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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.

 


Wednesday, May 25, 2022

Recent Hague Convention District Court Cases - Aldaba v Marta, 2022 WL 1641320 ( D. Kansas, 2022).

 Aldaba v Marta, 2022 WL 1641320 ( D. Kansas, 2022).

[Mexico] [Petition granted] [Grave risk of harm not established] [Respondent alleged that the children have sustained physical abuse and neglect while in Petitioner’s custody; that Mexican authorities have ignored Respondent’s complaints about the alleged abuse and neglect; and that Ciudad Juarez is a dangerous city with high crime rates. The Court held that Respondent failed to come forward with “clear and convincing evidence” proving that these three reasons, whether taken collectively or considered separately. presented a “grave risk” that returning the children to Mexico will expose them to harm or an intolerable situation.

 


Sunday, May 22, 2022

Dumitrascu, on behalf of A.M.B.D v. Dumitrascu, Not Reported in Fed. Rptr., 2022 WL 1529624 (Tenth Circuit, 2022)

 Dumitrascu, on behalf of A.M.B.D v. Dumitrascu, Not Reported in Fed. Rptr., 2022 WL 1529624 (Tenth Circuit, 2022) the district court found that Alin wrongfully retained A.M.B.D. in the United States and ordered A.M.B.D.’s return to Romania. On appeal challenge the district court’s threshold finding that A.M.B.D. habitually resided in Romania. The Tenth Circuit affirmed.

Alin and Violeta were both Romanian by birth and have family in Romania. Alin moved to the United States in 2006 and became a United States citizen. Violeta was  a Romanian citizen. 
The two met online in 2007 and married in Romania in 2015. They then moved to Colorado in 2016, and Alin successfully sponsored Violeta’s application for a green card. Violeta later became pregnant with A.M.B.D. The couple decided to travel to Romania for her birth in part to avoid hospital fees in the United States. They traveled to Romania in early August 2019, where they stayed with Alin’s father; though at that point they “intended to return to the United States at some point to raise the child.” Violeta gave birth to A.M.B.D. on September 4, 2019, and the couple lived in Romania for about ten months after A.M.B.D.’s birth. During that time, their “plan for the future diverged.”. “When A.M.B.D. was five weeks old, [Violeta] got a job [in Romania] because someone had to earn money and [Alin] did not want to work in Romania.” . Violeta’s green card also expired, the United States denied her application for an extension, and she developed reservations about returning to the United States. “She therefore made plans for the family to live in Romania.” As part of these plans, she applied for “the First House program, a Romanian program to assist young families in buying their first home.” Alin intended for the family to return to the United States. He got Violeta’s permission to travel to the United States with A.M.B.D. so he could obtain a social security card for the child. “He also planned to work on getting [Violeta] a green card, to bring her over to the United States, and to earn money through a job.” To facilitate this trip, Violeta signed an affidavit that stated: “I agree and consent[ ] that [A.M.B.D. can] travel to the United States of America, starting with July 6, 2020, until December 31, 2020, together with Alin Dumitrascu, as parent of minor.” Alin took A.M.B.D. to the United States in July 2020. But he did not help Violeta apply for a green card. And he did not return A.M.B.D. to Romania by the December 31 deadline to do so. Violeta then filed for divorce in Romania and launched these proceedings seeking A.M.B.D.’s return to Romania.
 
The district court found that Romania was A.M.B.D.’s habitual residence when Alin retained her in the United States. It therefore evaluated whether Alin’s retention of A.M.B.D. breached Violeta’s custody rights under Romanian law, concluded that his retention did, and ordered A.M.B.D.’s return to Romania pending custody proceedings there. Alin challenges the district court’s finding that A.M.B.D. habitually resided in Romania.
 
The Tenth  Circuit agreed with Violeta that the district court found A.M.B.D. habitually resided in Romania on the date Alin retained her in the United States without Violeta’s permission. And the court ultimately found “that A.M.B.D.’s habitual residence at the time of her removal to the United States on July 8, 2020, and subsequent retention in the United States, was Romania.” 
 
Alin contended the district court clearly erred in finding that A.M.B.D. habitually resided in Romania. The Court observed that the Hague Convention does not define the term ‘habitual residence.’ ” Monasky, 140 S. Ct. at 726. “A child ‘resides’ where she lives. Her residence in a particular country can be deemed ‘habitual,’ however, only when her residence there is more than transitory.” “The place where a child is at home, at the time of removal or retention, ranks as the child’s habitual residence.”. “Because locating a child’s home is a fact-driven inquiry, courts must be sensitive to the unique circumstances of the case and informed by common sense.” “There are no categorical requirements for establishing a child’s habitual residence,” and “[n]o single fact ... is dispositive across all cases,” Instead, “[t]he inquiry into a child’s habitual residence ... cannot be reduced to a predetermined formula and necessarily varies with the circumstances of each case.” Id. A petitioning parent bears the burden of proving a child’s habitual residence in the applicable country by a preponderance of the evidence. See 22 U.S.C. § 9003(e)(1)(A); West v. Dobrev, 735 F.3d 921, 929 (10th Cir. 2013). 
Alin was correct that “ ‘the intentions and circumstances of caregiving parents are relevant considerations.’ ” (quoting Monasky, 140 S. Ct. at 727). “But a court must consider all the facts and circumstances concerning the couple’s intended stay in the country.” Watts, 935 F.3d at 1145. Here, Alin and Violeta shared an intent to return to the United States “as a family.” They “never had a shared, mutual intent to live apart.” And when Violeta’s green card expired in November 2019, the family could no longer live together in the United States. The district court weighed the impact of this changed circumstance on the couple’s prior intent, alongside other facts, including the couple’s joint effort to secure an affidavit time-limiting A.M.B.D.’s travel away from the only country she had ever lived in, and found that “the parties’ pre-birth intent [was] outweighed by their intent and conduct thereafter.” It declined Alin’s invitation to re-weigh the evidence on appeal. See United States v. Gilgert, 314 F.3d 506, 515–16 (10th Cir. 2002) (“On clear error review, our role is not to re-weigh the evidence ....”).
 
Alin argued that “[o]utside of [Violeta’s] unilateral actions, the district court had little to rely on to support its conclusion that A.M.B.D.’s habitual residence was Romania.” The Court disagreed. The evidence showed A.M.B.D. was born in Romania, lived there for ten months—accumulating various possessions and building relationships with extended family in Romania during that time—and only left Romania via a travel document that limited her legal absence to less than six months. Also, both of her parents could legally live in Romania, whereas only her father could legally live in the United States. These facts support a finding that A.M.B.D. was “at home,” Monasky, 140 S. Ct. at 726, in Romania. Cf. United States v. Chavez, 734 F.3d 1247, 1250 (10th Cir. 2013) 
 
Alin highlighted evidence that could support a finding A.M.B.D. was habitually resident in the United States. But this evidence did not lead  to “a definite and firm conviction that the district court erred,” Chavez, 734 F.3d at 1250. Starting with A.M.B.D.’s citizenship, the Hague Convention’s writers “deliberately chose ‘habitual residence’ for its factual character, making it the foundation for the Convention’s return remedy in lieu of formal legal concepts like domicile and nationality.” Monasky, 140 S. Ct. at 727. And Alin did not cite any evidence that A.M.B.D.’s legal citizenship bore any relation to where she was “at home,” 
Alin argued the district court erred by failing to discuss evidence pertaining to A.M.B.D.’s acclimation in the United States during the period between July 8 and December 31, 2020, in its section addressing A.M.B.D.’s habitual residence. But as a general rule, “the district court is not required to make findings as to every detail. Findings are sufficient if they indicate the factual basis for the court’s general conclusion as to ultimate facts and are broad enough to cover all material issues.” Hjelle v. Mid-State Consultants, Inc., 394 F.3d 873, 880 (10th Cir. 2005) And in this case, the district court’s order made it clear the court was aware of and considered evidence of A.M.B.D.’s acclimation in the United States after July 8, 2020, by discussing some of that evidence in a later section of its order. 

