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Saturday, November 16, 2013

Valenzuela v Michel, 2013 WL 6038240 (9th Cir., 2013) [Mexico] [Habitual Residence]






In Valenzuela v Michel, 2013 WL 6038240 (9th Cir., 2013) in late 2006, Steve Michel and Blanca Reyes Valenzuela chose to live together in Nogales, Mexico. Their twins were born in 2008. According to Steve's undisputed testimony, the couple lived together in Nogales, Mexico. The couple agreed in 2009 that to avoid having to cross the border for work, Steve should move to the Arizona side. They agreed to "set a pattern to keep [the twins] in the United States" in order to take advantage of education, medical help and government support in the United States. After the twins received their passports in May 2009, until the fall of 2010, they split their time between Mexico and the United States. They lived with Blanca in Mexico Monday through Wednesday and lived with Steve in the United States from Thursday through Sunday. In September 2010, the relationship between Blanca and Steve soured. Blanca threatened to have him beaten up or killed. For around two months in the fall of 2010, Blanca did not allow him to have any contact with the twins. Under the belief that she posed a danger to the children, Steve reported Blanca to Arizona Child Protective Services and to its Mexican equivalent, DIF, in November 2010. From Christmas 2010 to February 2011, the twins split their time between Steve and Blanca evenly. In February 2011, Blanca would not regularly meet Steve or respond to his messages to go to the border so he could take the twins to the United States. Steve did take the children on March 24, 2011. He told Blanca he would return them at 7 PM on March 27th, but he sent Blanca a text message on March 27th saying he would not bring them back.

Blanca filed her application two days after Steve retained the twins and filed a petition for Writ of Habeas Corpus for Return of Child in the District Court. At trial, Blanca and her witnesses testified via telephone from Mexico with the help of an interpreter. Steve testified that Blanca agreed to keep the twins in the United States to send them to school and get them better medical care. Blanca disagreed with much of what Steve had said during his testimony. She also talked over some of her witnesses. The District Court found Steve's testimony to be more credible, noting that Blanca seemed to be coaching her witnesses. Based on Steve's testimony and the testimony of Fernando Leal, the DIF social worker, the district court held that the parties "abandoned Mexico as [the children's] habitual state of residence when their parents decided they should, for an indefinite period, spend the majority of their time in the United States."



The Ninth Circuit affirmed. It observed that it had rejected a purely factual approach to habitual residence for reasons laid out by Chief Judge Kozinski in Mozes v. Mozes. 239 F.3d 1067, 1071–73 (9th Cir.2001) It was undisputed that Blanca was exercising her rights of custody at the time of retention. The question was whether the children were habitually resident in Mexico, the United States, or both, at the time of their retention. The Court of Appeals noted that the district court based its findings of fact primarily on three key credibility determinations. First, it found that Steve's version of the facts was credible. Second, it found that Blanca's account was not consistent with her earlier statement to the social worker about how long the twins were living in the United States. Finally, it found that Blanca's witnesses either lacked independent foundation for their testimony or were being audibly coached while they were testifying, possibly by Blanca herself.
The Court pointed out that in the Ninth Circuit, they look for the last shared, settled intent of the parents in an attempt to determine which country is the "locus of the children's family and social development." Mozes, 239 F.3d at 1084. Mozes requires that there be a shared intent to abandon the prior habitual residence, unless the child "consistently splits time more or less evenly between two locations, so as to retain alternating habitual residences in each." Once intent is shown, Mozes requires an "actual change in geography" combined with an "appreciable period of time" to establish a change in habitual residence. Following Mozes, the district court ruled that Steve and Blanca had a shared, settled intent to abandon Mexico and adopt the United States as the twins' habitual residence, and therefore the Convention did not attach. It agreed that the Convention did not attach.

