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Monday, November 12, 2012

Rodriguez v. Sieler, 2012 WL 5430369 (D.Mont.) [Mexico] [Habitual Residence] [Grave Risk of Harm] [Article 20]

[Mexico] [Habitual Residence] [Grave Risk of Harm] [Article 20]

In Rodriguez v. Sieler, 2012 WL 5430369 (D.Mont.) Rocio Jatsuel Chavez Rodriguez's filed a Petition for return. Rodriguez was a Mexican citizen who resided in the State of Nayarit, Mexico, most of her life. She recently moved to the State of Jalisco. Sieler was a United States citizen and resided in Kalispell, Montana. Rodriguez and Sieler met in Nayarit in 1996 when Sieler began doing mission work there through a church. They were married by the church there on May 5, 1999, and were married legally in Kalispell on December 4, 1999. For the next several months, Rodriguez and Sieler lived in Kalispell with Sieler's parents. During this time, Rodriguez was granted temporary residency in the United States, and the couple raised funds from local churches so that they could return to Nayarit to build a church. Rodriguez and Sieler returned to Nayarit in September 2002. They lived together in the house of Rodriguez's parents for the first few years while building a church, and in 2005, a home, in the town of Ursulo Galvan. Sieler was a pastor in the church and Rodriguez worked as a schoolteacher. Their monthly support check from the church was deposited in a joint checking account at the Mountain West Bank in Kalispell, Montana, and both Sieler and Rodriguez paid taxes to the IRS and the Montana Department of Revenue. In 2003, Sieler filed for an "FM3" as a non-immigrated visitor to Mexico doing religious work. During the same year, Rodriguez was granted permanent resident status in the United States. Thereafter, Rodriguez and Sieler returned to the United States annually for four to six weeks at a time, usually during the summers. Sieler testified that as a missionary, he knew his stay in Mexico would not be permanent. However, Rodriguez testified that they never agreed how long they would reside in Nayarit and that she did not believe a move was imminent because Sieler had told her that he had been called to serve in Mexico. Sieler's and Rodriguez's son, P.A.S.C., was born in Mexico on December 20, 2004; he was now 7. C.J.S.C. was born on March 23, 2009; she was now 3. Both children were registered as United States citizens born abroad and issued American passports. However, they lived in Ursulo Galvan with both their parents their entire lives, except for the few weeks a year that the family visited Kalispell. They lived close to Rodriguez's parents and siblings, with whom they spent significant time, and P.A.S.C. attended preschool and primary school there.

In July and August of 2011, the family made their typical summer trip to Kalispell.
Sieler testified that at this time, he had begun to seriously consider moving the family
back to Montana. During the visit, he decided he was going to move. Rodriguez testified that he did not tell her of his plan during this visit and that she would not have agreed to the move. Sieler insisted he did tell her his intention and that while she was not angry, she was not happy about it either and that she neither said she would or would not come with him. The family returned to Mexico on August 20, 2011. Two days later, Sieler's father passed away, and Sieler returned to Kalispell to help settle his family's affairs. Rodriguez and the children joined him in late September, expecting to help out for a couple of months and then to return to Mexico. Rodriguez testified that it was at this time that Sieler first told her he planned to move to Montana permanently. She denied ever agreeing to move or to allow the children to move to Montana. Sieler confirmed that Rodriguez never said she wanted the children to move to Montana permanently, although in his affidavit before the state court, he suggested that Rodriguez was helping him prepare for a permanent move. The parties agreed that the proposed move caused or amplified tensions in their marriage that fall. Rodriguez returned to Mexico with C.J.S.C. on December 25, 2011, because her sister was ill. Sieler and P.A.S.C. returned to Mexico a month later. P.A.S.C. re-enrolled in school in Nayarit.

The problems in Sieler's and Rodriguez's marriage continued in Mexico. For the next four months, Sieler continued to advocate moving the family to Kalispell, and Rodriguez continued to resist his plan. She began contemplating separation. On May 7, 2012, still in Nayarit, during an argument, it appeared that Rodriguez suggested that Sieler could take P.A.S.C. and that she could take C.J.S.C. if they separated. Sieler contended she meant that he could take P.A.S.C. to the United States permanently. Rodriguez denied she gave permission for Sieler to permanently remove P.A.S.C. from Mexico or her care. She testified that she meant that a short separation might help them resolve their difficulties and that they could each take care of one of the children during that separation. When Rodriguez awoke the next morning, Sieler and both children were gone. She went to one of Sieler's fellow missionaries who told her that Sieler had taken P.A.S.C. and C.J.S.C. and left for the United States. Sieler finally contacted Rodriguez from Kalispell and informed her that neither he nor the children were returning to Mexico. Rodriguez did not agree to that arrangement. Within days, Sieler initiated dissolution and custody proceedings in Kalispell, and Rodriguez made efforts through the Mexican and United States consulates in Guadalajara, Jalisco, Mexico, to initiate return proceedings. Rodriguez's efforts resulted in the present case. The state court proceedings in Kalispell were stayed pending resolution of this petition.

