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Friday, October 11, 2019

Shah v Federbush, 2019 WL 5060496 ( S.D. N.Y., 2019)[Thailand][Habitual residence][Petition denied]

In Shah v Federbush, 2019 WL 5060496 ( S.D. N.Y., 2019)  the district court  dismissed the petition of Nishita Shah (“Shah”) against her husband, Max Federbush (“Federbush”), for an order returning JF to Thailand.  

Petitioner and Respondent moved to New York from Thailand with the Child in August 2017 and separated ten months later. On May 29, 2019, the proceeding was commenced.

Shah, a citizen of Thailand, Canada, and an overseas citizen of India, went to college in the United States and spent a year after she graduated from college in California. Although she was a Managing Director of her family’s Thailand-based business “GP Group,” she had limited decision-making and managerial powers, and her financial resources, beyond a modest salary, were controlled by her father. Federbush was a citizen of the United States. He worked in private equity and real estate, and he has had several business ventures in Asia. He also had close ties to a family business in New York, with which he has been intermittently involved for twenty years. 

The parties met in Thailand in 2008, married ceremonially in Turkey in 2010, and married legally in Thailand in 2012. After their ceremonial marriage, Shah became pregnant with JF. A few months before the Child was due in spring 2012, the couple temporarily relocated from Thailand to Canada. When JF was a few months old, the couple returned to Thailand, where the Child received his Thai citizenship. The couple lived in Bangkok for the next five years. Around 2013, Shah quit sleeping in the same bed as Federbush, and the couple argued frequently. 

Notwithstanding their marital difficulties, in 2016 the parties began to contemplate moving to the United States. They turned their sights to New York. Federbush told Shah that he wanted JF to experience living in the United States, spend time with Federbush’s aging parents, and attend Federbush’s primary school alma mater, the Buckley School (“Buckley”). Shah traveled to New York in early 2016 to view apartments for purchase. Later that summer, when the family was visiting New York, they decided to apply for JF to attend Buckley. They interviewed at Buckley in August after preparing for the interview with friends at a dinner in New York. JF was admitted in late 2016; the parties had assured Buckley that they would move to New York, enroll JF for the full eight- or nine-years boys can attend Buckley, and be a part of the school community. 

Soon after JF was admitted, Shah and Federbush decided to move to New York. They leased an apartment for one year on the Upper East Side not far from Buckley and arrived in August 2017. A month later they officially announced their move to friends and family at a large welcome party held in their honor. JF began kindergarten at Buckley that fall. Shah and Federbush also left a deposit on file at NIST, JF’s former school in Thailand, to hold his spot there in case the family returned.

One new point of contention that arose after the move was that Shah could spend only a limited number of days in the United States under the terms of her visitor’s visa and before being subject to U.S. taxes—a number the couple closely tracked.. Despite difficulties in their relationship, in early 2018 they extended the lease on their apartment for another year. But during the family’s 2018 summer vacation in Thailand, Shah informed Federbush that she wished to separate. He and JF returned to New York before the beginning of the next school year without major incident. Shah arrived soon after; but during the fall and winter of JF’s first grade year, Shah stayed in a hotel in New York rather than in the apartment where Federbush and JF lived.

Around the new year, Shah moved out of the hotel and rented her own apartment in New York for a term ending in January 2020 with JF listed as an additional occupant. When Shah was in New York, JF (and his Thai nanny, Jum) spent time between Federbush’s apartment and Shah’s. Tr. 271:8-10. In the spring of 2019, Federbush told Shah (and her father) that he was registering JF for second grade at Buckley; at some point, Federbush paid JF’s tuition. At around the same time, in anticipation of the upcoming school year, Shah, Federbush, and JF decided that he would take French, and Shah ordered JF’s summer reading that was assigned by Buckley.The parties continued to negotiate a permanent solution to the separation, but by late spring, the parties had hit an impasse. This lawsuit followed on May 29, 2019.

Shah asserted that the move was conditioned on a “trial period, that if their marriage failed, they would move back to Thailand after two years.. Shah said she agreed to try living in New York “for the sake of peace ... and a chance for [their] marriage to work.” As a result, Shah contended, the parties’ last shared intent was that JF would reside in Thailand. Federbush says that the parties moved to New York without condition. He argued that the parties were, of course, aware that they might have to return to Thailand for some unforeseeable reason, but there was no condition understood by either of them that their marriage had to succeed in order for JF to remain in New York. Therefore, Federbush asserts that their last shared intent was for JF to reside in New York. 

The Court did not credit Shah’s testimony that the move to the United States was conditional. First, according to Shah, the condition was communicated to no one except her parents and brother. Second, Shah’s description of the nature and circumstances of the condition is vague and inconsistent. Finally, although there was some evidence that corroborates her testimony, the substantial weight of the credible evidence runs counter to her narrative.

Shah testified that she thought returning to Thailand “might be possible” if “things [did not] work out” between her and Federbush. She also testified that she intended to “stay for two years and [then] reassess.” But she also testified that they would “just go [to the United States] right now and then we’ll figure it out.” The court pointed out that anticipating a mere “possibility” of return and having a plan to “reassess” their commitment to living in New York is just not the same as a condition that if the marriage failed, they (or at least she and JF) would return to Thailand. When asked what they planned to do if the marriage was not going well after two years, the condition precedent on which she hinged her case, Shah testified that she did not know, acknowledging that “[m]aybe we never really spoke about it.” This admission contradicted other testimony by Shah regarding “conversations with Max before we moved that if things didn’t work out that we would move back to Thailand.” Shah testified that her ideal resolution of this dispute would be custody “two weeks on and two weeks off” in New York.

Shah argued that she left over ninety percent of her belongings in Thailand, that Federbush left behind the entire contents of his study, and that the parties left behind many of JF’s toys. But Shah and Federbush also had “stuff” in storage in New York, including Federbush’s furniture and ninety-five percent of his belongings; he testified that he left in Thailand only unused files and summer clothing. Further, on each subsequent trip to New York, Shah brought so much luggage that she was on one occasion stopped at the border and denied entry as an intended immigrant. Moreover, the parties took with them JF’s favorite toys and weather-appropriate clothes that he had not outgrown. 

Shah’s mother testified that before the move to New York, Federbush told her that if things did not work out, they might be back in a year. But this did little to evince an agreed-upon condition to return to Thailand. At most it evincedthe mere possibility, and it did nothing to evince a two-year conditional period. Shah’s brother testified that Federbush told him that they had allowed a two-year period to make their new lives in New York work. But Shah’s brother’s testimony was just as unhelpful: even though Shah’s brother identified a “two year” period, he also testified that “there was no understanding as far as [he] knew as to what would happen at the end of two years if all did not go well.” 

Shah pointed to the fact that they left a deposit at NIST (JF’s school in Thailand) as evidence that there was no intent to move permanently to New York. When JF was not re-enrolled at NIST (because he was moving to New York), NIST asked his parents whether they would leave a deposit to facilitate JF’s re-enrollment if they returned to Thailand. Federbush made his intentions clear to Shah when he texted her that there was no need to do so: “burn our boats.” The fact that a deposit was left at NIST was ambiguous at best. There was no evidence that Shah made a conscious decision to act contrary to Federbush’s desire to “burn our boats.”

Some of the facts were indicative of Shah’s desire to maintain ties and perhaps even to return to Thailand, but these facts are also consistent with there having been no condition on the move. Shah retained her business interests in Thailand and continued serving on the board of directors for two of G.P. Group’s public companies. Shah similarly testified that in early August 2018, during an interview with Forbes Thailand, she told the reporter that she was “going to stay in the states for two years,” after which she planned to “be back in Thailand” to look after her various Thai business interests. But that statement goes to her own connections to Thailand, not JF’s. Indeed, Shah did not testify that she told the reporter that she and her family would be returning in two years.