In affirming the district court's decision, the Ninth Circuit offered "an alternate route to the same outcome". It pointed out that very few cases arising under the Convention feature shuttle custody. In shuttle custody situations, Parent 1 and Parent 2 agree to split custody between two countries, shuttling the children between the countries on a regular basis. Here, Steve and Blanca decided the children would split time between countries before their relationship soured, and the children were shuttled more frequently than in any other cases. Blanca's and Steve's residences, as of the time of the petition, were in two different countries, but they were only around ten miles apart, the closest of any two parents in all of the habitual residence cases brought under the treaty worldwide. The only U.S. court to entertain the possibility that a child had alternating habitual residences was a district court in New York. In Brooke v. Willis, a court-ordered custody arrangement dictated that a child spend fifty percent of her time in the United States and the other fifty percent in England. 907 F.Supp. 57 (S.D.N.Y.1995). After a fall semester in California, the mother retained the child in California in breach of the agreement. The father, in England, filed a petition under the Convention. The court ruled that the child was habitually resident in England at the time of her retention, with the caveat that "it is arguable that [the child] is also a habitual resident of the United States under the Convention. However, for purposes of this petition it is only crucial to determine if England can be considered [her] habitual residence." No other U.S. court has been faced with shuttle custody under the Convention. The closest fact pattern to the one before it was from a case decided by the High Court of Northern Ireland. In In re C.L. (a minor), a child shuttled between Belfast and Dublin, a distance of 105 miles. After acknowledging that the fact pattern is "unusual if not unique", the court found that when the child moved between his parents "on a weekly basis, he was habitually resident in whichever jurisdiction he was living in." In re C.L. (a minor) and In re the Child Abduction and Custody Act 1985; JS v. CL (unreported NIFam HIGJ2630 25 Aug. 1998). Courts in other jurisdictions have held that the shuttle custody cases before them reflected serial, or alternating, habitual residence. See Wilson v. Huntley, 2005 Carswell Ont 1606(WL), (Can.O.N.S.C.) ; See also Watson v. Jamieson, (1998) S.L.T. 180, 182 (Scot.).


The Court held that district court judge below did not err in deciding that Blanca and Steve shared a settled intention to abandon Mexico—they had immediate plans to avail the twins of government assistance in the United States as well as longer-term plans to educate the children in the United States. It noted that based on the shuttle custody cases from sister courts, Steve could have prevailed by showing that he and Blanca shared a settled intention to abandon Mexico as the twins' sole habitual residence, that there was an actual change in geography, and that an appreciable period of time had passed. Because all three elements were present here, it affirmed the district court in its decision that the twins were habitually resident in the United States when Steve retained them.


Monday, November 4, 2013

West v Dobrev, 2013 WL 5813749 (10th Cir, 2013) [France][Belgium] [Summary Determination]

 

 

In West v Dobrev, 2013 WL 5813749 (10th Cir, 2013) Petitioner West, a lawyer, was a citizen of Romania and the United States. Respondent Dobrev, a college professor, was a citizen of Bulgaria and the United States. The two were married in 2003 in Chicago, Illinois. They had two children, a female born January 27, 2004 and a male born January 12, 2006, both citizens of the United States. In June 2008, the couple and their children moved to Fontainbleau, France after Respondent accepted a teaching position at a local university. In May 2009, Petitioner filed for divorce in "Fontainbleau Departmental Court." In an interim order dated October 2009, the French court ordered the children to "remain in the usual home of the mother," and Respondent to pay for their support. Respondent left his position with the local university in early February 2010. Respondent, contrary to the court’s order, ceased support payments. In May 2010, Respondent accepted employment as a professor at the University of Utah in Salt Lake City, but did not resume payments. In March 2010, Petitioner asked the French court for permission to move to Brussels, Belgium. Petitioner represented that "without resources, and after having searched in vain for employment in the U.S., she had to expand her search and ... found a job at the European Commission in [Brussels] Belgium." Respondent objected to Petitioner’s request. In a second interim order dated June 2010, the court "[a]uthorized the mother to move to Brussels as long as she notifie[d] her husband at least 15 days before leaving France." The court ordered the children to remain in the primary physical custody of their mother. Petitioner and her children moved to Brussels in August 2010. In the French proceeding, Respondent raised numerous arguments as to why the court should award him physical custody of the children. Respondent never argued that Petitioner abused the children, physically or psychologically. One of Respondent’s principal arguments was Petitioner hid her intention to move to Brussels with the children "where she prevents him from seeing his children." The French court was unpersuaded and in its final decree found:

Ms. West did not hide anything and ... took the precaution of obtaining [the] court’s authorization before moving. Such authorization was given by the decision of June 2, 2010....* * * Mr. Dobrev does not prove that the mother prevented him from seeing his children.... [T]he exchange of emails between the spouses submitted as evidence took back [Mr. Dobrev’s] initial consent of having the children enrolled at the European School in Brussels, indicating that he had enrolled the children instead at a school in the United States, and threatened the mother to bring them back to the United States. The French court found upon all the facts presented that the divorce was the "exclusive fault of Mr. Dobrev," and "in the context of joint exercising of parental authority [i.e., joint custody] the usual home of the children must be maintained at their mother’s home." At no time did Respondent appear to have contested the French court’s jurisdiction to adjudicate the matter of the children’s custody. On July 24, 2012, four weeks after entry of the decree, Respondent waived his right to appeal, thereby finalizing the decree and terminating the French proceeding.

