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Thursday, November 21, 2019

La Salle v. Adams, 2019 WL 6135127 (D. Arizona, 2019)[Canada] [Habitual residence] [Grave risk of harm] [Petition granted]

In La Salle v. Adams, 2019 WL 6135127 (D. Arizona, 2019) the district court granted the petition of Kimberly Colin La Salle (“Mother”) against Dominick Johnathan Adams (“Father”) for the return of their two minor children, E.N.A. and M.E.Y.A. to Canada. 

  In April 2011, Mother and Father were married in Alberta, Canada. Mother was a citizen of Canada; Father was a citizen of the United States who had status to live and work in Canada because Mother sponsored his application for a visa. In August 2012, E.N.A., a boy was born in Canada. In January 2014, the couple’s second child, a girl named M.E.Y.A., was born in Canada. Mother, Father, and the Children lived together in Canada until around March 2017, when Mother and Father’s marriage began to deteriorate. The deterioration was caused by several factors, including Father’s failure to provide consistent financial support and Mother’s romantic relationship with another man, Howard LaSalle (“LaSalle”), whom she eventually married. In early 2017, as the marriage was falling apart, Mother withdrew her sponsorship for Father’s visa. Mother credibly testified during the evidentiary hearing that she did so out of necessity—Canadian law requires the sponsor to be the spouse or significant other of the visa applicant (and the relationship was heading toward a divorce) and Canadian law also obligates the sponsor to provide financial support to the visa applicant (which Mother could not afford to do). As a result, in July 2017, Father received formal notification from the Canadian government that he would be losing his immigration status in Canada. In 2017, Mother and LaSalle had a child together (who will be referred to by his first initial, “X”)  

Although Mother and Father stopped living together in 2017, they did not finalize their divorce until October 2018. The divorce decree, which was issued by a Canadian court on October 2, 2018, specifically provides that Mother and Father “have joint custody of the children of the marriage.” The divorce decree provides that Father is responsible for providing the Children’s “primary residence” and “day to day care and control” but clarified that Mother was entitled to “access with the children every other weekend commencing September 1, 2017 and continuing thereafter until further Order of the Court,” with Mother “responsible for picking the children up at the commencement of her access and dropping the children off at the end of her access at [Father’s] residence.” Additionally, the divorce decree provided that Mother and Father must “equally share all school vacations and holidays” and that each parent must “have direct or indirect access to education, counselling, therapy, daycare services, and any other information regarding the welfare of the children.” Finally, the divorce decree provided that each parent may “travel with the children within Canada and outside of Canada without the written consent of the other party provided the person travelling with the children provides the non-travelling party with a travel itinerary and contact information.” 

In late February 2019, Father moved to Arizona and took the Children with him. At the time of the move, the Children were enrolled in school in Canada. After arriving in Arizona, Father and the Children began living with Father’s parents (the Children’s grandparents).
Father initially lied to Mother about the nature of the trip to Arizona, falsely characterizing it as a “vacation.” On March 10, 2019, Mother emailed Father to complain that he’d violated the terms of the divorce decree by failing to identify where the Children were located. The next day, Father responded by providing an address in Sun City, Arizona. Around this time, Mother visited the home where Father had been living in Canada. Upon arrival, Mother realized Father hadn’t simply taken the Children on a temporary vacation—the house was empty, the refrigerator was cleaned out, and it was clear “[t]he kids have obviously been moved.” In early April 2019, Mother contacted law enforcement officials in Arizona for assistance. Mother also sent another email to Father asking him to immediately “provide...a return date of when the children will be brought back [to Canada].” In response, Father vaguely stated that he would be “heading back” at some point after his father’s surgery in June 2019. This, too, was a false statement. Father never returned to Canada, prompting Mother to initiate this proceeding in August 2019.

  The Court noted that first question to be addressed in an ICARA proceeding is “[w]hen did the removal or retention at issue take place?” Mozes, 239 F.3d at 1070. The evidence introduced during the evidentiary hearing established that the challenged removal occurred in late February 2019, when Father took the Children to Arizona. To the extent the initial removal wasn’t wrongful (because Father was allowed, under the divorce decree, to take the Children on short international vacations without Mother’s permission), his retention of the Children in Arizona because wrongful in March 2019, once Mother began missing the every-other-weekend visits to which she was entitled under the divorce decree.

The second question to be addressed in an ICARA proceeding is “[i]mmediately prior to the removal or retention, in which state was the child habitually resident?” Mozes, 239 F.3d at 1070. Here, Canada was the Children’s country of habitual residence in February/March 2019. 
The Children were born in Canada, lived their entire lives in Canada, attended school in Canada, had a Canadian mother, and had Canadian citizenship. The evidence presented during the evidentiary hearing suggests the Children spent every moment of their lives in Canada until they were taken to Arizona. This should end the inquiry. In re A.L.C., 607 Fed. App’x 658, 662 (9th Cir. 2015) (“The district court clearly erred in finding E.R.S.C. could be a habitual resident of a nation in which she never resided....[W]e recognize the obvious truth that ‘habitual residence cannot be acquired without physical presence.’ ”). Although neither parent specifically addressed the concept of residential intent when testifying during the evidentiary hearing, there was strong circumstantial evidence that Mother and Father had a shared, settled intent to reside permanently in Canada. Holder, 392 F.3d at 1017 (parental intent may be expressed not only through “the representations of the parties” but also through “all available evidence”). Indeed, Mother was a Canadian citizen who appears to have lived in Canada for all of her adult life and Father lived in Canada from at least 2011 through February 2019, leaving only after he lost his immigration status and was unable to identify an alternative means to secure legal status. To the extent the concept of acclimatization was even applicable here, it did not change the analysis. See generally Murphy, 764 F.3d at 1152-53 (noting that “courts should be slow to infer [acclimatization], both because the inquiry is fraught with difficulty, and because readily inferring abandonment would circumvent the purposes of the Convention”) During their brief time in Arizona, the Children have barely even attended school and they retain deep familial ties to Canada.

The third question to be addressed in an ICARA proceeding is “[d]id the removal or retention breach the rights of custody attributed to the petitioner under the law of the habitual residence?” Mozes, 239 F.3d at 1070. Here, the answer was yes. First, Mother possessed rights of custody to the Children under the law of Canada. Indeed, the divorce decree expressly states that Mother and Father share “joint custody of the children of the marriage.” Father breached Mother’s custodial rights when he relocated the Children to Arizona in February 2019. 

In his answer, and to some extent during the evidentiary hearing, Father argued that his decision to take the Children to Arizona wasn’t wrongful because Mother caused him to lose his immigration status in Canada (by withdrawing her support for his visa application) and thus left him with no choice but to take the Children. This argument lacked merit for three reasons. First, Father had not cited any authority suggesting that “unclean hands” is available in an ICARA proceeding and some courts have concluded it is categorically unavailable. Second, as a factual matter, Mother didn’t engage in wrongful conduct by withdrawing her support for Father’s visa application. Third, and most important, this argument overlooked that Father became aware by no later than July 2017 that he was in danger of losing his immigration status in Canada, yet he still agreed to enter into a divorce decree in October 2018 that awarded joint custody to Mother. Father was fully aware at the time he executed the divorce decree that he might have to leave Canada in the future. 

The fourth question to be addressed in an ICARA proceeding is “[w]as the petitioner exercising those rights [of custody] at the time of the removal or retention?” Mozes, 239 F.3d at 1070. Here, the answer was yes. See, e.g., Asvesta v. Petroutsas, 580 F.3d 1000, 1018 (9th Cir. 2009); Walker v. Walker, 701 F.3d 1110, 1121 (7th Cir. 2012).  Thus, petitioner established a prima facie case. 

The Court observed that the Ninth Circuit has emphasized that the grave-risk exception must be “drawn very narrowly” and “is not license for a court in the abducted-to country to speculate on where the child would be happiest.” Gaudin v. Remis, 415 F.3d 1028, 1035-36 (9th Cir. 2005) . “Rather, the question is whether the child would suffer ‘serious abuse’ that is ‘a great deal more than minimal.” Additionally, “because the Hague Convention provides only a provisional, short-term remedy in order to permit long-term custody proceedings to take place in the home jurisdiction, the grave-risk inquiry should be concerned only with the degree of harm that could occur in the immediate future.” Thus, “even a living situation capable of causing grave psychological harm over the full course of a child’s development is not necessarily likely to do so in the period necessary to obtain a custody determination.” 

