms. Neumann to return the children to Mexico, Mr. Neumann was residing and working in Mexico, potentially giving the Mexican court the jurisdiction over the custody dispute. Under those circumstances, the district court concluded that returning the children would not expose them to a grave risk of harm or of an intolerable situation. The Sixth Circuit observed that those circumstances changed substantially. Because of a stay pending appeal the return had not been carried out, and circumstances had changed materially. Neither parent resided in Mexico, and if the children were returned there, the Mexican court may no longer be able, practically or legally, to resolve the custody dispute between two American parents over their American children.
The Sixth Circuit held that district court did not clearly err when it found Mexico to be the country of habitual residence of JSN and MKN. When Ms. Neumann took them to the United States, JSN and MKN had been living in Mexico for nearly four years—from February 2011 to December 28, 2014. They were there because the husbands employer had transferred him to Mexico. That was long enough for JSN and MKN to acclimate to their new life. JSN and MKN attended the same school in Mexico for nearly four years. At the school, they made new friends and engaged in extracurricular activities like school plays and concerts. The Neumanns also planned to continue to live in Mexico until 2017—maybe longer. Given those settled ties to Mexico, the district court did not clearly err in concluding that Mexico was the children’s country of habitual residence. The district court therefore was bound to order Ms. Neumann to return the children back to Mexico, unless Ms. Neumann proved that, by clear and convincing evidence, returning the children to Mexico would expose the children to a grave risk of physical or psychological harm or an otherwise intolerable situation The district court rejected that argument and ordered JSN and MKN back to Mexico.
In light of new developments, the Sixth Circuit dd not decide whether the district court correctly decided, based on then-current circumstances, the close issue of whether returning the children to Mexico presented a grave risk of physical or psychological harm. The closeness of the issue made a remand more advisable. The district court’s harm analysis depended on the circumstances in which the children would have lived when they returned to Mexico. However, while the district court ordered the children to Mexico generally, the court did not order how the children would be returned, where they would temporarily live, and who would temporarily take care of them, pending the Mexican court’s custody determination. It was therefore uncertain what compliance with the district court’s order would have looked like. It was a close issue whether, in light of Simcox,511 F.3d at 604, the district court correctly found that Ms. Neumann had failed to prove a grave risk of harm by clear and convincing evidence.
The Sixth Circuit held that it could not successfully be argued that the exception for grave risk is necessarily determined at the time of the return order rather than at the time of the actual return, when there is appreciable distance between the two. Because the circumstances of the return will no longer be as they were contemplated when the district judge ruled, and because a remand was required in any event the Court did not resolve whether the district court properly found no clear and convincing evidence of physical or psychological harm at the time the court ordered the children’s return to Mexico. It directed that on n remand, the district court may in its discretion take further evidence as to, for instance, whom the children will be staying with in Mexico during custody proceedings, and how Mr. Neumann had dealt with his alcoholism.
Because neither parent currently resides in Mexico, the Court faced the independent question of whether there was a grave risk of an intolerable situation upon return to Mexico, arising from possible impediments to the ability of Mexican courts to adjudicate custody. In Pliego v. Hayes, 843 F.3d 226, 228–29 (6th Cir. 2016), it held that “where custody cannot be practically or legally adjudicated in the state of habitual residence,” there may be “ ‘grave risk’ that the child’s return would ‘place the child in an intolerable situation.’ ” Here, if Ms. Neumann followed the district court’s order to return the children to Mexico without any specified logistical agreements, it may not be possible for custody to be practically or legally adjudicated in Mexico. The record did not show whether a Mexican court may exercise jurisdiction to resolve a custody dispute between two American parents over two of their three American children, all of whom are American citizens, none of whom were Mexican citizens, and none of whom resided in Mexico. In Pliego, it recognized that if diplomatic immunity prevented the state of habitual residence from adjudicating custody, that could be an intolerable situation under the Convention, in light of the underlying purpose of the Convention to have the state of habitual residence adjudicate custody. See Pliego, 843 F.3d at 233. In doing so, it also relied on foreign cases that reasoned that there was a grave risk of an intolerable situation where, for instance, a parent could not legally travel to the country that would have determined custody, or the parent could not legally represent his or her interest and the child’s interest in the subsequent litigation. Similarly, if Mexico as a practical or legal matter could not or would not adjudicate custody, the intolerable situation exception to the obligation to return may apply. The issue was presented by the intervening change of facts, and should be addressed by the district court in the first instance. Under its precedent, that potential inability of the foreign court to resolve the custody dispute may pose “a grave risk” of “an intolerable situation” to the children. A return order is premised on the risks at the time of the actual return, and the district court had not had a meaningful chance to evaluate, in light of the material change in circumstances, whether there is a “grave risk” under the Convention when the children would now be returned. In this unusual circumstance, a remand was warranted so that the district court may consider in the first instance whether returning the children to Mexico would now expose them to “a grave risk” of harm or of an intolerable situation.
