Search This Blog

Sunday, April 10, 2022

Recent New York Hague Convention New York Case - State of N.Y. ex rel. B.E. v T.C. --- N.Y.S.3d ----, 74 Misc.3d 778, 2022 WL 497517 (Sup. Ct, 2022)[United Kingdom][Habitual Residence][Petition denied]


State of N.Y. ex rel. B.E. v T.C. --- N.Y.S.3d ----, 74 Misc.3d 778, 2022 WL 497517 (Sup. Ct, 2022)

Petitioner B.E. brought this writ of habeas corpus to produce *the child M.C.-E., his child. The writ was satisfied on January 4, 2022. Mr. E. filed a petition permitting him to immediately take M. to London based on the court’s emergency jurisdiction under Domestic Relations Law §§ 75-a (7) and 76-c and the Hague Convention on the Civil Aspects of International Child Abduction. M. was with his mother, respondent T.C., in Brooklyn. She moved to, inter alia, dismiss petitioner’s application under CPLR 3211 (a) (4) and Domestic Relations Law § 76-e (1) and (2). 


Petitioner B.E. and respondent T.C. were married in London, England, in June 2007. In 2013 they adopted their son M.C.-E. They resided in London until Mr. E., who worked in the financial field, received an offer from Andreessen Horowitz, after which, in 2014, the family relocated to San Francisco, California. Ms. C. is a musician, well-known for her particular musical style. The parties resided in England from the 2007 marriage until 2014. When they moved to San Francisco they sold their home in England. In 2015 Ms. C. told Mr. E. that she wanted to end the marriage and insisted he take M. and move from the marital residence. Mr. E. commenced the divorce action in San Francisco in 2016. While Ms. C. was on tour during 2017 M. continued to reside in San Francisco. In 2018 she moved to New York for medical treatment and remained there when diagnosed with breast cancer. In December 2019, Mr. E. took M. to visit Ms. C. in New York. Then he removed M. to England without Ms. C.’s consent. He moved into his parents’ home and enrolled M. in school in England. They visited Ms. C. in New York during the Christmas holidays in 2019 and from February 15-23, 2020.

Tthe court denied the petitioner’s application to apply UCCJEA jurisdiction. Concurrently, Mr. E. sought a ruling that under the Hague Convention that England was M.’s “habitual residence” and immediately return M. to his care. The Supreme Court observed that the  Hague Convention is codified as the International Child Abduction Remedies Act (22 USC § 9001). A petitioner must demonstrate by a preponderance of the evidence: “(1) the child was habitually resident in one State and has been removed to or retained in a different State; (2) the removal or retention was in breach of the petitioner’s custody rights under the law of the State of habitual residence; and (3) the petitioner was exercising those rights at the time of the removal or retention.” (Gitter v Gitter, 396 F3d 124, 130-131 [2d Cir 2005].) To determine habitual residence, the court must also “inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time” that they had the same interests. The court must consider intent, actions, and declaration. And the court should inquire whether the evidence unequivocally concludes that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. (Matter of E.Z., 2021 WL 5106637, 2021 US Dist LEXIS 212008.)  The “habitual residence” determination is “fact-driven,” and “courts must be sensitive to the unique circumstances of the case and informed by common sense.” (Monasky v Taglieri, 589 US —, —, 140 S Ct 719, 727 [2020] [internal quotation marks omitted].) The residence must have the “quality of being habitual.” (589 US at —, 140 S Ct at 729) The court must consider time passage, participation in sports programs and excursions, academic activities, and meaningful connections with the people and places in the child’s new country. (589 US at — n 3, 140 S Ct at 727 n 3.) Parents must have a “shared” settled intent to acquire a new habitual residence in the shared plan about the child’s future. Shared intent may “coalesce” if the child leaves the country. The court found two places where the parents would have agreed to reside habitually: San Francisco or New York after July 25, 2021.The facts did not establish that England was M.’s “habitual residence.” Mr. E.’s petition for an order mandating M.’s return to England was denied. Ms. C.’s application for dismissal was granted to that extent.


