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Thursday, December 19, 2019

Palomo v Howard, 2019 WL 6682989 (M.D. North Carolina, 2019) [Spain] [Habitual Residence] [Comity] [Petition granted]

In Palomo v Howard, 2019 WL 6682989 (M.D. North Carolina, 2019) the court granted the Petition of Olga Rodriguez for the return of her minor child, J.H.R., to Spain.

Petitioner gave birth to J.H.R. in 2010 in Spain. Respondent was the father of the child.  Petitioner and Respondent were married in Spain in April 2010. In October 2010, Petitioner, Respondent, and J.H.R. moved to Greensboro, North Carolina. Petitioner told Respondent, in early 2014, that she wanted the family to move back to Spain. Respondent agreed. Petitioner and J.H.R. moved to Spain first in April 2014, and Respondent moved to Spain in October 2014 to join them. After Respondent moved to Spain, he did not live with J.H.R. and Petitioner. J.H.R. lived with Petitioner in Petitioner’s mother’s apartment during this time. On October 24, 2014, Petitioner initiated divorce proceedings in the Court of First Instance No. 27 of Madrid. The Spanish court tried to summon Respondent by telephone on April 27, 2016, for a hearing on Petitioner’s custody and divorce filing. When he refused to come, the court entered a procedural default. That court issued a ruling on May 20, 2016, granting Petitioner sole custody of J.H.R., along with a divorce. Respondent appealed the order, arguing that he was deprived of due process for failure to receive notice of the proceedings. On September 26, 2017, the Provincial Court of Madrid, the Spanish appellate court, annulled the custody order granting Petitioner sole custody and ordered further proceedings. The Provincial Court agreed with Respondent and declared that he “had been left defenseless” to those proceedings. The Provincial Court also found that, at the time of the 2014 Spanish custody and divorce proceedings, Petitioner knew that Respondent had initiated custody proceedings in Guilford County Superior court, and that she failed to tell the Provincial Court of these proceedings. This order, however, did not divest Petitioner of custody rights. While Petitioner was pursuing divorce in the Spanish courts, Respondent filed an ex parte temporary custody petition in the Guilford County Superior Court. The Guilford County Superior Court entered a Permanent Custody Order granting Respondent sole custody on July 1, 2015. In August 2018, J.H.R. had been living in Spain with Petitioner for four years. Petitioner and Respondent were engaging in custody negotiations. Respondent and Petitioner agreed in writing that J.H.R. would go on vacation with Respondent for two weeks. Respondent instead took J.H.R. to North Carolina.

Petitioner went to the Court of First Instance in Madrid and received an order on September 7, 2018, which stated that it was in the interest of the child not to illicitly transfer him or remove him from his habitual residence with his mother. This order further dictated that Petitioner would exercise care and custody of the child and prohibited the removal of the child from Spain without judicial authorization. On January 22, 2019, Petitioner filed a Request for Return Application under the Hague Convention with the Central Authority for Spain. On June 18, 2019, the Court of First Instance No. 27 of Madrid issued an order concerning the return of J.H.R. to Petitioner. In that order, the Spanish court held that Respondent’s transfer of J.H.R. to Greensboro, North Carolina, constituted an illicit transfer in violation of Article 3 of the Hague Convention of 1980. The Spanish court found that Petitioner was exercising legitimate custodial rights over J.H.R. at the time Respondent took the child to the United States. The Spanish court also found that J.H.R.’s habitual residence was Madrid, Spain, where Petitioner had exercised lawful custody since 2014, “without opposition from the father,” that J.H.R. was enrolled in school, that Respondent “did not present a claim for restitution in the year that he was aware of the minor’s whereabouts,” and that Respondent lived in Madrid. On August 30, 2019, Petitioner filed the Verified Petition, seeking return of J.H.R. to Spain. 

