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Sunday, October 2, 2022

Recent Hague Convention District Court Cases - Radu v Shon, 2022 WL 4535419 ( D. Arizona, 2022).

 

Radu v Shon, 2022 WL 4535419 ( D. Arizona, 2022).

[Germany][Petition granted] [Request for third Stay denied]


 On August 22, 2022, the Court granted Radu’s Petition for Return of Children to Germany. Respondent filed a Notice of Appeal and a Motion to Stay the Court’s Third Return Order pending the appeal . The Court held that in considering whether to stay a return order in a Hague Convention case, courts consider the traditional stay factors: “(1) whether the stay applicant has made a strong showing that [s]he is likely to succeed on the merits; (2) whether the applicant will be irreparably inured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Chafin v. Chafin, 568 U.S. 165, 179 (2013). The Court did not find that Respondent had made a strong showing that she is likely to succeed on the merits of her appeal. The second factor weighed in favor of a stay because returning to Germany while Respondent’s appeal was pending will be disruptive to Respondent and the children. See Chafin, 568 U.S. at 178 (“shuttling children back and forth between parents and across international borders may be detrimental to those children”). The third factor weighed strongly against a stay, even though Respondent’s appeal had been expedited. Petitioner has joint custody rights under German law and yet, as a result of Respondent’s actions, he had been unable to see his children in over three years. The testimony and evidence before the Court indicated that Respondent interfered with Petitioner’s ability to contact his children. Respondent’s interference with Petitioner’s ability to see and contact his children has and continues to cause substantial and irreparable injury to Petitioner—and, appears to be causing injury to O.S.R., as well. The fourth factor was neutral, as the public interest favors both the prompt return of wrongfully removed children and the safeguarding of the well-being of children. On balance, the relevant factors weighed against granting a stay pending resolution of Respondent’s appeal. However, the Court granted Respondent’s alternative request to temporarily stay its Third Return Order until the Ninth Circuit Court of Appeals rules on a timely filed motion to stay.

 

Tuesday, September 20, 2022

Recent Hague Convention District Court Cases - Tsuruta v Tsuruta, 2022 WL 4299814( E.D. Missouri, 2022)

 Tsuruta v Tsuruta, 2022 WL 4299814( E.D. Missouri, 2022)

[Japan] [Petition granted] [Habitual residence] [Grave risk of harm not established][Consent or acquiescence not established]

 

In Tsuruta v Tsuruta, 2022 WL 4299814( E.D. Missouri, 2022) the Petitioner demonstrated, by a preponderance of the evidence, that Japan was the habitual residence of L.T. immediately prior to her removal from Japan on October 15, 2021. There was significant evidence that L.T. acclimatized to Japan during her time there. Although the evidence regarding the intentions of L.T.’s parents was conflicting, it generally supported a finding that the parents had the settled purpose of creating a home in Japan, perhaps not forever, but for a significant period of time.

As of the time L.T. was removed from Japan, L.T.’s place of habitual residence was Japan. The burden thus shifted to Respondent to establish an affirmative defense to L.T.’s prompt return.

 In her Answer, Respondent asserted two affirmative defenses: (1) that returning L.T. to Japan would expose L.T. to a grave risk of physical or psychological harm; and (2) that Petitioner consented to and acquiesced in Respondent’s retaining L.T. in the United States. In her Answer, Respondent alleged that Petitioner had “abused, isolated, controlled, and assaulted Respondent and the Minor Child, both physically and verbally,” and that “[t]he Minor Child has expressed fear of Petitioner and is afraid of further harm at the hands of Petitioner.” Respondent also alleged that she and the child were held in Japan against their will for twenty months, and that Petitioner “told Respondent that if she ever tried to leave Petitioner’s control, he would kill her.” When she testified at trial, Respondent offered no evidence in support of most of these allegations. The Court found no evidence, let alone clear and convincing evidence, that returning L.T. to Japan would subject L.T. to a grave risk of physical or psychological harm.  In her Answer, Respondent alleged that prior to leaving Japan, she informed Petitioner of her intent to come home to the United States, that Petitioner was aware at all times that Respondent had left Japan with the child for the United States and was in continuous contact with Respondent; and that Petitioner did not make any effort to secure the return of the child until 180 days had passed after the removal and until over 150 days after Respondent filed divorce proceedings. Respondent did not address this defense in her trial brief or in the proposed memorandum opinion she filed after trial. Based on the evidence presented at trial, the Court found that Respondent had not demonstrated, by a preponderance of the evidence, either that Petitioner consented to the removal of L.T. before it occurred or that Petitioner acquiesced in the removal after it occurred.

Recent Hague Convention District Court Cases - Homer v Homer, 2022 WL 4290465 (S.D. Texas, 2022)

 

Homer v Homer, 2022 WL 4290465 (S.D. Texas, 2022)

[Sweden] [Motion for Attorney’s Fees, Expenses and Costs] granted in part and denied in part.

The Court awarded Derek $32,780 for attorney’s fees and $5,205.65 for expenses. Derek filed motion to recover his attorney’s fees, expenses and costs incurred for the return of S.C.H. in the amount o of $40,437 for Derek’s attorney’s fees and $16,198.22 for Derek’s costs and expenses in the United States and Sweden.  The Court observed that he respondent, not the movant. bears the burden of demonstrating that a fee award is clearly inappropriate. Ebele’s response failed to cite any case interpreting or applying the statute in support of an argument that there was an equitable basis for reducing the award of fees and costs. Ebele’s response did  not provide any evidence regarding her financial condition, employment status or other evidence that courts have used as an equitable basis to reduce an award. Instead, Ebele globally argued that the total amount of fees and costs requested are “patently not reasonable.  

Saturday, September 10, 2022

Recent Hague Convention District Court Cases - Radu, v. Shon, 2022 WL 4099225, (District Court, D. Arizona, 2022)

 

[Germany][Petition granted][Grave risk of Harm][Ameliorative measures]

 In  Radu, v. Shon, 2022 WL 4099225, (District Court, D. Arizona, 2022) on December 30, 2021, the Court granted Petitioner Bogdan Radu’s Petition for Return of Children to Germany. Respondent appealed and the Ninth Circuit Court of Appeals remanded for the Court to reconsider its ruling in light of Golan v. Saada, __ U.S. __, 142 S. Ct. 1880 (2022). The Court held a further evidentiary hearing and contacted the United States Department of State for assistance. On December 30, 2021, the Court again ordered Respondent to return O.S.R. and M.S.R. to Germany. The Court recognized that this is “a borderline case whether an Article 13(b) finding is warranted.” The Court further found that the alternative remedy of ordering Respondent to return with O.S.R. and M.S.R. to Germany would ameliorate the risk of psychological harm to O.S.R. and M.S.R. given the unique circumstances of this case, including Germany’s child protection services, the ability of a German court to prioritize child custody matters for expedited processing pursuant to Section 155 of the Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction, Respondent’s joint custody rights under German law, Respondent’s ability to stay in Germany for at least three months, and Petitioner’s commitment to paying, if necessary, for the airfare of O.S.R. and M.S.R., as well as rent for a separate residence for Respondent and the children until a German court makes a custody determination. On June 15, 2022, the United States Supreme Court issued Golan, holding that “consideration of ameliorative measures” after an Article 13(b) finding is not required under the Convention but, rather, “is within a district court’s discretion.” 142 S. Ct. at 1893. The Supreme Court also clarified that a district court’s consideration of ameliorative measures (1) “must prioritize the child’s physical and psychological safety,” (2) must “not usurp the role of the court that will adjudicate the underlying custody dispute,” and (3) “must accord with the Convention’s requirement that the courts act expeditiously in proceedings for the return of children.” “[A] district court reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings.”  The Court, in its discretion, found that consideration of ameliorative measures was appropriate in this case,  and the ameliorative measure set forth in its December 30, 2021 Order—namely, that Respondent return with O.S.R. and M.S.R. to Germany—satisfied the requirements outlined in Golan.

