O.A. v D.B., Slip Copy, 2016 WL 3748779 (Table), 2016 N.Y. Slip Op. 51089(U) (Fam. Ct.,2016) [Norway] [New York Family Court][Petition Denied]

In O.A. v D.B., Slip Copy, 2016 WL 3748779 (Table), 2016 N.Y. Slip Op. 51089(U) (Fam. Ct.,2016) Petitioner Father, O.A., a Norwegian citizen, filed a petition in Family  Court for the return of his daughters, D.A.P. and D.P. to Norway. The petition was brought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (1343 UNTS 89, TIAS No. 11, 670, 1343 [1980]), and its domestic implementing legislation, the International Child Abduction Remedies Act, 42 USC §§ 11601. Respondent mother, D.B., an American citizen, opposed the petition and argued that a return of the family to Norway will subject the subject children to a grave risk of harm because of the repeated domestic violence petitioner inflicted upon respondent. Respondent also alleged that some of the said domestic violence incidents occurred in the presence of the eldest subject child. The Court held a hearing and found that the petitioner had established, by a preponderance of the evidence, each required element under the Hague Convention. It also found that  respondent failed to establish that the subject children would be subjected to a grave risk of harm, psychologically or physically, if they return to Norway and granted the petition.

Comment: 

        It appears to us that the Family Court, a court of limited jurisdiction, lacked subject matter jurisdiction to hear the petition. 

A petition for the return of a child commencing a civil action for the return of a child must be filed "in any court which has jurisdiction of such action." 22 U.S.C. § 9003 (b), formerly cited as 42 USC § 11603 (b). The New York State Supreme Court has jurisdiction to hear these proceedings. N.Y. Const, art VI, § 7[a].  On the other hand, the Family Court is a court of limited jurisdiction, whose jurisdiction is proscribed by Article VI, § 13 of the New York State Constitution. It has not been conferred with jurisdiction under  Article VI, § 13 of the New York state constitution to determine such cases. 

A court hearing a Hague Convention proceeding must have jurisdiction of the action and must be authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed. 22 U.S.C. § 9003 (b), formerly cited as 42 USC § 11603 (b). Family Court is not authorized to exercise such jurisdiction. While 22 U.S.C. § 9003, formerly cited as 42 USC § 11603, grants original  jurisdiction of these proceedings to State and federal district courts, it does not grant jurisdiction to state courts of limited jurisdiction, such as the family court and surrogates court, nor does it purport to do so. Domestic Relations Law §77-a, the Uniform Child Custody Jurisdiction and Enforcement Act, which provides that a “court of this state may enforce an order for the return of the child made under the Hague Convention on the Civil Aspects of International Child Abduction as if it were a child custody determination”, does not authorize the commencement of a civil action for the return of a child.


It appears that the Family Court lacks subject matter jurisdiction to hear Hague Convention cases. This has been confirmed by the U.S. Court of Appeals for the Second Circuit, which has held that " [t]he phrase “in any court which has jurisdiction of such action,” 42 U.S.C. § 11603(b), underscores that while § 11603(a) confers jurisdiction in a particular federal forum (i.e., in United States district courts), it does not confer jurisdiction in particular state courts (e.g., a family-law court; a juvenile court; or a court of general jurisdiction); the appropriate state forum for an action under the Hague Convention is an issue of state law. The court in which the petition is filed must also be “authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.”  Ozaltin v. Ozaltin, 708 F.3d 355, 360 (2d Cir. 2013). See footnote 25 

Neumann v Neumann, 2015 WL 3661907 (E.D. Michigan, 2016) [Mexico] [Federal & State Judicial Remedies] [Stay Pending Appeal Denied]

In Neumann v Neumann, 2015 WL 3661907 (E.D. Michigan, 2016) on May 17, 2016, the district court granted the petition for return in part and ordered Respondent Julie Neumann to return two of the three minor children, JSN and MKN, to Mexico by June 30, 2016.  Julie filed a motion to stay the Court’s return order pending appeal. The Court applied the four traditional stay factors which guide the Court’s analysis: “(1) whether the stay applicant has made a strong showing that [s]he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Chafin v. Chafin, 133 S. Ct. 1017, 1027 (2013). The Court denied Julie’s motion, concluding that none of the four factors relevant to the appropriateness of a stay weighed in favor of issuing one here.