Monday, April 4, 2022

Ajami v Solano, 2022 WL 909413 (Sixth Circuit, 2022) - [Venezuela][Grave risk of harm][ Asylum ][Petition granted]

In Ajami v Solano, 2022 WL 909413 (Sixth Circuit, 2022) the district court granted the petition of Pierre Salame Ajami (“Salame”) for the return of his two minor children to Venezuela, their country of habitual residence,  The Sixth Circuit affirmed


Tescari and Salame were Venezuelan citizens and had two minor children together, EAST and PGST. In 2018, Tescari removed the children from their home in Barquisimeto, Venezuela, and brought them with her to the United States. Salame filed a petition under the Hague Convention seeking the children’s return on February 20, 2019. Tescari and, as derivative family members, the children were granted asylum in the United States on June 10, 2019.  The parties stipulated to the applicability of the Convention and established Salame’s prima facie case of wrongful removal, so the only issue before the district court was whether Tescari established an affirmative defense under Article 13(b) of the Hague Convention. The district court concluded Tescari failed to establish, by clear and convincing evidence, her affirmative defense that returning the children to Venezuela would subject them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation. It therefore granted Salame’s petition and ordered that the children be returned to Venezuela. The Sixth Circuit affirmed the district court’s conclusion that Tescari failed to present clear and convincing evidence that an Article 13(b) exception applied. She failed to demonstrate that returning the children to Venezuela would expose them to a grave risk of physical or psychological harm or otherwise subject them to an intolerable situation. 

The Court observed that whether a child would be exposed to a “grave risk” of harm or returned to an “intolerable situation” are mixed questions of law and fact that are reviewed de novo. Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir. 2001) 

Tescari claimed that returning the children to Venezuela would expose them to a grave risk of harm due to Salame’s alleged history of domestic violence. In a Hague Convention case, precedent establishes three broad categories of abuse: minor, clearly grave, and cases in the middle, in which the abuse “is substantially more than minor, but is less obviously intolerable.” Simcox, 511 F.3d at 607−08. A case involving relatively minor abuse would likely not pose a grave risk to the child nor place the child in an intolerable situation.. In such cases, the district court has no discretion to refuse the petition to return because the Article 13(b) threshold has not been met. A case in which the abuse is clearly grave typically involves “credible evidence of sexual abuse, other similarly grave physical or psychological abuse, death threats, or serious neglect.” Cases in the middle category call for a fact-intensive inquiry into “the nature and frequency of the abuse, the likelihood of its recurrence, and whether there are any enforceable undertakings that would sufficiently ameliorate the risk of harm to the child caused by its return.” 


First, Tescari contended the district court erred in finding that the claimed abuse towards her, which was allegedly witnessed by the children, fell into the category of minor abuse. The district court found that Tescari established one incident of physical abuse by Salame towards her in 2013, although it did not conclusively determine what happened. It also determined that the parties “have a tumultuous relationship that negatively affects EAST and PGST.”. The district court was unable to find that Salame ever abused the children. The district court made credibility determinations, and its factual conclusions regarding Tescari’s allegations of abuse were not clearly erroneous. The district court found one credible incident of abuse. This incident, even when considered alongside the other alleged and unproven conduct, was clearly less serious and less frequent than the middle-level abuse detailed in Simcox. It agreed with the district court’s conclusion that the one incident of abuse fell into the relatively minor category. The abuse did not rise to the level of a viable defense to the children’s return under Article 13(b). Because the abuse in this case was relatively minor, the district court had no discretion to refuse the petition nor to consider evidence of potential future harm.


Tescari claimed the district court “erred in finding that the children did not face a grave risk of physical or psychological harm from a return to Venezuela, a zone of war and famine”; thereby placing herself and the children in an intolerable situation. The Court noted that the difference between exposing a child to a “grave risk of harm” and subjecting a child to an “intolerable situation” is not clearly established in the court’s precedent. But an “ ‘intolerable situation’ must be different from ‘physical or psychological harm,’ but nevertheless serious,” meaning “either it cannot be borne or endured, or it fails some minimum standard of acceptability.” Pliego v. Hayes, 843 F.3d 226, 233 (6th Cir. 2016). An “intolerable situation” can arise when the state of habitual residence is experiencing civil instability. Similarly, a grave risk of harm exists when “return of the child puts the child in imminent danger prior to the resolution of the custody dispute—e.g., returning the child to a zone of war, famine, or disease.” Friedrich, 78 F.3d at 1069. But an intolerable situation does not arise merely when the child would be returned to a country “where money is in short supply, or where educational or other opportunities are more limited than in the requested State.” Whether reviewed for grave risk of harm or intolerable situation, this is an inquiry that evaluates both Venezuela’s overall dangerousness and the particular circumstances the children would face if returned to Venezuela. See Mendez Lynch v. Mendez Lynch, 220 F. Supp. 2d 1347, 1364 (M.D. Fla. 2002); see also Pliego, 843 F.3d at 232 (citing id. at 1364−65).


