Davies v Davies, 2017 WL 6616691 {2d Cir., 2017)[French St. Martin] [Grave Risk of Harm] [Petition denied]

          In Davies v Davies, 2017 WL 6616691 {2d Cir., 2017) the Second Circuit affirmed a judgement which denied the fathers petition for repatriation of his five-year-old son K.D. to French St. Martin. 

          In July 2016, K.D.’s mother, Respondent-Appellee Sally K. Davies, removed K.D. from French St. Martin to New York after suffering years of psychological abuse and increasingly violent behavior from Mr. Davies, much of which occurred in the presence of K.D. Mr. Davies’s uncontrollable anger and abusive behavior was often directed at K.D. Based on documentary evidence and testimony from Ms. Davies, Mr. Davies, nine other fact witnesses, and five expert witnesses the District Court denied Mr. Davies’s petition for repatriation of K.D. See Davies v. Davies, No. 16-cv-6542, 2017 WL 361556, at *1–17 (S.D.N.Y. Jan. 25, 2017). There was no dispute that Mr. Davies set forth a prima facie case. The principal issue on appeal was whether Ms. Davies satisfied her burden of proving, by clear and convincing evidence, that one of the four narrow exceptions to the Convention’s repatriation provision applied: that the return of K.D. to French St. Martin would expose him to a “grave risk” of “physical or psychological harm or otherwise place [him] in an intolerable situation” under Article 13(b) of the Convention. 

  The Second Circuit pointed out that on appeal, Mr. Davies challenged several of the district court’s factual findings, which “[w]e must accept ... unless we have a definite and firm conviction that a mistake has been committed.” Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013) It  owes” particularly strong deference where the district court premises its findings on credibility determinations.” Mathie v. Fries, 121 F.3d 808, 812 (2d Cir. 1997). Therefore, “when a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” Anderson v. Bessemer City, 470 U.S. 564, 575 (1985). Having carefully examined the record, it concluded that the district court’s factual findings challenged by Mr. Davies are not erroneous, much less clearly erroneous.

  It concluded that the district court’s findings of fact were not clearly erroneous, including its findings (i) that K.D. was subjected to severe and persistent psychological abuse by Mr. Davies, and (ii) that this abuse would continue if K.D. returned to French St. Martin.

        The Court explained that under Article 13(b)’s grave-risk-of-harm exception to repatriation, “[t]he potential harm to the child must be severe, and the level of risk and danger required to trigger this exception has consistently been held to be very high.” Souratgar, 720 F.3d at 103 “This grave risk exception is to be interpreted narrowly,” a rule that the district court was “acutely aware of.”  It has held that Article 13(b) relief could be granted if repatriation posed a grave risk of causing unavoidable psychological harm to the child,” and “[e]vidence of prior spousal abuse, though not directed at the child, can support the grave risk of harm defense, as could a showing of the child’s exposure to such abuse.” Souratgar, 720 F.3d at 104. But spousal abuse is relevant under Article 13(b) only if it “seriously endangers the child,” and the “inquiry is not whether repatriation would place the respondent parent’s safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm. ”The grave risk inquiry “involves not only the magnitude of the potential harm but also the probability that the harm will materialize.”  These [are] fact-intensive cases,” and “at one end of the spectrum are those situations where repatriation might cause inconvenience or hardship ... [and] at the other end of the spectrum are those situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation,” Blondin, 238 F.3d at 162. It concluded that this appeal presented circumstances that fell at the latter end of the spectrum. 

           Reviewing de novo the district court’s application of Article 13(b) to its well-supported factual determinations, it affirmed its decision to deny the petition for repatriation because returning K.D. to French St. Martin would, by clear and convincing evidence, expose him to a grave risk of psychological harm. Based on Mr. Davies’s psychological abuse of not only K.D., but also of Ms. Davies in K.D.’s presence, it found no error in the district court’s conclusions as to the magnitude of the potential psychological harm to K.D.––“severe”––and the probability of that harm materializing if he returned to French St. Martin––“a near certainty.” This conclusion was not based on “[s]poradic or isolated incidents,” or “conjecture and speculation” of abuse, rather, as the district court explained, it was premised on “overwhelming evidence of Mr. Davies’s extreme violence and uncontrollable anger, as well as his psychological abuse of Ms. Davies over many years, much of which was witnessed by K.D., and the fact that Mr. Davies frequently screamed and yelled at K.D. for no legitimate reason.” Like the district court, it found alarming Mr. Davies’s escalation of violence immediately prior to the departure of K.D. and his increasingly hostile threats since then. If K.D. returned and Mr. Davies were to follow through on his threat “that there was no amount of money that he would take to exact his revenge on [Ms. Davies],”–and there was clear and convincing evidence that he would––there is no doubt K.D. would suffer grave psychological harm.
  It found no error in the district court’s conclusion that there were no ameliorative measures that would protect K.D. from harm if he returned to French St. Martin. See Blondin, 238 F.3d at 163 n.11 (“[B]efore a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country.”). The district court heard testimony from four expert witnesses concerning the protections afforded to victims of domestic violence (children and spouses) under French St. Martin’s legal system. Moreover, the district court was in the best position to evaluate Mr. Davies’s credibility about abiding by certain ameliorative measures (such as a stay-away order), which was marred by (i) his deceit and manipulation of the legal system in French St. Martin, (ii) his untruthfulness and unwillingness to accept responsibility for his actions while testifying, and (iii) his escalating threats toward Ms. Davies even after their separation. The day before Ms. Davies and K.D. left French St. Martin, Mr. Davies told her that he would rather take all their money, burn it, and kill himself than resolve their dispute “through the courts.” It declined to disturb the district court’s careful and thorough evaluation of the ameliorative measures.

Duran-Peralta v Luna, 2017 WL 6596632(S.D. N.Y., 2017)[Dominican Republic] [Habitual Residence][Consent]

In Duran-Peralta v Luna, 2017 WL 6596632(S.D. N.Y., 2017) the district court granted the Petition of Juana Livia Duran-Peralta, a resident and citizen of the Dominican Republic, seeking the return of the parties’ minor child (“IM”) to the Dominican Republic.

