Saada v Golan, --- F.3d ----, 2019 WL 3242029 (2d Circuit, 2019) [Italy] [Grave risk of harm] [undertakings]

        In Saada v Golan, --- F.3d ----, 2019 WL 3242029 (2d Circuit, 2019) Respondent-Appellant Narkis Aliza Golan (“Ms. Golan”) appealed from an order granting Petitioner-Appellee Isacco Jacky Saada’s (“Mr. Saada”) petition for the return of the parties’ minor child, B.A.S., to Italy. the United States Court of Appeals, agreed with the District Courts habitual residence determination but held that it erred in granting Mr. Saada’s petition because the most important protective measures it imposed were unenforceable and not otherwise accompanied by sufficient guarantees of performance. The District Court’s March 22, 2019 order was v affirmed in part and vacated in part and remanded for further proceedings concerning the availability of alternative ameliorative measures.

  On June 13, 2014, Ms. Golan, a United States citizen then living in New York, and Mr. Saada, an Italian citizen and resident, met at a wedding in Milan, Italy. Approximately two months later, Ms. Golan relocated to Milan and moved in with Mr. Saada. The parties were married on August 18, 2015, and Ms. Golan became pregnant shortly thereafter. The couple’s only child, B.A.S., was born in Milan in June 2016. The couple “fought frequently,” and “Mr. Saada physically, psychologically, emotionally and verbally abused Ms. Golan.” Mr. Saada yelled at Ms. Golan, called her names, slapped her, pushed her, pulled her hair, threw a glass bottle in her direction, and, during a conversation with Ms. Golan’s brother, threatened to kill her. These incidents, many of which occurred in the presence of B.A.S., “were not sporadic or isolated ... but happened repeatedly throughout the course of the parties’ relationship.” Mr. Saada and Ms. Golan continued living together in Milan after B.A.S. was born. They secured for B.A.S. an Italian passport, medical coverage, identification cards, and a certificate of residence, and enrolled B.A.S. in a local daycare. With the exception of several trips abroad, B.A.S. lived continuously in Milan for the first two years of his life. In July 2018, Ms. Golan traveled with B.A.S. to the United States to attend her brother’s wedding. After the wedding, Ms. Golan elected not to return to Italy and moved with B.A.S. to a confidential domestic violence shelter in New York. In Fall 2018, Mr. Saada filed a criminal complaint against Ms. Golan and initiated civil proceedings, including custody proceedings, in Italy. He also commenced this action under the Hague Convention. 

        The District Court first concluded that Italy was B.A.S.’s habitual residence for the purposes of the Hague Convention. The District Court acknowledged that Ms. Golan had repeatedly expressed an intent to return to the United States, and that Mr. Saada was aware of this intent. In the District Court’s view, however, the totality of the circumstances, and, in particular, Ms. Golan’s conduct, “established B.A.S. as a[n] habitual resident of Italy.”  The District Court determined that Ms. Golan had established that repatriating B.A.S. to Italy would expose him to a grave risk of harm. It concluded that exposing B.A.S. to severe and continuing domestic violence of the type documented in this action could have significant adverse effects on his psychological health and development. 

        Nevertheless, the District Court held that a suite of conditions, or “undertakings,” would “sufficiently ameliorate the grave risk of harm to B.A.S.” and granted Mr. Saada’s petition subject to those conditions. The undertakings included, among others, requirements that Mr. Saada (1) give Ms. Golan $30,000 before B.A.S. is returned to Italy, for housing, financial support, and legal fees; (2) stay away from Ms. Golan; and (3) visit B.A.S. only with Ms. Golan’s consent.

The Second Circuit observed that in determining habitual residence, courts in this Circuit “inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared,” considering both “actions” and “declarations.” It has also cautioned that, at bottom, this inquiry “is designed simply to ascertain where a child usually or customarily lives.” It saw no error in the District Court’s conclusion that Italy was B.A.S.’s country of habitual residence. It agreed with the District Court that the parties’ actions demonstrated that Italy, where B.A.S. spent almost the entirety of the first two years of his life, was the country where he “usually or customarily lives.” Accordingly, it affirmed the District Court’s habitual-residence determination.

