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Wednesday, November 9, 2022

Poix v Santana, 2022 WL 16751915 ( S.D. New York, 2022)[Dominican Republic] [Petition granted] [ Temporary stay granted]

 

In Poix v Santana,  2022 WL 16751915( S.D. New York, 2022) on October 17, 2022, the Court granted  Petitioner Joseph Etienne’s Petition for the return of his children, M.G.E. and A.F.E., to the Dominican Republic. Respondent filed a notice of appeal and a motion to stay its order for the return of the children pending appeal. The District Court observed that courts should apply the four traditional stay factors in considering whether to stay a return order: ‘(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) “[A] district court’s application of these four factors to its own return order under the Hague Convention will rarely augur in favor of issuing a stay.” Hofmann v. Sender, No. 12 Civ. 8104 (KMK), 2012 WL 8466673, at *1 (S.D.N.Y. Dec 20, 2012); see also Lukic v. Elezovic, No. 20 Civ. 3110 (ARR) (LB), 2021 WL 804384, at *3 (E.D.N.Y. Mar. 3, 2021) (“[S]tays pending appeal of Hague Convention return orders ... are heavily disfavored.”; Haimdas v. Haimdas, 720 F. Supp. 2d 183, 211 (E.D.N.Y. 2010) (“Staying the return of a child in an action under the Convention should hardly be a matter of course.” Three of the four factors clearly favored denying a stay.  Nor did the remaining factor—irreparable harm to the moving party—favor granting a stay. The return of the children would  not moot Respondent’s appeal to the Second Circuit, see Chafin, 568 U.S. at 180, and were the Court’s decision to be reversed she should be able to bring the children back to the United States, since she retained temporary guardianship of them in the Dominican Republic. Nonetheless, although staying return is ordinarily disfavored in the context of Hague Convention cases, district courts in this Circuit often grant brief, temporary stays to enable respondents to seek emergency relief from the Court of Appeals for the Second Circuit before a child is returned. See, e.g., In re E.Z., No. 21 Civ. 6524 (MKV), 2021 WL 5106637, at *26 (S.D.N.Y. Nov. 2, 2021); Lukic, 2021 WL 804384, at *4; Grano v. Martin, 443 F. Supp. 3d 510, 545 (S.D.N.Y. 2020); Souratgar v. Fair, No. 12 Civ. 7797 (PKC), 2012 WL 6700214, at *18 (S.D.N.Y. Dec. 26, 2012); Hofmann, 2012 WL 8466673, at *2; Haimdas, 720 F. Supp. 2d at 211-12. And the Court of Appeals has indicated that it finds such brief delays helpful. See Diorinou v. Mezitis, 237 F.3d 133, 138 (2d Cir. 2001) (“The District Court helpfully stayed its order until November 30 to permit Mezitis to seek a stay pending appeal from this Court.”). For that reason, the Court granted a brief stay of one week of its October 17, 2022 order that Respondent return M.G.E. and A.F.E. to the Dominican Republic, so that Respondent may seek emergency relief from the Court of Appeals.

Sunday, October 23, 2022

Poix v Santana, 2022 WL 9847347 ( S.D. New York, 2022) [Dominican Republic] [Petition granted] [Habitual residence][Grave risk of harm not established]

In Poix v Santana, 2022 WL 9847347 ( S.D. New York, 2022) the Court granted the Petition and ordered the children M.G.E. and A.F.E., returned to the Dominican Republic.

 

Petitioner, who was born in Haiti in 1968, was a citizen of the Dominican Republic and Haiti, while Respondent was born in the Dominican Republic in 1986. The two met in 2013 and were married in the Dominican Republic in April 2014. Following their marriage, they resided in Santo Domingo in the Dominican Republic. They had two children. M.G.E was born in Manhattan in January 2016, and A.F.E. was born in Manhattan in October 2017. Soon after each child was born in the United States, thereby securing U.S. citizenship, the Respondent and the child returned to the Dominican Republic, In April 2020, the parties separated, and the Respondent and the children moved out of the family’s joint residence. The parties subsequently were divorced by mutual consent in December 2020. At some point around the end of July 2021, Respondent moved with the children from Santo Domingo to Santiago, the city in the Dominican Republic where her family resided. Then, on August 22, 2021, the Respondent and the children traveled from the Dominican Republic to the United States. They currently resided in New York City, where the Respondent worked as a teacher. Petitioner realized that Respondent and the children had left the Dominican Republic for the United States at some point in September 2021. 

 


The Court found that the evidence at trial established that, aside from their births, M.G.E. and A.F.E. lived in the Dominican Republic until the Respondent removed them to the United States in August 2021. The testimony further revealed that, while married, Petitioner and Respondent both intended the Dominican Republic to be the children’s habitual residence. Dominican family law grants “[p]arental authority ... equally to the father and mother.”  Dominican Republic Law 136-03, art. 67 That parental authority ends when a child reaches adulthood, marries, or dies, or when it is terminated by a court. The children are not adults, they have not married, and they have not died, nor has Petitioner’s parental authority been terminated by a court. Respondent was granted temporary guardianship of the children in the decree of divorce that dissolved their marriage. But an award of temporary guardianship to one parent does not constitute an order terminating the other’s parental authority. Thus, Petitioner retained parental authority over the children after his divorce from Respondent, including at the point when she removed them from the Dominican Republic to the United States. Under Dominican law, Petitioner’s parental authority grants him a ne exeat right to prevent the children from being taken from the country without his consent: “If one of the parents intends to leave the country with one of their sons or daughters, they may not do so without the written consent of the other [parent].” Dominican Republic Law 136-03, art. 204; Respondent herself acknowledged to Petitioner when renewing the children’s passports that she would need his consent to take them out of the country. Because she removed the children from the Dominican Republic without Petitioner’s written consent, Respondent violated Petitioner’s ne exeat right under Dominican family law. And since a ne exeat right is a right of custody under the Convention, see Abbott, 560 U.S. at 10, the removal was “in breach of rights of custody” under Article 3 of the Convention, as Respondent conceded, The evidence submitted at trial easily satisfied Petitioner’s burden of showing that his involvement with the children prior to their removal constituted the exercise of his rights of custody. After the separation, he saw them “[a]t least once a week on a regular basis.”  Beyond his in-person interactions with the children, Petitioner further exercised his rights of custody by helping with the children’s expenses and participating in childcare—as Respondent herself acknowledged at trial. With all three elements under the Convention established, see Gitter, 396 F.3d at 130-31, the Court concluded that the children were wrongfully removed from the Dominican Republic for purposes of the Convention. 


