Fernandez v Bailey, 2018 WL 6060380 (11th Cir., 2018) [Panama] [Now settled exception] [Petition granted]

          In Fernandez v Bailey, 2018 WL 6060380 (11^th Cir., 2018) on May 15, 2009, American Christy Bailey (mother”) fled Panama with her two nine-month-old sons without telling the boys’ father, Roque Jacinto Fernandez. After he found the mother and boys living in Missouri, he petitioned in the District Court for the Eastern District of Missouri seeking the return of the boys to Panama under the Hague Convention. In September 2010, the Missouri district court ordered their return upon finding that the father had a custody right under Panamanian law, the mother’s removal of the children was “wrongful” and in violation of the Convention, and none of the exceptions to return applied. The mother returned to Panama with the children so custody proceedings there could determine the matter. While the boys continued to live with their mother in Panama, their father visited with them every other weekend and pursued custody in Panamanian court. Visits went on routinely until January 2013.The father had not seen or spoken with the children since then. The mother secured a job in Tampa, and on February 2, 2014, less than three and one-half years after she was ordered to return to Panama, with custody proceedings in Panama pending, the mother again abducted the children to the United States. The boys were dual Panamanian-American citizens with American passports, and they were allowed to lawfully enter the country. In Panama, the father searched for his children. In September 2014 the father hired a new attorney who sought information about the children from Panamanian immigration authorities. In January 2015, those authorities informed the father that the children had left Panama nearly a year earlier. At that point, the father turned to the U.S. Department of State (“State”) for assistance in locating his children. Eventually the father’s private investigator located the boys in Tampa, and on August 24, 2016, two and one-half years following their abduction from Panama, the father filed his second petition for return of the children, this time in the District Court for the Middle District of Florida. Following a hearing, the district court found that the father had established a prima facie case under the Hague Convention, but determined that the mother had established by a preponderance of the evidence the affirmative defense that the children were settled within the meaning of Article 12 of the Convention. Although the district court acknowledged that it retained discretion to order the children returned, it declined to do so, finding that the children’s interest in settlement outweighed the Hague Convention’s purpose to discourage wrongful removals.

          The Eleventh Circuit reversed and granted the petition holding that the district court abused its discretion by not ordering the children returned to Panama in the face of the mother’s second abduction. It construed the term “settled” to mean that a child is settled within the meaning of ICARA and the Convention when a preponderance of the evidence shows that the child has significant connections to their new home that indicate that the child has developed a stable, permanent, and nontransitory life in their new country to such a degree that return would be to the child’s detriment. In noting that all returns will necessarily involve some level of disruption to the child or children involved, it cautioned that disruption should not be considered per se detrimental. Rather, the “settled” inquiry requires courts to carefully consider the totality of the circumstances. It noted that consistent with the language in Article 12, most courts in the United States have held that, after the first year of abduction, a court is permitted but not mandated to order the child’s return notwithstanding the settlement of the child. See, e.g., Alcala v. Hernandez, 826 F.3d 161, 175 (4th Cir. 2016); Yaman v. Yaman, 730 F.3d 1, 18 (1st Cir. 2013); Blondin v. Dubois, 238 F.3d 153, 164 (2d Cir. 2001) It concluded that based on Article 18 of the Convention a court can order the return of a wrongfully removed child who is settled in his new environment.

          The Court explained that the two primary objectives of the Convention, according to Article 1, are “to secure the prompt return of children wrongfully removed or retained,” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting State.” 

          Because it concluded that a court may exercise its discretion to order the return of a child notwithstanding finding that an exception to return is met, the Eleventh Circuit reviewed the determination by the district court to return or not to return a child for an abuse of discretion.

          The Eleventh Circuit pointed out that the return remedy is “[t]he Convention’s central operating feature.” Abbott, 560 U.S. at 9, 130 S.Ct. 1983. Based on “the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence,” return must be the default in order to “lay[ ] venue for the ultimate custody determination in the child’s country of habitual residence rather than the country to which the child is abducted.” Lozano, 572 U.S. at 5, 134 S.Ct. 1224. The Convention was designed in part to prevent an abducting parent from wrongfully removing a child to a friendlier forum for the adjudication of a custody dispute.  However, a district court ordering the return of a settled child should be an infrequent occurrence, so as not to swallow the text of Article 12’s stated exception.

          This case was unique for several reasons. This was the second time in five years that the mother had wrongfully removed the boys from Panama and brought them to the United States. It was the second time that the father, from abroad, had to petition a federal district court under the Convention for the return of the boys to their habitual residence in Panama. The Eleventh Circuit believed that the district court abused its discretion by not sufficiently weighing the audacity (and significance) of a second wrongful removal. The mother admitted that when she wrongfully removed the boys from Panama in 2014, she left the country without the father’s knowledge. She also left the country in defiance of an exit restriction, which the Panamanian court had put into place in the wake of the 2009 abduction specifically to prevent the mother from leaving Panama with the children a second time. Because of this court-ordered exit restriction, the father did not believe the mother could have left the country with the boys, which resulted in him looking for them within Panama, rather than outside it, from March of 2013 until January of 2015. The district court did not properly weigh the mother’s flouting of the 2010 Missouri district court’s injunction which ordered the return of the boys to Panama, or the mother’s disrespect for the Panamanian court’s exit restriction forbidding her from taking the boys from Panama.

