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Thursday, November 6, 2014

Smedley v Smedley, --- F.3d ----, 2014 WL 5647426 (C.A.4 (N.C.) [Germany] [Federal & State Judicial Remedies] [Comity] [Petition Granted]

In Smedley v Smedley, --- F.3d ----, 2014 WL 5647426 (C.A.4 (N.C.)) the Smedleys married in 2000 in Germany, where Mark was stationed as a member of the 
United States Army. Their children, A.H.S. and G.A.S., were born in 2000 and 2005, respectively. Except for approximately one year spent in Tennessee, the family lived in Bamberg, Germany, until August 2010, when Mark was transferred to North Carolina. He bought a house in Swansboro and brought the family with him. Daniela maintained that she they had discussed divorce and she told Mark she was returning to Germany with the children  permanently in May 2011, and he consented. Daniela and the children left on July 13th of that year. Because Daniela had agreed to take four weeks to reconsider her decision, Mark bought them round-trip tickets with a return date of August 11, 2011. Mark told Daniela that if she chose to stay in Germany, he would try to relocate there to be close to the children. In late July 2011, Daniela informed Mark via phone of her decision to remain in Germany.  Mark denied that he and Daniela ever discussed divorce and claimed that  the trip to Germany was to be nothing more than a one-month vacation. He said Daniela's decision to stay in Germany came as a complete surprise: he learned of it only after the late July phone conversation, about two weeks after she had already left North Carolina. She had not told him of her intent in May, and he had not  consented to a permanent move.

   On September 2, 2011, Mark obtained a temporary custody order from the District Court of  Onslow County, where Swansboro is located. In October, he filed a Hague petition in Germany  seeking the children's return.  The District Court of Bamberg denied Mark's Hague petition. The Court credit its denial in part on the 
findings of a court-appointed family advocate that Mark had physically abused A.H.S. and found that returning the children to North Carolina would expose them to a serious risk of harm, one of the Article 13 defenses.  Mark appealed the District Court of Bamberg's decision to the Bamberg Higher Regional Court. Daniela, A.H.S., the family advocate, and a representative from the Office of  Children Protection Services of Bamberg testified in person. Mark, who was unable to attend because his passport was expired, testified through his lawyer. The court agreed with Daniela that Mark had consented to the move to Germany, finding her testimony more credible than Mark's. As consent is an Article 13 defense, the court held that Daniela need not return the children without determining whether North  Carolina or Germany was their habitual residence.

Mark and Daniela obtained a divorce under German law in May 2012, and the children lived  with Daniela in Bamberg until August 2013. Daniela agreed in June
2013 to let the children visit Mark because they wanted a vacation and had not seen their father in two years. On August 6th, Mark picked the children up at Ramstein Air Base in Germany. He gave Daniela a notarized document stating that he would return the children on  or about August 26, 2013, with the exact date to depend on the availability of military flights.  Expressing concerns over their dental care and schooling, Mark kept the children in North Carolina and informed Daniela of his decision via Facebook on August 27, 2013. He enrolled the children in the Onslow County school system.

     Daniela filed a Hague petition in the U.S. District Court on April 7, 2014. The district court, ruling that the Bamberg Higher Regional Court's finding on consent  was not "wholly unsupported," accorded comity to that decision. First, the district court concluded that the German court's failure to determine the children's habitual residence was not fundamentally unreasonable because the decision "rested on what  is akin to an affirmative defense in Article 13(a)": Mark's consent to the move. Second, the district court reasoned that, based on the German court's credibility determinations, the testimony supported the contention "that Mark had agreed to the trip with the knowledge that Daniela and the children might not return. That the German court did not credit Mark's version of the story does not render its Article 13(a) determination ...fundamentally unreasonable." Third, the district court rejected Mark's argument that, because he did not formally manifest his non-consent, he did not consent to Daniela's decision, by noting that "[c]onsent ... 'may be evinced by the [parent's] statements or conduct, which can  be rather informal.' " (quoting  Nicolson v. Pappalardo,  605 F.3d 100, 105 (1st Cir.2010)).

      Having found that Daniela did not wrongfully remove the children to Germany and reasoning that they had acclimatized to life in Germany between July 2011 and August 2013, the district court found that Germany was the children's habitual residence at the time of their visit to North Carolina.  Because Mark did not assert any defense, the court allowed Daniela's  petition and awarded her physical custody for the purpose of returning the children to Germany. This appeal followed.

The Fourth Circuit held that the  district court properly accorded comity to the German  court's ruling that Daniela did not unlawfully remove the children to Germany. The court noted that, though foreign judgments are not entitled to full faith and credit, "comity is at the heart of the Hague Convention." Miller, 240 F.3d at 400 (quoting  Diorinou, 237 F.3d at 142).  Accordingly, "American courts will normally accord considerable deference to foreign adjudications as a matter of comity." It noted that the Ninth Circuit has provided a useful framework for extending comity in Hague cases: "[W]e may properly decline to extend comity to the [foreign] court's determination if it clearly misinterprets the Hague Convention,  contravenes the Convention's fundamental premises or objectives, or fails to meet a minimum  standard of reasonableness." Asvesta v. Petroutsas, 580 F.3d 1000, 1014 (9th Cir.2009). The Fourth Circuit held that the  district court properly extended comity because the German court's decision neither clearly misinterpreted the Hague Convention nor failed to meet a minimum standard of reasonableness. It noted that the the Second Circuit held that the proper standard of review in cases such as this one is de novo. See  Diorinou, 237 F.3d at 139-40. 

