Wtulich v Filipkowska, 2019 WL 1274694 (E.D. New York, 2019)[Poland] [habitual residence] [petition granted]

In Wtulich v Filipkowska, 2019 WL 1274694 (E.D. New York, 2019) Petitioner Nikodem Wtulich (“Wtulich”) sought the return of his daughter AW to Poland. With the parties’ consent, the magistrate judge presided at a bench trial of the matter. He found that AW habitually resided in Poland, that Wtulich was exercising parental control until Filipkowska wrongfully retained AW in this country, and that AW was not settled in this country in the pertinent legal sense. Wtulich was therefore entitled to have AW returned to him.

The court found that AW was born in 2008 in Warsaw, Poland. Her parents were never married to one another. AW lived mostly with Filipkowska in Pisz, Poland, but Wtulich regularly spent time with her, playing soccer and celebrating holidays together. Wtulich also made decisions regarding AW’s travel outside of Poland. He twice granted the requisite permission for AW to obtain a passport, allowing Filipkowska to travel with AW to the United States several times between 2008 and 2013 to visit family in New York. In June 2013, Wtulich again gave his consent to Filipkowska to travel to the United States with AW, this time to attend her brother’s wedding. On this occasion Wtulich believed only that he was consenting to have AW spend about three months in New York before returning to Poland; he and Filipkowska discussed choosing a school in Poland for AW to attend upon her return in the fall. In September 2013, after taking AW to the United States based on Wtulich’s consent for her to be there for about three months, Filipkowska informed Wtulich via Skype that she wanted to stay in the United States longer and enroll AW in kindergarten in New York. Wtulich expressed his disagreement with the plan, but eventually agreed. Thereafter, Filipkowska stopped communicating with Wtulich except through emails.  Notwithstanding Filipkowska’s decision to extend AW’s stay in the United States, Wtulich expected AW would have to return to Poland shortly because she was traveling on a tourist visa that permitted her to stay in this country only for six months. In December 2013, however, Filipkowska informed Wtulich that she intended to retain AW in the United States so that she could attend kindergarten in New York. Fearing that he would risk losing contact with AW forever if he objected, Wtulich sent an email to Filipkowska stating that he was “happy to hear that [she] made this decision,” and that this was “also good for [AW] because [he would] rather she went to kindergarten there. That same month, however, concerned that Filipkowska intended to keep AW in the United States indefinitely, Wtulich spoke with an attorney. Wtulich maintained contact with AW through regular Skype calls, and in April 2014, he traveled to the United States for two weeks to spend time with AW. He also planned to discuss her return to Poland. Instead, sometime around May 2014, Filipkowska informed Wtulich of her intent not to return to Poland with AW. Wtulich again spoke with an attorney and, on June 12, 2014, filed an ICARA Application with the Department of State. AW’s passport expired in 2015, and Filipkowska requested Wtulich’s permission to renew it. Wtulich refused. Instead, he filed the Petition in this case on June 7, 2016. 

Filipkowska, her new husband, and AW now resided in New Jersey. AW attends school there; she excels in her education and was enrolled in several activities, including swimming and tennis. She had several friends in the United States, as well as a dog and a cat. While she spoke basic Polish, she did not read or write in that language. She preferred to remain in the United States but lacked the legal status that allows her to do so. 


The parties agreed that until Filipkowska brought AW to the United States on June 24, 2013, AW’s habitual residence was Poland. The Court credited Wtulich’s testimony in general, and in particular his assertion that he did not consent to AW remaining in the United States indefinitely. The court found that the parties’ last shared intent was for AW to return from her summer 2013 vacation in the United States and reside in Poland.  The court had to consider whether, notwithstanding the parents’ intent, “the evidence points unequivocally to the conclusion that the child has become acclimatized to his new surroundings and that his habitual residence has consequently shifted.” Gitter, 396 F.3d at 133. A fair reading of the record compelled the conclusion that AW’s attachments were all in the United States. The latter finding, however, was in tension with the Convention’s objective “to dissuade parents ... from engaging in gamesmanship with a child’s upbringing in order to secure an advantage in an anticipated custody battle.” Gitter, 396 F.3d at 134. Indeed, “courts should be ‘slow to infer’ that the child’s acclimatization trumps the parents’ shared intent” because “[p]ermitting evidence of acclimatization to trump evidence of earlier parental agreement could ‘open children to harmful manipulation when one parent seeks to foster residential attachments during what was intended to be a temporary visit.’” Id. (quoting Mozes v. Mozes, 239 F.3d 1067, 1079 (9th Cir. 2001)); see also Mota v. Castillo, 692 F.3d 108, 116 (2d Cir. 2012) (“It would frustrate the objectives of the Convention if a parent or guardian could secure an advantage in an anticipated custody dispute merely by whisking the child away to a foreign land, and retaining her there long enough to amass evidence of the child’s acclimatization to the new location.”) (citing Gitter, 396 F.3d at 134). While considering evidence of acclimatization makes sense where it occurred during a period of shared parental intent about a child’s residence, doing so where the acclimatization occurs only as a result of one parent’s unilateral decision frustrates the Convention’s purpose. See Mohácsi v. Rippa, 346 F. Supp. 3d 295, 313 (E.D.N.Y. 2018) (collecting cases); Ordonez v. Tacuri, 2009 WL 2928903, at *6 n. 8 (E.D.N.Y. Sept. 10, 2009) (“[I]t would be inappropriate to consider the period of time after the alleged wrongful removal in the acclimatization analysis, as this could reward the [allegedly] abducting parent for the time during which the child was [allegedly] wrongfully retained or removed.”). Accordingly, the court considered evidence of AW’s acclimatization only to the extent it occurred between her arrival in the United States in June 2013 and May 2014, when Filipkowska told Wtulich that she intended to retain AW in the United states. AW began that period accustomed to living in Poland, where she had habitually resided for her entire life. Over the course of the next eleven months, she attended kindergarten for an entire school year. There was no additional cognizable evidence of her acclimatization. Thus, considering both parental intent and acclimatization, it concluded that AW’s habitual residence was in Poland.

