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Thursday, April 22, 2021

Bordelais v Bordelais, --- Fed.Appx. ----, 2021 WL 1554729 (Mem) (7th Cir., 2021)[Switzerland] [Federal & State Judicial Remedies] [Appeal moot] [Sanctions]


In Bordelais v Bordelais, --- Fed.Appx. ----, 2021 WL 1554729 (Mem) (7th Cir., 2021) Antoine Bordelais, a French citizen, sought the return of his child under the Hague Convention. Since his ex-wife, Valerie, an American citizen, took their child from Switzerland to Illinois in 2016, Antoine has sued her at least seven times for the child’s return. See In re Antoine Bordelais, 20 C 4165 (N.D. Ill. July 20, 2020). 

In 2016, in the midst of divorce and custody proceedings in Swiss court, Valerie took the couple’s then-13-year-old child to visit her parents in Illinois. They did not return. Antoine petitioned in Illinois state court for divorce and for return of the child under the Hague Convention. Valerie counterclaimed, alleging that she had sole custody of the child and that removal would place the child in grave danger. In 2017, dissatisfied with the pace of the state court proceedings, Antoine filed a similar version of his state court petition in federal court. Valerie moved to dismiss the petition or stay the proceedings under Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813–14 (1976), on grounds that Antoine’s suit duplicated his ongoing state court litigation. The district court agreed that the state and federal actions were parallel and stayed the suit. Antoine, arguing that he had withdrawn his state-court petition and that the case was closed, moved to lift the stay in 2018. Valerie disagreed with his characterization about the status of the state-court proceedings and insisted that disputes over their daughter were still being adjudicated. The court denied Antoine’s motion. In 2019, Antoine requested emergency “protective measures” under Article 7 of the Hague Convention to prevent what he believed was a real possibility that Valerie would take the child to Mexico, where she had relatives. The district court denied this request as inconsistent with its stay order. In November 2019, the child turned 16, and Valerie moved to dismiss the suit on grounds that the Hague Convention does not apply to children over 16. The district court held a hearing the following month and granted Valerie’s motion. The court added that it also denied Antoine’s oral motion to amend his complaint, as well as his motion to proceed on appeal in forma pauperis. Antoine then filed a notice of appeal.

 Valerie moved to dismiss the appeal for lack of jurisdiction. She argued that the Hague Convention no longer supplied the basis for federal jurisdiction because their daughter, upon reaching the age of 16, had aged out of the Convention, and the case was now moot. Antoine responded that the Convention continued to apply in Illinois until a child turns 18. 

The Seventh Circuit affirmed. It observed that the child turned 16 in 2019. The Convention, by its terms, “shall cease to apply when the child attains the age of 16 years.” See Hague Convention, art. 4. As the State Department has opined, “[e]ven if a child is under sixteen at the time of the wrongful removal or retention as well as when the Convention is invoked, the Convention ceases to apply when the child reaches sixteen.” U.S. Dep’t of State, Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,504 (Mar. 26, 1986), quoted in Custodio v. Samillan, 842 F.3d 1084, 1088 (8th Cir. 2016) (dismissing as moot the appeal of denial of Hague Convention petition where child turned sixteen during pendency of proceedings).

 Valerie sought sanctions against Antoine under Federal Rule of Appellate Procedure 38, arguing that the appeal was frivolous and meant only to harass and intimidate her. She urged the Court to view the appeal in the context of the fifteen suits since 2016 that Antoine filed against her, her family, her employer, her lawyers, and her child’s therapist. See In re Antoine Bordelais, 20 C 4165 (N.D. Ill. July 20, 2020) (Executive Committee order enjoining Antoine from filing any new civil action in district without first obtaining leave to file). The Seventh Circuit found that sanctions were warranted. Antoine subjected Valerie’s counsel to extra work to defend against his meritless arguments. Allen-Noll v. Madison Area Tech. College, 969 F.3d 343, 351 (7th Cir. 2020). He also wasted this and other courts’ time, not just with this appeal; he had filed five other appeals from his suits against Valerie and her family. And, the Executive Committee of the Northern District had run out of patience with his pattern of frivolous and duplicative filings. Accordingly, he was ordered to show cause within fourteen days why reasonable attorney’s fees and costs should not be imposed. The Court also warned Antoine that further frivolous appeals will subject him to monetary fines and a possible bar order pursuant to Support Systems International, Inc. v. Mack, 45 F.3d 185, 186 (7th Cir. 1995).


