New York Matrimonial Trial Handbook

The New York Matrimonial Trial Handbook by Joel R. Brandes is available in Bookstores and online in the print edition at the Bookbaby Bookstore, Amazon Barnes & Noble, Goodreads and other online book sellers. It is also available in Kindle ebook editions and epub ebook editions for all ebook readers in our website 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 on this link for more information about the contents of the book and on this link for the complete table of contents.

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 http://www.nysdivorce.com 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.


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Saturday, December 22, 2018

Vite-Cruz v Sanchez, 2018 WL 6680514 (D. South Carolina, 2018)[Mexico] [Discretionary return] [Re-abduction]


          In Vite-Cruz v Sanchez, 2018 WL 6680514 (D. South Carolina, 2018) the district court granted the Petition filed by Petitioner Jose Luis Vite-Cruz (” Father”) for the return of A.V., a twelve-year-old child (the “Child”), to his habitual residence of Hidalgo, Mexico.  The Court held a bench trial in Columbia, South Carolina. Mother was present in the courtroom, and Father was present via teleconference from Mexico.  Child was born in Charleston, South Carolina, on March 17, 2006.  He was a dual-citizen of Mexico and the United States.  Father was a Mexican citizen and resident.  Mother was born in Mexico; had been a Lawful Permanent Resident of the United States since August 19, 1997; and was a resident of Richland County, South Carolina, where she resided with the Child.  Child resided for some time in South Carolina from his birth in 2006 until he began residing in the state of Hidalgo, Mexico, with Father. The parties stipulated Child was a habitual resident of Hidalgo, Mexico, at the time Mother removed him on or about December 1, 2016. Father had rights of custody over Child under Mexican (Hidalgo) law. Both parties agreed that Father was exercising his custodial rights at the time Mother removed Child from Mexico. As a result, Mother’s removal of Child from Mexico was a breach of Father’s custody rights. Based on the stipulations and facts properly before the Court, Father proved a prima facie case for the return of Child under the Hague Convention by a preponderance of the evidence.

          The Father and Mother were married in the United States in 2005 while living in Charleston County, South Carolina.  After the Child’s birth, Father and Mother traveled to Mexico with the Child in 2006. For approximately four months, the family lived together in Zacualtipán de Ángeles, Hidalgo, Mexico.  Thereafter, Mother and the child traveled to North Charleston, South Carolina. For a period of time while Father remained in Mexico, the Child lived with Mother and her parents in the North Charleston area. In 2008, Father returned to North Charleston, South Carolina. At that time, Mother was in a relationship with another man and was pregnant with his child. After Father returned to North Charleston, he and Mother lived apart but shared the care and custody of Child. Child would stay with Mother for a few days and then go to stay with Father for a few days. Mother fell on difficult financial times. When this happened, Child went to live with Father.

          Over the next twelve to eighteen months, Child continued to live with Father in North Charleston. Child continued to live in North Charleston with Father until 2010. In 2010, Father advised Mother that he was going to move back to Hidalgo, Mexico with Child. Father testified that Mother did not visit Child or help raise him and that the reason for wanting to return to Mexico was to be closer to Child’s paternal grandmother, who could provide him assistance with raising Child. Because Mother opposed the proposed move, Father did not move back to Mexico immediately after their initial discussion. However, when Mother did not visit Child for another month or so, Father proceeded with the plan to move back to Hidalgo, Mexico.  On or about April 2010, Father and Child returned to the same city where the family had lived before: Zacualtipán de Ángeles, Hidalgo, Mexico. At the time of this move, Father had been Child’s custodian and caregiver for almost two years in North Charleston. Father continued to be the sole custodian of Child in Mexico from April 2010 until November 28, 2016.  During the roughly six and one-half years Father and Child lived together in Mexico, Mother did not make any effort to support, visit, or communicate with Child or Father. The earliest message from Mother to Child admitted at trial was dated November 8, 2016. When Mother first contacted Child through Father’s Facebook account on November 8, 2016, she asked for his address so she could send Child some gifts. Mother received the address several days later.  Shortly after Mother began her communications with Child, she made a plan to visit him later that month in Mexico. Before she left for Mexico, Mother did not advise Child or Father she was going to see Child in late November 2016. On or about November 28, 2016, Mother arrived in her former hometown in Mexico. At the time she arrived, Child was ten years old and a well-adjusted young boy who spoke only Spanish. Mother then asked Father if she could take Child to the United States to visit with her and her family. Father made it clear he would not consent to Mother taking Child outside of Mexico. However, after a visit to the local police station, Father did consent to Mother taking Child for a short visit with her to a beach in a nearby Mexican town, provided she return Child at a specified date, time, and location. Child also understood and agreed he would go on a short beach trip to get to know his Mother. Mother agreed to these very specific and limited terms. Contrary to her express agreement with Father, Mother took Child from Mexico to the United States without Father’s consent and without telling him they were leaving the country. Father immediately requested that she return Child as promised; however, Mother refused to do so. Unbeknownst to Father, Mother took Child to North Charleston, South Carolina. Shortly after their arrival, on or about December 8, 2016, Mother enrolled Child in fifth grade at Pinehurst Elementary in Charleston County School District One. Child began fifth grade on or about December 12, 2016. Mother did not list Father on the school’s registration form as the father of Child. Despite Father’s repeated requests through telephone calls and electronic messaging, Mother refused to provide her and Child’s address or any specific information about his wellbeing. Messages from Mother to Father during this time also indicate that she was willfully preventing Father’s contact with Child and taunting him when he asked to speak to his son.  Less than two months later, on January 28, 2017, Mother withdrew Child from Pinehurst Elementary and moved from North Charleston to Columbia, South Carolina.

