In re Application of Lozano, 2011 WL 3667444 (S.D.N.Y.) the case involved a dispute between Manuel Jose Lozano ("Petitioner") and Diana Lucia Montoya Alvarez ("Respondent"), regarding their five-year-old child. On November 10, 2010, Petitioner filed a Petition for Return of Child to Petitioner pursuant to the Hague Convention requesting that the Court issue an order requiring that his child be returned to London, United Kingdom, to have a British court make a custody determination. The Court held an Evidentiary Hearing on February 2 and 3, 2011. Petitioner testified and observed
the hearing via video conference in the London office of his counsel. The court denied the petition and denied the request for counsel fees on the ground that the child had been in New York for more than a year after the wrongful removal and was well settled in her new environment.
Petitioner and Respondent, who were both originally from Colombia, met and began dating in early 2004 in London. Petitioner moved into Respondent's flat about two or three months after they began dating. At the time they met, Respondent was not working and received government benefits; Petitioner worked in maintenance for a tax office and also had a nighttime cleaning job. The Parties never married. After the Parties moved in together, Petitioner mainly financially supported the household, while Respondent was responsible for cooking, cleaning, and taking care of their child
after her birth. Respondent received incapacity benefits because she suffered from depression. Respondent testified that when she arrived in London, she became very depressed because she missed her family and was unable to obtain a professional job like she had in Colombia; after she resigned from the job that she did have, she was very frustrated and became more depressed, and her doctor prescribed her Prozac. Respondent took Prozac for several years, but stopped when she first became pregnant with Petitioner's child; however, she started taking it again in 2008 before she left Petitioner. Petitioner claimed that although they had normal couple problems, generally they were "very happy together" and had a good relationship. Although Respondent agreed that they were very happy at the beginning and describes Petitioner as charming, kind, fun, and spontaneous when she initially met him, she testified that after a month of living together, he began to treat her badly, insult her on a regular basis, and be generally very controlling. Respondent described a pattern of physical and emotional abuse. She testified that Petitioner tried to kick her in the stomach when she was pregnant, pulled her out of bed one night when she received a wrong number phone call and called her a prostitute, and raped her four times. In addition, Respondent maintained that Petitioner repeatedly told her that she was stupid and useless and that her friends and family hated her, often told her to kill herself, and threatened to take the child away from her. Petitioner denies ever hitting or raping Respondent, forbidding her from speaking to her family or friends, or pushing her while she was pregnant, and testified that he never insulted, threatened, or raised his voice to Respondent. Respondent also testified that Petitioner drank heavily and watched pornography. In contrast, Petitioner testified that he did not watch pornography , and denied that he drank a lot or had ever been so drunk that he did not know what he was doing, although he admitted that he sometimes has drunk about three beers in an evening. In May 2009 Respondent and the child moved to a shelter. After Respondent left Petitioner and took the child with her, Petitioner attempted to locate Respondent and the child through the United Kingdom court system. When Respondent moved to New York, she was treated by the therapist who diagnosed her with post-traumatic stress disorder ("PTSD") based on her symptoms, which included heightened startle response, hypervigilance, nightmares, tearfulness, and flashbacks. The Court found that Petitioner's claims that he never insulted or mistreated Respondent in any manner were not credible. The Court found that there was insufficient evidence to conclude that Petitioner either sexually or otherwise physically abused the child in any manner.
In November 2008, Respondent came to New York to visit her sister Maria and attempt to gather evidence to support Respondent's and Petitioner's case regarding a problematic loan. During this time, the child stayed in London with Petitioner and Petitioner's mother who was visiting from Colombia. Petitioner claimed that when he picked Respondent up at the airport upon her return, Respondent "was a completely different person" than when she left London a week earlier and she demanded that Petitioner and his mother leave their house immediately. Respondent testified that when she returned from New York, Petitioner and his mother were acting very suspicious and the child was acting fearful and strange around Petitioner; Respondent became extremely scared, and decided to leave. On the following day, November 19, 2008, Respondent left to bring the child to nursery school and never returned. Respondent and the child resided at a shelter, from November 24, 2008, until July 3, 2009. On July 3, 2009, Respondent and the child left the United Kingdom, traveling first to France and then to New York, where they had lived since July 8, 2009. Petitioner described a multitude of channels that he pursued in an attempt to find his child and resolve the situation. After having "exhausted all possibility that [the child] was still in the [United Kingdom]," on March 15, 2010, Petitioner filed a Central Authority for England and Wales Application Form seeking to have the child returned to the United Kingdom; the application was sent to the United States Department of State Office of Children's Issues on March 23, 2010. The application detailed more of the steps that Petitioner undertook to find Respondent and the child and indicated that Petitioner believed that Respondent and the child were in Manhattan.
Since arriving in New York, Respondent and the child lived with Respondent's sister Maria, Maria's partner, Respondent's niece (Maria's daughter), and the niece's two-year-old daughter. Maria worked as a nanny for the same family for four years; Maria's partner owned a grocery business. Maria financially supported Respondent and the child and, in return, Respondent cooked, cleaned, and took care of the children.
