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Friday, January 30, 2015

Mendez v May, 2015 WL 143965 (D. Mass., 2015) [Argentina] [Habitual Residence] [Grave Risk of Harm] [Petition granted]

In Mendez v May, 2015 WL 143965 (D. Mass., 2015) the district court granted  Federico Mendez’s petition for return of  C.F.F.M. to Argentina from Massachusetts.  Mr. Mendez was born and raised in Argentina. He was a citizen of Argentina. Ms. May, the respondent, was  a United States citizen and a permanent resident of Argentina. They settled in Buenos Aires, Argentina in 2006.  C.F.F.M. was born in Buenos Aires on December 3, 2007. The birth certificate listed Ms. May and Mr. Mendez as the child’s parents. Ms. May and Mr. Mendez lived with the child in an apartment on Peru Street from C.F.F.M.’s birth until 2009. The child was a citizen of both Argentina and the United States and held passports from both countries.  On March 12, 2008, Ms. May and Mr. Mendez executed a travel authorization that allowed either parent to travel internationally with the child. This authorization allowed the child to leave the country with only one parent, with the authorization attesting to the consent of the other parent. This travel authorization was open-ended. It was effective until the child turned eighteen.  Ms. May and Mr. Mendez ended their romantic relationship in the first half of 2009. After the relationship ended, Ms. May and the child continued to reside in the Peru Street apartment, while Mr. Mendez resided elsewhere in Buenos Aires.  On July 1, 2009, the parties, after a mediation, reached an agreement on child custody and support issues. The 2009 agreement provided, in part, that the child would reside with Ms. May and that Mr. Mendez would have weekly visitation during which he would pick the child up on Thursday evenings and return him on Sunday evenings. The agreement allowed Ms. May to travel to the United States for up to fifteen days during the Argentine winter and for up to forty-five days during the Argentine summer. The 2009 agreement required Mr. Mendez to grant travel authorizations as necessary to permit Ms. May to travel out of Argentina pursuant to the agreement. The child attended the same school in Argentina from 2010 through the end of the Argentine school year in December 2013. 

In November of 2011, an altercation occurred. The child was present for this altercation. Ms. May testified that, during the argument, Mr. Mendez attempted to push her out of his car while it was moving. Mr. Mendez denied doing this and testified that Ms. May tried to jump out of the moving car with the child.  In February 2011, Mr. Mendez revoked the 2008 travel authorization that allowed the child to leave Argentina with Ms. May.  Thereafter, Mr. Mendez and Ms. May executed trip-specific authorizations for each time Ms. May traveled abroad with the child. In December 2012, Mr. Mendez and Ms. May executed a new agreement regulating their relationship as parents.  Under the 2012 agreement, Ms. May maintained custody of the child.  The 2012 agreement, however, made two reductions in Mr. Mendez’s visitation schedule. The 2012 agreement allowed Ms. May to travel abroad with the child up to forty-five days each year and required Mr. Mendez to grant his consent as needed for these trips on a trip-by-trip basis. In the spring of 2013, Ms. May began to consider leaving Argentina to pursue work in other countries due to the poor economy and decline in tourism in Argentina.  At this time, Ms. May discussed with Mr. Mendez her interest in relocating outside of Argentina with the child.  In an August 13, 2013 Skype conversation, Ms. May and Mr. Mendez discussed relocating, and the parties discussed that Ms. May “just got a job” and was “moving in 3 weeks.”  No agreement was reached at this time. They continued discussing the issue, however, meeting in person at least three times at restaurants in August and September before Ms. May left Argentina in the beginning of September. These meetings culminated in a meeting in the beginning of September at which Mr. Mendez said C.F.F.M. could move to Boston after the end of the Argentinean school year in December. In this meeting, Ms. May and Mr. Mendez also discussed the child spending February, April, and summer vacations (on the American school calendar) with Mr. Mendez.. At this meeting in early September, Ms. May and Mr. Mendez told C.F.F.M. of these plans. Both Mr. Mendez and Ms. May understood at this time that the child could not leave the country without Mr. Mendez’s written permission or a court order.

