Sundberg v Bailey, 765 Fed.Appx. 910 (4th Cir. 2019) [Sweden] [Habitual residence] [Necessary expenses] [Petition granted]

          In Sundberg v Bailey, 765 Fed.Appx. 910 (4th Cir. 2019) the district court granted the petition for return of the child to Sweden. The Fourth Circuit affirmed in an unpublished opinion.

          Lisa Bailey and Karl Sundberg married in Sweden shortly after the birth of their daughter in 2013. They divorced two years later but continued to share custody of their daughter. After the divorce, Ms. Bailey had trouble finding a suitable job and lived off child-support payments and Swedish-government aid. As a result, she sought to move back to the United States with their daughter. Mr. Sundberg opposed this move because he was unable to get a permanent U.S. visa and did not want to be separated from his child. Despite his opposition, Mr. Sundberg ultimately agreed to permit Ms. Bailey to take their daughter to America on a temporary trial basis. They memorialized this agreement in writing, providing that Ms. Bailey could take their child to the United States for “several months” beginning in August 2016.  The agreement also provided that in May 2017 they would “determine a future agreement about Lisa and [the child’s] residence and a plan for continuing shared custody of [the child].” Based on this agreement, Ms. Bailey and the child moved to Asheville, North Carolina. After the move, Mr. Sundberg maintained a relationship with his daughter over Skype and visited her in North Carolina for five weeks in December 2016. One month after Mr. Sundberg’s visit, Ms. Bailey informed him that the temporary stay would be permanent as she did not intend to move back to Sweden. In response, Mr. Sundberg demanded that Ms. Bailey return to Sweden with their child. Ms. Bailey refused. She instead went to a North Carolina state court and sought emergency custody. To prevent this, Mr. Sundberg petitioned a federal district court in North Carolina for the return of the child to Sweden so that Swedish courts could conclusively determine custody.

          The district court agreed with Mr. Sundberg. Finding that the child’s habitual residence remained in Sweden, the court ordered that she be returned there. The Fourth Circuit reviewed the court’s habitual residence finding for clear error and affirm. See Maxwell v. Maxwell, 588 F.3d 245, 250 (4th Cir. 2009).

          The parties agreed that Mr. Sundberg had joint custodial rights and that he had been exercising those rights. Ms. Bailey’s only claim is that the child was not a habitual resident of Sweden at the time of retention in 2017. In this framework, the district court only had to determine whether this child was habitually resident in Sweden or the United States. The Fourth Circuit noted that from birth, the child’s “habitual residence” was Sweden. That habitual residence can change under either of two circumstances. Gitter v. Gitter, 396 F.3d 124, 133 (2d Cir. 2005). First, habitual residence changes when parents “[share] a settled intention to abandon the former country of residence. Alternatively, it changes when there is a change in geography coupled with the passage of time “sufficient for acclimatization by the [child] to the new environment.” The first option, a shared settled intent, requires a mutual agreement to move the child permanently to the new country. This settled intent may not be shown by an agreement to move temporarily, conditionally, or on a trial basis. The district court’s conclusion that these parents lacked a shared settled intent for the child to move permanently to America was strongly supported by their written agreement. The signed agreement allowed Ms. Bailey to take the child to Asheville for “several months.” Under the agreement, the parties would re-evaluate in May 2017 to determine “a future agreement” and “plan” for the future. This agreement provided for a temporary move until the parties discussed the future in May 2017. While the agreement did not expressly state that Ms. Bailey and the child would return to Sweden, it is apparent from the agreement that the move to Asheville was not meant to be permanent.

          In addition, other circumstances reinforced the district court’s finding. While Ms. Bailey may live permanently in Sweden, Mr. Sundberg could not spend more than three months in the United States. This made it unlikely that he would allow the child’s permanent relocation. The district court’s conclusion that the agreement was temporary also found support in a welfare application Ms. Bailey submitted to the Swedish government. Before leaving Sweden, Ms. Bailey applied for Swedish welfare payments for the child. In reviewing this evidence, the district court reasonably relied on the application as reflecting the parents’ joint intent for their daughter to return to Sweden. By contrast, Ms. Bailey contended that the application merely ensured the continued payment of Swedish welfare while the child lived in America. In other words, Ms. Bailey asked the Court to find that she and Mr. Sundberg were trying to defraud the Swedish government. We hesitate to rely on her claim that the parties acted illegally. At a minimum, the district court did not err in interpreting the arrangement as supporting the temporary nature of the move. The record as a whole supported the district court’s conclusion that the parents planned to discuss in May 2017 whether the move would be permanent—a discussion that never took place, because it was short-circuited by Ms. Bailey’s unilateral decision to keep their daughter in the United States. Thus, it discerned no clear error in the district court’s finding that the parents lacked a shared settled intent to abandon Sweden as the child’s habitual residence.^*

          Turning to the second option for showing a change of habitual residence, did the child acclimatize to the United States, the Court noted that a change in habitual residence based on acclimatization requires finding that the child formed such a strong attachment that ordering her return would “be tantamount to taking the child out of the family and social environment in which its life has developed.” Maxwell, 588 F.3d at 253–54 (citing Mozes, 239 F.3d at 1081). When trying to establish acclimatization, it is not enough to show that the child’s life has “some minimal degree of settled purpose” in a new location. Maxwell, 588 F.3d at 253. Rather, “for a child to be settled within the meaning of the Convention, the child must have significant connections demonstrating a secure, stable, and permanent life in his or her new environment.” Alcala, 826 F.3d at 170. This child spent the first three years of her life living in Sweden, visiting the United States for only one or two months a year. Her temporary move to Ashville lasted only nine months before the agreement expired and retention became wrongful. With family and friends in both countries, the child’s familial and social ties do not point to one country over the other. Although her inability to speak Swedish may point toward acclimatization, the district court was correct that her young age made this factor much less meaningful. See Ahmed v. Ahmed, 867 F.3d 682, 689 (6th Cir. 2017). The only other evidence that suggested acclimatization was the time spent in an American school (around nine months). Attending school for one school year did little to show that the child’s life had sufficiently “developed” in her new surroundings to make it her home. Thus, the district court did not clearly err in concluding that the child lacked the high level of attachment to the United States required to find that she had acclimatized.

