Tuesday, May 9, 2017
Neumann v. Neumann, 2017 WL 1162926 (6th Cir., 2017)[Mexico][Change of Circumstances]
In Neumann v. Neumann, 2017 WL 1162926 (6th Cir., 2017) the district court ordered two children to be returned to Mexico after analyzing whether, under the terms of the Convention, returning them posed “a grave risk” of “expos[ing] [them] to physical or psychological harm or otherwise plac[ing] [them] in an intolerable situation.” The district court concluded that the return posed no such grave risk. Because JMN turned sixteen years old while this action was pending, the district court ordered Ms. Neumann to return only JSN and MKN to Mexico. The district court declined to order JSN and MKN into Mr. Neumann’s custody—just back to Mexico. The Sixth Circuit vacated the district court’s return order, and remanded for further proceedings consistent with the opinion.
On December 1, 2016, after oral arguments. Mr. Neumann’s counsel represented to the court that in November 2016—six months after the district court’s return order—Mr. Neumann returned indefinitely to Michigan after a job reassignment. Counsel also represented to the court that while Mr. Neumann’s stay in Michigan was indefinite, Mr. Neumann may be assigned to a job in India, too. Counsel further represented that if the court were to affirm the district court’s return order, Mr. Neumann would return to Mexico to receive the children. The children, Mr. Neumann, and Ms. Neumann were all in Michigan. Ms. Neumann and the children had been there for more than two years—since December 2014. Mr. Neumann had been there for about five months—since November 2016. When the district court ordered Ms. Neumann to return the children to Mexico, Mr. Neumann was residing and working in Mexico, potentially giving the Mexican court the jurisdiction over the custody dispute. Under those circumstances, the district court concluded that returning the children would not expose them to a grave risk of harm or of an intolerable situation. The Sixth Circuit observed that those circumstances changed substantially. Because of a stay pending appeal the return had not been carried out, and circumstances had changed materially. Neither parent resided in Mexico, and if the children were returned there, the Mexican court may no longer be able, practically or legally, to resolve the custody dispute between two American parents over their American children.
The Sixth Circuit held that district court did not clearly err when it found Mexico to be the country of habitual residence of JSN and MKN. When Ms. Neumann took them to the United States, JSN and MKN had been living in Mexico for nearly four years—from February 2011 to December 28, 2014. They were there because the husbands employer had transferred him to Mexico. That was long enough for JSN and MKN to acclimate to their new life. JSN and MKN attended the same school in Mexico for nearly four years. At the school, they made new friends and engaged in extracurricular activities like school plays and concerts. The Neumanns also planned to continue to live in Mexico until 2017—maybe longer. Given those settled ties to Mexico, the district court did not clearly err in concluding that Mexico was the children’s country of habitual residence. The district court therefore was bound to order Ms. Neumann to return the children back to Mexico, unless Ms. Neumann proved that, by clear and convincing evidence, returning the children to Mexico would expose the children to a grave risk of physical or psychological harm or an otherwise intolerable situation The district court rejected that argument and ordered JSN and MKN back to Mexico.
In light of new developments, the Sixth Circuit dd not decide whether the district court correctly decided, based on then-current circumstances, the close issue of whether returning the children to Mexico presented a grave risk of physical or psychological harm. The closeness of the issue made a remand more advisable. The district court’s harm analysis depended on the circumstances in which the children would have lived when they returned to Mexico. However, while the district court ordered the children to Mexico generally, the court did not order how the children would be returned, where they would temporarily live, and who would temporarily take care of them, pending the Mexican court’s custody determination. It was therefore uncertain what compliance with the district court’s order would have looked like. It was a close issue whether, in light of Simcox,511 F.3d at 604, the district court correctly found that Ms. Neumann had failed to prove a grave risk of harm by clear and convincing evidence.
The Sixth Circuit held that it could not successfully be argued that the exception for grave risk is necessarily determined at the time of the return order rather than at the time of the actual return, when there is appreciable distance between the two. Because the circumstances of the return will no longer be as they were contemplated when the district judge ruled, and because a remand was required in any event the Court did not resolve whether the district court properly found no clear and convincing evidence of physical or psychological harm at the time the court ordered the children’s return to Mexico. It directed that on n remand, the district court may in its discretion take further evidence as to, for instance, whom the children will be staying with in Mexico during custody proceedings, and how Mr. Neumann had dealt with his alcoholism.
Because neither parent currently resides in Mexico, the Court faced the independent question of whether there was a grave risk of an intolerable situation upon return to Mexico, arising from possible impediments to the ability of Mexican courts to adjudicate custody. In Pliego v. Hayes, 843 F.3d 226, 228–29 (6th Cir. 2016), it held that “where custody cannot be practically or legally adjudicated in the state of habitual residence,” there may be “ ‘grave risk’ that the child’s return would ‘place the child in an intolerable situation.’ ” Here, if Ms. Neumann followed the district court’s order to return the children to Mexico without any specified logistical agreements, it may not be possible for custody to be practically or legally adjudicated in Mexico. The record did not show whether a Mexican court may exercise jurisdiction to resolve a custody dispute between two American parents over two of their three American children, all of whom are American citizens, none of whom were Mexican citizens, and none of whom resided in Mexico. In Pliego, it recognized that if diplomatic immunity prevented the state of habitual residence from adjudicating custody, that could be an intolerable situation under the Convention, in light of the underlying purpose of the Convention to have the state of habitual residence adjudicate custody. See Pliego, 843 F.3d at 233. In doing so, it also relied on foreign cases that reasoned that there was a grave risk of an intolerable situation where, for instance, a parent could not legally travel to the country that would have determined custody, or the parent could not legally represent his or her interest and the child’s interest in the subsequent litigation. Similarly, if Mexico as a practical or legal matter could not or would not adjudicate custody, the intolerable situation exception to the obligation to return may apply. The issue was presented by the intervening change of facts, and should be addressed by the district court in the first instance. Under its precedent, that potential inability of the foreign court to resolve the custody dispute may pose “a grave risk” of “an intolerable situation” to the children. A return order is premised on the risks at the time of the actual return, and the district court had not had a meaningful chance to evaluate, in light of the material change in circumstances, whether there is a “grave risk” under the Convention when the children would now be returned. In this unusual circumstance, a remand was warranted so that the district court may consider in the first instance whether returning the children to Mexico would now expose them to “a grave risk” of harm or of an intolerable situation.
The Court upheld the district court’s holdings that Mexico was the country of habitual residence of JSN and MKN, and that Ms. Neumann violated Mr. Neumann’s custodial rights under Mexican law when she took her children to the United States on December 28, 2014. The remand was otherwise general. It directed the district court to determine whether or not clear and convincing evidence shows that returning the children now presents a “grave risk” of “physical or psychological harm” or “an intolerable situation.” If so, then the district court has discretion to deny return, or to grant return subject to undertakings that would substantially lessen the risk. See Simcox v. Simcox, 511 F.3d 594, 604–11 (6th Cir. 2007). If the court determines that there is not a sufficient showing of a grave risk, the court should order return. Should the district court decide that a return order is indeed required, such a return order should provide sufficient practical detail so that return can be accomplished promptly without further appreciable litigation delay. The court may still deal with ordinary logistical considerations that frequently accompany the return of any child.