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Wednesday, March 21, 2018

Soto v Contreras, 2018 WL 507802 (5th Cir., 2018) [Mexico] [Grave Risk of Harm] [Petition granted]

In Soto v Contreras, 2018 WL 507802 (5th Cir., 2018) Veronica Lemus Contreras (Lemus), a native and citizen of Mexico residing in the United States, appealed from a judgment which granted the petition of Ontiveros Soto’s (Ontiveros) seeking return of their child, A.O.L., to Mexico.

 Lemus and Ontiveros married in 1995, and had three children. The family resided in Mexico before Lemus came to the United States with two of the three childrenA.O., female, age 15, and A.O.L., male, age 8,to escape alleged abuse by Ontiveros., The couple “mutually decided” in September 2014 to file for divorce in Mexico.   In April 2015, Lemus told Ontiveros she and the children were going to a party in another town, a three-hour trip. Instead, she came to the United States with A.O. and A.O.L. Lemus sought political asylum in the United States. After learning the location of his wife and children, Ontiveros pursued in district court a petition for return of an abducted child (A.O.L.) under the Hague Convention. (the Hague Convention does not apply to children, such as A.O., over 16; at the time of the bench trial, she was past 16 years of age.

          At a bench trial, the parties presented incompatible versions of events leading to Lemus’ departing Mexico. She accused Ontiveros of, inter alia: physically abusing her and their daughter, A.O.; psychologically abusing the entire family; committing acts of violence against extended family members; and committing adultery. Although, with one exception, Ontiveros contested her accusations, he accused Lemus of, inter alia: committing adultery, incurring excessive debts, and assaulting him. Ontiveros testified he and Lemus fought because she was financially irresponsible. He admitted to having one physical altercation early in the marriage, when he gave her “some spankings with the hand”. He claimed Lemus often assaulted him, and denied further physical altercations. Unrebutted was that Ontiveros never physically abused A.O.L. Conversely, Lemus described her relationship with Ontiveros as “slow torture”, stating he beat her almost daily (or at least monthly) during their relationship. She recounted occurrences of alleged abuse: he beat her with a belt in the shower when she was pregnant with A.O.L.; he fought her brother when he confronted Ontiveros; and he assaulted A.O. and Contreras for trying to protect Lemus, throwing A.O. and Lemus onto the ground and into a garden rail. She stated he also psychologically abused her and the children, with A.O.’s wanting to hang herself and A.O.L.’s wetting the bed. She testified the Mexican police and district attorney refused to help her, forcing her to flee to the United States.

          The Fifth Circuit noted that Lemus’ testimony, however, was at times inconsistent. Lemus was also impeached on cross-examination. The daughter removed to the United States, A.O., testified favorably for Lemus, but in a sometimes contradictory fashion. Following the bench trial, the court rendered findings of fact and conclusions of law, ruling A.O.L. was wrongfully removed and Lemus failed, inter alia, to prove, by clear and convincing evidence, grave risk to A.O.L. Ontiveros v. Lemus, No. 3:16–CV–00867–N, slip op. at 7 (N.D. Tex. 18 Oct. 2016). For that grave-risk defense (the only Hague Convention defense raised on appeal), the court found, inter alia:”[Lemus]’s allegations of abuse—that [Ontiveros] physically and psychologically abused her, sometimes in front of their children, and that [Ontiveros] allegedly physically assaulted their daughter on one occasion—are in conflict with [Ontiveros’] testimony. [Ontiveros] testified that he could recall one instance in which he and [Lemus] engaged in a physical fight, but [Ontiveros] denied any other instances of abuse. Because neither side is able to provide objective evidence, [Lemus’] allegations of abuse fail to rise to the level of clear and convincing evidence of a grave risk of harm.” The court also found “[Lemus] did not provide any evidence that [Ontiveros] abused or neglected [A.O.L.]”. Id. And, as for A.O.L.’s testimony, it made the following finding:” The Court finds that [A.O.L.’s] responses as to where he would like to live were equivocal. Though in response to questioning by his mother’s attorney, [A.O.L.] responded that he does not want to return to Mexico, he also responded to his father’s attorneys that he enjoys spending time with his father and that he would prefer to split his time between both of his parents.”