          The Court found that a preponderance of the evidence did not support the finding that Child was well-settled and that application of this narrow defense was not warranted. See Alcala, 826 F.3d at 170.  Mother argued that Child was sufficiently mature to permit the Court to consider his objections to returning to Mexico. The Court concluded that, regardless of his actual maturity, Mother failed to present sufficient evidence for the Court to apply this narrow defense. Mother failed to present any evidence showing that Child had a particularized objection to living in Mexico sufficient for the Court to take his views into consideration. The Court held that Mother had not carried her burden in proving consent or acquiescence.

          The court stated that analyzing the affirmative defenses did not end the Court’s inquiry. Instead, “the courts retain the discretion to order return even if one of the exceptions is proven.” Miller v. Miller, 240 F.3d 392, 402 (4th Cir. 2001) (quoting Feder v. Evans-Feder, 63 F.3d 217, 226 (3d Cir. 1995)); see also Hague Convention art. 18 (”The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.”); Lozano v. Alvarez, 572 U.S. at 18 (Alito, J., concurring) (discussing factors relevant to the exercise of discretion). Exercising its discretion, even in the event one of the affirmative defenses were to apply, the Court concluded that equitable justifications warranted the Court’s exercise of its discretion to return Child to Mexico.

          This alternative holding was buttressed by the Court’s factual finding that Mother abducted Child. While Mother’s motives may not have been malicious, the consequences of her actions could be enormous. As the Supreme Court of the United States has noted, An abduction can have devastating consequences for a child. Some child psychologists believe that the trauma children suffer from these abductions is one of the worst forms of child abuse. A child abducted by one parent is separated from the second parent and the child’s support system. Studies have shown that separation by abduction can cause psychological problems ranging from depression and acute stress disorder to posttraumatic stress disorder and identity-formation issues. A child abducted at an early age can experience loss of community and stability, leading to loneliness, anger, and fear of abandonment. Abductions may prevent the child from forming a relationship with the left-behind parent, impairing the child’s ability to mature. Abbott v. Abbott, 560 U.S. 1, 21 (2010).

          The Court considered a number of factors in reaching its equitable decision. First, Mother had taken steps to sever Child’s relationship with Father, including not disclosing where Child was living, not allowing Child to have any regular contact with the Father, taunting Father about her possession of Child, and not allowing Father to meaningfully participate in Child’s life. Second, if Child remained in the United States, it would be virtually impossible for him to see Father ever again, at least until he reached the age of eighteen. Father was financially prohibited from coming to the United States to see Child or attend a custody hearing. Critically, Father did not have legal status to permit him to visit Child in the United States, while there are no legal prohibitions keeping Mother from visiting Child in Mexico.

          Finally, an order denying Father’s request to return Child would have the effect of sanctioning Mother’s unilateral action to abduct Child in violation of Mexican and international law. The evidence presented indicated Father only consented to Mother visiting with Child for a short, specified time period in Mexico. Mother admitted she agreed to these terms but then chose to ignore her agreement so she could take Child to another country where she knew Father could not travel. Put plainly, this was the exact type of behavior that the Hague Convention seeks to prevent.

          Mother argued that her actions were justified because Father was the first to take Child to another country without consent. However, courts have consistently rejected this same argument when faced with a parent who “re-abducts” a child instead of seeking redress under the Convention. See Moreno v. Zank, 895 F.3d 917, 924 (6th Cir. 2018) (characterizing re-abduction as a disregard for Convention and threat to a child’s well-being); see also Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006) (”To give a legal advantage to an abductor who has a perfectly good legal remedy in lieu of abduction yet failed to pursue it would be contrary to the Hague Convention’s goal of discouraging abductions by denying to the abductor any legal advantage from the abduction.”).