Recent Hague Convention District Court Cases - Ruiz v Zinsou, 2022 WL 3931454, (N.D. Georgia, 2022)

 

[Colombia] [Petition granted]


 

In Ruiz v Zinsou, 2022 WL 3931454, (N.D. Georgia, 2022)the District Court found that  in 2014, Petitioner was deported to Colombia. Sometime in 2015, Respondent moved with K.P.C.A. to Colombia to live with the Petitioner. Though Petitioner and Respondent never married, the family lived together in MedellĂ­n, Colombia from sometime in 2015 until May 28, 2021.Colombian law requires that, before a child leaves Colombia with one parent or a third party, the parent remaining in Colombia sign a “Permiso Para Salir Del Pais.” This document authorizes the child to be out of the country for the dates specified in the document. Petitioner signed and notarized a Permiso Para Salir Del Pais authorizing K.P.C.A. to travel to the United States from May 28, 2021 through June 17, 2021. At the point that Petitioner signed the travel authorization, it was clear that the trip was to be no more than three-weeks. However, at some point between May 28 and June 17, Respondent decided not to return as planned. She cancelled her ticket and stayed in the United States with K.P.C.A. In October 2021, it became clear to Petitioner that Respondent had no intentions of ever returning. This petition was filed on June 9, 2022 pursuant to Article 3 of the Convention. The Court found that the retention of K.P.C.A. in the United States as of June 18, 2021 was wrongful. It further finds that Respondent did not meet her burden of proving an affirmative defense under the Convention. K.P.C.A. did not articulate a particularized objection to returning to Colombia sufficient to meet the mature-child-objection defense. Respondent failed to meet her burden as to this affirmative defense.  Respondent failed to meet her burden concerning consent. Nor was there evidence presented of formal acquiescence, such as testimony in a judicial proceeding or a convincing written renunciation of rights. Respondent raised the well-settled defense, but the Court found that it is not available to her as a matter of law since Petitioner filed his Petition within one year of the wrongful retention. Pursuant to Article 13(b) of the Convention, courts are not required to order a child to return where “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Respondent bears the burden of proving this defense by clear and convincing evidence. Respondent put forth minimal evidence in support. She submitted the United States State Department’s travel advisory for Colombia as well as some evidence that Petitioner had previous issues with drugs and alcohol. Both Respondent and K.P.C.A. stated that they had never witnessed any crime or act of terrorism in Colombia, or any reasonable risk of harm at the hands of Petitioner. This did not meet the standard to show that K.P.C.A. would be in a grave risk of harm if returned to Colombia.

Recent Hague Convention District Court Cases - Vonnahme v. Lugo, 2022 WL 3701578, (District Court, D. Nevada, 2022).

 [Germany] [Petition granted] [Rights of custody]


In Vonnahme v. Lugo, 2022 WL 3701578, (District Court, D. Nevada, 2022) the  couple separated in 2014, and Vonnahme pursued a divorce in Cuba in 2015. That divorce was granted, and the decree established that “patria potestas” (parental authority) would remain with both parties, while “guardia y cuidada” (custody and care) would remain with Lugo. Later that year, Vonnahme applied to have the divorce recognized in Germany. The Dusseldorf High Regional Court recognized the Cuban decree to the extent that the parties were divorced, but it did not mention custody rights. The parties’ Cuban divorce decree stated that “[t]he custody and care of the minor daughter of the spouses ... remain with the mother, with parental authority remaining with both parents” and goes on to explain that the father must pay child support and “may visit the daughter as he pleases, without disturbing the times of sleep and meals; he can go for a walk with her.” The original Spanish-language version of the decree makes Lugo responsible for the “guardia y cuidado” of the child, while “patria potestas” remains with both parents.  The court observed that American courts have explained that patria potestas, a term of art in many Spanish-speaking countries, “has consistently and rightly been recognized as a right of custody under the Hague Convention.” Cuba’s recognition of patria potestas similarly qualified. Cuban law defines “patria potestas” to include extensive rights and duties, including the duties to provide children with a stable home, arrange for their education, care for their property, and represent them in judicial actions. It also refers to “guardia y cuidado” rights when parents no longer live together and uses the term to define which parent the child will more permanently live with. But awarding one parent the rights to guardianship and care of a child does not terminate the other parent’s patria potestas rights. The Cuban Family Code also states that, in the event of divorce, the “court will grant patria potestas, establishing as a rule that both parents shall retain it over their minors.”  Lugo and Vonnahme’s Cuban decree, recognized joint patria potestas rights while also specifying some visitation rights. So, this decree does not “eliminate any basis for relying on patria potestas,” because the decree itself recognizes Vonnahme’s patria potestas rights. The court found that, either under operation of Germany’s automatic assumption of joint custody or Germany’s implicit recognition of the Cuban divorce decree, Vonnahme had custody rights under the Hague Convention.



Recent Hague Convention District Court Cases - Livingstone v Livingstone, 2022 WL 3699832 (District Court, D. Colorado,2022)

[Australia.] [Petition denied]

In Livingstone v Livingstone, 2022 WL 3699832 (District Court, D. Colorado,2022) the  Court concluded the children were habitually resident in Australia at the time of their removal. Petitioner failed to establish the other two elements of a prima facie case by a preponderance of the evidence. First, Petitioner failed to show what custody rights, if any, he retained under the Australian Family Law Act while the protection order was in effect—a prerequisite to establishing that the children’s removal was in breach of such rights. No evidence or testimony was offered at the hearing as to this matter. Given the breadth of the protection order, the Court declined to assume that such remaining rights were substantial enough that Respondent’s removal of the children breached his rights. Second, Petitioner failed to show he was exercising his custody rights at the time of removal. The Court acknowledged that a petitioner’s burden of proof on this element is minimal in the ordinary case. See Friedrich v. Friedrich, 78 F.3d 1060, 1066 (6th Cir. 1996) (“[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.”). And the Court found there was no evidence that Petitioner ever clearly and unequivocally declared any intention to abandon the children. However, in addition to failing specify what custody rights he still retained, Petitioner  also failed to explain how he could exercise such rights while maintaining one hundred meters of separation between him and where the children live, work, or frequent, and without contacting them or arranging for others to contact them (other than through a lawyer) for a five-year period. Given this looming impossibility, the Court found that  Petitioner’s contention that he would continue to be exercising his custody rights but for Respondent’s wrongful removal and retention of the children was a fiction. In fact, because of the protection order, he was no longer exercising his custody rights at the time of removal.

