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Sunday, January 10, 2021

Hague Convention District Court Cases decided during 2020

Adkins, v Adkins, 2020 WL 6508616 (U.S. Dist. Ct., N.D. California, 2020)Filed  11/05/2020
[Switzerland] [Necessary Costs and expenses] [Granted requested amount of fees for US attorneys and travel costs to Switzerland][Fees denied for Swiss attorneys]

Ajami v Solano, 2020 WL 996813 (U.S. Dist. Ct., M.D. Tennessee, Nashville Division, 2020) 02/28/20
[Venezuela] [Petition granted] [Grave risk of harm defense not established]

Avendano v  Blanco Balza, 2020 WL 897686 (U.S. Dist. Ct., D. Mass, 2020) Filed 02/25/2020
[Venezuela] [Petition denied] [Wishes of child defense]

Babcock, v Babcock, 2020 WL 7020293 (U.S. Dist. Ct., S.D. Iowa, Eastern Division, 2020). Filed 11/30/2020
[Canada] [Petition granted] [Telephonic hearing] [Habitual residence] Defenses not established]

Barron,  v Kendall, 2020 WL 2521915 (U.S. Dist. Ct., S.D. California, 2020).Filed 05/18/2020
[Mexico][Petition dismissed[ Younger Abstention] Colorado River]

Beard v  Beard,  2020 WL 4548253 (U.S. Dist. Ct., S.D. Iowa, Central Division, 2020). Filed 06/19/2020
[Canada] [Motion for attorneys fees of $14,617 and costs of $597.00 granted]

Bejarno v Jimenez,  2020 WL 4188212 (U.S. Dist. Ct., D. New Jersey, 2020) Filed 07/21/2020
[Honduras][Petition denied] [Now settled defense established]

Blancarte  v Santamaria,  2020 WL 38932 (U.S. Dist. Ct., E.D. Michigan, Southern Division, 2020). 01/03/2020
[Mexico] [Petition granted][Habitual residence] [Now settled not established][Grave risk of harm not established] [Undertakings ordered]

Dorian O. Chambers,  v Leopold S.P. Russell,  2020 WL 5044036 (U.S. Dist. Ct., M.D. North Carolina, 2020).Filed 08/26/2020
[Jamaica] [Petition granted][Habitual residence] [Now settled defense not established][Wishes of child defense not established] [Grave risk of harm defense not established]

Gil Colon, v Mejia Montufar,  2020 WL 3634021, (U.S. Dist. Ct., S.D. Florida, 2020). Signed 07/02/2020
[Guatemala] [Petition denied] [Grave risk of harm not established] [Wishes of the child defense established]

Cordoba, v Mullins,  2020 WL 3429771 (U.S. Dist. Ct., N.D. Illinois, Eastern Division, 2020). 06/23/2020
[Ecuador][Abstention] Motion for Stay granted under Colorado river]

Da Silva and Biagioli, v Vieira,  2020 WL 5652710 (U.S. Dist. Ct., M.D. Florida, 2020) 09/23/2020
[Brazil] [Petition granted] {Habitual residence] [Grave risk of harm not established] [Now settled not established]

Forcelli, v Smith,  2020 WL 5015838 (U.S. Dist. Ct., D. Minnesota, 2020) Filed 08/25/2020
[Germany] [Petition granted][Habitual residence][None of the 4 defenses were established]

Gallegos, v Soto, 2020 WL 2086554 (U.S. Dist. Ct., W.D. Texas, Austin Division, 2020) Filed 04/30/2020
[Mexico] [Petition granted] District Court stayed return due to Covid19] Grave risk of harm not established] [Violation of fundamental principles not established]

Garcia, v Reynosa,  2020 WL 777247 (U.S. Dist. Ct., W.D. Washington, 2020) 02/18/2020
[Guatemala] [Petition granted] [Habitual residence] [Grave risk of harm not established]

Guerra, v Rodas,  2020 WL 2858534.(U.S. Dist. Ct., W.D. Oklahoma, 2020) Filed 06/02/2020

[Guatemala] [Petition granted] [Habitual Residence][ Grave risk of harm not established] [Consent not established]

Hulsh v  Hulsh,  2020 WL 6381362 (U.S. Dist. Ct., N.D. Illinois, Eastern Division, 2020) 10/30/2020
[Necessary expenses][Referred to Magistrate Judge

J.C.C. v L.C., 2020 WL 6375789 (U.S. Dist. Ct., D. New Jersey, 2020) Filed 10/30/2020
[El Salvador] [Petition granted][Habitual residence] {Grave risk of harm not established]

Joya v Gonzales, 2020 WL 1181846 (U.S. Dist. Ct., E.D. Louisiana, 2020). 03/12/2020
[Honduras] [Petition granted] [Grave risk of harm defense not established]

Leon, v Ruiz,  2020 WL 1227312 (U.S. Dist. Ct., W.D. Texas, Midland-Odessa Division, 2020). Filed 03/13/2020
[Mexico] [Petition granted] [Habitual residence]

Lopez v Bamaca,  2020 WL 1915260 (U.S. Dist. Ct., D. Delaware, 2020) Filed 04/20/2020
[Mexico][Petition granted] [Failure to exercise custodial rights not established]

Monroy, v De Mendoza,  2019 WL 7630631 (U.S. Dist. Ct., N.D. Texas, Dallas Division, 2020). Filed 09/20/2019
[El Salvador] [Report Recommended Petition be granted] [Habitual residence] [Grave risk of harm defense not established

Moreno, v Zank, 2020 WL 1950834 (U.S. Dist. Ct., W.D. Michigan, Southern Division, 2020). Filed 04/23/2020
[Ecuador] [On remand] [Now settled filing within 1 year not established]

Moreno, v Zank, 2020 WL 4583755 (U.S. Dist. Ct., W.D. Michigan, Southern Division, 2020). Filed 05/21/2020 
[Ecuador] [On remand] [ Motion for Summary Judgment denied]

Oraelosi, v Nwanji,  2008 WL 11516425 (U.S. Dist. Ct., N.D. Illinois, Eastern Division, 2020). Filed: 01/24/2008
[United Kingdom] [Summary judgment denied]

Pawananun, v  Pettit, 2020 WL 7585621( U.S. Dist. Ct., N.D. Ohio, Eastern Division, 2020).12/22/2020
[Thailand] {Petition granted][Habitual residence][Grave risk of harm not established]

Pawananun, v Pettit,  2020 WL 4462255 (U.S. Dist. Ct., N.D. Ohio, Eastern Division, 2020). 08/04/2020
[Thailand] [Comity] [Motion to strike defense denied]

Radu v  Shon,  2020 WL 5576742 ( U.S. Dist. Ct., D. Arizona, 2020). 09/17/2020
[Germany][Petition granted] [Habitual residence] [Grave risk of harm not established

Radu v  Shon,  2020 WL 6741538 (U.S. Dist. Ct., D. Arizona, 2020) .11/17/2020
[Germany] [Petition granted] [Motion to stay return order pending appeal granted]

Rodriguez v  Fernandez,  2020 WL 6566036, (U.S. Dist. Ct., M.D. Tennessee, Nashville Division, 2020).11/09/2020
[Mexico] [Petition denied] [Habitual residence][Plaintiff failed to meet burden of proof]

Sacchi v Dervishi,  2020 WL 3618957 (U.S. Dist. Ct., N.D. California, 2020). 07/02/2020
[Italy] [Petition granted]{Habitual residence] [Exercise of rights of custody] [ Consent or Acquiescence not established]

Schurmann, v  Carr, Tedrick, and  Anqui-Tedrick, 2020 WL 1236916, Filed 02/24/2020
[Spain][Report & Recommendation] [ Motion to dismiss granted] 

Schwartz, v  Hinnendael,  2020 WL 6111634 (U.S. Dist. Ct., E.D. Wisconsin, 2020). Filed 10/16/2020
[Mexico] [Petition denied] [Failure to prove habitual residence in Mexico] [Grave risk of harm exception also applied]

Stone, v   Stone,  2020 WL 491194 (U.S. Dist. Ct., D. New Jersey, 2020) . Filed 01/30/2020
[Israel] [Petition denied] [Necessary Costs and expenses] [Respondents motion for attorneys fees denied as not authorized by ICARA]

Wan v Debolt, 2020 WL 6274992, (U.S. Dist. Ct., C.D. Illinois, Eastern Division, 2020)10/26/20
[Hong Kong] [Motion to dismiss denied] [Hong Kong not removed from Hague convention]

Zaoral v Meza, 2020 WL 5036521 (U.S. Dist. Ct., S.D. Texas, Houston Division, 2020) Filed 08/26/2020
[Venezuela][Petition granted][ Habitual residence] [Defenses not established]



Friday, January 1, 2021

Grano v Martin, 821 Fed.Appx. 26 (2d Cir.,2020) [Spain] [Habitual Residence] [Grave Risk of Harm] [Undertakings]


  In Grano v Martin, 821 Fed.Appx. 26 (2d Cir.,2020) (summary order)( not selected for publication) Respondent-appellant Katherine Patricia Martin appealed from a judgment of the district court, granting the petition filed by petitioner-appellee Sergi Hernandez Grano for the return of their son to Spain. Martin, the Child’s mother and an American citizen, had taken the Child from Spain to the United States without the consent of Grano, the Child’s father and a Spanish citizen. 

  On appeal, Martin argued principally that the district court erred in: (1) finding that the Child’s habitual residence was Spain, (2) concluding that the “grave risk” of harm exception did not apply; and (3) failing to require “undertakings” as a condition of the Child’s return to Spain. 

