Tann v Bennett, 807 F.3d 51 (2d Cir 2015)[United Kingdom] [Federal and State Judicial Remedies] [Appeal]

In Tann v Bennett, 807 F.3d 51 (2d Cir 2015) Petitioner Lisa Tann appealed from the denial of her petition filed under the International Child Abduction Remedies Act . Tann, a citizen of the United Kingdom who resided in Northern Ireland, alleged that Respondent George Bennett wrongfully abducted their son, J.D., to the United States. The district court denied Tann's petition, finding that even though Northern Ireland was J.D.'s habitual residence, the child's preference for staying in the United States excepted him from being returned. Tann appealed the district court's judgment to this Court. While that appeal was pending, the Family Court of Orleans County, State of New York, granted full custody to George Bennett. The Bennetts  moved to dismiss Tann's appeal as moot, on the grounds that the Court can no longer grant effective relief. The Second Circuit denied the motion. It observed that a case is moot when the issues presented are no longer ‘live’ or the parties ‘lack a legally cognizable interest in the outcome.’ ” Blackwelder v. Safnauer, 866 F.2d 548, 551 (2d Cir.1989) (quoting Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982)). It rejected the  Bennetts argument that the appeal was moot because the New York court's custody determination resolved the parties' dispute such that the Second Circuit could no longer grant Tann's requested relief. It pointed out that the Hague Convention provides that “[t]he sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention.” Hague Convention, art. 17.In her appeal Tann contended that the district court erred in holding that J.D. should continue to reside in the United States and that the New York courts are thereby authorized to resolve the underlying custody dispute on the merits. The court pointed out that if it reversed the district court's judgment and find that Northern Ireland was J.D.'s habitual residence and no exception applied to prevent his return, J.D. could be returned to Northern Ireland. In that event, the Northern Ireland courts would have jurisdiction to determine the merits of the underlying custody dispute. Holding that Tann's petition was moot because the Bennetts received a favorable custody determination in a potentially friendlier New York court could encourage the jurisdictional gerrymandering that the Hague Convention was designed to prevent.

Matter of Adamis v. Lampropoulou, 2015 WL 2344079 (EDNY, 2015)[Petition denied] [Greece] [Consent] [Age and Maturity] [Video testimony] [in camera]

In Matter of Adamis v. Lampropoulou, 2015 WL 2344079 (EDNY, 2015) Petitioner Nikolaos Adamis filed a verified petition, for the return of his minor son, D.A., against D.A.'s mother,  who was living with D.A. in Douglaston, New York at the time. Because Adamis was in Greece for the entire proceeding, he testified and participated in the proceeding via video conference, as did two other witnesses located in Greece. The Court interviewed D.A. in camera, but on record and in the presence of both parties' counsel, to determine his wishes regarding his place of residence. At the conclusion of the trial, the Court denied the petition for return.

D.A. was the son of Petitioner and Respondent. At the time of the trial, D.A. was 12 years old. Petitioner was a U.S. and Greek citizen who was living in the United States in the 1990s. Respondent was a Canadian citizen of Greek heritage who moved to New York with her family in 1968. On September 2, 2001, Petitioner and Respondent wed in Greece.  After the events of 9/11, which occurred only days later, Petitioner decided that they would relocate, with Toula, he child from a previous marriage, to Greece. Petitioner and Respondent moved to Greece for a "better lifestyle." D.A. was born in Greece in October 2002, and lived there continuously until he was brought to the United States by his mother in December 2013. Discussions about moving to the United States began when D.A. was in fourth grade, prompted by the difficulties he was facing in school.  After D.A. told his mother he could no longer handle his school situation, she told Petitioner that they had to move to the United States for D.A.'s sake. Petitioner responded, Okay, okay, whatever makes you happy."  It took time, however, to raise the money to move to the United States. Thereafter, D.A.'s mother repeatedly raised the topic of moving with Petitioner, and he told her several times that they could go.  In the summer of 2013, D.A.'s mother began planning the move in earnest. She told D.A. that they were going to move, and began packing their household items and personal belongings to be shipped to the United States. D.A. spoke to his father directly about the move, saying that there were things that he (D.A.) could not do in Greece and that he wanted to move. D.A.'s father simply responded, "okay, okay." Many people in Porto Rafti knew about the move, including D.A.'s school, his classmates and their families, the family's neighbors, and Respondent's friends and co-workers. In fact, her co-workers performed a farewell song for D.A.'s family at the annual Thanksgiving dinner shortly before they moved, and D.A.'s school class also held a farewell party for him. On December 13, 2013, Respondent and D.A. left Porto Rafti to travel to the United States. By that time, the house was almost empty, except for furniture that did not belong to the family, Petitioner's personal belongings, and unwanted personal items D.A. and Respondent left behind. Petitioner was at the Porto Rafti home that day, having come home the night before so that he could say goodbye. After Respondent and D.A. left for the United States in December 2013, Petitioner changed his mind about letting D.A. live in the United States. 14 On January 6, 2013, when Respondent called Petitioner, he asked her when they were returning to Greece. Respondent told Petitioner that they were not returning to Greece and reminded him that he knew that they were moving, that they had spoken about the move many times, and that he had seen them packing their belongings. On January 22, 2014, Respondent went to the Greek Ministry of Justice, and filed a complaint pursuant to Article 13 of the Hague Convention, seeking the return of D.A. to Greece. 