There were no judicial or administrative decisions or legally binding agreements defining Wtulich’s or Filipkowska’s rights of custody. However, they agreed that each has parental authority and that Wtulich’s permission was necessary for AW to obtain a passport. Wtulich exercised his rights at the time of the alleged wrongful retention. Prior to AW’s vacation to the United States, He exercised his parental authority by granting permission for her to obtain a passport. Indeed, Filipkowska does not dispute that Wtulich exercised his rights of custody over AW. Thus, Filipkowska’s retention of AW in the United States, absent Wtulich’s consent, constituted a breach of Wtulich’s custody rights. See In re Skrodzki, 642 F. Supp. 2d 108, 114-115 (E.D.N.Y. 2007). The court found that Wtulich established a prima facie case of wrongful retention under the Convention.

Filipkowska argued that the court should dismiss the Petition because Wtulich filed it more than a year after she removed AW to the United States, and because AW was now settled in her new environment. The court held that although Wtulich did not file the Petition within one year of the wrongful retention, AW was not sufficiently settled in the United States to defeat his right under the Convention to her repatriation to her habitual place of residence in Poland. 

Wtulich filed the petition in June 2016. He knew that Filipkowska had decided to retain AW permanently in the United States, in violation of his parental rights, no later than May 2014 when Filipkowska sent him an email announcing her decision. Therefore, the court had to consider whether AW had become settled in her new environment.  Neither the Convention nor ICARA defines what it means for a child to be “settled” or prescribes a method for establishing it, but courts in this circuit understand that a child is settled if she “has significant emotional and physical connections demonstrating security, stability, and permanence in [her] new environment.” Lozano, 697 F.3d at 56. Relevant factors include the following: (1) the age of the child; (2) the stability of the child’s residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent’s employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent. The court noted that the weight afforded a child’s immigration status “will inevitably vary for innumerable reasons, including: the likelihood that the child will be able to acquire legal status or otherwise remain in the United States, the child’s age, and the extent to which the child will be harmed by her inability to receive certain government benefits.” Weighing all of the circumstances, the court found that Filipkowska had not established that AW was settled in this country.


Filipkowska next asserted that Wtulich consented to AW’s retention in the United States. She also contended that Wtulich’s application for access to AW demonstrated further evidence of his acquiescence. The court did not infer from the emails Filipkowska cited that Wtulich was willing to allow AW to remain in the United States. It credited his testimony that be wrote those emails to placate Filipkowska rather than risk having her hide AW from him. Similarly, Wtulich’s initial attempt, in filing the ICARA Application, to secure access to AW rather than her repatriation did not establish his acquiescence within the Convention’s meaning. See Friedrich, 78 F.3d at 1070 (“Each of the words and actions of a parent during the separation are not to be scrutinized for a possible waiver of custody rights.”).  To establish her acquiescence defense, Filipkowska had to show “either: an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time.” In re Koc, 181 F. Supp. at 151 (quoting Friedrich, 78 F.3d at 1070). Although Wtulich wrote in his Application that he would “respect [Filipkowska’s] decision to stay in the [United States], subject ... to [his] rights ... to maintain meaningful contacts with [his] daughter,” he started by noting his desire for AW “to continue to live in Poland.” Wtulich also testified that he did not draft the Application’s text himself or check the box on the form’s front page selecting a remedy, but that his counsel did so. After counsel filed the Application, Wtulich asked him to file a petition for return instead, to no avail. The court found Wtulich’s testimony credible and concluded that the record does not establish that he ever intended to allow Filipkowska to retain AW in this country permanently. The Application was not “a convincing written renunciation of rights” and the record did not otherwise reveal that Wtulich demonstrated “a consistent attitude of acquiescence over a significant period of time.” In re Koc, 181 F. Supp. 2d at 151 (quoting Friedrich, 78 F.3d at 1070). The court found that Filipkowska failed to establish the defense of acquiescence.

Filipkowska raised a third defense that AW preferred to remain in the United States. The Convention “permits a court to ‘refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of [her] views.’ ” Blondin IV, 238 F.3d at 166 (quoting Convention art. 13). The Court interviewed AW at the end of the trial, at which time she was nine years old. Her English was excellent. When I asked if she understood the nature of what was going on, she responded, “[Wtulich] wants to take me to Poland and I don’t want to go there. And my Mom doesn’t want me to go there either.”. She further indicated that she did not remember much about her life in Poland. She also stated that the she would rather the visits be in the United States, because “it’s more fun here. I like it better here than Poland.”  The court found
 that while AW was articulate, she was not sufficiently mature to give thoughtful consideration to its questions. It found that AW has not yet attained an age and a degree of maturity that requires the court to accede to her objection. It also found that while her view can and does weigh in the balance, it did not outweigh Wtulich’s right to her return. See Poliero v. Centenaro, 2009 WL 2947193, at *21 (E.D.N.Y. Sept. 11, 2009) (declining to give weight to the considered objections of thirteen- and nine-year-old children). 