The district court found that the habitual residence of both children was Mexico. "Being habitually resident in a place must mean that you are, in some sense, 'settled' there-but it need not mean that's where you plan to leave your bones." When determining a child's habitual residence, the Court must consider "the parents' present, shared intentions regarding their child's presence." Their intentions may be express or inferred through their actions. Where it is alleged that a child has acquired a new habitual residence, the Court must find the parents shared a "settled intention to abandon" the prior habitual residence. Mozes v. Mozes, 239 F.3d 1067, 1073 (9th Cir.2001) The habitual residence of both P.A.S.C. and C.J.S.C. was Mexico, where they were born and raised. Both children resided in Ursulo Galvan in a house with their parents from the time they were born until they were removed to the United States by their father. Their family on their mother's side was in Nayarit, and P.A.S.C. attended preschool and primary school there. Though C.J.S.C. was very young, she was born in Mexico while her parents were habitually resident there. Thus Mexico was her initial habitual residence, and no circumstances had changed that. The children visited Kalispell, Montana, on summer vacations and when their paternal grandfather passed away, but they always returned to Mexico, and their parents never mutually agreed that they should move to Montana. Mexico provided the family and social environment in which the children's lives developed.

Sieler emphasized that the work of a missionary is often transient, and that Rodriguez knew this when they were married. He also noted that the children were American citizens and that Rodriguez was a permanent resident of the United States, which requires a person to plan to reside permanently in the United States at some future point. He suggested that Rodriguez may have been equivocal at times about whether she would eventually agree to move the family to Montana. These facts did not alter the Court's conclusion, however. The decision to alter a child's habitual residence cannot be accomplished through wishful thinking alone or by unilateral action. Mozes v. Mozes, 239 F.3d 1067, 1073 (9th Cir.2001) It was evident from both parties' testimony that when it came down to it, Rodriguez refused to move to the United States though Sieler insisted. Nor did she ever expressly or through her actions indicate that she intended either child to move permanently to the United States in May 2012. There was no evidence she made arrangements to move herself or the children to the United States, and she consistently expressed disagreement with Sieler's intention to move.

Even if, during their argument on May 7, 2011, Rodriguez gave Sieler permission to take P.A.S.C. to the United States, the consent of the parent left behind "is not usually enough to shift" the child's habitual residence absent other circumstances from which  the Court can infer a shared intent that the child abandon the previous habitual residence. Rodriguez denied any intent to allow the move to be permanent, and her testimony was entirely credible. It was not reasonable for Sieler to take Rodriguez's statement as permission to take either or both children from the country and her care permanently. Moreover, when Rodriguez woke to find the children and Sieler gone, she immediately objected and persistently sought their return ever since. There was no evidence of a "shared, settled intent" that the children abandon their habitual residence of Mexico for a new habitual residence in the United States.

There was no parenting plan, judicial or administrative decision, or other agreement regarding custody of P.A.S.C. and C.J.S.C. Thus, the law of the children's habitual residence, Mexico, governed the question of whether Rodriguez has custody rights over the children. The Court observed that custody law in Mexico is based on the concept of "patria potestas " or "patria potestad." Patria potestas is common to all of Mexico's states, including Jalisco, where Rodriguez was currently residing, and Nayarit, where the children were born and raised. Patria potestas governs the relationship between parents and their children, conferring upon both parents, jointly, the broadest possible right over their children's care, custody, and well-being. Title 8, ch. 1, art. 406

Nayarit Code. The patria potestas right has consistently and rightly been recognized as a right of custody under the Hague Convention. The term "right of custody" is construed broadly under the Convention, and, in both Nayarit and Jalisco, the right of patria potestas clearly encompassed the right to care for a child and determine the child's residence, see Nayarit Civil Code, art. 405, doc. 6-3 ("Parental authority/responsibility (patria potestas ) is to be exerted over the children themselves as well as over their assets and is instituted for their care and protection."); Ramirez, 2012 WL 606746, (citing Jalisco Civil Code, art. 581). Additionally, the Nayarit Civil Code specifically provided that a child shall not leave the parents' residence without their permission, and in Jalisco as well, both parents must consent to the removal of the child from the country. Ramirez, 2012 WL 606746.