Prior to waiving his right to appeal, Respondent picked up the children on July 11 and brought them to the United States to vacation consistent with the terms of the final decree. The children were scheduled to return to Belgium on August 12, 2012, but did not return. Instead, on August 8, Respondent filed suit in Utah state court for "Emergency Jurisdiction and Custody." Respondent asked the state court to award him temporary custody of the children for the reason that if they were returned to their mother in Belgium "such a return would pose a grave risk of physical and psychological harm to each child or otherwise place each child in an intolerable situation, as contemplated by Article 13(b) of the Hague Convention." In his state suit, Respondent alleged for the first time that "[d]uring the years the parties were married and during the time [Ms. West] and the children lived in France and Belgium, [he] has been concerned about [her] treatment of the children."

 

On August 23, 2012 Petitioner petitioned the Utah federal district court for return of the children. Petitioner included with her petition a letter from the director of the children’s elementary school in Brussels containing favorable comments from the children’s teachers; the older child’s school records showing average or above average marks; and a letter from a neighbor tenant in Brussels containing favorable comments about the family. A few days prior, the State Department notified the Utah state court that Petitioner also had submitted an administrative application for return of the children pursuant to Article 8 of the Convention. That application stayed the state court proceeding pursuant to Article 16.

 

Respondent answered Petitioner’s federal suit by again disputing many of the facts found in the French court’s final decree. He denied he wrongfully retained the children from their residence in Belgium. Respondent again asserted, this time as an affirmative defense, that he properly retained the children under Article 13(b) of the Convention because they faced a grave risk of harm if returned to their mother. Respondent submitted a letter from a clinical psychologist whom he hired to interview the children after they reportedly expressed dissatisfaction with their current living arrangement in Belgium. According to the psychologist’s letter, Petitioner reportedly (1) had little time for the children, (2) disciplined the children by slapping them, pulling their hair, and spanking them, and (3) failed to provide them adequate medical or hygienic care. On one unspecified occasion, Petitioner reportedly pushed her daughter down after chasing and catching her. The letter concluded: "It is strongly suggested that the children’s current living situation be investigated and that the children continue to receive therapy." Respondent asked "the court to appoint an additional therapist to evaluate both the children and determine if there has been abuse and, if so, what kind, how serious, and does it justify retention."

 

Six days after the federal petition’s filing, the district court held a preliminary hearing during which it raised questions about the need for an evidentiary hearing. Respondent’s attorney told the court that the psychologist who had interviewed the children would not testify at an evidentiary hearing due to ethical considerations: "I would like to develop the case so I can present it to you, but I need another psychologist appointed and Ms. West directed to cooperate with that. That is the best way of finding out if there is not any abuse, because if she cooperates, and I am sure she is going to deny [the abuse], then we have [a psychologist] that is presenting here is what the children have said and here is what [Ms. West] said, and my opinion as a psychologist is there is abuse or there is not abuse. "

The district court expressed frustration with Respondent’s position: During the preliminary hearing the district court never stated it would hold an evidentiary hearing. And Respondent never suggested due process required an evidentiary hearing. Rather, Respondent claimed only that the evidence before the court was sufficient to warrant further inquiry. At one point the court stated: "Let me review what [the parties] have submitted and then decide whether there is enough to have a hearing on the matter of abuse." A week later the district court decided no evidentiary hearing was necessary. The court issued a brief written decision summarily granting the petition and ordering Respondent to "immediately" return the children to Petitioner "for their safe return with her to Belgium." The court identified the question presented as whether Respondent had shown as required by Article 13(b) of the Convention "a grave risk the children will be exposed to physical or psychological harm or otherwise be placed in an intolerable situation if they are returned to Belgium." The court answered "no." The court explained that, "even on its face," the evidence of abuse Respondent presented, in particular, the uncorroborated letter of the clinical psychologist (aside from his own allegations), "is far from demonstrating a ‘grave risk’ that a return to Belgium will expose the children to physical or psychological harm or otherwise place them in an intolerable situation." A few days later the court ordered Respondent to pay Petitioner’s fees, costs, and expenses pursuant to ICARA, 42 U.S .C. § 11607(b)(3).

 

The Tenth Circuit affirmed. It observed that consistent with the aims of the Convention, Article 11 of the Convention provides "[t]he judicial ... authorities of Contracting States shall act expeditiously in proceedings for the return of children." Article 18 adds the provisions of the Convention "do not limit the power of a judicial ... authority to order the return of the child at any time. This means a district court has a substantial degree of discretion in determining the procedures necessary to resolve a petition filed pursuant to the Convention and ICARA. Neither the Convention nor ICARA, nor any other law including the Due Process Clause, requires that discovery be allowed or that an evidentiary hearing be conducted" as a matter of right in cases arising under the Convention. If the circumstances warrant, both the Convention and ICARA provide the district court with "the authority to resolve these cases without resorting to a ... plenary evidentiary hearing."



