Slight v. Noonkester, 2014 WL 282642 (D.Mont.)[Ireland] [Wrongful Retention] [Chasing order] [Well-Settled] [Petition Denied]

In Slight v. Noonkester, 2014 WL 282642 (D.Mont.) Petitioner David Slight ("David") filed Petition for Return of Child against Respondent Ingrid Noonkester
("Ingrid")  David is an Irish citizen who has resided in Dublin all of his life. Ingrid
 was a Lithuanian citizen who at some point moved to Dublin. In June 2004, David
 and Ingrid met and began a relationship. David and Ingrid lived together until their separation in January of 2010. In November of 2005, David and Ingrid's son, L.S., was born.  After their separation, David and Ingrid shared responsibilities as to L.S.'
 upbringing. Ingrid exercised custody the majority of the time. In May 2012, the parties arranged for Ingrid to leave L.S. in  David's custody on May 25, 2012. However, Ingrid never arrived at the designated  location with L.S. Instead, on May 25, 2012, Ingrid and L.S. boarded a plane and  flew to the United States, with their ultimate destination being Brady, Montana.  The purpose of traveling to Montana was to move in with Alan Noonkester  ("Alan"). Alan and Ingrid decided to live together after meeting on the
 internet. . Ingrid only decided to move L.S. out of Ireland after consulting materials
 provided by Treoir, which is an Irish organization that supplies information to  unmarried parents. The materials informed Ingrid that under Irish  law, the mother is the sole guardian of a child born unto unmarried parents.  Accordingly, unless the father petitions a court for joint guardianship, the  mother can remove the child from Ireland without the father's permission.  David had no knowledge of Ingrid's plans, nor did he ever consent to L.S.'  departure from Ireland. In addition, at no time prior to L.S.' departure did  David ever apply to an Irish court for guardianship, custody, or access.

At some point in 2012, David filed a  petition for L.S.' return with the Irish Government. David claimed that this  petition was denied due to the fact that David was not a guardian of L.S. at the  time of the abduction.  On June 5, 2012, David applied to the Dublin Metropolitan District Court  for both sole custody of L.S. and to be named his guardian. On September 11, 2012, the Dublin Court appointed David as both joint  custodian and joint guardian of L.S.  In the order appointing  David joint custodian, the Court stated that:  Provided that the party to whom custody/access of the said child(ren) is hereby given shall not remove the said child(ren) from the jurisdiction of this Court without having first obtained in writing of the other party or the leave of this Court or of any other Court of competent jurisdiction.  On April 15, 2013, David filed an application for access under the Hague  Convention with the Ireland Department of Justice and Equality.

After their arrival in the United States, Ingrid and L.S. moved to Brady,  Montana, to move in with Alan. Ingrid and Alan married in August of 2012.  While in Brady, L.S. attended school in the Dutton/Brady School District  from August 2012 until February 2013. After his arrival in Montana, L.S. developed a close relationship with Alan.  L.S. and Alan have good relationship, with the two participating in typical  father-son activities. L.S.  also developed close and meaningful  relationships with Alan's two children from a prior relationship. L.S. also has developed close ties with his step-grandparents. In February 2013, Alan, Ingrid, and L.S. moved to Worden, Montana, so that  Alan could take a job at the Signal Peak coal mine. In the fall of 2013, L.S.  enrolled at the Huntley Project Elementary School. L.S. had done well at school  and obtained good grades. Despite being in second grade, he read eighth grade-level chapter books.  After his move to Worden, L.S. developed more close ties to family members. Ingrid and L.S. did not face an immediate threat of deportation. Ingrid and  Alan visited the U.S. Citizenship and Immigration Services Field Office in
 Helena, where they receive assurances that Ingrid was in the country legally. She
 did face several restrictions, such as being unable to work and if she leaves
 the U.S., she will not be allowed to return. Therefore, Ingrid did not hold
 employment and was a homemaker. Ingrid was in the process of applying for status
 as a permanent resident for herself and L.S. 

  David filed the Petition and commenced the action on December 27,
 2013. Ingrid filed a Rule 12(b)(6) Motion to Dismiss, arguing that under Irish law, L.S.' removal could  not have been unlawful as David did not have any custodial rights. David  conceded that Ingrid did not wrongfully remove L.S. from Ireland, but responded  that Ingrid wrongfully retained L.S. after the Dublin Court named David as a  joint custodian and joint guardian. The Court found that David's claim failed because Ingrid had not retained L.S. in violation  of David's rights of custody.  David conceded that Ingrid did not wrongfully remove L.S. when she left  Ireland on May 25, 2012. When determining a party's custody rights in the  child's prior habitual residence, the Court must look to that country's law.  Hague Convention, Art. 14; see also Whallon v. Lynn, 230 F.3d 450, 456 (1st  Cir.2000). In Ireland, if a child is born to unmarried parents, only the mother  is the guardian of the child. Guardianship of Infants Act, 1964, Part II, s 6(4)  (Act No. 7/1964) (Ir.), available at http://
 www.irishstatutebook.ie/1964/en/act/pub/0007/index.html. The unmarried father
 may petition a court to be appointed guardian and secure custody rights.  Id.,
 Part II, s 11; see also Redmond v.. Redmond, 724 F.3d 729, 732 (7th Cir.2013).
 Accordingly, if an unmarried Irish father fails to apply for an order granting
 him custody prior to his child's departure from Ireland, than that removal is
 not unlawful. J. McB. v. L.E., [2010] IESC 48, P 32(Ir.). Since David did not
 apply to be named a guardian over L.S. prior to May 25, 2012, Ingrid's removal
 of L.S. was not wrongful.