          Second, the wrongful removal at issue here occurred while the Panamanian courts were deeply involved in multiple issues related to the children’s custody.  By wrongfully removing the boys, the mother prevented the Panamanian courts from resolving these outstanding issues. Third, the result of the district court’s order was that child custody proceedings would be held in Florida. But the father was currently not allowed, and likely would never be permitted, to come to the United States due to a juvenile felony burglary conviction. This meant that the father would not be able to personally appear before a Florida court to argue for custody. As the district court recognized, this state of affairs gives the mother a decided home-field advantage in the custody proceedings, and significantly impedes the father’s ability to fight for his rights. Despite this acknowledgment, the district court concluded that “the children’s interest in settlement in this case outweighed the other interests that would be served by returning the children to Panama.”

          The Court held that given the confluence of the unique facts in this case the district court’s decision to not order the return of the boys was contrary to the aims and objectives of the Convention and constituted an abuse of discretion. It remanded the matter to the district court to grant the petition and enter a judgment ordering the children returned to Panama.

Mohácsi v Sofia, --- F.Supp.3d ----, 2018 WL 5818541 (EDNY, 2018)[Hungary] [Habitual Residence][Petition denied]

          In Mohácsi v Sofia, --- F.Supp.3d ----, 2018 WL 5818541 (EDNY, 2018) the district court denied the fathers petition for the immediate return of his son NIR to Hungary.

          Petitioner and Respondent met in June 2012 in Budapest, Hungary. Respondent moved in with Petitioner within a few weeks after they met. After Petitioner and Respondent had been dating for a few weeks, their relationship began to deteriorate. After moving in with Petitioner, Respondent became aware of his alcohol consumption, and testified he consumed alcohol on a daily basis, including beer, vodka, scotch, and wine. Petitioner also used ecstasy. After they had been living together for a few weeks, Petitioner began pressuring Respondent to have a sexual encounter with another man, which made Respondent uncomfortable. The requests continued every day during the summer and fall of 2012. When Respondent refused, Petitioner became angry and accused her of “bring[ing] him down.” After Petitioner’s repeated demands, she had sex with the other man. Petitioner videotaped the encounter and uploaded the videos to his YouTube channel. As Petitioner admitted, he physically assaulted Respondent during their relationship. In December 2013, Respondent became pregnant with NIR. Respondent, however, testified that during her pregnancy, she wanted to raise NIR in New York and never intended to raise NIR in Hungary from his birth. While Respondent was pregnant with NIR, Petitioner continued to ask her to have sex with other men, and in February 2014, Respondent gave in to his requests. Petitioner recorded the encounter and uploaded it to his YouTube channel. Both parties agree they had an argument in June 2014 that effectively ended their relationship, Respondent went to her mother’s apartment, where she lived after moving out from living with Petitioner. NIR was born in Budapest, Hungary on September 19, 2014. Petitioner was not listed as NIR’s father on NIR’s birth certificate. Approximately two months after NIR’s birth, Petitioner filed a paternity lawsuit in Hungary to establish his parental rights. Respondent did not have any issues obtaining a passport for NIR without Petitioner’s consent. Petitioner told Respondent that if it turned out NIR was not his son, he would kill her. In early 2015, Petitioner continued to send harassing messages to Respondent. On August 25, 2015, Respondent left with NIR for the United States. Respondent arrived in New York, where her mother’s husband lived at the time and still currently lives. Respondent testified that when she left, she did not intend to return to Hungary to raise NIR there, and had not considered going back to Hungary since coming to the United States. Since arriving in New York, Respondent has not left. Tr. 204:2-4. Respondent’s father sends money to Respondent on a monthly basis and financially supports her and NIR; the amount he sends her has fluctuated but gradually increased to $1,000.00 per month. Respondent lived at several locations in New York before she met Carlos Herrera in October 2015. They married after living together for eight months. Mr. Herrera passed away in May 2017 because of health complications related to kidney disease and a heart attack. In June 2016, the Hungarian court issued a decision declaring Petitioner the father of NIR. After the court order, Petitioner was able to change NIR’s birth certificate to reflect his paternity.   Respondent and NIR were both currently permanent residents of the United States, having applied in August 2016. Respondent and NIR were evicted from the home they shared with Mr. Herrera and currently live in a family center where they have a large room, private bathroom, and kitchenette; they have now lived there for several months. NIR has his own bed and Respondent stated she feels “safe and secure” in their current residence, where they are permitted to stay for up to one year. NIR’s primary language is English, and he speaks only a “few words” of Hungarian. He had friends in New York and now attends school. Respondent testified that NIR loves New York and is excited about going to school. Petitioner continued to threaten Respondent since she has been in New York.

