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Thursday, March 4, 2021

Lukic v Elezovic, 2021 WL 804384 (E.D. N.Y., 2021)[Montenegro] [Federal & State Judicial Remedies] [Summary judgment] [Petition granted] [Stay denied]


In Lukic v Elezovic, 2021 WL 804384 (E.D. N.Y., 2021) Respondent, Bahrija Elezovic, sought a stay pending appeal the  February 9, 2021 opinion and order requiring that she return her six-year-old daughter N.L. to Montenegro forthwith, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) Lukic v. Elezovic, No. 20-CV-3110 (ARR) (LB), 2021 WL 466029, at *10 (E.D.N.Y. Feb. 9, 2021).


Respondent had not complied with the order. After petitioner, N.L.’s father, filed a motion for contempt, respondent’s counsel informed petitioner’s counsel that respondent agreed to proceed with petitioner’s plan in which petitioner accompanied N.L. back to Montenegro. On March 1, 2021, the parties received a decision from the Montenegrin Family Court in their custody dispute over N.L.  Petitioner had moved to amend the 2015 custody judgment that afforded physical custody rights to respondent. The Montenegrin Family Court denied petitioner’s request and declined to disturb the 2015 custody judgment. Id. After reviewing this judgment, respondent’s counsel informed petitioner’s counsel that respondent believes this decision “entirely changes the situation.” Respondent then filed a notice of appeal and notified petitioner’s counsel that she intended to seek a stay, as well. Respondent filed a stay motion on March 2, 2021.


The Court pointed out that  Rule 62(c) of the Federal Rules of Civil Procedure permits a district court to stay enforcement of a judgment while an appeal is pending. A party seeking such a stay bears a “difficult burden.” United States v. Private Sanitation Indus. Ass’n, 44 F.3d 1082, 1084 (2d Cir. 1994). In evaluating whether to stay a “return order” under the Hague Convention, “[c]ourts should 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 v. Chafin, 568 U.S. 165, 179 (2013) (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). “Staying the return of a child in an action under the [Hague] Convention should hardly be a matter of course.” Friedrich v. Friedrich, 78 F.3d 1060, 1063 n.1 (6th Cir. 1996). “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.” The district court concluded that (1) Respondent was unlikely to succeed on the merits of her Appeal. (2)  Respondent would not ne Irreparably injured absent a Stay, but a Stay Would Substantially Harm Petitioner and N.L. and (3)  The Public Interest Favors Denying a Stay.“ [T]he public interest, as relevant to a Hague Convention dispute, is primarily defined by the treaty itself, the express purpose of which is ‘to secure the prompt return of children wrongfully removed to or retained in any Contracting State.’ ” Hofmann, 2012 WL 8466673, at *1 (quoting Hague Convention art. 1); see also Vale, 2008 WL 2246929, at *3 (“[T]he public interest of this country and of other countries which are signator[ie]s to the Convention is met when the purpose of the Convention is met.”). “Protraction ... is hardly consonant with the Convention’s objectives.” Chafin, 568 U.S. at 185 (Ginsburg, J., concurring). Here, denying a stay pending appeal would better adhere to the Hague Convention’s purpose. N.L.’s wrongful retention has continued for more than a year, and further delay will cause significant harm to petitioner and N.L. Moreover, I have reviewed the 2021 custody judgment, respondent’s only new evidence, and determined that it does not alter my return analysis. See supra Section I. Thus, N.L.’s expeditious return to Montenegro furthers the objectives of the Hauge Convention and, in turn, the public interest .For the foregoing reasons, the court denied respondent’s motion to stay its February 9, 2021 opinion and order pending appeal under Federal Rule of Civil Procedure 62(c).


Lukic v Elezovic, 2021 WL 466029 (E.D. N.Y., 2021) [Montenegro] [Federal & State Judicial Remedies] [Summary judgment] [Petition granted]



In Lukic v Elezovic, 2021 WL 466029 (E.D. N.Y., 2021) the district court granted Petitioners motion for summary judgment for the return of his minor daughter, N.L., to Montenegro.


