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Friday, December 8, 2017

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.