          The proceeding was commenced on May 1, 2018. During the trial both parties presented testimony from Hungarian law experts. Respondent’s Hungarian law expert, Dr. Blanca Illés—whose testimony this Court credited—testified Petitioner became a father by court order. In Hungary, an unmarried father has no legal custodial rights before paternity is established, and an engagement between the parties does not grant an unmarried father any additional rights. Regarding the date upon which Petitioner acquired paternity rights, Dr. Illés testified that even though the court order at issue—bears a date of June 16, 2016, the court order did not become legally binding and final until September 2, 2016, because of Hungarian legal rules governing the time for appeals and finality of certain court orders. Accordingly, Dr. Illés testified that Petitioner became the father of NIR on September 2, 2016, once the court order became final. Dr. Illés testified that under Hungarian law, Respondent would have been legally permitted to leave Hungary for the United States in August 2015 because, at that time, Respondent was the sole custodial parent, and the pendency of the Hungarian court paternity proceeding did not change the analysis. Dr. Illés explained that during a paternity case, a father does not have parental rights.  Dr. Illés testified that under Hungarian law, paternity orders from a court do not have retroactive effect. Dr. Illés testified that while a paternity case is pending, the court before which the case is pending does not have any custodial rights, nor does a trustee appointed to represent the interests of the child.

          The district court found that Petitioner failed to establish his prima facie case because Petitioner could not show Respondent wrongfully removed NIR to or retained NIR in the United States in violation of his custodial rights under Hungarian law. In dicta, the court stated that  even if Petitioner could establish a case for wrongful removal or retention, his petition must still be denied because Respondent  satisfied her burden of establishing two applicable defenses: (1) there is a grave risk of harm to NIR if this Court ordered him “returned” to Hungary, and (2) NIR is now settled in the United States and this proceeding was commenced more than one year from the date of the alleged wrongful removal or retention.

          The district court rejected Petitioners argument that Respondent wrongfully removed NIR from Hungary. Petitioner’s claim failed because even if Petitioner could establish Hungary as NIR’s place of habitual residence as of August 2015, neither Petitioner nor the Hungarian court had any custody rights at the time of removal. Both Hungarian law experts testified that Petitioner had no parental or custody rights before the Hungarian court issued an order declaring Petitioner the father of NIR in June 2016 (which did not become final until September 2, 2016). Both experts testified the Hungarian court order at issue was not retroactive.

          Petitioner argued that even if the  Court found Respondent’s removal of NIR to the United States in August 2015 was not wrongful, Respondent wrongfully retained NIR in the United States in violation of his custody rights. Petitioner argued NIR’s retention in the United States became wrongful “on the date that Petitioner’s custody rights were confirmed,” which Petitioner contended is sometime in early July 2016. According to Petitioner, because he did not consent to NIR’s continued retention in the United States, Respondent’s continued retention of NIR became wrongful at that time.  The district court stated that for Petitioner to prevail on his claim of wrongful retention, he had to show NIR was a habitual resident of Hungary at the time he alleged Respondent’s continued retention became wrongful. This Court found Petitioner’s paternal rights became final on September 2, 2016. Petitioner’s claim of wrongful retention turned on the determination of NIR’s habitual residence immediately prior to September 2, 2016, when the Hungarian court order became final and when Petitioner alleged the retention of NIR in the United States became wrongful.

          The court observed that under Gitter, the first step in determining habitual residence under the Convention is to look into the intent “of those entitled to fix the child’s residence.” Gitter, 396 F.3d at 134. When Respondent moved with NIR to the United States in August 2015, Petitioner had not been confirmed as NIR’s father and was not entitled to fix NIR’s residence. See Redmond, 724 F.3d at 747 (finding respondent, who had sole custody of the child at issue, had the “exclusive right to fix the place of [the child’s] residence”). As a result, only Respondent’s intent was relevant. She testified she always intended to raise NIR in New York and never intended to raise NIR in Hungary. Her intent was supported by evidence in the record, including her marriage to a U.S. citizen, the fact that she and NIR were both lawful permanent residents, and the fact that she had not left New York since arriving. Respondent’s physical move to the United States with NIR, coupled with her intent to raise NIR in New York, established that as of September 2, 2016—when the Hungarian court’s order became final—the United States had already been established as NIR’s habitual residence. Petitioner’s claim of wrongful retention failed because Petitioner could not show NIR hasdbeen wrongfully retained in a country other than his place of habitual residence, which was the United States.

          Petitioner argued it is “absurd” to suggest Hungary was not established as NIR’s place of habitual residence. Given the lack of shared intent and the breakdown of the parties’ relationship prior to NIR’s birth, the Court concludes Hungary was never established as NIR’s place of habitual residence. See, e.g., In re A.L.C., 607 F. App’x at 662-63 (concluding the child’s “nine months as an infant in Los Angeles do not result in [the child] acquiring habitual residence in the United States” given lack of shared parental intent). Although Petitioner emphasized the determination of the Hungarian court that NIR was a habitual resident of Hungary, the Hungarian court was not deciding habitual residence under the Convention and was not applying the applicable standards for determining habitual residence under the Convention. Petitioner has failed to establish that NIR—who was less than one year old when Respondent moved with him to the United States in August 2015—was ever habitually resident in Hungary given the lack of shared intent to raise NIR there, the breakdown of the parties’ relationship prior to NIR’s birth, and NIR’s presumed inability to form meaningful connections as an infant before leaving. Accordingly, even when the Court considered evidence of Petitioner’s stated intent to raise NIR in Hungary, Petitioner’s claim of wrongful retention still failed.

