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Thursday, November 21, 2013
In Montero-Garcia v. Montero, 2013 WL 6048992 (W.D.N.C.) the district court pointed out that after trial concluded, it issued ian Order finding that the children had been wrongfully retained and directed that the children be returned to their habitual place of residence. Finding that it was appropriate for the children to remain with the respondent until the flight home and that both parents should accompany the children on the flight, the court directed petitioner to purchase tickets for the children as well as the respondent for the return flight to the Dominican Republic. In so finding, the court determined based on the undisputed financial information submitted at trial that petitioner was the sole financial provider for the family, that his income of some $2000 a month would place this family above the poverty line in the Dominican Republic, and, absent some other source of income, they would be living in poverty if they remained in the United States. Further, while it appeared that the children had aunts in the United States willing to furnish housing, they had maternal grandparents in the Dominican Republic who had, based on past actions, the means to provide housing and some financial support when needed. The determination was based on respondent's unrefuted testimony that she was completely dependent on the support of petitioner, had to go on public assistance while in this jurisdiction, and that the family depended on some support from her parents before they came to the United States. Determining that it would be clearly inappropriate for respondent to bear the costs, expenses, and fees incurred in this action due to her complete dependence on income from petitioner, the court denied petitioner's request that respondent pay his costs, expenses, and fees under 42 U.S.C. § 11607.
Petitioner filed a request for reconsideration of the costs and fees portion of the Order after respondent had returned to the Dominican Republic and obtained counsel to represent her in the domestic action in her home country. In support of petitioner's request for attorney's fees and costs, petitioner contended that the court erred in relying on respondent's uncontroverted trial testimony concerning her lack of income and being on public assistance. A hearing was conducted at which counsel for the parties were present. Counsel for petitioner volunteered that he would submit detailed time records if requested by the court. The court noted that petitioner did not file a motion for attorney's fees and costs and did not demand fees in his Petition. The request for fees was found, for the first time, in a post-trial Brief in Support of Hague Petition. The Court observed that while petitioner clearly asked for an opportunity to submit "evidence regarding Petitioner's costs and fees," the evidence concerning respondent's ability to pay such costs and fees was already before the court. As there was no evidence that respondent had any ability to pay any fees or costs, the court found no reason to ignore the mandate of the convention and delay the return of the children simply to allow petitioner to submit evidence of his fees and costs. At the trial, counsel for respondent called respondent and asked a series of questions concerning respondent's financial situation. Such sworn testimony indicated to the court that respondent had absolutely no personal assets, all her income came from petitioner, and since being in the United States, she relied on public assistance as well as help from her church and sister to support her and her four children. It was apparent that respondent had no prospects for gainful employment outside the home. Petitioner cross-examined respondent, but her testimony concerning her financial situation was neither challenged nor impeached. Respondent testified that before coming to the United States, the family of six relied on petitioner's income, but that after petitioner lost his job with Verizon, the family's finances were so dire that the family depended on support from respondent's parents to pay certain bills, including health insurance premiums.
The court fully credited petitioner's assertion that respondent now had the assistance of paid counsel in the Dominican Republic in the domestic action that ensued upon the family's return. There was no evidence that she, rather than her parents, paid those attorneys. In light of petitioner's undisputed testimony, the fact that she now had the assistance of retained counsel in the Dominican Republic did not unsettle the court's conclusion that imposition of costs and fees was "clearly inappropriate" based on an inability to pay. The court noted that it is a very common practice for concerned relatives-especially concerned grandparents-to hire counsel to represent indigent parties in court, especially in domestic matters that could impact child custody and grandparental visiting rights. The fact that respondent had counsel in the Dominican Republic was not, standing alone, sufficient cause for revisiting the earlier determination that respondent has no ability to pay. It was pure speculation that respondent had a source of funds that she did not reveal to the court. Petitioner did not submit evidence (such as bank records, wage statements, or property records from the Dominican Republic) that would support a conclusion that respondent committed perjury before the court or had a post-return windfall that would justify reopening the issue of attorney's fees. The court did not consider it appropriate to reopen this matter and conduct what would now be expensive, international, court-sanctioned discovery (which would also need to meet requirements of other aspects of the Hague Convention concerning international judicial assistance) based on petitioner's speculation as to the source of his wife's attorney's fees in the Dominican Republic. Respondent's at-trial testimony concerning her financial condition was clearly intended to provide the court with information with which to make the §
11607(b)(3) determination, as it was not helpful in proving any of the defenses available under the International Child Abduction Remedies Act ("ICARA"). Petitioner was afforded an unfettered opportunity to examine respondent at trial, but in no way challenged her testimony concerning her finances.