*
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.


Recent Hague Convention District Court Cases - Soberano v Guillen, 2022 WL 1092675 ( W.D. Washington, 2022)

Soberano v Guillen, 2022 WL 1092675 ( W.D. Washington, 2022)
[Mexico] [Order imposing sanctions on Petitioners attorney] [The Court learned at the conclusion of this case, that Petitioners attorney  had repeatedly sought a final order returning the children to Petitioner’s custody in Mexico after Petitioner had agreed, in the parties’ Mexican divorce proceedings, that the children could remain in the United States with Respondent. Apart from seeking a final order possibly inconsistent with the parties’ agreement, counsel failed to bring the dispositive agreement to the Court’s attention The Court concluded that sanctions were warranted, under the Court’s local rules and inherent powers, Federal Rule of Civil Procedure 11, and 28 U.S.C. § 1927, both for counsel’s actions in seeking a potentially inconsistent final ruling after receiving notice of the parties’ settlement agreement and for her failure to timely notify the Court of the agreement.]
 

 

Recent Hague Convention District Court Cases - Sanchez v Duarte, 2022 WL 1540581 ( N.D. Texas, 2022)

 Sanchez v Duarte, 2022 WL 1540581 ( N.D. Texas, 2022) 
[Mexico] [Petitioner’s Motion for Costs, Fees, and Expenses denied because it was untimely] [Despite ICARA’s mandatory language regarding awards of court costs and legal fees, federal and local procedural rules still apply in many jurisdictions. Thus, when a party files a motion for costs and attorney’s fees under ICARA so late that it violates such a procedural rule, a district court may properly disallow the award. See, e.g., Pesin v. Rodriguez, 244 F.3d 1250, 1253 (11th Cir. 2001) The Northern District of Texas has indicated a willingness to deny fees and costs under ICARA when the motion seeking them is filed too late to comply with a procedural rule. See Guaragno v. Guaragno, No.7:09-CV-187-0, 2011 WL 108946, at *3 & n.1 (N.D. Tex. Jan. 11, 2011) (O’Connor, J.) (finding the motion timely). In Guaragno, Judge O’Connor explained that in ICARA cases in this district, courts assess the lateness of a motion based on Rule 54(d). Other Hague cases calculate the timeliness of motions for attorney’s fees and costs based on local rules governing attorney’s fees. Because the Northern District of Texas does not have a local rule governing motions for attorney’s fees, the Court based its calculation of timeliness on Federal Rule of Civil Procedure 54(d). Consequently, a petitioner who prevails on the merits in an ICARA case in this District “must apply for an award of attorney’s fees within 14 days after the judgment is entered. The Court issued its Memorandum Opinion and Order granting Petitioner’s Petition for Return of Child on February 15, 2022. Petitioner’s Motion was therefore due by March 1, 2022. See FED. R. CIV. P. 54(d); Guaragno, 2011 WL 108946, at *3. However, Petitioner did not file the Motion until March 29, 2022.. Accordingly, the Motion was filed untimely. See FED. R. CIV. P. 54(d); Guaragno, 2011 WL 108946, at *3.

Recent Hague Convention District Court Cases - Munoz v Diaz, 2022 WL 1093270 ( S.D. Georgia, 2022)

 Munoz v Diaz, 2022 WL 1093270 ( S.D. Georgia, 2022)
[Mexico] [Petition granted] [Habitual residence established] [Grave risk of harm defense not proven; Mother’s testimony made no reference to any concern that the Father posed a risk of harming the Children.]

Recent Hague Convention District Court Cases - Krause v Krause, 2022 WL 1292261 (E.D. California, 2022)

 Krause v Krause, 2022 WL 1292261 (E.D. California, 2022). 
[Petitioner’s motion to permit witness testimony via video conference denied] 

Recent Hague Convention District Court Cases - Karim v Nakato, 2022 WL 1597955 ( D. Mass, 2022)

 

Karim v Nakato, 2022 WL 1597955 ( D. Mass, 2022)

[United Kingdom] [Habitual residence established] [Petition granted] [Consent and Acquiescence defense; age and maturity exception, Grave Risk of Harm defense and Well-Settled Child exception do not apply]

Sunday, April 10, 2022

Recent New York Hague Convention New York Case - State of N.Y. ex rel. B.E. v T.C. --- N.Y.S.3d ----, 74 Misc.3d 778, 2022 WL 497517 (Sup. Ct, 2022)[United Kingdom][Habitual Residence][Petition denied]

 

State of N.Y. ex rel. B.E. v T.C. --- N.Y.S.3d ----, 74 Misc.3d 778, 2022 WL 497517 (Sup. Ct, 2022)

Petitioner B.E. brought this writ of habeas corpus to produce *the child M.C.-E., his child. The writ was satisfied on January 4, 2022. Mr. E. filed a petition permitting him to immediately take M. to London based on the court’s emergency jurisdiction under Domestic Relations Law §§ 75-a (7) and 76-c and the Hague Convention on the Civil Aspects of International Child Abduction. M. was with his mother, respondent T.C., in Brooklyn. She moved to, inter alia, dismiss petitioner’s application under CPLR 3211 (a) (4) and Domestic Relations Law § 76-e (1) and (2). 

 

Petitioner B.E. and respondent T.C. were married in London, England, in June 2007. In 2013 they adopted their son M.C.-E. They resided in London until Mr. E., who worked in the financial field, received an offer from Andreessen Horowitz, after which, in 2014, the family relocated to San Francisco, California. Ms. C. is a musician, well-known for her particular musical style. The parties resided in England from the 2007 marriage until 2014. When they moved to San Francisco they sold their home in England. In 2015 Ms. C. told Mr. E. that she wanted to end the marriage and insisted he take M. and move from the marital residence. Mr. E. commenced the divorce action in San Francisco in 2016. While Ms. C. was on tour during 2017 M. continued to reside in San Francisco. In 2018 she moved to New York for medical treatment and remained there when diagnosed with breast cancer. In December 2019, Mr. E. took M. to visit Ms. C. in New York. Then he removed M. to England without Ms. C.’s consent. He moved into his parents’ home and enrolled M. in school in England. They visited Ms. C. in New York during the Christmas holidays in 2019 and from February 15-23, 2020.


Tthe court denied the petitioner’s application to apply UCCJEA jurisdiction. Concurrently, Mr. E. sought a ruling that under the Hague Convention that England was M.’s “habitual residence” and immediately return M. to his care. The Supreme Court observed that the  Hague Convention is codified as the International Child Abduction Remedies Act (22 USC § 9001). A petitioner must demonstrate by a preponderance of the evidence: “(1) the child was habitually resident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner’s custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention.” (Gitter v Gitter, 396 F3d 124, 130-131 [2d Cir 2005].) To determine habitual residence, the court must also “inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time” that they had the same interests. The court must consider intent, actions, and declaration. And the court should inquire whether the evidence unequivocally concludes that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. (Matter of E.Z., 2021 WL 5106637, 2021 US Dist LEXIS 212008.)  The “habitual residence” determination is “fact-driven,” and “courts must be sensitive to the unique circumstances of the case and informed by common sense.” (Monasky v Taglieri, 589 US —, —, 140 S Ct 719, 727 [2020] [internal quotation marks omitted].) The residence must have the “quality of being habitual.” (589 US at —, 140 S Ct at 729) The court must consider time passage, participation in sports programs and excursions, academic activities, and meaningful connections with the people and places in the child’s new country. (589 US at — n 3, 140 S Ct at 727 n 3.) Parents must have a “shared” settled intent to acquire a new habitual residence in the shared plan about the child’s future. Shared intent may “coalesce” if the child leaves the country. The court found two places where the parents would have agreed to reside habitually: San Francisco or New York after July 25, 2021.The facts did not establish that England was M.’s “habitual residence.” Mr. E.’s petition for an order mandating M.’s return to England was denied. Ms. C.’s application for dismissal was granted to that extent.