Respondent has not had a job since she came to the United States. Because Respondent and the child had British passports, they were allowed to enter the United States without a visa; however, Respondent testified that they are currently overstayed, and have been since October 2009. Respondent testified that she was consulting with immigration authorities about the possibility of being sponsored by Maria, who was a United States citizen. The child attended the same school since she and Respondent arrived in New York and was enrolled in kindergarten; according to Respondent, the child was doing very well in school. On the Academic Standards Report at the end of that school year, the teacher wrote that the child "has made a lot of progress socially [and] is beginning to assert herself more [; she] is progressing academically as well." After arriving in New York, Respondent and the child began receiving therapy from a psychiatric social worker at a family medical clinic in July 2009.
The District Court found that Petitioner has adequately established a prima facie case of wrongful retention under the Hague Convention. Respondent did not attempt to argue otherwise. The court observed that the Court "is not bound to order the return of the child if the person ... which opposes its return establishes that ... there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Hague Convention, art. 13(b). Respondent had to establish this defense by "clear and convincing evidence." 42 U.S.C. s 11603(e)(2)(A). This defense recognizes that "[t]he interest of the child in not being removed from its habitual residence ... gives way before the primary interest of any person in not being exposed to physical or psychological danger or being placed in an intolerable situation." Blondin v. Dubois, 238 F.3d 153, 161 (2d Cir.2001) ("Blondin IV" ). However, "[t]he level of risk and danger required to trigger this exception has consistently been held to be very high." The Court found that Petitioner's claim that he never mistreated Respondent through any verbal abuse was not credible. However, the Court was presented with much less evidence regarding any physical abuse by Petitioner, and, the evidence was entirely insufficient to find that Petitioner abused the child physically, sexually, or psychologically. Although the therapist testified that the child clearly showed signs of trauma when they first met, the therapist was unable to pinpoint the source of that trauma. There was reason to believe that, whether in combination or in isolation, the time the child spent at the shelter, as well as being uprooted from her life in the United Kingdom, could have been the cause, or the primary cause, of the trauma that the child was suffering upon her arrival in the United States. The Court therefore agreed with the Petitioner’s expert’s conclusion that based on the record before the Court, it was impossible to determine, by even a preponderance of the evidence, that the child's trauma was caused by anything Petitioner did to the child. The Court therefore agreed with Petitioner that Respondent failed to carry her burden of establishing by clear and convincing evidence that returning to the United Kingdom would pose a grave risk of harm to the child. There was insufficient evidence that merely returning to the United Kingdom--even if that country was the site of some of the child's trauma, whether caused by the child witnessing Petitioner's abuse of Respondent or by being in the shelter--in and of itself would present a grave risk.
The Court noted that the Convention provides that where a period of more than one year has elapsed between the dates of the wrongful removal of the child and "the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is," the judicial or administrative authority "shall [ ] order the return of the child, unless it is demonstrated that the child is now settled in its new environment." Hague Convention, art. 12. For this defense to apply, Respondent must persuade the Court, by a preponderance of the evidence, that the child should not be returned to the United Kingdom because the child has been in New York for more than one year and has become settled. See 42 U.S.C. s 11603(e)(2)(B).
In the instant case, the Petition was filed more than a year after the wrongful removal of the child. The child was removed from the United Kingdom in July 2009 and Petitioner did not file his Petition in this Court until November 10, 2010. Petitioner asserted that the one-year period should be equitably tolled because Respondent concealed the whereabouts of the child from Petitioner, preventing him from timely filing his Petition. Petitioner maintained that the Article 12 defense was not available to Respondent and that the Court must order the child's return. The Court observed that neither the Hague Convention nor ICARA mention equitable tolling, and the Second Circuit has not considered whether the one-year period in Article 12 may be tolled. However, a number of courts outside the Second Circuit have applied equitable tolling, concluding that refusing to toll the one-year period would create incentives for abducting parents to conceal the child's whereabouts until after one year had lapsed and thus reward the behavior the Convention seeks to prevent. However, the only court within the Second Circuit to consider this issue determined that equitable tolling does not apply to the Article 12 settled defense. See Matovski, 2007 WL 2600862, at *11. The Matovski court concluded that "the one-year period in Article 12 is not a limitations period, nor is it analogous to a limitations period [because] ... '[a] petition for return of the child is not barred if it is filed over one year from the date of removal.' "
