White v White, --- F.3d ----, 2013 WL 2284877 (C.A.4 (Va.)) [Switzerland] [Rights of Custody]

In White v White, --- F.3d ----, 2013 WL 2284877 (C.A.4 (Va.)) the Fourth Circuit affirmed an order which denied the petition for return. Mr. White married Ms. White in Switzerland. Later that year, they had a son in Switzerland. In June 2010, Mr. White and Ms. White separated and Mr.White initiated legal proceedings in Switzerland pertaining to the separation, including rights to the couple's child. In October 2010, the Swiss Court of First Instance of Geneva authorized Mr. and Ms. White's legal separation and granted " custody of the child" to Ms. White. The court also granted visitation rights to Mr. White "two afternoons each weekend, to be expanded to one weekend in two, in agreement with the curator when the time comes." Mr. White learned of the April 24, 2011 departure of Ms. White and the child three days after they had left Switzerland. Ms. White left him a voicemail message saying that she had taken their son on a "holiday" in the United States. Ms. White subsequently claimed that she came to the United States to visit her sister and seek medical care for her son. Doctors in Switzerland had diagnosed the child with autism; in the United States, doctors later diagnosed him with a feeding disorder for which he had been receiving treatment. Since coming to the United States, the child was been present in the country continuously, except for a brief visit to Canada. At the time of the departure of Ms. White and the child to the United States, court- appointed psychologists in Switzerland were conducting an analysis of the parties and the child to assess custody arrangements. In July 2011, at which time Ms. White and the child had resided in the United States for three months, the psychologists issued their preliminary report. In it, they suggested that Ms. White suffered from psychological problems, which affected her ability to properly care for her son, and that the court should transfer custody of the child to Mr. White if her condition did not improve within six months. In September 2011, the Court of First Instance of Geneva issued an emergency ruling prohibiting Ms. White from leaving Switzerland with the child. However, in December 2011, the same court found that it did not have jurisdiction because Switzerland was no longer Ms. White and the child's usual place of residence. In February 2012, the Swiss tutelary court in Geneva also found that it lacked jurisdiction but noted that Ms. White had sole custody of the child and could therefore remove the child from Switzerland without authorization. On April 6, 2012, upon finding that Ms. White and the child were residing in Alexandria, Virginia, Mr. White brought this action in the United States District Court for the Eastern District of Virginia.

 Following a bench trial, the district court denied the petition for return finding that Mr. White did not establish by a preponderance of the evidence that his son's removal breached any rights of custody. The parties filed their appellate briefs in the fall of 2012 and the Court of Appeals heard oral argument in the case on March 20, 2013. One day later, Mr. White filed with it an order of the Court of First Instance of Geneva dated March 15, 2013. In that order, the Court of First Instance related that, in September 2012, Geneva's Court of Justice, an appellate court, found the Geneva courts did have jurisdiction to rule on protective measures for the child of Mr. and Ms. White. Accordingly, although Ms. White and the child remained in the United States and did not appear at the hearing before the Court of First Instance, in its March 2013 order the Court of First Instance purported to adjust its earlier custody arrangements to "[g]rant[ ] to Malcolm WHITE the custody of and parental authority over the child" and "[g]rant[ ] to Soudabeh WHITE a visitation right of the child." Because it was undisputed in this case that Switzerland was the child's habitual residence before his removal, Swiss law determined whether there was a breach of rights.

The Fourth Circuit found that the October 2010 separation order explicitly awarded "the custody of the child ... to Soudabeh WHITE."It reserved to Mr. White only the "right to visit the child ." This language clearly seemed to provide that Ms. White had sole custody and Mr. White had only a "right of access," i.e., a "right to take [the] child for a limited period of time to a place other than the child's habitual residence." Hague Convention art. 5(b). Under the Convention, breach of a right of access alone does not provide cause for return of a child. Mr. White contended, however, that the text of the separation order did not tell the full story because there was a background principle in Swiss law that parents share parental authority. See Code Civil [CC] [Civil Code] Dec. 10, 1907, SR 210, RS 210, art. 297 ("During marriage, the parents shall have joint parental authority."). Such parental authority includes joint responsibility for care, education, religion, and legal representation. See id. arts. 296-317. Although Swiss law does specify that, "if the spouses separate, the judge may assign parental authority to one of the spouses,"id. art. 297, in this case the October 2010 separation order did not specifically assign parental authority to either Ms. White or Mr. White. The court found that Swiss parental authority rights alone provide no basis for a wrongful removal action under the Convention. The Swiss Supreme Court has made clear that "subject to an abuse of rights," a parent who holds "exclusive custody is entitled to move with the children, and even abroad, without having to obtain for this the judge's authorization," or the authorization of the other parent. See Tribunal federal [TF] [Federal Supreme Court] June 1, 2010, 136 ATF III 353 P 3.3. This is true even when the other parent retains parental authority rights. See id. PP 3.4-3.5 ("[G]ranting sole custody to one of the parents [removes] from the other the right to decide on the residence ... of the children.... This means that the legal situation of the holder of the restricted parental authority does not suffer any prejudice within the meaning of [ Hague Convention] art. 3 ... if the holder of the exclusive right of custody moves the children out of Switzerland...."). In February 2012, the Swiss tutelary court applied the Swiss Supreme Court's teaching in this very case, explaining that, at the time of removal, "Mrs. Soudabeh WHITE [was] the only one who [held] custody of [her son,]" and "the bearer of sole custody may, breach of law excepted, move with the child, notably to a foreign country." The Court distinguished the out-of-circuit cases Mr. White cited in which courts found removal wrongful, ostensibly based on breach of parental authority-type rights. In none of those cases were the petitioning parent's rights subject to the removing parent's sole right to remove under a governing court order, as interpreted by the courts of the country of habitual residence. Moreover, in most of the cases Mr. White cited, unlike this one, the petitioning parent had a ne exeat right to prohibit the other parent from removing the child. The district court did not err in holding that Mr. White had not demonstrated that the removal of their child by Ms. White breached any parental authority rights he retained at the time of removal.

Mr. White maintained that Ms. White's removal "secretly and in the midst of a court-ordered psychological evaluation, was intended to compromise the Father's relationship with the child and threatened the child's well-being," constituting an "abuse of rights under Swiss law."The Swiss Supreme Court has held that "a relocation without reasonable grounds, that is to say only intended to compromise the personal relationships between the child and the other parent," may be an abuse of rights and consequently a breach of rights of custody under the Convention. See Tribunal federal 136 ATF III 353 P 3.3. Further, "the spouse who holds the right of custody may be barred from taking the child outside the country ... provided that the wellbeing of the person concerned is seriously threatened by this relocation."Id . However, under Swiss law, typical relocation and integration difficulties "do not normally constitute a serious threat" and so "there will rarely be a serious threat to the wellbeing of the child when he is still very young."Id. Whether there was an "abuse of rights" by Ms. White therefore hinged on the factual question of why she decided to leave Switzerland with the child and whether her decision to do so seriously threatened his well being. Ms. White testified at trial in the district court that she brought her son to the United States to see her sister and to seek medical treatment. The district court explicitly found Ms. White's explanation credible. The Court could not hold that the district court clearly erred in finding that Ms. White had legitimate reasons for coming to the United States. It therefore rejected Mr. White's contention that Ms. White's removal of the child from Switzerland constituted an abuse of her rights under Swiss law.

