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Monday, October 10, 2016

Best v Tamplin, 2016 WL 5402717 (W.D. Penn., 2016)[Bermuda] [Attorney’s Fees & Costs]


In Best v Tamplin, 2016 WL 5402717 (W.D. Penn., 2016) Petitioner Joseph E. Best, Jr. sought attorney’s fees  and costs pursuant to 22 U.S.C. § 9001 (formerly 42 U.S.C. § 11601) and 22 U.S.C. § 9007(b)(3) (formerly 42 U.S.C. § 11607(b)(3)) after his petition for an order compelling the return of his minor children to Bermuda was granted. Respondent challenged the  motion on the grounds that the custody arrangement governing the children and her removal of them to Erie was still under review by the Supreme Court of Bermuda and therefore an order in favor of petitioner could prove to be prejudicial to her rights in that forum. Consequently, from her perspective awarding attorney’s fees and costs ‘would be clearly inappropriate‘ under 22 U.S.C. § 9007(b)(3). The district court held that this argument had no application to the motion and the court already granted petitioner relief under the Hague Convention. Therefore, respondent failed to show it ‘would be clearly inappropriate‘ to award necessary fees and expenses.

         The district court held that Respondent’s violation of the statute virtually triggers an award of reasonable attorney’s fees and costs under 22 U.S.C. § 9007(b)(3), unless respondent establishes that they ‘would be clearly inappropriate.‘ The lodestar approach is the appropriate method for this court to use in determining the amount of reasonable attorney’s fees that should be awarded to the prevailing party. Distler v. Dislter, 26 F. Supp.2d 723, 727 (D.N.J. 1998). Petitioner’s attorney sought $199.72 per hour. The court found this hourly rate to be reasonable. She documented 102.5 hours, which when multiplied by the reasonable hourly rate of $199.72 produced a total of $20,471.30. Respondent  failed to challenge petitioner’s request or provide specific reasons as to why an award of this amount would be unreasonable or ‘clearly inappropriate.‘ Accordingly, petitioner’s request for attorney’s fees was reasonable and was approved. Petitioner also sought reimbursement of $2,036.88 in airfare, hotel, and car rental costs. Under 22 U.S.C. § 9007(b)(3), petitioner is entitled to these costs as it was necessary for him (1) to fly to the United States, (2) stay 2 nights in order to attend the hearing, and (3) return with his children to Bermuda. Federal courts routinely have awarded transportation and lodging costs to attend court hearings. See, e.g., Paulus v. Cordero, 2013 U.S. Dist. LEXIS 20198 (M.D. Pa. 2013) (ordering reimbursement of $555.80 for airfare, $619.50 for bus fare, and $122.10 for lodging expenses); Distler, 26 F. Supp. 2d at 728 (awarding $2,422.00 for round trip flight and minor’s airfare for return to his habitual residence) (citing Freier v. Freier, 985 F. Supp. 710, 714 (E.D. Mich. 1997)). Petitioner  provided sufficient documentation regarding these expenses and respondent failed to present a persuasive argument suggesting that an award of actual airfare, lodging, and transportation costs would be ‘clearly inappropriate.‘ Accordingly, she was ordered to pay $2,036.88 for his reasonable and necessary costs.   Petitioner’s request for $1,407.26, which was charged to petitioner by counsel as actual out of pocket costs also was also approved as necessary costs. However, $250.00 requested for petitioner’s food and miscellaneous costs while in Erie on August 31, 2015, and September 1, 2015, was denied as he would have had to eat and incur similar sundry expenses even in the absence of the hearing.


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Fernandez v Bailey, 2016 WL 5149429 (M.D., FL ., 2016) [Panama] [Well-settled] [Petition denied][ testify via video transmission][in camera interview]