David relied on a wrongful retention theory. David argued that while
 Ingrid's removal of L.S. was not wrongful, the September 11, 2012 Dublin Court
 orders appointing him joint guardian made Ingrid's retention of L.S. in the U.S.
 wrongful and in violation of Irish law. The Court rejected David's  argument.
This was not a typical wrongful retention claim. When a party applies for custody after the other parent leaves the country, the subsequent order is referred to as a "chasing order." Courts typically do  not give deference to chasing orders. See Feder v. Evans-Feder, 63 F.3d 217, 231  n.3 (3d Cir.1995) (where neither the trial or appellate court considered an  order granting custody that the father obtained from an Australian court after  the mother and child had left for the U.S.). "[C]ourts have repeatedly assumed  rights of custody for purposes of Article 3 of the Convention means rights of  custody at the time of removal." White v. White, 718 F.3d 300, 307 (4th  Cir.2013).
The Court observed that there is nothing in the Convention requiring the recognition of an ex post    facto custody order of foreign jurisdictions. In Redmond, a factually similar case dealing with unmarried parents in  Ireland, the Seventh Circuit did not give weight to an Irish court's order  granting the father joint guardianship after the mother and child had moved to  the U.S. 724 F.3d at 742. The Court specifically rejected the father's  contention that the mother wrongfully retained the child in the U.S. after the  father obtained the Irish court order naming him guardian over the child.  The Court noted that the "Hague Convention is an anti-abduction treaty; it is not a treaty on the recognition and enforcement of [foreign] decisions on custody." Id. Enforcing chasing orders is beyond  the Hague Convention's concept of wrongful retention. Id. at 740. Applying those principles here, the district court held that the Dublin Court's issuance of its Sept. 11,  2012 orders did not render Ingrid's retention of L.S. wrongful. When Ingrid and L.S. left the U.S. on May 25, 2012, she did  not violate David's custody rights, as none existed. When David subsequently  applied for and received guardianship over L.S., this did not mean that Ingrid's  retention breached David's rights of custody. Such chasing orders do not create  a wrongful retention under Art. 3 of the Convention. This is because the Court  must look to the custody rights existing at the time of removal.  White, 718  F.3d at 307. Since David did not have any custody rights when Ingrid left  Ireland, her retention of L.S. in the U.S. is not wrongful.

However, the court found that Respondent established the  "settled" defense, and denied the petition. If more than a year has elapsed from the  date of the wrongful removal or retention, the Court must order the return of  the child "unless it is demonstrated that the child is now settled in its new environment." Hague Convention, Art. 12.  David did not file the Petition until December 27, 2013. He argued that the filing of  the Petition should be equitably tolled based on the fact  that he sought the return of L.S. through the Ireland Department of Justice and  Equality and the U.S. Department of State, but he got hung up on bureaucratic  delays.  Equitable tolling stays the running of Art. 12's one year timeline for the  "settled" defense. Furnes v. Reeves, 362 F.3d 702, 723 (11th Cir.2004). It  applies when "circumstances suggest that the abducting parent took steps to  conceal the whereabouts of the child from the parent seeking return and such  concealment delayed the filing of the petition for return. Duarte v. Bardales,  526 F.3d 563, 570 (9th Cir.2008). Only the Fifth, Seventh, and Ninth Circuits  allow equitable tolling in Hague Convention cases. Lozano v. Alvarez, 697 F.3d  41, 55 (2d Cir.2012). The Court refused to expand equitable tolling beyond  active concealment as the Ninth Circuit has refused to do so. Equitable tolling only applies "where two  related conditions are met: (1) the abducting parent concealed the child and (2)  that concealment caused the petitioning parent's filing delay. " Id. Equitable  tolling does not apply if the petitioner knew of the child's location. Id . at  1015.  David knew of L.S.' location in late July 2012 and had regular contact with L.S.  Since Ingrid did not take steps to actively conceal L.S.' location after David  learned of his address in Montana, equitable tolling did not apply.

The Court indicated that to determine whether a child is "settled," the following factors must be  considered:   (1) the child's age; (2) the stability and duration of the child's residence in    the new environment; (3) whether the child attends school or day care    consistently; (4) whether the child has friends and relatives in the new area; (5) the child's participation in community or extracurricular school    activities, such as team sports, youth groups, or school clubs; and (6) the    respondent's employment and financial stability. B. Del C.S.B., 559 F.3d at 1009. In addition, the child's immigration status may  only be relevant "if there is an immediate, concrete threat of deportation."  In addition, this Court may also consider the child's wishes if he has  "attained an age and degree of maturity at which it is appropriate to take  account of its views." Hague Convention, Art. 13. In applying the factors, the  Court concluded that L.S. was settled in  Montana. Additionally, L.S.  obtained the level of maturity where the Court could consider his viewpoints. L.S. told the Court that he wanted to stay in  Montana. L.S. would like to maintain a relationship with David, but he did  not  want to be returned to Ireland. L.S. has expressed a desire to someday visit  David in Ireland.

Larrategui v. Laborde, 2014 WL 128048 (E.D.Cal.) [Argentina] [Grave Risk of Harm] [Petition Denied]

In Larrategui v. Laborde, 2014 WL 128048 (E.D.Cal.) Petitioner Daniel Carlos Chiramberro Larrategui  and Respondent Valeria Eguiguren Laborde ("Respondent") were both born in Argentina. They met and began dating in 1996 and began cohabitating in 1997. S.C. was born in Argentina in December 1999. In or about 2002, Petitioner and Respondent separated when S.C. was two years old. When the parties separated, S.C. resided primarily with Respondent, but Petitioner frequently spent time with S.C. When S.C. was about two to three years old, she was diagnosed with Developmental Dysphasia. In Argentina, through the Hospital Aleman, S.C. was under the care of numerous physicians and mental health professionals, including Dr. Hernan Amartino ("Dr.Amartino"). In Argentina, S.C. was attending Colegio Bilingue Armonia, a school that integrates students with Special Education Needs.  In 2006, Respondent began discussing with Petitioner the possibility of S.C. relocating to the United States in the spring of 2007. In 2007, Respondent moved to the United States from Argentina. She was currently married and had a son of approximately three and a half years old. When Respondent left to the United States, Petitioner cared for S.C. Child custody proceedings occurred in Argentina beginning in 2007. In 2010, an Argentina court granted Petitioner full custody of S.C. Beginning in 2009, S.C. began experiencing emotional outbursts. In November 2012, through an Argentina court order, Respondent was allowed to bring S.C. to the United States from December 13, 2012, until January 29, 2013. S.C. did not return to Argentina by January 29, 2013. S.C. was currently enrolled at Monte Vista Middle School, a public school in San Joaquin County. In the United States, S.C. was evaluated by Dr. Crawford in 2012 and then again in 2013. Dr. Crawford determined that S.C. "runs the risk of psychotic breakdown, and if not supported adequately is in danger of developing a Borderline Personality Disorder." The Kaiser Permanente medical group diagnosed S.C. with Borderline Intellectual Functioning and a mood disorder.  S.C. was currently attending weekly therapy sessions.