Mr. White relied on the Swiss Court of First Instance's very recent March 2013 order purporting to transfer custody of the child from Ms. White to Mr. White two years after the child's removal to the United States. Mr. White maintained that the new order "dramatically [a]ffects this case" and "confirms that the Swiss Court has always been in accord with [his] position." The Court held that the only reasonable reading of the Convention is that a removal's wrongfulness depends on rights of custody at the time of removal. Removal could not be considered in breach of rights of custody if those rights did not exist at the time of removal. Moreover, the Convention explicitly provides that removal is only wrongful when " at the time of removal " custody "rights were actually exercised ... or would have been so exercised but for the removal."Id. art. 3(b). Thus, courts have repeatedly assumed rights of custody for purposes of Article 3 of the Convention means rights of custody at the time of removal. Because the Court had ot previously addressed directly the question of whether a custody determination after removal affects a Hague Convention case, it looked also to the practice of our sister signatories and concluded that our sister signatories agree that orders claiming to adjust custody arrangements after removal or retention do not typically affect rights under Article 3 of the Convention. Accordingly, it held hold that the determination of whether removal is wrongful is based on rights of custody at the time of removal. The Swiss Court of First Instance's March 2013 order did not purport to reject the authenticity of, or retroactively alter, the previously governing October 2010 order granting Ms. White sole custody of the child. The October 2010 order, which was in effect at the time of the child's removal, therefore controlled this case.

Hofmann v Sender,--- F.3d ----, 2013 WL 1955846 (C.A.2) [Canada] [Habitual Residence] [Consent or Acquiesence]

In Hofmann v Sender,--- F.3d ----, 2013 WL 1955846 (C.A.2) the Petitioner–Appellee father initiated proceedings for return of his children to Canada. petitioner Adam Hofmann was a Canadian citizen. He was born, raised, educated, and continued to work in Montreal, Quebec. He was not a citizen of, nor did he have a visa to work in any other country. Respondent Abigail Sender was a United States citizen. She was born and raised in the United States and attended medical school beginning in 1999 at McGill University in Montreal, Quebec. She was formerly a permanent resident of Canada. At one time she applied for, but never received, Canadian citizenship. Hofmann and Sender met and began dating while they were residing in Montreal and serving as medical residents at McGill. Both parties earned medical degrees that were recognized as the equivalent of a comparable degree in the United States. Hofmann, however, was unable to work in the United States due to his immigration status. In Montreal, the parties attended the Spanish and Portuguese Synagogue. They were married there in February 2008 and lived together in Montreal as husband and wife until May or June of 2011. Their first son, R, was born in Montreal in January, 2009. After the baby's birth, Sender traveled to New York so that her family could help her care for the child. Id. In the fall of 2009, Hofmann took two months of unpaid leave in order to spend time with his wife and child at the home of his in-laws in New York. Id. At that time, Hofmann and Sender discussed their marital difficulties, including problems they were having with their families. They also discussed the possibility of having a second child and of relocating outside of Canada. Id. They took various trips to communities in New York and New Jersey in order to see whether any would make a suitable future home. They were particularly concerned about finding an Orthodox Jewish community where they could raise their family. The wife retained the children in New York on September 5, 2012,

The district court concluded that the parties' children were habitually resident in Canada; and although Hofmann 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 Sender as a family in the United States. The district court found, therefore, that the parties' last shared intent with respect to the children's residence was for the children to reside in Canada. (citing Mota v. Castillo, 692 F.3d 108 (2d Cir.2012)). The district court also concluded that the children had not become so acclimated to New York that a return to Canada would be harmful to them,, and because the wrongful retention of the children under the Hague Convention occurred on September 5, 2012, when Sender had Hofmann served with divorce papers, the affirmative defense that the children were well settled in the United States did not apply. The district court also found that the affirmative defenses of consent and acquiescence did not apply. The court granted Hofmann's petition and ordered that the children be returned to Canada, enabling the Canadian courts to determine issues of parental custody. Subsequently, the Quebec Superior Court, Family Division issued an order granting temporary sole custody to the Respondent–Appellant Sender and directing that the children be returned to New York. A further hearing is scheduled in Montreal on May 23, 2013. The Quebec Superior Court awarded Petitioner–Appellee Hofmann visitation and phone access rights.

On appeal, the parties did not dispute that Hofmann had custody rights under Quebec law, which he was exercising at the time the children were retained by Sender. To determine which country is a child's country of habitual residence under the Hague Convention, the Second Circuit applied the two-part test set forth in Gitter v. Gitter. There it held that: "First, the court should inquire into the shared intent of those entitled to fix the child's residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire 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, 396 F.3d at 134.

Here, the district court determined, that the last shared intent of the parties was that the children would reside in Canada. Correlatively, the court also found that at the time the parties were transitioning from Montreal to New York, Hofmann only intended the children to reside habitually in New York if he was also resident in New York with his children and his wife, as a family. The district court's decision was amply supported by the record, Turning to the law applicable to the resolution of this issue on appeal it observed that in Mota it considered whether the father's retention of a child was wrongful under the Hague Convention when the mother's consent to the child coming to the United States was conditional, based on the mother's also being able to join the child and the father in this country. In that case the child, Elena Mota, lived with her mother in Mexico until approximately the age of three. Mota, 692 F.3d at 110. When Elena was six months old, her father had entered the United States illegally to find work. In the spring of 2010 the family decided to attempt to reunite in New York. Id. The plan was to pay to have Elena smuggled across the border. Id. The mother would then attempt to cross the border herself, and mother and child would travel together to New York. Id. Elena was successfully smuggled into the United States, but her mother was unable to cross the border. Id. Elena was reunited with her father, who proceeded to keep her in New York. He subsequently took up residence with another woman, and he stopped sending money to Mexico to support Elena's mother. Elena's father then refused to return her to Mexico, and her mother filed a petition pursuant to Article 3 of the Convention seeking her return. On appeal, it held that the record supported the district court's determination that the mother's consent to Elena's remaining in New York was conditioned on the mother, father and Elena's living in New York together. Acknowledging the effect of the unmet condition precedent, it affirmed the district court's determination that the last shared intent of the parents regarding Elena's residence was that she live in Mexico. For purposes of the Convention, therefore, Mexico was the "State in which the child was habitually resident." Hague Convention Art. 3.

The decision in Mota directly controlled the outcome in this case. As the district court found, "the petitioner has demonstrated by his testimony and his actions that he intended for the children to relocate to New York on the condition that he would join the household and continue to be the father to his children and the husband to his wife." Just as in Mota, "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." Mota, 692 F.3d at 115. The district court properly determined under the Convention that the parties' last shared intention regarding the children's residence was that they live in Canada and for that reason the habitual residence of the children remained in Canada.

Turning to the second prong of the Gitter analysis, having concluded that the children were properly determined to be habitually resident in Canada, the court "inquire 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' last shared intent." Gitter, 396 F.3d at 134. "[C]ourts should be ‘slow to infer’ that the child's acclimatization trumps the parents' shared intent." Id. As it noted in Mota, "[i]t would frustrate the objectives of the Convention if a parent or guardian could secure an advantage in an anticipated custody dispute merely by whisking the child away to a foreign land, and retaining her there long enough to amass evidence of the child's acclimatization to the new location." A finding that this standard is satisfied is therefore only appropriate "in ‘relatively rare circumstances' in which a child's degree of acclimatization is ‘so complete that serious harm ... can be expected to result from compelling his [or her] return to the family's intended residence." Id. It was clear that the children had not become so acclimatized to life in New York that returning them to Canada would be tantamount to removing them from the environment where their lives had developed. While, at this point, the children had resided in New York for over a year, they moved and changed communities within New York recently. There was no basis to conclude that the district court clearly erred in finding that the children were not so acclimatized to life in the United States that a return to Canada would be harmful to them.