In Fernandez v Bailey, 2016 WL 5149429 (M.D., FL ., 2016) the district court denied Petitioner Roque Jacinto Fernandez’s Petition for Return of his Children to Panama. Petitioner, a Panamanian citizen, and Respondent an American citizen working in Panama, were involved in a romantic relationship. Respondent gave birth to the couple’s twin sons, C.R.F.B. and R.J.F.B., on August 18, 2008. Although Respondent and Petitioner never married, Petitioner’s name was on the children’s birth certificates. In May of 2009, Respondent left Panama with the children and moved to Missouri without Petitioner’s consent. On May 13, 2010, Petitioner filed his first petition under the Hague Convention, seeking the return of the children to Panama. The District Court ordered that Respondent return the children to Panama in September of 2010. 2010 WL 3522134, at *3 (E.D. Mo. Sept. 1, 2010), modified, 2010 WL 5399220 (E.D. Mo. Dec. 23, 2010). As a result of a prior felony conviction he received while living in the United States as a juvenile, Petitioner was unable to obtain a visa and attend the 2010 hearing in person. Pursuant to the Missouri court’s order, Respondent returned to Panama with the children. In Panama, Petitioner initiated custody proceedings and criminal charges against Respondent for the previous removal of the children. Pursuant to the ongoing custody proceedings, Petitioner had visitation rights to visit with the children every other weekend. Because of the contentious relationship between the parents, the Panamanian court designated a local children’s police station as the drop-off and pick-up location for these visits. On February 2, 2014, Respondent and the children flew from Panama to Tampa, Florida. Petitioner was unaware that Respondent and the children had moved to Florida. Before learning that the children were in the United States, and in late January of 2015, the Panamanian immigration authorities informed Petitioner that the children had left Panama nearly a year earlier on February 2, 2014. Petitioner then filed a Hague Convention application in late February of 2015. The United States Department of State provided information regarding the location of the children to Petitioner, eventually disclosing the children’s current location in Tampa, Florida. On August 24, 2016, Petitioner filed his Verified Petition for Return of Children to Panama 

        The district court found that the petitioner established a prima facie case for return, and found that respondent did not establish the grave risk of harm defense nor the wishes of the child defense. However,  it found that the children were wrongfully removed more than one year before the petition and that the children we is now settled in their new home. Hague Convention, art. 12. To fall under this exception, “the child must have significant connections demonstrating a secure, stable, and permanent life in his or her new environment.” Alcala v. Hernandez, 826 F.3d 161, 170 (4th Cir. 2016) It found that during their time in Florida, the children resided in two locations, both in the Tampa Bay area. Both residences were in  the same general area. The children  built relationships with Respondent’s family members since their arrival in the United States. Although the distance between the children and these relatives prevented daily interaction, the Court found that the children built a meaningful connection with their extended family while living in Florida. Since enrolling in their current school in Tampa in April of 2015, the children  attended consistently and earned all satisfactory or excellent marks on their report cards.  The elementary school gave the children awards for good behavior and citizenship. The children made friends and participated in extracurricular activities. While living in St. Petersburg, they played in a local t-ball league. Later, at the children’s request, Respondent registered them to play on a club soccer team, for which they travel with their teammates and play competitively. Last summer, Respondent enrolled the children in a Christian summer camp, where the children participated in adventurous activities like rock-climbing and archery. Respondent was an American citizen working in a well-paying job, which Respondent testified partially motivated her move from Panama to Florida. She had been steadily employed since her arrival and has sufficient financial resources to keep a live-in nanny to help with child-care. The Court found that Respondent had  a stable career and adequately provides for the children. The Court was not persuaded that Respondent used the concealment tactics alleged by Petitioner. Regardless, if they were used, the Court found  that these tactics had not prevented the children from forming a permanent and stable connection to their new environment. The children attended the same school for over a year, were enrolled in school and extracurricular activities in their own names, and had lived in only two homes in the Tampa Bay area since their arrival from Panama. The children were thriving in Florida. The Court believed that the children’s interest in settlement  outweighed the other interests that would be served by returning the children to Panama. The Court was deeply disturbed by Respondent’s actions. This was the second time Respondent has removed the children from Panama without Petitioner’s consent. Because Petitioner had been unable to secure a visa to attend the 2010 Hague Convention hearing because of his prior conviction, Respondent likely knew that Petitioner could not travel to the United States to search for the children or participate in person if future custody proceedings were initiated here. While preventing this type of forum-shopping by parents was a major motivation for the enactment of the Hague Convention, the interest in discouraging wrongful removals like that perpetrated by Respondent is not enforced at any cost under the Hague Convention. Lozano, 134 S. Ct. at 1235. The Court found that the children’s interest in settlement outweighed the other interests of the Hague convention because disruption of the stable and permanent connection the children established to their new home would be harmful.  The fact that Petitioner may have had a good reason to file his petition over a year after the children’s removal did not negate the harm that would come to the children if they were removed from their new environment. 