On appeal Lemus raised only the grave-risk defense: the court “is not bound to order the return of the child if the [abductor]” establishes, by clear and convincing evidence, “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. Hague Convention, art. 13(b). The Fifth Circuit observed that “[F]indings of grave risk are rare”. Delgado v. Osuna, 2015 WL 5095231, at *13 (E.D. Tex. 28 Aug. 2015), aff’d, 837 F.3d 571 (5th Cir. 2016). “The person opposing the child’s return must show that the risk to the child is grave, not merely serious.” Hague International Child Abduction Convention; Text and Legal Analysis, 51 FR 10494–01, 1986 WL 133056 (Mar. 1986). The principles underlying the Hague Convention require the “grave risk must be narrowly construed; otherwise, a broad interpretation would cause the exception to swallow the rule and transform the Convention into an arena for custody disputes”. Tavarez v. Jarrett, 252 F. Supp. 3d 629, 640 (S.D. Tex. 2017) (citing England v. England, 243 F.3d 268, 271 (5th Cir. 2000)). In line with the objectives of the Hague Convention, the abductor must, as noted, prove grave risk by clear and convincing evidence. 22 U.S.C. § 9003(e)(2)(A). This standard “establishes a strong presumption favoring return of a wrongfully removed child”. Danaipour v. McLarey, 286 F.3d 1, 13 (1st Cir. 2002). “Clear and convincing evidence” is that weight of proof which “produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of the truth of the precise facts” of the case. In re Medrano, 956 F.2d 101, 102 (5th Cir. 1992) (quoting Cruzan by Cruzan v. Dir. Missouri Dep’t of Health, 497 U.S. 261, 285 n.11 (1990)).

The Fifth Circuit affirmed. It noted that for the first of her two claims of legal error, reviewed de novo, Lemus asserted the court improperly imposed a heightened legal standard in ruling that, “[b]ecause neither side [was] able to provide objective evidence, [her] allegations of abuse fail to rise to the level of clear and convincing evidence of a grave risk of harm”. Lemus asserted correctly the Hague Convention does not require objective evidence in proving the grave-risk defense by clear and convincing evidence. 22 U.S.C. § 9003(e)(2)(A). It found that the court did not require such evidence; therefore, it did not impose a heightened legal standard.

Underlying Lemus’ other claim of legal error was the grave-risk defense’s requiring her showing a “grave risk that [A.O.L.’s] return [to Mexico] would expose [him] to physical or psychological harm or otherwise place [him] in an intolerable situation”. Hague Convention, art. 13(b). In that regard, she contended the court imposed a heightened legal standard in finding “[Lemus] did not provide any evidence that [Ontiveros] abused or neglected [A.O.L.]”.  Much like the “objective evidence” statement discussed supra, review of the court’s findings of fact and conclusions of law revealed it did not impose a heightened standard. Again, the court made its statement about no evidence of abuse or neglect of A.O.L. in the context of weighing the evidence, in its findings-of-fact section, in the paragraph following its finding the evidence was “in conflict”. The court never stated abuse to Lemus could not produce the requisite grave risk to A.O.L., but, instead, recited the correct legal standard.

von Meer v Hoselton, 2018 WL 1281949 (D. Arizona, 2018)[Italy] [Grave risk of harm] [age and maturity defense] [Petition granted]

In von Meer v Hoselton, 2018 WL 1281949 (D. Arizona, 2018) the court granted the petition for return to Italy.

Petitioner, a German citizen and resident of Italy, and Respondent, a United States citizen, were involved in a long term domestic relationship. Their child (“N.V.”), was born in Germany in late 2002. N.V. held both German and United States citizenship. Petitioner, Respondent and N.V. lived together in Germany until early 2004, when the three moved to Italy and lived there together. In 2006, Petitioner and Respondent ended their domestic relationship and began maintaining separate households, both in the area of Florence, Italy. N.V. would alternate living with each parent on a weekly basis. This arrangement ended in the autumn of 2016, when Respondent relocated to Arizona for work and to further her education. At that time, N.V. remained in Italy with Petitioner and continued attending the private school in which she had previously been enrolled. On December 21, 2016, several months after Respondent relocated to Arizona, a judge of the Florence Court entered an order granting Petitioner exclusive custody of N.V. In April 2017, Petitioner bought a round-trip airline ticket for N.V. to spend the summer with her mother in the United States. In June 2017, when N.V. had completed her school year in Florence, Petitioner flew with her from Europe to Las Vegas to meet Respondent. Petitioner returned to Italy. N.V.’s round-trip ticket bore a return date of August 16, 2017, shortly before her school would begin the new academic year.  Petitioner had provided N.V. with a data-enabled cellular telephone. In July 2017, after N.V.’s communications to her father had diminished and Petitioner was unable to reach her on her phone, Petitioner’s attorney in Italy, Roberta Ceschini, began communicating with Respondent via email to communicate Petitioner’s expectation that Respondent would return N.V. to Italy on the August 16 flight. Ms. Ceschini advised Respondent that if she did not return N.V. timely, Ceschini would file a petition under the Hague Convention. Respondent acknowledged in a July 27, 2017 email to Ceschini that “it was my understanding [N.V.] is to return in August from the get go,” but advised that N.V. did not want to return to Italy, and that as N. V’s mother, “it is my duty to support and protect her.” N.V. did not return to Italy on August 16, 2017, or at any time thereafter.