Article 13 of the Convention provides that "the judicial or administrative authority of the requested State is not bound to order the return of the child if ... the person ... having care of the person of the child ... consented to or subsequently acquiesced in the removal or retention." The court found that although Hofmann initially consented to the children's removal to the United States, that consent was conditioned upon his accompanying them and residing in this country as a family with his children and wife. "Article 13(a) does not provide that if a parent consents to removal of the child for a period, under certain conditions or circumstances, that retention of the child beyond those conditions or circumstances is necessarily permissible." Because the condition on which Hofmann consented to his children moving to the United States was not met, there was no basis to conclude that he consented to Sender's retention of the children in the United States. The potential defense under Article 13 of the Convention had no application to the facts of this case.

Sender's reliance on the "now settled" exception contained in Article 12 of the Convention was similarly unavailing. Article 12 provides, in relevant part, that: Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. By its terms, the "now settled" exception only applies where the child has been in the destination state for more than one year from the date of the wrongful removal or retention. The date of wrongful retention in this case was September 5, 2012, Because one year had not elapsed between the wrongful retention of the children and the institution of these proceedings under the convention, the district court's determination that the "now settled" exception did not apply was affirmed.

Vasconcelos v. Batista, 2013 WL 600200 (C.A.5 (Tex.)) [Brazil] [Age and Maturity]

In Vasconcelos v. Batista, 2013 WL 600200 (C.A.5 (Tex.)) Appellant Eduardo Henrique Vasconcelos petitioned for the return of his child, B.V., to Brazil.

B.V. was 13 years old at the start of district court proceedings in January 2011 and was now 15 years old. In 2005, B.V. was removed from her former place of residence, the State of Alagoas in Brazil, by her mother, Appellee Michelly De Paula Batista. Ms. Batista had primary custody over B.V. pursuant to a joint custody agreement with Mr. Vasconcelos. Ms. Batista and Mr. Vasconcelos were never married. Ms. Batista removed B.V. from Brazil without Mr. Vasconcelos's consent. After leaving Brazil, Ms. Batista moved with B.V. to Denton, Texas, where she married Rod Richards, who has been B.V.'s stepfather since.

The petition was brought before the District Court for the Eastern District of Texas. The hearing included an in camera interview between a magistrate judge and B.V., in which B.V. was represented by a guardian ad litem and in which she apparently stated her desire to remain in the U.S. and not to meet Mr. Vasconcelos. The District Court denied the petition. The Fifth Circuit affirmed.

The Fifth Circuit in a per curium opinion held that this appeal could be resolved under the Hague Convention's age and maturity exception, and it was unnecessary to discuss the threshold issue of whether Mr. Vasconcelos had established a prima facie case under the Convention. Like the district court, it assumed arguendo that Mr. Vasconcelos had custody rights under Brazilian law, and thus that he successfully established a prima facie case.

The Fifth Circuit observed that the Hague Convention provides that "[t]he judicial or administrative authority [considering a petition] may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Hague Convention art. 13. This age and maturity exception is to be narrowly construed and must be shown by a preponderance of the evidence. England v. England, 234 F.3d 268, 272 (5th Cir.2000) (citing §§ 11601(a)(4), 11603(e)(2)(A)). It concluded that the district court's findings with respect to this exception were not clearly erroneous. Whether the child has reached an appropriate age and degree of maturity is a factual determination and thus subject to clear error review. See Dietz v. Dietz, 349 F. App'x 930, 934 (5th Cir.2009). "[G]iven the reliance on live oral testimony, ‘the clearly erroneous standard is particularly strong because the judge had the opportunity to observe the demeanor of the witness[es].’ " Id. (quoting United States v. Santiago, 410 F.3d 193, 197 (5th Cir.2005)). "The Convention does not set an age at which a child is automatically considered to be sufficiently mature, rather the determination is to be made on a case-by-case basis." Tsai–Yi Yang v. Fu–Chiang Tsui, 499 F.3d 259, 279 (3d Cir.2007). B.V.'s age of 13 at the start of district court proceedings is consonant with that of other children whom courts have found to be of sufficient age and maturity for the purposes of this exception. Mr. Vasconcelos's only cogent argument regarding B.V.'s age and maturity was that Ms. Batista unduly influenced B.V.'s opinion and tainted B.V.'s judgment. In particular, Mr. Vasconcelos contended that "over the approximately 5 years since the abduction, [Ms. Batista] told B.V. that Mr. Vasconcelos was violent towards her and that he hit her, ‘gradually’ adding more detail to the story as B.V. became ‘able to absorb and process according to her age.’ " Mr. Vasconcelos cited the Third Circuit, which stated that "[i]n making its determination, a court should also consider whether a child's desire to remain or return to a place is ‘the product of undue influence,’ in which case the ‘child's wishes' should not be considered." Tsai–Yi Yang, 499 F.3d at 279.

The Court held that Mr. Vasconcelos's argument could not prevail under a clear error standard. First, even if it accepted that there was some evidence that B.V. had a skewed perception of Mr. Vasconcelos, it was not convinced that that evidence rose to the level of undue influence such that the district court clearly erred in its age and maturity findings. Notably, there was no evidence that Ms. Batista coerced B.V. into objecting to return. Ms. Batista's testimony reflected that she was sensitive to B.V.'s youth and did not want to influence B.V.'s opinions too soon. Even if B.V.'s perception of her biological father was one-sided, that one-sidedness stemmed in great part from the fact that Mr. Vasconcelos never reached out to B.V. from the time she was taken from Brazil up until the start of these proceedings, although he knew B.V.'s whereabouts, knew how to contact her, and had authorization to travel outside Brazil.

The Fifth Circuit disagreed with Mr. Vasconcelos's suggestion that B.V.'s in camera interview was an improper basis for the district court's age and maturity findings. The interview was conducted by the magistrate judge, during which B.V. was represented by an attorney ad litem. After the interview, the magistrate judge found that [I]t is appropriate to take into account BV's views here. Although softspoken and understandably shaken by the prospect of leaving the United States, she demonstrated an understanding of the proceedings and of her right to state her preferences. She was a good student, demonstrated clear cognitive abilities, and stated a desire to remain with her mother and stepfather. The Court found that her wishes were another basis to deny Petitioner's request for her return to Brazil." These findings were perfectly reasonable, and Mr. Vasconcelos had not argued that the interview was somehow defective under Texas law.

The question of whether B.V. was of sufficient age and maturity was a fact-intensive inquiry. Mr. Vasconcelos gave the Fifth Circuit no reason to second-guess the district court, which had a unique "opportunity to observe [the child] in person."