Shah also argued that she never tried to become a permanent resident or to obtain permission to work in the United States, and she never addressed the tax and business consequences that would attend permanent residency. The Court found  credible Federbush’s testimony that the tax day-counting arrangement was part of a longer process of addressing the tax and business consequences of permanent residence.  This arrangement was meant to give the Shah family a window to restructure their holdings to minimize or eliminate whatever difficulties (tax or otherwise) would arise if Shah were a permanent resident of the United States while remaining Managing Director and a substantial shareholder of GP Group. 

In contrast to the limited quantum and persuasiveness of evidence corroborating Shah’s narrative that the move to New York was conditional, there was substantial persuasive evidence that tends to corroborate Federbush’s testimony that the couple moved to New York indefinitely and without condition. After moving, the parties acted in ways that were consistent with a shared understanding that JF would remain in New York long-term and entirely inconsistent with a shared understanding (or even a unilateral understanding) that JF was living in New York on a conditional basis.

The parties’ actions with respect to Buckley all evinced a mutual understanding that the move to the United States was for much longer than two years. Even with Shah’s family wealth, it strains credulity to believe that she would have made a long-term pledge to the school unless she believed JF would be attending the school long term.

After Shah notified Federbush that she wanted to separate, she behaved as though she would continue to live in New York consistently or on a periodic basis well past the August 2019 two-year anniversary of the move. Shah continued to count the number of days she spent in the United States to make sure she stayed under the global income-tax threshold. Shah rented, furnished, and moved into an apartment in Manhattan with a lease term extending to January 2020. When Shah and Federbush told JF that they were separating, they assured him that his life would not change: he would continue to live in his father’s apartment and his mother would live just ten minutes away.

The Court found  that the last shared intent of Shah and Federbush was that JF would reside in New York, and neither Shah nor Federbush contemplated a condition, implied or explicit, that JF would return to Thailand if the parties separated.

The Court noted that  Second Circuit has stressed that habitual residence is simply the place where the child “usually or customarily lives.” Saada v. Golan, 930 F.3d 533, 539 (2d Cir. 2019) (quoting Guzzo, 719 F.3d at 109). “[T]he overall assessment of habitual residence is not formulaic but instead is a fact-intensive determination that necessarily varies with the circumstances of each case.” Guzzo, 719 F.3d at 109 

To determine habitual residence, the Second Circuit has instructed the trial court to analyze the parents’ latest shared intent and, if in conflict with where the child has been retained, whether the child has nonetheless acclimatized to his or her new locale: First, the court should inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent.

Shah argues that JF’s habitual residence is Thailand. She bases her argument on her narrative in which the family’s move to New York was for a two-year trial period, conditioned on their marriage improving. Because the move was conditional, and because the condition did not come to pass, she argues that the parties did not have a shared intent to move to New York. Thus, Shah asserts, the parties’ last shared intent was that JF would reside in Thailand. 

The court found that the greater weight of evidence supported Respondent’s narrative that the parties intended to move to New York indefinitely. Although Shah may have hoped that they would consider returning to Thailand if their marriage did not work out (the Court was not persuaded that Shah believed Federbush would ever return to Thailand), habitual residence is not determined by “wishful thinking alone. “When the child moves to a new country accompanied by both parents, who take steps to set up a regular household together, the period need not be long [to establish a new habitual residence].” Id. The parties both intended that JF would reside in New York. The parties moved there together. And the parties established a locus of family life, schooling, friends, possessions, and expectations in New York. New York, by all indications—including the parties’ last shared intent—is where the Child usually and customarily lives. Because the Court found that the parties intended to move indefinitely, not, as Shah contended, for a trial period, Shah did not met her burden of proving that Thailand was JF’s habitual residence. Therefore, Federbush was not wrongfully retaining JF in the United States. Petitioner failed to satisfy her burden of proving, by a preponderance of the evidence, that Thailand was JF’s habitual residence. 

Tuesday, October 8, 2019

Pfeiffer v Bachotet, 2018 WL 9563334(N.D. Georgia, 2018)[Switzerland] [Habitual residence] [Rights of custody] [Petition denied]

         In Pfeiffer v Bachotet, 2018 WL 9563334(N.D. Georgia, 2018) Petitioner Marcellinus Pfeiffer’s Petition for Return of the Minor Children was denied.

          Petitioner and Respondent were previously married and had two children, N.A.R., a nine-year-old daughter, and R.H.E., a seven-year-old son. Petitioner was a citizen of Germany, and Respondent a citizen of France. They married in France in 2010 and moved to Switzerland in 2012. The parties obtained a divorce in June 2017 when a Sentence and Decree of Divorce was issued by the District Court of Meilen, under the Canton of Zurich, Switzerland. This divorce judgment incorporated the divorce agreement the parties entered into in May 2017. Under the terms of the divorce judgment, Petitioner had parenting time with the children every other weekend with additional time for holidays and during the summer. This arrangement was modified, by the guardian appointed to oversee the custodial arrangement between the parties, so that Petitioner and Respondent had equal time with the children. While the guardian entered a new parenting plan, she did not modify the divorce judgment, nor could she under Swiss law.
On or about June 17, 2018, Respondent and the children left Switzerland for the United States. Respondent traveled on a K-1 (fiancé) Visa, and the children traveled on K-2 Visas. They currently resided in Marietta, Georgia, with Respondent’s fiancé.

          The district Court concluded that the habitual residence of the children at the time of removal was Switzerland. While the term “habitual residence” is not defined in the Hague Convention or ICARA, courts “in both the United States and foreign jurisdictions have defined habitual residence as the place where the child has been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child’s perspective.” Pesin v. Osorio Rodriguez, 77 F. Supp. 2d 1277, 1284 (S.D. Fla. 1999); see also Ruiz v. Tenorio, 392 F.3d 1247, 1252–58 (11th Cir. 2004). For habitual residence to change, there must first be “a settled intention to abandon the one left behind.” Ruiz, 392 F.3d at 1252. “Although the settled intention of the parents is a crucial factor, it cannot alone transform the habitual residence. In addition, there must be an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized.” Id. at 1253.

        The Court found that Petitioner met his burden in establishing, by a preponderance of the evidence, that at the time of their removal from Switzerland, the children lived in Switzerland for the majority of their lives, had never traveled to the United States, and had not become acclimatized to life in the United States. Petitioner established the first element of his prima facie case.
          The Court concluded that Petitioner failed to establish that removal of the children breached his custody rights under the laws of Switzerland. The parties’ divorce agreement stated: [The parties] are aware that relocation of the children requires both parents’ consent if the new place of residence is located abroad or if relocation has some impact on the exercise of parental custody or visitation rights of either parent. The father represents that he does not object to the mother’s taking residence abroad (US or France) at1 the end of the school term 2016/2017. Under Swiss law, this divorce agreement was approved by the court and became a part of the divorce judgment, which could only be modified by filing a petition with the court. The Court found that the parties’ divorce judgment controlled the issue of whether the children’s removal violated Petitioner’s rights of custody.  Hague Convention, art. 3 (“The rights of custody ... may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the state.”).

          The Court observed that the Hague Convention distinguishes between “rights of custody,” which “shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence,” and “rights of access,” which “shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.” Hague Convention, art. 5. The divorce judgment gave Respondent the exclusive right to determine whether the children would remain in Switzerland or move to the United States or France at the end of the 2016/2017 school year. In granting her the right to determine the children’s place of residence, it necessarily deprived Petitioner of the right to determine residence, at least with regards to these three specific countries. He therefore did not have a “right of custody” under the meaning of the Hague Convention, at least in these circumstances. See, e.g., Ibarra v. Quintanilla Garcia, 476 F. Supp. 2d 630, 634–35 (holding that the parties Mexican divorce decree granted father a right of access but not a right of custody, thus barring the child’s return under the Hague Convention).