Recent Hague Convention District Court Cases - Romanov v. Soto, 2022 WL 3646325, (District Court, M.D. Florida, 2022)

 [Canada] [Fathers Petition for return granted] [ Motion for Petitioner’s Attorney’s Fees and Costs Pursuant to 22 USC § 9007(b)(3)]


In Romanov v. Soto, 2022 WL 3646325, (District Court, M.D. Florida, 2022) the Court found that under ICARA, the Father was presumptively entitled to a recovery of necessary expenses in this action because the Court ordered the return of the Children to Canada. The Mother had not presented any evidence that she believed in good faith that her actions were legal or justified. The Mother did not submit financial information and did not prove that any award of fees would be clearly inappropriate because of her financial circumstances. Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018)) The Mother has not produced a financial affidavit. Nevertheless, the Court held that it may reconsider the Mother’s financial circumstances when determining the amount of fees to be awarded. The Mother could provide the Court with additional information regarding the question of whether awarding the full amount of the Father’s requested fees and expenses would be clearly inappropriate. The Mother had not demonstrated that any award of expenses would be clearly inappropriate. Therefore, the Court found that the Motion should be  granted to the extent that the Father was entitled to an award of necessary expenses, “including court costs, legal fees, ... and transportation costs related to the return of the [Children].” 22 U.S.C. § 9007(b)(3). The Court directed the parties to confer as to the amount of expenses to be awarded, and the Father was given forty-five days to file a supplemental motion.

Saturday, August 13, 2022

Recent Hague Convention District Court Cases - Lopez v Ash, 2022 WL 3328888 (W.D. Louisiana, 2022)

 [Honduras] [Habitual residence] [Petition granted]

In Lopez v Ash, 2022 WL 3328888 (W.D. Louisiana, 2022) the court granted the petition of Soguey Aracely Ariza Lopez (“Ariza”) against Respondent Kelly Christopher Ash (“Ash”) for the return MCAA to Honduras. MCAA was born in 2012 in Utila, Honduras. Ash was not the biological father of MCAA, but his name appeared on the child’s birth certificate.. Ash moved back to the United States in 2017. On November 8, 2021, Ash and Ariza entered into a Settlement Agreement (“the Settlement Agreement”) in which Ariza was granted full custody of the child and Ash was prohibited from taking the child out of the country without prior authorization from Ariza.  The Settlement Agreement explicitly authorized Ash to travel with the child to Tegucigalpa, Honduras, on November 9 and 10, 2021, to go to the American Embassy then return to Roaton, Bay Islands. The Settlement Agreement prohibited Ash from removing the child from the country at this time without prior authorization. Ash traveled with MCAA to the capital city on November 9, 2021. By November 11, 2022, Ash had not return to Roatan with MCAA. Ariza had little to no contact with MCAA at this time  Ariza confirmed, that the child was removed from the country on November 9, 2022. Prior to his removal by Ash in November 2021, MCAA lived his entire life in Honduras.. The court found that the habitual residence of the child was Honduras. It rejected Ash’s argument that Ariza was not exercising custody rights at the time of removal and that she consented or acquiesced to MCAA’s removal. These arguments were unsupported.  The Court reached a similar conclusion as to Ash’s argument that the child objected to leaving the United States and wished to remain with his father. It found that any apprehension the child had towards returning to Honduras had been fostered by Ash in an attempt to keep the child in the United States. Ash contended that MCAA should not return to Honduras because he was in grave risk of serious injury or harm there. The Court found his argument lacking in particularity and legitimacy. Ash could not point to a specific, real risk to the child but instead painted the whole of Honduras as an unsafe place with a bad educational system

Sunday, August 7, 2022

Recent Hague Convention District Court Cases - Guzzo v Hansen, 2022 WL 3081159 (E.D. Missouri, 2022)

 [Italy][Habitual residence][Petition granted]

In Guzzo v Hansen, 2022 WL 3081159 (E.D. Missouri, 2022) the district court granted the fathers Complaint for Return. In a judgment dated May 4, 2021  the Spanish court awarded: (1) the parties joint parental authority; (2) Mother primary physical custody; and (3) Father progressive visitation. Additionally, the Custody Judgement provided: “Neither party may transfer [Child] outside the national territory without the express consent of the other or, failing that, judicial authorization.” On September 13, 2021, Mother and Child travelled to St. Charles, Missouri. Mother understood when she left Spain that she did not have the Spanish court’s permission to remove Child from the country as required by the Custody Judgment. Two days later, Mother emailed Father informing him they had moved. Father reported Child’s removal to the local authorities in Seville on September 17, 2021. Approximately one month later, he filed a request in Spanish court for changes to the Custody Judgment, as well as a formal request for Child’s return under the Hague Convention. After a hearing, at which Mother was not present but was represented by an attorney, the Spanish court determined that Mother’s “actions were contrary to law and illegal,” provisionally withdrew Mother’s custody rights, and granted Father exclusive custody. The Court found that prior to being brought to the United States, Child’s country of habitual residence was Spain. Mother claimed that returning Child to Spain would expose him to a grave risk of psychological harm or otherwise place him in an intolerable situation. Mother argued that returning Child to Spain would cause him psychological harm because: (1) Child “does not wish to return to Spain and lacks any sufficient degree of accommodations there”; (2) Father “does not have a permanent home or stable, long-term employment in Spain”; (3) Mother “is unable to live or work in Spain because she is unable to secure the proper immigration status to do so”; and (4) return to Spain “would subject [Child] to … tumultuous custody proceedings[.]” The Court found Mother failed to prove by clear and convincing evidence that return to Spain will expose Child to a grave risk of harm.

 Second, she claimed that Child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take his views into account. The Court found Mother failed to demonstrate that Child expressed a particularized objection to returning to Spain. He did not communicate dislike for Spain so much as a preference for the United States. Child complained about Spain’s weather and stated that there was “nothing to do there,” but he also reported that the home he shared with Mother was “awesome” and there were “a lot of things to do there.” Child’s general complaints about Spain did not suggest that “living in that country would be unacceptable.”

