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Wednesday, March 21, 2018

Neumann v Neumann, 2018 WL 1026472 (E.D. Michigan, 2018)[Mexico] [Age and Maturity defense] [grave risk of harm] [Petition denied]

In Neumann v Neumann, 2018 WL 1026472 (E.D. Michigan, 2018) the matter was before the Court after remand from the United States Court of Appeals for the Sixth Circuit.

Steven and Julie were married in Michigan in 1997 and had three children: JMN, JSN, and MKN.  The family lived together in Michigan until February 2011, when they moved to Mexico after Steven was assigned a new position by his employer, Ford Motor Company. The assignment was originally scheduled to end in 2014, but was subsequently extended until 2017. Julie fled to the United States with the three children after a traumatic domestic dispute in December 2014.  Steven subsequently filed a petition seeking an order directing Julie to return the children to Mexico. On May 17, 2016, the Court granted Steven’s petition, holding that, at the time of the decision, Mexico was the children’s country of habitual residence and that, despite Steven’s behavior prior to his family’s departure from Mexico, Julie had not demonstrated by clear and convincing evidence that the children would be subject to a grave risk of harm or an intolerable situation. The Court also held that Julie failed to demonstrate that (i) the children genuinely objected to return; (ii) they possessed the maturity to make any objections; or (iii) that Steven consented to their removal from Mexico. Id. at 857-860. The Court ordered Julie to return the children to Mexico by June 30, 2016.  See Neumann v. Neumann, 187 F. Supp. 3d 848, 851 (E.D. Mich. 2016), vacated, 684 F. App’x 471 (6th Cir. 2017). The Sixth Circuit stayed that order pending appeal.

During the December 1, 2016 oral argument in the Sixth Circuit, Steven’s counsel stated that Steven had recently relocated to Michigan. This development, was characterized as a “material change in circumstances” by the Sixth Circuit. It upheld the District Court’s ruling that Mexico was the children’s country of habitual residence, and that Julie had violated Steven’s custodial rights when she took the children to Michigan on December 28, 2014. The court then framed its remand as follows: Our remand is otherwise general. The district court should 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. If the court determines that there is not a sufficient showing of a grave risk, the court should order return.

          Upon remand the district court conducted an evidentiary hearing on the issue of Steven’s domicile, and the Court appointed Dr. Jack Haynes, Ph.D., as an evaluating psychologist and expert witness, the role he had played earlier in the case. The Court charged Dr. Haynes with evaluating the parties and the minor children, as well as interviewing the eldest daughter, who was no longer subject to the Convention. Dr. Haynes delivered a report to the Court on January 30, 2018, in which he summarized his findings. Dr. Haynes, inter alia, concluded that “[t]he children strongly and genuinely object” to return. Their objections were based on the fact that a return to Mexico “would be disruptive to their school education and sports practice, training, and games.”  Dr. Haynes stated that they also objected because they no longer identify with Mexico, and because the return would be for an indeterminate time. Regarding age and maturity, Dr. Haynes noted that the boys (one fourteen and one fifteen) “are more mature than most children their age,” and that “they have demonstrated the maturity to have their views considered.” He also stated his belief that none of the children had been coached prior to their interviews.  Dr. Haynes next opined on whether return to Mexico would expose the children to a grave risk of physical or psychological harm or place them in an otherwise intolerable situation. He concluded that risk of harm was “significant,” reasoning that that both parents lived in the United States, and the boys were unable to provide for themselves alone in Mexico.  He noted that neither Julie nor Steven would be able to stay in Mexico for an extended period of time, and that it is unlikely the grandparents would be able to care for them in Mexico due to their advanced age.

The Court conducted an in-camera interview with each child. both boys expressed intense emotions on a prospective return to Mexico. MKN stated that he found the situation “shocking” and “confusing.” JSN shared a similar sentiment when he stated “if he wants to see us so bad, then why wouldn’t he let us stay here.”