        After these discussions, Ms. May left Argentina on September 9th or 10th to begin her job in Boston. During the period after Ms. May left Argentina until the end of October, the child resided with Ms. May’s mother, who cared for the child. In an email dated September 30, 2013, Ms. May asked Mr. Mendez if he would “be ok with [the child] flying to the U.S. with me after his birthday (before the holidays)?” Mr. Mendez responded that he “would prefer if you can wait until he [the child] moves to you by the end of the year,” and stated that he “really would like to spend the most amount of time with him [the child] before he moves.”  After exchanging several emails which addressed this issue, Mr. Mendez wrote that he needed to consider different arrangements for the child to travel to the United States, but “[f]or now, what is sure is January the 8th,” indicating a date on which he would allow the child to travel. However, Mr. Mendez did not provide the required authorization despite his statement. In a Skype conversation on October 23, 2013, Mr. Mendez acknowledged his prior statements that the child could relocate to the United States, writing to Ms. May “[you] are still afraid ... [that Mr. Mendez had not decided about relocation]. I have already made my mind ... and comunicated [sic][it] to you on [sic] the restaurant that time.”. The “restaurant” was a reference to the meeting in September when Mr. Mendez stated that the child could relocate to the United States with Ms. May.  In this same conversation, Mr. Mendez also made clear that there were still unresolved issues relating to relocation, telling Ms. May that “we will have to agree on this somehow.”When Ms. May asked him if he would sign a document relating to the child’s relocation, Mr. Mendez responded, “I do not know ... what document [do] you want me to sign?” With these statements and others, Mr. Mendez was using the fact that a signed authorization was required for the child to leave Argentina as leverage in his negotiations with Ms. May. He was also withholding his agreement by not providing the travel authorization.  There were no further cooperative conversations towards resolving the issues that divided the parties after the October 23, 2013 email.

       After October 23, 2013, Mr. Mendez initiated several proceedings. These included numerous criminal proceedings for denial of visitation against Ms. May and Ms. May’s mother. He also filed an emergency civil proceeding to obtain temporary custody of the child while Ms. May was in the United States. These filings contained numerous false statements, including that Ms. May “went to live in the United States of America, without any notice” and “does not give her child any type of support or assistance.” Ms. May returned to Argentina on November 28, 2013, and remained there until December 16, 2013.  In response to the proceeding initiated by Mr. Mendez to obtain temporary custody, he and Ms. May attended a mediation on December 11 or 12, 2013.  At this point, Ms. May initiated a proceeding to obtain authorization to travel abroad for forty-five days pursuant to the 2012 agreement.  On November 28, 2013, due to the various proceedings the parties had initiated, the judge presiding over the parties’ family law matters prohibited the child from leaving Argentina and ordered immigration authorities in Argentina to prevent him from being taken from the country. Ms. May was aware of that order by December. At some point in late December or early January, Ms. May returned to the United States. She returned to Argentina again on February 9, 2014. The civil judge presiding over the parties’ family law matters held a hearing on February 10, 2014 to address Mr. Mendez’s temporary custody proceeding. At this hearing, the presiding judge also addressed Ms. May’s filing to obtain the travel authorization. At the hearing, the judge informed the parties that, if they could not come to agreement, he would make a decision before Ms. May’s scheduled departure from Argentina on February 15, 2014. The parties did meet in a restaurant after the hearing, although they could not reach agreement on the travel authorization or any other matter., Ms. May left Buenos Aires with the child and her mother on February 14, 2014. Ms. May denied having received a decision from the civil judge prior to leaving Buenos Aires on February 14th.   On February 14th, the civil judge released a decision denying Ms. May’s request for travel authorization. The Court found that Ms. May knew of the Argentine court’s Order denying her request for travel authorization before she left Buenos Aires. Ms. May went to Brazil, and then Paraguay and flew out of Asuncion, Paraguay to the United States on February 16, 2014. At the time Ms. May left Argentina, she was aware that she needed a signed writing from Mr. Mendez or a court order to leave the country with the child. She was also aware of the court order of November 28th, barring the child’s exit from the country. Mr. Mendez learned that the child was no longer in Argentina when the child did not show up for his first day of school during the first week of March. Mr. Mendez discovered Ms. May’s work phone number and called Ms. May at her office in Boston. At that time, he confirmed that the child was in Boston. Upon learning that the child had been removed from Argentina, Mr. Mendez, on April 11, 2014, made a filing with the central authority in Argentina to pursue remedies under the Hague Convention. He also filed a criminal complaint for child abduction on March 7, 2014 with the Argentine police. That offense carries a minimum mandatory sentence of five years and a maximum sentence of fifteen years, if convicted. Since February 2014, the child resided in Roslindale, a neighborhood in Boston, and attended public school in Boston.
On July 15, 2014, the Argentine civil judge who presided over Ms. May and Mr. Mendez’s family court proceedings issued an opinion that the child was wrongfully removed from Argentina under the Hague Convention and that the child’s habitual residence at the time of the removal was Argentina. 