Monday, September 30, 2019

Garcia v Galicia, 2019 WL 4197611 (D. Nevada, 2019)[Mexico] [Federal & State Judicial Remedies] [Default judgment] [Petition granted]

In Garcia v Galicia, 2019 WL 4197611 (D. Nevada, 2019) the child’s mother, petitioner Zendy Arleny Torres Garcia, alleged that the child was wrongfully taken from the State of Michoacán, Mexico, to the United States by the child’s father, respondent Teofilo Israel Guzman Galicia. The Magistrate Judge recommended that Torres Garcia petitions for the child to be returned to her in Mexico be granted. The District Court adopted the report and recommendation in an order. See Garcia v Galicia, 201`9 WL 4192729 (D. Nevada, 2019)  

Torres Garcia and Guzman Galicia were cohabitating in Morelia, which is in State of Michoacán, Mexico, when L.M.G.T. was born on July 4, 2006. Torres Garcia and Guzman Galicia are listed as L.M.G.T.’s parents on her birth certificate.  Torres Garcia and Guzman Galicia lived together until May 2015 and that at some unspecified point after that, Guzman Galicia removed L.M.G.T. from Mexico to the United States without Torres Garcia’s knowledge, consent, or acquiescence. According to Torres Garcia, Guzman Galicia is “armed and dangerous” and his violent tendencies and substance abuse caused the parties’ separation. Torres Garcia states that she used to rely on Guzman Galicia for financial support, but that she was left without income when they separated. Garcia explains that the fact she had to “re-enter the work force and fend for [herself]” following the parties’ separation is what allowed Guzman Galicia to keep L.M.G.T. and leave Mexico without Torres Garcia’s knowledge. In January 2017, Torres Garcia filed a custody motion and criminal offense report in Michoacán against Guzman Galicia for abducting L.M.G.T) She filed a Hague Convention request for the return of the child with the Mexican authorities in February 2018. Torres Garcia states she did not know L.M.G.T.’s location until late 2018, when Guzman Galicia contacted Torres Garcia and informed her that he and L.M.G.T. were living in Las Vegas, Nevada. According to Torres Garcia, Guzman Galicia pressured her to sign over her custody rights to him and threatened she would never see L.M.G.T. again Torres Garcia attempted to communicate with Guzman Galicia and his extended family to secure L.M.G.T.’s return to Mexico to no avail. She also attempted to obtain a visa to travel to Las Vegas to get the child herself, but her initial visa application was denied. 

The Court found L.M.G.T. was 12 years old at the time the case was filed, but she had since turned age 13. She attended J.D. Smith Middle School in North Las Vegas. She lived with Guzman Galicia and his family. According to Torres Garcia’s attorney, Guzman Galicia provided Torres Garcia with the following address: 5921 West Bartlett Avenue, Las Vegas, Nevada 89108. Guzman Galicia was served with the complaint and petition for return of the child and the summons. The complaint and summons were delivered to Pedro Franco, roommate/co-resident at 5921 W. Bartlett Avenue, Las Vegas, Nevada, 89108). 

Torres Garcia moved for an ex parte temporary restraining order and for a warrant in lieu of a writ of habeas corpus directing law enforcement to bring Guzman Galicia and L.M.G.T. before the court. The court further ordered Guzman Galicia to show cause in writing why the temporary restraining order should not be converted to a preliminary injunction and to appear at a preliminary injunction hearing on August 8, 2019. Torres Garcia served her emergency motion for injunctive relief her supporting declaration and the court’s temporary restraining order on Guzman Galicia by United States mail on August 2, 2019. On August 7, 2019, Guzman Galicia contacted Torres Garcia’s attorney’s office and requested to move the hearing on the preliminary injunction because he had to work at the “solar farm,” but the attorney’s receptionist instructed Guzman Galicia to contact the court regarding any scheduling conflict he may have with the hearing. Guzman Galicia did not file a written response to the court’s show-cause order or appear at the preliminary-injunction hearing on August 8, 2019. At the hearing, the court converted the temporary restraining order to a preliminary injunction prohibiting Guzman Galicia from removing L.M.G.T. from the State of Nevada pending trial in this case.  After the preliminary-injunction hearing, Torres Garcia attempted to serve the court’s temporary restraining order the minutes of the preliminary-injunction hearing (ECF No. 16), and the court’s subsequent order setting a case-management conference for August 14, 2019 on Guzman Galicia on August 9, 2019, at the Bartlett address, but nobody answered the door. At the time of the second service attempt on August 10, 2019, Guzman Galicia’s sister told the process server that Guzman Galicia moved to North Las Vegas. The process server gave the sister her business card and requested that Guzman Galicia contact her to accept service of the documents. The process server informed Torres Garcia’s attorney that on August 12, 2019, Guzman Galicia called the process server and indicated he was “on his way back from Boulder City” and would pick up the documents at the process server’s office on August 13, 2019. As of 3:00 p.m. on August 13, 2019, Guzman Galicia had not picked up the documents, so the process server left them with Guzman Galicia’s sister at his last-known address on Bartlett Avenue that afternoon. The documents were delivered to Guzman Galicia’s sister, Mireya Guzman, at 5921 W. Bartlett Avenue, Las Vegas, Nevada 89108). Guzman Galicia did not appear at the case-management conference on August 14, 2019.  At the case-management conference, Torres Garcia testified under oath that her aunt informed her that Guzman Galicia and L.M.G.T. have left Las Vegas and were travelling to Mexico by bus with an expected arrival date of August 16, 2019. Apparently, Guzman Galicia texted a photograph of himself and L.M.G.T. on the bus to the aunt, but Torres Garcia had not seen the photograph. Additionally, Torres Garcia testified that Guzman Galicia contacted other family members, including Torres Garcia’s brother and grandmother, to arrange for extended family members to see L.M.G.T. in Mexico next week. Torres Garcia provided to the court addresses in Michoacán where she expected L.M.G.T. will be residing and visiting family members next week. Based on her communications with family members, Torres Garcia testified she did not believe Guzman Galicia and L.M.G.T. are still in Las Vegas. At the hearing, Torres Garcia’s attorney verballed renewed the motion for a warrant in lieu of a petition for writ of habeas corpus and requested that the court order an “Amber Alert.” The court took the renewed motion for warrant in lieu of a petition for writ of habeas corpus under advisement and denied the request for an Amber Alert without prejudice of Torres Garcia to make any requests she deems necessary to the appropriate law enforcement agencies.

Given that Torres Garcia established her case-in-chief for the return of L.M.G.T. by a preponderance of the evidence and that Guzman Galicia failed to answer or otherwise appear in the case to present any defenses to the petition for return, the court recommended that the petition for return be granted. The court further will recommend that L.M.G.T. be returned to Mexico for the appropriate Mexican court to make a final custody decision. The court further will recommend that Guzman Galicia be ordered to appear before the court with L.M.G.T. on a date and time to be specified by the United States district judge assigned to this case for a hearing to determine the logistics of L.M.G.T.’s return to Mexico.

Huete v Sanchez, 2019 WL 4198658 (E.D. Virginia, 2019)[Honduras] [Federal & State Judicial remedies] [Default judgment] [Petition granted]

In Huete v Sanchez, 2019 WL 4198658 (E.D. Virginia, 2019) after the Respondent or a licensed attorney for the Respondent failed to appear at the hearing on April 26, 2019, the Magistrate Judge issued a Report and Recommendation and recommended that default judgment be entered against Respondent that the child be returned to Honduras. The Report and recommendation were adopted and incorporated in an order by the district court. See Huete v Sanchez, 2019 WL 4195336 (E.D. Virginia, 2019).

Petitioner filed the Petition on December 4, 2018, for the return of his daughter (“Child”) to Honduras under 22 U.S.C. § 9001 et seq. The Petition alleged that Respondent, Child’s mother, removed Child from her home in Honduras and took her to Virginia without Petitioner’s consent. The Magistriate Judge observed that Rule 55 of the Federal Rules of Civil Procedure provides for default judgment when “a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend.” FED. R. CIV. P. 55(a). For a Court to render default judgment against a party, it must have both subject matter jurisdiction and personal jurisdiction. This Court had subject matter jurisdiction over this action pursuant to 22 U.S.C. § 9003(a), which provides that United States district courts shall have concurrent original jurisdiction of actions arising under the Hague Convention. Venue was appropriate in this district because although the Respondent was not a resident of the United States, she was located in the district. See 28 U.S.C. § 1391(c)(3) (stating that a defendant who is not a resident in the United States may be sued in any judicial district).