The Court upheld the district court’s holdings that Mexico was the country of habitual residence of JSN and MKN, and that Ms. Neumann violated Mr. Neumann’s custodial rights under Mexican law when she took her children to the United States on December 28, 2014. The remand was otherwise general. It directed the district court to determine whether or not clear and convincing evidence shows that returning the children now presents a “grave risk” of “physical or psychological harm” or “an intolerable situation.” If so, then the district court has discretion to deny return, or to grant return subject to undertakings that would substantially lessen the risk. See Simcox v. Simcox, 511 F.3d 594, 604–11 (6th Cir. 2007). If the court determines that there is not a sufficient showing of a grave risk, the court should order return. Should the district court decide that a return order is indeed required, such a return order should provide sufficient practical detail so that return can be accomplished promptly without further appreciable litigation delay. The court may still deal with ordinary logistical considerations that frequently accompany the return of any child.
Ovalle v. Perez, --- Fed. Appx. ----, 2017 WL 780791 (11th Cir.,2017)[Guatemala ][Habitual residence][Due Process] [Petition granted]
In Ovalle v. Perez, --- Fed. Appx. ----, 2017 WL 780791(11th Cir.,2017) Maria Alejandra Reyes Ovalle (“Reyes”), a Guatemalan citizen, alleged that her child’s father, Noe Manuel Perez, an American citizen, abducted the child and wrongfully retained him in Florida.
Perez, a United States citizen and resident of Florida, met Reyes in Guatemala, and the two began a romantic relationship. In March 2015, Reyes became pregnant with E.L. In June 2015, Reyes traveled to the United States to stay with Perez. He testified that she was merely testing the waters to see what life in Florida with Perez would be like; Perez testified that it was their mutual intention to raise their child together in Florida. Reyes left the overwhelming bulk of her personal belongings in Guatemala. Reyes returned to Guatemala a little over a month after arriving in Florida. Perez returned to Guatemala in late September 2015 to bring Reyes back to Florida. Reyes testified that Perez presented her with an engagement ring, which she accepted but never wore. In early October, Perez and Reyes returned to Florida. The great bulk of Reyes’s possessions, including her pets, remained in Guatemala. Reyes received an offer to purchase her business, but she turned it down in part because she was uncertain that her relationship with Perez in Florida would work. Reyes also had a house under construction in Guatemala at the time, and she did not turn off utilities at the house; she continued to pay her utility bills even though she was in Florida. She again entered the United States on a tourist visa. According to Reyes, she never told Perez that she was coming to Florida permanently; rather, she told him that she was merely coming to try Florida again. Perez disagreed, testifying it was his understanding that Reyes was coming to Florida to stay and that they both intended to raise a family in Florida. E.L. was born in Florida in December 2015. In February 2016, when E.L. was first able to travel, Reyes, Perez, and E.L. took a trip to Guatemala. While in Guatemala, Reyes met with an immigration attorney who advised her that because she had spent almost five months in the United States on a tourist visa—and because she had given birth to a child during that period—she risked being denied entry to the United States again. The attorney also advised her that because Perez and E.L. were American citizens, Perez would be able to enter the United States with E.L. Reyes subsequently applied for and obtained “Security Measures”—essentially, a restraining order against Perez—in Guatemala, claiming that she was “a victim of abuse, psychological, economic, moral and mental violence, threats, indignities and the most important he is threatening me that he will take my son [a]way because he has American nationality.” Reyes did not inform Perez about the Security Measures, but did tell him that she and E.L. would not be returning to the United States. Perez returned to Florida and obtained an “Order to Pick-Up Minor Child” from the Broward County Circuit Court. Perez did not inform Reyes about the order. After finding out about the Guatemalan Security Measures, Perez filed a response in opposition to them. In Guatemala, E.L. lived with Reyes and her parents and brother, regularly attended church with them, and regularly saw a pediatrician. On a fourth visit to Guatemala in July 2016—for E.L.’s baptism—Perez devised a scheme to remove E.L. to the United States. Perez drove off with E.L. He then drove back to the United States through Mexico. After arriving, Perez informed Reyes that he was in the United States with E.L., who was safe.