          The district court’s order that Ms. Bailey pay Mr. Sundberg’s expenses totaling $20,598.98. The Fourth Circuit pointed out that when a court orders the return of a child, the 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) In determining whether the circumstances of a case overcome the rebuttable presumption in favor of a fee award, the district court has limited discretion. Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018). An award of expenses may be “clearly inappropriate,” if for example, the respondent acted in good faith or if the award would impair the respondent’s ability to care for the child. Here, Ms. Bailey could not overcome the presumption in favor of shifting expenses. She failed to show that she acted in good faith or that any financial burden would harm the child. The district court thus appropriately awarded expenses.

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Ordonez v. Benitez-Guillen, 2019 WL 2289831 (SD, Ohio, 2019)[Honduras] [Federal & State Judicial Remedies] [Subject Matter Jurisdiction] [Asylum]

          In Ordonez v. Benitez-Guillen, 2019 WL 2289831 (SD, Ohio, 2019) the Court denied Respondent’s Motion to Dismiss.

           F.O. was a minor child from Honduras. Benitez-Guillen was his mother; Ordonez was his father. All three were Honduran citizens. Ordonez and Benitez-Guillen never married but lived together in Honduras at the time of F.O.’s birth. They separated in June of 2016 but shared parental authority and custody rights over F.O. In December of 2017, Benitez-Guillen fled from Honduras with F.O. On December 22, 2017, Benitez-Guillen and F.O. reached the United States border in El Paso, Texas. The Department of Homeland Security (“DHS”) determined that Benitez-Guillen and F.O. were inadmissible to the U.S. because they lacked the necessary documents. Nevertheless, the DHS did not immediately remove Benitez-Guillen and F.O., presumably because Benitez-Guillen intended to apply for asylum in the United States. The DHS then issued Benitez-Guillen and F.O. notices to appear, paroled them, and, on December 26, 2017, released Benitez-Guillen and F.O. from custody and into the United States. On October 5, 2018, Ordonez filed a petition for the return of an abducted child under the Hague Convention. On December 3, 2018, Benitez-Guillen applied for asylum under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, et seq. Benitez-Guillen and F.O. were scheduled to appear for a preliminary hearing before the Cleveland Immigration Court in June of 2019. On February 12, 2019, Benitez-Guillen filed a Motion to Dismiss under Rule 12(b)(1), arguing that the Court lacked subject matter jurisdiction over this action because the ICARA and the INA irreconcilably conflict.

          The Court observed INA provides the foundation for immigration law in the United States, including asylum. Asylum is a form of discretionary relief under section 208 of the INA, 8 U.S.C. § 1158, that precludes an alien from being subject to removal by the Attorney General, creates a path to lawful permanent resident status and citizenship, and affords a variety of other benefits. See R-S-C v. Sessions, 869 F.3d 1176, 1180 (10th Cir. 2017). The INA provides the Attorney General and the Secretary of the Homeland Security with discretion to grant asylum, 8 U.S.C. § 1158(b)(1)(A). Because asylum is a discretionary form of relief from removal, the applicant bears the burden of showing both eligibility for asylum and why the Attorney General or Secretary should exercise discretion to grant this relief. 8 U.S.C. § 1158(b)(1). To qualify for asylum under the INA, an applicant must either have suffered past persecution or have a “well-founded fear of persecution on account of race, religion, nationality, membership, in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), incorporated by 8 U.S.C. § 1158(b)(1)(B)(i). A grant of asylum “does not convey a right to remain permanently in the United States....” 8 U.S.C. § 1158(c)(2). The Court indicated that it had not yet analyzed the merits of Ordonez’s petition. Further, neither the Secretary of Homeland Security nor the Attorney General had determined whether Benitez-Guillen and F.O. qualified for asylum under the INA.

          The Court rejected Benítez-Guillen’s argument that the Court had to dismiss Ordonez’s Hague petition because the potential grant of asylum conferred a right to remain in the country regardless of any potential judicial orders under the Hague Convention.  It also rejected her argument that the Court lacked subject matter jurisdiction because the INA and the ICARA irreconcilably conflict. The ICARA, however, grants this Court original jurisdiction over Hague Convention petitions. ICARA, 22 U.S.C. § 9003(a). The INA does not strip this Court of that jurisdiction. While Benitez-Guillen correctly pointed out that the INA drastically limits judicial review of asylum determinations, see 8 U.S.C. § 1252(a)(2)(A), she did not explain how a court presiding over a Hague petition constituted judicial review of one’s asylum status. When reviewing a return of child petition, courts only determine the proper country to review the custody dispute related to an allegedly abducted child. Courts analyzing these petitions do not consider the asylum status of the parties.

          Finally, the court rejected the argument that the Court lacked jurisdiction to order the return of the child based on the pending applications for asylum. Although not ripe in this case, the only federal court to address the issue of whether a grant of asylum (under the INA) bars a district court’s order to return a child (under the ICARA) explicitly held that it does not. See Sanchez v. R.G.L., 761 F.3d 495, 510 (5th Cir. 2014) (“[t]he asylum grant does not superceded the enforceability of a district court’s order that the children should be returned to their mother, as that order does not affect the responsibilities of either the Attorney General or the Secretary of Homeland Security under the INA.”). In Sanchez, the Fifth Circuit also found that “[n]o authority has been offered to support the argument that the discretionary grant of asylum confers a right to remain in the country despite judicial orders under this Convention.”