N.L. was the shared daughter of petitioner and respondent. She was born in Ulcinj, Montenegro in May 2014 and was six years old.  N.L. was a citizen of Montenegro. Petitioner and respondent also shared an older son, D.L., who was now nine years old. D.L. currently lived with petitioner, who has had official custody of him since 2018. When N.L. was approximately twenty days old, she and respondent ceased living with petitioner and moved to Podgorica, Montenegro. In April 17, 2015, the Primary Court in Podgorica issued an order governing N.L.’s custody.  The court awarded “care and upbringing” to respondent, “with whom the minor [N.L.] is to reside.” The court also ordered that petitioner had the right to have contact with N.L. every fifteen days until she reached two years old, after which he would have the right to take her with him every other week from Friday evening to Sunday evening. N.L. remained living with respondent in Podgorica and attended school in Montenegro until she entered the United States in July 2019. Respondent claims she “struggled to live” and “was forced to request help from the social services and Food Bank.” Petitioner denied that his “children went to bed hungry” and claims that respondent’s apartment in Podgorica “had everything.” Petitioner claimed that in accordance with the custody judgment he visited N.L. in Podgorica often before she turned two. After that, he claims he continued to visit her or bring her to Ulcinj on alternating weekends. Respondent denied these assertions. Petitioner failed to pay child support on three occasions, resulting in criminal judgments against him. But petitioner testified that he does not currently pay child support for N.L. because the child support respondent owes him for their son’s care is a nearly equal amount. And respondent admitted that petitioner paid “regularly every month after the last court order” up until June 2019.


On August 11, 2017, petitioner and respondent signed similar consent forms, one allowing D.L. to “cross the border in the company of” petitioner “to travel out of Montenegro (Serbia and abroad) in the period unlimited,” and one allowing N.L. to “cross the border accompanied by” respondent “for the purpose of traveling abroad (America) during the period from unlimited.” Petitioner testified that the form for N.L. gave respondent “the consent that she can go and travel as much as she wants so that I don’t have to go every time to Podgorica every time she wants to travel. Just as I have for the son, so that I don’t have to go every time to Podgorica, to United States, to ask for consent or to let the son go to excursion with school.”. Respondent testified that in presenting the form for D.L., petitioner “never acknowledged any intention to have our son relocated. He asked me for the permission for foreign travel at the same time when I asked him to sign off the permission that I can travel with our daughter. So, I signed also the permission for him that he can travel with our son. When asked if the form for N.L. “sa[id] anything about relocation,” respondent replied, “[N]o. It says here just for travel .... [T]his is the permission just to -- that you can freely get over the border to get out of the country, and nothing else.”. Respondent further testified that she never spoke to petitioner about “how long the trip [to the United States] [wa]s going to be,” nor did she “know that [she] was going to stay” in the United States ahead of time. Nevertheless, she asserted that “[t]here’s no time limit, how long I can stay with my child here in the United States.”




N.L. and respondent entered the United States in July 2019 on Montenegrin passports. To help N.L. obtain her passport, petitioner had signed a passport application for her shortly before she traveled to the United States. N.L. and respondent obtained nonimmigrant B-2 visitor visas to the United States. B-2 visas “are nonimmigrant visas for persons who want to enter the United States temporarily ... for tourism.” N.L.’s and respondent’s B-2 visas expired on January 1, 2020.  


N.L. has been in New York for more than eighteen months. She lives with respondent in an apartment with respondent’s sister, mother, and niece, and is enrolled in school, which takes place remotely due to the COVID-19 pandemic. N.L. “is in first grade and is learning how to write, draw, etc.” N.L. is attached to her mother, Elezovic, with whom she’s lived since birth.” Respondent is not currently employed, other than occasionally helping her sister with projects.