On September 7, 2016, Reyes filed a petition in federal district court requesting relief under the Hague Convention, After the trial, the district court entered an order granting Reyes’s petition and requiring E.L.’s immediate return to his mother. The district court concluded that Reyes and Perez never shared an intent to reside in Florida or Guatemala and that the child’s only habitual residence was in Guatemala with his mother. The district court further found that Perez’s removal of E.L. was in breach of Reyes’s custody rights under Guatemalan law, which rights Reyes was exercising at the time of E.L.’s wrongful removal. Thus, the district court ruled, the Hague Convention required that E.L. be returned to Reyes. The Eleventh Circuit affirmed.
The Eleventh Circuit held that the district court did not err in determining that E.L.’s habitual residence was Guatemala. The parties’ testimony was in conflict with regard to Reyes’s intentions when she moved to Florida. The district court resolved the conflict in favor of Reyes—finding that she had no settled intent to raise E.L. in Florida. The district court found that although Perez and Reyes had discussed marriage, they never announced an engagement. Crucial to the court’s finding was the fact that Reyes was in Florida on a tourist visa that only permitted her to stay in the country for six months at a time. Aside from one meeting with an immigration attorney, neither Reyes nor Perez took any steps to change Reyes’s immigration status. In concert with her temporary immigration status, Reyes left virtually all of her possessions—including her pets—in Guatemala, and she made no plans to sell or close her business there. The evidence showed that Reyes only remained in Florida after the birth of E.L. because her midwife advised her to wait to ensure E.L.’s health, and she had to wait for E.L.’s passport to issue. In short, ample evidence—much of it undisputed—supported the district court’s finding that Reyes had no intent to raise E.L. in Florida; the district court’s findings were not clearly erroneous. With respect to the district court’s conclusion that Florida was not E.L.’s habitual residence, Ruiz was on point. There, the court found that the parents had no settled intent to reside in Mexico where the “numerous objective facts” indicated that the mother’s “intent with respect to the move to Mexico was clearly conditional.” Ruiz, 392 F.3d at 1254. Reyes’s behavior here created an equally strong—if not stronger—inference that there was no settled indent to raise E.L. in Florida. The district court also properly found that the parties had no settled intent to raise E.L. in Guatemala. Therefore, the question was whether the district court properly found that E.L. became habitually resident in Guatemala before Perez removed E.L. to Florida.
The court concluded that it did, persuaded by the district court’s reliance on Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006), which featured a similar fact pattern. Perez voluntarily left Guatemala after he was informed that neither Reyes nor E.L. would return to the United States. Instead of following the procedures outlined by the Hague Convention, Perez initiated a custody proceeding in the United States, received a favorable outcome, and engaged in self-help by returning to Guatemala and abducting E.L.As in Kijowska, Perez’s failure to “pursue his legal remedy” under the Hague Convention weighed in favor of finding that E.L’s habitual residence was in Guatemala.
The district court also properly considered E.L.’s settlement in Guatemala in determining that it was E.L.’s habitual residence. “Where a child is born while his . . . mother is temporarily present in a country other than that of her habitual residence it does seem, however, that the child will normally have no habitual residence until living in a country on a footing of some stability.” Delvoye, 329 F.3d at 334. Here, the district court properly relied on a number of factors in determining that E.L. was living in Guatemala with some stability, including the facts that E.L. was: living in a house with his mother, grandparents, and uncle, with whom he was bonding; regularly seen by a pediatrician in Guatemala; to be baptized in Guatemala; and regularly attending church with Reyes and her family. Moreover, Perez repeatedly sent money to Guatemala to support E.L. and visited the child in Guatemala multiple times prior to the abduction. Were any greater quantum of contacts with a particular location required to establish an initial habitual residence, parents could freely engage in a continuous game of abduction ping pong, given the many months or even years in which they could freely abduct the child before any particular location became the child’s habitual residence. It concluded, as did the district court, that at the time E.L. was abducted, his habitual residence was in Guatemala.
