Rath v Marcoski, --- F.3d ----, 2018 WL 3799875 (11th Cir., 2018)[Czech Republic] [Necessary expenses]

In Rath v Marcoski, --- F.3d ----, 2018 WL 3799875 (11th Cir., 2018) the  Eleventh Circuit addressed the standard for awarding attorney’s fees and costs to a successful petitioner in an action for the return of a child under the Hague Convention. It pointed out that the International Child Abduction Remedies Act (“ICARA”), which implements the Hague Convention, directs that a district court “shall order the respondent to pay necessary expenses ... unless the respondent establishes that such order would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3). The district court held that respondent failed to meet her burden under ICARA and awarded fees and costs to petitioner. 

Petitioner Jan Rath, a citizen of the Czech Republic, initiated this suit under the Hague Convention for the return of his child, L.N.R., after the child’s mother, Veronika Marcoski, removed him from the Czech Republic to Florida in April 2016. The district court held that Marcoski had wrongfully removed L.N.R. from the Czech Republic and ordered that L.N.R. be returned. The Eleventh Circuit  affirmed, holding that the district court’s assessment of the credibility of the witnesses was entitled to “great deference.” Marcoski v. Rath, 718 F. App’x 910, 912 (11th Cir. 2017) Rath moved for an award of attorney’s fees and costs in the district court. Marcoski objected, arguing that an award would be clearly inappropriate because she acted in good faith when she removed L.N.R. to the United States. The district court rejected this argument Rath v. Marcoski, No. 8:16-cv-2016, 2018 WL 446651, at *1 (M.D. Fla. Jan. 17, 2018) (). It found that Marcoski had not established that a fee award would be clearly inappropriate. The court awarded to Rath $73,219.50 in attorney’s fees, $5421.00 in taxable costs and $10,849.76 in expenses, for a total award of $89,490.26. 

The Eleventh Circuit affirmed. It  pointed out that  ICARA’s fee-shifting provision creates a rebuttable presumption in favor of a fee award.1 It read the statutory text as creating a strong presumption in favor of fee-shifting, rebuttable only by a showing from the losing respondent that an award of attorney’s fees, costs and expenses would be clearly inappropriate. See Salazar, 750 F.3d at 520 (stating that “the prevailing petitioner is presumptively entitled to necessary costs”)

The Court noted that the term “clearly inappropriate” is not used in any other fee-shifting statute. According to some courts, this exception “provides the district court ‘broad discretion in its effort to comply with the Hague Convention consistently with our own laws and standards.’ ” West v. Dobrev, 735 F.3d 921, 932 (10th Cir. 2013) (quoting Whallon, 356 F.3d at 140); see also Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013). It held hat  ICARA does not afford courts broad discretion on the issue of whether prevailing petitioners are entitled to an award—the statute dictates that they presumptively are—and the exception cannot be drawn so broadly as to make the analysis indistinguishable from what courts employ under a typical fee-shifting statute.  Congress did grant courts limited equitable discretion to determine when to allow an exception. It may well be that courts making this determination will look to factors that are familiar in the fee award context. But in doing so, courts must place on the losing respondent the substantial burden of establishing that a fee award is clearly inappropriate.  Though the “clearly inappropriate” inquiry is fact-dependent, two considerations have arisen with some frequency in the case law. One is whether a fee award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child. See Whallon, 356 F.3d at 139–40 (citing cases); Norinder v. Fuentes, 657 F.3d 526, 536–37 (7th Cir. 2011); Mendoza v. Silva, 987 F.Supp.2d 910, 917 (N.D. Iowa 2014). A second is whether a respondent had a good faith belief that her actions in removing or retaining a child were legal or justified. See Ozaltin, 708 F.3d at 375–76; Mendoza, 987 F.Supp.2d at 916–17.

Marcoski relied solely on the argument that a fee award was clearly inappropriate because she acted in good faith in removing L.N.R. to the United States. The Court agreed that the basis for a losing respondent’s course of conduct can be a relevant consideration in deciding if a fee award is clearly inappropriate. See Ozaltin, 708 F.3d at 375 (“Although mistake of law is not a defense to the return action itself, it is a relevant equitable factor when considering whether a costs award is appropriate.”). However, it found that Marcoski fell well short of her burden of establishing the “clearly inappropriate” exception.  The record developed on the merits of the wrongful removal petition was replete with evidence contradicting Marcoski’s good faith argument, and the district court’s factual determinations on the merits were affirmed on appeal and  constituted the law of the case. It found that the district court did not abuse its discretion in finding that Marcoski failed to establish under ICARA that an award of necessary expenses would be clearly inappropriate and the award was affirmed. 

Cruz v Sanchez, 2018 WL 4359217 (D. South Carolina, 2018) [Federal & State Judicial Remedies] [Remote testimony]

          In Cruz v Sanchez, 2018 WL 4359217 (D. South Carolina, 2018) the district court granted the parties’ joint motion requesting that the Court authorize remote testimony for the Petitioner and for certain witnesses who are likely to be called to testify by the parties. It observed that under Rule 43(a), a court may permit remote testimony “[f]or good cause in compelling circumstances and with appropriate safeguards.” Fed. R. Civ. P. 43(a). As the Fourth Circuit has noted, remote testimony does not “preclude the respondent from confronting and conducting relevant cross-examination of the witnesses,” so it does not offend due process considerations. United States v. Baker, 45 F.3d 837, 843-44 (4th Cir. 1995). Allowing remote testimony in Hague Convention actions, as long as subject to certain safeguards, is not without precedent. In Alcala v. Hernandez, No. 4:14-CV-04176-RBH, 2015 WL 1893291, at *3 (D.S.C. Apr. 27, 2015), the court required petitioner to be properly identified and testify from a private room, free of outside influence. The petitioner’s counsel was also required to troubleshoot his video-conferencing connection with the courthouse staff prior to his testimony. The court found those safeguards were appropriate here to ensure reliable testimony. As indicated in the Motion, the parties agreed to ensure that their witnesses utilize an appropriate room from which to testify by video-conference, free from outside interference. The parties also agreed to require the witnesses to present official identification prior to testifying, and have explained their willingness to work with the Court’s IT staff to troubleshoot the video-conferencing system prior to trial. The court directed that where video-conferencing is not available or if technical difficulties arise, those witnesses may also testify telephonically.

