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Saturday, April 5, 2025

Tatari v Durust, Not Reported in Fed. Rptr., 2025 WL 947009 (Second Circuit, 2025) [Turkey] [Petition granted] [Habitual residence][Breach of custodial rights]


In Tatari v Durust, Not Reported in Fed. Rptr., 2025 WL 947009 (Second Circuit, 2025) the Second Circuit affirmed the February 3, 2025, judgment granting the petition of Petitioner-Appellee Zühtü Tatari and ordering that O.T., the parties’ joint child, be returned to Türkiye.

Dürüst and Tatari obtained a Divorce Decree from a Turkish family court in 2022, which orders that Dürüst be appointed custody of O.T. and approves and recites various provisions of a Divorce Protocol to which the parties agreed. The Decree appends Section 3.7 of the Protocol, which relates to the relocation of O.T. abroad. Section 3.7 reads: “[Dürüst] agrees, acknowledges, and undertakes irrevocably that if she decides to live abroad together with the joint child, she will obtain the approval and opinion of [Tatari].” Dürüst relocated O.T. to New York in August of 2024, without first notifying Tatari or seeking his consent. Tatari brought the present action, petitioning for the return of O.T. to Türkiye pursuant to the Hague Convention. After granting Tatari’s summary judgment motion in part, the district court held an expedited bench trial on the issue of whether O.T.’s removal violated Tatari’s custodial rights under Turkish law. The court then ruled in Tatari’s favor, and Dürüst appealed.

 The  Court observed that in cases arising under the Hague Convention and [the International Child Abductions Remedies Act], it reviews a district court’s factual determinations for clear error.” Mota v. Castillo, 692 F.3d 108, 111 (2d Cir. 2012). “It reviews de novo a district court’s interpretation of the Convention and its application of the Convention to the facts.” “In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination must be treated as a ruling on a question of law.”  

 On appeal, Dürüst challenged only the district court’s determination as to the second prong of the analysis, whether the removal was in breach of Tatari’s custodial rights under Turkish law.

 Tatari argued that a plain reading of Section 3.7 requires Tatari’s consent before O.T. may be relocated abroad and that this plain reading of the Divorce Protocol ought to be the end of the dispute. Dürüst contended that Section 3.7 is not enforceable under Turkish law and that its legal meaning is far from plain. The Court saw no reason here, where Dürüst is free to pursue an order from the Turkish court conclusively supporting her right to move abroad under the Divorce Decree, to disagree with the District Court’s assessment of the experts’ relative credibility. The Hague Convention counsels in favor of sending children back to their habitual residence so that close cases can be resolved in the family courts where they originated. Therefore, it concluded that the evidence before us supported the finding that Tatari had an enforceable right under Turkish law to determine O.T.’s country of residence, which, regardless of who had “custody,” is a protected custodial right under the Hague Convention that Dürüst breached by moving O.T. to the United States without his approval. Tatari’s custodial rights were breached, making the removal wrongful.

The Court acknowledged that Dürüst reasonably relied on ambiguous statements by Turkish courts and Tatari’s contemporaneous statement, memorialized in the Divorce Decree, that he understood the Protocol not to be independently enforceable. It believed that Dürüst’s reading of the Divorce Decree and its legal effects was likely an honest mistake of law. And it remained possible that Dürüst would secure a decision from a Turkish court confirming her own reading of the Protocol and unambiguously permitting her relocation. For that reason, assessment of costs against Dürüst in this case would be “clearly inappropriate.” Ozaltin v. Ozaltin, 708 F.3d 355, 375–76 (2d Cir. 2013) (“Although mistake of law is not a defense to the return action itself, it is a relevant equitable factor when considering whether a costs award is appropriate.”).

 

Morales v Restrepo, 2025 WL 939294 (E.D. New York., 2025)[Colombia] [Petition granted][Habitual residence] [Defenses of consent or acquiescence not established]

 

In Morales v Restrepo, 2025 WL 939294 (E.D. New York., 2025) the court granted the petition for the return of the parties’ five-year-old child, L.C., to Colombia from New York.

Petitioner, Sebastian Correa Morales, and respondent, Juliana Escobar Restrepo, were both born in Medellin, Colombia. Respondent lived in the United States for twenty years beginning at nine years of age. She is a citizen of the United States and Colombia. The petitioner and respondent met in Colombia and became romantically involved around October 2014, during which time the respondent was in Colombia for roughly three months studying for her medical exam. Soon after the respondent returned to New York in January 2015, the petitioner relocated to New York to live with her in July 2015. They married in New York in September 2015. Through the respondent, the petitioner became a citizen of the United States and holds dual citizenship with Colombia. From 2017 to 2019, the respondent attended a physician assistant program, from which she received a master’s degree in 2019. In September 2019, when the respondent was pregnant with L.C., the parties moved together to Florida. In October of that same year, the respondent became certified to practice as a physician’s assistant in the United States. Respondent gave birth to the child, L.C., in January 2020 in Miami, Florida. Due to the COVID-19 pandemic and being a new mother, the respondent did not begin working as a physician’s assistant until January 2021, when she joined a psychiatrist’s office at which she provided telemedicine services. At the end of that year, the parties sold some of their furniture and moved with L.C. and the rest of their belongings to Medellin, Colombia in December 2021. The parties lived together in Colombia until they separated in August 2022. At first, they lived together and divided their time between their mothers’ houses in El Carmen and Itagui while they worked on building a house in El Carmen. El Carmen is located in a rural area roughly 80 miles outside of Medellin; Itagui is located near. By November 2022, the parties each moved into their respective mothers’ houses, both located in Itagui and roughly a five-minute drive apart. During this time, the parties co-parented L.C., who stayed with the petitioner every other weekend and visited with the petitioner during the week.