Articles 73 through 79 of Montenegrin Family Law regulate the relations between parents and children, as well as procedures related to the exercise of parental rights. Petitioner’s expert, Vladimir Radonjic, defines parental rights as “different duties and rights of parents to care about personality, rights and interests of their children.” Respondent’s expert, Vesna Raicevic, defines parental rights as “ha[ving] custody.” Article 78 provides that “[o]ne parent shall exercise parental right on the grounds of court decision when the parents do not live together, and have not concluded an agreement on exercise of parental right.” Both experts agree that Article 78 applies to N.L. Respondent asserts, based on Raicevic’s report, that the 2015 custody judgment appointed her “as the only parent who exclusively exercises parental rights” over N.L. Petitioner,  denied that only respondent has parental rights over N.L. Article 79 provides: The agreement on the independent exercise of parental rights includes the agreement of the parents on entrusting the joint child to one parent, the agreement on the amount of contribution for the maintenance of the child from the other parent and the agreement on maintaining the child’s personal relations with the other parent. The agreement on the independent exercise of parental rights transfers the exercise of parental rights to the parent to whom the child is entrusted. A parent who does not exercise parental rights has the right and duty to support the child, to maintain personal relations with the child and to decide on issues that significantly affect the child’s life jointly and in agreement with the parent exercising parental rights. Issues that significantly affect the child’s life, in terms of this law, are considered in particular: the child’s education, undertaking major medical procedures on the child, changing the child’s residence and disposing of the child’s property of great value. The rights granted under Article 79 of the Family Law of Montenegro can be altered only by a court order.


          Petitioner filed the action on July 13, 2020.  Petitioner argues that he is entitled to N.L.’s return to Montenegro because he had ne exeat rights protected by the Hague Convention and respondent breached those rights by keeping N.L. in the United States beyond the six months to which he consented. Respondent claims petitioner does not have any custody rights protected by the Hague Convention and even if he did, he waived them either by consenting to unlimited travel or failing to exercise those rights when N.L. was brought to the United States.


The district court found that the uncontested facts proves that six-year-old N.L. was habitually resident in Montenegro before coming to the United States. “[A] child’s habitual residence depends on the totality of the circumstances specific to the case,” taking into account “the family and social environment in which the child’s life has developed.” Monasky v. Taglieri, 140 S. Ct. 719, 723, 726 (2020) “Where a child has lived in one place with her family indefinitely, that place is likely to be her habitual residence.” Here, it was undisputed that N.L. resided in Montenegro her entire life, up to the point when respondent took her to the United States more than eighteen months ago.


The district court found that Respondent breached petitioner’s ne exeat rights over N.L. The Supreme Court has recognized that ne exeat rights—meaning joint rights to determine a child’s country of residence—constitute custody rights under the Hague Convention. See Abbott, 560 U.S. at 10–11. Here, it was undisputed that Article 79 of the Montenegrin Family Law grants “[t]he parent who does not exercise parental rights” the right “to decide on ... the child’s residence” and that this right can be derogated only through court order. The parties contested whether respondent exclusively holds “parental rights” over N.L. But this dispute was immaterial because Article 79 endows ne exeat rights even to “[t]he parent who does not exercise parental rights.” In fact, both experts appear to agree that Article 79 applies in this case. Thus, Article 79 established that petitioner has presumptive ne exeat rights over N.L.


Petitioner also had shown that respondent wrongfully retained N.L. in breach of his ne exeat rights. “ ‘[W]rongful retention’ occurs when one parent, having taken the child to a different Contracting State with permission of the other parent, fails to return the child to the first Contracting State when required.” Marks ex rel. SM v. Hochhauser, 876 F.3d 416, 421 (2d Cir. 2017). It was undisputed that petitioner consented to N.L. traveling to the United States with respondent and that N.L.’s and respondent’s B-2 tourist visas expired on January 1, 2020, which requires them to leave the country. Respondent contested, however, the scope of petitioner’s consent. She claims that the face of the consent form authorized N.L.’s remaining in the United States indefinitely because it allows N.L. to “cross the border” for the purpose of “traveling” abroad for an “unlimited” period of time. But in evaluating consent, courts look to “the petitioner’s subjective intent, including the nature and scope of the alleged consent.” In re Kim, 404 F. Supp. 2d 495, 516 (S.D.N.Y. 2005). To preclude the return remedy, a respondent must show the petitioner had the “‘subjective intent’ to permit Respondent to remove and retain the child for an indefinite or permanent time period.” While one could interpret the term “unlimited” to encompass one trip of infinite length on its face,10 petitioner presented uncontroverted evidence that he understood the consent form only to authorize an unrestricted number of temporary trips. Not only did petitioner testify to this understanding, but respondent also confirmed it. She testified that she never spoke to petitioner about “how long the trip [to the United States] [wa]s going to be,” nor did she “know that [she] was going to stay” in the United States ahead of time. Elezovic Dep. Tr. 61:10–14, 22–24. Thus, petitioner could not have formed the intent to authorize N.L.’s indefinite relocation to the United States beyond the bounds of a tourist visa. Moreover, respondent testified that she understood both the form petitioner signed for N.L. and the nearly identical form she signed for D.L. to grant “permission just to ... freely get over the border to get out of the country, and nothing else.” Based on this evidence, no reasonable jury could find that petitioner consented to N.L.’s indefinite retention in the United States and thus petitioner has established that N.L.’s retention was wrongful after the expiration of the parties’ B-2 visas on January 1, 2020.


