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Tuesday, August 26, 2014

Buenaver v Vasquez, --- F.Supp.2d ----, 2014 WL 3058250 (E.D.N.Y.) [Colombia] [Now Settled] [Petition Granted]




In Buenaver v Vasquez, --- F.Supp.2d ----, 2014 WL 3058250 (E.D.N.Y.)    Petitioner and Respondent were married in Colombia. On January 31, 2005, their child, R.V.B. was born in Cali, Colombia. By order dated June 2, 2009 of the Seventh Family Court in Cali, Colombia, Petitioner and Respondent were divorced. The Order stated:  With respect to the minor [R.V.B.], the spouses have agreed that parental rights  will continue to be exercised by both parents; the custody and personal care  will be held by the mother.   The Order further defined the Father's visitation with the Child, The Father was also ordered to pay child support in the amount of one million five hundred thousand pesos (COP $1,500,000) and 80% of additional expenses, such as school materials and medical expenses. The Father, a commercial pilot with Avianca Airlines, exercised his rights of visitation and  paid child support as directed, including tuition at a private school. In February 28, 2011, the Mother"summoned the father of the minor... for the purpose of requesting an increase in the fee for child support ...The Mother and Father entered into an agreement, approved by the Ministry of Social Welfare in the Republic of Colombia, to increase the amount of child support paid by the Father and they ratified the terms of the earlier Order, including visitation rights. The Modification stated that "the custody and personal care" will be held by the Mother, and further stated:  The parents are obliged to provide their daughter with support, stimuli, good  example, care, attention, affection and dedication required to fully,  efficiently and satisfactorily fulfill their obligation, aimed at the minor  being brought up in an environment surrounded by safety, discipline, affection,  organization, respect and proper attention of her formation, friendships and
healthy psychological development.

There was no material dispute concerning the circumstances surrounding the
removal of R.V.B. from Colombia to New York. The Father was aware of and consented  to the Child traveling with the Mother to visit the Mother's sister, Maria
Patricia Vasquez, in New York from December 16th to December 26, 2011. The Mother acknowledged that she needed to Father's consent to take R.V.B. on vacation. R.V.B. did not return to Colombia as the Father expected on December 26th. When the Father realized the Child was not on the plane, he called the Mother's mother to find out what happened, and was told that the Mother said she would not be returning to Colombia. On January 1, 2012, the Father received a phone call from the Mother, who confirmed she would not be returning to Colombia.

 On August 1, 2013, the Father filed his petition under the Hague Convention.
 The Mother testified that when she first came to New York, she and R.V.B. lived
with her sister and her sister's family in Elmont, New York, where she and R.V.B.
stayed for about a year. Soon after arriving in New York, beginning in January 2012, R.V.B. enrolled in school and attended first grade at the Clara H. Carlson School  in the Elmont Union Free School District. R.V.B.'s . report card noted she "has made new friends" and "has progressed." She had a separate report card for the English as Second Language ("ESL") program she was taking at school, which noted her teacher's amazement at how much English she had leaned so quickly, and that work was needed to catch up her on reading and writing skills.  While at Clara, in April and June 2012, R.V.B. was awarded the Sponge Award and Student of the Month in her ESL class.   For second grade, R.V.B. attended a different school in the Elmont School District, Covert Avenue School. R.V.B.'s ESL Report Card in the 2012-2013 school year, her second grade year, noted her progress and her excellent work habits. Yet, her classroom report card noted that she was not meeting grade level expectations in reading, writing, math, science or social studies. The Mother testified that while at Covert, R.V.B. was awarded the Student of the Month. Following second grade, at the suggestion of her teachers, R.V.B. attended an ELS summer program before starting third grade to help her get her reading and writing skills to grade level.    In September 2013, after she and her Mother moved to Bayside, Queens, R.V.B. started attending another school in that neighborhood.  Since starting the school in Bayside, she attended an after-school program three days a week, which included classes on chess, yoga and cooking.  R.V.B. also received tutoring help for math, reading and language,, and in the summer of 2013, began taking tennis lessons.  The Mother testified that R.V.B. has adopted English very well, speaking English with her friends, watching TV in English, and reading and writing all of her schoolwork in English.  Socially, her mother testified that R.V.B. has made several friends, both in and out of school and from her old school, attends birthday parties, and socializes with the relatives who live locally.  She has medical insurance through Health First and received regular medical care. The Mother testified that after living with her sister for almost a year, she and R.V.B. moved to 453 Cameron Avenue, Elmont, a second floor apartment belonging to a friend for which she paid $300 .00 a month in rent. They stayed there for five months, until they moved to the apartment in which they lived now, in Bayside, paying $1,000 per month for rent.  The Mother and R.V.B. currently live in this apartment by themselves, and R.V.B.'s school, P.S. 31, was a block away.    The Mother worked cleaning houses and offices and babysitting. Upon furthering questioning by the Court, the Mother testified that she did not work and was essentially supported by her sister for the year that she lived with her. They had a family disagreement that caused the Mother to move out with R.V.B., but their relationship is fine now. The Mother began work cleaning houses, and worked at a Laundromat for a short period of time. There was also testimony that she worked at Checkers for a time. Currently, she cleaned houses and babysits if asked. In 2012 and 2013, the Mother testified she earned approximately $550.00 per week.  When the Mother and R.V.B. came to New York, it was on tourist visas.  The Mother's visa expired in either March or April of 2012,  and she applied for residential immigration status in September 2012 for her and R.V.B., stating that she had custody of R.V.B. The Mother testified that because she is in the process of soliciting a residential visa, if she leaves the country, she will not be able to re-enter for ten (10) years.  