Sierra v Tapasco, 2016 WL 5402933 (S.D. Texas, 2016)[Mexico][Habitual Residence][Petition granted][Grave Risk of Harm Not Established]



In Sierra v Tapasco, 2016 WL 5402933 (S.D. Texas, 2016) Petitioner Jaimes and Respondent Nasly Ximena Riascos Tapasco (“Riascos”) met in Charlotte, North Carolina in 2006. They moved in together and on July 23, 2009, they had a child, K.J.R.  In 2011, one of their family arguments grew into a domestic dispute in which the police were called. Jaimes’s pleaded guilty to the charge.  Riascos was a Colombian national and Jaimes was a Mexican national. Although Riascos was in the United States on a visa, Jaimes was here illegally. AS  a result of his arrest for domestic violence he departed the country voluntarily, leaving open the possibility of returning to the United States legally in the future.  Riascos agreed to allow K.J.R. to return to Mexico with Jaimes and executed a notarized travel authorization to this end. The parties disagreed as to whether K.J.R.’s move to Mexico was intended to be temporary or permanent.  Riascos testified that she returned to Mexico in July 2014 because of Jaimes threats to keep the child from her  and to celebrate K.J.R.’s birthday.  Riascos alleged that although she did not tell Jaimes she was coming to Mexico for K.J.R.’s birthday, she did notify him once she arrived.. She testified that after her arrival she went to Jaimes’s home with his sister because she was afraid to go alone on account of his recent threats. When they arrived, Jaimes allegedly began verbally and physically assaulting Riascos in front of his sister and daughter, throwing K.J.R. onto the bed during the altercation. Riascos testified that it was only after enduring this abuse and hearing how unhappy her daughter was that she decided to leave Mexico with K.J.R. immediately..  According to Jaimes, he was not aware that Riascos was in Mexico on the eve of his daughter’s birthday and he never saw her. He testified that he slept alone at his home and early the next morning his sister called to tell him that K.J.R. was gone.. Jaimes immediately notified the authorities who began a search for the girl, but it was not until November that he received official confirmation that she was residing in Houston, Texas with Riascos. 
   
        The district court found that Jaimes and Riascos shared a mutual intent that the United States be K.J.R.’s habitual residence for the first three years of her life. They lived here together as a family with no intention of leaving until Jaimes was faced with immigration difficulties.  The question was whether the parties had shared intent for K.J.R. to abandon her habitual residence here and establish a new one in Mexico when she left the United States with her father in October 2012. The Court observed that whether the parties thought that Jaimes might one day return to the United States did not mean that the United States remained the child’s habitual residence. Norinder v. Fuentes, 657 F.3d 526, 534 (7th Cir. 2011)  Because parents will often disagree about what their shared intentions were, once litigation is underway, courts must take account of the parents’ actions as well as what they say. In such cases, context, rather than specific periods of time spent in a particular location, is the key to the concept of habitual residence. Berezowsky, 765 F.3d at 467. When parties argue that their intent was to eventually return rather than to establish a new residence, courts will look to the circumstances of the family’s move to assess parental intent. Acts of permanence such as selling cars, belongings, and homes, as well as the type of belongings brought to the new residence, often indicate the parties’ intention to make a permanent move. 

The record indicated that K.J.R. and Jaimes’s move to Mexico was not temporary. Jaimes signed over his tax refunds and bank accounts in America so that Riascos could access the funds after he left; he signed a voluntary immigration departure form, purchased one-way tickets to Mexico City, obtained a written release from Riascos to take the child, and departed with K.J.R. Soon after, he rented and established a home for the family.  Although she herself never fully moved to Mexico, up until six months before the abduction Riascos regularly visited K.J.R. and Jaimes for extended periods of time.. During those visits, the three of them lived together under a single roof as a family. K.J.R. never returned to America with her mother after any of her visits. K.J.R.’s bedroom in Mexico was full of all of her belongings, many of which Respondent brought to her there. Furthermore, after K.J.R.’s fourth birthday, Riascos took steps to purchase the property Jaimes and K.J.R. were living in as an investment because it had another apartment attached that the family could rent out. Most importantly, K.J.R. was also enrolled in school in Mexico, which was slated to begin over a year after her fourth birthday. This was sufficient contextual evidence that the parties had a shared intent that Mexico was to be K.J.R.’s habitual residence. The court also found that the record discredited Riascos’s claims that the agreement was for K.J.R. to return to the United States after her fourth birthday. The record suggested that the parents did in fact “jointly develop the intention” that K.J.R. was to abandon her habitual residence in the United States and establish a new habitual residence in Mexico. The district court found that Jaimes established that Mexico was the habitual residence of the child. It then found that under Mexican Law of patria postes Petitioner had rights of custody and that he was exercising those rights at the time of the removal, thus establishing a prima facie case. 
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The district court rejected the Respondents grave risk of harm defense. It observed that under Article 13(b), spousal abuse is only relevant if it seriously endangers the child. Souratgar v. Lee, 720 F.3d 96, 103–04 (2d Cir. 2013). There was no evidence that K.J.R. was targeted or at risk during the 2011 domestic violence incident, or that she even observed it.  Riascos’s speculation and the parties’ conflicting testimony was insufficient to meet the high threshold for a grave harm defense.  It noted that the exceptions to return are prospective, not retrospective. Sanchez v. R.G.L., 761 F.3d 495, 509 (5th Cir. 2014). As a result, past acts of domestic abuse or drug activity in the home are insufficient to show grave risk of harm. When the child observed parental abuse in the past, if the parents’ current living situation makes it unlikely that the child will do so again, there is no grave risk of harm. The Court, inter alia,  also rejected the argument that K.J.R. would be in grave danger if she was returned because Jaimes lived in one of the highest crime areas of the city. Living conditions marked by poverty, sociopolitical unrest, or community violence are insufficient to show grave risk of harm or intolerable situation. 