           The Fourth Circuit rejected Marks argument that the German court clearly misinterpreted the Hague Convention because it failed to make a habitual-residence determination before addressing the defense of  consent. He cited no authority for the  proposition that a court must decide habitual residence before addressing defenses. Nor is there anything in the text of the Hague Convention that requires a court to address Article 3  first. The Hague Convention does not set out a roadmap, only principles. Here the habitual-residence question was not dispositive or even helpful, as the court's conclusion did not turn on habitual residence or custodial rights. Even if the German  court had assumed that the children were habitual residents of North Carolina when Daniela took them to Germany, the finding that Mark consented to that move would have still provided her with an affirmative defense to wrongful removal.

The Fourth Circuit next rejected Mark's arguments that the German court's decision did not meet a minimum  standard of reasonableness because the court unreasonably relied on contradictory evidence in making its credibility determination. It noted that the German court found credible Daniela's testimony that Mark knew she went to Germany with the intent of staying there with the children, and that Mark consented to that move in the event she did not change her mind. Though the court 
made such a determination with Mark present only through his lawyer, the decision was at  least minimally reasonable. The German court found that Mark's testimony through his lawyer was not  credible.  Because Daniela's testimony was detailed and corroborated, and the evidence did not show that Mark's consent was for only temporary travel, the German court's decision was at least  minimally reasonable.
Accordingly, for the foregoing reasons, the judgment of district court was affirmed.

Alcala v Hernandez, 2014 WL 5506739 (D.S.C.) [Mexico] [Provisional Remedies] [Temporary Restraining Order] [Judicial Notice]

         In Alcala v Hernandez, 2014 WL 5506739 (D.S.C.) Petitioner Father sought  the issuance of a restraining order preventing Respondent  Claudia Garcia Hernandez (Mother) from leaving the jurisdiction along with a Rule to Show Cause requiring Mother to appear at a hearing to show cause why the minor children should  not be returned to Mexico;  the issuance of a warrant for the physical custody of the  children; and 3) an order scheduling an expedited hearing on the merits of Father's Verified Petition. In his Motion to Seal, Petitioner asked the court to seal any warrant for  physical custody of the minor children issued. I n his Motion to take Judicial Notice of Mexican Law he requested the court take judicial notice of Mexican law as reflected in Petitioner's expert affidavit and Article 15 Declaration made by Maria Cristina Oropeza Zorrilla, Director of  Family Law for the Mexican Central Authority. 

         The evidence presented by Father at the ex parte hearing indicated that on June 17, 2013, Respondent Claudia Garcia Hernandez, who was the mother of F.C.G., a ten-year old Mexican national, and A.C.G., a two-year old Mexican national wrongfully removed the Children, against Father's express wishes, from their familial home in Mexico and brought the children into the United States illegally and without prior notice. The  evidence presented by Father showed that he was listed on the Children's birth certificates, and had sufficient parental custody rights under the Hague Convention such that Mother's removal of the Children from Mexico without his consent wrongfully deprived him of  his parental rights that he was exercising just prior to the removal. Father indicated to the  Court that Mother has, in violation of his expressed direction to the contrary, brought the  Children into the United States illegally, knowing that Father instead wished for the family to stay in Mexico. After their alleged abduction, Father has alleged that it took more than a year to locate the Children who were being hidden in Florence, South Carolina by Mother, even with the aid of the State Department and law enforcement. Father has alleged that Mother is in Florence, South Carolina with the Children's grandmother, Lorenza Hernandez Perez, and their aunt,  Andrea Garcia Hernandez.

In light of Father's contentions in the Verified Petition, the Court  determined that it was necessary to hold a preliminary injunction hearing to determine whether the temporary  restraining order should remain in effect pending a full hearing on the merits. The court declined to consolidate the preliminary injunction hearing into the final merits hearing as  requested by the Father. The Court anticipated that the Mother would require a reasonable amount of time to prepare for the hearing and retain counsel if desired.