  The Mother claimed that she was never in hiding from the Father since arriving
in New York. He never emailed the Mother once between the time she and R.V.B. left
Colombia and the filing of the Petition, even though her email address was still
the same.  She also testified that she had given the Father her sister's address in New York as 147 Hunnewell, Elmont, in July 2011, six months before she left, as well as her sister's cell phone number, neither of which changed while she was living there with the Child. 

The Court observed that if an action for return of the child has been commenced within one year of the wrongful removal or retention, the judicial authority "shall order the return of the child forthwith."See Hague Convention, art. 12. If more than one year has passed before proceedings have commenced, the authority "shall also order the
return of the child, unless it is demonstrated that the child is now settled in
its new environment."Id. The respondent opposing return of the child must show
that the child is settled by a preponderance of the evidence. See 42 U.S.C. s
11603(e)(2)(B);  Lozano v. Montoya, --- U.S. ----, ----, 134 S.Ct. 1224, 1229, 188
L.Ed.2d 200 (2014).

The Court pointed out that the Order concerning their divorce specifically stated that the Mother and the Father share "parental rights." Specifically, it stated:
With respect to the minor [R.V.B.], the spouses have agreed that parental rights
 will continue to be exercised by both parents; the custody and personal care
 will be held by the mother. There was no dispute between the parties that under Colombia law, by nature of at least his visitation rights with the Child, the Father's consent was required for the Child to leave the country. Here, like in Abbott, the
Father's consent was required for the Child to leave the country. In Abbott, the
Supreme Court viewed that as one that constitutes a right to establish the child's
residency, and as such, is a "right of custody" as defined by article 5 of the
Convention. By the same reasoning, the Court found that the Father's right to
authorize the Child to exit Colombia was a right to establish the Child's
residency, and thus a "right of custody" protected by the Hague Convention.

There was no real dispute in this case that the Father had consented for the
Child to travel to New York to visit with the Mother's sister and family until
December 26, 2011. In light of the Court's finding that the Father had "rights of
custody," the Mother's retention of the Child in New York beyond the period of
time consented to by the Father was wrongful. Nor was there any dispute that Colombia was the Child's habitual residence. It is where her parents were married, it is where she was born, it was where the parents got divorced, and is where the Child has lived for her entire life, until moving to New York. Thus, the Court found that Colombia was the Child's habitual residence, and it was from there that the Mother wrongfully retained her. 

The Court pointed out that the court may consider whether the child is "settled in its new environment" if the petition has been filed over one year since the wrongful
removal. Convention, art. 12; 42 U.S.C. s 11603(e)(2)(B);  Lozano, 572 U.S. ----,
134 S.Ct. at 1229, 188 L.Ed.2d 200.   If an action for return of the child has been commenced within one year of the wrongful removal or retention, the judicial authority "shall order the return of the child forthwith."See Hague Convention, art. 12. If more than one year has passed before proceedings have commenced, the authority "shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment." The respondent opposing return of the child must show
that the child is settled by a preponderance of the evidence.  The Second Circuit has found that " 'settled' should be viewed to mean that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment." Lozano, 697 F.3d 41, 56 (2d Cir.2012). Stating that the court may consider "any factor" relevant to the child's living arrangement, the Second Circuit outlined that when evaluating if the child is settled, the factors a court should generally consider are: (1) the age of the child; (2) the stability of the child's residence in the new  environment; (3) whether the child attends school or day care consistently; (4)  whether the child attends church [or participates in other community or  extracurricular school activities] regularly; (5) the respondent's employment
 and financial stability; (6) whether the child has friends and relatives in the
 new area; and (7) the immigration status of the child and the respondent.    Loranzo, 697 F.3d at 57.

The Court held that the immigration status of the child is not "singularly dispositive" but the importance of this factor on settlement "will inevitably vary for innumerable reasons, including: the likelihood that the child will be able to acquire legal
status or otherwise remain in the United States, the child's age, and the extent
to which the child will be harmed by her inability to receive certain government
benefits." Loranzo, 697 F.3d at 57. The Second Circuit has declined to adopt a
categorical rule that this factor should only be dictated by the threat of deportation.    The stability of the child's residence factor is a factor when evaluating if a child is settled. The Court found that  the Child here was not sufficiently settled to warrant denying the return order. The record reflected that since the Child arrived in New York, she lived in at least three different locations. Initially, she lived with her Mother's family for about a year until a family dispute forced she and the Mother to find a new place to live. She then lived with a co-worker for a period of several months. Most recently, the Child and Mother live in a rented apartment in Bayside.   These frequent moves have also caused the Child to attend three different schools since arriving in New York. From January 2012 until the end of that school year, she attended the Clara School. She attended the Covert Avenue School for the 2012-2013 school year (her second grade), and started yet a third school, P.S. 31, in the 2013-2014 school year for third grade. This is not settled.   Furthermore, the Mother's employment was not settled. She testified that she was currently cleaning offices and babysitting when asked. There was evidence that for some unspecified periods of time, she worked at Checkers Restaurant and a Laundromat, and it was unclear from the record the reason for her leaving those jobs. The Mother testified that she earned approximately $550 per week and paid $1000 a month in rent.  Finally, while not a dispositive factor, the immigration status of the Mother was a factor that disfavored finding the Child is settled in her new environment. The Mother testified that she and the Child originally traveled to New York on a tourist visa that expired in either March or April 2012. In September 2012, she applied for residency on behalf on herself and the Child, which application was pending. Thus, the Mother and Child were here illegally, and subject to deportation at any time. While there was no evidence that deportation was imminent, and indeed, may never occur, it was a threat that clouded the Child's daily living.

