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Tuesday, October 23, 2012

Jensie v Jensie, 2012 WL 5178168 (E.D.Ky.) [Sweden] [Habitual Residence]

In Jensie v Jensie, 2012 WL 5178168 (E.D.Ky.) Petitioner Niklas Jensie ("Niklas"), a native and citizen of Sweden, met Respondent Marlena Jensie ("Marlena"), a native and citizen of the United States, in 1998. Marlena moved to Sweden in 2001, and the couple established a residence in Goteborg, Sweden, where Niklas's family lived. Niklas worked as a computer technician and Marlena, after attending Swedish educational courses, became employed as a preschool teacher. The couple married in 2003 while on a visit to Marlena's home state of Utah.

The couple's daughter, L.N.J. was born on January 2, 2009, in Goteborg , and she had dual Swedish and American citizenship. Soon after their daughter's birth, Niklas and Marlena travelled to the United States for approximately four weeks to visit Marlena's family so that they could meet L.N.J. In 2010, Marlena became a Swedish citizen. The couple began raising L.N.J. in Goteborg. In 2010, after Marlena returned to work from maternity leave, L.N.J. began attending a Swedish preschool. L.N.J. also spent time with Niklas's family and engaged in typical childhood activities. Each parent spoke to L.N.J. in their native tongue, but L.N .J. understood Swedish. In the summer of 2011, Niklas and Marlena again travelled with L.N .J. to the United States for vacation for approximately four to five weeks, visiting Marlena's family in several states. Other than these vacations, L.N.J. resided in Goteborg with her parents and attended preschool.

In late 2011, Niklas told Marlena that he wanted to separate. Marlena was upset by this news. The suggestion was made that Marlena travel to the United States to visit with her family and "clear her head." Tickets were purchased for Marlena and L.N.J. to travel to the United States on December 13, 2011, with a booked return for February 5, 2012. Marlena and L.N.J. did not return to Sweden as scheduled and Niklas had not consented to the trip extending past February 5, 2012. When Marlena did not return on February 5, Niklas called her and learned that she was still in the United States. Niklas immediately sought legal advice and contacted the Swedish government for assistance. He also began pleading with Marlena to return to Sweden. Marlena eventually agreed to return to Sweden with L.N.J. on April 5, 2012, using new tickets purchased by Niklas. The return date was not chosen with any intent that Marlena and Lily would actually return to the United States at that time. When Marlena and L.N.J. returned to Sweden in April, Niklas moved out of the apartment they had been sharing and moved in with his sister. During the next few months, Niklas and Marlena shared custody of L.N.J. and began meeting with Swedish social services to mediate their divorce and custody issues. Niklas testified, and Marlena did not dispute, that the mediator cautioned her about the seriousness of her prior refusal to return L.N.J. to Sweden in February.

Marlena testified that she believed that Niklas knew that it was her intention to return to the United States with L.N.J. once they had the custody issues worked out, and that the two had discussed various possible arrangements along those lines. Niklas, however, testified that he never consented for Marlena to take L.N.J. back to the United States to live and that, in fact, he was seeking an equal parenting schedule of every other week with custody of their daughter.

On June 7, 2012, Marlena sent Niklas an email stating, inter alia,:"Please don't turn in the divorce papers just for the sake of getting moving on things. Can we stop fighting? " Niklas nonetheless filed for divorce in early June. The parties had a mediation scheduled for June 25, 2012. The mediation was rescheduled for July 5, 2012. Marlena did not appear for the mediation on July 5. Alarmed, Niklas went to the apartment but Marlena and L.N.J. were not there. L.N.J.'s clothes and toys appeared undisturbed, however, and the apartment appeared normal. Niklas then discovered that Marlena's and L.N.J.'s passports were not in their normal place. . Niklas's eventurally concluded that Marlena had taken L.N.J. to Taylor Mill, Kentucky, where her father now resided. The next day, July 6, 2012, Niklas contacted the Swedish Central Authority and filed an Application for Assistance Under the Hague Convention on Child Abduction requesting L.N.J.'s return to Sweden. Niklas filed his petition on October 5, 2012.. On October 10, 2012, the Goteborg District Court entered an order granting Niklas full custody of L.N.J.

The district court granted the Petition. It observed that to determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions." Friedrich, 983 F.2d at 1401. "A person can have only one habitual residence. On its face, habitual residence pertains to customary residence prior to removal. The court must look back in time, not forward." Friedrich, 983 F.2d at 1401. Here, the evidence showed that L.N.J. was born in Sweden on January 2, 2009, and, but for family vacations, lived there until December 2011, engaging in normal family activities and attending preschool. Sweden was where she had been "present long enough to allow acclimatization" and where there was "a degree of settled purpose from the child's perspective." In December 2011, L.N.J. traveled to the United States with her mother, with the understanding that they would return in February 2012. The Court concluded that this trip of several months did not alter L.N.J.'s customary residence in Sweden. (Citing Blanc v. Morgan, 721 F.Supp.2d 749, 760 9W.D.Tenn.2010) (holding that fact that mother took child on extended trips to United States did not alter child's habitual residence of France). That Marlena overstayed the February 2012 return by two months was also immaterial because time spent by a child in another country after any wrongful removal or retention does not factor into the "habitual residence". The change in geography must occur before the questionable removal; here, the removal precipitated the change in geography. The same was true with respect to the approximately three and a half months that L.N.J. spent in the United States since her removal from Sweden in July. Moreover, although Marlena insisted that she always intended to return to the United States to live with L.N.J., such parental future intentions generally do not factor into the Sixth Circuit's child-centric analysis. Therefore, the Court concluded that L.N.J.'s habitual residence prior to July 2012 was Sweden.

