Fernandez v Bailey, 2018 WL 6060380 (11th Cir., 2018) [Panama] [Now settled exception] [Petition granted]

          In Fernandez v Bailey, 2018 WL 6060380 (11^th Cir., 2018) on May 15, 2009, American Christy Bailey (mother”) fled Panama with her two nine-month-old sons without telling the boys’ father, Roque Jacinto Fernandez. After he found the mother and boys living in Missouri, he petitioned in the District Court for the Eastern District of Missouri seeking the return of the boys to Panama under the Hague Convention. In September 2010, the Missouri district court ordered their return upon finding that the father had a custody right under Panamanian law, the mother’s removal of the children was “wrongful” and in violation of the Convention, and none of the exceptions to return applied. The mother returned to Panama with the children so custody proceedings there could determine the matter. While the boys continued to live with their mother in Panama, their father visited with them every other weekend and pursued custody in Panamanian court. Visits went on routinely until January 2013.The father had not seen or spoken with the children since then. The mother secured a job in Tampa, and on February 2, 2014, less than three and one-half years after she was ordered to return to Panama, with custody proceedings in Panama pending, the mother again abducted the children to the United States. The boys were dual Panamanian-American citizens with American passports, and they were allowed to lawfully enter the country. In Panama, the father searched for his children. In September 2014 the father hired a new attorney who sought information about the children from Panamanian immigration authorities. In January 2015, those authorities informed the father that the children had left Panama nearly a year earlier. At that point, the father turned to the U.S. Department of State (“State”) for assistance in locating his children. Eventually the father’s private investigator located the boys in Tampa, and on August 24, 2016, two and one-half years following their abduction from Panama, the father filed his second petition for return of the children, this time in the District Court for the Middle District of Florida. Following a hearing, the district court found that the father had established a prima facie case under the Hague Convention, but determined that the mother had established by a preponderance of the evidence the affirmative defense that the children were settled within the meaning of Article 12 of the Convention. Although the district court acknowledged that it retained discretion to order the children returned, it declined to do so, finding that the children’s interest in settlement outweighed the Hague Convention’s purpose to discourage wrongful removals.

          The Eleventh Circuit reversed and granted the petition holding that the district court abused its discretion by not ordering the children returned to Panama in the face of the mother’s second abduction. It construed the term “settled” to mean that a child is settled within the meaning of ICARA and the Convention when a preponderance of the evidence shows that the child has significant connections to their new home that indicate that the child has developed a stable, permanent, and nontransitory life in their new country to such a degree that return would be to the child’s detriment. In noting that all returns will necessarily involve some level of disruption to the child or children involved, it cautioned that disruption should not be considered per se detrimental. Rather, the “settled” inquiry requires courts to carefully consider the totality of the circumstances. It noted that consistent with the language in Article 12, most courts in the United States have held that, after the first year of abduction, a court is permitted but not mandated to order the child’s return notwithstanding the settlement of the child. See, e.g., Alcala v. Hernandez, 826 F.3d 161, 175 (4th Cir. 2016); Yaman v. Yaman, 730 F.3d 1, 18 (1st Cir. 2013); Blondin v. Dubois, 238 F.3d 153, 164 (2d Cir. 2001) It concluded that based on Article 18 of the Convention a court can order the return of a wrongfully removed child who is settled in his new environment.

          The Court explained that the two primary objectives of the Convention, according to Article 1, are “to secure the prompt return of children wrongfully removed or retained,” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting State.” 

          Because it concluded that a court may exercise its discretion to order the return of a child notwithstanding finding that an exception to return is met, the Eleventh Circuit reviewed the determination by the district court to return or not to return a child for an abuse of discretion.

          The Eleventh Circuit pointed out that the return remedy is “[t]he Convention’s central operating feature.” Abbott, 560 U.S. at 9, 130 S.Ct. 1983. Based on “the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence,” return must be the default in order to “lay[ ] venue for the ultimate custody determination in the child’s country of habitual residence rather than the country to which the child is abducted.” Lozano, 572 U.S. at 5, 134 S.Ct. 1224. The Convention was designed in part to prevent an abducting parent from wrongfully removing a child to a friendlier forum for the adjudication of a custody dispute.  However, a district court ordering the return of a settled child should be an infrequent occurrence, so as not to swallow the text of Article 12’s stated exception.