Crane v Merriman, 2018 WL 4291755 (W.D. Oklahoma, 2018)[New Zealand] [Necessary expenses] [Clearly inappropriate]

[New Zealand] [Necessary expenses] [Clearly inappropriate]

          In Crane v Merriman, 2018 WL 4291755 (W.D. Oklahoma, 2018) the district court granted in part and denied in part the successful Plaintiff’s motions for attorney’s fees and costs by denying an award of attorney’s fees but awarding non-attorneys fees costs.

          Plaintiff brought the present action seeking the return of his children to New Zealand. On September 14, 2017, the Court granted Plaintiff’s petition and ordered that the couple’s minor children, A.E.C. and R.F.A.C., be returned to New Zealand and placed in Plaintiff’s custody pending further order of a New Zealand court or other disposition of the underlying custody issues. The district court observed that ICARA provides, in pertinent part, as follows: “Any court ordering the return of a child pursuant to an action brought under section 9003 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. See 22 U.S.C. § 2007(a)(3).

          Plaintiff moved the Court for an award of his attorney’s fees, transportation costs, and other expenditures related to the return of the children: 1) $22,670.00 for legal work performed by his Oklahoma counsel, Laura McConnell-Corbyn and Shane M. Riddles-Hill, incurred in connection with these proceedings and an award of $1,015.05 in costs;¹ 2) $2,473.44 for legal work performed by his New Zealand counsel, Margaret Casey QC, incurred in securing representation in the United States and assisting moving counsel with case preparation; 3) $1,770.58 for legal work performed by his New Zealand counsel, Antonia Fisher QC, incurred in connection with proceedings in New Zealand and locating additional assistance; 4) $1,926.58 for round-trip airfare from New Zealand to Oklahoma; 5) $1,666.68 for airfare for A.E.C. from Oklahoma to New Zealand; 6) $182.19 for accommodations from September 11, 2017 through September 13, 2017, and an award of $866.25 for accommodations from September 13, 2017 to September 18, 2017; and 7) $226.55 incurred for a car rental from September 11, 2017 through September 18, 2017.

          Defendant argued that any award of legal fees and expenses would be clearly inappropriate under the circumstances. Defendant cited the financial disparity between the parties, which Plaintiff did not refute: (1) Defendant’s annual salary was 53,000 New Zealand Dollars (“NZD”); (2) Defendant had no significant assets of her own, (3) Defendant’s monthly expenses exceeded her monthly income, (4) Defendant had substantial debt, and (5) Defendant was on some governmental assistance and had applied for child support. By comparison, Plaintiff (1) owned his own company, (2) drew a salary of 84,000 NZD, and (3) owned two helicopters, a boat, and three residential properties, one of which is valued at nearly 1 million NZD. 

          The district court observed that “clearly inappropriate” caveat to ICARA’s award of attorney’s fees to a prevailing petitioner retains “the equitable nature of cost awards,” such that a prevailing petitioner’s presumptive entitlement to an award is “subject to the application of equitable principles by the district court.” Souratgar v. Lee Jen Fair, 818 F.2d 72, 79 (2d Cir. 2016) (The term “clearly inappropriate” is not defined in the statute, yet some considerations have arisen with frequency in the relevant case law. One is whether a fee award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child; a second is whether the respondent had a good faith belief that her actions in removing a child were legal or justified. See Rath v. Marcoski, No. 18-10403, 2018 WL 3799875, at *4 (11th Cir. Aug. 10, 2018) (unpublished) (collecting cases).

          Another consideration—which bears some relevance to the first—is whether an award would be “clearly inappropriate” in light of the financial disparity between the parties. It is this consideration that led to the conclusion that, under the circumstances of this specific case, an award of attorney’s fees would be clearly inappropriate. Although employed, Defendant has demonstrated that due to her income and expenditures, payment of Plaintiff’s attorney’s fees would present a financial hardship and affect her own ability to care for her children. Citing similar financial circumstances and disparities, federal courts have denied a prevailing petitioner’s motion for attorney’s fees as “clearly inappropriate.”

          However, Defendant wa not blameless in these proceedings and the Court found it appropriate to award Plaintiff his non-attorney fee expenses in prosecuting this action. See Souratgar, 818 F.3d at 79 (“[I]n determining whether expenses are ‘clearly inappropriate,’ courts have considered the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition.”). The Court awarded Plaintiff costs and expenses in the amount of $5,883.30, which represents the following items: $1,015.05 in court costs; $1,926.58 for Plaintiff’s round-trip airfare from New Zealand to Oklahoma; $1,666.68 for airfare for A.E.C. from Oklahoma to New Zealand; $182.19 for Plaintiff’s accommodations from September 11, 2017 through September 13, 2017, and $866.25 for Plaintiff’s accommodations from September 13, 2017 to September 18, 2017; and $226.55 Plaintiff incurred for a car rental from September 11, 2017 through September 18, 2017.

Moonga v Moonga, 2018 WL 4026020 (N.D. Georgia, 2018)[United Kingdom] [Necessary expenses]

          In Moonga v Moonga, 2018 WL 4026020 (N.D. Georgia, 2018)   the Plaintiff originally filed the action seeking a return of his minor child to the United Kingdom. After a hearing the Court granted the Plaintiff’s petition, and ordered that the child be immediately returned to the United Kingdom in the company of her father, the Plaintiff. The district court then granted Plaintiff George Choonga Moonga’s Motion for Necessary Expenses in the reduced sum of $40,000.

          The district court observed that Section 8(b)(3) of ICARA states that: Any court ordering the return of a child pursuant to an action brought under section 9003 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate.

          The district court noted that the statute creates a “mandatory obligation on courts to award necessary expenses to a successful petitioner, except when the respondent demonstrates that an award would be clearly inappropriate.” This creates a strong, rebuttable presumption in favor of a fee award.  Thus, the Court must proceed with two inquiries. The first asks whether the petitioner’s requested fees were “necessary.” The second asks whether an award of such fees would be “‘clearly inappropriate’ in light of respondent’s financial circumstances, subjective good faith in his actions, or other equitable circumstances that suggest further diminution is just.”