Wednesday, April 21, 2021

Recent Hague Convention District Court Cases

 Dawson v Dylla, 2021 WL 1534608 (D. Colorado, 2021)

[United Kingdom] [Federal & State Judicial Remedies] [Court lacks jurisdiction to adjudicate  merits of the underlying custody dispute][ Petition to enforce a foreign parenting order denied.] 


Sunday, April 4, 2021

Recent Hague Convention District Court Cases

Luis Alfonso VH v Banessa Cristina AZ, 2021 WL 76971 (W.D. Virginia, 2021).

[Honduras] [Well-settled] [Petition denied]


Alverez Romero v Gajardo Bahamonde, 2020 WL 8459278 (M.D. Georgia, 2021)

[Chile] [Well-Settled] [Wishes of the child [Petition   denied] 


Dubikovskyy v. Goun, 2021 WL 456634 (W.D. Missouri, 2021) 

[Switzerland] [Wishes of the Child] [Petition denied]


Forcelli, v. Smith,.2021 WL 638040 (D. Minnesota, 2021)

[Germany] Necessary Expenses] [not clearly inappropriate] [Reasonable attorneys fees and transportation costs awarded]


Sanchez Mena v Gomez Paz, 2021 WL 633586 (D. Utah, 2021.) 

[Peru] [Federal & State Judicial Remedies] [Respondent’s motion for enlargement of time to file motion to dismiss moot. Respondent’s motion for consolidation of defenses denied. Respondent’s motion to amend the scheduling order is granted in part and denied in part.]


Colchester v Lazaro, 2021 WL 764136, (W.D. Washington, 2021)

[Spain] [Habitual Residence] [Petition granted] [Necessary expenses against Ms. Lazaro is not “clearly inappropriate]


Jose De Jesus Joya Rubio v Yelaine Memendez Alvarez, 2021 WL 956197 (S.D. Florida, 2021) 

[Mexico] [Well-Settled] [Wishes of the child] [Petition denied]


Radu v Shon, 2021 WL 1056393 (D. Arizona, 2021).

[Germany] [Necessary Expenses] [Clearly inappropriate] [Motion denied] 


Sanchez v Sanchez, 2021 WL 1227133 (M.D. North Carolina, 2021)

[Honduras] [Grave risk of harm] [Petition denied].



Friday, April 2, 2021

Saada v Golan, 2021 WL 1176372 (E.D. N. Y.) [Italy] [Federal & State Judicial Remedies] [Stay pending application for certiorari]



In Saada v Golan, 2021 WL 1176372 (E.D. N. Y.)  the district court denied the respondent’s motion to set aside the judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, or in the alternative, to stay the action pending her petition for writ of certiorari to the United States Supreme Court.

The petitioner, an Italian citizen, alleged that in August of 2018, the respondent, an American citizen, wrongfully kept their minor son, B.A.S., in the United States.  After a bench trial, in a March 22, 2019 decision, the district court found that B.A.S. was a habitual resident of Italy, and that while he would be subject to grave risk of harm upon repatriation, there were sufficient measures available in Italy that would ameliorate the risk to B.A.S. upon his return.  

The Second Circuit affirmed the decision in part and vacated it in part. Saada v. Golan, 930 F.3d 533, 537 (2d Cir. 2009) (Saada I). The Court agreed that Italy was B.A.S.’s “habitual residence” under the Hague Convention, but determined that certain ameliorative measures could not be enforced before B.A.S. was repatriated to Italy. The Second Circuit remanded the case with instructions to ensure that the measures necessary for B.A.S.’s safe repatriation could be “enforce[d] by the District Court or supported by other sufficient guarantees of performance.”  On May 5, 2020, after additional briefing and an extensive examination of the ameliorative measures available in Italy, the district court found that “the Italian courts are willing and able to resolve the parties’ multiple disputes, address the family’s history and ensure B.A.S.’s safety and well-being.” In December of 2019, the Italian court issued an order to help facilitate B.A.S.’s repatriation that included a protective order against the petitioner and an order requiring Italian social services to oversee his parenting classes and behavioral and psychoeducational therapy. Moreover, the petitioner agreed to give the respondent a sum of money to allow her to live independently of the petitioner and his family upon her return. The district court granted the petition and ordered that B.A.S. be returned to Italy. On January 21, 2021, the Court of Appeals affirmed that decision in its entirety. Saada v. Golan, 833 F. App’x 829, 831 (2d Cir. 2020) (Saada II).

