Moreno v Zank, --- F.3d ----, 2018 WL 3467919 (6th Cir., 2018) [Ecuador][Habitual residence][Re-abduction]

          In Moreno v Zank, --- F.3d ----, 2018 WL 3467919 (6^th Cir., 2018) the mother sought the return of a child to Ecuador.The district court held that the mother’s original abduction of the child to Ecuador years earlier meant that Ecuador could not be the child’s habitual residence. The Sixth Circuit held that reversal and remand was required because the proper remedy for the initial kidnapping to Ecuador was a Hague Convention petition filed in Ecuador, subject to applicable limitations and defenses, rather than the self-help remedy of (in effect) later re-kidnapping back to the United States.

          The child, BLZ, was born in 2006 in Michigan to the then-married couple of Jason Zank, a citizen of the United States, and Liz Lopez Moreno, a citizen of Ecuador. Zank and Lopez Moreno divorced in July 2009. Their divorce decree granted Zank and Lopez Moreno joint legal and physical custody of BLZ, with alternate weekly custody and twice-weekly visitation by each parent. It also prohibited Lopez Moreno from taking BLZ to Ecuador without prior notice to Zank. In December 2009, Lopez Moreno took BLZ to Ecuador with her, in violation of the divorce decree. Zank obtained an ex parte order from a Michigan state court,  temporarily granting him sole legal and physical custody of BLZ. Once Zank discovered that BLZ had been taken to Ecuador, he contacted the U.S. Department of State and filled out a Hague Convention petition with the United States Embassy in Ecuador. However, Zank did file the petition with the Ecuadorian courts, or otherwise attempt to secure the return of BLZ through procedures in Ecuador, because he had suffered what he called “the runaround” from U.S. Embassy officials.

          In Ecuador, Lopez Moreno enrolled BLZ in a private school and arranged for her to have language tutoring. BLZ flourished in this environment, participating in a number of extracurricular activities and making many Ecuadorian friends. The district court determined that, because BLZ had lived so fully in Ecuador from the ages of 3 to 10, she “had been acclimatized to Ecuador and was settled there,” such that she would have met the standards for establishing habitual residency in Ecuador.

          Beginning in 2010, Lopez Moreno first permitted Zank’s parents, and then Zank himself, to visit BLZ in Ecuador. In 2010, Lopez Moreno had obtained an ex parte order from an Ecuadorian court prohibiting BLZ from leaving the country. Lopez Moreno and Zank  reached an accord between themselves. Under their agreement, Lopez Moreno received full legal custody of BLZ and an increase in Zank’s child support payments from $200 to $300 a month, and Zank “waive[d] pursuing further action arising from the arrival of the minor child in Ecuador.” In return for his concessions, Zank received a lifting of the 2010 Ecuadorian court order, and Lopez Moreno’s permission to have BLZ visit him in Michigan when not in school. The district court made a specific determination that Zank “was coerced into making the agreement.”

          Zank and Lopez Moreno brought the agreement to an Ecuadorian family court for ratification. The Ecuadorian court approved and ratified the agreement, granting permanent custody of BLZ to Lopez Moreno in Ecuador, but permitting BLZ to make temporary visits to Zank in the United States. Following the Ecuadorian agreement, BLZ made one visit to Zank in Michigan in 2014. In 2015, before a second visit of BLZ to Zank in Michigan, Lopez Moreno and Zank entered into a second agreement, this one in the United States. This agreement tracked the Ecuadorian agreement.  The record left it unclear as to whether the agreement was actually filed with any court.

          In 2016, Lopez Moreno again sent BLZ to visit Zank for the summer. Zank testified that, during this visit, BLZ told him that Lopez Moreno had physically abused her, by hitting her and throwing a chair at her, and that she did not wish to return to Ecuador. On August 5, 2016, BLZ called Lopez Moreno, and, in a “very fast conversation,” BLZ stated that she had learned “the entire truth” about the divorce, believed that Lopez Moreno “was a drug user,” and had realized that Lopez Moreno had abducted her to Ecuador. On August 10, Zank did not place BLZ on a scheduled flight to Florida to visit Walt Disney World with Lopez Moreno’s father, and, on August 15, Zank did not place BLZ on a flight scheduled to take BLZ from Michigan back to Ecuador.

          On October 10, 2016, Zank filed a petition with the Montcalm County Circuit Court for permanent custody of BLZ. The Friend of the Court investigated Zank’s living situation and determined that the best interest of BLZ was for Zank to be granted permanent custody of her, given, among other things, that Lopez Moreno had violated the 2009 custody order and that BLZ voiced a preference for living permanently with Zank. Lopez Moreno was not present in this process, apparently because she had not updated her address with the court when she left for Ecuador. On October 31, 2016, the Montcalm County Circuit Court granted permanent sole custody of BLZ to Zank.

