Search This Blog

Friday, December 12, 2014

Marquez v Castillo, 2014 WL 6883134 ( M.D. Florida) [Mexico] [Habitual Residence]




In Marquez v Castillo, 2014 WL 6883134 ( M.D. Florida) Petitioner and Respondent married in Cuba on or about April 6, 2012. Respondent and J.V.O. moved to Mexico to live with Petitioner on or about December 5, 2012. Respondent requested that Petitioner file the appropriate papers for her to bring her other two children to live in Mexico. Petitioner, Respondent, and J.V.O. lived together in Petitioner's family home until October 2013. J.V.O. spent ten months in Mexico living with Petitioner and Respondent prior to arriving in the United States. On or about October 4, 2013, Respondent left Mexico with J.V.O. without warning to or knowledge of Petitioner. Several days later, the parties began communicating by email. However, the communication stopped and Petitioner has not seen J.V.O. since Respondent removed him from Mexico. Petitioner was J.V.O.'s natural father. Petitioner was born in Mexico, lived in Mexico for his entire life, and was a Mexican citizen. Respondent was J.V.O.'s natural mother. Respondent was born in Cuba and was a Cuban citizen. Respondent lived in Cuba until she moved to Mexico. Her current address was in Tampa, Florida.

The district court found that J.V.O. was habitually resident in Mexico at the time of his removal adopting the methodology of  Seaman v. Peterson, 762 F.Supp.2d 1363, 1377 (M.D.Ga.2011)aff'd,766 F.3d 1252 (11th Cir.2014). First, the Court had to determine “[w]hether there [was] a settled intention to abandon a prior habitual residence....”Ruiz v. Tenorio, 392 F.3d 1247, 1252–53 (11th Cir.2004). Courts recognize that where the situation involves a very young child, the shared intent of the parents in determining the residence of their child is of primary concern. The Court was satisfied that Respondent had a settled purpose to abandon Cuba as her and the child's primary residence and to reside permanently in Mexico with Petitioner and the minor child. Respondent presented evidence that she maintained a home in her name in Cuba; the minor child resided in Cuba for over a year prior to arriving in Mexico; and she had two minor children in Cuba. However, the Respondent did agree that she began the process to have her other minor children move to Mexico, that she intended to live with Petitioner in Mexico as a family with J.V.O., and that the Petitioner began construction of additional space in his home to accommodate her other minor children. She also insisted that she wanted to find work while in Mexico. The Court next found there was “an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized  J.V.O. lived in Mexico for approximately ten months with Petitioner, Respondent and Petitioner's extended family. Respondent was his primary caretaker. The child was not registered in school and he traveled to Cuba on a few occasions with Respondent to visit family. Nonetheless, Respondent did not dispute that it was her overall intention to live with Petitioner in Mexico as a family, in spite of her trips to Cuba. The Court found that J.V.O.'s country of habitual residence, prior to his removal to the United States, was Mexico. Mexico was the last country where the parties intended to reside together with the child. Further, when Respondent traveled from Cuba to Mexico, she intended to bring her other children to Mexico to live with her and Petitioner. Respondent also came to Mexico intending to obtain work. The Court determined that petitioner had rights of custody under the laws Mexico. The court examined whether the rights conferred on the petitioner by the doctrine of patria potestas are rights of custody and found that under the  the Civil Code of the State of Mexico Petitioner established that he had a custody right to J.V.O. by operation of law under the doctrine of patria potestas. The Court found that Petitioner had custody rights to J.V.O. at the time of removal and that the Respondent's removal of J.V.O. from Mexico to the United States was in violation of Petitioner's custody rights under Mexican law.  It also determined that he exercised his custody rights at the time of the removal. Consequently, Respondent's removal was “wrongful.”  

Respondent asserted that there was a grave risk of physical or psychological harm to J.V.O. if he was returned to Mexico. She asserted that she feared for her life if she returned to Mexico, that the Petitioner's residence was in a dangerous neighborhood with active drug activity, one of his nephews was a drug addict who consumes drugs outside of the home, and that Petitioner was very controlling and would not allow her to leave the home without an escort. The Court observed that this defense requires the alleged physical or psychological harm to be “a great deal more than minimal.” Only severe potential harm to the child will support this defense. The harm must be greater than what is normally expected when taking a child away from one parent and passing the child to another parent.  The court found that petitioner did not establish this defense and granted the petition. 

Tuesday, December 9, 2014

Application of Stead v Menduno, Not Reported in F.Supp.3d, 2014 WL 6819547 (D.Colo.) [ New Zealand] [Federal & State Judicial Remedies] {Expert Testimony]


In Application of Stead v Menduno, Not Reported in F.Supp.3d, 2014 WL 6819547 (D.Colo.)   Petitioner Anthony Stead, a citizen of New Zealand, seeks the return of A.C.S., the son of petitioner and respondent.   Respondent raised the affirmative defense that returning A.C.S. to New Zealand would result in grave risk of either physical or psychological harm or would otherwise place A.C.S. in an intolerable situation.  Petitioner filed his motion before respondent had designated an expert witness for the evidentiary hearing.   He did so based on respondent's stated intention,  to introduce expert testimony.   On November 24, 2014, respondent filed a witness list identifying Dr. Andrew Loizeaux,  presumably to provide expert testimony as to the psychological effects of returning A.C.S. to New Zealand. 