Saturday, October 8, 2016

Didon v Castillo, --- F.3d ----, 2016 WL 5349733 (3rd Cir., 2016) [Dutch Sint Maarten and French Saint Martin] [Habitual Residence] {Petition denied]


  In Didon v Castillo, --- F.3d ----, 2016 WL 5349733 (3rd Cir., 2016) the father sought the return of his two children (A.D. and J.D.),  to the Caribbean island of Saint Martin, a 34-square-mile island comprised of two legally distinct, yet highly integrated, countries—French Saint Martin. The Hague Convention is recognized by French Saint Martin (through France), but is not recognized by Dutch Sint Maarten. 
  
       The family resided in an apartment in Dutch Sint Maarten for three  years before the children were retained in the United States. Throughout this period, although the family resided in Dutch Sint Maarten, it was “primarily oriented” to French Saint Martin “where Didon worked, and where the children attended school, went to doctor’s appointments, etc.  The family’s administrative affairs, such as the children’s insurance, were managed in French Saint Martin.   The district court observed: “The parties’ testimony reveals that the border [between Dutch Sint Maarten and French Saint Martin] is so permeable as to be evanescent, and is regularly and readily traversed by residents and travelers alike. ... [F]or most purposes of its residents’ daily life, the island is essentially undivided.”  It highlighted testimony about the family’s extensive contacts with both countries and concluded that “the record facts, in addition to the nature of the island itself, supported a finding that J.D. and A.D. were habitual residents of both [Dutch] Sint Maarten and [French] Saint Martin. The District Court bifurcated the remainder of its analysis. Because Dominguez retained A.D. from his habitual residence in violation of Didon’s custody rights under French law, the District Court concluded that A.D. was “wrongfully” retained under the Hague Convention and granted the petition as to A.D. With respect to J.D., the District Court began by observing that Didon did not have custody rights over J.D. through adoption because his purported “adoption” did not satisfy the requirements of French law to vest custody. Because Didon did not have custody rights over J.D. under French law at the time of retention, the District Court concluded that J.D. was not “wrongfully” retained under the Convention and denied the petition as to J.D.

The Third Circuit reversed. It pointed out that the extraordinary facts of this case required it to decide an issue of first impression: may a child have two “habitual residence” countries at the same time under the Hague Convention (“concurrent habitual residence”)?  It concluded that the text of the Convention does not permit concurrent habitual residence. Rather than referencing “a State” of habitual residence or “the States” of habitual residence, the Convention repeatedly refers to “the State” of habitual residence. Such language is not susceptible to any construction whereby a child may have more than one habitual residence country at a time. This textual conclusion finds support in the Convention’s Explanatory Report. It noted that in concluding that concurrent habitual residence is possible under the Convention, the District Court relied on an earlier Ninth Circuit decision—Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001). In Mozes, the Ninth Circuit observed in dicta that, although “the view held by many courts” is that “a person can only have one habitual residence at a time under the Convention,” “[t]he exception would be the rare situation where someone consistently splits time more or less evenly between two locations, so as to retain alternating habitual residences in each.”   After carefully reviewing Mozes, it was not clear to the Court whether the Ninth Circuit was endorsing concurrent habitual residence or alternating habitual residence in that case. To the extent that Mozes could be read to support concurrent habitual residence, it rejected that interpretation of the Hague Convention as inconsistent with the Convention’s unambiguous text, and remaining faithful to the text of the treaty, it held that a child may have only one habitual residence country at a time under the Hague Convention.
  
        The Third Circuit therefore looked to the ordinary meaning of the term “residence” and concluded that a child must have lived in a country (i.e., had a home)  before that country can be considered her habitual residence under the Hague Convention. It held that the children were habitual residents only of the country in which they “lived”—Dutch Sint Maarten. Because Dutch Sint Maarten does not recognize the Convention, the Convention did not apply to this case. The Third Circuit vacated the District Court’s judgments and dismissed the petition. Because the District Court granted the petition as to A.D., it instructed the District Court to order that A.D. be returned to the United States forthwith.

