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Monday, October 10, 2016

Guevara v Soto, 2016 WL 4921546 (E.D. Tenn., 2016) [Mexico] [Federal & State Judicial Remedies] [Enforcement of Judgment for Return]

            In Guevara v Soto, 2016 WL 4921546 (E.D. Tenn., 2016)  on April 15, 2016, the Chief District Judge granted the Plaintiff’s Petition for Return of his Child to Mexico. In the Memorandum  the Chief District Judge stated, “The parties are to decide among themselves the means and manner of the child’s return to Mexico.” The parties were unable to decide among themselves the means and the manner of the child’s return to Mexico, and the issue was referred a Magistrate who, after  a telephonic hearing, orally ordered the Respondent to transport the child to La Luz, Michoacan, Mexico, by May 16, 2016. The Petitioner filed an emergency Petition alleging the Respondent did not comply with the order. He requested, inter alia, that a Warrant of Arrest issue to bring the child and the Respondent into Court and that the Court order the child to be delivered immediately to the Petitioner in the United States so that the child may be transported to La Luz, Michoacan, Mexico. After a hearing the Court certified the following factual findings:  On April 15, 2016, the Chief District Judge ordered the Respondent to return the child to Mexico, the country of the child’s habitual residence. Subsequently, on May 2, 2016, the undersigned verbally ordered the Respondent to transport the child to La Luz, Michoacan, Mexico, by May 16, 2016. Since the trial in this matter, the Petitioner maintained regular contact with the child using the Respondent’s cellular telephone. However, on May 2, 2016, when the Respondent attempted to contact the child, the cellular telephone would not ring. On May 16, 2016, the date the child was to be returned to La Luz, Mexico, the Petitioner visited Respondent’s grandparents, where Respondent previously lived, but the child and the Respondent were not there. The Petitioner made approximately four or five trips to La Luz, Mexico but has been able to locate the child. 

         The Court found that the Respondent failed to comply with the  Order, which ordered the Respondent to return the child to La Luz, Mexico, by May 16, 2016. The Court found no reason to reopen the case for the issuance of provisional remedies requested in the Emergency Petition because federal procedural and state substantive laws supported Petitioner’s requested relief.  Instead it found that the Respondent had violated the Chief District Judge’s Order and its Order and Recommended that the Chief District Judge issue a show cause order to Respondent to appear at a date certain before the District Judge to show cause why she should not be held in contempt for failing to obey the Court’s Orders. It also recommended pursuant to Federal Rules of Civil Procedure 70 that  “the Clerk of Court issue a writ of attachment to direct the United States Marshals Service to attach the child and deliver the child to the Tennessee Department of Human Services for temporary placement. The Tennessee Department of Human Services shall make the appropriate arrangements with the U.S. Central Authority for the child’s return to Mexico or to Petitioner. The Tennessee Department of Human Services shall coordinate with Petitioner’s counsel and the U.S. Central Authority to effectuate a smooth transfer of the child to Petitioner or to Mexico at an appropriate border station.” It also recommended that the child’s name be placed in the Children’s Passport Issuance Alert Program so that the Petitioner may be alerted if someone applies for the child’s passport.

Best v Tamplin, 2016 WL 5402717 (W.D. Penn., 2016)[Bermuda] [Attorney’s Fees & Costs]

In Best v Tamplin, 2016 WL 5402717 (W.D. Penn., 2016) Petitioner Joseph E. Best, Jr. sought attorney’s fees  and costs pursuant to 22 U.S.C. § 9001 (formerly 42 U.S.C. § 11601) and 22 U.S.C. § 9007(b)(3) (formerly 42 U.S.C. § 11607(b)(3)) after his petition for an order compelling the return of his minor children to Bermuda was granted. Respondent challenged the  motion on the grounds that the custody arrangement governing the children and her removal of them to Erie was still under review by the Supreme Court of Bermuda and therefore an order in favor of petitioner could prove to be prejudicial to her rights in that forum. Consequently, from her perspective awarding attorney’s fees and costs ‘would be clearly inappropriate‘ under 22 U.S.C. § 9007(b)(3). The district court held that this argument had no application to the motion and the court already granted petitioner relief under the Hague Convention. Therefore, respondent failed to show it ‘would be clearly inappropriate‘ to award necessary fees and expenses.