 

Due to privacy laws, the respondent was unable to practice remotely as a physician’s assistant in the United States while located in Colombia and became unemployed in April 2022. Respondent was unable to find other employment because the position of physician’s assistant does not exist in Colombia, and her master’s degree did not aid in her job search outside of the United States.  Upon the parties’ separation, the respondent indicated to the petitioner on multiple occasions that she wanted to move back to the United States, in part to find work in her field. In February 2024, Delmoral filed a Verified Complaint for Divorce (“Complaint”), signed by the petitioner, in New Jersey state court and emailed service of the Complaint to the respondent on April 10, 2024. The Complaint lists residential addresses for the petitioner in New Jersey and the respondent in New York and calls for the respondent to retain full physical custody of L.C. The Complaint is not signed by respondent.

 

Respondent made the decision to move to the United States in November 2023. Around November or December 2023, respondent decided to move to Florida instead of New York and expressed to petitioner that she would do so “depending” on her employment and “work/life balance.”. In late 2023 and early 2024, respondent prepared for the move. She sold her car to petitioner, informed L.C.’s daycare that he would not return, and gave away some of her belongings. Respondent purchased a one-way airplane ticket from Medellin to Orlando, Florida. That same month, petitioner registered the child as a Colombian citizen with the Office of Civil Registry in Colombia. Petitioner then provided a written authorization, as required by Colombian law, for L.C. to travel to the United States from January 26, 2024, to May 15, 2024, for purposes of “tourism.” On January 26, 2024, respondent traveled from Colombia to the United States with L.C. On arriving in the United States, respondent and L.C. moved in with respondent’s cousin and her family in Kissimmee, Florida. In March of that year, petitioner and his mother visited L.C. in Florida, and petitioner again visited L.C. in Florida in April 2024. During each of these trips, petitioner picked up L.C. and stayed with him without respondent. On April 28, 2024, petitioner, with respondent’s consent, purchased tickets for respondent and L.C. to travel from Orlando, Florida, to Medellin, Colombia on May 16, 2024—the day after the travel authorization expired.

Respondent and L.C. continued to reside in Florida until relocating on May 4, 2024, to the house of respondent’s mother and stepfather in New York She then informed petitioner that she and L.C. would stay in New York.. Two days after the move to New York, petitioner sent respondent a text message stating, “You’re making unilateral decisions that you wouldn’t like me to make.”. On May 14, 2024, respondent messaged petitioner that L.C. would not travel to Colombia as previously scheduled. Respondent and L.C. did not return to Colombia on May 16, 2024.  

In New York, respondent and L.C. initially resided with family in Fresh Meadows, until June 2024 when they relocated to Queens. At that time, respondent did not disclose to petitioner the address where she and L.C. were living in Queens because she feared that petitioner would take L.C. to Colombia without her permission. Respondent also feared that if L.C. traveled to Colombia, petitioner would refuse to provide a written authorization for L.C. to return to the United States. In August 2024, petitioner took L.C. on a trip to Florida, without respondent’s consent. In text messages that followed, petitioner explained his travel plan; that his intention was not to take L.C. to Colombia, including because he did not have his passports; and that he was “afraid” respondent would not allow L.C. to travel with him because she had “acted unilaterally.”

 

Petitioner filed this action against respondent pursuant to the Convention on November 15, 2024, seeking the return of L.C. to Colombia. The Court found that Colombia was the place of L.C.’s habitual residence immediately prior to his wrongful retention in the United States on May 16, 2024; petitioner was exercising his parental custody rights under Colombian law at that time, and those rights were breached by the wrongful retention; and petitioner’s limited consent to L.C.’s travel to the United States was dependent on multiple conditions that were not satisfied. Accordingly, L.C. was wrongfully retained in the United States on May 16, 2024, in violation of the Convention and had to be returned to Colombia.

 

The Court found that L.C.’s habitual residence at the time of the retention was Colombia. Prior to January 2024, the parties intended to, and did, establish Colombia as L.C.’s habitual residence. When respondent traveled with L.C. to the United States between January and May 2024, the parties did not have a shared and settled intent to change L.C.’s habitual residence to Florida or New York. Nor did the record establish that L.C. became acclimatized during his roughly four-month tenure in the United States prior to the date of the alleged wrongful retention.

 

Between January and May 2024, L.C. resided with respondent in Florida and, to a limited extent, New York. During that time, L.C. did not experience acclimatization to such an extent that his habitual residence changed from Colombia to the United States. L.C.’s time in the United States prior to the alleged wrongful retention spanned only four months during which he moved from Florida to New York. Cf. Papakosmas v. Papakosmas, 483 F.3d 617, 627 (9th Cir. 2007) (finding no acclimatization where children’s life in Greece was in a “permanent state of flux” including three different homes in four months). The majority of L.C.’s family was still located in Colombia, petitioner and L.C.’s paternal grandmother visited L.C. while in Florida, and L.C. retained health insurance coverage in Colombia. See Sundberg v. Bailey, 293 F. Supp. 3d 548, 557 (W.D.N.C. 2017), aff’d, 765 F. App’x 910 (4th Cir. 2019) (finding no acclimatization in part because child “maintained significant contacts” and “regular contact with her father ... aunt and cousins” and “continue[d] to be a patient in the Swedish healthcare system”). Although L.C. attended daycare and engaged with family and friends in Florida, he did not do so during his roughly two weeks in New York. And while respondent presented evidence that L.C. was beginning to learn English during his time in Florida, the record does not indicate that L.C. became proficient beyond “learning some words in English.” Moreover, at this time L.C. had just turned four years old, which suggests that he was too young to become attached to two new environments in the span of a few weeks or months. See Monasky, 589 U.S. at 78; Sundberg, 293 F. Supp. 3d at 557 (finding four-year-old child “not of an age where [she is] strongly attached to any particular school or social environment”). Accordingly, the Court found that L.C.’s habitual residence did not change to the United States—whether in Florida or New York—between January and May 2024.