The District Court observed that Rule 702 of the Federal Rules of Evidence provides that:  A witness who is qualified as an expert by knowledge, skill, experience,  training, or education may testify in the form of an opinion or otherwise if:  (a) the expert's scientific, technical, or other specialized knowledge will help  the trier of fact to  understand the evidence or to determine a fact in issue;  (b) the testimony is based on sufficient facts or data;  (c) the testimony is  the product of  reliable principles and methods;  and (d) the expert has reliably  applied the principles and methods to the facts of the case. Petitioner did not contest the reliability of a potential expert opinion, only its relevance.   Relevance in the Rule 702 context is determined by Rule 401, which defines relevant evidence as evidence that "has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action."   The analysis of relevance under Rule 401 requires a court to undertake two inquiries.   The first is a procedural question which derives from Rule 401's identification of "evidence having any tendency to make the existence of any fact ... more probable or less probable than it would be without the evidence."  This inquiry focuses on "whether the evidence is probative or factually relevant  to the proposition asserted."   Sims v. Great Am. Life Ins. Co., 469 F.3d 870,  881 (10th Cir. 2006).   The second inquiry, whether the evidence is "of consequence to the determination of the action," asks the substantive question of whether the proposition for which the evidence is offered is properly provable in the case.   To assess the relevance of proffered expert testimony, the Court must "look at the logical  relationship between the evidence proffered and the material issue that evidence is supposed  to support to determine if it advances the purpose of aiding the trier of fact."   Bitler, 400 F.3d at 1234.

The Court pointed out that Petitioner's motion sought to prohibit respondent "from unnecessarily increasing the expense and burden of this litigation by introducing irrelevant expert reports and testimony.  The Sixth Circuit has indicated that a grave risk of harm can only exist in two situations.   See Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996).   "First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute-e.g., returning the child to a zone of war, famine, or disease.   Second, there is a grave risk of harm  in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in  the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.   Psychological evidence ... is only relevant if it helps prove the existence of one or these two situations."  While the Tenth Circuit has not explicitly adopted the standard outlined in Friedrich, it has noted that the grave risk exception imposes a  "strict demand" on the party claiming it and that " '[g]rave risk' means the 'potential harm to  the child must be severe, and the level of risk
and danger very high.' "   West v. Dobrev, 735 F.3d 921, 931 (10th Cir.  2013)
(citing  Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013)).  

Respondent argued that expert testimony on the impact of relocation to New Zealand is  necessary for the Court to evaluate her argument that the relocation presents an "aggregation of adjustment issues" that will result in grave psychological harm to A.C.S.   These issues include:  "(1)  a fundamental poverty commensurate with moving to another country without a home or job prospects or any likelihood of financial support for A.C.S.;  (2) an absentee father who has no  ability or intention to participate in raising A.C.S.;  (3) a situation where the Parties will be  unable to meet A.C.S.'s basic needs;  and (4) familial circumstances that are harmful to A.C.S."     Petitioner responds that none of the issues that respondent identifies are relevant to or even permissibly considered in the Court's analysis of the grave risk exception. 

    The Court found that the parties' finances and familial circumstances-the first, third, and fourth  issues raised by respondent-are irrelevant to the Court's determination of whether relocation poses a grave risk of harm to A.C.S., and that expert testimony as to the psychological effects of those circumstances is therefore irrelevant.   As petitioner points out, the State Department's analysis of the grave risk exception specifically forecloses consideration of the parties' financial situation upon relocation.   Public Notice 957, 51 Fed.Reg. 10494, 10510 (Mar. 26, 1986);  see also Krefter v. Wills, 623 F.Supp.2d 125, 136-37 (D.Mass.2009) ("a mere shortage of money is not, on its own, sufficient to establish an 'intolerable situation ' ");   Cook v. Scott,
2008 WL 2947692 at *5 (E.D.Mich. July 31, 2008) ("an 'intolerable situation' does not 
encompass return to a home where money is in short supply").

    As to respondent's claim that "familial circumstances that are harmful to A.C.S." are relevant  to the grave risk exception, the Court found that any evaluation of "familial circumstances"  would concern A.C.S.'s best interests, not respondent's affirmative defense.   While the Court has no doubt that poverty and lack of familial support place developmental stresses on children, and that an expert may testify that those  stresses have psychological effects, the Court's role in a petition filed under the Convention is not to determine the best situation for the child.  The Convention does not invite or empower the Court to discriminate against petitioners on the basis of wealth or familial ties. For the Court to hold that a petitioning parent's poverty or relative lack of family support rises  to the level of an intolerable situation would expand the grave risk exception beyond its intended narrow scope of protecting children from
a high risk of grave harm.   See 51 Fed.Reg. at 10510 (noting that the risk to  the
child must be "grave, not merely serious" for the exception to apply). The financial and familial issues respondent identified went  to the merits of the underlying custody dispute and did not rise to the level of a high risk of grave psychological harm.

  Respondent also argued that the Court should consider all of the factors that may present a  risk of psychological harm or otherwise create an intolerable
situation in the aggregate.  In support of this  approach, respondent cites Didur v. Viger, 392 F.Supp.2d 1268, 1273 (D.Kan.2005), rev'd and remanded on other grounds, 197 Fed.Appx. 749, 753 (10th Cir. 2006).  Didur, however, concerned  substantially different facts than this case and does not support respondent's argument that  expert testimony into the totality of circumstances of A.C.S.'s return to New Zealand is relevant.  Didur considered the aggregated effect of independent characteristics of the petitioning parent that contributed to an overall atmosphere of abuse and neglect, including depression, alcoholism, sexual abuse, and "inability to adjust."    The  Didur court found that while no individual issue identified would satisfy the grave risk exception, "in conjunction with all the other factors, they become legally significant."    In Didur, each issue  considered was independently relevant to determine the petitioner's "repeated neglect of [the child] and her emotional instability as a parent,", and aggregation simply assisted the court in determining whether that abuse and neglect rose to the level of a grave risk of harm.   Here, by contrast, respondent sought to use aggregation to bootstrap areas of inquiry that would not otherwise be relevant to the Court's analysis. Accepting respondent's approach would expand the scope of the grave risk exception in a  manner not contemplated by Didur.

    Because financial and familial circumstances were not relevant to application of the grave risk  exception, the Court  granted plaintiff's motion to exclude expert testimony on the  psychological effects of those circumstances.

