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.