        Ms. Golan challenged the District Court’s decision to grant Mr. Saada’s petition notwithstanding its determination that repatriating B.A.S. would expose him to a grave risk of harm. The Second Circuit indicated that even where the abducting parent establishes that repatriating his or her child would expose the child to a grave risk of harm, a district court “is not necessarily bound to allow the child to remain with the abducting parent.” In exercising their discretion in such cases, district courts must “take into account any ameliorative measures (by the parents and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with a child’s repatriation.” Insofar as certain of these measures might be undertaken by courts in the country of habitual residence, then “the exercise of comity that is at the heart of the [Hague] Convention” requires us “to place our trust in th[ose] court[s] ... to issue whatever orders may be necessary to safeguard children who come before [them].” However, “reviewing courts are free to enter conditional return orders” but “retain no power to enforce those orders across national borders.” In those instances, in which our courts lack jurisdiction to redress non-compliance, “even the most carefully crafted conditions of return may prove ineffective in protecting a child from risk of harm.” It concluded that  in cases in which a district court has determined that repatriating a child will expose him or her to a grave risk of harm, unenforceable undertakings are generally disfavored, particularly where there is reason to question whether the petitioning parent will comply with the undertakings and there are no other “sufficient guarantees of performance.” The Court found that many of the undertakings the District Court imposed were unenforceable because they need not—or cannot—be executed until after B.A.S. was returned to Italy. This included several conditions that, under the circumstances, were essential to mitigating the grave risk of harm B.A.S. faced, namely, promises by Mr. Saada to stay away from Ms. Golan after she and B.A.S. returned to Italy and to visit B.A.S. only with Ms. Golan’s consent. The District Court’s factual findings provided ample reason to doubt that Mr. Saada would comply with these conditions. Under the circumstances, it was not convinced that these particular undertakings were sufficient to mitigate the undisputed grave risk of harm that B.A.S. faced if returned to Italy. It vacated the District Court’s order insofar as it granted Mr. Saada’s petition subject to the conditions enumerated therein.

        The Court found it appropriate to remand for further proceedings concerning the availability of alternative measures. It directed that on remand, the District Court must determine whether there exist alternative ameliorative measures that are either enforceable by the District Court or, if not directly enforceable, are supported by other sufficient guarantees of performance. In doing so, the District Court may consider, among other things, whether Italian courts will enforce key conditions such as Mr. Saada’s promises to stay away from Ms. Golan and to visit B.A.S. only with Ms. Golan’s consent. It did not think that international comity precluded district courts from ordering, where practicable, that one or both of the parties apply to courts in the country of habitual residence for any available relief that might ameliorate the grave risk of harm to the child. So long as the purpose of such an order is to ascertain the types of protections actually available, and the district court does not condition a child’s return on any particular action by the foreign court, there is little risk that this “practice would smack of coercion of the foreign court.” Here, the District Court has already found that Italian courts are authorized by Italian law to enter “criminal and civil court orders of protection” and “orders of supervised visitation during the pendency of custody proceedings.” Although the Italian courts had not entered any such orders to date, this might be attributable in part to the parties’ failure to apply for relief, in the ongoing custody proceedings or otherwise. It directed that on remand, the District Court may consider whether it is practicable at this stage of the proceedings to require one or both of the parties to do so. The District Court may then take into account any corresponding decision by the Italian courts in determining whether there are sufficient guarantees of performance of protective measures that will mitigate the grave risk of harm B.A.S. faces if repatriated. As an initial matter, the District Court can attempt to revise certain of the undertakings it imposed in a manner that would render them directly enforceable, for example, by requiring Mr. Saada to comply with the condition before B.A.S. is repatriated. In addition, the District Court can use its “broad equitable discretion” to “request [] the aid of the United States Department of State, which can communicate directly with” the government of Italy to ascertain whether it is willing and able to enforce certain protective measures. Finally, the District Court can solicit from the party’s additional evidence concerning whether, and, if so, to what extent, Mr. Saada had undertaken to abide by any of the currently unenforceable conditions. 
 
The Second Circuit summarized its holdings with regard to undertakings as follows: (1) In cases in which a court has determined that repatriating a child will expose him or her to “a grave risk of harm,” unenforceable undertakings are generally disfavored, particularly where there is reason to question whether the petitioning parent will comply with the undertakings and there are no other sufficient guarantees of performance. (2) Because the record before the District Court did not support the conclusion that there exist no protective measures sufficient to ameliorate the grave risk of harm B.A.S. faces if repatriated, remand for further proceedings is appropriate. 32) Where, as here, the safety of a minor is at risk, the District Court, if it deems practicable, may direct one or both of the parties to petition Italian courts for the imposition of any appropriate protective measures. The District Court may take into account any corresponding decision by the Italian courts in determining whether to issue an order of return.