          All the case law that the Court  found suggested that courts maintain subject matter jurisdiction over ICARA claims regardless of the asylum status of a respondent and/or minor child. That is because no federal court has found a lack of subject matter jurisdiction when presiding over a Hague petition case that also involved asylum applications. See Sanchez v. R.G.L., 761 F.3d at 510–11; Lopez v. Alcala, 547 F. Supp. 2d 1255 (M.D. Fla. 2008); In re Hague Child Abduction Appl., No. 08-2030, 2008 U.S. Dist. LEXIS 97048 (D. Kan. Mar. 17. 2008); Gonzalez v. Gutierrez, 311 F.3d 942, 947 (9th Cir. 2002); Hernandez v. Pena, No. 15-3235, 2016 WL 8275092 (E.D. La. July 20, 2016). The Court could assume that the courts in those cases had subject matter jurisdiction over the Hague petitions since “federal courts have a continuing obligation to inquire into the basis of subject-matter jurisdiction to satisfy themselves that jurisdiction to entertain an action exists.” Campanella v. Commerce Exchange Bank, 137 F.3d 885, 890 (6th Cir. 1998); see Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 593 (2004) (“by whatever route a case arrives in federal court, it is the obligation of both district court and counsel to be alert to jurisdictional requirements.”); Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986) (“every federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it.”).

          The Court held that it had original jurisdiction over Ordonez’s return of child petition under 22 U.S.C. § 9003(a). The INA does not strip the Court of that jurisdiction. Therefore, the Court had subject matter jurisdiction over this case.

Chirinos v Umanzor, 2019 WL 2287975 (N.D. Texas, 2019) [Honduras] [Habitual residence] [Grave risk of harm] [Petition granted]

          In Chirinos v Umanzor, 2019 WL 2287975 (N.D. Texas, 2019) the district court granted the Petition of Nahum Mendieta Chirinos for the return of his two children, Y.A. and I.N., to Honduras. 

          Petitioner was a resident of Honduras and resided there. Respondent and the children, Y.A. and I.N., initially resided in Honduras, but immigrated to the United States in late 2017. Respondent and the children resided in Irving, Texas.  Y.A. was born on March 29, 2012, and I.N. was born on October 8, 2015. Both children were born in Honduras and lived there until November 2017. In November 2017, Respondent and the children left Honduras and entered the United States in December 2017. [Petitioner did not give consent, written or otherwise, to Respondent’s removal of the children from Honduras. No court, in Honduras or elsewhere, had granted Respondent full custody of the children or has stripped Petitioner of his custody rights. Respondent and the children remained in the United States.  Petitioner commenced this action on October 9, 2018, seeking the return of the children to Honduras.

          The trial testimony revealed that Petitioner and Respondent met at a dance in Honduras in 2006 and began a relationship. The two were romantically involved until Petitioner illegally immigrated to the United States later that year. Petitioner remained in the United States until he was deported in 2010. After his deportation, Petitioner returned to Honduras and the romantic relationship between Petitioner and Respondent resumed. Respondent became pregnant with the couple’s daughter, Y.A., in 2011. After Respondent learned that she was pregnant, Petitioner and Respondent began living together at the home of Petitioner’s mother. Y.A. was born on March 29, 2012, and lived with Petitioner and Respondent at the home of Petitioner’s mother until at least April 2015. Petitioner testified that, on November 27, 2017, he borrowed a bicycle and went to see the children at Respondent’s grandparents’ home. Upon arriving, Petitioner allegedly heard Respondent speaking to a “coyote” with whom Respondent planned to travel to the United States. Petitioner testified that, after hearing this, he told Respondent the he did not want the children going to the United States. Petitioner testified that he returned the next day and found that Respondent and the children were gone.  Petitioner then sought legal help to secure return of the children.

          The Court found that Petitioner established a prima facie case for return under the Hague Convention and that Respondent had not shown that any defense to return applies. Therefore, the Court ordered the return of Y.A. and I.N. to Honduras. The court noted that to  establish a case for return under the Hague Convention, a petitioner must show that:  “the respondent removed or retained the child somewhere other than the child’s habitual residence”; “the removal or retention violated the petitioner’s ‘rights of custody’ under the habitual-residence nation’s laws”; and  “at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been exercised but for the removal or retention.” Larbie v. Larbie, 690 F.3d 295, 307 (5th Cir. 2012). A petitioner must prove each of these elements by a preponderance of the evidence. Id.

Here, the parties stipulated that, prior to November 2017, neither child resided in any country other than Honduras. The parties also agreed that Petitioner never gave consent or otherwise acquiesced to the removal of the children from Honduras. The last location of shared intent for the children’s residence was Honduras. The parties agreed that no Honduran court had entered an order granting Respondent full custody of the children, and there was no evidence that any other formal custody agreement between the parties exists.  Therefore, the Court looked to the custody rights provided by Honduran law. Article 187 of the Honduran Family Code provides that “parental authority belongs to both parents jointly.” “Parents in the exercise of parental authority have the right to exercise guidance, care and correction of their children, and provide them in line with the evolution of their physical and mental faculties, the direction and guidance that is appropriate for their development.” Additionally, parental authority includes the right to legally represent the child, “exercise their care and custody,” feed, assist, educate, and manage their assets. Finally, Honduran law provides that, when both parents exercise parental authority, each parent has a ne exeat right: a right to consent before the other parent can take the child out of the country. Article 101 of the Honduran Code of Childhood and Adolescence requires that “[i]f parental authority is exercised by both parents, the written authorization of the other is required if just one parent is traveling with the child during [a] trip [outside of Honduras].” The Supreme Court has held that a “ne exeat right is a right of custody under the Convention.” Abbott, 560 U.S. at 10. The Court found that Petitioner had custody rights in the children and that Respondent’s removal of the children violated these rights.

