Marks v. Hochhauser 2017 WL 5760345 (2d Cir., 2017) [Thailand] [Federal & State Judicial Remedies] [Retention] [Accession]

          In Marks v. Hochhauser 2017 WL 5760345 (2d Cir., 2017) the Second Circuit held that for purposes of the Convention  “retention” is a singular and not a continuing act; and that the Convention does not enter into force until a ratifying state accepts an acceding state's accession.

          The parties were American citizens who were living in Hong Kong when their three sons were born, one in 2002 and twins in 2005. In July 2005, the parties and the children relocated to Bangkok, Thailand. In August 2015, Marks and Hochhauser were divorced, in Thailand, and the divorce judgment granted Hochhauser sole custody of the Children. On September 18, 2015, Hochhauser and the Children traveled to the United States to visit Hochhauser’s ill mother. Before their departure, Hochhauser represented to Marks and the Thai court that she and the Children would stay in New York for three weeks and then return to Thailand on October 10, 2015. On October 7, 2015, Hochhauser sent Marks an email as follows: “I have made the decision to remain in the United States with the boys. It is clear to me now that there is no workable solution for us to live in Thailand. This decision was based upon trying to build a future for both myself and them, not out of any anger toward you about the past or any desire to exclude you from their lives. The boys need you to continue to be an important part of their lives and I will do as much as I can to facilitate that. Hopefully we can find a way to build a working relationship for their benefit.” On January 25, 2016, the Thai Court of Appeals vacated the trial court’s judgment in part and held that Marks and Hochhauser “shall exercise joint custody of all of their three minor children.”  

          Marks filed a petition for the return of the Children to Thailand on September 9, 2016, within one year of the date Hochhauser advised Marks that she and the Children would not be returning to Thailand. Hochhauser moved to dismiss the petition, arguing, inter alia, that any wrongful retention of the Children took place prior to the Convention’s entry into force between the United States and Thailand. The district court granted the motion to dismiss the petition. It first concluded that “retention” is a singular and not a continuing act and that the singular act here occurred on October 7, 2015, when Hochhauser sent her email to Marks advising that she and the Children were not returning to Thailand. It then concluded that the Convention did not enter into force between the United States and Thailand until April 2016, after the United States accepted Thailand’s accession to the Convention. The district court held that the retention occurred before the Convention entered into force between the two countries and entered judgment on November 7, 2016, granting the motion to dismiss the petition.

          The Second Circuit affirmed. It agreed with the district court that “retention” for these purposes is a singular and not a continuing act. It concluded that the Convention contemplates that “retention” occurs on a fixed date. Here, that date was October 7, 2015, when Hochhauser advised Marks that she would not be returning with the Children to Thailand.

          The Second Circuit observed that Article 35 of the Convention provides that it “shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States.” Convention, art. 35. Hence, if the removal or retention occurs before the Convention has entered into force between two States, the Convention does not apply.

          The Court noted that the Convention does not define “Contracting State,” but Articles 37 and 38 provide two separate procedures for countries to accept the Convention. Under Article 37, “[t]he Convention shall be open for signature by the States which were Members of the Hague Conference of Private International Law [the ‘CPIL’] at the time of its Fourteenth Session.” Convention, art. 37. Once a State signs, the Convention must be “ratified, accepted or approved and the instruments of ratification, acceptance or approval” must be deposited with the Ministry of Foreign Affairs in the Netherlands. Convention, art. 37. Article 38 provides an acceptance procedure for states that were not members of the CPIL at the time of its fourteenth session. In lieu of ratification, these states may “accede” to the Convention. Article 38 explains that: Any other State may accede to the Convention. ... The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. ... The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance. Convention, art. 38. As Article 38 makes clear, accession requires the acceptance of other states before the Convention “will enter into force,” i.e., the accession has effect only as to Contracting States that “have declared their acceptance of the accession.” Id.

          At the time the Convention was opened for signature, the United States was a member of the CPIL and Thailand was not. The United States signed the Convention in 1981 and ratified it, thereby becoming a Contracting State, in 1988, and the Convention entered into force in the United States on July 1, 1988. See Contracting State Status Table; Souratgar, 720 F.3d at 102 n.5. Thailand acceded to the Convention, pursuant to Article 38, on August 14, 2002, and it entered into force in Thailand on November 1, 2002. Id.  The United States accepted Thailand’s accession to the Convention on January 26, 2016. See Acceptances of Accessions: Thailand, Hague Conference on Private International Law, https://www.hcch.net/en/instruments/conventions/status-table/acceptances/?mid=670 (last visited Sept. 26, 2017) (“Acceptances of Accessions Table”). The first day of the third calendar month after the United States accepted Thailand’s accession was April 1, 2016. See id.; Convention, art. 38.

          The Court then held that the Convention does not enter into force until a ratifying state accepts an acceding state's accession and that Article 35 limits the Convention's application to removals and retentions taking place after the Convention has entered into force between the two states involved. Therefore, because the Convention did not enter into force between the United States and Thailand until April 1, 2016, after the allegedly wrongful retention of the children in New York on October 7, 2015, the Convention did not apply to petitioner's claim.

Taglieri v. Monasky ,2017 WL 5895196 (6th Cir., 2017) [Italy] [Habitual Residence][Grave Risk of Harm] [Petition granted]

          In Taglieri v. Monasky, 2017 WL 5895196 (6^th Cir., 2017) the Sixth Circuit held that where a child lives exclusively in one country, that country is presumed to be the child’s habitual residence. In this case the country of habitual residence was Italy and that there was no grave risk of harm to the child under the meaning of the Convention. It affirmed the district court’s judgment ordering the return of A.M.T. to Italy under the Hague Convention.