          The Plaintiff requested a total of $60,676.92 in fees and expenses. Included in this was $1,720.53 for court costs, $50,365.00 for legal fees and expenses, and $8,591.39 for transportation costs related to the return of the child. The inquiry was guided by the lodestar framework. Given the evidence and totality of the circumstances, the Court found that the Plaintiff’s reported costs of $60,676.92 were both reasonable and necessary.

          The Court’s inquiry continued by determining the appropriateness of awarding the Plaintiff’s requested fee. It noted that among the relevant considerations in ICARA fee awards is whether a full fee award would leave a parent unable to care for her child and “whether a respondent had a good-faith belief that her actions in removing or retaining a child were legal or justified.” The Defendant bears the “substantial burden of establishing that a fee award is clearly inappropriate.”

          The defendant argued that an award would be inappropriate because of her financial situation. Defendant claimed that she “is currently unemployed with no source of income,” and that she is incurring significant financial costs as a result of both this litigation and the ongoing litigation in the United Kingdom.  During the course of this case, however, the Court found the Defendant to be fundamentally lacking in credibility. She consistently made wild claims that have no basis in evidence or in fact, and this situation was no different. Less than a year earlier she filed a sworn statement in an English court saying that she was employed with a relatively good salary. Although she now claimed she was unemployed, she presented no evidence to support that assertion. Nor had she provided any evidence to suggest she would be so financially burdened by an award of fees that she would no longer be able to care for the child. Given the nature of this case, the Court found it entirely appropriate to award fees. However, some reduction in the award was also warranted. Assuming the Defendant still had her job a full-fee award would constitute over 80% of her annual salary before tax. That is a substantial burden. The Court found that a reduction of approximately one-third was appropriate.

Miller v Miller, 2018 WL 4008779 (E.D. Tennessee, 2018) [Canada] [Habitual Residence] [Petition denied]

          In Miller v Miller, 2018 WL 4008779 (E.D. Tennessee, 2018) the district court denied the Petition of James Christopher for the return of their three children to Humboldt, Saskatchewan, Canada.

          Mr. Miller and Mrs. Miller have been married for nine years and were the biological parents of J.M.M. A.B.M., and C.J.M., who were born in 2007, 2010, and 2012, respectively. In 2013, Mr. Miller and Mrs. Miller mutually decided to move their family from Chattanooga to Humboldt, Saskatchewan, Canada, to pursue economic opportunities and to avoid creditors associated with a failed business venture that Mr. Miller had launched in Chattanooga. They also mutually envisioned the move as a “five-year plan,” which meant that after five years they planned to reevaluate their decision to relocate to Canada and determine whether they wanted to live there for a longer time.

          After the Millers completed the move in May 2013, they eventually settled into a rental house in Humboldt, where J.M.M. had his own bedroom and A.B.M. and C.J.M shared a bedroom. At the time, J.M.M. was six years old, A.B.M. was three years old, and C.J.M. was five and a half months old. The Millers began to build their life in Canada. As a family, they applied for permanent resident status. Mr. Miller obtained employment in the construction industry. Mrs. Miller also obtained employment, though she was principally the children’s caretaker. The two oldest children, J.M.M. and A.B.M., enrolled in school, while the youngest, C.J.M., remained with Mrs. Miller or under a babysitter’s supervision. Mr. Miller and Mrs. Miller also enrolled the children in Canadian healthcare plans. As for the children’s social lives and activities, the children made friends in their neighborhood and through participation in sports programs.  J.M.M. became well-known by neighbors and picked vegetables from their yards, and the children viewed a pair of local family friends, Michael and Sherry Kwasnica, as their surrogate grandparents and referred to them as “grandpa” and “grandma.” J.M.M. and A.B.M. played youth-league ice hockey, though C.J.M. was too young for it. The children also took part in numerous outdoor activities, including Ducks Unlimited,³ canoeing, camping, quidding, kayaking, and ice fishing.

          Mr. Miller sensed that Mrs. Miller was depressed and not coping well with being away from her family. Their marriage suffered, and Mr. Miller knew it was “on the rocks.” They had lengthy discussions about their marital problems, and at one point, in February 2017, Mrs. Miller told Mr. Miller that they were “headed for a divorce.”  In the throes of their capsizing marriage, Mrs. Miller was eager for her family’s company. According to Mr. Miller, she issued an ultimatum to him: she was going to leave Canada and return to Chattanooga with or without him. In response, Mr. Miller agreed that he, Mrs. Miller, and the children would leave Canada together as a family, hoping that the move would buoy their marriage. The family began preparing for the move. They rented two U-Haul trucks, which they fully loaded with their belongings—including all the children’s belongings—and they sold or gave away anything that did not fit into the trucks. They also packed the ATV and the canoe they used for quadding and canoeing, respectively. The Millers’ friends threw farewell parties for them. Their friends also helped them empty and clean their house. The Millers canceled their utilities. They returned the house keys to the owner. Mr. Miller quit his job.

          On September 19, 2017, the Millers left Canada for Chattanooga.  During the trip, Mrs. Miller asked Mr. Miller for all the passports, and he surrendered them to her.

The children arrived there with their parents on September 21 or 22. he family unloaded the children’s and Mrs. Miller’s belongings into Mrs. Miller’s mother’s basement, which became the children’s new living space, but the family’s belongings were so numerous that they had to unload some of them into local storage units. Mr. Miller did not cohabitate with Mrs. Miller in the basement; they had agreed to maintain separate residences once they arrived in Chattanooga. Mr. Miller moved in temporarily with Mr. Castle, who opened his home to him, while Mrs. Miller stayed at her mother’s house with the children.  Later in September, Mr. Miller enrolled J.M.M. and A.B.M. in school. Despite living apart from the children, Mr. Miller continued to see them at least two weeknights and most weekends. In November, Mrs. Miller told him that she wanted a divorce. Within days of receiving this news, he returned to Canada and looked into resuming his old job and the availability of the family’s old house. Afterwards, he called Mrs. Miller, and he informed her that he “wanted to go back” to Canada and “wanted the boys to come back with [him].” According to Mr. Miller, Mrs. Miller expressed her desire for the children to remain in Chattanooga. While still in Canada, Mr. Miller did “homework” on the Hague Convention, and he pursued additional legal advice specifically relating to “how ... it work[s].” He returned to Chattanooga without contacting the Saskatchewan Central Authority and requesting the children’s return to Canada under the Hague Convention.