The Respondent argued that Petitioner ceased to exercise his rights of custody during the months immediately before the children’s removal from the Dominican Republic. During that period, she argued, he did not visit them in person, he refused to communicate with them over telephone or video chat, and he refused to visit them in person by traveling from Santo Domingo, where he lived, to Santiago, where Respondent was living with the children. The parties do not dispute those facts. Petitioner did not see the children in person from late June or early July 2021 until their removal (and, indeed, has not seen them since). During that period, Petitioner acknowledged, he refused to travel to Santiago even though Respondent had said she would let him see the children there. And when Respondent told him that she was willing to permit him to communicate with the children only via telephone or video chat, he responded not by using those methods of communication but rather by telling her that her offer was “unacceptable.” The court noted that in some circumstances, a parent’s cessation of communications or in-person visits with a child might suggest that he stopped exercising his rights of custody. But while Petitioner did not actually communicate with the children or see them in person after around late June 2021, the evidence at trial showed that he attempted to maintain contact with them in July and August 2021 before they left the Dominican Republic for the United States. The evidence established that Petitioner did attempt to maintain regular contact with the children between June 2021 and their departure from the Dominican Republic in August 2021: he repeatedly asked Respondent to allow him to visit them in person, and the Court concludes that he would have continued to maintain contact with them had those requests been granted. Thus, although he did not visit them in person after June 2021, in these circumstances that fact did not reflect a failure to exercise rights of custody at the time of the removal. Accordingly, Petitioner established at trial by a preponderance of the evidence that he was exercising rights of custody at the time the children were removed from the Dominican Republic. Consequently, their removal was wrongful under Article 3 of the Convention. Furthermore, because Respondent had not produced sufficient evidence to show that Petitioner “was not actually exercising the custody rights at the time of removal,” the exception established by Article 13(a) of the Convention cannot apply.

 

The Court rejected the Respondent's grave risk defense under Article 13(b) of the Convention, which permits a court not to return a child if “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Hague Convention art. 13(b). While Respondent did present some evidence in support of her Article 13(b) defense, that evidence was insufficient to show it highly probable or reasonably certain that returning the children would expose them to a grave risk of physical or psychological harm. Consequently, Respondent did not show that Article 13(b) permits this Court to decline to order the return of the children to the Dominican Republic.

 

Respondent’s counsel argued at trial that returning the children to the Dominican Republic would risk exposing them to physical violence from Petitioner. Tr. at 239:20-23. Without a doubt, violence directed at a child could qualify as severe harm under Article 13(b). See Ermini v. Vittori, 758 F.3d 153, 164-65 (2d Cir. 2014) (finding a “sustained pattern of physical abuse” on the part of a petitioner sufficient for an Article 13(b) defense).  The primary event Respondent cited as evidence of that risk is the incident of spousal violence, that she alleged took place while she was pregnant with A.F.E. As described, the incident was disturbing and abhorrent. But even accepting Respondent’s characterization as accurate, it would provide only weak evidence in support of an Article 13(b) defense, however poorly the incident might otherwise reflect upon Petitioner. For even if it demonstrates that Respondent might have faced a grave risk of further violence were she to have remained in a relationship with Petitioner, “[t]he Article 13(b) inquiry is not whether repatriation would place the respondent parent’s safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm.” Souratgar, 720 F.3d at 104 (emphasis added). That is, spousal violence bears on Respondent’s Article 13(b) defense only to the extent that it identifies a grave risk of violence that the children would face if returned. Certainly, spousal violence can sometimes support a finding that such a risk to the children exists if it “show[s] a sustained pattern of physical abuse and/or a propensity for violent abuse.” But a single incident of violence does not suffice to demonstrate a sustained pattern of or propensity for abuse. “[L]imited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk.” Indeed, the Second Circuit has affirmed an order for a child’s return despite evidence of repeated spousal violence; because given “the lack of any indicia of ill-will on the part of [the petitioner] toward [the child], and contrary credited evidence of a loving father-son relationship,” the spousal violence was insufficient to establish a “clear and convincing showing in the record that the boy faces a grave risk of harm from his father,” id. at 106. And if repeated spousal violence does not suffice for an Article 13(b) defense, then the single incident Respondent alleged cannot suffice either, especially when combined with the absence of any evidence that Petitioner ever abused the children and the ample evidence of his loving relationship with them.

 

To support her Article 13(b) defense, Respondent also pointed to the social gathering in Puerto Plata in 2017 that she, Petitioner, and M.G.E. attended. At that gathering, some friends of Petitioner’s were smoking marijuana, causing Respondent to feel unsafe and ultimately to leave with M.G.E. Subsequently, she was forced to make her way home by herself via taxi and public transportation, despite having very little cash on her. Petitioner’s conduct on this occasion, while perhaps not exemplary, did not amount to clear and convincing evidence that returning the children would expose them to a grave risk of physical or psychological harm. An Article 13(b) defense may succeed based on the risk that a petitioner himself will cause harm “in cases of serious abuse or neglect.” Souratgar, 720 F.3d at 103  


The Court rejected the argument that Petitioner’s refusal to contact the children via telephone or video chat after they were removed from the Dominican Republic justifies a finding that returning them would create a grave risk because his failure to contact the children demonstrates his lack of empathy for them and disregard for their wellbeing. 


 The remaining evidence Respondent advanced to sustain her Article 13(b) defense largely concerned Petitioner’s treatment of her during their marriage. Respondent testified that Petitioner misinformed her about the number of children he had and about the nature of his relationships with some of them; he began drinking during the marriage; he would not let her visit her family for the holidays; he misled her about his faith,  he was unfaithful to her after she gave birth to M.G.E.; he verbally abused her,  he used his control of the family’s finances to control her; and he argued with her in public around the couple’s friends. As a result, both Respondent and her witnesses testified that she was depressed and unhappy in the marriage. Article 13(b) does not establish an exception to return based on the relationship between the parents; rather, it permits children not to be returned only when there is a grave risk of harm to the children. Thus, the reasons for the breakdown of the parties’ marriage are not relevant to the Article 13(b) analysis unless they establish a very high likelihood that the children will suffer severe harm if they are returned. And while this evidence may establish Petitioner’s unsuitability to be married to Respondent, Respondent advanced no argument for why it showed that the children will likely suffer harm if they are returned to the Dominican Republic.

 

Respondent did not establish by clear and convincing evidence, the grave risk that returning the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation. See Hague Convention art. 13(b).  


