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Saturday, September 9, 2017
Cunningham v Cunningham, --- Fed.Appx. ----, 2017 WL 3867813 (Mem) (11th Cir., 2017)[Japan][Petition granted]
In Cunningham v Cunningham, --- Fed.Appx. ----, 2017 WL 3867813 (Mem) (11th Cir., 2017) after custody disputes in Florida state court led to Mr. Cunningham’s mother, Glenda Cunningham, obtaining physical custody of the minor child, and Mrs. Cunningham’s then abrupt departure from the United States to Japan, Mrs. Cunningham a verified petition for the return of her child pursuant to the Hague Convention to have the child returned to Japan. The district court concluded that the child’s habitual residence—before Mr. Cunningham and his mother retained the child—was Japan, that the child had been wrongfully retained in the United States, and that the child should return to Japan. The district court also concluded that Mr. Cunningham had failed to prove his affirmative defenses, finding that Mr. Cunningham did not establish that Mrs. Cunningham acquiesced to the child’s residence in the United States, that the child would be subject to a grave risk of harm if it were to return to Japan, or that the child was well-settled in the United States. Mr. Cunningham and his mother now appeal. The 11th Circuit affirmed. It observed that a district court’s determination of a child’s habitual residence under the Hague Convention is reviewed as a mixed question of law and fact, so underlying factual determinations are reviewed for clear error and the application of legal principles to the facts are reviewed de novo. See Ruiz v. Tenorio, 392 F.3d 1247, 1251–52 (11th Cir. 2004). A district court’s rulings as to a respondent’s affirmative defenses under the Convention are similarly reviewed under a mixed standard of review. See Seaman v. Peterson, 766 F.3d 1252, 1258, 1261–62 (11th Cir. 2014) (applying a mixed standard of review in a case involving a grave risk of harm defense).” It affirmed for the reasons set forth in the district courts order.