The Court pointed out that even if B.V. was of sufficient age and maturity for her views to be taken into account, the age and maturity exception is not satisfied unless B.V. also objects to her return. Hague Convention art. 13. Although there was no case law directly on-point, it was logical to assume that the question of whether B.V. objected is fact-intensive, and thus the district court's finding that she objected was subject to clear error review. See de Silva, 481 F.3d at 1287. A child's "generalized desire" to remain in the United States is "not necessarily sufficient to invoke the exception"; rather, the child must "include particularized objections to returning to" the former country of residence. Tsai–Yi Yang, 499 F.3d at 279.

Mr. Vasconcelos argued that the Hague Convention requires B.V. to "clear[ly] object" to her return to Brazil. To show that B.V. did not clearly object, he cited the district court's statements that B.V. only "expressed an interest to remain here," and that B.V. only "stated a desire to remain with her mother and stepfather." Inasmuch as Mr. Vasconcelos sought to argue that the Hague Convention requires an explicit objection from B.V., the Court found that the case law did not support him. If found that the Tenth Circuit's decision in de Silva undercut his argument. In de Silva, the Tenth Circuit affirmed the district court's finding that the age and maturity exception applied. The court quoted approvingly the findings of the magistrate judge, who conducted an in camera interview with the 13–year–old child. At no point in de Silva did the child explicitly object to being returned to his country of former residence, namely Canada. Nevertheless, the Tenth Circuit found it sufficient that the child was mature and had expressed his preference for staying in the United States. Therefore, de Silva contradicted Mr. Vasconcelos's contention that the child's objection need be explicit. The facts in de Silva contrast with those in Tsai–Yi Yang, in which the Third Circuit affirmed the district court's decision to not apply the age and maturity exception because of the child's "generalized desire to remain in" the United States. 499 F.3d at 279. Here, B.V. has not expressed a mere generalized desire or preference to stay in the United States. During her in camera interview with the magistrate judge, in which she was represented by an attorney ad litem, she specifically expressed that she did not want to visit her father while he was in the United States. She also "demonstrated an understanding of the proceedings and of her right to state her preferences" and she "stated a desire to remain with her mother and stepfather." Further, B.V.'s express desire to stay with her mother and stepfather in the United States does not derive merely from some generalized affinity for this country after having lived here a long time. Rather, she had particularized ties to the United States, whereas she had virtually no ties to Brazil and barely any knowledge of Mr. Vasconcelos, who had done nothing to communicate with her since she left Brazil. It was reasonable for the district court to conclude from these facts that B.V. did not simply "like" being in the United States, but specifically wished to stay here and to not be with Mr. Vasconcelos. It therefore concluded that the district court did not err in finding that B.V.'s statements constituted an objection within the meaning of the age and maturity exception.

Chafin v Chafin, --- S.Ct. ----, 2013 WL 598436 (U.S.) [Scotland][ Federal & State Judicial Remedies - Appeals - Mootness]

 In Chafin v Chafin, --- S.Ct. ----, 2013 WL 598436 (U.S.) Petitioner Jeffrey Lee Chafin was a citizen of the United States and a sergeant first class in the U.S. Army. While stationed in Germany in 2006, he married respondent Lynne Hales Chafin, a citizen of the United Kingdom. Their daughter E.C. was born the following year. Later in 2007, Mr. Chafin was deployed to Afghanistan, and Ms. Chafin took E.C. to Scotland. Mr. Chafin was eventually transferred to Huntsville, Alabama, and in February 2010, Ms. Chafin traveled to Alabama with E.C. Soon thereafter, Mr. Chafin filed for divorce and for child custody in Alabama state court. Towards the end of the year, Ms. Chafin was arrested for domestic violence, an incident that alerted U.S. Citizenship and Immigration Services to the fact that she had overstayed her visa. She was deported in February 2011, and E.C. remained in Mr. Chafin's care for several more months. In May 2011, Ms. Chafin initiated this case in the U.S. District Court for the Northern District of Alabama. She filed a petition under the Convention and ICARA seeking an order for E. C.'s return to Scotland. On October 11 and 12, 2011, the District Court held a bench trial. Upon the close of arguments, the court ruled in favor of Ms. Chafin, concluding that E. C.'s country of habitual residence was Scotland and granting the petition for return. Mr. Chafin immediately moved for a stay pending appeal, but the court denied his request. Within hours, Ms. Chafin left the country with E. C., headed for Scotland. By December 2011, she had initiated custody proceedings there. The Scottish court soon granted her interim custody and a preliminary injunction, prohibiting Mr. Chafin from removing E.C. from Scotland. In the meantime, Mr. Chafin had appealed the District Court order to the Court of Appeals for the Eleventh Circuit. In February 2012, the Eleventh Circuit dismissed Mr. Chafin's appeal as moot in a one-paragraph order, citing Bekier v. Bekier, 248 F.3d 1051 (2001). In Bekier, the Eleventh Circuit had concluded that an appeal of a Convention return order was moot when the child had been returned to the foreign country, because the court "became powerless" to grant relief. 248 F.3d, at 1055. In accordance with Bekier, the Court of Appeals remanded this case to the District Court with instructions to dismiss the suit as moot and vacate its order. On remand, the District Court did so, and also ordered Mr. Chafin to pay Ms. Chafin over $94,000 in court costs, attorney's fees, and travel expenses. Meanwhile, the Alabama state court had dismissed the child custody proceeding initiated by Mr. Chafin for lack of jurisdiction. The Alabama Court of Civil Appeals affirmed, relying in part on the U.S. District Court's finding that the child's habitual residence was not Alabama, but Scotland.

 The Supreme Court in an opinion for a unanimous Court by Chief Justice Roberts held that father's appeal from the order entered by the district court was not rendered "moot" by fact that mother had returned with daughter to Scotland, abrogating the Eleventh Circuit opinion in Bekier v. Bekier, 248 F.3d 1051. It held that a case "becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party. As long as the parties have a concrete interest, however small, in the outcome of t he litigation, the case is not moot. Because the Chafins continued to vigorously contest the question of where their daughter will be raised, this dispute was very much alive. This case did not address "a hypothetical state of facts," ,and there continued to exist between the parties "that concrete adverseness which sharpens the presentation of issues. Mr. Chafin sought typical appellate relief: reversal of the District Court determination that E. C.'s habitual residence was Scotland and, upon reversal, an order that E.C. be returned to the United States. The question was whether such relief would be effectual. In arguing that this case was moot because the District Court has no authority to issue a re-return order either under the Convention or pursuant to its inherent equitable powers, Ms. Chafin confused mootness with the merits. Mr. Chafin's claim for re-return could not be dismissed as so implausible that it is insufficient to preserve jurisdiction, and his prospects of success are therefore not pertinent to the mootness inquiry. As to the effectiveness of any relief, even if Scotland were to ignore a re-return order, this case would not be moot. The U.S. courts continue to have personal jurisdiction over Ms. Chafin and may command her to take action under threat of sanctions. She could decide to comply with an order against her and return E.C. to the United States. Enforcement of the order may be uncertain if Ms. Chafin chose to defy it, but such uncertainty does not typically render cases moot.

 Mr. Chafin also sought vacatur of the District Court's expense orders. That too is common relief on appeal, and the mootness inquiry comes down to its effectiveness. In contending that this case is moot due to Mr. Chafin's failure to pursue an appeal of the expense orders, which were entered as separate judgments, Ms. Chafin again confused mootness with the merits. Because there is authority for the proposition that failure to appeal such judgments separately does not preclude relief, it is for lower courts at later stages of the litigation to decide whether Mr. Chafin is in fact entitled to the relief he seeks. That relief would not be " 'fully satisfactory,' " but "even the  availability of a 'partial remedy' is 'sufficient to prevent [a] case from being moot.