Asumadu v Baffoe, --- Fed.Appx. ----, 2019 WL 1373306 (Mem) (9th Cir., 2019) [Canada] [Article 18] [petition granted]

In Asumadu v Baffoe, --- Fed.Appx. ----, 2019 WL 1373306 (Mem) (9th Cir., 2019) the district court ordered that the parties’ son, K.A.A., be returned to Mr. Asumadu in Canada, while allowing their daughter, A.K.A., to remain in the United States with Ms. Baffoe. Reviewing the district court’s factual findings for clear error, the Ninth Circuit affirmed. It found that the district court did not clearly err in finding that the parties had no “shared, settled intent” for Canada to become A.K.A.’s habitual residence. The district court, crediting Ms. Baffoe’s testimony that her move to Canada with A.K.A. was intended as a trial period to determine whether Mr. Asumadu would continue to abuse her, found that “there was never a shared intent for A.K.A. to live anywhere other than with [Ms.] Baffoe.” It also found that the district court did not clearly err in finding that the parties did have a “shared, settled intent” for Canada to become K.A.A.’s habitual residence. Murphy, 764 F.3d at 1150. It did not decide whether the district court erred in not excusing—due to Ghanaian cultural norms—Ms. Baffoe’s failure to use legal processes to ensure K.A.A.’s return to the United States, because it relied on other evidence too in reaching its determination about the parties’ intent.  The Court declined to decide whether or under what circumstances abuse of a spouse may create a grave risk of harm to the spouse’s child because A.K.A. was to remain in the United States with Ms. Baffoe while K.A.A. would return to Canada with Mr. Asumadu. Ms. Baffoe indicated that she did not otherwise plan to return to Canada—given the parties will not be living together, there was no risk of spousal abuse or resulting harm to the children. Lastly, it held that the district court did not abuse its discretion by not implementing Article 18 of the Hague Convention to order A.K.A.’s return to Canada. Such a decision is discretionary, and the record did not show that equitable considerations required such a return. See In re B. Del C.S.B., 559 F.3d 999, 1015 (9th Cir. 2009) (“We decline to remand the case to the District Court for a discretionary determination under Article 18 as to whether Brianna should be returned to Mexico.”).

Asumadu v. Baffoe, 2019 WL 1531793 (D. Arizona, 2019) [Canada] [necessary expenses] [clearly inappropriate]

         In Asumadu v. Baffoe, 2019 WL 1531793 (D. Arizona, 2019) the district court denied Petitioner Akwasi Damoah Asumadu’s motion for necessary expenses and granted Respondent Hannah Boahemaa Baffoe’s motion for review of the Clerk of Court’s judgment on taxation of costs as modified. Asumadu sought recovery of “necessary transportation expenses” pursuant to 22 U.S.C. § 9007(b)(3):  (1) $1,201.73 for transportation and lodging related to the July 31, 2018 bench trial, and (2) $674.31 for transportation and lodging related to K.A.A.’s return to Canada. The Court noted that in relevant part, ICARA provides that: Any court ordering the return of a child...shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including...transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. 22 U.S.C. 9007(b)(3). ICARA “contemplates the use of such awards to restore a petitioner to the financial position he or she would have been in had there been no removal or retention, as well as to deter violations of the Hague Convention.” Aguilera v. DeLara, No. 14-01209-PHX-DGC, 2014 WL 4204947, *1 (D. Ariz. Aug. 25, 2014). As the respondent, Baffoe had the burden of establishing that an award of fees and costs would be clearly inappropriate under the circumstances. Baffoe asserted that an assessment of the sought-after expenses against her was clearly inappropriate because her actions were a result of Asumadu’s physical abuse, and that any assessment of expenses would cause her financial hardship. Baffoe also argued that some of the sought-after expenses were unnecessary or excessive.  The Court pointed out that generally, in 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. Souratgar (citing cases). For example, awarding expenses is clearly inappropriate where the prevailing petitioner physically abused the respondent, see, e.g., Aguilera, 2014 WL 4204947, at *1-2, because “a [parent] should not be required under the threat of monetary sanctions to choose between continued abuse (mental as well as physical) and separation from a young child[.]” Guaragno v. Guaragno, No. 09-CV-187, 2010 WL 5564628, at *3 (N.D. Tex. Oct. 19, 2010), adopted by 2011 WL 108946 (N.D. Tex. Jan. 11, 2011). The Court previously found that “the description of events provided by Baffoe is consistent with her having been the victim of some form of domestic violence,” and that “Asumadu likely struck Baffoe on more than one occasion.” Under the circumstances, the Court found that Baffoe “was faced with a cruel dilemma, whether to continue to receive the physical abuse...from [Asumadu], or retreat and suffer from the separation of the child.” Guaragno, 2010 WL 5564628, at *3. Accordingly, it held that an award of expenses would be clearly inappropriate in this case.

Calixto v Lesmes, 2019 WL 501068 (M.D. Florida, 2019)[Colombia] [Report and Recommendation on Remand] [Habitual Residence]

          In Calixto v Lesmes, 2019 WL 501068 (M.D. Florida, 2019) after an evidentiary hearing, the Magistrate Judge issued a Report and Recommendation (R&R) recommending that Mr. Calixto’s petition be denied because both parties shared the intent for the United States to be M.A.Y.’s habitual residence. Subsequently, the Court adopted the R&R and denied Mr. Calixto’s petition. On appeal, the Eleventh Circuit found unresolved factual issues, which prevented proper determination of M.A.Y.’s habitual residence. The Eleventh Circuit retained jurisdiction but remanded the case for further factual findings. On remand, the Court referred the case for a supplemental R&R. In remanding the case, the Eleventh Circuit identified specific factual issues for this Court to resolve: (1) the status of the relationship between Mr. Calixto and Ms. Lesmes in 2015; (2) the circumstances surrounding the travel consent form executed by Mr. Calixto and M.A.Y.’s departure from Colombia; and (3) ultimately “whether Mr. Calixto’s intent to change M.A.Y.’s habitual residence was conditioned upon his joining Ms. Lesmes and M.A.Y. in the United States or whether that intent was vitiated once Mr. Calixto was unable to come to the United States.” Additionally, the Eleventh Circuit stated that the Court should address “whether the evidence presented at the hearing provides either of the alternative means of establishing habitual residence,” which are set forth in Ruiz v. Tenorio, 392 F.3d 1247, 1254 (11th Cir. 2004). The Magistrate Judge noted that under the Hague Convention, Mr. Calixto must establish the facts in support of his petition by a preponderance of the evidence. 22 U.S.C. § 9003(e)(1). He found that Mr. Calixto had not established the facts supporting his petition by the preponderance of the evidence.