During the evidentiary hearing, Father elicited testimony concerning an array of incidents that were apparently offered to show that returning the Children to the care of Mother and LaSalle in Canada would expose them to a “grave risk” of harm. (1) On one occasion in 2017, Mother went to the residence she had previously shared with Father to see the Children. Father was not present at the residence but his mother (the Children’s grandmother), Donna Adams, was there. When Mother arrived, the door was locked. Mother tried to force her way into the residence, became angry when she couldn’t enter, and eventually retrieved a baseball bat from her car and began banging on the door. The Children became anxious and frightened during this episode and Ms. Adams eventually called Mother’s mother, Laurel Berg, to come to the residence and help settle things down. (2) In or around July 2018, E.N.A. broke his arm while in Mother’s custody. The injury was accidental and likely occurred when E.N.A. slipped while getting off a bus. (3) At some point in 2017 or 2018, after Mother had separated from Father and started living with LaSalle, Father passed by LaSalle’s home. When LaSalle saw Father, LaSalle became angry and had to be held back by Mother. (4) Mother did not have consistent access to a car after separating from Father. As a result, she was sometimes required to transport the Children via public transportation— specifically, the bus. This sometimes caused the Children to have to wait, outside, at the bus stop during very cold Canadian winters. The Children were not always properly clothed to protect themselves from the cold.(5) Sometimes, after the Children were returned to Father’s care after spending time with Mother, they reported they were hungry.(6) Following the separation of Mother and Father, the Children were often sad about Mother’s absence and became more emotionally attached to Father.

The Court held that the Father had not come close to establishing the Children would be exposed to a grave risk of physical or psychological harm if returned to Canada. For example, although Mother’s new husband, LaSalle, experienced anger-management issues in the past, the evidence presented during the hearing demonstrates LaSalle had taken steps to address the problem. Moreover, there was no evidence that LaSalle had ever resorted to physical violence against Mother, X, or any other child. Finally, it was telling that LaSalle had custody of his child from a previous relationship—an arrangement CFSA officials would presumably not allow if LaSalle were a danger to children.

There was some suggestion by Father that the Children would be exposed to illicit drug use if returned to the care of Mother and LaSalle. But Mother testified without contradiction (and with some corroboration) that she had never used drugs and the only evidence concerning LaSalle related to historic marijuana use that was apparently legal under Canadian law. As for the incident in July 2018 in which E.N.A. broke his arm, this had zero evidentiary value. Young children often suffer accidental injuries. As for the incident in 2017 when Mother became angry and waved around a baseball bat, although this incident was not particularly flattering, it was understandable that a mother might become upset if she perceived that her mother-in-law was using a locked door to keep her from visiting her children. Additionally, there was no evidence that Mother hit anybody with the bat, let alone displayed a deep-seated propensity for violence that would somehow expose the Children to a grave risk of harm if returned to her care. As for the evidence that the Children sometimes had to wait in the cold for the bus and/or returned from visits with Mother with empty stomachs, this fell far short of the sort of “serious abuse” that must be present to satisfy the grave-risk exception.

Finally, as for the evidence suggesting that the Children became emotionally attached to Father following the divorce (and had grown further attached to him since the relocation to Arizona), this also failed to establish a grave risk of harm. See, e.g., Cuellar, 596 F.3d at 511; See generally Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir. 1996) (“[A] grave risk of harm for the purposes of the Convention can exist in only two situations. First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute—e.g., returning the child to a zone of war, famine, or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.”).

Mother asked the Court to require Father “to pay [Mother’s] necessary expenses including courts costs, reasonable attorneys’ fees, care expenses, and any transportation costs incurred for the children’s return. The Court granted Mother’s request in part. Although Father did not, in his answer, articulate a compelling reason why a cost award would be “clearly inappropriate,” the evidence presented during the hearing showed that Father had little in the way of financial resources. Accordingly, the Court ordered Father to pay the transportation costs associated with returning the Children to Canada, as well as Mother’s airfare for traveling to and from the evidentiary hearing, but would not require him to pay any other costs. In re Application of Stead v. Menduno, 77 F. Supp. 3d 1029, 1038 (D. Colo. 2014) 

Friday, November 15, 2019

Cocom v Trimofeev, 2019 WL 5964634 (D. South Carolina, 2019) [Belize] [Necessary costs] [Denied] [Clearly inappropriate]

          In Cocom v Trimofeev, 2019 WL 5964634 (D. South Carolina, 2019) Cocom filed a verified petition against her minor child’s father, Andrey Timofeev (“Timofeev”), and paternal grandmother, Irina Timofeev (“Grandmother”), as part of her efforts to have her child returned to her in Belize. On January 2, 2019, the court entered an order ordering the immediate return of the Child to Cocom. On January 30, 2019, Cocom filed a motion for attorney’s fees, requesting $62,020.00 in attorney’s fees and $9,692.70 in costs.  The district court denied the application.

          The Court observed that ICARA provides for attorney’s fees for the petitioner if she is successful: [a]ny 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. 22 U.S.C. § 9007(b)(3). The statute creates a rebuttable presumption that the successful petitioner “shall” be awarded costs and fees, putting the burden on the respondent to show the court such an award is “clearly inappropriate.” If the respondent can make such a showing, “ICARA gives courts the discretion to reduce or even eliminate a respondent’s obligation to pay a prevailing petitioner’s attorney’s fees and costs.” Neves v. Neves, 637 F. Supp. 2d 322, 345 (W.D.N.C. 2009).  The following two considerations are often relied upon in determining whether to grant fees and costs under ICARA—“whether a fee award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child...[and] whether a respondent had a good faith belief that her actions in removing or retaining a child were legal or justified.” Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018). In these cases, the inquiry is cut short before the court must conduct its traditional analysis in determining the reasonableness of attorney’s fees.

          The court found that it would be clearly inappropriate to require Timofeev and Grandmother to pay attorney’s fees because a fee award with impose a significant financial hardship that would impair their ability to care for the Child. It noted that in considering whether a fee award would significantly impair the respondent’s ability to care for the child, courts consider various aspects of the respondent’s financial situation. See Malmgren v. Malmgren, 2019 WL 5092447, at *2 (E.D.N.C. Apr. 1, 2019) (“Given respondent’s limited assets and substantial debts, it would be clearly inappropriate to compel her to pay an additional $16,681.09, and doing so would make it difficult for respondent to contribute to her minor child’s care.”); Mendoza v. Silva, 987 F. Supp. 2d 910, 917 (N.D. Iowa 2014) (finding a fee award to be clearly inappropriate in part because the respondent earned approximately $9 an hour and had no assets large enough to satisfy the award); Montero-Garcia v. Montero, 2013 WL 6048992, at *6 (W.D.N.C. Nov. 14, 2013) (reaffirming its decision to deny an award of fees and costs because the respondent “has no ability to pay such award, has no assets, and has no prospects for future employment”); Lyon v. Moreland-Lyon, 2012 WL 5384558, at *2 (D. Kan. Nov. 1, 2012) (finding an award of attorney’s fees and costs to be clearly inappropriate because the respondent had no job, no income, no car, and no savings, and the respondent was living on loans from her family).

          Timofeev argues that he would be financially ruined were he required to pay the sum that Cocom requests and that his ability to both support and visit the Child would be severely handicapped. Timofeev had a job in which he works 40 hours per week, was paid $21.76 per hour, and has limited opportunity for overtime work. He lived with Grandmother at one point but now lives either in his 2004 pick-up truck or at homeless shelter in Charleston, South Carolina. Timofeev obtained his pick-up truck for $500, and the expenses related to his truck include $430 in insurance for six months, $15 in taxes per year, and $60 in gas per week. Timofeev also has various monthly expenses, like food, laundry, and medical care. As to other assets owned by Timofeev, there had been some dispute over whether Timofeev owns property in Belize. Timofeev has a Land Certificate for the property, which he submitted to the court, but based on representations made by Cocom’s lawyer in Belize, Timofeev was unsure if his title is still valid. It appears that Timofeev has been or could be charged with kidnapping in Belize, so he had not returned to Belize to verify if his title was still valid. Timofeev estimated that the land had little, if any value, and that the home was worth $5,000.00.