          The district court found that both parties’ testimony, N.V’s round trip airline ticket and the email communications introduced into evidence all demonstrated that Petitioner and Respondent had agreed N.V. would stay in Arizona until August 16, 2017, and thereafter return to Italy. The retention at issue began on August 16, when Respondent did not return N.V. to Europe as agreed and continues to this day. The Court found that as of August 16, 2017, the habitual residence of N.V. was Italy. The parties had lived there with N.V. together from 2004 until their separation in approximately 2006, and then separately from 2006 until late 2016, when Respondent relocated to Arizona. N.V. remained in Italy with Petitioner and continued to attend school there after Respondent moved to Arizona, and neither party evinced any indication of an intent for N.V. to leave. At the point N.V. came to Arizona in June 2016 to visit her mother, the parties agreed she would be returning to Italy on August 16 to begin her next school year. Regardless of what Respondent may have individually intended to do after N.V. arrived to visit her, the Court finds that the last shared intent of the parties was for N.V.’s habitual residence to be Italy. Murphy, 746 F.3d at 1150.

At the hearing, Petitioner introduced an Order of the Florence Court dated December 21, 2016, granting him exclusive custody of N.V. The Court concluded that the retention of N.V. as of August 16, 2017, and thereafter breached Petitioner’s custody rights in that, during the period of wrongful retention, he lost his ability to communicate with N.V. and participate in the decision of where and under what circumstances she would live. He also has lost his ability to parent N.V. or otherwise have physical access to her. Respondent’s retention of N.V. has breached the custody rights attributed to Petitioner under the Florence Court Order. The Court found the evidence was unequivocal that Petitioner was exercising his rights of custody at the time of N.V.’s retention in Arizona. The Court concluded that Respondent did wrongfully retain N.V. from returning to Italy, her last habitual residence.

The district court rejected Respondents argument that returning N.V. to Italy would present a grave risk of physical or psychological harm. Respondent argued that the school system in Arizona is better equipped to address N.V.’s dyslexia and similar learning disabilities than her school in Florence, and the Italian secondary education system generally. This argument goes to the issue of the best interests of the child and is properly considered by the family court with jurisdiction to determine custody issues.
Respondent also presented evidence that N.V. had on one or more occasions seen Petitioner “smoke weed and hash,” and that she also had seen Respondent in the car while, or after, drinking alcohol.  The Court held that the allegations if true, especially absent testimony or other evidence that Petitioner put N.V. at risk of harm while engaged in these acts, did not rise to the level of grave harm contemplated by Article 13(b) of the Convention.

          The court also found that Respondent did not establish the ‘age and maturity” defense.

At the hearing, N.V. testified that she wanted “to live with my mom and be here in America because I was living in a really sad, miserable place in Italy with my dad.” N.V. gave as reasons for her desire to live in the United States with her mother the following: that she was lonely and had only one good friend in Italy at her school; that her father’s home was isolated and there were no children her age nearby; that she was bullied at school because her mother was not present; that she was not learning proper English at the Italian school; and that her father drank and smoked “weed and hash.” N.V. was adamant about her desire to remain with Respondent in Arizona. The Court found that N.V. objected to being returned to Italy, the first element required for the “wishes of the child” exception to the Convention to apply. It also found that, at 15, N.V.  attained an age and enough of a degree of maturity that a Court could appropriately take her views into account.

The Court exercised its discretion not to apply the exception in this matter for two distinct reasons. First, the Court was persuaded that “in making its determination [whether to apply the wishes of the child exception], a court should also consider whether a child’s desire to remain or return to a place is ‘the product of undue influence,’ in which case the child’s wishes should not be considered.” Tsai-Yi v. Fu-Chiang Tsui, 499 F.3d 259, 279 (3rd Cir. 2007)(internal citations omitted). The Court concluded that N.V’s testimony contained many of the hallmarks of coached or prepared testimony, and thus to an imprecisely known but significant degree is the product of Respondent’s influence on her. Much of N.V.’s testimony consisted of answers that she began to provide before Respondent had even completed her questions, and Respondent also led N.V. in her questioning, a habit the Court observed multiple times and to which it sustained Petitioner’s objection on the single occasion Petitioner did object. The Court concluded, based on the fact that N.V. has been exclusively with Respondent for the past nine months and the manner in which N.V. testified as to her desire to stay in the United States and her reasons therefor, that N.V.’s stated wishes were likely the product of Respondent’s undue influence during those nine months.