On appeal, Respondent claimed he was denied due process because the district court provided him no opportunity to challenge its finding that Belgium was the "habitual residence" of the children. The Court of Appeals pointed out that at the preliminary hearing, however, Respondent never challenged any element of Petitioner’s prima facie case as alleged in her petition—although he had ample opportunity to do so. Perhaps this was because Respondent admitted in his response to the petition the Petitioner’s allegations established a prima facie case for return of the children. In ¶ 22, Petitioner alleged: At the time of the children’s wrongful removal and retention ... Petitioner was actually exercising custody rights within the meaning of Articles Three and Five of the Convention, in that she is the biological mother of the children and has exercised custody rights over her children since they were born, and she was awarded joint physical custody, joint legal custody, and primary physical custody of the children pursuant to the [French] Decree. Furthermore, the Children were habitually residents of Belgium within the meaning of Article 3 of the Convention since their move to Belgium in August 2010. Respondent "[a]dmit[s] the allegations of ¶ 22 of the petition except that the actions of Respondent are not wrongful but fully in accord with the provisions of Article 13(b) of the Convention." Thus, Respondent’s belated claim that he was entitled to an evidentiary hearing to challenge Petitioner’s prima face case was meritless.

The Tenth Circuit pointed out that because Petitioner alleged a prima facie case for return of the children under Article 3 of the Convention and Respondent did not deny those allegations, the burden shifted to him to establish one of the affirmative defenses or "narrow exceptions set forth in the Convention." The Court was concerned only with the exception contained in Article 13(b): A court is not bound to return a child wrongfully retained or removed if the respondent establishes "by clear and convincing evidence," 42 U.S.C. § 11603(e)(2)(A), that "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. "Grave risk" means the "potential harm to the child must be severe, and the level of risk and danger ... very high." Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir.2013). The Court held that whatever one must show to establish a "grave risk" to a child under Article 13(b) Respondent did not make that showing before the district court "by clear and convincing evidence."

Tuesday, October 22, 2013

Haruno v Haruno, 2013 WL 5663070 (D.Nev.) [New Zealand] [Habitual Residence] [Consent]



In Haruno v Haruno, 2013 WL 5663070 (D.Nev.) Petitioner Toby Makoto Haruno ("Toby") sought to have his minor child, Jordan Haruno, returned to New Zealand from Las Vegas, Nevada. Toby and Jennifer were United States citizens and were married in the United States. They moved from Los Angeles, California to Wellington, New Zealand on approximately June 30, 2008. Although they had one-year visas, they renewed those visas each successive year. Toby was employed in New Zealand in the animation industry. Although over the years they discussed ultimately returning to the United States, they never took concrete steps to leave New Zealand. Jordan was born in Wellington, New Zealand on January 11, 2011. He was a United States citizen. Jordan lived his entire life in New Zealand, until December 8, 2012. On that date, Toby, Jennifer and Jordan took a long vacation trip to North America, having purchased round-trip tickets with a return flight to New Zealand from Vancouver on February 2, 2013. On February 1, 2013, Jennifer changed her flight arrangements so that, instead of returning to New Zealand, she and Jordan flew from Vancouver to Las Vegas, Nevada, where her parents lived. There was conflicting testimony about whether and to what extent Toby protested this change, but he did not prevent them from going to Las Vegas, and he helped them check in their luggage for the flight. Toby returned to New Zealand alone. After returning to New Zealand, Toby made repeated efforts to convince Jennifer to return to New Zealand. He continued to financially support Jennifer and Jordan in Las Vegas, and kept in regular contact with them via video and telephone connections. A few months later, Toby visited them in Las Vegas and discovered that Jennifer had contacted a lawyer in Las Vegas to obtain a divorce. Toby returned to New Zealand, contacted legal counsel, and initiated this proceeding. In the meantime, Jennifer filed a divorce proceeding in Las Vegas.

The district court granted the petition. It observed that a court determining whether a child was wrongfully removed must] answer a series of four questions: (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the
petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention? Mozes v. Mazes, 239 F.3d 1067, 1070 (9th Cir.2001). It appeared that the removal evolved over the period February through June of 2013. The parties left New Zealand on December 8, 2012, with return tickets for February 2, 2013. On February 1, 2013, Jennifer changed her and Jordan's tickets and instead flew to Las Vegas, where they have remained. The evidence was overwhelming that New Zealand was the child's habitual residence before he was retained in the United States. Under New Zealand law, as a married father living with the child's mother, Toby had joint guardianship and custody of the child prior to Jennifer's retaining him in the United States. Jennifer's retention of the child in the United States interfered with Toby's custodial rights. Jennifer claimed that Toby worked excessive hours at his job, did not regularly participate in activities with the child, and thus was not exercising his rights. The evidence presented at the hearing proved that Toby was exercising his parental rights. Even though Toby may have worked long hours, he still interacted with the child, went to play groups with him, was involved in his life, and contributed to his care and upbringing until Jennifer retained him in the United States. Based on the foregoing, Toby had proven a cause of action for the return of the child to New Zealand.