          An order refusing to return Child to his habitual residence would not only reward the Mother, it could motivate other parents attempting to settle a difficult family situation to resort first to self-help and the protections of a foreign country rather than seeking the aid of the local authorities. This Court could not allow Mother to take matters into her own hands and effectively minimize or even terminate Father’s relationship with Child by bringing him to the United States. Instead, the Court had to follow the dictates of the Hague Convention and the equitable considerations present in this case.

          Based on the foregoing, the Court alternatively concluded that equitable justifications warranted the Court’s exercise of its discretion in granting the Verified Petition and ordering the return of Child to Mexico.



Tuesday, December 11, 2018

Chumachenko, v. Belan, 2018 WL 6437062 ( S.D. New York, 2018)[Ukraine] [Habitual residence] [Petition granted]



  
        In Chumachenko, v. Belan, 2018 WL 6437062 ( S.D. New York, 2018) the District Court granted the petition of Olena Chumachenko  a Ukrainian citizen, for the return of her two minor sons to Ukraine. 
  
        Petitioner and Respondent, both of whom were Ukrainian citizens, were the parents of P.B. and D.B., P.B. was four years old and D.B. was three. Petitioner and Respondent started cohabitating in Ukraine, in 2013, when Petitioner became pregnant with P.B. In March 2014, Petitioner and Respondent traveled to Orlando, Florida to take up temporary residence in anticipation of P.B.’s birth. in order to take advantage of the country’s medical facilities. In Orlando, Petitioner and Respondent purchased a car and rented an apartment for an unknown duration. P.B. was born in June 2014, and the family remained in Florida until July 2014. the parties returned to Ukraine with P.B. in August. When Petitioner and Respondent returned to Ukraine, Petitioner cared for P.B. full time and did not otherwise work. The family reintegrated into their community. Around February 2015, Petitioner discovered she was pregnant with the couple’s second child, D.B. Again, Petitioner and Respondent decided to give birth in Orlando and, in late August 2015, traveled to Florida to carry out their plan. Petitioner and Respondent leased an apartment, bought furniture, and purchased a car. D.B. was born in December 2015 and, in January 2016, the family returned to Ukraine. P.B. and D.B. remained in Ukraine until October 2017, when Petitioner and Respondent again traveled to Orlando after learning that Petitioner was pregnant with the parties’ third child. Petitioner and Respondent discussed a permanent move to the United States around this time, but the parties had not made a final joint decision to relocate permanently before they returned to Florida in anticipation of the birth of the third child. Respondent was consistently interested in relocating to another country and preferred the United States. The parties purchased round-trip tickets for their journey to and from Florida. The parties removed P.B. from his preschool in the Ukraine, but in no other way cut ties with Ukraine. When they arrived in Florida in October 2017, the parties entered into a seven-month residential lease and purchased a car and furniture, just as they had done with Petitioner’s prior pregnancies.The parties enrolled P.B. in a pre-K program in Florida but neither Petitioner nor Respondent had obtained a visa that would allow them to remain in the United States legally for more than a few months. Neither Petitioner nor Respondent took steps to obtain work or permission to work in the United States during this time. Petitioner miscarried around December 2017, and the parties returned to Ukraine in late January 2018. They put the furniture that they had purchased in storage and left their car in the care of Belan’s brother, who resided in Florida. Upon their return, the Children were again enrolled in daycare and resumed activities with their family and friends. Petitioner rented out her apartment, but moved with Respondent and the Children to another home—an apartment they purchased in Kherson. Around mid-February 2018, Respondent had to attend to proceedings in two lawsuits that were pending in Ukraine. In March 2018, Petitioner started an interior design business in Kherson. At all relevant times, Respondent’s business remained in Ukraine. Respondent asserted that, during the spring of 2018, he was reorganizing his business so that he could run the company remotely. This testimony made it evident that, as of the spring and early summer of 2018, the parties had not relocated to the United States. The parties’ return to Ukraine following Petitioner’s miscarriage marked the beginning of a particularly tumultuous period of their relationship, during which Petitioner vacillated as to whether she wanted to relocate to the United States with Respondent and the Children. Petitioner had learned of Respondent’s relationships with other women in the winter of 2017. In March 2018, Petitioner “had reached [her] limit” with Respondent’s affairs and placed an advertisement on a dating website. Months later, Respondent discovered that Petitioner herself had started a relationship with “a man who lived abroad” and, in response, Respondent moved out of their shared apartment. In late June, the parties apparently reconciled and Respondent told Khrystych, who Petitioner understood to be Respondent’s girlfriend, that he “intended to stop all communication with [her] and that he was no longer interested in [Khrystych] working for him.” Also in late June, Petitioner discovered that Respondent was “continuing to communicate with his girlfriend.” Nonetheless, around this time, Respondent returned to the apartment he shared with Petitioner and the parties made plans to travel together to Florida. There was no credible evidence that the trip was jointly planned to implement permanent relocation to the United States. The night before they were scheduled to leave for Florida, the parties “got into an argument” and Petitioner refused to go on the trip. Respondent took the Children to Florida without Petitioner and, on July 13, 2018, returned with them to Kiev rather than Kherson.