It was undisputed that Argentina was the habitual residence of the child between his birth until September 2013. The child was born in Buenos Aires and lived in the city his entire life, initially with both parents and later with his mother, subject to visitation by his father. After September and up to and including the time of removal, Mr. Mendez established Argentina as the habitual residence of the child for at least two reasons. First, changing the child’s habitual residence required both parents to form a shared intent to abandon Argentina and to adopt the United States as the child’s habitual residence. Although the parties came close to forming such a shared intent, they did not actually do so. Mr. Mendez stated his agreement to the child moving to the United States. As a matter of fact, however, he had not agreed, yet, and he had not yet formed the intent to change the child’s habitual residence. Both Ms. May and Mr. Mendez each knew that the child could not move, or even leave Argentina, without a signed writing from Mr. Mendez. The parties’ discussions (orally and in writing) were replete with references to the necessary writing. Until Mr. Mendez signed the necessary authorization to remove the child from Argentina, the agreement, on the present facts, was not complete. Put another way, while Mr. Mendez was saying “yes,” he was not taking the step necessary to give meaning to the statement. He was not taking that last step because he had not formed the intent to actually have the child abandon Argentina as the child’s habitual residence and make the United States the new habitual residence.   Second, even if Mr. Mendez and Ms. May had formed a shared intent for the child to abandon Argentina as his habitual residence and adopt the United States as the child’s habitual residence effective January 8, 2014, in light of the revocation of the agreement before the child left Argentina, the law, in such circumstances, does not recognize a change in the child’s habitual residence. Although the analysis of habitual residence begins with the issue of shared parental intent, Sanchez–Londoño, 752 F.3d at 540, shared intent does not completely resolve the question. The First Circuit has noted “ ‘a child can lose its habitual attachment to a place even without a parent’s consent ... if the objective facts point unequivocally to a person’s ordinary or habitual residence being in a particular place.’”Darin, 746 F.3d at 11–12 (quoting Mozes, 239 F.3d at 1081). The Ninth Circuit, in Mozes v. Mozes, a case cited extensively by the First Circuit, held that “[w]hile the decision to alter a child’s habitual residence depends on the settled intention of the parents, they cannot accomplish this transformation by wishful thinking alone .... it requires an actual ‘change in geography.’ ”Mozes, 239 F.3d at 1078 (quoting Friedrich v. Friedrich, 983 F.2d 1396, 1402 (6th Cir.1993)). No such change occurred here. The parties  cited no case—and the Court was aware of no case—where the First Circuit has found parental intent to be sufficient to change a child’s habitual residence without the child’s presence in the new country prior to removal or retention.

      The district court pointed out that the Supreme Court in Abbott v. Abbott, 560 U.S. 1, 15, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010), held that a ne exeat right—the right of a parent to consent before a child is removed from the country—is a right of custody as that term is defined by the Hague Convention. This holding in Abbott disposed of the right of custody issue in this case. Article 264 of the Argentinean Civil Code states that in the case of a child born out of wedlock who is acknowledged by both parents “the express consent of both parents is required for the following acts: ... [to][a]uthorize the child to leave the Republic.” This is so regardless of the vesting of guardianship in one parent. Both parties’ experts testified that, under Argentinean law, a child born out of wedlock who has been acknowledged by his or her father cannot relocate outside of Argentina without the father’s permission or a court order.
 Mr. Mendez possessed the power to prevent the child from permanently residing outside of Argentina, and, therefore, he had the requisite custody rights to establish wrongful removal under the Hague Convention. The district court observed that courts “liberally find ‘exercise’ whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.”Friedrich, 78 F.3d at 1065. Mr. Mendez was actively involved in the upbringing of the child, maintaining regular visitation with the child and being involved with his schooling, health, and general well-being. In addition, he participated actively in the discussions in 2013 regarding relocation and consistently and actively asserted his rights in those discussions. No more is needed to establish exercise of custody rights under the Hague Convention.

