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Sunday, July 29, 2012

Edoho v Edoho, 2010 WL 3257480, (S.D. Texas, 2010) [Bahamas] [Well-Settled in New Environment]

In Edoho v Edoho, 2010 WL 3257480, (S.D. Texas, 2010) Godwin A. Edoho filed a petition for the return of his children to the Bahamas. On June 24, 2000, Godwin A. Edoho and Ekekere G. Edoho' were married in Lagos, Nigeria. By September 2002, they had moved to the Bahamas where they co-habitated as man and wife. Ekekere testified that Godwin regularly threatened to kill her. On September 19, 2003, the Bahamian police were called to the Edoho's home for a domestic disturbance. They warned Mr. Edoho to be on good behavior towards his wife. Ekekere testified that the threats did not cease until the time that she moved out. The couple's first son, Uduak Edoho ("Uduak"), was born in the Bahamas on January 11, 2004. He was now 6 years old. The couple's second son, Emem Edoho ("Emem"), was born in the Bahamas on August 19, 2006. He was 4 years old. According to Godwin's petition, Ekekere moved out of the marital home on March 17, 2008 while he was at work. Ekekere filed for maintenance and custody of the children. And, on April 8, 2008, the Bahamian court entered an order granting her custody of the children. Godwin was to keep the children three days a week; the balance of their time was spent with Ekekere. Additionally, the order stipulated that all travel must be agreed upon by the parents or, if necessary, granted by the court. On July 7, 2008, Ekekere filed for divorce predicated on cruelty. In her petition she alleged inter alia that Godwin had subjected her to physical, verbal, and emotional abuse; that he was violent and hot tempered; and that at one point he threatened to kill her and send her corpse back to Nigeria.

In September 2008, Ekekere left The Bahamas, taking Uduak and Emem with her. She traveled to Houston and lived openly with her sister, her sister's husband, and her sister's four children. At some point in September, Godwin called Ekekere's job and was told that she was traveling on vacation and would return at the end of November.

On September 2, 2008, Godwin filed an answer in the divorce proceedings denying the allegations of cruelty on his part and counterclaiming that, in fact, Ekekere was the violent one. He alleged, among other things, that she had attacked him with a cooking fork and a kitchen knife; that she refused to wash or clean the home; and that she tried to have him deported. At some point in early December of 2008, Godwin called Ekekere's place of work again and was told she was still not back from vacation.

Three months later, on March 13, 2009, Godwin filed a missing persons report with the Bahamian Police Department. According to the Bahamian Police report Godwin came home from work to find his wife and children missing on September 1, 2009.

On March 19, 2009, the Bahamian court entered an order disolving the marriage between Godwin and Ekekere, finding that Godwin's allegations of cruelty supported the dissolution. This order was entered against Ekekere in abstentia and her petition was dismissed for failure to prosecute. Ekekere remarried on March 24, 2009. She and the two boys moved in with her new husband, Frederick Pearson.

On May 4, 2009, Godwin filed an application for assistance with the U.S. Department of State pursuant to the Hague Convention requesting access to his children. He stated on his application that he was requesting access. On May 20, 2009, the Bahamian Ministry of Foreign Affairs contacted the U.S. Department of State regarding Godwin's Hague Convention application for access to his children. The letter stated that Godwin "does not wish to pursue voluntary return through a U.S. Department of State voluntary return letter." Notably, the letter also stated that Godwin "is in receipt of information from a private investigator that suggests his wife and children are allegedly in the state of Texas. Apparently, one of his children has been registered at a school in that state."

On July 24, 2009, the Bahamian Ministry of Foreign Affairs notified the U.S. Department of State that Godwin had opted to change his Hague Convention application from being granted access to the children to having the children returned to the Bahamas. . Godwin testified that on September 10, 2009, the Bahamian court issued an order granting him full custody of both children and enjoining Ekekere from removing the children from the jurisdiction of the court. However, the record contained only the pleading requesting custody, but no court order granting custody.

Godwin filed a petition for return of the children in the Southern District of Texas on May 25, 2010. The court held a hearing on the petition for return of the children. Godwin testified that he diligently sought his children's whereabouts. The letter dated May 20, 2009 from the Bahamian ministry stated that Godwin was in receipt of information that his wife and children were in Texas. Therefore, the Court concluded that Godwin knew his children were in Texas before May 20, 2009. Godwin explained that the reason he waited from the time he discovered their whereabouts until May 25, 2010 to file his petition was that it took him that entire period of time to retain a lawyer sufficiently versed in the Hague Convention to accept his case. Notably, Ekekere found and retained lawyers to defend her in this case within a few days. And, the U.S. Department of State has significant resources available to all parties involved in these Hague Convention cases, including lawyer referrals. Godwin's argument, therefore, lacked plausibility.