The Court turned to the final issue that respondent  claimed required expert testimony:  petitioner's involvement in A.C.S.'s life.   Respondent characterizes petitioner as "an absentee father who has no ability or intention to participate in raising A.C.S.,"  and said that  petitioner has not had "any role in A.C.S.'s life since at least May 2013."  Petitioner noted that May 2013 was shortly after  respondent and A.C.S. traveled to the United States from New Zealand, and that giving any weight to criticism of petitioner's involvement with A.C.S. after respondent brought A.C.S. to the United  States against petitioner's will would be rewarding respondent for the unlawful retention.  The Court found that respondent had not met her burden of showing that expert testimony was  relevant to the Court's determination of whether the grave risk exception applies in this case.   In support of the proposed expert testimony, respondent offered only that petitioner had been an absentee parent since the time respondent brought A.C.S. to the United States.   Respondent provided no details as to why petitioner's relative lack of involvement in A.C.S.'s life from afar reflected an inability or unwillingness to care for A.C.S. in New Zealand.   Nor had respondent identified any circumstances that could lead the Court to conclude that  petitioner's lack of involvement in A.C.S.'s life since May 2013 created a risk of "serious abuse or  neglect" upon return to New Zealand or that the courts of New Zealand were "incapable or  unwilling to give the child adequate protection."   Moreover, respondent gave no indication of what her proposed expert would say as to the psychological risk to A.C.S. of relocation to New  Zealand beyond vague references to the parties' respective financial and family situations.   Given the absence of detail about the proposed testimony, the Court was unable to determine what, if any, weight to give it, and granted the motion.

Pliego v Hayes, 2014 WL 6796537 (W.D.Ky.) [Spain] [Federal & State Judicial Remedies] [Summary Judgment]



In Pliego v Hayes, 2014 WL 6796537 (W.D.Ky.)  Amanda Leigh Hayes and Mario Luis Gonzales Pliego were married on July 11, 2009 in Spain. Their child, ALG, was born in 2011 and is three years old. Hayes was a citizen of the United States, and Pliego is a citizen of Spain. Hayes has filed for divorce and custody in Kentucky, while Pliego has filed for divorce and custody in Spain. Pliego is a career diplomat at the Spanish Embassy and as such, the family has lived in different countries during ALG's lifetime. They lived in Jakarta, Indonesia until July 2012 when they moved to Ankara, Turkey. Pliego was currently still living in Ankara. Hayes and Pliego agreed that Hayes and ALG would travel to Kentucky to visit extended family on April 6, 2014. The date of return was to be May 4, 2014. Instead, Hayes told Pliego that she would not be returning and intended to keep ALG with her in Kentucky. Currently, Hayes and ALG were residing in Kentucky pending resolution of this action, subject to agreed conditions.

   Hayes moved for summary judgment, arguing that Spain was not ALG's habitual
residence. She alleged that ALG was born in Kentucky and had never
lived in Spain, spending a total of 46 days there over a series of four trips. She
noted that the Convention seeks to remedy situations where the victim of an
abduction"suffers the sudden upsetting of his stability, the traumatic loss of
contact with the parent who has been in charge of his upbringing, the uncertainty
and frustration which comes from the necessity to adapt to a strange language,
unfamiliar cultural conditions, and unknown teachers and relatives."  She stated that "the child's remaining with his mother, who has been his primary care provider since his birth, in the United States will not result in the manifestation of these concerns, but an order of return to Spain would do so in this case." In response, Petitioner noted that his "burden at trial is only to show that the child's habitual residence is a contacting country to the Hague Convention, not a specific country, i.e. Spain." Additionally, he argued that there were multiple genuine issues of material fact in dispute regarding ALG's habitual residence, any one of which precluded summary judgment.


The Court found that there were multiple genuine disputes of material fact
regarding ALG's habitual residence, and that it would be inappropriate to resolve
these matters on summary judgment at this time. Thus, this motion was denied.

Sunday, November 30, 2014

Singh v Pierpont, 2014 WL 6471374 (D. Hawaii)[Canada] [Federal & State Judicial Remedies] [Res Judicata]




In Singh v Pierpont, 2014 WL 6471374 (D. Hawaii) Singh and Pierpont were married on March 12, 2010. They were living in Honolulu, Hawaii at the time, and Singh was a musician with the Honolulu Symphony. W.R.P. was born in Hawaii‘i in July 2010. Singh auditioned for and was offered a position in the Winnipeg Symphony. In September 2010, the family moved to Winnipeg, Canada, where they lived in a rental property.  In August 2011, while the family was in Hawaii‘i, Pierpont served Singh with divorce papers. Pierpont filed the divorce action in the State of Hawaii‘i Family Court of the First Circuit. Pierpont filed a pre-decree motion seeking temporary sole legal and sole physical custody of W.R.P. Hawaii Family Court Judge Paul T. Murakami orally awarded Singh temporary sole physical custody and ordered joint legal custody. The ruling allowed Singh to return to Winnipeg with W.R.P., subject to certain conditions. On February 4, 2013, Hawai‘i Family Court Judge Na‘unanikinau Kamalii issued the Decree Granting Absolute Divorce and Awarding Child Custody.  Judge Kamalii, inter alia, awarded Singh sole physical custody, subject to Pierpont’s right to reasonable visitation. The Divorce Decree stated: Hague Convention, Jurisdiction and Venue.The court finds that the child [sic] habitual residence for the purposes of the Hague Convention on International Child Abduction is the United States of America. Neither party shall have the ability to change the habitual residence of the child without the written consent of the other in the form of a stipulated order or further order of the court, and no action of either parent other than entering into a stipulated written order adopted by this court as an order shall suffice to establish consent to or acquiescence in a change of the child’s habitual residence in any other nation. It is the intention of the court that the habitual residence shall remain in the United States of America and that any foreign travel to or stay in any foreign country shall be temporary in nature and not result in a change of habitual residence. Hawaii will also retain child custody modification jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), so long as the child or at least one of the parties resides in Hawaii and venue shall remain in Honolulu, so long as at least one parent resides in Honolulu.