 Justice Roberts noted that manipulating constitutional doctrine and holding these cases moot is not necessary to achieve the ends of the Convention and ICARA, and may undermine the treaty's goals and harm the children meant to be protected. If these cases were to become moot upon return, courts would be more likely to grant stays as a matter of course, to prevent the loss of any right to appeal. Such routine stays would
 conflict with the Convention's mandate of prompt return. He stated that Courts should apply the four traditional stay factors in considering whether to stay a return order: " '(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.' " Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987)). In every case under the Hague Convention, the well-being of a child is at stake; application of the traditional stay factors ensures that each case will receive the individualized treatment necessary for appropriate consideration of the child's best interests. He pointed out that “Importantly, whether at the district or appellate court level, courts can and
 should take steps to decide these cases as expeditiously as possible, for the sake of the children who find themselves in such an unfortunate situation. Many courts already do so....Cases in American courts often take over two years from filing to resolution; for a six-year-old such as E. C., that is one-third of her lifetime. Expedition will help minimize the extent to which uncertainty adds to the challenges confronting both parents and child.

 The judgment of the United States Court of Appeals for the Eleventh Circuit was vacated, and the case was remanded for further proceedings consistent with the opinion.

Ozaltin v Ozaltin, 708 F.3d 355 (2d Cir. 2013) [Turkey] [Rights of Access] [Attorney Fees]

 In Ozaltin v Ozaltin, 708 F.3d 355 (2d Cir. 2013), in December 2010, when the Ozaltins stopped cohabitating in Turkey, the Mother took the children to reside with her in New York City. ) Petitioner-appellee Nurettin Ozaltin ("the Father") brought suit seeking the return of his two minor children to Turkey, as well as an order enforcing his rights under Turkish law to visit the children as long as they stayed in the United States with their mother, respondent-appellant Zeynep Tekiner Ozaltin ("the Mother"). In an order dated June 5, 2012, the district court ordered that the Mother return the children to Turkey by July 15, 2012; allow the Father to visit with the children in the United States on alternating weekends prior to their return to Turkey (the "access order") in compliance with a prior order of a Turkish court; and (3) pay the Father's necessary expenses in bringing the suit (the "costs award"). In re S.E.O., 873 F.Supp.2d 536, 546 (S.D.N.Y.2012). Although the Mother returned the children to Turkey on July 15, 2012, she appealed from the District Court's order arguing that her removal of the children from Turkey in 2011 was not "wrongful" under the terms of the Hague Convention because it was authorized by the Third Family Court in Uskudar (the "Third Family Court")-a Turkish court that has been handling the Ozaltins' divorce and child-custody proceedings since February 9, 2011; that the District Court lacked jurisdiction to consider the Father's claim for visitation; and that awarding necessary expenses would be improper both because she should prevail on the merits with respect to the return order, and because of the particular circumstances of this suit.

 The Second Circuit affirmed the District Court's return order and vacated the costs award. It held that (1) The petitioner met his burden of showing that he retained custody rights under Turkish law, and that respondent ( Mother) removed the children from Turkey in interference with his exercise of those rights. (2) Federal law creates a private right of action to enforce access rights protected under the Hague Convention. See 42 U.S.C. § 11603(b). (3) When a district court considers awarding costs to a prevailing petitioner who obtains a return order under the Hague Convention, the court shall award "necessary expenses" relating to the action unless doing so would be "clearly inappropriate." 42 U.S.C. § 11607(b)(3). This standard is discretionary in
 nature and is governed by general equitable principles. (4) In the circumstances of this case, an award of all necessary expenses would be "clearly inappropriate."It remanded the cause to the District Court to determine appropriate costs in the first instance.

 Nurettin and Zeynep Ozaltin (the Father and Mother, respectively) were dual citizens of Turkey and the United States. They were married in 2001 and had two daughters, S.E.O. (age 9) and Y.O. (currently, age 7), who were also dual citizens of Turkey and the United States. Prior to December 2010, the children resided primarily in Turkey, where they attended school. The Mother alleged that in December 2010, she and the Father got into a heated argument about his purported drinking problem, and that during that argument he threatened her and told her to take their two children and leave. Within a day, the Mother and the children flew to New York City, where the Mother had family. The Mother alleged that during a layover in Europe, she spoke on the phone with the Father, who angrily told her that she and the children should stay in the United States. About two weeks later, on January 7, 2011, the Father filed an application with the Turkish Ministry of Justice seeking the return of the children to Turkey pursuant to the Hague Convention. On February 9, 2011, the Mother initiated divorce proceedings in the Third Family Court in Uskudar. In May 2011, the Father petitioned the Third Family Court for "the court to provisionally grant [him] the parental custody of the children." In the alternative, he requested "an order that [would] require [ ] the children to be brought to Turkey and [would] grant[ ] [him] visitation rights." On May 13, 2011, the Third Family Court declared that the Father's "request for grant of provisionary parental custody is rejected at this point," but it granted him "the possession of the children from 10 am on Saturdays until 12 pm on Sundays every first and third weeks of the month if he goes to the USA." The Father exercised his visitation rights in New York several times between May and August 2011. On March 30, 2012, the Third Family Court rejected another request by the Father for temporary custody, but it ordered that he be allowed to visit with the children on alternating weekends in the United States pursuant to the same visitation schedule that the court had ordered on May 13, 2011.

 On March 30, 2012 the Father filed this action under 42 U.S.C. § 11603(b), seeking an order enforcing his visitation rights, pursuant to Article 21 of the Hague Convention. Article 21 provides:

 An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfillment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.

 The father also sought an order requiring the Mother to return the children to Turkey, pursuant to Article 12 of the Hague Convention; and a costs award in an amount to be determined at the end of the litigation, pursuant to Article 26 of the Hague Convention. Article 26 provides, in relevant part:

 Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.

 In April and May of 2012 the District Court held evidentiary hearings. Both the Father and the Mother proffered testimony by Turkish legal experts as to the parties' respective custody rights. The District Court issued it’s a memorandum opinion and order on June 5, 2012, requiring the Mother to (1) comply with the Turkish court's visitation order, (2) return the children to Turkey by July 15, 2012, and (3) pay the Father for any "necessary expenses" incurred in connection with the suit.

 On July 15, 2012, the Mother returned the children to Turkey pursuant to the District Court's order. Since then, Turkish courts have issued several orders pertinent to questions raised in this appeal. On September 14, 2012, the Court of Appeals granted the Father's unopposed motion to take judicial notice of these recent Turkish orders.