          On July 20, 2018, Petitioner agreed to reconcile with Respondent and cease communication with the “man who lived abroad,” in order to reunite as a family. However, their reconciliation was short-lived. On July 22, 2018, following a heated argument, Respondent told Petitioner he was taking the Children to a swimming pool in Kherson. In a telephone call and text messages as he prepared to take the Children to the airport, Respondent told Petitioner that he was taking the Children to the United States, and then he took them to Los Angeles.
  
        The District Court found that Petitioner never consented to Respondent taking the Children to the United States. Respondent testified that he and Petitioner “never discussed” living in the United States “not as a family.” Petitioner’s lack of consent was further evidenced in her text messages to Respondent following his departure with the Children. Four days after Respondent took the Children to the United States, she contacted an attorney. On August 21, 2018, Petitioner “filed a Hague case in the State of California.” From August 23, 2018, to September 8, 2018, Respondent stopped communication with Petitioner, and did not inform Petitioner of the Children’s whereabouts. On September 24, 2018, Respondent filed an Order to Show Cause in New York State Court seeking temporary custody of the Children. Respondent’s state court petition included a false representation that Petitioner had abandoned the family in January 2018, and also asserted that the family had planned to relocate to the United States in the summer of 2018 (rather than in October 2017, as Respondent I had maintained in these proceedings). On October 23, 2018, Ms. Chumachenko filed a petition with the district Court seeking the return of the Children to Ukraine.

          The parties agreed that Petitioner had custody rights under Ukrainian law, recognized by the Convention, which she was exercising at the time Respondent removed the Children to the United States. Therefore, the second and third elements of the habitual residence test were satisfied, and the Court was left to determine the Children’s habitual residence. The District Court observed that to determine a child’s habitual residence, the Court (i) inquires into the shared intent of those entitled to fix the child’s residence at the latest time that their intent was shared, and (ii) considers whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir. 2005). Respondent did not argue that the Children had become acclimatized to the United States. Since, “[n]ormally the shared intent of the parents should control the habitual residence of the child,” Gitter at 134, and “a change in geography is a necessary condition to a child acquiring a new habitual residence,” Gitter at 133, the Court focused its habitual residence inquiry on whether Petitioner had proven her contention that the parties never had a shared intent to change the Children’s habitual residence from Ukraine to the United States notwithstanding the family’s move to Florida in October 2017 or whether, as Respondent contended, the parents formed such a shared intention prior to October 2017 and cemented it by moving to Orlando in October of that year.

          The court stated that to determine whether the parents shared an intent to fix the child’s residence, “the court should look ... at actions as well as declarations.” Id. at 134. “Shared intent” conditioned on certain prerequisites will not fix the child’s residence if those conditions do not materialize. See Mota v. Castillo, 692 F.3d 108, 115 (2d Cir. 2012) Petitioner asserted that Ukraine at, at all relevant times, had been the Children’s habitual residence. According to Respondent, “[t]he parties’ last shared intention as to what the children’s country of habitual residence would be was the United States,” and “the parties had this last shared intention prior to their travel to the United States with the children in October 2017.” The Court concluded that Petitioner demonstrated by a preponderance of the credible evidence that Ukraine was, and remains, the Children’s habitual residence. The Children spent the overwhelming majority of their lives in Ukraine. They had attended school in Ukraine. Their friends and extended family were almost entirely in Ukraine. Their parents were Ukrainian citizens who owned property and Werke in Ukraine. The record included no objective evidence that the parents jointly decided to abandon Ukraine as their home or to relocate the Children to another country regardless of the domicile of one or both parents. The credible testimonial evidence regarding the parents’ subjective intentions persuaded the Court that, while Respondent was determined to relocate the Children, with or without Petitioner, permanently to another country, Petitioner never shared that firm, unconditional intention.
   
       Respondent argued that the parties intended their trip to the United States in October 2017 to be a permanent relocation. Petitioner, on the other hand, testified credibly that they had only considered, and had not yet decided on, permanent relocation by that time. Petitioner had also explicitly placed certain preconditions on any potential relocation: she “told [Respondent] that if [they] were going to move as a family and secure immigration visas to allow [them] to move, [they] would have to get married first. It was also understood that [Petitioner] would have to stop having relationships outside of [their] relationship.” Evidence proffered by both Petitioner and Respondent supported this testimony. Nothing in the record indicated that any of Petitioner’s conditions were met.