          On August 14, 2017, Lopez Moreno filed this Hague Convention petition in U.S. District Court, contending that Zank’s retention of BLZ in Michigan was wrongful. The complaint sought the immediate return of BLZ to Ecuador and made the allegation, necessary to relief under the Convention given Lopez Moreno’s arguments, that BLZ was a habitual resident of Ecuador. The district court rejected this argument. Although the court acknowledged that BLZ had spent such extensive time and maintained such a social connection to Ecuador that she would otherwise be deemed a habitual resident of that nation, it held that “because [Lopez Moreno] abducted BLZ in violation of Michigan law and brought her [to Ecuador] in 2009,” she could not have become habitually resident in Ecuador, and that her habitual residence accordingly remained in the United States. The district court proceeded to decide further that, because BLZ maintained habitual residency in the United States, the 2009 custody order continued to apply to BLZ and the subsequent Ecuadorian and American agreements between Lopez Moreno and Zank did not overcome that custody order. The former did not apply because an Ecuadorian court did not have jurisdiction over an American custody assignment, and the latter did not because there was no evidence that the agreement was ever ratified by the Montcalm County Circuit Court. Lopez Moreno appeals.

          The Court of Appeals observed that the central issue in this case was whether Lopez Moreno’s questionable removal of BLZ from Michigan to Ecuador in 2009 precluded the possibility that BLZ had become habitually resident in Ecuador for purposes of Lopez Moreno’s Hague Convention challenge to Zank’s retention of BLZ in Michigan in 2016.

           The Sixth Circuit noted that it had held that, for children above the age of cognizance,, a habitual residence is “the nation where, at the time of [her] 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.’ ” Robert v. Tesson, 507 F.3d 981, 993 (6th Cir. 2007). The Court pointed out that object and purpose of the Hague Convention is to provide an international legal scheme to “protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence.” Hague Abduction Convention, Preamble. States party to the Convention therefore undertake to return a wrongfully taken child when proceedings are brought promptly, subject to certain exceptions related to the child’s welfare and desires. The Convention also allows a person seeking relief to bring these proceedings without the assistance of State agents. Therefore, if Convention procedures are not fully pursued when a child is first abducted, it makes little sense to categorically permit later self-help abduction in the other direction, after the child has been acclimatized in the second country. Permitting re-abduction results in a total disregard for the limits that the Convention puts on the remedy for the first abduction, such as time limits, and exceptions for the child’s welfare or mature preference. Permitting abduction for a second time carries the same threat to the child’s well-being of being torn from an accustomed residence. The Convention scheme achieves its purposes only if Convention processes are applied, with applicable exceptions, each time a child is abducted from a country in which the child has been acclimatized. The rule applied by the district court in this case was not consistent with such a scheme. The Sixth Circuit noted that at  least two  sister circuits had come to a similar conclusion. Kijowska v. Haines, 463 F.3d 583, 588–89 (7th Cir. 2006) ; Ovalle v. Perez, 681 F. App’x 777, 779 (11th Cir. 2017).

          The court stated that its holding that Ecuador was the habitual residence of BLZ in 2016 did  not automatically mean that Zank had to return her . It held that just as Lopez Moreno could have raised defenses to a Hague Convention case had one been brought in Ecuador, Zank could raise such defenses in this case on remand. Several such defenses were raised by Zank in the district court below, but the district court had no occasion to reach them. At oral argument in this appeal, counsel for Lopez Moreno agreed that such arguments could be addressed in the district court should Lopez Moreno succeed in obtaining a remand.

          It remanded the case to the district court for a first evaluation of Zank’s defenses against Lopez Moreno’s prima facie Hague Convention case. Such a remand was warranted because these defenses are all fact-intensive ones, generally requiring specific and detailed fact-finding by the district court. See Friedrich II, 78 F.3d at 1067.

          The judgment of the district court was reversed and the case was remanded for further proceedings consistent with this opinion.

Castellanos Monzon v De La Roca, --- Fed.Appx. ----, 2018 WL 3471549 (3rd Cir., 2018) [Guatemala] [Petition denied][Remand]

          In Castellanos Monzon v De La Roca, --- Fed.Appx. ----, 2018 WL 3471549 (Mem) (3^rd Cir., 2018) Hugo Castellanos Monzón appealed from the denial of his petition for the return of his child, H.C., to Guatemala.