The district court rejected Julies contention that because both parties were domiciled in Michigan, the action was moot. Julie relied on Von Kennel Gaudin v. Remis (Gaudin I), 282 F.3d 1178, 1183 (9th Cir. 2002), which held that the Hague Convention “cannot be invoked when the petitioner moves permanently to the same country in which the abductor and the children are located.” The Court did not find its reasoning persuasive. “Article III of the Constitution restricts the power of federal courts to ‘Cases’ and ‘Controversies.’ ” Chafin v. Chafin, 568 U.S. 165, 171 (2013). “The case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate. In Chafin, on appeal, the Eleventh Circuit held that an appeal of a return order becomes moot where the child has been returned to the foreign country. The court reasoned that it “became powerless to grant relief.” The Supreme Court disagreed. Although the Court did not address Gaudin, it effectively rejected the decision.

The Court began by determining that the children objected to return, and that they were of sufficient age and maturity to have their views considered. The Court found that the children’s views were properly characterized as legitimate objections to being returned to Mexico, as opposed to a wish or preference to remain in Michigan. The boys both gave particularized reasons why they objected to return, evidencing a thoughtful analysis about why they should remain in Michigan, and conversely, why Mexico would not be a good environment for them. In their meetings with Dr. Haynes, the boys discussed the stability of their life in Michigan, including, “their school education and sports practice, training, and games.” This was reiterated to the Court during its in-camera interviews, where both boys expressed a strong desire for their Michigan school in light of its academics, athletics, and its devotion to their Catholic faith. They also focused on the support system present in Michigan, including their older sister, their grandmother, other extended family, and friends. Their objection to removal from Michigan was strengthened by their statements regarding Mexico. In addition to noting that their school, sports, and faith would be disrupted by a return to Mexico, both boys noted that their father no longer lived in Mexico, and that it was unclear whether he would even be able to return there with them, in light of his relocation to Ford’s Michigan headquarters. They both expressed fear of being sent back to Mexico without clarity regarding who would be responsible for them. Even if Steven was able to move to Michigan, the boys expressed concern regarding his ability to care for them in light of his failure to seek treatment or engage in meaningful reunification therapy with them.
Despite Steven’s claims to the contrary, the Court held that he was now domiciled in Michigan. The children had a well-grounded fear that they would be returned to a country that their father has vacated. While Steven indicated that he would relocate to Mexico if the Court orders return of the children, this did not meaningfully assuage their fear. There was no assurance that Steven would apply to Ford for permission to work permanently in Mexico. And there was no assurance that Ford would allow such an arrangement. The children’s fear regarding his ability to care for them was also supported by the record. They both noted in the Court’s in-camera interviews that Steven has not sought meaningful treatment since the December 2014 incident. This was supported by Dr. Haynes’s report. The report stated that “Steve’s essentially untreated substance abuse and its implications is a central issue in this situation.” Finally, the Court noted that there was no evidence that the boys’ objections were the product of undue influence by Julie, or that Julie engaged in parental alienation. Having found that the boys genuinely object to being returned, the Court determined they were of sufficient age and maturity, such that it is appropriate for the Court to take account of their views. Courts have recognized that “it would be very difficult to accept that a fifteen-year-old should be returned against its will.” Felder v. Wetzel, 696 F.3d 92, 101 (1st Cir. 2012)

In light of all fact and circumstances, the Court held that Julie had shown by a preponderance of the evidence that the boys genuinely objected to return, and that they possessed sufficient maturity to take account of those opinions. As a result, the Court found this basis, by itself, sufficient grounds for declining return of the children.

The Court found that, in addition, Julie had proven by clear and convincing evidence that ordering return would expose the children to a grave risk of physical or psychological harm. The Court’s finding of grave risk rested on the uncertainty the children would face in Mexico following Steven’s permanent relocation to Michigan. If the Court were to order return under the present circumstances, it would be ordering them to live in a country with no parental supervision. The Court believed it obvious why such an order would place the boys in grave risk of harm: they would be forced to navigate a foreign country, where they do not fluently speak the language, all while under the age of sixteen. While the Court believed the children were now mature enough to object to return, it certainly did not believe the boys were capable of providing for themselves abroad.

The Court did not believe that there were any enforceable undertakings that could substantially lessen the risk of harm that would befall the children if ordered returned to Mexico. As a result, the Court declined to order undertakings.

The court denied Stevens requests that the Court enforce orders entered by the Mexican court on April 7, 2017, and April 26, 2017 which granted Steven parenting time every other weekend in Michigan, and also directed Steven and the children to participate in reunification therapy every Tuesday and Thursday. The Court declined to opine on whether the Convention and ICARA grant a judicially enforceable right of access.

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