          Grandmother argued that she was unable to pay the requested fees and costs. Grandmother was 55 years old and was living on her savings, which total $6,000.00. Her 2017 tax return indicated that she has no income, and she did not receive Social Security benefits. Grandmother anticipated receiving pension from Russian Federation beginning in October 2020. She had no driver’s license, no work experience, and lives in a rural community, giving her minimal, if any, prospect of employment.

          Given the financial position of both Timofeev and Grandmother, the court found that it would be clearly inappropriate to award any attorney’s fees in this case. Requiring Timofeev and Grandmother to pay this amount would constitute a significant hardship that would wholly detract from their ability to support the Child. While Timofeev had a job, he only made $45,260.80 per year, assuming he worked every week of the year and not taking taxes into account. The amount of fees and costs sought by Cocom is over 1.5 times that amount. Timofeev’s only assets are his truck, worth $500, and possibly property in Belize, worth $5,000. The sale of these assets would put only a small dent in the total amount of fees and costs claimed by Cocom, over $70,000.00, and the sale of Timofeev’s truck would presumably create a serious impact on Timofeev’s ability to work and make money to support himself and the Child.

          Grandmother’s financial position was even more dire. Her only sources of money that she could use to pay the requested fees and costs were her $6,000 in savings and any pension she will receive beginning next year. As such, it would be clearly inappropriate to award any fees or costs for which Grandmother would be responsible in part or in whole.

          Grandmother did not explicitly argue that paying the award would detract from her ability to support the Child, as is required for the court to find the award clearly inappropriate. However, the record in this case indicated that in the past, Grandmother has contributed to the support of the Child.

          An additional factor considered by the court was that Cocom was represented on a pro bono basis. Cocom argues that her pro bono representation was immaterial; however, courts consider this fact in determining whether an award of fees is clearly inappropriate. See Vite-Cruz v. Del Carmen Sanchez, 2019 WL 402057, at *2 (D.S.C. Jan. 31, 2019) (finding an award of fees and costs to be clearly inappropriate in part due to the petitioner’s pro bono representation); Vale v. Avila, 2008 WL 5273677, at *2 (C.D. Ill. Dec. 17, 2008) (finding that while pro bono representation “does not, by itself, render an award of attorney fees clearly inappropriate, it is a factor that cuts against any such award.”). As such, while Cocom’s pro bono representation did not alone make an award of fees and costs clearly inappropriate, the court found that it weighs in favor of denying the award.

The court found that it would be clearly inappropriate to award fees and costs in this case.

        The Court rejected Cocom’s argument that she was still entitled to an award of costs pursuant to Rule 54(d), Cocom’s argument fails. “The language of Rule 54(d)(1) does not provide that the presumptive award of costs may be defeated because of the nature of the underlying litigation. On the contrary, it provides that ‘[e]xcept when express provision therefor is made either in a statute of the United States or in these rules,’ the cost-shifting to the prevailing party otherwise applies to all cases.” Cherry v. Champion Int’l Corp., 186 F.3d 442, 448 (4th Cir. 1999). “Rule 54(d) is supplanted by 42 U.S.C. § 11607(b), which provides for the shifting of fees, costs, and expenses except where ‘such order would be clearly inappropriate.’ ” Montero-Garcia v. Montero, 2013 WL 6048992, at *5 (W.D.N.C. Nov. 14, 2013) (quoting 42 U.S.C. § 11607(b)(3)). Therefore, any reliance on Rule 54(d) was misplaced.

Wednesday, November 13, 2019

Gil-Levya v Leslie, 780 Fed.Appx. 580 (10th Cir., 2019)[Canada] [Grave Risk of Harm] [Petition granted]

In Gil-Levya v Leslie, 780 Fed.Appx. 580 (10th Cir., 2019) the district court determining that Ms. Leslie failed to show by clear and convincing evidence that the children face a “grave risk” of harm if returned to Canada, granted the petition for return. The Tenth Circuit affirmed. The case was submitted without oral argument. In a footnote the Court pointed out that it order and judgment was not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

  Ms. Leslie, a U.S. citizen, and Mr. Gil-Leyva, a Canadian citizen, met in Colorado in late 2007 and began cohabiting there in March 2008. Ms. Leslie and Mr. Gil-Leyva never formally married. About September 2009, they relocated to Alberta, Canada, where their children, H.M.G. and H.F.G., were born. Ms. Leslie testified that she lived in Canada like a “human trafficking victim.” She testified that she endured physical abuse, occasionally in front of the children, and that she witnessed Mr. Gil-Leyva abuse alcohol, marijuana, and prescription narcotics. Regarding the children, she testified that Mr. Gil-Leyva spanked them, got angry and threw objects in their vicinity, and neglected their basic needs when left alone with them. She further testified that Mr. Gil-Leyva allowed unsafe living conditions, with non-child-resistant bottles of prescription narcotics, power tools, deconstructed machine parts, solvents, and other hazardous items lying in the home, some of which the children played with. And, she testified about noxious fumes in the home from Mr. Gil-Leyva cooking solvents, pennies, and vehicle parts in the kitchen. Mr. Gil-Leyva disputes many of these allegations. 

In May 2016, Ms. Leslie convinced Mr. Gil-Leyva to give his consent for the children’s passports so they could visit her ailing mother for a week and a half. About a week after arriving in Colorado, however, Ms. Leslie informed Mr. Gil-Leyva that she intended to stay beyond the agreed-upon date. Then, in October 2016, Ms. Leslie told Mr. Gil-Leyva that she would not return to Canada with the children. She then initiated state-court proceedings seeking full custody of the children. On June 9, 2017, Mr. Gil-Leyva filed this pro se action in federal district court, seeking an order returning H.M.G. and H.F.G. to Canada under the Hague Convention and the ICARA.

In advance of a hearing scheduled for January 10, 2018, Mr. Gil-Leyva moved to appear via contemporaneous transmission under Rule 43(a) of the Federal Rules of Civil Procedure. The judge denied the motion on grounds that, as a pro se plaintiff, Mr. Gil-Leyva must litigate the case in person. Mr. Gil-Leyva took no further action until the day before the hearing, when he requested a four-to-six-week continuance so that he could make appropriate travel and legal preparations. He then telephoned into the hearing, despite the order denying his Rule 43(a) motion. The judge initially heard argument on whether to continue the hearing. She then denied a continuance and proceeded with the hearing as scheduled, overruling Ms. Leslie’s objection to the reliability of Mr. Gil-Leyva’s telephonic testimony. On April 17, 2018, the magistrate judge issued a written order granting Mr. Gil-Leyva’s request to return H.M.G. and H.F.G. to Canada. 

The Tenth Circuit rejected Ms. Leslie’s argument that  the magistrate judge abused her discretion in permitting Mr. Gil-Leyva to appear telephonically at the January 10, 2018, evidentiary hearing after denying his Rule 43(a) motion to testify in that fashion. The Hague Convention provides that “[t]he judicial ... authorities of Contracting States shall act expeditiously in proceedings for the return of children.” T.I.A.S. No. 11,670, Art. 11; see also Chafin v. Chafin, 568 U.S. 165, 180, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013). This means “a district court has a substantial degree of discretion in determining the procedures necessary to resolve a petition filed pursuant to the Convention and ICARA.” West v. Dobrev, 735 F.3d 921, 929 (10th Cir. 2013). In fact, in this context, nothing requires a court even to hold an evidentiary hearing. See id. Certainly, then, a court that does hold a hearing has some latitude to deviate from ordinary rules of procedure that might delay a final resolution. This was especially true in this case, which had been ongoing since June 2017. The Hague Convention contemplates a judicial decision “within six weeks from the date of commencement of the proceedings.” T.I.A.S. No. 11,670, Art. 11. Not only had this case already been pending for six months when the magistrate judge held a hearing in January 2018, but Mr. Gil-Leyva had asked to postpone the hearing for a period equivalent to the initial timeline within which child-abduction cases should resolve. Concerned that the case was passing the point of expeditious resolution, the judge decided to proceed without Mr. Gil-Leyva being physically present. Given the impetus to quickly resolve the abduction claim, the judge had good cause to proceed in this manner. 
The Tenth Circuit found that Mr. Gil-Leyva, the petitioning parent, has made the required showing of a prima facie case. Mrs. Leslie conceded that she had retained H.M.G. and H.F.G. outside Canada since May 2016, that Canada wass the children’s country of habitual residence, that her actions breached Mr. Gil-Leyva’s custody rights, and that Mr. Gil-Leyva was exercising those rights at the time. 
Ms. Leslie pressed a single defense on appeal: that she demonstrated by clear and convincing evidence a “grave risk” that the children’s return to Canada would expose them to “physical or psychological harm or otherwise place the[m] ... in an intolerable situation.” The court observed that as the term implies, a “grave risk” means the “potential harm to the child must be severe, and the level of risk and danger ... very high.” West, 735 F.3d at 931 (quoting Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013)); see also Van De Sande v. Van De Sande, 431 F.3d 567, 570 (7th Cir. 2005) (“The gravity of a risk involves not only the probability of harm, but also the magnitude of the harm if the probability materializes.”).