Respondent did not dispute that S.C. was a habitual resident of Argentina and was being wrongfully retained in the United States, but she argued that S.C. should not be returned because S.C. was in grave risk of physical and psychological
harm because S.C. had serious medical and mental health needs and the resources in
place in Argentina, including Petitioner's understanding of S.C.'s needs, were
gravely inadequate to provide the necessary care to S.C.

The district court observed that a parent may establish a grave risk to
defeat or delay the return of a child "by showing that it would disrupt an ongoing
course of medical treatment and severely impact the child's health. But the parent
would have to provide clear and convincing evidence both (1) of the child's
serious medical needs and (2) of the home country's inability to provide the
necessary care." Cuellar v. Joyce, 596 F.3d at 511.

          Unlike the district court's finding in Cuellar (i.e., that the child
suffered of "ataxia," which was based on testimony and written statements made by
an unidentified physician, a professor, and a registered nurse), here, there was
substantial and credible evidence to show that S.C. had Borderline Intellectual
Functioning and a mood disorder that may develop into a more serious condition,
including a Borderline Personality Disorder. Furthermore, there was evidence that
there was an ongoing course of medical treatment. Accordingly, the Court found by
clear and convincing evidence that S.C. had serious medical needs. It also found that there was was  insufficient evidence that S.C. could not receive the medical care she requires in Argentina. At best, the evidence demonstrated that S.C.'s medical care in the United States may be better than that provided to her in Argentina. Regardless,
the comparison of whether one country's medical opportunities are better than
another's does not constitute a grave risk of harm as contemplated by the drafters
of the Hague Convention nor is it within the purview of 42 U.S.C. s 11603. Accordingly, Respondent failed to prove by clear and convincing evidence that S.C.'s home country was unable to provide the necessary care and, therefore, no grave risk of harm if S.C. was returned to Argentina.

The Court granted the Petition and imposed narrowly focused undertakings to ensure that S.C. received the necessary medical treatments and ensured that Respondent was allowed access to and visitation with S.C. See Kufner, 480 F.Supp.2d at 516 (adopting similar undertakings to ensure that the children received medical care and the respondent was allowed to visit the children).

Gee v Hendroffe, 2014 WL 60325 (D.Nev.) [South Africa] [Federal & State Judicial Remedies] [42 U.S.C. § 11603(b)][“Located”]

In Gee v Hendroffe, 2014 WL 60325 (D.Nev.)  William Gee and Hannie Hendroffe  were married in South Africa in 2002. They had  two children together, "J .G." and "S.G.".   In January 2013, the couple was divorced in Clark County, Nevada. . As part of the custody agreement, the parties stipulated to move to South Africa with the children and  that respondent could relocate to Australia by December 2017, or when petitioner relocated from South Africa, whichever occurred first.  On or around July 11, 2013, respondent left South Africa for Las Vegas, taking the children with her. She neither informed petitioner of her intention to take the children, nor obtained his consent prior to her departure. Later that same day, respondent emailed petitioner informing him that she was on her way to the United States, and that she planned on returning with the children around August 9, 2013.    

      According to respondent, on August 27, 2013, she left Las Vegas with the
children and her friend/babysitter, Yasmine Acevado, for southern California. Respondent asserted that she returned to Las Vegas to attend to legal matters on August 30, 2013, but left the children in California with Ms. Acevado for the day.  On August 30, 2013, Gee filed a petition in the district  court pursuant to the Hague Convention, demanding that the children be returned to South Africa. On August 31, 2013, Hendroffe and the children left the United States for Kuala Lumpur, flying out of Los Angeles, California. The petition and motion for warrant were not served until September 2,  2013. The documents were delivered to Ms. Acevado's home in Las   Vegas, and respondent was not aware of either the motions or the hearing    scheduled for September 4, 2013, until she was contacted by petitioner's counsel via e-mail the day of the hearing-several days after she had already left the United States.

        After the petition and motion for warrant were filed, the magistrate set a hearing on the matter for September 4, 2013.  Although the magistrate's order required respondent to be present at the hearing, respondent was never personally served with notice of such. After receiving notification of the hearing from petitioner's counsel, respondent contacted the court via telephone and indicated that she was no longer present in the United States. In an effort not to delay the hearing, the magistrate allowed respondent to appear telephonically.  At that hearing, the magistrate sua sponte raised the issue of whether the court had subject matter jurisdiction over this litigation, and ultimately continued the hearing to September 6, 2013. The magistrate set an evidentiary hearing concerning jurisdiction for October 8, 2013, and ordered all parties, including the children, present and in person at the hearing.  On September 23, 2013, the magistrate determined that the court had subject matter jurisdiction and that a hearing on jurisdiction was no longer necessary. Accordingly, the magistrate ordered that the October 8, 2013, evidentiary hearing would instead concern the petition for judicial review and motion for warrant.  The magistrate further ordered that petitioner, respondent, and their two children must be present, in person, at the aforementioned hearing, and that there would be no exceptions to the personal appearance requirement.  

        On October 8, 2013, the magistrate held the evidentiary hearing as scheduled. Present at the hearing were petitioner, petitioner's counsel, and respondent's counsel.  Respondent and the children, in violation of the magistrate's order, did not attend the hearing.  At the hearing, respondent's counsel raised the issue of whether the court had personal jurisdiction over respondent.  Petitioner's counsel called the petitioner to testify under oath.Petitioner was asked questions by his counsel, then respondent's counsel cross-examined him and, finally, the magistrate asked petitioner questions of her own.  No other witnesses were presented.
  