 

On January 25, 2021, shortly after the Court of Appeals issued its mandate in Saada II, the respondent filed the motion seeking to vacate the May 5, 2020 order pursuant to Rule 60(b)(2), based on “newly discovered evidence.” Describing the Courts remarks at an October 16, 2018 proceeding as a “court order,” the respondent stated that the petitioner “hired an investigator who surveilled B.A.S. and the respondent and took pictures of them in their apartment,” in “blatant violation” of an October 16, 2018 court order directing the petitioner not to try to locate the respondent during the 2018 trial. According to the respondent, the surveillance showed that the petitioner will not comply with its orders, which in turn demonstrated that he would not follow the Italian court’s protective orders. In short, the respondent argued that this “new” evidence established that B.A.S. will face a “grave risk of harm” that cannot be ameliorated, and therefore, the petition should be denied. To support her allegation of secret surveillance, the respondent submitted the transcript of a November 2020 conversation between the petitioner, his father, and a rabbi who was working with the respondent to help her secure a get. Unbeknownst to the petitioner, the respondent was listening in, and the call was being secretly recorded. 


The Court observed that Rule 60(b) outlines the grounds for relief from a final judgment, order or proceeding, including “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)[.]” Fed. R. Civ. P. 60(b)(2). A Rule 60(b)(2) motion must be made “no more than a year after the entry of the judgment or order or the date of the proceeding,” Fed. R. Civ. P. 60(c)(1), and may not be used “simply to relitigate matters settled by the original judgment.” The decision to grant a motion for relief under Rule 60(b) is left to the discretion of the court. Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012). The district court found there was no evidence that the petitioner or his attorneys tried to find out where the respondent lived, certainly not during the trial or anytime thereafter. Knowledge of the limited investigation that did take place would not have changed the outcome of my May 5, 2020 order, because it did not establish that the petitioner violated an order of the Court or that the protections put in place in Italy would be insufficient to protect B.A.S. from a grave risk of harm. The evidence was not sufficient grounds to reverse the judgment; therefore, the respondent’s motion to set aside the judgment was denied.

 

The Court pointed out that in deciding whether to stay a return order in a Hague Convention case, courts must balance the “importance of the prompt return of children wrongfully removed or retained” with the concern that “shuttling children back and forth between parents and across international borders may be detrimental to those children.” Chafin v. Chafin, 568 U.S. 165, 178 (2013). “Staying the return of a child in an action under the Convention should hardly be a matter of course.” Friedrich v. Friedrich, 78 F.3d 1060, 1063 (6th Cir. 1996). Courts considering whether to stay a return order must apply the four traditional stay factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured 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, 568 U.S. at 179 (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). A decision to stay the return should include an “appropriate consideration of the child’s best interests.” 

 