IM was born in the Dominican Republic on August 5, 2015. On October 12, 2015, respondent took IM to the United States. Respondent has kept IM in the United States since then despite petitioner’s appeals that respondent return IM to the Dominican Republic, which culminated in this lawsuit. According to petitioner, she and respondent were romantically involved for several years, during which time she became pregnant with IM. Respondent claimed that petitioner served as a surrogate for him and his wife and that he and petitioner were never romantically involved. The Court found the testimony of petitioner considerably more credible than that of respondent and those who testified on his behalf.

          The Court found the petitioner mother of IM, lived with her eldest daughter in Santo Domingo in the Dominican Republic, where she lived her entire life. Respondent was also born in Santo Domingo. He lived in the United States with his wife, to whom he had been married for about ten years. Respondent had five children in addition to IM. Petitioner and respondent met in 2012, when he would stop by the “exchange house” next to where she worked, and shortly thereafter began a romantic and sexual relationship. When she became pregnant, petitioner quit her job and respondent financially supported her. In June 2015, respondent rented a house for petitioner in anticipation of IM’s birth. IM was born in the Dominican Republic on August 5, 2015.

IM had medical problems after her birth, including neurological complications from a knotted umbilical cord and a skin condition called scabiasis. Respondent told petitioner that he did not want IM to go to doctors in Santo Domingo, and the parties discussed the possibility of seeking medical treatment for IM in the United States. Respondent told petitioner that his sister, who is a doctor, would see IM in New York. Accordingly, in September, petitioner signed what she understood to be an authorization permitting respondent to bring IM to the United States. This “authorization” most likely was an application for an American passport, which petitioner and respondent filled out at the law office of Justina Echavarria. In October 2015, respondent visited the Dominican Republic again. When he returned to the United States, on October 12, 2015, he brought IM with him. Petitioner believed that respondent was taking IM to the United States for just two months for the sole purpose of receiving medical treatment and that he would return her to the Dominican Republic in December. In November 2015, respondent returned to the Dominican Republic (without IM) and told petitioner that he needed a new authorization to take IM to doctors in the United States. Petitioner and respondent made another visit to Justina Echavarria’s law office on November 5, 2015 and signed a document that petitioner believed authorized respondent to seek medical treatment for IM in the United States but in fact provided that petitioner waived her maternal rights over IM (the “Release”). While IM was in the United States, petitioner “was communicating constantly with” respondent. She inquired about the status of the doctors’ visits and asked respondent to send pictures and videos of IM, which he did. She also “constantly” sent “him messages asking him why [he] didn’t bring the girl back.” Respondent provided various reasons for why he could not bring IM back, such as that “he didn’t have any money to travel back to Santo Domingo, [or] that he had too much work.” Respondent has never returned to the Dominican Republic with IM. Petitioner filed the instant action on October 11, 2016.

          The district court noted that Courts in the Second Circuit use the following approach in determining a child’s state of habitual residence: First, the court should inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent.

In determining IM’s habitual residence, the preliminary question the Court had to resolve was whether petitioner’s signing the Release demonstrated that she intended IM to remain in the United States permanently. The Court had little doubt that petitioner did not, in signing the Release, anticipate, let alone intend, that respondent would retain IM in the United States permanently. The two-page, as-signed Release provided that, “I [petitioner] want to declare further that I waive all of my rights over the girl; and declare, that this is in the best interest of the girl.” The Release further provided that petitioner “designate[s] [respondent] Johnny Antonio Luna as a qualified and adequate adult competent to perform any proceedings to retain the girl if [her] rights as mother are terminated.” The Release also identified Luna’s address in New York State.

          The court concluded that although respondent credibly testified that she did not read the Release, there was evidence that she might have understood its import. Before petitioner signed the Release, someone from the Echavarrias’ law firm asked Ramon Antonio Gilminjete, an attorney and notary, to notarize the document. Gilminjete, who was perhaps the only one of respondent’s witness whom the Court found half-way credible, testified that he has known petitioner since she was born. When Gilminjete arrived at the office, he read the document immediately and asked petitioner “if she knew what she was signing, what she was about to sign, because she hadn’t signed it yet,” and she responded that she knew what she was signing, Gilminjete told her “it says that she is giving away the custody of the child to the father,” and that it was “too strong.”. Respondent again told him that “she knew what she was doing.” Nonetheless, Gilminjete took the document with him to his office “to maybe give her the opportunity to think it through.”. Petitioner called him “the next day or two days later” to tell him that he could give the document to respondent. Gilminjete then returned the Release to the Echavarrias’ office, which sent the document to get an apostille from the ministry in the Dominican Republic (which is akin to a verification).However, even assuming arguendo that, contrary to her testimony at trial, petitioner was aware that the Release waived her maternal rights - either because she read the document or because Gilminjete informed her of the document’s terms - the evidence still did not support a finding that petitioner ever intended IM to live in the United States. Rather, petitioner was told, and believed, that she was signing the Release so that IM could be seen by doctors in the United States. There was no evidence that petitioner actually “understood” her execution of the Release as consent to IM’s living with respondent in the United States. The Release did not explicitly provide that IM would live in New York. It was silent on IM’s future residence. The Release could be read as implying that IM will live in the United States, but there was no evidence that petitioner drew this inference. Petitioner was not represented by counsel when she signed the Release, Gimlinjete may have explained to petitioner that by signing the Release, she gave custody to respondent, but he apparently did not actually explain to her that the practical effect of her waiving custody would be that respondent would take IM to the United States. There was abundant evidence, on the other hand, that petitioner signed the Release so that respondent could take IM to doctors in the United States and that respondent represented to her that he would bring IM back to the Dominican Republic in December. In addition to petitioner’s testimony, the parties’ text message communications while IM was in the United States confirm that petitioner believed that respondent had taken IM to the United States temporarily to visit doctors.