Gutierrez v Sandoval, 2019 WL 3231276 (M.D. Tennessee, 2019)[Mexico] [Age & Maturity Defense] [Petition denied]

In Gutierrez v Sandoval, 2019 WL 3231276 (M.D. Tennessee, 2019) Petitioner Gabriel Alfaro Gutierrez requested that this Court enter an Order directing that the Parties’ minor child, G.A.A.Q., be returned to Mexico. He alleges that the child’s mother, Brenda Janeth Quintino Sandoval, wrongfully removed the child from Mexico sometime between October 27, 2017 and early November 2017. During the course of the trial, the Court took testimony from G.A.A.Q. in chambers, out of the presence of his parents and their attorneys. 

Mr. Gutierrez and Ms. Sandoval married in 2003, and lived in Monterrey, Mexico. Their son, G.A.A.Q., was born in November 2003, and would be sixteen in November 2019. The Parties separated in 2004 and never lived together again. They divorced in 2012. G.A.A.Q.  always lived with Ms. Sandoval. Following the Parties’ separation, by agreement, Mr. Gutierrez had visitation with G.A.A.Q; however, Mr. Gutierrez spent more time with G.A.A.Q. than was actually set forth in the Parties’ agreement. In August 2017, G.A.A.Q. told his father that he did not want to have any more visitation with him. G.A.A.Q. did not like the way that his father asked him questions about Ms. Sandoval’s personal life. Mr. Gutierrez and Mr. Gutierrez’s mother (G.A.A.Q.’s grandmother) also made G.A.A.Q. feel uncomfortable with comments about his weight and the food that he was eating. Ms. Sandoval brought G.A.A.Q. to the United States in November 2017, to live with her, her new husband, and G.A.A.Q.’s half-sibling. After consulting with her Mexican lawyer, Ms. Sandoval was under the impression that she could legally bring G.A.A.Q. to the United States. She did not make any effort to contact Mr. Gutierrez to let him know that she was moving G.A.A.Q. out of the country or to seek his input on the decision. Mr. Gutierrez had no idea where his child was, and went through an extended period, lasting until December 2018, of trying to find G.A.A.Q. Mr. Gutierrez was notified by G.A.A.Q.’s school that his son had been withdrawn from the school. A letter from the school shows the date of withdrawal as October 27, 2017. Mr. Gutierrez desperately searched for G.A.A.Q., and eventually concluded that G.A.A.Q. was in Nashville, Tennessee. He filed his Petition for Return of Minor Child to Petitioner on October 10, 2018. 

The district court found that G.A.A.Q. would be sixteen in November 2019. He attended a local Nashville high school, and recently completed ninth grade with all A’s. He had many friends at school. He got along well with his mother, stepfather, and half-brother, with whom he lived. He did not keep in touch with anyone in Mexico and did not want to return to Mexico.

The Court found that petitioner met his burden to prove a prima facie case of wrongful removal under the Hague Convention and ICARA. The Court found that Ms. Sandoval had not met her burden of proof to establish the well-settled defense or the grave risk of harm defense. 

The Court observed that Article 13 of the Convention gives the Court the discretionary power to refuse return of the child where the child objects and is of sufficient age and maturity that the objection should be taken into account by the Court. The Court must first determine whether the child has sufficient age and maturity, and then evaluate the child’s objection and determine that it is not the result of “brainwashing of the child by the alleged abductor.” 51 FR 10494-01, Hague Int’l Child Abduction Convention, Text and Legal Analysis, III(I)(2)(d); see also Neumann v. Neumann, 310 F. Supp. 3d 823, 838-39 (E.D. Mich. 2018). The explanatory report on the Convention states that “it would be very difficult to accept that a child of, for example, fifteen years of age, should be returned against its will.’” Elisa Pérez-Vera, Explanatory Report: Hague Conference on Private International Law ¶ 30, in 3 Acts and Documents of the Fourteenth Session 426, 433 (1980); see also Neumann, 310 F. Supp. 3d at 839. The Court found that such was the case here. G.A.A.Q. would be 16 in just over four months. The Court spoke with him and took his testimony in camera, out of the presence of either parent or their attorneys. During its interview with G.A.A.Q., the Court found him to be alert, respectful, and intelligent. He exhibited an understanding of the witness oath, which he took, and then testified forthrightly and freely, answering the Court’s questions thoughtfully. Given that G.A.A.Q. was almost 16, and that he exhibited appropriate maturity in his interview and testimony, the Court found that he had the age and maturity required to have his views on the subject of return taken into account. G.A.A.Q. was very clear that he objected to returning to Mexico. He testified specifically as to aspects of return to Mexico that he objected to. He testified that he was no longer in touch with anyone in Mexico and that he would have to start a whole new life there. He further expressed that the thought of going with his father was very stressful, as he has come to dislike spending time with Mr. Gutierrez for specific reasons, including perceived criticisms of his appearance and Mr. Gutierrez’s practice of asking him questions about Ms. Sandoval’s personal life. He also felt that life was Mexico was dangerous. 
The Court also found that G.A.A.Q.’s testimony was not unduly influenced by Ms. Sandoval. The Court found that this defense has been established by a preponderance of the evidence. The establishment of the child maturity or child objection defense did not end the Court’s inquiry. A court retains the discretion to return a child, despite the establishment of an affirmative defense, if return would further the aims of the Convention. Friedrich II, 78 F.3d at 1067. In this case, the further required review did not alter the result. 