          This case was unique for several reasons. This was the second time in five years that the mother had wrongfully removed the boys from Panama and brought them to the United States. It was the second time that the father, from abroad, had to petition a federal district court under the Convention for the return of the boys to their habitual residence in Panama. The Eleventh Circuit believed that the district court abused its discretion by not sufficiently weighing the audacity (and significance) of a second wrongful removal. The mother admitted that when she wrongfully removed the boys from Panama in 2014, she left the country without the father’s knowledge. She also left the country in defiance of an exit restriction, which the Panamanian court had put into place in the wake of the 2009 abduction specifically to prevent the mother from leaving Panama with the children a second time. Because of this court-ordered exit restriction, the father did not believe the mother could have left the country with the boys, which resulted in him looking for them within Panama, rather than outside it, from March of 2013 until January of 2015. The district court did not properly weigh the mother’s flouting of the 2010 Missouri district court’s injunction which ordered the return of the boys to Panama, or the mother’s disrespect for the Panamanian court’s exit restriction forbidding her from taking the boys from Panama.

          Second, the wrongful removal at issue here occurred while the Panamanian courts were deeply involved in multiple issues related to the children’s custody.  By wrongfully removing the boys, the mother prevented the Panamanian courts from resolving these outstanding issues. Third, the result of the district court’s order was that child custody proceedings would be held in Florida. But the father was currently not allowed, and likely would never be permitted, to come to the United States due to a juvenile felony burglary conviction. This meant that the father would not be able to personally appear before a Florida court to argue for custody. As the district court recognized, this state of affairs gives the mother a decided home-field advantage in the custody proceedings, and significantly impedes the father’s ability to fight for his rights. Despite this acknowledgment, the district court concluded that “the children’s interest in settlement in this case outweighed the other interests that would be served by returning the children to Panama.”

          The Court held that given the confluence of the unique facts in this case the district court’s decision to not order the return of the boys was contrary to the aims and objectives of the Convention and constituted an abuse of discretion. It remanded the matter to the district court to grant the petition and enter a judgment ordering the children returned to Panama.

Mohácsi v Sofia, --- F.Supp.3d ----, 2018 WL 5818541 (EDNY, 2018)[Hungary] [Habitual Residence][Petition denied]

          In Mohácsi v Sofia, --- F.Supp.3d ----, 2018 WL 5818541 (EDNY, 2018) the district court denied the fathers petition for the immediate return of his son NIR to Hungary.