          Castellanos filed his petition with the District Court in 2016, eighteen months after his ex-wife, appellee Ingrid De La Roca, was alleged to have wrongfully removed H.C. to the U.S. without Castellanos’s consent. Castellanos took immediate steps to have H.C. returned by seeking redress from the Guatemalan Central Authority and the U.S. State Department. However, Castellanos failed to commence proceedings within one year of the date of H.C.’s wrongful removal, and, as the Third Circuit held, the District Court correctly applied the relevant statutory provisions for when proceedings are initiated more than a year after a child is removed from the requesting parent.

          The Court pointed out that the unambiguous text of ICARA required Castellanos to initiate a “proceeding” in “any court which has jurisdiction of such action,” and it is powerless to stretch that text to include either the Guatemalan Central Authority or the U.S. State Department.

           When proceedings for a petition for the return of a child begin more than one year from the child’s removal, the Convention states that the court “shall order the return of the child,” subject to specific affirmative defenses set forth in § 9003(e). De La Roca, as respondent to Castellanos’s petition, had to establish those defenses according to the burdens of proof specified in subsection (e)(2) of that statute. In   order to defeat Castellanos’s petition for the return of H.C., the statute clearly states that De La Roca had to establish “one of the exceptions set forth in article 13b or 20 of the Convention” “by clear and convincing evidence ... and” that she must establish “any other exception set forth in article 12 or 13 of the Convention” “by a preponderance of the evidence.”

           ICARA requires that a petitioner in an action for return of the child establish by a preponderance of the evidence that “the child has been wrongfully removed or retained within the meaning of the Convention.” 22 U.S.C. § 9003(e)(1)(A). In particular, a court must determine “(1) when the removal or retention took place; (2) the child’s habitual residence immediately prior to such removal or retention; (3) whether the removal or retention breached the petitioner’s custody rights under the law of the child’s habitual residence; and (4) whether the petitioner was exercising his or her custody rights at the time of removal or retention.” Karpenko, 619 F.3d at 263. Here, the District Court found that Castellanos had established a prima facie case of wrongful removal and/or retention.

          The District Court concluded that De La Roca had established by a preponderance of the evidence that H.C. was “now settled in the United States,” one of the exceptions set forth in Article 12 of the Convention, and that H.C. therefore should not be returned to his father in Guatemala. However, the District Court’s inquiry ended there. The court did not address whether De La Roca had established, by clear and convincing evidence, “one of the exceptions set forth in article 13b or 20 of the Convention,” as required by § 9003(e)(2)(A).

          The Third Circuit rejected  De La Roca’s argument that Congress intended that the requirements contained in subsections (e)(2)(A) and (e)(2)(B) be interpreted in the disjunctive. It held that until instructed to the contrary by Congress or the Supreme Court, we must assume that “and” in the statute means “and,” not “or.”

          It remanded the matter to the District Court with instructions to conduct both parts of the inquiry set forth in § 9003(e)(2) and that De La Roca be required to establish the exceptions provided in that statute pursuant to the respective levels of proof.

Law and The Family New York, 2d Ed by Joel R. Brandes contains almost 900 pages devoted to the Hague Convention on the Civil Aspects of International Child Abduction

Law and the Family New York, 2d Edition Revised

By Joel R. Brandes

Table of Contents, Volume 4 A, Pages 234-1111

Chapter 1

Hague Convention on the Civil Aspects of

International Child Abduction

§ 1:153 Nature and purpose of the Hague Convention and

Overview

§ 1:153.10 Text of the Convention on the Civil Aspects of

International Child Abduction done at the Hague on

October 25, 1980

§ 1:153.20 Text of the International Child Abduction Remedies Act.

§ 1:153.30 Central authority

§ 1:153.50 Hague Convention—Introduction to this Chapter

§ 1:153.60 Interpretation of The Hague Convention

§ 1:154 Applicable to habitual resident of state signatory countries

only

§ 1:154.10 Applicable only to Children less than 16 years old

§ 1:154.20 Defining “Habitual Residence”