  The district court granted the fathers Complaint for Return. In a judgment dated May 4, 2021  the Spanish court awarded: (1) the parties joint parental authority; (2) Mother primary physical custody; and (3) Father progressive visitation. Additionally, the Custody Judgement provided: “Neither party may transfer [Child] outside the national territory without the express consent of the other or, failing that, judicial authorization.” On September 13, 2021, Mother and Child travelled to St. Charles, Missouri. Mother understood when she left Spain that she did not have the Spanish court’s permission to remove Child from the country as required by the Custody Judgment. Two days later, Mother emailed Father informing him they had moved. Father reported Child’s removal to the local authorities in Seville on September 17, 2021. Approximately one month later, he filed a request in Spanish court for changes to the Custody Judgment, as well as a formal request for Child’s return under the Hague Convention. After a hearing, at which Mother was not present but was represented by an attorney, the Spanish court determined that Mother’s “actions were contrary to law and illegal,” provisionally withdrew Mother’s custody rights, and granted Father exclusive custody. The Court found that prior to being brought to the United States, Child’s country of habitual residence was Spain. Mother claimed that returning Child to Spain would expose him to a grave risk of psychological harm or otherwise place him in an intolerable situation. Mother argued that returning Child to Spain would cause him psychological harm because: (1) Child “does not wish to return to Spain and lacks any sufficient degree of accommodations there”; (2) Father “does not have a permanent home or stable, long-term employment in Spain”; (3) Mother “is unable to live or work in Spain because she is unable to secure the proper immigration status to do so”; and (4) return to Spain “would subject [Child] to … tumultuous custody proceedings[.]” The Court found Mother failed to prove by clear and convincing evidence that return to Spain will expose Child to a grave risk of harm.

 Second, she claimed that Child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take his views into account. The Court found Mother failed to demonstrate that Child expressed a particularized objection to returning to Spain. He did not communicate dislike for Spain so much as a preference for the United States. Child complained about Spain’s weather and stated that there was “nothing to do there,” but he also reported that the home he shared with Mother was “awesome” and there were “a lot of things to do there.” Child’s general complaints about Spain did not suggest that “living in that country would be unacceptable.” 


Recent Hague Convention District Court Cases - Rivain v Kagan, 2020 WL 13401255 ( S.D. Florida, 2020)

 [France][Habitual residence][Petition denied]

In Rivain v Kagan, 2020 WL 13401255 ( S.D. Florida, 2020) the Court denied the petition return the Minor Children to France. It agreed with Respondent that the  family intended to move to Florida to pursue a business opportunity (a tea room) and the Minor Children were acclimated. As a result, the habitual residence of the Minor Children was Florida. 

Petitioner and Respondent were married in France and the Minor Children were born in France. Until October 3, 2018, the family lived together in France. Prior to moving to the United States, the family often vacationed to South Florida. Petitioner and Respondent purchased an apartment in Hallandale, Florida as a vacation home. The applied for and after an  E-2 Investor Visa was approved, the Petitioner and Minor Children were given derivative visas valid until September 2023. The family made the necessary arrangements to move to their apartment in Hallandale, Florida. Petitioner, a pilot,  applied for a work permit to legally assist Respondent with the Tearoom. Petitioner also notified his employer of his new residence and requested an adjustment to his flight schedules.. Petitioner and Respondent jointly agreed to enroll their children in an American school instead of a charter school for international students. And apart from the family car, a few articles of clothing, and family pictures, Petitioner and Respondent sold all their belongings in France. While living in Florida, the Minor Children learned English exceptionally well. They were both performing well academically, admired their teachers, had several friends, and enjoyed jujitsu—an activity they started while here in the United States. They did not stay in contact with many friends in France. And if given the choice, the Minor Children do not want to return to France. Respondent alleged the decision to start a business in the United States and move to Florida was intended to be a permanent transition. Respondent testified as to the financial burden in applying for the E-2 visa, buying the tearoom storefront, and operating the Tearoom. . She also focused on the joint decision to enroll the Minor Children in American schools as opposed to international schools.  Respondent also noted that the family packed all their necessities and sold all their furniture in France, leaving behind only a few mementos and a storage unit for delivery shipments to France. The evidence did not support a temporary transition or a “family adventure.” Petitioner and Respondent spent several months applying for a lottery visa and later the E-2 Investor Visa. They hired consultants and invested approximately $130,000 to purchase and maintain the Tearoom. And although it would be difficult to convert a European pilot’s license to an American pilot’s license, this, alone, did not give credence to the “family adventure” theory proposed by Petitioner—especially because Petitioner, according to testimony adduced at trial, intended to commute between Florida and France. Thus, the evidence, when viewed objectively, warranted the reasonable conclusion that Petitioner and Respondent intended to make the Tearoom a success and permanently transition to Florida. The Court’s conclusion was further supported by numerous facts indicating acclimatization by the Minor Children. They are well-adjusted, speak English fluently, have made many friends in South Florida over the past two years, participate in social activities, and did not wish to return to France. 


Recent Hague Convention District Court Cases - Spica v Viera, 2020 WL 13401915 ( S.D. Florida, 2020)

 [Italy] [Motion for summary judgment][Motion denied]

In Spica v Viera, 2020 WL 13401915 ( S.D. Florida, 2020) Petitioner filed a Petition for Return of Children seeking the return of Petitioner’s two minor children (E.S. and S.S.) to Italy. Petitioner moved the Court to grant “the Petition in its entirety” and to “deny[ ] and dismiss[ ] Respondent’s affirmative defenses in their entirety.” Based on the available evidence, the Court found that there is a genuine issue of material fact as to whether the United States or Italy was the habitual residence of the children prior to Respondent’s alleged wrongful retention in February 2020. The Court, therefore, denied summary judgment. Moreover, the Court found that the record presented additional factual issues with respect to whether E.S. has attained an age and degree of maturity to object to being returned to Italy. 


Recent Hague Convention District Court Cases - Spica v. Viera, 2020 WL 13401916 (S.D. Florida, 2020).

 

Spica v. Viera, 2020 WL 13401916 (S.D. Florida, 2020). 

 [Italy][Habitual residence][Petition granted][Consent defense and age and maturity defense not established]

Braude v Zierler, 2022 WL 3018175 (S.D. New York,2022)[Canada][Grave risk of harm][Petition denied] [ameliorative measures insufficient]


In Braude v Zierler, 2022 WL 3018175 (S.D. New York,2022) the District Court denied the Petition of  Gadi Braude (“the Father”) against Dorona Mia Zierler (“the Mother”) seeking the immediate return of their two sons to Canada.