Wednesday, October 5, 2022

Recent Hague Convention District Court Cases - Mejia Rodriguez v. Molina, --- F.Supp.3d ----, 2022 WL 4597455 ( S.D. Iowa, 2022)

 [Honduras][Petition granted] [Grave risk of harm not established]
Mejia Rodriguez v. Molina, --- F.Supp.3d ----, 2022 WL 4597455 ( S.D. Iowa, 2022) 

 

In Mejia Rodriguez v. Molina, --- F.Supp.3d ----, 2022 WL 4597455 ( S.D. Iowa, 2022) minor Child was born in Honduras to Eny Adamy Mejia Rodriguez and Dennys Antonio Reyes Molina. She lived with both parents for the first months of her life until they separated. Afterwards, she lived with Petitioner full-time while Respondent and Respondent’s family remained involved in her life. Minor Child lived with Petitioner from their separation until Respondent brought her to the United States. Court heard testimony from several people explaining how Petitioner struck Minor Child as punishment for misbehavior. The period of abuse started when the Minor Child was two and continued until she was removed from Honduras at the age of five. Respondent testified that Petitioner used physical violence to punish Minor Child for her behavior. She used a broom to strike the child for being energetic at the age of two. She repeatedly utilized either her fist or the palm of her hand to hit the Minor Child on the back as punishment, which started at the age of four. On another occasion, she repeatedly hit the Minor Child with a belt, leaving significant bruises, after she urinated in her bed. This caused the child to be so scared that she urinated in the bed again. Respondent’s sister, Luz Marina Reyes Molina, testified to Petitioner’s history of striking the minor child as well. She stated Petitioner once hit the child in her home when Petitioner and the child visited. Specifically, Petitioner punched the child in the back for being disrespectful. She recalled Minor Child would visit her house and tell her something like “mom hit me” during the visits. Respondent’s other sister, Lillian Maritza Reyes Molina, also witnessed Petitioner strike the child during a visit. She observed an instance of Petitioner hitting the Minor Child as punishment for her behavior. Petitioner kicked her other child, the child’s older brother, during the same visit. Beyond this incident, she stated there were two other instances where Petitioner was intoxicated and struck the child, although the timeframe of these incidents was unclear.

The parties did not dispute that Petitioner  established a prima facie case of improper removal under the Convention. The court found that Respondent had not established the applicability of a grave risk exception by clear and convincing evidence. The Petition for Return was granted. The Court held that Grave risk constitutes an affirmative defense when there will likely be “serious abuse or neglect” upon return. The key inquiry is “the gravity of risk” facing the child. This analysis focuses on “the probability of harm, but also the magnitude of the harm if the probability materializes. ”A court must cite “specific evidence of potential harm” to a child as part of the inquiry.  There are several factors to consider when examining the grave risk of serious abuse or neglect in the context of physical abuse. The first consideration is if a parent abused their children. The second factor is a parent’s ability to manage their anger. The third factor is spousal abuse. The Court found the record did not show by clear and convincing evidence that Minor Child would face a similarly grave risk of serious harm upon return to Honduras. The Court held the evidence was insufficient to grant Respondent the relief he sought. 



Sunday, October 2, 2022

Recent Hague Convention District Court Cases - Radu v Shon, 2022 WL 4535419 ( D. Arizona, 2022).

 

Radu v Shon, 2022 WL 4535419 ( D. Arizona, 2022).

[Germany][Petition granted] [Request for third Stay denied]


 On August 22, 2022, the Court granted Radu’s Petition for Return of Children to Germany. Respondent filed a Notice of Appeal and a Motion to Stay the Court’s Third Return Order pending the appeal . The Court held that in considering whether to stay a return order in a Hague Convention case, courts consider the traditional stay factors: “(1) whether the stay applicant has made a strong showing that [s]he is likely to succeed on the merits; (2) whether the applicant will be irreparably inured 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). The Court did not find that Respondent had made a strong showing that she is likely to succeed on the merits of her appeal. The second factor weighed in favor of a stay because returning to Germany while Respondent’s appeal was pending will be disruptive to Respondent and the children. See Chafin, 568 U.S. at 178 (“shuttling children back and forth between parents and across international borders may be detrimental to those children”). The third factor weighed strongly against a stay, even though Respondent’s appeal had been expedited. Petitioner has joint custody rights under German law and yet, as a result of Respondent’s actions, he had been unable to see his children in over three years. The testimony and evidence before the Court indicated that Respondent interfered with Petitioner’s ability to contact his children. Respondent’s interference with Petitioner’s ability to see and contact his children has and continues to cause substantial and irreparable injury to Petitioner—and, appears to be causing injury to O.S.R., as well. The fourth factor was neutral, as the public interest favors both the prompt return of wrongfully removed children and the safeguarding of the well-being of children. On balance, the relevant factors weighed against granting a stay pending resolution of Respondent’s appeal. However, the Court granted Respondent’s alternative request to temporarily stay its Third Return Order until the Ninth Circuit Court of Appeals rules on a timely filed motion to stay.

 

Tuesday, September 20, 2022

Recent Hague Convention District Court Cases - Tsuruta v Tsuruta, 2022 WL 4299814( E.D. Missouri, 2022)

 Tsuruta v Tsuruta, 2022 WL 4299814( E.D. Missouri, 2022)

[Japan] [Petition granted] [Habitual residence] [Grave risk of harm not established][Consent or acquiescence not established]

 

In Tsuruta v Tsuruta, 2022 WL 4299814( E.D. Missouri, 2022) the Petitioner demonstrated, by a preponderance of the evidence, that Japan was the habitual residence of L.T. immediately prior to her removal from Japan on October 15, 2021. There was significant evidence that L.T. acclimatized to Japan during her time there. Although the evidence regarding the intentions of L.T.’s parents was conflicting, it generally supported a finding that the parents had the settled purpose of creating a home in Japan, perhaps not forever, but for a significant period of time.

As of the time L.T. was removed from Japan, L.T.’s place of habitual residence was Japan. The burden thus shifted to Respondent to establish an affirmative defense to L.T.’s prompt return.

 In her Answer, Respondent asserted two affirmative defenses: (1) that returning L.T. to Japan would expose L.T. to a grave risk of physical or psychological harm; and (2) that Petitioner consented to and acquiesced in Respondent’s retaining L.T. in the United States. In her Answer, Respondent alleged that Petitioner had “abused, isolated, controlled, and assaulted Respondent and the Minor Child, both physically and verbally,” and that “[t]he Minor Child has expressed fear of Petitioner and is afraid of further harm at the hands of Petitioner.” Respondent also alleged that she and the child were held in Japan against their will for twenty months, and that Petitioner “told Respondent that if she ever tried to leave Petitioner’s control, he would kill her.” When she testified at trial, Respondent offered no evidence in support of most of these allegations. The Court found no evidence, let alone clear and convincing evidence, that returning L.T. to Japan would subject L.T. to a grave risk of physical or psychological harm.  In her Answer, Respondent alleged that prior to leaving Japan, she informed Petitioner of her intent to come home to the United States, that Petitioner was aware at all times that Respondent had left Japan with the child for the United States and was in continuous contact with Respondent; and that Petitioner did not make any effort to secure the return of the child until 180 days had passed after the removal and until over 150 days after Respondent filed divorce proceedings. Respondent did not address this defense in her trial brief or in the proposed memorandum opinion she filed after trial. Based on the evidence presented at trial, the Court found that Respondent had not demonstrated, by a preponderance of the evidence, either that Petitioner consented to the removal of L.T. before it occurred or that Petitioner acquiesced in the removal after it occurred.

