Skolnick v. Wainer, (Cite as: 2013 WL 5329112 (E.D.N.Y.)) [Singapore] [Federal & State Judicial Remedies] [Jurisdiction][Venue]

In Skolnick v. Wainer, (Cite as: 2013 WL 5329112 (E.D.N.Y.)) Fred Jay Skolnick commenced an action on August 21, 2013, for the return of his five children from Singapore by respondent, Andrea Wainer, his wife, claiming that the removal violated the Hague Convention. Petitioner asserted that the Court had jurisdiction pursuant to 42 U.S.C. 11603(a) and (b), since "Petitioner and Respondent jointly own residential property in this judicial district and ... the children that are the subject of this action were transported into the United States through airports located in ... Queens, New York." At a conference on September 3, 2013, the Court reiterated concern that the action was not properly brought in this district in light of evidence that the children had been residing in Connecticut since before the commencement of the action. Respondent moved for a change of venue. Petitioner filed a letter motion to change venue. It appeared that both sides agreed to transfer the action.

The court observed that Congress enacted ICARA to establish procedures for implementation of the Convention in the United States. ICARA provides that a "person seeking to initiate judicial proceedings under the Convention for the return of a child... may ... commenc [e] 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 U.S.C. § 11603(b). "Located" under ICARA does not require a showing of residency but contemplates the place where the abducted children are discovered. See Lops v. Lops, 140 F.3d 927, 937 (11th Cir.1998) (interpreting 42 U.S.C. s 11603(b)). In applying this clause federal courts have dismissed ICARA petitions where children were not located in the jurisdiction of the court at the time the petition was filed. See, e.g., Olangues v. Kousharian, 177 Fed. App'x 537, 538 (9th Cir.2006) (determining that the district properly dismissed an ICARA claim for lack of jurisdiction because the children were not within that district at the time the petition was filed); Diorinou v. Mezitis, 132 F.Supp.2d 139, 145-46 (S.D.N.Y.2000) (confirming its prior conclusion that the district court had no jurisdiction over the ICARA petition because the child was not in the jurisdiction at the time the petition was filed); see also Espinoza v. Mattoon, 2009 WL 1919297 (W.D. Wash. June 30, 2009) (sua sponte dismissing, for lack of subject matter jurisdiction, an ICARA petition brought in a jurisdiction where the child was not located). Although these courts treated the dismissal under 42 USC § 11603(b) to be "jurisdictional" in nature, some have referred to the provision as concerning venue. See, e.g., Saldivar v. Rodela, 879 F.Supp.2d 601, 613 (W.D.Tex.2012) (interpreting § 11603(b) to be a venue provision, and finding that venue was proper where the child was located in the district when the petition was filed"); East Sussex Children Servs. v. Morris, No. 12-cv-141, 2013 WL 704660, at *1 (N.D.W.Va. Feb. 27, 2013) ("Venue is appropriate because ICARA provides that a Hague Convention petitioner can bring [such an] action only in the place where the child is located.").

The Court observed that the Second Circuit has not addressed the issue of whether the requirements in §11603(b) implicates jurisdictional or venue concerns. It held that it did not have to resolve this issue in light of the general agreement of both parties to continue the litigation in Connecticut. District courts may, in cases where they lack subject matter or personal jurisdiction, or proper venue, transfer a case "in the interest of justice." (See 28 U.S.C. ss 1404, 1406, 1631). Both parties consented to transferring the action to the District of Connecticut, and no evidence had been presented demonstrating that the children were in the Eastern District of New York when the petition was filed. Given the importance of speedy adjudication of the claim in this action and the consent of both parties to the transfer to a court authorized to hear the case, the Court found that transfer to the District of Connecticut was in the interests of justice, without deciding whether § 11603(b) refers to jurisdiction or venue, and ordered that the action was transferred to the District of Connecticut.

