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Wednesday, November 12, 2014

Mauvis v Herisse, --- F.3d ----, 2014 WL 5659412 (C.A.1 (Mass.) [Canada] [Habitual Residence] [Grave Risk of Harm] [Petition Granted]

In Mauvis v Herisse, --- F.3d ----, 2014 WL 5659412 (C.A.1 (Mass.) the mother and father were both citizens of Haiti. The parties had two female children: M.M. was born in France in December 2005, and was now nearly nine years old; and R.M. was born in the United States in November 2009, and was approximately five years old. The father also had three other children, including twins-B.M. (male) and S.M. (female), who were now between nine and ten years old-from a previous relationship.   In January 2010, less than two months after R.M.'s birth, a catastrophic earthquake devastated the parties' community in Haiti. Following the earthquake, in February 2010, the father and M.M. moved to Quebec, Canada, where members of the father's family lived. The mother testified that she asked the father to bring M.M. to Massachusetts, but he refused and urged her to join him in Canada instead. She further testified that he threatened to harm or kill M .M. if she refused to join him, so she reluctantly took R.M. and moved to Canada in March 2010. The father denied the allegations that he threatened any physical harm.

In July 2010, the parents moved into their own apartment, along with
their two daughters and the father's twin children. In January 2011, the mother
moved out, taking M.M. and R.M. with her, and leaving behind the father and his
older twins.  In February or March 2012, the father prevailed upon the
mother to allow him to rejoin her, and he and his other children moved into her
apartment. The parties lived together for some time thereafter.   In the fall of 2012, R.M. began to exhibit health problems, including frequent nosebleeds and weight loss. The mother decided that R.M., as a U.S. citizen, should return to the United States to receive medical care. For that reason, the father and mother agreed that the mother's aunt could bring R.M. to the United States for medical care; the parties' written agreement provided that R.M. would be returned to Canada around September 20, 2013. In the fall of 2013, R.M. was examined and treated for eczema, a tendency to experience nosebleeds, and mild anemia, for which she was prescribed an iron supplement.    R.M. was not returned to Canada as agreed. Instead, on September 13, 2013, the mother left Canada with M.M. and traveled to her aunt's home in Massachusetts, where the mother and the two children remained through oral argument in this case.

 On November, 26, 2013, the father filed a petition in the United States
District Court for the District of Massachusetts, seeking a court order for the
return of M.M. and R.M. to Canada.   In support of that determination, the district court made several findings of fact and conclusions of law. Among those facts, the district court found that the parties' actions demonstrated that they "both were content" for the children to live in Canada for at least two years immediately prior to the children's removal to Massachusetts. The court found that even after the mother stopped living with the father, she chose to remain in Canada in her own household with the children.
During this time, the children led "settled" and "acclimatized" lives in Canada,
where they attended school and participated in social activities. The court thus
concluded that Canada was the children's habitual country of residence at the time
of their removal, and they were wrongfully removed or retained for purposes of the
Hague Convention. The district court further found that returning the children to Canada would not involve a grave risk of physical or psychological harm. The court noted that the mother admitted that the father has never harmed or attempted to harm M.M. or R.M. It further found it "telling" that even after the mother moved out, she took no steps to prevent the father from having contact with the children. Therefore,
the court granted the father's petition for the return of M.M. and R.M. to Canada.

The First Circuit affirmed. It reviewed the "district court's factual findings for clear error while reviewing its interpretation and application of the Hague Convention de novo. The First Circuit observed that although the Convention itself does not define the term "habitual residence," its inquiry into this question begins with the parents' shared intent or settled purpose regarding their child's residence. As a secondary factor, evidence of a child's acclimatization to his or her place of residence may also be relevant.  The Court pointed out that when reviewing a district court's findings as to habitual residence, "we defer to the court's findings of intent absent clear error, but we review the ultimate determination of habitual residence-a mixed question of fact and law-de novo."  The Court noted that where the children in question are very young, “we focus on the shared intent or settled purpose of the parents, rather than the children, because young children lack both the material and psychological means to decide where they will reside.  It looks specifically to the latest moment of the parents' shared intent, as the wishes of one parent alone are not sufficient to change a child's habitual residence.  In a situation like this, in which the parties have lived in two or more countries, the district court is required to "distinguish 'between the abandonment of a prior habitual residence and the acquisition of a new one. A person cannot acquire a new habitual residence without forming a settled intention to abandon the one left behind. Otherwise, one is not habitually residing; one is away for a temporary absence of long or short duration.