The Court also concluded this was an inappropriate matter in which to apply the wishes of the child exception and refuse to order N.V.’s return to Italy for an independent reason. “District courts may decline to apply a defense where doing so would reward a parent for wrongfully [] retaining the child [] in violation of a Contracting State’s custody orders.” Custodio v. Samillan, 842 F.3d 1084, 1092 (8th Cir. 2016). The Court found this to be just such a case. Petitioner produced a lawful order of the Florence Court, unchallenged by Respondent, awarding exclusive custody to Petitioner as of December 2016. When Respondent retained N.V. beyond the agreed upon date of August 16, 2017, she violated the Contracting State’s custody order. To except application of the Convention on the basis of N.V.’s wishes, which were in whole or in part the product of feelings she  developed during the last seven months while she was unlawfully retained in Arizona by Respondent, “would allow [Respondent] to benefit from her own violations of the Convention.” Garcia, 808 F.3d at 1168.

Sundberg v Bailey, 2017 WL 6757218 (W.D. North Carolina, 2017)[Sweden] [Habitual residence] [Petition granted]

`         In Sundberg v Bailey, 2017 WL 6757218 (W.D. North Carolina, 2017) the Court granted the Petition of Karl Henrik Sundberg for return of their child to Sweden. Petitioner commenced the action on November 1, 2017, against the Respondent Lisa Michelle Bailey (“Respondent”) claiming that the Respondent had wrongfully retained the parties’ four-year-old daughter, L.P.B.S. (“Child”), in the United States and seeking the Child’s return to Sweden

The Petitioner was a citizen and resident of Sweden. He had the ability to travel to the United States for short periods as a tourist. The Respondent was a citizen and resident of the United States. Immediately prior to coming to the United States in September 2016, the Respondent had resided in Sweden for four years with legal immigration status. The Petitioner and the Respondent were married on June 29, 2013, in Sweden. The Child was born to the Petitioner and Respondent in 2013, in Uppsala, Sweden. The Child was a citizen of both Sweden and the United States. The Petitioner and the Respondent were divorced on August 13, 2015, in Uppsala, Sweden. Following their divorce, the Petitioner and the Respondent exercised joint custodial rights over the Child, pursuant to Swedish law. The Child resided exclusively in Sweden for the first three years of her life and made occasional visits to see family in the United States. She was able to speak both Swedish and English.  In the summer of 2016, the Respondent asked the Petitioner for his permission to take the Child for an extended period to the United States. The parties discussed the possibility of all three (the Petitioner, the Respondent, and the Child) moving to the United States, if the Petitioner could obtain legal immigrant status through a work visa or some other means but no such legal status was then pursued. As a product of these discussions, on August 14, 2016, the parties signed an agreement, drafted by the Respondent, which provides, in pertinent part, as follows: The purpose of this letter is to state a mutual agreement between Lisa Michelle Bailey and Karl Henrik Sundberg. Lisa and Karl have shared custody of their daughter, [Child]. Lisa and Karl agree to the following: 1. Lisa will leave Sweden and the European Union, with [Child], to spend several months in USA, where Lisa and [Child] are both citizens. Lisa and [Child] will depart from Sweden on 20 Sept. 2016, and their destination is Asheville, North Carolina, USA. 2. In May 2017, Lisa and Karl will determine a future agreement about Lisa and [Child’s] residence and a plan for continuing shared custody of [Child].

Six days later, on August 20, 2016, the Petitioner and the Respondent executed a Tenancy Agreement, under which terms the Respondent agreed to rent two rooms from the Petitioner in his home, for a term beginning on September 30, 2016 and ending on September 30, 2017. The Petitioner testified that the parties entered into this agreement so that the Respondent would have a place to live with the Child upon her anticipated return to Sweden. The parties concede that the Respondent did not pay any rent called for under this agreement. The Respondent testified that she executed the Tenancy Agreement simply so that she could apply for a housing allowance from the Swedish government to subsidize her rent, but that she never received this subsidy.

The Respondent and the Child came to the United States on September 20, 2016, using one-way airline tickets. The Respondent rented a room in a house in West Asheville for herself and the Child, and the Respondent soon found employment. The parties continued to discuss the possibility of the Petitioner seeking employment in the United States and relocating there, but no affirmative steps were taken by either party to obtain a green card or work visa for the Petitioner.

 After the Respondent brought the Child to the United States, the Petitioner maintained regular contact with the Child via Skype. The Petitioner traveled to the United States in December 2016 and visited with the Child and the Respondent for approximately one month. The Child was excited about returning to Sweden in the summer. The Petitioner’s sister also visited the Child while she was in the United States, and it was the sister’s understanding that the parties intended for the Child to return to Sweden at the beginning of the summer.