          Taglieri, a citizen of Italy, was studying in Chicago when he met Monasky, an American citizen. They married and decided to move to Italy. Taglieri was licensed to practice medicine in Italy. Monasky had a fellowship in Milan. Monasky became pregnant. Monasky alleged that Taglieri was sexually abusive and frequently hit her. Monasky encountered professional difficulties and did not speak much Italian. Monasky applied for jobs in the U.S., contacted divorce lawyers, and researched American childcare options.  After an argument, Monasky took baby A, sought refuge in a safe house, and left Italy with eight-week-old A. Taglieri obtained the termination of Monasky’s parental rights in Italy, and Taglieri filed a petition in the United States District Court for the Northern District of Ohio on May 14, 2015, seeking the return of his daughter to Italy pursuant to the Convention. The district court held a four-day trial in March 2016. In an order issued six months later, the district court granted Taglieri’s petition for the return of A.M.T. to Italy, to be accomplished within forty-five days.

          The Sixth Circuit affirmed. It found that Taglieri had established that A.M.T. was removed in breach of the law of the State in which she was habitually resident. It noted that Simcox and Friedrich I stand for the proposition that when a child has lived exclusively in one country, that country is presumed to be the child’s habitual residence. In Robert v. Tesson, 507 F.3d (6th Cir. 2007), it held that “a child’s habitual residence is the nation where, at the time of their removal, 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.’ ” In Ahmed v. Ahmed, 867 F.3d 682 (6th Cir. 2017), a case involving very young children traveling between nations it  concluded that, under those circumstances, a court may determine a very young child’s habitual residence by considering the “shared parental intent” of where the parents last mutually intended the child to live. The Court indicated that it uses three distinct standards to determine a child’s habitual residence under the Convention. In cases where the child has resided exclusively in a single country, that country is the child’s habitual residence. But when the child has alternated residences between two or more nations, the analysis is more complicated. In such cases, it begins by applying the acclimatization standard. If that test supports the conclusion that a particular country is the child’s habitual residence, then that is the end of the analysis. But if the case cannot be resolved through application of the acclimatization standard, such as those cases that involve “especially young children who lack the cognizance to acclimate to any residence,” it then considers the shared parental intent of the child’s parents.

A straightforward application of precedent compelled the conclusion that the habitual residence of A.M.T. was Italy. A.M.T. was born in Italy and resided there exclusively until Monasky took A.M.T. to the United States in April 2015.  It rejected Monasky’s argument that the opinion in Ahmed required a different result. Ahmed spoke broadly about young children, but it dealt specifically with the application of the acclimatization standard, which both Robert and Simcox recognized as difficult to apply in cases of small children. Robert made clear that the acclimatization test did not apply to children who had remained in one nation; rather, that test “should apply when a child has alternated residences between two or more nations.” Ahmed’s adoption of a shared-parental-intent standard made such intent relevant only in those cases where the acclimatization standard both applies and fails. Ahmed did not modify or displace the alternative standard and guidance that Friedrich I and Simcox provided for children with exclusively one country of residence. Robert and Ahmed dealt with one situation, while Friedrich I and (in part) Simcox dealt with another. This was not a case where “a child has alternated residences between two or more nations,” the situation that Robert’s acclimatization test was crafted to address and the one that faced the Ahmed panel. Prior to the removal, A.M.T. never was outside of Italy. “Where a child has remained in one place for its entire life, that place is the expected location where it may be found and may be considered its residence. Thus, A.M.T.’s habitual residence was the country from which she was taken, Italy.¹

          The district court found Monasky’s testimony with respect to the domestic and sexual abuse against her to be credible. But the court also observed that “the frequency with which Taglieri subjected Monasky to physical violence and severity of the physical violence is unclear,” and found that there was “no evidence to suggest that Taglieri was ever physically violent towards A.M.T.” The first half of the exception makes plain that the risk of physical or psychological harm is directed to the child. Chief Judge Oliver found that the frequency and severity of violence to Monasky were unclear, and that there was no evidence that violence was ever directed at A.M.T. The facts, while demonstrating that Taglieri engaged in appalling and justly censurable activity, did not “show that the risk to the child is grave, not merely serious.” Friedrich II, 78 F.3d at 1068 (quoting Public Notice 957, 51 Fed. Reg. 10494, 10510 (Mar. 26, 1986)). As a result, Monasky failed to meet her burden to show by clear and convincing evidence that a grave risk of harm to A.M.T. exists or that there is a grave risk that A.M.T. would be placed in an intolerable situation.

Salguero v Argueta, 2017 WL 4475995 (E.D. North Carolina, 2017) [El Salvador ][Costs]

          In Salguero v Argueta, 2017 WL 4475995 (E.D. North Carolina, 2017) the matter was before the clerk on petitioner Jose Gustavo Moneterros Salguero’s motion for payment of costs following the court’s order to return his minor child to El Salvador.. Respondent did not file a response, and the deadline for doing so passed. This matter was referred to the clerk for ruling at the direction of the presiding judge.

        The clerk’s decision stated that under the plain language of the statute, 22 U.S.C. § 9007(b)(3)  the court has the duty to order the payment of necessary expenses and legal fees unless respondent satisfies her burden of showing that such an order would be clearly inappropriate. In this case, respondent failed to offer any response, and therefore the clerk could not find that she  met her burden in establishing that an award of expenses to petitioner was clearly inappropriate. Accordingly, the clerk only considered whether the expenses requested by petitioner constituted a “necessary expense” related to the return of the minor child and are reasonable. See Dawson v. McPherson, No. 1:14CV225, 2014 WL 4748512, at *2 (M.D.N.C. Sept. 23, 2014); Trudrung v. Trudrung, No. 1:10CV73, 2010 WL 2867593, at *1 (M.D.N.C. July 21, 2010).

          Petitioner sought $2,064.20 for expenses incurred by him personally, and submitted supporting receipts. His expenses included the costs he incurred in purchasing a visa and passport to travel to the United States ($219.00), a round trip flight from El Salvador ($777.60), a one-way flight to El Salvador for the child ($426.60), and his lodging in North Carolina during the custody exchange of the child ($641.00). The clerk found these costs were all necessary expenses related to the return of the child and were reasonable. See Hirst v. Tiberghien, Civil Action No., 6:13-00729-JM, 2012 WL 6827813, at *5 (D.S.C. Dec. 20, 2013) (awarding a petitioner expenses including roundtrip airfare for petitioner, lodging, and return airfare for children); Judge v. Williams, No. 4:11-CV-119-F, 2011 WL 3759476, at *2 (E.D.N.C. August 25, 2011) (awarding expenses for petitioner’s roundtrip airfare, lodging, and return airfare for child).