  The Second Circuit observed that under the Convention, “a child wrongfully removed from [his] country of ‘habitual residence’ ordinarily must be returned to that country,” as the interests of the child are usually best served when custody decisions are made in the courts of the home country. Monasky v. Taglieri, ––– U.S. ––––, 140 S. Ct. 719, 723, 206 L.Ed.2d 9 (2020). A parent can invoke the protection of the Convention only if the child is a “habitual resident” of a State signatory to the Convention and has been removed to or retained in a different State that is also a signatory of the Convention. See Gitter v. Gitter, 396 F.3d 124, 130 (2d Cir. 2005). The burden of proof is on the petitioner to show by a preponderance of the evidence that the child was the habitual resident of a State and has been wrongfully removed to or retained in a different State. Id. at 131; see also 22 U.S.C. § 9003(e)(1)(A). Under Monasky, “a child’s habitual residence depends on the totality of the circumstances specific to the case.” 140 S. Ct. at 723. “An actual agreement between the parents is not necessary to establish a [child’s] habitual residence.”  Some factors for courts to consider in determining “habitual residence” include where a child has lived, the length of time there, acclimatization, and the “purposes and intentions of the parents.” Physical presence in a country is not a dispositive indicator of an infant’s habitual residence. 

  The Court pointed out that it reviews a “first-instance habitual-residence determination ... for clear error.” While a child’s habitual residence presents a mixed question of law and fact, “[t]he habitual-residence determination ... presents a task for factfinding courts, not appellate courts, and should be judged on appeal by a clear-error review standard deferential to the factfinding court.” Here, after carefully considering the evidence and weighing the credibility of the witnesses, the district court found that the Child’s habitual residence was Spain. There was ample support in the record for this conclusion. For example, when Martin and the Child flew to Spain on October 3, 2017, they did so on a one-way ticket, and Martin did not retain any bank accounts in the United States. Martin and Grano engaged in activities in Spain consistent with being a couple intending to raise their child in that country, including finding a school for the Child, buying a house together, and making decisions about the design and furnishing of the house. In April 2018, while Martin was on a visit to New York with the Child, she registered him with the Spanish Consulate as a Spanish citizen. Later that month, Martin returned to Spain with the Child, and in May she registered him as a resident of their town in Spain. In July 2018, Martin and Grano signed the deed to a house in Spain, and they began to live there as a family. On these and other facts in the record, and applying the deferential standard of review mandated by Monasky, it concluded that the district court did not clearly err in finding that the totality of the circumstances showed that the Child’s habitual residence was in Spain.

 

The Court further observed even if the removal of a child is wrongful, under the Convention the  relevant exception in this case is the “grave risk” exception: return will not be required if it “would place [the child] at a ‘grave risk’ of harm or otherwise in ‘an intolerable situation.’” Monasky, 140 S. Ct. at 723; see also Convention, art. 13(b) (one exception is if “there is a grave risk that [the child’s return] would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”). The grave risk exception is an affirmative defense, and the burden is on the respondent to prove the defense by clear and convincing evidence, though the underlying facts must only be proven by a preponderance of the evidence. See 22 U.S.C. § 9003(e)(2)(A). A grave risk of harm occurs where the “petitioning parent had actually abused, threatened to abuse, or inspired fear in the children in question.” Ermini, 758 F.3d at 164 (quoting Souratgar v. Lee, 720 F.3d 96, 105 (2d Cir. 2013)). Spousal violence can also create a grave risk of harm to the child, particularly if the violence occurs in front of the child. Id. This Court has held, however, that spousal abuse is “only relevant under Article 13(b) if it seriously endangers the child.” Souratgar, 720 F.3d at 103-104. In considering the parties’ arguments with respect to the grave risk exception, it reviews the district court’s factual findings for clear error, and its application of the Convention to those findings de novo. Ermini, 758 F.3d at 160. There was support in the record for the factual findings, and it was not persuaded that the district court erred in declining to invoke the grave risk exception.

 

The Court noted that where a court orders the return of a child under the Convention to his country of habitual residence, it may impose an “undertaking” to ensure that the child is not harmed upon his return. The parties disputed whether a district court has jurisdiction to order undertakings when it declines to invoke the grave risk exception. The Court held that it need not resolve the issue, for even assuming the district court had jurisdiction to order undertakings, it did not abuse its discretion in declining to do so, where, as here, there was no grave risk of harm to the Child upon his return to Spain. 


Rubio v Castro, --- Fed.Appx. ----, 2020 WL 2311897 (2d Cir.,2020)[Ecuador] [grave risk of harm][ ameliorative measures insufficient] [Petition denied]

 

In Rubio v Castro, --- Fed.Appx. ----, 2020 WL 2311897 (2d Cir.,2020) (Not selected for publication)  Respondent-Appellant Olga Katerine Veintimilla Castro (“Castro”) appealed from the memorandum decision and order of the District Court granting the petition of Petitioner-Appellee Segundo Melchor Valles Rubio (“Valles”) for the repatriation of his and Castro’s son, B.V., to Ecuador. 

The Second Circuit reviewed the district court’s interpretation of the Convention de novo and its factual determinations for clear error.” Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013). “

The Court observed that as is relevant here, a respondent can contest repatriation by establishing by clear and convincing evidence, 22 U.S.C. § 9003(e)(2)(A), that “there is a grave risk” that repatriation of the child “would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation,” Hague Convention, art. 13(b). Even if the repatriation poses a grave risk of harm, however, “the district court is not necessarily bound to allow the child to remain with the abducting parent.” Blondin v. Dubois, 189 F.3d 240, 246 n.4 (2d Cir. 1999). Rather, a “federal district court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention.” It has  explained that “[i]n cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b), it must examine the full range of options that might make possible the safe return of a child to the home country.” Blondin v. Dubois, 238 F.3d 153, 163 n.11 (2d Cir. 2001); see also Saada v. Golan, 930 F.3d 533, 539 (2d Cir. 2019) (explaining that the district court 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.” 

 

The district court concluded that, though evidence of Valles’s physical and psychological abuse of B.V. established that B.V. faced a grave risk of harm if returned to Valles’s custody, ameliorative measures such as litigation in Ecuadorian courts were sufficient to protect B.V., and it therefore granted Valles’s petition for B.V.’s return. The Court rejected Valles argument that Castro failed to meet her burden to show a grave risk of harm to B.V.. The district court found clear and convincing evidence of physical and emotional abuse, including, inter alia, four beatings with a belt, one beating with a stick, frequent verbal abuse, using B.V. as cover to transport firearms in Valles’s car, and handing B.V. a loaded firearm while making threatening comments. Nevertheless, in light of the protective measures set out in the JSU and the record of Castro’s successful litigation in Ecuadorian courts, it could not conclude that the district court abused its discretion in ordering B.V.’s repatriation. The JSU provides for weekly visits between B.V. and Castro’s family, daily conversations by video or telephone between Castro and B.V., and restrictions on B.V.’s access to firearms, including prohibitions on the presence of any firearms where B.V. resides. Castro failed to establish on appeal that these measures were  inadequate to protect B.V., nor had she shown why she could not avail herself of the Ecuadorian courts or the equitable power of the district court to enforce ameliorative measures for the protection of B.V.

  The Second Circuit agreed with Castro, however, that the district court too quickly discounted her argument that she would not return to Ecuador with B.V., and that the efficacy of any protective measures would need to be assessed in light of her absence. This Court has instructed that “[i]n cases of serious abuse, before a court may deny repatriation on the ground that a grave risk of harm exists under Article 13(b) [of the Hague Convention], it must examine the full range of options that might make possible the safe return of a child to the home country.” Blondin, 238 F.3d at 163 n.11. Where repatriation would return a child to the sole physical custody of their abuser, a district court does not properly weigh the safety of the child if it fails to examine the full range of ameliorative measures, including those that are enforceable when the respondent parent has chosen not to return. Here, however, the district court did not simply order repatriation without any ameliorative measures. Rather, the district court ordered the parties to negotiate the terms of the repatriation, and report back to the court on the terms on which they had agreed. In response to that order, the parties filed the JSU, providing ameliorative measures for B.V.’s repatriation to Valles’s custody in Ecuador. Castro  failed to show that these measures or the protection of the Ecuadorian courts were inadequate, even if she remained in the United States; nor did she petition the district court to amend the terms of the JSU. Accordingly, even if the district court failed to specifically examine the enforceability of ameliorative measures in light of Castro’s decision not to return to Ecuador, it could not conclude that the ameliorative measures currently in place were insufficient to mitigate the risk of harm to B.V., such that B.V.’s repatriation was an abuse of discretion.

 


Saada v Golan, 2020 WL 6303397 (2d Cir, 2020) [Italy][Grave risk of harm][ ameliorative measures] [Petition granted]


In Saada v Golan, 2020 WL 6303397 (2d Cir, 2020) ( not selected for publication) Respondent-Appellant Narkis Aliza Golan appealed the district court’s order granting the petition of Isacco Jacky Saada for the return of their son, B.A.S., to Italy. The district court granted Saada’s petition after determining that there were adequate ameliorative measures that remedied any grave risk of harm to B.A.S. upon his return to Italy. In Golan’s earlier appeal, the court  ruled that the district court’s initial order failed to adequately remedy the grave risk of harm to B.A.S. that the court found would result from B.A.S.’s return to Italy. Saada v. Golan, 930 F.3d 533, 540 (2d Cir. 2019) (Saada II). It remanded the case to allow the district court to determine if other ameliorative measures were available to remedy that risk of harm and could be “either enforceable by the District Court or ... supported by other sufficient guarantees of performance.” On remand, the district court sought out such measures, found the measures to be satisfactory, and granted Saada’s petition. Finding no clear error in the district court’s factual determinations, and concluding that those facts support its judgment, the Second Circuit affirmed.