          The Court noted that “a parent may not use the Convention to alter the child’s residential status based on a legal development in the parent’s favor.” Redmond, 724 F.3d at 742. By the time the Hungarian court’s order declaring Petitioner the father of NIR became final on September 2, 2016, Respondent and NIR had been living in the United States for over a year—more than half of NIR’s life—and NIR’s place of habitual residence had been established as the United States, for the reasons already described. Petitioner could not escape the reality that Respondent acted lawfully in taking NIR to the United States and establishing his place of habitual residence as New York, and he could not use the Hungarian court’s order to require NIR’s return to Hungary. Accordingly, Petitioner’s claim of wrongful retention was without merit.

          The district court indicated that even if Petitioner could establish his prima facie case, his petition still had to be denied because Respondent established the “grave risk of harm” defense, and the “well-settled” defense. The balance of the Court’s decision, (which is dicta) addressed these two defenses.

Taglieri v. Monasky, 2018 WL 5023787 [6th Circuit, 2018] Italy] [Habitual Residence] [Petition granted]

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In Taglieri v. Monasky, 2018 WL 5023787 [6th Circuit, 2018] the district court granted the Taglieri’s petition for the return of A.M.T. to Italy. The Sixth Circuit, sitting en banc on reargument, affirmed. 

Taglieri, an Italian, and Monasky, an American, met in Illinois. They married in Illinois in 2011. Two years later, they moved to Italy to pursue their careers. At first, they lived in Milan, where they each found work—Taglieri as an anesthesiologist, Monasky as a research biologist. The marriage had problems, including physical abuse. Taglieri struck Monasky in the face in March 2014. After that, Monasky testified, he continued to slap her. Monasky became pregnant with A.M.T. in May 2014, after one of the times Taglieri forced her to have sex, she claimed. In June 2014, Taglieri took a job at a hospital in Lugo, about three hours from Milan. Monasky stayed in Milan, where she worked at a different hospital. Monasky began investigating health care and child care options in the United States and looking for American divorce lawyers. But the couple also looked into child care options in Italy and prepared for A.M.T.’s arrival at the same time. 

In February 2015, Monasky emailed Taglieri about seeking a divorce and investigated a move back to the United States. The next day, Monasky took a taxi to the hospital. Once Taglieri realized she had left, he went to the hospital and was there, along with Monasky’s mother, during the labor and at A.M.T.’s birth by emergency cesarean section. After Monasky and A.M.T. left the hospital, Taglieri returned to Lugo, and Monasky stayed in Milan with A.M.T. and her mother. In March 2015, after Monasky’s mother returned to the United States, Monasky told Taglieri that she wanted to divorce him and move to America. A few days later, however, Monasky left Milan to stay with Taglieri in Lugo. Monasky and Taglieri disputed whether they reconciled in Lugo. During this time, the two jointly initiated applications for Italian and American passports for A.M.T.

In late March, Taglieri and Monasky had another argument. Soon after, Taglieri went to work and Monasky took A.M.T. to the police, seeking shelter in a safe house. She told the police that Taglieri was abusive. After Taglieri returned home and found his wife and daughter missing, he went to the police to revoke his permission for A.M.T.’s American passport. Two weeks later, Monasky left Italy for the United States, taking eight-week-old A.M.T. with her.

Taglieri filed a petition in the Northern District of Ohio seeking A.M.T.’s return under the Hague Convention. The district court granted Taglieri’s petition. Monasky appealed. Monasky returned A.M.T. to Italy. On appeal, a divided panel of the court affirmed the district court. 876 F.3d 868 (2017). The Court granted Monasky’s petition for rehearing en banc. No. 16-4128 (Mar. 2, 2018).

Judge Sutton’s opinion noted that the key inquiry in many Hague Convention cases, and the dispositive inquiry here, goes to the country of the child’s habitual residence. Habitual residence marks the place where a person customarily lives.  Ahmed v. Ahmed offers two ways to identify a child’s habitual residence. 867 F.3d 682 (6th Cir. 2017). The primary approach looks to the place in which the child has become “acclimatized.” The second approach, a back-up inquiry for children too young or too disabled to become acclimatized, looks to “shared parental intent.” As to the first approach, the question is “whether the child has been physically present in the country for an amount of time sufficient for acclimatization and whether the place has a degree of settled purpose from the child’s perspective.” Ahmed, 867 F.3d at 687. District courts ask these sorts of questions in determining a child’s acclimatization: whether the child participated in “academic activities,” “social engagements,” “sports programs and excursions,” and whether the child formed “meaningful connections with the [country’s] people and places.” But the acclimatization inquiry, as Ahmed appreciated, may prove difficult, sometimes impossible, for young children. An infant “never forms” “or is incapable of” forming the kinds of “ties” to which the acclimatization standard looks. Unwilling to leave infants with no habitual residence and thus no protection from the Hague Convention, Ahmed adopted an alternative inquiry for infants incapable of acclimating. In that setting, Ahmed tells courts to determine the “shared parental intent of the parties” and to identify the location where the parents “intended the child [] to live.”  Ahmed says that “the determination of when the acclimatization standard is impracticable must largely be made by the lower courts, which are best positioned to discern the unique facts and circumstances of each case.” The Sixth Circuit cases treat the habitual residence of a child as a question of fact. See, e.g., Ahmed, 867 F.3d at 686; Jenkins v. Jenkins, 569 F.3d 549, 556 (6th Cir. 2009); Tesson, 507 F.3d at 995.