          Petitioner and Respondent met in June 2012 in Budapest, Hungary. Respondent moved in with Petitioner within a few weeks after they met. After Petitioner and Respondent had been dating for a few weeks, their relationship began to deteriorate. After moving in with Petitioner, Respondent became aware of his alcohol consumption, and testified he consumed alcohol on a daily basis, including beer, vodka, scotch, and wine. Petitioner also used ecstasy. After they had been living together for a few weeks, Petitioner began pressuring Respondent to have a sexual encounter with another man, which made Respondent uncomfortable. The requests continued every day during the summer and fall of 2012. When Respondent refused, Petitioner became angry and accused her of “bring[ing] him down.” After Petitioner’s repeated demands, she had sex with the other man. Petitioner videotaped the encounter and uploaded the videos to his YouTube channel. As Petitioner admitted, he physically assaulted Respondent during their relationship. In December 2013, Respondent became pregnant with NIR. Respondent, however, testified that during her pregnancy, she wanted to raise NIR in New York and never intended to raise NIR in Hungary from his birth. While Respondent was pregnant with NIR, Petitioner continued to ask her to have sex with other men, and in February 2014, Respondent gave in to his requests. Petitioner recorded the encounter and uploaded it to his YouTube channel. Both parties agree they had an argument in June 2014 that effectively ended their relationship, Respondent went to her mother’s apartment, where she lived after moving out from living with Petitioner. NIR was born in Budapest, Hungary on September 19, 2014. Petitioner was not listed as NIR’s father on NIR’s birth certificate. Approximately two months after NIR’s birth, Petitioner filed a paternity lawsuit in Hungary to establish his parental rights. Respondent did not have any issues obtaining a passport for NIR without Petitioner’s consent. Petitioner told Respondent that if it turned out NIR was not his son, he would kill her. In early 2015, Petitioner continued to send harassing messages to Respondent. On August 25, 2015, Respondent left with NIR for the United States. Respondent arrived in New York, where her mother’s husband lived at the time and still currently lives. Respondent testified that when she left, she did not intend to return to Hungary to raise NIR there, and had not considered going back to Hungary since coming to the United States. Since arriving in New York, Respondent has not left. Tr. 204:2-4. Respondent’s father sends money to Respondent on a monthly basis and financially supports her and NIR; the amount he sends her has fluctuated but gradually increased to $1,000.00 per month. Respondent lived at several locations in New York before she met Carlos Herrera in October 2015. They married after living together for eight months. Mr. Herrera passed away in May 2017 because of health complications related to kidney disease and a heart attack. In June 2016, the Hungarian court issued a decision declaring Petitioner the father of NIR. After the court order, Petitioner was able to change NIR’s birth certificate to reflect his paternity.   Respondent and NIR were both currently permanent residents of the United States, having applied in August 2016. Respondent and NIR were evicted from the home they shared with Mr. Herrera and currently live in a family center where they have a large room, private bathroom, and kitchenette; they have now lived there for several months. NIR has his own bed and Respondent stated she feels “safe and secure” in their current residence, where they are permitted to stay for up to one year. NIR’s primary language is English, and he speaks only a “few words” of Hungarian. He had friends in New York and now attends school. Respondent testified that NIR loves New York and is excited about going to school. Petitioner continued to threaten Respondent since she has been in New York.

          The proceeding was commenced on May 1, 2018. During the trial both parties presented testimony from Hungarian law experts. Respondent’s Hungarian law expert, Dr. Blanca Illés—whose testimony this Court credited—testified Petitioner became a father by court order. In Hungary, an unmarried father has no legal custodial rights before paternity is established, and an engagement between the parties does not grant an unmarried father any additional rights. Regarding the date upon which Petitioner acquired paternity rights, Dr. Illés testified that even though the court order at issue—bears a date of June 16, 2016, the court order did not become legally binding and final until September 2, 2016, because of Hungarian legal rules governing the time for appeals and finality of certain court orders. Accordingly, Dr. Illés testified that Petitioner became the father of NIR on September 2, 2016, once the court order became final. Dr. Illés testified that under Hungarian law, Respondent would have been legally permitted to leave Hungary for the United States in August 2015 because, at that time, Respondent was the sole custodial parent, and the pendency of the Hungarian court paternity proceeding did not change the analysis. Dr. Illés explained that during a paternity case, a father does not have parental rights.  Dr. Illés testified that under Hungarian law, paternity orders from a court do not have retroactive effect. Dr. Illés testified that while a paternity case is pending, the court before which the case is pending does not have any custodial rights, nor does a trustee appointed to represent the interests of the child.

          The district court found that Petitioner failed to establish his prima facie case because Petitioner could not show Respondent wrongfully removed NIR to or retained NIR in the United States in violation of his custodial rights under Hungarian law. In dicta, the court stated that  even if Petitioner could establish a case for wrongful removal or retention, his petition must still be denied because Respondent  satisfied her burden of establishing two applicable defenses: (1) there is a grave risk of harm to NIR if this Court ordered him “returned” to Hungary, and (2) NIR is now settled in the United States and this proceeding was commenced more than one year from the date of the alleged wrongful removal or retention.

          The district court rejected Petitioners argument that Respondent wrongfully removed NIR from Hungary. Petitioner’s claim failed because even if Petitioner could establish Hungary as NIR’s place of habitual residence as of August 2015, neither Petitioner nor the Hungarian court had any custody rights at the time of removal. Both Hungarian law experts testified that Petitioner had no parental or custody rights before the Hungarian court issued an order declaring Petitioner the father of NIR in June 2016 (which did not become final until September 2, 2016). Both experts testified the Hungarian court order at issue was not retroactive.