Ms. May argued that Mr. Mendez agreed to permit the child to relocate in a meeting in the restaurant before Ms. May left for Boston and that consent, once given, may not be revoked. The evidence did establish that Mr. Mendez said in September that the child could relocate in January. But the parties did not reach agreement—Mr. Mendez had neither signed the necessary travel authorization nor taken the child from Argentina to the United States.  Mr. Mendez’s consent was incomplete in the absence of either of those two actions.  Put another way, Mr. Mendez did not actually consent. For these reasons, the Court found that Ms. May had not established by a preponderance of the evidence that Mr. Mendez consented to the removal of the child to relocate to the United States.

         Ms. May argued that returning the child to Argentina presented a grave risk of psychological harm and would place the child in an intolerable situation. She argued that because of the criminal child abduction complaint filed by Mr. Mendez against her in Argentina—which carries a penalty of imprisonment for five to fifteen years—there was a grave risk that she would be separated from the child for an extended period of time. She supported this argument with the testimony of Dr. Scott Andrews, a child psychologist who offered his opinion that severing the child’s relationships with Ms. May, Ms. May’s fiancé, and Ms. May’s mother would expose the child to a grave risk of psychological harm. The court found that Ms. May did not establish that she was unable to return to the country. There was no evidence  that she has been formally charged with a criminal offense related to removing the child from Argentina, as distinct from Mr. Mendez lodging a complaint. Mr. Mendez’s expert provided uncontroverted testimony that, in her many years of experience with Hague Convention proceedings in Argentina, she was unaware of any parent who had been actually prosecuted for kidnapping or child abduction after removing a child from Argentina. 

Ms. May argued that, if returned, the child would be placed in an intolerable situation. She argued that the child will suffer racist treatment if returned to Argentina and testified about several comments and situations occurring in Argentina that displayed racial bigotry or insensitivity, such as schoolmate telling the child that he could not go to a birthday party because he was black and the use of “blackface” in public school plays. The Court held that a small number of unrelated, nonviolent incidents of bigoted speech or behavior—several of which were attributed to small children—does not rise to the level of an intolerable situation, considering that the exceptions to return are to be narrowly construed. Nnothing in the record suggested that these incidents were of such significance to Ms. May that they caused her to remove the child from Argentina for that reason.

          Ms. May argued that an intolerable situation would arise from the media coverage of this case in Argentina. There was testimony that Mr. Mendez petitioned the Argentine government to provide financial assistance in prosecuting his Hague petition. Mr. Mendez testified that his online petition was widely circulated, and, in furtherance of his petition, he gave three interviews to television journalists and three interviews to print journalists. The evidence also suggested social media or internet interest in this case in Argentina. The court held that this evidence failed to establish an intolerable situation. Nothing about the evidence suggested that the public attention would continue after the child’s return or that any such media attention would cause any adverse consequences to the child directly or indirectly. Ms. May herself placed the child in the public eye in a June 2012 article she authored entitled “Zen and the Art of Being Trapped in a Foreign Country,” which appeared in an online magazine and described some of the travails of the parties’ relationship. 

Ms. May argued that, if returned, the child would placed in an intolerable situation due to Mr. Mendez’s prior verbal abuse and harassment of Ms. May. There court found that there were neither allegations of, nor evidence of, verbal or physical abuse of the child by Mr. Mendez. There was some evidence of Mr. Mendez mistreating Ms. May with physical abuse on two occasions and verbal abuse on other occasions, with some of the verbal abuse and one instance of physical abuse occurring in front of the child. The physical abuse alleged occurred twice over the course of seven years, with both incidents occurring more than two years prior to removal. The court noted that at this point, occasions for interaction of the parties in front of the child are limited, and thus the opportunities for harm to come to the child by observing abuse of Ms. May are similarly limited. Ms. May did not establish that return would place the child in an intolerable situation. The Court found that Ms. May has not established by clear and convincing evidence that the child would be exposed to a grave risk of psychological harm or an intolerable situation if returned to Argentina.