Jennifer attempted to defend against the child's return to New Zealand by alleging that (a) Toby consented to or acquiesced in the child's remaining in the United States, and (b) returning the child presents a grave risk to his physical and emotional health.

Jennifer contended that Toby consented to allowing her to take the child to the United States. She claimed he did not protest when she changed their flight from Vancouver to Las Vegas, and that he helped them check in their bags at the airport. Even if true, such actions did not constitute consent to allow the child to permanently remain in the United States. Toby's actions thereafter proved that he did not consent to the permanent relocation of the child. Toby remained in regular contact with Jennifer and the child (through both video and telephone), and continually tried to convince them to return to New Zealand. He purchased return flight tickets for them (which Jennifer  ultimately canceled after coincidentally becoming injured the day before the flight). He traveled to Las Vegas to convince them to return.

Jennifer contended that the child would face grave risk of physical and emotional injury if he is returned to New Zealand. In support of that allegation, she pointed out that Toby was arrested and charged with domestic violence against Jennifer over two years before the child was born. Those charges were later dropped after Jennifer hired a lawyer to help her recant her allegations. Even if the allegations were true, they did not constitute a grave threat to the child. The injury occurred to Jennifer, and there were no reports of violence in the years thereafter. While Jennifer accused Toby of having a bad temper and being prone to angry outbursts, the evidence indicated that at most only once was it directed towards the child. The only episode involving the child occurred when Toby allegedly shook him once after becoming frustrated at having difficulty putting on his diaper. While this is not to be condoned, it apparently was not a "grave" event, as a few hours later Jennifer left the child in Toby's care so she could go out and party with her friends. Moreover, a single episode such as this does not constitute a grave threat of future violence to the child.

Saturday, October 19, 2013

Avila v. Morales, 2013 WL 5499806 (D.Colo.) [Mexico] [Habitual Residence] [Telephone appearance]

In Avila v. Morales, 2013 WL 5499806 (D.Colo.) the district court adopted the recommendation of the Magistrate Judge and granted the petition for return. Petitioner sought an order returning her children to their place of habitual residence in Mexico. The Court held a hearing on June 19, 2013, at which the Petitioner appeared telephonically. Her attorney appeared in person. Respondent appeared in person and was also represented by counsel. Petitioner was a Mexican citizen residing in Durango, Mexico. Respondent was a Mexican citizen residing in Aurora, Colorado. The parties never married but had two children subject to this petition: A.G.E.M, an 11-year-old boy, and A.E.M., a 9-year-old boy. Both boys were born in Colorado and had Colorado birth certificates. Petitioner, Respondent and their two sons resided together from August 2000 until December 2004, when Petitioner and the boys moved out and lived with other family members from that point until April 2010. From December 2004 to April 2010, the children resided with Petitioner, and she parented them nearly exclusively.

In April 2010 Petitioner decided, upon the sudden death of her father in Durango, Mexico, to move to Mexico with the boys to take care of her mother. She called Respondent the night before she left to tell him she was leaving with the children the next day, on April 27, 2010. Respondent did not think this was a permanent move because on two prior occasions Petitioner had traveled to Mexico with their sons, returning both times. Respondent asked Petitioner not to take the children with her in 2010. Petitioner took them anyway, packing their belongings and moving to El Pueblito, Durango, Mexico, to live with Petitioner's mother. The children went to school in El Pueblito for two years. They were enrolled to start a third year there in the fall of 2012. They had integrated into the family, community, and church in Durango. The children had been baptized in Colorado but completed their communions and confirmations in Mexico. While the boys lived in Mexico during a period of two years and four months, Respondent communicated by phone with the children periodically and his family visited the children in Mexico six (6) times. Respondent also sent at least some money to Mexico to support the children. Respondent did not take any action through the courts to seek return of his children, nor did he seek their return in any manner in the two years and four months they were living in Mexico.

  Petitioner made plans for the children to visit Colorado for two weeks in the summer of 2012 before they were to return to Mexico for the school year. Before the boys traveled to the United States, Petitioner procured Mexican birth certificates from the Mexican government. Petitioner was able to do so because both of the children's parents are Mexican citizens. Petitioner intended her children to travel to the United States using their American birth certificates and return to Mexico using their Mexican birth certificates. Petitioner's mother, nephew, and three children traveled to the United States as planned in early August 2012. Just a few days into the visit, however, Petitioner decided that her mother and nephew should end the trip and return the children to Mexico. As the children and Petitioner's mother and nephew headed south from Denver through Colorado on a commercial bus on August 8, 2012, Respondent and his sister contacted the bus company to request the bus to be stopped, claiming people were taking Respondent's children illegally. The bus driver pulled the bus over and Respondent, his sister, and his girlfriend, all of whom had been following the bus, pulled behind it and waited a few minutes until the City of Pueblo police officer arrived, took the children off the bus, and gave them to Respondent. Respondent assured the children that he just wanted to continue their visit but would return them home to their mother in Mexico after the two-week visit. The day after taking the children off the bus, Respondent filed a petition for custody in Adams County District Court. The Adams County magistrate dismissed the case on September 13, 2012, for lack of jurisdiction. Respondent decided he would not allow the children to return to Mexico.

