In Bordelais v Bordelais, --- Fed.Appx. ----, 2021 WL 1554729 (Mem) (7th Cir., 2021) Antoine Bordelais, a French citizen, sought the return of his child under the Hague Convention. Since his ex-wife, Valerie, an American citizen, took their child from Switzerland to Illinois in 2016, Antoine has sued her at least seven times for the child’s return. See In re Antoine Bordelais, 20 C 4165 (N.D. Ill. July 20, 2020).
In 2016, in the midst of divorce and custody proceedings in Swiss court, Valerie took the couple’s then-13-year-old child to visit her parents in Illinois. They did not return. Antoine petitioned in Illinois state court for divorce and for return of the child under the Hague Convention. Valerie counterclaimed, alleging that she had sole custody of the child and that removal would place the child in grave danger. In 2017, dissatisfied with the pace of the state court proceedings, Antoine filed a similar version of his state court petition in federal court. Valerie moved to dismiss the petition or stay the proceedings under Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813–14 (1976), on grounds that Antoine’s suit duplicated his ongoing state court litigation. The district court agreed that the state and federal actions were parallel and stayed the suit. Antoine, arguing that he had withdrawn his state-court petition and that the case was closed, moved to lift the stay in 2018. Valerie disagreed with his characterization about the status of the state-court proceedings and insisted that disputes over their daughter were still being adjudicated. The court denied Antoine’s motion. In 2019, Antoine requested emergency “protective measures” under Article 7 of the Hague Convention to prevent what he believed was a real possibility that Valerie would take the child to Mexico, where she had relatives. The district court denied this request as inconsistent with its stay order. In November 2019, the child turned 16, and Valerie moved to dismiss the suit on grounds that the Hague Convention does not apply to children over 16. The district court held a hearing the following month and granted Valerie’s motion. The court added that it also denied Antoine’s oral motion to amend his complaint, as well as his motion to proceed on appeal in forma pauperis. Antoine then filed a notice of appeal.
Valerie moved to dismiss the appeal for lack of jurisdiction. She argued that the Hague Convention no longer supplied the basis for federal jurisdiction because their daughter, upon reaching the age of 16, had aged out of the Convention, and the case was now moot. Antoine responded that the Convention continued to apply in Illinois until a child turns 18.
The Seventh Circuit affirmed. It observed that the child turned 16 in 2019. The Convention, by its terms, “shall cease to apply when the child attains the age of 16 years.” See Hague Convention, art. 4. As the State Department has opined, “[e]ven if a child is under sixteen at the time of the wrongful removal or retention as well as when the Convention is invoked, the Convention ceases to apply when the child reaches sixteen.” U.S. Dep’t of State, Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,504 (Mar. 26, 1986), quoted in Custodio v. Samillan, 842 F.3d 1084, 1088 (8th Cir. 2016) (dismissing as moot the appeal of denial of Hague Convention petition where child turned sixteen during pendency of proceedings).
Valerie sought sanctions against Antoine under Federal Rule of Appellate Procedure 38, arguing that the appeal was frivolous and meant only to harass and intimidate her. She urged the Court to view the appeal in the context of the fifteen suits since 2016 that Antoine filed against her, her family, her employer, her lawyers, and her child’s therapist. See In re Antoine Bordelais, 20 C 4165 (N.D. Ill. July 20, 2020) (Executive Committee order enjoining Antoine from filing any new civil action in district without first obtaining leave to file). The Seventh Circuit found that sanctions were warranted. Antoine subjected Valerie’s counsel to extra work to defend against his meritless arguments. Allen-Noll v. Madison Area Tech. College, 969 F.3d 343, 351 (7th Cir. 2020). He also wasted this and other courts’ time, not just with this appeal; he had filed five other appeals from his suits against Valerie and her family. And, the Executive Committee of the Northern District had run out of patience with his pattern of frivolous and duplicative filings. Accordingly, he was ordered to show cause within fourteen days why reasonable attorney’s fees and costs should not be imposed. The Court also warned Antoine that further frivolous appeals will subject him to monetary fines and a possible bar order pursuant to Support Systems International, Inc. v. Mack, 45 F.3d 185, 186 (7th Cir. 1995).