Recent Hague Convention District Court Cases - Homer v Homer, 2022 WL 4290465 (S.D. Texas, 2022)

 

Homer v Homer, 2022 WL 4290465 (S.D. Texas, 2022)

[Sweden] [Motion for Attorney’s Fees, Expenses and Costs] granted in part and denied in part.

The Court awarded Derek $32,780 for attorney’s fees and $5,205.65 for expenses. Derek filed motion to recover his attorney’s fees, expenses and costs incurred for the return of S.C.H. in the amount o of $40,437 for Derek’s attorney’s fees and $16,198.22 for Derek’s costs and expenses in the United States and Sweden.  The Court observed that he respondent, not the movant. bears the burden of demonstrating that a fee award is clearly inappropriate. Ebele’s response failed to cite any case interpreting or applying the statute in support of an argument that there was an equitable basis for reducing the award of fees and costs. Ebele’s response did  not provide any evidence regarding her financial condition, employment status or other evidence that courts have used as an equitable basis to reduce an award. Instead, Ebele globally argued that the total amount of fees and costs requested are “patently not reasonable.  

Saturday, September 10, 2022

Recent Hague Convention District Court Cases - Radu, v. Shon, 2022 WL 4099225, (District Court, D. Arizona, 2022)

 

[Germany][Petition granted][Grave risk of Harm][Ameliorative measures]

 In  Radu, v. Shon, 2022 WL 4099225, (District Court, D. Arizona, 2022) on December 30, 2021, the Court granted Petitioner Bogdan Radu’s Petition for Return of Children to Germany. Respondent appealed and the Ninth Circuit Court of Appeals remanded for the Court to reconsider its ruling in light of Golan v. Saada, __ U.S. __, 142 S. Ct. 1880 (2022). The Court held a further evidentiary hearing and contacted the United States Department of State for assistance. On December 30, 2021, the Court again ordered Respondent to return O.S.R. and M.S.R. to Germany. The Court recognized that this is “a borderline case whether an Article 13(b) finding is warranted.” The Court further found that the alternative remedy of ordering Respondent to return with O.S.R. and M.S.R. to Germany would ameliorate the risk of psychological harm to O.S.R. and M.S.R. given the unique circumstances of this case, including Germany’s child protection services, the ability of a German court to prioritize child custody matters for expedited processing pursuant to Section 155 of the Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction, Respondent’s joint custody rights under German law, Respondent’s ability to stay in Germany for at least three months, and Petitioner’s commitment to paying, if necessary, for the airfare of O.S.R. and M.S.R., as well as rent for a separate residence for Respondent and the children until a German court makes a custody determination. On June 15, 2022, the United States Supreme Court issued Golan, holding that “consideration of ameliorative measures” after an Article 13(b) finding is not required under the Convention but, rather, “is within a district court’s discretion.” 142 S. Ct. at 1893. The Supreme Court also clarified that a district court’s consideration of ameliorative measures (1) “must prioritize the child’s physical and psychological safety,” (2) must “not usurp the role of the court that will adjudicate the underlying custody dispute,” and (3) “must accord with the Convention’s requirement that the courts act expeditiously in proceedings for the return of children.” “[A] district court reasonably may decline to consider ameliorative measures that have not been raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings.”  The Court, in its discretion, found that consideration of ameliorative measures was appropriate in this case,  and the ameliorative measure set forth in its December 30, 2021 Order—namely, that Respondent return with O.S.R. and M.S.R. to Germany—satisfied the requirements outlined in Golan.

Recent Hague Convention District Court Cases - Ruiz v Zinsou, 2022 WL 3931454, (N.D. Georgia, 2022)

 

[Colombia] [Petition granted]


 

In Ruiz v Zinsou, 2022 WL 3931454, (N.D. Georgia, 2022)the District Court found that  in 2014, Petitioner was deported to Colombia. Sometime in 2015, Respondent moved with K.P.C.A. to Colombia to live with the Petitioner. Though Petitioner and Respondent never married, the family lived together in MedellĂ­n, Colombia from sometime in 2015 until May 28, 2021.Colombian law requires that, before a child leaves Colombia with one parent or a third party, the parent remaining in Colombia sign a “Permiso Para Salir Del Pais.” This document authorizes the child to be out of the country for the dates specified in the document. Petitioner signed and notarized a Permiso Para Salir Del Pais authorizing K.P.C.A. to travel to the United States from May 28, 2021 through June 17, 2021. At the point that Petitioner signed the travel authorization, it was clear that the trip was to be no more than three-weeks. However, at some point between May 28 and June 17, Respondent decided not to return as planned. She cancelled her ticket and stayed in the United States with K.P.C.A. In October 2021, it became clear to Petitioner that Respondent had no intentions of ever returning. This petition was filed on June 9, 2022 pursuant to Article 3 of the Convention. The Court found that the retention of K.P.C.A. in the United States as of June 18, 2021 was wrongful. It further finds that Respondent did not meet her burden of proving an affirmative defense under the Convention. K.P.C.A. did not articulate a particularized objection to returning to Colombia sufficient to meet the mature-child-objection defense. Respondent failed to meet her burden as to this affirmative defense.  Respondent failed to meet her burden concerning consent. Nor was there evidence presented of formal acquiescence, such as testimony in a judicial proceeding or a convincing written renunciation of rights. Respondent raised the well-settled defense, but the Court found that it is not available to her as a matter of law since Petitioner filed his Petition within one year of the wrongful retention. Pursuant to Article 13(b) of the Convention, courts are not required to order a child to return where “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Respondent bears the burden of proving this defense by clear and convincing evidence. Respondent put forth minimal evidence in support. She submitted the United States State Department’s travel advisory for Colombia as well as some evidence that Petitioner had previous issues with drugs and alcohol. Both Respondent and K.P.C.A. stated that they had never witnessed any crime or act of terrorism in Colombia, or any reasonable risk of harm at the hands of Petitioner. This did not meet the standard to show that K.P.C.A. would be in a grave risk of harm if returned to Colombia.

Recent Hague Convention District Court Cases - Vonnahme v. Lugo, 2022 WL 3701578, (District Court, D. Nevada, 2022).