Gee v Hendroffe, 2013 WL 5375294 (D.Nev.) [South Africa] [Federal & State Judicial Remedies] [Jurisdiction] [Venue]

In Gee v Hendroffe, 2013 WL 5375294 (D.Nev.) Petitioner filed his Petition for return of Children and Motion Warrant in Lieu of Habeas Corpus in the United States District Court for the District of Nevada on August 30, 2013. The court scheduled a hearing for September 4, 2013. At the hearing on September 4, 2013, the Court raised the issue of whether it had subject matter jurisdiction over this litigation. The Court ordered Petitioner to meet his burden of establishing jurisdiction and ordered Respondent to provide her airline ticket or other evidence to her Nevada attorney, which indicated when she left Las Vegas, Nevada, for Malaysia.

Respondent filed a Motion for Dismissal in which she stated that she was not served with the Petition until September 4, 2013, and that she and the children left the state of Nevada on August 27, 2013, and left the United States on August 31, 2013. Respondent attached an email from Petitioner's counsel's office which informed her of the September 4, 2013, hearing and provided her with a copy of the Petition as well as this Court's order setting the hearing. Respondent also attached a debit card statement for a card which was used in California as early as August 27, 2013, and copies of the airline tickets she and the two children used to fly from Los Angeles, California to Malaysia on August 31, 2013.

Shortly after Respondent filed her motion on September 5, 2013, Petitioner filed a Motion Under Hague Convention for Entry of a Temporary Restraining Order and a  UCCJEA Warrant. Attached to his motion was an Affidavit signed by Respondent and notarized in Las Vegas, Nevada at 10:30 a.m. on August 30, 2013. On September 6, 2013, prior to the hearing, Respondent filed a Declaration of Yasmin Acevedo, a friend of Respondent since 2011, who lived in Las Vegas. According to the Declaration, Ms. Acevedo accompanied Respondent and the two children to California on August 27, 2013, where they visited some family friends and local attractions. Thereafter, Ms. Acevedo represented, on August 30, 2013, Respondent returned to Las Vegas to attend to some legal matters while she and the children stayed in California. Ms. Acevedo concluded that she accompanied Respondent and the Children to the airport for their departure to Malaysia.

The Court set an evidentiary hearing concerning jurisdiction for October 8, 2013, and ordered all parties, including the children, present in person at the hearing.

The district court pointed out that 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 U.S.C.A. § 11603.

The Ninth Circuit has recognized, "located" has a particular meaning in the context of ICARA, distinct from "a traditional residency test." Holder v. Holder,305 F.3d 854, 869 (9th Cir.2002) n. 5; citing Lops v. Lops, 140 F.3d 927, 937 (11th Cir.1998). It means "the place where the abducted children are discovered," and is more equivalent to the concept of physical presence. Here, the evidence showed that once Petitioner discovered that the Children were in Las Vegas, and that Respondent likely did not intend to return to South Africa with the children, he promptly filed his petition for return of the children. Under the Holder/Lops common sense definition of "located" and in light of the Convention's purpose of providing an "expeditious avenue" for seeking return of
children, this was sufficient to establish jurisdiction. Respondent's contention that the children were in California with Ms. Acevedo on or around August 27, 2013, was irrelevant because Petitioner had no knowledge of that alleged trip, the children were discovered in Las Vegas, and by Respondents own admission, the children had been located in Las Vegas from July 11 until at least August 27. Further, the Court found that Respondent's argument that the children were in California was not credible. The debit card statements provided by Respondent had no name attached to the card and the affidavit of Ms. Acevedo did not come until after Petitioner provided proof that Respondent was in Nevada on August 30, 2013. Additionally, the legal documents that Respondent signed and notarized in Law Vegas on August 30, 2013, were documents for an Australian legal action, and could have been signed and notarized in California as well. The Court found that the evidence showed that the children were located in Nevada at the time the Petition was filed. Accordingly, the Court found that it had jurisdiction over this matter.