Pierpont filed a number of post-decree motions. Singh was represented by counsel at the hearing, but Singh herself did not appear. Judge Souza found her in default. After hearing testimony from Pierpont, receiving exhibits from both parties, and hearing counsel’s arguments, Judge Souza orally made findings that there had been a material change in W.R.P.’s circumstances and that it was in W.R.P.’s best interest to award sole physical custody to Pierpont, effective thirty days from the date of the hearing. The 4/4/14 Hawai‘i Order memorialized Judge Souza’s oral findings and orders at the March 12, 2014 hearing. Judge Souza found that he had continuing exclusive jurisdiction to make custody and visitation orders regarding W.R.P., pursuant to the UCCJEA, Haw.Rev.Stat. § 583–202, because the Hawai‘i Family Court issued the last order regarding custody and visitation, and Pierpont resided in Hawai‘i since that time.  The 4/4/14 Hawai‘i Order stated that, if Singh failed to return W.R.P. to the City and County of Honolulu on or before April 12, 2014,  then [Pierpont] shall be entitled to go to his residence in Winnipeg, Canada, or wherever else the child may be found, and take possession of him. In that regard, the Royal Canadian Mounted Police, the Winnipeg Police Service, and any other law enforcement officer or agency wheresoever located, are authorized, requested and directed to assist [Pierpont] to safely and securely regain immediate possession of the child.... 

On April 4, 2014, Singh filed an Application Under: The Child Custody Enforcement Act in the Queen’s Bench (Family Division), Winnipeg Centre (“the Canada Family Court”), seeking an order granting her primary care and control of W.R.P. On April 11, 2014, the Canada Family Court held a hearing on the Canada Application. Pierpont did not appear at the hearing, but he was represented by counsel. On May 6, 2014, the Canada Family Court filed an Interim Order granting Singh interim custody of W.R.P. and ordering that he remain in Winnipeg, in the Province of Manitoba, until further order of the court . On May 5, 2014, after an April 16, 2014 proceeding during which Pierpont appeared by telephone, the Canada Family Court signed an Interim Order stating that Pierpont was to have care and control of W.R.P. from May 5, 2014 at 5:00 p.m. until May 21, 2014 at 7:00 p.m., except for certain overnight periods specified in the order. Pierpont’s counsel signed the order, approving its form and content. Pierpont took W.R.P. from Canada to Hawai‘i in May 2014.  W.R.P. had been living with Singh in Canada until that time. W.R.P. had remained with Pierpont in Hawai‘i since May.

Pierpont moved to dismiss or for summary judgment. In his motion, Pierpont argued that he was entitled to dismissal of, or in the alternative, summary judgment because: the divorce decree expressly found that the United States was W.R.P.’s habitual residence; W.R.P.’s habitual residence had never changed since then; and Pierpont’s act of returning W.R.P. to his habitual residence was not a violation of either the Hague Convention or ICARA, regardless of the Canada Family Court’s orders.

  The district court held that as threshold matter, it had to determine where W.R.P.’s habitual residence was at the time Pierpont removed him from Canada. Pierpont emphasized that the Divorce Decree was the only court order that addresses the issue of W.R.P.’s habitual residence, and he argued that the Court must accept Judge Kamalii’s finding that the United States was W.R.P.’s habitual residence under the res judicata, i.e. claim preclusion, doctrine. It observed that the Ninth Circuit, however, has held that ordinary principles of claim and issue preclusion do not apply to claims under ICARA and the Convention. See Holder v. Holder, 305 F.3d 854, 863–64 (9th Cir.2002). It  noted in Holder that 42 U.S.C. § 11603(g)  provides that federal courts adjudicating Hague Convention petitions must accord full faith and credit only to the judgments of those state or federal courts that actually adjudicated a Hague Convention claim in accordance with the dictates of the Convention and ICARA. Gaudin v. Remis, 415 F.3d 1028, 1034 (9th Cir.2005). In this case the Divorce Decree did not order or deny the return of W.R.P., pursuant to the Hague Convention, and there was no evidence in the record that either Singh or Pierpont raised a Hague Convention/ICARA claim during the divorce proceedings. Thus, there was no genuine dispute of material fact regarding whether the Hawai‘i Family Court actually adjudicated a Hague Convention/ICARA claim during the divorce proceedings. The Court concluded that, as a matter of law under Gaudin, it was not bound by the habitual residence finding in the Divorce Decree.

The Court noted that the parties had been disputing where W.R.P. was to reside since the filing of the divorce action. Thus, their last shared, settled intent regarding his residence, if they had one, was formed prior to the filing of the divorce action. This Court finds that the determination of W.R.P.’s habitual residence at the time of removal depended upon the issue of whether, at any point before Pierpont filed for divorce, Singh and Pierpont had a shared, settled intent to abandon their habitual residence in the United States in favor of an indefinite stay in Canada.  In considering Pierpont’s Motion, there was evidence in the record that supported Pierpont and some evidence that supported Singh. The Court noted that it’s ruling on the issue of whether Singh and Pierpont had a shared, settled intent to make Canada the family’s habitual residence may depend upon a credibility determination. Making credibility determinations is inappropriate in a motion for summary judgment. The Court found that there were genuine issues of material fact as to the question of whether, at any time before Pierpont filed for divorce, Singh and Pierpont ever had a shared, settled intent to make Canada the family’s habitual residence. This necessarily meant that there were  genuine issues of material fact as to the question of what W.R.P.’s habitual residence was when Pierpont removed him from Canada. It denied the motion for summary judgment.