         The district court held that Respondent’s violation of the statute virtually triggers an award of reasonable attorney’s fees and costs under 22 U.S.C. § 9007(b)(3), unless respondent establishes that they ‘would be clearly inappropriate.‘ The lodestar approach is the appropriate method for this court to use in determining the amount of reasonable attorney’s fees that should be awarded to the prevailing party. Distler v. Dislter, 26 F. Supp.2d 723, 727 (D.N.J. 1998). Petitioner’s attorney sought $199.72 per hour. The court found this hourly rate to be reasonable. She documented 102.5 hours, which when multiplied by the reasonable hourly rate of $199.72 produced a total of $20,471.30. Respondent  failed to challenge petitioner’s request or provide specific reasons as to why an award of this amount would be unreasonable or ‘clearly inappropriate.‘ Accordingly, petitioner’s request for attorney’s fees was reasonable and was approved. Petitioner also sought reimbursement of $2,036.88 in airfare, hotel, and car rental costs. Under 22 U.S.C. § 9007(b)(3), petitioner is entitled to these costs as it was necessary for him (1) to fly to the United States, (2) stay 2 nights in order to attend the hearing, and (3) return with his children to Bermuda. Federal courts routinely have awarded transportation and lodging costs to attend court hearings. See, e.g., Paulus v. Cordero, 2013 U.S. Dist. LEXIS 20198 (M.D. Pa. 2013) (ordering reimbursement of $555.80 for airfare, $619.50 for bus fare, and $122.10 for lodging expenses); Distler, 26 F. Supp. 2d at 728 (awarding $2,422.00 for round trip flight and minor’s airfare for return to his habitual residence) (citing Freier v. Freier, 985 F. Supp. 710, 714 (E.D. Mich. 1997)). Petitioner  provided sufficient documentation regarding these expenses and respondent failed to present a persuasive argument suggesting that an award of actual airfare, lodging, and transportation costs would be ‘clearly inappropriate.‘ Accordingly, she was ordered to pay $2,036.88 for his reasonable and necessary costs.   Petitioner’s request for $1,407.26, which was charged to petitioner by counsel as actual out of pocket costs also was also approved as necessary costs. However, $250.00 requested for petitioner’s food and miscellaneous costs while in Erie on August 31, 2015, and September 1, 2015, was denied as he would have had to eat and incur similar sundry expenses even in the absence of the hearing.


Fernandez v Bailey, 2016 WL 5149429 (M.D., FL ., 2016) [Panama] [Well-settled] [Petition denied][ testify via video transmission][in camera interview]

In Fernandez v Bailey, 2016 WL 5149429 (M.D., FL ., 2016) the district court denied Petitioner Roque Jacinto Fernandez’s Petition for Return of his Children to Panama. Petitioner, a Panamanian citizen, and Respondent an American citizen working in Panama, were involved in a romantic relationship. Respondent gave birth to the couple’s twin sons, C.R.F.B. and R.J.F.B., on August 18, 2008. Although Respondent and Petitioner never married, Petitioner’s name was on the children’s birth certificates. In May of 2009, Respondent left Panama with the children and moved to Missouri without Petitioner’s consent. On May 13, 2010, Petitioner filed his first petition under the Hague Convention, seeking the return of the children to Panama. The District Court ordered that Respondent return the children to Panama in September of 2010. 2010 WL 3522134, at *3 (E.D. Mo. Sept. 1, 2010), modified, 2010 WL 5399220 (E.D. Mo. Dec. 23, 2010). As a result of a prior felony conviction he received while living in the United States as a juvenile, Petitioner was unable to obtain a visa and attend the 2010 hearing in person. Pursuant to the Missouri court’s order, Respondent returned to Panama with the children. In Panama, Petitioner initiated custody proceedings and criminal charges against Respondent for the previous removal of the children. Pursuant to the ongoing custody proceedings, Petitioner had visitation rights to visit with the children every other weekend. Because of the contentious relationship between the parents, the Panamanian court designated a local children’s police station as the drop-off and pick-up location for these visits. On February 2, 2014, Respondent and the children flew from Panama to Tampa, Florida. Petitioner was unaware that Respondent and the children had moved to Florida. Before learning that the children were in the United States, and in late January of 2015, the Panamanian immigration authorities informed Petitioner that the children had left Panama nearly a year earlier on February 2, 2014. Petitioner then filed a Hague Convention application in late February of 2015. The United States Department of State provided information regarding the location of the children to Petitioner, eventually disclosing the children’s current location in Tampa, Florida. On August 24, 2016, Petitioner filed his Verified Petition for Return of Children to Panama 