The first question the Court had to resolve is the status of the relationship between Mr. Calixto and Ms. Lesmes in 2015. The Court, finding the testimony of Ms. Lesmes to be honest and credible, found that the relationship ended in August 2015 and did not resume. The next factual issue for consideration concerned the circumstances surrounding the travel consent form executed by Mr. Calixto in November 2015 and M.A.Y.’s departure from Colombia. The court found that the travel consent form indicated Mr. Calixto’s agreement that M.A.Y. would move to the United States, and the return date was indication that Mr. Calixto wanted M.A.Y. to visit him if he could not gain entry into the United States. The above findings laid the foundation for the ultimate question on remand: whether Mr. Calixto’s intent to change M.A.Y.’s habitual residence was conditioned upon his joining Ms. Lesmes and M.A.Y. in the United States. In accordance with the above findings, the court found that Mr. Calixto shared an unconditional intent to change M.A.Y.’s habitual residence to the United States, regardless of his ability to enter the United States. Because the Court found that Mr. Calixto expressed an unconditional consent for M.A.Y. to move to the United States, and because the Eleventh Circuit did not disturb this Court’s previous findings regarding acclimatization, M.A.Y.’s habitual residence changed to the United States.

          The Eleventh Circuit also asked the Court to consider “whether the evidence presented at the hearing provides either of the alternative means of establishing habitual residence.” In Mozes v. Mozes, the Ninth Circuit addressed the difficult question of “when evidence of acclimatization should suffice to establish a child’s habitual residence, despite uncertain or contrary parental intent.” 239 F.3d at 1078. After thorough discussion of the goals of the Hague Convention and the flexibility of children, the court acknowledged that “a child can lose its habitual attachment to a place even without a parent’s consent.” Adopting the reasoning of the Ninth Circuit, the Eleventh Circuit noted in Ruiz v. Tenorio that when there is no shared settled intent on the part of the parents to abandon the child’s prior habitual residence, a court should find a change in habitual residence if the objective facts point unequivocally to a new habitual residence, or if the court could “say with confidence that the child’s relative attachments to the two countries have changed to the point where requiring a return to the original forum would now be tantamount to taking the child out of the family and social environment in which its life has developed. “Ruiz (quoting Mozes, 239 F.3d at 1081). Thus, to answer the final question on remand, the Court had to consider—if Ms. Lesmes and Mr. Calixto did not share intent to change M.A.Y.’s habitual residence—whether the facts unequivocally pointed to a new habitual residence, or if the Court could say with confidence that sending M.A.Y. back to Colombia would be tantamount to taking her out of the family and social environment in which her life had developed. The parties agreed that the relevant time period to assess the M.A.Y.’s habitual residence wass “‘immediately before the removal or retention.’” See Fuentes-Rangel v. Woodman, 617 F. App’x 920, 921 (11th Cir. 2015).

          The critical question was whether M.A.Y.’s habitual residence had changed to the United States by November 2016. To answer that question, the Court, as instructed by the Eleventh Circuit, considered “whether the evidence presented at the hearing” established a change in habitual residence. As discussed in the prior R&R, a change in habitual residence, even with the shared intent of the parents, requires some acclimatization to the new residence. Ruiz, 392 F.3d at 1253 (citing Mozes, 239 F.3d at 1078). To that end, the Court found sufficient evidence of acclimatization to effect a change in habitual residence with the shared intent of M.A.Y.’s parents. But without shared intent of the parents, the Court must be confident in a high level of acclimatization. “Despite the superficial appeal of focusing primarily on the child’s contacts in the new country ... courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned.” Mozes, 239 F.3d at 1079. “The Convention is designed to prevent child abduction by reducing the incentive of the would-be abductor to seek unilateral custody over a child in another country. The greater the ease with which habitual residence may be shifted without the consent of both parents, the greater the incentive to try.” Additionally, “[c]hildren can be remarkably adaptable and form intense attachments even in short periods of time.”  In considering the evidence presented at the evidentiary hearing, the Court could not say that the facts unequivocally pointed to a new habitual residence. The Court previously identified numerous factors showing M.A.Y.’s acclimatization in the United States, including religious services, friends and family, and the beginning of M.A.Y.’s formal education.  However, M.A.Y. also participated in many similar activities in Colombia, the country where she was born and spent the early years of her life, including family functions, religious events, and early schooling. M.A.Y. also had numerous family members in Colombia.  M.A.Y.’s contacts in the United States were the type of routine contacts from which a court should be “slow to infer” a change in habitual residence. See Mozes, 239 F.3d at 1067. Mozes made clear that a great weight should be attributed to the intent of the parents over evidence of acclimatization. Although M.A.Y. developed strong ties to the United States, the evidence showed ties to Colombia as well. The evidence did not establish that M.A.Y.’s acclimatization to the United States was so complete that serious harm could be contemplated by a return to Colombia. Thus, although M.A.Y. had acclimatized to the United States sufficient to change her habitual residence with her parents’ intent, the record did establish the high level of acclimatization necessary to overcome a lack of shared intent. Therefore, it was recommended that the Court find that M.A.Y.’s habitual residence changed to the United States based on her parents shared, unconditional intent. If the Court finds that M.A.Y.’s parents did not share an unconditional intent, it was recommended that the Court not find a change in M.A.Y.’s habitual residence.

Quinn v. Quin, 2019 WL 1460928, (W.D. Missouri, 2019) [Japan] [Federal & State Judicial Remedies] [Bifurcation of trial] [Discovery]

          In Quinn v. Quin, 2019 WL 1460928, (W.D. Missouri, 2019) on February 2, 2019, Petitioner filed her Verified Complaint for the return of her son L.R.Q. Petitioner and Respondent were the biological parents of the Child, who was born in Japan in April 2014. Petitioner resided in Tokyo, Japan. Respondent resided in Mount Vernon, Missouri. Petitioner and the Child came to the United States to visit Respondent in August 2018. On October 15, 2018, Petitioner returned to Japan without the Child for a medical procedure. At that time, Respondent agreed to send the Child back to Japan on November 6, 2018; however, Respondent failed to return the Child to Petitioner in Japan on November 6, 2018, and at any point thereafter.