Finally, the Court found that Petitioner was actually exercising his custody rights at the time of the removal or would have exercised those rights but for the removal. Larbie, 690 F.3d at 307. The leading case setting out the standard under which courts are to consider this element is Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) (“Friedrich II”). The court held, “[t]he only acceptable solution, in the absence of a ruling from a court in the country of habitual residence, is to liberally find “exercise” whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.” Id. The Friedrich II court continued: [I]f a person has valid custody rights to a child under the law of the country of the child’s habitual residence, that person cannot fail to “exercise” those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child. The Fifth Circuit has adopted the standard articulated in Friedrich II and has emphasized that “even occasional contact with [a] child constitutes ‘exercise’ of [custody] rights.” Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 345 (5th Cir. 2004).  The testimony of the parties was directly conflicting on this point. Petitioner testified that Respondent left his mother’s home in mid-to-late 2016 and that he visited the children almost daily thereafter. Respondent testified that she moved out in April 2015 and that Petitioner only saw the children two or three times after this date. In resolving this disagreement, the Court finds convincing and credible the accounts of the witnesses supporting Petitioner. In weighing the testimony, the Court also noted significant inconsistencies in Respondent’s version of the relevant events. The documentary evidence also supported a conclusion that Petitioner kept some contact with the children after the time that Respondent alleged that he did not. Petitioner provided a photograph showing Petitioner, Respondent, and both children together. Respondent countered that this was taken during one of the very few instances in which Petitioner saw the children after she left. Petitioner, however, introduced other photographs that show Y.A. standing in front of the distinctly colored walls of Petitioner’s mother’s home. One such photograph, posted on Respondent’s Facebook page one day after Y. A’s fourth birthday, which was March 29, 2016, clearly suggested that Petitioner remained in contact with the children—contrary to the testimony of Respondent. Petitioner also offered photographs showing I.N. in front of the same distinctly colored walls of his mother’s home, and in a distinctly colored hammock which appeared in photographs of his mother’s home. This evidence strongly contradicted Respondent’s testimony regarding the extremely limited number of times that Petitioner allegedly saw I.N.

With the above directive in mind, the Court found that Petitioner established that he was actually exercising his custody rights prior to the removal of the children. He kept at least the required occasional contact with the children that is necessary to find that he was actually exercising his custodial rights. Sealed Appellant, 394 F.3d at 345. And the evidence did not suggest that Petitioner took acts that constitute clear and unequivocal abandonment of the children. Freidrich II, 78 F.3d at 1066. Additionally, the evidence suggested that Petitioner was exercising his ne exeat right prior to the removal by withholding permission for the children to leave the country.

                   

          Respondent raised the grave risk defense. Under this defense, return may be excused where there is a “grave risk” that return would “expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Lozano, 572 U.S. at 5. A party opposing a child’s return must prove the existence of “grave risk” by clear and convincing evidence. Madrigal v. Tellez, 848 F.3d 669, 676 (5th Cir. 2017). The alleged harm “must be a great deal more than minimal” and “greater than would normally be expected on taking a child away from one parent and passing him to another. “Domestic violence can satisfy the defense when the respondent shows by clear and convincing evidence a “sustained pattern of physical abuse and/or a propensity for violent abuse.” Ermini v. Vittori, 758 F.3d 153, 164 (2d Cir. 2014). Sustained spousal abuse can, in some instances, also create such a risk. Soto v. Contreras, 880 F.3d 706, 713 (5th Cir. 2018). The Court found that Respondent had not shown by clear and convincing evidence that return to Honduras would expose the children to a grave risk of harm. Respondent testified that Petitioner abused her physically and psychologically. However, Respondent identified only one specific instance in which Petitioner allegedly abused her physically—when Petitioner allegedly pushed her after she confronted him about his involvement with another woman. This unsupported testimony, even if taken as true, did not establish a pattern of sustained spousal abuse by clear and convincing evidence. And Respondent presents no evidence that Petitioner ever abused either of the children.

Respondent also testified that she found cocaine in Petitioner’s pocket three times, and that she worried that Y.A. would find the drugs and accidently consume them. Petitioner testified that he has never used drugs. Petitioner would take both children on rides on his motorcycle. Petitioner’s supporting witnesses all testified that, in their opinion, Petitioner was a good father. Petitioner’s girlfriend, also testified that she trusts Petitioner to be around her 13 and 10-year-old children. The Court held that the conflicting evidence regarding alleged past drug use or rides on a motorcycle did not establish the existence of such a future harm by clear and convincing evidence. Respondent did not meet her burden to prove the grave risk defense.

Djeric v Djeric, 2019 WL 2374070 (S.D. Ohio, 2019)[Serbia] [Necessary Costs and expenses] [Clearly inappropriate]

          In Djeric v Djeric, 2019 WL 2374070 (S.D. Ohio, 2019) after the Court ordered Mr. Djeric to return the parties’ child to Ms. Djeric in accordance with the Hague Convention, Ms. Djeric’s attorneys applied for attorneys’ fees and costs. The Court pointed out that Yazan Ashrawi and Zackary Stillings, attorneys with the law firm Frost Brown Todd LLC, represented Ms. Djeric in the matter on a pro bono basis and that their work was exceptional. Over approximately three months, Mr. Ashrawi worked more than 87 hours; Mr. Stillings worked 176 hours. They collectively requested $69,095.50 in attorneys’ fees and $1,059.59 in expenses, including court costs and the costs of travel, deposition transcripts, and printing.     