The Eleventh Circuit held that the district court did not err in determining that Reyes had custodial rights over E.L. under Guatemalan law. As the district court explained, Article 252 of the Civil Law Code of Guatemala grants parental power over minor children jointly to a married mother and father, and in any other case to the parent in whose power the child is. Because Reyes and Perez were not married, the question became: in whose power was E.L. at the time he was removed to the United States? Article 261 of the Civil Law Code notes that children shall be in the power of the mother where the mother is unwed, unless both parents agree that the father should have custody. Consequently, the district court properly determined that under Guatemalan law Reyes had custodial rights over E.L. sufficient to render Perez’s removal of E.L. unlawful.
The Eleventh Circuit held that the district court did not violate Perez’s due process rights by giving him only seven days to prepare for an evidentiary hearing. Specifically, neither the Convention nor ICARA, nor the Due Process Clause of the Fifth Amendment requires that discovery be allowed or that an evidentiary hearing be conducted as a matter of right in cases arising under the Convention. In West, the district court possessed the petition, the respondent’s answer to the petition, and the affidavit of a psychologist (provided by the respondent) who had interviewed the children at issue and noted possible child abuse on part of the petitioner. West, 735 F.3d at 926-27. The psychologist refused to testify at a hearing, so the respondent asked the court to appoint a psychologist to interview the children. The court declined to do so, found that no evidentiary hearing was necessary, and ordered the respondent to return the children to the petitioner. On appeal, the Tenth Circuit held that the respondent “received a meaningful opportunity to be heard,” which is “all due process requires in the context of a Hague Convention petition.” Here, the district court conducted fact-finding substantially more robust than the district court in West. Instead of relying on written submissions alone, the district court held a four-day evidentiary hearing. At the hearing, Perez was permitted to enter documentary evidence, call witnesses, and cross examine Reyes’s witnesses. Like the respondent in West, Perez “received a meaningful opportunity to be heard,” satisfying his due process rights.
In Salguero v. Argueta, 2017 WL 1113334 ( E.D.N.C, 2017) Petitioner sought return of his five-year-old daughter, S.M.M.F. (the “child”) to El Salvador, her home country. The district court granted the motion by Petitioner pursuant to Fed. R. Civ. P. 43(a) that the Court permit him and other witnesses residing in El Salvador to testify by video-conference or telephone at the hearing. Petitioner stated that he intended to call two witnesses to testify in support of his Petition. One was Petitioner’s Salvadorian counsel who intended to testify regarding the parties’ divorce and the subsequent proceedings. A second was Petitioner’s expert witness—a Salvadorian family law attorney. Both witnesses resided in El Salvador. Petitioner explained that he was financially unable to travel to the United States for this testimony and would likely be unable to obtain a visa to enter the country by the hearing. Likewise, he was unable to pay for his witness’s travel.
The district court observed that under Rule 43(a), a court may permit remote testimony “[f]or good cause in compelling circumstances and with appropriate safeguards.” In addition to good cause, Rule 43(a) requires appropriate safeguards, including: (1) Accurate identification of the witness; (2) Protection against influence from persons present with the witness; and (3) Accurate transmission. The Court found good cause existed for permitting the remote testimony. Petitioner represented to the Court that he could not afford the international travel and that he would be unable to obtain a visa to enter the United States by the hearing. The Court noted that
in Alcala v. Hernandez, 2015 WL 1893291, at *3 (D.S.C. Apr. 27, 2015) the Court allowed a petitioner to testify remotely after the court required petitioner to be properly identified and testify from a private room, free of outside influence and the petitioner’s counsel was also required to troubleshoot his videoconferencing connection with the courthouse staff prior to his testimony. The Court directed that Petitioner locate a conference room from which to testify by video-conference, free from outside influences. Likewise, his witnesses should be prepared to testify from a conference room where they are alone and free from outside influence. The Court directed that Petitioner and his witnesses residing in El Salvador shall be permitted to testify by video-conference. Where video-conferencing is not available, Petitioner and his witnesses residing in El Salvador shall be permitted to testify telephonically. Petitioner was to arrive one hour prior to the hearing so that his counsel could confirm with courtroom staff that the technology was working properly such that all members present in the courtroom could hear and understand his testimony. Petitioner was ordered to be prepared to provide sufficient identification at the hearing to properly identify himself and his witnesses. Petitioner was ordered to to testify from a closed room and no other person shall be permitted to communicate with Petitioner during the proceedings, either in person or otherwise, unless that communication is on the record in open court.