To satisfy her burden, Ms. Leslie testified that Mr. Gil-Leyva physically abused her and the children when they lived with him and that he negligently cared for the children and allowed unsafe living conditions in the home. The magistrate judge recited these allegations and found them insufficient to establish by clear and convincing evidence a grave risk of harm to the children. 

Addressing physical abuse of Ms. Leslie, the magistrate judge recited Ms. Leslie’s testimony that Mr. Gil-Leyva “slapped” and “shoved” her several times and once “choked her with his hands,” causing her to break a blood vessel in her eye and bruise on her neck. Though this testimony is deeply concerning, and undeniably will figure in any Canadian custody proceedings, spousal abuse is relevant for Article 13(b) purposes only if it “seriously endangers” the child. See Khan v. Fatima, 680 F.3d 781, 787 (7th Cir. 2012). Evidence of a “clear and long history of spousal abuse” may suffice to show a propensity for child abuse, see Walsh v. Walsh, 221 F.3d 204, 220 (1st Cir. 2000), but isolated incidents of abuse generally demonstrate a risk of harm only to the spouse. At a minimum, the spouse must “draw a connection” showing that the risk such abuse poses to her “constitute[s] a grave risk to the children.” See Charalambous v. Charalambous, 627 F.3d 462, 468 (1st Cir. 2010). Ms. Leslie failed to do so in this case.

Addressing physical abuse of the children, the magistrate judge recited Ms. Leslie’s testimony that Mr. Gil-Leyva spanked H.F.G. “only once” and H.M.G. six times “with an open hand,” leaving “marks” on their “bare bottoms.” Certainly, a parent who is “in the habit of striking the children,” even for disciplinary purposes, might pose a grave risk of harm to them. See Ermini v. Vittori, 758 F.3d 153, 165 (2d Cir. 2014). But the described spankings, though again perhaps a subject for any Canadian custody proceedings, did not suffice to show a grave risk of harm. Cf. Simcox v. Simcox, 511 F.3d 594, 608–09 (6th Cir. 2007) (considering it a “close question” that even “repeated beatings, hair pulling, ear pulling, and belt-whipping” established a grave risk of harm). Although Ms. Leslie testified that Mr. Gil-Leyva would occasionally “get angry and throw things around,” she allowed that he “never hit the children with those items.” And she proffered no evidence that Mr. Gil-Leyva’s erratic behavior would constitute a credible threat to the children’s safety upon their return.

On appeal, Ms. Leslie argued that the children were at grave risk of psychological damage from Mr. Gil-Leyva’s violent behavior, even if that behavior posed no grave risk of physical harm to them. Though she may develop this theory in Canadian court, the record in this case provided no support for it. Ms. Leslie alleged that the children will suffer from “[w]itnessing a pattern of violence between” her and Mr. Gil-Leyva.  But she simultaneously claimed that she either cannot or will not return to Canada. Presumably, that “removes any risk of the children witnessing any future abusive acts” against her. See Charalambous, 627 F.3d at 469. Moreover, though repatriation may cause “unavoidable psychological harm” to children exposed to spousal abuse in the past, see Souratgar, 720 F.3d at 104, Ms. Leslie testified that the only abuse the children ever witnessed was Mr. Gil-Leyva occasionally slapping her on her “back side very hard,”. Though it is debatable that such contact would trigger grave psychological harm upon the children’s return to Canada, any such argument rested on speculation. See Souratgar, 720 F.3d at 104. Notably, neither party has requested a psychological evaluation of the children to assess the effects of any of Mr. Gil-Leyva’s past abuse. The same issue arose with Ms. Leslie’s argument that the children would suffer psychological harm from Mr. Gil-Leyva spanking them or throwing things at them. Ms. Leslie adduced no expert testimony or evidence that the children suffered emotionally in the past or that they would unavoidably suffer from spanking or thrown objects in the future.

The Magistrate judge recited Ms. Leslie’s testimony regarding Mr. Gil-Leyva’s negligence in caring for the children and allowing unsafe living conditions in the home. This included testimony that Mr. Gil-Leyva left non-child-resistant bottles of prescription medications “within reach of the children”; that his prescription  usage made his behavior “pretty manic”; that, on the “less than five” occasions Ms. Leslie left him alone with the children, he neglected to change their diapers; that once, he fell into a “narcotic induced sleep” during which he was “completely unaware” of the children’s needs; that he sometimes “put a child in the front seat” of his work van and once “used a tie-down strap in the back of the van for a child seat”; that he made soap and shoes and disassembled sewing machines, leaving their parts “all over the house” along with other dangerous items, including “[p]ower tools, solvents, screws, nails, glues, [and] choking hazards,” some of which the children occasionally played with; and that “it was not abnormal” for him to “leave power tools plugged in.” Ms. Leslie further testified—though the judge didn’t expressly address—that Mr. Gil-Leyva cooked solvents, pennies, and vehicle parts, producing fumes that made the home “noxious” and “uninhabitable.” Though the judge considered Ms. Leslie’s description of the home as being an “environment which may not be safe or healthy for children,” she found significant the absence of evidence that the children had suffered any harm when they lived with Mr. Gil-Leyva.  If the children suffered no harm from Mr. Gil-Leyva’s alleged negligence when they were younger and more vulnerable, it struggled to see how they faced a grave risk of harm now. While past harm is not required to establish a grave risk of future harm, it is probative of whether the children will suffer upon returning to the same circumstances. See Baran v. Beaty, 526 F.3d 1340, 1346 (11th Cir. 2008). Ms. Leslie did not demonstrate by clear and convincing evidence that these dangers present so grave and credible a threat that the children cannot safely return to Canada without her protection. 

Because Ms. Leslie failed to clearly and convincingly establish an Article 13(b) defense to repatriation, H.F.G. and H.M.G. must be “promptly returned” to Canada. See 22 U.S.C. § 9001(a)(4). The magistrate judge entered an order accordingly but clarified in dicta that she was only ordering the children’s return to Canada, not to Mr. Gil-Leyva’s home. She added that, as Canadian law permits, Ms. Leslie may take certain actions to oppose the children’s return to Mr. Gil-Leyva’s home; for example, Ms. Leslie may accompany the children back to Canada and reside with them, separate from Mr. Gil-Leyva, while litigating their custody in the appropriate Canadian court. Ms. Leslie argued that these suggestions amounted to unworkable “undertakings” which fail to guarantee the children’s safety. The Tenth Circuit held that absent a predicate finding that the children face a grave risk of harm in Mr. Gil-Leyva’s home, the judge had no obligation to craft workable undertakings to “ameliorate the ... harm.” See Baran, 526 F.3d at 1352. Instead, the judge was required to order the children’s unconditional return to Canada, which she did.

Saturday, November 9, 2019

Teller v Helbrans, 2019 WL 5842649 (E.D. New York, 2019)[Guatemala] [Federal & State Judicial Remedies] [ Dismissal with prejudice for violations of Rules 16(f)(1)(A) and 16(f)(1)(C)]

In Teller v Helbrans, 2019 WL 5842649 (E.D. New York, 2019) Aaron Teller (“Teller”) commenced an action under the Hague Convention on Civil Aspects of International Child Abduction. 