  In support of her position, the mother argued that the father only left Haiti
after a catastrophic earthquake forced him to seek refugee status in Canada. She
maintained that she was coerced to move to Canada, and that she never applied for
asylum or status as a permanent resident there. The mother alleged that the father forced her to leave Boston and bring R.M. to join him and M.M. in Canada by means of threats. She alleged that he said that if she did not come to Canada, he would buy rat poison and use it to first kill M.M., and then himself.  The father denied the mother's claims, and the district court did not affirmatively credit her allegations. The court found that although the mother only "reluctantly" took R.M. to Canada in March 2010, she then proceeded to live there with the father and his children for approximately ten months. In January 2011, the mother, R.M., and M.M. moved out, first staying with relatives but then moving to a separate apartment in Montreal. In February or March 2012, the mother agreed to allow the father and his other children to move into her apartment. The court further found that "[i]t is clear that the children lived with their mother in an apartment in Montreal for about two years prior to the events that gave rise to the present petition." The court found relevant the undisputed fact that even after the mother stopped living with the father, "she established her own household with the children in Montreal." Thus, the court found that the mother's actions showed that she chose to remain in Canada of her own volition, and the fact that "she subsequently had a change of heart and decided that the children would be better off living elsewhere is of no moment, as any such intent was not a shared one with [ the father]." For those reasons, the district court concluded that although the parents originally lacked a shared intent for the children to live in Canada when the mother first arrived in March 2010, the parties later formed such an intent at some point during the intervening three-and-a-half years prior to the children's removal and retention in September 2013. The court found that for at least two years during this period, and possibly longer, both parents were "content" to have the children live in Canada. On the record the First Circuit could not say that these findings were clearly erroneous.

The First Circuit found that the overwhelming weight of the evidence supported the district court's conclusion that "[f]or approximately two years, the children lived in a settled, 'acclimatized' way in Canada." The mother  failed to demonstrate that the factual findings were clearly erroneous. The record did not support a conclusion
that the children were acclimatized to any country other than Canada. Having found
no clear error on this issue, it upheld the district court's factual determination
that M.M. and R.M. were acclimatized to life in Canada.    Given the lack of clear error in the district court's factual findings on the parents' shared intent and on the children's acclimatization, both of these factors supported the district court's ultimate determination that Canada was the children's country of habitual residence.

The mother alleged that the father repeatedly raped her, including in the  presence of the couple's children. According to the mother, this sexual abuse began while the parties lived together in Haiti in 2007 and continued through 2009, and it resumed when they lived together in Canada, beginning in July 2010 and continuing through her most recent rape on September 9, 2013. The mother alleged that one of the father's twin children, B .M., exhibited sexually aggressive behavior toward his half-sister, M .M.  In response to one incident the father whipped B.M. with a belt. Shortly thereafter, after another incident of sexually inappropriate behavior by B.M. toward M.M., the father allegedly told the mother that the behavior was not serious. The mother also alleged that, while the family was living together in Canada in May 2010, she found B.M. and M.M. in the living room with their pants and underwear around their ankles. Once again, the father whipped B.M. with a belt as punishment.  The mother argued that in addition to potential physical and sexual harm, M.M. and R.M. would be subjected to corresponding psychological harm if returned to Canada. At trial, the mother offered her own testimony as well as that of her aunt. She also offered the expert testimony of Dr. Eli Newberger, a Massachusetts pediatrician. who offered his professional opinion that the children would be subject to a grave risk of physical or psychological harm if returned to Canada, on the basis of the mother's assertions of past abuse. The "nature and scope" of Dr. Newberger's work regarding the case involved reviewing the children's medical records at Boston Medical Center, and  a visit to his home office, where he interviewed the mother, her aunt, and both children.

  The father denied the mother's allegations regarding any sexual assault or rape
of her, stating that he never abused her sexually and denying that the parties 
ever had sexual relations in front of the children. He further denied the allegations of sexual abuse of M.M. by his twins.  He emphasized that the mother admitted that he never physically harmed M.M. or R.M. The father maintained that, during the parties' separation in Canada, he continued to visit with the children regularly-generally every weekend (from Friday after school until Sunday night), but also occasionally during the school week. He noted that the mother never contacted the police regarding her claims of sexual abuse, nor did she ever seek protection or a restraining order from the Canadian courts against him. He asserted that she only filed for a restraining order in the United States on September 17, 2013, after she had relocated to Massachusetts with the children.

The district court noted the mother's testimony that the father "frequently acted toward her in a sexually abusive manner," and that "he insisted on sexual activity at times and under circumstances when the children were or could have been exposed to it." However, the district court found that this "testimony was general and vague," and that it was "difficult to draw any reliable conclusions about how frequently such conduct occurred or how significant any impact on the children might have been. " The court observed that the mother "admits that [the father] has never harmed or attempted to harm [M.M.] or [R.M.]." Furthermore, the court found it "telling" that "even after moving out in January 2011, [the mother] took no steps to prevent [the father] from having contact with their children." The Court found Dr. Newberger's expert testimony "unconvincing," because it was not "based on an in-depth investigation, but rather on some office interviews and a review of hospital records that themselves did not disclose any grave medical or emotional issue."Accordingly, the court found that "[t]he evidence fell well short of supporting a finding of a grave risk of psychological harm." The First Circuit found no clear error among the foregoing findings of fact. 