Pliego v Hayes, 2015 WL 269207 (W.D.Ky.) [Turkey][Habitual Residence] [Grave Risk of Harm] [Petition granted]

In Pliego v Hayes, 2015 WL 269207 (W.D.Ky.)   Amanda Leigh Hayes and Mario Luis Gonzalez Pliego were the parents of a  minor child who was the subject of the litigation.  In 2005, Pliego became a Spanish diplomat, and in 2007, Hayes moved to Madrid, Spain, where the parties established a civil union.The parties were married in 2009 in Barcelona, Spain, and were posted in Indonesia beginning August 1, 2009. Hayes became pregnant in 2010. The parties agreed that Hayes would have the child in Kentucky to receive better medical care and be with her extended family.

         The child was born on March 4, 2011 in Kentucky; both parties were present for the birth. The parties applied for a Spanish passport and a Spanish diplomatic
passport for the child, both of which were granted. The child was a dual citizen of
the United States and of Spain. When the child was four weeks old and cleared to
fly, Hayes and the child returned to Indonesia, where they lived until the family
was posted in Ankara, Turkey. The child was currently 44 months old. The child was in Kentucky for the first month of his life, before returning to Indonesia in April
of 2011. The child was in Indonesia for four months, spending most of August of
2011 in Spain on vacation. The child returned to Indonesia and remained there
until June of 2012, with the exception of vacations to Australia, New Zealand,
Bali, Laos, Thailand, and Singapore. Aside from vacations, the child lived in
Indonesia for 15 months (excluding the one-month vacation to Spain, the child was
in Indonesia for 14 months). In July of 2012, the child moved to Turkey. The child
spent most of September of 2012 and May of 2013 on trips to Kentucky. With the
additional exception of two week-long trips to Spain, the child was in Turkey for
21 months (excluding the two trips to Kentucky, the child was in Turkey for 19

      Hayes and Pliego agreed that Hayes and the child would travel to Kentucky to
visit Hayes's family in April of 2014. Hayes and the child left Turkey on April 6, 2014, and planned to return on May 4, 2014. Pliego registered a letter with the Spanish Embassy authorizing his family's trip to the United States, informing the Embassy that they would return at the "end of April 2014/beginning of the month of May 2014. On April 26, 2014, after Hayes arrived in Kentucky, she told Pliego that she would not be returning and intended to keep the child with her in Kentucky. Hayes conceded that Pliego did not consent to the child remaining in Kentucky. Hayes filed for divorce, custody, and for an emergency restraining order in Christian County, Kentucky, while Pliego iled for divorce and custody in Spain.

Hayes testified that Pliego was abusive both to her and to the child, while Pliego denied the majority of such allegations. The district court observed that the  United States Supreme Court recognizes a psychotherapist-patient privilege. See  Jaffee v. Redmond, 518 U .S. 1, 9-10 (1996). Specifically, "confidential communications between a licensed psychotherapist and her patients in the course of diagnosis or treatment are protected from compelled disclosure...." The Court noted that the privilege could be waived, but declined to establish the parameters of waiver.  The Sixth Circuit has noted that "the issue of waiver of the psychotherapist-patient privilege has rarely been litigated in this circuit" and that "the precise standard of review for that issue is unclear." The Court found that Pliego waived his privilege by putting his mental health at issue. He denied bruising his wife or child during his testimony, and he called a psychiatrist to testify as to his mental health and propensity for violence. Thus, the Court considered statements made by both Hayes and Pliego in the course of their therapy sessions with Gerger.

The Court held it was bound by Sixth Circuit precedent. See  Robert, 507
F.3d 981 (6th Cir.2007) (holding that the district court should have focused
solely on the past experiences of the child, not the intentions of the parents, in
determining habitual residence). The Court must examine where, at the time of
removal, the child was present long enough to allow acclimatization, and where
this presence has a degree of settled purpose from the child's perspective. Thus, the Court helds that the child did not establish a habitual residence in Spain. Despite being born in Kentucky and possessing American citizenship, the child was only present in the United States for approximately three months total before his removal from Turkey. Thus, the United States was not the child's habitual residence. The travel logs showed that up until the time of his removal, the child lived in Turkey consistently for approximately 21 months. At the time of his removal,  the child was approximately 36 months old. All of his belongings were in his room in Turkey. Further, the child attended a playgroup, "Yapa," one or two times per week. Later, the child attended a preschool, Ankara English Preschool, between three and five mornings per week. The child frequently played in the park across the street. He attended playgroups with friends as well as weekly services at the Anglican Church.  Having a diplomat as a parent makes the child's situation somewhat unique: the child did not begin to learn Turkish, as his parents did not intend for him to stay there longer than Pliego's assignment in the country. Further, he was not a Turkish citizen, nor was he to apply for Turkish citizenship. However, the child moved to Turkey and remained there for nearly two years with the exception of travel and vacation. In determining habitual residence, the Court must "look backward in time."  Friedrich I, 983 F.2d at 1401. The child lived consistently in Turkey for the majority of the last two years of his short life. Looking at the factors articulated in Jenkins, the child engaged in social and academic activities in Turkey, as much as would reasonably be possible for a child of his age.  See 569 F.3d at 556. Further, his belongings were all in his room in Turkey. The child spent nearly two-thirds of his life before removal in Turkey; accordingly, the Court found that his presence there had a "degree of settled purpose." See  Robert, 507 F.3d at 992-93. Thus, the Court held that the child's habitual residence was Turkey, and that Pliego had satisfied this element of his prima facie case.