          On March 27, 2018, Mrs. Miller filed for divorce. On the same day, Mr. Miller contacted the Saskatchewan Central Authority and applied for the children’s return to Canada. After making the trip back from Florida a few days later, Mr. Miller arrived at Mrs. Miller’s mother’s house to drop off the children. He fled from the house—with the children—after learning that a process server was waiting there to serve him. Mrs. Miller testified that Mr. Miller refused to return the children to her until she instructed the process server to leave. Finally, during the course of all these events—which occurred roughly between September 2017 and March 2018—the bulk of the evidence indicated that the children had made friends in Chattanooga. Mr. Miller resided in Canada, in the same house that he once lived in with his family.

          The district court found that Mr. Miller indisputably agreed to leave Canada and return to Chattanooga with his family, out of concern for Mrs. Millers’ mental health and out of hope to boost their marriage. The Millers’ departure from Canada had every semblance of permanency. They packed all their belongings—so many that they actually had to unload some of them into storage facilities, and they sold or gave away the belongings that they were unable to pack. They canceled the utilities. They returned the keys. Mr. Miller resigned from his job. The Millers’ friends threw farewell parties for them, with going-away gifts. Other than claiming that one of these parties was actually a birthday party and not a farewell party, Mr. Miller opposed none of these facts.          

          The district court observed that the record suggested that Mr. Miller initiated this case with the intent to forum shop—to postpone or circumvent custody-related proceedings in Tennessee and arrange for them to occur, if at all, in only one possible location, Canada.         From this evidence, the Court had a hardened conviction that Mr. Miller invoked the Hague Convention to duck the proceedings in Hamilton County Circuit Court and place Mrs. Miller in the difficult position of having to pursue those proceedings in his preferred forum, Canada. The evidence supporting the Court’s conviction of forum shopping was by itself a basis for denial of his Petition. See Jenkins, 569 F.3d at 557–58 .

          The court indicated that to establish wrongful retention under the Hague Convention, Mr. Miller must prove first by a preponderance of the evidence that Canada was the children’s country of habitual residence. Friedrich, 983 F.2d at 1400; Guevara, 180 F. Supp. 3d at 525; Hague Convention, art. 3; see generally Text and Analysis, 51 Fed. Reg. at 10504 If he succeeds in establishing that Canada is the children’s country of habitual residence, he must then prove by a preponderance of the evidence that (1) Mrs. Miller, by retaining the children in Chattanooga, breached his custody rights under Canadian law and (2) at the time of their retention, he was actually exercising those rights, or would have exercised them if not for their retention. Friedrich, 983 F.2d at 1400; Guevara, 180 F. Supp. 3d at 525; Hague Convention, art. 3.  The Sixth Circuit identified five lodestars to guide itself—and district courts in future cases—to a proper determination of a child’s habitual residence: First, habitual residence should not be determined through the “technical” rules governing legal residence or common law domicile. Instead, courts should look closely at “[t]he facts and circumstances of each case.” Second, because the Hague Convention is concerned with the habitual residence of the child, the court should consider only the child’s experience in determining habitual residence. Third, this inquiry should focus exclusively on the child’s “past experience.” “Any future plans” that the parents may have “are irrelevant to our inquiry.” Fourth, “[a] person can have only one habitual residence.” Finally, a child’s habitual residence is not determined by the nationality of the child’s primary care-giver. Only “a change in geography and the passage of time” may combine to establish a new habitual residence. Robert, 507 F.3d at 989 (quoting Friedrich, 983 F.2d at 1401–02).

          In Robert v. Tesson, the Sixth Circuit revisited the issue of habitual residence in a more complex context, addressing how to determine habitual residence “when a child has alternated residences between two or more nations.” 507 F.3d at 992. Concerned with the need for emotional and social stability in a child’s life, the Sixth Circuit adopted an “acclimatization standard.” Under this now well-known standard, “a child’s habitual residence is the nation where, at the time of their 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.’” Id. (quoting Feder v. Evans-Feder, 63 F.3d 217, 224 (3d Cir. 1995) ). The Sixth Circuit has not fitted the terms “acclimatization” or “settled purpose” with a tailored definition because every inquiry into habitual residence is a pliant, fact-specific analysis. See id. at 990 (stating that an analysis of a child’s habitual residence is not a formulaic one and requires courts to “look closely at ‘[t]he facts and circumstances of each case’ ” ; Friedrich, 983 F.2d at 1402 (“Every family dispute has its own unique set of facts.”).

           Under this fact-specific inquiry, various aspects of a child’s life may be pertinent to reaching a decision as to whether a child has become acclimated to and settled in a particular country. They include the child’s academic activities, social engagements, participation in sports programs and excursions, any personal belongings in the child’s possession when the child alternated residences, the child’s own stated desire, and any other relevant circumstances or meaningful connections with people or places. Robert, 507 F.3d at 996; see Jenkins, 569 F.3d at 556 (“[A]ll [of these things] point to the child being acclimatized.” But all of these aspects surrounding a child’s life in a new country, depending on the time of their occurrence, are not necessarily proper for consideration in an analysis under the acclimatization standard.

          A lynchpin of any inquiry under this standard is a determination of the time of the wrongful removal—or in this case, the time of the wrongful retention—because it lays the parameters for the Court’s analysis. See Robert, 507 F.3d at 993 (“[A] child’s habitual residence is the country where, at the time of their removal, the child has been present long enough to allow acclimatization[.]”; see also Panteleris v. Panteleris, 601 Fed.Appx. 345, 349 (6th Cir. 2015) (“[O]ur court’s precedent instructs courts to look back in time from the period of wrongful retention, not forward.”); Friedrich, 983 F.2d at 1401 (“[T]he court must focus on the child, not the parents, and examine past experience, not future intentions.”). In other words, the date of the children’s retention in Chattanooga operates as an expiration point, which means that the Court, when determining the children’s habitual residence, has to limit its review to the social and familial aspects of the children’s lives that developed before that point and not beyond it.