           Petitioner also sought expenses incurred by counsel on his behalf, in the amount of $12,427.36. In declarations, petitioner’s current and prior counsel stated that their retention agreements with petitioner required him to reimburse counsel’s law firms for costs incurred on his behalf during the representation of him in this action. In support of his request for these expenses, petitioner submitted  declarations of counsel, and for some expenses, supporting invoices. The expenses for which petitioner submitted supporting receipts or invoices include the costs for court interpreters for the hearing in this matter ($3,682.00), costs for translation of documents offered as exhibits in the case ($2,149.29), fees for the transcripts of the hearing on the petition ($1,695.75), lodging for his counsel and some meals during the hearing on the petition ($873.03), lodging for his counsel during the custody exchange ($208.69), the services of a private investigator to confirm the location of the child within the Eastern District ($731.80), the costs of subpoenaing airline records ($20.00, and the fee for an expert witness ($350.00). The clerk found  that these constituted necessary expenses related to the return of the child. See Cuellar v. Joyce, 603 F.3d 1142-43 (9th Cir. 2010) (finding the expenses incurred by attorney for lodging and meals during oral argument and post-argument mediation to be “necessary expenses incurred by or on behalf of petitioner); Dawson, 2014 WL 4748512, at * 8 (awarding petitioner expenses for, inter alia, the cost of a private investigator to locate the abducted children in the United States); Saldivar v. Rodela, 894 F. Supp. 2d 916, 945 (W.D. Tex. 2012) (awarding costs for expert witness fees); Neves v. Neves, 637 F. Supp. 2d 322, 344 (W.D.N.C. 2009) (awarding petitioner translation expenses); Friedrich v. Thompson, No. 1:00-CV-772, 1999 WL 33951234, at *2 (M.D.N.C. Nov. 26, 1999) (awarding petitioner the cost of translating documents from German to English). See also 28 U.S.C. § 1920 (providing for the taxation of costs of fees of court reporters for transcripts necessarily obtained for use in the case, compensation of interpreters, and fees for copies of papers necessarily obtained for use in the case); Saldivar, 894 F. Supp. 2d at 943 (concluding that costs taxable under 28 U.S.C. § 1920 are “per se awardable” under ICARA). The clerk also finds that these requested expenses, supported by invoices, are reasonable.

          Petitioner also sought expenses incurred by his counsel on his behalf which were not supported by invoices; his current and prior counsel stated in declarations that invoices are not available. These expenses included costs for counsel’s travel for trial and the custody exchange ($1,034.45); meals during the trial and custody exchange ($243.02);1 postage, telephone, and courier costs ($843.36); color copies, scanning, and printing costs ($31.40); long distance phone charges ($24.26); filing fee ($400.00), and attempted service of process costs ($140.31). With the exception of the filing fee, which was documented in the record = these remaining expenses were not awarded. Without supporting invoices, additional documentation, or some further explanation from counsel, the clerk could not find that the costs for postage, telephone, courier costs, copies, scanning, printing or long distance phone charges were necessary, nor can the clerk find any of the other expenses were reasonable. See Whallon v. Lynn, No. Civ.A.00-11009-RWZ, 2003 WL 1906174, at * (D. Mass. April 18, 2003) (declining to award petitioner “inadequately documented” expenses), aff’d, 356 F.3d 138 (1st Cir. 2004); Dawson, 2014 WL 4748512, at *9 (refusing to award expenses for which a petitioner provided no documentation because “[i]f the Court cannot assess the validity of the expenses, it cannot begin to address whether such expenses were in fact reasonable or necessary”). 

          Petitioner’s request for expenses incurred on his behalf by counsel was reduced by the amount of $2,316.80., Petitioner was awarded costs in the amount of $12,174.76.

Pliego v Hayes, 2017 WL 4322445 (2017, W.D. Kentucky)[Turkey] [Fees, Costs and Expenses]

In Pliego v Hayes, 2017 WL 4322445 (2017, W.D. Kentucky) Petitioner Pliego Moved for Fees, Costs, and Expenses. At the request of the Court, the parties filed affidavits in support and in opposition to the motion. 

  The Court observed that there were two prior cases in the district court in which it granted Pliego’s petition and awarded fees. Following Pliego I, the Court awarded fees to Pliego in the amount of $75,091.425, which represented a 50% reduction in the award sought by Pliego. Pliego, 2015 WL 1893426, at *1–3 (W.D. Ky. Apr. 24, 2015). Following Pliego II, the Court awarded Pliego fees in the amount of $100,471.18. Following the Court’s grant of Pliego’s second Petition for Return of Child in Pliego II, Hayes appealed to the Sixth Circuit Court of Appeals, which affirmed the decision of the Court. Pliego v. Hayes, 843 F.3d 226 (6th Cir. 2016). Pliego now sought the fees, costs, and expenses incurred during the appeal of Pliego II to the Sixth Circuit.  Though Pliego requested that the Sixth Circuit award him those fees on appeal, the Sixth Circuit found that the district court was the proper Court to determine any potential award of fees, and it therefore “d [id] 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 th[e] appeal.” Pliego, 843 F.3d at 238. Pliego requested total attorney and paralegal fees of $56,122.50. Additionally, Pliego requests costs and expenses incurred during the appeal in the amount of $2,477.94. 

Hayes argued that the Court should not give an award of fees for several reasons. Among these are the facts that, according to Hayes, she has since been awarded custody by Turkish courts, Pliego has refused to comply with Turkish custody orders, Pliego has continued to assert his immunity to avoid paying any child support or legal fees to Hayes, that Pliego was incurring about $750 a month for supervised visits with her son, and that an award of fees would render Hayes unable to care for her son. Moreover, Hayes contended that $58,600.44 was excessive. Hayes stated that she had incurred additional costs and attorney fees resulting from the wrongful acts of the Petitioner, including: (a) refusing to comply with custody and visitation orders of the Ankara 11th Family Court; (b) directly interfering in timely execution of all custody and visitation orders by reasserting diplomatic immunity rights; (c) refusing to disclose the whereabouts of the child; and (d) filing three separate additional suits, all dismissed by the courts. 