          On February 28, 2019, Respondent filed his Answer and Affirmative Defenses to the Verified Complaint.  Respondent alleged in his Answer and Affirmative Defenses that if the Child were sent back to Japan at this time, it would “create a grave risk that would expose [the Child] to physical or psychological harm or otherwise place the child in an intolerable situation due to Petitioner’s history of abuse and instability” and “Petitioner’s extensive history and frequency of mental illness, and her need for ongoing treatment.”

          Petitioner presented evidence through Petitioner’s medical records, Petitioner’s testimony, and Respondent’s testimony that Petitioner and Respondent were married in Japan on September 5, 2014. Respondent had recently indicated to Petitioner that he intended to file for divorce. Petitioner and Respondent lived together in Japan from September 2013 through May 2018; thereafter, Respondent returned to the United States. Petitioner and Respondent were the biological parents of the Child, who was born in Japan in April 2014. Petitioner currently resided in Tokyo, Japan. Respondent currently resided in Mount Vernon, Missouri. Petitioner and the Child came to the United States to visit Respondent in August 2018. On October 15, 2018, Petitioner returned to Japan without the Child to seek medical treatment. At that time, Respondent agreed to send the Child back to Japan; however, Respondent failed to return the Child to Petitioner in Japan. As to Respondent’s Affirmative Defenses, evidence was presented through Petitioner’s medical records, Petitioner’s testimony, and Respondent’s testimony that  beginning in April of 2015, and to as recently as November 24, 2017, Petitioner was hospitalized voluntarily and involuntarily to inpatient psychiatric facilities during the following dates: April 6, 2015 to April 13, 2015,  April 24, 2015 to June 11, 2015,  July 24, 2015 to August 6, 2015, August 20, 2015 to September 4, 2015, October 23, 2015 to October 26, 2015, July 18, 2016 to August 4, 2016, August 12, 2016 to August 31, 2016, September 12, 2016 to November 4, 2016, and from October 21, 2017 to November 24, 2017 she was involuntarily admitted for 34 days after Petitioner “was talking to herself,” and during an argument with her husband, Petitioner threw “food and backpacks, etc. at her husband and started banging on her own chest...and called the police.” Petitioner’s mother advised police to “admit her to the hospital...I am afraid of her.” Upon hospitalization, Petitioner was kept in isolation for the first 16 days, kept in waist restraints for the first 9 days, and kept in both waist and arm restraints for the first 4 days.

          In response to Respondent’s Affirmative Defenses, Petitioner testified that her current treating physician was Dr. Nakanishi. Dr. Nakanishi was aware of Petitioner’s bipolar disorder and history of hospitalizations. Petitioner began seeing Dr. Nakanishi in January 2018, and she had appointments with Dr. Nakanishi every three weeks. Dr. Nakanishi provided a note, dated February 27, 2019, that Petitioner can care for her child despite her bipolar diagnosis.

          The Court Pointed out that to succeed on a “grave risk” defense, Respondent must prove by clear and convincing evidence that “there is a grave risk that [the Child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Convention, art. 13(b). “The gravity of a risk involves not only the probability of harm, but also the magnitude of the harm if the probability materializes.” Acosta v. Acosta, 725 F.3d 868, 876 (8th Cir. 2013). Article 13(b) recognizes two types of grave risk: (1) cases where a child is sent to a war zone or zone of famine or disease; or (2) cases involving serious abuse or neglect. Vasquez v. Colores, 648 F.3d 648, 650 (8th Cir. 2011). The party seeking to invoke the exception must show that the grave risk of harm is more than what would normally be expected when taking a child away from a parent and giving the child to another parent. Nunez v. Escudero v. Tice-Menely, 58 F.3d 374, 377 (8th Cir. 1995). To ensure that the child is adequately protected, the Article 13b inquiry must encompass some evaluation of the people and circumstances awaiting that child in the country of his habitual residence. See also Currier v. Currier, 845 F. Supp. 916, 923 (D.N.H. Mar. 16, 1994) (to determine grave risk, the court must evaluate the surroundings of the habitual residence and basic personal qualities of those located there).

          The Court indicated that it had minimal medical records concerning Petitioner’s visits with Dr. Nakanishi or any medical records after Petitioner’s discharge from the NTT Medical Center in November 2017. The Court was missing the crucial medical records of Petitioner for the most recent eighteen months. Before the Court can determine whether Petitioner presented a grave risk of danger to the Child, the Court had to review Petitioner’s medical records after her discharge from the NTT Medical Center to present date. The Hague Convention contemplates resolution of Hague Convention petitions within six weeks of their filing. See Convention art. 11). Here, while the Court understood the expeditious nature of Hague Convention petitions, the Court had to review Petitioner’s recent medical history to determine if the grave risk exception applied.