Pursuant to Colombian law, petitioner had custody rights over L.C. See Civ. Code Col., Arts. 253, 288. Moreover, petitioner was exercising those custody rights at the time of retention on May 16, 2024, in part because he had recently (i) obtained Colombian citizenship for L.C., Tr. 219:10–13; (ii) only authorized travel through May 15, see PX7; (iii) and requested assistance from the parties’ counselor, Gomez, on May 15 after he learned that respondent would not return to Colombia with L.C. the next day,

 

The Court found that respondent has failed to establish the defenses of consent or acquiescence by a preponderance of the evidence. Instead, the record indicated that petitioner conditionally consented to L.C.’s relocation to the United States based on several conditions, including that L.C. live in Florida and travel to Colombia in May 2024. Because those conditions were not met, petitioner’s geographically and temporally limited consent was no longer valid at the time of retention.

 

To support the defense of consent, respondent primarily relied on the following evidence: her testimony that the parties’ “understanding was that L.C. was going to live with [her] permanently in the United States,”; petitioner’s voice message in which he stated that “children belong to the mother,”; and her testimony that the “tourism” designation on the travel authorization form was a formality and did not accurately represent petitioner’s intent. Additionally, Dr. Cadena testified that respondent did not express to him that her move to the United States was subject to any conditions by petitioner, and respondent’s mother testified that, based on her conversations with the respondent, she understood that petitioner did not impose any conditions on respondent’s move to the United States. This evidence supported, at best, that there may have been a miscommunication between the parties. However, it did not constitute a preponderant showing that petitioner provided unconditional consent for L.C.’s permanent relocation.

 

The Court found that petitioner established by a preponderance of the evidence that he placed two conditions on L.C.’s potential relocation to the United States: (1) respondent and L.C. must live in Florida, and (2) L.C. must travel to Colombia in May 2024. Accordingly, petitioner’s consent was limited in time and geography.

 

As to the first condition, the parties discussed that L.C. would be located in Florida, in part because it was geographically near to Colombia. Most compelling, respondent herself told petitioner in February 2024 via text message that she moved to Florida rather than New York “for L.C. to live better and to be closer to Colombia” even though she could “earn[ ] more money” in New York. As to the second condition, petitioner’s travel authorization was sufficient. See Swett, 733 F. Supp. 3d at 277 (finding “notarized travel authorization” with return date “unambiguous[ ]” as to petitioner’s permission for child’s removal “only until that date”). Pursuant to petitioner’s rights under Colombian law, once L.C. became a Colombian citizen in January 2024, respondent could not travel abroad with L.C. unless she obtained written permission from petitioner. Petitioner admits that he registered L.C. as a Colombian citizen without respondent’s consent, as he believes it was his right to do. Respondent was upset by petitioner’s actions and argues this is part of a broader pattern of petitioner’s bad faith as to L.C.’s relocation. That petitioner registered L.C. as a Colombian citizen without respondent’s consent may indicate distrust between the parties, but that alone does not demonstrate that the subsequent travel authorization was invalid. Indeed, by respondent’s account, petitioner took this step so that he could require the respondent to obtain his permission to leave Colombia with L.C. Petitioner did so to exercise control over L.C.’s residence and provided that permission via a written authorization, allowing L.C. to travel to the United States from January 26 to May 15, 2024, for purposes of “tourism.” PX7; Tr. 100:18–101:3. This lends further support that petitioner did not give blanket permission for L.C.’s move and, to the contrary, that he wanted to ensure L.C.’s return to Colombia.

 

Further, whether petitioner’s designation on the travel authorization that L.C.’s trip was for “tourism” accurately reflected petitioner’s intent or represented a mere “formality” as respondent testified, it was clear that the travel authorization did not indicate that he consented to respondent’s retention of L.C. in the United States after May 16, 2024. See Garcia Moreno v. Martin, No. 08-cv-22432, 2008 WL 4716958, at *11 (S.D. Fla. Oct. 23, 2008) (finding travel authorization that included “nothing” about the child “permanently moving or relocating” did not indicate petitioner consented to permanent removal to the U.S.). The parties disputed the purpose of L.C.’s May 2024 trip to Colombia. Petitioner testified that the purpose of the trip was to “evaluate L.C.’s adaptability in the U.S.,” and to go on vacation, respondent testified the trip was solely for vacation. While the Court found some inconsistency between petitioner’s testimony as to the temporary nature of L.C.’s move to the United States and his later message that the parties had agreed to a “vacation” in Colombia, these explanations were not mutually exclusive. In either scenario, the condition was that L.C. would travel to Colombia. Petitioner purchased airplane tickets for L.C. and respondent to fly to Colombia on May 16, 2024, with respondent’s knowledge In addition to the travel authorization, the parties’ co-parenting counselor, Gomez, testified that a condition of the move to the United States was that L.C. would travel to Colombia to “see” petitioner. Indeed, after respondent informed petitioner that L.C. was not returning to Colombia as scheduled, petitioner immediately reached out to Gomez for an emergency session. This action demonstrated both that petitioner discussed this condition during the parties’ prior sessions with Gomez and that L.C.’s trip to Colombia was a material condition on petitioner’s consent. Petitioner’s swift and strong reaction suggested that there was no doubt as to his intentions that L.C. was required to travel to Colombia in May 2024.

