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).
No comments:
Post a Comment