§ 1:154.30 Wrongful Removal or Retention

§ 1:155 Rights of custody

§ 1:155.10 Rights of custody defined

§ 1:155.20 Ne exeat and Patria potestas—Defined

§ 1:155.30 Ne exeat rights and Patria potestas as rights of custody

§ 1:155.40 Rights of access distinguished

§ 1:155.50 Exercising rights of custody—Liberal approach

§ 1:156 Defenses to return under the Hague Convention—In

general

§ 1:157 Article 12: one-year limitations exception—The “now

settled” defense

§ 1:157.50 Article 12: one-year limitations and “now settled”

exception—Equitable tolling

§ 1:158 Article 20: Human rights and Fundamental Freedoms

exception—The human rights defense

§ 1:159 Article 13(a): consent or acquiescence exception—The

Consent defense

§ 1:160 Article 13 (b)—Grave Risk of Harm Exception—The Grave

Risk of Harm Defense

§ 1:160.10 — — —Undertakings

§ 1:161 Article 13: Wishes of the child exception—The “Age and

Maturity” defense

§ 1:162 Article 18—Discretion to Order Return of Child Where

Defense Established

§ 1:163 Effect of notice of custody dispute—Automatic stay of

state court custody determinations

§ 1:164 Article 26—Security, Costs and Expenses

§ 1:165 Central Authority—Non-judicial remedies

§ 1:166 —Application to Central Authority

§ 1:167 —Statement of reasons for delay

§ 1:168 Right to Exercise Federal and state judicial remedies

§ 1:168.10 Federal Subject Matter Jurisdiction—In General

§ 1:168.20 Federal Subject Matter Jurisdiction Under the

International Child Abduction Remedies Act

§ 1:168.30 Federal Question Jurisdiction

§ 1:168.40 —Venue

§ 1:168.50 Standing to File a Hague Petition in Federal District

Court

§ 1:169 Commencement of proceedings—Jurisdiction and Venue

§ 1:169.10 Pleading Requirements and Service of Summons in Hague

Convention Cases—In General

§ 1:169.20 Commencment of Proceedings Under ICARA—Definitions

§ 1:169.30 Stay of Custody Proceedings After Notice of Wrongful

Removal or Retention—Article 16

§ 1:169.40 Article 17—Effect of State Court Decision after Notice

§ 1:169.60 Article 11—Expeditious Determination

§ 1:169.70 Motion Practice in Hague Convention Cases—In General

§ 1:170 Notice of commencement of proceedings

§ 1:171 Petitioner’s burden of proof

§ 1:172 Respondent’s burden of proof

§ 1:173 Determination as to Wrongful Removal From Authorities

of State of habitual residence of child

§ 1:174 Provisional Remedies—Temporary Restraining Order,

Surrender Passport, Post Bond, Temporary Custody and

Access to Child

§ 1:175 Appointment of Guardian Ad Litem and Attorney for the

Child In Hague Convention Cases

§ 1:176 Legal aid

§ 1:177 Full faith and credit

§ 1:177.08 Jurisdiction to enforce rights of access

§ 1:177.16 Pleading Requirements

§ 1:177.20 Default Judgment

§ 1:177.24 Removal of state Hague proceedings to federal court

§ 1:177.32 Discovery

§ 1:177.40 Federal Abstention Under the Younger and Colorado River

Abstention Doctrines

§ 1:177.48 Denial of Relief under the Fugitive Disentitlement

Doctrine

§ 1:177.56 Applicability of the Mootness Doctrine

§ 1:177.64 Withdrawal or dismissal of own petition

§ 1:177.72 Availability of summary judgment

§ 1:177.74 Referral of Hague Convention Petition to Magistrate

Judge to Report and Recommend

§ 1:177.76 Summary bench trial

§ 1:177.80 Rules of Evidence, Admissibility of Foreign Documents

and Expert Opinion—In General

§ 1:177.82 Testimony By Video Transmission from a different location

§ 1:177.86 Judicial notice of foreign law

§ 1:177.87 Child’s Right to Appeal

§ 1:177.88 Jurisidiction of District Court to Maintain Status Quo

Pending Appeal

§ 1:177.89 Judgment of District Court for Return. Remedies. Motion

for New Trial. Enforcement of Judgment

§ 1:177.90 Standard of review

§ 1:177.91 Issuance of Mandate by Court of Appeals

§ 1:177.92 Hague Convention Proceedings in New York State

Courts—Commencement of Proceedings

§ 1:177.93 State Court Jurisdiction of Hague Convention Cases

§ 1:177.94 Hague Convention Proceedings in New York State

Courts—Habitual Residence

§ 1:177.96 —Grave Risk of Harm

§ 1:177.98 Conditional order granting return of child

§ 1:178.99 Re-return order

Kovacic v Harris, 2018 WL 3388333 (D. Maryland, 2018)[Croatia] [Age and Maturity defense] [Petition denied]

In Kovacic v Harris, 2018 WL 3388333 (D. Maryland, 2018) the district court denied the application of Plaintiff Ivica Kovačić for the Return of his Child to Croatia, The Court concluded that while Mrs. Harris was wrongfully retaining N.K. in the United States under the Hague Convention, N.K. had reached an age and degree of maturity that the Court took into account her objections to returning to Croatia and did not order her return.