Caro v Sanchez, 2013 WL 5300671 (D.N.J.) [Spain] [Consent] [Petition Denied]

[Spain] [Consent] [Petition Denied]

In Caro v Sanchez, 2013 WL 5300671 (D.N.J.) [Not for Publication] Petitioner Antonio Osuna Caro and Respondent Beruzka Mesa Sanchez were married in 2007 in Sevilla, Spain. Their daughter was born in 2008. Both parents were still married and shared custody of the Child under Spanish law. The family lived together in Sevilla until the fall of 2011. On September 30, 2011, Ms. Sanchez and the Child traveled to New Jersey and resided there since that date.

Caro alleged in his Petition that the purpose of the trip was to allow Sanchez a short-term visit with her seriously ill mother. Caro states that he believed Sanchez and the Child would return to Spain in October 2011, but that the return date was extended

by his wife because her mother was still ill. On September 17, 2012, Caro filed an Application for Return of the Child with the Ministry of Justice in Spain, which triggered the U.S. State Department to send a Voluntary Return Letter dated November 29, 2012 to Sanchez, asking her to "consider voluntarily agreeing to return the child to Spain in order to avoid the applicant's initiation of legal proceedings in the United States under the Hague Convention."Sanchez allegedly did not respond. This Petition for Return of the Child to Spain was filed on May 31, 2013.

Sanchez's submitted undisputedly authentic documents to support her factual averrals. She averred that she and her husband jointly decided to move to the United States with the Child. Acting on that plan, in May 2011, Mr. Caro filed an application seeking authorization to travel to the United States under the Visa Extension Program, which would enable him to stay for an extended duration in this country. In September 2011, Sanchez and the Child traveled to New Jersey as "the initial step
of relocation for the family." The family began investigating the possibility of purchasing a house in New Jersey. This fact was supported by a letter from the Realtor with whom they both met to search for a home to buy, as well as financial documents submitted by Caro to be used to qualify for a mortgage to buy real estate in New Jersey. When Caro visited New Jersey in December 2011, he brought along the family dog to live here. Ms. Sanchez averred that while her husband was in the United States on that trip, they jointly continued their search for a house. In mid-2012, Sanchez became employed in New Jersey, rented an apartment with her mother, and enrolled the Child in a Head Start Program. In December 2012, Sanchez received the Voluntary Return Letter from the U.S. State Department. When Sanchez asked Caro about the letter, he said he had requested the letter so as not to lose custody of the Child. In January 2013, Caro again visited Sanchez and the Child in New Jersey.

Sanchez filed a complaint for custody and child support in New Jersey Superior Court on February 1, 2013. On April 27, 2013, Caro sent Sanchez a letter describing his frustration in his job search for a foreign position (he was a Spanish attorney) saying: ... I don't have good news. I've finally been able to speak to someone in charge of the Ministry of Foreign Affairs. They are not going to give me, not even one of the posts/jobs I've applied for at the Embassies and Consulates. The reason is a technical problem that makes no sense explaining it now. There are still other possibilities; but they are more remote. I have to make some contacts with other organizations. I am not going to give up. I will find some alternative. But it is true that the plan for us to go live in another country seems that it will not be possible at this time. One month later, Caro filed the Petition, claiming that his Child had been abducted. Sanchez states that Caro filed the Petition because he realized he would not be able to easily find employment and join the family in the United States. He did, however, in the letter a mere month before claiming child abduction, state that he was continuing to persevere in that job search. 

Caro filed the Petition for Return of the Child on May 31, 2013. He disclosed almost none of the above facts. He initially sought, and was granted temporary restraints based upon his ex parte submissions. However, those were vacated after Caro failed to effect timely service of the Petition in accordance with the Court's Order.  The Petition by Mr. Caro alleged that Ms. Sanchez wrongfully retained the Child in New Jersey. Sanchez did not contest that Caro had custody rights over the child, and that he continued to exercise those rights. Caro claimed that the child was wrongfully retained in New Jersey after a trip from Spain to New Jersey to visit her mother which Caro claimed was intended to be of short duration, while Sanchez has submitted contemporaneous unrefuted documentation showing that the shared intention of the parties when she and the Child left Spain was to establish a new family residence in the United States. Even the family dog relocated here. In light of the documentary evidence presented by Sanchez, Caro's sworn statement that he did not intend for the Child to move to the United States was not credible. The Court found that at the time the Child traveled to the United States in the fall of 2011, both of her parents intended that she move to the United States. Caro and Sanchez jointly searched for a house and relocated the family dog to New Jersey. Caro's affidavit to the contrary was belied by his own heartsick letter, in which he acknowledged the family's plan to relocate away from Spain. There had been no wrongful retention. As of September 30, 2011, the Child's habitual residence had been in the United States. Caro could not unilaterally change the agreement for the Child to move to this country because he was unsatisfied with his job search and wished to alter the joint plan to relocate here.