Pliego v Hayes, 2014 WL 6674560 (W.D.Ky.)[Turkey] [Federal & State Judicial Remedies] [Expert Testimony][Privilege]




In Pliego v Hayes, 2014 WL 6674560 (W.D.Ky.)   Amanda Leigh Hayes and Mario Luis Gonzales Pliego were married on July 11, 2009 in Spain. Their child, ALG, was born in 2011 and was three years old. Hayes was a citizen of the United States, and Pliego was a citizen of Spain. Hayes  filed for divorce and custody in Kentucky, while Pliego filed for divorce and custody in Spain. In July 2012 they moved to Ankara, Turkey. Pliego was still living in Ankara. Hayes and Pliego agreed that Hayes and ALG would travel to Kentucky to visit extended family on April 6, 2014. The date of returnwas to be May 4, 2014. Instead, Hayes told Pliego that she would not be returning intended to keep ALG with her in Kentucky. Hayes and ALG were residing in Kentucky pending resolution of this action, subject to agreed conditions.  Pliego  filed motions seeking to exclude the testimony of two proposed witnesses: John Higgins, based on the standard for admissibility of expert testimony, and Ann Guler, based on the psychotherapist-privilege. 

The district court observed that the admissibility of expert testimony is governed by Rule 702 of the Federal Rules of Evidence. Rule 702 provides:  A witness who is qualified as an expert by knowledge, skill, experience,  training, or education may testify in the form of an opinion or otherwise if:  (a) the expert's scientific, technical, or other specialized knowledge will help  the trier of fact to understand the evidence or to determine a fact in issue;  (b) the testimony is based on sufficient facts or data;  (c) the testimony is the product of reliable principles and methods; and  (d) the expert has reliably applied the principles and methods to the facts of  the case.  It pointed out that in Daubert v. Merrell Dow Pharmaceuticals, Inc.,"the Supreme Court established a general gatekeeping obligation for trial courts to exclude from trial expert testimony that is unreliable and irrelevant." In performing its gatekeeping function, the Court must determine whether evidence proffered under Rule 702 "both rests on a reliable foundation and is relevant to the task at hand." Daubert, 509 U.S. at 597. A key consideration is "whether the reasoning or methodology underlying the testimony is sufficiently valid." The Supreme Court advises that the inquiry is "a flexible one," and that "[t]he focus ... must be solely on principles and methodology, not on the conclusions they generate." A testifying expert must "employ[ ] in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire, 526 U.S. at 152.    While there is no "definitive checklist or test" for meeting the standard of Rule 702, Daubert laid out a number of factors that typically "bear on the inquiry," including: whether the theory or method in question "can be (and has been) tested," whether it "has been subjected to peer review and publication," whether it has a "known or potential rate of error," and whether the theory or technique enjoys "general acceptance" in the "relevant scientific community."Daubert, 509 U.S. at 593-94. Although Daubert addressed scientific evidence, the Supreme Court in Kumho Tire Co. v. Carmichael held that a trial court may consider the Daubert factors for all types of expert evidence.  Kumho Tire, 526 U.S. at 150. Thus, the Daubert factors are nonexhaustive and may not be pertinent in cases where "the relevant reliability concerns ... focus upon personal knowledge or
experience."

     John Higgins was a parish priest. He held a Certificate of Qualification in Social Work from the University of Central England in 1975 and a Social Science Ph. D. from the University of Birmingham, England from 2007.  He worked as a Guardian ad litem for the courts of Staffordshire from 1981-1990 and the county of Cumbria from 1991-2000.  Hayes regularly attended the St. Nicolas Church and taught Sunday School there for approximately two years, beginning in April 2011. During this time, she met with Higgins for pastoral support and spiritual guidance. Additionally, Hayes allegedly showed him bruises that she claimed resulted from domestic violence. Pliego objected to allowing Higgins testify as an expert in the following areas of proposed testimony: "1) general knowledge about bruising and domestic violence; 2) Turkish and American domestic law; and 3) diplomatic family relations." The Court found that Higgins did not have the relevant education or experience, medical or otherwise, needed to opine about the cause of the bruising, or to determine that the bruising could not have been self-inflicted. Nor had he demonstrated use of any reliable methodology for determining the cause of the bruises. Therefore, the Court did not permit Higgins to testify regarding the bruises that he saw, but not about their cause, and held the other issues in abeyance.

The Court observed that the Federal Rules of Evidence establish that "the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." Fed.R.Evid. 501. The United States Supreme Court recognizes a psychotherapist-patient privilege. Jaffee v. Redmond, 518 U.S. 1, 9-10 (1996). Specifically, "confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure...."   Dr. Guler  was a psychologist who counseled Hayes in Ankara, Turkey and telephonically after Hayes returned to Kentucky.  The two had at least 38 counseling sessions together. Pliego attended 14, starting in June 19, 2013, "for the purpose of addressing and remediating issues raised in Amanda's counseling regarding parent conflict and violence."   Pliego argued that Guler could not disclose communications made between her and her patients unless all involved patients waive the privilege.  He argued that he was a patient and that he participated fully in 14 sessions. The court observed that to be protected from compelled disclosure, a statement must be a confidential communication, between a licensed psychotherapist and her patient, made in the course of diagnosis or treatment.  Jaffee, 518 U.S. at 15. The Court found that Pliego was a participant in the sessions, and that his statements were made in the court of diagnosis or treatment. Therefore, the Court held that the psychotherapist-privilege applied to the statements Pliego made during counseling sessions with Gerber. It rejected Hayes argument that the privilege was waived because the litigation was between the parties who participated in the joint sessions. The Court held that Guler could testify as to statements made by Hayes, but not as to any statements made by Pliego.