In an e-mail communication with the Petitioner in March 2017, the Respondent advised the Petitioner that she did not intend to return the Child to Sweden. In April 2017, the Respondent commenced a child custody suit in Buncombe County, North Carolina. The Petitioner did not participate in these proceedings. When the Petitioner was not able to secure the return of the Child through administrative means, he commenced the present action on November 1, 2017. [Doc. 1].

The parties stipulated that at all times relevant to those proceedings, the Petitioner had rights of joint custody and was exercising those rights. The parties disagree, however, as to the issue of “habitual residence.” The Petitioner contends that the Child’s country of habitual residence was Sweden, and that the Respondent wrongfully retained the Child when she refused to return her to Sweden in accordance with the parties’ written agreement. The Respondent, on the other hand, contends that with their relocation in September 2016, to which the Petitioner consented, the Child’s country of habitual residence became the United States and thus no wrongful removal or retention ever occurred.

The district court found that as of the summer of 2016, the Child’s country of habitual residence was Sweden – the country in which she was born and the only country in which she had ever resided. While the parties agreed that the Child could come with the Respondent to the United States for a limited period of time, the parties did not share any settled intent to abandon Sweden as the Child’s country of habitual residence. The parties’ written agreement, which was drafted and signed by the Respondent, explicitly stated that the Respondent and the Child would reside in the United States for a period of “several months” beginning in September 2016 and that the parties would make future arrangements regarding custody in May 2017. Consistent with that agreement, the Child remained enrolled in the Swedish healthcare system, and the Respondent continued to receive child welfare benefits from the Swedish government for the benefit of the Child. While the Child’s return date was not fixed with certainty (as evidenced by the lack of a return plane ticket), it was clear that the parties anticipated the Respondent and the Child returning to Sweden no later than May 2017 (and possibly earlier, if the Respondent could not find employment). The Petitioner testified that, on his part, this expectation never changed, but that the Respondent’s intent changed in early 2017. The Respondent’s unilateral change of heart, however, does not alter the child’s habitual residence of Sweden. “[W]here the child’s initial translocation from an established habitual residence was clearly intended to be of a specific, delimited period ... courts have generally refused to find that the changed intentions of one parent led to an alteration in the child’s habitual residence.” Maxwell, 588 F.3d at 251 (quoting Mozes, 239 F3d at 1077) (internal quotation marks omitted).

Other evidence of the parties’ intent indicated that the move was not intended to be permanent. The Court concluded that the Respondent’s move to the United States with the Child was intended to be of a limited duration and that the parties did not have a shared, settled intent to abandon Sweden as the Child’s country of habitual residence.

Having determined that the parents lacked a shared, settled intent to change the Child’s country of habitual residence, the Court considered the extent of the Child’s acclimatization to the United States. “To infer abandonment of a habitual residence by acclimatization, the objective facts must point unequivocally to the child’s ordinary or habitual residence being in the new country.” Murphy v. Sloan, 764 F.3d 1144, 1152 (9th Cir. 2014), cert. denied, 135 S. Ct. 1183 (2015) (quoting Mozes, 239 F. 3d at 1081) (emphasis in original; internal quotation marks and other alterations omitted). While the Court should consider the extent of the child’s contacts in the new country, “in the absence of settled parental intent, courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned.” Mozes, 239 F.3d at 1079.

The Court found that while the Child was well-adjusted in the United States, she spent the first three years of her life in Sweden. She maintained significant contacts with Sweden, in that she was in regular contact with her father, as well as her Swedish aunt and cousins. She remained enrolled in preschool in Sweden and continues to be a patient in the Swedish healthcare system. The Child was only four years old, and therefore was not of an age where is she strongly attached to any particular school or social environment. Karkkainen v. Kovalchuk, 445 F.3d 280, 296 (3d Cir. 2006) (noting that the issue of acclimatization is “secondary” in a case involving a very young child “because the child lacks the ability to truly acclimatize to a new environment”).1

The Court concluded that the Child had not acclimatized to living in the United States to such an extent and in such a manner that it could be said that her country of habitual residence had been abandoned. The Child’s habitual residence was, and continued to be, the country of Sweden. Therefore, the Court concluded that the Petitioner established by a preponderance of the evidence that when the Respondent failed to return the Child to Sweden as agreed by the end of May 2017 that the Child was retained from her country of habitual residence in violation of the Petitioner’s custody rights in violation of the Hague Convention and ICARA.

           The Respondent raised the defenses of consent and acquiescence. For the reasons stated by the Court in finding that the parties lacked a shared settled intent to abandon Sweden as the Child’s country of habitual residence, the Court found that the defense of consent was not applicable to this case.  Petitioner consistently intended for the Child to return to Sweden no later than May 2017; at no time did he consent to a permanent relocation or even a stay of an indefinite nature. The respondent did not present any evidence to demonstrate that the Petitioner acquiesced to the Respondent’s decision not to return to Sweden.