Petitioner filed on October 8, 2012, an application with the Mexican Central Authority seeking return of the boys from the United States. Petitioner on March 27, 2013, filed the now-pending Petition with the district Court. For its analysis, the Court applied the Tenth Circuit's procedural directives on handling Convention petitions. It observed that Courts have also made it clear that a parent cannot create a new settled purpose and therefore a new habitual residence simply by fleeing a country with a child in tow or retaining a child in his former habitual residence. Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir.1997) "In an attempt to untangle the Gordian knot the parents, together, have seen fit to tie," the court indicated, in discussing the parents' repeated efforts to help themselves outside legitimate legal channels through "grab-and-run" law, that it would "refuse to condone such conduct." Id. The Tenth Circuit in Ohlander addressed parents who had both filed petitions under the Hague Convention; thus, the court also provided specific details of the "proper interpretation of the Hague Convention's procedures." The court criticized and ultimately reversed the district court for "misconstru(ing) the Convention's contemplated procedures." "According to the Convention, once a petition is filed, a court should consider only whether respondent's removals of a child are wrongful." A court is to examine whether a respondent parent took the child wrongfully-not whether the petitioning parent did. Similarly, exceptions to return run only one way-a respondent asserts them, not a petitioner. Only when a cross petition is filed would bilateral analysis be appropriate. Petitioner asserted that the habitual residence was Mexico, where the children lived for two years and four months with the Respondent's eventual acquiescence. Respondent's primary theory of habitual residence relied on the children's birth and residence in the United States and Petitioner's removal of the children to Mexico without his permission or consent.

The Court found that the parents shared an intent that the children's habitual residence would be Mexico. This shared intent was sufficient for the Court to find that the parents had a "settled purpose" that the children's habitual residence would be Mexico. While the Court believed it likely that Respondent did not initially agree to such a move nor did he immediately know that Petitioner planned a permanent move, even his own testimony indicated he knew within weeks of Petitioner's intent to stay there. The Court found Respondent's testimony credible that he continued his involvement with the children once they moved to Mexico, that he called them regularly, and that he sent them money. However, these facts merely validated the argument that he knew where they were, knew they were integrating in school and the community, and yet still did not seek their return in any way. As in Mozes, the Court also considered the significant passage of time. Respondent allowed the children to stay in Mexico for two years and four months, which is long enough to create a "settled purpose" that this was the children's new habitual residence-if not by clear consent, then at least by clear acquiescence. Mozes, 239 F.3d at 1081. Similarly, Respondent's own testimony indicated that he knew the children were only coming to visit the United States for two weeks and that they would return home to Mexico to start the school year. Regardless of his reasons, the Court found that not unlike the grab-and-run parents in Feder and Ohlander, the Respondent utilized his own illegal version of grab-and-run law, taking matters into his own hands and running down a bus to wrongfully retain his children. He testified that he stopped the bus because he wanted his full two weeks of visitation, not to keep them permanently. Respondent's attempt to reestablish their U.S. habitual residence failed, because wrongfully retaining children for two months before their mother filed her Petition did not create a new "settled purpose" and change the habitual residence from Mexico. Respondent continued to assert that Petitioner was the initial abductor back in April 2010 when she left for Mexico. Even assuming the truth of this assertion, the Court found that the Respondent within the first year of their wrongful taking could have sought a legal remedy for their return. Importantly, he did not. He sought no legal remedy for their return, including failing to file his own Convention petition. As the Tenth Circuit clearly directed in Ohlander, this Court is to evaluate the current petition in only one direction: "whether the respondent's removals of a child are wrongful." Ohlander, 114 F.3d at 1540. The Court's consideration of "whether the petitioner's removals of the child were wrongful" would be "antithetic[al] to the Convention's intent as a whole." Therefore, Respondent's arguments concerning his efforts to regain his children, made years too late after the children had become well established in a new habitual residence to which he consented by his actions, and made without the required framework of a Convention petition, fell short. Thus, the court found that the habitual residence was Mexico.