          The court found that Respondent failed to rebut Petitioner’s credible testimony that the parties intended the October 2017 trip to be a temporary stay for the limited purpose of giving birth, just as they had done on two prior occasions. The credible evidence demonstrated that the parties did not jointly decide to move permanently to the United States in October 2017, were not prepared or able to stay in the United States permanently when they arrived in October 2017 and that, at best, they were considering whether to move to the United States as a family at some time in the future. The evidence also demonstrated that Petitioner and Respondent never shared an intent to permanently move the Children to the United States outside the confines of an intact family unit. Respondent, alone, moved the Children. Therefore, the Court concluded that Petitioner met her burden of proving that Ukraine Remains the Children’s habitual residence. See Hofmann, 716 F.3d at 292.

          The court noted that Article 13 provides that the Court is not bound to order the return of children if the respondent establishes by a preponderance of the evidence that the petitioner “consented to or subsequently acquiesced in the removal or retention.” Respondent asserted that Petitioner consented to his taking the Children to the United States to establish permanent residence here. The court found that  Respondent failed to prove by a preponderance of the credible evidence that Petitioner consented to his removing the Children from Ukraine for the purpose of permanent relocation.


Saturday, December 8, 2018

Monzon v De La Roca, 2018 WL 6424956 (3d Cir, 2018)[Guatemala] [Federal & State Judicial Remedies] [Commencement of proceeding] [Defenses]




          In Monzon v De La Roca, 2018 WL 6424956 (3d Cir, 2018) the third Circuit the District Court’s denial of the Petition seeking the return of his minor child, H.C.

          Castellanos married De La Roca in 2004. Their son, H.C., was born in 2010. The couple separated in November 2011, and divorced by mutual consent in January 2014. De La Roca claimed that violence was a factor, although she did not raise that issue in the divorce proceedings. Castellanos categorically denied all of De La Roca’s allegations of abuse. In the summer of 2013, after her separation from Castellanos, but before they divorced, De La Roca began a long-distance relationship with her childhood acquaintance, “Deleon,” who resided in New Jersey. De La Roca obtained a visa for H.C. to travel to the United States with Castellanos’s consent, though she did not immediately bring H.C. to the U.S. She married him in March of 2014. She did not tell Castellanos about the marriage. Shortly after marrying Deleon, De La Roca told Castellanos that she intended to bring H.C. to the United States to live; Castellanos refused to consent. In or around March of 2014, De La Roca filed a domestic violence complaint against Castellanos in Guatemala and obtained a temporary restraining order. However, she failed to appear at the hearing to make the TRO permanent because she had already moved to New Jersey before the final hearing. In July of 2014, De La Roca took H.C. to the United States. A month after taking H.C. to New Jersey, she sent Castellanos a text message informing him she was there with H.C. She did not disclose their exact address “[o]ut of fear that he would come [to New Jersey] to do the same thing as in Guatemala.” On August 23, 2014, Castellanos filed an Application for Return of the Child under the Convention with the Central Authority in Guatemala.

          On January 5, 2016, having discovered that the Convention required him to file where H.C. lived, Castellanos filed the Petition for Return of the Child (the “Petition”) in the District Court of New Jersey. The District Court entered judgment in favor of De La Roca, thereby refusing to return H.C. to Castellanos. However, the Court expressly declined to address De La Roca’s affirmative defense under Article 13b (H.C.’s return to Guatemala constitutes a “grave risk”). Instead, the Court concluded that De La Roca had successfully demonstrated by a preponderance of the evidence, that H.C. was well settled in the United States pursuant to ICARA, and therefore decided not to exercise its independent authority to order H.C.’s return to Guatemala.