          The Court found that good cause existed to extend the determination on the merits of this matter. After careful consideration of the evidence, the Court required Petitioner’s mental health records beginning January 2018 through present date before the Court could determine whether the grave risk exception would apply to prevent the Child’s return to his habitual residence. Accordingly, Respondent’s request to bifurcate the trial and produce additional evidence was granted and Petitioner was ordered to provide the Court and Respondent with her medical records, or a sufficient summary, from November 2017 to present date;

Capalungan v Lee, 2019 WL 1330711(S.D. Ohio, 2019)[Australia] [Federal & State Judicial Remedies] [Summary Judgment] [Motion denied]

          In Capalungan v Lee, 2019 WL 1330711(S.D. Ohio, 2019) Petitioner and Respondent were the biological parents of EZL who was born on August 31, 2012 in the Philippines where he resided with Petitioner until January 22, 2016, when they moved to Australia. From January 22, 2016 to February 22, 2017, EZL lived with Petitioner in Australia. Since prior to EZL’s birth, Respondent has resided in the United States. During his time in Australia, EZL attended 3 Apple’s Childcare and Kindergarten five days per week from 7:30 a.m. until 5:00 p.m. EZL also attended church and Sunday school, visited museums and amusements parks, went to the movies, and enrolled in swimming classes. Petitioner and EZL lived with Petitioner’s younger sister and niece in Melbourne, Australia. In early 2017, the parties began discussing Petitioner’s career plans. Petitioner was working to complete her training for a job as a nurse care manager.). The parties discussed Petitioner and EZL traveling to the United States so that Respondent could care for EZL and apply for his permanent residency while Petitioner returned to Australia to complete her training. Petitioner and EZL traveled to the United States on or around February 22, 2017. Shortly thereafter, the Petitioner returned to Australia to complete her training program. The parties’ relationship then deteriorated. In December 2017, Petitioner traveled to the United States to take custody of EZL and return to Australia. She requested that Respondent provide her with EZL’s passport so that she could return to Australia with him. Respondent refused, and Petitioner returned to Australia without EZL. (Id.). The parties’ relationship deteriorated even further leading to the filing of this action.

          Respondent moved for summary judgment on three different grounds: (1) there was no wrongful retention because the minor child’s habitual residence was and is the United States; (2) the Petition was filed more than one year after the alleged wrongful retention, and EZL was now settled in his new environment; and (3) Petitioner consented to EZL living in the United States with Respondent.

          The Court observed that habitual residence marks the place where a person customarily lives.” Taglieri, 907 F.3d at 407. This is a question of fact. Id. at 408 (collecting cases). When determining a child’s habitual residence, the Sixth Circuit applies one of two standards depending on the facts of the case. “The primary approach looks to the place in which the child has become ‘acclimatized.’ (quoting Ahmed v. Ahmed, 867 F.3d 682, 687 (6th Cir. 2017)). “The second approach, a back-up inquiry for children too young or too disabled to become acclimatized, looks to ‘shared parental intent.’” Taglieri, 907 F.3d at 407. *3 When applying the acclimatization standard: 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. 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. Taglieri, 907 F.3d at 408 (internal citations, alterations, and quotation marks omitted). This analysis is guided by five principles: First, habitual residence should not be determined through the technical rules governing legal residence or common law domicile. Instead, courts should look closely at the facts and circumstances of each case. Second, because the Hague Convention is concerned with the habitual residence of the child, the court should consider only the child’s experience in determining habitual residence. Third, this inquiry should focus exclusively on the child’s past experience. Any future plans that the parents may have are irrelevant to our inquiry. Fourth, a person can have only one habitual residence. Finally, a child’s habitual residence is not determined by the nationality of the child’s primary care-giver. Only a change in geography and the passage of time may combine to establish a new habitual residence. Robert v. Tesson, 507 F.3d 981, 989 (6th Cir. 2007).

          To determine EZL’s habitual residence, the Court must first determine when the alleged wrongful retention began. See McKie v. Jude, No. CIV.A. 10-103-DLB, 2011 WL 53058, at *6 (E.D. Ky. Jan. 7, 2011) When determining the date the alleged wrongful retention began, “courts look to the last date upon which it is undisputed that the child was in the new country with both parents’ consent.” Djeric v. Djeric, No. 2:18-CV-1780, 2019 WL 1046893, at *3 (S.D. Ohio Mar. 5, 2019). “Specifically, courts look to the date when the non-abducting parent was truly on notice that the abducting parent was not going to return the child.” The parties disputed when the alleged wrongful retention occurred. There was a genuine issue of material fact as to when the wrongful retention began. The Court therefore had to determine EZL’s habitual residence in the time period prior to the alleged wrongful retention. Petitioner has presented evidence that EZL resided in Australia for more than a year prior to arriving in the United States, from January 2016 to February 2017. During that time, EZL attended daycare and kindergarten five days per week, attended church, visited museums and amusements parks, went to the movies, enrolled in swimming classes, and visited extended family. Further, Petitioner and EZL lived with Petitioner’s younger sister and niece in Melbourne, Australia, and EZL developed a close relationship with his aunt and cousin with whom he participated in a variety of extracurricular activities. From a child’s perspective, these are hallmarks of a habitual residence. See Taglieri, 907 F.3d at 408. The question was whether EZL’s habitual residence changed when he resided in the United States from February 2017 to the date of the alleged wrongful retention in January 2018.² See Robert, 507 F.3d at 989 (“Only a change in geography and the passage of time may combine to establish a new habitual residence.” Petitioner offered evidence that EZL developed strong ties to Australia in 2016 and 2017 prior to his arrival in the United States. In Petitioner’s view, Australia was EZL’s habitual residence, and his temporary visit to the United States did nothing to alter this fact. In response, Respondent offered evidence that, after EZL arrived in the United States in February 2017, he attended school and participated in extracurricular activities prior to the alleged wrongful retention. According to Respondent this demonstrated that EZL was acclimatized to the United States at the time of the alleged wrongful retention, and the United States was, therefore, EZL’s habitual residence. Based on the available evidence, there was a genuine issue of material fact as to whether EZL’s habitual residence was Australia or the United States prior to the alleged wrongful retention in January 2018. The Court, therefore, denied summary judgment as to this issue.

          Respondent argued that Petitioner did not commence these proceedings until more than a year after the alleged wrongful retention and that EZL is now well-settled in the United States.