          Mr. Djeric argued any award of fees would be inequitable because Ms. Djeric was represented pro bono, while Mr. Djeric paid $18,000 for his attorney by emptying his savings account and exhausting his credit limits on two credit cards. He claimed he relied on a relative’s financial help to purchase the airfare to return his child to Ms. Djeric. Mr. Djeric offered his tax return to show his income last year was under $25,000. He also asserted that he had no personal property available to obtain another loan or a second mortgage. Additionally, Mr. Djeric argued that any award would be inequitable because it would significantly hinder his ability to provide for his newborn baby. Next, Mr. Djeric argued that any award of fees would be inappropriate and unnecessary since the purposes of ICARA’s fee-shifting mechanism are to restore Ms. Djeric to her original financial position and to deter Mr. Djeric from wrongfully retaining the child in the first place, neither of which applied here. The Court agreed in large part. It held that based on the purposes of ICARA’s fee-shifting mechanism and Mr. Djeric’s financial circumstances, it would be “clearly inappropriate” to require him to pay $70,155.09. See Montero-Garcia, 2013 WL 6048992, at *4–6; Mendoza v. Silva, 987 F. Supp. 2d 910, 917 (N.D. Iowa 2014); East Sussex Children Servs. v. Morris, 919 F. Supp. 2d 721, 734 (N.D. W.V. 2013). Mr. Djeric had a mistaken, but nevertheless good faith belief that the parties had agreed that he would take their child to the United States to attend school. Moreover, Mr. Djeric’s financial condition was such that it was “clearly inappropriate” to award significant legal fees against him, because he would be unable to pay $69,095.50 and still provide support to his children, and because an award would simply convert Ms. Djeric’s pro bono representation into a marital debt. Regarding the expenses and costs resulting from this case, however, the Court concluded that it was reasonable for Mr. Djeric to pay those, as a matter of equity. See Mendoza, 987 F. Supp. 2d at 917. The Court denied Ms. Djeric’s request for an award of attorney’s fees, and granted Ms, Djeric’s request for court costs and expenses. The Court ordered Mr. Djeric to pay $100.00 each month to Frost Brown Todd LLC, for a total amount of $1,059.59.

Eidem v Eidem, 2019 WL 1894376 (S.D.N.Y., 2019)[Norway] [Habitual residence] [Grave risk of harm] [Petition granted]

In Eidem v Eidem, 2019 WL 1894376 (S.D.N.Y., 2019) the district court granted the petition of Per Magne Eidem (“Petitioner”) for an order directing the return of his two sons to Norway. Petitioner was a Norwegian citizen who was born and raised in Norway. Respondent, a dual citizen of the United States and Norway, was born in Brooklyn, New York, but moved to Norway with her mother in 1993 at the age of eight. The parties married on June 9, 2008.and lived together in Norway from 2005 until 2013.The parties had their first child, T.E., on August 25, 2008.  Shortly after his birth, T.E. was diagnosed with Hirschsprung’s disease, a condition wherein nerves are missing from parts of the intestine, and he underwent a “pull-through” surgery at a hospital in Trondheim to remove part of his colon.  The Trondheim hospital, located four hours by car from Elnesvågen, was one of two hospitals in Norway capable of performing a pull-through surgery. The parties had their second child, N.E., on December 8, 2010. From a young age, N.E. had difficulties with verbal skills. On June 24, 2013, Respondent filed for separation, and the parties were legally divorced in 2014. Following their divorce, the parties entered into a visitation agreement providing for joint custody over the children. The agreement explained that the children’s “permanent place of abode” would be with Respondent, but that Petitioner would have custody over the children every other Wednesday and Thursday, every other weekend from Friday to Monday, and every other year for several holidays. 

During the summer of 2016, Petitioner signed a letter of parental consent allowing Respondent to travel to the United States with the children for a one-year period.  The parties agreed that Respondent would return the children to Norway before the beginning of the Norwegian school term in August of 2017.  As of January of 2017, Petitioner began coordinating the children’s return to Norway with Respondent.  By April of 2017 Respondent had decided that she was going to stay in New York with the children. Nevertheless, she lied to Petitioner and told him that she had purchased airline tickets for the children to return to Norway on August 8, 2017. As a result, on August 8, 2017, Petitioner went with his father to the Molde Airport to meet the children. After the flight landed and Petitioner realized that the children were not actually on board, he reached out to Respondent, who admitted that she had lied about purchasing airline tickets and explained that she was going to keep the children in the United States. Respondent then cut off all contact between Petitioner and the children. Although Petitioner tried calling at least a dozen times, Respondent never answered. Petitioner initiated this action on July 6, 2018. At a pre-trial conference Respondent explained that she currently did not intend to return to Norway with the children if the Court ordered their return to Norway. 

  The district court noted that in Gitter, the Second Circuit set forth a two-part test for ascertaining a child’s habitual residence pursuant to the Hague Convention: First, the court should inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. Gitter.

The court found that the last shared intent of the parties was clearly for the children to be habitual residents of Norway. Respondent admitted that, when the parties agreed that Respondent would take the children to the United States in August of 2016, their shared intent was for the children to live in the United States for one year only, and to return to Norway – where they had lived the entirety of their lives to that point – before the beginning of the Norwegian school year in August 2017. The court found that the children had not so acclimatized to the United States that they had acquired a new habitual residence. A court can conclude that a “child’s habitual residence has shifted to his or her new location” only under the “relatively rare circumstances in which a child’s degree of acclimatization is so complete that serious harm can be expected to result from compelling his or her return to the family’s intended residence.” Mota v. Castillo, 692 F.3d 108, 116 (2d Cir. 2012) The Court concluded that Petitioner made out a prima facie case of wrongful removal and retention of the children under ICARA.

Respondent argued that the children would be exposed to grave risk of harm if they were returned to Norway because Petitioner allegedly abused her in front of the children throughout their marriage. Respondent detailed one incident in which, after Petitioner “refused to help” with the children, Respondent threatened to throw Petitioner’s computer out the window and Petitioner “struck [her] across the face with his hand, knocking [her] to the ground” in front of the children, who were four and two years old at the time. Petitioner denied abusing Respondent. Regardless of whose version of the altercation was closer to the truth, the parties were now divorced and would not be residing together under any circumstances. Thus, the likelihood of future physical alterations between them was remote. Furthermore, there was simply no evidence to suggest that Petitioner had ever abused the children, or that he would ever do so. The Court found no basis to conclude that the children would be placed in grave danger if they were returned to Petitioner’s custody.

Finally, Respondent argued that the children will be exposed to grave risk if they were taken away from the network of doctors overseeing their care in the United States. Although the Court acknowledged that an abrupt termination of the children’s current mental health treatment could pose some danger to their well-being, the Court concluded that such danger would be sufficiently mitigated if the children were moved after the conclusion of the school year. 