The district court held that many of the issues detailed in Hayes’ supporting Affidavits, such as Pliego’s alleged “wrongful” actions in the Turkish courts, were irrelevant to the Court’s determination. However, certain matters, such as Hayes’ custody of her son, ability to obtain child support, and her ability to pay an award of costs and fees were relevant to this determination. The effect of Pliego’s requested costs and fees on Hayes’ ability to care for her child was a concern for the Court. Hayes argued that, should her award of sole custody be affirmed, she will be solely “financially responsible for the child, since the Petitioner specifically excluded any action for child support from his immunity waiver.” Second, the Court was also concerned with Hayes’ ability to pay such a high amount of fees and costs, having already been ordered to pay more than $175,000 in costs and fees following prior proceedings in this matter. Hayes further states in her response that “[s]he is not a diplomat, she does not have her living expenses paid by the US Government, [and that] she has been self supporting at a far lower salary than Petitioner’s, with far greater living expenses.” The Court found these arguments to be meritorious.

Based on a review of the information and supporting documents, the Court found that an award of $58,600.44 would be clearly inappropriate, and reduced the overall legal fees by 75%. Petitioner was awarded $14,650.11 for necessary attorney’s fees and costs. 

Crane v Merriman, 2017 WL 4079406 (W.D. Oklahoma, 2017[New Zealand] [Habitual Residence][Consent][Petition granted]

          In Crane v Merriman, 2017 WL 4079406 (W.D. Oklahoma, 2017) the district court granted the Petition by the father for the return of the children to New Zealand.

          The district court found that parties lived together in Auckland, New Zealand, in a domestic partnership which produced two children, A.E.C. who was born in August 2013, and R.F.A.C., who was born in September 2016. Both children were dual citizens of New Zealand and the United States. In April 2016, the parties decided to end their domestic partnership. Ultimately they agreed that Merriman would depart New Zealand with the children after Christmas 2016. Until her departure, Merriman had resided in New Zealand for about fifteen years. The children resided with both parents in New Zealand following their births. The oldest, A.E.C., was three years old when she left for the United States with Merriman; the youngest, R.F.A.C., was a little over two months old. Between April 2016 and December 2016, the parties agreed to, and executed, an agreement for property division and an agreement regarding the custody and care of the children. The Custody and Access Agreement executed in November of 2016 made clear that the parties would continue to be joint guardians of the children and share custody. The Custody Agreement provided that Merriman would “initially” have “primary care” of the children, subject to a specific plan for visitation by Crane during the period of 2017-2020 , as well as alternating residences over Christmas, with Christmas 2017 to be spent in New Zealand. The Custody Agreement stated that “no attempt will be made to overturn this agreement in the United States,” and provided that any review of the Agreement will be subject to “New Zealand law and jurisdiction.”  It included a provision reflecting Crane’s consent to the children relocating to the United States with Merriman, this provision appearing immediately after the provision stating that Merriman will “initially have primary care of the children ....”. It provided for visitation by Crane in New Zealand for two months in 2017, and that such visit to New Zealand will take place “as agreed in the period from the end of May to the end of August ... or as mutually agreed by both parties.” In mid-April 2017, Merriman asked Crane to agree to delay the planned visitation until July, to which he assented. The purpose of the delay was to accommodate Merriman’s job search in Oklahoma. On June 29, 2017, Merriman caused to be filed in the District Court of Oklahoma County a Petition for Paternity, Custody, Visitation and Child Support, seeking sole custody of the children. Merriman did not return with the children as previously agreed, and had Crane served with the Oklahoma state court Petition in early July 2017.

          The district court found that Merriman’s desire to obtain a court order in Oklahoma regarding custody of the children before returning them to New Zealand illuminated an underlying intent to avoid the parties’ New Zealand Custody Agreement, and was precisely the type of conduct the Hague Convention and ICARA seeks to prevent.

          The district court found that Crane established by a preponderance of the evidence that (1) the children habitually resided in New Zealand at the time of the retention. It noted that Courts in this circuit, adopting the approach implemented by the First, Fourth, and Fifth Circuits, have stated that “[i]n determining a child’s habitual residence, [the court] looks first to the shared intent or settled purpose of the persons entitled to determine the child’s permanent home; as a secondary factor, [it] may consider the child’s acclimatization to his or her current place of residence.” Mertens v. Kleinsorge-Mertens, 157 F. Supp. 3d 1092, 1103 (D.N.M. 2015). This approach is consistent with a prior unpublished decision from the Tenth Circuit, which states: “[a]lthough it is the child’s habitual residence that the court must determine, in the case of a young child the conduct, intentions, and agreements of the parents during the time preceding the [retention] are important factors to be considered.” Kanth v. Kanth, No. 99-4246, 2000 WL 1644099, at *1 (10th Cir. Nov. 2, 2000) (unpublished).

          The Court found that, prior to their retention in the United States, the children habitually resided in Auckland, New Zealand. At birth, both children resided with the parties in New Zealand. A.E.C. resided with the parties for over three years in New Zealand; R.F.A.C. was a little more than two months old when he departed New Zealand with Merriman. Although the children had been in Oklahoma for nine months, had Merriman abided by the Custody Agreement, two out of the nine months would have been spent in New Zealand. Moreover, it was a stretch to contend, as Merriman did, that the Custody Agreement reflected a mutual intent to permanently relocate the children to Oklahoma, and thus establish Oklahoma as the place where they habitually reside as those terms are used in the Convention. A more consistent and sensical reading of the Custody Agreement was that it sought to preserve the children’s ties to New Zealand, in that it acknowledged the children’s strong ties to that country, and established a 50/50 residential regime as between Oklahoma and New Zealand for each child beginning at age six – two years from now for A.E.C. In any event, the Court found that, absent an expression of mutual intent to establish Oklahoma as their new permanent residence, presence here for nine months, under the circumstances of this case, was insufficient to support a finding that the children have acclimatized here and habitually reside in Oklahoma as opposed to New Zealand. Thus, the Court found that Crane has established the first element of his prima facie case by a preponderance of the evidence.