          Mr. Miller contended that Mrs. Miller began wrongfully retaining the children in Chattanooga on November 17, 2017, because on this date he expressed a desire to have the children return to Canada with him and Mrs. Miller expressed her desire for them to remain in Chattanooga with her. All the evidence led the Court to only one possible conclusion: the first time that Mr. Miller expressed anything weightier than tacit grumblings about the children’s presence in Chattanooga was when he pursued their return to Canada on March 27, 2018, by filing his application with the Saskatchewan Central Authority. And on this date—the same date when Mrs. Miller filed for divorce—Mrs. Miller had also announced her unequivocal intention to retain the children in Chattanooga through state custody proceedings.

          Having determined the date of the children’s retention, the Court—when it looked backward from that date—had no doubt that the children were present in Chattanooga long enough to become acclimated and settled. With the exception of C.J.M., who was too young, they were enrolled in Chattanooga’s school system, and J.M.M. became a member of the Science Olympiad Club and attended a playground-renovation project meeting. See Ahmed, 867 F.3d at 687 (“ ‘[A]cademic activities’ are ‘highly suggestive of acclimatization[.]’ ” They were doing well in school and showed no behavioral problems. See Jenkins, 569 F.3d at 556 (holding that a child was acclimated to his new country partly because he “was attending preschool ... and was, by all first-person accounts, doing well in that environment”).  They also had family in the area and interacted with them.

          The district court found that Mr. Miller failed to establish by a preponderance of the evidence that Canada was the children’s habitual residence at the time of their retention in Chattanooga—whether the Court views the date of retention as March 27, 2018, or November 17, 2017. Their retention in Chattanooga was therefore not “wrongful” as the Hague Convention defines the term.

Flores v Alvardo, 2018 WL 3715753 (W.D. North Carolina, 2018) [El Salvador] [Habitual Residence] [Petition granted]

          In Flores v Alvardo, 2018 WL 3715753 (W.D. North Carolina, 2018) the district court found that Petitioner established by preponderance of the evidence a prima facie case warranting the return of V.S.G.M., a minor to El Salvador. Respondent failed to establish by clear and convincing evidence an affirmative defense proving a grave risk of harm to V.S.G.M. 

          Petitioner and Respondent married in El Salvador in December of 2012. In 2013, Respondent gave birth to a child in San Salvador, El Salvador. As Petitioner tells it, he lived with Respondent and Child in a familial residence in El Salvador until Respondent left with the Child in January of 2017. When Respondent left, she originally told Petitioner that she and the Child were going to stay with her aunts for a week in La Union, El Salvador. The truth, however, was that Respondent took the Child to the United States after disconnecting her cell phone.  Petitioner found out Respondent’s location after receiving a video showing her crossing the United States border with the Child. Petitioner promptly filed an abduction report to the local authorities. Petitioner and Respondent remain married today and no court in either El Salvador or the United States has entered an order regarding custody.

The Child was removed from El Salvador to the United States on or about on or about January 8, 2017. The Petitioner filed the petition on August 25, 2017, which is within one year of the Child’s removal from El Salvador. At the hearing, the parties also stipulated that the Minor’s habitual residence is in El Salvador.

          The Court found that Petitioner succeeded in establishing his prima facie case by a preponderance of the evidence. It also found that Respondent failed to prove an affirmative defense under the Convention’s grave risk exception or failure-to-exercise-custody exception. Respondent presented no other evidence besides her own testimony and what allegations she posited were more geared to the best interest of the Child rather than the relevant query before the Court.

          The Court rejected Respondents Article 13(a) defense, Failure to Exercise Custody Rights. Respondent’s argument was that no custody order granted Petitioner custody rights over the Child. However, Petitioner successfully refuted this argument. Under El Salvador law, the parents of a child share custody jointly unless a custody order finds otherwise. Family Code, arts. 206, 207. Respondent admitted that no custody order exists that altered the default joint custody rule. As such, Respondent’s argument cut against the very assertion she attempted to make.

          Respondent also argued that returning the Child to El Salvador constituted a grave risk of physical or psychological harm. Respondent alleged that Petitioner habitually smoked marijuana and drank heavily around the Child. At one point, Respondent claimed that the Child was caught with a bag of marijuana in his mouth. Respondent also claimed that Petitioner endangered the Child by drinking and driving with him in the car. At least once, Respondent stated that the Child was in the car when Petitioner was involved in a minor car accident. Finally, Respondent claimed that Petitioner would argue with her and began kicking her out of the house.  Respondent states that Petitioner would “violently” remove her from the hoes when she refused to go without her son.

          The district Court found Respondent’s claims general and unsubstantiated. Respondent provided no other evidence besides her word, which the Court found less than credible. While Respondent stated that neighbors and a nanny witnessed the violence Petitioner subjected her to, she presented none of these parties as witnesses during the hearing. Respondent admitted that Petitioner showed no physical violence toward the Child.

          The Court was faced with Respondent’s testimony of drug and alcohol use against Petitioner’s testimony of a happy family that was abruptly separated by Respondent’s wrongful removal of the Child. Respondent faced a higher evidentiary standard than Petitioner and quite simply failed to produce sufficient evidence to corroborate her claims.

Asumadu v Baffoe, 2018 WL 3957696 (D. Arizona, 2018)[Canada] [Habitual residence] [Petition granted in part and denied in part]

          In Asumadu v Baffoe, 2018 WL 3957696 (D. Arizona, 2018) the district court granted in part and denied in part Asumadu’s Petition for Return of Children to Canada. Based on the Court’s finding that A.K.A.’s habitual residence was the United States, Asumadu did not make the showing required under the Hague Convention for a mandatory return of A.K.A. to Canada.  However, based on the Court’s finding that K.A.A.’s habitual residence was Canada and that Baffoe had not established by the requisite levels of proof that any of the narrow exceptions apply, Asumadu made the showing required for a mandatory return of K.A.A. to Canada.