Palencia v Perez, 2019 WL 1907867 (11th Cir., 2019)[Guatemala] [Rights of custody] [Petition granted] [affirmed]

In Palencia v Perez, 2019 WL 1907867 (11th Cir., 2019) the district court concluded that Marilys Velasquez Perez had wrongfully retained her son, H.J.D.V., in the United States and away from Guatemala, his place of habitual residence. It granted the petition filed by H.J.D.V.’s father, Jose Diaz Palencia, and ordered that the child be returned to Guatemala. The Eleventh Circuit affirmed. 
  
Ms. Perez and Mr. Palencia had never been married, but they had a child, H.J.D.V., who was born in Guatemala in 2013. They lived there together until Ms. Perez left with H.J.D.V. in October of 2016. In October of 2016, Ms. Perez told Mr. Palencia that she wanted to take H.J.D.V. to Chiapas, Mexico, to visit relatives for a week. Mr. Palencia did not object. Ms. Perez never indicated that she intended to take H.J.D.V. to the United States, and Mr. Palencia never agreed to her doing so. Nor did he agree to Ms. Perez taking H.J.D.V. away for longer than a week. Rather than visiting Mexico, Ms. Perez took H.J.D.V. to the United States, where they were detained at the border. 12 days later, Ms. Perez called him from a detention facility in the United States. She told him that she had made a mistake, asked for forgiveness, and said that she would return to Guatemala with H.J.D.V. She explained that, to be able to return, she needed Mr. Palencia’s assistance in obtaining passports for herself and H.J.D.V. Mr. Palencia cooperated. It took months for the passports to be issued, during which time Ms. Perez repeatedly told Mr. Palencia she would return as soon as she had them. In July of 2017, after she had received the passports, Ms. Perez told Mr. Palencia she would not be returning to Guatemala with H.J.D.V.  Unbeknownst to Mr. Palencia, Ms. Perez had filed an asylum application for herself and H.J.D.V. upon arriving in the United States. Mr. Palencia did not learn of the application until after he filed his Hague Convention petition in the district court. In connection with her asylum application, Ms. Perez completed a credible fear interview, in which she stated that she had never suffered violence at a romantic partner’s hands.

On February 25, 2018, Mr. Palencia filed a verified Hague Convention petition seeking H.J.D.V.’s return. On April 30, 2018, the district court commenced an evidentiary hearing and ultimately granted the petition.

Ms. Perez asserted that the district court committed several errors. The first was that the district court erred in its determination of Guatemalan law with respect to Mr. Palencia’s rights. The second was that the district court wrongfully concluded that July of 2017—when Ms. Perez informed Mr. Palencia that she would not return to Guatemala—constituted the date of H.J.D.V.’s wrongful retention. 


The Eleventh Circuit  looked to the law of Guatemala, the country of H.J.D.V.’s habitual residence, to “determine the content of [Mr. Palencia’s] right[s], while following the Convention’s text and structure to decide whether the right at issue is a ‘right of custody.’ ” Abbott v. Abbott, 560 U.S. 1, 10, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010). The district court’s determination of Guatemalan law was subject to plenary review, and in performing that review the court could conduct its own research of relevant sources. See Fed. R. Civ. P. 44.1; Animal Science Prods., Inc. v. Hebei Welcome Pharm. Co. Ltd., ––– U.S. ––––, 138 S.Ct. 1865, 1869–70, 201 L.Ed.2d 225 (2018). It observed that Guatemala is a civil law jurisdiction. The generally recognized sources of law in such a jurisdiction are constitutional provisions, statutes, administrative regulations, and customs. See generally John Henry Merryman & Rogelio Perez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (4th ed. 2019). Guatemalan caselaw did not provide any authoritative guidance.

Ms. Perez argued that Mr. Palencia, whom she never married, lacked “rights of custody” under Article 261 of the Guatemalan Civil Code. Article 261 provides in relevant part as follows: “Single or separated mother. When the father and the mother are neither married nor in a common-law marriage, the children shall be in the mother’s custody unless she agrees to transfer them to the father’s custody, or unless they are enrolled in a boarding school.” Guatemalan Civil Code, Chapter VII, Art. 261. According to Ms. Perez, Article 261 granted her exclusive patria potestad powers and, therefore, complete custodial authority as to H.J.D.V. Patria potestad is a Roman legal concept which, in its original form, gave a family patriarch absolute power over his child, but is now generally understood to be the rights any biological parent may exercise over a child. See Luis Ischiu v. Gomez Garcia, 274 F.Supp.3d 339, 346 (D. Md. 2017). The Court pointed out that Articles 252 and 254 of the Code discuss the concept of patria potestad. Under Article 252, “within a marriage or common-law marriage” patria potestad “is exercised jointly by the father and the mother over minor children,” and “in any other case, it is exercised by the father or the mother, depending on who has custody of the child.” And under Article 254, patria potestad encompasses “the right to legally represent a minor or disabled person in any civil procedure; to manage his or her assets; and to make good use of his or her services according to his or her age and condition.” Guatemalan Civil Code, Chapter VII, Art. 254.  As summarized by one district court, although the concept of patria potestad is not explicitly defined in the Code, it “covers [among other things] ‘the right to legally represent a minor ... in all civil acts ... to administer his or her assets and to take advantage of available services in view of his or her age and condition.’ ” Luis Ischiu, 274 F.Supp.3d at 346 (quoting translation of Article 254). Even assuming that Articles 261 and 254 granted Ms. Perez comprehensive patria potestad powers and primary custody over H.J.D.V., the Court concluded that a father in Mr. Palencia’s situation nevertheless retained certain rights and responsibilities under Guatemalan law. In its view, Article 253 established certain inalienable responsibilities for both parents of a child, even when the two are neither married nor in a formal union-in-fact. It provides as follows: “Duties of both parents. The father and the mother have a duty to care and provide for their children, whether born in or out of wedlock, and to raise and correct them using measured discipline. In accordance with criminal law, both shall be responsible should they leave them in a state of moral and/or material abandonment and fail to fulfill the duties inherent to parental authority.”