Once custody rights are established, it is presumed that a person who has care of her child is exercising her custody rights, and it is the respondent's burden to prove otherwise. Convention, art. 13(a). There was no evidence presented that Rodriguez was not exercising her custody rights at the time the children were removed from Mexico in May 2012 or that she had lost those rights and responsibilities under articles 435 or 436 of the Nayarit Civil Code. Moreover, the children were living with both parents, as they had throughout their lives, up through the morning of their departure, and they were cared for by both Rodriguez and Sieler. Accordingly, Rodriguez established that she had joint custody rights over P.A.S.C. and C.J.S.C. under Mexican law and that she was actually exercising those rights at the time of their removal. Alleging that the P.A.S.C. and C.J.S.C. were removed from Mexico without her consent, Rodriguez established a prima facie case that there removal and retention in the United States was wrongful.

The Court held that respondent did not show by a preponderance of the evidence, that the petitioner "consented to or subsequently acquiesced in the removal or retention" of the children from their habitual residence. He removed both P.A.S.C. and C.J .S.C. from Mexico without Rodriguez's consent. He did so secretly, while Rodriguez was sleeping, and prevented her from learning of his plan until he was already out of the country. Sieler admitted that he did not have permission to take C.J.S.C. out of the country. However, he insisted that Rodriguez consented to his removal of P.A.S.C. based on her alleged statement, just hours before he took P .A.S.C. from the country, that they could separate and he could take care of P.A.S.C. and she could take care of C.J.S.C. This statement, made during a late-night argument, was not sufficient to establish consent to P.A.S.C.'s removal from Mexico. There was no evidence the couple shared an understanding that P.A.S.C. would thenceforth live in the United States with Sieler. Even if this disputed and broad statement could be construed as consent to take P.A.S.C. out of the country, Rodriguez immediately and vehemently objected to Sieler's retention of P.A.S.C. in the United States and his intent to keep both children here permanently. Rodriguez's efforts to negotiate some settlement about the children's care and custody, despite Sieler's unilateral actions, could not be construed as acquiescence in P.A.S.C.'s continued retention in the United States, particularly as no agreement was reached and Rodriguez persisted in her efforts to have both children returned to Mexico. The Court held that P.A.S.C. and C.J.S.C. were wrongfully removed from Mexico, in violation of Rodriguez's custody rights, on May 8, 2012 when Sieler took them out of the country or, at the latest, were wrongfully retained in the United States when Rodriguez objected to Sieler's plan to keep them in the United States permanently.

Sieler urged the Court to apply the grave risk of harm exception here based on increased violence in Mexico due to drug cartel activity. The once quiet State of Nayarit was under military control due to the cartels, there were bodies hanging off overpasses; random shootings throughout the city; and ambushes at police check points. Sieler's sister-in-law was caught in a shooting at the grocery store in which 8 people were killed and many others wounded. Kidnappings, home invasions, and robberies greatly increased. The same sister -in-law was later robbed at knife point in her home, which was close to the children's grandparents' house where Rodriguez and the children spent a significant amount of time. Additionally, Sieler alleged that his brother-in-law might be involved in a drug cartel and that the house across from the family's home in Ursulo Galvan is a "drug house." Finally, he noted that houses in Nayarit as well as the rest of Mexico typically have reinforced doors and bars on the windows and that children are taught in school what to do if a shooting takes place. Sieler indicated that he had read about the general increase in violence in newspapers of general circulation and warnings from the United States Department of State, and that he had heard stories of kidnappings and other incidents from church members and friends. Rodriguez testified that much of the violence Sieler described had occurred in Tepic, the capital of Nayarit, which was two and half hours from Ursulo Galvan.

The Court pointed out that like the other exceptions," the grave-risk exception is " 'drawn very narrowly lest its application undermine the express purposes of the Convention, to effect the prompt return of abducted children. The risk must be "grave, not merely serious," and the exception should only be applied in "extreme cases,". Educational or economic opportunities or other such advantages are not appropriate considerations under the grave-risk inquiry. Blondin v. Dubois, 238 F.3d 153, 161-62 (2d Cir.2001); Cuellar, 596 F.3d at 511. Additionally, "because the Hague Convention provides only a provisional, short-term remedy in order to permit long-term custody proceedings to take place in the home jurisdiction, the grave-risk inquiry should be concerned only with the degree of harm that could occur in the immediate future." Gaudin, 415 F.3d at 1037. The Sixth Circuit has held that a grave risk of harm can be found "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 v. Friedrich, 78 F.3d 1060, 1069 (6th Cir.1996). Courts have construed this standard narrowly, in conformance with the goals of the Hague Convention. In Silverman v. Silverman, for example, the Eighth Circuit rejected the district court's finding that Israel constituted a "zone of war" warranting the application of the grave-risk exception, holding that there must be "specific evidence of potential harm to the individual children." 338 F.3d 886, 900 (8th Cir.2003). Allegations of "general regional violence, such as suicide bombers, that threaten everyone in Israel" were "not sufficient."