 


Monday, April 4, 2022

Ajami v Solano, 2022 WL 909413 (Sixth Circuit, 2022) - [Venezuela][Grave risk of harm][ Asylum ][Petition granted]

In Ajami v Solano, 2022 WL 909413 (Sixth Circuit, 2022) the district court granted the petition of Pierre Salame Ajami (“Salame”) for the return of his two minor children to Venezuela, their country of habitual residence,  The Sixth Circuit affirmed

 

Tescari and Salame were Venezuelan citizens and had two minor children together, EAST and PGST. In 2018, Tescari removed the children from their home in Barquisimeto, Venezuela, and brought them with her to the United States. Salame filed a petition under the Hague Convention seeking the children’s return on February 20, 2019. Tescari and, as derivative family members, the children were granted asylum in the United States on June 10, 2019.  The parties stipulated to the applicability of the Convention and established Salame’s prima facie case of wrongful removal, so the only issue before the district court was whether Tescari established an affirmative defense under Article 13(b) of the Hague Convention. The district court concluded Tescari failed to establish, by clear and convincing evidence, her affirmative defense that returning the children to Venezuela would subject them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation. It therefore granted Salame’s petition and ordered that the children be returned to Venezuela. The Sixth Circuit affirmed the district court’s conclusion that Tescari failed to present clear and convincing evidence that an Article 13(b) exception applied. She failed to demonstrate that returning the children to Venezuela would expose them to a grave risk of physical or psychological harm or otherwise subject them to an intolerable situation. 


The Court observed that whether a child would be exposed to a “grave risk” of harm or returned to an “intolerable situation” are mixed questions of law and fact that are reviewed de novo. Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir. 2001) 


Tescari claimed that returning the children to Venezuela would expose them to a grave risk of harm due to Salame’s alleged history of domestic violence. In a Hague Convention case, precedent establishes three broad categories of abuse: minor, clearly grave, and cases in the middle, in which the abuse “is substantially more than minor, but is less obviously intolerable.” Simcox, 511 F.3d at 607−08. A case involving relatively minor abuse would likely not pose a grave risk to the child nor place the child in an intolerable situation.. In such cases, the district court has no discretion to refuse the petition to return because the Article 13(b) threshold has not been met. A case in which the abuse is clearly grave typically involves “credible evidence of sexual abuse, other similarly grave physical or psychological abuse, death threats, or serious neglect.” Cases in the middle category call for a fact-intensive inquiry into “the nature and frequency of the abuse, the likelihood of its recurrence, and whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the child caused by its return.” 

 

First, Tescari contended the district court erred in finding that the claimed abuse towards her, which was allegedly witnessed by the children, fell into the category of minor abuse. The district court found that Tescari established one incident of physical abuse by Salame towards her in 2013, although it did not conclusively determine what happened. It also determined that the parties “have a tumultuous relationship that negatively affects EAST and PGST.”. The district court was unable to find that Salame ever abused the children. The district court made credibility determinations, and its factual conclusions regarding Tescari’s allegations of abuse were not clearly erroneous. The district court found one credible incident of abuse. This incident, even when considered alongside the other alleged and unproven conduct, was clearly less serious and less frequent than the middle-level abuse detailed in Simcox. It agreed with the district court’s conclusion that the one incident of abuse fell into the relatively minor category. The abuse did not rise to the level of a viable defense to the children’s return under Article 13(b). Because the abuse in this case was relatively minor, the district court had no discretion to refuse the petition nor to consider evidence of potential future harm.

 


Tescari claimed the district court “erred in finding that the children did not face a grave risk of physical or psychological harm from a return to Venezuela, a zone of war and famine”; thereby placing herself and the children in an intolerable situation. The Court noted that the difference between exposing a child to a “grave risk of harm” and subjecting a child to an “intolerable situation” is not clearly established in the court’s precedent. But an “ ‘intolerable situation’ must be different from ‘physical or psychological harm,’ but nevertheless serious,” meaning “either it cannot be borne or endured, or it fails some minimum standard of acceptability.” Pliego v. Hayes, 843 F.3d 226, 233 (6th Cir. 2016). An “intolerable situation” can arise when the state of habitual residence is experiencing civil instability. Similarly, a grave risk of harm exists when “return of the child puts the child in imminent danger prior to the resolution of the custody dispute—e.g., returning the child to a zone of war, famine, or disease.” Friedrich, 78 F.3d at 1069. But an intolerable situation does not arise merely when the child would be returned to a country “where money is in short supply, or where educational or other opportunities are more limited than in the requested State.” Whether reviewed for grave risk of harm or intolerable situation, this is an inquiry that evaluates both Venezuela’s overall dangerousness and the particular circumstances the children would face if returned to Venezuela. See Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347, 1364 (M.D. Fla. 2002); see also Pliego, 843 F.3d at 232 (citing id. at 1364−65).

 

The court noted the lack of precedent identifying any country as a zone of war sufficient to trigger the grave risk or intolerable situation exception. Turning to Venezuela, it noted that Venezuela is not actively torn by civil war, it remains a single integrated country capable of signing international treaties. As such, it remains a fellow signatory to the Hague Convention. The parties presented evidence of the humanitarian and political crises unfolding in Venezuela and evidence of the particular circumstances the children would face if returned. Considering both parties’ evidence, the district court determined Salame could provide the children with shelter, food, and medication in Venezuela. This factual finding was not clearly erroneous. Although the conditions in Venezuela were less stable than those the children likely enjoyed in Murfreesboro, Tennessee, this does not mean they would face an intolerable situation or a grave risk of harm upon return. Despite Venezuela’s political schisms and civil unrest, Tescari failed to introduce sufficient evidence that it was a zone of war, famine, or disease warranting an Article 13(b) affirmative defense.

 

Tescari argued that the district court erred in concluding that she failed to prove the corruption of the Venezuelan courts and the undue influence of Salame. Tescari pointed to testimony about general corruption in the Venezuelan judiciary, testimony about persecution of political opposition leaders, and her attorney’s testimony about proceedings being biased in favor of Salame due to his political connections. However, there was also evidence that Tescari’s attorney had been able to file documents, review case files, and even secured a new judge to oversee the parties’ custody dispute after requesting recusal of the previous judge. Ultimately, the district court found that delays in court proceedings among the parties and other examples of purported corruption “are not so severe as to indicate the Venezuelan courts are corrupt or that they would be unable to fairly adjudicate the custody dispute.” Ajami, 2020 WL 996813, at *19. This factual finding was not clearly erroneous, and any defects in the Venezuelan court system fell short of what is required for an intolerable situation. Pliego, 843 F.3d at 235.