 

Isacco Saada and Narkis Golan wed in Milan in August 2015. They had a son, B.A.S., the next June and lived in Milan for the first two years of his life. In July 2018, Golan traveled with B.A.S. to the United States for a wedding, and they have remained in the United States since that time. The district court determined that Italy was B.A.S.’s country of habitual residence for the purposes of the Hague Convention. It affirmed in the initial appeal. Saada’s relationship with Golan was abusive almost from its inception. The district court found that Saada would yell, slap, hit, and push Golan. He would call her names and pull her hair. He once threw a glass bottle at her and also threatened to kill her. This abuse often occurred in B.A.S.’s presence. The district found, based on expert testimony, that Saada’s abuse of Golan had and could continue to have severe effects on B.A.S.’s psychological health. The district court noted that Saada, at that point, had not demonstrated an ability to change his behavior or to control his anger. . As a result, the district court concluded that returning B.A.S. to Italy would subject him to a grave risk of psychological harm, and therefore the Hague Convention did not require that the district court order B.A.S.’s return. That conclusion, however, did not end the analysis. Circuit precedent required the district court to determine if there were any ameliorative measures, or “undertakings,” it could impose on Saada that would eliminate the grave risk of harm to B.A.S. and allow the court to return B.A.S. back to Italy. (citing Blondin v. Dubois, 189 F.3d 240, 248 (2d Cir. 1999) (Blondin I)). The court decided that it could mitigate the grave risk by ordering Saada, inter alia, to pay Golan $30,000, to stay away from her in Italy, and to visit B.A.S. only with Golan’s consent. These measures were vacated on appeal as inadequate. Saada II, 930 F.3d at 540. The Court  ruled that to eliminate a grave risk of harm, the ameliorative measures must be either enforceable by the district court or supported by other sufficient guarantees of performance. Because the district court could not enforce its instructions regarding Saada’s distance from Golan and visits with B.A.S. once the parties were in Italy—and there were no other guarantees of performance—the district court’s order did not adequately ameliorate the grave risk of harm to B.A.S. It  remanded the case for the district court to determine if any other enforceable or sufficiently guaranteed ameliorative measures were available. It invited the district court to consider whether Italian courts could issue orders that prohibited Saada from approaching Golan or visiting B.A.S. without her consent. On remand, the district court communicated with Italian authorities to determine whether they could issue a protective order requiring Saada to stay away from Golan and to attend therapy. The district court then instructed the parties to petition the Italian courts for such an order. The parties complied. An Italian court entered an order requiring, inter alia, that (1) Saada not approach Golan, her place of work or residence, or B.A.S.’s school; (2) B.A.S. be entrusted to Italian social services and placed with Golan for residence; (3) Saada visit B.A.S. only in a neutral space under observation by Italian social services; and (4) Italian social services evaluate Saada and initiate psychological counseling for him.  This protective order will run for one year from when Golan and B.A.S. arrive in Italy and is renewable. In light of these developments, the district court granted Saada’s petition to return B.A.S. to Italy. Saada v. Golan, No. 118-CV-5292, 2020 WL 2128867, at *6 (E.D.N.Y. May 5, 2020) (Saada III). The district court noted that Saada had complied with previous social service investigations in Italy and that he had he abided by all conditions of his supervised visits with B.A.S. in the United States. Combined with the consequences Saada would face for violating the Italian protective order, the district court concluded that these findings provided it with sufficient confidence that Saada would comply with that order. Additionally, the district court indicated that the psychological counseling mandated by the Italian court could reduce Saada’s abusive tendencies. The district court also ordered Saada to pay Golan $150,000 to cover her and B.A.S.’s expenses upon their return to Italy. Taken together, the district court concluded, these measures ameliorated the “grave risk of harm to B.A.S.” that could result from “exposure to violence between” Saada and Golan. In making its decision, the court also noted the absence of “evidence in the record that [Saada] was abusive to B.A.S. or that B.A.S. would be unsafe with [Saada].” 

 

The Second Circuit employed a clear error standard to assess the district court’s findings that Saada would comply with the Italian court order and that the $150,000 payment to Golan would meet her and B.A.S.’s needs until a custody arrangement was concluded. It then determined de novo if, given those conclusions, the protective measures adequately ameliorate the “grave risk of harm” to B.A.S..

 

The Court observed that a district court that finds a grave risk of harm “must examine the full range of options that might make possible the safe return of a child” before denying repatriation. Blondin II, 238 F.3d at 163 n.11. This rule “honor[s] the important treaty commitment to allow custodial determinations to be made—if at all possible—by the court of the child’s home country.” However, a district court may rely only on “ameliorative measures that are either enforceable by [it] or ... supported by other sufficient guarantees of performance.” Saada II, 930 F.3d at 541. In this case, the district court found that “exposure to violence” perpetuated by Saada against Golan posed a “grave risk of harm to B.A.S.” Saada III, 2020 WL 2128867, at *2.1 After taking steps to ensure that a protective order from the Italian courts would be in place upon the return of B.A.S. to Italy, however, the district court subsequently found that this Italian protective order coupled with a $150,000 payment from Saada to Golan ameliorated that risk. Id. at *2-6. These measures, if effective, will ensure that Saada and Golan are not in the same place.2 This separation, in turn, protects B.A.S. from any trauma that would result from abuse that Saada might perpetrate against Golan if they were together, and therefore ameliorates the grave risk of harm to B.A.S. *4 These measures are “either enforceable by the District Court or ... supported by other sufficient guarantees of performance.” Saada II, 930 F.3d at 541. The district court can enforce its order that Saada must make the $150,000 payment before B.A.S. is repatriated. And the existing Italian protective order and ongoing involvement of the Italian courts with this case provides sufficient assurance that Saada will not approach Golan in Italy. See id. at 541 n.33 (“In most cases, the international comity norms underlying the Hague Convention require courts in the United States to assume that an order by a foreign court imposing protective measures will guarantee performance of those measures.”).

 

Golan argued that this case presents a circumstance in which “even a foreign court order might not suffice,” because Saada will not comply with the Italian protective order. Given the record it did not have a “definite and firm conviction that a mistake has been committed” by the district court. Souratgar, 720 F.3d at 103. Saada has shown an ability to follow rules in related contexts and knows the Italian court will police his activities and punish him for violations. The district court, therefore, did not clearly err in determining that Saada will likely comply with the Italian protective order. In light of this finding, the district court correctly concluded that there existed sufficiently guaranteed ameliorative measures that would remedy the grave risk of harm to B.A.S. upon his return to Italy. It therefore properly granted Saada’s petition.


In a footnote the Court pointed out that  ‘[d]enying summary orders precedential effect does not mean that the court considers itself free to rule differently in similar cases.’ ” United States v. Payne, 591 F.3d 46, 58 (2d Cir. 2010) (quoting Order dated June 26, 2007, adopting 2d Cir. Local R. 32.1). 


Saada v Golan, 2020 WL 6303397 (2d Cir, 2020) [Italy] [grave risk of harm] [remanded to allow district court to determine if other ameliorative measures were available]


    In Saada v Golan, 2020 WL 6303397 (2d Cir, 2020) ( not selected for publication) Respondent-Appellant Narkis Aliza Golan appealed the district court’s order granting the petition of Isacco Jacky Saada for the return of their son, B.A.S., to Italy. The district court granted Saada’s petition after determining that there were adequate ameliorative measures that remedied any grave risk of harm to B.A.S. upon his return to Italy. In Golan’s earlier appeal, the court  ruled that the district court’s initial order failed to adequately remedy the grave risk of harm to B.A.S. that the court found would result from B.A.S.’s return to Italy. Saada v. Golan, 930 F.3d 533, 540 (2d Cir. 2019) (Saada II). It remanded the case to allow the district court to determine if other ameliorative measures were available to remedy that risk of harm and could be “either enforceable by the District Court or ... supported by other sufficient guarantees of performance.” On remand, the district court sought out such measures, found the measures to be satisfactory, and granted Saada’s petition. Finding no clear error in the district court’s factual determinations, and concluding that those facts support its judgment, the Second Circuit affirmed.