The Court held that measured by these insights and these requirements, the district court’s ruling should be affirmed. No one thinks that A.M.T. was in a position to acclimate to any one country during her two months in this world. That means the case looks to the parents’ shared intent. It pointed out that in answering that question, “we must let district courts do what district courts do best—make factual findings—and steel ourselves to respect what they find. While we review transcripts for a living, they listen to witnesses for a living. While we largely read briefs for a living, they largely assess the credibility of parties and witnesses for a living. Consistent with the comparative advantages of each role, clear-error review is highly deferential review. In the words of the Supreme Court, we leave fact finding to the district court unless we are “left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). In the words of the Sixth Circuit, we leave this work to the district court unless the fact findings “strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.” United States v. Perry, 908 F.2d 56, 58 (6th Cir. 1990).”

The Court found that nothing in Judge Oliver’s habitual-residence finding left a “definite and firm conviction that a mistake” was made or, more pungently, strikes one as wrong with “the force of a five-week-old, unrefrigerated” aquatic animal. He presided over a four-day bench trial and heard live testimony from several witnesses, including most essentially the two parents: Monasky and Taglieri. After listening to the witnesses and weighing their credibility, Judge Oliver issued a 30-page opinion finding that Italy is A.M. T’s country of habitual residence. Judge Oliver’s opinion was thorough, carefully reasoned, and unmarked by any undue shading of the testimony provided by the competing witnesses. Some evidence, as he pointed out, supported the finding that Monasky and Taglieri intended to raise A.M.T. in Italy. Some evidence, as the trial court acknowledged, pointed in the other direction. Faced with this two-sided record, Judge Oliver had the authority to rule in either direction. He could have found that Italy was A.M.T.’s habitual residence or he could have found that the United States was her habitual residence. After fairly considering all of the evidence, he found that Italy was A.M.T.’s habitual residence. The Court held that it must treat the habitual-residence inquiry as it always has: a question of fact subject to deferential appellate review. Because the district court applied the correct legal standard and made no clear errors in its habitual-residence finding, and quite carefully considered all of the competing evidence it affirmed. 

Diagne v DeMartino, 2018 WL 4385659 (E.D. Michigan, 2018) [Canada] [Habitual Residence] [Article 18] [Petition granted in part and denied in part]

         

          In Diagne v DeMartino, 2018 WL 4385659 (E.D. Michigan, 2018) the Father sought the return of his two children, six-year-old N.M.D. and seven-month-old I.N.D., to Canada. The court granted the petition with regard to NMD and denied it with regard to I.N.D.’s return to Canada.

          The parties were married on February 27, 2010 in Quebec, Canada. They had two sons born during the marriage. The Father was a Canadian citizen. The Father sponsored the Mother, a United States citizen, to become a Canadian permanent resident after the marriage. The parties established their family life together and set up their first home in Canada.  The parties’ first son, N.M.D., was born in Quebec on May 29, 2012.  In December 2014, the parties leased a home in London, Ontario, Canada jointly. In July 2016, the parties purchased a home in London, Ontario. N.M.D. attended day care in London, Ontario and junior kindergarten at École Frère André in London in the 2016-2017 school year. The Mother and Father enrolled N.M.D. at the same school for the 2017-2018 school year for kindergarten. He was also enrolled for the 2018-2019 school year.  N.M.D.’s family doctors were all in London, Ontario. In March 2017, the Mother became pregnant with I.N.D., the parties’ second child.  The new baby was due to be born in December 2017. In August 2017, when the Mother was approximately five months pregnant, the parties traveled to Rhode Island for their family vacation. On August 16th, the Mother discovered e-mails between the Father and one of his female co-workers, suggesting the Father was having an affair with his co-worker. The Mother confronted the Father about the e-mails and his involvement with the coworker. The Father left the vacation on August 16, 2017 after giving the Mother N.M.D.’s passport so he could return to Canada. The Mother and N.M.D. did not return to Canada at the end of the Rhode Island vacation. After spending ten days in Texas, the Mother and N.M.D. arrived in Michigan on August 29 or 30, 2017 and stayed in a home owned by the Mother’s sister and brother-in-law.  The Father continued to drive back and forth between Canada and Michigan. Before one of the Father’s visits to Michigan, the Mother requested that the Father bring N.M.D.’s birth certificate and immunization records so that the Mother could enroll N.M.D. in school in Michigan. Although the Father had not agreed that N.M.D. could live in Michigan, he accepted that the child could not miss school pending the return of N.M.D. to Canada. On September 9, 2017, the Father brought papers to enroll N.M.D. in school in the United States.  On September 13, 2017, with the Father’s knowledge, the Mother went to the parties’ home in Canada and retrieved her personal belongings. The Father helped the Mother pack and load her car with furnishings and items personal to her and N.M.D. By September 15, 2017 the parties had agreed to split their belongings from their mutual home; the Father agreed to bring the Mother’s and N.M.D.’s belongings to her in the United States. On September 14, 2017, the Mother’s attorney sent the Father a proposed Interim Separation Agreement (the “Interim Agreement”). The father never signed the agreement. The Mother gave birth to I.N.D. in Michigan on December 11, 2017. The Mother’s mother stayed with the Mother and I.N.D. at the hospital. The next day, the Father picked up the Mother and I.N.D. from the hospital and drove them to the house where the Mother was staying in Michigan. The Father returned to Canada while the Mother’s mother stayed with the Mother and children at the house in Michigan. On March 31, 2018, the Mother filed a Complaint for Divorce against the Father in the Family Division for the 44^th Judicial Circuit of the State of Michigan. The Father was served with divorce papers on April 26, 2018.  On June 5, 2018, the Father submitted a Verified Petition for Return of Children seeking the return of both children to Canada.