Once the Court reviewed the papers, in light of Caro's inability to proffer any genuine evidence to meet his burden to prove wrongful retention, it became clear that there was no need for an oral evidentiary hearing to supplement the documentary evidentiary hearing that the Court conducted. The Petition For Return of the Child to Spain was denied.

Matter of S.E.O. and Y.O., 2013 WL 4564746 (S.D.N.Y.)) [Turkey] [Costs and Expenses] [Clearly Inappropriate]

In Matter of S.E.O. and Y.O., 2013 WL 4564746 (S.D.N.Y.)) Nurettin Ozaltin filed a Petition seeking the return of his two minor children, S.E.O. and Y.O., to Turkey, and the enforcement of court-ordered visitation so long as the children remained in the United States. After a hearing the district court granted the Father's Petition and directed the Mother to return the children to Turkey. The Court also held that, because it was granting the Father's Petition, "[the Mother] will be required to pay any necessary costs [the Father] incurred in connection with [the] action." On appeal, the Second Circuit affirmed the Court's decision ordering the return of the children to Turkey but vacated the order insofar as it determined that the Mother would be required to pay "any necessary costs," and remanded the action for further proceedings. See Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir.2013). On the Father's renewed application for costs the court denied his application.

In its Ozaltin decision, the Second Circuit clarified that "a prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of  equitable principles by the district court," directing lower courts to the equitable standards developed under the Copyright Act's discretionary fee award provision. The district court held that in applying this standard, the district court "must exercise its equitable discretion, balancing a variety [of] factors, including frivolousness, motivation, objective unreasonableness (both in factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and  deterrence." (citing Psihoyos v. John Wiley & Sons, Inc., No. 11 Civ. 1416, 2013 WL 1285153, at *2 (S.D.N.Y. Mar. 29, 2013) (citing Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994)). The district court noted that in vacating its earlier award of "any necessary costs [that the Father] incurred in connection with this action," the Second Circuit found that the Mother had maintained an objectively reasonable legal position throughout the case, and also noted concerns that, by bringing an action in this Court rather than before a Turkish court, the Father may have been forum-shopping, contrary to the purpose of the Hague Convention. Ozaltin, 708 F .3d at 375. The Second Circuit concluded that "it would be clearly inappropriate to award all necessary expenses associated with the Father's action under the Hague Convention."

In light of what it perceived to be the standards articulated in the Second Circuit opinion, the district Court determined that an award of costs to the father was "clearly inappropriate" because the mother had a reasonable basis for removing the children to the United States, and the Father appeared to have engaged in forum-shopping by filing a Hague Convention petition in this district rather than seeking a custody determination from a Turkish Court. In light of this conclusion, the Court did not address the parties' arguments as to their respective financial situations, or the adequacy of the Father's documentation of his expenses.