The district court found that given the small percentage of cases that the Supreme Court accepts each term, it was not likely that the respondent’s petition for certiorari would be successful. This case did present an interesting legal question, which appeared to be a matter of first impression before the Court. Overall, this factor did not weigh strongly for or against a stay. The court was not persuaded that the respondent would be irreparably injured absent a stay. The Italian court has put many protections in place to ensure the respondent’s safety in Italy, and she will have money to provide for herself and B.A.S. when they return. B.A.S.’s return would not moot the respondent’s claims or prevent her from continuing to litigate this action. See Chafin, 568 U.S. at 180. If the return order is reversed, there were currently no substantial barriers that would prevent the respondent’s return to the United States with B.A.S. The respondent was a United States citizen and would retain sole custody of B.A.S. in Italy, at least until the custody dispute was resolved in the Italian courts; she should be able to return to the United States if the Court ultimately decided in her favor. The prejudice to the Petitioner weighed against a stay. The Court ordered B.A.S.’s return to Italy almost two years ago, but he still resided in New York. The aim of the Convention is to secure prompt return of the child to the correct jurisdiction, and any unnecessary delay renders the subsequent return more difficult for the child, and subsequent adjudication more difficult for the foreign court. Haimdas v. Haimdas, 720 F. Supp. 2d 183, 211 (E.D.N.Y.), aff’d, 401 F. App’x 567 (2d Cir. 2010) (quoting Friedrich, 78 F.3d at 1063). Public interest cautioned against further delay of the return order. Weighing all the factors the court declined to stay the case pending the outcome of the respondent’s petition to the Supreme Court. 


Sunday, March 7, 2021

Bejarno v Jimeniz, --- Fed.Appx. ----, 2021 WL 796404 (Mem) (3rd Cir., 2021)[Honduras][Now-settled] [petition denied]

 

     In Bejarno v Jimeniz, --- Fed.Appx. ----, 2021 WL 796404 (Mem) (3rd Cir., 2021) [Not Selected for Publication] Kevin Daniel Sauceda Bejarno appealed from the District Court’s denial of his petition to return his son, L.S., to Honduras. The Third Circuit affirmed. It held that although Appellant established a prima facie case that Appellee, L.S.’s mother, had wrongfully removed L.S. from Honduras to the United States, the District Court denied the return request because a petition filed more than one year after removal “is subject to certain affirmative defenses, including Appellee’s demonstration [by a preponderance of the evidence] that ‘the child is now settled in its new environment.’ ” Monzon v. De La Roca, 910 F.3d 92, 96 (3d Cir. 2018) The District Court determined that Appellee met this burden. [This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.]

 

The Court reviewed the factual findings for clear error and any conclusions of law de novo. See Yang v. Tsui, 499 F.3d 259, 270 (3d Cir. 2007). It found that in a careful and thorough analysis of the ten factors specified in Monzon, the District Court determined that only two weighed against L.S. being well-settled in his New Jersey home and community: “the stability of [Appellee’s] employment or other means of support” and “the immigration status of the child and parent.” These factors are: “(1) the age of the child; (2) the stability of the child’s new residence; (3) whether the child attends school ... consistently; (4) whether the child attends church regularly [or participates in other extracurricular and community activities]; (5) the stability of the parent’s employment or other means of support; (6) whether the child has friends and relatives in the area; (7) to what extent the child has maintained ties to [Honduras]; (8) the level of parental involvement in the child’s life; (9) active measures to conceal the child’s whereabouts ... ; and, (10) the immigration status of the child and parent.” A16 & n.14; see Monzon, 910 F.3d at 105, 106 n.88.  As to those factors, the District Court reasoned that L.S. and Appellee were not citizens, so “their immigration status remains uncertain,”  while their asylum application is pending, and that without a work permit, Appellee haf only “worked sporadically in a restaurant,” Nonetheless, it concluded that these considerations were greatly outweighed by the remaining considerations, including L.S.’s “stable” family life with his stepfather and half-brother, with whom he has “grown very close,”; his involvement in school, extracurricular activities, and community activities; and his memories of and ties to America, formed from ages four to six.

 

The Court rejected Appellants argument the District Court erred in declining to hear additional testimony concerning L.S.’s and Appellee’s immigration status and in refusing to treat this factor as dispositive of whether L.S. was well-settled. Appellee’s immigration status would not change the outcome of the ten-factor analysis nor would it be independently dispositive. Immigration status “is neither dispositive nor subject to categorical rules, but instead is one relevant factor in a multifactor test.” Hernandez v. Garcia Pena, 820 F.3d 782, 788 (5th Cir. 2016). The Court held that the District Court’s ultimate evaluation of the totality of the circumstances was consistent with Article 12 of the Hague Convention and the implementing statute, the Courts precedent, and the case law of other circuits that immigration status “cannot undermine all of the other considerations which uniformly support a finding that [the child] is ‘settled’ in the United States.” In re B. del C.S.B., 559 F.3d 999, 1010 (9th Cir. 2009); see Lozano v. Alvarez, 697 F.3d 41, 57 (2d Cir. 2012) (noting that “no court has held [immigration status] to be singularly dispositive”), aff’d sub nom. Lozano v. Montoya Alvarez, 572 U.S. 1 (2014); Alcala v. Hernandez, 826 F.3d 161, 174 (4th Cir. 2016) (same). It agreed with the District Court’s conclusion that Appellant met her burden of showing L.S. was well-settled in the United States.