 On October 29, 2013, the magistrate issued a report recommending the petition
be granted, a warrant in lieu of habeas corpus be issued, and respondent's motion
to dismiss be denied. Respondent filed objections to the report and recommendation, specifically objecting to the magistrate's findings that the court has personal and subject matter jurisdiction. 

The District Court observed that it "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate."28 U.S.C. §636(b)(1). Where a party timely objects to a magistrate judge's report and recommendation, then the court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made."28 U.S.C. § 636(b)(1).

       The district court concluded that it did not have subject matter jurisdiction over
this matter.   Under ICARA any person seeking the return of a child in the United States may commence a civil action under the convention by "filing a petition 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).  Petitioner was  required to demonstrate that the court had jurisdiction by proving the children were located in this district at the time he filed the petition. He failed to do so.

       The parties' disagreement regarding subject matter jurisdiction centered around
the word "located" as it is used within the context of an ICARA petition. Relying on a footnote in Holder, the petitioner argued that the place where the children are discovered, apparently whether or not they are physically there when the petition is filed, is the determinative location. Because the children were "discovered" in Las Vegas, petitioner asserted that this court had jurisdiction.  In finding that the court did have subject matter jurisdiction, the magistrate concluded that respondent's contention that the children were in California with Ms. Acevado when the petition was filed was irrelevant because petitioner did not have knowledge of that trip, and his reasonable belief that the children were in Las Vegas was enough to establish jurisdiction. The district court held that neither the plain language of the statute nor the decisions relied on by petitioner supported that conclusion.

       In Holder, the court touched on the meaning of the word "located" in passing. In doing so, the court stated that:  [Petitioner] probably could not have brought his Hague Convention petition in  California in the first instance because California probably does not have  jurisdiction to hear it... At least one of our sister circuits has held that  "located" has a particular meaning in the context of ICARA, distinct from "a  traditional residency test."  Lops v. Lops, 140 F.3d 927, 937 (11th Cir.1998).  The Lops definition, "the place where the abducted children are discovered," is  more equivalent to the concept of physical presence.  140 F.3d at 937. This kind  of common-sense definition makes sense in the context of the ICARA and the Hague  Convention, concerned as they are with the Hague Convention's consistent  application across borders.     Holder, 305 F.3d 854, n. 5 (9th Cir.2002). 

The district court found that the footnote in Holder simply comports with a plain reading of the statute. It was clear that the word "located," as used within the context of ICARA, has a more particular and exacting meaning than a "traditional residency test," which is generally more broad. While under a "traditional residency test" analysis the children in this case may have been "located" in Nevada, that is not the proper analysis here. Under ICARA, jurisdiction exists only where the children are physically present at the time of filing. In this case it was undisputed that respondent took the children to California on or around August 27, 2013. What was disputed, however, is the date that the children returned to Las Vegas, if at all. Petitioner has produced evidence demonstrating only that respondent was in this district on August 30, 2013. Respondent produced evidence, including cell phone pictures and an affidavit from Ms. Acevado, tending to show that the children were in California on August 30, 2013-the day the petition was filed in Nevada. While the magistrate and petitioner expressed doubt regarding the credibility of such evidence, no such credibility determination was necessary. The burden is on the moving party to demonstrate that the court has jurisdiction. It is not enough to show generally that the children were in Nevada at some point in the weeks or days prior to the filing of the petition. Rather, jurisdiction under ICARA requires a more particular showing that the child is in the district at the moment the petition is filed. Here, petitioner had not produced any evidence that the children, as opposed to only respondent, were physically present in this district at the time the petition was filed. Accordingly, petitioner did not satisfy his burden of demonstrating that the children were located in this district on the date he filed the petition. Accordingly, the court did  not have jurisdiction over the matter and dismissed the case.

Langa v Langa, --- Fed.Appx. ----, 2014 WL 60110 (C.A.3 (N.J.)) [South Africa] [Habitual Residence]

In Langa v Langa, --- Fed.Appx. ----, 2014 WL 60110 (C.A.3 (N.J.))  Sibusiso Langa appealed from an order of the District Court dated April 8, 2013, denying his petition against his wife, Lulamo Langa, seeking the removal to South Africa from the United States of the parties' ten-year old twin sons, Uzoma and Uzile. The Third Circuit affirmed. 

The parties to this proceeding were both South Africans, but prior to 2012 they had resided in the United States, where their twins were born on May 15, 2002, in Suffern, New York. On July 25, 2012, Lulamo left the United States and went to South Africa with the parties' twin sons, who at least until that time had been residents of the United States. When Lulamo went to South Africa with the twins, her husband was already there as he earlier had gone to that country for business reasons. As it happened he could not leave South Africa because he was involved in criminal proceedings there arising out of a fatal automobile accident. On August 18, 2012, about three weeks after Lulamo went to South Africa with the twins, she
returned with them to the United States without the consent or even the knowledge
of her husband.   Prior to the time that Lulamo left the United States with the twins to go to South Africa, the parties anticipated moving to that country as a family to establish the family's residence there. This move was a complex undertaking involving the disposal of assets in the United States, the shipment of personal property to South Africa, and the arrangement for changing the twins' schools, in itself a complex matter particularly because the twins were not fluent in all of the languages in use in South Africa. The parties were working toward the goal of relocating to South Africa. However, when Lulamo arrived in South Africa with the twins, Lulamo and the twins did not reunite with her husband as Sibusiso and Lulamo stayed in different
cities. Lulamo and the twins never established what would be regarded as a conventional residence in South Africa as they stayed with her parents in Johannesburg during the entire three weeks they were there.  The twins never were enrolled in school in South Africa, and they did not engage in activities with other children. Neither parent arranged for housing for the family in South Africa prior to the time that Lulamo and the twins returned to the United States.

           The Third Circuit pointed out that the critical question was whether prior to August 18, 2012, the date the children left South Africa to return to the United States, they had become habitual residents of South Africa. See  Karkkainen v. Kovalchuk, 445 F.3d 280, 287 (3d Cir.2006).