In Alanis v. Reyes, 2017 WL 1498252( N.D. Miss, 2017) the Court granted the petition and ordered that DFB be returned to Petitioner Lourdes Guadalupe Loredo Alanis in Mexico. On February 17, 2017, Petitioner filed a bill of costs with supporting documentation. On March 7, 2017, the Clerk of Court taxed Petitioner’s bill of costs against Respondent in the amount of $2,429, for the following: fees of the Clerk, $400; fees for service of summons and subpoena, $35; fees for witnesses, $635.80; compensation of interpreters and costs of special interpretation services under 28 U.S.C. § 1828, $300; and mileage incurred by Petitioner and Anel Valdivia to return DFB to Mexico, pursuant to the Court’s Order, $1,058.20. Petitioner filed a motion for costs, expenses, and attorney’s fees. Respondent Jose Carmen Badillo Reyes did not file a response,
The district court held that fact that Petitioner’s legal representation was pro bono d not render the award of fees and costs improper. See Salazar, 750 F.3d at 518 (citing Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir. 2010) Because Respondent did not file a response, he could not establish that an order awarding costs, expenses, and attorney’s fees would be “clearly inappropriate.” See Ostos v. Vega, 2016 WL 1170830, at *1 (N.D. Tex. Mar. 25, 2016).
The district court analyzed awards of attorney’s fees under ICARA where the Court must (1) calculate reasonable attorney’s fees and (2) review the fees in light of the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). The Fifth Circuit has approved a two-step process that uses the “lodestar” method to calculate reasonable attorney’s fees, multiplying the number of hours spent on the matter by a reasonable hourly rate for such work in the community. Reasonable hourly rates are typically calculated through affidavits by attorneys practicing in the community in which the district court is located.“In calculating the lodestar, ‘[t]he court should exclude all time that is excessive, duplicative, or inadequately documented.’ ” However, “there is a ‘strong presumption’ that the lodestar figure is reasonable.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554, 130 S. Ct. 1662, 1673, 176 L.Ed. 2d 494 (2010).
Petitioner’s counsel provided documentation supporting that he expended 56.25 hours on the case, and at his 2016 billing rate of $210 and 2017 rate of $220, the lodestar calculation was $12,210. Petitioner’s counsel attached his own detailed billing records documenting the hours he worked and each service performed, as well as the affidavit of LaToya C. Merritt, a Mississippi attorney, supporting the reasonableness of Petitioner’s counsel’s fee and hourly billing rate for the legal representation and supporting the Johnson factors. Petitioner’s counsel’s billing records indicated that the time spent on the case was reasonable. In carefully examining these line items in light of the Johnson factors, the Court found that the time spent on these tasks, which were necessary to the proceedings, was reasonable.
The Court found that the time claimed for the travel time and hearing attendance was reasonable. The line items for communication concerning the return of DFB to Mexico was reimbursable as reasonable and a necessary expense under the ICARA; preparation of the motion for fees and costs and preparation of the bill of costs and supporting exhibits/documentation were proper and recoverable, as “[i]t is settled that a prevailing plaintiff is entitled to attorney’s fees for the effort entailed in litigating a fee claim and securing compensation.” See Cruz v. Hauck, 762 F.2d 1230, 1233 (5th Cir. 1985).Petitioner was entitled to attorney’s fees in the amount of $12,210.
The Court held that the following costs enumerated in the bill of costs were recoverable under Section 1920: fees of the Clerk, $400; fees for service of summons and subpoena, $35; fees for witnesses, $635.80; and compensation of interpreters and costs of special interpretation services under 28 U.S.C. § 1828, $300. Petitioner’s requested reimbursement of $205.30 for copying was a recoverable cost under Section 1920, because Petitioner had verified through supporting documentation that the particular copies were “necessarily obtained for use in the case.” See Gagnon v. United Technisource, Inc., 607 F.3d 1036, 1045 (5th Cir. 2010). Petitioner’s counsel demonstrated the necessity of the long distance telephone calls, having included line items indicating the necessity of calling the United States State Department, an attorney in Mexico, the Mexican consulate, and Petitioner concerning the return of DFB to Mexico. Petitioner also requested reimbursement of $170.50 in mileage incurred by Petitioner’s counsel for travel to the hearing. “Reasonable transportation and lodging costs incurred by an out-of-town attorney are awardable under § 11607(b)(3).” Saldivar v. Rodela, 894 F. Supp. 2d 916, 944 (W.D. Tex. 2012). The Court found that Petitioner demonstrated the necessity of this expense in the bill of costs, Petitioner requested $1,058.20 for mileage incurred by Petitioner and Anel Valdivia to return DFB to Mexico. The Court found that this travel cost was proper under the ICARA, as it was a “necessary expense[ ] incurred by or on behalf of the petitioner ... related to the return of the child.” See 22 U.S.C. § 9007(b)(3).