The Court observed that at least two district courts have considered facts strikingly similar to those alleged by Sieler. In Vazquez v.. Estrada, the district court rejected the respondent's argument that returning the child to Monterrey, Mexico, would expose her to a grave risk of physical harm due to the "'spiraling violence and surge in murders in Monterey' and because of 'specific violent acts that have been committed in the school [the child] attended in Monterrey and in the neighborhood where Petitioner resides.' " 2011 WL 196164, *5 (N.D.Tex. Jan. 19, 2011). A surge of violent activity, drug cartel activity, and a dangerous neighborhood were not sufficient to find that Monterrey was a "zone of war." Likewise, the district court in Castro v. Martinez held that the respondent failed to allege a grave risk when he alleged, among other things, that the area was burdened by drug cartel activities, the child had seen a Mexican police officer arrest and possibly beat an individual; the petitioner's home was unsafe; the child possibly saw violent acts in Mexico; and one or more of the mother's relatives may be members of a "gang cartel." --- F.Supp.2d ----, 2012 WL 359901, *2 (W.D.Tex. Feb. 2, 2012). The Court held that respondent did not meet the burden of proving a grave risk or intolerable situation by clear and convincing evidence.. He did not present "specific evidence of potential harm to the individual children" and most of his concerns were based on second- and third-hand accounts of violence in the region.

  A court is not required to return a child to its habitual residence when the return
"would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. Art. 20. The exception is construed even more narrowly than the grave-risk exception. Sieler contended the exception applied because "[t]he due process rights and fundamental freedom of Nayarit and Mexico in general are not at the same high level as the United States," he may face charges in Mexico and be arrested if he returns, he believes he would be in danger in Mexico, and he cannot access the judicial system in Mexico." Sieler provided no evidence, except his own speculation, to support his allegations and has therefore failed to establish the Article 20 exception by clear and convincing evidence.

Lyon v. Moreland-Lyon, 2012 WL 5384558 (D.Kan.) [England] [Attorneys Fees]

In Lyon v. Moreland-Lyon, 2012 WL 5384558 (D.Kan.) the petitioner Kevin Lyon's moved for attorneys fees after the court granted his Petition for Return and ordered that his son F.M.S.L. be returned to England. The Court observed that the International Child Abduction Remedies Act provides that a court ordering the return of a child pursuant to an action brought under the act "shall" order the respondent to pay the petitioner's "necessary expenses" unless the respondent shows that such an order would be "clearly inappropriate ."

The petitioner provided proof of the requested fees and expenses. The court found that all of the amounts were "related to the return of the child," as required by 42 U.S.C. 11607(b) and declined to reduce the amount requested. It considered the total sum of $18,565.30 in fees, costs and expenses in calculating an appropriate award to petitioner.

Respondent argued that awarding any attorneys' fees and costs would be clearly
inappropriate because of the respondent's "straitened financial circumstances."

The court noted that it has the discretion to reduce any potential award to allow for the financial condition of the respondent. Berendsen v. Nichols, 938 F.Supp. 737, 739 (D.Kan. Sept. 19, 1996). In Berendsen, the court reduced the fee award in an ICARA case by 15% because of the respondent's financial status. Respondent relied on an ICARA case from the Eastern District of Pennsylvania to argue that no fees should be awarded against her. The court in In re Application of Hirts, found it clearly inappropriate to award any of the petitioner's $31,958.45 in expenses and costs against one respondent who had "straitened financial circumstances." See 2004 WL 1588227 at *1 n. 1. In that case the court explained that the respondent held assets totaling $610.22, was unable to become employed because of her immigration status, resided with her children in a women's shelter, and received government assistance to cover their daily living expenses.However, the court held the other respondent in the case responsible for paying $20,000 of the petitioner's expenses. The court explained that the second respondent held assets of $42,695.73 and received a pension of $300 per month. Additionally, the court noted that she had no obstacle preventing her from working in some capacity. Although the court stated that this second respondent suffered from straitened financial circumstances, it pointed out that her position was "in no way as severe" as the first respondent's. As a result, the second respondent was required to pay the petitioner's expenses, but the court reduced the amount by 37%.

The district court recognized the respondent's straitened financial circumstances. She had no job in England, no income, no car, and no savings. She applied for financial aid and housing benefits in England, but was been unable to receive either because of a habitual residence test. Respondent was living on loans from her family to support herself and her young child. Respondent had not identified any obstacles preventing her from getting a job. However, petitioner stopped paying $450 per month in child support to respondent in February 2012. Since February, respondent received only $189 from petitioner in child support. Meanwhile, respondent paid $3,031.49 in moving and basic living expenses. Additionally, she paid $2,505.00 for airline tickets to England for a hearing at the High Court in London. Although petitioner was ordered by the court to pay for those airline tickets he had not reimbursed respondent for them. Given the respondent's financial position, the court found that awarding any of petitioner's attorneys' fees against the respondent would be clearly inappropriate and denied the motion.