 

Isacco Saada and Narkis Golan wed in Milan in August 2015. They had a son, B.A.S., the next June and lived in Milan for the first two years of his life. In July 2018, Golan traveled with B.A.S. to the United States for a wedding, and they have remained in the United States since that time. The district court determined that Italy was B.A.S.’s country of habitual residence for the purposes of the Hague Convention. It affirmed in the initial appeal. Saada’s relationship with Golan was abusive almost from its inception. The district court found that Saada would yell, slap, hit, and push Golan. He would call her names and pull her hair. He once threw a glass bottle at her and also threatened to kill her. This abuse often occurred in B.A.S.’s presence. The district found, based on expert testimony, that Saada’s abuse of Golan had and could continue to have severe effects on B.A.S.’s psychological health. The district court noted that Saada, at that point, had not demonstrated an ability to change his behavior or to control his anger. . As a result, the district court concluded that returning B.A.S. to Italy would subject him to a grave risk of psychological harm, and therefore the Hague Convention did not require that the district court order B.A.S.’s return. That conclusion, however, did not end the analysis. Circuit precedent required the district court to determine if there were any ameliorative measures, or “undertakings,” it could impose on Saada that would eliminate the grave risk of harm to B.A.S. and allow the court to return B.A.S. back to Italy. (citing Blondin v. Dubois, 189 F.3d 240, 248 (2d Cir. 1999) (Blondin I)). The court decided that it could mitigate the grave risk by ordering Saada, inter alia, to pay Golan $30,000, to stay away from her in Italy, and to visit B.A.S. only with Golan’s consent. These measures were vacated on appeal as inadequate. Saada II, 930 F.3d at 540. The Court  ruled that to eliminate a grave risk of harm, the ameliorative measures must be either enforceable by the district court or supported by other sufficient guarantees of performance. Because the district court could not enforce its instructions regarding Saada’s distance from Golan and visits with B.A.S. once the parties were in Italy—and there were no other guarantees of performance—the district court’s order did not adequately ameliorate the grave risk of harm to B.A.S. It  remanded the case for the district court to determine if any other enforceable or sufficiently guaranteed ameliorative measures were available. It invited the district court to consider whether Italian courts could issue orders that prohibited Saada from approaching Golan or visiting B.A.S. without her consent. On remand, the district court communicated with Italian authorities to determine whether they could issue a protective order requiring Saada to stay away from Golan and to attend therapy. The district court then instructed the parties to petition the Italian courts for such an order. The parties complied. An Italian court entered an order requiring, inter alia, that (1) Saada not approach Golan, her place of work or residence, or B.A.S.’s school; (2) B.A.S. be entrusted to Italian social services and placed with Golan for residence; (3) Saada visit B.A.S. only in a neutral space under observation by Italian social services; and (4) Italian social services evaluate Saada and initiate psychological counseling for him.  This protective order will run for one year from when Golan and B.A.S. arrive in Italy and is renewable. In light of these developments, the district court granted Saada’s petition to return B.A.S. to Italy. Saada v. Golan, No. 118-CV-5292, 2020 WL 2128867, at *6 (E.D.N.Y. May 5, 2020) (Saada III). The district court noted that Saada had complied with previous social service investigations in Italy and that he had he abided by all conditions of his supervised visits with B.A.S. in the United States. Combined with the consequences Saada would face for violating the Italian protective order, the district court concluded that these findings provided it with sufficient confidence that Saada would comply with that order. Additionally, the district court indicated that the psychological counseling mandated by the Italian court could reduce Saada’s abusive tendencies. The district court also ordered Saada to pay Golan $150,000 to cover her and B.A.S.’s expenses upon their return to Italy. Taken together, the district court concluded, these measures ameliorated the “grave risk of harm to B.A.S.” that could result from “exposure to violence between” Saada and Golan. In making its decision, the court also noted the absence of “evidence in the record that [Saada] was abusive to B.A.S. or that B.A.S. would be unsafe with [Saada].” 

 

The Second Circuit employed a clear error standard to assess the district court’s findings that Saada would comply with the Italian court order and that the $150,000 payment to Golan would meet her and B.A.S.’s needs until a custody arrangement was concluded. It then determined de novo if, given those conclusions, the protective measures adequately ameliorate the “grave risk of harm” to B.A.S..

 

The Court observed that a district court that finds a grave risk of harm “must examine the full range of options that might make possible the safe return of a child” before denying repatriation. Blondin II, 238 F.3d at 163 n.11. This rule “honor[s] the important treaty commitment to allow custodial determinations to be made—if at all possible—by the court of the child’s home country.” However, a district court may rely only on “ameliorative measures that are either enforceable by [it] or ... supported by other sufficient guarantees of performance.” Saada II, 930 F.3d at 541. In this case, the district court found that “exposure to violence” perpetuated by Saada against Golan posed a “grave risk of harm to B.A.S.” Saada III, 2020 WL 2128867, at *2.1 After taking steps to ensure that a protective order from the Italian courts would be in place upon the return of B.A.S. to Italy, however, the district court subsequently found that this Italian protective order coupled with a $150,000 payment from Saada to Golan ameliorated that risk. Id. at *2-6. These measures, if effective, will ensure that Saada and Golan are not in the same place.2 This separation, in turn, protects B.A.S. from any trauma that would result from abuse that Saada might perpetrate against Golan if they were together, and therefore ameliorates the grave risk of harm to B.A.S. *4 These measures are “either enforceable by the District Court or ... supported by other sufficient guarantees of performance.” Saada II, 930 F.3d at 541. The district court can enforce its order that Saada must make the $150,000 payment before B.A.S. is repatriated. And the existing Italian protective order and ongoing involvement of the Italian courts with this case provides sufficient assurance that Saada will not approach Golan in Italy. See id. at 541 n.33 (“In most cases, the international comity norms underlying the Hague Convention require courts in the United States to assume that an order by a foreign court imposing protective measures will guarantee performance of those measures.”).

 

Golan argued that this case presents a circumstance in which “even a foreign court order might not suffice,” because Saada will not comply with the Italian protective order. Given the record it did not have a “definite and firm conviction that a mistake has been committed” by the district court. Souratgar, 720 F.3d at 103. Saada has shown an ability to follow rules in related contexts and knows the Italian court will police his activities and punish him for violations. The district court, therefore, did not clearly err in determining that Saada will likely comply with the Italian protective order. In light of this finding, the district court correctly concluded that there existed sufficiently guaranteed ameliorative measures that would remedy the grave risk of harm to B.A.S. upon his return to Italy. It therefore properly granted Saada’s petition.


In a footnote the Court pointed out that  ‘[d]enying summary orders precedential effect does not mean that the court considers itself free to rule differently in similar cases.’ ” United States v. Payne, 591 F.3d 46, 58 (2d Cir. 2010) (quoting Order dated June 26, 2007, adopting 2d Cir. Local R. 32.1). 


Trott v Trott, 2020 WL 4926336 (E.D. N. Y., 2020) [Bermuda] [Comity] [Petition granted]


    In Trott v Trott, 2020 WL 4926336 (E.D. N. Y., 2020)  the petitioner, Keno Trott, brought an action against the respondent, Kristos Trott, also known as Kristos Clarke for the return of TKI and KMLT seeking their to Bermuda pending the resolution of custody proceedings in the Bermudian courts. The motion to dismiss the petition was denied and the petition was granted.

 

Trott and Clarke married in Bermuda in 2008, when TKI was ten months old. Although Trott was not TKI’s biological father, he raised her as his own, and the parties have always considered him to be TKI’s father. TKI was born in New York in 2007; she was now twelve years old and a United States citizen. KMLT, Trott and Clarke’s biological child, was born in Bermuda in September of 2008; she was now eleven years old and holds dual United States and Bermudian citizenships.  The children lived in Bermuda from 2008 to 2013. (Trott and Clarke separated in 2011, and in 2013, Clarke moved to New York with TKI and KMLT to live with her older children from a previous relationship. Although there was a court order in place prohibiting the children’s removal from Bermuda without leave of the court, Trott did not object at that time to Clarke’s move with the children.  Instead, he exercised his custody rights by visiting the girls in New York, and they spent their summer holidays in Bermuda. This arrangement continued amicably until the summer of 2018, when the children “refused” to return to the United States after their summer holiday.  The children confided in their father that a friend’s father had sexually abused them earlier that year in New York. Clarke reported the abuse to the police when it happened, and the perpetrator was arrested, but she did not tell Trott about the abuse or send the girls to see a counselor. TKI also reported that Clarke had hit her several times, and neglected her and her younger siblings by leaving them at home alone in the evenings. After hearing these reports, Trott decided it would be in the children’s best interest to stay in Bermuda instead of returning to New York.   When Trott refused to send the girls to New York in September of 2018, Clarke brought a Hague Convention petition against Trott in Bermuda. 


The Supreme Court of Bermuda granted Clarke’s request to return the girls to New York. As part of that proceeding, social workers interviewed the girls separately at least twice. Both girls told the social workers that a friend’s father sexually abused them; the social workers noted that KMLT was “still visibly disturbed by this incident.” The girls said they wanted to visit their mother, but neither wanted to live with her. The Supreme Court of Bermuda held that Trott had wrongfully retained the children in Bermuda, and “failed to establish there is grave risk of harm to the children being exposed to physical and psychological harm in the context of an exception to the general rule of prompt return of children under the Convention.” The court expressed concerns about the situation to which the children would return in New York and directed counsel to identify “what protective measures are available to ensure the smooth and safe return of the children.” The Court also directed Clarke to “provide written assurance simultaneously to this court and the US authorities that she has appropriate accommodation, ability and means to feed the children in the interim period pending the US Courts, Social Services and other relevant agencies being seized of proceedings regarding these children.” Nonetheless, the court did not take any steps to ensure that the conditions would be in place before the children were taken back to New York. 


The Bermuda Court of Appeal reversed the lower court’s ruling. The Court of Appeal held that the lower court gave insufficient consideration to the exceptions specified in Article 13 of the Hague Convention which deals with the defense of grave risk of harm: “The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. The  Court of Appeal found that the lower court did not give the children’s objections “the weighty consideration they deserved,” and had confused the children’s “willingness to visit their mother” with “a willingness to return to reside with her.” Moreover, the Court of Appeal found that while Trott had not established a “grave risk” of physical abuse if the girls returned to New York, the lower court did not consider whether forcing the girls to return to New York would create an “intolerable situation” under Article 13(b) of the Convention. The Court of Appeal also found that the lower court had improperly conditioned the children’s return to New York on terms that the court could not enforce. After reviewing the welfare reports and the girls’ statements, the Court of Appeal concluded that the children “should continue to reside in Bermuda in the custody of their father at least until a final determination of the arrangements for their custody and care can be made by the Courts of this jurisdiction.” 