 [Germany] [Petition granted] [Rights of custody]


In Vonnahme v. Lugo, 2022 WL 3701578, (District Court, D. Nevada, 2022) the  couple separated in 2014, and Vonnahme pursued a divorce in Cuba in 2015. That divorce was granted, and the decree established that “patria potestas” (parental authority) would remain with both parties, while “guardia y cuidada” (custody and care) would remain with Lugo. Later that year, Vonnahme applied to have the divorce recognized in Germany. The Dusseldorf High Regional Court recognized the Cuban decree to the extent that the parties were divorced, but it did not mention custody rights. The parties’ Cuban divorce decree stated that “[t]he custody and care of the minor daughter of the spouses ... remain with the mother, with parental authority remaining with both parents” and goes on to explain that the father must pay child support and “may visit the daughter as he pleases, without disturbing the times of sleep and meals; he can go for a walk with her.” The original Spanish-language version of the decree makes Lugo responsible for the “guardia y cuidado” of the child, while “patria potestas” remains with both parents.  The court observed that American courts have explained that patria potestas, a term of art in many Spanish-speaking countries, “has consistently and rightly been recognized as a right of custody under the Hague Convention.” Cuba’s recognition of patria potestas similarly qualified. Cuban law defines “patria potestas” to include extensive rights and duties, including the duties to provide children with a stable home, arrange for their education, care for their property, and represent them in judicial actions. It also refers to “guardia y cuidado” rights when parents no longer live together and uses the term to define which parent the child will more permanently live with. But awarding one parent the rights to guardianship and care of a child does not terminate the other parent’s patria potestas rights. The Cuban Family Code also states that, in the event of divorce, the “court will grant patria potestas, establishing as a rule that both parents shall retain it over their minors.”  Lugo and Vonnahme’s Cuban decree, recognized joint patria potestas rights while also specifying some visitation rights. So, this decree does not “eliminate any basis for relying on patria potestas,” because the decree itself recognizes Vonnahme’s patria potestas rights. The court found that, either under operation of Germany’s automatic assumption of joint custody or Germany’s implicit recognition of the Cuban divorce decree, Vonnahme had custody rights under the Hague Convention.



Recent Hague Convention District Court Cases - Livingstone v Livingstone, 2022 WL 3699832 (District Court, D. Colorado,2022)

[Australia.] [Petition denied]

In Livingstone v Livingstone, 2022 WL 3699832 (District Court, D. Colorado,2022) the  Court concluded the children were habitually resident in Australia at the time of their removal. Petitioner failed to establish the other two elements of a prima facie case by a preponderance of the evidence. First, Petitioner failed to show what custody rights, if any, he retained under the Australian Family Law Act while the protection order was in effect—a prerequisite to establishing that the children’s removal was in breach of such rights. No evidence or testimony was offered at the hearing as to this matter. Given the breadth of the protection order, the Court declined to assume that such remaining rights were substantial enough that Respondent’s removal of the children breached his rights. Second, Petitioner failed to show he was exercising his custody rights at the time of removal. The Court acknowledged that a petitioner’s burden of proof on this element is minimal in the ordinary case. See Friedrich v. Friedrich, 78 F.3d 1060, 1066 (6th Cir. 1996) (“[I]f a person has valid custody rights to a child under the law of the country of the child’s habitual residence, that person cannot fail to ‘exercise’ those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.”). And the Court found there was no evidence that Petitioner ever clearly and unequivocally declared any intention to abandon the children. However, in addition to failing specify what custody rights he still retained, Petitioner  also failed to explain how he could exercise such rights while maintaining one hundred meters of separation between him and where the children live, work, or frequent, and without contacting them or arranging for others to contact them (other than through a lawyer) for a five-year period. Given this looming impossibility, the Court found that  Petitioner’s contention that he would continue to be exercising his custody rights but for Respondent’s wrongful removal and retention of the children was a fiction. In fact, because of the protection order, he was no longer exercising his custody rights at the time of removal.

Recent Hague Convention District Court Cases - Romanov v. Soto, 2022 WL 3646325, (District Court, M.D. Florida, 2022)

 [Canada] [Fathers Petition for return granted] [ Motion for Petitioner’s Attorney’s Fees and Costs Pursuant to 22 USC § 9007(b)(3)]


In Romanov v. Soto, 2022 WL 3646325, (District Court, M.D. Florida, 2022) the Court found that under ICARA, the Father was presumptively entitled to a recovery of necessary expenses in this action because the Court ordered the return of the Children to Canada. The Mother had not presented any evidence that she believed in good faith that her actions were legal or justified. The Mother did not submit financial information and did not prove that any award of fees would be clearly inappropriate because of her financial circumstances. Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018)) The Mother has not produced a financial affidavit. Nevertheless, the Court held that it may reconsider the Mother’s financial circumstances when determining the amount of fees to be awarded. The Mother could provide the Court with additional information regarding the question of whether awarding the full amount of the Father’s requested fees and expenses would be clearly inappropriate. The Mother had not demonstrated that any award of expenses would be clearly inappropriate. Therefore, the Court found that the Motion should be  granted to the extent that the Father was entitled to an award of necessary expenses, “including court costs, legal fees, ... and transportation costs related to the return of the [Children].” 22 U.S.C. § 9007(b)(3). The Court directed the parties to confer as to the amount of expenses to be awarded, and the Father was given forty-five days to file a supplemental motion.

Saturday, August 13, 2022

Recent Hague Convention District Court Cases - Lopez v Ash, 2022 WL 3328888 (W.D. Louisiana, 2022)

 [Honduras] [Habitual residence] [Petition granted]

In Lopez v Ash, 2022 WL 3328888 (W.D. Louisiana, 2022) the court granted the petition of Soguey Aracely Ariza Lopez (“Ariza”) against Respondent Kelly Christopher Ash (“Ash”) for the return MCAA to Honduras. MCAA was born in 2012 in Utila, Honduras. Ash was not the biological father of MCAA, but his name appeared on the child’s birth certificate.. Ash moved back to the United States in 2017. On November 8, 2021, Ash and Ariza entered into a Settlement Agreement (“the Settlement Agreement”) in which Ariza was granted full custody of the child and Ash was prohibited from taking the child out of the country without prior authorization from Ariza.  The Settlement Agreement explicitly authorized Ash to travel with the child to Tegucigalpa, Honduras, on November 9 and 10, 2021, to go to the American Embassy then return to Roaton, Bay Islands. The Settlement Agreement prohibited Ash from removing the child from the country at this time without prior authorization. Ash traveled with MCAA to the capital city on November 9, 2021. By November 11, 2022, Ash had not return to Roatan with MCAA. Ariza had little to no contact with MCAA at this time  Ariza confirmed, that the child was removed from the country on November 9, 2022. Prior to his removal by Ash in November 2021, MCAA lived his entire life in Honduras.. The court found that the habitual residence of the child was Honduras. It rejected Ash’s argument that Ariza was not exercising custody rights at the time of removal and that she consented or acquiesced to MCAA’s removal. These arguments were unsupported.  The Court reached a similar conclusion as to Ash’s argument that the child objected to leaving the United States and wished to remain with his father. It found that any apprehension the child had towards returning to Honduras had been fostered by Ash in an attempt to keep the child in the United States. Ash contended that MCAA should not return to Honduras because he was in grave risk of serious injury or harm there. The Court found his argument lacking in particularity and legitimacy. Ash could not point to a specific, real risk to the child but instead painted the whole of Honduras as an unsafe place with a bad educational system