 The Court of Appeals observed that for the purposes of this appeal, the pivotal issue was whether the Third Family Court actually exercised its authority to award custody to one of the parties, either by granting sole custody rights to the Mother, or by redefining the parents' respective rights such that the Mother could take the
 children to the United States without breaching the Father's custody rights. (Turkish Civil Code available at http:// www. hcch. net/ upload/ abduct 2011 cp_ tr 1. pdf (website of the Hague Conference on Private International Law). It found that the district Court's conclusion that the Father retained custody rights under Turkish law was well-founded. The Turkish Ministry of Justice-the Turkish "Central Authority" within the meaning of the Hague Convention submitted a letter to the U.S. Department of State explaining that "although there is a pending divorce case between the parents before the Family Court in Uskudar, the parents still have joint-custody rights and at the time of the wrongful removal they also use[d] to exercise those rights." The Ministry of Justice explained that the Mother, therefore, was "in breach of [the Father's] rights of [ ] custody under the law of Turkey in which the children were habitually resident before the removal." The Mother disputed this conclusion, arguing that the Ministry of Justice was not aware of the various orders of the Third Family Court in Uskudar purportedly granting (or at least endorsing) her custody of the children. Be that as it may,
 a removal under the Hague Convention can still be "wrongful" even if it is lawful. The evidence offered at trial showed that the Father retained custody rights-including the right to determine the children's residence-under Turkish law, even if the Mother had primary custody of the children. Most importantly, the Mother did not point to an order of the Third Family Court explicitly recognizing her sole custody of the children, or explicitly recognizing her right to remove the children to the United States without breaching the custody rights of the Father. The Court held that he children were wrongfully removed under the Hague Convention, and it affirmed the District Court's return order.

 The District Court awarded to the Father "any necessary costs ... incurred in connection with this action. The Mother argued that "federal courts lack subject matter jurisdiction over claims seeking to enforce rights of access." She claimed, petitioners may seek to enforce rights of access only in state court or through the State Department, which is the United States's designated "Central Authority" under the Hague Convention. The Court found that the Mother's argument was not jurisdictional in nature but instead goes to whether 42 USC § 11603(b) creates a federal right of action. Disagreeing with the Fourth Circuit, which held that it does not, (Cantor v. Cohen, 442 F.3d 196 (4th Cir.2006), it found that the statutory basis for a federal right of action to enforce access rights under the Hague Convention was in the implementing legislation. According to the enacting legislation, "[t]he courts of the States and the United States district courts shall have concurrent original jurisdiction of actions arising under the [Hague] Convention." 42 U.S.C. § 11603(a). The statute then announces the actions falling within that category: Any person seeking to initiate judicial proceedings under the Convention for the return of a child or for arrangements for organizing or securing the effective exercise of rights of access to 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.. 42 USC § 11603(b). The statute provides for the relevant burden of proof in access cases: "A petitioner in an action brought under subsection (b) of this section shall establish by a preponderance of the evidence ...in the case of an action for arrangements for organizing or securing the effective exercise of rights of access, that the petitioner has such rights." 42 USC § 11603(e)(1)(B) These statutory provisions straightforwardly establish that a petitioner may "initiate judicial proceedings under the Convention ... for organizing or securing the effective exercise of rights of access to a child," and that "United States district courts shall have concurrent original jurisdiction" over such actions. Moreover, § 11603(e)(1)(B) underscores that actions arising under the Convention include "an action for arrangements for organizing or securing the effective exercise of rights of access." Accordingly, s 11603 unambiguously creates a federal right of action to secure the effective exercise of rights of access protected under the Hague Convention. The Hague Convention explicitly recognizes that if a Contracting State provides a judicial forum, petitioners seeking to enforce access rights may initiate judicial proceedings directly: This Convention shall not preclude any person ... who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention. Hague Convention, art. 29. Thus, initiating a petition with a State's Central Authority "is a nonexclusive remedy" for enforcing access rights. Article 29 permits the person who claims a breach of custody or access rights, as defined by Articles 3 and 21, to bypass the Convention completely,
 by invoking other applicable laws or procedures, such as provisions in ICARA. In sum, even though not required under Article 21, federal law in the United States provides an avenue for aggrieved parties to seek judicial relief directly in a federal district court or an appropriate state court.

 The Court of Appeals observed that the Hague Convention provides that "[u]pon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child ... to pay necessary expenses incurred by ... the applicant." Hague Convention, art. 26. These "necessary expenses" may include "travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child." ICARA provides that: Any court ordering the return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. Although Article 26 of the Hague Convention provides that a court "may" award "necessary expenses" to a prevailing petitioner, § 11607(b)(3) shifts the burden onto a losing respondent in a return action to show why an award of "necessary expenses" would be "clearly inappropriate." Nonetheless, § 11607(b)(3) retains what we the Court had previously described as the "equitable" nature of cost awards. Accordingly, a prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of equitable principles by the district court. Absent any statutory guidance to the contrary, the appropriateness of such costs depends on the same general standards that apply when "attorney's fees are to be awarded to prevailing parties only as a matter of the court's discretion." There is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised in light of the relevant considerations. It vacated the District Court's award of "any necessary costs [that the Father] incurred in connection with this action," In re S.E.O., 873 F.Supp.2d at 546, because the Mother had a reasonable basis for removing the children to the United States. It also had concerns that, contrary to the spirit of the Hague Convention, the Father may have engaged in forum shopping with respect to certain aspects of the suit. While the Turkish court orders did not justify the Mother's removal of the children to the United States, they nonetheless suggested that her actions did not "run counter to the Convention's purpose of deterring child abductions by parents who attempt to find a friendlier forum for deciding custodial disputes." In its view, an award of full expenses was unwarranted in light of the Mother's reasonable basis for thinking that she could remove the children from Turkey
 

Ermini v Vittori, 2013 WL 1703590 (S.D.N.Y.) [Italy] [Grave Risk of Harm]

In Ermini v Vittori, 2013 WL 1703590 (S.D.N.Y.) Emiliano Ermini ("Petitioner"), an Italian citizen, petitioned the seeking the return of his two sons to Italy alleging that the two boys, E.E., age 9, and D.E. age 7, who were Italian citizens, had been retained in the United States by their mother, Respondent Viviana Vittori ("Respondent"), also an Italian citizen, without Petitioner's consent. After a trial the district Court denied the petition without prejudice to renewal if D.E. was not able to continue with his current CABAS program and the Italian court system issued a final order requiring the return of the children to Italy. Petitioner's request for an award of legal fees and costs and expenses was also denied.