  Considering all the various factors, and based on the facts that the Child had
already lived in various places, has attended three different schools since coming
to New York, that the Mother's employment and financial situation are unstable,
and the immigration status, the Court found that Respondent had not proven that
the Child was settled in her new environment to deny her return to Colombia. The petition was granted.

Tavares v Morales, 2014 WL 2038318 (S.D.N.Y.) [Spain] [Now Settled] [Petition Denied]



In Tavares v Morales, 2014 WL 2038318 (S.D.N.Y.)  Inocencia Herrera Taveras's , who resided in Spain, filed a Petition seeking return of her child, LAH. The Court held that although Petitioner  made out a prima facie case, Respondent established that the child was now "settled" in the United States and denied the petition.

LAH, was born in Santo Domingo, Dominican Republic, on September 20, 2005. Petitioner and Respondent, who never married, lived together with LAH in the Dominican Republic from the child's birth until September 2007.  The parties separated in September 2007.  In approximately March 2008, Petitioner moved to Spain in order to take advantage of a better economic climate, and the child began to live with Respondent, who remained in the Dominican Republic.  Respondent returned the child to Petitioner on December 9, 2009, when Petitioner returned to the Dominican Republic after acquiring Spanish residency. In early March of that year, Petitioner decided to return to Spain and made plans to leave the child with Respondent. In June 2010, Petitioner returned to the Dominican Republic from Spain. The child then moved in with Petitioner.  On August 29, 2010 Respondent arrived at Petitioner's home and took the child, over Petitioner's objection. Petitioner-who was seven months pregnant with LAH's half-sister-then traveled to Respondent's home in an attempt to recover LAH. On  the following day the parties signed an agreement stating that Respondent "relinquishes and gives custody of the minor [LAH] to Ms. Inocencia Herrera Taveras"; that "Ms. Inocencia Herrera Taveras accepts custody of the minor [LAH], with all legal consequences"; and that "Mr. Jose Leopoldo Alonzo Morales will have visitation with his daughter during the school vacation period and will maintain phone communication with
her." On September 10, 2010, the First Court of Children and Adolescents of the National District in the Dominican Republic issued an order that "approved" the parties' August 30, 2010 agreement. 

Petitioner returned to Spain in September;  after her departure, LAH, who remained in the Dominican Republic, lived with Petitioner's mother and visited with Respondent on weekends.  On February 2, 2011, LAH left the Dominican Republic to live with Petitioner in Spain.  LAH became a legal resident of Spain by April 2011, and remained there until May 2012. Respondent's mother obtained US residence in 1998 through her sister, who was a United States citizen. With his mother's "sponsorship," Respondent applied for residence in 2000, before LAH was born.  Respondent moved to the United States in April 2011, while LAH was in Spain, and eventually obtained his residence.   When Respondent became aware that he could also apply for LAH's residence, he conferred with Petitioner, who agreed that LAH should apply for United States residence. LAH's application for residence was submitted in 2008.    In April 2012, the United States embassy in the Dominican Republic contacted Respondent to inform him that it had scheduled an interview for LAH's permanent residence application. Petitioner agreed to send LAH to the Dominican Republic and, ultimately, the United States.  LAH arrived in the Dominican Republic on May 5, 2012, and completed the consular interview, accompanied by Respondent and his mother. LAH remained in the Dominican Republic until early July. She spent part of that time living with Petitioner's family and part living with Respondent, his mother, and other members of his family. Respondent left the Dominican Republic for the United States on June 26, 2012, and Petitioner arrived in the Dominican Republic from Spain on June 28, 2012. With Petitioner's permission-LAH traveled from the Dominican Republic to the United States accompanied by Respondent's mother and arrived in the United States on July 12, 2012.  Respondent and his mother testified that approximately twenty-eight days after LAH entered the United States they were informed that she had received her residence card at approximately this time . According to LAH's permanent residence card, she became a United States resident on July 11, 2012.    According to Respondent, he told Petitioner that LAH had obtained her permanent residence almost immediately after LAH received the card-approximately twenty-five to thirty days after LAH had arrived in the United States. Respondent testified further that Petitioner demanded LAH's return. Petitioner testified that after LAH arrived in the United States, Respondent repeatedly dodged her questions about whether the child had received her residence, stating only that "[t]hings will arrive." According to Petitioner, the first time Respondent told her that LAH had received her residence was in a conversation on November 25, 2012.  

The Hague Petition was filed on October 31, 2013. The Court observed that 
to make out a prima facie case under the Hague Convention, the petitioner must
show, inter alia, that "the child was habitually resident in one State and has been removed to or retained in a different State. Respondent challenged only this element. habitual residence of the child." Petitioner understood that the child would eventually return to live in Spain. This understanding was manifest in the parties' May 5, 2010 "Amicable Agreement," which provided that after LAH obtained her residency, she was to "reside and study in Spain with her mother" and would "spend December and summer holidays in the United States of America with her father." The parties' August 30, 2010 custody agreement confirmed this understanding. Petitioner testified unequivocally that she understood that Spain would be the child's residence, and nothing in Respondent's testimony suggested otherwise. Petitioner has demonstrated that Spain is the child's habitual residence,  and with that showing has established a prima facie case.