Smith v Smith, 2018 WL 953338 (D. Idaho, 2018)[United Kingdom] [Age and Maturity defense] [Petition granted]

In Smith v Smith, 2018 WL 953338 (D. Idaho, 2018) the court granted the petition for the return of the minor child DMS to the United Kingdom.

The Smiths were married in 1997 and resided in England. Vickie was a citizen of the United States; David iwas a citizen of the United Kingdom. While residing in England, they had two children, DOS. (now age 16) and DMS (now age 15). Nearly twenty years later, the marriage broke down and David filed for divorce. The court in England granted primary custody of the children to Vickie while David received visitation rights. Vickie initially filed a motion with the English court to remove the boys permanently from the jurisdiction but withdrew that motion, and represented to the court, through her solicitor, that “she will not remove the children from the jurisdiction without the agreement of [David Smith].” On May 30, 2017, Vickie, a United States citizen, absconded with DMS to the United States without David’s permission, and without approval of the English court, leaving behind her other child DOS. Vickie and DMS lived briefly in Colville, Washington, where his mother’s siblings lived, and then moved in with various other family members, and for a short time, lived in a homeless shelter. Since August of 2017, Vickie and DMS have lived in Caldwell, Idaho, with a childhood friend of Vickie’s. Vickie works part-time at a convenience store in Nampa. DMS has completed the first semester of his sophomore year at Caldwell High School, and recently began his second semester.

David initiated proceedings in the English court to compel Vickie to return DMS to England. The court did not grant the requested relief because it was unclear whether Vickie had notice of the petition. David filed a complaint against Vickie in the district Court on November 30, 2017.
The district court found that David carried his burden of proving that (1) DMS was removed in May of 2017; (2) at that time, DMS was habitually residing in England; (2) the removal breached Vickie’s assurance to the court that she would not remove DMS without David’s consent; and (3) David was exercising his custodial rights at the time of the removal.

The court found that Vickie deliberately violated the child custody arrangement set forth in the United Kingdom court by bringing DMS to the United States without permission and without any notice to either the court or David. Vickie’s claim that an unnamed policeman told her she was excused from complying with the London court custody order by a domestic violence law is not credible.

The Court found that David was exercising his custodial rights at the time of removal. The English law does not use the word “custody” but instead speaks of “parental responsibility,” which is defined as “all the rights, duties, powers, responsibilities, and authority which by law a parent of a child has in relation to the child and his property.” See Haimdas v. Haimdas, 720 F.Supp.2d 183, 202 (E.D.N.Y. 2010) (quoting the United Kingdom Children Act of 1989). A finding that a parent exercised parental responsibility under this English law has been deemed to support a finding that he has exercised his custodial rights under the Hague Convention.  David was current in his child support payments, provided a home for DMS, and cooked meals during the times he had contact periods. He was exercising his parental responsibilities.

Vickie Smith raised the mature child defense. To prevail on this defense, she must establish by a preponderance of the evidence that (1) the child has “attained an age and degree of maturity at which it is appropriate to take account of its views” and (2) “the child objects to being returned.” See Hague Convention art. 13; Custodio v. Samillan, 842 F.3d 1084, 1089 (8th Cir. 2016). “[T]he courts must narrowly interpret the exceptions lest they swallow the rule of return.” Asvesta v Petroutsas, 580 F.3d 1000, 1003-04 (9th Cir. 2009).

The Court asked DMS a lengthy series of questions designed to determine his maturity level and his desires. The Court was impressed with his intelligent and articulate answers. On the basis of that colloquy, the Court found (1) that DMS was mature enough that the Court should take his desires into account, and (2) that DMS desires to remain in the United States. Given these findings, and the authority quoted above, it would be “very difficult” to return a child the age of DMS against his will. At the same time, DMS had not acquired close friendships here, and spent much of his free time doing solitary indoor activities, which is what he did in the United Kingdom. There was no evidence that he was having unique experiences here that he could not have in the United Kingdom. He had no strong pre-removal desire to come to the United States, but testified that he made up his mind to leave with his mother just prior to coming here. Importantly, he testified that if he was returned to the United Kingdom, he was not sure whether he would return to the United States when he turned sixteen. DMS’s desire to remain here had been powerfully influenced by Vickie’s very strong desire to remain here.  While the Court could not find that Vickie has unduly influenced DMS, the Court found that his desire to remain here was largely tied to Vickie’s desire and is not a strongly held independent desire. These findings meant either that (1) the mature child defense has not been proven; or (2) the bare minimum elements of the mature child defense have been proven, but DMS’s tepid and dependent desire cannot override the transcendent aim of the Hague Convention to return a minor child wrongfully removed. Either way, the Court found that the mature child defense did not prevent removal.