         Sibusiso argued on appeal that the District Court erred in relying on what he regarded as dicta from  Feder v. Evans-Feder, 63 F.3d 217 (3d Cir.1995), in incorporating an "acclimatization" factor into its consideration of the twins' habitual residence. The Court pointed out that in Feder it explained: “[W]e believe that a child's habitual residence is the place where he or she has  been physically present for an amount of time sufficient for acclimatization and  which has a degree of settled purpose' from the child's perspective. We further  believe that a determination of whether any particular place satisfies this  standard must focus on the child and consists of an analysis of the child's  circumstances in that place and the parents' present, shared intentions  regarding their child's presence there.”

The father also argued that the court should view the case from the twins' perspective and thus should reject the District Court's conclusion that the twins' habitual residence had not become South Africa prior to their return to the United States.

The Court of Appeals agreed with the District Court that the twins' habitual residence before they returned with their mother to the United States was where it always had been, i.e., in the United States. It declined to repudiate the law that it set forth in Feder and quoted above. The twins' three-week stay with their grandparents in Johannesburg could cannot be regarded, whether viewed objectively or subjectively, as sufficient to establish their habitual residence in South Africa, no matter how that term is defined. The Hague Convention simply was not adopted by the adhering parties to require the return of children in situations like the one here.

Hollis v O’ Driscoll, --- F.3d ----, 2014 WL 43890 (C.A.2 (N.Y.) [New Zealand] [Habitual Residence] [Attorneys Fees & Costs]

In Hollis v O’ Driscoll, --- F.3d ----, 2014 WL 43890 (C.A.2 (N.Y.) the Second Circuit affirmed a judgment of the district court granting the petition of John  Matthew Hollis for the return of his daughter, H.L.O., from New York to New Zealand. It held that the District Court did not err in concluding that: (1) New Zealand was  H.L.O.'s habitual residence prior to removal, notwithstanding a lack of stable accommodations during a significant portion of her time there; (2) H.L.O.'s indefinite removal by her mother Olivia Skye O'Driscoll from New Zealand to New York was  contrary to the parties' last shared intent and, therefore, wrongful; and (3) H.L.O. had not "acclimated" to life in New York such that it was the equivalent of a new habitual residence.  It remanded the cause for further proceedings,  including a determination of whether to award costs to Hollis.

       Hollis and O'Driscoll were  both citizens of New Zealand, where they lived when their  relationship began in January 2010. After O'Driscoll became pregnant with H.L.O. in  March 2010, the two became engaged and lived together in Auckland, New Zealand in  the months leading up to H.L.O.'s birth in December 2010, and for the first five months of H.L.O.'s life.   In May 2011, the relationship began to deteriorate. Around that time, Hollis and  O'Driscoll each moved separately to Tauranga, New Zealand, and they never lived  together again. After moving to Tauranga, O'Driscoll and H.L.O. did not have their own  apartment, but instead "stayed in various guest bedrooms and on various  couches." In October 2011, O'Driscoll spent two months in Japan with H.L.O. working as a model, after which she returned to New Zealand.   In early January 2012, although still living separately, O'Driscoll and Hollis spent time  together with H.L.O., and Hollis had expressed a desire to reconcile. When O'Driscoll raised the possibility of re-launching her modeling career in New York,  Hollis indicated that he would consent to such a move on the assumption that he would also move to New York to be with O'Driscoll and H.L.O. In February 2012, after the relationship deteriorated further and O'Driscoll made clear that they would not reconcile, Hollis indicated that he did not consent to O'Driscoll moving to New York with H.L.O., and he raised the possibility of commencing a Hague Convention action if she did.   Hollis eventually agreed that O'Driscoll could take H.L.O. to New York, but only on the condition that she would stay there for no longer than four or five months. Despite this  apparent agreement, O'Driscoll remained concerned that Hollis did not consent to her taking H.L.O. to New York without him. As a result, O'Driscoll lied to Hollis about her  departure date, informing him that he would have a "play date" with H.L.O. on March 7, 2012, but instead departing with H.L.O. on a plane for New York that same day.    When O'Driscoll did not return to New Zealand in August 2012, Hollis contacted the  New Zealand central authority to initiate a Hague Convention proceeding. The attorney  assigned to Hollis promptly notified O'Driscoll that she must return H.L.O. to New  Zealand, but O'Driscoll did not comply, resulting in commencement of the present  action on March 25, 2013.

        The Second Circuit pointed out that in cases arising under the Hague Convention and ICARA, it reviews a district court's factual findings for clear error and its legal conclusions de novo. Guzzo v. Cristofano, 719 F.3d 100, 109 (2d Cir.2013). It accepts the trial court's findings unless it has a definite and firm conviction that a mistake has been  committed." Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir.2013) .

In determining a child's habitual residence, a  court must first 'inquire into the shared intent of those entitled to fix the child's residence  at the last time that their intent was shared. O'Driscoll's argument that New Zealand could not  have been H.L.O.'s habitual residence because H.L.O. did not have a stable home after O'Driscoll separated from Hollis in May 2011 was unavailing. The purpose of the habitual- residence inquiry under the Hague Convention is to determine which State's laws  should govern the custody dispute. Accordingly, the inquiry is limited to the "country of  habitual residence”, not whether the accommodations within the country were stable. Moreover, placing weight on the stability of a child's accommodations would require the court to delve into the merits of the underlying custody claim-a matter beyond the scope of  the Court's authority in resolving Hague Convention claims. Hollis and O'Driscoll lived together in New Zealand for approximately nine months prior to H.L.O.'s birth and for the first six months of H.L.O.'s life, and they  considered New Zealand home. That O'Driscoll and H.L.O. did not have stable accommodations after O'Driscoll and Hollis separated did not  affect, much less negate, the clear establishment of their habitual residence in New Zealand.