Plaintiff Ivica Kovačić and Defendant Danijela Harris were married on February 22, 2003 in Desna Martinska Ves, Croatia. On May 31, 2003, their daughter, “N.K.”, was born. She was currently fifteen-years-old. Two years after the couple separated, on February 9, 2009, the parties formally dissolved their marriage in the Municipal Court in Sisak. The Municipal Court Judgment entered that day ordered that N.K. “will live with the mother Danijela Kovačić in Sisak...[and] parental care remains shared.”  The Judgment further set a specified schedule for Mr. Kovačić’s visitation with N.K., including every other weekend while N.K. was in school, “the first half of all winter, spring and summer school holidays, other holidays alternately, and according to the agreement of parents.”  

In 2015, Mrs. Harris and N.K. decided to travel to the United States to visit Mrs. Harris’ family. Mrs. Harris testified that she had relatives who have been living in the United States for a long time. N.K. was twelve-years-old at the time and needed to obtain a tourist visa. In order to do so, Mr. Kovačić notarized a statement declaring that he gave Mrs. Harris permission to request a tourist visa for their daughter. He further stated that “I also agree that once her visa is issued, my daughter has my permission to spend her winter school vacation, 2015-2016, in the United States of America, in the company of Danijela Kovačić.” On January 7, 2016, Mrs. Harris told Mr. Kovačić that she and N.K. would not be returning to Croatia. Mrs. Harris and N.K. testified that they decided to stay so that N.K. could enroll in school and take English classes. Fourteen days later, on January 21, 2016, Mr. Kovačić filed a Request for Return in Croatia under Article 3 of the Hague Convention.

          

          During the bench trial, N.K., testified that she did not want to return to Croatia with her father. She lived with her mother and stepfather in Elkton, Maryland. She objected to returning to Croatia because most of her family and friends were here in the United States; the friends she had in Croatia have moved to a different city. She also objected to living with her father in Croatia, testifying that he had never been there for her when she needed him, and she was afraid of what he might do after the court proceedings. She did testify that although she was not open to having a relationship with her father right now, she may in the future “if things changed, and he shows that he cares about me and about my decisions.”

          N.K. impressed this Court as an extremely mature fifteen-year-old. She was able to testify in great depth about her relationship with her father. N.K. seemed more mature and measured in her testimony than did her father. She did not attempt to embellish her testimony with respect to any physical reactions of her father. However, she was quite clear in referencing that even in past years “he was never there for me when I needed him.”

          Prior to trial, the Court held a hearing on Plaintiff’s motion for partial summary judgment on his affirmative Hague Convention claim. Plaintiff Kovačić established a prima facie case of wrongful retention. The Court also found Mr. Kovačić had joint custody rights over N.K.

          The Court observed, inter alia, that there is the “age and maturity” exception. This exception provides that a court is not required to order the return of a wrongfully removed or retained child if the court finds that “the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Hague Convention, Art. 13. The party objecting to the child’s return must prove that this exception applies by a preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(B). A court must exercise discretion when evaluating this exception “because of the potential for undue influence by the person who allegedly wrongfully retained the child.” Trudrung v. Trudrung, 686 F. Supp. 2d 570, 576 (M.D.N.C. Feb. 10, 2010) (quoting Hazbun Escaf v. Rodriquez, 200 F. Supp. 2d 603, 615 (E.D. Va. 2002)). The Hague Convention does not set an age at which a child is mature enough for the court to take into account his or her objection to being returned. Luis Ischiu v. Gomez Garcia, 274 F. Supp. 3d 339 (D. Md. 2017) Therefore, the inquiry is necessarily a factual determination to be made on a case-by-case basis. See Rodriguez v. Yanez, 817 F.3d 466, 474 (5th Cir. 2016)

          Based on the testimony presented and the Court’s observations of N.K., N.K. attained an age and degree of maturity at which it is appropriate to take account of her objections to returning to Croatia. N.K. was over fifteen-years-old, and less than a year away from the age at which the Hague Convention would no longer apply to her. This Court observed her testify. She displayed a maturity for her age and demonstrated an understanding of the significance of the proceedings. She also spoke articulately considering English was not her first language and presented herself as well-mannered and intelligent. Mrs. Harris testified that since being in the United States, N.K. has made honor roll every grading period. The Court concluded that she had reached an age and degree of maturity for this Court to take account of her views. See Trudrung v. Trudrung, 686 F. Supp. 2d 570 (M.D.N.C. 2010)