        The district court found that the petitioner established a prima facie case for return, and found that respondent did not establish the grave risk of harm defense nor the wishes of the child defense. However,  it found that the children were wrongfully removed more than one year before the petition and that the children we is now settled in their new home. Hague Convention, art. 12. To fall under this exception, “the child must have significant connections demonstrating a secure, stable, and permanent life in his or her new environment.” Alcala v. Hernandez, 826 F.3d 161, 170 (4th Cir. 2016) It found that during their time in Florida, the children resided in two locations, both in the Tampa Bay area. Both residences were in  the same general area. The children  built relationships with Respondent’s family members since their arrival in the United States. Although the distance between the children and these relatives prevented daily interaction, the Court found that the children built a meaningful connection with their extended family while living in Florida. Since enrolling in their current school in Tampa in April of 2015, the children  attended consistently and earned all satisfactory or excellent marks on their report cards.  The elementary school gave the children awards for good behavior and citizenship. The children made friends and participated in extracurricular activities. While living in St. Petersburg, they played in a local t-ball league. Later, at the children’s request, Respondent registered them to play on a club soccer team, for which they travel with their teammates and play competitively. Last summer, Respondent enrolled the children in a Christian summer camp, where the children participated in adventurous activities like rock-climbing and archery. Respondent was an American citizen working in a well-paying job, which Respondent testified partially motivated her move from Panama to Florida. She had been steadily employed since her arrival and has sufficient financial resources to keep a live-in nanny to help with child-care. The Court found that Respondent had  a stable career and adequately provides for the children. The Court was not persuaded that Respondent used the concealment tactics alleged by Petitioner. Regardless, if they were used, the Court found  that these tactics had not prevented the children from forming a permanent and stable connection to their new environment. The children attended the same school for over a year, were enrolled in school and extracurricular activities in their own names, and had lived in only two homes in the Tampa Bay area since their arrival from Panama. The children were thriving in Florida. The Court believed that the children’s interest in settlement  outweighed the other interests that would be served by returning the children to Panama. The Court was deeply disturbed by Respondent’s actions. This was the second time Respondent has removed the children from Panama without Petitioner’s consent. Because Petitioner had been unable to secure a visa to attend the 2010 Hague Convention hearing because of his prior conviction, Respondent likely knew that Petitioner could not travel to the United States to search for the children or participate in person if future custody proceedings were initiated here. While preventing this type of forum-shopping by parents was a major motivation for the enactment of the Hague Convention, the interest in discouraging wrongful removals like that perpetrated by Respondent is not enforced at any cost under the Hague Convention. Lozano, 134 S. Ct. at 1235. The Court found that the children’s interest in settlement outweighed the other interests of the Hague convention because disruption of the stable and permanent connection the children established to their new home would be harmful.  The fact that Petitioner may have had a good reason to file his petition over a year after the children’s removal did not negate the harm that would come to the children if they were removed from their new environment. 

Sierra v Tapasco, 2016 WL 5402933 (S.D. Texas, 2016)[Mexico][Habitual Residence][Petition granted][Grave Risk of Harm Not Established]