The court found that the  removal of the child was in breach of the petitioner's custody rights under the law of the country of habitual residence, and that the petitioner was exercising those rights at the time of the child's wrongful removal or retention.   Article 335 of the Turkish Civil Code regulates the general provisions of child custody in the country. Under the first paragraph of Article 335, "every minor child is under parental custody of his/her mother and father. Parental custody may not be removed from mother and father without a legal cause." As the father, he currently had custody of the child. It was clear from the evidence presented that he was exercising his custody rights. Because the Court determined that Pliego had custody rights and was exercising them at the time of removal, it held` that he has satisfied his prima facie case under ICARA.

        Hayes argued that the child would be in grave risk of harm if returned to Turkey. A child should not be returned to his or her habitual residence if "there is a grave risk that [the child's] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Simcox v..  Simcox, 511 F.3d 594, 604 (6th Cir.2007) (quoting 42 U.S.C. § 11603(e)(2)(A)). The respondent had to prove this defense by clear and convincing evidence.  Jensie, 2012 WL 5178168, at *1.

        Many of the allegations of abuse appeared to relate to Pliego's parenting methods and contributions. For example, Pliego's alleged distaste for feeding the child in the middle of the night was not relevant to the determination here. Additionally, Hayes described in detail Pliego's behavior in "force-feeding" the child. Pliego and his mother, Viyuela, both contested this description. Without corroboration,
the Court was unable to conclude that this behavior occurred, that it may occur
again, or even that it necessarily constituted abuse. Hayes did not present
evidence regarding the effect of the alleged abuse on the child. See  Walsh, 221
F.3d at 211 (noting the child's PTSD diagnosis);  Elyashiv, 353 F.Supp.2d at
398-400 (same). Compared to the magnitude of those situations where courts found a
grave risk of harm existed, these allegations do not satisfy Hayes's burden. See
e.g.,  Elyashiv, 353 F.Supp.2d at 398-400 (finding grave risk where father beat
the children once or twice a week, threatened to kill his son and wife with
weapons he kept in the house; children were diagnosed with PTSD and suicidal
thoughts);  Rodriguez, 33 F.Supp.2d at 459-60 (finding grave risk where child had
been whipped with belts, punched, and kicked, where the father threatened to kill
the children and kept a loaded gun).

    Hayes also testified that Pliego abused her. She described a marriage that
involved fighting, yelling, and heated arguments. Hayes testified that Pliego twice pushed her in the foyer of the Indonesian apartment while she was holding the child; the second time, she fell after being pushed. Hayes testified that the majority of the abuse occurred in front of the child. Further, Hayes testified that Pliego took her and the child's passports out of the house and said that he would "throw her out in the street like the dog you are," and that "if you ever mention leaving me with [the child]
again, I'll kill you in your sleep."These incidents, with a few exceptions noted
above and in the factual findings, were not corroborated by other evidence. While
it was not dispositive of the truth of her allegations, the Court noted that Hayes did not report the abuse to the authorities or present bruises to any medical personnel. While Hayes's testimony was generally credible, these events, while concerning, were not enough to constitute grave risk to the child. 

Hayes testified that on three occasions in Turkey in 2013 and 2014,
Pliego forced her to have anal sex against her will. In his testimony, Pliego
vehemently denied having anal sex or any nonconsensual sex with Hayes at any time. These allegations were not corroborated by other testimony, police reports, or medical reports. The Court found that Hayes has not satisfied her burden of proving by clear and convincing evidence that there will be a grave risk to the child were he to be returned to Turkey.