The District Court agreed with the conclusion reached in Matovski finding that the one-year period is not a statute of limitations and, therefore, it is not subject to equitable tolling. A petitioner is not barred from bringing a petition after the one-year period has lapsed; rather, after that point, a court must consider the countervailing consideration that the child may now be better served remaining where he or she is currently located. It was clear, from both the wording of Article 12 and the Perez-Vera Report, that the purpose of the settled defense is not to give petitioners a reasonable amount of time in which to bring their claims, as is the function of most statutes of limitations. Instead, the purpose is to take into account that if the child has become settled, its interests have to be weighed. And the Convention decided that after one year had passed, the child's interests would almost presumptively carry more weight than the interest of a petitioner. Because the child had been in New York for approximately sixteen months at the time the Petition was filed, the Court must consider whether the child had become settled in her new environment. To establish the merits of this exception, Respondent "had to show by a preponderance of the evidence that the child was in fact settled in or connected to the new environment so that, at least inferentially, return would be disruptive with likely harmful effects." Koc, 181 F.Supp.2d at 152; see also Matovski, 2007 WL 2600862, at * 13 ("Respondent must marshal substantial evidence of the child's significant connections to New York." Among the factors that courts have considered in determining whether or not a child has become settled are: "the age of the child[;] the stability of the child's residence in the new environment[;] whether the child attends school or day care consistently [;] whether the child attends church [or other religious institutions] regularly[;] the stability of the mother's employment[;] and whether the child has friends and relatives in the new area." Koc 181 F.Supp.2d at 152; see also Matovski, 2007 WL 2600862, at *13; Reyes Olguin, 2005 WL 67094, at *8. Here, a number of these factors supported a finding that the child was now settled. At the time Petitioner initiated this action, by all indications, the child had been living in one place for sixteen months, which is a long period of time in the life of a five-year-old. Since they arrived in New York, Respondent and the child had lived in the same location with Respondent's sister, the sister's partner, Respondent's niece, and the niece's daughter; the child had become close to this family, and also saw other extended family who lived nearby on the weekends. Her school records showed that she was enrolled in pre-kindergarten last year, and currently attended kindergarten at the same school. The child's pre-kindergarten report cards stated that she was progressing socially and academically. Respondent testified that the child had made friends at school with whom she sometimes played after school and met at the park or library, went to ballet class, and attended church. Both experts testified that Respondent appropriately cares for the child, and the child told Petitioner’s expert, Dr. Fraser that she loved where she lived and was happy in New York. The therapist also testified that the child had improved dramatically since she began seeing her and seemed to be doing very well here in her current environment. However, Respondent was unemployed and she and the child are entirely dependent on Respondent's sister Maria and Maria's partner for financial support. The Court pointed out that in Matovski, the court concluded, in similar circumstances to here, that the mother's inconsistent employment history was not a major factor because the children and mother were financially supported by the children's grandparents, with whom the children and mother lived, rendering their overall financial stability "reasonably assured." Matovski, 2007 WL 2600862, at * 14 (determining that overall, there was "substantial, persuasive evidence" that the children had significant connections to their new environment because they had lived in the same home since arriving in New York, consistently attended school and activities with the same classmates, socialized and played with many friends, and were attached to their large extended family in New York). In contrast, in Koc, the court viewed the mother and child's financial dependence on the mother's parents as a negative factor, see Koc, 181 F.Supp.2d at 154, but there they also received support from public services, and had only lived with the child's grandparents for the first three months of the twenty-seven months that they had been living in New York prior to the filing of the petition. Under the circumstances presented the Court found there was nothing to suggest that the financial and other support that the child and Respondent were receiving from Maria's family was in jeopardy, or is unlikely to continue for the foreseeable future. There was also some concern as to the immigration status of Respondent and the child. They have both overstayed their visas and were not legally in the United States. In Koc, the court, in determining that the child was not settled, took into account that she and her mother had overstayed their visas and were in the country illegally, which the court noted would make it virtually impossible
for the child to see her father if she remained in the country. However, the Ninth Circuit has rejected the idea that immigration status should render an otherwise settled child not settled, concluding that immigration status should only be a significant factor in the settled analysis if there is an immediate, concrete threat of deportation. See B. del C.S.B., 559 F.3d at 1010-14. Here, there was no indication that Respondent and the child faced an imminent, or any, threat of deportation, and there was unrefuted testimony from Respondent that she was looking into methods to gain legal status, including having her sister Maria, who was a United States citizen, sponsor Respondent and the child for citizenship. There was nothing to suggest that, at this moment, or in the near future, the immigration status of the child and Respondent was likely to upset the stability of the child's life here in New York.
The child's life does not have to perfect for her to be settled. Viewing the totality of the circumstances, the description of the child's life, as presented to the Court, suggests stability in her family, educational, social, and most importantly, home life the Court concluded that the preponderance of the evidence demonstrated that the child was settled in her current environment. To uproot her once again would be extremely disruptive; she reached the "point at which [she has] become so settled in [her] new environment that repatriation [is] not ... in [her] best interest." Blondin IV, 238 F.3d at 164. Accordingly, the Court found that the elements of the Article 12 defense had been met.
The Court chose not to exercise its discretion to order the child returned even though she was now settled. Accordingly, the Petition was denied. Because the Court was denying the Petition, Petitioner's request for an order directing Respondent to pay Petitioner's legal costs and fees was also denied.
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