Sunday, August 7, 2022

Recent Hague Convention District Court Cases - Guzzo v Hansen, 2022 WL 3081159 (E.D. Missouri, 2022)

 [Italy][Habitual residence][Petition granted]

In Guzzo v Hansen, 2022 WL 3081159 (E.D. Missouri, 2022) the district court granted the fathers Complaint for Return. In a judgment dated May 4, 2021  the Spanish court awarded: (1) the parties joint parental authority; (2) Mother primary physical custody; and (3) Father progressive visitation. Additionally, the Custody Judgement provided: “Neither party may transfer [Child] outside the national territory without the express consent of the other or, failing that, judicial authorization.” On September 13, 2021, Mother and Child travelled to St. Charles, Missouri. Mother understood when she left Spain that she did not have the Spanish court’s permission to remove Child from the country as required by the Custody Judgment. Two days later, Mother emailed Father informing him they had moved. Father reported Child’s removal to the local authorities in Seville on September 17, 2021. Approximately one month later, he filed a request in Spanish court for changes to the Custody Judgment, as well as a formal request for Child’s return under the Hague Convention. After a hearing, at which Mother was not present but was represented by an attorney, the Spanish court determined that Mother’s “actions were contrary to law and illegal,” provisionally withdrew Mother’s custody rights, and granted Father exclusive custody. The Court found that prior to being brought to the United States, Child’s country of habitual residence was Spain. Mother claimed that returning Child to Spain would expose him to a grave risk of psychological harm or otherwise place him in an intolerable situation. Mother argued that returning Child to Spain would cause him psychological harm because: (1) Child “does not wish to return to Spain and lacks any sufficient degree of accommodations there”; (2) Father “does not have a permanent home or stable, long-term employment in Spain”; (3) Mother “is unable to live or work in Spain because she is unable to secure the proper immigration status to do so”; and (4) return to Spain “would subject [Child] to … tumultuous custody proceedings[.]” The Court found Mother failed to prove by clear and convincing evidence that return to Spain will expose Child to a grave risk of harm.

 Second, she claimed that Child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take his views into account. The Court found Mother failed to demonstrate that Child expressed a particularized objection to returning to Spain. He did not communicate dislike for Spain so much as a preference for the United States. Child complained about Spain’s weather and stated that there was “nothing to do there,” but he also reported that the home he shared with Mother was “awesome” and there were “a lot of things to do there.” Child’s general complaints about Spain did not suggest that “living in that country would be unacceptable.”

  The district court granted the fathers Complaint for Return. In a judgment dated May 4, 2021  the Spanish court awarded: (1) the parties joint parental authority; (2) Mother primary physical custody; and (3) Father progressive visitation. Additionally, the Custody Judgement provided: “Neither party may transfer [Child] outside the national territory without the express consent of the other or, failing that, judicial authorization.” On September 13, 2021, Mother and Child travelled to St. Charles, Missouri. Mother understood when she left Spain that she did not have the Spanish court’s permission to remove Child from the country as required by the Custody Judgment. Two days later, Mother emailed Father informing him they had moved. Father reported Child’s removal to the local authorities in Seville on September 17, 2021. Approximately one month later, he filed a request in Spanish court for changes to the Custody Judgment, as well as a formal request for Child’s return under the Hague Convention. After a hearing, at which Mother was not present but was represented by an attorney, the Spanish court determined that Mother’s “actions were contrary to law and illegal,” provisionally withdrew Mother’s custody rights, and granted Father exclusive custody. The Court found that prior to being brought to the United States, Child’s country of habitual residence was Spain. Mother claimed that returning Child to Spain would expose him to a grave risk of psychological harm or otherwise place him in an intolerable situation. Mother argued that returning Child to Spain would cause him psychological harm because: (1) Child “does not wish to return to Spain and lacks any sufficient degree of accommodations there”; (2) Father “does not have a permanent home or stable, long-term employment in Spain”; (3) Mother “is unable to live or work in Spain because she is unable to secure the proper immigration status to do so”; and (4) return to Spain “would subject [Child] to … tumultuous custody proceedings[.]” The Court found Mother failed to prove by clear and convincing evidence that return to Spain will expose Child to a grave risk of harm.

 Second, she claimed that Child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take his views into account. The Court found Mother failed to demonstrate that Child expressed a particularized objection to returning to Spain. He did not communicate dislike for Spain so much as a preference for the United States. Child complained about Spain’s weather and stated that there was “nothing to do there,” but he also reported that the home he shared with Mother was “awesome” and there were “a lot of things to do there.” Child’s general complaints about Spain did not suggest that “living in that country would be unacceptable.” 


Recent Hague Convention District Court Cases - Rivain v Kagan, 2020 WL 13401255 ( S.D. Florida, 2020)

 [France][Habitual residence][Petition denied]

In Rivain v Kagan, 2020 WL 13401255 ( S.D. Florida, 2020) the Court denied the petition return the Minor Children to France. It agreed with Respondent that the  family intended to move to Florida to pursue a business opportunity (a tea room) and the Minor Children were acclimated. As a result, the habitual residence of the Minor Children was Florida. 