The Court observed that while petitioner clearly proved that respondent had wrongfully retained the children in this jurisdiction, the court found that shifting petitioner's fees and costs to respondent would be "clearly inappropriate" as respondent established at trial that she had no ability to pay and was completely indigent. There was no evidence to suggest that respondent would be able to pay any amount of an award. While the court was unfamiliar with the laws of the Dominican Republic concerning distribution of debt incurred during a marital relationship, respondent's argument at the hearing that awarding fees, costs, and expenses to petitioner would simply serve to convert counsel's pro bono work into a marital debt was a compelling argument. The evidence adduced at trial indicated that respondent was a stay-at-home mother of four with no income or assets, with no prospects for working outside of the home, and who intended to home school her four children. While in this jurisdiction, it was respondent's testimony that she relied on public assistance as well as assistance from her church and sister. Although counsel for petitioner cross-examined respondent, her testimony concerning her lack of income and assets was in no manner impeached. Petitioner also testified, but presented no testimony that respondent had any hidden income or assets in the Dominican Republic or elsewhere. The court concluded from all the evidence and testimony that petitioner lost his job at Verizon, that his attempt at entrepreneurship in the cheese business led to a large tax liability, and that as a result, petitioner could no longer provide for all the needs of his wife and four children, falling back on respondent's parents to provide for certain expenses. With the respondent and children all being dual citizens of the United States and the Dominican Republic, the family came to the United States in search of a better financial life and with hopes of the parents saving their marriage, neither of which came to fruition.
Counsel for petitioner also argued that, at a minimum, his costs should be allowed under Rule 54(d)(1), Federal Rules of Civil Procedure. The Court found that petitioner's reliance on Rule 54(d) was misplaced.
The Court denied the motion for reconsideration. It cited case law holding that shifting fees under ICARA is clearly inappropriate where the "child[ren] will be significantly adversely affected by the court's award," Whallon, 356 F.3d at 140, and where a respondent "would be unable to pay any amount of an award." East Sussex Children Servs., 919 F.Supp.2d at 734. The testimony at trial was compelling that respondent was totally dependent on income from petitioner, had no assets, and was on public assistance while in this jurisdiction. As it did at the conclusion of the trial based on careful consideration of all the evidence before it, the court reaffirmed its conclusion that the litigants' four children would be significantly adversely affected by the shifting of any award as respondent has no ability to pay such award, has no assets, and has no prospects for future employment, all of which would push these children further into poverty.
Saturday, November 16, 2013
In Valenzuela v Michel, 2013 WL 6038240 (9th Cir., 2013) in late 2006, Steve Michel and Blanca Reyes Valenzuela chose to live together in Nogales, Mexico. Their twins were born in 2008. According to Steve's undisputed testimony, the couple lived together in Nogales, Mexico. The couple agreed in 2009 that to avoid having to cross the border for work, Steve should move to the Arizona side. They agreed to "set a pattern to keep [the twins] in the United States" in order to take advantage of education, medical help and government support in the United States. After the twins received their passports in May 2009, until the fall of 2010, they split their time between Mexico and the United States. They lived with Blanca in Mexico Monday through Wednesday and lived with Steve in the United States from Thursday through Sunday. In September 2010, the relationship between Blanca and Steve soured. Blanca threatened to have him beaten up or killed. For around two months in the fall of 2010, Blanca did not allow him to have any contact with the twins. Under the belief that she posed a danger to the children, Steve reported Blanca to Arizona Child Protective Services and to its Mexican equivalent, DIF, in November 2010. From Christmas 2010 to February 2011, the twins split their time between Steve and Blanca evenly. In February 2011, Blanca would not regularly meet Steve or respond to his messages to go to the border so he could take the twins to the United States. Steve did take the children on March 24, 2011. He told Blanca he would return them at 7 PM on March 27th, but he sent Blanca a text message on March 27th saying he would not bring them back.
Blanca filed her application two days after Steve retained the twins and filed a petition for Writ of Habeas Corpus for Return of Child in the District Court. At trial, Blanca and her witnesses testified via telephone from Mexico with the help of an interpreter. Steve testified that Blanca agreed to keep the twins in the United States to send them to school and get them better medical care. Blanca disagreed with much of what Steve had said during his testimony. She also talked over some of her witnesses. The District Court found Steve's testimony to be more credible, noting that Blanca seemed to be coaching her witnesses. Based on Steve's testimony and the testimony of Fernando Leal, the DIF social worker, the district court held that the parties "abandoned Mexico as [the children's] habitual state of residence when their parents decided they should, for an indefinite period, spend the majority of their time in the United States."