The Court found that Mexican law, as outlined in the Civil Code for the State of Durango, Mexico, uses a concept called "patria potestas " ("parental authority/responsibility") to determine rights of custody. United States courts have determined that patria potestas creates rights of custody, not rights of access, and begins from birth. Whallon v. Lynn, 230 F.3d 450 (1st Cir.2000). The Court found that Petitioner had rights of custody under Mexican law as described in Whallon that far exceeded mere rights of access as described in Abbott, and that Respondent breached those rights by retaining the children in the United States. Petitioner enrolled the children in school, met their physical and religious needs, participated in their day-to-day lives, made decisions about their care, and lived with them as their primary caretaker until the August 2012 retention. The Court found that under the Convention, Petitioner's care of the children until their removal demonstrated her exercise of those rights of custody at the time of their retention in the United States. The Court determined that Petitioner met her burden, and that Respondent did not establish any exceptions. It granted her petition.

Friday, October 18, 2013

Haylock v. Ebanks, 2013 WL 5410463 (E.D.La.) [Honduras] Necessary Costs and Expenses]

In Haylock v. Ebanks, 2013 WL 5410463 (E.D.La.) the district judge made an order granting an award of reasonable attorney's fees to Plaintiff, Krisna Juliek Haycock, against Defendant, Carlos Rafael Ebanks, Jr., and referred the matter to a Magistrate Judge to determine the reasonableness of Plaintiff's fee application.

The Magistrate observed that the Supreme Court indicated that the "lodestar" calculation is the "most useful starting point" for determining the award of attorney's fees. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). After determining the lodestar, the court must then consider the applicability and weight of the twelve factors set forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974). The court can make upward or downward adjustments to the lodestar figure if the Johnson factors warrant such modifications. See Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir.1993). However, the lodestar should be modified only in exceptional cases. Id. (citing City of Burlington v. Dague, 505 U.S. 557, 562 (1992)). The fee application submitted by Haycock sought to recover fees from two attorneys who it claimed works on the case, Michael D. Conroy, who practiced in Covington, Louisiana, and Cesar Gonzalez Icaza, who practiced in Roatan Bay, Honduras. Stephen Conroy, Christie Marks, and Haycock submitted affidavits in support of this motion. The Court observed that attorney's fees must be calculated at the "prevailing market rates in the relevant community for similar services by attorneys of reasonably comparable skills, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 895 (1984). Such a request is reasonable if it falls within the "range" of reasonable fees awarded. See Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 328 (5th Cir.1995). The applicant bears the burden of producing satisfactory evidence that the requested rate is aligned with prevailing market rates. See NAACP v. City of Evergreen, 812 F.2d 1332, 1338 (11th Cir.1987). Satisfactory evidence of the reasonableness of the rate necessarily includes an affidavit of the attorney performing the work and information of rates actually billed and paid in similar lawsuits. Blum, 465 U.S. at 896 n. 11. However, mere testimony that a given fee is reasonable is not satisfactory evidence of a market rate. See Hensley, 461 U.S. at 439, n. 15.

No affidavit of a disinterested attorney in this matter who could have attested to Gonzalez's position or his prestige at his law firm was attached. Because the mere testimony that a given fee is reasonable is not satisfactory evidence of a market rate, the Court found Gonzalez's fee unreasonable, and unrecoverable. Ebanks did not oppose Conroy's proposed hourly rate of $250.00 per hour. Where an "attorney's rate ... is not contested, it is prima facie reasonable." La. Power & Light, 50 F.3d at 328. Conroy's verified report of attorney's fees also requested fees for Amanda D. Hogue, an attorney at "Conroy Law Firm, PLC" who was not enrolled in this matter. None of the affidavits provided that Ms. Hogue was an attorney in this case, or provided any other specific indication of the qualifications, experience, or any special skills Ms. Hogue had to determine whether or not her proposed rate of $125.00-$150.00 per hour was reasonable. Therefore, the reasonableness of the rates listed for Ms. Hogue were disallowed for failing to present evidence substantiating her background, education and experience. The Court found that the five hours Ms. Hogue billed was unrecoverable

Given the fact that Haycock submitted an itemized list of billable entries, as well as the fact that these entries were reasonably delineated, the Court conducted a line-by-line analysis of the bill in question to determine whether it is reasonable. It sorted Haycock's entries into the following categories: (a) vague entries, (b) irrelevant entries and (c) block billed entries. The Court awarded Conroy 50% of the total time requested in connection with the vague entries. The fee application submitted by Haycock contained a number of entries which were viewed as "block billing." This term can be defined as the time-keeping method by which an attorney lumps together the total daily time spent working on a case, rather than itemizing the time expended on specific tasks."This practice makes it impossible for the Court to determine the reasonableness of the hours spent on each task." While block billing creates impediments to the analysis of the attorney's fee bill, the Supreme Court has indicated that it is not a basis for refusing to award attorney's fees. Hensley, 461 U.S. at 437, n. 12. The method most often used to compensate for block billing is a flat reduction of a specific percentage from the award. The Court reduced the value of all block billed entries for block billed entries for Conroy by 30%.