 

Respondent did not fulfill those conditions. Instead, on May 4, respondent traveled with L.C. to New York and just two days later told petitioner that she planned to stay there with L.C., in violation of the first condition that L.C. reside in Florida. The testimony from respondent, her mother, and Gomez that petitioner was aware of the possibility that she may move to New York or Georgia does not support a finding of consent to those locations. And even if respondent did not agree to petitioner’s geographical condition, what is important under the Convention is petitioner’s “subjective intent” in allowing L.C. to travel to the United States. See In re Kim, 404 F. Supp. at 516. Further, respondent testified that she refused to disclose her New York address to petitioner and to bring L.C. to Colombia because she feared that petitioner would take L.C. to Colombia without her permission or decline to provide further written authorization for L.C. to return to the United States.

 

Respondent’s remaining evidence failed to establish petitioner’s consent to L.C.’s indefinite and permanent relocation by a preponderance of the evidence. Accordingly, respondent failed to establish that petitioner consented to a permanent retention of L.C. in the United States or that the conditions of petitioner’s limited consent were satisfied such that the Convention does not require return of L.C. to Colombia.

 

Thursday, February 20, 2025

Tatari v Durust, 2025 WL 327984, Not For Publication, (United States District Court, E.D. New York, 2025) [Turkey] [Habitual residence][rights of custody] [ne exeat right]

 

[Turkey] [Habitual residence][rights of custody] [ne exeat right]

In Tatari v Durust, 2025 WL 327984, Not For Publication, (United States District Court, E.D. New York, 2025) the district court granted the Petition of Zuhtu Onur Tatari to have his son, O.T., returned to Turkey.

 

The issue before the court was whether or not Tatari and his ex-wife Durust’s divorce decree (“DD”) gave Tatari rights under Turkish law which the Hague Convention recognizes as custodial. Although the terms of the Divorce Decree were unambiguous in awarding Tatari certain custodial rights, the terms were in tension with Turkish law that does not formally recognize joint custody.  The parties, who were married in 2016, had O.T. in 2018, and divorced in January 2022. The court previously found that Tatari had shown the first element of his Hague Convention case, that Turkey was O.T.’s habitual residence at the time Durust and O.T. moved to Brooklyn. In Turkey, for a married couple to be granted an uncontested divorce, they must present a signed divorce protocol to the court (Turkish Civil Code (“TCC”) Art. 166/3. The Turkish court must review the protocol, hear the parties’ statements regarding their decision to divorce and the construction of the protocol, and decide whether to adjust any provisions of the protocol. Any adjustments by the judge will be recorded in the divorce decree, which then can be approved by the court and the parties. The parties submitted a much-negotiated protocol to the Turkish family court. Tatari testified that he was especially concerned with the provisions governing visitation, O.T.’s schooling, country of residence, and healthcare. Durust testified she was most concerned about having sole custody of O.T. After hearing the parties’ statements and some discussion, the judge modified the visitation schedule slightly but did not adjust the other provisions of the Protocol. The Protocol was included in the Divorce Decree according to TCC Art. 184/5, and the exclusion of the Protocol’s visitation schedule was noted.

 

At summary judgment, the parties disputed the correct translation of Section 3.7. Tatari’s preferred translations obligated Durust to “obtain the approval and opinion” of Tatari if “she decides to live abroad together with” O.T., while Durust’s preferred translation obligated her only to “consult and seek the opinion” of Tatari “where she decides to live abroad together with” O.T. At trial, Tatari presented two experts, who testified that his preferred translation was a truer rendition of the original Turkish. The Court found that Tatari’s preferred translation of Section 3.7 was more faithful to the Turkish original.

 

Turning to the remainder of the Divorce Decree’s recitations in the Protocol, Section 3.8 obligated Durust to “obtain the approval and opinion of” Tatari “when any decision is required with regards to the health status” of O.T.  In the fall of 2023, Durust asked Tatari to sign a consent form to renew O.T.’s American passport, which Tatari refused to do. As a result, Durust filed a lawsuit in a Turkish court to allow O.T. to receive an American passport without Tatari’s signature. In her complaint, she explained that the American consulate officials would require her to get Tatari’s signature even if Durust has sole custody of O.T. In December 2023, Durust and O.T. traveled to the Ivory Coast, where she was able to obtain an emergency U.S. passport for O.T. without Tatari’s signature.  Following Durust and O.T.’s return to Turkey, Tatari filed a petition for custody of O.T. He also sought a preliminary injunction for custody of O.T. The Turkish court rejected his request for a preliminary injunction “since the request is of the essence of the case and requires a trial. In July 2024, Tatari petitioned the Turkish court overseeing the passport case to prevent Durust from taking O.T. abroad and to notify the Turkish and American authorities of this. Two days later, the Turkish court denied his request “since the parties were divorced, the mother has custody,” and “the party with custody rights may use her rights arising from custody, and she has the initiative to go abroad.” On August 20, 2024, Durust flew to America with O.T. She failed to advise Tatari of the move, much less seek his approval. The next day, she emailed him indicating her intention to remain in America. After Durust’s move to America, she filed a third action in Turkish court to change Tatari’s visitation schedule for O.T. given their move to America, which was currently pending. Finally, in October 2024, Tatari sought to expedite the custody case in Turkish court, which the family court declined to do. Nonetheless, Tatari’s witnesses were heard in that case on November 28, 2024, and Durust’s witnesses were scheduled to be heard in February 2025.

 

The provisions of the Protocol were approved by the judge according to TCC Art. 184/5, which provides validity to agreements as to accessorial consequences of divorce upon judicial approval. Because the judge approved the provisions of the Protocol, Tatari had at least some right to the interests established there. Based on the evidence presented at trial, the court found that under Turkish law, the provisions of the Protocol—and specifically Sections 3.7 and 3.8—provide Tatari “rights relating to the care of the person of the child.” In sum, the court held that under the Turkish Divorce Decree Tatari had the right to approve, or disapprove, certain decisions about O.T.’s life, including whether he may live abroad.