The district court agreed with Petitioner that J.H.R.’s habitual residence was Spain at the time Respondent took him. It noted that as the Fourth Circuit stated in Miller v. Miller, 240 F.3d 392, 400 (4th Cir. 2001), habitual residence pertains to customary residence prior to the removal. The court must look back in time, not forward.” (quoting Friedrich, 983 F.2d at 1401). “This is a fact-specific inquiry that should be made on a case-by-case basis.” Importantly, “a parent cannot create a new habitual residence by wrongfully removing and sequestering a child.” “Federal courts have developed a two-part framework to assist in the habitual residence analysis.” Maxwell v. Maxwell, 588 F.3d 245, 251 (4th Cir. 2009). First, the court must determine “whether the parents shared a settled intention to abandon the former country of residence.”  (Mozes v. Mozes, 239 F.3d 1067, 1075 (9th Cir. 2001)). Second, the court determines “whether there was ‘an actual change in geography’ coupled with the ‘passage of an appreciable period of time, one sufficient for acclimatization by the [child] to the new environment.’” Id. (quoting Papakosmas v. Papakosmas, 483 F.3d 617, 622 (9th Cir. 2007)). The Fourth Circuit has adopted the Ninth Circuit’s framework for determining parental intentions in Hague Convention cases, due to the “[d]ifficulty [that] arises ... when the persons entitled to fix the child’s residence no longer agree on where it has been fixed—a situation that, for obvious reasons, is likely to arise in cases under the Convention.” Maxwell, 588 F.3d at 251.

The Court rejected Respondents argument that J.H.R.’s habitual residence was North Carolina, and his reliance upon  Mota v. Castillo, 692 F.3d 108 (2d Cir. 2012) and Hofmann v. Sender, 716 F.3d 282 (2d Cir. 2013). In Mota, the father traveled from Mexico to New York to find work, while the child and the mother remained in Mexico. The parents had the child smuggled into the United States, where she lived with her father. The mother, however, repeatedly and unsuccessfully tried to gain entrance into the country. The mother then filed a Hague petition in the United States. The Second Circuit affirmed the district court’s holding that Mexico was the child’s habitual residence, stating, “[the mother]’s intention that [the child] live in the United States only if she, as mother, were able to join [the child] there is dispositive of our determination of [the child]’s habitual residence.” The Second Circuit further noted that “[w]ere [the mother] unable to join her daughter in America, [the child]’s stay would be temporary, and the daughter would rejoin her mother in Mexico.”  Hofmann applied the holding in Mota to a situation involving a Canadian father and an American mother who had two children in Canada. Hofmann, 716 F.3d at 285. In August 2011, the respondent mother moved with the two children to New York to be near her family, as well as to begin the family’s relocation process. During this time, the petitioner father stayed in Canada while periodically visiting the rest of the family in New York. The petitioner and respondent opened up a joint bank account in New York in September 2011, and their oldest child began attending school in New York at around the same time. The district court noted, critically, that the parties “had not reached the unequivocal decision to relocate to New York” on the date the mother moved the children to New York. The district court finally found that the parties believed that their relocation to New York was predicated on them doing so as a family. The court credited both petitioner and respondent’s testimony on this point, and that respondent’s belief “was consistent with [his] other actions including his institution of this Hague Convention proceeding immediately after he was served with divorce papers.” 

Petitioner contended J.H.R.’s habitual residence was Spain, and Respondent contended that J.H. R’s habitual residence did not change from North Carolina when they moved to Spain in 2014. Petitioner, Respondent, and J.H.R. all lived in Spain from 2014 to 2018. Considering the factors laid out in Maxwell led the court to conclude that J.H.R. was acclimated to Spain. It was plain to the court the family as a unit manifested a settled purpose to change habitual residence, despite the fact that one parent may have had qualms about the move.” Maxwell, 588 F.3d at 251. Respondent admitted at the trial that it was their intent to remain in Spain, in his view, as husband and wife. The factors led the court to conclude that Petitioner met her burden of proving by a preponderance of the evidence that the last shared parental intent was to make Spain J.H.R.’s habitual residence, either as a family or not. Moreover, even if Petitioner thwarted the intent to live in Spain as a family, and the last shared parental intent was for the United States to be J.H.R.’s habitual residence, as Respondent claimed, the court distinguished this case from the fact patterns of Mota and Hofmann. In contrast to the petitioner in Mota, Respondent here was able to enter Spain; he was not barred from joining J.H.R. in the country. Mota involved a “stranded parent,” whereas the present facts did not indicate a case of a stranded parent who cannot enter the country to be with the child; Respondent admitted that he lived in Spain for four years, saw his son, and gained Spanish residency as the father of a Spanish national. Mota was inapplicable to the facts in this case. The Court acknowledged that the present case and Hofmann bear similarities. In both, mothers went to new countries with their children, followed by fathers whom the mothers promptly divorced. However, even taking Respondent’s view of the facts, there was at least one material fact distinguishing the two cases: Respondent did not file his own Hague petition once he realized his wife wanted a divorce and that the intention of living in Spain as husband and wife was thwarted. Unlike the respondent father in Hofmann, who immediately filed Hague Convention proceedings upon being served with divorce papers, Respondent chose the route of inaction under the Hague Convention. He never filed a Hague petition. Instead, he lived in Spain for four years until he engaged in self-help and illegally removed his child in conscious disregard of a contract he had signed, which is precisely what the Hague Convention was meant to prevent. See Miller, 240 F.3d at 401 n.13.
 Hofmann was not applicable to the facts here. If Respondent wanted to avail himself of the thwarted intent defense as stated in Hofmann, Respondent should have filed a Hague Petition in 2014, not waited four years before absconding with his child to another continent.