The District Court noted that when a child has been wrongfully retained, Article 12 of the Convention requires the court to "order the return of the child forthwith" if the petition is filed within one year of the wrongful retention. Article 12 then provides: "The
judicial or administrative authority, even where the proceedings have been
commenced after the expiration of the period of one year referred to in the
preceding paragraph, shall also order the return of the child, unless it is
demonstrated that the child is now settled in its new environment."    This provision thus "allows-but does not require-a judicial or administrative authority to refuse to order the repatriation of a child on the sole ground that the child is settled in its new environment, if more than one year has elapsed between the abduction and the petition for return." To determine when the one-year period began to run the Court adopted the definition of the official Reporter of the Hague Convention which noted that "[t]he fixing of the decisive date in cases of wrongful retention should be understood as that on which the child ought to have been returned to its custodians or on which the holder of the right of custody refused to agree to an extension of the child's stay in a place other than that of its habitual residence." . When the petitioner
consents to the child's stay with respondent until a specific date, the retention
becomes wrongful after that date-the date "on which the child ought to have been
returned."Perez-Vera Report P 108. If, on the other hand, the petitioner does not
specify a return date at the outset, or initially consents to a stay of indefinite
duration, the retention becomes wrongful on the date the petitioner "refused to
agree to an extension of the child's stay." The Court concluded that regardless of
whether it credits Respondent's testimony or what the Court views as the more
plausible version of Petitioner's testimony, the retention became wrongful before
October 31, 2012. The "now-settled" defense was available to Respondent. The  Court concluded, -based on Petitioner's unequivocal testimony,  that she did not consent to Respondent's retention of LAH became wrongful as of the end of the summer of 2012. Because her Petition was filed over one year after the end of summer 2012, the "now-settled" defense was available to Respondent.

The Court noted that although the Hague Convention does not define the phrase "settled," the Second Circuit has explained that the term "should be viewed to mean that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment." Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir.2012). Although courts "may consider any factor relevant to a child's
connection to his living arrangement," the Circuit has explained that courts
should "generally" consider: (1) the age of the child; (2) the stability of the child's residence in the new  environment; (3) whether the child attends school or day care consistently; (4)  whether the child attends church or participates in other community or  extracurricular school activities regularly; (5) the respondent's employment and
 financial stability; (6) whether the child has friends and relatives in the new
 area; and (7) the immigration status of the child and the respondent. The court reviewed each of these factors and concluded that LAH was settled in the United States.

  The Court recognized that it may order repatriation notwithstanding
Respondent's proof of an Article 12 defense. Blondin v. Dubois, 238 F.3d 153,
164 (2d Cir.2001) ("As we read Article 12, it allows-but does not, of course,
require-a judicial or administrative authority to refuse to order the repatriation
of a child on the sole ground that the child is settled in its new environment, if
more than one year has elapsed between the abduction and the petition for
return."). It chose not to do so here. This was not a case in which Petitioner waited
years to assert her custody rights. The child's interest in remaining settled is also a factor the Court may consider. As the Supreme Court has explained, while the Convention "reflects a design to discourage child abduction," it "does not pursue that goal at any cost." Lozano v. Alvarez, --- U.S. ----, ----, 134 S.Ct. 1224, 1235, 188 L.Ed.2d 200 (2014). In certain instances, "the child's interest in settlement" may overcome the petitioner's right to adjudicate the custody dispute in the child's habitual
residence. This was one of those cases. Because the evidence shows overwhelmingly that LAH was now settled- thriving-in the United States, the Court declined to exercise its authority to order repatriation notwithstanding Respondent's Article 12 defense. The Petition was denied.

Sanchez-Londono v. Gonzalez, 752 F.3d 533 (1st Cir., 2014) [Colombia] [Habitual Residence] [Petition Denied]



In Sanchez-Londono v. Gonzalez, 752 F.3d 533 (1st Cir., 2014) the mother claimed that Respondent–Appellee Nelson González (the “father”) wrongfully retained their daughter, E.G., in the United States and sought an order requiring the child's return to Colombia, where E.G. lived with her mother for two-and-a-half years. The district court found that no wrongful retention of E.G. occurred under the Hague Convention because the United States was E.G.'s place of habitual residence. The First Circuit affirmed. 

The mother was a citizen of Colombia who, in 2004, entered the United States illegally. The father came to the United States from the Dominican Republic and became a naturalized U.S. citizen in April 2000. They married on December 20, 2005. In October 2006, the couple's daughter, E.G., was born in Massachusetts. E.G. was a citizen of both the United States and Colombia. After E.G. was born, the family lived together in Framingham, Massachusetts, for more than two years. The mother was stopped for a traffic violation in 2008, prompting concerns that she would be identified as an illegal immigrant and deported. The couple agreed that the mother temporarily would move back to Colombia. From there, they believed she would have a better chance of obtaining legal residency in the United States. The parents agreed that the mother would take E.G. back to Colombia with her, and that the mother, E.G., and her older daughter, C.A. would all move to the United States once the mother obtained legal status. The mother and E.G., who was two years old at the time, moved to Colombia on December 7, 2008. What was intended to be a short stay in Colombia turned into a stay of two-and-a-half years. While the mother and E.G. were living in Colombia, the father worked on petitions seeking permission for the mother and C.A. to enter the United States legally. He filed a petition for the mother in January 2009 and for C.A. in December 2009. C.A.'s petition was granted on December 30, 2010. The mother's petition was denied because she had previously entered the United States illegally and therefore was excluded from reentering for ten years. Believing that the father would take good care of both girls and that it would improve her chances of obtaining a waiver if both of her daughters were living in the United States, the mother agreed to let both C.A. and E.G. move to the United States. The father returned to Colombia to pick up the girls, and he flew with them  back to the United States on May 28, 2011. E.G. was approximately four-and-a-half years old at the time. When the father and girls arrived in the United States in May 2011, they lived in the father's residence in Framingham, Massachusetts. In December 2011, the father informed the mother that he would be sending C.A. back to Colombia.  The mother demanded that he also return E.G., who was then five years old, but the father refused. The mother's suspicions of an affair were confirmed when she spoke with C.A. upon C.A.'s return to Colombia in February 2012.  According to the mother, the father cut off all communication between her and E.G. from December 2011 until October 2013. He obtained a new phone number in February 2012, filed for divorce on April 4, 2012, and in May of 2012, he moved from Framingham to Quincy, Massachusetts, with E.G. and McShane. The father did not inform the mother of the move or of their new address, thereby interfering with her ability to communicate with her daughter. When E.G. began kindergarten at a school in Quincy in the fall of 2012, the father did not give the school the mother's contact information. On November 21, 2012, the Middlesex Probate and Family Court granted the father's uncontested petition for divorce, giving him sole legal and physical custody of E.G. The father married McShane after the divorce, and on January 2, 2013, the pair wrote an e-mail to the United States Citizenship and Immigration Services (“USCIS”) asking that the mother's immigrant visa petition be terminated. The e-mail explained that the parents had divorced and that the father no longer supported the mother's request.