The district court noted that the Second Circuit found that a series of Turkish court orders implying that the children could live with the Mother in the United States gave the Mother "a reasonable basis for thinking at the time of removing the children to the United States in 2011 that her actions were consistent with Turkish law." Ozaltin, 708 F.3d at 375. After reviewing the various Turkish Court orders, the Court found that the Mother had a reasonable basis for believing that she could remove the children from Turkey and that, although such a mistake of law was not a defense to the return action itself, it is "a relevant equitable factor when considering whether a costs award is
appropriate." See Ozaltin, 708 F.3d at 375-76. The district court also observed that the Second Circuit pointed out its concerns that, by bringing an action in the district Court, the Father may have been forum-shopping, contrary to the purpose of the Hague Convention. In the summer of 2011, during the children's temporary return to Turkey, the Father filed a petition with the Turkish Ministry of Justice to bar the Mother from removing the children from the country. The Ministry responded that, because the children were then in Turkey, no other procedure could be carried out in accordance with the Hague Convention. Ozaltin, 708 F.3d at 376. The Ministry instead directed the Father to make an application to the relevant Turkish court to "take the necessary measures to prevent the residential address of the children [from] be[ing] change[d]."Rather than applying to the Turkish Court for such an order however, the Father waited until the children left Turkey and then filed the Hague petition. After the district Court granted the Father's return petition, the Father returned to the Turkish Court and argued that this Court's order precluded the return of the children to the United States, despite the fact that the order clearly stated that it did not resolve the underlying custody dispute between the parties. The Court found that, unlike the Mother, who "has consistently submitted to the jurisdiction of Turkish courts with respect to all divorce and child-custody matters," the Father appeared to have engaged in forum-shopping by filing a Hague Convention petition in this district rather than seeking a custody determination from a Turkish Court as recommended by the Turkish Ministry of Justice in 2011. See Ozaltin, 708 F.3d at 376. Given the equitable nature of cost awards, the Court concluded that the Mother had met her burden of establishing that awarding any costs to the Father would be clearly inappropriate.

Yaman v. Yaman, --- F.3d ----, 2013 WL 4827587 (C.A.1 (N.H.)) [Turkey] [Now Settled][Equitable Tolling][Guardian Ad Litem]

In Yaman v. Yaman, --- F.3d ----, 2013 WL 4827587 (C.A.1 (N.H.)) the district court denied the petition of Ismail Ozgur Yaman ("Yaman") for return of his two daughters, E.Y., now 10, and K.Y., now 11, to Turkey, pursuant to the Hague Convention. There was no question that the habitual residence of the children was Turkey, that Yaman had been given custody of the children by the Turkish courts, that their American mother, Linda Margherita Yaman, a/k/a Linda Margherita Polizzi ("Polizzi"), wrongfully removed the children in 2007 and then hid them, and that this prevented Yaman from locating them and filing his petition for return until he recently found them. The First Circuit affirmed. It held that the Convention does not allow a federal district court to toll equitably the one-year period that must elapse before a parent can assert the "now settled" defense. The First Circuit also held that the Convention does not prevent the district court from ordering the return of "now settled" children, and the court erred in holding otherwise. The court, at that point, should analyze the return question under principles of equity consistent with the Convention's purposes, an analysis it undertook in its alternative holding.

On June 12, 2012, Yaman filed a petition in the District Court for the District of New Hampshire, requesting an order to return the two children to Turkey. Yaman also requested provisional remedies to ensure that both Polizzi and the two children remained in New Hampshire throughout the course of the proceedings. On June 15, 2012, the district court ordered provisional remedies and appointed a guardian ad litem to issue a report on the two children's behalf. One month before the court's scheduled evidentiary hearing, Yaman filed a motion to preclude Polizzi from asserting the affirmative "now settled" defense under Article 12 of the Convention. Yaman argued that Polizzi "should not be permitted to avail herself of t[hat] defense where she has, for years, actively and egregiously attempted to evade legal proceedings." The district court denied the motion. Yaman v. Yaman, 919 F.Supp.2d 189, 198 (D.N.H.2013). In an order dated January 28, 2013, the district court explained that neither the text nor the drafting history of the Convention supported the argument that Article 12's one-year period was subject to equitable tolling. Moreover, the district court observed, the Executive Branch had taken the position that equitable tolling does not apply. The district court noted that the judicial decisions of other signatory nations supported the proposition that Article 12's "now settled" defense does not equitably toll.