          Castellanos argued that the District Court erred in not finding that the notice he filed with the Guatemalan Central Authority and the U.S. Department of State constituted a “proceeding” for purposes of Article 12 of the Convention, thereby entitling him to have H.C. returned pending resolution of the custody dispute. The Third Circuit pointed out that ICARA defines “commencement of proceedings” as used in Article 12 of the Convention as “the filing of a petition in accordance with [§ 9003(b) ].”Section 9003(b) provides, in turn, that “[a]ny person seeking to initiate judicial proceedings under the Convention for the return of a child ... may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.” Therefore, it could not conclude that mere notice of one’s intent to have a child returned to the parent in a signatory state constitutes “commencement of proceedings” under Article 12. In recognizing that the ‘now settled’ exception applies where the child has been in the destination state for more than one year from the date of the wrongful removal or retention it noted that the delay in filing the Petition for H.C.’s return did not eliminate Castellanos’s remedies under the Convention,42 nor did it ensure De La Roca’s success in resisting the Petition for H.C.’s return. Here, the District Court correctly recognized its continuing independent authority to order H.C.’s return; however, it declined to exercise this authority.
          De La Roca did not dispute the District Court’s conclusion that Castellanos established each of the conditions for H.C.’s return under the Convention. Accordingly, De La Roca had to produce sufficient evidence to establish an affirmative defense to Castellanos’s Petition pursuant to subsection (e)(2) of ICARA. § 9003(e)(2) of ICARA provides as follows: (e) Burdens of proof ... (2) In ... an action for the return of a child, a respondent who opposes the return of the child has the burden of establishing--(A) by clear and convincing evidence that one of the exceptions set forth in article 13b or 20 of the Convention applies; and (B) by a preponderance of the evidence that any other exception set forth in article 12 or 13 of the Convention applies.

          The Court rejected Castellanos argument that the use of the conjunctive “and” means that De La Roca must establish both prongs of § 9003(e)(2) by the specified burden of proof before his Petition for H.C. could be denied. De La Roca asserted two affirmative defenses to the Petition—that H.C. is well settled in the United States, and that returning him to Guatemala would present a grave risk. Under (e)(2)(A), a respondent must prove by clear and convincing evidence that (1) there is a grave risk that the child’s return would expose the child to physical or psychological harm; or (2) the return should not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. ICARA requires that a respondent only establish by a preponderance of the evidence that (1) the child is now settled in its new environment; or (2) the petitioner was not exercising custody rights at the time of removal. (citing as precedent Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995) (noting that a respondent who opposes a child’s return “may advance any of the affirmative defenses to return listed in Articles 12, 13, or 20 of the Hague Convention.”); Miller v. Miller, 240 F.3d 392, 402 (4th Cir. 2001) (“In fact, the courts retain the discretion to order return even if one of the exceptions is proven.”); Ohlander v. Larson, 114 F.3d 1531, 1534 (10th Cir. 1997) (the Hague Convention “provides for several exceptions to return if the person opposing return can show any” of the listed exceptions); Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir. 1996) (“Once a plaintiff establishes that removal was wrongful, the child must be returned unless the defendant can establish one of four defenses.”);Blondin v. Dubois, 189 F.3d 240, 245 (2d Cir. 1999); In re Lozano, 809 F.Supp.2d 197, 235 (S.D.N.Y. 2011); Lozano v. Alvarez, 697 F.3d 41, 59 (2d Cir. 2012); Lozano, 572 U.S. at 8, 18; see also id. at 19 (Alito, J., concurring) (“This is why Article 12 requires return ‘forthwith’ if the petition for return is brought within a year of abduction, unless one of the narrow exceptions set forth in Article 13 or 20 applies.”)

           Castellanos also complained that De La Roca did not actually offer sufficient evidence to prove that H.C. was well settled in the United States. Reviewing the district court’s factual findings for clear error it found that the record supported the District Court’s finding that H.C. was well settled in his new environment. There was no error in reaching that conclusion, let alone any clear error in doing so.

Sunday, December 2, 2018

Calixto v Lesmes, --- F.3d ----, 2018 WL 6257410 (11th Cir., 2018)[Colombia] [Habitual residence] [Conditional intent]



          In Calixto v Lesmes, --- F.3d ----, 2018 WL 6257410 (11th Cir., 2018) Johan Calixto filed a petition in federal court seeking the return of his 5-year old daughter, M.A.Y., to Colombia. Mr. Calixto had signed a travel consent form allowing M.A.Y. to travel from Colombia to the United States with her mother, Hadylle Lesmes, from November of 2015 until November of 2016. In his petition, Mr. Calixto alleged that Ms. Lesmes had wrongfully retained M.A.Y. in the United States and away from Colombia, her country of habitual residence, beyond November of 2016 and in violation of the Convention. The district court denied Mr. Calixto’s petition for return. It concluded that Ms. Lesmes’ retention of M.A.Y. in the United States was not wrongful under the Convention because Mr. Calixto and Ms. Lesmes had shared an intent to change M.A.Y.’s habitual residence from Colombia to the United States, and because M.A.Y.’s habitual residence had subsequently become the United States through acclimatization. The district court did not, however, address whether Mr. Calixto’s intent to change M.A.Y.’s habitual residence was conditioned upon his joining Ms. Lesmes and M.A.Y. in the United States or whether that intent was vitiated once Mr. Calixto was unable to come to the United States. The Eleventh Circuit held that the answers to those questions were critical to the proper disposition of the appeal, and because shared intent is a factual determination, it remanded for further factual findings.