          Asumadu and Baffoe were both born in Ghana. Asumadu immigrated to Canada in 1995 and was a Canadian citizen. Baffoe immigrated to the United States in 2004 and was a United States citizen. In 2005, the couple began a long-distance relationship. Although the couple lived apart for the majority of their relationship, Baffoe periodically traveled to Canada to visit Asumadu and visa-versa. In September 2016, Baffoe relocated to Canada, where she lived with Asumadu until returning to the United States in January 2018. Asumadu and Baffoe had two children together. Their son, K.A.A., was born on February 6, 2008, and their daughter, A.K.A., was born on July 20, 2011. Both children were born in the United States.

          K.A.A. lived in the United States with Baffoe until January 2010, when he moved to Canada to live with Asumadu.  K.A.A. lived there since January 2010. Baffoe contended that between 2010 and 2015 she made three unsuccessful trips to Canada to retrieve K.A.A. and return him to the United States. Baffoe testified that her efforts were thwarted by her fears of violent and physical retribution by Asumadu. Baffoe failed to take any legal action to have K.A.A. returned, testifying that doing so would be contrary to Ghanan custom and cultural norms. According to Baffoe, consistent with these cultural norms, she sought assistance from Asumadu’s parents and the elders of their village in Ghana. She was instructed to be patient.

          A.K.A., always lived in the United States with Baffoe. In 2016, Baffoe was in contact with Asumadu’s father, who advised her that Asumadu had changed and promised that if she joined Asumadu in Canada he would not mistreat her. In September 2016, Baffoe and A.K.A. made the trip to Canada. According to Baffoe, her plan was to give Asumadu a chance to prove that he would not be abusive. If he behaved, Baffoe intended to stay; if not, she intended to return to the United States with both children. Baffoe claimed that, upon her arrival in Canada, she immediately discovered that K.A.A. had suffered an untreated serious head injury. In support, she offered a picture K.A.A.’s head showing a small scarred area.

          Baffoe, Asumadu, and their two children resided together in Canada from September 2016 until January 2018. During that period, Baffoe testified that there were three serious incidents of domestic disturbance arising out of seemingly minor disagreements. In January 2018, while Asumadu was at work, Baffoe left Canada for the United States with both children. She did not tell Asumadu she was leaving or where she was going. After Asumadu located Baffoe in Arizona, he filed a petition for return of his two minor children, K.A.A. and A.K.A., to Canada.

          The district court found that Asumadu had not proven by a preponderance of the evidence that the parties had a shared intent for A.K.A. to habitually reside in Canada. After A.K.A. was born in July 2011, Baffoe and A.K.A. lived together in the United States until November 2015, when they visited Petitioner for ten to eleven weeks. Baffoe and A.K.A. made the 2015 visit and returned without abandoning their residence in the United States. The two made another lengthy trip to Canada in September 2016 on a trial basis. The Court credited Baffoe’s testimony that it was not her intent to make Canada her and A.K.A.’s permanent home unless and until she was convinced that Asumadu no longer would be abusive. Shortly after living with Asumadu during this trip, Baffoe concluded that he had not changed and began planning her return to the United States. Although she lived in Canada for more than a year, there was never a shared intent for A.K.A. to live anywhere other than with Baffoe. As such, A.K.A.’s habitual residence remained the United States. Because Asumadu had not proven by a preponderance of the evidence that A.K.A.’s habitual residence was Canada, his petition was denied as to this child. See Papakosmas v. Papakosmas, 483 F.3d 617, 621 (9th Cir. 2007).

          On the other had the court found that Asumadu had proven, that the parties had a shared intent for K.A.A. to habitually reside in Canada. For example, in January 2010, Asumadu travelled to the United States and moved K.A.A. to Canada. K.A.A. lived in Canada with Asumadu for eight years until he was removed by Baffoe in 2018. Although Baffoe contended Asumadu moved K.A.A. to Canada without her consent, the evidence did not support her contention. For instance, Baffoe signed an authorization for Asumadu to receive the Canadian tax benefit because K.A.A. lived with him in Canada. Baffoe also visited Canada multiple times after K.A.A. moved there, but until 2018 always returned to the United States without him. Nor did she inform law enforcement or file a petition under the Hague Convention seeking return of K.A.A. to the United States. Moreno v. Zank, 895 F.3d 917, 924-925 (6th Cir. 2018) (“[I]f 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.”). Instead, Baffoe first raised her alleged lack of consent in the context of this proceeding, eight years after K.A.A. moved to Canada. The Court therefore found that the parties agreed in 2010 for K.A.A. to live in Canada with Asumadu and that his habitual residence is Canada.

          Baffoe raised the grave risk exception, which provides that the Court “is not bound to order the return of the child if ... 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.” Id. at 13(b), 19 I.L.M. at 1502. The party raising this exception must prove by clear and convincing evidence that returning the child to his habitual residence would expose him to physical or psychological harm or otherwise place him in an intolerable situation. Gonzalez, 194 F. Supp. 3d at 901. Baffoe claimed that Asumadu’s threats and acts of violence toward her committed in the presence of the children demonstrate that the children would be exposed to a grave risk of physical or psychological harm.  Despite the lack of corroborative evidence, the Court found he description of events provided by Baffoe was consistent with her having been the victim of some form of domestic violence. It was difficult to determine the full nature of the violence, but the Court found Asumadu likely struck Baffoe on more than one occasion. The Court, did not find the allegation that Asumadu put a knife to Baffoe’s throat credible. Nevertheless, physical abuse or threats towards a spouse are not the same as physical abuse or threats towards a child. See Nunez Escudero v. Tice-Menley, 58 F.3d 374, 375-78 (8th Cir. 1995); Tabacchi v. Harrison, No. 99-C-4130, 2000 WL 190576, at *12-16 (N.D. Ill. Feb. 10, 2000) (“Although [Petitioner’s abusive] behavior toward his wife is unacceptable, to qualify as a grave risk of harm under the convention, the risk must be to the child.”). Given the narrowness of this exception, the Court could not conclude that Asumadu’s acts of violence against Baffoe satisfied the grave risk requirement under the Convention. It held that      Baffoe had not proven by clear and convincing evidence that there was a grave risk that the return of K.A.A. would expose him to physical or psychological harm or otherwise place him in an intolerable situation.