The mother filed a petition for E.G.'s return in the district court on May 3, 2013. The district court denied the mother's petition for E.G.'s return. The court found that the date of E.G.'s retention was December 2011, when the mother demanded E.G.'s return to Colombia and the father refused. The district court also found that immediately prior to December 2011, the shared intent and settled purpose of both parties was that E.G. live in the United States, as neither parent had intended that E.G. abandon her habitual residence there. While the court found that E.G. had been acclimatized to Colombia by the time that she left in May 2011, it also found that at the time of her retention in December 2011, E.G. was acclimatized to the United States. Thus, the district court concluded that E.G.'s habitual residence was the United States at the time of her retention, and that her retention was not wrongful under the Hague Convention. 

  The First Circuit noted that in this case, the only factor in dispute was first factor: whether Colombia was E.G.'s habitual residence immediately prior to her retention in the United States in December 2011. This factor was critical, because if the state in which a child is retained was also the child's place of habitual residence immediately prior to retention, that retention is not wrongful under the Hague Convention. Although the Hague Convention does not define the term “habitual residence,” the court had adopted an approach that “begins with the parents' shared intent or settled purpose regarding their child's residence.” Nicolson v. Pappalardo, 605 F.3d 100, 103–04 (1st Cir.2010). As a secondary factor, “evidence of a child's acclimatization to his or her place of residence may also be relevant.” Neergaard–Colón, 2014 WL 2111307, at *2, 752 F.3d at 530. The Court began its analysis with the critical issue of shared intent. Because young children like E.G. lack both the material and psychological means to decide where they will reside, the Courts inquiry focuses on the shared intent or settled purpose of the parents, who are entitled to determine the child's place of habitual residence. Specifically, the Court  must determine the intent of the parents at the latest time that their intent was shared, recognizing that the unilateral wishes of one parent alone are not sufficient to change a child's habitual residence.   Additionally, it must distinguish between the abandonment of a prior habitual residence and the acquisition of a new one. A person cannot acquire a new habitual residence without forming a settled intention to abandon the one left behind. Otherwise, one is not habitually residing; one is away for a temporary absence of long or short duration. 

In this case the district court determined that it was the shared intent and settled purpose of the parties that E.G. live in the United States, and that they did not intend to abandon their habitual residence in the United States in favor of Colombia. The First Circuit found that the  mother testified that she never discussed the possibility of the father moving to Colombia, that both parties agreed in 2011 that E.G. should be in the United States, and that she agreed that the father could raise E.G. in the United States. There was  ample record support for the district court's factual finding that “[t]here was no condition, agreed or otherwise, that E.G. would return to Colombia if [the mother] could not gain admission into the United States.”  Both parties intended for the separation of daughter and mother to end with the mother's return to the United States, not with E.G.'s return to Colombia.The record revealed that the district court's finding was not clearly erroneous. The mother testified under oath that she would still move to the United States to be with E.G. if allowed entry, and she did not request that the father return E.G. to Colombia until December 2011. By that time, nearly seven months had passed without any change in the mother's immigration status, and roughly four months had passed since she first suspected that her husband was engaged in an extramarital affair. Neither realization prompted her to request E.G.'s return prior to the father's announcement that he was sending back C.A. in December 2011.Finding no error—clear or otherwise—in the district court's reasoning and review of the record, the court upheld its factual finding that the parties' shared intent was that E.G. habitually reside in the United States.

The First Circuit observed that in addition to shared parental intent, factors evidencing a child's acclimatization to a given place—like a change in geography combined with the passage of an appreciable period of time—may influence our habitual-residence analysis. Typically, evidence of acclimatization is not enough to establish a child's habitual residence in a new country when contrary parental intent exists.  Nevertheless, it may be possible for a child to obtain a new habitual residence without such shared intent in certain limited circumstances. A child can lose its habitual attachment to a place even without a parent's consent if the objective facts point unequivocally to a person's ordinary or habitual residence being in a particular place.  