Delgado v Osuna, --- F.3d ----, 2016 WL 5076017 (5th Cir., 2016) [Venezuela] [Habitual Residence] [Standard of Review] [Petition denied]


  In Delgado v Osuna, --- F.3d ----, 2016 WL 5076017  (5th Cir., 2016) the Fifth Circuit affirmed the district courts denial of  Dr. Delgado’s petition for return of his seven-year-old and four-year-old sons (“J.A.L.O.” and “D.A.L.O.,” to Venezuela. The parties were citizens of Venezuela and the married biological parents of the children, who were born in Venezula,  lived together from 2008 until May 2014. when they moved with their mother to Frisco, Texas. During this time, Dr. Delgado practiced urology. Prior to traveling to the United States in May 2014, Dr. Delgado and Osuna frequently discussed the civil unrest and danger occurring in Venezuela, and they discussed relocating their family to another country. The discussions were motivated by fear for their family, especially the children, after the family was robbed in 2013 in a Venezuelan hotel room while they slept. Additionally, Osuna testified that her uncle and father, had been involved in a military coup to overthrow the Venezuelan government. As a result, she and other members of her family had been threatened by the government, and she believed that her children had also been threatened. Osuna testified that she believed her children were threatened on March 4, 2014, when she was asked to pass a message to her uncle and father to “stop messing with the government.” At the conclusion of the conversation, the men who threatened her said, “Okay, you have a beautiful blondies [children], then take care.”

       The family had previously planned to travel to the United States on May 14, 2014 so that Dr. Delgado could attend the annual Congress of Urology and the children could visit amusement parks. The family obtained six-month tourist visas for the visit. Originally, the family purchased four round-trip tickets arriving in Miami on May 14, 2014 and departing Miami to return to Venezuela on May 26, 2014. Following the March threat to Osuna, one-way tickets were also purchased (sometime between March and May 2014) for Osuna and both children to travel to Osuna’s sister’s home in Frisco, for an undetermined period of time. After the March 2014 threat, Osuna withdrew J.A.L.O. from school in Venezuela, and with Dr. Delgado’s knowledge and approval, she sent J.A.L.O.’s paperwork to the school in Frisco to prepare for his enrollment upon their arrival. The family packed as many belongings as they could fit inside eight suitcases (two per person), which was the maximum allowed by the airline before it charged a fee. Osuna brought all of her and her children’s important documents, including birth certificates, medical records, school records, and her marriage license. Osuna and Dr. Delgado also went to Osuna’s mother’s house to pick out jewelry to bring to the United States. Dr. Delgado also established a bank account in Frisco prior to the trip and deposited money into it.  On May 14, 2014, the family traveled to Miami, Florida. During this trip, Osuna and Dr. Delgado met with Maritza Cifuentes who assisted Osuna and the children with preparing their applications for political asylum in the United States. During the meeting, Dr. Delgado learned that in order to practice urology in the United States, he would have to undergo an additional fourteen years of medical school and/or training. Accordingly, Dr. Delgado decided not to pursue asylum in the United States. On May 25, 2014, Osuna and the children flew to Texas. Dr. Delgado returned to Venezuela one day later. Throughout the spring and summer of 2014, Osuna and the children resided in Frisco, and J.A.L.O. enrolled in school there. On July 9, 2014, Dr. Delgado signed a power of attorney giving Osuna the authority to make decisions regarding medical, educational, and other care for the children while in the United States. Both parties agreed that the power of attorney did not affect either parties’ custody rights. Yet, the parties’ testimony diverged concerning the reason for executing the power of attorney. Dr. Delgado testified that the power of attorney was intended to give Osuna the authority to make medical, educational, and other care-related decisions for the children while they were in the United States. Osuna testified that the power of attorney was executed so that she could pursue the asylum applications for the children. In the fall of 2014, Dr. Delgado packed and sent, through a family member, some winter clothes to Osuna and the children. Osuna testified that even as late as October 2014, Dr. Delgado was aware of the asylum applications and continued to support her in pursuing asylum. Dr. Delgado provided approximately $500 a month to Osuna and the children until December 2014, when he ceased making these payments. Dr. Delgado testified that he requested that Osuna and the children return home in September 2014 because the political situation in Venezuela was improving. She refused. Dr. Delgado testified that his relationship with his wife had deteriorated, and he filed for divorce in January 2015.

        The district court issued a written opinion finding that Dr. Delgado “failed to meet his burden to establish by a preponderance of the evidence that the habitual residence of the children was Venezuela, and, thus, failed to demonstrate that the children were wrongfully removed and/or retained in the United States.” 