Because Spain was J.H.R.’s habitual residence, Spanish law guided as to whether J.H.R.’s removal was in violation of Petitioner’s custody rights. The Fourth Circuit has deferred to a foreign court’s determination that the left-behind parent was exercising custody, on the grounds that the court’s determination was reasonable and that the respondent failed to provide any reason to question the foreign court’s decision. Miller, 240 F.3d at 400–01. The Fourth Circuit’s analysis in Miller was instructive. As in Miller, there were dueling custody orders here – Petitioner received an order for full custody from the Spanish courts, and Respondent received an order for full custody from the Guilford County court. The June 18, 2019 order from the Spanish Court of First Instance concluded that Petitioner had custody rights at the time of the removal. This court considered the Spanish court to be a competent judicial body, and that court determined that Petitioner was entitled to custody of J.H.R., despite the North Carolina order, at the time Respondent removed J.H.R. from Spain.  Respondent had not provided “any authority from [Spain] undermining this decision or any other reason to question the [Spanish] court’s interpretation of the law of its own country.” The court saw no reason not to defer to the Spanish court’s findings. The court concluded that Petitioner had valid custody rights, based in either the June 18, 2019 Spanish order or, alternatively, in Spanish civil law, and therefore found that Petitioner demonstrated by a preponderance of the evidence that the second prong was satisfied. Here, Petitioner was clearly exercising her custody rights. Petitioner therefore established a prima facie case of wrongful removal under the Hague Convention.

The Court rejected Respondents defenses. Respondent raised the defense of unclean hands.  “Unclean hands” is not a supported defense to a Hague Petition.” Karpenko v. Leendertz, 619 F.3d 259, 265 (3d Cir. 2010) . The Fourth Circuit has also stated that the doctrine of equitable estoppel — an equitable remedy like the doctrine of unclean hands — is inapplicable in Hague Convention cases. Katona v. Kovacs, 148 F. App’x 158, 161 (4th Cir. 2005). 

The Court rejected Respondents argument that foreign judgments are not entitled to full faith and credit. “[T]hough foreign judgments are not entitled to full faith and credit, comity is at the heart of the Hague Convention.” Smedley v. Smedley, 772 F.3d 184, 189 (4th Cir. 2014) American courts will thus “normally accord considerable deference to foreign adjudications as a matter of comity.” Miller, 240 F.3d at 400. [W]e may properly decline to extend comity to the [foreign] court’s determination if it clearly misinterprets the Hague Convention, contravenes the Convention’s fundamental premises or objectives, or fails to meet a minimum standard of reasonableness.” Smedley, 772 F.3d at 189 (quoting Asvesta v. Petroutsas, 580 F.3d 1000, 1014 (9th Cir. 2009)) This court extended comity to the Spanish court’s June 18, 2019 custody decision.

The Court rejected Respondent’s claim that the doctrine of res judicata prevented Petitioner from bringing her Hague petition. This argument flies in the face of the purposes of the Hague Convention. Holder v. Holder, 305 F.3d 854 (9th Cir. 2002). It also rejected Respondent’s contention that the Rooker-Feldman doctrine bared the court from adjudicating Petitioner’s Hague petition. The Rooker-Feldman doctrine does not apply to Hague Convention cases. Silverman v. Silverman, 338 F.3d 886, 895 (8th Cir. 2003); Mozes, 239 F.3d at 1085 n.55. 

The Court rejected the argument that J.H.R. wished to stay in North Carolina with Respondent, that he was “well settled” in the United States, and that it was in his best interest to stay in North Carolina. The court found that the “well settled” defense may not be asserted here. This defense may be asserted only when an “action [is] not commenced within one year of the abduction.” Miller, 240 F.3d at 399. Here, Petitioner filed her Hague petition within one year and thus this defense was inapplicable. Also, a after conducting an in-camera interview with J.H.R., the court found that J.H.R. had not reached an age and degree of maturity such that it was appropriate to consider his opinions as to where he wanted to live, nor did J.H.R. express a preference for one parent over the other. 

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