In Sierra v Tapasco, 2016 WL 5402933 (S.D. Texas, 2016) Petitioner Jaimes and Respondent Nasly Ximena Riascos Tapasco (“Riascos”) met in Charlotte, North Carolina in 2006. They moved in together and on July 23, 2009, they had a child, K.J.R.  In 2011, one of their family arguments grew into a domestic dispute in which the police were called. Jaimes’s pleaded guilty to the charge.  Riascos was a Colombian national and Jaimes was a Mexican national. Although Riascos was in the United States on a visa, Jaimes was here illegally. AS  a result of his arrest for domestic violence he departed the country voluntarily, leaving open the possibility of returning to the United States legally in the future.  Riascos agreed to allow K.J.R. to return to Mexico with Jaimes and executed a notarized travel authorization to this end. The parties disagreed as to whether K.J.R.’s move to Mexico was intended to be temporary or permanent.  Riascos testified that she returned to Mexico in July 2014 because of Jaimes threats to keep the child from her  and to celebrate K.J.R.’s birthday.  Riascos alleged that although she did not tell Jaimes she was coming to Mexico for K.J.R.’s birthday, she did notify him once she arrived.. She testified that after her arrival she went to Jaimes’s home with his sister because she was afraid to go alone on account of his recent threats. When they arrived, Jaimes allegedly began verbally and physically assaulting Riascos in front of his sister and daughter, throwing K.J.R. onto the bed during the altercation. Riascos testified that it was only after enduring this abuse and hearing how unhappy her daughter was that she decided to leave Mexico with K.J.R. immediately..  According to Jaimes, he was not aware that Riascos was in Mexico on the eve of his daughter’s birthday and he never saw her. He testified that he slept alone at his home and early the next morning his sister called to tell him that K.J.R. was gone.. Jaimes immediately notified the authorities who began a search for the girl, but it was not until November that he received official confirmation that she was residing in Houston, Texas with Riascos. 
        The district court found that Jaimes and Riascos shared a mutual intent that the United States be K.J.R.’s habitual residence for the first three years of her life. They lived here together as a family with no intention of leaving until Jaimes was faced with immigration difficulties.  The question was whether the parties had shared intent for K.J.R. to abandon her habitual residence here and establish a new one in Mexico when she left the United States with her father in October 2012. The Court observed that whether the parties thought that Jaimes might one day return to the United States did not mean that the United States remained the child’s habitual residence. Norinder v. Fuentes, 657 F.3d 526, 534 (7th Cir. 2011)  Because parents will often disagree about what their shared intentions were, once litigation is underway, courts must take account of the parents’ actions as well as what they say. In such cases, context, rather than specific periods of time spent in a particular location, is the key to the concept of habitual residence. Berezowsky, 765 F.3d at 467. When parties argue that their intent was to eventually return rather than to establish a new residence, courts will look to the circumstances of the family’s move to assess parental intent. Acts of permanence such as selling cars, belongings, and homes, as well as the type of belongings brought to the new residence, often indicate the parties’ intention to make a permanent move. 

The record indicated that K.J.R. and Jaimes’s move to Mexico was not temporary. Jaimes signed over his tax refunds and bank accounts in America so that Riascos could access the funds after he left; he signed a voluntary immigration departure form, purchased one-way tickets to Mexico City, obtained a written release from Riascos to take the child, and departed with K.J.R. Soon after, he rented and established a home for the family.  Although she herself never fully moved to Mexico, up until six months before the abduction Riascos regularly visited K.J.R. and Jaimes for extended periods of time.. During those visits, the three of them lived together under a single roof as a family. K.J.R. never returned to America with her mother after any of her visits. K.J.R.’s bedroom in Mexico was full of all of her belongings, many of which Respondent brought to her there. Furthermore, after K.J.R.’s fourth birthday, Riascos took steps to purchase the property Jaimes and K.J.R. were living in as an investment because it had another apartment attached that the family could rent out. Most importantly, K.J.R. was also enrolled in school in Mexico, which was slated to begin over a year after her fourth birthday. This was sufficient contextual evidence that the parties had a shared intent that Mexico was to be K.J.R.’s habitual residence. The court also found that the record discredited Riascos’s claims that the agreement was for K.J.R. to return to the United States after her fourth birthday. The record suggested that the parents did in fact “jointly develop the intention” that K.J.R. was to abandon her habitual residence in the United States and establish a new habitual residence in Mexico. The district court found that Jaimes established that Mexico was the habitual residence of the child. It then found that under Mexican Law of patria postes Petitioner had rights of custody and that he was exercising those rights at the time of the removal, thus establishing a prima facie case. 
The district court rejected the Respondents grave risk of harm defense. It observed that under Article 13(b), spousal abuse is only relevant if it seriously endangers the child. Souratgar v. Lee, 720 F.3d 96, 103–04 (2d Cir. 2013). There was no evidence that K.J.R. was targeted or at risk during the 2011 domestic violence incident, or that she even observed it.  Riascos’s speculation and the parties’ conflicting testimony was insufficient to meet the high threshold for a grave harm defense.  It noted that the exceptions to return are prospective, not retrospective. Sanchez v. R.G.L., 761 F.3d 495, 509 (5th Cir. 2014). As a result, past acts of domestic abuse or drug activity in the home are insufficient to show grave risk of harm. When the child observed parental abuse in the past, if the parents’ current living situation makes it unlikely that the child will do so again, there is no grave risk of harm. The Court, inter alia,  also rejected the argument that K.J.R. would be in grave danger if she was returned because Jaimes lived in one of the highest crime areas of the city. Living conditions marked by poverty, sociopolitical unrest, or community violence are insufficient to show grave risk of harm or intolerable situation.