The court noted the lack of precedent identifying any country as a zone of war sufficient to trigger the grave risk or intolerable situation exception. Turning to Venezuela, it noted that Venezuela is not actively torn by civil war, it remains a single integrated country capable of signing international treaties. As such, it remains a fellow signatory to the Hague Convention. The parties presented evidence of the humanitarian and political crises unfolding in Venezuela and evidence of the particular circumstances the children would face if returned. Considering both parties’ evidence, the district court determined Salame could provide the children with shelter, food, and medication in Venezuela. This factual finding was not clearly erroneous. Although the conditions in Venezuela were less stable than those the children likely enjoyed in Murfreesboro, Tennessee, this does not mean they would face an intolerable situation or a grave risk of harm upon return. Despite Venezuela’s political schisms and civil unrest, Tescari failed to introduce sufficient evidence that it was a zone of war, famine, or disease warranting an Article 13(b) affirmative defense.


Tescari argued that the district court erred in concluding that she failed to prove the corruption of the Venezuelan courts and the undue influence of Salame. Tescari pointed to testimony about general corruption in the Venezuelan judiciary, testimony about persecution of political opposition leaders, and her attorney’s testimony about proceedings being biased in favor of Salame due to his political connections. However, there was also evidence that Tescari’s attorney had been able to file documents, review case files, and even secured a new judge to oversee the parties’ custody dispute after requesting recusal of the previous judge. Ultimately, the district court found that delays in court proceedings among the parties and other examples of purported corruption “are not so severe as to indicate the Venezuelan courts are corrupt or that they would be unable to fairly adjudicate the custody dispute.” Ajami, 2020 WL 996813, at *19. This factual finding was not clearly erroneous, and any defects in the Venezuelan court system fell short of what is required for an intolerable situation. Pliego, 843 F.3d at 235.


Lastly, Tescari argued the district court failed to properly consider her grant of asylum, thereby “threaten[ing] the sovereignty of the executive branch. She claimed the district court’s order effectuating return, despite the children’s asylee status, usurped Congress’s authority and renders null the executive branch’s asylum determination. This argument was without merit because the district court has the authority to order the return of wrongfully removed children, regardless of whether the children were previously granted asylum. It noted that the Fifth Circuit considered a similar question in Sanchez v. R.G.L., 761 F.3d 495 (5th Cir. 2014). In Sanchez, while their appeal was pending, the children were granted asylum in the United States pursuant to 8 U.S.C. § 1158, which states “the Attorney General ... shall not remove or return the alien to the alien’s country of nationality.” On appeal, the children argued that the grant of asylum superseded the district court’s order. Sanchez, 761 F.3d at 509. The Fifth Circuit rejected this argument, refusing to hold that the grant of asylum must be revoked before the children could be returned to Mexico.  Tescari and, derivatively, the children were granted asylum before the district court ordered return of the children. But, as in Sanchez, she and the children were granted asylum under 8 U.S.C. § 1158, and the court adopted the Fifth Circuit’s reasoning here. “The judicial procedures under the Convention do not give to others, even a governmental agency, authority to determine [the] risks” children may face upon return to their country of habitual residence. Sanchez, 761 F.3d at 510. Thus, “an asylum grant does not remove from the district court the authority to make controlling findings on the potential harm to the child.” The district court made independent findings on whether the children would face an intolerable situation or a grave risk of harm in Venezuela, considering all offered, admissible, and relevant evidence. “The prior consideration of similar concerns in a different forum” may be relevant, but a grant of asylum does not strip the district court of its authority to make controlling findings regarding circumstances the children may face upon return.  To be granted asylum, eligibility must be shown by a preponderance of the evidence. See 8 C.F.R. § 1208.13(a), (b)(1)(i). But for an Article 13(b) affirmative defense to apply, the respondent must establish the exception by clear and convincing evidence. 22 U.S.C. § 9003(e)(2). Additionally, the opportunity for participation by interested parties may be different—here, Salame did not participate in the asylum proceedings.