In this case, the district court recognized that after more than two years in Colombia, E.G. had acclimatized to that country by the time she left it in May 2011. Noting that the date of retention was December 2011, however, the district court concluded that by that time, E.G. was once again acclimatized to the United States. E.G. had spent time with her father and half-sisters in Massachusetts, she went on trips to the park and to the swimming pool with a family friend from church, and she had been attending daycare in Massachusetts for nearly four months. Thus, the district court concluded that E.G.'s return to the United States and her acclimatization there, coupled with the parents' shared intent that E.G. live permanently in the United States, established that the United States was E.G.'s habitual residence at the time immediately prior to her retention.

The mother  argued that had the district court properly found that Colombia was E.G.'s habitual residence in May 2011, it should have been slow to find that her habitual residence in Colombia had been abandoned in favor of the United States by December 2011.The First Circuit found that this argument cut against the mother's position.  A district court should be “slow to infer” that an earlier habitual residence has been abandoned in favor of a new one, in the absence of shared parental intent.  It held that  was precisely the approach taken by the district court in this case. In the absence of shared parental intent to abandon habitual residence in the United States, the district court was quite correctly slow to infer that E.G.'s earlier habitual residence in the United States had been abandoned. Thedistrict court found, and the record supported, that then-five-year-old E.G. had acclimatized to life in the United States by December 2011. This fact, coupled with the finding of shared parental intent that E.G. live permanently in the United States, showed that E.G.'s habitual residence immediately prior to her retention was the United States. Accordingly, E.G.'s retention in her place of habitual residence was not wrongful under the Hague Convention, and the district court properly denied the mother's petition for the return of E.G. to Colombia.

Sealed Appellee v Sealed Appellant, --- Fed.Appx. ----, 2014 WL 3585835 (C.A.5 (Tex.)) [Mexico] [Habitual Residence] [Petition Granted]



In Sealed Appellee v Sealed Appellant, --- Fed.Appx. ----, 2014 WL 3585835 (C.A.5 (Tex.))   Plaintiff-Appellee A.V. filed a petition under the Hague Convention seeking the return of her child, M.V., to Mexico. Plaintiff-Appellee alleged that Defendant-Appellant, M.A.V., unlawfully abducted their minor child when he removed M.V. from Mexico and took M.V. to the United States on June 16, 2012. The district court found that M.V. had been wrongfully removed to the United States and ordered Respondent-Appellant to return M.V. to Mexico. The Fifth Circuit affirmed in a Per Curiam opinion.   The only issue on appeal was whether the district court correctly determined that Mexico, and not the United States, was M.V.'s habitual residence for the purposes of the Convention. Applying the decision in  Larbie v. Larbie, 690 F.3d 295 (5th Cir.2012), the district court found that the parties manifested a shared intent for M.V. to abandon the United States as her habitual residence and to remain in Mexico indefinitely. The Court of Appeals held that the district court's finding that Mexico was M.V.'s habitual residence at the time of M.V.'s removal was supported by sufficient and compelling evidence. The district court based its decision in part on the credibility of both Petitioner and Respondent. The Fifth Circuit stated that it affords credibility determinations great deference upon appellate review. See  Gitter v. Gitter, 396 F.3d 124, 133 (2d Cir.2005) ("[T]he court's task [is] to determine the intentions of the parents as of the last time that their intentions were shared. Clearly, this is a question of fact in which the findings of the district court are entitled to deference.") It rejected Respondent's argument that the district court should not have considered the parties' actions surrounding M.V.'s move to Mexico is unavailing. Since Larbie's shared intent standard is a fact-based inquiry, the district court properly considered the events surrounding the parties' agreement to move M.V. to Mexico when making its habitual residence determination. See  Gitter, 396 F.3d at 134 ("In making [the shared intent] determination the court should look, as always in determining intent, actions as well as declarations."); see also  Larbie, 690 F.3d at 310 (noting that the inquiry into a child's habitual residence "is a fact-intensive determination that necessarily varies with the circumstances of each case").

Saturday, June 7, 2014

Neergaard-Colon v Neergaard, --- F.3d ----, 2014 WL 2111307 (C.A.1 (Mass.))[Singapore] [Habitual Residence] [Remanded]



In Neergaard-Colon v Neergaard, --- F.3d ----, 2014 WL 2111307 (C.A.1 (Mass.))
Respondent Lisette Neergaard-Colon ("mother") and Petitioner Peter Moeller Neergaard ( "father") had two young daughters, S.S.N. and L.A.N. Although both girls were born in the United States, they lived abroad with their parents for approximately a year and a half after their father's employer temporarily relocated him to Singapore in June 2012. The family's time in Singapore ended in January 2014 when the mother traveled with the children to the United States and refused to return. As a result, the father filed a petition for the return of the children to Singapore. The District Court granted the father’s petition. The Court of Appeals reversed and remanded for a further hearing, finding that the district court erred by determining that the children's place of habitual residence was Singapore without first considering whether the parties intended to retain their habitual residence in the United States while living abroad for a temporary period of fixed duration.
  
      The mother, a citizen of the United States, and the father, a citizen of Denmark, married in Massachusetts in 2011 and their daughters were born in Massachusetts in February 2011 and February 2012.    At some point in late 2011 or early 2012, the father's employer informed him that it wanted to relocate him temporarily to Singapore for a three-year assignment. In June 2012, the family packed up their things and moved to Singapore, where they rented an apartment. The father obtained an employment pass authorizing him to work in Singapore through 2015, and the mother and children each received a dependant's pass. While in Singapore, the father was paid by the Singapore-based entity Ab Initio Software Private Limited.   The family obtained health insurance in Singapore through the father's employer, and the parties opened a bank account there. They also found pediatricians for their daughters, arranged play dates, and purchased a Singapore Zoo membership. The older daughter, S.S.N., was enrolled in parent-accompanied "EduPlay" classes, and the parents looked at a few Singapore preschools.    During their time in Singapore, the parents retained ownership of their two properties in Boston. Singapore. They rented both properties to tenants on one-year leases. They kept open their bank accounts and retirement accounts in the United States, as well as their credit cards issued by U.S. banks. The mother preserved her position with Boston public schools by requesting a three-year extension of her maternity leave, and the father maintained his green-card status.