Jacksic v Serif, Not Reported in F.Supp.3d, 2014 WL 6685375 (D.Ariz.)[Serbia] [Rights of Custody] [Petition denied]




          In Jacksic v Serif, Not Reported in F.Supp.3d, 2014 WL 6685375 (D.Ariz.) on October 1, 2005, Jaksic and Serif were married in the Republic of Bosnia and Herzegovina. On March 1, 2006, their son M.J. was born in the Republic of Serbia.  On March 23, 2011, Jaksic and Serif's marriage was dissolved by the First Basic Court of Belgrade, Republic of Serbia ("Belgrade Court") based on the parties' mutual consent to dissolution and their signed agreement on the exercise of their parental rights related to M.J. The parties agreed that M.J. would live with Serif, and Serif would independently exercise parental rights over M.J. for care, guardianship, and upbringing. The parties also agreed on the manner of maintaining contact between Jaksic and M.J., which was that Jaksic would see M.J. when Serif agreed and Jaksic had time. The parties did not agree to any schedule or minimum time for Jaksic's personal contact with M.J. The parties' agreement did not establish a procedure for Jaksic to obtain personal contact with M.J. without Serif's agreement. The Belgrade Court determined that the parties' agreement on parental rights was in the best interest of the minor child and accepted the agreement. The March 23, 2011 judgment ordered that the marriage is dissolved, the minor child M.J. is entrusted to his mother Serif "who will exercise the parental right on her own," Jaksic is obligated to pay monthly child support directly to Serif, and the parties "shall regulate the manner of maintaining personal relations with the minor child with his father by mutual agreement."After the divorce, Serif permitted Jaksic to see M.J. in Belgrade and to take M.J. out of Serbia to visit Jaksic's parents and other family members.  On August 15, 2011, Serif married Esad Serif, who was a United States citizen. Subsequently, Serif applied for visas for M.J. and her to move to the United States.


      On January 5, 2012, Jaksic initiated a lawsuit in the Belgrade Court to modify

the judgment regarding custody of M.J. His complaint described the dissolution judgment as entrusting the custody of M.J. for care and protection to Serif, "who shall independently perform her parental rights."The complaint alleged that during the consensual divorce the parties had agreed that significant decisions regarding M.J., including change of residence, would be decided in a consensual, agreeable manner, but Serif was excluding Jaksic from such decisions. The complaint also stated that Jaksic had concluded that Serif intended to leave the country with M.J. and her current spouse, an American citizen, and to immigrate to America. Jaksic requested that the child custody provision of the March 23, 2011 judgment be modified to provide joint parental rights. A few days after Serif received notice of the Belgrade Court lawsuit, she had a telephone conversation with Jaksic during which Jaksic strongly opposed Serif taking M.J. to the United States and used foul language. Serif perceived Jaksic as possibly threatening her physically. Serif forbade Jaksic from seeing M.J. for at least six months and notified the court social worker and the police about their conversation.  On June 9, 2012, during a court proceeding, Jaksic said he would amend his complaint because he did not want to modify the child custody decision; he wanted only to organize his contact with M.J. to have a more precise schedule for visitation. But he did not amend his complaint.  On September 19, 2012, Serif signed a statement giving her consent that M.J. could travel to Bosnia and Herzegovina, Republic of Srpska, from September 20, 2012, to September 25, 2012. Jaksic took M.J. to Bosnia and Herzegovina so that M.J. could see his grandparents and cousins.    On October 23, 2012, a psychologist for the City of Belgrade reported to the Belgrade Court investigative findings and recommendations regarding custody of M.J. On October 30, 2012, Serif appeared at the scheduled hearing on Jaksic's complaint, but Jaksic did not appear and did not justify his absence. The Belgrade
Court ordered that Jaksic inform the court whether he wanted to continue the
lawsuit, and if he did, he should submit a motion to amend the complaint. The
Belgrade Court warned Jaksic that if he failed to comply with an order of the
court, the complaint would be deemed withdrawn. On February 1, 2013, the Belgrade
Court ordered that Jaksic's complaint was withdrawn and informed Jaksic that he
could appeal the ruling within 15 days. Jaksic did not appeal the ruling.

     On August 21, 2013, the United States issued immigrant visas to Serif and M.J.

On September 2, 2013, both visas were endorsed by the U.S. Department of Homeland Security, U.S. Customs and Border Protection. Both Serif and M.J. were issued U.S. permanent resident status as of September 2, 2013. On September 3, 2013, Esad Serif posted photographs online of Serif and M.J. on an airplane, apparently near South Bend, Indiana. On September 3, 2013, Jaksic tried to call Serif and could not reach her. Jaksic then called Serif's father, who told Jaksic that Serif and M.J. had departed for the United States. The Court found that Serif removed M.J. from Serbia on September 2, 2013.    After Serif and M.J. moved to the United States, Jaksic had conversations with M.J. via Skype about once a month, but Serif did not talk to Jaksic. During a January 2014 Skype conversation, however, Serif told Jaksic that her work schedule had changed and they needed to change Jaksic's Skype contacts. Jaksic called Serif bad words in front of M.J., and thereafter Serif did not permit Jaksic to have any Skype conversations with M.J.   On June 16, 2014, Jaksic submitted an Application Under the Hague Convention on the Civil Aspects of International Child Abduction to the U.S. Department of State for the return of M.J. On September 3, 2014, Jaksic initiated the present action, alleging that the September 2, 2013 removal of M.J. from Serbia breached Jaksic's custody rights.