The Court noted that its task wass to decide this case “in accordance with the Convention.” 22 U.S.C. § 9003(d). As it read and understood the two provisions, Article 253 provides an unmarried father with certain obligations (and therefore certain rights) with respect to his child, with the caveat that Article 261 gives the mother the final say when the parents disagree on a given issue. Ms. Perez also relied on its  unpublished decision in Ovalle v. Perez, 681 F. App’x 777, 784–86 (11th Cir. 2017), which held that an unmarried mother had rights of custody within the meaning of the Hague Convention under Guatemalan law. But the decision in this case did not conflict with Ovalle. The panel in Ovalle addressed the rights of custody of an unmarried mother—not those of an unmarried father like Mr. Palencia—under Guatemalan law, and it naturally turned to Article 261 to answer that particular question. Because the panel in Ovalle addressed only whether the unmarried mother had rights of custody, it had no need to consider Article 253. This inquiry concerns the rights of the unmarried father, so Article 253 becomes relevant.

The Court turned next to Ms. Perez’s argument concerning the date of the wrongful retention. That date matters because, if a petition for return is filed more than one year after the wrongful retention (or removal), the Convention permits the parent who took the child to argue that return should not be ordered because the child is “now settled” in his or her new environment. See Convention, Art. 12; Lozano, 572 U.S. at 4–5, 134 S.Ct. 1224. Mr. Palencia filed his petition in February of 2018. The district court ruled that the wrongful retention took place in July of 2017 (when Ms. Perez told Mr. Palencia that she would not be returning to Guatemala with H.J.D.V.) and not in October of 2016 (when Ms. Perez left Guatemala with the child and told Mr. Palencia that she was going to Mexico for a week to visit family members). The district court reasoned that the wrongful retention could not have occurred in October of 2016 because at that time Mr. Palencia had consented to Ms. Perez and H.J.D.V. traveling to Mexico for a week, and he had no reason to demand the child’s return. The Eleventh Circuit agreed. 

The Eleventh Circuit held that for the purpose of determining the date of wrongful retention, a court should look to the date the petitioning parent learned the true nature of the situation. In Marks on behalf of SM v. Hochhauser, 876 F.3d 416, 417, 420–23 (2d Cir. 2017), the Second Circuit held that the wrongful retention occurred when the custodial parent told the non-custodial parent that she would be staying in the United States with their children and would not be returning to the country of the child’s habitual residence. The First Circuit reached the same conclusion in Darin v. Olivero-Hoffman, 746 F.3d 1, 10–11 (1st Cir. 2014). And in Blackledge v. Blackledge, 866 F.3d 169 (3d Cir. 2017), the Third Circuit similarly looked to the date the non-custodial parent’s consent expired. In each of these cases, although the petitioning and non-custodial parent initially assented to the child’s removal from the country of habitual residence, the date consent was revoked constituted the date of wrongful retention. It agreed with its sister circuits and noted that the case for such a rule is even stronger where—as here—the custodial parent makes affirmative representations regarding the date of the child’s return and then fails to act in accordance with them. “Wrongful retentions typically occur when a parent takes a child abroad promising to return with the child and then reneges on that promise[.]” Redmond v. Redmond, 724 F.3d 729, 738 n.5 (7th Cir. 2013).

When Ms. Perez and H.J.D.V. traveled to the United States and were detained at the border, Ms. Perez told Mr. Palencia that she had made a mistake and would return to Guatemala when she obtained passports for herself and the child. Mr. Palencia cooperated with the effort to secure the passports, and for months afterwards Ms. Perez told him that she was merely waiting for the passports to be issued to return to Guatemala. It was not until July of 2017 that Ms. Perez advised Mr. Palencia that she would not be returning H.J.D.V. to Guatemala. Before July of 2017, then, Mr. Palencia did not assert his rights of custody or revoke his consent to H.J.D.V. staying in the United States because he understood that Ms. Perez and H.J.D.V. would be returning to Guatemala as soon as they received their passports. It held that the district court correctly ruled that the wrongful retention took place in July of 2017, when Mr. Palencia’s consent for H.J.D.V. to remain in the United States expired. See Hochhauser, 876 F.3d at 420–23; Blackledge, 866 F.3d at 179; Darin, 746 F.3d at 10–11. 

Capalungan v Lee, 2019 WL 1872978 (S.D. Ohio, 2019)[Australia] [Habitual residence] [Recommendation that petition be denied]

         In Capalungan v Lee, 2019 WL 1872978 (S.D. Ohio, 2019) the Magistrate judge recommended that the Petition for return be denied.

         The parties were the biological parents of a six-year-old child, EZL. Petitioner was EZL’s mother and a resident of Australia. Respondent was EZL’s father and a resident of the United States. For the first four and a half years of EZL’s life, Petitioner was his primary caregiver. In February 2017, Petitioner brought EZL to the United States for a visit with Respondent. The parties agree EZL was to be returned to Australia to the custody of Petitioner. Respondent conceded that he violated the parties’ agreement that EZL be returned to Australia.

The court observed that in cases of wrongful retention, courts must determine the child’s habitual residence at the time the wrongful retention began. At the time of his alleged wrongful retention, EZL was five years old. For children this age, the Sixth Circuit generally applies an acclimatization standard to determine habitual residence, asking “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.” EZL had lived in the United States for approximately ten months before the alleged wrongful retention. During that time, he developed close relationships with family members here, attended school, made friends, and participated in a variety of extracurricular activities. At the time of the alleged wrongful retention, the United States was therefore EZL’s habitual residence. As a result, the Hague Convention cannot provide relief for Petitioner here.

Petitioner and Respondent were the biological parents of EZL. The parties began their relationship in the Philippines where Petitioner was a nurse and Respondent was a doctor. Respondent moved to the United States in April 2011. EZL was born on August 31, 2012 in the Philippines. At that time, Respondent was living in the United States. While Petitioner and EZL resided in the Philippines, the parties did not have any custody agreement or order. Although Respondent did not pay child support to Petitioner, Respondent’s father provided the parties with financial support when Respondent was in the Philippines. Additionally, the parties set up a joint bank account in which they save money given to them as gifts for EZL.