The First Circuit Court of Appeals observed that in determining "habitual residence" it begins with the parents' shared intent or settled purpose regarding their child's residence. While intent is the initial focus, evidence of a child's acclimatization to his or her place of residence may also be relevant. In this case the father presented a claim of wrongful retention. It noted that the Hague Convention only provides for the return of a child retained outside of his or her place of habitual residence. If the state in which a child is retained was also the child's place of habitual residence immediately prior to retention, that retention is not wrongful under the Hague Convention. Thus, in order to establish wrongful retention, the father had the burden of showing by a preponderance of the evidence that Singapore was the children's state of habitual residence immediately prior to their retention in the United States. See  Darin, 746 F.3d at 9.
          The Court of Appeals found that  the district court misapplied the legal test for habitual residence by failing to analyze whether the parties ever intended to abandon their habitual residence in the United States, and by placing undue weight on evidence of the children's acclimatization in Singapore. The Court of Appeals pointed out that when the child in question is very young, its habitual-residence inquiry focuses on the parents' shared intent and settled purpose rather than the child's, as a very young child lacks  both the material and psychological means to decide where he or she will reside. In the event that the parents disagree as to their children's place of habitual residence, they look to the intent of the parents "at the latest time that their intent was shared."  Mota v. Castillo, 692 F.3d 108, 112 (2d Cir.2012). It is imperative that the district court distinguish "between the abandonment of a prior habitual residence and the acquisition of a new one. A person cannot acquire a new habitual residence without forming a settled intention to abandon the one left behind. Otherwise, one is not habitually residing; one is away for a temporary absence of long or short duration. 

         The district court-relying upon the parties' affidavits and without the benefit of an evidentiary hearing-found that, "at a minimum, the parties agreed to move to Singapore for three years, and the three-year period has not yet elapsed."Accordingly, the court concluded that the parties' shared intent was that their children reside in Singapore at the time immediately prior to their retention.

       The Court of Appeals found that the  district court failed to differentiate between the abandonment of a prior habitual residence and the creation of a new one as required by Darin. Instead, it merely found that the parents agreed that the children would be present in a particular place for a particular period of time that had yet to elapse. The district court made no factual finding one way or the other as to whether the parents intended to abandon their habitual residence in the United States in favor of Singapore, or whether they intended to retain their habitual residence while simply residing temporarily in Singapore. As a result, the district court overlooked an important factor in the habitual-residence analysis.

The Court of Appeals pointed out that although it has recognized that in certain circumstances, " 'a child can lose its habitual attachment to a place even without a parent's consent ... if the objective facts point unequivocally to a person's ordinary or habitual residence being in a particular place,' "  Darin, 746 F.3d at 11-12 it has also cautioned that in the absence of shared parental intent, the district court should  be slow to infer an earlier habitual residence has been abandoned. In the typical case, evidence of acclimatization is not enough to establish a child's habitual residence in a new country when contrary parental intent exists. Here, the  facts found by the district court in this case did not point so unequivocally towards Singapore being the children's habitual residence that it could conclude the same in the absence of a finding that the parties intended to abandon their habitual residence in the United States. Here, the district  court found that the children spent a substantial amount of time in Singapore and that they had friends, books, and toys there. The children were ages one and two at the time of retention. These ages are important, because acclimatization is rarely, if ever, a significant factor when children are very young. See  Holder, 392 F.3d at 1020-21
(holding that in the case of a ten-month-old child, it is "practically impossible"
for a child so young, "who is entirely dependent on its parents, to acclimatize
independent of the immediate home environment of the parents"). They did not
attend school and did not participate in sports. None of their extended family
lived in Singapore, and they took multiple trips-each several weeks long-to the
United States during the year and a half that they lived in Singapore. The Court of Appeals could not conclude that the record points unequivocally to the children's habitual residence being in a particular place. Accordingly, it remanded the case to the district court for a determination of the children's place of habitual residence that considers whether or not the parents intended to abandon their habitual residence in the United States.

Larrategui v Laborde, 2014 WL 2154477 (E.D.Cal.) [Argentina] [Fees and Costs] [Not clearly inappropriate]



In Larrategui v Laborde, 2014 WL 2154477 (E.D.Cal.) the Court granted Petitioner's petition for the return of S.C. to Argentina pursuant to the Hague Convention.  Petitioner sought $55,372.14 in attorney's fees and costs pursuant to Article 26 of the Hague Convention and 42 U.S.C.§ 11607 of ICARA.

The District Court observed that were a court has ordered the return of the child to her habitual residence, the court must order the respondent-abductor to pay "necessary expenses incurred by or on behalf of the petitioner," unless it would be "clearly inappropriate." 42 U.S.C. §11607(b)(3). The award of fees and costs serves two purposes: (1) "to restore the applicant to the financial position he or she would have been in had there been no removal or retention" and (2) "to deter such removal or retention."Hague International Child Abduction Convention: Text and Legal Analysis, 51 Fed.Reg. 10494-01, 10511 (Mar. 26, 1986).

 Respondent argued that fees were clearly inappropriate because the 
Court's intervention was required to obtain undertakings to protect S.C.; that Respondent was unable to pay for Petitioner's attorney's fees and costs, and
Petitioner did not spend his own funds to retain representation in this matter. 