         The Fifth Circuit observed that it  reviews factual findings for clear error and conclusions of law de novo.” A factual finding survives review so long as it is plausible in the light of the record as a whole. A district court’s determination of a child’s “habitual residence” is a mixed question of law and fact subject to de novo review.  The mixed standard of review means that the court accept[s] the district court’s historical or narrative facts unless they are clearly erroneous, but exercis [es] plenary review of the court’s choice of and interpretation of legal precepts and its application of those precepts to the facts. It rejected Dr. Delgado’s argument that “the district court ignored Fifth Circuit precedent and applied an erroneous legal standard in its determination of the Children’s habitual residence” and that the factual “record does not support the district court’s finding that the parties shared an intent to abandon Venezuela as the Children’s habitual residence.” It noted that the Convention does not define “habitual residence.” Larbie, 690 F.3d at 310. “The inquiry into a child’s habitual residence is not formulaic; rather it is a fact-intensive determination that necessarily varies with the circumstances of each case.” This circuit has adopted an approach that begins with the parents’ shared intent or settled purpose regarding their child’s residence....This approach does not ignore the child’s experience, but rather gives greater weight to the parents’ subjective intentions relative to the child’s age. For example, parents’ intentions should be dispositive where, as here, the child is so young that he or she cannot possibly decide the issue of residency. The threshold test is whether both parents intended for the child to abandon the habitual residence left behind.” Absent the parents’ shared intent, “prior habitual residence should be deemed supplanted only where ‘the objective facts point unequivocally’ to this conclusion.” “Notably, when ‘the child’s initial move from an established habitual residence was clearly intended to be for a specific, limited duration[,] ... most courts will find no change in habitual residence. ” 

  The Court noted that it  reviews a district court’s shared intent determination as a factual finding that is reviewed for clear error.” The district court found that the parties’ “last shared intent ... regarding their children’s future was that they would leave their habitual residence, Venezuela, and would not return.” The district court recognized that the parties’ shared intent eventually diverged but that after meeting with Cifuentes in the United States, the last shared intent was for Osuna and the children to seek political asylum in the United States and for Dr. Delgado to return to Venezuela to seek employment opportunities elsewhere. If Dr. Delgado was successful in finding employment outside of Venezuela, Osuna and the children would cancel their asylum applications and reunite with Dr. Delgado.

      The Fifth Circuit held that the district court did not clearly err in its shared intent determination. The record demonstrated that Osuna and Dr. Delgado’s last shared intent was to abandon Venezuela permanently as the children’s habitual residence. There was a meeting of their minds to abandon Venezuela as the children’s habitual residence. Once Osuna and Dr. Delgado formed this shared intent and the children subsequently left Venezuela with their most important documents in tow, Venezuela was abandoned as the children’s habitual residence. It held that Dr. Delgado’s argument—that the shared intent to abandon a child’s habitual residence requires “making a joint decision to raise the child in the new country” and that the new country must be agreed upon by the parents—was not the law in the fifth circuit. Berezowsky, 765 F.3d at 471. In affirming it found that the district court applied the correct legal standard in determining the children’s habitual residence, and its shared intent determination was not clearly erroneous.


Friday, September 16, 2016

Bips v Bips, 2016 WL 4529957 (E.D. Va.,2016) [Germany] [Grave Risk of Harm not Established] [Petition Granted]