      O'Driscoll argued that, even if New Zealand was H.L.O.'s habitual residence, Hollis consented to her moving to the United States with H.L.O. indefinitely.  Based on the evidence adduced at trial, the District Court disagreed, determining that even though the parties had, at one point, anticipated moving to the United States  together, their shared intent at the time of removal was for O'Driscoll to bring H.L.O. to New York for no longer than five months. This finding was based on, inter alia, an email from O'Driscoll stating that her stay in New York would last no longer than four months with a temporary return to New York  for Fashion Week and O'Driscoll's attempt to deceive Hollis regarding her departure for New York with H.L.O. The determination of a habitual  residence is a "fact-intensive [one] that necessarily varies with the circumstances of  each case." Guzzo, 719 F.3d at 109. It could not conclude that the District Court's determination here was erroneous, much less clearly erroneous.

     The district court did err in determining that H.L.O.'s one-year relationship in  New York with a nanny and enrollment in a weekly play group did not amount to  "acclimation," such that, "notwithstanding a lack of shared parental intent to change the  child's long-term residence," New York had become the equivalent of "home."   In sum, the District Court made no error of law or fact in concluding that H.L.O. was  wrongfully removed from New Zealand, the state of her habitual residence, and  ordering repatriation to that State.

The Second Circuit observed that ICARA requires the "court ordering the return of a child" to order the respondent to pay these  costs unless "such order would be clearly inappropriate."42 U.S.C. § 11607(b)(3);  Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir.2013). It held that the District Court, as the court  ordering the return of the child, is responsible in the first instance for determining what costs, if any, should be assessed against O'Driscoll, with respect to both the District Court and Court of Appeals proceedings. Ozaltin, 708 F.3d at 377 . Accordingly, it remanded the cause for consideration of whether it is appropriate to award costs to Hollis, and if so, in what amount.

Hirst v. Tiberghien, 2013 WL 6827813 (D.S.C.) [United Kingdom] [Attorneys Fees]

In Hirst v. Tiberghien, 2013 WL 6827813 (D.S.C.) Petitioner Amor Paulina Hirst ("Petitioner") filed an action against Respondent Xavier Emanuel Guillaume Salvatore Tiberghien ("Respondent") for  the return of children to the United Kingdom. On April 30, 2013, the court granted the Petition and  ordered the return of M.S.T. and A.D.T. to Petitioner.   Petitioner moved for necessary expenses associated with  bringing the an action under ICARA, seeking legal fees and expenses in the amount of $30,577.05; and non-legal expenses in the amount of $9,603.08. Petitioner also filed a bill of costs, requesting that Respondent be    taxed costs totaling $1,234.60. (ECF No. 72.) Respondent did not object to Petitioner's bill of costs. As a result, the court granted Petitioner costs in the amount of $1,234.60.

The Court observed that an award of fees and costs in cases under ICARA is governed by 42 U.S.C. s 11607(b), which provides that "[a]ny court ordering the return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay  necessary expenses incurred by or on behalf of the petitioner, including court costs,  legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent  establishes that such order would be clearly inappropriate."42 U.S.C. § 11607(b)(3).Section 11607(b)(3) specifically provides for  shifting the burden of fees, costs, and expenses to a person who wrongfully retains a  child, except where such shifting would be "clearly inappropriate."    ICARA requires Respondent to show that it would be clearly inappropriate to grant  attorney's fees and expenses to Petitioner. In opposing Petitioner's motion, Respondent argued that the attorney's fees and expenses sought by Petitioner were clearly inappropriate because they were excessive. because her  attorney engaged in overbilling by filing frivolous motions and by over-preparing for  hearings and/or trial. She further asserted that the non-legal  expenses sought by Petitioner were excessive because her husband did not need to  travel to the United States with her because he was not a party to these proceedings.  In addition, Respondent argued that an award of attorney's fees and expenses was clearly inappropriate because of his financial circumstance. He asserted that is financial condition warranted a finding of clear  inappropriateness because he now had the added expenses of having to travel to  England to see M.S.T. and A.D.T. and attempting to resolve the inevitable, expensive  custody litigation.

       The court rejected each of  Respondent's arguments. It could not ignore
that Respondent's actions caused Petitioner to incur considerable expenses in a
situation where the court ordered the return of M.S.T. and A.D.T. to her. Therefore, the
court found that Respondent failed to establish that it would be clearly inappropriate
for the court to award attorney's fees and expenses to Petitioner.

Petitioner asserted that she had to procure necessary services from (1) local South Carolina counsel, Kirby Mitchell of South Carolina Legal Services; (2) out of state lead counsel with  experience and expertise in Hague Convention matters, Stephen J. Cullen  and Kelly A. Powers  of Miles & Stockbridge P.C.; and (3) an English law  expert on the rights of custody under English law, Simon Craddock of Brethertons LLP.  She asserted that she did not seek reimbursement for  Mitchell's time, and she only sought a fixed fee of $5,309.55 for Craddock's time and $3,292.50 for his out-of-pocket travel expenses. Petitioner asserted that  her request for $21,975.00 in fees for the Miles &  Stockbridge attorneys was a significant financial concession because their legal fees in actuality amounted to
 
       The court indicated that the determination of a reasonable attorney's fee is a matter of discretion with the  court.  In determining the amount of reasonable attorney's fees to award under ICARA, federal  courts typically apply the lodestar method. Under the lodestar method, the court multiplies the number of reasonable hours  expended by a reasonable hourly rate.    In determining what constitutes a reasonable number of hours and rate, the court  considers the following twelve factors set out in  Barber v. Kimbrell's Inc., 577 F.2d 216, 226 n. 28 (4th Cir.1978):(1) the time and labor expended; (2) the novelty and difficulty  of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the outset of the  litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorney's fees awards in similar cases. While the court must consider all twelve of  the factors, the court is not required to rigidly apply these factors, as not all may affect the fee in a given case.