The Court rejected these arguments. The fact that Petitioner did not spend his own funds does not provide a basis to deny an award to Petitioner. See  Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir.2010) (holding that denying a fee award because petitioner's counsel provided their services pro bono would "encourage abducting parents to engage in improper delaying tactics whenever the petitioning parent is represented by pro bono counsel.")  Second, Respondent made a good faith, but unsuccessful, "grave risk" argument that S.C. had not received, and consequently would not receive, proper medical treatment in Argentina. As a result, the Court granted Petitioner's Petition for Return of Child with narrowly focused undertakings to ensure that S.C. received the necessary medical treatments and ensures that Respondent is allowed access to and visitation with S.C. However, denying an award to Petitioner because the Court issued undertakings would encourage parties to always request undertakings even if the request is meritless in order to avoid paying fees and costs. Finally, entirely denying an award to Petitioner because of Respondent's financial status would not further § 11607(b)(3)'s purposes.  Kufner v. Kufner, CIV.A. 07-046 S, 2010 WL 431762, at *5 (D.R.I. Feb.3, 2010) ("To deny any award to Petitioner [because of respondent's financial status] would undermine the dual
statutory purposes of Section 11607(b)(3)-restitution and deterrence (both general
as to the public and specific as to the Respondent))."  The Court held that it was not "clearly inappropriate" to award attorney's fees and costs to Petitioner.

The Court found that traveling costs are necessary costs because Petitioner's attorney was required to attend the hearings and that file management costs are appropriate as part of the costs associated with litigation. However, the Court denied the costs associated with the uncertified interpreter because Respondent should not be required to pay for Petitioner's error.  The Court also denied the fees recorded in Spanish in the invoices because they were not appropriately documented in English.  The Court denied the costs for a custody order because it was not necessary for this proceeding. The Court awarded all other costs. It reduced the costs and fees by $3,437.50 to $51,934.64.

   The Respondent requested a 30% reduction based on her financial status. The district court noted that although denying an award because of Respondent's financial status would not further §11607(b)(3)'s purposes, courts have recognized that they have discretion to reduce any potential award to allow for the financial condition of the respondent. See, e.g.,  Rydder v. Rydder, 49 F.3d 369, 373-74 (8th Cir.1995) (reducing award from $18,487.42 to $10,000.00 because of respondent's financial status);  Berendsen v. Nichols, 938 F.Supp. 737, 739 (D.Kan.1996) (applying 15% reduction to the fee award because of respondent's financial status);  Salinier v. Moore, No. 10-CV00080-WYD, 2010 WL 3515699, at *4 (D.Colo. Sept.1, 2010) (reducing award by 25% because of respondent's financial condition). Respondent  provided evidence that she was self-employed with limited income, nominal assets, and significant debt. Therefore, the Court exercised its discretion and reduced the total award by 25%. The Court awarded Petitioner $38,950.98 in attorney's fees and costs.

Wednesday, June 4, 2014

Matter of Katz v Katz, --- N.Y.S.2d ----, 2014 WL 2198516 (N.Y.A.D. 2 Dept.)

Appellate Division Holds Family Court Had Jurisdiction to Determine Father's Petition for Custody Even Though Court of Dominican Republic, Applying Hague Convention, Denied His Petition for Return to the United States. 


In Matter of Katz v Katz, --- N.Y.S.2d ----, 2014 WL 2198516 (N.Y.A.D. 2 Dept.) the father filed a petition for custody in the Family Court alleging that, on October 2, 2011, the mother took the parties' child, who had been residing in the Bronx, to the Dominican Republic without his permission. The Family Court held the matter in abeyance pending a determination in the Dominican Republic with regard to the father's application there for a return of the child pursuant to the Convention on the Civil Aspects of International Child Abduction. On October 5, 2012, the Civil Chamber of the Court of Children and Adolescents of the Judicial District of Santo Domingo rejected the father's request for a return of the child, and directed that the child remain in the company of the mother in the Dominican Republic, finding that if the child were returned to the United States she would be exposed to a violation of her fundamental rights due to issues of domestic violence. Family Court dismissed the father's petition for custody, concluding that it was bound to do so pursuant to the order issued by the court in the Dominican Republic.


The Appellate Division reversed. It observed that the Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law art 5-A) governs a New York State court's jurisdiction in international child custody matters. Domestic Relations Law § 76, which establishes initial child custody jurisdiction, provides, inter alia, that a court of this State has jurisdiction to make an initial child custody determination if this State is the home state of the child on the date of the commencement of the proceeding (Domestic Relations Law §76[a] ). "Home state" is defined  as the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding (Domestic Relations Law § 75-a[7] ). Pursuant to Domestic Relations Law § 75-d[1], a "court of this state shall treat a foreign country as if it were a state of the United States".   The Convention provides that a child abducted in violation of rights of custody must be returned to his or her country of habitual residence, unless certain exceptions apply. A decision under the Convention is not a determination on the merits of any custody issue, but leaves custodial decisions to the courts of the country of habitual residence. It was undisputed that the United States was the child's country of habitual residence, and that, at the time the petition was filed, New York was the child's "home state." Thus, the Family Court had jurisdiction to determine the father's petition for custody.  Moreover,  the denial, by the court in the Dominican Republic, of the father's application for a return of the child pursuant to the Convention, did not preempt his custody proceeding (see  In re T.L.B., 272 P3d 1148 [Colo App]. Accordingly, it held that the Family Court erred in dismissing the father's petition.