          The Court pointed out that it was concerned with how and when a child’s habitual residence might change from one country to another, not with how an initial habitual residence comes to be in the first place. To that end, it had previously decided to follow and adopt the reasoning of the Ninth Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001), and held that “[t]he first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind.” Ruiz, 392 F.3d at 1252. “[T]he relevant intention or purpose which has to be taken into account is that of the person or persons entitled to fix the place of the child’s residence.” In analyzing whether a child’s habitual residence has changed, a court must first determine whether the parents or guardians (i.e., the persons entitled to fix the place of the child’s residence) shared an intent to change the child’s habitual residence. The “unilateral intent of a single parent” will not suffice to change a child’s habitual residence. “[T]he difficult cases arise when the persons entitled to fix the child’s residence do not agree on where it has been fixed.” “Although the settled intention of the parents is a crucial factor, it cannot alone transform the habitual residence.” There must also be “an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized.” The evidence required to show acclimatization becomes greater if there was no shared settled intent of the parents to change a habitual residence. If there is “no shared settled intent on the part of the parents to abandon the child’s prior habitual residence, a court should find a change in habitual residence if the objective facts point unequivocally to a new habitual residence.” A change in habitual residence can also be found if a court can “say with confidence that the child’s relative attachments to the two countries have changed to the point where requiring a return to the original forum would now be tantamount to taking the child out of the family and social environment in which its life has developed.”

          Mr. Calixto and Ms. Lesmes were both born in Colombia. They met there. On June 17, 2012, Ms. Lesmes gave birth to their daughter, M.A.Y., who lived continuously and exclusively in Colombia until November of 2015. Samir Yusuf, Ms. Lesmes’ father, lived in the United States as a permanent resident. In August of 2013, after M.A.Y. was born, Ms. Lesmes obtained U.S. permanent residency. To maintain that status, Ms. Lesmes traveled to the United States at least three times between August of 2013 and October of 2015, staying in this country for a total of 17 or 18 months. The last of these trips was from November of 2014 to October 31, 2015, when Ms. Lesmes returned to Colombia to help finalize M.A.Y.’s own application for U.S. permanent residency. For these 17 or 18 months, which constituted nearly half of M.A.Y.’s life as of November of 2015, M.A.Y. remained in Colombia in the care of Mr. Calixto, Ms. Lesmes’ mother, or sometimes both. Mr. Calixto did not oppose Ms. Lesmes obtaining U.S. permanent residency. He supported it, because the two of them had discussed moving together to the United States, along with M.A.Y., as a family. Mr. Calixto encouraged and facilitated M.A.Y.’s obtaining U.S. permanent resident status, and Ms. Lesmes filed an application for her residency in October of 2013. Mr. Calixto took M.A.Y. to a required medical examination in October of 2015, and did not object to M.A.Y. attending her final application interview on November 5, 2015. Mr. Calixto testified that he was aware of this final interview, and that it was part of the plan for him, Ms. Lesmes, and M.A.Y. “to come to the United States as a family.”  Sometime in November of 2015, Mr. Calixto executed a travel consent form with the Colombian Ministry of Foreign Affairs authorizing Ms. Lesmes to remove M.A.Y. from Colombia.  Under Colombian law, Ms. Lesmes could not have legally taken M.A.Y. from Colombia without this consent form. The travel consent form indicated “November 2015” as the “date of departure from the country of the child,” and “November 2016” as the “date of return or entry into the country of the child.”  M.A.Y. obtained U.S. permanent resident status on November 24, 2015. On that day, Mr. Calixto accompanied Ms. Lesmes and M.A.Y. to the airport for their trip to the United States. Mr. Calixto testified that this was a “happy occasion” because it signaled “[a] new beginning in the United States.” After Ms. Lesmes and M.A.Y. arrived in the United States, Mr. Calixto applied for a U.S. tourist visa twice. Each time his application was denied. Since their arrival in the United States in November of 2016, however, neither Ms. Lesmes nor M.A.Y. returned to Colombia.