          The district court observed that Courts use two distinct standards to determine the habitual residence of a child under the Hague Convention: “acclimatization” and “shared parental intent.” Ahmed, 867 F.3d at 687-90; Robert, 507 F.3d at 994. In Ahmed, the Sixth Circuit formally adopted the settled mutual intent approach for Convention cases involving infants and young children who lack the cognizance to acclimate to any residence. The Ahmed court went on to hold that, “what matters is where the [parents] intended the children to live.”  But courts are generally in agreement that infants cannot acquire a habitual residence separate and apart from their parents. “Where a matrimonial home exists, i.e., where both parents share a settled intent to reside, determining the habitual residence of an infant presents no particular problem[.] [I]t simply calls for application of the analysis under the Convention with which courts [are] familiar.” Delvoye v. Lee, 329 F.3d 330, 333 (3d Cir. 2003). However, where the parents’ relationship has broken down – as is the case here – the character of the problem changes. The mere fact that conflict has developed does not automatically disestablish a child’s habitual residence once it has come into existence. Id. “But where the conflict is contemporaneous with the birth of the child, no habitual residence may ever come into existence.” Id. Importantly, the court in Delvoye found that “ ‘Where a child is born while his...mother is temporarily present in a country other than that of her habitual residence[,]...the child will normally have no habitual residence until living in a country on a footing of some stability.’ ” Delvoye, 329 F.3d at 334.

          The Mother conceded, and the Court found that the Father proved a prima facie case for the return of N.M.D. to Canada based on the Mother’s wrongful retention of N.M.D. on August 21, 2017. The Mother failed to establish defenses to return, either acquiescence or consent. The Court found that N.M.D. had to be returned to Canada.

          The district court noted that in the case of IND, the Father alleged that I.N.D. was wrongfully retained in the United States from Canada beginning immediately before I.N.D.’s birth on December 11, 2017. The Mother argued only that the Father failed to meet his burden of proof with respect to habitual residence. The Court applied the shared parental intent standard set forth in Ahmed and agreed with her. The same evidence the Court relied upon to conclude there was no consistent attitude of acquiescence over a significant period of time was used by the Court to conclude that the Mother and Father’s mutual intent for where I.N.D. would live was absent from the time the Mother remained in the United States on August 20, 2017 until I.N.D. was born on December 11, 2017. The parties’ intent before August 20, when the Mother was just five months pregnant, was insufficient to make I.N.D. a habitual resident of Canada. I.N.D. had only lived in the United States, and there was no evidence that he had even been to Canada to visit.  The court pointed out that the Ninth Circuit addressed a similar issue in In re A.L.C., 607 Fed. Appx. 658 (9th Cir. 2015).  Declining to return a newborn child under the Hague Convention, the Court held that “[w]hen a child is born under a cloud of disagreement between parents over the child’s habitual residence, and a child remains of a tender age in which contacts outside the immediate home cannot practically develop into deep-rooted ties, a child remains without a habitual residence because ‘if an attachment to a State does not exist, it should hardly be invented.” Id. at 662 (quoting Holder v. Holder, 392 F.3d 1009, 1020-21 (9th Cir. 2004)) The Court agreed with the Ninth Circuit’s reasoning finding that I.N.D. had no habitual residence immediately before his birth and retention in the United States. Therefore, the father failed to establish I.N.D.’s habitual residence was Canada immediately before the alleged wrongful retention, and did not prove his prima facie case for the return of I.N.D. to Canada.

          The district court noted that under Article 18 of the Convention, if a petitioner establishes his or her prima facie case, and the respondent subsequently establishes one of the exceptions to return, the court may still exercise its plenary power “to order the return of [a] child at any time.” Convention Art. 18; Friedrich II, 78 F.3d at 1067. See also Lozano v. Montoya Alvarez, 134 S.Ct 1224, 1237-38 (2014) (Alito, J. concurring).  The Father did not prove his prima facie case.  Because the Father failed to demonstrate that Canada was I.N.D.’s habitual residence, the Court did not have the discretion to “return” I.N.D. to Canada. I.N.D. had never lived in Canada; thus, the relief the Father requested essentially was that the Court order I.N.D.’s removal to Canada. Giving a court discretion to order the removal of a child to a country that is not, nor ever has been, his or her habitual residence is not contemplated by the Convention and would not serve the purposes of the Convention. Accordingly, the Court would not order I.N.D.’s return to Canada.

Rath v Marcoski, --- F.3d ----, 2018 WL 3799875 (11th Cir., 2018)[Czech Republic] [Necessary expenses]

In Rath v Marcoski, --- F.3d ----, 2018 WL 3799875 (11th Cir., 2018) the  Eleventh Circuit addressed the standard for awarding attorney’s fees and costs to a successful petitioner in an action for the return of a child under the Hague Convention. It pointed out that the International Child Abduction Remedies Act (“ICARA”), which implements the Hague Convention, directs that a district court “shall order the respondent to pay necessary expenses ... unless the respondent establishes that such order would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3). The district court held that respondent failed to meet her burden under ICARA and awarded fees and costs to petitioner. 

