Hernandez v Cardoso, --- F.3d ----, 2016 WL 7404767 (7th Cir., 2016) [Mexico] [Grave Risk of Harm Defense] [Petition denied]

          In Hernandez v Cardoso, --- F.3d ----, 2016 WL 7404767 (7^th Cir., 2016) the Seventh Circuit affirmed an order of the district court which denied the father’s petition for return of the parties child to Mexico. The parties were both citizens of Mexico who resided in Mexico until December 15, 2014 and were the parents of  A.E., born in 2008, and M.S., born in 2002. Cardoso claimed to have left Mexico with A.E. and M.S. in December of 2014 to escape abuse from Hernandez and protect the children. In August  2015, Cardoso agreed returned M.S. to Hernandez. On December 18, 2015, Hernandez filed a Petition for Return. The District Court found that Cardoso testified credibly that Hernandez would hit her in the presence of A.E. with the intention of having A.E. witness the abuse of his mother. It observed a significant change in the demeanor of A.E. when the child discussed Hernandez, the domestic violence and the possible return to Hernandez’s custody. The District Court found that Cardoso and AE’s testimony about the domestic violence provided clear and convincing evidence that there was a grave risk of physical or psychological harm to A.E. if he was returned to Hernandez’s custody.

The Seventh Circuit observed that Cardoso did not dispute that Hernandez established a prima facie case for wrongful removal. However, Article 13(b) provides that “when there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, the automatic return required by the Convention should not go forward.” Norinder v. Fuentes, 657 F.3d 526, 533 (7th Cir. 2011). The District Court found that both Hernandez and Cardoso used physical discipline of the children. Hernandez testified that he would spank the children with an open hand and described Cardoso’s physical discipline as “more harsh” because she would pull her daughter’s hair and “really fight with her.” Cardoso testified that she would spank the children with her hand or with a shoe. She objected to the way Hernandez disciplined the children because it was “too much” and he would “hit them very hard” with a belt. The District Court questioned A.E. in camera during the evidentiary hearing. A.E. testified that Hernandez would hit him with a belt if he misbehaved “really bad.” He further testified that he saw Hernandez hit Cardoso with a belt and with his hands and saw him give Cardoso a black eye. A.E. said he was “a little bit” afraid of Hernandez.  The District Judge determined that Cardoso’s testimony that Hernandez abused her repeatedly and in the presence of the children was credible, despite the fact that she allowed her daughter to return to Mexico to live with Hernandez and provided inconsistent testimony about whether Hernandez knew she would leave Mexico with the children. Cardoso’s testimony about the abuse was corroborated by A.E., who testified of Hernandez’s physical abuse toward Cardoso and himself. With the deference given to the District Court, the Court found there was no error in the lower court’s credibility determination.  A district court’s credibility findings are ‘binding on appeal unless the [court] has chosen to credit exceedingly improbable testimony.   Moreover, the District Court’s application of the facts in this case to the Article 13(b) “grave risk” standard was appropriate. “[R]epeated physical and psychological abuse of a child’s mother by the child’s father, in the presence of the child (especially a very young child, as in this case), is likely to create a risk of psychological harm to the child.” Khan v. Fatima, 680 F.3d 781, 787 (7th Cir. 2012). The District Court recognized it had to consider “risk in the father’s behavior toward the mother in the child’s presence” in its analysis. Id. The Court having found the factual findings made by the district court supported the conclusion that there was a “grave risk” of physical or psychological harm to A.E. if he was returned to Hernandez’s custody.

Pennacchia v Hayes, --- Fed.Appx. ----, 2016 WL 7367848 (9th Cir.,2016)[Italy] Habitual Residence] [Petition denied]

          In Pennacchia v Hayes, --- Fed.Appx. ----, 2016 WL 7367848 (9^th Cir., 2016) the Ninth Circuit affirmed a judgment which denied Danilo Pennacchia’s petition for return of his minor child to Italy. In observing that the dispute centered around the habitual residence of the child the court pointed out that to determine a child’s habitual residence, they first look for the last shared, settled intent of the parents.  It explained that the district court concluded SAPH’s habitual residence was the United States, and that in doing so, the court applied the correct legal standard by focusing on the shared, settled intent of the parents. The district court acknowledged that the parents’ testimony differed concerning their intentions at the time they left the United States, but found Pennacchia’s “testimony lacked credibility and evidence to support his position.” The Ninth Circuit indicated that it gives heavy deference to factual determinations such as which witnesses to believe and which documents corroborate the most credible version of disputed testimony. The district court found Pennacchia agreed to and signed several documents, that supported the mother’s testimony and evidenced the parties’ initial agreement that “their living arrangement in Italy was conditional and ‘a trial period.’ It held that the district court did not err when it concluded that, for both parents, “the settled intention was for SAPH’s habitual residence to be the United States.