Capalungan v Lee, 2019 WL 3072139 (S.D. Ohio, 2019)[Australia] [Habitual Residence] [Petition denied]

In Capalungan v Lee, 2019 WL 3072139 (S.D. Ohio, 2019) on April 26, 2019, the United States Magistrate Judge issued a Report and Recommendation recommending that Petitioner’s Petition for the Return of Child to Australia be denied. The matter was before the Court on Petitioner’s Objections to the Report and Recommendation. The Court considered the matter de novo and denied the petition for return. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).

Petitioner, Goldi Y. Capalungan, and Respondent, Emmanuel R. Lee, were the biological parents of EZL who was born on August 31, 2012 in the Philippines. At that time, Respondent was living in the United States. Respondent had limited contact with EZL in the years immediately following EZL’s birth. The parties were never married and did not have any custody agreement. In January 2016, Petitioner and EZL moved to Australia. Respondent had no contact with EZL when he lived in Australia. In January 2017, Petitioner obtained new employment in Australia and she would have to participate in an extended training program. The parties agreed that EZL could visit Respondent in the United States during Petitioner’s training period. The parties expected the training to last about six months, the same length of time as EZL’s tourist visa. Petitioner and EZL traveled to the United States in late February 2017. Petitioner stayed with Respondent for approximately two weeks, but then returned to Australia for her training. After Petitioner’s departure in March 2017, EZL adjusted well to life in the United States by spending time with family, attending church and school. Shortly after Petitioner returned to Australia, her relationship with Respondent began to deteriorate. Petitioner testified that the parties’ original plan was for EZL to stay in the United States while she completed her training in Australia. Petitioner further testified that the agreement changed in that EZL would be returned after Petitioner’s training was complete and after EZL was granted permanent residency in the United States, which she believed would be completed before she was done with her six-month training. Although Respondent conceded that “initially” EZL “was to be returned to Australia” in August 2017, at another point; he insisted that the agreement had always been that EZL would reside in the United States until he received citizenship here. Despite EZL obtaining his United States citizenship, Respondent never returned him to Australia as agreed. 

To enroll EZL in school, the parties executed a Shared Parenting Plan that provided that both parties were “residential parents and legal custodians” of EZL and that Respondent was “designated the residential parent” of EZL “for school purposes.” In December 2017, Petitioner traveled to the United States to take EZL back to Australia. Respondent refused to give her EZL’s passport, and she was unable to bring EZL home with her. Before Petitioner returned to Australia, Respondent agreed to return EZL when his U.S. passport was issued. On January 8, 2018, shortly after Petitioner returned to Australia, EZL received his permanent resident card. Towards the end of January, Respondent informed Petitioner that he would not return EZL to Australia when EZL’s passport was issued. Petitioner contacted the State Department’s Office of Children’s Issues to enroll in the Children’s Passport Issuance Alert Program (“CPIAP”) and put a hold on EZL’s United States passport. In response, Respondent burned EZL’s expired Filipino passport and sent Petitioner photos of the burnt passport. Petitioner subsequently withdrew EZL from CPIAP, which allowed his application for a passport to be processed.  

EZL’s United States passport was issued on February 16, 2018. Respondent repeatedly refused to return EZL to Australia. Although Respondent had previously represented that the parties’ Shared Parenting Plan would only be used to enroll EZL in school, to justify his refusal to return EZL, he insisted that it gave him custody of EZL and therefore he was under no obligation to return EZL to Petitioner as the parties had agreed. On July 13, 2018, the United States government issued EZL’s certificate of citizenship, which indicated that EZL became a citizen of the United States on January 6, 2018. Respondent did not return EZL to Australia.  
Petitioner filed the Petition before the Court on October 23, 2018. 