Petitioner and Respondent were married in France and the Minor Children were born in France. Until October 3, 2018, the family lived together in France. Prior to moving to the United States, the family often vacationed to South Florida. Petitioner and Respondent purchased an apartment in Hallandale, Florida as a vacation home. The applied for and after an  E-2 Investor Visa was approved, the Petitioner and Minor Children were given derivative visas valid until September 2023. The family made the necessary arrangements to move to their apartment in Hallandale, Florida. Petitioner, a pilot,  applied for a work permit to legally assist Respondent with the Tearoom. Petitioner also notified his employer of his new residence and requested an adjustment to his flight schedules.. Petitioner and Respondent jointly agreed to enroll their children in an American school instead of a charter school for international students. And apart from the family car, a few articles of clothing, and family pictures, Petitioner and Respondent sold all their belongings in France. While living in Florida, the Minor Children learned English exceptionally well. They were both performing well academically, admired their teachers, had several friends, and enjoyed jujitsu—an activity they started while here in the United States. They did not stay in contact with many friends in France. And if given the choice, the Minor Children do not want to return to France. Respondent alleged the decision to start a business in the United States and move to Florida was intended to be a permanent transition. Respondent testified as to the financial burden in applying for the E-2 visa, buying the tearoom storefront, and operating the Tearoom. . She also focused on the joint decision to enroll the Minor Children in American schools as opposed to international schools.  Respondent also noted that the family packed all their necessities and sold all their furniture in France, leaving behind only a few mementos and a storage unit for delivery shipments to France. The evidence did not support a temporary transition or a “family adventure.” Petitioner and Respondent spent several months applying for a lottery visa and later the E-2 Investor Visa. They hired consultants and invested approximately $130,000 to purchase and maintain the Tearoom. And although it would be difficult to convert a European pilot’s license to an American pilot’s license, this, alone, did not give credence to the “family adventure” theory proposed by Petitioner—especially because Petitioner, according to testimony adduced at trial, intended to commute between Florida and France. Thus, the evidence, when viewed objectively, warranted the reasonable conclusion that Petitioner and Respondent intended to make the Tearoom a success and permanently transition to Florida. The Court’s conclusion was further supported by numerous facts indicating acclimatization by the Minor Children. They are well-adjusted, speak English fluently, have made many friends in South Florida over the past two years, participate in social activities, and did not wish to return to France. 


Recent Hague Convention District Court Cases - Spica v Viera, 2020 WL 13401915 ( S.D. Florida, 2020)

 [Italy] [Motion for summary judgment][Motion denied]

In Spica v Viera, 2020 WL 13401915 ( S.D. Florida, 2020) Petitioner filed a Petition for Return of Children seeking the return of Petitioner’s two minor children (E.S. and S.S.) to Italy. Petitioner moved the Court to grant “the Petition in its entirety” and to “deny[ ] and dismiss[ ] Respondent’s affirmative defenses in their entirety.” Based on the available evidence, the Court found that there is a genuine issue of material fact as to whether the United States or Italy was the habitual residence of the children prior to Respondent’s alleged wrongful retention in February 2020. The Court, therefore, denied summary judgment. Moreover, the Court found that the record presented additional factual issues with respect to whether E.S. has attained an age and degree of maturity to object to being returned to Italy. 


Recent Hague Convention District Court Cases - Spica v. Viera, 2020 WL 13401916 (S.D. Florida, 2020).

 

Spica v. Viera, 2020 WL 13401916 (S.D. Florida, 2020). 

 [Italy][Habitual residence][Petition granted][Consent defense and age and maturity defense not established]

Braude v Zierler, 2022 WL 3018175 (S.D. New York,2022)[Canada][Grave risk of harm][Petition denied] [ameliorative measures insufficient]


In Braude v Zierler, 2022 WL 3018175 (S.D. New York,2022) the District Court denied the Petition of  Gadi Braude (“the Father”) against Dorona Mia Zierler (“the Mother”) seeking the immediate return of their two sons to Canada.

 Respondent averred that Petitioner consented to Respondent removing the children to the United States. The Court explained that to establish this defense, the respondent must show by a preponderance of the evidence that the petitioner consented to the removal or retention. Velozny v. Velozny, 550 F. Supp. 3d 4, 15 (S.D.N.Y. 2021). The consent does not have to be formal, instead the Court must analyze the petitioner’s conduct prior to the removal or retention, and “consider what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country. “The key to the consent inquiry is 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). Respondent  failed to prove by a preponderance of the evidence that Petitioner consented to Respondent taking the two children to New York on December 29, 2021. The parties did not dispute that on the day of the separation, the Mother left with the two children and did not tell Petitioner where they were going. Petitioner called and texted the Mother, who refused to answer. Specifically, that evening, Petitioner texted the Mother asking what she was planning and whether she was going to the United States, and begging her not to take the children away. Chumachenko v. Belan, No. 18-CV-9728-LTS, 2018 WL 6437062, at *8 (S.D.N.Y. Dec. 7, 2018) (holding the respondent failed to prove that the consent defense applied where “Respondent’s departure to the United States was immediately followed by contemporaneous text messages from Petitioner protesting Respondent’s actions, lamenting his unilateral decision to take the Children away from her, and refusing to write a letter allowing the Children to live with Respondent”). Petitioner stated he was “blindsided”, and that Respondent made this decision without him. While the parties had discussions about the Mother and children going to live with her parents in New York after Petitioner’s arrest, these discussions did not indicate Petitioner provided consent to their removal at the time of the separation. See Velozny, 550 F. Supp. 3d at 16–17 (holding the petitioner did not consent to removal where emails showed the petitioner discussed receiving assistance from his father-in-law in New York but eventually rejected the idea of sending the children there); Laguna v. Avila, No. 07-CV-5136 (ENV), 2008 WL 1986253, at *7 (E.D.N.Y. May 7, 2008) (holding that the parties’ custody agreement that stated that after returning to Colombia the child could move to the United States if he so desired was insufficient to establish the petitioner consented to retention of the child in the United States). While the Mother provided testimony showing that Petitioner gave her the children’s birth certificates before they left the house, this, without more, was insufficient to establish Petitioner’s subjective consent to her taking the children to live in New York. See Kosewski v. Michalowska, No. 15-CV-928 (KAM)(VVP), 2015 U.S. Dist. LEXIS 139924, at *44–45 (E.D.N.Y. Oct. 14, 2015) (denying consent defense where the record established that petitioner accompanied respondent to a passport office after she requested that he consent to the child obtaining a passport, but the parties disputed whether respondent told petitioner that she planned to move to the United States with the child prior to petitioner’s agreement); In re J.J.L.-P., 256 S.W.3d 363, 375 (Tex. App.—San Antonio 2008, no pet.) (upholding denial of the consent defense where the petitioner surrendered the child’s travel documents to the respondents because petitioner testified that he surrendered the documents to permit the child to enter the country for the holidays only). The  Court held that Respondent has failed to prove by a preponderance of the evidence that Petitioner consented to the children’s removal and retention.

 

Petitioner next averred that there was a grave risk that returning the children to Canada would expose them to harm. The Court noted that Article 13 of the Hague Convention prevents the Court from ordering the return of a child when “his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Hague Convention, art. 13(b). “The potential harm to the child must be severe, and the level of risk and danger required to trigger this exception has consistently been held to be very high.” Abdollah Naghash Souratgar v. Fair, 720 F.3d 96, 103 (2d Cir. 2013). The respondent bears the burden of establishing the defense by clear and convincing evidence. See 22 U.S.C. § 9003(e)(2)(A). The defense requires a real risk of the child being harmed. Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001). The Court agreed with Respondent that the record established “Petitioner’s unstable mental health and demonstrated history of engaging in dangerous and illegal activities” and that this created a probability of grave harm and an extreme magnitude of harm. Specifically, Respondent averred that Petitioner’s untreated mental health issues, history of domestic violence and coercive conduct, and access and possession of child pornography together demonstrated a grave risk of harm to the children.