 

Lastly, Tescari argued the district court failed to properly consider her grant of asylum, thereby “threaten[ing] the sovereignty of the executive branch. She claimed the district court’s order effectuating return, despite the children’s asylee status, usurped Congress’s authority and renders null the executive branch’s asylum determination. This argument was without merit because the district court has the authority to order the return of wrongfully removed children, regardless of whether the children were previously granted asylum. It noted that the Fifth Circuit considered a similar question in Sanchez v. R.G.L., 761 F.3d 495 (5th Cir. 2014). In Sanchez, while their appeal was pending, the children were granted asylum in the United States pursuant to 8 U.S.C. § 1158, which states “the Attorney General ... shall not remove or return the alien to the alien’s country of nationality.” On appeal, the children argued that the grant of asylum superseded the district court’s order. Sanchez, 761 F.3d at 509. The Fifth Circuit rejected this argument, refusing to hold that the grant of asylum must be revoked before the children could be returned to Mexico.  Tescari and, derivatively, the children were granted asylum before the district court ordered return of the children. But, as in Sanchez, she and the children were granted asylum under 8 U.S.C. § 1158, and the court adopted the Fifth Circuit’s reasoning here. “The judicial procedures under the Convention do not give to others, even a governmental agency, authority to determine [the] risks” children may face upon return to their country of habitual residence. Sanchez, 761 F.3d at 510. Thus, “an asylum grant does not remove from the district court the authority to make controlling findings on the potential harm to the child.” The district court made independent findings on whether the children would face an intolerable situation or a grave risk of harm in Venezuela, considering all offered, admissible, and relevant evidence. “The prior consideration of similar concerns in a different forum” may be relevant, but a grant of asylum does not strip the district court of its authority to make controlling findings regarding circumstances the children may face upon return.  To be granted asylum, eligibility must be shown by a preponderance of the evidence. See 8 C.F.R. § 1208.13(a), (b)(1)(i). But for an Article 13(b) affirmative defense to apply, the respondent must establish the exception by clear and convincing evidence. 22 U.S.C. § 9003(e)(2). Additionally, the opportunity for participation by interested parties may be different—here, Salame did not participate in the asylum proceedings.

 

Although the Fifth Circuit vacated the district court’s return order and remanded the matter to the district court to consider the newly “available evidence from the asylum proceedings,” the Sixth Circuit did not find remand necessary here. Sanchez, 761 F.3d at 511. Here, the district court did not explicitly mention the grant of asylum in its Order. But the grant of asylum was discussed at trial, and the district court admitted into evidence Tescari’s “Asylum Approval” document. Tescari had the opportunity to present evidence from the asylum proceedings, which may have also been relevant to the instant proceedings, to the district court but failed to do so. Now, on appeal, she failed to point to any evidence that would have been elicited from the asylum proceedings that the district court failed to cover over the course of the four-day trial. Her argument rested solely on the district court’s lack of a discussion of the effect of the grant of asylum itself in its Order. But a grant of asylum does not substitute for the district court’s determination that Tescari failed to establish an Article 13(b) affirmative defense based on grave risk of harm or intolerable situation. Nor does it substitute for our own de novo finding of the same. While the factors that go into a grant of asylum may be relevant to determinations under the Hague Convention, the district court has a separate and exclusive responsibility to assess the applicability of an Article 13(b) affirmative defense. It rejected Tescari’s argument that a grant of asylum deprives federal courts of authority to enforce the Hague Convention.


J.C.C. v. L.C., 2022 WL 985873, (3rd Circuit, 2022) (NOT PRECEDENTIAL) - [El Salvador][ Wishes of the child][Petition granted]

In J.C.C. v. L.C., 2022 WL 985873, (3rd Circuit, 2022) (NOT PRECEDENTIAL) the district court granted the petition of J.C.C. to return his minor children to El Salvador. The Third Circuit affirmed.

J.C.C. was a citizen and resident of El Salvador, and L.C. was a citizen of El Salvador and resident of the United States. J.C.C. and L.C. had wo children together: I.M.C. and V.I.C. I.M.C. was fifteen years old at the time of the District Court proceedings.  V.I.C. was nine years old. In December 2016, J.C.C. and L.C. obtained a mutual divorce. At the time, both lived in El Salvador. L.C. testified that J.C.C. had been violent toward her during their marriage. Pursuant to the divorce, the parties agreed that J.C.C. would maintain physical custody of the children and L.C. would pay child support and have open visitation rights. In 2017, L.C. moved to the United States. On October 22, 2018, J.C.C. signed a notarized travel authorization allowing the children to visit L.C. in the United States over their school break. The children arrived in the United States on October 31, 2018 and were scheduled to return to El Salvador on January 21, 2019. L.C. alleges that the children informed her that J.C.C. had physically abused them. In January 2019, L.C. called J.C.C. to inform him that she would not return the children. J.C.C. travelled to the United States to convince L.C. to return the children. After L.C. refused, J.C.C. filed a petition under the Hague Convention with the Central Authority in El Salvador on March 5, 2019. Between the time J.C.C. filed his petition in El Salvador and this lawsuit, J.C.C. continued to visit the children in the United States, and the children often stayed with him on these visits.

 

The District Court held an evidentiary hearing and heard testimony from six witnesses: four called by L.C. (L.C., L.C.’s boyfriend, L.C.’s attorney, and I.M.C.’s counselor), and two called by J.C.C. (J.C.C. and his attorney). The court declined to hear testimony from the children on the ground that “it would have been redundant, needlessly harmful to the [c]hildren, and potentially influenced by [L.C.].” Following the hearing, the District Court granted J.C.C.’s petition to return the children to El Salvador. The District Court held that J.C.C. had established a prima facie case under the Hague Convention and that L.C. had not sufficiently established an affirmative defense or exception. L.C. appealed.

 

The Court observed that District courts have discretion, inter alia, to consider the wishes of the child in determining whether to return a child to her country of residence. Hague Convention, art. 13. L.C. presented a narrow issue on appeal: whether the District Court erred by refusing to interview the children and precluding their testimony at the hearing. The Court pointed out that it has not held,  nor had L.C. pointed to any cases holding that a district court is required to conduct an interview with the child when adjudicating a claim brought under the Hague Convention. It reviewed this case pursuant to an abuse of discretion standard. The Court held that a arty arguing that a district court abused its discretion in connection with an evidentiary ruling must demonstrate that the District Court’s decision was “arbitrary, fanciful or clearly unreasonable” and that “no reasonable person would adopt the district court’s view.” United States v. Bailey, 840 F.3d 99, 125 n.118 (3d Cir. 2016). The District Court heard from four witnesses called by L.C. It then determined that allowing the children to testify at the evidentiary hearing would be “redundant, needlessly harmful to the [c]hildren, and potentially influenced by [L.C.].” App. 8a. See Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 279 (3d Cir. 2007) (noting that where “a child’s desire to remain or return to a place is ‘the product of undue influence,’ ... the ‘child’s wishes’ should not be considered.”). Applying the abuse of discretion standard to this determination and considering that the District Court heard testimony from several other witnesses in making this determination, it held  that the decision not to interview the children or permit their testimony did not meet the standard to establish an abuse of discretion.

 


Recent Hague Convention District Court Cases - Gabriel v Lavison, 2022 WL 952195 ( W.D. Washington, 2022)

 

[Mexico] [Petition granted]

 In Gabriel v Lavison, 2022 WL 952195 ( W.D. Washington, 2022) the Court granted the Petition and ordered the return of J.E.L.R. to Mexico.