Haycock requested reimbursement for the transportation costs, including airfare, hotel costs and travel expenses of Haycock and S.C.E Federal courts typically award successful ICARA petitioners "airfare incurred in traveling to and from the United States to appear in court."Paulus, at *4.See, e.g., Freier v. Freier, 985 F.Supp. 710, 714 (E.D.Mich.1997) (awarding $2,422.00 for Petitioner's round trip and minor child's one-way airfare); Guaragno v. Guaragno, No. 09-CV-187, 2010 WL 5564628, at *5 (N.D .Tex. Oct. 19, 2010), aff d, 2011 WL 108946 (N.D.Tex. Jan. 18, 2011). Furthermore, federal courts have also awarded expenses that were "reasonable and necessary" for a petitioner to participate in the ICARA proceeding and "pick up" the child. See e.g., id. See also 42 U.S.C. 11607(b)(3) (including "transportation costs related to the return of the child" among "necessary expenses incurred by or on behalf of the petitioner"); see Guaragno, 2010 WL 5564628, at *5 (N.D.Tex. Oct. 19, 2010), aff'd, 2011 WL 108946 (N.D.Tex. Jan. 18, 2011) (finding that the costs for two flights-one for trial and one for pickup of child-were "reasonable and necessarily incurred"); Salinier v. Moore, 2010 WL 3515699, at *4 (D.Colo. Sept., 1, 2010) (finding that travel and lodging expenses for petitioner's parents is clearly inappropriate, but that costs associated with Petitioner's wife's travel, including travel and lodging expenses, who also testified at the hearing, was appropriate). The Court found the appropriate award for transportation costs as it pertains to Haycock and S.C.E., totaled $4,079.32. Haycock sought reimbursement for Tammy Haycock Moore's flight from New Orleans Louisiana, to Orlando, Florida, to accompany S.C.E., as Haycock herself was unable to travel to obtain the child. Ebanks argued that this expense was unnecessary, as the child was being "released to her local attorney, Mr. Conroy, from the child's school," and Tammy was not required to facilitate the transportation. A petitioner may be awarded reasonable expenses that are necessary to facilitate the return of the child after an ICARA proceeding, unless the opposing party can establish that such award would be "clearly inappropriate." 42 U.S.C. s 11607(b)(3); Guaragno, at *5; Freier, 985 F.Supp. at 714. Although Ebanks argued that reimbursing Tammy's transportation costs were unreasonable and unnecessary, Courts have awarded expenses to the parent or relative facilitating the transportation or return of the child. Paulus, at *4;see, e.g., Freier, 985 F.Supp. at 714;Guaragno, at *5. 42 U.S.C. s 11607(b)(3) (including "transportation costs related to the return of the child" among "necessary expenses incurred by or on behalf of the petitioner"); see Aldinger, 157 Fed. App'x 317, 2005 WL 3116540; Neves v. Neves, 637 F.Supp.2d 322 (W.D.N.C.2009); Guaragno, 2010 WL 5564628, at *5 (N.D.Tex. Oct. 19, 2010), aff'd, 2011 WL 108946 (N.D.Tex. Jan. 18, 2011) (finding that the costs for two flights-one for trial and one for pickup of child-were "reasonable and necessarily incurred"). Ebanks failed to establish that this expense is clearly inappropriate. The Court found that reimbursement for Tammy's travel expenses of $557.80, as documented, was granted.

Haycock sought to recover approximately $787.41 in airfare costs, $1,121.54 for hotel, food and other travel expenses associated with the trip Cesar Gonzalez made to New Orleans for the ICARA bench trial. Haycock also sought to recover approximately $1,343.00 in fees associated with the "Hague Trip to Guanaya, Bay Islands" for interviews associated with Gonzalez and "Nilla Ramos" a Hague Attorney, "Geraldina" a psychologist and "Silvia" a social worker. Ebanks opposed reimbursement of the Hague Trip Interviews, and for Gonzalez's expenses related to food, gas and hotel stay during his stay in New Orleans for the failure to provide adequate documentation. The Court found that the airfare of Gonzalez, as evidenced by the receipt attached to the motion for $739.70 was recoverable. Similar to Distler v. Distler, attorneys fees and costs were recoverable to foreign counsel who was not Plaintiff's trial attorney in the United States because the foreign counsel had helped to facilitate the return of the child under the ICARA and similar to Gonzalez, had provided legal advice and attested to Petitioner's rights under the Hague Convention. See Distler, 26 F.Supp.2d 723, 728 (D.C.N.J.1998); see also Grimer v. Grimer, No. 93-4086-DES, 1993 WL 545261 (D.Kan. Dec. 8, 1998).

Sunday, October 6, 2013

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.