 

The Court held that Tatari’s right to approve or disapprove decisions about O.T.’s residence is precisely the type of right the Hague Convention recognizes as custodial. In Abbott, the Supreme Court explained that a ne exeat right was a right to “determine” the child’s place of residence because the parent can effectively limit the child’s country of residence to only the home country. 560 U.S. at 11. The child’s home country may have important influences on the child’s absorption of culture and traditions as well as his education. Id. at 11-12. Therefore, a ne exeat right is the sort of custodial right that allows the parent to effect his influence on the child. When a parent’s “consent is legally required before the other parent may move the child to another country,” that parent has a custodial right to determine the child’s residence recognized by law. Radu v. Toader, 463 F. App’x 29, 30 (2d Cir. 2012).

 

Persuasive caselaw from other circuits showed that Tatari’s ability to object to O.T.’s relocation abroad and present a claim subsequent to that relocation was sufficient to constitute a custodial right. In Palencia v. Perez, the Eleventh Circuit considered an unmarried father’s custody right of patria potestad under Guatemalan law. 921 F.3d 1333, 1339 (11th Cir. 2019). Guatemalan law provided that all natural parents, whether or not married, have the right and duty to exercise the parental authority of patria potestad, but that when the parents are not married, “the children shall be in the mother’s custody.” Id. at 1339-40. The mother argued that because she had custody over the children, the father could not have an effective patria potestad. The Eleventh Circuit rejected this conclusion because Guatemalan law “provides an unmarried father with certain obligations (and therefore certain rights) with respect to his child, with the caveat that ... the mother [has] the final say when the parents disagree on a given issue.” Id. at 1341. Because the father had the authority to participate in the decision-making about his child’s residence, he had a right of custody, despite the fact that the mother had the final say. Id. at 1342. Here too, even under Durust’s reading of the Divorce Decree, Tatari has the right to participate in making decisions about O.T.’s residence, even if Durust has the final say.

 

The Court concluded that Tatari had shown that he had a custodial right, specifically a ne exeat right, under Turkish law which was infringed when O.T. was brought to the United States without 

District Court Cases in Districts other than New York Published in 2025

Laing v Laing, 2025 WL 606741 (United States District Court, N.D. Illinois, 2025)
[France] [Petition denied] [Consent Defense Established]

 Arrabi v Kerroum, 2025 WL 486676 (United States District Court, N.D. Georgia, 2025)[Morrocco][Petition granted][Habitual residence][Consent and Acquiescense defenses not established]

Ontiveros v Pinion, 2025 WL 446749 (United States District Court, W.D. Washington, 2025).
[Mexico][Petition granted][Habitual residence][Defendant barred from raised well settled defense][Consent defense not established]

Ciampa v Nichols, 2025 WL 521009 (United States District Court, C.D. California, 2025)[Italy][Petition granted][Grave risk of harm not established][Coercion not established]

Aguirre v Hernandez, 2024 WL 4879400 (United States District Court, D. Colorado, 2025)[Canada] [Petition granted][wrongful retention]

Alzu v Huff, 738 F.Supp.3d 1157 (United States District Court, W.D. Missouri, 2024)[Argentina] [Petition denied] [Habitual residence not established] 

Moreau v White, 2024 WL 5315404 (United States District Court, E.D. Texas, 2024)[Canada] {Motion to dismiss pursuant to Younger, Colorado River, and Rooker-Feldman abstention doctrines denied] 

Ikezogwo v. Fatiregun, 2025 WL 35470 (United States District Court, E.D. Pennsylvania, 2025).
[United Kingdom] [ Petition granted] [Prima facie case established] [Grave risk of harm not established]

 

Sunday, January 12, 2025

Bindslev v Silve, Not Reported in Fed. Rptr., 2025 WL 66745 (11 Cir., 2025) [Denmark] [Petition granted] [ Return Order affirmed] [ Enforcement Order vacated]

 

 

In Bindslev v Silve, Not Reported in Fed. Rptr., 2025 WL 66745 (11 Cir., 2025) the district court found that Silva had wrongfully removed her child, I.S.B., to the United States and required her to return I.S.B. to Denmark. In the “Enforcement Order,” which was issued after the Return Order was pending on appeal, the district court required Silva to turn I.S.B. over to her father, Christian Bindslev, in Florida. The Eleventh Circuit affirmed the Return Order and vacated the Enforcement Order.

The Eleventh Circuit explained that when considering a district court’s order under the Hague Convention, the Court reviews a district court’s findings of fact for clear error and its legal conclusions and applications of the law to the facts de novo.

The Eleventh Circuit held that the district court did not err in ordering I.S.B.’s return to Denmark. When one parent removes a child from another country to the United States, a U.S. court can order the child’s return to his or her “country of habitual residence” if the non-removing parent proves “by a preponderance of the evidence, that [the] child was ‘wrongfully removed or retained within the meaning of the Convention.’ ” Chafin v. Chafin, 742 F.3d 934, 935, 938 (11th Cir. 2013) (quoting 42 U.S.C. § 11603(e)(1)(A)).

In the Return Order, the district court found that Bindslev had made out a prima facie case for return. Silva asserted that the court further found that return would expose I.S.B. to a “grave risk of harm” and that the “ameliorative measures” that the court imposed were ineffective. In the alternative, she argued that the district court was required, but failed, to make a finding on the grave-risk-of-harm issue.