The district court found that  the removal took place on September 2, 2103, and the parties agreed that immediately prior to the removal, M.J. was habitually resident in Serbia. It observed that as  a condition for any relief under the Hague Convention, Jaksic had  establish by a preponderance of the evidence that the removal of M.J. from Serbia was in breach of his custody rights and at the time of removal Jaksic was exercising those rights. See Convention, Art. 3. The dissolution judgment of the Belgrade Court did not expressly grant Jaksic any right of custody or unconditional right of access. It ordered that Serif will independently exercise parental rights and Jaksic will have contact with M.J. only when Serif permits it. Jaksic did not provide any Serbian legal authority or expert testimony showing that the dissolution judgment, which incorporated the agreement on parental rights, would 
be interpreted by the Belgrade Court as granting Jaksic greater rights than those actually stated. At the time of the dissolution, Jaksic may have believed that Serif agreed he was guaranteed access to M.J. and participation in decisions about M.J.'s care, education, and residence, but that is not what the court documents stated. Jaksic had opportunity to have the Belgrade Court modify the dissolution judgment if it was incorrect, incomplete, or unfair, but he abandoned his lawsuit before the Belgrade Court. Jaksic frustrated the very proceedings that might have given him rights of custody inconsistent with Serif's immigration to the United States with M.J. He knew Serif claimed and intended to exercise that right.
Therefore, he cannot show this Court that he is entitled to greater parental rights than those provided by the dissolution judgment.  Because Jaksic had not established by a preponderance of the evidence that the removal of M.J. from Serbia was in breach of his custody rights and at the time of removal Jaksic was exercising those rights, the Court did not decide additional issues raised by the parties.

Wednesday, November 12, 2014

Mauvis v Herisse, --- F.3d ----, 2014 WL 5659412 (C.A.1 (Mass.) [Canada] [Habitual Residence] [Grave Risk of Harm] [Petition Granted]



In Mauvis v Herisse, --- F.3d ----, 2014 WL 5659412 (C.A.1 (Mass.) the mother and father were both citizens of Haiti. The parties had two female children: M.M. was born in France in December 2005, and was now nearly nine years old; and R.M. was born in the United States in November 2009, and was approximately five years old. The father also had three other children, including twins-B.M. (male) and S.M. (female), who were now between nine and ten years old-from a previous relationship.   In January 2010, less than two months after R.M.'s birth, a catastrophic earthquake devastated the parties' community in Haiti. Following the earthquake, in February 2010, the father and M.M. moved to Quebec, Canada, where members of the father's family lived. The mother testified that she asked the father to bring M.M. to Massachusetts, but he refused and urged her to join him in Canada instead. She further testified that he threatened to harm or kill M .M. if she refused to join him, so she reluctantly took R.M. and moved to Canada in March 2010. The father denied the allegations that he threatened any physical harm.

In July 2010, the parents moved into their own apartment, along with
their two daughters and the father's twin children. In January 2011, the mother
moved out, taking M.M. and R.M. with her, and leaving behind the father and his
older twins.  In February or March 2012, the father prevailed upon the
mother to allow him to rejoin her, and he and his other children moved into her
apartment. The parties lived together for some time thereafter.   In the fall of 2012, R.M. began to exhibit health problems, including frequent nosebleeds and weight loss. The mother decided that R.M., as a U.S. citizen, should return to the United States to receive medical care. For that reason, the father and mother agreed that the mother's aunt could bring R.M. to the United States for medical care; the parties' written agreement provided that R.M. would be returned to Canada around September 20, 2013. In the fall of 2013, R.M. was examined and treated for eczema, a tendency to experience nosebleeds, and mild anemia, for which she was prescribed an iron supplement.    R.M. was not returned to Canada as agreed. Instead, on September 13, 2013, the mother left Canada with M.M. and traveled to her aunt's home in Massachusetts, where the mother and the two children remained through oral argument in this case.


 On November, 26, 2013, the father filed a petition in the United States
District Court for the District of Massachusetts, seeking a court order for the
return of M.M. and R.M. to Canada.   In support of that determination, the district court made several findings of fact and conclusions of law. Among those facts, the district court found that the parties' actions demonstrated that they "both were content" for the children to live in Canada for at least two years immediately prior to the children's removal to Massachusetts. The court found that even after the mother stopped living with the father, she chose to remain in Canada in her own household with the children.
During this time, the children led "settled" and "acclimatized" lives in Canada,
where they attended school and participated in social activities. The court thus
concluded that Canada was the children's habitual country of residence at the time
of their removal, and they were wrongfully removed or retained for purposes of the
Hague Convention. The district court further found that returning the children to Canada would not involve a grave risk of physical or psychological harm. The court noted that the mother admitted that the father has never harmed or attempted to harm M.M. or R.M. It further found it "telling" that even after the mother moved out, she took no steps to prevent the father from having contact with the children. Therefore,
the court granted the father's petition for the return of M.M. and R.M. to Canada.

The First Circuit affirmed. It reviewed the "district court's factual findings for clear error while reviewing its interpretation and application of the Hague Convention de novo. The First Circuit observed that although the Convention itself does not define the term "habitual residence," its inquiry into this question begins with the parents' shared intent or settled purpose regarding their child's residence. As a secondary factor, evidence of a child's acclimatization to his or her place of residence may also be relevant.  The Court pointed out that when reviewing a district court's findings as to habitual residence, "we defer to the court's findings of intent absent clear error, but we review the ultimate determination of habitual residence-a mixed question of fact and law-de novo."  The Court noted that where the children in question are very young, “we focus on the shared intent or settled purpose of the parents, rather than the children, because young children lack both the material and psychological means to decide where they will reside.  It looks specifically to the latest moment of the parents' shared intent, as the wishes of one parent alone are not sufficient to change a child's habitual residence.  In a situation like this, in which the parties have lived in two or more countries, the district court is required to "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 support of her position, the mother argued that the father only left Haiti
after a catastrophic earthquake forced him to seek refugee status in Canada. She
maintained that she was coerced to move to Canada, and that she never applied for
asylum or status as a permanent resident there. The mother alleged that the father forced her to leave Boston and bring R.M. to join him and M.M. in Canada by means of threats. She alleged that he said that if she did not come to Canada, he would buy rat poison and use it to first kill M.M., and then himself.  The father denied the mother's claims, and the district court did not affirmatively credit her allegations. The court found that although the mother only "reluctantly" took R.M. to Canada in March 2010, she then proceeded to live there with the father and his children for approximately ten months. In January 2011, the mother, R.M., and M.M. moved out, first staying with relatives but then moving to a separate apartment in Montreal. In February or March 2012, the mother agreed to allow the father and his other children to move into her apartment. The court further found that "[i]t is clear that the children lived with their mother in an apartment in Montreal for about two years prior to the events that gave rise to the present petition." The court found relevant the undisputed fact that even after the mother stopped living with the father, "she established her own household with the children in Montreal." Thus, the court found that the mother's actions showed that she chose to remain in Canada of her own volition, and the fact that "she subsequently had a change of heart and decided that the children would be better off living elsewhere is of no moment, as any such intent was not a shared one with [ the father]." For those reasons, the district court concluded that although the parents originally lacked a shared intent for the children to live in Canada when the mother first arrived in March 2010, the parties later formed such an intent at some point during the intervening three-and-a-half years prior to the children's removal and retention in September 2013. The court found that for at least two years during this period, and possibly longer, both parents were "content" to have the children live in Canada. On the record the First Circuit could not say that these findings were clearly erroneous.