  The Court determined that the petition should be granted.


In re the Application of Stead v. Menduno, 2014 WL 7403282 (D. Colorado.) [New Zealand] [Grave Risk of Harm][Equitable Defenses] [Petition granted]

In re the Application of Stead v. Menduno, 2014 WL 7403282 (D. Colorado.) A.C.S. was born to petitioner, a New Zealand citizen, and respondent, a United States citizen, on October 21, 2011. Petitioner and respondent lived together during respondent’s pregnancy, but separated shortly after A.C.S.’s birth, after which time respondent served as A.C.S.’s primary caretaker. After petitioner and respondent separated in early 2012, petitioner provided approximately $200 per week in financial support for respondent and A.C.S. until approximately October 2012. After October 2012, petitioner ceased providing financial support and instead began caring for A.C.S. during much of the day so that respondent could work. In May 2013, respondent brought A.C.S. to the United States with petitioner’s consent so that A.C.S. could meet respondent’s family. Respondent bought a round-trip ticket with a return date of September 29, 2013. Before giving his consent to the overseas trip, petitioner demanded assurances that respondent would return to New Zealand with A.C.S. no later than September 2013. Respondent gave such assurances. Between May and September 2013, petitioner had no contact with A.C.S., though respondent remained in contact with petitioner’s family and provided periodic updates on their trip. On September 23, 2013, respondent informed petitioner’s mother that she and A.C.S. would not be returning to New Zealand as she originally promised. Subsequently, petitioner retained counsel in the United States and brought this action.

The Court found that A.C.S. habitually resided in New Zealand before respondent retained him in the United States and that respondent’s decision to remain in the United States violated petitioner’s custody rights under the laws of New Zealand. Petitioner was A.C.S.’s legal guardian under New Zealand law, both because he lived with respondent during the time between A.C.S.’s conception and his birth and because he was listed on A.C.S.’s birth certificate as the child’s father. One of a guardian’s custody rights under New Zealand law is the right to determine, “for or with the child, or helping the child to determine, questions about important matters affecting the child,” CCA § 16(1)(c), among them “changes to the child’s place of residence.”. Respondent’s unilateral decision to remain in the United States with A.C.S. notwithstanding the assurances she gave to petitioner that A.C.S. would return to New Zealand breached this right.  Respondent argued that petitioner abandoned his custody rights because he provided no financial support since at least November 2012 and because he did not contact A.C.S. after Respondent brought him to the United States. The Court finds that petitioner was exercising his custody rights at the time of the retention. Respondent  provided no evidence that petitioner forfeited his custodial rights under New Zealand law. With respect to petitioner’s actions after respondent and A.C.S. came to the United States, the Court found that petitioner’s failure to contact A.C.S. between May and September 2013 did not constitute the sort of “clear and unequivocal abandonment” required to find in respondent’s favor on this element of plaintiff’s prima facie case. Friedrich, 78 F.3d at 1066. Rather, petitioner exercised his rights of custody by receiving assurances from respondent that she and A.C.S. would return. After petitioner demanded and received such assurances, the Court could not find that petitioner’s failure to renew those assurances constituted a clear and unequivocal abandonment of his custody rights. The Court found that petitioner satisfied his prima facie case under the Convention.

The Court found that respondent had not met her burden of proving a grave risk to A.C.S. by clear and convincing evidence. Respondent testified at length as to A.C.S.’s temper, including multiple outbursts and bouts of extreme jealousy. However, respondent did not identify any instance where petitioner was physically or sexually abusive, either to her or A.C.S. The Court was unaware of any case where a court applied the grave risk exception solely based on testimony about petitioner’s general predisposition to anger.  

The Court also found that respondent could not meet her burden of establishing acquiescence by a preponderance of the evidence. After respondent informed petitioner’s mother that she intended to remain in the United States with A.C.S., petitioner filed an application with the New Zealand authorities to initiate proceedings under the Convention. The Court concluded that petitioner acted with reasonable diligence to secure A.C.S.’s return after discovering respondent’s intention to remain in the United States and cannot conclude that the five-week period between late September 2013, when petitioner learned through his mother that respondent intended to keep A.C.S. in the United States, and November 4, 2013, when he filed his application with the New Zealand Authorities, constituted acquiescence.