 Respondent averred that Petitioner consented to Respondent removing the children to the United States. The Court explained that to establish this defense, the respondent must show by a preponderance of the evidence that the petitioner consented to the removal or retention. Velozny v. Velozny, 550 F. Supp. 3d 4, 15 (S.D.N.Y. 2021). The consent does not have to be formal, instead the Court must analyze the petitioner’s conduct prior to the removal or retention, and “consider what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country. “The key to the consent inquiry is the petitioner’s subjective intent, including the nature and scope of the alleged consent.” In re Kim, 404 F. Supp. 2d 495, 516 (S.D.N.Y. 2005). Respondent  failed to prove by a preponderance of the evidence that Petitioner consented to Respondent taking the two children to New York on December 29, 2021. The parties did not dispute that on the day of the separation, the Mother left with the two children and did not tell Petitioner where they were going. Petitioner called and texted the Mother, who refused to answer. Specifically, that evening, Petitioner texted the Mother asking what she was planning and whether she was going to the United States, and begging her not to take the children away. Chumachenko v. Belan, No. 18-CV-9728-LTS, 2018 WL 6437062, at *8 (S.D.N.Y. Dec. 7, 2018) (holding the respondent failed to prove that the consent defense applied where “Respondent’s departure to the United States was immediately followed by contemporaneous text messages from Petitioner protesting Respondent’s actions, lamenting his unilateral decision to take the Children away from her, and refusing to write a letter allowing the Children to live with Respondent”). Petitioner stated he was “blindsided”, and that Respondent made this decision without him. While the parties had discussions about the Mother and children going to live with her parents in New York after Petitioner’s arrest, these discussions did not indicate Petitioner provided consent to their removal at the time of the separation. See Velozny, 550 F. Supp. 3d at 16–17 (holding the petitioner did not consent to removal where emails showed the petitioner discussed receiving assistance from his father-in-law in New York but eventually rejected the idea of sending the children there); Laguna v. Avila, No. 07-CV-5136 (ENV), 2008 WL 1986253, at *7 (E.D.N.Y. May 7, 2008) (holding that the parties’ custody agreement that stated that after returning to Colombia the child could move to the United States if he so desired was insufficient to establish the petitioner consented to retention of the child in the United States). While the Mother provided testimony showing that Petitioner gave her the children’s birth certificates before they left the house, this, without more, was insufficient to establish Petitioner’s subjective consent to her taking the children to live in New York. See Kosewski v. Michalowska, No. 15-CV-928 (KAM)(VVP), 2015 U.S. Dist. LEXIS 139924, at *44–45 (E.D.N.Y. Oct. 14, 2015) (denying consent defense where the record established that petitioner accompanied respondent to a passport office after she requested that he consent to the child obtaining a passport, but the parties disputed whether respondent told petitioner that she planned to move to the United States with the child prior to petitioner’s agreement); In re J.J.L.-P., 256 S.W.3d 363, 375 (Tex. App.—San Antonio 2008, no pet.) (upholding denial of the consent defense where the petitioner surrendered the child’s travel documents to the respondents because petitioner testified that he surrendered the documents to permit the child to enter the country for the holidays only). The  Court held that Respondent has failed to prove by a preponderance of the evidence that Petitioner consented to the children’s removal and retention.

 

Petitioner next averred that there was a grave risk that returning the children to Canada would expose them to harm. The Court noted that Article 13 of the Hague Convention prevents the Court from ordering the return of a child when “his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Hague Convention, art. 13(b). “The potential harm to the child must be severe, and the level of risk and danger required to trigger this exception has consistently been held to be very high.” Abdollah Naghash Souratgar v. Fair, 720 F.3d 96, 103 (2d Cir. 2013). The respondent bears the burden of establishing the defense by clear and convincing evidence. See 22 U.S.C. § 9003(e)(2)(A). The defense requires a real risk of the child being harmed. Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001). The Court agreed with Respondent that the record established “Petitioner’s unstable mental health and demonstrated history of engaging in dangerous and illegal activities” and that this created a probability of grave harm and an extreme magnitude of harm. Specifically, Respondent averred that Petitioner’s untreated mental health issues, history of domestic violence and coercive conduct, and access and possession of child pornography together demonstrated a grave risk of harm to the children.

 

The record reflected an existence of factors in combination that create a grave risk of harm if the children were returned to Canada. First, Petitioner has a long and serious history of untreated mental health issues. Petitioner had suicidal ideation and attempts since the age of ten. He  attempted suicide three times, including once when Child 1 was asleep in the house. Petitioner was diagnosed with BPD in 2020, but did not answer in the affirmative when asked if he accepts his diagnosis. He was not prescribed medication until March of 2021, and had been unable to begin the treatment needed for BPD. While he acknowledged a need for treatment and to unpack past traumas, Petitioner has had an unstable history of treatment, and only recently began working with a psychiatrist in response to his criminal charges.

 

Respondent presented testimony from Dr. Elizabeth Jeglic, a clinical psychologist and professor, who testified that DBT is an intense behavioral treatment for those with BPD and repeated suicide attempts, which typically takes years to become effective. Without this therapy, BPD symptoms including self-harming, suicide, and emotional instability, would continue. Further, Dr. Jeglic discussed the intergenerational suicide risk which states that a parent who attempts suicide increases the risk of their children engaging in suicidal behavior. There was no doubt that exposing the children to suicidal behavior would create a real risk of psychological harm.

 

In addition, Petitioner had a concerning history of angry and manipulative behavior. He had threatened to commit suicide, hit and shoved Respondent out of anger, continued play fights with both Respondent and Child 1 when asked to stop due to pain, and strangled Respondent to the point of almost passing out. Petitioner also had intense, angry reactions when the Mother merely brings up discussing him with others, including her therapist. While most of this behavior was directed at the Mother, “evidence of prior spousal abuse, though not directed at the child, can support the grave risk of harm defense.” Davies v. Davies, 717 F. App’x 43, 47–48 (2d Cir. 2017) (upholding the district court’s finding that the grave risk of harm defense applied as the petitioner had a history of “pervasive, manipulative violence” that consisted of psychological abuse). This was particularly concerning now, as the Mother had discussed Petitioner’s mental health issues and criminal charges with a full range of people, including her family, friends, and the Court.

 

Finally,  and perhaps most important, was the Petitioner’s arrest for access and possession of child pornography. He has discussed having sexual fantasies involving children. While she did not examine Petitioner, Dr. Jeglic testified that those who possess child pornography are at an increased of risk of contact sexual abuse. Dr. Gojer  established that without treatment, Petitioner does create a risk to children. See M.M v. F.R, No. 11 Civ. 2355 (PKC), 2011 U.S. Dist. LEXIS 156760, at *26 (S.D.N.Y. June 30, 2011) (holding a grave risk of harm existed where eight years prior the petitioner engaged in sexual abuse of a child and had since had a “lack of a meaningful and continuing regimen of rehabilitation”). Further, while the children are too young to understand what is happening now, Child 1 will soon be at an age where he will start to question what is happening to his family. The “derivative harm” of Child 1 eventually learning about his Father’s actions could prove to be “psychologically devastating.”

 

Petitioner states that he had consented to eight ameliorative measures if this Court ordered the children return to Canada, including (i) JFCS is notified in advance of the return date of the children to Canada; (ii) Petitioner continues to comply with all surety conditions; (iii) Petitioner has no contact with Respondent upon her return to Canada; (iv) Petitioner continues to undergo therapy with Peach; (v) Petitioner continues to take his Sertraline prescription; (vi) Petitioner commences DBT with Peach; (viii) Petitioner continues to reside with his parents; and (viii) Petitioner continues to comply with all JFCS conditions and requirements. The court noted that in considering ameliorative measures, the Court must (1) “prioritize the child’s physical and psychological safety”; (2) “abide by the Convention’s requirement that courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute”; and (3) “accord with the Convention’s requirement that courts act expeditiously in proceedings for the return of children.” Golan v. Saada, 142 S. Ct. 1880, 1893–94 (2022). The Court did  not find that these ameliorative measures would prioritize the children’s physical and psychological safety. None of the proposed measures address Petitioner’s history of aggressive behavior and coercive control. None of the measures adequately protect the children from Petitioner’s pedophilia. The Court held that Respondent established the grave risk of harm defense.