          The parties disputed the circumstances surrounding the travel consent form executed by Mr. Calixto and M.A.Y.’s departure from Colombia. The court discussed Mr. Calixto’s version first, and then Ms. Lesmes’. The magistrate judge issued a report on October 19, 2017, recommending that the district court deny Mr. Calixto’s petition. The report did not resolve the significant conflicts in the testimony, such as the status of the relationship between Mr. Calixto and Ms. Lesmes in November of 2015, the reason for Mr. Calixto’s execution of the travel consent form, and the circumstances surrounding the travel of Ms. Lesmes and M.A.Y. to the United States. Framing the critical issue as M.A.Y.’s habitual residence in November of 2016, the date of the alleged wrongful retention, the magistrate judge concluded that at that point M.A.Y.’s habitual residence was the United States, and not Colombia. As a result, the retention was not wrongful. The magistrate judge found that Mr. Calixto and Ms. Lesmes “shared the intent for the United States, not Colombia, to be M.A.Y.’s habitual residence [,]” and that M.A.Y. had acclimated to the United States since her arrival in November of 2015. The magistrate judge rejected Mr. Calixto’s reliance on the travel consent form as proof that “his intent for M.A.Y.’s habitual residence to be the United States was conditioned on his ability to join [Ms. Lesmes] and M.A.Y. in the United States.” The district court adopted the magistrate judge’s report and denied the petition.
          The eleventh Circuit observed that the parties did not dispute that Mr. Calixto had custody rights regarding M.A.Y. under Colombian law, that he was exercising those rights, and that M.A.Y.’s retention in the United States, if wrongful, breached those rights. Ms. Lesmes did not deny that M.A.Y. habitually resided in Colombia from her birth through November of 2015. The critical question, was whether in November of 2016 M.A.Y. remained a habitual resident of Colombia or whether her habitual residence had changed to the United States. If it is the former, Mr. Calixto established a prima facie case requiring M.A.Y.’s return to Colombia. If it is the latter, M.A.Y.’s retention was not wrongful under the Convention, and Mr. Calixto’s petition fails.

          The Court indicated that in a slightly different Hague Convention context, it had considered whether a parent’s relocation with a child from one country to another was conditioned upon the occurrence of certain events, and whether the first country would remain the child’s habitual residence if those events did not come to pass (or, alternatively, whether there would be a change in the child’s habitual residence if the events took place as expected). See, e.g., Ruiz, 392 F.3d at 1254 (“Melissa’s intent with respect to the move to Mexico [with the children] was clearly conditional.”). Other circuits have done the same. In Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012), a father left Mexico for New York to find work, leaving behind his wife and six-month old daughter. Three years later, the mother and father arranged for the daughter to be smuggled into the United States and reunited with her father in New York, with the mother following afterwards. Although the daughter was successfully brought into the United States, the mother’s repeated efforts to enter were blocked, to the point where she was arrested and deported back to Mexico. The Second Circuit agreed with the district court that “it was more likely than not that [the mother] intended for [the daughter] to live in the United States only if she herself could join the household and continue to raise her child.” The Second Circuit revisited the issue of conditional intent in Hofmann v. Sender, 716 F.3d 282 (2d Cir. 2013) where the district court found that “although [the father] had consented to the children’s removal to the United States, that consent was a conditional one, contingent on his accompanying them and residing with them and [the mother] as a family in the United States.” The Second Circuit affirmed, agreeing that Canada remained the children’s habitual residence. Quoting Mota, the Second Circuit reiterated that “if the parents here did not agree that the children would live indefinitely in the United States regardless of their father’s presence, it cannot be said that the parents ‘shared an intent’ that New York would be the children’s state of habitual residence.” Although the parents had a shared intent to relocate to New York, “the extent to which that intent was shared was limited by [the father’s] conditional agreement that the relocation was to be accomplished as a family.” Mota and Hofmann were persuasive. The Eleventh Circuit held that the intent to change the habitual residence of a child from one country to another can be conditioned on the ability of one parent to be able to live in the new country with the child. In our view, there is no reason why such a conditional intent cannot be expressed in a document that permits the child to travel to her new country for a limited period of time. To the extent that the district court here believed that the travel consent form executed by Mr. Calixto could not render his intent about M.A.Y.’s habitual residence in the United States conditional, it was mistaken.

          Mr. Calixto and Ms. Lesmes disagreed about whether they shared an intent to change M.A.Y.’s habitual residence to the United States. Their dispute revolved around the status of their relationship in November of 2015, and the meaning of the November 2016 return date on the travel consent form. The district court did not resolve these factual disputes. On this record the Court did not believe that the district court could have decided the issue of M.A.Y.’s habitual residence without making factual findings about the state of the relationship between Mr. Calixto and Ms. Lesmes in November of 2015 and the meaning of the return date on the travel consent form. And it could not have resolved the matter of shared intent the way that it did by crediting Mr. Calixto’s testimony. It concluded that the district court had to resolve the conflicts between the accounts of Mr. Calixto and Ms. Lesmes in order to properly decide the question of M.A.Y.’s habitual residence. It directed the district court to also address on remand whether the evidence presented at the hearing provides either of the alternative means of establishing habitual residence as set forth in Ruiz, 392 F.3d at 1254. The case was remanded to the district court for further factual findings as set forth in this opinion.