[T]he standard for evaluating whether a petitioner is exercising custody at the time of removal is fairly lenient.” Valles Rubio v. Veintimilla Castro, No. 19-CV-2524 (KAM) (ST), 2019 WL 5189011, at *18 (E.D.N.Y. Oct. 15, 2019), aff’d, 813 F. App’x 619 (2d Cir. 2020). “A ‘person cannot fail to “exercise” [his] custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.’” Souratgar v. Fair, No. 12-CV-7797 (PKC), 2012 WL 6700214, at *4 (S.D.N.Y. Dec. 26, 2012) (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1066 (6th Cir. 1996)), aff’d sub nom. Souratgar v. Lee, 720 F.3d 96 (2d Cir. 2013). “[A] ne exeat right is by its nature inchoate and so has no operative force except when the other parent seeks to remove the child from the country.” Abbott, 560 U.S. at 13. “If that occurs, the parent can exercise the ne exeat right by declining consent to the exit or placing conditions to ensure the move will be in the child’s best interests. When one parent removes the child without seeking the ne exeat holder’s consent, it is an instance where the right would have been exercised but for the removal or retention.” Petitioner had shown that respondent sought his permission to travel to the United States with N.L. and that he consented to temporary visits. These facts alone show that petitioner was exercising his ne exeat rights at the time respondent wrongfully retained N.L. See Valles Rubio, 2019 WL 5189011, at *18 (finding petitioner exercised ne exeat right “by consenting to limited-duration travel”). Moreover, petitioner has shown that respondent retained N.L. in the United States past the boundaries of his consent, see supra Section I.B, and that he submitted a request for return under the Hague Convention on February 3, 2020, in addition to the instant lawsuit. See Haimdas, 720 F. Supp. 2d at 204 (finding the petitioner “would have exercised her ne exeat right but for the retention” because she declined to consent to her children “staying out of England for longer than one month” but “had no way to enforce that condition once they were physically present in the United States”).


Petitioner established a prima facie entitlement to the return remedy that respondent has failed to rebut. Respondent raised four affirmative defenses: (1) that petitioner consented to N.L.’s retention in the United States; (2) that petitioner was not exercising custody rights at the time of N.L.’s retention; (3) that judicial proceedings were not commenced within one year of N.L.’s retention and now she is well settled in New York; and (4) that there is a grave risk that N.L.’s return would expose her to harm. She failed to show either that she was entitled to summary judgment on any of these defenses or that genuine disputes of material facts existed regarding them.



Avendano v. Balza, 2021 WL 82378 (1st Cir.,2021)[Venezuela] [age and maturity defense -the mature child exception] [Petition denied]


In Avendano v. Balza, 2021 WL 82378 (1st Cir.,2021) the mother, plaintiff-appellant Veronica Luz Malaver Avendano (Avendano), sought G*’s return to Venezuela, alleging that G*’s father, defendant-appellee Leonardo Alfonzo Blanco Balza (Balza), abducted G* in contravention of a Venezuelan child custody order and the Hague Convention. The district court determined that Balza admitted to unlawfully retaining G* in contravention of the Hague Convention and the implementing statute. However, after determining that Balza had established that G* was a mature child such that the court should consider G*’s stated desire to remain with his father in the United States, the district court denied Avendano’s petition for return of her son to Venezuela. Avendano appealed that decision. The First Circuit affirmed.