          The Court found that Crane established wrongful retention of the children in Oklahoma in violation of his custodial rights and that Crane was exercising his joint guardian at the time of the wrongful retention.  It rejected the defense advanced by Merriman that Crane consented to the relocation of the children in the Custody Agreement, and otherwise acquiesced in the relocation by agreeing to delay the visitation called for in the Agreement and assisting Defendant in the purchase of her home in Oklahoma. The evidence wass clear that Crane’s agreement to include relocation of the children to Oklahoma in the Custody Agreement was made in the context of the Agreement as a whole, which provided for extensive involvement and visitation by Crane until the children reach the age of six, and then required a 50/50 residential split between New Zealand and Oklahoma.

Ischiu v Garcia, 2017 WL 3500403 (D. Maryland, 2017)[Guatemala][Grave Risk of Harm][Petition denied]

          In Ischiu v Garcia, 2017 WL 3500403 (D. Maryland, 2017) Wiliam Estuardo Luis Ischiu (“Luis Ischiu”) filed a petition which alleged that his wife, Nely del Rosario Gomez Garcia (“Gomez Garcia”), wrongfully removed their minor child, W.M.L.G., from their native country of Guatemala to the United States. The Petition was denied.

   

       The district court found that Gomez Garcia met Luis Ischiu when she was 17 years old. They were married in 2009, when she was 19 and Luis Ischiu was 29. Gomez Garcia went to reside in a family compound with Luis Ischiu, his parents, and Luis Ischiu’s brothers, their wives, and their children. Gomez Garcia testified that from the time that she married Luis Ischiu and moved into the family compound, his attitude toward her changed. He did not allow her to sleep with him, except when he wanted to have sex with her, and instead required her to sleep in the living room. Her mother-in-law required her to wear the clothes of someone from the Mayan indigenous group to which Luis Ischiu belonged and did not allow her to wear the clothes that she, a member of the Ladina ethnic group, used to wear. Although all of the wives of Luis Ischiu’s brothers were also Ladina, Gomez Garcia’s mother-in-law disfavored W.M.L.G. because he was light-skinned and looked like Gomez Garcia. Gomez Garcia was required to work for the family cable business seven days a week, with a half day on Sunday; she had to attend church during the remaining half day. She brought W.M.L.G. to work with her and carried him on her back. Although she was technically paid a below minimum wage amount of 500 quetzales per month, the equivalent of $70, the money was spent by others on household needs, so she did not compile any savings of her own.  In 2016, Gomez Garcia was sexually assaulted by members of her husband’s family, specifically, Luis Ischiu’s father and brother. On multiple occasions, Luis Ischiu’s father tried to have sexual contact with her. Specifically, when no other adults were present, he went into the kitchen, came up to Gomez Garcia, held her tight to him, and touched her private parts. Luis Ischiu’s brother Carlos also sexually molested her in the same manner. “When Gomez Garcia told Luis Ischiu about the sexual abuse, he did nothing to defend her and instead threatened her that she must not speak to anyone about it. At other times, Luis Ischiu physically assaulted her. On one occasion, she discovered that he was having an affair and confronted him. He then hit her on her back, knocking her to the ground. He told her that his activities were none of her business and that her role was to be his servant and to take care of their son. In another incident, when she asked him about a message on his cell phone from another woman, he kicked her and she was unable to defend herself. Another time, Luis Ischiu struck Gomez Garcia in the face while W.M.L.G. watched. Both Luis Ischiu and his brothers verbally abused Gomez Garcia with profane language, including in front of W.M.L.G. According to Gomez Garcia, W.M.L.G. was aware when Luis Ischiu assaulted her. She testified that as a result of that exposure, and his disfavored treatment within the family compound, he generally appeared sad and troubled. Although Garcia Gomez believed that everyone in the household knew she was being assaulted, no one in the family came to her aid. She had nowhere else to go. Gomez Garcia’s parents and other relatives lived a 30-minute drive away, and she did not have access to a car. On one of the few occasions when Gomez Garcia saw her relatives, her sister observed that she had bruises on her arms. On multiple occasions, Luis Ischiu and his family members threatened to kill her if she tried to leave the home and to take W.M.L.G. away. On two occasions, Gomez Garcia attempted to commit suicide. The first time, she drank rat poison. When she told Luis Ischiu, he offered to take her to the doctor, but she declined because she had already vomited the poison. The second time, she tried to overdose on pills. He suggested that she drink a lot of water and try to vomit. After she vomited, he offered to take her to the doctor, but she again declined. Other than searching the house for poison and pills, Luis Ischiu took no steps to prevent any future suicide attempts. Neither he nor any of the members of his family sought any medical or mental health treatment for Gomez Garcia as a result of these suicide attempts. Rather, Luis Ischiu’s reaction was that she must not love him and W.M.L.G. if she wanted to kill herself. When she finally gathered up the courage to leave in November 2016, she fled to her parents’ home. She then applied for and received a Security Measures Order against Luis Ischiu from a Guatemalan court. The November 23, 2016 Order, effective for a period of six months, prohibited Luis Ischiu from contacting Gomez Garcia at home or work and from harassing or intimidating any member of her family; ordered that he pay provisional child support; and provisionally suspended Luis Ischiu’s guardianship and custody rights over W.M.L.G. The Order also warned that Luis Ischiu would be charged with disobedience if he continued to attack and mistreat Gomez Garcia or her family.