Thursday, March 4, 2021

Lukic v Elezovic, 2021 WL 804384 (E.D. N.Y., 2021)[Montenegro] [Federal & State Judicial Remedies] [Summary judgment] [Petition granted] [Stay denied]

 


In Lukic v Elezovic, 2021 WL 804384 (E.D. N.Y., 2021) Respondent, Bahrija Elezovic, sought a stay pending appeal the  February 9, 2021 opinion and order requiring that she return her six-year-old daughter N.L. to Montenegro forthwith, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) Lukic v. Elezovic, No. 20-CV-3110 (ARR) (LB), 2021 WL 466029, at *10 (E.D.N.Y. Feb. 9, 2021).

 

Respondent had not complied with the order. After petitioner, N.L.’s father, filed a motion for contempt, respondent’s counsel informed petitioner’s counsel that respondent agreed to proceed with petitioner’s plan in which petitioner accompanied N.L. back to Montenegro. On March 1, 2021, the parties received a decision from the Montenegrin Family Court in their custody dispute over N.L.  Petitioner had moved to amend the 2015 custody judgment that afforded physical custody rights to respondent. The Montenegrin Family Court denied petitioner’s request and declined to disturb the 2015 custody judgment. Id. After reviewing this judgment, respondent’s counsel informed petitioner’s counsel that respondent believes this decision “entirely changes the situation.” Respondent then filed a notice of appeal and notified petitioner’s counsel that she intended to seek a stay, as well. Respondent filed a stay motion on March 2, 2021.

 

The Court pointed out that  Rule 62(c) of the Federal Rules of Civil Procedure permits a district court to stay enforcement of a judgment while an appeal is pending. A party seeking such a stay bears a “difficult burden.” United States v. Private Sanitation Indus. Ass’n, 44 F.3d 1082, 1084 (2d Cir. 1994). In evaluating whether to stay a “return order” under the Hague Convention, “[c]ourts should apply the four traditional stay factors ...: ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured 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) (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). “Staying the return of a child in an action under the [Hague] Convention should hardly be a matter of course.” Friedrich v. Friedrich, 78 F.3d 1060, 1063 n.1 (6th Cir. 1996). “The aim of the Convention is to secure prompt return of the child to the correct jurisdiction, and any unnecessary delay renders the subsequent return more difficult for the child, and subsequent adjudication more difficult for the foreign court.” The district court concluded that (1) Respondent was unlikely to succeed on the merits of her Appeal. (2)  Respondent would not ne Irreparably injured absent a Stay, but a Stay Would Substantially Harm Petitioner and N.L. and (3)  The Public Interest Favors Denying a Stay.“ [T]he public interest, as relevant to a Hague Convention dispute, is primarily defined by the treaty itself, the express purpose of which is ‘to secure the prompt return of children wrongfully removed to or retained in any Contracting State.’ ” Hofmann, 2012 WL 8466673, at *1 (quoting Hague Convention art. 1); see also Vale, 2008 WL 2246929, at *3 (“[T]he public interest of this country and of other countries which are signator[ie]s to the Convention is met when the purpose of the Convention is met.”). “Protraction ... is hardly consonant with the Convention’s objectives.” Chafin, 568 U.S. at 185 (Ginsburg, J., concurring). Here, denying a stay pending appeal would better adhere to the Hague Convention’s purpose. N.L.’s wrongful retention has continued for more than a year, and further delay will cause significant harm to petitioner and N.L. Moreover, I have reviewed the 2021 custody judgment, respondent’s only new evidence, and determined that it does not alter my return analysis. See supra Section I. Thus, N.L.’s expeditious return to Montenegro furthers the objectives of the Hauge Convention and, in turn, the public interest .For the foregoing reasons, the court denied respondent’s motion to stay its February 9, 2021 opinion and order pending appeal under Federal Rule of Civil Procedure 62(c).


