In Malmgren v Malmgren, 2019 WL 5092447 (E.D. North Carolina, 2019) petitioner’s motion for an award of attorneys’ fees was denied.
In June 2018, petitioner filed a petition for the return of his minor child. The child was born to petitioner and respondent in 2009 in Sweden, and was a citizen of both Sweden and the United States. In June 2017, respondent took the minor child to the United States, with petitioner’s permission, and then informed him that they would not be returning. In October 2018, following a hearing the Court denied the petition for return, finding that the child was well-settled in the United States. The Fourth Circuit reversed. In February 2019 the district court vacated its October 2018 order and granted the petition for return. Petitioner moved for an award of attorneys’ fees under 22 U.S.C. § 9007(b)(3) and Article 26 of the Hague Convention.
Petitioner requested an award of attorneys’ fees and expenses in the total amount of $16,681.09 under ICARA, 22 U.S.C. § 9007(b)(3). The Court observed that in relevant part, the statute provides that: “Any court ordering the return of a child pursuant to an action brought under section 9003 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate.” It noted that the statutory language implements Article 26 of the Hague Convention, requiring federal courts to award “necessary expenses,” which includes “court costs” and “legal fees,” unless respondent “establishes that such order would be clearly inappropriate.”
The Court found that awarding attorneys’ fees and expenses to respondent would be clearly inappropriate. While the Fourth Circuit has not specifically defined “clearly inappropriate” in the ICARA context, other circuits have established a two-factor test: (1) whether respondent had “a good faith belief that her actions in removing or retaining a child were legal or justified” and (2) respondent’s ability to pay and whether an award of fees would impair her ability to care for her child. Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018) (citing Ozaltin v. Ozaltin, 708 F.3d 355, 375-76 (2d Cir. 2013)); see also Norinder v. Fuentes, 657 F.3d 526, 536-37 (7th Cir. 2011).
The Court found that Respondent brought the minor child to the United States to visit her family and initially planned to stay for four weeks, with petitioner’s permission. Respondent then informed petitioner that her plans had changed and that she and the minor child would be staying in the United States until Labor Day in September 2017. Respondent and her child had previously stayed in the United States on multiple occasions for months at a time, apparently without objection from petitioner. Petitioner objected to respondent then informing him that she planned to stay with the child in the United States for a full year, but petitioner did not testify that he told respondent he would initiate judicial proceedings to return the child to Sweden.
Respondent argued that she did not believe she was in violation of the law by bringing the child to the United States. “Although a mistake of law is not a defense to the return action itself, it is a relevant equitable factor when considering whether a costs award, is appropriate.” Ozaltin, 708 F.3d at 375 (citing Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994)). In Rath, the Eleventh Circuit determined that the respondent could not establish that she had acted in good faith because soon after coming to the United States, she had filed suit to change the custody order and indicated her awareness that she was in violation of the existing custody agreement. 898 F.3d at 1311. Here, by contrast, respondent never filed for a custody order in the United States. The Court found that respondent removed the minor child from Sweden in good faith.
The Court also found that respondent demonstrated that she lacked the ability to pay an award of costs and fees and still assist in her minor child’s care. Respondent declared that she earned $12 per hour as a customer service representative, amounting to pre-tax annual income of approximately $24,960. Respondent declared that she lived with her 83-year-old grandmother and contributed $300 per month to household expenses. She did not have any checking or savings accounts in the United States, and her Swedish bank accounts had a combined total of approximately $51. Respondent also had over $36,000 in debt, including student loan debt and credit card debt. Now that petitioner had sole custody of the minor child in Sweden, respondent had to relocate to Sweden in order to petition the Swedish courts to grant her visitation or partial custody of her child. Other courts have previously held that if an award of fees and costs “would impose such a financial hardship that it would significantly impair the, respondent’s ability to care for the child,” such an award might be clearly inappropriate. Rath, 898 F.3d at 1311; see also Rydder v. Rydder, 49 F.3d 639 (8th Cir. 1995) (reducing fees and costs due to respondent’s “straitened financial circumstances”). Given respondent’s limited assets and substantial debts, the court found 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.
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