          The court next pointed out that the district court’s finding that a child has or has not objected is a fact-intensive determination that is based in part on the court’s personal observations of the child. Custodio v. Samillan, 842 F.3d 1084, 1089 (8th Cir. 2016). The Court began by evaluating whether N.K.’s objections to returning to Croatia appeared to be the product of Mrs. Harris’ undue influence. See de Silva, 481 F.3d at 1286 (explaining that a “child’s wishes” should not be considered if the court finds that the child’s desires are the “product of undue influence”). Mr. Kovačić testified that N.K. had been “brain washed” by Mrs. Harris. N.K. testified that Mrs. Harris never spoke poorly or otherwise criticized Mr. Kovačić’s role as her father. N.K. testified that she would be open to having a relationship with her father in the future “if things changed, and he showed that he cared about [her] and [her] decisions.” On the other hand, N.K. testified that her father openly spoke poorly about her mother and the United States. Mr. Kovačić acknowledged in September of 2017 that Mrs. Harris encouraged N.K.’s relationship with her father.

The reasons behind N.K.’s objection to returning to Croatia demonstrated that she was not objecting merely because she had been in the United States with her mother since December of 2015. N.K.’s reasons for not wanting to return were similar to those in Vasconcelos v. Batista, 512 F. App’x 403, 408 (5th Cir. 2013), where the Fifth Circuit affirmed the district court’s application of the age and maturity exception when the child (1) expressed she did not want to visit her father when he was in the United States, (2) had particularized ties to the United States including that she had done well in school, was involved in extracurricular activities, and had been receiving treatment for epilepsy, and (3) had virtually no ties to Brazil and “barely any knowledge” of her father who had not communicated with her since she left Brazil.

          The Court found that N.K. was not objecting to returning to Croatia merely because of the length of time she had spent with her mother in the United States. She was objecting because she has had a difficult relationship with her father and had very few connections left in Croatia. The Court concluded that N.K. was of the “age and degree of maturity at which it is appropriate to take account of [her] views” and she “objects to being returned.” Hague Convention, Art. 13. Therefore, under the Hague Convention, although Mrs. Harris was wrongfully retaining N.K. in the United States, this Court was not bound to order her return to Croatia.

         

         The Court acknowledged its discretion to order the return of N.K. despite finding that the age and maturity exception applies and declined to do so.

Amdamaskal v Amdamaskal, 2018 WL 3360767 (D. Minnesota, 2018)[Israel] [Now settled defense] [Petition denied]

In Amdamaskal v Amdamaskal, 2018 WL 3360767 (D. Minnesota, 2018) the district court denied the Petition of Adis Marsha Amdamaskal (“Adis”) who sought the return of his children, M. and L., to Israel.

.         Adis immigrated to Israel from Ethiopia in 1991.  They were married in Ethiopia in 2002. After the marriage, Selamawit immigrated to Israel.  M. was born in 2006 while Adis and Selamawit were traveling in the United States. The family returned to Israel when M. was six months old. L. was born in Israel in 2011.  In March 2013, Adis was convicted of assaulting Selamawit and one of the children. Adis was sentenced to a conditional sentence of six months, with the condition being that he not be convicted of additional assaults.  Selamawit alleged that Adis regularly verbally and physically abused her during their marriage. Selamawit testified that she brought her children to the United States to protect them from Adis.  With Adis’s knowledge and permission, Selamawit and the children left Israel in January 2016 to visit family in Ethiopia. They were supposed to return to Israel on February 4, 2016, but instead Selamawit brought the children to the United States without the knowledge or permission of Adis. A few days after Selamawit traveled to the United States, Adis’s sister contacted one of Selamawit’s sisters in Ethiopia. Selamawit’s sister informed Adis’s sister that Selamawit had left for the United States.  Adis testified that Selamawit’s family thought that Selamawit had returned to Israel and that they did not tell him that she had departed for the United States. Documents in the record made it clear that Adis knew almost immediately that Selamawit and the children were in the United States. The Court therefore credited the written statement of Selamawit’s sister, that she told Adis’s sister that Selamawit went to the United States. On February 4, 2016—the same day that Selamawit and the children were supposed to return to Israel—Adis filed a complaint with the Israeli police concerning his missing wife and children. Ten days later, on February 14, 2016, Adis, through counsel, sent a letter and supporting materials to the Israeli Ministry of Justice entitled “Re: Application to Institute Proceedings Under The Hague Convention—Abduction of Minors.”  On February 29, 2016, Adis obtained an ex parte order from an Israeli court prohibiting the removal of the children from Israel. Adis also obtained a stay of leave order from the court dated March 1, 2016, apparently also prohibiting the children’s removal. Adis knew almost immediately that Selamawit and the children were in the United States. At least as early as March 2016, Adis knew that they were in Minnesota. And as of May 30, 2016, Adis knew that the children were probably living in St. Paul, where Selamawit’s sister and brother lived. Adis testified that he did not learn of his children’s whereabouts until sometime after March 2017. The Court did not credit this testimony. On March 7, 2017, Selamawit initiated divorce proceedings in Ramsey County District Court by serving Adis with a summons and petition for dissolution of marriage.  Adis initially filed what appeared to be a pro se response asking that the case be dismissed and citing, among other things, his Hague Convention application. In the meantime, the State Department formally notified the court that Adis had applied for the children’s return under the Hague Convention. The State Department explained that, as a result, the state court should refrain from making any custody determinations until the Hague Convention issue was resolved.. The state court eventually gave Adis until September 18, 2017 to initiate court proceedings under the Hague Convention.  Adis did not meet the September 18 deadline. But on or about October 17, 2017, Adis commenced this action in state court by serving Selamawit with a verified petition. Selamawit removed the proceeding to the district Court on October 31, 2017.