Petitioner Jan Rath, a citizen of the Czech Republic, initiated this suit under the Hague Convention for the return of his child, L.N.R., after the child’s mother, Veronika Marcoski, removed him from the Czech Republic to Florida in April 2016. The district court held that Marcoski had wrongfully removed L.N.R. from the Czech Republic and ordered that L.N.R. be returned. The Eleventh Circuit  affirmed, holding that the district court’s assessment of the credibility of the witnesses was entitled to “great deference.” Marcoski v. Rath, 718 F. App’x 910, 912 (11th Cir. 2017) Rath moved for an award of attorney’s fees and costs in the district court. Marcoski objected, arguing that an award would be clearly inappropriate because she acted in good faith when she removed L.N.R. to the United States. The district court rejected this argument Rath v. Marcoski, No. 8:16-cv-2016, 2018 WL 446651, at *1 (M.D. Fla. Jan. 17, 2018) (). It found that Marcoski had not established that a fee award would be clearly inappropriate. The court awarded to Rath $73,219.50 in attorney’s fees, $5421.00 in taxable costs and $10,849.76 in expenses, for a total award of $89,490.26. 

The Eleventh Circuit affirmed. It  pointed out that  ICARA’s fee-shifting provision creates a rebuttable presumption in favor of a fee award.1 It read the statutory text as creating a strong presumption in favor of fee-shifting, rebuttable only by a showing from the losing respondent that an award of attorney’s fees, costs and expenses would be clearly inappropriate. See Salazar, 750 F.3d at 520 (stating that “the prevailing petitioner is presumptively entitled to necessary costs”)

The Court noted that the term “clearly inappropriate” is not used in any other fee-shifting statute. According to some courts, this exception “provides the district court ‘broad discretion in its effort to comply with the Hague Convention consistently with our own laws and standards.’ ” West v. Dobrev, 735 F.3d 921, 932 (10th Cir. 2013) (quoting Whallon, 356 F.3d at 140); see also Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013). It held hat  ICARA does not afford courts broad discretion on the issue of whether prevailing petitioners are entitled to an award—the statute dictates that they presumptively are—and the exception cannot be drawn so broadly as to make the analysis indistinguishable from what courts employ under a typical fee-shifting statute.  Congress did grant courts limited equitable discretion to determine when to allow an exception. It may well be that courts making this determination will look to factors that are familiar in the fee award context. But in doing so, courts must place on the losing respondent the substantial burden of establishing that a fee award is clearly inappropriate.  Though the “clearly inappropriate” inquiry is fact-dependent, two considerations have arisen with some frequency in the case law. One is whether a fee award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child. See Whallon, 356 F.3d at 139–40 (citing cases); Norinder v. Fuentes, 657 F.3d 526, 536–37 (7th Cir. 2011); Mendoza v. Silva, 987 F.Supp.2d 910, 917 (N.D. Iowa 2014). A second is whether a respondent had a good faith belief that her actions in removing or retaining a child were legal or justified. See Ozaltin, 708 F.3d at 375–76; Mendoza, 987 F.Supp.2d at 916–17.

Marcoski relied solely on the argument that a fee award was clearly inappropriate because she acted in good faith in removing L.N.R. to the United States. The Court agreed that the basis for a losing respondent’s course of conduct can be a relevant consideration in deciding if a fee award is clearly inappropriate. See Ozaltin, 708 F.3d at 375 (“Although mistake of law is not a defense to the return action itself, it is a relevant equitable factor when considering whether a costs award is appropriate.”). However, it found that Marcoski fell well short of her burden of establishing the “clearly inappropriate” exception.  The record developed on the merits of the wrongful removal petition was replete with evidence contradicting Marcoski’s good faith argument, and the district court’s factual determinations on the merits were affirmed on appeal and  constituted the law of the case. It found that the district court did not abuse its discretion in finding that Marcoski failed to establish under ICARA that an award of necessary expenses would be clearly inappropriate and the award was affirmed. 

Cruz v Sanchez, 2018 WL 4359217 (D. South Carolina, 2018) [Federal & State Judicial Remedies] [Remote testimony]

          In Cruz v Sanchez, 2018 WL 4359217 (D. South Carolina, 2018) the district court granted the parties’ joint motion requesting that the Court authorize remote testimony for the Petitioner and for certain witnesses who are likely to be called to testify by the parties. It observed that under Rule 43(a), a court may permit remote testimony “[f]or good cause in compelling circumstances and with appropriate safeguards.” Fed. R. Civ. P. 43(a). As the Fourth Circuit has noted, remote testimony does not “preclude the respondent from confronting and conducting relevant cross-examination of the witnesses,” so it does not offend due process considerations. United States v. Baker, 45 F.3d 837, 843-44 (4th Cir. 1995). Allowing remote testimony in Hague Convention actions, as long as subject to certain safeguards, is not without precedent. In Alcala v. Hernandez, No. 4:14-CV-04176-RBH, 2015 WL 1893291, at *3 (D.S.C. Apr. 27, 2015), the court required petitioner to be properly identified and testify from a private room, free of outside influence. The petitioner’s counsel was also required to troubleshoot his video-conferencing connection with the courthouse staff prior to his testimony. The court found those safeguards were appropriate here to ensure reliable testimony. As indicated in the Motion, the parties agreed to ensure that their witnesses utilize an appropriate room from which to testify by video-conference, free from outside interference. The parties also agreed to require the witnesses to present official identification prior to testifying, and have explained their willingness to work with the Court’s IT staff to troubleshoot the video-conferencing system prior to trial. The court directed that where video-conferencing is not available or if technical difficulties arise, those witnesses may also testify telephonically.