Petitioner was awarded $12,210 in reasonable attorney’s fees and $2,821.59 in ancillary costs and expenses. The total amount of costs, expenses, and attorney’s fees was $15,031.59. Interest was to accrue on the amount awarded Petitioner Lourdes Guadalupe Loredo Alanis at the rate of 1.02 % from the date of the order until it is paid in full.
Benitez v. Hernandez, 2017 WL 1404317, (D. N. J., 2017)[Ecuador][Habitual residence] [Petition Denied.]
In Benitez v. Hernandez, 2017 WL 1404317, (D. N. J., 2017) Guillermo Albornoz Benitez brought a proceeding against his wife, Kristhel Angelica Diaz alleging that on June 18, 2015, Ms. Diaz removed the children from Ecuador without his consent, and was wrongfully retaining them in the United States. The Verified Petition was filed on February 10, 2017. Mr. Albornoz was born in Ecuador and moved to the U.S. in 2003, and has been a U.S. citizen since 2009. Ms. Diaz was born in Venezuela and moved to the U.S. in 2004, and obtained permanent resident status in April 2014.
They lived together for two years in Manhattan. In 2006, they moved to North Bergen, New Jersey. On October 1, 2011, Albornoz and Diaz were married in New York.
Their first child, a daughter, T.A.A., was born in New Jersey in 2006. Their second, a son, J.G.A., was born in New Jersey in 2008. Both are U.S. citizens. They resided in the U.S. from their birth until the family went to Ecuador in July 2014; in Ecuador from July 2014 to June 2015; and again in the U.S. from July 2015 to the present.
In 2013, Albornoz’s father advised him that there were no businesses like his in Ecuador. Albornoz decided to take advantage of the opportunity. He shipped both business equipment and the family’s personal property to Ecuador.
On July 12, 2014, Diaz and the children flew to Ecuador. Albornoz purchased their tickets, which were round-trip. In Ecuador, the family lodged with Albornoz’s brother for about a month. They then moved to the commercial building where Albornoz had started his business. Diaz did not have the necessary papers to work in Ecuador.
The circumstances of the departure of Diaz and the children from Ecuador in June 2015 bear clear indicia of consent. Diaz and the children used the second half of their U.S./Ecuador round-trip air tickets, and Albornoz paid the airline fee for them to do so. Albornoz accompanied Diaz to the children’s school and attended an informal ceremony marking J.G.A.’s departure a few days before the actual end of term.
Albornoz (apparently accompanied by family members) drove Diaz and the children to the airport. T.A.A. was then 9, and J.G.A. 7 years old. Albornoz telephoned Catalina Sinning, a friend, and arranged for her to pick up Diaz and the children from the airport in New York. He also telephoned his old friend Maria Suarez, and arranged for her to house Diaz and the children in her apartment. There was no doubt that Albornoz knew about, consented to, and indeed facilitated the June 2015 departure of Diaz and the children. The evidence that Albornoz agreed to and cooperated in the June 2015 departure from Ecuador was overwhelming, and his contrary statements raise general credibility concerns. And there is much additional evidence of the couple’s agreement to move back to the U.S. permanently.
The district court found that Albornoz and Diaz agreed in 2014 that the sojourn in Ecuador was to be temporary. Diaz’s June 2015 return to the United States with the children was not wrongful, but agreed-to. Diaz had grown increasingly dissatisfied, and at any rate did not want to live in Ecuador. Albornoz wanted to keep the marriage together, and agreed to return to the U.S. in the hope of salvaging it. It appears that he cooperated fully with the children’s removal from Ecuador, resettlement in the U.S., enrollment in a New Jersey school for the 2015–16 school year, and relocation to their own apartment. It was only later, when the marriage proved unsalvageable, that he began to maintain that moving back to the U.S. had never been his intent. Indeed, it seems that he brought the petition for return of children either concurrently with, or as a response to, Diaz’s filing for divorce.