Hernandez v Cardoso, 2016 WL 3742858 (N.D. Ill, 2016) [Mexico] [Grave Risk of Harm] [Petition denied]

In Hernandez v Cardoso, 2016 WL 3742858 (N.D. Ill, 2016) Petitioner John Hernandez petitioned for the return of his son, AE, to Mexico. It was undisputed that Petitioner established a prima facie case. The petition was denied because there was a grave risk that return of AE to Mexico would expose him to physical or psychological harm. During the hearing, both Hernandez and Cardoso testified that they both used physical discipline on the children, but the parties dispute whose discipline was more forceful. Cardoso testified that Hernandez would hit her in front of the children “a lot” and that he wanted the children to watch him hit her. She would ask him to let the children leave the room when he was hitting her, and he would say “I want the children here. I don’t want them to go.” Cardoso testified to an incident where Hernandez slapped, kicked, and hit her with a wooden board in front of their daughter. When she tried to get away, Hernandez broke through a window, dragged her by her hair, and then raped her.  She testified that he would “always do that [rape her] when he would hit” her because “[t]o him it was like to make me happy.” The Court observed that under the law of this circuit, credible testimony of spousal abuse, carried out in the presence of the child at issue, supports a finding that return of the child to the abuser poses a grave risk of at least psychological harm. Khan v. Fatima, 680 F.3d 781, 786 (7th Cir. 2012). Although AE’s verbal expression about the effect of witnessing Hernandez hit Cardoso was limited (he felt “sad”), the Court observed a significant change in demeanor when AE discussed Hernandez, the domestic violence, and the possibility of returning to Hernandez’s custody. The Seventh Circuit has rejected the notion that courts should consider whether the petitioner’s country of residence can adequately protect the child. Khan, 680 F.3d at 788. “If handing over custody of a child to an abusive parent creates a grave risk of harm to the child, in the sense that the parent may with some nonnegligible probability injure the child, the child should not be handed over, however severely the law of the parent’s country might punish such behavior.” Van De Sande v. Van De Sande, 431 F.3d 567, 571 (7th Cir. 2005). Even where the petitioning parent has not seriously physically injured the child in the past, a “propensity for violence,” coupled with “the grotesque disregard” for child welfare demonstrated by committing spousal battery in the presence of children, indicates a risk that the petitioning parent will one day “lose control and inflict actual physical injury” upon the child. Van De Sande, 431 F.3d at 570.

Gonzalez v Pena, 2016 WL 3654283 (D. Az, 2016) [Mexico] [Grave Risk of Harm] [Petition Denied]

In Gonzalez v Pena, 2016 WL 3654283 (D. Az, 2016) Gonzalez was a Mexican citizen residing in Mexico. Pena was a Mexican citizen residing in Scottsdale, Arizona. The parties were the parents of two Children: J.P., born in 2007, and A.P., born in 2005 in Scottsdale. In 2012 Gonzalez moved to Nayarit, Mexico with the Children. Pena continued to reside in Scottsdale and visited the Children in Mexico. There were no court orders dictating the parties' parenting time. On June 7, 2015, Gonzalez agreed that the Children could visit Pena in Scottsdale. The parties agreed that Pena would return the Children to Mexico by August 6, 2015.. Approximately one week before the Children were to be returned to Mexico, A.P. informed Pena that she had been sexually abused by Gonzalez's live-in boyfriend. As a result, Pena decided to not allow the Children to return to Mexico.  The district court found that Gonzalez established a prima facie case for return. Although Pena's retention was wrongful, the Court found he had met his burden of showing that returning the Children to Mexico presents a “grave risk” or would be an “intolerable situation” and denied the petition.  Sexual abuse most  constitutes a ‘grave risk’ of physical or psychological harm.” Ortiz v. Martinez, 789 F.3d 722, 728 (7th Cir. 2015). The evidence clearly and convincingly established that Gonzalez's live in boyfriend sexually abused A.P. at least once. Moreover, Gonzalez's stated that she did not believe any abuse could have occurred because she had the only key to the bedroom. At one point, Gonzalez stated that she believed only “touching” had occurred, “not sexual abuse.” And she stated that she kicked her boyfriend out of the house not because she believed any abuse had occurred, but because she wanted the “situation to clarify.” Notably, not once during her testimony did Gonzalez state that she would take any steps to protect the Children from abuse if they returned to Mexico. The evidence also demonstrated that the Children had already suffered psychologically from the abuse. A.P. has been diagnosed with post-traumatic stress disorder, and J.P. had been experiencing anger issues with the incident. A.P. had experienced some depression, and experiences trouble sleeping and nightmares. The Court found separating the Children would significantly aggravate their emotional state. 