Peralta v Garay, 2018 WL 396329 (S.D. Texas, 2018) [El Salvador] [Habitual Residence] [Petition dismissed]

In Peralta v Garay, 2018 WL 396329 (S.D. Texas, 2018) the Court granted the Respondents motion to dismiss the petition for return of the child to El Salvador.

Petitioner Noemy Elizabeth MembreƱo Peralta was the mother of a ten-year-old child, GM. GM’s father, Eli Escobar Garay was not a party to this dispute. The Parents resided in El Salvador. Respondent Guadelupe del Carmen Escobar Garay was GM’s paternal aunt. Respondent resided in the United States. GM was born in El Salvador on January 14, 2007, and lived with Petitioner in El Salvador until 2016. In early 2016, the Parents agreed to leave El Salvador and travel to the United States with GM and Son. The Parents intended for Garay and GM to travel separately from Petitioner and Son. On approximately March 14, 2016, Garay and GM left El Salvador and traveled to the United States. Approximately one month later, Petitioner and Son left El Salvador, intending to travel to the United States. On approximately March 25, 2016, after Garay and GM entered the United States, United States immigration officials detained Garay and GM for traveling illegally. While Garay and GM were being detained in the United States, Petitioner and Son were stopped in Mexico (in route to the United States) and deported to El Salvador. Petitioner alleges that, because of Garay and GM’s detention, Petitioner gave Respondent—who was residing in the United States—temporary authorization to retain GM so that United States immigration officials would release GM to Respondent. Following GM’s release to Respondent, Garay was deported to El Salvador. GM has since resided with Respondent in the United States.  On April 26, 2016, Petitioner filed a lawsuit contending Respondent was wrongfully retaining GM in the United States and asking the Court to order the return of GM to El Salvador.  Respondent moved to dismiss Petitioner’s lawsuit pursuant to Federal Rule of Civil Procedure 12(b)(1). After an evidentiary hearing the court granted the motion.

The district court found that Petitioner’s admission that the Parents intended the family to remain in the United States indefinitely strongly indicated the Parents had a shared intent to abandon El Salvador as GM’s habitual residence and relocate GM to the United States. See Mozes, 239 F.3d at 1077 (recognizing a court can find mutual abandonment based on the settled mutual intent to stay in a separate country indefinitely). The Parents testified to bringing their passports, personal identification, and other documents with them as they traveled from El Salvador to the United States. Petitioner testified that she and Garay each quit their respective jobs in anticipation of leaving El Salvador. This testimony also indicated a shared intent to abandon El Salvador as GM’s habitual residence and relocate GM to the United States. See Delgado v. Osuna, 837 F.3d 571, 579 (5th Cir. 2016); see also Berezowsky v. Ojeda, 765 F.3d 456, 474 (5th Cir. 2014). The Court found the evidence conclusively established the Parents’ shared intent to abandon El Salvador and permanently relocate GM to the United States.

Petitioner alleged that, regardless of the Parents’ previous intentions, after the Parents were deported to El Salvador, their shared intention shifted to reestablishing GM’s permanent residence in El Salvador. However, by that time, GM had already been relocated to the United States and retained by Respondent. See Friedrich v. Friedrich, 983 F.2d 1396, 1402 (6th Cir. 1993) (finding there must be a change in geography to establish a new habitual residence). Thus, at the time Respondent retained GM, El Salvador had been abandoned as GM’s country of habitual residence. Petitioner has therefore failed to meet her burden of showing that GM’s retention was wrongful. Accordingly, the Court lacked subject matter jurisdiction over Petitioner’s lawsuit, and Respondent’s motion to dismiss was granted.

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.

Leonard v Lentz, 2017 WL 6887535 ( N.D. Iowa, 2017)[Turkey] [Exercise of Rights of custody] [Petition denied]

In Leonard v Lentz, 2017 WL 6887535 ( N.D. Iowa, 2017) the District Court denied the  Petition by Ozgur Can Leonard for return of his three children to the Republic of Turkey finding that he did not establish a prima facie case..

Both petitioner and respondent were born in Istanbul, Turkey. Petitioner is a dual citizen of Turkey and the United States.  Respondent is a United States citizen but was raised in, and spent most of her life in, Istanbul, Turkey. . On May 29, 2014, petitioner and respondent were married in Turkey. Petitioner and respondent established their marital home in Gokceada, a Turkish island comprising part of the Canakkale Province... In March of 2015, while residing in Gokceada with petitioner, respondent gave birth to petitioner’s son, I.Y.L. In 2016 respondent gave birth to E.M.L. and S.M.L. Following respondent’s discharge from the hospital after giving birth, respondent chose to reside with her parents, rather than return to Gokceada. (Id.).