The Eleventh Circuit disagreed. As it read the Return Order, the district court found that Silva had not established a grave risk of harm. In relevant part, the Order stated as follows: “Although [Silva] argued that returning the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, this Court found that the court in Denmark was fully capable of protecting the child if necessary.” The district court could have expressed itself more clearly, but by beginning its statement with the word “[a]lthough,” it sufficiently indicated its consideration, and rejection, of Silva’s grave-risk argument. The court’s reference to the Denmark court’s capacity to protect I.S.B. did not suggest otherwise. Although Silva contended that the remark refered to an ameliorative measure, and therefore suggested that the court found that she had established the requisite grave risk, the capacity of Denmark’s tribunals to protect I.S.B. was not a court-imposed ameliorative measure, but rather an independently existing fact.

The Eleventh Circuit observed that it reviews de novo questions on the jurisdiction of the district court. It held that the district court lacked jurisdiction to issue the Enforcement Order while the Return Order was pending before it on appeal. Absent entry of a stay on appeal the District Court retains jurisdiction to enforce its orders. But the filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal. Accordingly, the  district court does not have the power to alter the status of the case as it rests before the Court of Appeals.

 The Enforcement Order purported to alter the status of an issue involved in a pending appeal. The Return Order stated that “[I.S.B.] shall not be turned over to [Bindslev].” In stark contrast, the Enforcement Order stated that Silva will “surrender [I.S.B.] to the custody and possession” of Bindslev. That was not a valid “enforcement” of the Return Order. Rather, it was an attempted amendment of a portion of the Return Order that was inseparably involved in a pending appeal before the Court. The district court had no jurisdiction to do so. Accordingly, it vacated the district court’s Enforcement Order.

 In a footnote, it pointed out that the Return Order did not violate Federal Rule of Civil Procedure 52(a)(1), as Silva contended. The Order incorporated “the reasons stated on the record,” and those reasons were sufficiently detailed to clear Rule 52’s low bar. See Compulife Software Inc. v. Newman, 959 F.3d 1288, 1308–09 (11th Cir. 2020)

 

 

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Sunday, December 22, 2024

Nisbet v Bridger, 2024 WL 5178814 (9th Cir, 2024) [Scotland] [Petition denied] [Habitual residence]

 In Nisbet v Bridger,  2024 WL 5178814 (9th  Cir, 2024) the Ninth Circuit, construing the Supreme Court decision in Monasky v Taglieri, 589 U.S. 681, 40 S.Ct. 719, 206 L.Ed.2d 9, affirmed an order of the district court which denied Andrew Nisbet's petition under the Hague Convention for the return to Scotland of his two young children,1 ACN (born in February 2018) and KRN (born in February 2020).

 Nisbet and Bridger met in 2012 in New York City when they were both on vacation. Nisbet lived and worked in Scotland as a radiologist. Bridger, a United States citizen, lived in Oregon and was unemployed. Bridger moved to Scotland in 2012 to be with Nisbet because he purportedly could not work in the United States as a radiologist. They lived in an apartment in Edinburgh that Nisbet owned. In Spring 2017, Bridger became pregnant with ACN in Scotland. Adamant about their residence, Nisbet asked to live with his parents. His parents turned them down. Shortly thereafter, Nisbet attempted suicide. Nisbet then took Bridger to Jersey, and they showed up on the doorstep of Nisbet’s parents who relented and allowed them to stay at an annex of the Jersey Residence temporarily while Bridger was pregnant with ACN. In January 2018, Nisbet again attempted suicide. In February 2018, ACN was born in Jersey. Bridger took care of both ACN and Nisbet for six months in Jersey, with minimal assistance from Nisbet’s parents. In August 2018, Bridger moved from Jersey to Scotland with ACN. Nisbet still lived in Jersey but commuted between Jersey and Edinburgh. During this period, Bridger prepared to leave for the United States, but Nisbet convinced her to stay for a few more months. In February 2019, Bridger returned to Jersey with ACN after Nisbet assured her that he had reconciled with his parents. Despite this assurance, Nisbet’s relationship with his parents deteriorated. Nisbet would bang his head against the wall every day, sometimes several times a day. He punched walls and broke a table. The police were called when Nisbet once cornered his father and pulled his mother’s hair. Bridger told Nisbet she no longer loved him and wanted to return to the United States.  In early August 2019, Nisbet’s parents served a notice of eviction on Nisbet and Bridger. On August 6, 2019, Nisbet killed his mother by stabbing her in the neck with a pocketknife. He was arrested and pleaded guilty to manslaughter on the grounds of diminished responsibility owing to a mental disorder. The Royal Court of Jersey sentenced Nisbet to indefinite psychiatric confinement at Brockfield House in Essex, England. The district court found that Nisbet’s family had since severed contact with Nisbet, Bridger, and ACN. Around the same time, by August 2019, Bridger had become pregnant with KRN. After Nisbet was arrested, Bridger and ACN were taken to a refuge and then to a halfway house in Jersey. Bridger planned to return to the United States once she was no longer needed for the police’s investigation of Nisbet. As KRN’s due date neared, Bridger instead moved to the Edinburgh Residence in late 2019 to give birth to KRN because she did not have health insurance in the United States, she had no other place in the United Kingdom to live with her children, and she believed she needed to remain in the country while Nisbet’s criminal case was pending, Bridger still planned to leave for the United States shortly thereafter, if she were released by the police authorities. KRN was born in February 2020. Then, the COVID-19 pandemic hit; country borders and airlines were closed. From then until June 2022, and during the COVID-19 restrictions period, Bridger lived in the Edinburgh Residence with ACN and KRN. Bridger kept in contact with Nisbet because she needed Nisbet’s signature to apply for KRN’s U.S. passport, she needed financial support from Nisbet, and her U.K. visa was expiring. Bridger told Nisbet multiple times she needed to return to the United States and reunite with her family. While in Edinburgh, ACN and KRN attended a nursery school, and they received regular medical and dental care. Bridger testified that ACN and KRN “didn’t actually make friends when they were in Scotland at nursery.” They made acquaintances elsewhere, “but they never knew anyone on a name basis.” ACN and KRN visited Nisbet several times at St. Andrew’s Hospital in Northampton, England, where Nisbet has been in custody since April 2021. Nisbet scheduled Skype calls with ACN and KRN from his psychiatric facility in England every day for an hour. He tried to read stories and play games with them, but often after a short period, ACN and KRN stopped paying attention to Nisbet on the screen. Bridger never intended Scotland to be more than a temporary location for her and her children. In December 2021, Nisbet finally signed the necessary documentation for KRN’s U.S. passport, knowing Bridger intended to take KRN to the United States. Bridger immediately applied for a U.S. passport for KRN. While waiting for months to receive KRN’s U.S. passport, Bridger began packing and sent belongings to the United States. On June 17, 2022, Bridger left Scotland for the United States with ACN and KRN.  On June 12, 2023, Nisbet filed a petition under the Hague Convention. On October 24, 2023, six days after the trial, the District Court denied Nisbet’s petition, finding, inter alia, that Nisbet failed to prove by a preponderance of the evidence that Scotland was ACN and KRN’s habitual residence. Nisbet appealed.