         Petitioner asserted that she hired Cullen and Powers of Miles & Stockbridge P.C. out of Washington, D.C., because of their experience at trying Hague Convention  cases.  She argued that hourly rates of $550.00 for Cullen and $375.00 for Powers "are within the range of current reasonable  rates in the District of South Carolina for lawyers with comparable skills and experience at firms of similar reputation and resources." Petitioner further argued that she had  to find counsel outside of the South Carolina legal community because she could not find a Hague Convention specialist within the state.  Petitioner did not file any affidavits to support the hourly rates proposed for Cullen and Powers. Generally, petitioners for legal fees are required to file affidavits from other attorneys to support claims regarding the prevailing market rates of attorneys in the  community for similar cases. See  Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984) However, in the absence of specific evidence regarding the prevailing market rate, the court may  establish a reasonable rate based upon its own knowledge and experience of the  relevant market.  Neves, 637 F.Supp.2d at 341-342. In this regard, the court accepted the hourly rates for Cullen and Powers as requested by Petitioner based on her unopposed suggestion that child abduction cases under ICARA do not routinely occur in  this community and the rates are reasonable based on the novelty and complexity of the relevant issues.  Petitioner submitted a billing information memo from Miles &  Stockbridge P.C. to establish the hours expended. The court notes that Cullen and Powers spent approximately one  hundred eighty-one  hours working on this matter. It further noted that Petitioner only sought compensation for forty-six
(46) hours out of the one hundred eighty-one hours specified on the billing information memo. In analyzing the hours spent litigating  this matter in the context of the relative Barber factors, and considering Respondent's  objections regarding excessiveness due to overbilling, the court found that the forty-six (46) hours of billable  attorney time sought by Petitioner were reasonably necessary to litigate the return of  M.S.T. and A.D.T. to her.

        Based on the foregoing, the court finds that attorney's fees in the amount of $21,975.00 were reasonable and appropriately awarded to Petitioner. In addition, the court fouond that Petitioner should receive $8,602.05 for expenses associated with retaining the services of her English law expert.


       Petitioner also requested an award of $9,603.08 based upon the following non-legal  expenses: $3,258.00 for Petitioner and her husband's airfare and hotel for the show cause hearing; $328.00 for Petitioner's rental car expenses for the show cause hearing; $3,335.00 for Petitioner and her husband's airfare and hotel for the bench trial; and $2,680.81 for M.S.T. and A.D.T.'s airfare to the United Kingdom.  Petitioner attached to her motion receipts for these expenditures. The court found that the non-legal expenses for her airfare, hotel, and rental car and M.S.T. and A.D.T .'s airfare were reasonable and necessary to Petitioner's  efforts to have the children returned to the United Kingdom. The court agreed with Respondent that it would be clearly inappropriate to require him to pay for Jamie  Hirst's airfare since his participation in this matter was not necessary to the return of  M.S.T. and A.D.T. to Petitioner. Therefore, the court deducted $2,962.78 from the airfare  expenses sought by Petitioner and found the remaining amount of $6,640.30 in non-legal expenses reasonable and necessary to Petitioner's efforts to have M.S.T. and A.D.T. returned to her.

Skolnick v Wainer, 2013 WL 6732656 (D.Conn.) [Singapore] [Consent or Acquiescence] [Motion to Dismiss]

[Singapore] [Consent or Acquiescence] [Motion to Dismiss]

In Skolnick v Wainer, 2013 WL 6732656 (D.Conn.) on August 21, 2013, Petitioner Fred Jay Skolnick filed a Verified Petition seeking the return of his five minor children to Singapore. Respondent  moved to dismiss the Amended Petition for failure to state a claim. Respondent contended that Petitioner has "waived" his right to seek relief under the Hague Convention or alternatively that he "acquiesced" in  the retention of the children in the United States by stipulating during the proceedings to the Respondent having  temporary physical custody pending the outcome of the action. Respondent's motion was denied.

According to the Amended Verified Petition Petitioner and his wife, Respondent Andrea Wainer, were both American citizens and were married in the United  States in November 1999, but  never lived here together as a married couple. They had five minor children together ranging in ages from four to twelve years old,  all of whom were born in either Hong Kong or Tokyo.   In June 2011, while the parties were living in London, Ms. Wainer filed for divorce in the Principal Registry of the Family Division, London, England (the "London Action").  In January 2012, the parties mutually agreed to move to Singapore with their children while the London Action was pending. In May 2013, with the aid of a meditator, the parties reached an agreement for shared custody in which the children  would continuously live in the same apartment, and Petitioner and Respondent would alternate between living in this apartment with the children and their own studio  apartments in the same building. Petitioner alleged that shortly after reaching this agreement, Respondent unlawfully removed the children from Singapore to the United States.    Starting in April 2012 and up until the time of removal on May 31, 2013, Petitioner alleged that the parties and their five children were habitual residents of Singapore within the meaning of the Hague Convention. Petitioner contended that under Singaporean law, he had rights of custody and was actually exercising such rights up until the wrongful removal.  On July 10, 2013, Petitioner filed an action in the High Court Republic of Singapore  seeking the return of the children.   Petitioner filed this action in the United States District  Court for the Eastern District of New York, on August 21, 2013, which was transferred to this Court on September 20, 2013.  

 On October 17, 2013, the parties entered into a stipulation which provided, inter ali, that "the parties shall have joint legal custody of each of the Minor Children with primary physical residence with" Ms. Wainer, and the children remaining enrolled in Greenwich public schools.  "After an initial period of reunification" with the children, Mr. Skolnick was to have "liberal and reasonable access to the Minor Children by phone, fax, e-mail, text message and/or Skype, as well as visitation as to be agreed upon by the parties."

            On November 22, 2013, the Court held a hearing on Petitioner's motion for an emergency order for visitation with the children. The parties were able to come to an agreement to retain the services a child psychologist "to facilitate reunification between the children and Mr. Skolnick" starting the next morning with the purpose of enabling him to have "reasonable and liberal access to the children going forward" until Mr.
Skolnick's departure to Singapore on December 1, 2013, and thereafter upon future visits pending the resolution of this action.

        The District Court observed that to survive a motion to dismiss, a complaint must contain sufficient  factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' "  Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)  (quoting  Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although detailed allegations are not required, a claim will be found facially plausible only if "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."  Conclusory allegations are not sufficient. .