 

In October of 2019, Clarke petitioned the Supreme Court of Bermuda, to allow the children to travel to New York over their Christmas holidays. Relying on a social worker’s determination that the children could safely travel to the United States to visit their mother, the Supreme Court approved Clarke’s application and permitted the children to travel to New York from December 26, 2019 to January 3, 2020. In its order, the court noted that it would retain jurisdiction over the children until further ordered, and specifically warned Clarke that she “may be held in contempt of court and subject to imprisonment, a fine or both” if she disobeyed the order. Clarke did not return the children to Bermuda on January 3, 2020, and kept them in New York. 


Trott asked that TKI and KMLT be returned to Bermuda, where they were habitually living at the time of their removal, in compliance with the order of the Supreme Court of Bermuda. For purposes of this motion, the district court accepted as true the factual allegations in the petition and drew all reasonable inferences in the petitioner’s favor. The district court held that the Bermuda Court of Appeal’s decision, based on a meticulous review of the record and a well-reasoned application of the Hague Convention, was entitled to comity. The Court of Appeal agreed that Trott wrongfully retained the girls in Bermuda, but found that he established valid defenses to return under Article 13 of the Convention. The Court of Appeal determined that the lower court did not give appropriate consideration to the children’s objections to returning to New York, and did not address the likelihood that the children would be subjected to an “intolerable situation” under Article 13(b) if they were forced to return to New York, where they had been sexually abused. Finally, the Court of Appeal determined that the lower court had conditioned the children’s return on terms that the court could not enforce, including that “adequate arrangements [ ] be put in place for their protection and care.” 


The Court rejected Clarkes argument argues that the petition did not state a prima facie claim under the Hague Convention, because the children habitually reside in New York, not Bermuda, and because Trott fails to state any custody rights under New York law. At the time the children were retained in New York, they were habitually resident in Bermuda pursuant to a court order. Under Bermuda law, “[a] child is habitually resident in the place where [she] resided ... with one parent under a separation agreement or with the consent or implied consent of the other or under a court order ....” Bermuda Child Act 1998 36L(2)(b). Clarke kept the children in New York in contravention of the Bermudian court’s order, and in breach of the interim custody rights that had been granted to Trott under Bermudian law. 

 The respondent’s motion to dismiss the petition was denied, and the petition was granted. 

 

Jacquety v Baptista, 2020 WL 5946562 (S.D.N.Y.,2020) [Spain] [Summary Judgment] [“Respondent” defined]



In Jacquety v Baptista, 2020 WL 5946562 (S.D.N.Y.,2020)  Petitioner Guillaume Jacquety filed a petition against his estranged wife, Respondent Geraldine Helena Tena Baptista  and her alleged boyfriend, Yousseff Wadghiri. The court construed a pre-motion letter submitted by Wadghiri and a letter response from Jacquety and a reply letter from Wadghiri  as a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure and the motion was denied.

 

Jacquety and Baptista were married in France on May 23, 2014. Their minor child, EJ was born a little over a year later, on April 23, 2014 in Casablanca, Morocco, where the couple made their home. The Child lived in Morocco with both parents until November 3, 2018 when Baptista took the Child to Switzerland to visit Baptista’s mother. Jacquety alleged that Baptista’s mother, an employee of the Portuguese Embassy in Switzerland, helped Baptista to obtain forged Portuguese travel documents for the Child. Instead of returning to Morocco after the visit, Baptista used those documents to take the Child to New York City on November 8, 2018. Jacquety alleged that, upon arriving in New York, Baptista brought the Child to the home of Wadghiri, a radiologist living in Manhattan with whom she was and is having a romantic relationship. According to Jacquety, Wadghiri assisted in planning and executing the scheme, and since November 2018, he and Baptista have wrongfully kept the Child in New York. In a jointly filed answer to the Petition, Baptista and Wadghiri denied these allegations. They asserted that Jacquety “consented to or acquiesced in” the Child’s removal to New York. Baptista and Wadghiri explain that Jacquety has a history of drug and alcohol abuse, has abused these substances in front of the Child, and has physically abused both Baptista and the Child. The Answer details numerous alleged instances of violence and abuse on the part of Jacquety against Baptista, in many cases endangering the Child. Jacquety denied these allegations.

 

In the August 27 Letter, Wadghiri argued, inter alia, that he was an improper respondent in the case because he was not a relative or a custodial parent and had no control over Baptista or the Child. The sole issue was whether Wadghiri was named as a proper respondent. Wadghiri argued that he was an improper respondent because he is incapable of complying with any order rendered against him by this Court. He maintained that because he is neither a relative nor a custodial parent, and Jacquety  offered no evidence that he had control over Baptista or the Child, Wadghiri would be unable to carry out an order directing the return of the Child to Morocco. 

Jacquety  argued that under the Hague Convention any person alleged to have wrongfully removed or retained a child, aided in a child’s abduction, or participated in the abduction by providing shelter, may be named as a respondent. According to Jacquety, because of Wadghiri’s extensive role in the removal of the Child, he has been appropriately named.

 

The district court observed that a “respondent” is defined in ICARA as “any person against whose interests a petition is filed in court ... which seeks relief under the Convention.”  § 9002(6). The Pérez-Vera Report further explains that under the Hague Convention, responsibility for child abduction was not meant to be limited “exclusively to one of the parents,” and the Convention adopted a “wide view” under which others could be liable, including as examples, “a grandfather or adoptive father.” Likewise, the Special Commission Report acknowledges “the possibility of people, other than the father and mother ... becom[ing] the active subjects in such actions.” Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2. To give meaning to this principle, the standing doctrine delineates “those disputes which are appropriately resolved through the judicial process.” To establish standing, a plaintiff must show “(1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision.” The parties’ arguments in this case focused on the third prong: redressability. To establish redressability, a plaintiff must show it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561. The plaintiff need not “show that a favorable decision will relieve his every injury.” Dep’t of Texas, Veterans of Foreign Wars of U.S. v. Texas Lottery Comm’n, 760 F.3d 427, 432 (5th Cir. 2014). Instead, a plaintiff “need only show that a favorable ruling could potentially lessen its injury.” Sanchez v. R.G.L., 761 F.3d 495, 506 (5th Cir. 2014).

 

In addressing redressability in the ICARA context, the Fifth Circuit in Sanchez concluded that naming the director of a foster care program as a respondent did not present jurisdictional issues. 761 F.3d at 506. In Litowchak v. Litowchak, the district court held that a father could name his wife’s father as a respondent in an ICARA action. No. 15 Civ. 185, 2015 WL 7428573, at *1 (D. Vt. Nov. 20, 2015).  


As an initial matter, the Court was not persuaded that, because Wadghiri was not a relative or a custodial parent, he was an improper respondent here. Under ICARA, responsibility for child abduction is nowhere limited to a child’s parents or relatives. See 22 U.S.C. § 9001(a)(2) (“Persons should not be permitted to obtain custody of children by virtue of their wrongful removal or retention.”); § 9002(6) (“ ‘[R]espondent’ means any person against whose interests a petition is filed in court ... which seeks relief under the Convention.”). The Pérez-Vera Report further supports an expansive view of the Hague Convention’s authority. See Pérez-Vera Report ¶ 81. The Report explains that, in defining who may be a “potential abductor,” the Convention purposefully “contains no express provision.” The Hague Convention instead adopted a “wide view,” characterizing wrongful removals carried out by not just parents, but also, as examples, “a grandfather or adoptive father” as child abduction. Likewise, the Special Commission Report explains that nonparents, such as “for example a more or less distant relative or one of the adoptive parents, etc.” may be subject to legal action under the Hague Convention. Special Commission Report ¶ 55. While Wadghiri correctly points out that the examples listed do not include “all other non-relatives,” the conclusion he draws from that omission -- that nonrelatives are categorically excluded -- defies reason. Both reports provide “examples,” an indication that neither list is meant to be exhaustive and other nonparent parties are expressly contemplated. See, e.g., Sanchez, 761 F.3d at 506 (holding that director of foster care agency was a proper respondent in ICARA action). Further, while Wadghiri  was not a blood relative, the evidence in the record could reasonably support a finding that he had a romantic relationship with Baptista, and that at least during some points in time, contemplated a family life with Baptista and the Child.

 

The Court held that Wadghiri’s alleged conduct brought him well within the Hague Convention’s scope.  Wadghiri’s claim that he “has no control over Respondent Tena Baptista or the Child” does not render Jacquety without standing to name him as a respondent. The Petition alleges, and Wadghiri did not deny, that Baptista and the Child currently lived with him. To the extent Wadghiri argued that he did not have control over either one, this assertion was contradicted by the text message evidence suggesting that, with the help of Baptista’s mother, Wadghiri coordinated travel arrangements for Baptista and the Child to arrive in New York, and that Wadghiri directed and encouraged Baptista to deceive Jacquety thereafter. The degree of Wadghiri’s control and leadership was a disputed issue of material fact, which rendered summary judgment inappropriate.  While Wadghiri alone may not be able to return the Child to Morocco, it was enough that he has “knowledge” of her whereabouts and can play some role in her return. See Sanchez, 761 F.3d at 506. That he cannot return her without Baptista’s assistance does not create a jurisdictional defect.  Even though Wadghiri may have “difficulty” carrying out a return order, to establish standing, a plaintiff “need not definitively demonstrate that a victory would completely remedy the harm. Finally, to the extent Jacquety seeks other remedies, including fees, Wadghiri asserted no barriers to providing that form of redress. See Litowchak, 2015 WL 7428573, at *2; Neves v. Neves, 637 F. Supp. 2d 322, 346-47 (W.D.N.C. 2009) (awarding fees against family friends who assisted in the abduction plan by making travel arrangements and allowing the children to live with them).