The Ninth Circuit observed that in general, a child’s habitual residence is “the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a ‘degree of settled purpose’ from the child’s perspective.” For older children capable of acclimating to their surroundings, courts have long recognized, facts indicating acclimatization will be highly relevant.” Monasky, 589 U.S. at 78. Such facts include “geography combined with the passage of an appreciable period of time,” “age of the child,” “immigration status of child and parent,” “academic activities,” “social engagements,” “participation in sports programs and excursions,” “meaningful connections with the people and places,” “language proficiency,” and “location of personal belongings.” Id. at 78 n.3. “Because children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are relevant considerations. “No single fact, however, is dispositive across all cases.”. Courts determine a child’s habitual residence by looking at “the totality of the circumstances specific to [each] case,”, and they must be “sensitive to the unique circumstances of [each] case and informed by common sense,” id. at 78.  “The bottom line: There are no categorical requirements for establishing a child’s habitual residence.” A habitual-residence determination is a mixed question of law and fact. A trial court must first correctly identify the totality-of-the-circumstances standard. Once it has done so, what remains is a factual question that can be reviewed on appeal only for clear error.  Under this standard of review, it cannot reverse a district court’s finding that is “plausible in light of the record viewed in its entirety,” even if convinced that it would have found differently. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574 (1985). If “there are two permissible views of the evidence,” the trial court’s “choice between them cannot be clearly erroneous.” This standard of review is deferential, so much so that the Supreme Court has adopted it in the Hague Convention context with the goal to “speed [] up appeals.” Monasky, 589 U.S. at 84.

The Ninth Circuit pointed out that when Bridger lived with ACN and KRN in Scotland from late 2019 through June 2022, ACN was approximately two to four years old, and KRN was less than two and a half years old. Their ability to acclimatize to society was limited at the time. That said, the district court considered whether ACN and KRN could have acclimatized to Scotland through three likely ties: people in the societal surroundings, Nisbet’s family and friends, and Nisbet. The district court found ACN and KRN did not make any friends at their nursery school or elsewhere in Scotland. Nisbet’s family severed contact with Nisbet, Bridger, and their children. The district court considered ACN and KRN’s lack of connection with Nisbet. Nisbet had been incarcerated since KRN’s birth; he lived with ACN only intermittently for at most a year, half of which time he was bedbound because of his second suicide attempt. Nisbet himself had not lived in Scotland since 2017—he first lived in Jersey, then he was confined at Brockfield House in Essex, England, and thereafter transferred to St. Andrew’s Hospital in Northampton, England. Granted, Nisbet tried to interact with ACN and KRN over Skype from his psychiatric internment in England every day for an hour. Often after a short period, however, ACN and KRN stopped paying attention to Nisbet on the screen. There was no clear error when the district court concluded ACN and KRN “had no family or friends in Scotland” and “no meaningful relationship with their father.”

The Court observed that district court followed the Supreme Court’s teaching in Monasky that “the intentions and circumstances of caregiving parents are relevant considerations,” when a child,like ACN, less than four and a half years old by June 2022, and KRN, less than two and a half years old at the time, is unable to acclimate due to his very young age or other reasons. On the mother’s side, Bridger’s intention and circumstances militated against finding Scotland to be ACN and KRN’s habitual residence because, as the district court observed, Bridger “had been shuttled through Jersey shelters,” “repeatedly contemplated moving back to Oregon,” and was in the United Kingdom “on an expiring visa.” Therefore, the district did not clearly err in placing significant weight on Bridger’s lack of ties to Scotland when ascertaining ACN and KRN’s habitual residence. See Monasky, 589 U.S. at 80 n.4 (recognizing the mother’s integration to a country as a “highly relevant” factor, if a young child is “in fact looked after by her mother”. On the father’s side, the district court afforded little weight to his role as a caregiver. The district court found Nisbet arguably “raised ACN in earnest” only “for the six months between February and August 2019,” and he did not raise KRN at all because he had been imprisoned before KRN’s birth. It did not find the district court committed a clear error in focusing on the intention and circumstances of Bridger, the sole caregiving parent of ACN and KRN.

Nisbet contended the district court clearly erred simply because it found ACN and KRN lacked habitual residence altogether. The Court responded that this contention is tantamount to a categorical ban against finding no habitual residence. As the Supreme Court has made clear, the “bottom line” is “[t]here are no categorical requirements for establishing a child’s habitual residence.” Monasky, 589 U.S. at 80. While a finding of no habitual residence is rare and should be disfavored, it is not a clear error to render such a finding if the totality of the circumstances of a particular case so warrants.