        Ms. Wainer contended that there "is a dearth of factual allegations in the Petition regarding Petitioner's custody rights and the exercise of those rights"to state a plausible claim.  Respondent also contended that by  signing the Stipulation providing Ms. Wainer with primary physical custody, Petitioner "waived" his right to seek relief under the Hague Convention, or in the alternative, that by doing so, he "acquiesced" in the retention of the children in the United States
.
           The district court observed that to state a claim under the Hague Convention, Petitioner must allege (1) that the children were habitually resident in Singapore and removed to or retained in the United States, (2) that Petitioner had a right of custody under Singaporean law, and (3) that he was actually exercising this right at the time of removal. The Court found that under these standards, the Amended Petition amply alleged a Hague Convention claim. Petitioner alleged that as the natural parent of the children, he had a right of  custody under Singaporean law.  The Amended Petition further alleged that the parties mutually agreed to relocate to Singapore and establish it as their  habitual residence, and up until the children's removal in May 2013, exercised joint  physical custody over the children. The Amended Petition also detailed how the parties reached an elaborate agreement for shared custody in Singapore whereby the children would continuously live in the same apartment, and Ms. Wainer and Mr. Skolnick would alternate between the children's apartment and their respective separate studio apartments in the same building. Once the five children were removed from Singapore, the Amended Petition described how Petitioner attempted to pursue legal remedies in Singapore and the United States, and traveled to Connecticut in an attempt to reunite with his children. Accordingly, Petitioner stated a plausible claim for relief under the  Hague Convention. See  Hofmann v. Sender, 716 F.3d 282, 291 (2d Cir.2013)  ("Hofmann's multiple visits to New York as well as his participation in family vacations demonstrated that he was exercising his custodial rights up to the time the divorce  proceedings were initiated."); Norden-Powers v. Beveridge, 125 F.Supp.2d 634, 640  (E.D.N.Y.2000).

      Respondent argued that by signing the Stipulation, "Petitioner waived his rights under the Hague Convention by stipulating to primary physical custody of the parties' children" with Respondent.  Respondent also asserted that by signing the Stipulation, Petitioner "acquiesced" in the retention of the children in the  United States. The Court found that Respondent's "waiver" argument was really one of ripeness or jurisdiction. She asserted that "Petitioner does not have a claim for wrongful retention at this time because, pursuant to the parties' agreed upon Stipulation, Ms. Wainer is to have physical custody of the children in Greenwich at least until January 8, 2014. And, there is no express or implied provision in the Stipulation that on January 8, 2014, Ms. Wainer is to return the children to Singapore."  Because Respondent was entitled to exercise primary physical custody over the children under the Stipulation, she asserted that Petitioner's Amended Petition alleged no more than an "anticipatory breach of the parties' Stipulation."    An Article III court cannot entertain a claim that is not ripe, i .e. one "which is based upon contingent future events that may not occur as anticipated, or indeed may not  occur at all." Thomas v. City of New York, 143 F.3d 31, 34 (2d Cir.1998)

        The Court noted that a Hague Convention claim can allege either "wrongful removal or retention," 42 U.S.C. § 11603(f)(2) and, Petitioner amply alleged wrongful removal. This allegation was sufficient to state a justiciable claim for relief. To the extent that Respondent asserted that due to the Stipulation her retention of the children was no longer "wrongful," this assertion went to the affirmative defense of acquiescence Respondent cites two cases purporting to  support her jurisdictional argument:  Toren v. Toren, 191 F.3d 23, 25 (1st Cir.1999) and Falk v. Sinclair, 692 F.Supp.2d 147 (D.Me.2010) for the proposition that "there can be no wrongful retention until such time as the children are required to be returned to Singapore" under the terms of the Stipulation. As an initial matter, the Court held that whether events subsequent to the filing of the Amended Petition defeat Petitioner's claim speak to the affirmative defense of acquiescence. Respondent's invocation of this affirmative defense is not properly considered on  Respondent's motion to dismiss. Affirmative defenses may only "be raised by a pre-answer motion to dismiss under Rule 12(b)(6), without resort to summary judgment  procedure, if the defense appears on the face of the complaint." McKenna v. Wright, 386 F.3d 432, 436 (2d Cir.2004). The Stipulation upon which Respondent relied was not signed until after Petitioner filed the Amended Petition. The resolution of this defense on a motion to dismiss is especially inappropriate here given that "even where the grounds for one of [the] 'narrow' exceptions have been established, the district court is not  necessarily bound to allow the child to remain with the abducting parent," and must exercise its discretion in light of the entire record developed at a hearing on the merits to consider whether such an order would further the aims of the Convention. Blondin, 189 F.3d at 246 n.4.
   
        On the merits, Respondent's argument failed as well. As Respondent acknowledged "acquiescence under the Convention requires either: an act or statement with the  requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period  of time." Friedrich, 78 F.3d at 1070. The showing required is "stringent."   Baxter v. Baxter, 423 F.3d 363, 370 (3d Cir.2005). The Stipulation was drafted to modify the First Superior Court Ex Parte  Protective Order, which was entered without Petitioner's consent and prevented him  from exercising custody or visitation rights. Rather than evincing Mr. Skolnick's intent to renounce his rights, the Stipulation expanded his rights in contrast to the limitations imposed by the First Superior Court Ex Parte Protective Order.

   The parties agreed that they "shall have joint legal custody of each of the Minor Children with primary physical residence with" Ms. Wainer.  The Stipulation also provided that it was entered into "without prejudice to either party's claims" before this Court, "the action pending in London or the Singapore Action including, but not limited to, any claims regarding custody of or visitation with the Minor Children." Another provision appeared to not only undermine Respondent's  argument, but also to prohibit her from even advancing it: "No adverse inference shall be drawn from the continuation of the Conditions of  Protection pursuant to this Stipulation or the underlying Order, and neither party nor its  attorneys in any jurisdiction shall request any tribunal to do so."    Far from "a convincing written renunciation of rights," Friedrich, 78 F.3d at 1070, by its own terms the Stipulation evinced the parties' intent to reach a temporary agreement for custody, and for Mr. Skolnick to gain, not renounce, his access to the children pending the outcome of this case. The parties' Stipulation clearly evinced their intent only to preserve the  status quo pending the resolution of this action. Thus, this provisional agreement does not meet the stringent standards for a finding of acquiescence.