          Baffoe argued that the consent or acquiescence exception applies. The Court found that the parties’ actions surrounding the removal were not consistent with a consensual removal of the children. Based on this evidence, Baffoe had not shown by a preponderance of the evidence that Asumadu consented to K.A.A.’s removal to the United States from Canada.

Saltos v Severino, 2018 WL 3586274 (D. New Jersey, 2018) [Ecuador] [Habitual Residence] [Petition granted]

          In Saltos v Severino, 2018 WL 3586274 (D. New Jersey, 2018) the district court granted Petitioner Ronald Javier Velez Saltos’ petition for the return of the seven-year-old minor child, R.C., to Ecuador.

         Petitioner was the father of R.C., a citizen of Ecuador, and was living in Ecuador. Respondent was R.C.’s mother, a citizen of Ecuador, and residing in New Jersey with her new husband, Dalton Mejia, who was an American citizen. Petitioner and Respondent were married in Ecuador on February 13, 2010, and had R.C. on July 7, 2011. R.C. was born in Ecuador and lived there for the first five years of her life. The parties separated in February 2012, and later divorced on December 7, 2016.

          On November 23, 2012, the parties entered into a custody agreement, whereby R.C. would live with Respondent, and Petitioner would have visitation rights from 5:30 p.m. to 9:30 p.m. on weekdays, and noon to 5:00 p.m. on the last Sunday of each month. An Ecuadorian Court approved the custody agreement the following day. (Petitioner testified that, because R.C. was very young at the time of the custody agreement, the Ecuadorian Court thought it would be best for her to be in the primary care of her mother. Petitioner spent time with R.C. under the terms of the agreement, which included seeing R.C. at school and for birthdays and holidays, as well as taking R.C. to visit his three other children from a prior marriage. Petitioner was also required to pay child support to R.C. and his other three children in the amount of $800 per month. Petitioner’s child support payments for R.C. were made through a judicial process pursuant to a court order. Under Ecuadorian law, Petitioner was prohibited from leaving the country because he was paying child support through a court order.  At some point after the separation, Petitioner declared bankruptcy and, based on financial status and inability to make the child support payments, the amount that Petitioner paid in child support was reduced. Because Petitioner fell behind on his payments, Respondent alleges that Petitioner owed about $5,000.00 in child support arrears. Respondent also claims that Petitioner cancelled R.C.’s medical insurance, which Petitioner clarified was automatically cancelled after he declared bankruptcy, and that the child support payments were supposed to cover health insurance.

          In early April 2017, Respondent informed Petitioner that she wanted to take R.C. on vacation to Disney World in Orlando, Florida from April 23, 2017 to May 1, 2017, and wanted Petitioner to authorize the travel. According to Petitioner, he expressed concerns that, if something were to happen to R.C., he would be unable to travel to the United States because the court-mandated child support payments prevented him from travelling. Petitioner would only agree to authorize Respondent and R.C.’s trip if Respondent removed her claim with the court that he owed $5,000.00 in child support payments, and agree to let Petitioner pay child support directly to Respondent instead of through the court. Respondent indicated that she reluctantly agreed, and the parties completed the necessary exit permit for R.C. to travel from April 23, 2017 to May 1, 2017. Before the trip to Orlando, Petitioner paid a portion of R.C.’s school registration fees, and Respondent enrolled R.C. for the upcoming school year in Ecuador.

          On April 23, 2017, Respondent and R.C. traveled to the United States from Ecuador. On April 30, 2017, Petitioner received an anonymous phone call informing him that Respondent intended on remaining in the United States with R.C. On May 1, 2017, Respondent called Petitioner and explained that her then-boyfriend, Dalton Mejia, proposed, and that Respondent will be staying in the United States with R.C. permanently, in order to give R.C. more opportunities for her future. At no time prior to this phone call did Respondent tell Petitioner that she intended to get married in the United States or that she intended on taking R.C. to New Jersey. Respondent and R.C. then traveled from Orlando, Florida to Union, New Jersey, where they still reside today. R.C. was five at the time. R.C. completed first grade in New Jersey and was enrolled at Hannah Caldwell School, where she has been excelling both academically and socially.

          Since May 1, 2017, Petitioner was unable to contact R.C. Petitioner filed this emergency petition with the Court on May 1, 2018. Service of the emergency petition was made on Respondent, and the Court issued an Order to Show Cause why R.C. should not be returned to Ecuador.

          The district court found that the parties agreed that R.C. would travel to the United States from April 21, 2017 until May 1, 2017. Petitioner testified that he expected R.C. to return to Ecuador on May 1, 2017. Therefore, the date the allegedly wrongful retention occurred was May 1, 2017. The parties did not dispute that R.C.’s habitual residence prior to her allegedly wrongful retention was Ecuador, which was bolstered by the fact that R.C.’s family, school, and entire life was in Ecuador prior to her trip to Orlando, Florida. Therefore, it found that R.C. was a habitual resident of Ecuador before her allegedly wrongful retention in the United States.

         

          According to Petitioner, Respondent’s wrongful retention violated his custody rights under Ecuadorian law, which hold that both parents have joint custody unless there is a court order to the contrary. There was no court order that terminated Petitioner’s joint custody rights. Additionally, Petitioner asserted that R.C.’s wrongful retention violated his rights under the custody agreement entered into by the parties on November 23, 2012. Respondent conceded that Petitioner had joint custody based on this custody agreement. Petitioner was unable to exercise these rights or otherwise contact R.C. since May 1, 2017, when R.C. was retained in the United States without his consent. Therefore, Petitioner had shown by a preponderance of the evidence that his custody rights were breached by R.C.’s allegedly wrongful retention in the United States.  Based on the facts, it was clear to the Court that Petitioner was sufficiently exercising his custody rights at the time of R.C.’s retention in the United States. Therefore, Petitioner made out a prima facie case that Respondent wrongfully retained R.C. in the United States in violation of the Hague Convention.