In Cartes v. Phillips, 2017 WL 879524 (S.D. Texas, 2017) the petitioner, Sebastian C. Cartes, initiated an action seeking the return of his three year old daughter, O.C.P., asserting that on or about October 25, 2016, Lisa Ellen Phillips, her mother (“respondent”), wrongfully removed her from Paraguay and brought her to Texas. The district court granted the petition.
The petitioner and respondent were United States citizens who met in 2012 at a drug rehabilitation facility, where both were receiving treatment for drug abuse.
They married on February 16, 2013, in California. On September 23, 2013, the respondent gave birth to O.C.P., in California. Respondent had another child, J.P.D., a 10 year old from a prior relationship, who resided with her parents in Houston. The petitioner executed a two-year lease at a Houston condominium in October 2013, with his mother agreeing to cover the monthly rental payments for the duration of the lease term. In September 2014, the respondent signed a two-year lease on an apartment located at 2207 Bancroft Houston, Texas, with monthly rental payments to be paid by the petitioner’s mother. The petitioner continued to reside at the Beverly Hills Houston apartment until his admittance in October 2014 into a 90–day drug rehabilitation facility in Austin, Texas, where he remained until January 2015. In mid-November 2014, the respondent and O.C.P. visited Asunción, Paraguay, staying at the petitioner’s mother’s home and returning to Houston in early January 2015. In February 2015, after the petitioner was released from the rehabilitation facility, the parties, together with O.C.P., traveled to Asunción, Paraguay to visit the petitioner’s family. While there, the parties resided at the petitioner’s mother’s house. It was undisputed that the petitioner intended to move to Paraguay, where he grew up, as soon as he completed rehabilitation. He testified, and the Court found, that his intentions were to stabilize his life, specifically his marriage, and start supporting his family. The petitioner, respondent and O.C.P remained in Paraguay from around February 14, 2015, through August 25, 2015, save for three exceptions: (1) From March 20—April 10, the respondent and O.C.P. traveled to California and Texas; (2) from June 24—July 5, they traveled again to Texas; and (3) from August 25—October 17, the parties traveled to Florida and Texas for two months. During her stay in Paraguay, the respondent worked for a short period in the family’s cattle business. The respondent and O.C.P. lived in the petitioner’s mother’s house during their stay. Also toward the end of their stay, the petitioner’s mother offered to construct a residence on her compound so that the petitioner and respondent, and particularly O.C.P., would have separate living quarters. Both the petitioner and respondent, to some extent, participated in finalizing the plans for a separate residence on the petitioner’s mother’s compound. When the respondent returned to Paraguay on October 18, 2015, she and O.C.P. remained in Paraguay until October 24, 2016.
The Court found that prior to the respondent’s return to Paraguay in October 2015, the petitioner and respondent traveled to Houston. During this visit, the petitioner moved respondent’s property out of the parties’ storage unit into a smaller unit. At that time, little or nothing in the respondent’s Bancroft apartment was moved. Afterward, the petitioner returned to Paraguay with most of his possessions. On October 18, the respondent and O.C.P. returned to Paraguay. Though residing in Paraguay, the respondent maintained her lease on the Bancroft apartment in Houston. During this time, the petitioner’s mother rendered monthly rental payments on the Bancroft lease, provided the respondent with a credit card for all household and food purchases and other necessities, paid for the parties’ medical insurance premiums, including reimbursing the respondent’s mother for the cost of coverage for O.C.P.’s COBRA policy maintained by the respondent’s mother’s Texas employer, and completed building the separate residence on her compound to house the parties and O.C.P. While staying in Paraguay, the respondent traveled, mostly unaccompanied, to Uruguay, Florida, Houston, Miami and Ohio, with all expenses paid for by the petitioner’s mother. During her trips to Uruguay the respondent mainly traveled alone and remained away from O.C.P. for several weeks at a time. In December 20, 2015, O.C.P. was baptized in Asunción, Paraguay. Both parties were present for and supportive of her baptism. In February 2016, O.C.P. was enrolled in and began attending a pre-kindergarten/daycare program at Maria’s Pre–School in Paraguay. She regularly attended school until her removal from Paraguay in October 2016. Given the length of her extended stay in Paraguay, O.C.P. received medical care for any illnesses from Dr. Jorge Lopez–Benitez, a local pediatrician.