Dawson v Dylla, 2021 WL 1534608 (D. Colorado, 2021)
[United Kingdom] [Federal & State Judicial Remedies] [Court lacks jurisdiction to adjudicate merits of the underlying custody dispute][ Petition to enforce a foreign parenting order denied.]
Luis Alfonso VH v Banessa Cristina AZ, 2021 WL 76971 (W.D. Virginia, 2021).
[Honduras] [Well-settled] [Petition denied]
Alverez Romero v Gajardo Bahamonde, 2020 WL 8459278 (M.D. Georgia, 2021)
[Chile] [Well-Settled] [Wishes of the child [Petition denied]
Dubikovskyy v. Goun, 2021 WL 456634 (W.D. Missouri, 2021)
[Switzerland] [Wishes of the Child] [Petition denied]
Forcelli, v. Smith,.2021 WL 638040 (D. Minnesota, 2021)
[Germany] Necessary Expenses] [not clearly inappropriate] [Reasonable attorneys fees and transportation costs awarded]
Sanchez Mena v Gomez Paz, 2021 WL 633586 (D. Utah, 2021.)
[Peru] [Federal & State Judicial Remedies] [Respondent’s motion for enlargement of time to file motion to dismiss moot. Respondent’s motion for consolidation of defenses denied. Respondent’s motion to amend the scheduling order is granted in part and denied in part.]
Colchester v Lazaro, 2021 WL 764136, (W.D. Washington, 2021)
[Spain] [Habitual Residence] [Petition granted] [Necessary expenses against Ms. Lazaro is not “clearly inappropriate]
Jose De Jesus Joya Rubio v Yelaine Memendez Alvarez, 2021 WL 956197 (S.D. Florida, 2021)
[Mexico] [Well-Settled] [Wishes of the child] [Petition denied]
Radu v Shon, 2021 WL 1056393 (D. Arizona, 2021).
[Germany] [Necessary Expenses] [Clearly inappropriate] [Motion denied]
Sanchez v Sanchez, 2021 WL 1227133 (M.D. North Carolina, 2021)
[Honduras] [Grave risk of harm] [Petition denied].
In Saada v Golan, 2021 WL 1176372 (E.D. N. Y.) the district court denied the respondent’s motion to set aside the judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, or in the alternative, to stay the action pending her petition for writ of certiorari to the United States Supreme Court.
The petitioner, an Italian citizen, alleged that in August of 2018, the respondent, an American citizen, wrongfully kept their minor son, B.A.S., in the United States. After a bench trial, in a March 22, 2019 decision, the district court found that B.A.S. was a habitual resident of Italy, and that while he would be subject to grave risk of harm upon repatriation, there were sufficient measures available in Italy that would ameliorate the risk to B.A.S. upon his return.
The Second Circuit affirmed the decision in part and vacated it in part. Saada v. Golan, 930 F.3d 533, 537 (2d Cir. 2009) (Saada I). The Court agreed that Italy was B.A.S.’s “habitual residence” under the Hague Convention, but determined that certain ameliorative measures could not be enforced before B.A.S. was repatriated to Italy. The Second Circuit remanded the case with instructions to ensure that the measures necessary for B.A.S.’s safe repatriation could be “enforce[d] by the District Court or supported by other sufficient guarantees of performance.” On May 5, 2020, after additional briefing and an extensive examination of the ameliorative measures available in Italy, the district court found that “the Italian courts are willing and able to resolve the parties’ multiple disputes, address the family’s history and ensure B.A.S.’s safety and well-being.” In December of 2019, the Italian court issued an order to help facilitate B.A.S.’s repatriation that included a protective order against the petitioner and an order requiring Italian social services to oversee his parenting classes and behavioral and psychoeducational therapy. Moreover, the petitioner agreed to give the respondent a sum of money to allow her to live independently of the petitioner and his family upon her return. The district court granted the petition and ordered that B.A.S. be returned to Italy. On January 21, 2021, the Court of Appeals affirmed that decision in its entirety. Saada v. Golan, 833 F. App’x 829, 831 (2d Cir. 2020) (Saada II).