Teller filed a Petition on May 29, 2019, alleging that his wife, Helbrans, abducted their six children in October 2018. Teller asked for the children to be returned to Guatemala, their alleged habitual residence, for custody proceedings. Teller alleged that he, Helbrans, and the six children were members of the Jewish community Lev Tahor living in Guatemala and that Helbrans left the community with the children in violation of Teller’s custody rights. All six children moved to intervene, and the Court approved their participation. 

In June 2019, the Court adopted Helbrans and Teller’s jointly proposed discovery and trial schedule. The schedule contemplated the commencement of trial on September 23, 2019. On July 11, Helbrans moved to compel the production of certain documents. The Court subsequently ordered Teller to produce non-privileged documents in response to Helbrans’s document requests and to provide information about a set of emails. No complete production of responsive documents was ever made. Helbrans sought an order compelling Teller to appear for a deposition pursuant to the Walsh Act, 28 U.S.C. § 1783. Teller resisted these efforts. On August 12, the Court denied Helbrans’s motion to compel without prejudice to renewal. Teller v. Helbrans, No. 19-CV-3172, 2019 WL 3779863, at *1 (E.D.N.Y. Aug. 12, 2019); On August 15, Helbrans supplemented her earlier submissions and renewed her motion under the Walsh Act. In response, Teller asked that his deposition be taken in Guatemala. Teller’s counsel also informed the Court that Teller would not be testifying at the trial in New York and asked to appear by videoconference, but he provided no reason why an in-person appearance was not possible. Helbrans also moved to compel Teller’s production of documents on August 19. Helbrans informed the Court that Teller “produced only 15 documents weeks after the [document discovery] deadline, only after Respondent repeatedly prodded Petitioner and asked about specific categories of documents that should have existed in Petitioner’s possession.”  She recounted that on August 3, one day after the document discovery deadline, Teller’s counsel said that Teller’s final production had been sent.  But on August 7, 2019, Teller’s counsel said, “I have not received any documents from Aaron Teller yet.” Helbrans also asked the Court to amend the discovery and trial schedule because Teller had failed satisfy other discovery obligations. His failures allegedly included: not serving discovery requests by June 21, not serving objections and responses to Helbrans’s discovery requests by June 26, and not producing any documents by the document production deadline of August 2. 
The Court granted Helbrans’s motion for a Walsh Act subpoena. Teller v. Helbrans, No. 19-CV-3172, 2019 WL 3975555, at *5 (E.D.N.Y. Aug. 21, 2019). The Court explained that “[t]here 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,” and “it is highly unusual—perhaps unprecedented—for a petitioner not to appear at the hearing to testify in a Hague Convention matter.” In granting the motion, the Court noted that although Teller refused to appear for a deposition or trial, “[t]here is no suggestion of cost, immigration, illness, infirmity, or other barriers to appearing in the United States.”  As a result, the Court directed (i) Teller’s counsel to provide an estimate of travel and attendance costs for the deposition, (ii) Helbrans to provide subpoenas to be so-ordered for Teller’s deposition and trial testimony and to arrange for service of the subpoenas pursuant to Federal Rule of Civil Procedure 4(f), and (iii) the parties to meet and confer about the date for Teller’s deposition. 

On August 22, a status conference was held with counsel for Teller, Helbrans, and all Respondent-Intervenors. In light of Teller’s discovery failures, the Court adjourned the trial to October 29, 2019. The Court then “so-ordered” two Walsh Act subpoenas compelling Teller to testify at a deposition in the United States and at the trial. After Teller’s counsel provided an estimate of travel and attendance costs, the Court asked Helbrans to pay $3,340, which her counsel agreed to do.  In September 2019, an agent attempted personal service on Teller of the two Walsh Act subpoenas and the check for the travel funds. On September 7, 8, 11, and 15, the agent attempted to serve Teller by visiting a gated community in Guatemala at which Teller was known to be living with the Lev Tahor community. Personal service could not be accomplished. Members of the Lev Tahor community took steps over those four days to help Teller evade service by turning the agent away from their “private property” and refusing to accept service on behalf of Teller. The agent then had the documents sent via certified mail to Teller’s Guatemalan address on September 20. A security guard at the gate of the community did not allow the delivery by the Guatemalan postal service. Helbrans’s counsel sent a copy of the two subpoenas to Teller’s counsel via email. The subpoenas and check were made available for Teller to pick-up at a Guatemalan post office, and Teller’s counsel said that he would advise Teller as such.

On September 7, Helbrans asked the Court to draw an adverse inference against Teller because, as of that date, “Teller had not produced any documents responsive” to Helbrans’s requests for production in violation of the Court’s August 22 order. The only documents he produced were documents from Chayeh and Yakev Weingarten, both non-parties and purported members of Lev Tahor. Helbrans’s counsel also had learned that Teller’s counsel had been unable to communicate with Teller. A status conference was held on September 23, 2019. Prior to the conference, Teller’s counsel filed a letter stating that he wished to be relieved as counsel. At the status conference, Teller’s counsel provided some explanation for the request. Among other things, he stated that he had experienced a “lack of cooperation” from Teller in gathering information, “the discovery process has had a lot of pitfalls, and [counsel] d[id]n’t see an end to that potential process.” Counsel also learned that Lev Tahor may be moving to Iran; counsel had personal and litigation-based objections to such action, but he did not elaborate. The Court directed counsel to file a motion to withdraw as counsel as required by Local Civil Rule 1.4.

At the status conference, Teller’s counsel again told the Court that Teller did not intend to appear for his deposition or the trial. He stated, “Mr. Teller has indicated to me that he will not, even if properly served with a subpoena, be able to come to the United States.”. After the Court stated that Teller could be held in contempt, his case would be dismissed with prejudice if he did not appear for his deposition, and he could not “get the benefits of a court adjudication, and at the same time avoid the obligations that go along with them[,]” Teller’s counsel stated that he had “communicated that to [Teller].”. The Court then scheduled a hearing on the motion to withdraw as counsel and directed Teller to appear at the hearing. On October 18, the deposition of Teller was convened. The attorneys for Helbrans, Y.C.T., and the Children Teller appeared. Teller, however, did not. 

Helbrans filed a motion to dismiss the Petition with prejudice under Federal Rules of Civil Procedure 37 and 41. Their children, the Respondent-Intervenors, also requested dismissal in separate filings. The court found that since the Petition was filed, Teller engaged in a pattern of misconduct and paid little attention to and disregarded the obligations attendant to a litigant in a federal civil proceeding. Although Teller ostensibly filed the Petition to have his six children returned to him in Guatemala for custody proceedings, it was obvious to the Court that he hads little to no intention of litigating the case. Because time is of the essence in a Hauge Convention case, the Court entered an expedited discovery schedule and set a trial date. In response, Teller first ignored his discovery obligations by refusing to provide documents requested by the other parties. He then failed to appear for his deposition. And finally, when his lawyer moved to withdraw, Teller failed to appear at the motion hearing, even though he was directed to do so by the Court. Teller repeatedly told the Court that he had no intention of appearing for any trial. Teller, who was a U.S. citizen, never gave any reason why he could not appear in a case he initiated. A federal statute—the Walsh Act—permits a court to compel and subpoena a U.S. citizen to testify. The Court did so and also eliminated any potential financial barriers to appearance by having the law firm representing Respondent Sara Feiga Helbrans (“Helbrans”) pay for Teller’s plane fare and hotel accommodations. In response, Teller took various steps to evade service of the Court’s subpoena (none of which actually negated the propriety of service) and again reiterated his intention never to appear. It was  obvious that Teller’s motivation in bringing this case was either to harass the other parties or to obtain some strategic advantage in other litigation (including the New York State custody proceedings that had been stayed because of the filing of the Petition). While a party’s motivation in filing suit may be irrelevant, violations of court orders may not so easily be disregarded. The flagrant and repeated disregard of court orders and discovery obligations compeled the Court to dismiss Teller’s Petition with prejudice.
The Court granted the motion to withdraw, as well as the motions to dismiss.and dismissed the Petition with prejudice pursuant to Rule 37(b)(2)(A)(v), for his violations of Rules 16(f)(1)(A) and 16(f)(1)(C). See, e.g., Wang, 308 F.R.D. at 120 (dismissing plaintiff Wang’s complaint with prejudice pursuant to Rule 37 “because the Wangs and their counsel repeatedly and willfully obstructed Bear Stearns’ efforts to depose Mr. Wang ... [and counsel] refused to accept service of any subpoena.”). 