          The Court next found that the Dominican Republic was IM’s habitual residence at the time of her removal. The parties shared an initial intent that IM reside in the Dominican Republic. In the years preceding IM’s birth, the Dominican Republic was the site of the parties’ relationship. There was no evidence that petitioner even once visited respondent in the United States. When petitioner became pregnant, respondent financially supported her in the Dominican Republic, including by paying the rent on her house in Santo Domingo. Therefore, there was sufficient evidence to conclude that the parties shared an intent that the Dominican Republic be IM’s habitual residence.

          The shared intent of the parents is not dispositive of a child’s habitual residence,” and “[a] court must additionally examine the evidence to determine if it unequivocally points to the child having acclimatized.” Gitter, 396 F.3d at 135. But the Court finds that IM was “acclimatized” to the Dominican Republic at the time of her removal See Ovalle v. Perez, 681 F. App’x 777, 784 (11th Cir. 2017). Here, prior to IM’s entry into the United States, she had never lived anywhere other than the Dominican Republic. The Court found that petitioner has established her claim under the Hague Convention and that there were no defenses. 

Marcoski v Rath, --- Fed.Appx. ----, 2017 WL 6604247 (11th Cir.,2017)[Czech Republic] [Habitual Residence] [Petition granted]

          In Marcoski v Rath, --- Fed.Appx. ----, 2017 WL 6604247 (11th Cir.,2017) Veronika Marcoski, L.N.R.’s mother, appealed the district court’s judgment ordering that L.N.R. be returned to the Czech Republic, where he was born. The district court adopted the report and recommendation issued by the magistrate judge. It found that Mr. Rath and Ms. Marcoski were “in a committed relationship with a shared intent for the foreseeable future to live with L.N.R. in the Czech Republic.”  

         The Eleventh Circuit affirmed. It noted that Ms. Marcoski challenged some of the district court’s underlying factual findings and contended that certain evidence established that L.N.R.’s “habitual residence” was not in the Czech Republic. The district court found that Mr. Rath was “credible and [Ms. Marcoski was] not credible,” and provided detailed reasons for its view of the evidence on important disputed issues, including whether they were living together. While Ms. Marcoski was correct that the district court clearly erred in two of its factual findings, those errors related to subsidiary historical facts and did not change the fact that substantial evidence supported the district court’s ultimate finding regarding shared intent. That is, any error made by the district court “was harmless because there was plenty of other evidence proving the same [ultimate] fact.” Bobo v. Tenn. Valley Auth., 855 F.3d 1294, 1300 (11th Cir. 2017). In sum, the Eleventh Circuit saw no basis for setting aside the district court’s credibility assessments and factual findings. Ms. Marcoski presented an interpretation of the evidence that could have allowed the district court to find in her favor, but “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574.

Pena v Serrano, 2017 WL 6542758 (W.D. Texas, 2017)[Mexico] [Habitual Residence] [Patria Potestad] [Petition granted]

In Pena v Serrano, 2017 WL 6542758 (W.D. Texas, 2017) the district court granted Edgar Andres Soto Pena’s petition for the return of his children to Mexico. Petitioner and Respondent were Mexican nationals who married in 2005 in Mexico and were the parents of A.S.E., D.S.E., and S.S.E. The family resided in Mexico until August 2009, when they moved to Austin, Texas, while Petitioner completed a one-year Master of Business Administration program. From May 2010 until October 2012, the family resided in Texas while Petitioner worked in Texas. In October 2012, the family moved to Monterrey, Mexico. A few years later in August 2014, the family returned to Texas. Petitioner returned to Mexico in March 2015.  Respondent and the children remained in Texas until July 2015.  Upon their return to Mexico, Respondent initiated divorce proceedings. Petitioner and Respondent obtained a divorce in December 2015. The divorce was a voluntary divorce, and the parties agreed to its terms.  Per the divorce decree, Petitioner and Respondent agreed that “the care and custody of the under-age children was to be executed by [Respondent], and the legal custody by both parents, during this proceeding and once the sentence has been executed.”  They further agreed that their children “shall be under the custody of the female spouse,” and that Petitioner would have coexistence rights, including the ability to visit with his children on Wednesdays after school and every other weekend. The decree also addressed changes in residence. Petitioner and Respondent agreed to notify each other and the court of any change in domicile. They agreed that “[i]n the event [Respondent] changes her domicile to a city other than Monterrey, Nuevo Leon, [Respondent] shall still hold custody of her under-age children, and [Petitioner] shall continue to be entitled to the coexistence rights with his under-age children under the same provisions hereof.” On March 14, 2017, Petitioner and Respondent modified the divorce decree by agreement.  That modification addressed Petitioner’s right of access on Wednesdays after school and every other weekend, changing the terms and conditions of those visits. The modification expressly stated that the December 2015 decree, with the exception of the modifications regarding Petitioner’s visitation, otherwise remained unaltered.

          In June 2017, Respondent advised Petitioner that she and the children had moved to the Austin, Texas metro. The Mexican court that handled Petitioner and Respondent’s divorce and subsequent modification addressed Respondent’s move to Austin with the children in a document dated October 24, 2017. The Mexican court stated: [N]o change in residence could be carried out unilaterally by the person holding care and custody of the minors, because the ownership of said right does not grant an all-encompassing and exclusive power to determine the place the minors should reside in, this derives from the fact such an important decision should consider the other parent as well, because having full exercise of parental rights, grants the other parent the right to coexist with his children, and even to secure their physical, spiritual and moral upbringing, as well as to prepare them for having a profession or specific activity that may be useful for them, and which may not be accomplished if the minors are moved to a distant place without his consent, therefore it is undeniable both parents must agree to this change by mutual consent. On October 27, 2017, the Secretary of Foreign Relations for the Mexican Central Authority certified that the children’s “removal from their habitual residence in Mexico was wrongful given the fact that there is a valid access rights agreement signed by the parents on December 16th, 2015, before the Fifth Family Court of the First District in Monterrey, Nuevo Leon.”  The Secretary also stated that Petitioner and Respondent hold patria potestad rights over the children and that, because they “share parental rights over the children, and those rights include making a decision about the children’s place of residence .... Thus, any unilateral decision made by the mother in contravention thereof is a breach of the rights attributed to the other parent and falls within the definition of illicit retention contained in Article 3 of the Convention.”