Prior to the events leading to this litigation, G* lived with his mother in Venezuela, the country where he was born and is a citizen. Balza, a joint citizen of the United States and Venezuela with residence in Massachusetts, had joint custody over G* pursuant to a custody order by a Venezuelan court. Balza visited G* in Venezuela often while he resided there and provided financial support to G*. However, as the relationship between Avendano and Balza deteriorated, the parties sought a custody arrangement through the Venezuelan courts. That order provided for G* to visit Balza in the United States every August and every other December. Because of the poor relationship between Avendano and Balza, the Venezuelan courts had to intervene to enforce the order so that G* could travel to the United States in both 2016 and 2018. While G* was visiting Balza in the United States for his second yearly visit that began in August 2018, Balza secured U.S. citizenship on behalf of G* that resulted in the forfeiture of G*’s green card. Subsequently, Avendano refused to grant the necessary permission for issuance of G*’s U.S. passport, and a Venezuelan court refused to extend the period of visitation. Therefore, Balza declined to return G* to Venezuela at the end of his court-mandated visit, claiming that he would not return G* to Venezuela without the proper documents through which he could return to the United States. G* thus continued to live with Balza and has begun attending school in Massachusetts. The district court noted that G* speaks with his mother weekly and stays in contact with his friends in Venezuela.


After Balza’s retention of G* in the United States beyond the date of the Venezuelan court order, Avendano sought G*’s return by filing suit in federal district court. The parties agreed that Avendano had lawful custody of G* pursuant to a valid Venezuelan court order, that G*’s country of habitual residence was Venezuela, and that Balza wrongfully retained G* in the United States. Having conceded that he wrongfully retained G*, Balza argued that G* should nevertheless remain in the United States because G* is a mature child who objects to being returned to Venezuela and because G* would face grave conditions if returned to Venezuela. The district court determined that G* was a child of sufficient age and maturity to have his wishes taken into consideration. While finding that “[t]here is no question in the mind of the [c]ourt that Avendano is a loving and committed parent,” the district court then determined that G* genuinely objected to being returned to Venezuela because of ongoing political and societal tumult. Finally, the district court found that G*’s desire to remain in the United States was reached independently, free of undue influence by Balza. The district court “exercise[d] its discretion granted by Article 13 of the [Hague] Convention and refuse[d] Avendano’s petition for return of the child to Venezuela.”


The First Circuit observed that questions of fact, such as whether a child is of sufficient age and maturity to have his views considered and whether the child is subject to undue influence, are reviewed for clear error. Mendez, 778 F.3d at 344; Díaz-Alarcón, 944 F.3d at 311. “Clear-error review is demanding: this standard will be satisfied only if, ‘upon whole-record-review, an inquiring court “form[s] a strong, unyielding belief that a mistake has been made.” ’ ” United States v. Nuñez, 852 F.3d 141, 144 (1st Cir. 2017)(quoting United States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)). “It is not enough that a finding strikes us as possibly or even probably wrong.” Díaz-Alarcón, 944 F.3d at 312. To the extent that the district court interpreted and applied the Hague Convention, the review is de novo.