 




 

Nissim v Kirsh, 2020 WL 3496988 ( S.D. N.Y., 2020) [Israel] [Necessary Expenses]

In Nissim v Kirsh, 2020 WL 3496988 ( S.D. N.Y., 2020) Petitioner Dror Nissim (“Dror”), an Israeli citizen, and Respondent Orna Kirsh (“Orna”), a dual United States and Israeli citizen, were married in 2008 and had a Child who was a dual United States and Israeli citizen born in Israel. In 2018 Dror and Orna decided to move to California because Dror received a promotion that required relocation. Orna and the Child traveled to California one week ahead of Dror to prepare the living arrangements and prepare for the start of the Child’s school. However, while in California, Orna had a “revelation” that she wanted to leave her husband and live in New York with her child. Without informing her husband she took the Child and moved to New York. Dror filed a petition for return of a child pursuant to the Hague Convention and the International Child Abductions Remedies Act (“ICARA”). after the Court granted Petitioner Dror Nissim’s petition for return of a child to Israel, petitioner filed the motion for attorneys’ fees and costs. The court awarded $20,348.94 in costs and expenses and $88,370 in attorneys’ fees, for a total of $108,718.94.


The Court observed that the International Child Abduction Remedies Act (“ICARA”) provides that “[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). Although Article 26 of the Hague Convention provides that a court ‘may’ award ‘necessary expenses’ to a prevailing petitioner, [ICARA] shifts the burden onto a losing respondent in a return action to show why an award of ‘necessary expenses’ would be ‘clearly inappropriate.’ ” Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013) (citation omitted). In considering whether expenses are “clearly inappropriate,” courts in this Circuit consider factors including: (1) whether there was “a reasonable basis for removing the children to the United States,” (2) whether either party “engaged in forum shopping,” (3) “the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs associated with a petition,” Souratgar v. Lee Jen Fair, 818 F.3d 72, 79 (2d Cir. 2016); (4) “a respondent’s inability to pay an award,” (5) whether fees and costs will “deter such conduct from happening in the first place,”; and (6) whether the case is “not a ‘difficult one’ and ‘falls squarely within the heartland of the Hague Convention,” 

 

As for the appropriate amount of attorneys’ fees and costs, “[b]oth the [Second Circuit] and the Supreme Court have held that the lodestar—the product of a reasonable hourly rate and the reasonable number of hours required by the case—creates a ‘presumptively reasonable fee.’ ” Millea v. Metro-N. R. Co., 658 F.3d 154, 166 (2d Cir. 2011) The purpose of ICARA’s fee-shifting provision is “to restore the applicant to the financial position he or she would have been in had there been no removal or retention” and “to deter such conduct from happening in the first place.” Hague Convention, 51 Fed. Reg. 10494-501, 10511. Accordingly, “the court ... has the obligation to determine whether the requested fees and costs were ‘necessary’ to secure the child[ ]’s return.” Sanguineti v. Boqvist, No. 15-CV-3159, 2016 WL 1466552, at *2 (S.D.N.Y. Apr. 14, 2016) 

 

The Court held that Petitioner’s request for attorneys’ fees, expenses, and costs was not “clearly inappropriate.” Respondent’s conduct—of removing the Child whose habitual residence was Israel, without the consent of the father, and then deliberately misleading the father about the Child’s whereabouts—fell “squarely within the heartland of the Hague Convention.” Many of the equitable factors that courts consider in awarding fees and costs weigh in favor of awarding them here. First, Respondent wrongfully removed the Child and unilaterally moved to New York without any reasonable basis for believing that the move was appropriate. Petitioner did not consent to the removal nor was it authorized by law. Respondent has the ability to pay attorneys’ fees, costs and expenses. And finally, Respondent’s unilateral action was the cause of the petition for return and Petitioner did not cause the accumulation of the costs or fees. The Court found that the totality of the equitable factors weigh in favor of awarding attorneys’ fees and costs to Petitioner.

 

The Court first calculated the lodestar amount, keeping in mind that the purpose of ICARA’s fee-shifting provision which is to “restore the applicant to the financial position he or she would have been in had there been no removal or retention.” Hague Convention, 51 Fed. Reg. 10494-501, 10511. Courts determine the “reasonable hourly rate” by considering case-specific variables such as the complexity of the case, the amount of work required, the attorney’s experience, and awards in similar cases. Arbor Hill, 522 F.3d at 190. Courts determine the reasonableness of the hours expended by looking to their “familiarity with the case and [ ] experience with the case and [ ] experience generally as well as the evidentiary submissions and arguments of the parties.” The Court noted that generally, “[t]he reasonable hourly rate is the rate a paying client would be willing to pay ... bear[ing] in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.” Petitioner requested the following hourly rates: ($500/hr.); ($275/hr.); ($225/hr.); and paralegal (150/hr.). Notably, “courts in this District have not awarded more than $425 per hour in a Hague Convention case.” Duran-Peralta v. Luna, No. 16-CV-7939, 2018 WL 1801297, at *2 (S.D.N.Y. Apr. 2, 2018) (collecting cases). The Court found that a fee of $425/hr. was reasonable for the senior partner and in line with awards for similarly experienced attorneys in similar cases. See e.g., In re One Infant Child, No. 12-CV-7797, 2014 WL 704037, at *4 (S.D.N.Y. Feb. 20, 2014), rev’d sub nom. Souratgar v. Lee Jen Fair, 818 F.3d 72 (2d Cir. 2016).  The Court found the following reasonable: for an associate counsel with fourteen years of experience in matrimonial litigation and family law, $275/hr.; for another associate attorney with ten years of experience and who served on the Young Lawyers Sub-Committee of the New Jersey State Bar Association Family Law Executive Committee,  $225/hr. See, e.g., In re One Infant Child, 2014 WL 704037 at *4 (awarding $300 per hour to a “fourteen year associate”). Finally, a paralegal with over thirty-five years of legal experience, $150/hr. See e.g., Sanguineti, 2016 WL 1466552, at *4 (collecting cases to support a rate of $129 per hour for paralegal work).  The Court found that the total amount of 201.2 hours of attorney time and 53.6 hours of paralegal time wass reasonable given the difficulty of the legal issues in this case, the protracted nature of the litigation, and the quality of lawyering by Petitioner’s counsel. Multiplying the hours expended by the hourly rates set forth above, the lodestar—i.e., the presumptively reasonable attorneys’ fee—was $88,370.

 

Petitioner requested $27,905.48 in costs associated with litigating this action and $14,742.14 in travel expenses associated with court appearances, travel to New York for visitation, and the return of the Child to Israel. The costs included $6,500 for Israeli counsel Shmuel Moran, $14,625 in expert fees for Dr. Dov Frimer, $2,121.28 for translation services, $1,750 for a court interpreter, and $2,909.20 for costs including pleading charges, attorney transportation, transcript costs, and filing fees. The Court concluded that the costs of Dr. Frimer’s testimony and Mr. Moran’s fees should be excluded. Dr. Frimer provided the Court with seven pages of written testimony, and Mr. Moran conducted work and filed documents in Israel. Neither Dr. Frimer nor Mr. Moran represented Petitioner in the action, and they were  “not entitled to be compensated for legal advice and strategy regarding [Petitioner’s] case in this Court, nor may they recover for coordination between proceedings in this Court and other foreign tribunals.” In re One Infant Child, 2014 WL 704037, at *5. Moreover, the documentation submitted to account for Mr. Moran and Dr. Frimer’s fees was inadequate.  The Court awarded Petitioner’s remaining costs—including the costs of travel expenses associated with the visitation schedule, translation services, interpreter services, transcript costs, and filing fees—which were adequately documented and were “necessary expenses incurred by or on behalf of the petitioner. The largest of these costs was $14,742.14 in expenses related to court appearances, travel to New York for visitation, and the return of the Child to Israel. 

 

The Court pointed out that a respondent’s inability to pay an award is a relevant equitable factor for courts to consider in awarding expenses under ICARA.” Souratgar v. Lee Jen Fair, 818 F.3d 72, 81 (2d Cir. 2016). Respondent owned several properties, including an investment property, and the collective value of these properties greatly exceeded the total award of $108,718.94. Respondent had a successful and gainful career in Israel before moving to the United States and had earning potential in the future.; see also e.g., Sanguineti, 2016 WL 1466552, at *9 (“Respondent’s background, education, and work experience all indicate that he has significant earning potential in the future.”). The Court found that the total award did not exceed Respondent’s total assets nor did it justify a downward departure. Cf. Souratgar, 818 F.3d at 81 n.3 (“[A]n expenses award that is greater than a respondent’s total assets ... at a minimum, require[s] a reasoned explanation.”).

 


Wtulick v Filipkowska, 2020 WL 1433877 (E.D. N. Y., 2020) [Poland] [Necessary expenses]



      In Wtulick v Filipkowska, 2020 WL 1433877 (E.D. N. Y., 2020) the Petitioner Nikodem Wtulich (“Wtulich”) sought  an award of attorneys’ fees and costs reasonably incurred in the successful prosecution of his petition for the return of his daughter AW to Poland. Wtulich sought payment of $22,252.00 in attorneys’ fees and $20,842.12 in costs. The District Court ordered respondent Magda Filipkowska (“Filipkowska”) to reimburse Wtulich $19,699.47, consisting of $14,887.50 in reasonable attorneys’ fees and $4,811.97 in compensable costs.