On January 25, 2021, shortly after the Court of Appeals issued its mandate in Saada II, the respondent filed the motion seeking to vacate the May 5, 2020 order pursuant to Rule 60(b)(2), based on “newly discovered evidence.” Describing the Courts remarks at an October 16, 2018 proceeding as a “court order,” the respondent stated that the petitioner “hired an investigator who surveilled B.A.S. and the respondent and took pictures of them in their apartment,” in “blatant violation” of an October 16, 2018 court order directing the petitioner not to try to locate the respondent during the 2018 trial. According to the respondent, the surveillance showed that the petitioner will not comply with its orders, which in turn demonstrated that he would not follow the Italian court’s protective orders. In short, the respondent argued that this “new” evidence established that B.A.S. will face a “grave risk of harm” that cannot be ameliorated, and therefore, the petition should be denied. To support her allegation of secret surveillance, the respondent submitted the transcript of a November 2020 conversation between the petitioner, his father, and a rabbi who was working with the respondent to help her secure a get. Unbeknownst to the petitioner, the respondent was listening in, and the call was being secretly recorded.
The Court observed that Rule 60(b) outlines the grounds for relief from a final judgment, order or proceeding, including “newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)[.]” Fed. R. Civ. P. 60(b)(2). A Rule 60(b)(2) motion must be made “no more than a year after the entry of the judgment or order or the date of the proceeding,” Fed. R. Civ. P. 60(c)(1), and may not be used “simply to relitigate matters settled by the original judgment.” The decision to grant a motion for relief under Rule 60(b) is left to the discretion of the court. Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012). The district court found there was no evidence that the petitioner or his attorneys tried to find out where the respondent lived, certainly not during the trial or anytime thereafter. Knowledge of the limited investigation that did take place would not have changed the outcome of my May 5, 2020 order, because it did not establish that the petitioner violated an order of the Court or that the protections put in place in Italy would be insufficient to protect B.A.S. from a grave risk of harm. The evidence was not sufficient grounds to reverse the judgment; therefore, the respondent’s motion to set aside the judgment was denied.
The Court pointed out that in deciding whether to stay a return order in a Hague Convention case, courts must balance the “importance of the prompt return of children wrongfully removed or retained” with the concern that “shuttling children back and forth between parents and across international borders may be detrimental to those children.” Chafin v. Chafin, 568 U.S. 165, 178 (2013). “Staying the return of a child in an action under the Convention should hardly be a matter of course.” Friedrich v. Friedrich, 78 F.3d 1060, 1063 (6th Cir. 1996). Courts considering whether to stay a return order must apply the four traditional stay factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Chafin, 568 U.S. at 179 (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). A decision to stay the return should include an “appropriate consideration of the child’s best interests.”
The district court found that given the small percentage of cases that the Supreme Court accepts each term, it was not likely that the respondent’s petition for certiorari would be successful. This case did present an interesting legal question, which appeared to be a matter of first impression before the Court. Overall, this factor did not weigh strongly for or against a stay. The court was not persuaded that the respondent would be irreparably injured absent a stay. The Italian court has put many protections in place to ensure the respondent’s safety in Italy, and she will have money to provide for herself and B.A.S. when they return. B.A.S.’s return would not moot the respondent’s claims or prevent her from continuing to litigate this action. See Chafin, 568 U.S. at 180. If the return order is reversed, there were currently no substantial barriers that would prevent the respondent’s return to the United States with B.A.S. The respondent was a United States citizen and would retain sole custody of B.A.S. in Italy, at least until the custody dispute was resolved in the Italian courts; she should be able to return to the United States if the Court ultimately decided in her favor. The prejudice to the Petitioner weighed against a stay. The Court ordered B.A.S.’s return to Italy almost two years ago, but he still resided in New York. The aim of the Convention is to secure prompt return of the child to the correct jurisdiction, and any unnecessary delay renders the subsequent return more difficult for the child, and subsequent adjudication more difficult for the foreign court. Haimdas v. Haimdas, 720 F. Supp. 2d 183, 211 (E.D.N.Y.), aff’d, 401 F. App’x 567 (2d Cir. 2010) (quoting Friedrich, 78 F.3d at 1063). Public interest cautioned against further delay of the return order. Weighing all the factors the court declined to stay the case pending the outcome of the respondent’s petition to the Supreme Court.