Monday, November 4, 2019

Poretti v Baez, 2019 WL 5587151(E.D.N.Y., 2019)[Mexico][Well-Settled] [Age & maturity] Grave risk of harm] Petition denied]

In Poretti v Baez, 2019 WL 5587151(E.D.N.Y., 2019) the district court denied the application of the Petitioner for the return of his daughters to Mexico. 

Mr. Poretti  and Ms. Baez met in 2000.In late 2001, after Mr. Poretti  was relocated to Mexico for work, Ms. Baez moved there to live with him. Mr. Poretti  and Ms. Baez married in 2002 and had their first child, RP, in 2005. In 2010, Ms. Baez gave birth to CP, and in January 2013, she filed for divorce in Mexico. After initiating divorce proceedings, Ms. Baez contemplated returning to New York.  On one such occasion, Ms. Baez traveled to New York from late February through early March 2013 and when she returned to the apartment she still shared with Mr. Poretti , the locks had been changed and she could not enter. When Ms. Baez eventually entered the apartment, the children were gone and Mr. Poretti  would not tell her where they were or when they would return. Ms. Baez sat in the living room of the apartment insisting Mr. Poretti  produce the children while Mr. Poretti  yelled at her and called her derogatory names in front of a neighbor, an attorney and a work colleague, who had all assembled before Ms. Baez’s arrival. “Mr. Poretti  proceeded to yell and berate me for two hours, calling me stupid, an idiot, a whore, and a liar”. When the children’s nanny finally brought them back to the apartment from a neighbor’s house, the girls told Ms. Baez that their father said she had abandoned them and they thought they would never see her again. Three days later Ms. Baez opened the door with her new key to Mr. Poretti , “screaming” and holding a torn copy of an official notice explaining he had violated court orders by changing the locks on the marital residence. With both CP and RP present, Mr. Poretti  physically assaulted Ms. Baez. He pulled her hair, threw her to the floor and instructed the nanny to take her cell phone while he held her arms down. 

After Ms. Baez filed a police report, a medical examination revealed bruising, consistent with an assault. The Mexican Judge signed a divorce decree and granted Ms. Baez primary custody and Mr. Poretti  supervised visitation. Within six months, Mr. Poretti  was permitted unsupervised visitation, on the condition that he undergo psychological evaluations. Throughout the custody proceedings, Mr. Poretti  repeatedly disobeyed court orders, failed to appear for conferences and only appeared for a court-ordered psychological evaluation on penalty of arrest. More than three years after Mr. Poretti  was granted ne exeat rights, and only after the Mexican appellate court reinstated unsupervised visitation conditioned on psychological evaluations—which Mr. Poretti  historically avoided—Ms. Baez decided to expedite her efforts to relocate with her children to the United States. Notwithstanding the fact that Ms. Baez had primary custody of the children, the custody orders directed that neither parent unilaterally change the domicile of the children and that Mr. Poretti  retain ne exeat rights. 

In December 2016, Ms. Baez took her children from Mexico City to Tijuana and walked across the border to the United States. From there, they flew to New York City, where they stayed with Ms. Baez’s mother and sister in Brooklyn, New York. Immediately after the Christmas holiday, CP started elementary school at PS-107, which she still attended today, and RP started middle school. RP now attended Millennium High School in Brooklyn. A few weeks after arriving in New York, Ms. Baez and her children moved in with Ms. Baez’s boyfriend, Mr. Messing. At the time, Mr. Messing lived in an apartment in Park Slope, Brooklyn. Ms. Baez began working as a document reviewer and eventually obtained employment with FINRA, Within a year Ms. Baez and Mr. Messing purchased a new apartment in Windsor Terrace, just a short distance from Park Slope and across the street from Prospect Park. Ms. Baez and her children had now resided in New York for almost three years. During this time, the children had spoken to Mr. Poretti  twice—both within a month of arriving in the United States. CP and RP were thriving academically and socially. Both had many friends, participated in a host of different extracurricular activities and spent time with their mother’s family in New York and New Jersey as well as Mr. Messing’s family in Michigan, Washington D.C. and North Carolina. CP and RP spoke English almost exclusively. Both children made clear in camera that they enjoyed living in the United States in every respect—they felt a strong connection to their friends and family, they enjoyed their schools and activities and did not wish to return to Mexico.

As part of this litigation, both children were interviewed and evaluated by Dr. Peter Favaro, a psychologist who specialize in high conflict divorce and custody proceedings in the United States. Dr. Favaro testified that RP was mature for her age, “achievement oriented,” “articulate” and capable of making an informed decision regarding repatriation. Though CP was younger, Dr. Favaro testified that CP was mature for her age and capable of making an informed decision regarding repatriation. Dr. Favaro testified that the children did not want to return to Mexico and, in his professional opinion, such a decision would be “catastrophic” for CP and RP psychologically, and would likely trigger significant stress. He explained that the children were well-adjusted to life in New York and notwithstanding their obvious resilience and adaptability to changing circumstances, returning to Mexico at this time would cause incalculable “resentment and fear.” 

The court found that Mr. Poretti  had established his prima facie case by a preponderance of the evidence. 

The Court observed that under Article 12 of the Hague Convention, a respondent who establishes by a preponderance of the evidence that a child is “so settled in [her] new environment that repatriation might not be in [her] best interest” may be entitled to the “well-settled” affirmative defense so long as more than a year has passed since the child’s removal from her habitual residence. Blondin v. Dubois, 238 F.3d 153, 164 (2d Cir. 2001): A child is “settled” if repatriation would be “disruptive with likely harmful effects.” In re D.T.J., 956 F. Supp. 2d 523, 534 (S.D.N.Y. 2013) (citing In re Lozano, 809 F. Supp. 2d 197, 230 (S.D.N.Y. 2011)). Whether a child is “well settled” can, but need not necessarily, take into account factors including (1) the child’s age, (2) the stability of the child’s new environment, including the child’s residence, schooling and community engagement, (3) whether the removing parent has stable employment and (4) whether the child has family and developed friendships in the new environment. D.T.J., 956 F. Supp. 2d at 534 (citing In re Koc, 181 F. Supp. 2d 136, 152 (E.D.N.Y. 2001)). Ms. Baez, Mr. Messing and Dr. Favaro all testified that the children were settled, happy and thriving in the United States.
The Court rejected Mr. Poretti’s argument that the well-settled defense cannot apply because, based on his calculation of the children’s “removal,” his Petition was filed within one year. The district court found the Petition was filed more than a year after the children’s removal from Mexico. The children were removed in December 2016. Mr. Poretti  learned of their removal in January 2017 but did not file the Petition until April 2019. The court rejected Mr. Poretti’s argument that because he commenced this action less than one year after the August 2018 Mexican appellate decision affirming a custody order requiring the children remain in Mexico, they were “removed” in August 2018, in violation of that appellate decision. Marks on behalf of SM v. Hochhauser, 876 F.3d 416, 421-22 (2d Cir. 2017) (removal or “retention [of a child] is a singular and not a continuing act” and explaining that “retention” relates to “an initial act of retention” not a “new state of affairs which will follow on such initial acts and which might also be described as retention”). Nor does it toll, in any sense, the one-year period under the Convention. 

The Court found that both RP and CP were well-settled in the United States and repatriation to Mexico would be “disruptive with likely harmful effects.” D.T.J., 956 F. Supp. 2d at 534. The children developed a cohesive network of friends and family in the United States. They were comfortable in every respect, performing well in school, engaged in the community and involved in a host of extracurricular activities. The children’s lives in the United States, were stable, if not enviable. They lived in an apartment owned by their mother and her boyfriend of over five years across the street from Prospect Park. Ms. Baez, who was a citizen of the United States, was gainfully employed.  They had close friends and spent time with their mother’s family and Mr. Messing’s family. They travel and attend camp during the summer months. They participated in myriad extracurricular activities to their hearts’ content. Both children spoke perfect English with no trace of an accent, and often resisted communicating in Spanish. By all measures, the children were accustomed to a happy, normal and secure life in the United States—a life they had formed a lasting connection to over the last three years.