          Respondent asserted several of the affirmative defenses recognized by the Hague Convention. These affirmative defenses included: (1) that R.C. had been here for at least a year and was well settled in her home and school in New Jersey, where she was excelling socially and academically; (2) that R.C. was of sufficient maturity and has articulated her desire to stay in the United States and did not want to return to Ecuador; (3) that Petitioner was not exercising his custody rights because he did not visit or care for R.C. as articulated in the custody agreement; and (4) that R.C. would be exposed to a “grave risk of harm” if she is returned to Ecuador, based on (a) the possible abuse she may face under Petitioner’s care and (b) the human rights concerns associated with Ecuador, including the sexual exploitation of minors. The Court rejected each affirmative defense.

          The Court found Petitioner filed this emergency petition on May 1, 2018. Petitioner argued in his brief that the wrongful retention began on May 2, 2018, and that his emergency petition was therefore filed less than a year later. However, the date of R.C.’s wrongful retention was May 1, 2017. Therefore, R.C.’s wrongful retention fells into the year or more required for Respondent to invoke Article 12’s “well-settled” exception. Nevertheless, Respondent had not shown by a preponderance of the evidence that R.C. is “well-settled” within the meaning of Article 12. Upon finding that a year or more has passed, the Court must weigh several factors “informative of the child’s connection with his or her environment,” including the age of the child, the stability of the child’s residence in the new environment, whether the child attends school or day care consistently, whether the child attends church regularly, the stability of the mother’s employment or other means of support, whether the child has friends and relatives in the area, and to what extent the child has maintained any ties to the country of habitual residence. Silvestri v. Oliva, 403 F. Supp. 2d 378, 387–88 (D.N.J. 2005).

          While several of these factors weighed in favor of Respondent there were very serious concerns that weighed against applying the “well-settled” exception to this case. First, the majority of R.C.’s family lived in Ecuador, including her grandparents who R.C. remained in contact with. Second, R.C. wa at the very young age of seven, and her testimony is to be weighed accordingly. Furthermore, R.C.’s desire to remain in the United States was in part based on her living with, and under the influence of, Respondent. Notably, when R.C. was asked what she would want to do if her mother returned to Ecuador, R.C. responded, “I will go back to Ecuador because wherever [Respondent] is, I am. I am with her because we are a team.” This exchange, along with others, indicated to the Court that R.C.’s preference for New Jersey had less to do with her life in the United States, and more to do with being close to her mother. Last, and perhaps most important, Respondent and R.C. currently had an uncertain immigration status. Both Respondent and R.C. came to this country on a travel visa to Orlando, Florida, which was for a limited period of eight days.  Respondent’s Husband, Dalton Mejia, is an American citizen and was currently filing relative petitions for Respondent and R.C. to remain in the United States. However, the Court wasn’t convinced that Respondent and R.C.’s ability to remain in this country is certain, as they were vulnerable to deportation in the event that their relative petitions are denied. This fact, in conjunction with the other factors weighing against Respondent, outweighed those factors supporting the application of the “well-settled” exception. Therefore, the Court finds that Article 12’s “well-settled” exception did not apply to this case.

          For similar reasons as those expressed above, the Court found that Article 13’s second-to-last paragraph, also known as the “wishes of the child” exception, does not apply to this case either.  R.C. testified about how much she likes New Jersey, that she does not miss Ecuador, and that she does not want to return to Ecuador.  The most specific example R.C. gave as to why she does not want to return to Ecuador is that her half-sisters will tease her and pull her hair when they visit her. R.C. also testified that she wants to remain in the United States because she prefers her school here. However, much like the minor child in Tsai-Yi Yang, 499 F.3d at 279, R.C.’s testimony is more focused on why she prefers New Jersey, rather than why she specifically objects to returning to Ecuador.

          The Court also found that Respondent had not set forth sufficient facts to support the application of the exception articulated in Article 13(a) of the Hague Convention.

          A thorough review of the record in this case and Respondent’s arguments compelled the Court to conclude that there was no clear and convincing evidence that R.C. would suffer a grave risk of physical or psychological harm should she be returned to Ecuador. First, R.C. was not at risk of serious abuse or neglect if she returned to Ecuador. Respondent claimed that she had always been R.C.’s primary caretaker and to remove R.C. to Petitioner, whom she had not formed the same type of bond with, would cause R.C. great distress. R.C. also testified that she is afraid to return to Ecuador because she would no longer live with her mother. The distress caused from separating a child from their parent with whom they have a strong bond is generally not considered a grave psychological harm in cases brought under the Hague Convention. See, e.g., Carranco v. Munoz, Civil Action No. 12-7299, 2013 WL 150760, at *9 (D.N.J. Jan. 14, 2013) The Court rejected  Respondent’s arguments regarding R.C.’s risk of serious abuse or neglect in Ecuador. The Court also found that returning R.C. to Ecuador would not result in any risk of “imminent danger.” Respondent argues that the conditions in Ecuador make the country “not a safe place for a child.” For support, Respondent pointed to a 2017 Human Rights Report of Ecuador which reported high amounts of sexual abuse and exploitation of children.  While this report wass disturbing, it was not relevant to the Court’s determination, as it did not directly affect R.C. See Baxter, 423 F.3d at 373. Respondent conceded that “there is no direct evidence” to suggest that R.C. was or will be exposed to sexual abuse or exploitation in her hometown in Ecuador. Furthermore, the unfortunate fact that sexual abuse or exploitation can occur in Ecuador, like it can occur in almost any country, does not rise to the level of imminent danger articulated by the “grave risk of harm,” i.e., a war zone or the outbreak of a deadly virus. See Baxter, 423 F.3d at 373. Respondent also argues that the school system in the United States offers more opportunity than that of Ecuador. However, the loss of economic or educational opportunities alone does not rise to the level of “a grave risk of harm.” See Baxter, 423 F.3d at 373 (quoting Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir.2001)). Therefore, the Court rejects both of Respondent’s arguments regarding R.C.’s risk of “imminent danger,” and found that Respondent cannot meet Article 13(b)’s “grave risk of harm” requirements as to apply the exception to this case.

Finally, even if any of the exceptions articulated above could be met, the Court would still act in its discretion to remove R.C., as almost all of Respondent’s arguments were focused on custody and the best interest of the child.