 Respondent conceded that  Ms. Rivera had established a prima facie case for the return of J.E.L.R. to his habitual residence in Mexico. At the outset of the hearing, Mr. Lavison clarified that he no longer intended to assert consent and acquiescence as a defense and that he would only be proceeding with the defense of grave risk. The Court then asked Mr. Lavison if he understood that he would bear the burden of proving the grave risk defense by clear and convincing evidence. Upon acknowledging that he understood the required burden of proof, Mr. Lavison admitted that he was not prepared to present sufficient evidence to establish the defense and affirmatively abandoned all of his available defenses under the Hague Convention. The Court confirmed that Mr. Lavison understood that because of his concessions, the Court would be required to order the return of J.E.L.R. to Mexico.

 

Saturday, March 26, 2022

Recent Hague Convention District Court Cases - Argueta v Lemus, 2022 WL 880039 (N.D. Mississippi, (2022))

Argueta v Lemus,  2022 WL 880039 (N.D. Mississippi, (2022))

[Honduras][ Parties stipulated Father established a prima facia case] [Mother had not established that Father consented or acquiesced to permanent removal of his minor son from Honduras. Mother failed to prove by clear and convincing evidence that the parties’ child would be subject to a grave risk of physical or psychological harm if the child were returned to Honduras. Mother’s assertions that Father was abusive toward her, including bruising her shoulder by grabbing it on one occasion and pushing her on to the bed, and pulling her hair on another, did not rise to the level of a grave risk of harm.  Mother failed to prove that returning the child to Honduras would place the child in an “intolerable situation.” Well-Settled defense not established. (Report and Recommendation that the petition be granted] 

  

Monday, March 21, 2022

Recent Hague Convention District Court Cases - Galli v Marques, 2021 WL 7451915 (M.D. Florida, 2021)

 

Galli v Marques, 2021 WL 7451915 (M.D. Florida, 2021)

[Brazil][Habitual residence][Well-Settled][Petition granted] [Respondent stipulated that the Petition, coupled with the exhibits submitted, established Petitioner’s prima facie case that a wrongful retention of D.L.M.G. occurred.  Respondent did not demonstrate by a preponderance of the evidence that D.L.M.G. was now “well settled” in the United States for purposes of the Convention. (Report & Recommendation)

Recent Hague Convention District Court Cases - Soto v Garcia, 2022 WL 780701 (N.D. Texas, 2022)

 

Soto v Garcia, 2022 WL 780701 (N.D. Texas, 2022)

[Mexico][Habitual residence][Petition granted] [ Child’s habitual residence was TorreĆ³n, Coahuila, Mexico; Respondent wrongfully retained the Child in the United States, in violation of Petitioner’s custodial rights. Petitioner did not consent or acquiesce to the Child’s retention in the United States. The Child’s return to Mexico would not place her at grave risk of psychological or physical harm.

Sunday, March 20, 2022

Jacquety v Baptista, 549 F.Supp.3d 293 ( S.D. N.Y., 2021) [France][Petition denied][Costs]


In Jacquety v Baptista, 549 F.Supp.3d 293 ( S.D. N.Y., 2021)  following the denial of the father’s petition for return of the child ( 2021 WL 1885263) Respondent  moved for an award of costs pursuant to 28 U.S.C. §§ 1920 and 1923, Rule 54 of the Federal Rules Of Civil Procedure, and Southern District Of New York Local Civil Rule 54.1. 

Respondent requested total costs in the amount of f $87,305.06. Petitioner contests the amount sought and argues that an award of costs should be limited to $18,105.34.

The district court observed that Federal Rule Of Civil Procedure 54 provides that, “unless a federal statute, these rules, or a court order provides otherwise, costs – other than attorney’s fees – should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1) (“Rule 54”)). The items that may be included in a cost award pursuant to Rule 54 are defined by statute, specifically 28 U.S.C. § 1920 (“Section 1920”). Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S. Ct. 2494, 2497, 96 L.Ed.2d 385 (1987). 28 U.S.C. § 1920  lists six categories of recoverable costs: (1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (5) Docket fees under [28 U.S.C. § 1923]; and (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under [28 U.S.C. § 1828].  A court does not have discretion to tax costs beyond what is set forth in Section 1920. Crawford Fitting, 482 U.S. at 441-42, 107 S. Ct. at 2497. “Rather, absent a contract or statute that authorizes a court to award additional costs to the prevailing party, only those costs that are set out in Section 1920 are properly taxable.” Endo Pharmaceuticals, Inc. v. Amneal Pharmaceuticals, LLC, 331 F.R.D. 575, 579 (S.D.N.Y. 2019) (citing Crawford Fitting, 482 U.S. at 445, 107 S. Ct. at 2499). The party seeking costs thus “bears the burden of establishing that each expense it seeks to recover ‘falls within an allowable category of taxable costs.’ ”Endo Pharmaceuticals, 331 F.R.D. at 578-79 (quoting National Organics, Inc. v. Nutraceutical Corp., No. 01-CV-384, 2009 WL 2424188, at *2 (S.D.N.Y. Aug. 6, 2009))  Although the Court does not have discretion to award costs falling outside the statute’s enumerated categories, the Court may exercise its discretion to not award costs that fall within those categories. See Taniguchi, 566 U.S. at 572-73, 132 S. Ct. at 2006. Section 1920 thus does not direct that the court “must” or “shall” award costs, but rather that a judge or clerk of court “may” tax costs as set forth in the statute. 28 U.S.C. § 1920; see Endo Pharmaceuticals, 331 F.R.D. at 580. Similarly, Rule 54 provides that although certain costs “should” be awarded, a court may order “otherwise.” Fed. R. Civ. P. 54(d)(1).

 

Respondent requested payment for the following categories of costs, among others: trial transcripts; printing, copying, and exemplification; fees paid to interpreters; and the fees paid for remote trial services. Petitioner contended that much of what Respondent requests is not taxable as costs and should not be awarded. The Court addressed each disputed category in turn.

 

Trial Transcripts. The court held that fairness dictated that Petitioner pay for the costs only of (1) any real-time feeds provided to Petitioner’s counsel, (2) no more than that same number with respect to feeds provided to Respondent’s counsel, and (3) the feed provided to the Court. The cost of any additional feeds should be borne by Respondent. The Court could not determine that amount from the invoices provided by counsel and required Respondent to provide a revised bill of costs that makes the appropriate adjustment.

 

Printing, Copying, and Exemplification. The Court agreed with Petitioner that Respondent had not sufficiently delineated what costs were attributed to exemplification as distinct from those that fall under other printing or copies of materials “necessarily obtained” for use in the case. See 28 U.S.C. § 1920(3), (4). The Court also agreed that the extent of copying by Respondent exceeded what may be recovered. Pursuant to Local Rule 54.1(c)(5), “[t]he cost of copies used for the convenience of counsel or the Court are not taxable,” and Respondent had not identified which copying costs were necessary and not merely for the convenience of counsel or the court. Nonetheless, separate exhibit books were required for each witness. And while exhibits were exchanged and displayed digitally, paper copies could not be avoided.  The Court found that the total amount sought by Respondent for printing and exemplification should be reduced to the amount expended for copies of one set of the exhibit books provided to each witness for examination or cross-examination at trial and for one set of exhibits officially received into evidence.