The Ninth Circuit affirmed. It observed that it had rejected a purely factual approach to habitual residence for reasons laid out by Chief Judge Kozinski in Mozes v. Mozes. 239 F.3d 1067, 1071–73 (9th Cir.2001) It was undisputed that Blanca was exercising her rights of custody at the time of retention. The question was whether the children were habitually resident in Mexico, the United States, or both, at the time of their retention. The Court of Appeals noted that the district court based its findings of fact primarily on three key credibility determinations. First, it found that Steve's version of the facts was credible. Second, it found that Blanca's account was not consistent with her earlier statement to the social worker about how long the twins were living in the United States. Finally, it found that Blanca's witnesses either lacked independent foundation for their testimony or were being audibly coached while they were testifying, possibly by Blanca herself.
The Court pointed out that in the Ninth Circuit, they look for the last shared, settled intent of the parents in an attempt to determine which country is the "locus of the children's family and social development." Mozes, 239 F.3d at 1084. Mozes requires that there be a shared intent to abandon the prior habitual residence, unless the child "consistently splits time more or less evenly between two locations, so as to retain alternating habitual residences in each." Once intent is shown, Mozes requires an "actual change in geography" combined with an "appreciable period of time" to establish a change in habitual residence. Following Mozes, the district court ruled that Steve and Blanca had a shared, settled intent to abandon Mexico and adopt the United States as the twins' habitual residence, and therefore the Convention did not attach. It agreed that the Convention did not attach.
In affirming the district court's decision, the Ninth Circuit offered "an alternate route to the same outcome". It pointed out that very few cases arising under the Convention feature shuttle custody. In shuttle custody situations, Parent 1 and Parent 2 agree to split custody between two countries, shuttling the children between the countries on a regular basis. Here, Steve and Blanca decided the children would split time between countries before their relationship soured, and the children were shuttled more frequently than in any other cases. Blanca's and Steve's residences, as of the time of the petition, were in two different countries, but they were only around ten miles apart, the closest of any two parents in all of the habitual residence cases brought under the treaty worldwide. The only U.S. court to entertain the possibility that a child had alternating habitual residences was a district court in New York. In Brooke v. Willis, a court-ordered custody arrangement dictated that a child spend fifty percent of her time in the United States and the other fifty percent in England. 907 F.Supp. 57 (S.D.N.Y.1995). After a fall semester in California, the mother retained the child in California in breach of the agreement. The father, in England, filed a petition under the Convention. The court ruled that the child was habitually resident in England at the time of her retention, with the caveat that "it is arguable that [the child] is also a habitual resident of the United States under the Convention. However, for purposes of this petition it is only crucial to determine if England can be considered [her] habitual residence." No other U.S. court has been faced with shuttle custody under the Convention. The closest fact pattern to the one before it was from a case decided by the High Court of Northern Ireland. In In re C.L. (a minor), a child shuttled between Belfast and Dublin, a distance of 105 miles. After acknowledging that the fact pattern is "unusual if not unique", the court found that when the child moved between his parents "on a weekly basis, he was habitually resident in whichever jurisdiction he was living in." In re C.L. (a minor) and In re the Child Abduction and Custody Act 1985; JS v. CL (unreported NIFam HIGJ2630 25 Aug. 1998). Courts in other jurisdictions have held that the shuttle custody cases before them reflected serial, or alternating, habitual residence. See Wilson v. Huntley, 2005 Carswell Ont 1606(WL), (Can.O.N.S.C.) ; See also Watson v. Jamieson, (1998) S.L.T. 180, 182 (Scot.).
The Court held that district court judge below did not err in deciding that Blanca and Steve shared a settled intention to abandon Mexico—they had immediate plans to avail the twins of government assistance in the United States as well as longer-term plans to educate the children in the United States. It noted that based on the shuttle custody cases from sister courts, Steve could have prevailed by showing that he and Blanca shared a settled intention to abandon Mexico as the twins' sole habitual residence, that there was an actual change in geography, and that an appreciable period of time had passed. Because all three elements were present here, it affirmed the district court in its decision that the twins were habitually resident in the United States when Steve retained them.