The Court noted that under Swedish law, married parents have joint custody by operation of law. (Citing Fridlund v. Spychaj-Fridlund, 654 F.Supp.2d 634, 637-38 (E.D.Ky.2009)). Here, at the time of L.N.J.'s removal from Sweden in July 2012, there had been no judicial or administrative decision or agreement that altered Niklas's parental rights, and Marlena admitted this during the evidentiary hearing. Based upon the facts, the Court also concluded that Niklas was exercising his custodial rights when L.N.J. was taken from Sweden. Thus, to defeat a showing that removal was wrongful, Marlena has to prove by a preponderance of the evidence that Niklas consented to the removal. The Court had already found as a fact that Niklas did not consent to L.N.J.'s removal to the United States in July 2012, regardless of what the parties' prior discussions were regarding possible solutions to the custody dilemma. A parent's deliberately secretive actions is "extremely strong evidence" that the other parent would not have consented to removal. Simcox v. Simcox, 511 F.3d 594, 603 (6th Cir.2007) Marlena admitted that Niklas did not know she was leaving with L.N.J. when she did, and the surrounding circumstances indicated that she knew that Niklas would not have consented to L.N.J.'s removal to the United States. It was clear that when Niklas responded to Marlena's text message of July 2 confirming that he was seeking a 50/50 shared parenting arrangement, Marlena panicked. Under questioning by the Court, she admitted as much, conceding that she was afraid what a Swedish court might do with respect to custody. As soon as Niklas learned of her departure with L.N.J., he immediately took steps to secure his daughter's return. The Court had no doubt that Niklas did not consent to L.N.J.'s removal from Sweden.




Monday, October 22, 2012

Vujicevic v Vujicevic, 2012 WL 4948640 (S.D.N.Y.) [Croatia] [Federal & State Judicial Remedies] [Notice & Opportunity to Be Heard]

In Vujicevic v Vujicevic, 2012 WL 4948640 (S.D.N.Y.) Petitioner filed his Verified Petition for the Return of the Child to Croatia and his Petition for Warrant in Lieu of Writ
of Habeas Corpus on October 9, 2012. The docket sheet for the case indicated that
respondent had never been served. This lack of service was confirmed by an Affidavit of in support of the Petition for Warrant in Lieu of Writ of Habeas Corpus.

The district court observed that the United States Supreme Court has established that "[b]efore a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." (Citing Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Service is also specifically required by the International Child Abduction Remedies Act, ("ICARA"), which implemented the Hague Convention on the Civil Aspects of International Child Abduction. Under ICARA, "[n]otice of an action brought under subsection (b) of this section shall be given in accordance with the applicable law governing notice in interstate child custody proceedings." (42 U.S.C. 11603(c)). In New York, the laws governing notice in interstate child custody proceedings are the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), codified in Domestic Relations Law, §§75-78a and the federal Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A, 42 U.S.C. § 663 ("PKPA"). Both the UCCJEA and the PKPA require that, prior to any child custody determination, notice must be given to, inter alia,"any parent whose parental rights have not been previously terminated[ ] and any person having physical custody of the child." (Dom. Rel. Law § 76-d; 28 U.S.C. § 1738A(e). Accordingly, courts in this district deciding petitions under the Hague Convention have consistently required service on the respondent. [Citing Ebanks v. Ebanks, 2007 WL 2591196, at *3 (S.D.N.Y. Sept. 6, 2007) (ruling that service was necessary for the Court to exercise personal jurisdiction and that petitioner was required to serve respondent in accordance with New York law)].

The District Court declined to grant the Petition for Warrant as it appeared that while the Court had subject matter jurisdiction over the case there was no personal jurisdiction over respondent absent proper service.

Friday, October 19, 2012

Hynes v. Berger, 2012 WL 4889854 (D.Md.) [Germany] [Federal & State Judicial Remedies] [Denial of Notice and Opportunity to be Heard]

In Hynes v. Berger, 2012 WL 4889854 (D.Md.), decided October 12, 2012, Shawn T. Hynes filed a "Hague Convention Article 15 Petition asking the court "to expeditiously decide and determine, in accordance with the ... Hague Convention's provisions, and at the specific request of the District Court in Schleswig, Germany, whether the removal or retention of the parties' minor daughter, K.B., by respondent, Ulrike C. Berger, a/k/a Julie Berger, ... was wrongful within the meaning of Article 3 of the Hague Convention ...." Petitioner also filed a motion to expedite proceedings.

The court observed that it was in "a somewhat awkward position." The District Court in Schleswig, Germany, was scheduled to hold a hearing in this matter on October 23, 2012. Therefore, time was of the essence. Respondent, resided in the Federal Republic of Germany. Respondent had not yet been served, and the time for her to respond to the petition would be a date beyond October 23, 2012. The Court concluded that under the circumstances it should answer the question posed by the District Court in Schleswig, Germany. In doing it recognized that it had been denied the benefit of the adversary system that lies at the heart of the system of justice in the United States and without giving the Respondent notice or an opportunity to be heard, ruled in favor of Petitioner, giving Respondent 45 days after service of process upon her to move to rescind the order.