 

Interpreters. Interpreters were employed for trial because the parties’ native language is French. Respondent testified primarily in French; Petitioner testified primarily in English but occasionally benefitted from use of the interpreter. One non-party, who testified for Petitioner, testified entirely in French. The interpreter also occasionally assisted during trial with correcting or confirming translations of documents. Although the Court did not appoint an interpreter, it found the interpreters’ services invaluable for trial. Respondent claimed $7,515.00 for fees paid to interpreters solely in connection with the testimony of Respondent herself. Petitioner contended that no interpreter fees are awardable based on this District’s local rules, because the costs sought are those associated with the testimony of Respondent who is a party, and not a non-party witness. Pursuant to Local Rule 54.1(c)(3), parties are not entitled to witness fees, and pursuant to Local Rule 54.1(c)(4), “the reasonable fee of a competent interpreter is taxable if the fee of the witness involved is taxable.” Local Rule 54.1(c)(3), (4). Section 1920 expressly identifies costs that “may” be awarded, thus permitting courts to award less than what “may” otherwise be allowed. Rule 54 does exactly that. See Crawford Fitting, 482 U.S. at 441-42, 107 S. Ct. at 2497 (“Section 1920 enumerates expenses that a federal court may tax as a cost under the discretionary authority found in Rule 54(d). It is phrased permissively because Rule 54(d) generally grants a federal court discretion to refuse to tax costs in favor of the prevailing party.”). Respondent’s argument was premised on the incorrect assumption that all costs contemplated  by Section 1920 are mandatory. The Court was not aware of any authority so holding. Accordingly, costs for Respondent’s interpreter were not awarded.

 

Remote Trial Expenses. Trial of this case was conducted remotely as a result of the COVID-19 pandemic. Respondent sought $15,108.25 in costs paid to the service provider, Trial Graphix, which provided technology for and facilitated trial. Petitioner contends that Respondent was not entitled to any remote trial costs because they are not included in any category under 28 U.S.C. § 1920. Petitioner is correct. The Court noted that remote trial costs are not mentioned in any category of costs under 28 U.S.C. § 1920 or Local Rule 54.1. Another court in this District recently confronted the very issue presented here: whether the costs of retaining Trial Graphix to facilitate a remote trial fall within the ambit of recoverable costs. Chain v. North East Freightways, Inc., 16-CV-3371, 2021 WL 1611953 (S.D.N.Y. April 26, 2021). The Chain court held that they do not, distinguishing between the costs of preparing demonstrative exhibits, which may be recoverable, and costs for remote trial hosting, the service provided by Trial Graphix both there and here.  Even a generous reading of the cost categories identified in both of 28 U.S.C. § 1920 and Local Rule 54.1 does not include the costs of remote trial hosting.  Accordingly, costs of conducting the trial remotely were not awarded.

 


Cruvinel v Cruvinel, 2022 WL 757955 ( E.D. N.Y., 2022) [Brazil] [Age & maturity][Grave Risk of Harm][Petition denied]

 

In Cruvinel v Cruvinel, 2022 WL 757955 ( E.D. N.Y., 2022) the district court denied the petition filed by  Pablo Menezes Cruvinel against Respondent Leila Coelho Soares Cruvinel seeking the return to Brazil of their 13-year-old daughter (“AC”).

The Court held a virtual hearing commencing December 7, 2020.   Petitioner and Respondent met in Brazil in 2002.  Petitioner and Respondent were married in early 2007. AC was born on March 2, 2007. Prior to marriage the respondent learned that Petitioner was a substance abuser who became aggressive when high. Although Respondent hoped that Petitioner’s behavior would change with the arrival of AC, his substance abuse only worsened, with petitioner frequently drinking and getting “high from marijuana and painkillers.”  Throughout the marriage, Petitioner regularly berated and yelled at Respondent in front of AC and made no effort to conceal his aggression or substance abuse. Petitioner’s aggressive behavior continued when AC entered primary school. On December 8, 2014, when AC was seven years old, Petitioner and Respondent had a particularly violent argument.  Petitioner began yelling at Respondent while at the kitchen table, shouting that she was a “slut” and “worthless,” and yelling “I will have you killed!” Petitioner then began punching the kitchen table before pulling off the tablecloth and knocking its contents to the floor. Respondent ran out of the apartment hoping to get to the police station, but Petitioner chased after her with a broomstick, hid the car keys, and broke their car mirrors with the broomstick. Respondent ultimately took a taxi to the police station and filed a police report of the incident. Still, after returning home, Respondent accepted Petitioner’s apology and decided to stay in a relationship with Petitioner. However, the violence continued. On July 20, 2016, Respondent took AC to her cousin’s debutante party..) The party ran late and, when Respondent and AC eventually returned home, Petitioner, who was drunk, became upset and began to argue with Respondent. Respondent went to AC’s bedroom to sleep on a mattress on the floor. Respondent did not want to engage with Petitioner while he was intoxicated, but Petitioner continued to bang on the bedroom door, yelling and threatening to knock down the door if Respondent did not open it. When Respondent finally opened the door, Petitioner entered the bedroom, threw the contents of the bedside table about the room, and tried to suffocate Respondent with the mattress. AC, who was nine years old at the time, was awake and “petrified” in the next bed. Petitioner continued to suffocate Respondent with the mattress until AC yelled for him to stop. The next day, Respondent and AC left Goiania, where they lived at the time. Respondent filed a police report and took AC to Tocantins, Brazil. Over the next week, Petitioner called Respondent repeatedly, insisting that he would change his behavior. (espondent returned to Goiania for a couple of weeks but nothing changed. Throughout this time, AC repeatedly asked Respondent why she would not divorce Petitioner. 

 

Petitioner and Respondent formally separated in or around August 2016. They shared joint custody of AC, though AC spent the majority of time with Respondent. When AC stayed with him, Petitioner continued to abuse substances and failed to provide AC with any structure. On January 4, 2017 Petitioner drunkenly called Respondent and threatened to “do away” with her and destroy the computers at Respondent’s workplace. Respondent then went to her workplace where she discovered Petitioner. Petitioner then drunkenly called her a “whore” and “bitch.” Petitioner showed Respondent his civil union contract before throwing a computer at Respondent. Respondent called the police in fear for her safety. When the police arrived, they arrested Petitioner. Both Respondent and a police officer at the scene provided statements, describing Petitioner’s belligerent behavior and violent conduct. Petitioner and Respondent divorced on April 26, 2018. The divorce decree provided that Respondent would maintain primary residential custody of AC and that Petitioner would retain “free form” joint custody of AC with Respondent. 


In May of 2018, Respondent informed Petitioner that she intended to move to New York with AC. After Respondent obtained a passport for AC, Petitioner signed AC’s Brazilian travel authorization form, which was valid for three months.   Respondent and AC settled in Mineola, New York, with Jean Cabral on August 13, 2018. (On September 6, 2018, Respondent and Mr. Cabral married. In June 2019, Respondent gave birth to her second daughter. AC has described her half-sister as “her dream.” In September of 2018, AC enrolled in Mineola Middle School as a sixth-grade student. (AC adjusted quickly to her new environment: her teachers and school administrators reported that she appears to be very happy, has made many friends, and is involved in a number of extracurricular activities, such as the jazz band. Throughout their time in the United States, Respondent has ensured that AC kept in contact with her father. Though Petitioner and AC have kept in touch by message and phone, his messages to AC have included threats, bribes, guilting and coercive messages, and lies. In one message, Petitioner told AC: You will be a bastard daughter there, because your mother will be with her daughter and her husband[.] Your father is here, you will be a bastard daughter there. Your mom is going to make you work and do everything for her. You will be a maid for them, and you will be a bastard daughter. Petitioner has sent multiple messages to AC, including a photo of his gun, threatening that his lawsuit would send Respondent to jail and force AC to return to Brazil against her will. Petitioner’s messages have caused AC to be afraid, stressed, and to cry. Most recently, AC has been hesitant to open Petitioner’s messages because of the stress they cause her. 