The Court pointed out tha Personal jurisdiction may be founded on either of two theories: general or specific jurisdiction. When “a suit does not arise out of the defendant’s activities in the forum state, the court must exercise general jurisdiction and the requisite minimum contacts between the defendant and the forum state are fairly extensive.” Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1199 (4th Cir. 1993). Those contacts must be “continuous and systematic.” See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984); Saudi v. Northrop Grumman, 427 F.3d 271, 276 (4th Cir. 2005). The “paradigm” example of general personal jurisdiction is the individual’s domicile. Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). Conversely, when a suit arises out of the defendant’s activities with the forum state, then a court may exercise specific jurisdiction. See Federal Ins. Co. v. Lake Shore, Inc., 886 F.2d 654, 660 (4th Cir. 1989); Helicopteros, 466 U.S. at 414 n.8. In such a case, the contacts need not be so extensive, but “the ‘fair warning’ requirement inherent in due process still demands that the defendant ‘purposely directed’ its activities at the forum.” Federal Ins., 886 F.2d at 660 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774 (1984)). The Fourth Circuit has expressed due process requirements for asserting specific personal jurisdiction through a three part test in which it considers “(1) the extent to which the defendant purposefully availed himself of the privilege of conducting activities in the State; (2) whether the plaintiff’s claims arise out of those activities directed at the State; and (3) whether the exercise of personal jurisdiction would be constitutionally reasonable.” Consulting Engineers Corp. v. Geometric Ltd., 561 F.3d 273, 278 (4th Cir. 2009).

The Court found that it had general jurisdiction over Respondent because of her continuous and systematic contacts with Virginia. Though Respondent was not domiciled in Virginia because there was no evidence of attempts to obtain United States citizenship, she nevertheless resided in Virginia for the time being. Respondent had been residing in Virginia since March 2018, thereby rendering her minimum contacts with Virginia extensive. 

The Court also had specific jurisdiction over Respondent. First, Respondent has purposefully availed herself of the privileges of conducting activities in Virginia because she resided in the State. Second, Petitioner’s claims arose out of those activities directed at Virginia because Respondent removed Child from her home in Honduras and brought her to Virginia. Finally, the exercise of personal jurisdiction would be constitutionally reasonable because as a resident of Virginia, she had minimum contacts with the State. Since moving to Virginia, Respondent had a fair warning that her activities within the State would subject her to jurisdiction of Virginia. Accordingly, the Court found that it had personal jurisdiction over Respondent.

The Court found that substitute service was proper in this case. Federal Rule of Civil Procedure 4(e)(1) provides that an individual may be served by “following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located ....” FED. R. CIV. P. 4(e)(1). Virginia law permits substitute service via posting if the party being served cannot be found at her usual place of abode and a family member who is sixteen years or older is not found at the individual’s place of abode. VA. CODE. ANN. § 8.01-296. According to the proof of service and statements made in Petitioner’s Supplemental Brief, it appeared that substitute service was proper.  Although the proof of service does not indicate multiple attempts at personal service prior to effectuating substitute service, Respondent acknowledged that she received the Summons and Complaint in December 2018 when she reached out to Petitioner and asked Petitioner to terminate this case. This acknowledgment was sufficient for service of process under VA. CODE. ANN. § 8.01-288, which provides that a process which has reached the person to whom it is directed within the time prescribed by law, shall be sufficient although not served or accepted. Respondent accepted service by acknowledging she received the Summons and Petition. Therefore, the Court found that service of process was proper.

The court found that both Petitioner and Respondent were citizens of Honduras and had Child, outside of marriage, on January 3, 2013, in Honduras. Child is under the age of sixteen. From January 2013 to June 11, 2016, Petitioner, Respondent, and Child lived together as a family in Honduras, but were not married. In June 2016, Petitioner and Respondent separated, and Respondent subsequently married someone else taking Child with her. Petitioner continued to support Child by paying for a nanny and school fees to attend a private school. Child also regularly spent the weekend with her father.  Sometime in March 2018, Child’s school informed Petitioner that Child had not attended school since March 6, 2018.  The school did not provide further information, so Petitioner attempted to contact Respondent, but was unsuccessful.  Petitioner then contacted Respondent’s family; however, Respondent’s family did not disclose the location of Respondent and Child. By this time, Respondent had divorced the man she married after separating from Petitioner. On March 30, 2018, Respondent called Petitioner and informed him that she and Child were in the United States.  Respondent would not give an exact location but based on the telephone number from which Respondent had dialed, Petitioner discerned that the call came from Virginia. Petitioner did not consent to moving Child to the United States without him. In the summer of 2018, Petitioner asked Respondent for help in obtaining a visa so that he could visit Child. Respondent refused and stated that there was no need for Child to see him. In August 2018, Respondent then began restricting Petitioner’s ability to speak with Child.  Petitioner had not spoken with Child since September 13, 2018.

The Magistrate Judge noted that he must evaluate Petitioner’s claims against the standards of Rule 12(b)(6) of the Federal Rules of Civil Procedure to ensure that the Petition contains plausible claims upon which relief may be granted. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining the analysis for examining a plaintiff’s claims under a 12(b)(6) motion to dismiss). To meet this standard, a complaint must set forth “sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” In determining whether allegations are plausible, the reviewing court may draw on context, judicial experience, and common sense. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citing Iqbal, 556 U.S. at 679).

The court noted that to prove the wrongful retention of a child, a petitioner must prove by a preponderance of the evidence that (1) “it is a breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention,” (2) the removal violated the petitioner’s custody rights under the law of the home country, and (3) the petitioner exercised custody rights over the child at the time of the removal. Hague Convention, art. 3, 191.L.M. at 1501; 22 U.S.C. § 9003(e)(1)(A); Miller v. Miller, 240 F.3d 392, 398 (4th Cir. 2001); see also 22 U.S.C. § 9003(e).
The place of habitual residence is established based on the circumstances of each case. To establish the place of habitual residence before the removal or retention, federal courts use a two-part framework. See Maxwell, 588 F.3d at 251; Velasquez v. De Velasquez, 2014 U.S. Dist. LEXIS 175625, at *8-9 (E.D. Va. 2014). The first question federal courts analyze is whether both parents shared an intention to move from the country of residence. Velasquez, 2014 U.S. Dist. LEXIS 175625, at *8-9. The second question is whether there was an actual change in geography within an appreciable period of time, such that the child will be acclimatized to the new residence.  The Court found that the Child’s habitual residence was Honduras. First, both parents did not have a shared intention to move from Honduras to the United States. Petitioner did not know that Child moved to the United States until weeks after Child had already been removed from Honduras. Petitioner did not consent to Respondent relocating Child to Virginia; rather, Respondent unilaterally decided to remove Child. Second, even though there was an actual change in geography because Respondent took Child to the United States, there was no evidence before the Court to suggest this change was not “coupled with the passage of an appreciable period of time, one sufficient for acclimatization by the children to the new environment.” Maxwell, 588 F.3d at 251. Child was born in Honduras and remained there until she was removed by Respondent over a year ago. Pet. Although Child has remained in the United States for over a year, which may lead to an inference of acclimation, there was no evidence that Child attended school in Virginia, that she was a legal resident of the United States, or that she participated in school activities. The length of stay is only but one factor to consider when determining Child’s acclimation. Without other evidence that Child had acclimated to the United States or Virginia, the Court found that Child’s habitual residence remains Honduras.