It ruled based upon the complaint and its attachments, Respondent's removal of K.B. from the child's habitual residence in Montgomery County, Maryland, in the United States of America, was wrongful within the meaning of Article 3 of the Hague Convention. For that reason it entered a judgment responding to the request made by the District Court in Schleswig, Germany that, based upon the information available Respondent's removal of K.B. from Montgomery County, Maryland, in the United States of America, to the Federal Republic of Germany was wrongful. The facts that lead to its conclusion were that Petitioner and Respondent, who were married to one another, were the parents of K.B., a five-year-old girl.. At the time of her removal, K.B.'s habitual residence was located in Montgomery County, Maryland, in the United States of America. Prior to her removal, Petitioner legally exercised his custodial rights by visiting K.B. and having regular telephonic and video conference and contact with her almost daily since the time that she was two years old. He also spent vacation time with K.B.  Petitioner did not consent to removal of K.B. from Montgomery County, Maryland to the Federal Republic of Germany. Under Maryland law, absent a court order to the contrary, parents are deemed to be joint natural guardians of their minor child and neither parent is presumed to have any right to custody that is superior to the right of the other parent.

Thursday, October 4, 2012

Salvidar v Rodella, --- F.Supp.2d ----, 2012 WL 4497507 (W.D.Tex.) [Mexico] [Attorneys Fees]

In Salvidar v Rodella, --- F.Supp.2d ----, 2012 WL 4497507 (W.D.Tex.) the Court considered Petitioner Sonia Eledia Acosta Saldivar's "Application for Reasonable Attorneys' Fees and Costs . Having prevailed on the merits of the underlying action, Petitioner moved for award of expenses, including legal fees and costs, pursuant to 42 U.S.C. § 11607(b)(3), the fee-shifting provision of ICARA. In her fee application Petitioner sought attorneys' fees in the amount of $60,022 .00, litigation costs in
the amount of $11,718.16, and out-of-pocket expenses in the amount of $1,398.38.
Because Respondent asserted  that he was financially unable to pay any award of fees and costs, the Court issued an order instructing Respondent to submit evidence in support of his assertion. After due consideration, the Court issued a lengthy and instructive opinion granting the application in part.

The Court observed that where, as here, a court has ordered the return of the child to his habitual residence, the court must order the respondent-abductor to pay "necessary expenses incurred by or on behalf of the petitioner," unless to so order would be "clearly inappropriate." 42 U.S.C. 11607(b)(3).The respondent has the burden to show that an award of fees or expenses would be "clearly inappropriate. 

Respondent argued that Petitioner should be denied the statutory attorneys' fees and costs because her attorneys are employed by Texas Rio Grande Legal Aid, Inc. ("TRLA"), a publicly funded legal aid entity. Further, Respondent maintained that because Petitioner or a relative of Petitioner on her behalf had not paid or agreed to pay any attorneys' fees or costs to TRLA, the requested fees and costs have not been incurred on her behalf. Awarding fees under such circumstances, Respondent contended would reward legal aid societies, who are already funded by taxpayers, rather than compensating a petitioner for her legal fees and costs. Respondent invited the Court to interpret §11607(b)(3) as precluding an award where the petitioner is represented for free by a publicly funded legal aid entity. The Court rejected this argument.  Given that the text of § 11607(b)(3) does not in any way limit the scope of the entities who may recover under it, the structure of § 11607(b) suggests that Congress did not intend to cut off from recovery legal aid entities-the very entities on which Congress intended to rely in fulfilling the United States's obligations under the Convention, and the legislative history points to Congress's adoption of the Department of State's broad understanding of the phrase "on behalf of," the Court concluded that under ICARA, an award of expenses, including legal fees and costs, is not inappropriate where the petitioner is represented by a publicly funded legal aid entity, such as TRLA.

Respondent further asserted that an award was clearly inappropriate here because Petitioner had "unclean hands." Given the statutory mandate that the Court "shall order the respondent to pay," it was unclear whether equitable principles such as "unclean hands" should apply to outright deny any recovery of fees and costs. In any event, the Court found that the doctrine of unclean hands did not operate to bar an award of fees in this case. The Court concluded that Respondent has failed to carry his burden to show that an award of necessary expenses, including costs and legal fees, was "clearly inappropriate" in this case. Petitioner, therefore, was entitled to an award.

The court held that to be awardable, the expenses must be "necessary"
to secure the child's return.  Aldinger v. Segler, 157 F. App'x 317, 318 (1st
Cir.2005).  Further, the expenses must be incurred in connection with an action brought under § 11603.Koch v. Koch, 450 F.3d 703, 719 (7th Cir .2006).  To determine an appropriate legal fee award, federal courts typically use the "lodestar" method in Hague Convention cases.  The calculation of attorneys' fees under the lodestar method is a two-step process. In the first step, the court calculates the lodestar amount by multiplying the reasonable number of hours expended on the case by the reasonable hourly rates for the participating lawyers.  In the second step, the court decides whether the lodestar amount should be adjusted upward or downward based on the circumstances of the case using the factors articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974) The attorneys' fees calculus is a fact-intensive one and its character varies from case to case." Hopwood v. Texas, 236 F.3d 256, 281 (5th Cir.2000).   The reasonableness of an attorney's hourly rate "depends on the experience and qualifications of the professional. Hourly rates are to be computed according to the prevailing market rates in the relevant legal market,
not the rates that lions at the bar may command. The relevant market was the
community in which the district court sits. Typically, the reasonable hourly rate for a particular community is established through affidavits of other attorneys practicing there.   Finally, a legal aid counsel, though she does not exact a fee from clients, is awarded the same hourly rate that a counsel in the private bar with the same experience and skills as hers commands. The Court found that the reasonable hourly rate for Brown was $250 and the reasonable hourly rate for Saenz was $150.