 

Lukic v Elezovic, 2021 WL 466029 (E.D. N.Y., 2021) [Montenegro] [Federal & State Judicial Remedies] [Summary judgment] [Petition granted]

 


 

In Lukic v Elezovic, 2021 WL 466029 (E.D. N.Y., 2021) the district court granted Petitioners motion for summary judgment for the return of his minor daughter, N.L., to Montenegro.

 

N.L. was the shared daughter of petitioner and respondent. She was born in Ulcinj, Montenegro in May 2014 and was six years old.  N.L. was a citizen of Montenegro. Petitioner and respondent also shared an older son, D.L., who was now nine years old. D.L. currently lived with petitioner, who has had official custody of him since 2018. When N.L. was approximately twenty days old, she and respondent ceased living with petitioner and moved to Podgorica, Montenegro. In April 17, 2015, the Primary Court in Podgorica issued an order governing N.L.’s custody.  The court awarded “care and upbringing” to respondent, “with whom the minor [N.L.] is to reside.” The court also ordered that petitioner had the right to have contact with N.L. every fifteen days until she reached two years old, after which he would have the right to take her with him every other week from Friday evening to Sunday evening. N.L. remained living with respondent in Podgorica and attended school in Montenegro until she entered the United States in July 2019. Respondent claims she “struggled to live” and “was forced to request help from the social services and Food Bank.” Petitioner denied that his “children went to bed hungry” and claims that respondent’s apartment in Podgorica “had everything.” Petitioner claimed that in accordance with the custody judgment he visited N.L. in Podgorica often before she turned two. After that, he claims he continued to visit her or bring her to Ulcinj on alternating weekends. Respondent denied these assertions. Petitioner failed to pay child support on three occasions, resulting in criminal judgments against him. But petitioner testified that he does not currently pay child support for N.L. because the child support respondent owes him for their son’s care is a nearly equal amount. And respondent admitted that petitioner paid “regularly every month after the last court order” up until June 2019.

 

On August 11, 2017, petitioner and respondent signed similar consent forms, one allowing D.L. to “cross the border in the company of” petitioner “to travel out of Montenegro (Serbia and abroad) in the period unlimited,” and one allowing N.L. to “cross the border accompanied by” respondent “for the purpose of traveling abroad (America) during the period from unlimited.” Petitioner testified that the form for N.L. gave respondent “the consent that she can go and travel as much as she wants so that I don’t have to go every time to Podgorica every time she wants to travel. Just as I have for the son, so that I don’t have to go every time to Podgorica, to United States, to ask for consent or to let the son go to excursion with school.”. Respondent testified that in presenting the form for D.L., petitioner “never acknowledged any intention to have our son relocated. He asked me for the permission for foreign travel at the same time when I asked him to sign off the permission that I can travel with our daughter. So, I signed also the permission for him that he can travel with our son. When asked if the form for N.L. “sa[id] anything about relocation,” respondent replied, “[N]o. It says here just for travel .... [T]his is the permission just to -- that you can freely get over the border to get out of the country, and nothing else.”. Respondent further testified that she never spoke to petitioner about “how long the trip [to the United States] [wa]s going to be,” nor did she “know that [she] was going to stay” in the United States ahead of time. Nevertheless, she asserted that “[t]here’s no time limit, how long I can stay with my child here in the United States.”

 

 

 

N.L. and respondent entered the United States in July 2019 on Montenegrin passports. To help N.L. obtain her passport, petitioner had signed a passport application for her shortly before she traveled to the United States. N.L. and respondent obtained nonimmigrant B-2 visitor visas to the United States. B-2 visas “are nonimmigrant visas for persons who want to enter the United States temporarily ... for tourism.” N.L.’s and respondent’s B-2 visas expired on January 1, 2020.  