Petitioner traveled to the United States in December 2017 for the purpose of taking EZL back to Australia. Respondent refused to give her EZL’s passport, and she was unable to bring EZL home with her. Before Petitioner returned to Australia, Respondent agreed to return EZL when his U.S. passport was issued. On January 8, 2018, shortly after Petitioner returned to Australia, EZL received his permanent resident card.  Towards the end of January, Respondent informed Petitioner that he would not return EZL to Australia when EZL’s passport was issued. Petitioner contacted the State Department’s Office of Children’s Issues to enroll in the Children’s Passport Issuance Alert Program (CPIAP) and put a hold on EZL’s United States passport. In response, Respondent burned EZL’s expired Filipino passport and sent Petitioner photos of the burnt passport. Petitioner subsequently withdrew EZL from CPIAP, which allowed his application for a passport to be processed. Throughout February and March 2018, the parties’ relationship continued to deteriorate. On February 16, 2018, the United States issued EZL’s passport. Respondent repeatedly refused to return EZL to Australia. Although Respondent had previously represented that the parties’ Shared Parenting Plan would only be used to enroll EZL in school, to justify his refusal to return EZL, he insisted that it gave him custody of EZL and therefore he was under no obligation to return EZL to Petitioner as the parties had agreed. On July 13, 2018, the United States government issued EZL’s certificate of citizenship, which indicated that EZL became a citizen of the United States on January 6, 2018. Respondent did not return EZL to Australia. Petitioner filed the Petition on October 23, 2018. 

The ourt noted that when determining a child’s habitual residence, the Sixth Circuit applies one of two standards depending on the facts of the case. Id. at 407. “The primary approach looks to the place in which the child has become ‘acclimatized.’” Id. (quoting Ahmed v. Ahmed, 867 F.3d 682, 687 (6th Cir. 2017)). 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.” Taglieri, 907 F.3d at 408 (citation and internal quotations omitted). “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.” 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 the second approach, a back-up inquiry for children too young or too disabled to become acclimatized, looks to ‘shared parental intent. Taglieri (quoting Ahmed, 867 F.3d at 689). This standard requires courts “to identify the location where the parents intended the child to live.” Taglieri, 907 F.3d at 408.

To answer the question of which standard applied the court had to first determines when the alleged wrongful retention of EZL began. In the case of a wrongful retention, the time begins to run either (1) from the date the child remains with the abducting parent despite the clearly communicated desire of the left-behind parent to have the child returned, or (2) when the acts of the abducting parent are so unequivocal that the left-behind parent knows or should know, that the child will not be returned[.]Diagne v. Demartino, No. 2:18-CV-11793, 2018 WL 4385659, at *11 (E.D. Mich. Sept. 14, 2018) (internal citations omitted); see also Djeric v. Djeric, No. 2:18-CV-1780, 2019 WL 1046893, at *3 (S.D. Ohio Mar. 5, 2019) 

The Court indicated that in late December 2017 and early January 2018, Petitioner traveled to the United States with the intention of returning EZL to Australia. During that time period, she demanded that Respondent provide her with EZL’s passport and communicated her intention to return to Australia with her son. Respondent, nonetheless, refused to give Petitioner EZL’s passport, and EZL remained with Respondent in the United States. The Court found that the alleged wrongful retention began in late December 2017.At that time, EZL was five years old. The Sixth Circuit applies the shared parental intent standard to “infants,” “especially young children,” and children “too disabled to become acclimatized.” Taglieri, 907 F.3d at 407–08; Ahmed, 867 F.3d at 690. Courts in the Sixth Circuit generally apply this standard to children who are two years old or younger at the time of the wrongful removal or retention. See, e.g., Taglieri, 907 F.3d at 408. For children who are older at the time of the alleged wrongful removal or retention, courts in the Sixth Circuit generally apply the acclimatization standard. See, e.g., Jenkins v. Jenkins, 569 F.3d 549, 556 (6th Cir. 2009) With these guideposts in mind, the Court concluded that the acclimatization standard governs the habitual residence analysis.

The central question in this case was whether in late December 2017, EZL had been physically present in the United States for an amount of time sufficient for acclimatization and whether the United States had a degree of settled purpose from his perspective. Unfortunately for Petitioner, the Undersigned is required to determine EZL’s habitual residence at the time of the wrongful retention. And Petitioner had not met her burden to demonstrate by a preponderance of the evidence that Australia was EZL’s habitual residence in late December 2017. As its analysis made clear, for every piece of evidence that suggested Australia was EZL’s habitual residence in February 2017, a similar, if not identical, piece of evidence supported the conclusion that the United States was EZL’s habitual residence in late December 2017. In both countries, EZL lived with extended family and developed a particularly close relationship with one of his cousins. In both countries, EZL actively explored the local community, attended church, and went on excursions to parks and museums. In both countries, EZL attended school for a portion of the relevant time period. In short, if Australia was EZL’s habitual residence in February 2017, the Court had difficulty seeing how the United States was not EZL’s habitual residence in late December 2017. Under Sixth Circuit precedent, EZL had acclimatized to the United States by the time of the alleged wrongful retention in late December 2017. Consequently, the Hague Convention could not afford Petitioner relief here.

The Court pointed out that in coming to its conclusion, this is a cautionary tale about the limits of the Sixth Circuit’s acclimatization standard. In February 2018, when Petitioner discussed returning EZL to Australia, Respondent refused, stating, “[y]ou should have realised [sic] [EZL] is here and I have the edge...”. That is ultimately what this case was about. By refusing to return EZL to Australia consistent with the parties’ agreement, Respondent has manufactured a favorable status quo that he would undoubtedly rely on in any future custody proceedings between the parties. But that status quo is contrary to the parties’ shared intent, which the acclimatization standard does not permit courts to consider in resolving the habitual residence question in cases like this one. Rather than incentivizing behavior consistent with the purposes of the Convention, the application of that standard here appeared to reward Respondent for conduct that undermines the Convention’s mission.