          The district court concluded that the children’s habitual residence on the date of removal was Mexico based on the fact that this issue was not disputed. Because the Court has found that the children were habitually residing in Monterrey, Nuevo Leon, Mexico immediately before their removal, the rights of custody were determined by the application of the laws of the Republic of Mexico. See Bernal v. Gonzalez, 923 F. Supp. 2d 907, 918 (W.D. Tex. 2012) (Counts, Mag.). It observed that the State of Nuevo Leon, Mexico, in accordance with the Civil Code, adheres to the legal doctrine of patria potestad (meaning “parental rights”), under which “both parents have joint custody rights.” Saldivar v. Rodela, 879 F. Supp. 2d 610, 623–24 (W.D. Tex. 2012). The parties agreed that the Civil Code expressly adopts the doctrine of patria potestad, and the parties do not contest that the divorce decree recognizes and incorporates the doctrine. As to each parent individually, the decree establishes other, different rights and responsibilities. Petitioner is granted “coexistence rights,” which are similar to visitation rights in the United States, Divorce Decree, and provides that Respondent possesses “the care and custody of the under-age children,”. While both Petitioner and Respondent must notify the court and each other of any change in domicile, the parties agreed to the following: “In the event [Respondent] changed her domicile to a city other than Monterrey, Nuevo Leon, the mother shall still hold custody of her under-age children, and the father shall continue to be entitled to the coexistence rights with his under-age children.”

          The principal issue presented by the parties was whether this specific language of the decree trumped the doctrine of patria potestad and allowed Respondent to move the children to Austin without violating the Convention. A handful of courts have grappled with the question of whether the language of a divorce decree can supersede the Nuevo Leon Civil Code—and its incorporation of patria potestad—to abolish one parent’s patria potestad rights. After surveying the decisions, this Court declined to conclude that Petitioner’s patria potestad rights—which were expressly bestowed in the divorce decree and given by statutory law— were also simultaneously relinquished by other provisions of the decree. As the Seventh Circuit explained, “[p]atria potestas is central to Mexican family law,” Garcia, 808 F.3d at 1165, and the grant of those rights would not be easily revoked. Whether patria potestad may be extinguished by an agreement or court order may be up for debate, but, in this case, those parental rights were not expressly terminated or abandoned.

  

        The grounds for finding that Petitioner held rights of custody pursuant to patria potestad were even stronger in this case, where, in addition to the Civil Code’s general grant of patria potestad, the divorce decree also awarded the respondent physical custody of the children but provided both parents with patria potestad rights. Patria potestad rights, “specifically incorporated into a custody agreement, amount to ‘rights of custody’ under the Convention.” Gatica, 2010 WL 6744790, at *6 (R. & R.). The divorce decree at issue here confirmed the rights of both Petitioner and Respondent under the doctrine of patria potestad, and those rights amounted to right of custody under the Convention. Petitioner’s patria potestad rights were sufficient to prove a prima facie case of wrongful removal under the Convention. See Saldivar, 879 F. Supp. 2d at 624–25 (“Chihuahua’s institution of patria potestad gives [petitioner] both the right relating to the care of the person of the child and the right to determine the child’s place of residence as contemplated under ... the Convention.”).

Morgan v Morgan, 2017 WL 4512487 (N.D. Texas, 2017) [Australia][Habitual residence][Petition denied]

In Morgan v Morgan, 2017 WL 4512487 (N.D. Texas, 2017) the petition seeking the return of the minor child T.P.M. to Australia was denied. Petitioner, Edward Tyler Morgan (Tyler), and Respondent, Lesli Kay Morgan (Lesli), were both citizens of the United States. The district court found that Lesli and Tyler were married in Texas, in 2012 and resided their entire lives in the United States prior to 2013. In 2013 Lesli and Tyler, along with A.K.S., Lesli’s minor daughter from a previous relationship, moved from the United States to Australia after Tyler received a job offer in that country. Tyler signed an employment contract with Stryker Australia for a 3-year commitment, and Australia issued a 4-year visa to Tyler, Lesli, and A.K.S.  Lesli and Tyler informed their family and friends that they were temporarily moving to Australia for a 3-year period due to Tyler’s employment opportunity. While living in Australia, Lesli and Tyler voted in at least one United States election and certified to the government of the United States that they were residents of this country. .P.M. was born in July of 2015 in Hobart, Tasmania, Australia. T.P.M. was not an Australian citizen. T.P.M. was a United States citizen. T.P.M. did not have his own visa. Lesli and Tyler never took any steps to apply for citizenship for T.P.M. or to otherwise make T.P.M. a lawful resident of Australia.  During the majority of their time in Australia Lesli was increasingly anxious to return to the United States as she and Tyler had agreed at the inception of their move. Lesli was scheduled to return to the United States with A.K.S. and T.P.M. for a wedding in March of 2017. Tyler purchased airline tickets for their travel. On or about February 26, 2017, Lesli and Tyler fought about Lesli’s intention to remain in the United States permanently following the wedding. On February 28, 2017, Lesli packed bags for herself and the children while Tyler was at work and drove to stay at a hotel. Lesli sent Tyler a video informing him that she and the children were safe but that she intended to return to the United States.  Lesli and the children went to the airport on March 1, 2017, and were temporarily detained by Australian immigration authorities while attempting to leave the country. Immigration authorities informed Lesli that T.P.M. did not have a valid visa and was in the country illegally. They informed Lesli that T.P.M. would not be allowed to return to Australia without a visa. Lesli, A.K.S., and T.P.M. returned to the United States at the beginning of March 2017.