On January 22, 2013, the district court commenced a three-day bench trial, which included evening hearings. The court heard testimony from the mother about how settled the children were in the community, their friendships, their schooling, and her concealment of their location, among other things. The court also heard testimony from the guardian ad litem for the children, who testified that his interviews with their teachers showed no red flags, and that other witnesses confirmed that the children were assimilating well. The guardian ad litem, after a thoughtful explanation, concluded the children were unable to provide a mature judgment about where they should live. The court also considered the guardian ad litem's formal report and those of experts concerning each of the children. The district court denied Yaman's petition after trial. Yaman had made out his prima facie case for return, with Polizzi conceding both that she had removed the children in violation of Yaman's custody rights and that the children were habitually resident in Turkey immediately before they were removed. See Convention, art. 3. The district court also found that Polizzi had concealed the children after removal, and that Yaman had been diligent in his efforts to assert his rights under the Convention. The district court nevertheless denied the petition for return. The district court rejected Polizzi's argument that, pursuant to Article 13 of the Convention, return should be refused because it would pose a "grave risk" of harm to the children. The district court concluded that, in its best judgment, Polizzi's actions were ones of a "concerned but misguided mother." The district court found that the children were "now settled," applying the totality of the circumstances test articulated by the Ninth Circuit in Duarte, 526 F.3d at 576. The district court assigned particular weight to the guardian ad litem's testimony and report, describing it as "the best evidence on this point." Having found that the children were "now settled," the district court went on to hold that, in light of this finding, it lacked discretion to order the children's return under the language of Article 12. The court went on to hold in the alternative that, even if it did have authority to order the return of a child "now settled," it would not exercise that authority here. The district court articulated various considerations in favor of return, including the interest in a child's being "reunited with the parent ... from whom [she] w[as] wrongfully removed," the interest in "effectively punish[ing]" Polizzi, and the interest in "deter[ring] future clever abductors." On the other hand, the district court observed, the two children were of such ages that "attachments in a community [we]re particularly important," remarking "[t]he settlement issue would not be nearly so big in my mind if they were 14 or 15 or if they were three and five." Moreover, the district court noted, although Polizzi had made efforts to conceal the children's location, it "s[aw] very little evidence that she did anything that would be damaging to the ... children's psyche." This was consistent with the district court's more general observation that Polizzi had "acted under a mistaken but well-intentioned belief" regarding the safety of the children. The district court stated that punishing the mother would have, at best, a "very limited" deterrent effect.

The Fist Circuit rejected Yaman’s argument that the one-year period that triggers the availability of Article 12's "now settled" defense is subject to equitable tolling. If found no support in the text of the Convention for that interpretation, nor did it gain support from any extratextual source of evidence. The text of Article 12 does not address equitable tolling explicitly. It does, however, suggest that equitable tolling does not apply. It noted that Article 12 does not use a trigger such as "the date the petitioning parent discovered or could have reasonably discovered the child's location." See Lozano, 697 F.3d at 51 n. 8 ("It would have been a simple matter, if the state parties to the Convention wished to take account of the possibility that an abducting parent might make it difficult for the petitioning parent to discover the child's whereabouts, to run the period ‘from the date that the petitioning parent learned [or, could reasonably have learned] of the child's whereabouts.’ But the drafters did not adopt such language." From the text, it was clear Article 12's one-year period does not operate as a statute of limitations. As the Second Circuit observed in Lozano: Unlike a statute of limitations prohibiting a parent from filing a return petition after a year has expired, the settled defense merely permits courts to consider the interests of a child who has been in a new environment for more than a year before ordering that child to be returned to her country of habitual residency. 697 F.3d at 52.



Article 12's drafting history further supported the conclusion that the one-year period was not subject to equitable tolling. Courts of other signatory nations have most commonly held that equitable tolling does not apply to the one- year period that triggers the availability of the "now settled" defense. It note that in its carefully reasoned opinion in Lozano, as described, the Second Circuit held that Article 12's one-year period is not subject to equitable tolling. 697 F.3d at 50–55. By contrast, in Furnes v. Reeves, 362 F.3d 702, 723–24 (11th Cir.2004), the Eleventh Circuit considered the one-year period to be a statute of limitations. In Duarte v. Bardales, 526 F.3d 563, 570 (9th Cir.2008), the Ninth Circuit, too, considered the one-year period as a statute of limitations. The Court joined the Second Circuit's views.