          Petitioner argued that even if the  Court found Respondent’s removal of NIR to the United States in August 2015 was not wrongful, Respondent wrongfully retained NIR in the United States in violation of his custody rights. Petitioner argued NIR’s retention in the United States became wrongful “on the date that Petitioner’s custody rights were confirmed,” which Petitioner contended is sometime in early July 2016. According to Petitioner, because he did not consent to NIR’s continued retention in the United States, Respondent’s continued retention of NIR became wrongful at that time.  The district court stated that for Petitioner to prevail on his claim of wrongful retention, he had to show NIR was a habitual resident of Hungary at the time he alleged Respondent’s continued retention became wrongful. This Court found Petitioner’s paternal rights became final on September 2, 2016. Petitioner’s claim of wrongful retention turned on the determination of NIR’s habitual residence immediately prior to September 2, 2016, when the Hungarian court order became final and when Petitioner alleged the retention of NIR in the United States became wrongful.

          The court observed that under Gitter, the first step in determining habitual residence under the Convention is to look into the intent “of those entitled to fix the child’s residence.” Gitter, 396 F.3d at 134. When Respondent moved with NIR to the United States in August 2015, Petitioner had not been confirmed as NIR’s father and was not entitled to fix NIR’s residence. See Redmond, 724 F.3d at 747 (finding respondent, who had sole custody of the child at issue, had the “exclusive right to fix the place of [the child’s] residence”). As a result, only Respondent’s intent was relevant. She testified she always intended to raise NIR in New York and never intended to raise NIR in Hungary. Her intent was supported by evidence in the record, including her marriage to a U.S. citizen, the fact that she and NIR were both lawful permanent residents, and the fact that she had not left New York since arriving. Respondent’s physical move to the United States with NIR, coupled with her intent to raise NIR in New York, established that as of September 2, 2016—when the Hungarian court’s order became final—the United States had already been established as NIR’s habitual residence. Petitioner’s claim of wrongful retention failed because Petitioner could not show NIR hasdbeen wrongfully retained in a country other than his place of habitual residence, which was the United States.

          Petitioner argued it is “absurd” to suggest Hungary was not established as NIR’s place of habitual residence. Given the lack of shared intent and the breakdown of the parties’ relationship prior to NIR’s birth, the Court concludes Hungary was never established as NIR’s place of habitual residence. See, e.g., In re A.L.C., 607 F. App’x at 662-63 (concluding the child’s “nine months as an infant in Los Angeles do not result in [the child] acquiring habitual residence in the United States” given lack of shared parental intent). Although Petitioner emphasized the determination of the Hungarian court that NIR was a habitual resident of Hungary, the Hungarian court was not deciding habitual residence under the Convention and was not applying the applicable standards for determining habitual residence under the Convention. Petitioner has failed to establish that NIR—who was less than one year old when Respondent moved with him to the United States in August 2015—was ever habitually resident in Hungary given the lack of shared intent to raise NIR there, the breakdown of the parties’ relationship prior to NIR’s birth, and NIR’s presumed inability to form meaningful connections as an infant before leaving. Accordingly, even when the Court considered evidence of Petitioner’s stated intent to raise NIR in Hungary, Petitioner’s claim of wrongful retention still failed.

          The Court noted that “a parent may not use the Convention to alter the child’s residential status based on a legal development in the parent’s favor.” Redmond, 724 F.3d at 742. By the time the Hungarian court’s order declaring Petitioner the father of NIR became final on September 2, 2016, Respondent and NIR had been living in the United States for over a year—more than half of NIR’s life—and NIR’s place of habitual residence had been established as the United States, for the reasons already described. Petitioner could not escape the reality that Respondent acted lawfully in taking NIR to the United States and establishing his place of habitual residence as New York, and he could not use the Hungarian court’s order to require NIR’s return to Hungary. Accordingly, Petitioner’s claim of wrongful retention was without merit.

          The district court indicated that even if Petitioner could establish his prima facie case, his petition still had to be denied because Respondent established the “grave risk of harm” defense, and the “well-settled” defense. The balance of the Court’s decision, (which is dicta) addressed these two defenses.