During the  trial, the Court interviewed D.A. in the presence of Petitioner's and Respondent's counsel. The Court's assessment of D.A. was that he was an unusually poised and mature adolescent, who was comfortable with adults, and engaged readily and openly with the Court. The Court found D.A. perceptive, bright, forthright, rational, friendly, credible, and serious about his education. His answers and demeanor evinced clarity about his wishes and the reasons for them, and complete awareness of the consequences of the court proceeding. D.A. wanted to "stay in America."  He believed that "America's definitely better to live all year around[]" because his "whole family is here…. There's a better school here, and I just like it overall here." Since arriving in the United States, D.A. had been living in an apartment with his mother and sister in a building where his mother's aunt and uncle also live.  D.A. and his sister each had their own bedroom.  D.A. was very close to his sister, Toula, and would not want to return to Greece if she remained in the United States, which was her current plan.

The parties stipulated to Petitioner's prima facie case for wrongful removal. They agreed that (1) D.A.'s habitual residence at the time of his removal was Greece, and (2) Petitioner had custodial rights pursuant to Greek law. It found that Petitioner consented to D.A. moving with his mother and sister from Greece to the United States on December 13, 2013. This evidence included the testimony of Respondent, Toula and D.A., as corroborated by December 2013 audio recording of Petitioner stating that he had given permission for them to move. The Court found that Petitioner consented to Respondent's removal of D.A. from Greece on December 13, 2013, and his retention in the United States thereafter. See In re Kim, 404 F. Supp. 2d at 520-21 (determining, based on the credibility of the witnesses, that the respondent established by a preponderance of the evidence that the petitioner consented to the child's move).

The Court found that the age and maturity exception provided another basis for refusing to order D.A.'s return to Greece and that D.A. was sufficiently mature to object to his return and has credibly done so. The Court's finding was based largely on its interview of D.A. The Court found D.A. to be an exceptionally bright, thoughtful, sociable and well-adjusted adolescent. The Court also found that D.A.'s reasons for wanting to remain in the United States were rational and well-considered: (1) superior educational opportunities, especially in D.A.'s areas of interest, i.e., science and computer science; (2) the chance to participate in a wide range of extracurricular activities; (3) an abundance of relatives with whom he is very close; and (4) more and better friendships. The sincerity and rationality of D.A.'s motivations and desires was corroborated by the testimony of D.A.'s family members, who credibly testified about how much fuller and happier D.A.'s life has become since moving to the United States. 

Fuentes Rangel v Woodman, --- Fed.Appx. ----, 2015 WL 3405132 (C.A.11 (Ga.)) [Mexico][Habitual Residence]

In Fuentes Rangel v Woodman, --- Fed.Appx. ----, 2015 WL 3405132 (C.A.11 (Ga.)) Daniel Scott Woodman appealed the district court's order granting Elizabeth  Fuentes-Rangel's petition for return of their then-5-year-old child, NRW, to Mexico.  On appeal  Woodman argued that  the district court erred as a matter of law by determining NRW's habitual residence based on the facts and  circumstances immediately prior to Woodman's retention. According to Woodman,  the  determination of habitual residence in the prima facie case for the return  of a minor child under the Convention and ICARA is made based on the facts and  circumstances at the time of the hearing or trial. The Eleventh Circuit held that Woodman's interpretation of the law was incorrect. To establish a prima facie case for return of a child,  the petitioner must establish by a preponderance of the evidence the child has  been "wrongfully removed or retained within the meaning of the Convention."22 U.S.C. s 9003(e)(1)(A). Article 3 of the Convention, in turn, provides a retention is "wrongful" if, among  other things, "it is in breach of rights of custody attributed to a person ...  under the law of the State in which the child was habitually resident  immediately before the removal or retention." Thus, a threshold question in deciding a case under the  Convention is, what was the child's habitual residence "immediately before the  removal or retention."?. The district court's interpretation of the law was correct.