 

N.L. has been in New York for more than eighteen months. She lives with respondent in an apartment with respondent’s sister, mother, and niece, and is enrolled in school, which takes place remotely due to the COVID-19 pandemic. N.L. “is in first grade and is learning how to write, draw, etc.” N.L. is attached to her mother, Elezovic, with whom she’s lived since birth.” Respondent is not currently employed, other than occasionally helping her sister with projects.

 

 

Articles 73 through 79 of Montenegrin Family Law regulate the relations between parents and children, as well as procedures related to the exercise of parental rights. Petitioner’s expert, Vladimir Radonjic, defines parental rights as “different duties and rights of parents to care about personality, rights and interests of their children.” Respondent’s expert, Vesna Raicevic, defines parental rights as “ha[ving] custody.” Article 78 provides that “[o]ne parent shall exercise parental right on the grounds of court decision when the parents do not live together, and have not concluded an agreement on exercise of parental right.” Both experts agree that Article 78 applies to N.L. Respondent asserts, based on Raicevic’s report, that the 2015 custody judgment appointed her “as the only parent who exclusively exercises parental rights” over N.L. Petitioner,  denied that only respondent has parental rights over N.L. Article 79 provides: The agreement on the independent exercise of parental rights includes the agreement of the parents on entrusting the joint child to one parent, the agreement on the amount of contribution for the maintenance of the child from the other parent and the agreement on maintaining the child’s personal relations with the other parent. The agreement on the independent exercise of parental rights transfers the exercise of parental rights to the parent to whom the child is entrusted. A parent who does not exercise parental rights has the right and duty to support the child, to maintain personal relations with the child and to decide on issues that significantly affect the child’s life jointly and in agreement with the parent exercising parental rights. Issues that significantly affect the child’s life, in terms of this law, are considered in particular: the child’s education, undertaking major medical procedures on the child, changing the child’s residence and disposing of the child’s property of great value. The rights granted under Article 79 of the Family Law of Montenegro can be altered only by a court order.

 

          Petitioner filed the action on July 13, 2020.  Petitioner argues that he is entitled to N.L.’s return to Montenegro because he had ne exeat rights protected by the Hague Convention and respondent breached those rights by keeping N.L. in the United States beyond the six months to which he consented. Respondent claims petitioner does not have any custody rights protected by the Hague Convention and even if he did, he waived them either by consenting to unlimited travel or failing to exercise those rights when N.L. was brought to the United States.

 

The district court found that the uncontested facts proves that six-year-old N.L. was habitually resident in Montenegro before coming to the United States. “[A] child’s habitual residence depends on the totality of the circumstances specific to the case,” taking into account “the family and social environment in which the child’s life has developed.” Monasky v. Taglieri, 140 S. Ct. 719, 723, 726 (2020) “Where a child has lived in one place with her family indefinitely, that place is likely to be her habitual residence.” Here, it was undisputed that N.L. resided in Montenegro her entire life, up to the point when respondent took her to the United States more than eighteen months ago.

 

The district court found that Respondent breached petitioner’s ne exeat rights over N.L. The Supreme Court has recognized that ne exeat rights—meaning joint rights to determine a child’s country of residence—constitute custody rights under the Hague Convention. See Abbott, 560 U.S. at 10–11. Here, it was undisputed that Article 79 of the Montenegrin Family Law grants “[t]he parent who does not exercise parental rights” the right “to decide on ... the child’s residence” and that this right can be derogated only through court order. The parties contested whether respondent exclusively holds “parental rights” over N.L. But this dispute was immaterial because Article 79 endows ne exeat rights even to “[t]he parent who does not exercise parental rights.” In fact, both experts appear to agree that Article 79 applies in this case. Thus, Article 79 established that petitioner has presumptive ne exeat rights over N.L.