The district court pointed out that it must determine whether the hours claimed were "reasonably expended" on the litigation; that is, whether the total number of hours claimed were reasonable and whether specific hours claimed were reasonably expended.. The fee applicant bears the burden of establishing the reasonableness of the number of hours expended on the litigation,  and must present adequately documented time records to the court,  Using this documented time as a benchmark, the court must exclude hours which, though actually expended, are excessive, duplicative, or inadequately documented. The court considered(1) Hours Spent for Petitioner's Hague Application; (2) Hours Spent for State Court Proceedings; 
(3) Hours Spent for the Preliminary Injunction Hearing; (4) Hours Spent for Trial Preparation; (5) Hours Spent on Tasks Performed after the Child's Return; (6) Travel Time (noting that while travel time is not per se excludable, non-working travel time is often compensated at a discounted hourly rate.  In re Babcock & Wilcox Co., 526 F.3d
824, 828-29 (5th Cir.2008): and (7) Fees for Fees, hours spent in preparation of her application for attorney's fees and costs-commonly known as "fees for fees." In the Fifth Circuit, it is settled that a prevailing plaintiff is entitled to attorney's fees for the effort entailed in litigating a fee claim and securing compensation. ; and (8) Hours Inadequately Documented.  The court found that 71.8 hours expended by Brown were reasonable. It noted that if more than one attorney is involved, the possibility of duplication of  effort along with the proper utilization of time should be scrutinized. The time of two or three lawyers in a courtroom or conference when one would do, may obviously be discounted. the Court found that 8.0 hours expended by Saenz are reasonable.

  To arrive at the lodestar amount, the Court multiplied the reasonable hourly
rate by the number of hours reasonably expended. . For Attorney Brown, the Court multiplied 71.8 hours by the rate of $250, to arrive at the lodestar amount of $17,950, and for Attorney Saenz, it multiplied 8.0 hours by the rate of $150 to arrive at the lodestar amount of $1,200. The total lodestar amount therefore was $19,150.  Once the court has calculated the lodestar, it noted that it may adjust upward or downward
after considering following Johnson factors:  (1) the time and labor required to represent the client or clients;  (2) the novelty and difficulty of the issues in the case;  (3) the skill required to perform the legal services properly;  (4) the preclusion of other employment by the attorney;  (5) the customary fee charged for those services in the relevant community;  (6) whether the fee is fixed or contingent;  (7) the time limitations imposed by the client or circumstances;  (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorney;  (10) the undesirability of the case;  (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.     Johnson, 488 F.2d at 717-19. Of these factors, the court should give special heed to factors (1), (5), (8), and (9). Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 800 (5th Cir .2006)."    The Court determined that adjustment due to Johnson factors was not warranted. The factors that would warrant an upward or downward adjustment had already been considered when the Court made its determination regarding the reasonable hours expended and the hourly rates.

Respondent stated that he lacked financial means to pay the amount of fees
requested by Petitioner. The court noted that it may reduce a fee award in a Hague Convention case, if it prevents the respondent-parent with straitened financial condition from caring for his child.  Rydder v. Rydder, 49 F.3d 369, 373-74 (8th Cir.1995); Whallon v. Lynn, 356 F.3d 138, 139-40 (1st Cir.2004); see also  Norinder v.
Fuentes, 657 F.3d 526, 536-37 (7th Cir.2011).Such reduction is equitable in nature,  Rydder, 49 F.3d at 374, and the Court has "broad discretion,"  Whallon, 356 F.3d at 140. In determining whether and to what extent a fee award should be reduced on the basis of the respondent's financial situation, the Court inquires "whether respondent has clearly established that it is likely that h[is] child will be significantly adversely affected by the court's award."  Upon due consideration, the Court found that Respondent's financial condition was straitened, particularly in light of the recent termination from his work. This was not to say that his straitened condition was a permanent one, for given his past work history, it was not unreasonable to assume that he would be employed again soon. Since the parties' separation in 2010,
Respondent provided monthly child support and paid for D.I.R.A.'s cost of education. Pursuant to the parties' divorce agreement, Respondent was obligated to pay child support for D.I.R.A. There was nothing to indicate that he would not continue to provide for the child. Therefore, a large fee award in this case would undermine "the ability of [the] respondent to care for [his] child." Whallon, 356 F.3d at 140.    Accordingly, the Court was of the opinion that a reduction of the above-calculated fee award was warranted. However, the Court declined to reduce the fee award to an amount so little as to effectively result in a denial of all fees. To do so would contravene the statutorily mandated award of attorneys' fees and thwart the legislative purpose of deterring future violations of the Hague Convention. Accordingly, the Court reduced the fee award by 55%. A reduction on the account of straitened financial condition, however, would not be applied to litigation costs and out-of-pocket expenses.    Accordingly, the Court ordered Respondent to pay attorneys' fees  of $8,617.50.