Nisbet maintained the district court clearly erred in finding ACN and KRN had not habitually resided in Scotland, “where they had lived for two years and four months in the same apartment, where they had attended the same preschool, [and] where all of their medical and dental visits had occurred.” The Majority responded that Supreme Court has held a child’s “mere physical presence” in a country “is not a dispositive indicator of” his habitual residence. Monasky, 589 U.S. at 81; see also id. at 78 (reasoning that a place is just “likely” to be a child’s habitual residence, if the child has lived there “with her family indefinitely”. Nor is the attendance in any preschool determinative. See id. at 78 (“No single fact” “is dispositive across all cases.”). The ultimate object for evaluating a child’s social engagement is to assess acclimatization. Id. at 78 & n.3. Where, as here, factors such as physical presence and preschool attendance did not yield any meaningful social connections for a child, they are not entitled to much salience in courts’ habitual-residence determinations. Therefore, there was no clear error on the district court’s part.

The Ninth Circuit emphasized that it owed  obedience to the Supreme Court, which has encouraged trial courts to make habitual-residence determinations based on “a quick impression gained on a panoramic view of the evidence.” Monasky, 589 U.S. at 82. Reviewing such determinations for clear error, it owes deference to trial courts, which enjoy the vantage point of observing witnesses’ demeanor, candor, and other indicia of credibility.

 

 

Friday, November 22, 2024

Stein v. Kohn, 2024 WL 4848986 (2d Circuit, 2024) [Canada] [Petition denied] [now settled defense established]


In Stein v. Kohn, 2024 WL 4848986 (2d Circuit, 2024) Petitioner-Appellant Raphael Stein (“Stein”) appealed pro se from the denial of his petition for the return of his three Canadian-born minor children to Montreal, Canada. The petition alleged that the children’s mother, Adeena Kohn (“Kohn”), wrongfully retained the minors in Monsey, New York, after a trip to this country in 2020. Stein faulted the district court’s findings, following a bench trial, that (1) his return petition was untimely filed more than a year after the alleged wrongful retention and (2) the children were “now settled” in Monsey. 

The Court reviewed the district court’s factfinding for clear error and its “application of the Convention to the facts” de novo. The clear error standard is deferential, and the Court will “accept the trial court’s findings unless we have a definite and firm conviction that a mistake has been committed.” Tereshchenko v. Karimi, 102 F.4th 111, 124 (2d Cir. 2024) (quoting Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013)). Because Stein appealed pro se, it construed his briefs liberally to raise the strongest arguments they suggest. 

Stein primarily argued on appeal that Kohn’s wrongful retention of the children occurred not in March or October 2021, but instead at some point in January 2022, when he realized that Kohn had changed the locks on her apartment. The Court observed that the distinction mattered because, if credited, it would mean that Stein’s December 2022 petition was timely and foreclose Kohn’s defense that the children are “now settled” in this country, thereby requiring their return to Canada. It pointed out that in cases where the petitioning parent originally consented to the child’s stay outside its habitual residence, wrongful retention occurs on the date that the petitioning parent is informed that the co-parent will not be returning the child to its country of habitual residence. See Marks, 876 F.3d at 421–22. It saw no error in the district court’s finding that the wrongful retention of the children here occurred on March 6, 2021, or, at the latest, on October 4, 2021. On March 5, 2021, Stein told Kohn that he did not agree with the children staying in New York permanently and that he wanted the family to resume living in Canada as soon as possible. The next day, Kohn responded that the parents were not on the same page and that she would not return to Montreal. Because the parties agreed that Kohn would not live apart from the children, the district court reasonably found that “Stein understood Kohn would keep the children with her wherever she was living.” Alternatively, Kohn’s October 4, 2021 divorce filing, where she sought custody of the children, clearly alerted Stein to her intent to remain in New York with the children. See Hofmann v. Sender, 716 F.3d 282, 291 (2d Cir. 2013). Either way, the wrongful retention occurred more than a year before Stein filed his petition on December 19, 2022, meaning the “now settled” defense was available to Kohn.

 The Second Circuit stated that Article 12 of the Convention requires the district court to grant even an untimely petition for the return of the child to its habitual residence, “unless it is demonstrated that the child is now settled in its new environment.” The respondent bears the burden of proving this “now settled” defense by a preponderance of the evidence. In determining whether a respondent carried this burden, a district court properly considers whether “the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment,” Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir. 2012), an inquiry informed by the following non-exhaustive factors: (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 daycare 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. Here, the district court carefully evaluated each factor. Viewing the record as a whole, it identified no clear error in its factual findings. The children, who at the time of trial were seven, five, and three, had “lived in Monsey for at least half their lives,” with the youngest having “lived in Monsey nearly her entire life.” Thus, the district court reasonably found that “most, if not all,” of the two elder children’s “memories are likely of Monsey, not Montreal.” The district court further found the children to have lived continuously in the same apartment complex for the whole of their time in Monsey, surrounded by their maternal grandparents, “great-grandmother, aunts, and several of the children’s cousins.” Also, each child had consistently attended daycare and school in Monsey and regularly joined Kohn’s extended family at their local synagogue. The children frequently played with local friends and cousins. Nor was there any risk of deportation given that “Kohn is [a] U.S. citizen, and at least the two older children [already] have U.S. passports.” The only factor weighing against settlement is Kohn’s failure to maintain stable employment in New York. The district court was not required to accord this factor great weight because Kohn had the support of her family, and the children enjoyed a stable environment throughout their time in Monsey.