The Court found that petitioner had custody rights. Under Honduran law, “the exercise of parental authority belongs to both parents jointly.” Honduran Family Code, Title V (Custody), Chapter I (General Provisions), Art. 187. Moreover, parents who do not cohabitate still share the care and custody of the children. Honduran Family Code, Art. 193. When a parent reserves patria potestas rights over a child, among the rights the parent retains is the right to choose where the child is domiciled. Alcala, 2014 U.S. Dist. LEXIS 153728 at *15; see also 22 U.S.C. § 9003(e). As such, a parent who wishes to travel outside of Honduras must obtain written permission from the other parents. Honduran Code of Childhood and Adolescence, Chapter III (Authorization to Travel), Art. 101. Petitioner has custody rights over Child under Honduran law. When Petitioner and Respondent separated, Petitioner did not relinquish his custody rights over Child. Petitioner still had patria potestas rights over Child. As such, Respondent was required to obtain permission from Petitioner of her intent to move Child to the United States. See Honduran Code of Childhood and Adolescence. Chapter III (Authorization to Travel), Art. 101. Respondent failed to seek permission or inform Petitioner that she was removing Child from Honduras. She instead informed Petitioner weeks after Child had already been removed from Honduras. Therefore, Petitioner retained custody rights over Child and the removal of Child violated Petitioner’s custody rights.

Based on the facts, the Court found that Petitioner retained and exercised custody rights over Child at the time of removal, and that Petitioner demonstrated by a preponderance of evidence that Respondent wrongfully removed Child from Honduras. Petitioner exercised and retained his custody rights over Child after he separated from Respondent. Respondent breached Petitioner’s custody rights by removing Child from her habitual residence of Honduras and violated Petitioner’s patria potesta rights by removing Child from Honduras without Petitioner’s consent. Child should be returned to Honduras.

Diaz v Ibarra, 2019 WL 4394491 (D. Arizona, 2019)[Mexico] [Rights of custody] [Ne exeat rights] [Patria Potestas]

In Diaz v Ibarra, 2019 WL 4394491 (D. Arizona, 2019) the district court granted the father’s petition for the return of the child to Mexico. Valentin Zarate Diaz (“Father”) and Laura Andrea Rios Ibarra (“Mother”) were the parents of Son V, a minor child. 

The parties agreed to forgo an evidentiary hearing and instead submit this case on the briefs. Father and Mother were both citizens of Mexico. They had never been married. They are the parents of Son V, who was born in Mexico in February 2012. They “intermittently lived together for several months when Son V was an infant” but “have not lived together since September 2014.” Their relationship was “tumultuous.” Following their break-up, Son V resided with Mother (in a house owned by Father)2 but Father remained actively involved in Son V’s life. 
On November 19, 2015, Father and Mother entered into an agreement addressing their respective rights concerning Son V (the “Agreement”), which contains the following clauses… (2) The parties agree that “the days of cohabitation with [Father] will be any day of the week within a prudent schedule for the child, provided that [Father] doesn’t come in an inconvenient state, and that he doesn’t interrupt the child’s chores,” and further agree that if either party has “an event that requires the child, they will have no inconvenient.” (3) “[T]he addresses where the child will reside will be [a particular house in Sonora, Mexico] where the child currently lives with [Mother].” Additionally, the Agreement contained a provision certifying that “everything relating to the present agreement, is su[b]mitted to the jurisdiction of the pertinent judge of this judicial district” and concludes with a joint request by Mother and Father for the Agreement to be “su[b]mitted to the Judge of First Instance in Family Matter ...for its revision and approval in the terms of the [laws of] the State of Sonora.”  On August 23, 2018, Mother requested that Father sign a passport application for Son V to travel to the United States. Sometime between August 31, 2018 and September 3, 2018, Mother moved with Son V to the United States. Father did not consent to Mother’s removal of Son V from Mexico. Mother’s purpose in moving to the United States was to accept a job offer to work as a civil engineer at an engineering firm in Arizona. 

On September 12, 2018, Father filed a “Motion to Enforce Agreement” with the family court in Sonora, Mexico. Among other things, Father argued in this motion that Mother had violated the third clause in their Agreement, which required Son V to reside at a particular home in Sonora, Mexico. Father also stated in the motion that “it is true that [Mother] can freely decide where she will live with my minor child” and argued that the violation of the third clause arose from Mother’s “refus[al] to give me true and necessary information of her whereabouts for me to exercise my rights as a parent.” On or about October 15, 2018, the Mexican family court denied the “Motion to Enforce Agreement” that Father had previously filed. The court’s rationale for denying the motion was that “considering the drastic change in circumstances, ([Mother’s] address), it is not materially possible to enforce the agreement regarding parenting time the way the moving party is requesting.” On October 17, 2018, Mother filed a “Notice of Relocation” with the Mexican family court. This notice explained that Mother had moved to the United States for “personal and professional reasons.” On October 18, 2018, Father filed a “Motion to Revoke” the order denying his motion to enforce. On October 23, 2018, the Mexican family court issued an order denying the “Motion to Revoke.” In this order, the court explained that it hadn’t denied Father’s previous motion for any merits-based reason—instead, it had denied the motion because Mother’s relocation to the United States meant that “it is not possible to effectuate the enforcement of the virtue of the fact that the minor child no longer lives in the home where it was agreed he would be placed.” The court further clarified that Father’s “rights are preserved and he may exercise them in the appropriate procedure and form.” On July 9, 2019, Mother filed a “Motion to Modify Parenting Time with Our Minor Child” with the Mexican family court. In this motion, Mother described the Agreement as a document that “established parenting time between non-custodial parents and our child.” 

The district court observed that to determine whether the removal/retention was “wrongful,” a district court must answer a series of four questions: (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention? Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001). If the Court answers these questions in the petitioner’s favor, the burden shifts to the party opposing the return of the child—here, Mother—to prove “by clear and convincing evidence that one of the exceptions set forth in article 13b or 20 of the Convention applies.” Id. § 9003(e)(2)(A).

The only disputed legal issue in this case concerned the third element of the Mozes test—whether Mother’s removal of Son V from his state of habitual residence (Mexico) on or around August 31, 2018 (the date of the removal) violated the “rights of custody” that were attributed to Father under the laws of the state of habitual residence. “The parties agreed that the only issue in dispute was the third question. As a result, the return of Son V was only mandated if rights of custody were e attributed to Father under the law of the habitual residence.

The Court noted that  the seminal decision addressing the meaning of the term “rights of custody” under the Convention is the Supreme Court’s 2010 decision in Abbott v. Abbott, 560 U.S. 1 (2010) where the Supreme Court held that a ne exeat right is a right of custody, not  a mere “right of access. A ne exeat right is a right to consent before the mother could take the child out of Mexico. The Court agreed with Father that the parties agreement established rights of custody. The Agreement’s key provision was its third clause, under which Mother and Father jointly agreed that “the address where the child will reside will be” the home owned by Father in Sonora, Mexico, which is the “place where the child currently lives with [Mother].” The necessary implication of this clause was that Mother was precluded from unilaterally moving Son V into a different residence within Mexico—let alone to a different country—without Father’s permission. If a ne exeat right constitutes a “right of custody” for purposes of the Convention, it follows that Father’s rights under the Agreement—which go further than a ne exeat right, because the Agreement implicitly prohibits even the intra-country relocation of Son V by Mother—is a “right of custody,” too.