In Bips v Bips, 2016 WL 4529957 (E.D. Va.,2016) the district court granted the Petition of the mother, Caroline Thonet-Bips, for  the return of her four-year old child to Germany. N. was born on March 2, 2012 and was a citizen of Germany and the United States.  The mother was a citizen of Germany. The father was a citizen of the United States. The parties were married and lived together in Germany from July 12, 2010 until January 2015.  In January 2015, petitioner filed for divorce in Germany.  In September 2015, during the pendency of the divorce proceedings, E.H. began residing with petitioner at petitioner’s residence. Since the parties’ separation, there was a strained relationship between respondent and E.H., whom respondent has referred to in conversations with N. as “a guy that does bad things.”  In March 2016, respondent relocated to  Virginia. By Agreement dated March 22, 2016, the parties agreed that respondent would have specified visitation rights with N during the summer. It also provided that “[i]t is agreed that it is the mother who will be entitled to decide on the place of residence of the son.” In October 2015, while respondent was still residing in Germany, N. made statements to respondent that caused him to have concerns that the child was experiencing some form of abuse at the hands of E.H.  On June 29, 2016, N., with petitioner’s consent, traveled to the United States, where respondent and N. were met by respondent’s domestic partner S.C. After spending several days in Pennsylvania visiting respondent’s relatives, respondent, N., and S.C. all traveled on July 7, 2016 to Virginia, where respondent resided with S.C.  On July 7, 2016, N. and S.C. were watching the television program Power Rangers Megaforce together. N. asked S.C. why Power Rangers “have to have so much power” and S.C. explained that they have to have power to fight “bad people” to protect the world; once S.C. mentioned “bad people,” N. responded “like E.H.” S.C. testified that while she was concerned by these statement, she did not report them to respondent. The next day, while playing Power Rangers with S.C. on the floor of N.’s room, N. said to S.C that he needed to have power like the Power Rangers so he can fight “bad guys” like E.H. S.C. asked N. why he kept mentioning E.H., and N. said because he is a “bad guy” and he “hit me.” At that point, S.C. testified that she had a “huge concern” but again did not report the comments to respondent. Then, on July 9, 2016, while on an outing for ice scream, N. told both S.C. and respondent that E.H. “hit me.” At that point, according to S.C. and respondent, N. “just started spitting it all out ... spilled all the beans and explained everything in detail,” including that E.H. “pulled his eyelids, called him dumb, slapped him in the face,” and “squeezed” his “pee pee so hard and would not stop.” N. also made comments suggesting that E.H. abused E.H.’s own daughter as well and said that on one occasion in petitioner’s home (in Germany), E.H. became angry and began to shout loudly and threw a lamp, frightening N. so much that N. ran into his room. On the evening of July 9 and the morning of July 10, 2016, respondent and petitioner engaged in a series of contentious text messages. Respondent told petitioner “[N.] has been telling me that [E.H.] has been hitting him and that he calls me names and that he is mean to him. I will be reporting this to the US authorities. He told me that he is scared to be around [E.H.].” Petitioner responded by calling respondent’s allegations “absolute [sic] bogus” and stating that “[N.] for sure does not live in a household where he is scared.”  Petitioner, through her German lawyer, asked respondent to return N. to Germany on July 22, 2016. Respondent refused. N. was scheduled to return to Germany on August 25, 2016, based on arrangements made before N. left Germany to spend the summer with respondent. Before that scheduled return date, respondent cancelled N.’s airline reservation. On August 19, 2016, petitioner filed the action.

The Court found that the petitioner established a prima facie case for return to Germany, which was the childs habitual residence. It also concluded that respondent failed to establish by clear and convincing evidence that there is a “grave risk” that N. would suffer physical or psychological harm by return to his mother in Germany. There never were any allegations or concerns that petitioner has abused N. Nor had there ever been any physical signs of abuse by anyone. The only indications of any possible abuse were the child’s own comments, which were originally made and investigated in Germany in October 2015 by German child protective services. That agency concluded that there was no abuse and that the N. was not in danger. N.’s most recent comments like the earlier comments, were subject to interpretation and completely uncorroborated or substantiated in any way as references to actual abuse, and also were part and parcel of a context involving the child’s fascination and perhaps obsession with Power Rangers, as well as the parties’ ongoing difficult and at times contentious relationship and respondent’s own criticisms and negative characterizations of E.H., which he conveyed to N. The court found that the case had none of the facts or circumstances that had caused other courts to refuse the return of a child based on an Article 13 defense under the Convention. It rejected respondents argument that there was a grave risk of harm because petitioner could not or will not adequately protect N. from any possibility of abuse at the hands of E.H. The Court saw nothing that would substantiate respondent’s concerns. The evidence presented was far from “clear and convincing” that any abuse ever occurred or that if N. was  returned to his mother, there was a “grave risk” that this four-year old would suffer physical or psychological harm in Germany.

Ahmed v Ahmed, 2016 WL 4691599 (E.D. Tenn.,2016)[United Kingdom] [Habitual Residence][Petition denied]