The Ninth Circuit indicated that for SAPH’s habitual residence to change, “the agreement between the parents and the circumstances surrounding it must enable the court to infer a shared intent to abandon the previous habitual residence.” Mozes, 239 F.3d at 1081. Although it is possible for a child’s contacts standing alone to be sufficient for a change of habitual residence, in view of ‘the absence of settled parental intent, [we] should be slow to infer from such contacts that an earlier habitual residence has been abandoned.’ To infer abandonment of a habitual residence by acclimatization, the ‘objective facts [must] point unequivocally to [the child’s] ordinary or habitual residence being in [the new country].’  It indicated that SAPH had significant contacts in Italy, but the district court did not find a shared parental intent to abandon her habitual residence in the United States or that the objective facts pointed unequivocally to a change in SAPH’s habitual residence. Pennacchia did not meet his burden on acclimatization, and therefore, the district court did not err by concluding SAPH’s habitual residence under the 1980 Hague Convention remains the United States.

         

Pliego v Hayes, 2016 WL 7048693 (6th Cir., 2016) [Turkey] [Grave Risk of Harm] [Attorneys Fees] [Petition Granted]

In Pliego v Hayes, 2016 WL 7048693 (6^th Cir., 2016) the state of habitual residence was Turkey, where the Petitioner father was assigned as a Spanish diplomat. The mother removed the child to the United States twice, and twice was ordered by the district court to return the child to Turkey.( Pliego v. Hayes, 86 F.Supp.3d 678, 696–97 (W.D. Ky. 2015) (“Pliego I”); Pliego v. Hayes, No. 5:15–CV–00146, 2015 WL 4464173, at *7 (W.D. Ky. July 21, 2015) (“Pliego II”). During the second proceeding, Pliego took steps for his diplomatic immunity to be waived, which would be necessary for Turkish courts to adjudicate the child’s permanent custody if his second ICARA petition was successful and the child was returned to Turkey. The Spanish Embassy sent diplomatic notes to Turkish authorities waiving Pliego’s immunity from jurisdiction and execution with regard to the custody case. The mother appealed the second return order, arguing that there was a grave risk of an “intolerable situation” because the father’s diplomatic status undermined the ability of the Turkish courts to properly adjudicate custody.

As an initial matter, the Sixth Circuit held that the case was not moot. By appealing Pliego II, Hayes was asking in effect for a “re-return” order instructing that the child be brought back from Turkey to the United States. Such a re-return order may be difficult to enforce, but this alone does not render an ICARA case moot, Chafin v. Chafin, ––– U.S. ––––, 133 S.Ct. 1017, 1023–26, 185 L.Ed.2d 1 (2013). The essential facts have not changed since Hayes’s appeal of Pliego II. The child was still in Turkey. An exit ban still prevented either parent from taking him outside of that country. Turkish courts were still adjudicating the underlying custody dispute. Accordingly, this case was not moot.

The Sixth Circuit held that the treaty phrase “intolerable situation,” under the second prong under Article 13(b) can encompass situations where the courts of the state of habitual residence are practically or legally unable to adjudicate custody. However, that was not the case here because, as found by the district court, the waiver by the Spanish government of the father’s diplomatic immunity sufficiently permitted the Turkish courts to adjudicate custody. The Sixth Circuit held that Hayes failed to establish an “intolerable situation” under the facts of this case, and review of the facts was for clear error. Simcox v. Simcox, 511 F.3d 594, 601 (6th Cir. 2007). None of the district court’s findings of fact were clearly erroneous, and they clearly established that Turkish courts could properly adjudicate the underlying custody dispute and protect the child.

          The Sixth Circuit rejected Pliego’s requests for an award of attorneys’ fees and costs incurring during this appeal. It noted that Article 26 of the Hague Abduction Convention provides that “[u]pon ordering the return of a child ... the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, ... to pay necessary expenses incurred by or on behalf of the applicant.” The ICARA provision implementing this language provides that “[a]ny court ordering the return of the child pursuant to an action brought under [ICARA] shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner.” 22 U.S.C. § 9007(b)(3) (2012). The Court held that  these provisions apply only to courts “ordering the return of the child.” Thus, this provision did not apply to it, which was not a court ordering the return of the child but was a court affirming another court’s order to return the child. This interpretation was supported by the decisions of sister circuits that have addressed the issue. Hollis v. O’Driscoll, 739 F.3d 108, 113 (2d Cir. 2014); West v. Dobrev, 735 F.3d 921, 933 n.9 (10th Cir. 2013). However, it did not reach the issue of whether the district court that ordered the child’s return in Pliego II may, upon separate motion, award fees incurred on this appeal.