Martinez v Cahue, 2016 WL 3457617 (7th Cir, 2016) [Mexico] [Habitual Residence] [Rights of Custody] [Petition denied]

In Martinez v Cahue, 2016 WL 3457617 (7th Cir, 2016) the first seven years of A.M.'s life, he lived in Illinois with his mother, Jaded Mahelet Ruvalcaba Martinez. He was born in Chicago in 2006. A.M.'s father, Peter Valdez Cahue, lived nearby, although he and Martinez never married. They entered into a private arrangement, never formalized through a court order, for custody and visitation rights. In 2013, Martinez moved to Mexico and took A.M. with her. About a year later, Cahue persuaded Martinez to send A.M. to Illinois for a visit; he then refused to return A.M. to Mexico.

            The district court held an evidentiary hearing, after which it determined that there was sufficient evidence that A.M. had acclimatized to Mexico during the year he lived there with his mother. It also found, however, that Cahue and Martinez did not jointly intend that A.M. should move to Mexico in the first place. It said, Martinez took A.M. to Mexico without Cahue's permission or knowledge (presumably about the permanence of the move—Cahue admitted that he knew about the trip). Emphasizing the absence of shared parental intent, the district court held that Illinois had remained A.M.'s habitual residence during the year he spent in Mexico, and thus Martinez's petition had to be dismissed.

            The Seventh Circuit reversed. It concluded that the district court asked the wrong question, and thus came to the wrong answer. It found that at all relevant times, Martinez had sole custody of A.M. under Illinois law, while Cahue had no right of custody either under Illinois law or the Convention. That meant that only Martinez's intent mattered, and it was plain that Martinez wanted A.M.'s habitual residence transferred to Mexico. Cahue's retention of A.M. in Illinois was therefore wrongful and he had to be returned to Mexico.

            The Court found that Martinez's initial removal of A.M. to Mexico in July 2013 was not subject to any legal restrictions that might allow Cahue's intent to affect the analysis. Cahue never obtained rights of custody for Convention purposes under these statutes, nor was Martinez's right to relocate A.M. constrained by them. In the absence of a court order, Illinois law presumes that the mother of a child born out of wedlock has sole custody. See 720 ILCS 5/10–5(a)(3) (2013) Cahue did not obtain a custody order during the time that mattered. When Martinez moved to Mexico with A.M., she may have violated the terms of the couple's private custody agreement. But the move did not violate a right of custody for Convention purposes. Martinez's removal of A.M. to Mexico was therefore not wrongful. Nor did it violate Illinois law. Because only Martinez has rights of custody under the Convention, and Illinois law did not in any way restrict her right to move away from the country with her son, only her intent was of legal significance.

            The second key consideration in determining habitual residence is the extent to which the child has acclimatized to one or the other place. The district court found that by August 2014, A.M. had acclimatized to Mexico. While A.M. had spent most of his life in Illinois, that fact is not dispositive. (That would create the kind of formulaic, ratio-based test that appears nowhere in the Convention.) The Seventh Circuit found that by the end of his first year in Mexico, he displayed all of the indicia of habitual residence, including friends, extended family, success in school, and participating in community and religious activities.

    

          Based on Martinez's intent that he change habitual residence, the lack of any right on Cahue's part to veto her preference, and A.M.'s own successful acclimatization, the Court conclued  that Mexico was A.M.'s habitual residence at the time Cahue acted to retain him in the United States.   Because the district court found that A.M.'s habitual residence was Illinois, it had no reason to evaluate the wrongfulness of Cahue's 2014 retention of A.M., or any possible defenses that Cahue might have raised.

            Cahue admitted  that he retained A.M. in Illinois without Martinez's consent. In doing so, he violated her rights of custody under Mexican law. See Civil Code for the State of Aguascalientes, arts. 434, 437, 440–41; Garcia, 808 F.3d at 1164 (noting that the right called patria potestas is “a ‘right of custody’ under the Convention” that is conferred to both parents, and whose “central values” are “fairness and reciprocity”).  

            Because Cahue's retention of A.M. in July 2014 was wrongful, A.M. had to be returned to Martinez unless Cahue can show that either of the two defenses he presented applies: that A.M. is now so “settled in [his] new environment” that he should not be returned, see Convention art. 12, T.I.A.S. No. 11670, or that Martinez “subsequently acquiesced in the ... retention,” see id. art. 13(a). The  record did not support the applicability of the “settled-child” defense, and did not not support a finding that Martinez ever acquiesced in Cahue's actions.