In Ahmed v Ahmed, 2016 WL 4691599 (E.D. Tenn.,2016) the district court denied the petition of  Faisal Ahmed,  a citizen of the United Kingdom, for the return of the children finding that the U.S. was the children’s habitual residence. The Father was employed as an accountant in the U.K. The Mother was  a citizen of the United States. The parties were married on December 29, 2009, in Dhaka, Bangladesh. At the time of their marriage, Father lived in London and Mother lived in Michigan, where she was studying optometry. Following their wedding, Mother continued to live in the United States until August 2011. In August 2011, Mother moved to London to live with Father. In December 2011, Mother returned to the United States and moved to Clarksville, Tennessee. In August 2013, Mother returned to London to live with Father, a move that she considered to be permanent at that time. In October 2013, the parties submitted an application to the U.K. Border Agency for Mother’s Indefinite Leave to Remain  in the U.K. The application was approved and, on March 16, 2014, Mother was issued an ILR Residence Permit allowing her to live in the U.K. for ten years. Mother became pregnant with the twins in February 2014. Following a domestic argument in May 2014, Mother traveled from the U.K. to Knoxville, where she had previously lived. Mother did not return to the U.K. in the summer of 2014. She also testified that she chose not to return to the U.K. because of the issues in her marriage. Father traveled to Knoxville on October 9, 2014, and the twin daughters, An.Z.A. and Am.Z.A., were born on November 4, 2014 in Knoxville. Father returned to London on January 5, 2015. other and the children have remained in Knoxville ever since. On May 18, 2015, the parties and their children traveled to the United Kingdom. Mother traveled to London on a round-trip ticket, with a return to Knoxville scheduled for November 15, 2015, so she could attend a professional conference and visit family. The children, as U.S. citizens, had a 90-day visa to stay in the U.K. Father testified that the family brought “everything of any value” with them to London. Mother testified that she did not bring her diplomas or her optometry instruments to the U.K., nor did she take the family jewelry that was “culturally and religiously ... very important” to her and her family. Mother testified that she agreed to travel to the U.K. “for a short summer visit” upon certain conditions that she wanted Father to fulfill “to see if our marriage was going to work” . On July 12, 2015, Mother and the children traveled from London to Bangladesh, with Father’s consent and accompanied by her father, to attend the wedding of Mother’s brother. On August 5, but instead flew from Bangladesh to Knoxville, Tennessee where they have resided since then. The action was filed on March 23, 2016.

The district court observed that the primary issue was whether the children’s habitual residence was the U.K., or the U.S. It observed that  term “habitual residence,”  has been described by the Sixth Circuit as the country where, at the time of removal or retention, “the child has been present long enough to allow acclimatization, and where this presence has a ‘degree of settled purpose from the child’s perspective.’ ”. A child “can have only one habitual residence.” The Court “must look back in time, not forward” to determine a child’s habitual residence and “focus on the child, not the parents, and examine past experience, not future intentions.”The determination of a child’s habitual residence is a question of fact. Only a change in geography and the passage of time may combine to establish a new habitual residence. The Sixth Circuit has acknowledged that the standard of “acclimatization” and “a degree of settled purpose,” “may not be appropriate in cases involving infants or other very young children. The reason the “acclimatization” standard is ill-fitting to the case of an infant or very young child is that the child is naturally “entirely dependent on its parents.”. Infants do not develop a “settled purpose” or “firmly rooted” ties to a location through school, friendships, or other activities as older children do. Unfortunately, the Sixth Circuit has not yet articulated an alternative standard or considerations for determining the habitual residence of an infant and has  expressly rejected the consideration of “shared parental intent” in determining a child’s habitual residence. The Court found that consideration of all available evidence, looking backward and focusing on the children’s past experience, was an appropriate path forward and consistent with the admonition in Robert to “look closely at the facts and circumstances of each case.” 507 F.3d at 989.

Given their young age, it was difficult to conclude how much the children had acclimated or become settled in the U.S. versus the amount of acclimatization that occurred during their time in the U.K. The facts and circumstances of the children’s past experience did not tilt the scale strongly in one way over the other, with the exception of the amount of time spent in each country. The children had spent most of their lives in the U.S., including most of their lives prior to the date of retention. While it is well settled that the “place of birth is not automatically the child’s habitual residence,” Holder, 392 F.3d at 1020, and that “a change in geography and the passage of time may combine to establish a new habitual residence,” Robert, 507 F.3d at 989, the Court questioned whether the children’s limited time in the U.K. was sufficient to establish a new habitual residence.  To the extent that the parents’ intent is relevant, the  preponderance of the evidence demonstrated that the parties had no settled mutual intent to live in either the U.S. or the U.K. on August 5, 2015, the date of the children’s retention. Looking backward from that date, there was no settled mutual intent during the children’s lives and much of Mother’s pregnancy. From the time of their birth to the date of retention, the children lived primarily in the U.S. While the place of their birth is not automatically the children’s habitual residence, Holder, 392 F.3d at 1020, the Court could not conclude that the seven to eight-week period the children spent in the U.K. was sufficient to establish that as a habitual or settled residence. The preponderance of the evidence indicated that Mother and the children traveled to the U.K. to visit and for Mother to determine whether she wanted to live with Father in the U.K. or return to the U.S. They did not bring all of their belongings to the U.K. and Mother did not sever her ties to living and working in the U.S. The children, as U.S. citizens, could only stay in the U.K. for three months. There was simply insufficient evidence that the children established deep-rooted ties or a degree of settled purpose in the U.K. in this limited time. The Court concluded that the facts and circumstances of the children’s past experience did not establish the U.K. as the children’s habitual residence, and therefore, their retention in the U.S. was not “wrongful” within the meaning of the Hague Convention.