“Article 12 establishes a one-year limitations period circumscribing the power of a petitioned court. If the petitioner initiated proceedings within a year of the child being wrongfully removed or retained, the court must order the child’s return in the absence of some other exception or defense.” Blanc v. Morgan, 721 F. Supp. 2d 749, 762 (W.D. Tenn. 2010). “If a year or more elapsed between the wrongful removal or retention and petitioner’s initiation of proceedings, the court need not order the child’s return if the respondent establishes by a preponderance of the evidence that the child is ‘now settled in its new environment.’” Id. (quoting Hague Convention, art. 12). Because there was a genuine issue of material fact as to the date of the alleged wrongful retention, there was a genuine issue of material fact as to whether the well-settled defense was potentially applicable. Petitioner commenced these proceedings on October 23, 2018. If, as Petitioner argued, the wrongful retention occurred on January 5, 2018, the Petition was filed well within Article 12’s one-year time frame, and the well-settled defense would not apply. See Hague Convention, art. 12. If, as Respondent argued, the wrongful retention occurred in July 2017, the Petition was not filed within Article 12’s one-year time frame, and the well-settled defense could potentially apply. The Court therefore denied summary judgment as to this issue.

          Respondent also contended that Petitioner consented or acquiesced to EZL remaining in the United States. He emphasized that Petitioner voluntarily brought EZL to the United States and executed legal documents allowing the child to stay in the United States.  “Article 13(a) of the Hague Convention provides a statutory defense against the child being returned to the country of habitual residence if defendant proves by a preponderance of the evidence that plaintiff consented to or subsequently acquiesced in the child’s removal or retention.” Guevara v. Soto, 180 F. Supp. 3d 517, 528 (E.D. Tenn. 2016). “‘Consent’ and ‘acquiescence’ are not defined in the Hague Convention,” id. (citing Friedrich, 78 F.3d at 1069 n.11), and courts treat them as distinct concepts,. “The consent defense involves the petitioner’s conduct prior to the contested removal or retention, while acquiescence addresses whether the petitioner subsequently agreed to or accepted the removal or retention.” Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005) (citing Gonzalez-Caballero v. Mena, 251 F.3d 789, 794 (9th Cir. 2001)). “[A]acquiescence under the Convention requires either: an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time.” Friedrich, 78 F.3d at 1070. “Unlike acquiescence, a petitioner’s informal statements or conduct can manifest consent.” Diagne v. Demartino, No. 2:18-CV-11793, 2018 WL 4385659, at *8 (E.D. Mich. Sept. 14, 2018) (citing Baxter, 423 F.3d at 371).

          Respondent was not entitled to summary judgment on either defense. As an initial matter, the Court noted that consent and acquiescence are affirmative defenses on which Respondent bears the burden of proof. Respondent cited no authority or evidence in support of his consent or acquiescence defenses. The Court reviewed the record and concluded that there is a genuine issue of material fact as to Respondent’s consent and acquiescence defenses. Similarly, there was a genuine issue of material fact as to whether Petitioner acquiesced to Respondent’s alleged wrongful retention of EZL. The Court denied summary judgment as to this issue accordingly.

Quintero v de Loera Barba, 2019 WL 1386556 (W.D. Texas, 2019)[Mexico] [Habitual Residence] [Petition granted]

          In Quintero v de Loera Barba, 2019 WL 1386556 (W.D. Texas, 2019) the court granted the petition of David Pinto Quintero for the return of his four children to Mexico.  

          A few months after getting married in Mexico City, Pinto and de Loera moved to Colorado so Pinto could pursue post-graduate education. While in Colorado, de Loera bore two children, M.A.P.D.L.-1 (now thirteen years old) and A.M.P.D.L. (now ten). Six years later, the family moved to Guadalajara, Mexico, where they had Z.D.P.D.L. (now eight). After fifteen months in Guadalajara, the family moved back to Mexico City. The couple had their fourth child, M.A.P.D.L.-2 (now seven) a year later.

          For the next four years, the family lived alongside Pinto’s parents and other relatives in Mexico City. Though Pinto and de Loera briefly considered relocating to the Pintos’ house in Florida—even using its address to apply for credit cards and to obtain a driver’s license, , and exploring potential schools for their children, see—they ultimately decided not to move, partly due to their children’s relationship with their grandparents, who saw the children multiple times each week and paid for their education.  In October 2015, Pinto and de Loera separated. At the time, they informally agreed to share custody: Pinto would take the kids to school three days a week and would further spend every other weekend with them. Six months later, Pinto filed for divorce. After retaining counsel, consenting to jurisdiction, and agreeing the family would be based in Mexico City, Pinto and de Loera entered into a provisional decree giving primary custody to de Loera, awarding visitation rights to Pinto, and prohibiting either parent from removing the children from Mexico City without the other’s permission. A year into that provisional decree, de Loera decamped with the children to live eleven hours away in Nuevo Vallarta. Pinto went to court to defend his parental rights. When de Loera responded with allegations of abuse, the Mexican judge interviewed each child in camera to test her claims. But none corroborated de Loera’s account, instead describing their father as “nice, good, [and] caring,” noting “they [we]re happy to see him and they would love to stay and sleep at his home,” and adding “that they love him very much and that they do want to see him.” They expressly denied ever being “beaten or told rude words.” In part based on these representations, in November 2017 the Mexican trial court ordered de Loera to return the children to Mexico City. But de Loera refused to comply, and continued to frustrate Pinto’s attempts to visit his children in Nuevo Vallarta. Both Pinto and de Loera appealed.

          While that case was pending, de Loera brought a separate action against Pinto and his parents that accused them of domestic and “economic” violence. A second judge interviewed the children in camera to assess these new allegations. And he found their testimony wholly noncredible: it was based solely on what “their mother told them,” and the youngest child admitted de Loera coached her testimony. The judge rejected all of de Loera’s claims.