          Although Luis Ischiu was given two days to respond to the Order and did so, the court left the Order in place without alteration. Shortly after the Security Measures Order was issued, Luis Ischiu, his father, mother, and brothers went to Gomez Garcia’s parents’ home in search of Gomez Garcia and W.M.L.G. When Gomez Garcia’s father refused to allow them to enter, Luis Ischiu shouted that he would look for her wherever she went and would kill her or her family if they did not tell them where she was. Gomez Garcia and her family then gathered and decided that they should send Gomez Garcia and W.M.L.G. to the United States, where they had arranged through extended family for a place for them to stay. They borrowed the equivalent of $4,000, secured by a lien on their farming plot, and she and W.M.L.G. traveled by bus through Mexico to the United States. Gomez Garcia requested asylum and was paroled into the United States. She now resided in Maryland and had an upcoming asylum hearing date in November 2017. Meanwhile, on May 23, 2017, the Guatemalan court extended the Security Measures Order for another six months. Then on July 7, 2017, the court terminated the order as to Gomez Garcia and W.M.L.G. because they were now in the United States, but left the protection order in place as to Gomez Garcia’s family in Guatemala.

          Since arriving in the United States, Gomez Garcia was evaluated by Dr. Lorna Sanchez, a clinical psychologist with a specialty in cross-cultural and bilingual clinical psychology. Dr. Sanchez has diagnosed Gomez Garcia with post-traumatic stress disorder (“PTSD”) and clinical depression with anxiety, with the stressors in her life including abuse by her husband and the sexual abuse by her husband’s relatives, as well as an incident during which she was raped by a relative at age nine. Based on the testing, Dr. Sanchez did not believe that Gomez Garcia is fabricating the abuse and concludes that Gomez Garcia fled to the United States out of fear for her life and the need to survive. Since arriving in the United States, her risk for suicide has diminished. Dr. Sanchez concluded, however, that if forced to return to Guatemala, Gomez Garcia would be in a state of terror and fearful for her life, which would cause serious deterioration in her mental state. Dr. Sanchez believed that under those circumstances, the distress of his mother would affect W.M.L.G., because psychological distress experienced by the primary caregiver always has a corresponding impact on the child. As a result, W.M.L.G. could develop PTSD, depression, and anxiety, and he could suffer developmental delays.

          In his in camera interview with the Court W.M.LG., who was six and a half years old, was reserved but displayed sufficient intelligence and maturity to understand the Court’s questions and to provide responsive answers candidly, without signs that he had been coached. He did not, however, appear to be able to provide as much detail in his answers as an older child without a language barrier would have been able to provide. W.M.L.G expressed a preference to be with his mother, who treated him well, and stated that he did not miss living in Guatemala and would not want to live with his father. He described his father as bad for causing harm to his mother. He has heard his father verbally abuse his mother, using terms like “piece of shit,” and he has witnessed his father physically assault her, on one occasion, when his father “smashed” his mother’s face. W.M.L.G. said his parents fought every day in Guatemala such that he did not feel safe living in Guatemala. His uncles, Luis Ischiu’s brothers, also argued with and used “bad words” towards Gomez Garcia. W.M.L.G. also stated that he did not like living in the family compound and that his grandmother, Luis Ischiu’s mother, treated his cousins better than she treated him, such as when she would go out with the other children but leave him behind. He reported that his cousins would sometimes fight with him. W.M.L.G. told the Court that he would be afraid that his parents would fight and that his mother would get hurt if they were all together again. He also expressed a belief that if he returned to Guatemala with his mother, his father and grandfather would come to get him and make him live with them.

          The district court found that the petitioner established a prima facie case for return.  

          The Court pointed out that where wrongful removal has been established, under Article 13(b) of the Hague Convention, the Court “is not bound to order the return of the child” if the respondent can establish by clear and convincing evidence that “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Hague Convention art. 13(b); 22 U.S.C. § 9003(e) (2) (A).  Domestic abuse can provide a basis for a finding of grave risk. Courts have found grave risk based on domestic abuse of the spouse in the presence of the children, even without abuse directed at the children themselves. In Walsh, the court found grave risk based on a long history of the father physically beating the mother, including in front of the children, as well as a history of fighting others, threatening to kill another, and a history of violating court orders. Walsh, 221 F.3d at 211, 219-20. In Baran v. Beaty, 526 F.3d 1340, 1345-46 (11th Cir. 2008), the United States Court of Appeals for the Eleventh Circuit found grave risk where the father had verbally and physically abused the mother in the child’s presence, and threatened to harm the child, but did not physically abuse the child. In such cases, courts have noted the psychological harm inflicted on the child witnessing the abuse of the parent and the increased risk that the child would be similarly abused. See, e.g., Walsh, 221 F.3d at 220 (“[C]hildren are at an increased risk of physical and psychological injury themselves when they are in contact with a spousal abuser.”).

          The assessment of the evidence relating to grave risk depends significantly on the credibility of the witnesses. Having heard and observed her testimony, the Court found Gomez Garcia to be highly credible. She expressed sincere fear of Luis Ischiu and his family. Notably, many key parts of her testimony were unrebutted, including her testimony that Luis Ischiu’s brother Carlos sexually assaulted her; that when she reported the sexual abuse by Luis Ischiu’s father and brother, Luis Ischiu took no action and threatened her into silence; that Luis Ischiu and others threatened to kill her if she fled the compound; and that she fears the family because Carlos Luis Ischiu is a member of a gang in Guatemala. Gomez Garcia’s testimony was corroborated by the expert testimony of Dr. Sanchez, who found no sign that Gomez Garcia was fabricating the abuse and diagnosed her with PTSD, depression, and anxiety caused by the abuse; the testimony of her sister, who observed bruises on Gomez Garcia; the interview of W.M.L.G., who was present for physical and verbal abuse; and the fact that the Guatemalan court not only issued the Security Measures Order, but renewed it in full in May 2017 and affirmed it again in July 2017 with respect to Gomez Garcia’s family.