Petitioner requested an award of $11,718.16 as litigation costs incurred on her
behalf by TRLA. Federal courts may only award those costs articulated in 28
U.S.C.  1920 absent explicit statutory or contractual authorization to the contrary."  Costs taxable under § 1920 are per se awardable under § 11607(b)(3). Under s 1920, a court may tax the following costs: fees of the clerk and marshal; fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; fees and disbursements for printing and witnesses; fees for exemplification and copies of papers necessarily obtained for use in the case; docket fees; compensation of court-appointed experts, interpreters, and special interpretation services. 28 U. S.C.1920. The court allowed the following costs as necessary expenses: fees for filing the action ($350.00), fees for service of summon ($91.30), and compensation of interpreter used at trial ($780 .00).  Petitioner itemized $65.56 for freight/postage expenses, without explaining for what purposes the freight was used. Because the Court was unable to determine their necessity without further elaboration, it disallowed this amount.  Petitioner sought $1075 for translation services. These costs were necessary and  the Court allowed them.  Petitioner itemized $384 as transcript fees. The Court deem these costs as necessary. (28 U.S.C.  1920(2) ("Fees for ... transcripts necessarily obtained for use in the case."). Petitioner asked for $401.50 as costs for a court reporter and $150 for a videographer. The Court allowed the costs for the court reporter, but not the costs for videographer.   Petitioner requested reimbursement of travel expenses incurred for Browns trips between Weslaco and El Paso. Reasonable transportation and lodging costs incurred by an out-of-town attorney are awardable under  11607(b)(3).  A total of $1446.10 was disallowed, resulting in awardable travel expenses in the amount of $2146. Petitioner requested $4828.70 in expert fees for services rendered by Mariano Nunez Arreola. An attorney licensed to practice law in Mexico. Arreola worked for TRLA as its foreign legal advisor and served in this action as an expert on Mexican law. He provided his expert opinions on the issue of whether Petitioner's custody rights under Mexican law are "rights of custody" under the Convention. Hague Convention, art. 3. His services included researching the Federal Civil Code of Mexico, the Chihuahua Civil Code, and Mexican Jurisprudencia, interpreting the relevant law, and preparing two affidavits. Such services were clearly necessary to establish Petitioner's entitlement to the
return remedy, as contemplated by the Convention. Accordingly, costs incurred for services rendered by Arreola were  generally awardable. The Court scrutinized the  claimed expert fees for reasonableness and necessity and disallowed some of his time as well as $748.70 billed as travel expenses incurred for his trip to El Paso
to attend the hearing.

Tuesday, October 2, 2012

Lozano v. Alvarez, --- F.3d ----, 2012 WL 4479007 (C.A.2 (N.Y.)) [United Kingdom] [Well-Settled Defense] [Equitable Tolling]

In Lozano v. Alvarez, --- F.3d ----, 2012 WL 4479007 (C.A.2 (N.Y.)) the Second Circuit observed that Article 12 of the Hague Convention, the “well-settled” defense, requires that a child wrongfully removed from a country be returned to that country in order to undergo a custody determination, unless the child is "now settled in its new environment." The  Second Circuit held that courts cannot equitably toll the one-year period before a parent can raise the now settled defense available under Article 12 of the Convention, and that when making a now settled determination, courts need not give controlling weight to a child's immigration status.

 Diana Lucia Montoya Alvarez ("Alvarez") and Manuel Jose Lozano ("Lozano") met and began dating in London in early 2004. [ See In re Lozano, 809 F.Supp.2d 197, 203 (S.D.N.Y.2011).] They never married. From the child's birth on October 21, 2005, until November 19, 2008, Lozano, Alvarez, and the child lived together in London. In October 2008, Alvarez spoke with the child's doctor regarding a host of concerns, including the child's silence at the nursery, frequent crying, nightmares, and bed-wetting. The child's nursery manager also noted the child's unusual behavior and concluded that the "home 'environment obviously had a negative effect upon [her]. Based on the foregoing, the district court found that the child had been exposed to, and negatively affected by, the problems in the couple's relationship. On November 19, 2008, shortly after visiting her sister Maria in New York, Alvarez left the couple's apartment] to bring the child to nursery school and never returned. For the next seven months, Alvarez and the child resided at a women's shelter. In early July of 2009, Alvarez and the child left the United Kingdom, eventually traveling to New York, where they lived since that time. In New York, Alvarez and the child lived with Alvarez's sister Maria, along with Maria's partner, daughter, and granddaughter. Alvarez had not had a job in the United States, but Maria had been employed as a nanny for the same family for four years and her partner owned a grocery business. Because Alvarez and the child had British passports, they were allowed to enter the United States without a visa" for a stay of ninety days or less. This period expired in October 2009. Alvarez testified that she had spoken with immigration authorities about the possibility of being sponsored by Maria, who was a United States citizen.

 Since her arrival in New York, the child attended the same school and, at the time of the proceedings before the district court, was enrolled in kindergarten. The child's Academic Standards Reports from the 2009-2010 school year indicated that the child has been making progress both socially and academically. Outside of school, in addition to spending time with members of her extended family, the child had friends whom she met at the park and the library. The child was also enrolled in ballet classes and, on the weekends, attended church with Alvarez. After arriving in New York, both the child and Alvarez began receiving therapy from a psychiatric social worker at a family medical clinic. The therapist testified that "when she first met the child, the child was unable to speak, make eye contact, or play in the therapist's office."The therapist further noted that the child "would wet herself, was hypervigilant, and had a very heightened startle response.” By February 2010, the therapist diagnosed the child with post-traumatic stress disorder ("PTSD") caused by her "experience living in the
United Kingdom before coming to New York, including living in a shelter system, having to move to a new country, and knowing that her mother had been harmed or threatened." Within six months of arriving in New York, however, Alvarez reported that the child's behavior had improved. The therapist agreed with this assessment, describing the child as " 'completely different.'