The father also argued that the Mexican doctrine of patria potestas, or parental authority, granted him a right of custody by operation of law. “The doctrine of patria potestas has its roots in Roman law, where it conveyed absolute and despotic rights of a father over his children; today, in Mexico, the doctrine regulates relations between parents and children until the latter reach the age at which they must fend for themselves.” Gonzalez v. Preston, 107 F. Supp. 3d 1226, 1234 (M.D. Ala. 2015). Patria potestas “constitutes the ‘most comprehensive’ right that a parent can exercise over the person and property of his or her minor children.” Saldivar v. Rodela, 879 F. Supp. 2d 610, 624 (W.D. Tex. 2012). It “establishes the parent’s bundle of rights over a minor child, one of which is formal custody, but it also includes the right to care for the child and make decisions about his or her life.” Preston, 107 F. Supp. 3d at 1234. The Mexican State of Sonora—which was the habitual residence of Son V at the time of his removal—codifies the doctrine of patria potestas in its Family Code (“the Code”). The Code defines patria potestas (in the Code, referred to as “parental authority” ) generally as “a set of rights and obligations granted and legally binding on parents, or grandparents where appropriate, to fulfill the obligations to feed, protect, and raise their descendants, and to appropriately manage their assets.” Code art. 308 More specifically, one who has patria potestas over a child is required “to protect and educate [the child] properly” and “observe the [child] and educate [the child] to obey the rules of social coexistence.” Code art. 317. That person also has “the faculty to admonish and correct, avoiding always cruel and unnecessary punishments.” The Court agreed with Father that the Agreement didn’t extinguish his patria potestas rights. In fact, the evidence submitted by both parties demonstrates that Father retains patria potestas rights over Son V. The Code explicitly provides that “[p]arental authority cannot be waived.” Code. art. 340. The Code also identifies various ways in which patria potestas can be lost or suspended—none of those include by a custody agreement. Code arts. 338, 339.  Indeed, the Code states that “[w]hen parents of a born out of wedlock child separate,” as Father and Mother have done here, “both will continue to exercise [patria potestas]” even after an agreement on custody, child support, and visitation has been reached. Code art. 315.1.

The Court agreed with Father that patria potestas constitutes a right of custody under Sonoran law. See generally Gallardo v. Orozco, 954 F. Supp. 2d 555, 572-74 (W.D. Tex. 2013) (surveying Sonoran law before concluding that “Petitioner has rights of custody conveyed by patria potestad under the laws of the State of Sonora, Mexico” and that these rights “gave Petitioner specific rights of custody as defined in the Convention”). The Code provides that “[w]hen parents of a born out of wedlock child separate, both will continue to exercise [patria potestas] but must agree on who will retain custody of the minor, as well as the way of administering child support and the right of the noncustodial parent to monitor and relate with the minor.” Code art. 315.1. A parent’s rights under patria potestas, therefore, must be more expansive than the rights to (1) physical custody, (2) the obligation to financially support the child, and (3) right to “monitor and relate with” the child, because both parents “will continue to exercise [patria potestas]” after agreeing on those three items.

Thursday, September 12, 2019

Watts v Watts, --- F.3d ----, 2019 WL 4197486 (10th Cir., 2019)[Australia] [Habitual residence] [Petition denied]

In Watts v Watts, --- F.3d ----, 2019 WL 4197486 (10th Cir., 2019) the Tenth Circuit affirmed the district courts determination concerning the location of the children’s habitual residence. 

Shane Watts was a dual citizen of Australia and the United States. Carrie Watts was a citizen of the United States. In 2005, Shane and Carrie married in Park City, Utah. From December 2006 to June 2016, the couple lived in North Carolina, where they reared their three children, also dual citizens of Australia and the United States, and ran an international dirt-bike-racing school: DirtWise. In March 2016, the couple learned that their middle child would need specialized medical attention possibly including expensive palate-extension surgery. The family decided to move to Australia to benefit from that country’s universal-healthcare system. The couple intended to live in Australia until completion of their son’s medical treatment. They estimated this would take about two to two-and-a-half years. In spring 2016, the family began preparing for the move. Shane and Carrie rented out their home in North Carolina and temporarily moved the family into Carrie’s parents’ house in Utah. The family lived at this house in Utah from June 2016 to September 2016. While living at Carrie’s parents’ house, the family traveled around the western United States, in part “to evaluate places where they might choose to live when they returned from Australia.” During this time, “the parties had many conversations about their intentions to live in Australia only long enough to obtain [their son’s] healthcare.” 

In September 2016, the family moved to Australia. They rented a home in Shane’s hometown of Maffra, Victoria and shipped many of their belongings to Australia.2 Carrie had also applied for, and was later granted, a temporary visa enabling her to remain in Australia for 12 months. In October 2016, Shane and Carrie enrolled their children in school in Australia. After the rental home proved too small, Shane and Carrie bought a house. In March 2017, the family moved into this home. The move to Australia placed additional stress on Shane and Carrie’s already-strained marriage. Carrie had developed second thoughts about the move and questioned the sustainability of the stint in Australia. Shane continued to travel overseas for work and, while doing so, rarely spoke with Carrie. Concerned that she would be unable to work if she and Shane later divorced, Carrie applied for a permanent visa.

In April 2017, Carrie called a family meeting, attended by Shane’s parents and Carrie’s mother. Everyone agreed that Shane and Carrie needed to remain together so that their child could continue to receive necessary medical care, and so that Carrie could get her permanent visa. Shane and Carrie’s relationship continued to deteriorate. From April 20 to May 20, 2017 and again from May 30 to July 13, 2017, Shane traveled to the United States to teach DirtWise classes. One morning, Carrie discovered that she had been locked out of all their shared accounts and that Shane had cancelled, or set zero-dollar limits on, their joint credit cards. This marked the beginning of the end. 

About July 13, 2017, Shane returned to Australia, and on July 26, 2017, he tried one last time to persuade Carrie to work on the marriage. When she declined, Shane notified the Australian immigration authorities that they had separated, and he withdrew his sponsorship of Carrie’s permanent-visa application. On August 17, 2017, about three days after learning that Shane had withdrawn his sponsorship of her permanent-visa application, Carrie took the children and flew to Utah. She did not tell Shane beforehand, and she lied to customs agents that she was traveling to the United States for a short visit. As the district court found, [before] removing the children and returning to the United States, the parties never had a shared mutual intent to make Victoria, Australia the habitual residence of the children. At no time did Carrie and Shane mutually agree to change their initial plan to be in Australia only long enough for [their son] to receive his medical care—after which they would return to the United States to raise the children.  In total, the family lived in Australia for just over eleven months. 

Shane petitioned a federal court in Utah for the return of the children. The district court denied Shane relief and dismissed the petition. In its order, the district court concluded that Shane had failed to prove by a preponderance that Australia was the children’s habitual residence. The district court noted that courts traditionally rely on two factors when determining a child’s habitual residence under the Convention. The first factor is the child’s acclimatization to the country that the petitioner claims is the habitual residence. As the district court framed it, when determining acclimatization, a court must resolve whether the “children have become so rooted in the new country that” removal “is tantamount to taking the child[ren] out of the family and social environment in which [their] life has developed.” (citing Mertens v. Kleinsorge–Mertens, 157 F. Supp. 3d 1092, 1105 (D.N.M. 2015)). The second factor is the parents’ last shared intent. To that end, the parents must evince “a degree of settled purpose” or “a sufficient degree of continuity to be properly described as settled.” (citing Kanth v. Kanth, No. CIV 99-4246, 232 F.3d 901, 2000 WL 1644099, at *1 (10th Cir. Nov. 2, 2000)). The district court held that under both factors, Shane had failed to show by a preponderance of the evidence that Australia was the children’s habitual residence.

The Tenth Circuit rejected Shane’s argument that the district court erred by conflating the habitual-residence standard with the domicile standard that traditionally governs jurisdiction over American child-custody disputes. He claimed that, as a prerequisite for habitual residency, the district court required that he and Carrie have shared an intent to stay in Australia “permanently or indefinitely.” A review of the district court’s order defeated Shane’s claim. In deciding this case, the district court relied in part on the courts unpublished opinion in Kanth, 2000 WL 1644099, at *1, 232 F.3d 901. In Kanth it observed that the term “habitual residence” is not defined by the Hague Convention or the U.S. Code.  It also observed that the term should not be interpreted technically or restrictively. Instead, a district court should examine the “specific facts and circumstances” presented in each case to determine if there is a “settled purpose,” or “a sufficient degree of continuity to be properly described as settled.” It agreed with Shane that a family need not intend to remain in a given location indefinitely before establishing habitual residency there. The length of an intended stay is just one factor to consider when determining whether the petitioner has proven “a sufficient degree of continuity to be properly described as settled.” The problem with Shane’s argument was that the district court did not require permanency. In its order dismissing Shane’s petition, the district court cited the unpublished order in Kanth and recognized that permanency is not necessary to establish habitual residency. The district court considered the “specific facts and circumstances” surrounding the Watts’ move to Australia and, in doing so, looked to the length of the family’s intended stay as one factor among many. The court noted that the family intended to remain in Australia for “a highly specific purpose which by its nature had a limited duration,” and that “[t]he couple maintained a home in North Carolina; stored many household, holiday, and sentimental possessions in Utah”; and maintained “U.S. financial ties.” Additionally, the court noted that “Shane maintained his company, DirtWise, primarily operating in North America.” Considering these facts together, the court concluded that Australia was not the children’s habitual residence. Despite Shane’s claim to the contrary, the court did not require permanency as a necessary component of proving habitual residency. Accordingly, the court did not err in this regard.