The Court pointed out that “well-settled” means more than having a comfortable material existence, Demaj, 2013 WL 1131418, at *14 (citing Lops v. Lops, 140 F.3d 927, 946 (11th Cir. 1998)), as Respondent had demonstrated. “The totality of the circumstances” revealed the “children’s lives reflected stability in their family, educational, social and most importantly, home life. Demaj, 2013 WL 1131418, at *24 (citing Lozano, 809 F. Supp. 2d at 233). RP and CP had “reached the point at which [they have] become so settled in [their] new environment that repatriation is not in [their] best interest[s]. Three years later, the children’s “interest in settlement” overcomes the Petitioner’s “right to adjudicate the custody dispute in the child’s habitual residence.” Taveras, 22 F. Supp. 3d at 240.

The Court  also considered (1) whether the children had any interest in returning to Mexico, including whatever remaining ties they had to Mexico, (2) the children’s “need for contact” with their father, (3) Mr. Poretti ’s “interest in exercising the custody to which legally entitled” and (4) “the need to discourage inequitable conduct” and “deter international abductions generally.” Both children stated in no uncertain terms that they did not wish to return to Mexico. RP went so far as to state that she was not ready to reestablish a relationship with her father, whatever the location, and CP said she would be “surprised” to learn her father cared about her. Neither child had substantial ties to Mexico. RP mentioned she stayed in touch with one friend from Mexico who had since moved to Miami, and that she only recently reconnected with another former kindergarten classmate still residing in Mexico.

Dr. Favaro testified to the children’s “need for contact” with Mr. Poretti , agreeing that it is “good for a child” to have both parents in their life. There is no reason why that cannot be the ultimate goal for RP and CP. But it was clear that in this case, simply depositing the children back in Mexico would be incompatible with realizing that goal and could jeopardize it. At this point, to return to Mexico would not be a return to the status quo. It would be a new, and perhaps difficult, life. The Court found that Respondent established the well-adjusted defense by a preponderance of the evidence and the Court finds the Petition must be denied on that basis.

The Court observed that it may also deny Mr. Poretti ’s Petition if it finds that RP and CP “object [] to being returned and ha[ve] attained an age and maturity at which it is appropriate to take account of [their] views.” Both RP and CP stated to the Court in camera that they wished to remain in the United States and did not want to return to Mexico. RP expressed no interest in returning to Mexico and CP qualified that she might be amenable to visiting Mexico if it was “just for fun.” When the Court interviewed the children in chambers, outside the presence of the parties and their counsel, it was more than satisfied that each child spoke honestly. Both children were articulate and mature for their respective ages and the Court was impressed by their poise, breadth of interests and ambition. The children’s objections to returning to Mexico were “substantially based on their understanding and appreciation of their significant contacts to New York and the lack of such connection to [Mexico].” Johnson v. Johnson, 2011 WL 569876, at *6 (S.D.N.Y. Feb. 10, 2011) (citing Matovski, 2007 WL 2600862, at *15). The Court found that Respondent established by a preponderance of the evidence that the “children’s wishes” defense applied and warranted denial of Mr. Poretti ’s Petition.

The Court also found that Respondent has established by clear and convincing evidence that the children faced a grave risk of harm if they are returned to Mexico. The stress occasioned by the thought of returning to Mexico could not be understated. It was that traumatic, catastrophic stress and Mr. Poretti’s demonstrated ability to take drastic, sustained and psychologically harmful action with respect to his children while ignoring court orders that persuaded the Court that returning the children to Mexico posed a grave risk of psychological harm that could not be ameliorated by Mexican court intervention.

Bardales v. Lamothe, 2019 WL 5555540 (M.D. Tennessee, 2019) [Honduras] [Rights of Custody] [Grave Risk of Harm] [Petition granted]

In Bardales v. Lamothe, 2019 WL 5555540 (M.D. Tennessee, 2019) Respondent Breidy Maria Cruz Lamothe removed her minor child, JINC, from his home in Honduras and brought him to the United States. JINC’s father, Petitioner Carlos Ismael Nunez Bardales, filed a Petition seeking the return of JINC. The district court granted the petition.

Respondent Breidy Maria Cruz Lamothe (“Respondent”) and Carlos Ismael Nunez Bardales (“Petitioner”) were both Honduran citizens. Petitioner and Respondent had a child together, JINC, who was born on July 21, 2015. Petitioner, Respondent, and JINC lived together in San Pedro Sula, Honduras after JINC’s birth. In February 2017, Petitioner and Respondent broke up, and moved into different homes. JINC resided with Respondent; however, Respondent dropped JINC off at Petitioner’s home five days a week while Respondent worked. In July 2017, Respondent told Petitioner that she was taking JINC on a vacation to visit her sister in Catacamas Olancho, Honduras. Respondent actually planned to remove JINC to the United States. Respondent and JINC entered the United States on July 14, 2017, via the land border between the United States and Mexico and they arrived in Nashville, Tennessee on July 29, 2017. Respondent eventually texted Petitioner, informing him that she had taken JINC to the United States. JINC was two years old at the time. On July 24, 2017, Petitioner submitted a Hague application for return of the child to the United States Department of State. On July 2, 2018, Petitioner filed a Petition for Return.

Prior to trial, the parties stipulated to the applicability of the Convention and also stipulated to the following facts: (1) JINC is under the age of sixteen; (2) JINC’s habitual residence at the time of removal was Honduras; (3) Respondent and JINC entered the United States on July 14, 2017, via the land border between the United States and Mexico, and Respondent did not tell the Petitioner she had removed the child from Honduras; (4) Petitioner filed his Petition within one year of his knowledge of the wrongful removal; (5) Petitioner is the father of JINC.  The only two witnesses at trial were Petitioner and Respondent. Their respective accounts of their relationship, and of Petitioner’s involvement in JINC’s life, differ greatly from one another. 

Petitioner’s Exhibit 6 contained excerpts of the Honduran family code in Spanish (“the Spanish version”) and an English translation of those excerpts (“the English version”). At trial, Respondent objected to Petitioner’s proposed Exhibit 6 on the ground that it was not properly authenticated.  The Court observed that the language of the Convention  authorizes courts to take notice directly of the law of the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.’ March v. Levine, 136 F. Supp. 2d 831, 834 (M.D. Tenn. 2000) (citing Convention, art. 14), aff’d, 249 F.3d 462 (6th Cir. 2001). Additionally, under ICARA, no authentication of documents or information included with a petition under the Convention “shall be required in order for the document or information to be admissible in court.” 42 U.S.C. § 11605. Relying on these principles, district courts often take judicial notice of the law of the state of habitual residence without requiring authentication. See De La Riva v. Soto, 183 F. Supp. 3d 1182, 1196 n.15 (M.D. Fla. 2016)  Although Respondent’s concerns regarding that accuracy of the English translation in Petitioner’s Exhibit 6 were valid ones those concerns were  sufficiently alleviated here as any differences in the translation were trivial. 

The parties stipulated that JINC’s habitual residence at the time of removal was Honduras for the purposes of the Convention. Article 187 of the Honduran Family Code, provides that “parental authority belongs to both parents jointly. However, it will exercise one of them3 when it is conferred by the court or the other was in impossibility to exercise it.” “Parents in the exercise of parental authority have the right to exercise guidance, care and correction of their children, and provide them in line with the evolution of their physical and mental faculties, the direction and guidance that is appropriate for their development.” (translating Honduran Family Code, Art. 191)). “If parental authority is exercised by both parents, the written authorization of the other is required if just one parent is traveling with the child during the trip.”  (translating Honduran Family Code, Art. 101)). The Court concluded that “Honduran law provides that, when both parents exercise parental authority, each parent has a ne exeat right: a right to consent before the other parent can take the child out of the country.” Mendieta Chirinos, 2019 WL 2887975, at *5. “A ne exeat right is a right of custody under the Convention.” Abbott, 560 U.S. at 10. Under the Honduran code, “parental authority belongs to both parents jointly. However, it will exercise one of them when it is conferred by the court or the other was in impossibility to exercise it.” Here, the parties stipulated that Petitioner was the father of the child. Moreover, there was nothing in the record that indicated a Honduran court granted full custody to Respondent, and it was not impossible for Petitioner to exercise parental authority; he did in fact exercise his parental authority. Therefore, Petitioner possessed parental authority jointly with Respondent. “If parental authority is exercised by both parents, the written authorization of the other is required if just one parent is traveling with the child during the trip.” (Id. (translating Honduran Family Code, Art. 101)). The Supreme Court has held that such a ne exeat right is a right of custody as defined by the Convention. Abbott, 560 U.S. at 10. Therefore, Petitioner possessed rights of custody over JINC at the time of his removal from Honduras. 