After Lozano filed his petition for return in December 2010, Alvarez and the child resumed meeting with the therapist.  After Alvarez's departure, Lozano took a number of steps to attempt to find his
child. Immediately after Alvarez left, he reached out to her sister in London, who denied any knowledge of Alvarez's whereabouts. In the summer of 2009, Lozano filed an application with a British court to "ensure that he obtains regular contact with his child.". He also, via court filing, submitted orders to Alvarez's sisters and her former counsel, as well as the child's nursery and doctor and various police and government offices, seeking information on the child's whereabouts. After exhausting all possibility that the child was still in the United Kingdom on March 15, 2010, he filed a Central Authority for England and Wales Application Form seeking to have the child returned to the United Kingdom. On November 10, 2010, Lozano filed a Petition for Return of Child in the United States District Court requesting an order requiring that the child be returned to London to have a British court make a custody determination.

 The district court first held that Lozano had made out a prima facie case of wrongful retention under the Hague Convention because: (1) the child was a habitual resident of the United Kingdom; (2) Alvarez's unlawful removal of the child breached Lozano's custody rights under English law; and (3) Lozano exercised parental rights at the time the child was removed. The court noted that the child must be returned to the United Kingdom unless Alvarez established an affirmative defense. The district court rejected Alvarez's defense that "there is a grave risk" that the child's return to the United Kingdom would expose her to physical or psychological harm or otherwise place the child in an intolerable situation. However, it found that she had established the “now-settled” defense and denied the petition.

  On appeal only the now settled defense was at issue. Lozano argued that the one-year period should be tolled until the time Lozano reasonably could have learned of his child's whereabouts. The district court disagreed, concluding 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. Having rejected Lozano's tolling argument, the district court next held that the now settled defense applied and was a sufficient reason to have a United States court, as opposed to an English court, decide the child's custody.

  On appeal, Lozano raised three principal objections to the district court's decision. First, he argued that, as a matter of law, the district court erred in permitting Alvarez to raise the now settled defense because the one-year period in Article 12 should have been equitably tolled until such time as he could have reasonably located his child. Second, Lozano contended that the district court erred in finding that the child was settled in New York despite the fact that neither the child nor her mother had legal status in the United States. Finally, even if lack of legal immigration status "does not preclude a well-settled finding as a matter of law," Lozano argued that "the District Court erred in finding that Alvarez proved by a preponderance of the evidence that the parties' daughter was well-settled in the United States.

 The Second Circuit reiterated that in cases arising under the Convention and ICARA, it reviews a district court's factual determinations for clear error." Interpretation of the Convention, however, is an issue of law, which it reviews de novo. It also reviews de novo "the district court's application of the Convention to the facts it has found.
It noted that in interpreting a treaty, it is well established that it begins with the text of the treaty and the context in which the written words are used. The clear import of treaty language controls unless application of the words of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories. General rules of statutory construction may be brought to bear on difficult or ambiguous passages, but it also looks beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the signatory parties in determining the meaning of a treaty provision. While the interpretation of a treaty is a question of law for the courts, given the nature of the document and the unique relationships it implicates, the Executive Branch's interpretation of a treaty is entitled to great weight.

 The Second Circuit agreed with the district court and held that while an abducting parent's conduct may be taken into account when deciding whether a child is settled in his or her new environment, the one-year period set out in Article 12 is not subject to equitable tolling. Neither Article 12 of the Hague Convention nor its implementing legislation, ICARA, explicitly permit or prohibit tolling of the one-year period before a parent can raise the now settled defense. Article 12 provides, in relevant part: Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the proceeding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.  

Accordingly, the default presumption under the Convention is that a child shall be returned to the state from which she originally was wrongfully removed unless both of two conditions are met: (1) one year has elapsed between the date of wrongful removal and the date proceedings commence; and (2) the child is found to be "now settled in its new environment." Even if these two conditions are met, Article 12 does not bar the Central Authority of a Contracting State from ordering the return of a settled child. If more than one year has passed, a demonstration that the child is now settled in its new environment' may be a sufficient ground for refusing to order repatriation." Thus, while the text of Article 12 does not prohibit equitable tolling, the way the provision functions renders this sort of equitable relief unnecessary. Unlike a statute of limitations prohibiting a parent from filing a return petition after a year has expired, the settled defense merely permits courts to consider the interests of a child who has been in a new environment for more than a year before ordering that child to be returned to her country of habitual residency. This interpretation of Article 12 was bolstered by Article 18, which provides that none of the provisions in the Convention "limit the power of a judicial or administrative authority to order the return of the child at any time."Convention. The Convention's drafting history strongly supported Alvarez's position that the one-year period in Article 12 was designed to allow courts to take into account a child's interest in remaining in the country to which she has been abducted after a certain amount of time has passed. If this understanding of the second paragraph of Article 12 was correct, allowing equitable tolling of the one-year period would undermine its purpose.
After the Second Circuit determined that the district court properly permitted Alvarez to raise the Article 12 now settled defense, it considered whether the district court erred in finding the child to be settled in New York. Lozano primarily argued that "[w]here an abducted child resides in the abducted-to country illegally, a well-settled finding should be barred as a matter of law." Given the Convention's text and purpose, the Second Circuit held that immigration status should only be one of many factors courts take into account when deciding if a child is settled within the meaning of Article 12.