Shane argued that the district court erred by failing to consider his and Carrie’s “present, shared intentions regarding their child[ren]’s presence” in Australia. Here, the court found that the shared intent “was to remain in Australia for a highly specific purpose which by its nature had a limited duration.” Shane cited cases in which courts had found that a shared intent to remain in a location for two to four years was sufficient to sustain a habitual-residence finding. (citing Whiting, 391 F.3d at 551, and Toren v. Toren, 26 F. Supp. 2d 240, 243–44 (D. Mass. 1998)). This timeline alone establishes habitual residency. It held that when determining habitual residency, courts must consider all the facts and circumstances surrounding the family’s life in a given location. Under some facts and circumstances, two years may suffice to establish habitual residency. See Whiting, 391 F.3d at 551. But the intended length of a stay, on its own, does not necessarily demonstrate habitual residence. Instead, a court should consider all the circumstances surrounding a family’s intent to remain in a location and determine if there is a “sufficient degree of continuity to be properly described as settled.” Kanth, 2000 WL 1644099, at *1, 232 F.3d 901 (quoting Feder, 63 F.3d at 223). The district court properly conducted this analysis and, in doing so, committed no legal error.

Shane next argued that the district court ran afoul of Kanth, 2000 WL 164409. In Kanth, it reviewed a district court’s habitual-residence determination. . In doing so, it noted that “[a]lthough it is the child’s habitual residence that the court must determine, in the case of a young child the conduct, intentions, and agreements of the parents during the time preceding the abduction are important factors to be considered.”  The children in Kanth were three and six years old when they were taken from Australia by their mother.  In contrast, Shane and Carrie’s children were 7, 10, and 12 years old when Carrie removed them from Australia. Shane argued that Kanth’s emphasis on parental intent did not apply here, because the Watts children are older. But the record revealed that the court did not, as Shane argued, place “heavy importance on parental intent over child acclimatization.”. Instead, the district court considered both factors independently and equally. In its order dismissing Shane’s petition, the court found that “under the totality of the evidence before it ... the children did not acclimatize to Australia.” The court considered acclimatization from the children’s perspective and relied on evidence demonstrating that the children’s family and social environment had not sufficiently developed in Australia.7 Additionally, the court concluded that “even if the children had acclimatized,” Shane and Carrie’s last shared intent was to stay in Australia “only for a limited time.” The court thus considered both acclimatization and parental intent as independent factors. 

Shane argued that the district court legally erred by not fully crediting how long the children had been in Australia. To that end, Shane argued that “nearly one year spent living in a country in which the children believed they would spend at least a few more years of their lives is indeed a sufficient amount of time to acclimatize.”  The Court held that a child may acclimatize to a new location in a year; however, it is equally true that a year might be an insufficient amount of time for acclimatization. To keep a court’s habitual-residence determination free from technical restrictions, it would not read into the term “habitual residence” any conclusive time frame. Though the length of time a child lives somewhere matters in determining whether the child has acclimatized there, it is merely one factor among many. Thus, the court applied the correct legal standard by considering the totality of the circumstances—not just the amount of time spent in Australia—when determining whether the children had acclimatized.

Shane’s last claim of legal error was that the district court failed to determine which state—Utah or North Carolina—was the children’s habitual residence. Shane relied on Article 31(a) of the Convention and claimed that after the court determined that Australia was not the children’s habitual residence, the court needed to decide which state within the United States was the children’s habitual residence. It rejected this argument. When, as here, the petitioner fails to establish habitual residence, Article 31 is not implicated. See Feder, 63 F.3d at 221–22, n.8 (“If a child’s habitual residence is a State which has more than one territorial unit, the custody rights laws of the territorial unit apply. ... In the United States, the law in force in the state in which the child was habitually resident ... would apply to determine whether a removal or retention was wrongful.” (citing Hague Convention, art. 31)). The Convention does not require a district court to determine where a child habitually resides. Instead, the Convention requires a district court to determine whether the child habitually resides in the location that the petitioner claims. If the child habitually resides there, the Convention demands that the court determine whether the child’s removal from that location was wrongful. See Shealy, 295 F.3d at 1121–22. Here, the court found that the children did not habitually reside in Australia, so it matters not in which state in the United States the children now reside. In any event, the district court had no occasion to apply Article 31 here, because it found that Shane failed at the first step—that is, he did not show that Australia was the children’s habitual residence. 

Saturday, August 31, 2019

Alikovna v Viktorovich, 2019 WL 4038521 (S.D. Florida, 2019) [Russian Federation] [Federal & State Judicial Remedies] [ Subject matter jurisdiction]

In Alikovna v Viktorovich, 2019 WL 4038521 (S.D. Florida, 2019) Petitioner commenced the case on August 14, 2019 by filing a Petition, alleging that Respondent wrongfully removed their nine-year-old son from the Russian Federation to the United States. As a result, Petitioner sought return of her son pursuant to the Hague Convention. Respondent sought dismissal of the Petition for lack of subject matter jurisdiction. The district court granted the defendants motion to dismiss the proceeding for lack of subject matter jurisdiction.

The district court observed that Countries may bind themselves to the terms of the Convention by either signing and ratifying the Convention pursuant to Article 37, or by acceding to the Convention pursuant to Article 38. The United States signed the Convention in 1981, and the Convention came into force in the United States in 1988. Marks on Behalf of SM v. Hochhauser, 876 F.3d 416, 422 (2d Cir. 2017). According to Article 38, Any other State may accede to the Convention.  [...] The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. Such a declaration will also have to be made by any Member State ratifying, accepting or approving the Convention after an accession. Such declaration shall be deposited at the Ministry of Foreign Affairs of the Kingdom of the Netherlands; this Ministry shall forward, through diplomatic channels, a certified copy to each of the Contracting States. The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance. (last accessed August 27, 2019).\

The Court noted that because the Convention functions solely through the designated Central Authorities in the respective states, and because only contracting parties will have designated such authorities, the Convention can operate only between two signatory states.” United States v. Amer, 110 F.3d 873, 881 (2d Cir. 1997) (citing Convention, Arts. 6 & 7); see also Mezo Elmergawi, 855 F. Supp 59, 62 (E.D.N.Y. 1994); Mohsen v. Mohsen, 715 F. Supp. 1063, 1065 (D. Wyo. 1989). By the terms of the Convention, the accession has effect only if a Contracting State accepts an acceding country’s accession. The Russian Federation acceded to the Convention on July 28, 2011; however, the United States has not accepted that accession. See Status Table, (last accessed August 27, 2019); see also Acceptances of Accessions, (last accessed August 27, 2019). 

The Court found that although Petitioner alleged that the United States and the Russian Federation were parties to the Convention, the allegation alone did not confer subject matter jurisdiction. This is especially true where the United States has not accepted the Russian Federation’s accession to the Convention, the weight of authority supported a finding that jurisdiction was lacking in this case, and Petitioner provided no authority to the contrary.

The district court found that Petitioner failed to establish that the Court had subject matter jurisdiction over her claim. See Taveras v. Taveras, 397 F. Supp. 2d 908, 911 (S.D. Ohio 2005) (“It is undisputed that the United States and the Dominican Republic have not entered into the negotiations require by Article 38. Consequently, the Convention’s administrative and judicial mechanisms are not yet applicable with regard to relations between the two countries.”); see also Gonzalez v. Gutierrez, 311 F.3d 942, 945 n.2 (9th Cir. 2002), abrogated on other grounds by Abbott v. Abbott, 560 U.S. 1 (2010) (“An accession is effective only between the acceding country and those contracting states that have accepted the accession.”). 