Ochoa v Suarez, 2016 WL 6956609 (W.D. Mich, 2016)[Mexico] [Age & maturity defense][Petition denied]

In Ochoa v Suarez, 2016 WL 6956609 (W.D. Mich, 2016) Petitioner, Rosario Ramos Ochoa, a citizen of Mexico, filed a Petition seeking the return of her two minor children, MV and GV, to Mexico, their habitual residence. After the Court adopted the Magistrate Judge’s partial Report and Recommendation, which concluded that Petitioner met her burden of establishing a prima facie case for the return of MV and GV under the Convention the issues remaining for decision were whether the grave risk and age and maturity exceptions or defenses under Article 13 of the Convention applied.

          On August 2, 2016, after a hearing, a Magistrate Judge issued a report in which she concluded that Respondent failed to establish the grave risk exception by clear and convincing evidence. However, the magistrate judge concluded that MV and GV were of sufficient age and maturity for their wishes to be taken into account. Petitioner filed an Objection to the Report and recommendation, arguing that the Court should reject the magistrate judge’s recommendation that the Court deny the Petition on the basis that the age and maturity exception applies.  The Court observed that pursuant to 28 U.S.C. § 636(b), upon receiving an objection to a report and recommendation, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” After conducting a de novo review of the report and recommendation, Petitioner’s Objection, and the pertinent portions of the record, the Court concluded that it should be adopted and denied the petition for return.

Sabria v Perez, 2016 WL 7155744 (D. Oregon, 2016)[Mexico][ Habitual Residence] [Petition denied]

          In Sabria v Perez, 2016 WL 7155744 (D. Oregon, 2016) Plaintiff Anita Castro Sarabia (“Castro”) filed a complaint requesting the court order the return of KMRC, her seven-year-old son with defendant Bulmaro Ruiz Perez (“Ruiz”), to Mexico. The district court found that the United States was the child's habitual residence and dismissed the complaint. It found that in 2008, Castro and Ruiz met in Albany, Oregon. They lived together for a few months before separating. Castro gave birth to KMRC in April 2009.  In 2011 Castro had Ruiz’s permission to travel for seven months to Mexico, Castro’s native land. However, she and the child remained there for four years,  until he was retained in the United States in 2015, by Ruiz, after a visit to Oregon. The Court pointed out that a young child may acquire a new habitual residence in one of two ways: (1) through the parents’ shared settled intention to abandon the initial habitual residence; or (2) if “the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.” Mozes, 239 F.3d at 1076. Neither had occurred here. The district court found that Castro made the unilateral decision to change KMRC’s country of habitual residence from the United States to Mexico. Ruiz never consented or acquiesced to that change. Ruiz always firmly wished for KMRC to return to live in the United States. The Court's reading of Mozes, along with practically no evidence of KMRC’s acclimatization in Mexico, led it to conclude that Castro failed to meet her burden of demonstrating Mexico was KMRC’s country of habitual residence.

Thomas v Orion, 2016 WL 7046564 (M.D. Florida, 2016)[Canada] [Grave Risk of Harm][Petition denied]