Crane v Merriman, 2018 WL 4291755 (W.D. Oklahoma, 2018)[New Zealand] [Necessary expenses] [Clearly inappropriate]

[New Zealand] [Necessary expenses] [Clearly inappropriate]

          In Crane v Merriman, 2018 WL 4291755 (W.D. Oklahoma, 2018) the district court granted in part and denied in part the successful Plaintiff’s motions for attorney’s fees and costs by denying an award of attorney’s fees but awarding non-attorneys fees costs.

          Plaintiff brought the present action seeking the return of his children to New Zealand. On September 14, 2017, the Court granted Plaintiff’s petition and ordered that the couple’s minor children, A.E.C. and R.F.A.C., be returned to New Zealand and placed in Plaintiff’s custody pending further order of a New Zealand court or other disposition of the underlying custody issues. The district court observed that ICARA provides, in pertinent part, as follows: “Any court ordering the return of a child pursuant to an action brought under section 9003 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. See 22 U.S.C. § 2007(a)(3).

          Plaintiff moved the Court for an award of his attorney’s fees, transportation costs, and other expenditures related to the return of the children: 1) $22,670.00 for legal work performed by his Oklahoma counsel, Laura McConnell-Corbyn and Shane M. Riddles-Hill, incurred in connection with these proceedings and an award of $1,015.05 in costs;¹ 2) $2,473.44 for legal work performed by his New Zealand counsel, Margaret Casey QC, incurred in securing representation in the United States and assisting moving counsel with case preparation; 3) $1,770.58 for legal work performed by his New Zealand counsel, Antonia Fisher QC, incurred in connection with proceedings in New Zealand and locating additional assistance; 4) $1,926.58 for round-trip airfare from New Zealand to Oklahoma; 5) $1,666.68 for airfare for A.E.C. from Oklahoma to New Zealand; 6) $182.19 for accommodations from September 11, 2017 through September 13, 2017, and an award of $866.25 for accommodations from September 13, 2017 to September 18, 2017; and 7) $226.55 incurred for a car rental from September 11, 2017 through September 18, 2017.

          Defendant argued that any award of legal fees and expenses would be clearly inappropriate under the circumstances. Defendant cited the financial disparity between the parties, which Plaintiff did not refute: (1) Defendant’s annual salary was 53,000 New Zealand Dollars (“NZD”); (2) Defendant had no significant assets of her own, (3) Defendant’s monthly expenses exceeded her monthly income, (4) Defendant had substantial debt, and (5) Defendant was on some governmental assistance and had applied for child support. By comparison, Plaintiff (1) owned his own company, (2) drew a salary of 84,000 NZD, and (3) owned two helicopters, a boat, and three residential properties, one of which is valued at nearly 1 million NZD. 

          The district court observed that “clearly inappropriate” caveat to ICARA’s award of attorney’s fees to a prevailing petitioner retains “the equitable nature of cost awards,” such that a prevailing petitioner’s presumptive entitlement to an award is “subject to the application of equitable principles by the district court.” Souratgar v. Lee Jen Fair, 818 F.2d 72, 79 (2d Cir. 2016) (The term “clearly inappropriate” is not defined in the statute, yet some considerations have arisen with frequency in the relevant case law. One is whether a fee award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child; a second is whether the respondent had a good faith belief that her actions in removing a child were legal or justified. See Rath v. Marcoski, No. 18-10403, 2018 WL 3799875, at *4 (11th Cir. Aug. 10, 2018) (unpublished) (collecting cases).

          Another consideration—which bears some relevance to the first—is whether an award would be “clearly inappropriate” in light of the financial disparity between the parties. It is this consideration that led to the conclusion that, under the circumstances of this specific case, an award of attorney’s fees would be clearly inappropriate. Although employed, Defendant has demonstrated that due to her income and expenditures, payment of Plaintiff’s attorney’s fees would present a financial hardship and affect her own ability to care for her children. Citing similar financial circumstances and disparities, federal courts have denied a prevailing petitioner’s motion for attorney’s fees as “clearly inappropriate.”

          However, Defendant wa not blameless in these proceedings and the Court found it appropriate to award Plaintiff his non-attorney fee expenses in prosecuting this action. See Souratgar, 818 F.3d at 79 (“[I]n determining whether expenses are ‘clearly inappropriate,’ courts have considered the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition.”). The Court awarded Plaintiff costs and expenses in the amount of $5,883.30, which represents the following items: $1,015.05 in court costs; $1,926.58 for Plaintiff’s round-trip airfare from New Zealand to Oklahoma; $1,666.68 for airfare for A.E.C. from Oklahoma to New Zealand; $182.19 for Plaintiff’s accommodations from September 11, 2017 through September 13, 2017, and $866.25 for Plaintiff’s accommodations from September 13, 2017 to September 18, 2017; and $226.55 Plaintiff incurred for a car rental from September 11, 2017 through September 18, 2017.