Petitioner and Respondent, the parents of E.E. and D.E., were married in Italy in July 2011. Respondent had initiated divorce proceedings in Italy and the parties were now legally separated. The family came to the United States in August 2011 in connection with efforts to secure effective medical and rehabilitative treatment for D.E., who was autistic. D.E. was diagnosed with autism on March 14, 2008, when he was approximately two years old. Petitioner and Respondent were both committed to helping D.E. and took him to various doctors in Italy as well as abroad in Scotland for medical treatment. When Petitioner and Respondent's own resources were inadequate to pay for the treatments, they solicited donations through a website and a blog about D.E. Dr. Antonucci was D.E.'s primary treating professional in Italy from December of 2008 until May of 2010. One of the treatments that Dr. Antonucci recommended for D.E. was hyperbaric oxygen therapy, which was eventually administered in a hyperbaric chamber installed in the family home in Velletri, Italy. He also treated D.E. for gut inflammation, heavy metal intoxication and viral issues believed to be underlying physical causes of autism. D.E.'s "support teacher" at his school in Italy did not know any specific techniques for treating children with autism. On their own initiative, Petitioner and Respondent attended training in Applied Behavioral Analysis ("ABA") techniques at a private institution, Pianeta Autismo, and Respondent attended three additional courses. With the permission of the principal of D.E.'s school, Respondent spent two hours each day at D .E.'s school, instructing the support teacher in the ABA techniques. Petitioner and Respondent also consulted with another doctor in Italy, Dr. Claudia Lerz, to develop an ABA treatment plan for D.E. According to Respondent's expert, Dr. Fiorile, ABA therapy is "the most common treatment" for children with autism in the United States and it can have an enormous impact on the life of an autistic child Dr. Antonucci also endorsed ABA treatment. Respondent estimated that she personally provided 70-80% of D.E.'s thirty to forty weekly hours of ABA treatment while the family were living in Italy. Professional ABA treatment would have been preferable but very expensive. The Italian national health care system covered 90 minutes a week of psychomotility therapy for D.E. for the first year after his autism diagnosis, with an extra 90 minutes of speech therapy during the second year, but did not pay for other types of treatment or therapy for D.E. Both Respondent and Petitioner were unhappy with the options for D.E.'s schooling and therapy in Italy as they did not see results in D.E.'s developmental progress. They began to look elsewhere for treatment options, and in October of 2009, the family traveled to Florida for a week, at the recommendation of Dr. Antonucci, to consult with an American doctor about therapies available for D.E. in the United States. In April or May of 2010, Petitioner and Respondent met Dr. Giuseppina Feingold in Italy. Dr. Feingold was an Italian-speaking pediatrician with a practice in Suffern, New York, who focused on children with special needs. In August of 2010, Petitioner and Respondent traveled with E.E. and D.E. to Suffern, New York, so that Dr. Feingold could assess and begin treating D.E. The family stayed with Respondent's first cousins, John and Patricia Tempesta, at their home in Ridgefield, Connecticut. During that August 2010 visit, they met other parents at Dr. Feingold's clinic, who told them about provisions for special needs children at the local schools in the Suffern area. Both Respondent and Petitioner were impressed
by the treatment options available for D.E. in the United States. Around this time, Petitioner and Respondent began to formulate a plan for the family to move to the United States for two or three years, during which time Petitioner and Respondent could decide if it would be possible and appropriate to make a permanent move to the United States. Meanwhile, Petitioner began meeting with Marcello Russodivito, to whom he had been introduced through one of Mr. Tempesta's contacts, about potentially investing in Mr. Russodivito's restaurant so that he could obtain a business visa for himself and derivative ones for his family, which would allow them to pursue treatment for D.E. in the United States. Mr. Russodivito understood that Petitioner planned to fund the restaurant investment by selling the family's house in Italy.

On September 2, 2011, Petitioner and Respondent co-signed a one-year lease for a house near Mr. Russodivito's restaurant. On September 15, 2011, Respondent, E.E. and D .E. moved into that house. In October, Mr. Russodivito arranged for one of his employees, Pasquale Ruggiero, to share the house with them. In September and November, E.E. and D.E. were enrolled in the local public schools. In an email to Respondent at the time, Petitioner said that they should ship "books, clothing, any furniture we can't sell, ornaments, dishes, sheets, blankets" in a cargo container from Italy to the United States. Petitioner also researched the cost of shipping D.E.'s hyperbaric oxygen chamber. On September 13, 2011, Petitioner wrote to the U.S. Consulate in Rome to apply for visas for himself and his family for the purpose of "explor[ing] the possibilities of entering into a business partnership with Mr. Marcello Russodivito who already owns an established Italian restaurant in the city of Suffern, NY. I also wish to request a B-2 visa for my wife and 2 children, who will accompany me in this trip to the United States." Respondent traveled with the two children to Italy to renew their United States visas in November 2011 and then the children and Respondent returned to Suffern, while Petitioner went to Italy to finish settling the family's affairs. Petitioner did not return to the United States until December 2011.

Meanwhile, on September 20, 2012, Petitioner applied to the Italian court for an order directing the Respondent to return with the children to Italy and provisions for visitation with the children. With only Petitioner in attendance, the court in Velletri ordered Respondent to return to Italy with the children and also ordered temporary measures including that Petitioner and Respondent would live separately but share parental authority; that Respondent and the children would live in the family home; that Petitioner could visit 8–12 hours per week; and that Petitioner would pay spousal and child support of 1,600 Euros per month. At the time of trial, Respondent had not complied with the Italian court's order to return to Italy with the children, nor had there been visitation or any other contact between Petitioner and the children. Respondent appealed the Velletri Court's order and, on April 5, 2013, the Court of Appeals in Rome vacated several provisions of the September 20, 2012, Order and granted Respondent exclusive custody of the children. The April 5, 2013, Order, also withdrew the Velletri Court's prior order requiring that Respondent return to Italy, revoked the award of the family home to Respondent, and revoked the Petitioner's visiting rights and rights of access to the children. Although the April 5, 2013, Order provided Respondent with exclusive custody of the children, it did not necessarily moot Petitioner's application to the district Court because it was a temporary order, which appeared to have been designed, at least in part, to conform to Family Court protective orders in the United States, which are were in effect until 2014. It expressly contemplated further investigative and adjudicative proceedings in the lower court.

Petitioner again left for Italy in early January 2012, following an altercation with Respondent . The two children had not left the United States since November of 2011, but Respondent left the country again in April 2012, to attend court proceedings in Italy. On December 1, 2012, Respondent and the two children moved to their current residence in Suffern with Mr. Ruggiero. Petitioner never relocated to the United States.

D.E. was severely autistic and had only a limited capacity for speech. He did not appear in court. Respondent and Mr. Ruggiero took care of feeding D.E., grooming him and ensuring that he was supervised and occupied. According to Respondent and to Dr. Fiorile, D.E. had significantly progressed in his school environment in the United States and was moving closer to being able to lead an independent life. When he first began school in the United States, D.E.'s test results were far below average; at age six, he presented with the fine motor skills of a three year old. Dr. Fiorile opined that D.E. performed poorly on the testing because his Italian treatments had been deficient. According to Dr. Fiorile, the CABAS program, which D.E. currently attended at a school in Stony Point, New York, offered the best ABA curriculum available to autistic children. Dr. Fiorile testified that D.E. had "one-to-one instruction" throughout the day and had made "exceptional progress" Dr. Fiorile explained that the high level of intervention in D.E.'s current classroom setting was the key to his success. Dr. Fiorile further opined that D.E. required a program like the one in which he was currently enrolled to continue to making meaningful progress in, among other things, cognition, language, social and emotional skills. Dr. Fiorile further opined that, if D.E. "were to be removed from this educational program and not provided this intensity of educational programming that's being provided by highly skilled and trained professionals" he will face "a severe loss of the skills he has successfully developed since beginning in CABAS ...." (“CABAS” is an acronym for Comprehensive Application of Behavioral Analysis to Schooling and it is “an intensive, data-driven specialized ABA program.” ) While the United States has over 4,000 board certified ABA practitioners, Dr. Fiorile knew of fewer than twenty in Italy. Dr. Fiorile concluded in her January 11, 2013, Report, admitted into evidence at trial, that if D .E. was separated from his CABAS program, he "will most certainly fail to make the same level of progress and will, without doubt, demonstrate significant skill regression" and that it would be "extremely harmful" to return him to Italy at this time. The Court found that separating D.E. from the CABAS program, while it remained available to him, would put him in an intolerable situation due to the grave risk of deterioration of his condition and denial of needed rehabilitation.