 

 


Recent Hague Convention District Court Cases - Bhattacharjee v. Craig, 2022 WL 2915545 (E.D. Missouri, 2022)

 [Singapore][Petition granted][Attorneys fees and Costs][Not clearly inappropriate]

In Bhattacharjee v. Craig, 2022 WL 2915545 (E.D. Missouri, 2022) Respondent conceded the prima facie case for wrongful removal but raised the mature child exception as an affirmative defense. After a bench trial the Court found Respondent had failed to meet her burden to show that the mature child exception applied. Based on that finding, the Court ordered Respondent to return the children to Singapore. On November 20th, Petitioner filed this Motion, seeking $81,571.92 as payment for attorneys’ fees and costs. Respondent argued that under Ozaltin, which she stated is “the leading case” on this issue, an award of fees is clearly inappropriate because she acted in good faith when she and the children remained in the United States. (citing Ozaltin, 708 F.3d at 375-76). The Court found that Respondent did not act in good faith in removing the children from Singapore, and her belief that she should refuse to return because of the “need [ ] to respect the concerns of her son,” is not sufficient grounds to find that the fee award would be clearly inappropriate. The court held that ICARA § 9007 does not apparently place any burden on Petitioner; the only burden in the statute is Respondent’s to establish that an award of fees “would be clearly inappropriate.” 42 U.S.C. § 9007(b)(3). As to Petitioner, the only question was whether it was necessary for him to incur legal fees in order to obtain the return of the children. Here, there was no dispute that it was. The court noted that “An award is clearly inappropriate where the respondent shows the award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child[ren].” Wan, 2021 WL 3510232, at *17 (citing Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018)); see also Mendoza, 987 F. Supp. 2d at 915; Forcelli, 2021 WL 638040, at *3 and her financial status was not grounds to find that the award would be clearly inappropriate.  Respondent failed to carry her burden under ICARA to show that Petitioner’s requested attorneys’ fees award would be clearly inappropriate. See 42 U.S.C. § 9007(b)(3). Petitioner was entitled to an award in the amount of $81,571.92 for her two attorneys.

Recent Hague Convention District Court Cases - Soulier v. Matsumoto, 2022 WL 2666946, Not For Publication, (D. New Jersey, 2022)

 [Belgium] [Habitual Residence] [Wrongful retention] [Petition granted]

In Soulier v. Matsumoto, 2022 WL 2666946, Not For Publication, (D. New Jersey, 2022) the  principal contested issues were  (1) whether Respondent had “wrongfully retained” A.L.S. and A.H.S. in New Jersey as of July 10, 2019 without Petitioner’s consent; (2) if she had, whether the United States or Belgium was the children’s “habitual residence” immediately prior to the date of wrongful retention; and (3) if the habitual residence was Belgium, whether Respondent had any affirmative defenses. The Court found that Respondent wrongfully retained the children in New Jersey in July 2019. Respondent asserts four affirmative defenses: intolerable situation, consent or acquiescence, the well-settled exception, and the mature child exception, but did not prove any of them. The Petition for return was granted.

Recent Hague Convention District Court Cases - Smith v Smith , 2019 WL 13201172 (N.D. Texas, 2019)

 

[Argentina] [Habitual Residence] [Age and Maturity Defense] [Petition denied]

In Smith v Smith , 2019 WL 13201172 (N.D. Texas, 2019) the Court found that: 1) Petitioner failed to establish a prima facie case because there wass not enough evidence that Argentina was the children’s habitual residence; 2) Petitioner and Respondent only intended to move to Argentina for a specific, limited duration; 3) a two-year time period falls within the language of “specific, limited” duration; 4) M.G.S., a 14 year old,  was of sufficient age and maturity, was not unduly influenced, and objected to being returned to Argentina; and 5) A.C.S., a 10 year old, was is of sufficient age and maturity, was not unduly influenced, and objected to being returned to Argentina. Accordingly, the Court denied Petitioner’s request to have his children returned to Argentina.

Recent Hague Convention District Court Cases - Harutyunyan v. Sargsyan,2020 WL 13444203 (D. Mass., 2020)

 

[Armenia] [Rights of Custody] [Petition granted]

In Harutyunyan v. Sargsyan,2020 WL 13444203 (D. Mass., 2020) the court found that, at the time of the removal, Petitioner was not exercising rights of custody, and failed to show that he would have exercised them but for the removal. The rights Petitioner exercised in the months prior to Respondent’s removal of the child were “rights of access” under the Convention, and not “rights of custody,” and, accordingly, could not support the wrongful removal claim.8 Nor had Petitioner demonstrated that he would have asserted custodial rights but for the removal. In light of the finding that the Petitioner was not actually exercising any rights of custody at the time of the child’s removal, the court did not need to reach the question of whether Petitioner had legal custody of the child under Armenian law at the time of the child’s removal. Having found that the removal of the child from Armenia was not wrongful, the court also does not reach Respondent’s affirmative defenses that Petitioner consented to her removal of the child from Armenia, subsequently acquiesced to the removal, poses a grave risk of harm to the child should she be returned, or undertook this litigation with unclean hands.

 

Sunday, July 31, 2022

Colquhoun v Colquhoun, 2022 WL 2866470 ( S.D. N. Y., 2022) [Jamaica][Petition voluntarily granted][Attorneys fees and Costs]

In Colquhoun v Colquhoun, 2022 WL 2866470 ( S.D. N. Y., 2022) Petitioner brought a Petition against pro se Respondent, for the return of their child, A.C. to Jamaica, from where she was staying with Respondent in Mount Vernon. 

According to the Petition, the Parties married in Jamaica in October 2011. After they married, Petitioner continued living in Jamaica, and Respondent traveled back and forth between Jamaica and the United States. The Child was born in 2012 in Jamaica. In April 2015, Petitioner and Respondent separated. According to Petitioner, the Parties informally agreed that Petitioner would have custody of the Child and Respondent would have visitation in New York during holiday periods. From 2015 to 2020, the Child would visit Respondent during the summer and Christmas holidays for approximately four to six weeks. On August 1, 2020, the Child left Jamaica to visit Respondent in New York for the summer holiday, and the Parties had agreed that the Child would return by September so that she could start the school semester in Jamaica. By September 2020, Respondent had not returned the Child to Jamaica. According to Petitioner, she never consented to the Child staying in the United States, and Respondent refused to return the Child to Jamaica despite frequent requests for her return. Petitioner also alleged that the Child expressed to her that she wanted to return to Jamaica. According to Respondent, he believed it was safer for the Child to remain in the United States because the risk of COVID-19 was greater in Jamaica. As of November 21, 2021, the Parties were involved in divorce and custody proceedings in Jamaica. After this proceeding was commenced the parties voluntarily agreed that Respondent would return the Child to Jamaica, and the Court entered a Voluntary Return

 

 The Court observed that the Hague Convention provides that, where a court orders the return of a child under the Convention, the court: may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child. Hague Convention, art. 26 ICARA provides [a]ny court ordering the return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. 22 U.S.C. § 9007(b)(3) (emphasis added). The Second Circuit has held that, in light of these provisions, “a prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of equitable principles by the district court.” Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013). The Second Circuit has also held that “the appropriateness of such costs depends on the same general standards that apply when ‘attorney’s fees are to be awarded to prevailing parties only as a matter of the court’s discretion.’“ There is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised in light of the [relevant] considerations.” Ozaltin, 708 F.3d at 375. 