The First Circuit agreed with Yaman that the district court erred when it concluded that it lacked authority to order the return of a child found to be "now settled." This conclusion was not supported by the Convention's text or history, and was contrary to the view of the Executive Branch and the views of the other circuits. See Blondin v. Dubois, 238 F.3d 153, 164 (2d Cir.2001) (recognizing discretionary authority to return "now settled" child); see also Asvesta v. Petroutsas, 580 F.3d 1000, 1004 (9th Cir.2009) (recognizing discretionary authority to return child even if one of Convention's affirmative defenses is established); Miller v. Miller, 240 F.3d 392, 402 (4th Cir.2001) (same); Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir.1996) (same); Feder v. Evans–Feder, 63 F.3d 217, 226 (3d Cir .1995) (same). It pointed out that the Second Circuit concluded in Blondin, Article 12 "allows—but does not, of course, require—a judicial or administrative authority to refuse to order the repatriation of a child" just on the basis of settledness. 238 F.3d at 164. In reaching that conclusion, the Second Circuit treated the language of Article 12 as plainly permissive.

The First Circuit added that the language of Article 18 of the Convention reinforced its reading. According to Article 18, "[t]he 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." Convention, art. 18. Polizzi argued that Article 18 merely serves to clarify that the Convention does not limit whatever power to return an authority might have under other laws. Even if this reading of Article 18 were correct—a point it did not decide—the other powers not limited by Article 18 include the power to order the return of a settled child. It found that power reasonably implicit in both Article 12 and Congress' grant to federal courts of jurisdiction over Hague Convention actions, which it presumed was enacted with awareness of the broad equitable powers that those courts customarily enjoy. A federal court has the more limited authority to order the return of a child who was "wrongfully removed or retained" despite her being "now settled." Courts of other signatory nations have held that the Convention confers upon a court the authority to weigh considerations such as concealment when determining whether to order the return of a child "now settled."

While no other circuit has addressed the "now settled" defense in particular, numerous circuits accept the general proposition that "courts retain the discretion to order return even if one of the [Convention's] exceptions is proven." Feder, 63 F.3d at 226; Miller, 240 F.3d at 402 (quoting Feder ); accord Friedrich, 78 F.3d at 1067 ("[A] federal court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the
Convention."); Asvesta, 580 F.3d at 1004 (quoting Friedrich ).

The First Circuit held that the district court erred in finding it had no authority to order the return of a child found to be "now settled." It found that that Article 12 affords the court discretion to dispense with the "settled" inquiry— which can involve a fact-intensive inquiry into the child's living situation—when the court concludes that the circumstances justify ordering return regardless of the outcome of the settlement inquiry. For instance, the conduct of the concealing parent might be so extreme that return is called for irrespective of other circumstances. That authority is underscored by Article 18, which provides that "[t]he provisions of this Chapter [enumerating exceptions] do not limit the power of a judicial or administrative authority to order the return of the child at any time."

Murphy v. Sloan, ,2013 WL 4725120 (N.D. California) [Ireland] [Temporary Restraining Order]

 