Respondent testified that she and the children did not currently have legal immigration status in the United States, as they overstayed their visas in April of 2012. In October or November of 2012, Respondent applied for a visa for herself and the children on the basis of the domestic abuse that she suffered. Her application was currently pending.

The district court found that Petitioner and Respondent intended to move to the United States as a family for a period of two to three years, during which time medical and rehabilitative treatments would be pursued for D.E., and also agreed that it was possible that the move would be made permanent at the end of the three-year period, circumstances permitting. Notwithstanding the plan to sell their house in Italy to fund the restaurant investment, there was no agreement to abandon the family's ties to Italy.


The court concluded that the children's habitual residence for Hague Convention purposes at the time of their retention in the United States was Italy. The Court took judicial notice of Title IV, Italian Civil Code of Law, Art. 316 ("[a] child is subject to the authority of its parents until majority ... or emancipation. The authority is exercised by both parents by mutual agreement") and Title IV, Italian Civil Code of Law, Art. 144 ("[t]he spouses agree between them the pattern of family life and fix the residence of the family according to the requirements of both and to those prevailing for the family. Each of the spouses has the authority to implement the agreed pattern"). Thus, Petitioner had rights of custody under Italian law in April 2012, when the retention of the children in the United States began. It also found that the Petitioner had been exercising his rights and the he had established a prima facie case for return.

Nevertheless, the district court found by clear and convincing evidence that, because D.E. was severely autistic, he faced a grave risk of harm if he had to return to Italy, as the return would severely disrupt and impair his development. It observed that in this Circuit, courts have emphasized the severity of the psychological or physical harm required under the "grave risk of harm" affirmative defense. See, e.g., Reyes Olguin v. Cruz Santana, No. 03 Civ. 6299 JG, 2005 WL 67094, at *6 (E.D.N.Y. Jan.13, 2005) ("[t]here is a spectrum of harms a repatriated child may suffer. At one end 'are those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities, or not comport with the child's preferences; at the other end of the spectrum are those situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation' "). Because "returning a child is likely to present adjustment concerns in almost every Convention case," the Court should examine whether the child is likely to "suffer
long-term permanent harm if returned." In re Lozano, 809 F.Supp.2d at 222.

D.E. had the fine motor skills of a child half his age when he first came to the United States. He was enrolled in a premier ABA school program and had made significant developmental progress. Dr. Fiorile had proferred credibly that, if D.E. left the Stony Point CABAS program even temporarily, he would face a significant regression in his skills and that without such an intensive, structured program, D.E. would not develop the cognitive, language, social, emotional and independent living skills that he was likely to acquire through such a program. Petitioner did not present any testimony controverting Dr. Fiorile's considered assessment. Respondent had also proven that there was a significant lack of resources in Italy for treating autism as compared to those available in the United States. D.E. had multiple doctors in Italy who were involved in his care including, Dr. Nicola Antonucci and Dr. Claudia Lerz. However, he met with most of these doctors infrequently and none of them were able to provide the intensive behavioral instruction that D.E. had been able to receive in the United States. There was no indication that D.E. could ever obtain the treatment and resulting positive prognosis that he has gained through the CABAS program were he to return to Italy. The Court found that the predicted deterioration in D.E.'s cognition, social skills and self-care if D.E. was separated from the CABAS program, to which Dr. Fiorile had testified, constituted psychological and physical harm sufficient to establish the "grave risk of harm" affirmative defense. As even a brief separation from the CABAS program would likely lead to a severe regression in D.E.'s progress, Respondent had shown by clear and convincing evidence that returning D.E. to Italy and separating him from the CABAS program posed a grave risk of harm to D.E. and would place him in an intolerable situation.

The testimony at trial established by clear and convincing evidence that E.E. and D.E. had a loving and close relationship and enjoyed spending time in each other's company. It was also established that E.E. helped his mother in caring for his brother. The district court observed that Courts in this Circuit have frequently declined to separate siblings, finding that the sibling relationship should be protected even if only one of the children can properly raise an affirmative defense under the Hague Convention. See, e.g., Blondin, 78 F.Supp.2d 283, 291 (S.D.N.Y. Jan.12, 2000) (declining to separate children because "children's relationships with their siblings are the type of intimate human relationships that are afforded a substantial measure of sanctuary from unjustified interference by the state") (quoting Aristotle P. v. Johnson, 721 F.Supp. 1002, 1005-06 (N.D.Ill.1989)); Broca v. Giron, No. 11 CV 5818(SJ)(JMA), 2013 WL 867276, at *9 (E.D.N.Y. Mar. 7, 2013) (deciding not to "further fracture the family unit" and separate the siblings). D.E. would face a significant disruption of his routine and general happiness were his older brother to return to Italy. Such a separation was also likely to harm E.E., since the one parent with whom he had a good relationship would have to remain in the United States to care for D.E. Having found that D.E. would face a grave risk of harm if separated from the CABAS program and repatriated to Italy, the Court would not separate the two brothers. Therefore, the Petition was denied as to both children, without prejudice to renewal if D.E. was no longer able to participate in the CABAS program and if the Italian court system issued a final order requiring the return of the children to Italy.

Filipczak v Filipczak, 2013 WL 692694 (2d Cir 2013) [Poland] [Federal & State Judicial Remedies] [Well Settled]

In Filipczak v Filipczak, 2013 WL 692694 (2d Cir 2013)(not selected for publication in the Federal Reporter) Respondent Yashmun Filipczak, the Mother, appealed from the judgment of the United States District Court for the Southern District of New York finding that Poland was the country of habitual residence for the Mother's two minor children and ordering the children's return to Poland. Petitioner Wojciech Filipczak, the Father, brought the case against her under the International Child Abduction Remedies Act (“ICARA”). At trial, the Mother did not contest that she had wrongfully removed the children from Poland, but argued that she qualified for two exceptions to the Hague Convention's repatriation requirement: (i) that the children would face “grave risk” to their well being in Poland, Hague Convention, art. 13(b), and (ii) that the children were “well settled” in the United States, Hague Convention art. 12. In a decision and order dated December 23, 2011, the United States District Court for the Southern District of New York rejected the Mother's contentions and ordered that the children be returned to Poland.


The Second Circuit Court of Appeals affirmed. While the Mother was represented by counsel in the District Court, she appears pro se on appeal. Thus, it construed her submissions to the Court liberally and interpret them to raise the strongest arguments they suggest. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).
The Mother raised several arguments on appeal, all of which were without merit. First, she claimed that her removal of the children from Poland was not wrongful because she was forced to leave Poland due to the expiration of her visa. The Mother, however, failed to raise this argument before the trial court. Because the Mother gave no justification for her failure to make this argument below, the Court would not consider it for the first time on appeal. Bogle–Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir.2006) (“[I]t is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.”). She also alleged a number of defects in the evidence presented to the District Court, including failure to authenticate e-mails between her mother and the Father, bias on the part of the guardian ad litem, and failure to conduct cross-examination of several witnesses. These arguments were also presented for the first time on appeal, without any explanation as to why they were not raised below, and the Court refused to consider them for the same reasons.

Finally, the Mother argued that the children had stronger ties to the United States than they did to Poland, and therefore should be permitted to remain. It held that this misconstrues Article 12. The standard under that provision does not call for determining in which location the child is relatively better settled, but rather for determining whether the child has become so settled in a new environment that repatriation would be against the child's best interest. Blondin, 238 F.3d at 164. The Mother made no such showing.