 

The  court found that petitioner was the prevailing party, given that Respondent voluntarily agreed to return A.C. to Jamaica pursuant to a Voluntary Return Order. Petitioner is  the prevailing party and is presumptively entitled to necessary costs. Ozaltin, 708 F.3d at 375.

 “[The] presumption of an award of expenses to a prevailing petitioner is subject to a broad caveat denoted by the words, ‘clearly inappropriate.’ ” Souratgar v. Lee Jen Fair, 818 F.3d 72, 79 (2d Cir. 2016). “Generally, in determining whether expenses are “clearly inappropriate,” courts have considered the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition.” Here there were no allegations that Petitioner committed intimate partner violence or anything close to that. Petitioner alleged that she and Respondent separated because he became “physically abusive” toward her. In considering whether an award of fees and costs would be clearly inappropriate, courts within the Second Circuit have also considered whether the respondent had “a reasonable basis for removing the children to the United States.” Ozaltin, 708 F.3d at 375. Here, Respondent alleges that he did not return the Child to Jamaica in August 2020 due to the risk of the COVID-19 pandemic, which he believed was greater in Jamaica than in the United States. Even if the Court credited this explanation it would not explain why he still had not returned the Child to Jamaica a year later, when the Petition was filed. Finally, “a respondent’s inability to pay an award is a relevant equitable factor for courts to consider in awarding expenses under ICARA.” Souratgar, 818 F.3d at 81. Here, the Court was unable to take Respondent’s ability to pay into account because the Respondent did not provide any information regarding his financial condition. See also Paulus ex rel. P.F.V. v. Cordero, No. 12-CV-986, 2013 WL 432769, at *10 (M.D. Pa. Feb. 1, 2013). That Respondent represented himself did not change this result. For example, in Gee v. Hendroffe, No. 14-CV-2795, 2015 WL 2151885, at *3 (S.D. Tex. May 7, 2015). The Court found that awarding Petitioner attorney’s fees and costs would not be clearly inappropriate. Petitioner is thus entitled to necessary fees and costs. This result was not changed by the fact that Petitioner was represented by pro bono counsel. “[T]he fact that the petitioner in this case was represented by pro bono counsel does not provide a basis for disregarding the Conventions fee provision.” Haimdas v. Haimdas, 720 F. Supp. 2d 183, 209 (E.D.N.Y. 2010), aff’d, 401 F. App’x 567 (2d Cir. 2010); see also Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir. 2010); Sullivan v. Sullivan, No. CV-09-545, 2010 WL 1651994, at *1 (D. Idaho Apr. 21, 2010).


The Court found that Petitioners counsel provided competent and professional legal services throughout the course of this case, it agreed to take on the case on a pro bono basis and therefore did not expect to be paid for its services or reimbursed for its expenses. While, nevertheless, full payment of its legal fees wass appropriate to carry out ICARA’s fee-shifting provisions, full payment of costs was not. Duran-Peralta v. Luna, No. 16-CV-7939, 2018 WL 1801297, at *6 (S.D.N.Y. Apr. 2, 2018) (reducing the attorney’s fees by 30% and costs by 50% where the petitioner was represented by pro bono counsel).

 

The Court considered the amount of attorney’s fees and costs to be awarded. “As for the appropriate amount of attorneys’ fees and costs, “[b]oth the [Second Circuit] and the Supreme Court have held that the lodestar—the product of a reasonable hourly rate and the reasonable number of hours required by the case—creates a presumptively reasonable fee.” Nissim, 2020 WL 3496988, at *2 (quoting Millea v. Metro-N. R. Co., 658 F.3d 154, 166 (2d Cir. 2011)) “Courts determine the reasonable hourly rate by considering case-specific variables such as the complexity of the case, the amount of work required, the attorney’s experience, and awards in similar cases.”  (citing Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany & Albany Cnty. Bd. of Elections, 522 F.3d 182, 189 (2d Cir. 2008)). Courts also consider whether the rates sought by the petitioner are “in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.” Reiter v. MTA New York City Transit Auth., 457 F.3d 224, 232 (2d Cir. 2006).

 

The Court observed that  courts in this District have not awarded more than $425 per hour in a Hague Convention case.” Here, Petitioner requested the following hourly rates for five attorneys: Partner ($600/hour), Partner ($550/hour), Partner ($525/hour), Associate ($325/hour), and law school graduate ($250/hour). The Court found that a rate of $425 is appropriate for the most experienced Hague attorney who handled 30 Hague Cases. See Grano, 2021 WL 3500164, at *3 The rate of $350 was warranted for the partner with 29 years of experience primarily as a family law attorney who had litigated “several” Hague Convention cases. See Duran-Peralta, 2018 WL 1801297, at *3. $325/hour was an appropriate billing rate for the partner with 12 years of experience, which included litigating 11 Hague Convention cases. See Knigge, 2001 WL 883644, at *3. A rate of $200/hour was appropriate for the associate with three years of experience who had worked on seven Hague Convention Cases.  Finally, $175/hour was an appropriate rate for a 2021 law school graduate who, at the time that the Motion was filed, had not yet taken the New York State Bar. 


The Court considered the reasonableness of the hours expended by Petitioner’s attorneys. “In determining the number of hours reasonably required, a court should exclude ‘excessive, redundant[,] or otherwise unnecessary hours.’ ” Knigge, 2001 WL 883644, at *2 (quoting Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999)). Petitioner submitted that her attorneys expended 47.3 hours working on her case, which amounted to a total of $18,830 in attorney’s fees. Petitioner reduced this number by two-thirds in her Motion, requesting a total of $12,553.33 in attorney’s fees. Although the Court did not find that the hours expended by the attorneys in this case were excessive, the noted the two-thirds reduction was nevertheless appropriate, even with the Court’s reduction in the attorneys’ billing rates given the fact that counsel  represented Petitioner on a pro bono basis,  See, e.g., In re JR, 2017 WL 74739, at *3, and the Respondent did not file a financial affidavit  The Court  therefore further reduced the fees awarded by two-thirds. This amounts to a total of $7,341.67.5 The Court added costs in the amount of $300, paid to a process server on Petitioner’s behalf. The Court awarded Petitioner a total of $7,641.67. 