On or about October 18, 2016, the respondent revealed to the petitioner’s mother that she was pregnant with a child by someone other than the petitioner—a boyfriend she purportedly met in Buenos Aires. Nevertheless, she sought the assistance of the petitioner’s mother to direct her to a physician to confirm her pregnancy. Sometime earlier, around September 20, 2016, the respondent had informed her mother of her pregnancy. With a September 30, 2016 lease-end date for the Bancroft apartment she maintained, the respondent’s father rented a storage unit in Houston to move and store her remaining belongings from the Bancroft apartment. On October 24, 2016, the respondent attempted to leave Paraguay without proper clearance documentation for O.C.P. On October 25, 2016, the petitioner, at the request of his mother, traveled to the airport to execute a document stating his commitment to show the child’s missing diplomatic passport to immigration officials in Paraguay upon his mother’s return to Paraguay, permitting the respondent and O.C.P. to travel Houston to visit her family. Except for a visit to Houston for about two weeks in January 2016, O.C.P. spent the large majority of her time, during the relevant period, in Asunción, Paraguay.
The testimony of the petitioner, and his mother, supported a finding that the respondent followed the petitioner to Paraguay in an attempt to repair and/or reestablish the parties’ marriage and family. The Court found that on critical facts, the testimony of the respondent was unpersuasive and unreliable. This finding was based on the respondent’s courtroom behavior, i.e., the manner of her testimony, the conflicts in her testimony, and her actions during the disputed periods.
The Court found that the parties’ last shared intention was for O.C.P. to habitually reside in Paraguay. The respondent was not involuntarily coerced to remain in Paraguay during the relevant period. The evidence established that in October 2015, O.C.P., traveled with the respondent on a one-way ticket from Houston, Texas to Paraguay to live with the petitioner and his family for nearly a year, while traveling intermittently. The respondent was not coerced to involuntarily remain in Paraguay or to change O.C.P.’s habitual residence to Paraguay. O.C.P. quickly acclimated to Paraguay. While in Paraguay, for example, she: was baptized into the Catholic faith by the petitioner’s family’s priest; was enrolled in and began attending a pre-kindergarten/daycare program at Maria’s Pre–School; received necessary medical care from a local pediatrician there; and established relationships with the petitioner’s family, including participating in various family activities. Although the petitioner and respondent may have harbored very distinct views of Paraguay, both, nevertheless, agreed to move to that country and live there with O.C.P. and proceeded as parents determined to make a home for themselves and their minor child—they assisted in establishing a separate living quarters on the petitioner’s mother’s compound, they worked for the family’s cattle business, arranged for O.C.P. to receive necessary medical care from a Paraguayan pediatrician and participated in consultations with him, and permitted O.C.P. to be enrolled in pre-school for a period of, at the very least, 8 months. Further, the stability of the residence in Paraguay, combined with O.C.P.’s regular attendance in school, the respondent and petitioner’s employment status and the petitioner’s mother’s level of involvement with the child all weighed in favor of the Court finding O.C.P. “settled” in Paraguay. The fact that the respondent never intended to remain in Paraguay permanently did not alter the parties’ settled purpose or the Court’s finding.
The Court found that petitioner had rights of custody under Paraguayan law, including rights relating to the care of O.C.P. as well as the right to determine her place of residence. The Code of Childhood and Adolescent Rights of Paraguay grants custody rights to both mothers and fathers. The petitioner possessed rights of custody that were breached at the time of O.C.P.’s wrongful removal, and he was exercising those rights at the time of the removal. The evidence did not suggest that, at or near the time of O.C.P.’s removal, the petitioner consented to or took any subsequent action to acquiesce in O.C.P.’s habitual residence being changed from Paraguay to the United States. By assisting the respondent at the airport at his mother’s insistence, the petitioner did not waive his right to complain in the event that the respondent refused to return to Paraguay with O.C.P. The petitioner’s pursuit of the respondent and utilization of the remedies available to him under the Convention and through local law enforcement to secure O.C.P.’s prompt return to Paraguay further undermined the respondent’s consent defense.