There was no dispute that Adis met his burden of proving that the children habitually resided in Israel, that their removal to the United States on or about February 4, 2016, was in breach of his custody rights, and that he was exercising those rights at the time of removal. Accordingly, the burden shifted to Selamawit to establish an affirmative defense to the children’s return. Custodio, 842 F.3d at 1089; 22 U.S.C. § 9003(e)(2).  Slamawit first raised the “well settled” defense—that is, she asserted that Adis commenced these proceedings more than one year after the wrongful removal and the children are now settled in their new environment. Lozano, 134 S. Ct. at 1229. The district court found that she had proven the elements of the well-settled defense. The Hague Convention permits a court to deny a petition for a child’s return if the petition was filed more than one year after the wrongful removal and the child is settled in her new environment. The one-year period is not a statute of limitations; instead, its expiration “opens the door to consideration of a third party’s interests, i.e., the child’s interest in settlement.” Lozano, 134 S. Ct. at 1234–35. For that reason, it is not subject to equitable tolling. Id. at 1236. Adis did not dispute that he did not commence these proceedings until more than one year had passed from February 4, 2016, the date of the wrongful removal. See Wojcik v. Wojcik, 959 F. Supp. 413, 418–20 (E.D. Mich. 1997) (submitting a Hague Convention application to the State Department does not stop the one-year clock). The only question, then, was whether the children are settled in the United States. In this context, “settled” means that “the child has significant emotional and physical connections demonstrating security, stability, and permanence in [her] new environment.” Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir. 2012), aff’d sub nom. Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014). In determining whether a child is settled, courts consider such factors as: (1) the age of the child; (2) the stability of the child’s residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent’s employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent.

All of these factors indicated that M. and L. were settled in their new environment. At the time Adis filed the petition, the children were 11 and 6 years old, which is old enough to form relationships and emotional ties to the community. They had also been here for over 20 months—over a fourth of L.’s life—and had lived with extended family in the same housing complex since their arrival. Selamawit took immediate steps to enroll the children in school—and it was clear, from the specific and affectionate testimony of the school official, that they were fully integrated into and thriving in their classrooms. They were fluent in English. Through their school and after-school programming, the children had connection to their local religious community. The older child, M., was involved in age-appropriate extracurricular activities. The children were also surrounded by extended family; they not only lived with their uncle and his wife, but they had an aunt and cousins nearby with whom they were close. Finally, Selamawit was legally authorized to work in the United States, had a full-time job, and had applied for asylum; M. was a citizen of the United States. The Court found that Selamawit met her burden of showing that the children were settled in their new environment.

The Court observed that even when a court has found a child to be settled in her new environment, the court retains the equitable discretion to order the child’s return if other factors—including “the need to discourage inequitable conduct”—outweigh the child’s need for stability. Lozano, 134 S. Ct. at 1237 (Alito, J., concurring); see also Tsai–Yi Yang v. Fu–Chiang Tsui, 499 F.3d 259, 278 (3d Cir. 2007) (even if the respondent establishes an affirmative defense, the court retains the discretion to return the child if necessary to effectuate the goals of the Hague Convention).  In this case, returning the children to Israel despite their settled status in the United States was not necessary to serve the purposes of the Hague Convention. Although Selamawit did not inform Adis of the children’s location, she did not hide their presence in Minnesota. Instead, she lived openly with relatives—relatives whose identities and whose presence in the United States were known to Adis. She also enrolled the children in school, obtained medical care for them, and applied for asylum.