Saturday, June 25, 2022

Wednesday, June 15, 2022

Golan v. Saada, ___U.S.___, (Supreme Court, June 15, 2022) [Italy] [Petition granted] [Ameliorative measures] [Vacated and remanded]


Golan v. Saada, ___U.S.___,  (Supreme Court, June 15, 2022)
[Italy][Petition granted][Ameliorative measures] [Vacated and remanded]

Petitioner Narkis Golan was a citizen of the United States. She met respondent Isacco Saada, an Italian citizen, while attending a wedding in Milan, Italy, in 2014. Golan soon moved to Milan, and the two wed in August 2015. Their son, B. A. S., was born the next summer in Milan, where the family lived for the first two years of B. A. S.’ life.  The two fought on an almost daily basis and, during their arguments, Saada would sometimes push, slap, and grab Golan and pull her hair. Saada also yelled and swore at Golan and frequently insulted her and called her names, often in front of other people. Saada once told Golan’s family that he would kill her. Much of Saada’s abuse of Golan occurred in front of his son. In July 2018, Golan flew with B. A. S. to the United States to attend her brother’s wedding. Rather than return as scheduled in August, however, Golan moved into a domestic violence shelter with B. A. S. In September, Saada filed in Italy a criminal complaint for kidnapping and initiated a civil proceeding seeking sole custody of B. A. S.

      Saada also filed a petition under the Convention and ICARA in the U. S. District Court for the Eastern District of New York, seeking an order for B. A. S.’ return to Italy. The District Court granted Saada’s petition after a 9-day bench trial. As a threshold matter, the court determined that Italy was B. A. S.’ habitual residence and that Golan had wrongfully retained B. A. S. in the United States in violation of Saada’s rights of custody. The court concluded, however, that returning B. A. S. to Italy would expose him to a grave risk of harm. The court observed that there was “no dispute” that Saada was “violent—physically, psychologically, emotionally, and verbally—to” Golan and that “B. A. S. was present for much of it.” The court described some of the incidents B. A. S. had witnessed as “chilling.”  While B. A. S. was not “the target of violence,” undisputed expert testimony established that “domestic violence disrupts a child’s cognitive and social-emotional development, and affects the structure and organization of the child’s brain.”  Records indicated that Italian social services, who had been involved with the couple while they lived in Italy, had also concluded that “ ‘the family situation entails a developmental danger’ for B. A. S.”  The court found that Saada had demonstrated no “capacity to change his behavior,” explaining that Saada “minimized or tried to excuse  his violent conduct” during his testimony and that Saada’s “own expert said . . . that [Saada] could not control his anger or take responsibility for his behavior.” 

      The court nonetheless ordered B. A. S.’ return to Italy based on Second Circuit precedent obligating it to “ ‘examine the full range of options that might make possible the safe return of a child to the home country’ ” before it could “ ‘deny repatriation on the ground that a grave risk of harm exists.’ ”  The Second Circuit based this rule on its view that the Convention requires return “if at all possible.” Blondin I, 189 F. 3d, at 248. To comply with these precedents, the District Court had required the parties to propose “ ‘ameliorative measures’ ” that could enable B. A. S.’ safe return. Saada had proposed that he would provide Golan with $30,000 for expenses pending a decision in Italian courts as to financial support, stay away from Golan until the custody dispute was resolved, pursue dismissal of the criminal charges he had filed against Golan, begin cognitive behavioral therapy, and waive any right to legal fees or expenses under the Convention. The court concluded that these measures, combined with the fact that Saada and Golan would be living separately, would “reduce the occasions for violence,” thereby ameliorating the grave risk to B. A. S. sufficiently to require his return. 

The Second Circuit vacated the return order, finding the District Court’s ameliorative measures  insufficient. Because the record did not support concluding that no sufficient ameliorative measures existed, the Second Circuit remanded for the District Court to consider whether such measures, in fact, existed. After an examination over nine months, the District Court identified new ameliorative measures and again ordered B. A. S.’ return. The Second Circuit affirmed.

The Supreme Court, in a unanimous opinion by Justice Sotomayor held that a court is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for return of a child to a foreign country once the court has found that return would expose the child to a grave risk of harm. The discretion to courts under the Convention and ICARA includes the discretion to determine whether to consider ameliorative measures that could ensure the child’s safe return. Justice Sotomayor found that the Second Circuit’s rule, by instructing district courts to order return “if at all possible,” improperly elevated return above the Convention’s other objectives. Blondin I, 189 F. 3d, at 248. The Convention does not pursue return exclusively or at all costs. Rather, the Convention “is designed to protect the interests of children and their parents,” Lozano, 572 U. S., at 19 (Alito, J., concurring), and children’s interests may point against return in some circumstances. Courts must remain conscious of this purpose, as well as the Convention’s other objectives and requirements, which constrain courts’ discretion to consider ameliorative measures in at least three ways. 

First, any consideration of ameliorative measures must prioritize the child’s physical and psychological safety. A court may decline to consider imposing ameliorative measures where it is clear that they would not work because the risk is so grave. Sexual abuse of a child is one  example of an intolerable situation. Other physical or psychological abuse, serious neglect, and domestic violence in the home may also constitute an obvious grave risk to the child’s safety that could not readily be ameliorated. A court may also decline to consider imposing ameliorative measures where it reasonably expects that they will not be followed.

 

Second, consideration of ameliorative measures should abide by the Convention’s requirement that courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute. A court ordering ameliorative measures in making a return determination should limit those measures in time and scope to conditions that would permit safe return, without purporting to decide subsequent custody matters or weighing in on permanent arrangements.

 

Third, any consideration of ameliorative measures must accord with the Convention’s requirement that courts act expeditiously in proceedings for the return of children. Timely resolution of return petitions is important in part because return is a “provisional” remedy to enable final custody determinations to proceed.  A requirement to “examine the full range of options that might make possible the safe return of a child,” is in tension with this focus on expeditious resolution. Consideration of ameliorative measures should not cause undue delay in resolution of return petitions.

      Justice Sotomayor summarized the Courts holding as follows: “ …although nothing in the Convention prohibits a district court from considering ameliorative measures, and such consideration often may be appropriate, a district court reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings. The court may also find the grave risk so unequivocal, or the potential harm so severe, that ameliorative measures would be inappropriate. Ultimately, a district court must exercise its discretion to consider ameliorative measures in a manner consistent with its general obligation to address the parties’ substantive arguments and its specific obligations under the Convention. A district court’s compliance with these requirements is subject to review under an ordinary abuse-of-discretion standard.”


In this case, the District Court made a finding of grave risk, but never had the opportunity to inquire whether to order or deny return under the correct legal standard. It was appropriate to allow the District Court to apply the proper legal standard in the first instance, see Monasky v. Taglieri, 589 U. S. ___, ___. The Court held that the District Court should determine whether the measures considered are adequate to order return in light of the District Court’s factual findings concerning the risk to B. A. S., bearing in mind that the Convention sets as a primary goal the safety of the child. The order of the Second Circuit was vacated and the case remanded.