During her testimony, Ekekere alleged that Godwin was abusive to her and the children. She further explained that because her immigration status in the Bahamas was based on her nursing job and her marriage to Godwin, she lived in constant fear that Godwin would have her deported by using his influence to have her nursing contract cancelled. She also made specific allegations that Godwin had sexually abused their older son. Ekekere testified that the oldest son—Uduak—would start first grade this year. He attended kindergarden here last year. He was on the soccer team, had participated in a summer reading competition, and sang in the family's church's choir. She testified that the younger son—Emem—while too young for school participated karate class. Both children regularly attended Sunday school at the family's church along with their cousins. Ekekere had remarried to Frederick Pearson. The children got along well with their stepfather, calling him Daddy Fred. At the time of the hearing Pearson was unemployed. However, he had a job interview and testified to his intent to get a job through which he could buy health insurance for his wife and stepsons. Ekekere testified that she was in the process of applying for an adjustment of immigration status based on her marriage. The adjustment would also apply to the children.

The District Court observed that where, as here, the petition for return is brought more than a year after the removal of the children, the removing parent can prevent return by demonstrating that the children are settled in their new environment. Convention, art. 12. The Ninth Circuit had recently addressed the well-settled defense. "In determining whether a child is settled within the meaning of Article 12, we consider a number of factors that bear on whether the child has "significant connections to the new country." These factors include: (1) the child's age; (2) the stability and duration of the child's residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child has friends and relatives in the new area; (5) the child's participation in community or extracurricular school activities, such as team sports, youth groups, or school clubs; and (6) the respondent's employment and financial stability. In some circumstances, we will also consider the immigration status of the child and the respondent. In general, this consideration will be relevant only if there is an immediate, concrete threat of deportation. Although all of these factors, when applicable, may be considered in the "settled" analysis, ordinarily the most important is the length and stability of the child's residence in the new environment." In re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir.2009) (quoting 51 Fed.Reg. at 10509). "Additionally, for the child to be well-settled, the court should consider more than whether he or she has a comfortable material existence, taking into consideration the child's living environment and any active measures taken to conceal a child."
Van Driessche, 466 F.Supp.2d at 848.

The Court found that the children were well-settled in Houston and denied the petition for return. The had been in Houston for almost two years. They lived close to extended family with which they had significant contact. They both participated in activities, attended Sunday school, and went to church regularly. The older child had already attended one year of school here and was enrolled in first grade starting this fall. Although the mother and step-father were unemployed at the time of the hearing, they both testified to their efforts to gain employment and were employable.

The record reflected that Godwin suspected his children's presence in Texas sometime before May 20, 2009. Since he filed his petition on May 25, 2010, over a year passed from discovery to filing. The Court noted that the one year period may be equitably tolled if Godwin could demonstrate that Ekekere secreted the children away from him. Furnes v. Furnes, 362 F.3d 702, 723 (11th Cir.2004). "[A] court may equitably toll the one-year period where two related conditions are met: (1) the abducting parent concealed the child and (2) that concealment caused the petitioning parent's filing delay." In re B. Del C.S.B., 559 F.3d at 1015. This determination is an equitable one, taking into account all of the facts surrounding the removal and discovery of the children, including the efforts made to secrete the children by the removing parent, and the efforts made to locate the children by the non-removing parent. The Court found that Ekekere made no effort to conceal the children. While she did not inform Godwin of her whereabouts, she went to live openly with a known relative, she did not change her name or the children's names, and she enrolled Uduak in school. Even if Ekekere had made some effort to conceal her whereabouts, the concealment did not cause the petitioning parent's filing delay. Godwin waited six months from the time his wife left The Bahamas with the children before filing a missing persons report with the Bahamian Police. The efforts he did take to find them could not be described as determined or diligent. For example, he called her work to determine if they knew her whereabouts, but only once a month. And, he sent his family in Nigeria to her family to ask her whereabouts, but not until June 2009. Additionally, the record reflects that his other efforts were equally desultory. Therefore, the court found that equitable tolling was not appropriate in this case.

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