Monday, November 4, 2013
In West v Dobrev, 2013 WL 5813749 (10th Cir, 2013) Petitioner West, a lawyer, was a citizen of Romania and the United States. Respondent Dobrev, a college professor, was a citizen of Bulgaria and the United States. The two were married in 2003 in Chicago, Illinois. They had two children, a female born January 27, 2004 and a male born January 12, 2006, both citizens of the United States. In June 2008, the couple and their children moved to Fontainbleau, France after Respondent accepted a teaching position at a local university. In May 2009, Petitioner filed for divorce in "Fontainbleau Departmental Court." In an interim order dated October 2009, the French court ordered the children to "remain in the usual home of the mother," and Respondent to pay for their support. Respondent left his position with the local university in early February 2010. Respondent, contrary to the court’s order, ceased support payments. In May 2010, Respondent accepted employment as a professor at the University of Utah in Salt Lake City, but did not resume payments. In March 2010, Petitioner asked the French court for permission to move to Brussels, Belgium. Petitioner represented that "without resources, and after having searched in vain for employment in the U.S., she had to expand her search and ... found a job at the European Commission in [Brussels] Belgium." Respondent objected to Petitioner’s request. In a second interim order dated June 2010, the court "[a]uthorized the mother to move to Brussels as long as she notifie[d] her husband at least 15 days before leaving France." The court ordered the children to remain in the primary physical custody of their mother. Petitioner and her children moved to Brussels in August 2010. In the French proceeding, Respondent raised numerous arguments as to why the court should award him physical custody of the children. Respondent never argued that Petitioner abused the children, physically or psychologically. One of Respondent’s principal arguments was Petitioner hid her intention to move to Brussels with the children "where she prevents him from seeing his children." The French court was unpersuaded and in its final decree found:
Ms. West did not hide anything and ... took the precaution of obtaining [the] court’s authorization before moving. Such authorization was given by the decision of June 2, 2010....* * * Mr. Dobrev does not prove that the mother prevented him from seeing his children.... [T]he exchange of emails between the spouses submitted as evidence took back [Mr. Dobrev’s] initial consent of having the children enrolled at the European School in Brussels, indicating that he had enrolled the children instead at a school in the United States, and threatened the mother to bring them back to the United States. The French court found upon all the facts presented that the divorce was the "exclusive fault of Mr. Dobrev," and "in the context of joint exercising of parental authority [i.e., joint custody] the usual home of the children must be maintained at their mother’s home." At no time did Respondent appear to have contested the French court’s jurisdiction to adjudicate the matter of the children’s custody. On July 24, 2012, four weeks after entry of the decree, Respondent waived his right to appeal, thereby finalizing the decree and terminating the French proceeding.
Prior to waiving his right to appeal, Respondent picked up the children on July 11 and brought them to the United States to vacation consistent with the terms of the final decree. The children were scheduled to return to Belgium on August 12, 2012, but did not return. Instead, on August 8, Respondent filed suit in Utah state court for "Emergency Jurisdiction and Custody." Respondent asked the state court to award him temporary custody of the children for the reason that if they were returned to their mother in Belgium "such a return would pose a grave risk of physical and psychological harm to each child or otherwise place each child in an intolerable situation, as contemplated by Article 13(b) of the Hague Convention." In his state suit, Respondent alleged for the first time that "[d]uring the years the parties were married and during the time [Ms. West] and the children lived in France and Belgium, [he] has been concerned about [her] treatment of the children."
On August 23, 2012 Petitioner petitioned the Utah federal district court for return of the children. Petitioner included with her petition a letter from the director of the children’s elementary school in Brussels containing favorable comments from the children’s teachers; the older child’s school records showing average or above average marks; and a letter from a neighbor tenant in Brussels containing favorable comments about the family. A few days prior, the State Department notified the Utah state court that Petitioner also had submitted an administrative application for return of the children pursuant to Article 8 of the Convention. That application stayed the state court proceeding pursuant to Article 16.
Respondent answered Petitioner’s federal suit by again disputing many of the facts found in the French court’s final decree. He denied he wrongfully retained the children from their residence in Belgium. Respondent again asserted, this time as an affirmative defense, that he properly retained the children under Article 13(b) of the Convention because they faced a grave risk of harm if returned to their mother. Respondent submitted a letter from a clinical psychologist whom he hired to interview the children after they reportedly expressed dissatisfaction with their current living arrangement in Belgium. According to the psychologist’s letter, Petitioner reportedly (1) had little time for the children, (2) disciplined the children by slapping them, pulling their hair, and spanking them, and (3) failed to provide them adequate medical or hygienic care. On one unspecified occasion, Petitioner reportedly pushed her daughter down after chasing and catching her. The letter concluded: "It is strongly suggested that the children’s current living situation be investigated and that the children continue to receive therapy." Respondent asked "the court to appoint an additional therapist to evaluate both the children and determine if there has been abuse and, if so, what kind, how serious, and does it justify retention."