The district court observed that the United States Court of Appeals for the Fifth Circuit has said that “[t]he inquiry into a child’s habitual residence is not formulaic; rather it is a fact-intensive determination that necessarily varies with the circumstances of each case.” Delgado, 837 F.3d at 578. The Fifth Circuit has adopted an approach to determine a child’s habitual residence “that begins with the parents’ shared intent or settled purpose regarding their child’s residence.” (quoting Larbie v. Larbie, 690 F.3d 295, 310 (5th Cir. 2012)). The shared intentions of the parents are dispositive when the child is so young that he cannot decide the issue of residency for himself. In this case, T.P.M. was 23 months old and  incapable of deciding the issue of residency for himself. The intention of his parents regarding his habitual residence was therefore dispositive. Delgado, 837 F.3d at 578. The court found that Lesli and Tyler intended to move to Australia for a 3-year period and intended to return to the United States upon the expiration of Tyler’s employment contract. This was supported by (1) the testimony of people they told this to; the conduct of Lesli and Tyler in not obtaining lawful residency status for T.P.M. in Australia after his birth; Lesli’s and Tyler’s assertions to the United States government regarding their residency when voting in a United States election. Lesli and Tyler never reached a definitive agreement to extend their stay in Australia and had not demonstrated a fixed intention to remain there beyond the expiration of their current visa. Lesli and Tyler never reached any agreement to make Australia the habitual residence of T.P.M. and did not take any actions consistent with an intent to make Australia the habitual residence of T.P.M. T.P.M. was not legally residing in Australia prior to his removal to the United States and was not legal to return to Australia as of June 12, 2017. The Court held that Australia was not T.P.M.’s habitual residence and dismissed the petition.

Orellana v Cartagena, 2017 WL 5586374 (E.D. Tennessee, 2017) [Honduras][Grave risk of harm] [Fundamental Principals][Petition granted]

In Orellana v Cartagena, 2017 WL 5586374 (E.D. Tennessee, 2017) the district court granted the father’s petition for return of his child to Honduras.

  The Petitioner was the father of the Child, Respondent was the mother of the Child. The Child was born in Honduras on November 14, 2013, and that the Child resided solely in Honduras prior to her removal on or about September 11, 2015. The parties agreed that Respondent did not discuss the Child’s removal from Honduras with Petitioner before the Child was removed, nor did Respondent receive a custody order from any Honduras court granting Respondent full custody of the Child. Respondent alleged, however, that returning the Child to Honduras would pose a grave risk and that doing so would expose the Child to physical or psychological harm or otherwise place the Child in an intolerable situation. In addition, Respondent argues that returning the Child would not be permitted by the fundamental principles relating to the protection of human rights and fundamental freedom. 

Based upon the parties’ stipulations the evidence the Court found that petitioner established a prima facie case for return.

The district court noted that the grave risk defense provides that Respondent must demonstrate by clear and convincing evidence that returning the Child “would expose the child to physical or physiological harm or otherwise place the child in an intolerable situation.” Hague Convention, art. 13(b). The Sixth Circuit has elaborated as follows: First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute—e.g., returning the child to a zone of war, famine, or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection. Friedrich, 78 F.3d at 1069.

  The Court found that Respondent had not shown by clear and convincing evidence that there was a grave risk of harm in returning the Child to Honduras. It observed that in cases of domestic assault, the Sixth Circuit has delineated three broad categories of abuse situations: “First, there are cases in which the abuse is relatively minor. In such cases, it is unlikely that the risk of harm caused by return of the child will rise to the level of a ‘grave risk’ or otherwise place the child in an ‘intolerable situation’ under Article 13b.” Simcox, 511 F.3d at 608. The second type of cases are those at the other end of the spectrum, “in which the risk of harm is clearly grave, such as where there is credible evidence of sexual abuse, other similarly grave physical or psychological abuse, death threats, or serious neglect.” Id. at 607-08. The third type of cases “fall somewhere in the middle, where the abuse is substantially more than minor, but is less obviously intolerable.” Id. at 608. The Sixth Circuit continued, “Whether, in these cases, the return of the child would subject it to a ‘grave risk’ of harm or otherwise place it in an ‘intolerable situation’ is a fact-intensive inquiry that depends on careful consideration of several factors, including the nature and frequency of the abuse, the likelihood of its recurrence, and whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the child caused by its return.” In reviewing the evidence, the Court found that the alleged abuse in this case insufficient to establish that there was a grave risk that returning the Child would expose her to physical or psychological harm or otherwise place her in an intolerable situation. While the testimony differed regarding Petitioner’s abuse toward Respondent, what was consistent throughout the testimonies was that Petitioner did not physically abuse the Child.  Nor was there any evidence that Petitioner verbally abused the Child. While the parties’ arguments occurred in front of the Child, the Court found that Respondent failed to demonstrate by the clear and convincing standard that the Child would be subjected to a grave risk of physical or psychological harm if she returned to Honduras.

The court indicated that pursuant to Article 20 of the Hague Convention, the return of a child may be refused if it would not be permitted by fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. Respondent stated that it would violate the Due Process of Equal Protection Clauses of the United States Constitution to require the return of the Child where the mother faces legally sanctioned discrimination upon return and that it would cause the Child to be placed in an intolerable situation since custody would be determined based on discrimination. In support of her argument, Respondent stated that Honduran law provides that children will generally be left in the custody of the father. The Court found that Petitioner has not shown by clear and convincing evidence that the return of the Child violates the fundamental principles of the United States. The Honduran law does not shock the conscience and that “merely offending principles espoused” in the United States is insufficient to invoke the Article 20 exception.” Habrzyk v. Habrzyk, 759 F. Supp. 2d 1014, 1027 (N.D. Ill. 2011) (stating that the “Convention requires that the fundamental principles of the State not permit the return of the child; merely offending principles espoused in Illinois laws is insufficient”); see also March v. Levine, 136 F. Supp. 2d 831, 855 (M.D. Tenn. 2000), aff’d, 249 F.3d 462 (6th Cir. 2001) (explaining that “it should be emphasized that this exception, like the others, was intended to be restrictively interpreted and applied, and is not to be used, for example, as a vehicle for litigating custody on the merits or for passing judgment on the political system of the country from which the child was removed”) (quoting 51 Fed. Reg. at 10510); Walker v. Kitt, 900 F. Supp. 2d 849, 864 (N.D. Ill. 2012) (“To invoke Article 20 to refuse to return a child for anything less than gross violations of human rights would seriously cripple the purpose and effectivity of the Convention.”). Here, there was simply no evidence that the Child’s human rights and fundamental freedoms would be in jeopardy if returned to Honduras.