  The district court found that having prevailed on his petition, Wtulich was entitled to an award of “necessary expenses ... including travel expenses, ... the costs of [Wtulich’s] legal representation ..., and those of returning” AW to Poland. See Hague Convention, Art. 26; T.I.A.S. No. 11,670, at *6-7. ICARA further provides that such payment is mandatory unless the respondent establishes that an order awarding expenses “would be clearly inappropriate.” 22 U.S.C. § 9007(b)(3). It is within the court’s discretion to determine whether an award of necessary expenses is “clearly inappropriate.” See Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013) (“Absent any statutory guidance to the contrary, the appropriateness of such costs depends on the same general standards that apply when ‘attorney’s fees are to be awarded to prevailing parties only as a matter of the court’s discretion.’ ”)  Because “there is no precise rule or formula for making these determinations, ... equitable discretion should be exercised in light of the relevant considerations.” Courts in this district have made such determinations “on a case-by-case basis.” See Haimdas v. Haimdas, 2011 WL 13124276, at *1 (Aug. 29, 2011) (collecting cases). The court found it would not be clearly inappropriate to award Wtulich payment of necessary expenses in this case where “the case is not a ‘difficult’ one and ‘falls squarely within the heartland of the Hague Convention.’ ” Duran-Peralta v. Luna, 2018 WL 1801297, at *2 (S.D.N.Y. Apr. 2, 2018); cf. Ozaltin, 708 F.3d at 375 (award was inappropriate where the respondent had a reasonable basis to believe that her actions were legal at the time of the removal at issue); Onrust v. Larson, 2015 WL 6971472, at *7 (S.D.N.Y. Nov. 10, 2015) (denying an award where the respondent had a credible basis to believe that petitioner had relinquished custody by the time of the removal at issue). While the court can consider the parties’ respective financial circumstances in determining the propriety of an award, Filipkowska’s argument was not that she faced any hardship in paying Wtulich’s expenses, but only that he was better able than she to endure them. 

  The Court noted that Courts in this circuit have used the “lodestar method” to assess a prevailing petitioner’s request for fees under the Hague Convention. This method determines the “presumptively reasonable fee” by multiplying the reasonable hourly rate with the reasonable number of hours expended on a case. District courts have broad discretion, using “their experience with the case, as well as their experience with the practice of law, to assess the reasonableness” of each component of a fee award. 

       Wtulich sought to compensate his attorneys at the following hourly rates: $450 and $350 The court stated that such rates are higher than those that surrounding districts have approved in comparable cases. A reasonable hourly rate is the minimum rate a client would be willing to pay to litigate the case effectively. See, e.g., Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cty. of Albany & Albany Cty. Bd. of Elections, 522 F.3d 182, 190 (2d Cir. 2008). Courts in surrounding districts have generally approved hourly rates no higher than $425 for such litigation and have typically approved rates of $200 to $400, depending on the relevant attorney’s experience. See, e.g., Duran-Peralta, 2018 WL 1801297, at *2 (collecting cases); see also Distler v. Distler, 26 F. Supp. 2d 723, 727 (D.N.J. 1998) (awarding $350 per hour in Hague Convention cases for “very experienced” counsel with over 20 years of experience handling 165 cases under the convention). Consistent with these rates, the Court awarded Wtulich reimbursement of his attorneys’ fees at the following hourly rates: $400, $275 and $225. Wtulich sought to compensate his attorneys for 63.5 hours of work. “A fee applicant bears the burden of demonstrating the hours expended and the nature of the work performed through contemporaneous time records that describe with specificity the nature of the work done, the hours, and the dates.”. The records must be specific and detailed. In determining the number of hours for which fees should be awarded, the court should not compensate counsel for hours that are “excessive, redundant, or otherwise unnecessary.” See Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). The Court found the claim for 63.5 hours of compensable work to be reasonable. It  concluded that Wtulich was entitled to an award of attorneys’ fees in the total amount of $14,887.50.

         Wtulich sought reimbursement of $9,700 for “Law Office Musa-Obregon. To the extent the claimed amount included legal fees, the court already awarded an appropriate amount. To the extent it sought litigation costs, Wtulich had not submitted any itemization or supporting documentation. It denied the request for reimbursement of that item. Wtulich claimed $4,738 for “Law Office Robert Openchowski. The supporting  document was all in Polish. The Court was unable to determine the extent to which it represented contemporaneous billing records, the extent to which any claimed costs or fees are reasonable, or why attorney Openhowski  failed to provide Wtulich with an English-language itemization of his bill despite being admitted to the New York bar. It denied reimbursement of this item. Wtulich provided no receipts or other supporting documents for his claim of $29.50 in transportation costs to attend the bench trial on April 23-24, 2018. However, he reasonably explained that the amount represented bus fare for which he was provided no bill. Wtulich provided no documents supporting his claim for $600 as the cost of accommodations for four days before his return trip to Poland with AW. The court denied reimbursement of this item.  The Court approved the remaining itemized expenses, all of which was adequately documented. $1,484 in travel and accommodation costs to prepare for and prosecute the bench trial in April 2018; $115.15 in PACER fees to monitor the litigation; and $3,187.37,  travel and accommodations for Wtulich’s trips to the United States in 2014. He made such trips not simply to visit AW, as Filipkowska insisted, but also to negotiate for her return to Poland without the need for litigation and to forestall the possibility that Filipkowska would abscond with AW and make her unavailable for return. 


Alvarado v Castanos, 2020 WL 3791569 (11th Cir., 2020)[Chile] [on remand] [Petition granted]


In Alvarado v Castanos, 2020 WL 3791569 (11th Cir., 2020) (not selected for publication) in  a previous appeal, involving Hague Convention proceedings initiated by Karen Berenguela-Alvarado, a Chilean citizen, who was seeking the return of her young daughter, EICB Berenguela-Alvarado alleged that EICB’s father, Eric Castanos—a naturalized U.S. citizen—wrongfully retained EICB in Florida while she was on a short-term visit and coerced Berenguela-Alvarado into signing a document purporting to consent to that retention. In the original proceedings, the district court found that although Berenguela-Alvarado had made out a prima facie case that Castanos had wrongfully retained EICB, Berenguela-Alvarado had consented to that retention and therefore wasn’t entitled to EICB’s return.” Berenguela-Alvarado appealed. The Ninth Circuit vacated and remanded the district court’s order, concluding that it had erred in two respects: (1) “[a]s a matter of fact ... by relying on non-existent testimony that Castanos never threatened Berenguela-Alvarado as a means of securing her consent to EICB staying the United States”; and (2) “[a]s a matter of law ... by shifting the burden on the consent issue back to Berenguela-Alvarado, requiring her to prove by a preponderance of the evidence that Castanos’s threat constituted ‘duress.’ ”(Berenguela-Alvarado v. Castanos, 950 F.3d 1352 (11th Cir. 2020). On remand the district court granted Berenguela-Alvarado’s petition for EICB’s return. Although Castanos requested that the record be reopened so that he could present further evidence on his affirmative defenses, the district court held that he had “provide[d] no persuasive reason the Court need[ed] to accept additional evidence on remand,” as he had already been given an opportunity to call witnesses and present his case in the initial proceedings. The district court went on to find that Castanos hadn’t met his burden to prove his asserted affirmative defenses.

 Castanos appealed the district court’s order on remand. He made two arguments: (1) that the district court erred in failing to consider the Supreme Court’s holding in Monasky v. Taglieri, 140 S. Ct. 719 (2020)—which was issued the same day as the  Court’s opinion in the first appeal—in its analyses of EICB’s habitual residence and his consent defense; and (2) that the district court abused its discretion by declining to reopen the record. Finding no error or abuse of discretion, the Ninth Circuit affirmed. 

It reviewed he denial of a motion to reopen the record for abuse of discretion. Cambridge Univ. Press v. Albert, 906 F.3d 1290, 1298 (11th Cir. 2018). Castanos contended that—in light of Monasky’s holding—the District Court erred in not allowing an additional or supplemental evidentiary hearing on remand, and denying [his] specific request for the same. This argument was unavailing. Castanos had ample opportunity to present evidence of his affirmative defenses during the original proceedings. The district court, therefore, acted well within its “sound discretion” in denying his request to reopen the record, especially in light of the sensitive and expedited nature of Hauge Convention petition.


Alvarado v Castanos, --- F.3d ----, 2020 WL 896487 (11th Cir., 2020) [Chile] [Consent] [Remanded for further proceedings]


In Alvarado v Castanos, --- F.3d ----, 2020 WL 896487 (11th Cir., 2020) Karen Berenguela-Alvarado sought the return of her daughter—EICB—to Chile from Florida, where she was currently living with her father, Eric Castanos. Berenguela-Alvarado had permitted EICB to visit Castanos in the United States from December 2018 to March 2019. Castanos never returned her to Chile. Berenguela-Alvarado consequently initiated Hague Convention proceedings in federal district court to get her daughter back. The district court found that although Berenguela-Alvarado had made out a prima facie case that Castanos had wrongfully retained EICB, Berenguela-Alvarado had consented to that retention and therefore wasn’t entitled to EICB’s return. The Eleventh Circuit found that (1) as a matter of fact, the court erred by relying on non-existent testimony that Castanos never threatened Berenguela-Alvarado as a means of securing her consent to EICB staying in the United States; and (2) as a matter of law, the court erred by shifting the burden on the consent issue back to Berenguela-Alvarado, requiring her to prove by a preponderance of the evidence that Castanos’s threat constituted “duress.” It therefore vacated and remanded the district court’s order for further proceedings in accordance with this opinion.