          The Court did not find Luis Ischiu and his family members to be credible witnesses. Luis Ischiu made several inconsistent if not false statements to the Court. His denials of physically abusing his wife rang hollow when he acknowledged that he would hit his wife if he discovered that she was having an affair with another man. His demeanor was also troubling. The Court concluded that Gomez Garcia has presented clear and convincing evidence that she was subjected to physical and sexual abuse by Luis Ischiu and his family, and that as a result there would be a grave risk of psychological harm to W.M.L.G., and he would be placed in an intolerable situation, if he were returned to Guatemala. Gomez Garcia was the victim of abuse at the hands of not only her husband, but also members of his family. Most egregiously, her father-in-law Alberto Luis Escobar and her husband’s brother Carlos Luis Ischiu sexually abused her on multiple occasions. Specifically, when alone with her, Alberto Luis Escobar pulled her tight and grabbed her “private parts.” Carlos Luis Ischiu engaged in similar activity. When Gomez Garcia reported the molestation to her husband, Luis Ischiu did nothing to stop it but instead warned her not to speak of it to anyone else. Notably, the vast majority of this testimony was undisputed. Although Carlos Luis Ischiu was listed as a witness, he did not testify. And Luis Ischiu never disputed Gomez Garcia’s testimony that she had told him about the sexual abuse by his father and brother, or that he had refused to do anything to stop it. In addition to this sexual abuse by Luis Ischiu’s relatives, Gomez Garcia also suffered physical abuse at the hands of her husband. On at least three occasions, Gomez Garcia physically assaulted her, attacks which included smashing her in the face and knocking her to the ground. Her sister later observed bruises on Gomez Garcia. She was also verbally abused by her husband and his brothers. Faced with such abuse, Gomez Garcia had no place to turn. No one in the family compound came to her aid. According to Gomez Garcia, the wives of Luis Ischiu’s brothers also suffered abuse and “live in fear.” Her parents lived 30 minutes away by car, and she had no access to a vehicle. Her husband and his family members also threatened, on multiple occasions, to kill her if she fled the family compound, and she gave unrebutted testimony that Carlos Luis Ischiu is a member of a gang. When she then attempted suicide on two occasions, Luis Ischiu did nothing other than offer to take her to the doctor and look for poison or pills in the house. There was no effort by anyone in the family to get help for Gomez Garcia to prevent another attempt. When she finally fled and obtained the Security Measures Order, Luis Ischiu immediately violated that order when, accompanied by his parents and brother, he appeared at the home of Gomez Garcia’s parents, demanded to see Gomez Garcia and W.M.L.G., and threatened to find her and kill her.

          Significantly, W.M.L.G. was aware of the abuse directed at his mother. He witnessed at least one of these physical attacks against his mother and heard verbal, profane abuse by his father and uncles against his mother. He was aware of the threat that, if he were returned to his mother’s family home in Guatemala, his father and grandfather would likely come to take him away. Dr. Sanchez concluded that Gomez Garcia had PTSD and clinical depression with anxiety as a result of the abuse, and that if forced to return to Guatemala, she would be in a state of terror and fear for her life. According to Dr. Sanchez, the likely deterioration in Gomez Garcia’s mental state would put W.M.L.G. at risk for PTSD, depression, anxiety, and even developmental delay, because psychological stress on the primary caregiver always has a corresponding impact on the child.

          The combination of physical abuse by Luis Ischiu, sexual abuse by his father and brother, verbal abuse, and multiple, specific threats to kill Garcia Gomez, coupled with W.M.L.G.’s awareness and witnessing of some of the abuse, established a similar grave risk of harm to W.M.L.G. In particular, the perverse sexual abuse by Gomez Garcia’s father-in-law and brother-in-law, implicitly condoned by her husband, presented a unique harm not present in other cases. The repeated threats to kill Gomez Garcia also heighten the risk. See Gomez v. Fuenmayor, 812 F.3d 1005, 1013 (11th Cir. 2016) (holding that a pattern of death threats and violence again a father, including a shooting, established a grave risk of harm even though the threats were not specifically directed against the child). Finally, the fact that Luis Ischiu and his family were undeterred by a Guatemalan restraining order and brazenly went to Gomez Garcia’s parents’ home to find her and threaten to kill her raises serious concerns whether both Gomez Garcia and W.M.L.G. would be safe in Guatemala. See Walsh, 221 F.3d at 221 (considering the father’s history of violating court orders as a factor in concluding that return of the child would impose a grave risk of harm). Between the potential psychological harm to W.M.L.G. that would derive from Gomez Garcia’s legitimate fear for her safety if they were to return to Guatemala, and the physical risk that W.M.L.G. would be caught up in potential violence directed at his mother, the Court found that returning W.M.L.G. to Guatemala would create a grave risk of harm to the child and place him in an intolerable situation.

Eubanks v Eubanks, 2017 WL 3235446 (E.D. Louisiana, 2017)[Cayman Islands][Habitual Residence][Petition denied]

          In Eubanks v Eubanks, 2017 WL 3235446 (E.D. Louisiana, 2017) the district court denied the Petition of Ivan Eubanks’ for the return of his children to the Cayman Islands.

          The district court found that the parties were both American Citizens. They were married on December 1, 2007 in Louisiana. In 2008, they moved to Boston, Massachusetts after Mr. Eubanks accepted a teaching position at Boston University. E.E. and P.E. were born on April 18, 2013 in Boston, Massachusetts. Shortly after the birth of E.E. and P.E., Mr. Eubanks secured a job as a professor in Moscow, Russia. Mr. Eubanks moved to Moscow in August of 2013. Ms. Eubanks and the two children followed in October of 2013.  While in Russia, Mr. Eubanks applied for over ninety different jobs, almost all of which were teaching positions in the United States. At some point prior to January 2016, Mr. Eubanks, accepted a position teaching freshman English at the University College of the Cayman Islands. Mr. Eubanks’ teaching contract with the University College of the Cayman Islands was for two-years. Mr. Eubanks told Ms. Eubanks that the move to the Cayman Islands would be a temporary move for the duration of one semester, until he received a position in the United States. Ms. Eubanks agreed to the move because the parties were desperate to leave Russia and because Mr. Eubanks promised their stay in the Cayman Islands was to be temporary and that it would provide an opportunity for them to decompress after leaving Russia. Mr. Eubanks specifically told Ms. Eubanks that he was 100 percent positive he would be offered a teaching position at the University of San Diego by the end of the semester. The parties moved to the Cayman Islands on or about January 1, 2016.