        The Court observed that to further the  intent of the Hague Convention, courts are called on to preserve the status quo-the return of the child to his home country for further proceedings. See  Miller v. Miller, 240 F.3d 392, 398 (4th Cir.2001). To accomplish the goal of maintaining the status quo, the Court is empowered to take appropriate measures "to prevent ... prejudice to interested  parties by taking or causing to be taken provisional measures." Hague Convention, art. 7(b). These "provisional measures" are available to the court exercising jurisdiction over the action  just as if it were the appropriate court under State law- the ICARA requires the court  exercising jurisdiction to ensure that the applicable requirements of State law are satisfied. 22  U.S.C. §9004(b). Once those requirements are met, the court is permitted to implement all necessary procedures "to prevent the child's further removal or concealment before the final disposition of the petition."Id. §9004(a).   Federal courts across the country have used the authority granted to them by § 9004, formerly cited as 42 U.S.C. § 11604, to take provisional measures to ensure that abducted  children are not removed from their jurisdiction prior to completion of Hague proceedings. Father's request for relief was heard on an ex parte basis under Federal Rule of Civil Procedure 65(b)(1). Based on Father's allegations and the findings the Court found that relief without notice to Mother was necessary to avoid immediate and irreparable injury, loss, and/or damage if Mother were to be given notice of the proceedings prior to the Order.   The Court found that Father's request for provisional measures authorized by 22 U.S.C.§ 9004  are "analogous to a temporary restraining order. A plaintiff seeking a temporary restraining order or preliminary injunction must establish all four of the following elements: 1) he is likely to succeed on the merits; 2) he is likely to suffer irreparable harm in the absence of temporary or preliminary relief; 3) the balance of equities tips in his favor; and 4) an injunction or restraining order is in the public interest.  Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374, 555 U.S. 7, 20 (2008).  A plaintiff must make a clear showing that he is likely to succeed on the merits of his claim.  Similarly, a plaintiff must make a clear showing that he is likely to be irreparably harmed absent injunctive relief.  Only then may the court consider whether the balance of equities tips in the plaintiff's favor. Finally, the court must pay particular regard to the public consequences of employing the extraordinary relief of injunction. 

         After analyzing these factors the Court found that provisional measures were authorized and necessary in this case.   The Court found that Petitioner Father, at this stage in the proceedings and based on the Verified Petition and exhibits, had clearly demonstrated that he was likely to be successful on the merits. Based on the evidence, the Court found that ex parte emergency relief was necessary to prevent irreparable injury. The court observed that allowing the Mother to flee with the  Children was contrary to the very purpose of the Hague Convention and ICARA, and would result in irreparable harm. See  In re McCullough, 4 F.Supp.2d at 416.  Given that Mother had already allegedly wrongfully removed the Children from Mexico, there existed a risk that Mother may leave this jurisdiction with the Children. Father had, therefore, made a clear showing of the  likelihood of irreparable harm if temporary relief was not granted. The Court found hat any threatened harm to Mother was minimal as compared to the  probability of irreparable harm to Father. Finally, the court found that, the public policy is not hindered, but is instead furthered, by the ordering of these provisional measures.    Therefore, the Court found that the necessary elements of Rule 65, as articulated in Winter,  had been met, and the Court granted Father's request for a Temporary Restraining Order  prohibiting the removal of the Children from the Court's jurisdiction.

Petitioner asked the Court to issue a warrant for physical custody pursuant to S.C.Code Ann. §63-15-370, to have his minor children placed in protective custody with the Florence County Department of  Social Services ("DSS"). However, before ordering that a child be taken from someone with physical custody of the child, the federal courts must ensure that the requirements of state law are satisfied. 22 U.S.C. § 9004(b).  South Carolina Code  63-15-370, which is part of the Uniform Child Custody Jurisdiction and Enforcement Act, provides, in part:  (A) Upon the filing of a petition seeking enforcement of a child custody  determination, the petitioner may file a verified application for the issuance  of a warrant to take physical custody of the child if the child is immediately  likely to suffer serious physical harm or be removed from this State. According to the Verified Petition, the Mother had family in Florence County, the  Grandmother and Aunt of the minor children, who reportedly owned a local business. Petitioner  alleged the Children had been physically located at addresses in Florence and Darlington, South Carolina beginning some period following their alleged abduction on June 17, 2013. More than one year had elapsed since the minor children were removed from Mexico and it appeared the Mother and children may have been residing in Florence County for at least one year. As a result, it was unclear whether the minor children may  be settled in their new environment as  contemplated by Article 12 of the Hague Convention. The Court had reservations as to the propriety of issuing a physical custody warrant for the Children at this juncture and denied Petitioner's request to issue a warrant under the  Uniform Child Custody Jurisdiction and Enforcement Act, S.C.Code Ann.§ 63-15-370.

The district court observed that the Hague Convention allows courts to "take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of law." Hague Convention, art. 14; 22 U.S.C.§s 9005. Courts around the country have used this authority to take judicial notice of foreign States' laws, especially when determining whether the petitioning parent has "rights of custody" as  required by the Hague Convention. For that reason, the Court granted petitioner's Motion to  take Judicial Notice of Mexican Law for purposes of granting the Temporary Restraining Order. The Court declined to issue the custody warrant. Therefore, Petitioner's motion to seal was denied as moot.

           In its order the court ordered the mother to bring the Children and any and 
all passports, identification, and travel documents for the Children to the hearing and that if she did not appear as directed or if she removed the children from the jursdiction of the court a warrent for her arrest shall issue; prohibited her  from removing the Children from the  jurisdiction of the Court pending the preliminary injunction hearing on the Verified Petition, and directed that no person acting in concert or participating with Respondent Mother (including the Children's grandmother, Lorenza Hernandez Perez, and their aunt, Andrea Garcia Hernandez) shall take any action to remove the Children from the jurisdiction of this Court pending a determination on the merits of the Verified Petition.