  Berenguela-Alvarado, a Chilean citizen, and Castanos, a naturalized U.S. citizen, were the parents of EICB. EICB is a dual citizen of Chile and the United States, but since her birth she has consistently lived in Chile with her mother. Castanos has acknowledged EICB as his daughter since she was three months old, and he has reliably provided child support and had regular contact with her since then, making several visits a year to Chile. EICB visited Castanos in the United States for the first time in February 2018; she stayed with him for two months and then returned to Chile. Berenguela-Alvarado later gave EICB permission to travel to the United States a second time. Castanos bought EICB a round-trip airline ticket for the trip, with a departure date of December 30, 2018, and a return date of February 28, 2019. Berenguela-Alvarado gave permission for EICB to stay in the United States until the end of March in the event Castanos kept her longer than originally planned, as he had on her previous visit. In early February 2019, during EICB’s second visit to the United States, Castanos “proposed” to Berenguela-Alvarado that EICB stay with him in the United States permanently, as he felt he could provide a better life for her here. Berenguela-Alvarado resisted, telling Castanos that she didn’t want EICB to “think that [she] had abandoned her.” Berenguela-Alvarado testified that in response to her resistance, Castanos “started pressuring” her to let EICB stay with him. As a result, she asserted that she “tentatively agreed” to Castanos’s proposal, to ensure that she would see EICB in July 2019, at a minimum—the terms of Castanos’s deal being that EICB would stay with him in the United States, that the two would go to Chile in July to visit Berenguela-Alvarado, that Berenguela-Alvarado could visit EICB once a year in Miami, and that she wouldn’t have to pay any child support. Berenguela-Alvarado said that she “agreed only because she just wanted her daughter to come back in July,” and that when she began to “express [] hesitation and s[eek] clarification [as] to what was going on,” Castanos—this is important— “threatened to hold [EICB] for good and told [Berenguela-Alvarado] she would never see her [daughter] again.”

To effectuate his plan, Castanos enlisted the help of his friend Doris Baquero, who worked at the Florida Department of Juvenile Justice. Baquero sent Berenguela-Alvarado a letter to sign that purported to give consent for EICB to stay in the United States with Castanos. The consent letter, dated February 10, 2019, stated as follows: Effective May 5, 2019, I, Karen Edith Berenguela Alvarado, is giving consent to my daughter, [EICB], ... to reside with her father, Eric Castanos, in the United States. [EICB] will be residing in the United States for the purpose of improving her quality of life, education, physical health and nutrition. Eric Castanos will fully be responsible for [EICB’s] housing, nutrition, clothing, education, personal hygiene and physical health. [EICB] will visit her maternal family in Chile the months of summer break from school in the United States. Karen Edith Berenguela Alvarado is in full agreement with this letter and her signature confirms her knowledge and consent. Berenguela-Alvarado testified that she felt that she “was under pressure” and that she “said yes” to Castanos’s proposal “because otherwise he wouldn’t bring [EICB] back.” She further testified that Castanos “was going to request custody if [she] didn’t sign the document.” So, she says, although she signed the letter, she didn’t intend to consent to EICB staying in the United States permanently. As part of their plan, Castanos and Baquero asked Berenguela-Alvarado to renew EICB’s U.S. passport and have the consent letter notarized. Berenguela-Alvarado renewed EICB’s U.S. passport in February 2019, but she ultimately skipped two appointments that she had scheduled at the local U.S. embassy to get the letter notarized. Instead, she texted Baquero a picture of the signed letter—she never sent the hard copy—which Baquero then notarized outside of Berenguela-Alvarado’s presence.

Later in February, Berenguela-Alvarado sent Baquero the following e-mail: Doris, good afternoon, I appreciate everything, but I changed my mind. I have everything ready for [EICB] to return. Her uniform and school supplies, she starts classes on March 4th at Primary school. It is very important that she starts when it’s appropriate so she won’t fall behind. Thanks for everything. Despite Berenguela-Alvarado’s request that EICB be back in Chile before school started, Castanos kept her in the United States after her travel-authorization period ended. This litigation ensued.

 

In June 2019, she filed a petition under the Hague Convention in the Southern District of Florida. Berenguela-Alvarado alleged that Castanos had been unlawfully retaining EICB since her travel authorization expired in March 2019, and she insisted that she had never consented to EICB staying in the United States.  The district court held an evidentiary hearing to determine whether Castanos had wrongfully retained EICB. The vast majority of the evidence that Castanos presented bore on his first affirmative defense—namely, that EICB would face a grave risk of harm if returned to Chile—and he and other witnesses testified about EICB’s mental and physical health and asserted that she would enjoy a better quality of life in the United States than Chile. Importantly for our purposes, Castano didn’t present any evidence pertaining to Berenguela-Alvarado’s purported consent. Rather, the sole evidence about consent came from Berenguela-Alvarado—she testified that she signed the consent letter because Castanos “said he was not going to bring [EICB] back, and he was going to request custody if [she] didn’t sign the document.” She further testified that in signing the letter, she did not intend to consent to EICB remaining in the United States permanently.

  Although the district court agreed with Berenguela-Alvarado that she had established a prima facie case of wrongful retention under the Hague Convention, it held that she was not entitled to EICB’s return because it found that she had consented to that retention. The court held that by “sign[ing] a [consent] document, t[aking] a picture of it, and sen[ding] that picture to Baquero,” Berenguela-Alvarado had demonstrated “her subjective intent to allow EICB to remain in the U.S.” Importantly, the court acknowledged that if Castanos had threatened Berenguela-Alvarado as she alleged, that “statement would amount to duress.” But—again, importantly—the Court held that “Castanos denied making this statement and there is no documentary support for Berenguela-Alvarado’s assertion.” The district court found that Berenguela-Alvarado’s evidence concerning her communications with Castanos demonstrated “a contentious relationship” but did “not rise to the level of ‘improper and coercive’” behavior so as to satisfy the standard for duress. The court further rejected Berenguela-Alvarado’s argument that the consent letter should be discounted due to its legal deficiencies—it held that although “many questions exist[ed] as to the legal efficacy of the Consent Letter,” those questions were irrelevant because a parent’s consent doesn’t have to be formal under the Hague Convention. 

 

Berenguela-Alvarado appealed the district court’s order. The sole issue on appeal was whether the district court erred in ruling that Berenguela-Alvarado consented to Castanos’s retention of EICB. On appeal the parties agreed that Berenguela-Alvarado satisfied her prima facie burden regarding wrongful retention; the parties’ dispute focused exclusively on Castanos’s affirmative defense of consent. The sole affirmative defense at issue was consent, which the district court found to be “dispositive.” The consent defense requires the retaining/removing parent to prove by a preponderance of the evidence that the petitioning parent “consented to ... the removal or retention.” Hague Convention, art. 13(a); 22 U.S.C. § 9003(e)(2). The petitioning parent’s consent needn’t be formal, but “it is important to consider what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country.” Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005). The focus of the court’s inquiry should be on the petitioning parent’s “subjective intent,” and should take into account “[t]he nature and scope of the petitioner’s consent, and any conditions or limitations” on that consent. The district court’s analysis of the consent defense centered almost exclusively on the consent letter that Berenguela-Alvarado signed. It was Berenguela-Alvarado who introduced the letter—in fact, Castanos objected to the letter’s admission, arguing that it was hearsay. With respect to the circumstances surrounding the letter’s signing, the district court made a clearly erroneous finding of fact regarding Castanos’s testimony. Although the district court acknowledged that if Castanos had threatened Berenguela-Alvarado as she claimed, it “would amount to duress”—and thus presumably vitiated her consent—it held, as a matter of fact, that “Castanos denie[d] making this statement.” That was incorrect. Castanos never actually denied threatening Berenguela-Alvarado. The district court therefore clearly erred in relying on non-existent testimony as a basis for holding that Castanos had shown that Berenguela-Alvarado had consented to EICB’s retention in the United States. He never testified that he didn’t make the threat. In mistakenly assuming that he had, the district court may well have relied on Castanos’s post-hearing brief, which asserted—falsely and without citation—that he “provided testimony that he never threatened or pressured [Berenguela-Alvarado] to sign the consent” letter. None of the testimony that Castanos did give could be interpreted as constituting a denial that he threatened Berenguela-Alvarado. So, in short, the district court clearly erred by relying on non-existent testimony. Castanos never denied threatening Berenguela-Alvarado, as he falsely claimed in his supplemental brief and as the district court found. Thus, it was left with [a] definite and firm conviction that a mistake has been committed.” Seaman, 766 F.3d at 1261 

 

In addition to this clear factual error, the district court also committed a significant legal error. Once a petitioning parent has established a prima facie case of wrongful retention/removal under the Hague Convention, the burden shifts to the retaining/removing parent to prove one or more affirmative defenses—without proof of one of those defenses, the child must be returned to the petitioning parent. Here, though, the district court improperly—but expressly—shifted the burden back to Berenguela-Alvarado on the consent issue, erroneously treating her allegation that she signed the consent letter as a result of Castanos’s threat as a formal allegation of “duress” that she had to prove by a preponderance of the evidence. The courts expressly found that “Berenguela-Alvarado ha[d] not shown by a preponderance of the evidence that her consent was the product of duress.” This was improper. When it came to the consent defense, Castanos—alone—had the burden to prove by a preponderance of the evidence that Berenguela-Alvarado had actually, subjectively intended to allow EICB to remain in the United States. See 22 U.S.C. § 9003(e)(2)(B); Hague Convention, art. 13(a); Baxter, 423 F.3d at 371. Berenguela-Alvarado had no burden to prove anything related to Castanos’s consent defense. The district court therefore erred as a matter of law in shifting the burden of proof to Berenguela-Alvarado.

  These factual and legal errors tainted the rest of the district court’s analysis too severely to salvage its order. It therefore vacated and remand the district court’s order for further proceedings in accordance with its opinion.