Monday, August 26, 2019

Teller v Helbrans, 2019 WL 3975555 (E.D. N.Y. 2019)[Guatemala] [Federal & State Judicial Remedies] [Walsh Act] [Depositions] [live Trial Testimony]

In Teller v Helbrans, 2019 WL 3975555 (E.D. N.Y. 2019) in a prior decision dated August 12, 2019, the District Court ordered Respondent Sara Helbrans (“Respondent”) to explain whether there were alternative means to obtain Petitioner’s deposition testimony. See Teller v. Helbrans, No. 19-CV-3172, 2019 WL 3779863, at *2 (E.D.N.Y. Aug. 12, 2019). This information was necessary to determine whether to authorize a subpoena, pursuant to 28 U.S.C. § 1783, (Walsh Act) for Petitioner’s deposition.  The Court also required Petitioner Aaron Teller to state whether he would be appearing for trial to testify personally. Petitioner indicated that he would not be appearing to testify at trial personally. Petitioner’s refusal to appear for trial to testify in person left the Court no option other than to issue a Walsh Act subpoena requiring his attendance for trial and for a deposition.

The District Court observed that there is a strong preference for live testimony, long recognized by the courts, as it provides the trier of fact the opportunity to observe the demeanor of the witness.” United States v. Int’l Bus. Machines Corp., 90 F.R.D. 377, 381 (S.D.N.Y. 1981). It is highly unusual—perhaps unprecedented—for a petitioner not to appear at the hearing to testify in a Hague Convention matter. The only cases the Court was aware of were those where there are immigration barriers and/or the petitioner was a non-U.S. citizen. That was not an issue in this case: Petitioner was a U.S. citizen and subject to a Walsh Act subpoena.
Petitioner asked the Court to permit testimony via videoconference, but provided no reason why that was appropriate, why he refused to travel to the United States, or what circumstances or arrangements could be made to permit such testimony via video, particularly from Guatemala. There was no suggestion of cost, immigration, illness, infirmity, or other barriers to appearing in the United States. This absence of any good cause requires the request to appear via videoconference be denied. The Court held that even if such a proffer were made, the Court would exercise its discretion to require live in-person testimony at trial. 

The District Court noted that it had mentioned at previous hearings that conducting cross-examination at a trial via video of a party is near impossible, unless Petitioner is given full advance notice of all documents to be used during such an inquiry. That is highly unorthodox and threatens to prejudice Respondent. As a result, the Court ordered issuance of a Walsh Act subpoena commanding Petitioner’s testimony at trial. E.g., Matovski v. Matovski, No. 06-CV-4259, 2007 WL 1575253, at *3 (S.D.N.Y. May 31, 2007) (denying application for eight witnesses to testify remotely in Hague Convention trial, because they failed to establish necessary good cause; permitting petitioner, who had visa barriers, to appear via video); S.E.C. v. Tourre, No. 10-CV-3229, 2013 WL 3326867, at *2 (S.D.N.Y. June 26, 2013) (denying motion to quash Walsh Act subpoena for trial testimony); United States v. Jefferson, 594 F. Supp. 2d 655, 661 n.1 (E.D. Va. 2009) (“Because Jennifer Douglas Abubakar is an American citizen, she is subject to witness subpoena pursuant to 28 U.S.C. § 1783 even though she currently resides in a foreign country. Accordingly, an Order has entered directing issuance of a subpoena requiring her appearance as a witness at trial.”).

The Court indicated that it noted in its earlier decision, Teller, 2019 WL 3779863, at *2, that depositions in Hague Convention matters have become a norm, in light of the singular importance of the testimony of the parent. The Court, therefore, concluded that a Walsh Act subpoena for Petitioner’s deposition was in the interest of justice. All that remained for issuance of the Walsh Act subpoena was for Respondent to establish that there were no “alternative methods to obtain testimony. In determining whether there were such alternative methods, “courts analyze whether it is practical to obtain the information sought from the witness.” Balk v. N.Y. Inst. of Tech., 974 F. Supp. 2d 147, 156 (E.D.N.Y. 2013). “Subpoenas may be issued when it is impractical to obtain the information.... Impracticality occurs, for example, where resort to alternative methods is unlikely to produce the relevant evidence in time to meet impending discovery deadlines.” S.E.C. v. Sandifur, No. 05-CV-1631, 2006 WL 3692611, at *4 (W.D. Wash. Dec. 11, 2006).

Teller now offered to have his deposition taken in Guatemala. The Court noted that a deposition in Guatemala requires a foreign lawyer, and poses other practical problems, including the need to secure space at a United States consulate to conduct the deposition. Teller now indicated that he had located a lawyer in Guatemala who can assist Respondent in conducting a deposition, and lawyers from Respondent’s firm should travel to Guatemala to conduct the deposition. The Court held that this was both impractical and inappropriate in this case. First, the Court was already ordering Petitioner to appear for the trial in this matter. Any deposition would be scheduled around the date of the trial to avoid any inconvenience and need for Petitioner to appear twice. Second, as required by the Walsh Act, Respondent advanced necessary fees for travel for Petitioner’s deposition and trial testimony. To the extent that the advanced fees were insufficient, the Court would require Respondent to pay the necessary expenses and fees. This obviated any financial burden that could be imposed by a deposition.  Third, the need for multiple groups of lawyers to travel to Guatemala, the retention of local counsel, and research into Guatemalan law is obviated by having Petitioner—who must travel for trial—appear for deposition in the United States. (There were also now three sets of lawyers who represent the children in the case. Many of those counsel worked for legal aid organizations. These counsel would have a right to ask questions at a deposition, and whatever means Respondent’s pro bono counsel had to travel to Guatemala, the Court was doubtful other counsel also had such financial resources). The processes for a Guatemalan deposition take time and expense. Trial was scheduled to commence in little over one month and there were multiple motions pending. A deposition shortly in advance of the trial, in the United States, avoids those complications. See Fuentes-Rangel v. Woodman, No. 14-CV-5, 2014 WL 12656211, at *1 (N.D. Ga. May 6, 2014) The respective burdens on the parties and practicalities did not justify conducting Petitioner’s deposition abroad, and demonstrate that his deposition testimony was unavailable absent a Walsh Act subpoena.

There is a general presumption that a person be deposed near his place of work or home. But that presumption has no place when an American citizen, living abroad, is subpoenaed under the Walsh Act. See S.E.C. v. Banc de Binary, No. 13-CV-993, 2014 WL 1030862, at *9 (D. Nev. Mar. 14, 2014) And it is for that reason that expatriate witnesses have been ordered to the United States.

Teller objected that the subpoena required his attendance at a deposition more than 100 miles from his residence in Guatemala. The 100-mile bulge rule and its penumbras would be pertinent if this were a Rule 45 subpoena—see Fed. R. Civ. P. 45(c) (“Place of Compliance”)—but it is not. NML Capital Ltd. v. Republic of Argentina, No. 14-CV-492, 2014 WL 3898021, at *12 (D. Nev. Aug. 11, 2014). The geographical limitations in Rule 45 are not incorporated into the Walsh Act. The Act authorizes a Court to compel a U.S. citizen located abroad to appear for testimony; it follows that the testimony can be ordered to take place in the district where that Court sits.

Teller objected also on the grounds that the subpoena was not properly served. At this point, because the Court had not yet authorized a Walsh Act subpoena, the service objection was premature. Because the Court was now authorizing the Walsh Act subpoena, and to avoid any further delay, this resolved the question. The Walsh Act provides that a subpoena shall be served pursuant to the Federal Rules of Civil Procedure “relating to service of process on a person in a foreign country,” i.e., Rule 4(f). See 28 U.S.C. § 1783(b). The Court authorized the issuance of Walsh Act subpoenas, but they must be served upon Petitioner in Guatemala, consistent with Rule 4(f).