Kovacic v Harris, 2018 WL 3105772 (D. Maryland, 2018) [Croatia] [Well-settled exception]

In Kovacic v Harris, 2018 WL 3105772 (D. Maryland, 2018) Plaintiff Ivica Kovačić (“Plaintiff” or “Kovačić”) sought the return of his daughter, “N.K.,” to Croatia. Plaintiff Ivica Kovačić and Defendant Danijela Harris (formerly Kovačić) were married on February 22, 2003 in Desna Martinska Ves, Croatia. On May 31, 2003, their daughter, “N.K.”, was born. Six years later, on February 9, 2009, the parties dissolved their marriage. In a Judgment dated that same day, the Municipal Court of Sisak, Croatia ordered that N.K. would “live with the mother Danijela Kovačić in Sisak...[and that p]arental care remain[ed] shared.”  The Croatian Court further ordered that Kovačić would have specified visitation time with N.K., pursuant to a schedule set out in paragraph III of the Judgment. Harris testified that after the divorce, Kovačić saw N.K. almost every other weekend. Two years later, Plaintiff moved to amend the Croatian Court’s Judgment, asserting that due to a change in circumstances N.K. should be entrusted to his care. The court declined to do so, noting a “problem of communication” between the parties “about their shared care of the minor child,” but finding that there was not a sufficient change in circumstances warranting an amended judgment.  In December of 2015, Harris departed Croatia and brought N.K. to the United States to see Harris’ sick aunt and grandmother. Kovačić had given Harris permission to apply for a tourist visa for N.K. and also agreed that N.K. could spend her winter school vacation from December of 2015 to January of 2016 in the United States. On January 7, 2016, however, Harris made the decision to stay in the United States. On January 6, 2017, Plaintiff filed suit under the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001, et seq., seeking the return of his daughter, “N.K.,” to her “habitual residence” in Croatia, On September 7, 2017, this Court approved the parties’ voluntary stipulation of dismissal on the ground that they had “agreed to settle this matter and ha[d] fully executed a settlement agreement.” Six months later, however, Plaintiff Kovačić filed a Motion for Relief from Judgment, asserting that Defendant had not honored commitments to intermittently send N.K. to Croatia. The Court granted Plaintiff’s Motion, and this case was scheduled for a two-day bench trial.

Plaintiff filed, among other things, a Motion in Limine to Admit Official Croatian Government Declarations, and a Motion for Partial Summary Judgment on Defendant’s Third Affirmative Defense.

The Court granted Plaintiff’s Motion in Limine to admit two declarations of Suncica Loncar, Senior Adviser Specialist for the Ministry for Demography, Family, Youth and Social Policy of the Republic of Croatia. He asserted that the declarations were instructive on the issue of whether Plaintiff had “rights of custody. The district court pointed out that it had  previously noted that “[i]t is well-established that the Hague Convention envisions that proof of foreign law may be established via ‘certificates or affidavits,’ Central Authority opinions, letters, and expert testimony.” Kovacic, 2017 WL 2719362, at *4 (citing Pérez-Vera Report, note 19; Whallon v. Lynn, 230 F.3d 450, 458 (1st Cir. 2000); Giampaolo v. Erneta, 390 F. Supp. 2d 1269 (N.D. Ga. 2004)). Further, Federal Rule of Evidence 44.1 provides that “[i]n determining foreign law, the court may consider any relevant material or source, including testimony.” Fed. R. Civ. P. 44.1.

Plaintiff Kovačić also moved for partial summary judgment on Defendant Harris’ third affirmative defense which invoked the “well-settled” exception in Article 12 of the Hague Convention, asserting that it was undisputed that he filed suit less than one year after he learned of the wrongful retention. He asserted that Defendant stated in a Response to an Interrogatory that she did not make the decision to stay in the United States until January 7, 2016, and he filed this action on January 6, 2017. Defendant did not dispute that Plaintiff filed the action within one year of the wrongful retention. Rather, she argued that “it has been an additional year and a half since the filing, and N.K. is settled and has built a life in the United States.” The district court held that the only relevant time period for considering whether the well-settled exception applies, is the time between the alleged wrongful removal and retention and the filing of the action. Because Plaintiff filed this action within one year of learning that Harris intended to keep N.K. in the United States, the well-settled exception did not apply. Plaintiff’s Motion for Partial Summary Judgment on Defendant’s Third Affirmative Defense was granted.