 

The record reflected an existence of factors in combination that create a grave risk of harm if the children were returned to Canada. First, Petitioner has a long and serious history of untreated mental health issues. Petitioner had suicidal ideation and attempts since the age of ten. He  attempted suicide three times, including once when Child 1 was asleep in the house. Petitioner was diagnosed with BPD in 2020, but did not answer in the affirmative when asked if he accepts his diagnosis. He was not prescribed medication until March of 2021, and had been unable to begin the treatment needed for BPD. While he acknowledged a need for treatment and to unpack past traumas, Petitioner has had an unstable history of treatment, and only recently began working with a psychiatrist in response to his criminal charges.

 

Respondent presented testimony from Dr. Elizabeth Jeglic, a clinical psychologist and professor, who testified that DBT is an intense behavioral treatment for those with BPD and repeated suicide attempts, which typically takes years to become effective. Without this therapy, BPD symptoms including self-harming, suicide, and emotional instability, would continue. Further, Dr. Jeglic discussed the intergenerational suicide risk which states that a parent who attempts suicide increases the risk of their children engaging in suicidal behavior. There was no doubt that exposing the children to suicidal behavior would create a real risk of psychological harm.

 

In addition, Petitioner had a concerning history of angry and manipulative behavior. He had threatened to commit suicide, hit and shoved Respondent out of anger, continued play fights with both Respondent and Child 1 when asked to stop due to pain, and strangled Respondent to the point of almost passing out. Petitioner also had intense, angry reactions when the Mother merely brings up discussing him with others, including her therapist. While most of this behavior was directed at the Mother, “evidence of prior spousal abuse, though not directed at the child, can support the grave risk of harm defense.” Davies v. Davies, 717 F. App’x 43, 47–48 (2d Cir. 2017) (upholding the district court’s finding that the grave risk of harm defense applied as the petitioner had a history of “pervasive, manipulative violence” that consisted of psychological abuse). This was particularly concerning now, as the Mother had discussed Petitioner’s mental health issues and criminal charges with a full range of people, including her family, friends, and the Court.

 

Finally,  and perhaps most important, was the Petitioner’s arrest for access and possession of child pornography. He has discussed having sexual fantasies involving children. While she did not examine Petitioner, Dr. Jeglic testified that those who possess child pornography are at an increased of risk of contact sexual abuse. Dr. Gojer  established that without treatment, Petitioner does create a risk to children. See M.M v. F.R, No. 11 Civ. 2355 (PKC), 2011 U.S. Dist. LEXIS 156760, at *26 (S.D.N.Y. June 30, 2011) (holding a grave risk of harm existed where eight years prior the petitioner engaged in sexual abuse of a child and had since had a “lack of a meaningful and continuing regimen of rehabilitation”). Further, while the children are too young to understand what is happening now, Child 1 will soon be at an age where he will start to question what is happening to his family. The “derivative harm” of Child 1 eventually learning about his Father’s actions could prove to be “psychologically devastating.”

 

Petitioner states that he had consented to eight ameliorative measures if this Court ordered the children return to Canada, including (i) JFCS is notified in advance of the return date of the children to Canada; (ii) Petitioner continues to comply with all surety conditions; (iii) Petitioner has no contact with Respondent upon her return to Canada; (iv) Petitioner continues to undergo therapy with Peach; (v) Petitioner continues to take his Sertraline prescription; (vi) Petitioner commences DBT with Peach; (viii) Petitioner continues to reside with his parents; and (viii) Petitioner continues to comply with all JFCS conditions and requirements. The court noted that in considering ameliorative measures, the Court must (1) “prioritize the child’s physical and psychological safety”; (2) “abide by the Convention’s requirement that courts addressing return petitions do not usurp the role of the court that will adjudicate the underlying custody dispute”; and (3) “accord with the Convention’s requirement that courts act expeditiously in proceedings for the return of children.” Golan v. Saada, 142 S. Ct. 1880, 1893–94 (2022). The Court did  not find that these ameliorative measures would prioritize the children’s physical and psychological safety. None of the proposed measures address Petitioner’s history of aggressive behavior and coercive control. None of the measures adequately protect the children from Petitioner’s pedophilia. The Court held that Respondent established the grave risk of harm defense.

 

 


Recent Hague Convention District Court Cases - Bhattacharjee v. Craig, 2022 WL 2915545 (E.D. Missouri, 2022)

 [Singapore][Petition granted][Attorneys fees and Costs][Not clearly inappropriate]

In Bhattacharjee v. Craig, 2022 WL 2915545 (E.D. Missouri, 2022) Respondent conceded the prima facie case for wrongful removal but raised the mature child exception as an affirmative defense. After a bench trial the Court found Respondent had failed to meet her burden to show that the mature child exception applied. Based on that finding, the Court ordered Respondent to return the children to Singapore. On November 20th, Petitioner filed this Motion, seeking $81,571.92 as payment for attorneys’ fees and costs. Respondent argued that under Ozaltin, which she stated is “the leading case” on this issue, an award of fees is clearly inappropriate because she acted in good faith when she and the children remained in the United States. (citing Ozaltin, 708 F.3d at 375-76). The Court found that Respondent did not act in good faith in removing the children from Singapore, and her belief that she should refuse to return because of the “need [ ] to respect the concerns of her son,” is not sufficient grounds to find that the fee award would be clearly inappropriate. The court held that ICARA § 9007 does not apparently place any burden on Petitioner; the only burden in the statute is Respondent’s to establish that an award of fees “would be clearly inappropriate.” 42 U.S.C. § 9007(b)(3). As to Petitioner, the only question was whether it was necessary for him to incur legal fees in order to obtain the return of the children. Here, there was no dispute that it was. The court noted that “An award is clearly inappropriate where the respondent shows the award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child[ren].” Wan, 2021 WL 3510232, at *17 (citing Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018)); see also Mendoza, 987 F. Supp. 2d at 915; Forcelli, 2021 WL 638040, at *3 and her financial status was not grounds to find that the award would be clearly inappropriate.  Respondent failed to carry her burden under ICARA to show that Petitioner’s requested attorneys’ fees award would be clearly inappropriate. See 42 U.S.C. § 9007(b)(3). Petitioner was entitled to an award in the amount of $81,571.92 for her two attorneys.