 

Petitioner also had shown that respondent wrongfully retained N.L. in breach of his ne exeat rights. “ ‘[W]rongful retention’ occurs when one parent, having taken the child to a different Contracting State with permission of the other parent, fails to return the child to the first Contracting State when required.” Marks ex rel. SM v. Hochhauser, 876 F.3d 416, 421 (2d Cir. 2017). It was undisputed that petitioner consented to N.L. traveling to the United States with respondent and that N.L.’s and respondent’s B-2 tourist visas expired on January 1, 2020, which requires them to leave the country. Respondent contested, however, the scope of petitioner’s consent. She claims that the face of the consent form authorized N.L.’s remaining in the United States indefinitely because it allows N.L. to “cross the border” for the purpose of “traveling” abroad for an “unlimited” period of time. But in evaluating consent, courts look to “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). To preclude the return remedy, a respondent must show the petitioner had the “‘subjective intent’ to permit Respondent to remove and retain the child for an indefinite or permanent time period.” While one could interpret the term “unlimited” to encompass one trip of infinite length on its face,10 petitioner presented uncontroverted evidence that he understood the consent form only to authorize an unrestricted number of temporary trips. Not only did petitioner testify to this understanding, but respondent also confirmed it. She testified that she never spoke to petitioner about “how long the trip [to the United States] [wa]s going to be,” nor did she “know that [she] was going to stay” in the United States ahead of time. Elezovic Dep. Tr. 61:10–14, 22–24. Thus, petitioner could not have formed the intent to authorize N.L.’s indefinite relocation to the United States beyond the bounds of a tourist visa. Moreover, respondent testified that she understood both the form petitioner signed for N.L. and the nearly identical form she signed for D.L. to grant “permission just to ... freely get over the border to get out of the country, and nothing else.” Based on this evidence, no reasonable jury could find that petitioner consented to N.L.’s indefinite retention in the United States and thus petitioner has established that N.L.’s retention was wrongful after the expiration of the parties’ B-2 visas on January 1, 2020.

 

[T]he standard for evaluating whether a petitioner is exercising custody at the time of removal is fairly lenient.” Valles Rubio v. Veintimilla Castro, No. 19-CV-2524 (KAM) (ST), 2019 WL 5189011, at *18 (E.D.N.Y. Oct. 15, 2019), aff’d, 813 F. App’x 619 (2d Cir. 2020). “A ‘person cannot fail to “exercise” [his] custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.’” Souratgar v. Fair, No. 12-CV-7797 (PKC), 2012 WL 6700214, at *4 (S.D.N.Y. Dec. 26, 2012) (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1066 (6th Cir. 1996)), aff’d sub nom. Souratgar v. Lee, 720 F.3d 96 (2d Cir. 2013). “[A] ne exeat right is by its nature inchoate and so has no operative force except when the other parent seeks to remove the child from the country.” Abbott, 560 U.S. at 13. “If that occurs, the parent can exercise the ne exeat right by declining consent to the exit or placing conditions to ensure the move will be in the child’s best interests. When one parent removes the child without seeking the ne exeat holder’s consent, it is an instance where the right would have been exercised but for the removal or retention.” Petitioner had shown that respondent sought his permission to travel to the United States with N.L. and that he consented to temporary visits. These facts alone show that petitioner was exercising his ne exeat rights at the time respondent wrongfully retained N.L. See Valles Rubio, 2019 WL 5189011, at *18 (finding petitioner exercised ne exeat right “by consenting to limited-duration travel”). Moreover, petitioner has shown that respondent retained N.L. in the United States past the boundaries of his consent, see supra Section I.B, and that he submitted a request for return under the Hague Convention on February 3, 2020, in addition to the instant lawsuit. See Haimdas, 720 F. Supp. 2d at 204 (finding the petitioner “would have exercised her ne exeat right but for the retention” because she declined to consent to her children “staying out of England for longer than one month” but “had no way to enforce that condition once they were physically present in the United States”).

 

Petitioner established a prima facie entitlement to the return remedy that respondent has failed to rebut. Respondent raised four affirmative defenses: (1) that petitioner consented to N.L.’s retention in the United States; (2) that petitioner was not exercising custody rights at the time of N.L.’s retention; (3) that judicial proceedings were not commenced within one year of N.L.’s retention and now she is well settled in New York; and (4) that there is a grave risk that N.L.’s return would expose her to harm. She failed to show either that she was entitled to summary judgment on any of these defenses or that genuine disputes of material facts existed regarding them.