The district court did not fully credit the mother's testimony, which it found to be "general and vague." The father denied the mother's allegations, and the mother offered scant evidence to corroborate her testimony.  As to potential sexual abuse of M.M. or R.M. by their half-brother, B.M., who was still a young child, the record did not establish that B.M. continued to exhibit sexually aggressive or inappropriate behavior, or that the father and his new wife were unwilling or unable to prevent any such incidents in the future. Thus, on the supported factual findings made by the district court, it could not say that there is a "grave risk" that B.M. would behave in sexually aggressive or inappropriate ways toward either M.M. or R.M. if they are returned to Canada.

The First Circuit found that the case involved competing "he said, she said" testimony from both parties, with little independent evidence corroborating the mother's testimony, and no clear acceptance by the district court of the mother's narrative over the father's. The district court thus effectively found that the mother did not bear her burden of proof in establishing that returning the children to Canada
would subject them to a "grave risk" of "physical or psychological harm." There was 
no error in that determination.

Marquez v Castillo, 2014 WL 5782812 (M.D.Fla.) [Mexico] [Federal & State Judicial Remedies]

In Marquez v Castillo, 2014 WL 5782812 (M.D.Fla.)  Petitioner commenced an action alleging that his wife, Respondent, Ayliem Orihuela Castillo, wrongfully removed their minor child, J.V.O., age three, from their residence in Mexico, and seeking return of the child.  According to the Petition the Petitioner and Respondent married in Cuba on or about April 6, 2012. Immediately after the marriage, Petitioner began the process of obtaining permission for  Respondent and J.V.O. to move to Mexico. Respondent and J.V.O. moved to Mexico to live with Petitioner together as a family on or about December 5, 2012.  Both Petitioner and Respondent intended for the family to live together in Mexico  permanently. Respondent sold her home in Cuba and requested that Petitioner file the appropriate papers for her to bring her other two children to also live in Mexico. Petitioner,  Respondent, and J.V.O. lived together in Petitioner's family home until October 2013.   On October 5, 2013, Respondent left Mexico with J.V.O. without warning, notice or permission from Petitioner. Respondent sent a text message to Petitioner indicating that she was on a plane to Cuba. She later sent another text message to Petitioner indicating that she was in Houston, Texas. Several days later, the parties began communicating by email. Eventually, Respondent provided a phone number and stated that she was living in Tampa, Florida, with her uncle.

Respondent would not provide Petitioner with the address of her residence in the United  States. From January 2014 through September 2014, Petitioner had not seen, spoken to, or  received substantive information regarding J.V.O.   Petitioner was the Child's natural father. He was born in Mexico,  lived in Mexico for his  entire life, and was a Mexican citizen. Respondent was the Child's natural mother. Respondent was 
born in Cuba and was a Cuban citizen. Respondent lived in Cuba until she married Petitioner  and established domicile in Mexico. Her current address was believed to be in Tampa, Florida, and law enforcement provided an address where the U.S. Marshals Service could serve her with  process. Respondent had immediate and extended family in Cuba, including her parents and two minor children-one of whom lived with his father and the other lived with a grandparent.  J.V.O. spent ten months in Mexico living with Petitioner and Respondent prior to arriving in  the United States. 

In light of the evidence in the Amended Verified Petition, it appeared to the court that Mexico was the likely habitual country of residence of J.V.O. The district court observed that ICARA authorizes a court to "take or cause to  be taken measures under Federal or State law, as appropriate, to protect the well-being of the  child involved or to prevent the child's further removal or concealment before the final  disposition of the petition."42 U.S.C. § 11604(a). Such relief is analogous to a temporary restraining order.  Therefore, a  petitioner must show that: 1. There is a substantial likelihood that the moving party will prevail on the  merits;  2. The moving party will suffer irreparable injury if the injunction is not  granted;  3. The threatened injury to the moving party outweighs the threatened harm the  proposed injunction may cause the opposing party; and  4. The injunction, if issued, would not be adverse to the public interest.  The district court found that based on the allegations in the Amended Verified Petition all of these elements were present and that a provisional remedy was appropriate.

The court directed that the United States Marshals to serve the Respondent, with  the Petition, Summons, and  Order; seize and impound any and all travel documents of both the Respondent and  J.V.O, including but not limited to any and all passports, birth certificates,  travel visas, Green Cards, social security cards or similar documents that may  be used to secure duplicate passports; and deliver such travel documents to the Clerk of the Court. In the alternative to delivering the travel documents to the U.S. Marshal the Respondent could appear before the Court with her travel  documents to show cause why the  Court should not seize and impound the travel  documents. The court directed that Respondent may not remove J.V.O., nor allow any other person to remove J.V.O.  from the jurisdiction of the Middle District of Florida pending a Final  Evidentiary Hearing on Petitioner's Petition for Return of J.V.O. to Mexico or  until further order of the Court. The court set the matter down for a hearing and directed that Petitioner may appear at the Final Evidentiary  Hearing via Contemporaneous Transmission from Remote Location.