The District Court observed that there was no objection regarding the Magistrate Judge’s findings that Respondent refused to return EZL to Australia based on the agreement of the parties. Nor was there any objection to the finding that the alleged wrongful retention began in late December 2017. The date of the wrongful retention is important because it “is used to fix the time period available for assessing what country is properly the child’s habitual residence.” McKie v. Jude, No. CIV.A. 10-103-DLB, 2011 WL 53058, at *6 (E.D. Ky. Jan. 7, 2011); see also Panteleris v. Panteleris, 601 F. App’x 345, 349 (6th Cir. 2015) The Magistrate Judge then determined based on the fact that EZL was five years old in December 2017, that the Sixth Circuit instructs courts to apply the acclimatization standard. Petitioner objected to this decision and argued that the Magistrate Judge should have applied the shared parenting intent standard to determine EZL’s habitual residence at the time of the wrongful removal.

The district court noted that the Sixth Circuit in Ahmed v. Ahmed, 867 F.3d 682, 687 (6th Cir. 2017), offers two approaches to identify a child’s habitual residence. The primary approach looks to the place in which the child has become “acclimatized.” The second approach, a back-up inquiry for children too young or too disabled to become acclimatized, looks to “shared parental intent.” Id. at 689; see also Robert v. Tesson, 507 F.3d 981, 992 n.4 (6th Cir. 2007).

Petitioner asserted in her objections that the acclimatization standard should not be the only standard applied, rather the Court should also apply the shared parental intent standard. In Ahmed, the Sixth Circuit emphasized the importance of applying the shared parental intent of the parties in cases involving young children who lack the cognizance to acclimate to any residence. The Court stated that “[t]his is not a bright-line rule, and the determination of when the acclimatization standard is impracticable must largely be made by the lower courts, which are best positioned to discern the unique facts and circumstances of each case.” Ahmed, 867 F.3d at 690. The Court was sympathetic to Petitioner in that the record showed that the intent of the parties was to return EZL to Australia. However, the Court agreed with the analysis set forth in detail in the Report and Recommendation that courts in the Sixth Circuit generally apply the shared parental intent standard to children who are two years old or younger at the time of the wrongful retention. 

The record was replete with instances in which Respondent was evasive and misleading.2 By February 2018, Respondent no longer hiding the fact that he had no intention of returning EZL to Australia stated, “[y]ou should have realized [sic] [EZL] is here and I have the edge...” The Magistrate Judge aptly acknowledged the consequences of Respondent’s behavior: “[b]y refusing to return EZL to Australia consistent with the parties’ agreement, Respondent manufactured a favorable status quo that he would undoubtedly rely on in any future custody proceedings between the parties. But that status quo was contrary to the parties’ shared intent, which the acclimatization standard does not permit courts to consider in resolving the habitual residence question in cases like the one before the Court here.”  The Court found that the Sixth Circuit law instructs this Court to apply the acclimatization standard and therefore the Court agreed with the Magistrate Judge’s conclusion that the acclimatization standard had to be applied in this case.

Petitioner objected to the Magistrate Judge’s recommendation that EZL’s habitual residence had changed from Australia to the United States. Petitioner’s primary argument was that Respondent failed to comply with the parties’ agreement to return EZL to Australia. The evidence supported Petitioner’s contention that EZL’s stay was only intended to be temporary in nature and the parties agreed he would be returned to Australia. However, the appropriate question as set forth in the Report and Recommendation was “whether in late December 2017, EZL had been physically present in the United States for an amount of time sufficient for acclimatization and whether the United States had a degree of settled purpose from his perspective.” In the ten months that EZL had been in the United States, he attended school, church, played on a basketball team, and participated in activities with family and friends. The court pointed out that ten months is a considerable amount of time to form bonds with family and friends considering he was only five years old. Relying on the testimony and Sixth Circuit precedent, the Magistrate Judge correctly determined that the United States was EZL’s habitual residence in late-December 2017. (citing Jenkins, 569 F.3d at 556-57 (holding that a six-month stay in a new country sufficed to create a new habitual residence, in light of continued schooling and other regular activities in the new country); Robert, 507 F.3d at 997 (holding that a ten-month stay in one country with sustained schooling and family excursions sufficed to create a new habitual residence, but that a three-week stay in another country did not)). Accordingly, the Court agreed with the findings set forth in the Magistrate Judge’s Report and Recommendation that Petitioner had not met her burden to demonstrate by a preponderance of the evidence that Australia was EZL’s habitual residence in late December 2017.