Additionally, it held that, in any given case, the weight to be ascribed to a child's immigration status will necessarily vary. Neither the Convention nor ICARA defines "settled" or states how a child's
settlement is to be proved. It held that "settled" should be viewed to mean that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment. In making this determination, a court may consider any factor relevant to a child's connection to his living arrangement. Such an approach is in line with the Convention's overarching focus on a child's practical well-being. Factors that courts consider should generally include: (1) the age of the child; (2) the stability of the child's residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent's employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent. 

The Second Circuit rejected Lozano’s contention that the district court erred because it discounted the significance of the child's lack of immigration status once it found that the child did not face an immediate threat of deportation. For example, a child might be ineligible for certain government-conferred benefits. It noted that the importance of a child's immigration status will inevitably vary for innumerable reasons, including: the likelihood that the child will be able to acquire legal status or otherwise remain in the United States, the child's age, and the extent to which the child will be harmed by her inability to receive certain government benefits. Moreover, rather than
considering the weight to be given to a child's immigration status in the abstract, courts deciding whether a child is settled must simultaneously balance many factors which, as in this case, may not support the same determination.

  The Court found that the district court's analysis was largely compatible with the approach it prescribed Lozano contended that the district court's finding were not backed by a preponderance of the evidence because "most of the evidence on the well-settled issue should not be given much weight because it came from [Alvarez's] own self-interested hearsay testimony, and to a lesser extent, from the therapist and child's school records.". Relatedly, Lozano claimed that Alvarez should have provided "corroborating testimony ... and other evidence of the child's connections to her new environment ." .These arguments were rejected.. None of Lozano's challenges to these findings left the Court with a definite and firm conviction that a mistake has been committed. The judgment of the district court was affirmed.  

Monday, October 1, 2012

Felder v. Wetzel, --- F.3d ----, 2012 WL 4465591 (C.A.1 (Mass.)) [Switzerland][Rights of Custody]

         In Felder v. Wetzel, --- F.3d ----, 2012 WL 4465591 (C.A.1 (Mass.)) on May 19, 2012, K.W., a fourteen-year-old Swiss citizen, attempted to harm herself by ingesting pills while living in the United States with her godmother, Alexandra Ponder. She was then hospitalized at Children's Hospital Boston. On June 7, 2012, the Hospital declined to release K.W. to her mother, petitioner Claudia Felder, a Swiss resident, absent evidence such a release would comply with the child's treatment plan. It was undisputed that the mother had full custody of her daughter K.W. and that Switzerland was the country of habitual residence. Before these medical events Felder had signed an "Authorization for Medical Treatment of [K.W.]" giving "my authorization and consent for Alexandra Ponder to authorize necessary medical or dental care for this child." The form stated that Felder was the parent and legal guardian, and the authorization was limited. This was done because K.W. was attending school in Massachusetts in the Fall of 2011. Felder bought K.W. a July 12, 2012 return ticket to Switzerland at the end of the school year. K.W. flew back to Switzerland for the holiday break and then returned to Massachusetts on January 3, 2012.

         Felder's Hague Convention petition stated that "on or about May 19, 2012 ... KW stated that she tried to hurt herself by ingesting certain medications belonging to Ponder." K.W. was initially taken to the emergency room at Holy Family Hospital in Methuen, Massachusetts, but was then transferred to the inpatient psychiatric unit of  Boston Children's Hospital on May 23, 2012. Ponder informed Felder of K.W.'s hospitalization and Felder agreed that K.W. should receive immediate medical care; during the next three weeks, Felder monitored K.W.'s progress via Ponder and the staff at the Hospital while consulting with Swiss medical professionals. After K.W. had been hospitalized for three weeks, Felder and Dr. Andreas Schmidt, K.W.'s Swiss physician, proposed to the staff of the Hospital that K.W. be transferred to Zurich for further treatment. Felder's petition stated that she and Schmidt advised the staff at the Hospital that "they would take responsibility for KW's health and safety and would both personally accompany KW back to Switzerland."
  On June 7, 2012, a social worker at the Hospital contacted Felder and advised her that the Hospital would not permit K.W.'s immediate return to Switzerland. On June 11, 2012, Hospital staff sent an email to Dr. Daniel Marti of the Kinderspital Zurich outlining the conditions under which K.W. could be safely returned to Switzerland. Felder contended that, at about this time, "Ponder stopped providing Mother with  information about her daughter and, in conjunction with the staff at the Hospital,
prevented Mother and KW's sisters from having contact with KW." On June 17, 2012,
Felder told Ponder that she was terminating the medical authorization for K.W. she had signed. On June 20, 2012, Felder traveled to Boston and again told Ponder that she was revoking Ponder's authorization for medical care. Felder alleged that she did not know that K.W.'s father, Wetzel, had by this time filed an ex parte petition as to K.W. in the Guardianship Authority of the City of Lucerne. The Guardianship Authority may take appropriate measures to protect a child's welfare. See id. arts. 307, 315a.