The parties stipulated that Respondent removed JINC to the United States on July 14, 2017, without informing Petitioner she was removing the child from Honduras. Because Respondent did not receive Petitioner’s written authorization before removing JINC from Honduras, JINC’s removal was in breach of Petitioner’s custody rights. Therefore, Petitioner proved by a preponderance of the evidence that JINC’s removal was in breach of his custody rights granted by Honduran law.

Although there were disputes regarding the extent of the care that Petitioner provided to JINC, there was no testimony from Petitioner or Respondent of acts that could constitute “clear and unequivocal abandonment” of JINC on the part of the Petitioner. Friedrich II, 78 F.3d at 1066. Respondent’s allegations of Petitioner’s lack of hands-on care for JINC was to no avail, because such allegations suggested something “short of acts that constitute clear and unequivocal abandonment.” Respondent testified that she dropped JINC off at Petitioner’s house five days a week. Even if Petitioner’s mother or a babysitter cared for JINC while he was at Petitioner’s house, it was obvious that Petitioner still intended to, and did, keep regular contact with JINC during this time. The Sixth Circuit has instructed that courts may “liberally find ‘exercise’ whenever a party with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.” Friedrich II, 78 F.3d at 1065. Accordingly, the Court found that Petitioner was exercising his custody rights at the time of removal.

The Court found that Petitioner proved his prima facie case by a preponderance of the evidence.

Respondent argued that even if Petitioner proved his prima facie case of wrongful removal, JINC should not be returned to Honduras because there was a grave risk that returning JINC would expose him to harm because of Petitioner’s prior violent actions. To prevail, Respondent must prove by clear and convincing evidence that there is a grave risk that returning JINC to Honduras “would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Convention, art. 13(b). The Court observed that the Sixth Circuit has adopted a “restrictive reading” of this exception. Friedrich II, 78 F.3d at 1068–69; see also March, 136 F. Supp. at 844–846 (stating that “this exception is truly to be narrowly construed,” and courts that have found a grave risk of harm “have generally emphasized that there was clear and convincing evidence to support a finding that the parent seeking the return had seriously abused the child”). The Sixth Circuit has also “acknowledge[d] that courts in the abducted-from country are as ready and able as we are to protect children. If return to a country, or to the custody of a parent in that country, is dangerous, we can expect that country’s courts to respond accordingly.” 

Respondent testified that after she and Petitioner ended their relationship, Petitioner stalked her and threatened her. She testified that on one occasion, when JINC was in the room, Respondent pointed a loaded gun at her, and then at himself while threatening to commit suicide. Respondent also testified that on another occasion, Petitioner showed up at her place of employment and threatened to kill her and himself. She testified that she was in fear of returning to Honduras because of these incidences. Petitioner vehemently denied that he has ever pointed a gun at Respondent or threatened her. Moreover, Petitioner denied that he ever held a gun in front of his son and testified that he “would never do that.” Based on its observations during the hearing and its review of the evidence, the Court concluded that neither party’s version is appreciably more credible or less credible than the other party’s version. The Court found that Respondent had not proved by clear and convincing evidence that returning JINC to Honduras “would expose the child or psychological harm.” Convention, art. 13(b). Her only evidence of any threatening behavior on the part of Petitioner was her own testimony, which Petitioner’s testimony disputed. There was no other evidence, either through witness testimony, physical evidence, or documentary evidence such as text messages or a police report, that tends to corroborate Respondent’s testimony. This uncorroborated, hotly disputed testimony was simply not enough to satisfy Respondent’s burden of clear and convincing evidence. Moreover, to prevail on an Article 13(b) defense, there must be evidence of a grave risk of harm to [the] child, not solely to a parent or some other third party.” Acosta v. Acosta, No. CIV. 12-342 ADM/SER, 2012 WL 2178982, at *7 (D. Minn. June 14, 2012) (citing Convention art. 13(b)); see also Charalambous v. Charalambous, 627 F.3d 462, 468 (1st Cir. 2010) (“The relevant inquiry is not whether there would be a grave risk of harm to [the child’s mother] if she returned to [the country of habitual residence]; rather, the grave risk inquiry goes to the children.”). Here there was no showing of any likelihood of such scenario were JINC to be returned—i.e., that long after Petitioner’s relationship with Respondent ended, he would abuse her, let alone abuse her with JINC in the vicinity so as to be himself at risk. Although Petitioner did allegedly point a loaded gun at Respondent while JINC was in the room, this action alone did not amount to one of the “extreme cases” in which the grave risk of harm defense may be found. See Cuellar v. Joyce, 596 F.3d 505, 508 (9th Cir. 2010)  Moreover, Respondent had not proven by clear and convincing evidence that the Honduran courts would be unwilling or incapable of protecting the child during the pendency of a custody hearing. Although Respondent testified that the police force in Honduras “doesn’t work”, this does not persuade the Court that Honduran courts are unable to protect JINC. As the Sixth Circuit explained, “[w]hen we trust the court system in the abducted-from country, the vast majority of claims of harm—those that do not rise to the level of gravity required by the Convention— evaporate.” Friedrich II, 78 F.3d at 1068. 

Respondent argued that Petitioner consented to or subsequently acquiesced in the wrongful retention of their child and that she should therefore be afforded the third of the foregoing affirmative defenses under Article 13. In order for her to prevail on this defense, Respondent had to show by a preponderance of the evidence that Petitioner consented to or subsequently acquiesced to the child remaining in the United States. See Friedrich II, 78 F.3d at 1067 (citing Convention art. 13(a) and 42 U.S.C. § 11603(e)(2)(B)). Here, the parties stipulated that “Respondent did not tell Petitioner that she had removed the child from Honduras.” And Petitioner sought assistance from the Honduran Central Authority within days of JINC’s removal. See Freier v. Freier, 969 F. Supp. 436, 444 (E.D. Mich. 1996) (finding no consent where, inter alia, petition was filed “within days” of wrongful removal). Accordingly, Petitioner did not consent to JINC’s removal from Honduras. “[A]cquiescence under the Convention requires either: an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written enunciation of rights; or a consistent attitude of acquiescence over a significant period of time.” Friedrich II, 78 F.3d at 1070. “Subsequent acquiescence requires more than an isolated statement to a third-party. Each of the words and actions of a parent during the separation are not to be scrutinized for a possible waiver of custody rights.” Respondent’s evidence of Petitioner’s subsequent acquiesce was ambiguous at best. At trial, Respondent displayed text messages, in which Petitioner responded with a “thumbs-up” emoji to Respondent’s statement that she had made it to the United States. Respondent maintained that the “thumbs-up” meant Petitioner was okay with JINC remaining in the United States. Petitioner contended that the “thumbs-up” meant that Respondent should enjoy her mother’s company, and did not imply that he was okay with JINC remaining in the United States. 
This emoji and these and other text messages neither (1) were “statement[s] with the requisite formality” that demonstrated Petitioner’s acquiescence; nor (2) displayed a “consistent attitude of acquiescence over a significant period of time.” These communications did not show, by a preponderance of the evidence, Petitioner’s subsequent acquiescence to JINC remaining in the United States, especially in light of Petitioner’s consistent efforts to have JINC returned to Honduras. See Friedrich II, 78 F.3d at 1070 (“He has resolutely sought custody of his son since that time. It is by these acts, not his casual statements to third parties, that we will determine whether or not he acquiesced to the retention of his son in America.”). Accordingly, the Court found that Respondent had not met her burden to prove Petitioner acquiesced JINC remaining in the United States by a preponderance of the evidence.