          On May 21, 2018, a three-judge panel reversed the November 2017 child custody order. Concluding de Loera caused the children “serious psycho-emotional harm,” the Mexican appellate court awarded Pinto primary custody, limited de Loera to visitation rights, and threatened de Loera with arrest if she did not return the children to Mexico City within twenty days after their school term ended. The appellate court required de Loera to allow Pinto to visit and communicate with his children, and prohibited either parent from removing the children from Mexico without the other’s consent. Despite de Loera’s repeated—and unsuccessful—collateral attacks, that order became final. The next week, armed with the Mexican appellate court’s final order, Pinto traveled to Nuevo Vallarta to visit his children. But he couldn’t find them. School administrators reported they had been missing all week, and the house where they lived had been abandoned. Pinto searched for his children to no avail. On January 30, 2019—eight months after the Mexican appellate court order—Pinto’s cousin thought he spotted de Loera picking up the children at a San Antonio Montessori school. Subsequent investigation confirmed de Loera secreted the children to San Antonio, where they lived in a house held by a corporation controlled by her mother. On February 19, 2019, considering the “substantial risk that upon being notified of this proceeding, [de Loera] may remove the Children from the Court’s Jurisdiction,” Chief Judge Garcia granted Pinto’s ex parte application for a temporary restraining order (TRO) and for a writ of execution to take physical custody of the children. The next day—510 days since he last saw them—Pinto was reunited with his four children.

          The Court denied de Loera’s successive requests to appoint an attorney or a guardian ad litem for the children. Children do not generally participate in Hague Convention proceedings, and this case lacked the exceptional circumstances where a guardian ad litem would assist the court, particularly given this case’s expedited posture—a posture further accelerated by de Loera’s refusal to extend the TRO. See Chafin v. Chafin, 568 U.S. 165, 179 (2013) (“[C]ourts can and should take steps to decide these [Hague Convention] cases as expeditiously as possible, for the sake of the children who find themselves in such an unfortunate situation.”); cf. Sanchez v. R.G.L., 761 F.3d 495, 507-08 (5th Cir. 2014). And the Court denied de Loera’s request for the Court to individually interview each child in camera to consider whether equity compelled modifying the TRO, though the Court agreed to interview the thirteen-year-old in camera to ascertain the applicability of the Hague Convention’s mature-child-objection exception.

          The Court rejected de Loera’s argument that the children’s country of habitual residence should be the United States, based on the family’s short-lived plan to relocate to Florida. Determining a child’s country of habitual residence turns on “the parents’ shared intent or settled purpose regarding their child’s residence.” Larbie, 690 F.3d at 310. In cases like this one, where “the child is too young to decide residency on the child’s own,” the last place “ ‘both parents intended for the child’ ” to live controls absent “ ‘objective facts point[ing] unequivocally to [an alternative] conclusion.’ ” Cartes v. Phillips, 865 F.3d 277, 282-83 (5th Cir. 2017) (quoting Delgado v. Osuna, 837 F.3d 571, 578 (5th Cir. 2016)). Under this test, the children habitually resided in Mexico. A preponderance of evidence showed Pinto and de Loera most recently agreed to locate their family in Mexico City. For starters, it was the last place they lived as husband and wife, raising their family and giving birth to their fourth child over a five-year period. Because the children habitually resided in Mexico, and because de Loera admitted removing and retaining her children in the United States, Pinto proved the first prong of wrongful removal. Pinto had custody rights under the Mexican trial court’s November 2017 order, or even under the basic patria potestad authority de Loera concedes he would have under Mexican law. Pinto showed his children’s wrongful removal contravened his custody rights. Pinto cleared the final and “relatively easy” determination that he would have exercised his parental rights. Larbie, 690 F.3d at 307.  After all, “courts ‘liberally find’ that rights of custody have been exercised unless evidence demonstrates ‘acts that constitute clear and unequivocal abandonment of the child.’” The record supported Pinto’s claim that he exercised his rights under the provisional agreement, and that de Loera repeatedly thwarted his efforts to exercise his rights under the November 2017 and May 2018 orders. 

          De Loera tried to invoke the Convention’s mature-child-objection and grave-risk exceptions. The Fifth Circuit instructs both should “be applied narrowly,” and only where return does not further the Convention’s twin aims: “restor[ing] the pre-abduction status quo” and “deter[ring] parents from crossing borders in search of a more sympathetic court.” England v. England, 234 F.3d 268, 270-72 (5th Cir. 2000) . Since de Loera failed to carry the applicable burdens, the Court need not even consider their applicability. De Loera had to prove each element of the mature-child-objection exception by a preponderance of the evidence. See § 9003(e)(2)(B). Specifically, de Loera had to show that the children had “attained an age and degree of maturity at which it is appropriate to take account of [their] views,” and that they “object[ ] to being returned.” Rodriguez v. Yanez, 817 F.3d 466, 474 (5th Cir. 2016). The Fifth Circuit requires their objection be more than “a mere preference” not to return—the child must affirmatively claim “living in that country would be unacceptable.” Rodriguez, 817 F.3d at 477. What’s more, “[a] child’s objection to being returned may be accorded little if any weight if the court believes that the child’s preference is the product of the abductor parent’s undue influence over the child.” The Convention sets no explicit threshold age for determining a child’s maturity, leaving courts to undertake a fact-intensive, case-by-case inquiry. Some Fifth Circuit courts have considered a thirteen-year-old sufficiently mature, see, e.g., Vasconcelos, 512 Fed. App’x at 407, but others have not, see, e.g., England, 234 F.3d at 272.

          Here, a preponderance of evidence suggested that no child had attained enough maturity to persuade the Court their views should control. The Court reaches this conclusion after interviewing the thirteen-year-old in camera, hearing testimony from each child’s teacher, and reviewing various writings by each child. Because de Loera failed to prove her children are mature enough for the Court to account for their views, the Court did not consider the mature-child-objection exception.

          De Loera's own testimony undermined the grave risk of harm exception. De Loera described the Pinto family’s Mexico City neighborhood as one of the grandest and most exclusive in the world. And two Mexican courts—to which this Court owed comity—already rejected any suggestion that either Pinto or his family abused the children.