Alcala v Hernandez, 2016 WL 3343251 (4th Cir.,2016)[Mexico] [Petition dismissed] [Now Settled]

     In Alcala v Hernandez, 2016 WL 3343251 (4th Cir.,2016) in June 2013, Appellee Claudia Garcia Hernandez (Mother) removed her two minor children from their home in Mexico and arrived in South Carolina in August 2013. In October 2014, the children’s biological father, Appellant Fernando Contreras Alcala (Father), petitioned for return of the children to Mexico. The district court found that Mother’s removal of the children was wrongful, but that the children were now settled in their new environment and declined to order the children returned. The Fourth Circuit affirmed.  It noted that Article 12 states that where appropriate proceedings are not commenced within one year of a child being wrongfully removed, a court shall nevertheless order return “unless it is demonstrated that the child is now settled in its new environment.” In a case of first impression in this Circuit the Court found that the reasoning of the Second Circuit in Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir. 2012), aff’d in part sub nom. Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014) was consisted with its reasoning and agreed that for a child to be settled within the meaning of the Convention, the child must have significant connections demonstrating a secure, stable, and permanent life in his or her new environment. Insofar as relevant facts to be considered, it held that courts should consider any relevant circumstance that demonstrates security, stability, or permanence—or the lack thereof—in a child’s new environment. Such a totality-of-the-circumstances analysis . It observed that  the district court here looked to the factors articulated by the Second Circuit in Lozano: (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 district court correctly recognized that such factors are non-exhaustive, and in a particular case some of these considerations may not apply and additional considerations may be relevant. While it agreed that the use of such factors may be helpful in guiding factual development and analysis, their use should not obscure the ultimate purpose of the court’s inquiry, which is a holistic determination of whether a child has significant connections demonstrating a secure, stable, and permanent life in his or her new environment.

    The Fifth Circuit also observed that under the Convention Courts have discretion to order the return of the child at any time. However, the Convention provides no explicit guidance as to when a court should exercise such discretion. It noted that the discretion to order return is grounded in principles of equity and it was not persuaded that equitable considerations warranted ordering the Son’s return. 

Berezowsky v Rendon Ojeda, 2016 WL 3254054 (5th Cir.2016)[Mexico] [Re-return order]

  In Berezowsky v Rendon Ojeda, 2016 WL 3254054 (5th Cir.2016) Michelle Gomez Berezowsky filed a Hague Convention petition arguing that Rendon wrongfully removed PARB from his habitual residence (purportedly Mexico). The district court ruled in her favor and ordered PARB returned to Berezowsky. Rendon complied, and Berezowsky, with the district court’s permission, left for Mexico with PARB. Rendon appealed, asking that PARB be returned to him. In August 2014 the Fifth Circuit reversed the district court’s judgment (Ojeda 1). It concluded, in relevant part, that “[f]or the reasons stated in this opinion we VACATE the district court’s order and REMAND with instructions to dismiss.” The accompanying mandate stated that “[i]t is ordered and adjudged that the judgment of the District Court is vacated, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court.” On remand, the district court succinctly “ORDERED THAT the [District] Court’s Order for the return of the child [to Berezowsky] ... is VACATED and this action is DISMISSED.” Rendon timely filed a Rule 59(e) motion to amend the judgment, asking the court to order Berezowsky to return PARB to him in light of the dismissal. The district court denied the motion, and Rendon again appealed. 

       The Fifth Circuit affirmed. It found no binding precedent addressing how a mandate “vacat[ing] ... and remand [ing] with instructions to dismiss” should be parsed.  It concluded that  Ojeda  neither required nor forbade a re-return order. The Court did not  decide in that case whether or not a re-return order was warranted. Because a lower court “is free to decide matters which are left open by the mandate,” the decision to issue or deny a re-return order was therefore the district court’s. The district court decided not to issue a re-return order.  It subsequent refusal to amend the judgment (which provided the basis of the present appeal) is reviewed for abuse of discretion, and amendment is appropriate if the controlling law has changed, if new evidence is available, or if the initial decision was manifestly erroneous as a matter of law or fact.  Rendon did not allege new evidence or a change in controlling law, and the district court’s decision was not legally or factually erroneous. The law of the case did not compel a re-return order, and the court reasonably could have concluded on these facts that the equities did not favor a re-return order. Citing these concerns, the Ninth Circuit recently refused to issue a re-return order after overturning a district court’s Hague Convention decision, in what appears to be the only federal appellate case addressing the propriety of such an order. In re A.L.C., 607 F. App’x 658, 663 (9th Cir. 2015). The Fifth Circuit affirmed. It held that the district court did not abuse its discretion in refusing to issue a re-return order.