          In Murphy v. Sloan, ,2013 WL 4725120 (N.D. California) Petitioner Elaine Mary Murphy's Ex Parte filed an Application for a Temporary Restraining Order enjoining Respondent William Milligan Sloan from removing their minor child from the jurisdiction of this Court pursuant to the Hague Convention on the Civil Aspects of International Child. The district court granted the application. According to the Petitioner's Verified Complaint and Petition for Return. Petitioner, a citizen of Ireland, sought the return of her eight-year-old daughter, E.. Petitioner and Respondent married and lived together in California in 2000. Their child, E., was born in 2005, during the marriage. In April 2010, Petitioner moved to Ireland with E., with Respondent's consent. Petitioner and E returned to the United States twice during the summer of 2010 before returning to Ireland so E. could start school in Kinsale, County Cork, Ireland.  Respondent resided, and continued to reside, in Marin County, California. He filed for divorce in Marin County Superior Court on October 25, 2010, That action was pending. E attended school in Ireland for the 2010, 2011, and 2012 scholastic years.  According to Petitioner, E. spoke Gaelic, and considered Ireland her home. E. had previously visited Respondent in the United States in 2010, 2011, 2012 and Easter 2013. On June 12, 2013, Respondent arrived in Kinsale to pick up E. for a summer vacation in the United States. On June 16, 2013, E. left Kinsale, County Cork, Ireland with Respondent for a summer visit to the United States. On June 21, 2013, over the phone from the United States, Respondent revealed to Petitioner that he did not intend to return E. to Ireland. 

The district court observed that a court exercising jurisdiction under ICARA “may take or cause to be taken measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child's further removal or concealment before the final disposition of the petition.” 42 U.S.C. § 11604(a). That authority extends to issuing an ex parte temporary restraining order where the requirements of Federal Rule of Civil Procedure 65(b) are satisfied. Under Rule 65(b), a party seeking a temporary restraining order must establish: (1) a likelihood of success on the merits, (2) a likelihood of irreparable injury if the requested relief is not granted, (3) that a balancing of the hardships weighs in its favor; and (4) that the requested relief will advance the public interest. See Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). The court found that Petitioner satisfied each element. Petitioner  adequately established a likelihood of success on the merits by making a prima facie showing that E. is under sixteen years of age, that her habitual residence is in Ireland, that E. was removed from Ireland in breach of Petitioner's custodial rights, which rights Petitioner would have exercised but for the removal.

 

          The Court found that there was no reasonable likelihood of harm to Respondent from being wrongfully enjoined, and therefore ordered that Petitioner was not required to give security pursuant to Federal Rule of Civil Procedure 65(c). It directed Respondent to show cause why he should not be prohibited from removing the child from the Court's jurisdiction until the proceeding was concluded; to show cause why the relief requested in the Verified Complaint and Petition should not be granted and directed him to produce E.'s passports and any other identification and/or travel documents and to deposit them with the Court for safekeeping until the proceeding was concluded.

Biel v. Bekmukhamedova, --- F.Supp.2d ---- 2013 WL 4574161 (E.D. Louisiana.) [Luxembourg] [Younger and Colorado River Abstention]

In Biel v. Bekmukhamedova, --- F.Supp.2d ---- 2013 WL 4574161 (E.D. Louisiana.) Plaintiff Pierre Biel filed a petition under the Hague Convention seeking the return of his son to Luxembourg. Upon learning of an ongoing custody proceeding, the Court raised the issue of abstention sua sponte,



In October 2012, Plaintiff and Defendant Dinara Bekmukhamedova traveled with their son, VPZB, from Luxembourg to the United States. Defendant allegedly promised the family would return to Luxembourg after she obtained a Form I–551 Alien Registration Card (commonly known as a "Green Card"). Defendant subsequently informed Plaintiff that she intended to remain in the United States with VPZB indefinitely. On March 3, 2013, Plaintiff was allegedly awarded a preliminary Guardianship by a Luxembourg court. Plaintiff subsequently flew to New Orleans—where Defendant had recently moved—and filed a petition in New Orleans civil court on May 1, 2013, to obtain custody of VPZB. The state court held a preliminary hearing on May8, 2013, and set a trial date of June 14, 2013. The court further ordered that Plaintiff be allowed visitation, that VPZB not be removed from Orleans Parish, and that Defendant surrender VPZB's passport to the court. Upon motion of Plaintiff, the trial was continued until August 14, 2013. Plaintiff filed a second motion to continue on August 8, 2013. Neither the petition nor any of the state court filings mention the Hague Convention or ICARA.

Having reviewed the state court proceedings, the district court found abstention inappropriate in this case, under both Younger v. Harris,. 401 U.S. 37 (1971) and Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)