Velarde v Gurgan, 2017 WL 4570304 ( W.D. Texas, 2017)

In Velarde v Gurgan, 2017 WL 4570304 ( W.D. Texas, 2017), the district court granted the Petition of Leticia Isabel Velarde for the return of her son A.G. to Mexico. 

Petitioner Leticia Isabel Velarde was born in Laredo, Texas and was a United States citizen. Petitioner grew up in Mexico and was also a Mexican citizen. Her family resided in Nuevo Laredo, Mexico. Respondent Johnathan Asher Gurgan was a United States citizen. Petitioner came to the United States in 2002 for employment and stayed until 2013.  On November 8, 2012, A.G. was born in New Braunfels, Comal County, Texas. He was a United States citizen. Petitioner testified that she believed he was also a Mexican citizen by virtue of his birth to a Mexican mother. In August 2013, Respondent enrolled in University of Texas San Antonio (“UTSA”). The family lived together in an apartment in New Braunfels from the time of A.G.’s birth in November 2012 until October 2013, when they moved together to Mexico. During this time, they discussed moving to and living in Mexico. Due to financial issues, the cheaper cost of living in Mexico, the desire to be near Petitioner’s family in Mexico while being close to the university in Laredo, Texas, and possibly a desire to remove themselves from issues with Child Protective Services, Petitioner and Respondent jointly agreed to move the family to Mexico in October 2013. Although it was undisputed that the parents jointly agreed to move to Mexico, the duration of the planned move was disputed. Respondent testified that, at the time of the move, he did not have the intent to abandon the United States to take permanent residence in Mexico. Petitioner testified that they were “finally moving to Mexico” as they had talked about ever since they met, and her intention at the time of the move was not to return to the United States. She testified that they had visited often and always talked about living there, and when A.G. was born it seemed like the perfect opportunity for her to go back to her family and friends there with her son and husband. In mid-2016, Petitioner started discussing the possibility of divorce with Respondent. Respondent was upset and was opposed to getting a divorce. Petitioner testified that Respondent’s attitude about staying in Mexico changed sometime after June 2016. She testified that her intent to stay in Mexico had not changed. On November 25, 2016, Petitioner filed for divorce in Mexico (3rd Judicial District of Nuevo Laredo, Tamaulipas, Mexico). On November 30, 2016, Respondent said he was taking A.G. to the park but instead took the child to San Marcos, Hays County to the residence of his mother. A.G. was four years old and had been living in Mexico with his parents continuously since he was 11 months old. Before taking A.G. to San Marcos, Respondent researched the requirements of the Hague Convention, and he left some of his research and notes behind in Mexico. Next to the sentence “Therefore, failing to consider shared parental intent could potentially cause the court to overlook whether a parent is acting unilaterally to alter what had been previously agreed to by both parents,” which Respondent partially underlined, Respondent wrote, “we had agreed to stay in Mexico if possible from an employment perspective but I knew that Letty would not want to return. I didn’t either except for the divorce idea.” Also in the margin he had written “this is our house”; “1 yr lease”; “intention.” 

  On December 5, 2016, Respondent filed a suit for possession and custody in 22nd District Court, Hays County.  He stated that he did not want a divorce. On July 13, 2017, the Mexican court issued a divorce decree. On August 21, 2017, this proceeding was filed. The only real dispute was whether Mexico or the United States was the country of A.G.’s habitual residence immediately prior to the removal in November 2016. Petitioner contended that the parties agreed to move to Mexico permanently, and that Respondent unilaterally changed his mind in 2016 when his behavior and religious views changed and Petitioner began discussing a possible divorce. Respondent contended that he and Petitioner never agreed to move to Mexico permanently, but only for a limited duration while Respondent completed his education, and that A.G.’s country of habitual residence had always remained the United States. 
The district court noted that in 2012, the Fifth Circuit “join[ed] the majority of circuits that ‘have adopted an approach that begins with the parents’ shared intent or settled purpose regarding their child’s residence.’ ”  “This approach does not ignore the child’s experience, but rather gives greater weight to the parents’ subjective intentions relative to the child’s age” and “parents’ intentions should be dispositive where ... the child is so young that ‘he or she cannot possibly decide the issue of residency.” In such cases, “the threshold test is whether both parents intended for the child to ‘abandon the [habitual residence] left behind.” Absent shared intent, prior habitual residence should be deemed supplanted only where the objective facts point unequivocally to this conclusion. Context, rather than specific periods of time spent in one location or another, is key. Berezowsky v. Ojeda, 765 F.3d 456, 467 (5th Cir. 2014). 

The Court did not agree with Respondent’s version of the facts, and a preponderance of the evidence indicated that the family abandoned Texas and intended to and did make A.G.’s home in Mexico indefinitely or permanently. Rather than finding an intent to move for a maximum amount of time, the Court found that the initial move was intended to be permanent, or alternatively for a minimum of two years. The Court further found that, at least by 2015, the parents had mutually agreed to stay in Mexico if possible, and there was no agreement to return to the United States at any specific time. The undisputed evidence is that the family abandoned the only “home” A.G. had had in Texas and there was no indication that anyone viewed him as having his habitual home in Texas from which he was temporarily absent while living in Nuevo Laredo. Rather, the evidence showed that the “two parents reached an agreement to raise [A.G.] in Mexico” permanently or indefinitely. Berezowsky, 765 F.3d at 471. Because A.G.’s home in November 2016 was Mexico, and both parents intended it to be Mexico at that time, the Convention dictated that Mexico was his country of habitual residence and A.G. had to be returned there. 