Respondent raised equitable defenses, including equitable estoppel, waiver, unclean hands, and “course of conduct.” The Court observed that the Third and Fourth Circuits have considered whether equitable defenses are permitted in a case brought under the Convention, and have both held that they are not. See Karpenko v. Leendertz, 619 F.3d 259, 265 (3d Cir.2010); see also Katona v. Kovacs, 148 F. App’x 158, 161 (4th Cir.2005).  The equitable doctrines invoked by respondent are not mentioned in the Convention and were therefore not properly brought as defenses to a petition for return of the child. 

At the hearing, petitioner indicated that they did not intend to seek attorneys’ fees, but did intend to seek costs, including the costs of travel, court filing fees, and deposition costs. Respondent argued that an award of any costs would be clearly inappropriate, both because respondent lacked any malicious intent in retaining A.C.S. in the United States and because any award of costs would put respondent in debt for the rest of her life. The Court found that an award of filing fees and deposition costs was inappropriate in this matter, given the petitioner’s pro bono representation and respondent’s relatively low salary, total savings of slightly over $2,000, the fact that respondent spent 80% of her income on housing, and the fact that most of her other expenses relate to providing for A.C.S. The Court did, however, find that an award of petitioner’s airfare to and from the hearing was appropriate.

Baker v. Baker, Not Reported in F.Supp.3d 2015 WL 249009 (2015) [United Kingdom] [Fed & State Jud Remedies]

In Baker v. Baker, Not Reported in F.Supp.3d 2015 WL 249009 (2015) the district court granted respondent David Baker’s (“Father”) Motion to Amend the Voluntary Return Order. On December 19, 2014, petitioner Lisa Jane Baker (“Mother”) filed her complaint. On December 23, 2014, the court issued a Show Cause Order, setting a hearing on January 6, 2015. At the hearing, the Father voluntarily agreed to return the children to the Mother in England. The parties had been working on a proposed voluntary return order and continued working on that order during the hearing. From the bench, the court ruled on the parties’ remaining disagreements, incorporating most of that proposed order in its ruling. On January 14, 2015, the Father filed a motion requesting that the voluntary return order be modified to reflect the following: Father will be accompanying the minor children on the flight to England.• The airport will now be the Manchester, England Airport, which is apparently 140 miles closer to Mother’s home than London’s Heathrow Airport. According to the Father, the Mother did not oppose these arrangements, but the Mother did request any modified order also include language such as “The Father will deliver the minor children to the Mother as soon as the minor children exit the international arrivals hall.” The Father objected to that language because it addressed the custody of the children, which the Father argued was outside this court’s jurisdiction under the Hague Convention on the Civil Aspect of International Child Abduction.

         The district court observed that the  cornerstone of the Hague Convention is the mandated return of the child to his or her circumstances prior to the abduction....”In this case, the status quo prior to the Father’s alleged “abduction,” was the return of the children to England because all parties—the Father, the Mother, and minor children—lived in England. Because the Father’s proposed modifications did not alter the return of the children to England, the court modified its previous order. The court’s previous order assumed the children would be flying unaccompanied because Father could not afford to fly the kids and him. Therefore, the court’s order stated that the children “shall be returned to [the Mother].” However, that language merely reflected the only option at the time: The Mother would receive the children because the Father was not accompanying them. In other words, the Mother was the only logical person to receive the children upon their arrival in England. The court stated that it did not intend to make findings concerning the minor children’s custody, whether in the United States or England. Additionally, the court’s previous order, as written, limited the Father’s ability to accompany the children to England. The original order directed the Father to take certain actions when dropping the kids at the airport for their return flight. For instance, the Father is to accompany the children to the gate, deliver the children’s United Kingdom passports to the check-in clerk, and wait until the plane has departed before leaving. The previous order’s language made it impossible for the Father to comply with the court’s order and accompany the children. The court could not enforce the status quo, as mandated by the Hague Convention, by denying the Father’s ability to accompany his children back to England. The status quo involved the entire family unit—the Father, the Mother, and the children—in England. In other words, the status quo was not the Mother and the children in England and the Father in the United States. The court amended its previous order because the status quo remained restored even with the modifications below and directed, inter alia, that the Father would accompany the children on the flights to Manchester, England.