Immediately following their birth, E.M.L. and S.M.L. were admitted to the Newborn Intensive Care Unit (“NICU”). (Id.). E.M.L. was diagnosed with End–Stage Renal Disease (“ESRD”) and required surgery. On June 14, 2016, respondent filed for divorce in the Istanbul 15th Family Court (“Turkish Family Court”).  In July of 2016, respondent sought an ex parte protective order against petitioner from the Turkish Family Court, alleging that petitioner was not caring for the children, was harassing her with phone calls and messages, and was pressuring her to return to Gokceada from Istanbul. (Id.). On July 11, 2016, the Turkish court issued a protective order, providing, inter alia, that petitioner not approach respondent’s place of residence and cease communications with respondent. (Id. at 10; see also Ex. 6, Doc. 85–7). The protective order did not place any limits on petitioner’s contact with the children. Respondent applied for United States passports for her children and on July 15, 2016, United States passports were issued to all three children. On August 12, 2016, the Turkish Family Court issued a temporary injunction, ordering the children to remain in the jurisdiction during the pendency of the divorce proceedings and further issued an order to all borders to prevent the children’s removal from the jurisdiction without petitioner’s consent. Respondent contended that when she removed the children from Turkey on August 13, 2016, she was unaware of the ne exeat order, and no evidence has been presented to the contrary. On or about August 13, 2016, respondent traveled to the United States with the children, removing them from the jurisdiction. On August 24, 2016, petitioner submitted a request to return the children to the United States Department of State pursuant to the Hague Convention.

 Upon coming to the United States, respondent brought the children to Iowa and had been residing in Eagle Grove, Iowa since... E.M.L. was thereafter admitted to the University of Iowa Health Care system (“UIHC”) in Iowa City, Iowa where she remained from August 15, 2016, through August 18, 2016. On August 21, 2016, respondent emailed petitioner and indicated that “E.M.L.... is just as active and really on par as far as development [when compared to S.M.L.].” (Id.). Following this brief communication, respondent deleted her email account. UIHC records from August 25, 2016, corroborate respondent’s statement to petitioner.  In October of 2016, E.M.L. was again hospitalized at UIHC and had a feeding tube inserted; E.M.L. had also contracted peritonitis.3  Petitioner has requested the Turkish Family Court to review the medical records in this case to determine the severity of E.M.L.’s medical condition. Since early 2017, petitioner has been in contact with one or more of E.M.L.’s physicians at UIHC regarding E.M.L.’s health. The divorce proceedings in the Turkish Family Court were ongoing and no formal divorce decree or custodial order had been entered.

The Court found that the children were habitual residents of Turkey and because under Turkish law, parents of a child share custody of the child “together as long as marriage lasts.” petitioner did have custodial rights at the time of the children’s removal and continued to have those custodial rights during their retention in the United States.

The Court found that custodial rights bestowed upon petitioner were governed by Turkish law, as set forth in the Convention. Petitioner only alleged he was exercising two such custodial rights at the time of the children’s removal from Turkey: 1) the right to dictate, together with the child’s mother, whether the child may leave the home; and 2) the right to decide the child’s religious education. (Turkish Civil Code (providing “[t]he child cannot leave the house without taking his/her parents’ consent ....” and “[p]arents shall have the right to decide on the child’s religious education.”)).

The Court pointed out that it was bound by Turkish law with respect to whether petitioner was exercising his custodial rights. Larbie, 690 F.3d at 307. Under Turkish law, when one parent is deprived of custody of his children, that parent continues to bear the obligation to provide financial support for the children’s care and educational expenses. It follows that providing financial support for one’s children is an obligation under Turkish law, rather than a custodial right. Thus, petitioner’s willingness and seeming ability to provide financial support for his children could not provide support for his exercise of custodial rights.

Bearing in mind petitioner’s obligation to establish the violation of his custodial rights as part of petitioner’s prima facie case, the Court found petitioner was not exercising these rights and would not have exercised these rights had the children not been removed from Turkey. Therefore, the Court was unable to find petitioner made a prima facie case under the Hague Convention. Because petitioner had not made a prima facie showing, there was no basis upon which the Court should order the return of the children to Turkey, and the Court would not do so.

Given the complicated nature of the case, the Court found it appropriate to further analyze whether legal grounds existed to order the children’s return to Turkey, in the event a reviewing Court found the Court’s conclusion that petitioner did not establish a prima facie case erroneous.