Avendano claimed that the district court erred in determining that G* was of sufficient age and maturity for the court to consider his wishes regarding his return to Venezuela.  The First Circuit noted that the Hague Convention does not set an age at which a child is considered to be sufficiently mature; rather, the determination is to be made on a case by case basis. The district court examined “whether G*, who would be twelve years old in March 2020, was sufficiently mature to have his views taken into account and if so, whether his views should carry the day.” The district court heard testimony from experts and witnesses familiar with G* and both his current and former living conditions. Finally, the district court personally interviewed G* in the offices of G*’s Guardian Ad Litem. Upon examination of this evidence, the district court determined that Balza “established by a preponderance of the evidence that G* is a mature child, whose desire to stay with his father in the United States should at least be considered.” The district court further concluded that “G* not only prefers to live in the United States, but also objects to being returned to Venezuela.” The district court noted that, while G* had positive and negative things to say about living in Venezuela and now living in the United States, G*’s desire to remain was “very clear, consistent, and rational.” There was no support in the Hague Convention or caselaw to support Avendano’s claim that the district court should have considered G*’s age retrospectively to the time he was retained in the United States. The Hague Convention ceases to apply once the child reaches the age of sixteen regardless of whether the child was wrongfully removed or retained prior to that date. It concluded that the district court did not clearly err in declining to return G* to Venezuela. The district court thoughtfully considered the age and maturity of G* and concluded that G* was of the age and maturity to have his views regarding his return to Venezuela considered. It afforded deference to the district court’s decision, in part based on its personal interview with G*, that G* was of sufficient age and maturity to have his views considered. See Díaz-Alarcón, 944 F.3d at 315 (affirming lower court decision pursuant to the Hague Convention primarily on the basis of the deference to district court’s discretion and expertise as the finder of fact); see also United States v. Young, 105 F.3d 1, 5 (1st Cir. 1997) (“Deference to the district court’s findings of fact reflects our awareness that the trial judge, who hears the testimony, observes the witnesses’ demeanor and evaluates the facts first hand, sits in the best position to determine what actually happened.”). Thus, based on the record it did not disturb the district court’s finding that G* was sufficiently mature.


Avendano also claimed that the district court erred in considering G*’s wishes prior to analyzing whether Balza exerted undue influence over G*. The Hague Convention is silent on undue influence and instead emphasizes the discretion of the deciding authority in applying the mature child exception. See Pérez–Vera Report at 433. The State Department’s analysis of the Hague Convention notes that the court’s discretion in applying the age and maturity exception is important in light of the “potential for brainwashing of the child by the alleged abductor.” Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10,494, 10,510 (Mar. 26, 1986) (Legal Analysis). Specifically, “[a] child’s objection to being returned may be accorded little if any weight if the court believes that the child’s preference is the product of the abductor parent’s undue influence over the child.” Id. In short, the possibility of undue influence over the child is one consideration in the competent authority’s assessment of whether a child is of the age and maturity to have their views considered. The district court noted that it was undisputed that G* wanted to stay with Balza in the United States and that “he has seemingly not waivered [sic] in his decision.” The district court then concluded that “G*’s desire to stay in the United States does not appear to be the result of undue influence or coaching by Balza.” In so determining, it pointed to testimony from the Guardian Ad Litem, testimony from Balza, and the court’s own interview with G*. The district court rejected Avendano’s claims that Balza unduly influenced G* both by questioning the truth of Avendano’s testimony and by concluding that, even if Avendano’s allegations were true, they would not rise to the level of undue influence. In determining that there was no undue influence, the district court noted that “G* feels like he is free to choose for himself whether he wants to stay in the United States or return to Venezuela,” regardless of the truth of that belief in light of conditions in Venezuela and the strained relationship between Avendano and Balza. Finally, in concluding that G* wished to remain in the United States, the court noted “that current living conditions in Venezuela” were relevant to G*’s desire to remain in the United States even though the district court ultimately did not find it necessary to decide Balza’s claim that G* would face grave conditions if returned to Venezuela.


 The First Circuit found that the district court did not clearly err in determining that Balza did not unduly influence G*’s desire to remain in the United States and his objection to returning to Venezuela. The analysis provided by the district court shows that it considered all the relevant evidence. Thus, the court’s conclusion that G* met the mature child exception after the court met with G* and rejected Avendano’s allegations of Balza’s undue influence should be afforded deference. See Díaz-Alarcón, 944 F.3d at 315; Young, 105 F.3d at 5.


Furthermore, the district court did not rely solely upon G*’s expressed desire to remain in the United States and objection to being returned to Venezuela. The district court’s ruling was also supported by socio-political conditions in Venezuela and G*’s continued access to and communication with Avendano in deciding to retain G* in the United States. In sum, the district court’s age and maturity decision properly considered Balza’s influence over G* and, based on the totality of the circumstances, the court did not clearly err or abuse its discretion in declining to order G*’s return to Venezuela. Therefore, the district court’s decision was  affirmed.