In Thomas v Orion, 2016 WL 7046564 (M.D. Florida, 2016) Thomas filed a Petition against Jean Marceau Orion on June 9, 2016, seeking the return to Canada of the Parties’ three children, JMO, who was 12 years old and was born in 2004 in Miami, Florida; SRO who was 10 years old and was born in 2005 in Fort Myers, Florida; and MWO who was 9 years old and was born in 2007 in Fort Myers, Florida, and lived in Canada since 2008 with Thomas. She alleged Orion wrongfully retained the Children in Lehigh Acres, Florida, after a visit on June 28, 2015, when they did not return as agreed in August 2015. Orion was married and living with his wife and the Children in Lehigh Acres, Florida. The Children were enrolled in the Lee County School System and did not wish to be returned to Canada. Orion asserted he kept the Children in Florida because of a DPG report from 2013 and the statements made by the Children that they were physically abused. He also had concerns about the comments made by MWO that he sometimes went hungry.  The testimony presented at the hearing established that since July 2008 the Children attended school, went to church, and lived with Thomas in Canada. Orion sent child support payments to Thomas in Canada and traveled to Canada to visit with the Children on a yearly basis. The Children had not returned to the United States between 2008 and June 2015. There was an agreed upon date—August 2015—for the Children to return to Canada. The Court found by a preponderance of the evidence that the Children were habitual residents of Canada at the time they came to Florida and Orion retained them past the agreed upon date of return. The Court concluded that Thomas has established a prima facie case for return. However, it denied the petition finding that evidence presented at the hearing established that returning the Children to Canada and Thomas would expose them to grave physical or psychological harm. The last report submitted by DPG established the Children's’ living conditions were deplorable. The floors were filthy, dried food stuck to the walls, the refrigerator door was open to the point the inside was no longer cool, and there was very little food inside. MWO reported that he was hungry at school because he did not get any breakfast and noted that he only had cereal for supper the night before. MWO was physically hit by his oldest half-brother, DD. MWO also reported that Thomas hit him with a hair brush on his hand and back. Thomas admitted that her estranged husband Bonomo also hit the Children. The Children reported that Bonomo would sometimes have the oldest child, JMO, and/or DD hit the younger children while he watched. In 2008, DD reported to school authorities that Thomas stuffed socks into his mouth as a form of punishment. Further, Thomas admitted instructing the Children to keep quiet and not to report any physical abuse they received or any meals they missed. Given the abuse suffered by the Children at the hands of Thomas and Bonomo, the lack of food, the uncleanliness of the living environment, and Thomas’ proclivity to attach herself to men she did not know well, the Court found by clear and convincing evidence there was a grave risk of physical or psychological harm that would be caused by returning the Children to Canada. The Court denied the petition.

Rath v Marcoski, 2016 WL 7104872 (M.D. Florida, 2016)[Czec Republic] [Habitual Residence] [Petition granted]

          In Rath v Marcoski, 2016 WL 7104872 (M.D. Florida, 2016) the United States Magistrate Judge recommended that the fathers Petition for an order directing the return of his minor child, L.N.R., to the Czech Republic be granted. Petitioner was a citizen of the Czech Republic. He and a law partner had a law firm in Prague. Respondent, Veronika Marcoski was born in the Czech Republic and resided there until age fourteen.when she moved to Redington Beach, Florida.  Respondent passed the Florida Bar exam in 2010 and was later admitted to the Florida Bar in 2012.  After Respondent met petitioner Respondent began spending significant time in the Czech Republic. In April 2014, Petitioner and Respondent jointly purchased a residence with a right of first refusal in the event either wanted to sell their ownership share. On July 14, 2015, L.N.R. was born in Miami, Florida. After  L.N.R.’s birth in July 2015 through January 2016, Petitioner and Respondent were in a committed relationship with a shared intent for the foreseeable future to live with L.N.R in the Czech Republic. Respondent resided at times in the Czech Republic from 2012 through August 2014. The Magistrate Judge found that Petitioner’s case was established by a preponderance of the evidence. He found that Respondent’s expressed desire to give birth to L.N.R. in the United States, and later pursuit of United States citizenship for L.N.R., were only reflective of Respondent’s desire for L.N.R. to have dual citizenship, like her, so that L.N.R. would be able to avail himself in the future of the benefits that result from the dual citizenship. He did not find that Respondent’s desire to give birth in Miami and a Declaration of Intent to become a citizen demonstrated an intent by Respondent to reside in the United States with L.N.R. He found that after L.N.R.’s birth, Petitioner, Respondent, and L.N.R. resided together as a family, and, more significantly, Petitioner and Respondent had, at that time, a mutual settled intent to reside as a family in the Czech Republic.  Petitioner and Respondent were not married, and, from L.N.R.’s birth in July 2015 to the eventual end of their relationship in January 2016, there were signs that Petitioner and Respondent’s relationship was deteriorating. However, Petitioner demonstrated, by a preponderance of the evidence, that at least up to L.N.R.’s first Christmas in 2015, Petitioner and Respondent had a mutual settled intent to reside as a family with L.N.R. in the Czech Republic. See Delvoye, 329 F.3d at 333 (stating “the mere fact that conflict has developed between the parents does not ipso facto disestablish a child’s habitual residence, once it has come into existence”). The Magistrate concluded that L.N.R.’s habitual residence was in the Czech Republic; that Petitioner established a prima facie case of wrongful removal; and that no defenses to return had been established.