 

The district court found that the  abuse suffered by Respondent had a direct impact on AC. AC testified that she “lived in a home where [she] only experienced ... a lot of aggression. [She] didn’t really experience that much love” and she “could see that [her] dad [was] also very bipolar sometimes and he does have a lot of anger issues and [she] experienced everything that a child should have not experienced.” AC testified that Respondent tried to make her “feel like [she] had a home” and was safe and could “express [her] emotions” and “live happily.” For instance, in consultation with AC’s teachers, Respondent sought the assistance of mental health professionals to help AC cope with her volatile home life. 

 

Dr. Favaro, a psychologist, testified that Petitioner’s aggressive behavior was both troubling and dangerous. This risk of danger is exacerbated by Petitioner’s substance abuse. As a result of the physical and psychological “stressors” to which AC was exposed, she will likely “retain memories that create fear, anxiety, panic and emotional distress and trauma if forced to return to those stressors.” Children who witness domestic violence, such as that which AC witnessed Petitioner commit against Respondent, suffer emotional trauma, including shock, fear and guilt as a result.  AC’s psychological health and well-being have improved since she was removed from the environment she associates with these distressing and traumatic events. Dr. Favaro testified that the “stressors which would be related to a return to an environment which AC associates with recollections of coercion, entrapment and violence against her motion would likely cause confusion, maladjustment and panic in her[.]” Dr. Favaro determined that removing AC from the United States to Brazil “would be detrimental to her adjustment and could expose her to catastrophically negative influences on her emotional health and development and as such is contrary to her best interests.” 

 

The district court observed that “[A] court may refuse repatriation solely on the basis of a considered objection to returning by a sufficiently mature child.” Blondin v. Dubois (“Blondin IV”), 238 F.3d 153, 166 (2d Cir. 2001). See Laguna v. Avila, No. 07-cv-5136, 2008 WL 1986253, at *9 (E.D.N.Y. May 7, 2008) (“[T]here is no precise age at which a child will be deemed sufficiently mature under the Convention.... Rather, the child’s maturity is a question for the district court, to be determined upon the specific facts of each case.” On balance, age 13 has been determined to be sufficiently mature under the statute. 

 

The parties agreed that AC had attained a sufficient age and maturity to choose where she should live, and both parties agreed that AC unequivocally wished to remain in the United States. The Court found no basis to disagree with the parties’ conclusions. 


The Court also noted that grave risk defense applies where “the child faces a real risk of being hurt, physically or psychologically” and where “the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.” Blondin IV, 238 F.3d at 162. The grave risk inquiry is “fact-intensive” and considers a wide range of conduct, including manipulative or alienating behavior, physical or psychological abuse, spousal abuse, the petitioner’s general pattern of or propensity for violence, Davies v. Davies, 717 F. App’x 43, 47–48 (2d Cir. 2017), as well as the extent to which the child is “so deeply rooted in the United States” that her return would result in impermissible psychological harm, Elyashiv v. Elyashiv, 353 F. Supp. 2d 394, 406 (E.D.N.Y 2005) To establish the grave risk defense, the respondent may adduce individual facts, each of which “need only be proven by a preponderance of the evidence,” that, taken together, establish “clear and convincing evidence” that a grave risk exists. Elyashiv, 353 F. Supp. 2d at 404 (citation omitted). “[E]vidence of prior spousal abuse, though not directed at the child, can support the grave risk of harm defense.” Davies, 717 F. App’x at 48; see also Valles Rubio v. Veintimilla Castro, No. 19-CV-2524, 2019 WL 5189011, at *22 (E.D.N.Y. Oct. 15, 2019) “A parent’s general pattern of violence” or propensity for violent abuse is also relevant to the grave risk inquiry. Elyashiv, 353 F. Supp. 2d at 408. 

 

The court found that there was  clear and convincing evidence that returning AC to Brazil would expose her to a grave risk of psychological and physical harm. First, AC witnessed much of Petitioner’s psychological spousal abuse as well as at least one episode of serious physical violence—Petitioner’s attempt to suffocate Respondent. This sort of spousal abuse has had a lasting and profound effect on AC, who still recalls the details of such abuse. Returning to the site of that abuse would only intensify its traumatic effects. Second, AC herself has suffered, and continues to suffer psychological harm as a result of Petitioner’s behavior. The record is replete with instances when Petitioner has sent AC alarming, and sometimes threatening text messages, including messages reprimanding AC for disrespecting and disobeying him and others insisting that her mother is a criminal who must be punished.  Incredibly, at one point Petitioner sent AC a message attaching a photo of a gun. These communications have made AC “stressed out,” and AC “feel[s] so uncomfortable when [Petitioner] starts talking about [Respondent] because ... you just shouldn’t talk about your other significant parents like that to your own child.” As Dr. Favaro testified, if AC is forced to return to Brazil, in close physical proximity to her father’s manipulative and alienating behavior, she will be overcome by “a sense of fear that [would] pervade[ ] all elements of [her] life,” akin to “being taken hostage.” Further, returning to that environment “would likely cause confusion, maladjustment and panic” and “would be detrimental to her adjustment and could expose her to catastrophically negative influences on her emotional health and development.” Accordingly, Respondent  established the grave risk of harm defense under the Hague Convention. 


Wednesday, March 9, 2022

Recent Hague Convention District Court Cases - Galaviz v Reyes, 2022 WL 620702 (W.D. Texas, 2022)


[Mexico][Article 20 defense established] [Grave risk of harm established][Petition denied]

[Under Article 20 the court need not order the return of a child if doing so would violate fundamental principles relating to the protection of human rights and fundamental freedoms. The Universal Declaration of Human Rights deems the right to an education a human right. Petitioner’s inability to be present with the children, as required so that they could attend school, effectively denied the two special needs children the fundamental right to an education. The denial of an education to in their most formative years utterly shocked the conscience of the court. Respondent established an affirmative defense to removal pursuant to Article 20.] [ Respondent established that prior to the retention, and while in the care of Petitioner, the children suffered serious abuse and neglect. Respondent put forth evidence demonstrating that while in the care of Petitioner: (1) the children’s physical and cognitive abilities declined; (2) the children did not attend school although they suffered severe special needs; (3) G.A.R.G. received no treatment for her special needs; (4) the children remained completely non-verbal; (5) the children’s healthcare needs were being neglected as the children were missing vaccines, and had unaddressed auditory, visual, and dental issues; (6) the children’s hygiene was being neglected; (6) the children’s ability to use the toilet regressed and the children reverted to using diapers; (7) the children had been physically abused; and (8) there was a strong suggestion the children experienced sexual abuse. The incidents of abuse and neglect collectively and the strong suggestion of sexual abuse constitute a grave risk of physical and psychological harm and an intolerable situation should the children return to Juarez.]


Friday, March 4, 2022

Recent Hague Convention District Court Cases - Colchester v. Lazaro, 2022 WL 621536 (W.D. Washington, 2022)

Colchester v. Lazaro, 2022 WL 621536 (W.D. Washington, 2022) 
[Spain] [After trial, the District Court  ordered S.L.C. returned to Spain.The Ninth Circuit reversed in October 2021. It held the Court abused its discretion by denying Respondent the opportunity to develop her defense of domestic abuse by having S.L.C. evaluated by a psychologist. Colchestr v. Lazaro, 16 F.4th 712, 723 (9th Cir. 2021).It also held the Court’s findings and conclusions were inadequate because they did not discuss Respondent’s defense and merely adopted Petitioner’s proposed findings verbatim. The Ninth Circuit found the trial had been “fundamentally unfair” and remanded for a new trial and the appointment of a psychologist to examine S.L.C. After S.L.C. returned to Spain, and while the appeal was pending, the Spanish custody order was modified, in July 2021. Under the current order, Petitioner had custody and Respondent has visitation rights, but visitation must occur in Spain. Respondent may not bring S.L.C. outside of Spain without Petitioner’s consent. Petitioner and S.L.C. resided in Barcelona. Respondent lived in Washington but goes to Spain for one week each month for her visitation. Petitioner argued this case was moot because the relief he sought in the petition, return of S.L.C. to Spain and his custody, has been achieved. The only relief available to Respondent, , is an order denying the petition by way of proving her grave-risk defense. The Court rejected his argument and set the case down for trial. The Ninth Circuit remanded for a psychological exam and trial. Dismissing this case as moot would be inconsistent with that mandate. The fact that S.L.C. returned to Spain does not alter the analysis, because the Ninth Circuit was well aware of that fact. In addition, dismissing based on mootness would render appellate review ineffective.]