        On June 21, 2012, the Swiss Authority ex parte issued a precautionary order to Felder saying that "[a]t present, the existing endangerment of your daughter can only be avoided by withdrawing your right to determine the place of residence of [K.W.] or concretely the parental custody right."The order prohibited Felder from removing K.W. from the Hospital clinic and said she would be given a full hearing later. On June 25, 2012, Ponder filed a motion to be appointed as K.W.'s temporary guardian with the Essex Division of the Probate and Family Court of the Commonwealth of Massachusetts. Ponder's motion was made with the consent of K.W.'s non-custodial biological father, Patrick Wetzel. Felder did not appear. The state Family Court acted based on Ponder's representations. On June 25, 2012, the state Family Court appointed Ponder as K.W.'s guardian until September 24, 2012, a date that had since been extended to October 26, 2012. On July 10, 2012, Felder filed her petition under the Hague Convention in federal district court. Respondents Ponder and Wetzel, in addition to seeking the dismissal of Felder's petition, raised two Article 13 defenses under the Convention: that K.W.'s return to Switzerland would present a grave risk of harm to her, and that K.W. was of sufficient age and maturity that her objections to being returned to Switzerland should be heeded. Felder had by this time also sought recourse from the Swiss Guardianship Authority. On July 11, 2012, the Swiss Authority issued a "Decree" subtitled "Repeal of  precautionary order of June 21, 2012," in which it observed that by "letter dated June  27, 2012, the biological mother ... requested reconsideration of the precautionary  decision of June 21, 2012 and its complete repeal." The decree did in fact repeal the
precautionary order, with an explanation. On July 11, 2012, Felder filed an "Emergency Motion by Mother Claudia Felder to Vacate Temporary Guardianship" in the Massachusetts Family Court. Apparently, K.W. had been discharged from the Hospital and was staying with Ponder. At the close of the hearing, the Family Court "enter[ed] a finding, that the most recent order from the Swiss courts [i.e., the June 21, 2012 precautionary injunction], quote, withdraws mother's custody rights" and stated that "it is not clear to me ... that it is-it had been reinstated."Explaining that "I have to do what's in [K.W.'s] best interest and right now, I need to preserve the status quo," the court, in a handwritten order, denied Felder's emergency petition "pending the hearing in Federal Court." On July 2, 2012, Felder had also filed a court complaint in Switzerland seeking to reverse the Guardianship Authority's June 21, 2012 precautionary order. The July 11, 2012 decree was issued in the interim. On July 12, 2012 the District Court of Lucerne ruled on Felder's petition, concluding that "[w]ith the [Authority's] repeal of the precautionary ruling handed down June 21, 2012, the revocation of the complainant's parental custody ordered by the custodianship authorities of Lucerne becomes obsolete. The complainant no longer has any legally protected interests in continuing the proceedings before the Lucerne District Court."

       On July 20, 2012, the federal court conducted oral argument on Wetzel's motion to dismiss Felder's petition under the Convention but did not take evidence. On July 30, 2012, the federal district court dismissed Felder's petition. Felder, 2012 WL 3128570, at *1. The district court concluded that K.W.'s state of habitual residence was Switzerland. It looked to Swiss law and the orders of the Swiss authorities to determine that "as of June 21st, the Guardianship Authority took the action that it was empowered to take and revoked Felder's parental custody," and that "the Guardianship Authority's subsequent rulings did not unequivocally reinstate her custody rights," The district court reasoned that "the one authority, the Guardianship Authority, that has the power to determine custody rights, did not decline to take further action, but instead deferred to the actions of the Probate and Family Court in the United States." The court concluded that "Felder has failed to show, by a preponderance of the evidence, the wrongful retention of K.W. in the United States."

         The First Circuit reversed. It observed that the district court's reasoning in dismissing Felder's petition was based on its reading of the various orders of the Swiss authorities and court. It concluded that these orders were not designed to nor did they terminate the mother's rights. It analyzed each order and reached the conclusion that there was an attempt to do no more than cope with an emergency situation as to K.W., which the Guardianship Authority concluded required prompt action and which was better not taken from abroad, but immediately addressed by courts, doctors, and others concerned on the scene. The first Swiss Authority order, the June 21, 2012 order, was, as it stated, only a "precautionary injunction"; it was ex parte and in the nature of a temporary emergency order. The June 25, 2012 Guardianship Authority letter to the Hospital explained its June 21, 2012 order as being based on "the [present] urgent need for action" and a fear the American authorities would otherwise not act as needed in the best interests of the child. In light of the emergency nature of the measures taken, it would be incorrect to conclude that these decisions decisively and permanently altered Felder's custody rights over K.W. under Swiss law. They did not strip Felder of her right under the Convention to seek K.W.'s return and to have custody over her child decided by K.W .'s state of habitual residence. It was clear from the Swiss Guardianship Authority's July 11, 2012 decree that the prior order, the Authority's June 21, 2012 temporary revocation of some of Felder's custody rights, had itself been revoked. The decree expressly stated that: * Felder is "entitled to custody" of K.W.; both Felder and K .W. reside in Switzerland. This reading was strongly buttressed by the authoritative Swiss District Court's July 12, 2012 order dismissing Felder's complaint that the June 21, 2012 precautionary order should be reversed. The Lucerne District Court's July 12, 2012 order stated that "the revocation of the complainant's parental custody ordered by the custodianship authorities of Lucerne [has] become[ ] obsolete. The complainant no longer has any legally protected interests in continuing the proceedings before the Lucerne District Court." These later orders established that as of July 12, 2012, any temporary revocation by the Swiss authorities of some of Felder's custody rights over K.W. had itself been revoked. Felder had custody rights under the Convention.

         Two defenses were raised under Article 13 of the Convention: (1) that K.W .'s return to Switzerland would present a grave risk of harm to her, and (2) that K.W. was of sufficient age and maturity (she was almost fifteen) that her objections to being returned to Switzerland had to be heeded. The First Circuit directed that these exceptions to return, must be heard on remand. It reversed the dismissal of Felder's petition under the Convention, reinstated the case, and remanded for further proceedings consistent with its opinion.