The First Circuit found that the overwhelming weight of the evidence supported the district court's conclusion that "[f]or approximately two years, the children lived in a settled, 'acclimatized' way in Canada." The mother  failed to demonstrate that the factual findings were clearly erroneous. The record did not support a conclusion
that the children were acclimatized to any country other than Canada. Having found
no clear error on this issue, it upheld the district court's factual determination
that M.M. and R.M. were acclimatized to life in Canada.    Given the lack of clear error in the district court's factual findings on the parents' shared intent and on the children's acclimatization, both of these factors supported the district court's ultimate determination that Canada was the children's country of habitual residence.

The mother alleged that the father repeatedly raped her, including in the  presence of the couple's children. According to the mother, this sexual abuse began while the parties lived together in Haiti in 2007 and continued through 2009, and it resumed when they lived together in Canada, beginning in July 2010 and continuing through her most recent rape on September 9, 2013. The mother alleged that one of the father's twin children, B .M., exhibited sexually aggressive behavior toward his half-sister, M .M.  In response to one incident the father whipped B.M. with a belt. Shortly thereafter, after another incident of sexually inappropriate behavior by B.M. toward M.M., the father allegedly told the mother that the behavior was not serious. The mother also alleged that, while the family was living together in Canada in May 2010, she found B.M. and M.M. in the living room with their pants and underwear around their ankles. Once again, the father whipped B.M. with a belt as punishment.  The mother argued that in addition to potential physical and sexual harm, M.M. and R.M. would be subjected to corresponding psychological harm if returned to Canada. At trial, the mother offered her own testimony as well as that of her aunt. She also offered the expert testimony of Dr. Eli Newberger, a Massachusetts pediatrician. who offered his professional opinion that the children would be subject to a grave risk of physical or psychological harm if returned to Canada, on the basis of the mother's assertions of past abuse. The "nature and scope" of Dr. Newberger's work regarding the case involved reviewing the children's medical records at Boston Medical Center, and  a visit to his home office, where he interviewed the mother, her aunt, and both children.

  The father denied the mother's allegations regarding any sexual assault or rape
of her, stating that he never abused her sexually and denying that the parties 
ever had sexual relations in front of the children. He further denied the allegations of sexual abuse of M.M. by his twins.  He emphasized that the mother admitted that he never physically harmed M.M. or R.M. The father maintained that, during the parties' separation in Canada, he continued to visit with the children regularly-generally every weekend (from Friday after school until Sunday night), but also occasionally during the school week. He noted that the mother never contacted the police regarding her claims of sexual abuse, nor did she ever seek protection or a restraining order from the Canadian courts against him. He asserted that she only filed for a restraining order in the United States on September 17, 2013, after she had relocated to Massachusetts with the children.

The district court noted the mother's testimony that the father "frequently acted toward her in a sexually abusive manner," and that "he insisted on sexual activity at times and under circumstances when the children were or could have been exposed to it." However, the district court found that this "testimony was general and vague," and that it was "difficult to draw any reliable conclusions about how frequently such conduct occurred or how significant any impact on the children might have been. " The court observed that the mother "admits that [the father] has never harmed or attempted to harm [M.M.] or [R.M.]." Furthermore, the court found it "telling" that "even after moving out in January 2011, [the mother] took no steps to prevent [the father] from having contact with their children." The Court found Dr. Newberger's expert testimony "unconvincing," because it was not "based on an in-depth investigation, but rather on some office interviews and a review of hospital records that themselves did not disclose any grave medical or emotional issue."Accordingly, the court found that "[t]he evidence fell well short of supporting a finding of a grave risk of psychological harm." The First Circuit found no clear error among the foregoing findings of fact. 

The district court did not fully credit the mother's testimony, which it found to be "general and vague." The father denied the mother's allegations, and the mother offered scant evidence to corroborate her testimony.  As to potential sexual abuse of M.M. or R.M. by their half-brother, B.M., who was still a young child, the record did not establish that B.M. continued to exhibit sexually aggressive or inappropriate behavior, or that the father and his new wife were unwilling or unable to prevent any such incidents in the future. Thus, on the supported factual findings made by the district court, it could not say that there is a "grave risk" that B.M. would behave in sexually aggressive or inappropriate ways toward either M.M. or R.M. if they are returned to Canada.

The First Circuit found that the case involved competing "he said, she said" testimony from both parties, with little independent evidence corroborating the mother's testimony, and no clear acceptance by the district court of the mother's narrative over the father's. The district court thus effectively found that the mother did not bear her burden of proof in establishing that returning the children to Canada
would subject them to a "grave risk" of "physical or psychological harm." There was 
no error in that determination.