 

Thursday, March 3, 2022

Recent Hague Convention District Court Cases - Sain on behalf of VRS v Sain, 548 F.Supp.3d 1181 (M.D. Florida,2021)

Sain on behalf of VRS v Sain, 548 F.Supp.3d 1181 (M.D. Florida,2021)
[China][Habitual residence][Petition denied][China, not United Kingdom (UK), was children’s habitual residence and thus father did not wrongfully remove children from United Kingdom; children lived in China for nearly entire life, father took children on vacation with intent to return to China but their return was blocked by COVID-19 pandemic restrictions, and their nine-month stay in UK after their return to China was blocked did not transform UK into children’s habitual residence, as children never acclimatized to UK and never attended school in UK, and father’s actions evinced clear intent to return to China with children once possible.]


Wednesday, March 2, 2022

Recent Hague Convention District Court Cases - Tchenguiz v Bird, 2022 WL 519174 (D. Montana, 2022)

 Tchenguiz v Bird, 2022 WL 519174 (D. Montana, 2022) 

Tchenguiz’s motion to strike was granted  to the extent that Bird was prohibited from raising the “grave risk of harm” defense or introducing evidence or witnesses related to this defense at the hearing based in part on the lack of a mental evaluation and  insufficient discovery responses from Bird. The court also recognized England as the child’s country of habitual residence. Motion denied insofar as Bird was permitted to  present a “mature child” defense.


Kenny v Davis, Not Reported in Fed. Rptr., 2022 WL 501625 (9th Circuit, 2022) [Ireland][Habitual residence][Petition denied]

          In Kenny v Davis, Not Reported in Fed. Rptr., 2022 WL 501625 (9th Circuit, 2022) Petitioner-Appellant Patrick Daniel Kenny appealed from a district court order denying his petition to have his toddler son repatriated from the United States to the Republic of Ireland for custody proceedings against Respondent-Appellee Grace-Anne Davis.

     The Ninth Circuit reviewed the district court’s legal rulings de novo and its factual findings as to the habitual residence of the child for clear error, Monasky v. Taglieri, 140 S. Ct. 719, 730 (2020), and affirmed.

     Kenny argued that the district court clearly erred in finding that Alaska was his son’s habitual residence immediately before the July 9, 2020, wrongful retention date.  He cited an out-of-circuit opinion in suggesting the relevant inquiry is “whether the parents or guardians ... shared an intent to change the child’s habitual residence. His  reasoning was inconsistent with controlling Supreme Court precedent. It is true that, because “children, especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are relevant considerations” in identification of a child’s habitual residence. Monasky, 140 S. Ct. at 727. The Supreme Court has, however, held that “[t]here are no categorical requirements for establishing a child’s habitual residence—least of all an actual-agreement for infants. By contrast, “a wide range of facts other than an actual agreement, including facts indicating that the parents have made their home in a particular place, can enable a trier [of fact] to determine whether an infant’s residence in that place has the quality of being ‘habitual.’ And this factual inquiry is guided by common sense. Kenny’s narrow focus on mutual intent misstates and unduly restricts the law. Applying these principles, the district court’s factual finding that “the place of habitual residence of the child immediately prior to July 9, 2020, was Alaska” is not clearly erroneous. Kenny’s father sold the Irish business for which Kenny was working. After Kenny, Davis, and their son traveled to Alaska, Davis began working at her mother’s business. Kenny applied for Legal Permanent Resident (LPR) status and work authorization. Davis and her mother testified to the district court that Kenny had explored working as a real estate agent in Alaska. And Davis researched Alaskan apartments where she could live with Kenny and their son after Kenny got into a fight with Davis’s brother and was allegedly told to leave his accommodations at the home of Davis’s parents. When aggregated, these facts can properly be construed as indicating that Kenny and Davis made their home in Alaska, so the district court did not clearly err in making its factual finding that Alaska was the child’s habitual residence immediately before the July 9, 2020, wrongful retention date. See Monasky, 140 S. Ct. at 729; Brnovich v. Dem. Nat’l Comm., 141 S. Ct. 2321, 2348–49 (2021) (“If the district court’s view of the evidence is plausible in light of the entire record, an appellate court may not reverse even if it is convinced that it would have weighed the evidence differently in the first instance.” (cleaned up)).

         Kenny urged the panel to reach a contrary conclusion on the grounds that the district court improperly disregarded evidence and testimony allegedly establishing that Kenny’s son was a habitual resident of Ireland at all relevant times. This discussion was inapposite. See Brnovich, 141 S. Ct. at 2349 (“Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.”  The district court did not clearly err in finding that Kenny’s son was a habitual resident of Alaska immediately prior to the wrongful retention date. See Monasky, 140 S. Ct. at 723, 730.

 

Wednesday, February 9, 2022

Recent Hague Convention District Court Cases - Romanov v Soto, 2022 WL 356205 (M.D. Florida, 2022).


Romanov v Soto, 2022 WL 356205 (M.D. Florida, 2022). 

[Canada] [Petition granted] [ Father’s failure to assist with the renewal of the Children’s passports is not acquiescence] [Despite Mature Child exception as to one child, both Children ordered to be returned ]

 

Tuesday, February 8, 2022

Nowlan v Nowlan, Not Reported in Fed. Rptr., 2022 WL 34141 (4th Cir, 2022) [Canada] [Habitual Residence] [Petition granted]

 

In Nowlan v Nowlan, Not Reported in Fed. Rptr., 2022 WL 34141 (4th Cir, 2022) Nina Lynn Nowlan appealed the district court’s order granting Bryce Gerald Randall Nowlan’s Petition for Return of the Child under the Hague Convention on the Civil Aspects of International Child Abduction. The court determined that the Nowlans’ child, AEN, was a habitual resident of Canada when Nina took AEN to Virginia. The court further determined that Nina did not show by clear and convincing evidence that AEN would be in grave risk of harm if AEN was returned to Canada to live with Bryce. The Fourth Circuit affirmed in an unpublished opinion. It noted that a  child’s habitual residence is a mixed question of law and fact. Monasky v. Taglieri, 140 S. Ct. 719, 730 (2020). The first issue is whether the district court identified “the governing totality-of-the-circumstances standard.”  The second issue involves answering a factual question: “Was the child at home in the particular country at issue.” Its  review of the district court’s decision was for clear error. It concluded  that the district court applied the correct legal standard and did not clearly err in determining that AEN’s habitual residence was Canada when Nina took AEN to Virginia. the district court did not err in determining that Nina did not prove by clear and convincing evidence that AEN would be in grave risk of harm if the child was returned to Canada. See Miller v. Miller, 240 F.3d 392, 402 (4th Cir. 2001) (stating burden of proof). It affirmed  for the reasons stated by the district court. See Nowlan v. Nowlan, No. 5:20-cv-00102-TTC (W.D. Va. June 10, 2021).