Alemu v Zerihum, 2017 WL 5989213 (D. Colorado, 2017) [Israel][Habitual Residence][Default] [Petition granted

]
In Alemu v Zerihum, 2017 WL 5989213 (D. Colorado, 2017) the district court granted Seleshi Tegan Alemu’s Petition for the return of YT to Israel. YT was born to petitioner and respondent in 2007 in Israel and was 9 years of age. Petitioner and respondent divorced in 2011. As of late 2015, YT was a resident of Israel, living in a home there with Respondent, a Mr. Berhano Terunech, and a half-sibling. In November 2015, Petitioner signed a letter allowing respondent to take YT to the United States for a three-week visit with family. After three weeks passed, Respondent indicated during phone conversations that she wanted to remain in the United States for an additional three months. Petitioner objected but agreed to allow Respondent to remain in the United States for a total of three months. After three months passed, Respondent informed Petitioner that she was not returning YT to Israel. Petitioner objected and told Respondent “that was not right.” Respondent thereafter sent Petitioner a message indicating that he would not see YT again. Petitioner filed the action on December 9, 2016, within one year of Respondent’s refusal to return YT to Israel. Although Respondent was properly served, she did not appear at the hearing, and failed to participate in the action. 

  The district court found that YT was a habitual resident of Israel at the time of removal. Petitioner testified that YT was born in Israel in 2007, and remained there until his removal in 2015. The Court had no trouble concluding that YT was a habitual resident of Israel. Israeli law provides that parents of children are vested with custodial rights, including the right to determine a place of residence. Petitioner testified and submitted exhibits indicating that he was vested with court-ordered custodial rights. The Court concluded that Petitioner set forth sufficient facts to make a prima facie showing of an unlawful removal. Because Respondent declined to attend the hearing, or to otherwise participate in this litigation, she failed to meet her burden of establishing a defense. 

Marks v. Hochhauser 2017 WL 5760345 (2d Cir., 2017) [Thailand] [Federal & State Judicial Remedies] [Retention] [Accession]

          In Marks v. Hochhauser 2017 WL 5760345 (2d Cir., 2017) the Second Circuit held that for purposes of the Convention  “retention” is a singular and not a continuing act; and that the Convention does not enter into force until a ratifying state accepts an acceding state's accession.

          The parties were American citizens who were living in Hong Kong when their three sons were born, one in 2002 and twins in 2005. In July 2005, the parties and the children relocated to Bangkok, Thailand. In August 2015, Marks and Hochhauser were divorced, in Thailand, and the divorce judgment granted Hochhauser sole custody of the Children. On September 18, 2015, Hochhauser and the Children traveled to the United States to visit Hochhauser’s ill mother. Before their departure, Hochhauser represented to Marks and the Thai court that she and the Children would stay in New York for three weeks and then return to Thailand on October 10, 2015. On October 7, 2015, Hochhauser sent Marks an email as follows: “I have made the decision to remain in the United States with the boys. It is clear to me now that there is no workable solution for us to live in Thailand. This decision was based upon trying to build a future for both myself and them, not out of any anger toward you about the past or any desire to exclude you from their lives. The boys need you to continue to be an important part of their lives and I will do as much as I can to facilitate that. Hopefully we can find a way to build a working relationship for their benefit.” On January 25, 2016, the Thai Court of Appeals vacated the trial court’s judgment in part and held that Marks and Hochhauser “shall exercise joint custody of all of their three minor children.”  

          Marks filed a petition for the return of the Children to Thailand on September 9, 2016, within one year of the date Hochhauser advised Marks that she and the Children would not be returning to Thailand. Hochhauser moved to dismiss the petition, arguing, inter alia, that any wrongful retention of the Children took place prior to the Convention’s entry into force between the United States and Thailand. The district court granted the motion to dismiss the petition. It first concluded that “retention” is a singular and not a continuing act and that the singular act here occurred on October 7, 2015, when Hochhauser sent her email to Marks advising that she and the Children were not returning to Thailand. It then concluded that the Convention did not enter into force between the United States and Thailand until April 2016, after the United States accepted Thailand’s accession to the Convention. The district court held that the retention occurred before the Convention entered into force between the two countries and entered judgment on November 7, 2016, granting the motion to dismiss the petition.

          The Second Circuit affirmed. It agreed with the district court that “retention” for these purposes is a singular and not a continuing act. It concluded that the Convention contemplates that “retention” occurs on a fixed date. Here, that date was October 7, 2015, when Hochhauser advised Marks that she would not be returning with the Children to Thailand.

          The Second Circuit observed that Article 35 of the Convention provides that it “shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States.” Convention, art. 35. Hence, if the removal or retention occurs before the Convention has entered into force between two States, the Convention does not apply.

          The Court noted that the Convention does not define “Contracting State,” but Articles 37 and 38 provide two separate procedures for countries to accept the Convention. Under Article 37, “[t]he Convention shall be open for signature by the States which were Members of the Hague Conference of Private International Law [the ‘CPIL’] at the time of its Fourteenth Session.” Convention, art. 37. Once a State signs, the Convention must be “ratified, accepted or approved and the instruments of ratification, acceptance or approval” must be deposited with the Ministry of Foreign Affairs in the Netherlands. Convention, art. 37. Article 38 provides an acceptance procedure for states that were not members of the CPIL at the time of its fourteenth session. In lieu of ratification, these states may “accede” to the Convention. Article 38 explains that: Any other State may accede to the Convention. ... The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. ... The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance. Convention, art. 38. As Article 38 makes clear, accession requires the acceptance of other states before the Convention “will enter into force,” i.e., the accession has effect only as to Contracting States that “have declared their acceptance of the accession.” Id.