Six days after the federal petition’s filing, the district court held a preliminary hearing during which it raised questions about the need for an evidentiary hearing. Respondent’s attorney told the court that the psychologist who had interviewed the children would not testify at an evidentiary hearing due to ethical considerations: "I would like to develop the case so I can present it to you, but I need another psychologist appointed and Ms. West directed to cooperate with that. That is the best way of finding out if there is not any abuse, because if she cooperates, and I am sure she is going to deny [the abuse], then we have [a psychologist] that is presenting here is what the children have said and here is what [Ms. West] said, and my opinion as a psychologist is there is abuse or there is not abuse. "
The district court expressed frustration with Respondent’s position: During the preliminary hearing the district court never stated it would hold an evidentiary hearing. And Respondent never suggested due process required an evidentiary hearing. Rather, Respondent claimed only that the evidence before the court was sufficient to warrant further inquiry. At one point the court stated: "Let me review what [the parties] have submitted and then decide whether there is enough to have a hearing on the matter of abuse." A week later the district court decided no evidentiary hearing was necessary. The court issued a brief written decision summarily granting the petition and ordering Respondent to "immediately" return the children to Petitioner "for their safe return with her to Belgium." The court identified the question presented as whether Respondent had shown as required by Article 13(b) of the Convention "a grave risk the children will be exposed to physical or psychological harm or otherwise be placed in an intolerable situation if they are returned to Belgium." The court answered "no." The court explained that, "even on its face," the evidence of abuse Respondent presented, in particular, the uncorroborated letter of the clinical psychologist (aside from his own allegations), "is far from demonstrating a ‘grave risk’ that a return to Belgium will expose the children to physical or psychological harm or otherwise place them in an intolerable situation." A few days later the court ordered Respondent to pay Petitioner’s fees, costs, and expenses pursuant to ICARA, 42 U.S .C. § 11607(b)(3).
The Tenth Circuit affirmed. It observed that consistent with the aims of the Convention, Article 11 of the Convention provides "[t]he judicial ... authorities of Contracting States shall act expeditiously in proceedings for the return of children." Article 18 adds the provisions of the Convention "do not limit the power of a judicial ... authority to order the return of the child at any time. This means a district court has a substantial degree of discretion in determining the procedures necessary to resolve a petition filed pursuant to the Convention and ICARA. Neither the Convention nor ICARA, nor any other law including the Due Process Clause, requires that discovery be allowed or that an evidentiary hearing be conducted" as a matter of right in cases arising under the Convention. If the circumstances warrant, both the Convention and ICARA provide the district court with "the authority to resolve these cases without resorting to a ... plenary evidentiary hearing."
On appeal, Respondent claimed he was denied due process because the district court provided him no opportunity to challenge its finding that Belgium was the "habitual residence" of the children. The Court of Appeals pointed out that at the preliminary hearing, however, Respondent never challenged any element of Petitioner’s prima facie case as alleged in her petition—although he had ample opportunity to do so. Perhaps this was because Respondent admitted in his response to the petition the Petitioner’s allegations established a prima facie case for return of the children. In ¶ 22, Petitioner alleged: At the time of the children’s wrongful removal and retention ... Petitioner was actually exercising custody rights within the meaning of Articles Three and Five of the Convention, in that she is the biological mother of the children and has exercised custody rights over her children since they were born, and she was awarded joint physical custody, joint legal custody, and primary physical custody of the children pursuant to the [French] Decree. Furthermore, the Children were habitually residents of Belgium within the meaning of Article 3 of the Convention since their move to Belgium in August 2010. Respondent "[a]dmit[s] the allegations of ¶ 22 of the petition except that the actions of Respondent are not wrongful but fully in accord with the provisions of Article 13(b) of the Convention." Thus, Respondent’s belated claim that he was entitled to an evidentiary hearing to challenge Petitioner’s prima face case was meritless.
The Tenth Circuit pointed out that because Petitioner alleged a prima facie case for return of the children under Article 3 of the Convention and Respondent did not deny those allegations, the burden shifted to him to establish one of the affirmative defenses or "narrow exceptions set forth in the Convention." The Court was concerned only with the exception contained in Article 13(b): A court is not bound to return a child wrongfully retained or removed if the respondent establishes "by clear and convincing evidence," 42 U.S.C. § 11603(e)(2)(A), 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. "Grave risk" means the "potential harm to the child must be severe, and the level of risk and danger ... very high." Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir.2013). The Court held that whatever one must show to establish a "grave risk" to a child under Article 13(b) Respondent did not make that showing before the district court "by clear and convincing evidence."