          The court found that Ms Eubanks was the more credible witness, and that E.E. and P.E. lived in the Cayman Islands, with both Mr. and Ms. Eubanks, from January 1, 2016 until August 26, 2016. Neither Mr. Eubanks nor Ms. Eubanks had any relatives residing in the Cayman Islands. Mr. Eubanks did not change the mailing address on his credit cards or bank statements to the Cayman Islands and, instead, they are mailed to his father’s address in South Carolina. Mr. Eubanks was registered to vote in Florida. The parties rented a furnished condominium in the Cayman Islands and continued to store their personal belongings in their storage facility in New Orleans, Louisiana. The lease agreement for the condominium contained, at the parties’ request, an “escape clause” allowing the parties to break to break the lease, without penalty, at any time prior to May 31, 2016.  The escape clause was included in the lease so that the parties could break the lease if Mr. Eubanks received an offer to work in the United States.  Shortly after moving to the Cayman Islands and participating in a Skype interview, Mr. Eubanks learned on January 18 that he was not chosen for the teaching position at the University of San Diego. After learning he did not get the job at the University of San Diego, Mr. Eubanks assured Ms. Eubanks his chances of getting hired by the State Department were good.  In June 2016, Mr. Eubanks accepted a position as Acting Dean of Academic Affairs with his current employer, the University College of the Cayman Islands. Mr. Eubanks told Ms. Eubanks that accepting this position would make him a more desirable applicant in his job search.  E.E. and P.E. were registered but had not started school in the Cayman Islands as of August 26, 2016.  Both Mr. Eubanks and Ms. Eubanks wanted E.E. and P.E. to be raised and educated in the United States. From the time of arrival in the Cayman Islands to the date of this trial, Mr. Eubanks actively sought employment in the United States.  Ms. Eubanks did not intend for the children’s habitual residence to be in the Cayman Islands.  Ms. Eubanks removed E.E. and P.E. from the Cayman Islands to New Orleans, Louisiana on August 26, 2016, without the consent of Mr. Eubanks.  E.E and P.E. continued to reside in New Orleans, Louisiana with Ms. Eubanks.  On February 10, 2017, Mr. Eubanks filed his Verified Complaint for the Return of Children to the Cayman Islands.

          The Court’s habitual residence analysis was accordance with the Ninth Circuits decision in Mozes v Mozes, 299 F.3d at 1070. As E.E. and P.E. were only three years old at the time of removal, the Court found that its inquiry as to their habitual residence depended solely on the parents’ intentions. The Court did not need to determine E.E. and P.E.’s habitual residence before they moved to the Cayman Islands.  Even assuming the children were at one point habitually resident in Russia, it was undisputed that there was a clear meeting of the minds between Mr. and Ms. Eubanks to abandon Russia as the children’s habitual residence. As a result, the issue was whether the parties mutually intended to establish the Cayman Islands as the children’s habitual residence. The Fifth Circuit has explicitly held that the shared intent to abandon a habitual residence and move somewhere new does not require that the parents must agree on the new country of residence. Further, the Fifth Circuit has noted “it is possible for a young child to have no habitual residence when there is no evidence of a shared intention for the child to be settled in any particular location.” Berezowsky v. Ojeda, 765 F.3d 456, 467 (5th Cir. 2014) (citing Delvoyle v. Lee, 329 F.3d 330, 334 (3d Cir. 2003)).

           At trial, the parties offered conflicting testimony regarding whether they intended to establish a habitual residence in the Cayman Islands. Ms. Eubanks testified that she agreed to the move only because Mr. Eubanks told her the move to the Cayman Islands would be temporary. Ms. Eubanks introduced evidence that Mr. Eubanks continued to seek employment in the United States after the parties moved to the Cayman Islands. Her sister testified that Mr. Eubanks applied for jobs after moving to the Cayman Islands and that he told her the move to the Cayman Islands was temporary and his family would be moving as soon as he found another job on the mainland. Ms. Eubanks testified that the parties specifically required that an “escape-clause” be included in the rental agreement for their condominium so that the parties would be able to break their lease, without penalty, when Mr. Eubanks received a position in the United States. Ms. Eubanks also testified that in June, after Mr. Eubanks accepted the position as Acting Dean, the parties looked to purchase a home in order to reduce monthly expenses, but that the parties would only purchase a house on the water so that it could either be rented or sold relatively quickly. Ms. Eubanks testified that the parties did not purchase a home because they could not find property in their price range that fit this criteria. Although both parties testified that they took affirmative steps to purchase a home in the Cayman Islands, this fact alone is not dispositive to the Court’s habitual residence analysis. The Court found that Ms. Eubanks put forth credible reasons as to why the parties may have considered purchasing a home despite their intention to leave the Cayman Islands as soon as Mr. Eubanks received a job offer in the United States. Although Ms. Eubanks testified that the children were registered for school in the Cayman Islands but had not yet started, Ms. Eubanks also testified that both she and Mr. Eubanks wanted E.E. and P.E. to be raised and educated in the United States. Evidence that the children were enrolled to start school in the Cayman Islands is not substantial evidence that the parties intended to remain in the Cayman Islands indefinitely. Ms. Eubanks also testified that Mr. Eubanks told her he was not content with his job in the Cayman Islands and that Mr. Eubanks often complained that the job was beneath his qualifications. Although Mr. Eubanks unequivocally testified that he did not actively seek other employment while living in the Cayman Islands, emails proved his testimony clearly was not true. Included in these emails were countless communications between Mr. Eubanks and potential employers during 2016, including the State Department. Mr. Eubanks continued his quite active search for employment in the United States after he, Ms. Eubanks, and their children moved to the Cayman Islands. The emails corroborate Ms. Eubanks’ testimony that Mr. Eubanks was very actively pursuing a position with the State Department while in the Cayman Islands.

          The Court found that Mr. Eubanks failed to meet his burden of proof by a preponderance of the evidence that he and Ms. Eubanks had a shared intent to establish the children’s habitual residence in the Cayman Islands. As a result, Mr. Eubanks failed to prove by a preponderance of the evidence that the children were habitually resident in the Cayman Islands at the time they were removed by their mother.