          At the time the Convention was opened for signature, the United States was a member of the CPIL and Thailand was not. The United States signed the Convention in 1981 and ratified it, thereby becoming a Contracting State, in 1988, and the Convention entered into force in the United States on July 1, 1988. See Contracting State Status Table; Souratgar, 720 F.3d at 102 n.5. Thailand acceded to the Convention, pursuant to Article 38, on August 14, 2002, and it entered into force in Thailand on November 1, 2002. Id.  The United States accepted Thailand’s accession to the Convention on January 26, 2016. See Acceptances of Accessions: Thailand, Hague Conference on Private International Law, https://www.hcch.net/en/instruments/conventions/status-table/acceptances/?mid=670 (last visited Sept. 26, 2017) (“Acceptances of Accessions Table”). The first day of the third calendar month after the United States accepted Thailand’s accession was April 1, 2016. See id.; Convention, art. 38.

          The Court then held that the Convention does not enter into force until a ratifying state accepts an acceding state's accession and that Article 35 limits the Convention's application to removals and retentions taking place after the Convention has entered into force between the two states involved. Therefore, because the Convention did not enter into force between the United States and Thailand until April 1, 2016, after the allegedly wrongful retention of the children in New York on October 7, 2015, the Convention did not apply to petitioner's claim.

Taglieri v. Monasky ,2017 WL 5895196 (6th Cir., 2017) [Italy] [Habitual Residence][Grave Risk of Harm] [Petition granted]

          In Taglieri v. Monasky, 2017 WL 5895196 (6^th Cir., 2017) the Sixth Circuit held that where a child lives exclusively in one country, that country is presumed to be the child’s habitual residence. In this case the country of habitual residence was Italy and that there was no grave risk of harm to the child under the meaning of the Convention. It affirmed the district court’s judgment ordering the return of A.M.T. to Italy under the Hague Convention.

          Taglieri, a citizen of Italy, was studying in Chicago when he met Monasky, an American citizen. They married and decided to move to Italy. Taglieri was licensed to practice medicine in Italy. Monasky had a fellowship in Milan. Monasky became pregnant. Monasky alleged that Taglieri was sexually abusive and frequently hit her. Monasky encountered professional difficulties and did not speak much Italian. Monasky applied for jobs in the U.S., contacted divorce lawyers, and researched American childcare options.  After an argument, Monasky took baby A, sought refuge in a safe house, and left Italy with eight-week-old A. Taglieri obtained the termination of Monasky’s parental rights in Italy, and Taglieri filed a petition in the United States District Court for the Northern District of Ohio on May 14, 2015, seeking the return of his daughter to Italy pursuant to the Convention. The district court held a four-day trial in March 2016. In an order issued six months later, the district court granted Taglieri’s petition for the return of A.M.T. to Italy, to be accomplished within forty-five days.

          The Sixth Circuit affirmed. It found that Taglieri had established that A.M.T. was removed in breach of the law of the State in which she was habitually resident. It noted that Simcox and Friedrich I stand for the proposition that when a child has lived exclusively in one country, that country is presumed to be the child’s habitual residence. In Robert v. Tesson, 507 F.3d (6th Cir. 2007), it held that “a child’s habitual residence is the nation where, at the time of their removal, the child has been present long enough to allow acclimatization, and where this presence has a ‘degree of settled purpose from the child’s perspective.’ ” In Ahmed v. Ahmed, 867 F.3d 682 (6th Cir. 2017), a case involving very young children traveling between nations it  concluded that, under those circumstances, a court may determine a very young child’s habitual residence by considering the “shared parental intent” of where the parents last mutually intended the child to live. The Court indicated that it uses three distinct standards to determine a child’s habitual residence under the Convention. In cases where the child has resided exclusively in a single country, that country is the child’s habitual residence. But when the child has alternated residences between two or more nations, the analysis is more complicated. In such cases, it begins by applying the acclimatization standard. If that test supports the conclusion that a particular country is the child’s habitual residence, then that is the end of the analysis. But if the case cannot be resolved through application of the acclimatization standard, such as those cases that involve “especially young children who lack the cognizance to acclimate to any residence,” it then considers the shared parental intent of the child’s parents.

A straightforward application of precedent compelled the conclusion that the habitual residence of A.M.T. was Italy. A.M.T. was born in Italy and resided there exclusively until Monasky took A.M.T. to the United States in April 2015.  It rejected Monasky’s argument that the opinion in Ahmed required a different result. Ahmed spoke broadly about young children, but it dealt specifically with the application of the acclimatization standard, which both Robert and Simcox recognized as difficult to apply in cases of small children. Robert made clear that the acclimatization test did not apply to children who had remained in one nation; rather, that test “should apply when a child has alternated residences between two or more nations.” Ahmed’s adoption of a shared-parental-intent standard made such intent relevant only in those cases where the acclimatization standard both applies and fails. Ahmed did not modify or displace the alternative standard and guidance that Friedrich I and Simcox provided for children with exclusively one country of residence. Robert and Ahmed dealt with one situation, while Friedrich I and (in part) Simcox dealt with another. This was not a case where “a child has alternated residences between two or more nations,” the situation that Robert’s acclimatization test was crafted to address and the one that faced the Ahmed panel. Prior to the removal, A.M.T. never was outside of Italy. “Where a child has remained in one place for its entire life, that place is the expected location where it may be found and may be considered its residence. Thus, A.M.T.’s habitual residence was the country from which she was taken, Italy.¹

          The district court found Monasky’s testimony with respect to the domestic and sexual abuse against her to be credible. But the court also observed that “the frequency with which Taglieri subjected Monasky to physical violence and severity of the physical violence is unclear,” and found that there was “no evidence to suggest that Taglieri was ever physically violent towards A.M.T.” The first half of the exception makes plain that the risk of physical or psychological harm is directed to the child. Chief Judge Oliver found that the frequency and severity of violence to Monasky were unclear, and that there was no evidence that violence was ever directed at A.M.T. The facts, while demonstrating that Taglieri engaged in appalling and justly censurable activity, did not “show that the risk to the child is grave, not merely serious.” Friedrich II, 78 F.3d at 1068 (quoting Public Notice 957, 51 Fed. Reg. 10494, 10510 (Mar. 26, 1986)). As a result, Monasky failed to meet her burden to show by clear and convincing evidence that a grave risk of harm to A.M.T. exists or that there is a grave risk that A.M.T. would be placed in an intolerable situation.