Although the Fifth Circuit vacated the district court’s return order and remanded the matter to the district court to consider the newly “available evidence from the asylum proceedings,” the Sixth Circuit did not find remand necessary here. Sanchez, 761 F.3d at 511. Here, the district court did not explicitly mention the grant of asylum in its Order. But the grant of asylum was discussed at trial, and the district court admitted into evidence Tescari’s “Asylum Approval” document. Tescari had the opportunity to present evidence from the asylum proceedings, which may have also been relevant to the instant proceedings, to the district court but failed to do so. Now, on appeal, she failed to point to any evidence that would have been elicited from the asylum proceedings that the district court failed to cover over the course of the four-day trial. Her argument rested solely on the district court’s lack of a discussion of the effect of the grant of asylum itself in its Order. But a grant of asylum does not substitute for the district court’s determination that Tescari failed to establish an Article 13(b) affirmative defense based on grave risk of harm or intolerable situation. Nor does it substitute for our own de novo finding of the same. While the factors that go into a grant of asylum may be relevant to determinations under the Hague Convention, the district court has a separate and exclusive responsibility to assess the applicability of an Article 13(b) affirmative defense. It rejected Tescari’s argument that a grant of asylum deprives federal courts of authority to enforce the Hague Convention.

J.C.C. v. L.C., 2022 WL 985873, (3rd Circuit, 2022) (NOT PRECEDENTIAL) - [El Salvador][ Wishes of the child][Petition granted]

In J.C.C. v. L.C., 2022 WL 985873, (3rd Circuit, 2022) (NOT PRECEDENTIAL) the district court granted the petition of J.C.C. to return his minor children to El Salvador. The Third Circuit affirmed.

J.C.C. was a citizen and resident of El Salvador, and L.C. was a citizen of El Salvador and resident of the United States. J.C.C. and L.C. had wo children together: I.M.C. and V.I.C. I.M.C. was fifteen years old at the time of the District Court proceedings.  V.I.C. was nine years old. In December 2016, J.C.C. and L.C. obtained a mutual divorce. At the time, both lived in El Salvador. L.C. testified that J.C.C. had been violent toward her during their marriage. Pursuant to the divorce, the parties agreed that J.C.C. would maintain physical custody of the children and L.C. would pay child support and have open visitation rights. In 2017, L.C. moved to the United States. On October 22, 2018, J.C.C. signed a notarized travel authorization allowing the children to visit L.C. in the United States over their school break. The children arrived in the United States on October 31, 2018 and were scheduled to return to El Salvador on January 21, 2019. L.C. alleges that the children informed her that J.C.C. had physically abused them. In January 2019, L.C. called J.C.C. to inform him that she would not return the children. J.C.C. travelled to the United States to convince L.C. to return the children. After L.C. refused, J.C.C. filed a petition under the Hague Convention with the Central Authority in El Salvador on March 5, 2019. Between the time J.C.C. filed his petition in El Salvador and this lawsuit, J.C.C. continued to visit the children in the United States, and the children often stayed with him on these visits.


The District Court held an evidentiary hearing and heard testimony from six witnesses: four called by L.C. (L.C., L.C.’s boyfriend, L.C.’s attorney, and I.M.C.’s counselor), and two called by J.C.C. (J.C.C. and his attorney). The court declined to hear testimony from the children on the ground that “it would have been redundant, needlessly harmful to the [c]hildren, and potentially influenced by [L.C.].” Following the hearing, the District Court granted J.C.C.’s petition to return the children to El Salvador. The District Court held that J.C.C. had established a prima facie case under the Hague Convention and that L.C. had not sufficiently established an affirmative defense or exception. L.C. appealed.


The Court observed that District courts have discretion, inter alia, to consider the wishes of the child in determining whether to return a child to her country of residence. Hague Convention, art. 13. L.C. presented a narrow issue on appeal: whether the District Court erred by refusing to interview the children and precluding their testimony at the hearing. The Court pointed out that it has not held,  nor had L.C. pointed to any cases holding that a district court is required to conduct an interview with the child when adjudicating a claim brought under the Hague Convention. It reviewed this case pursuant to an abuse of discretion standard. The Court held that a arty arguing that a district court abused its discretion in connection with an evidentiary ruling must demonstrate that the District Court’s decision was “arbitrary, fanciful or clearly unreasonable” and that “no reasonable person would adopt the district court’s view.” United States v. Bailey, 840 F.3d 99, 125 n.118 (3d Cir. 2016). The District Court heard from four witnesses called by L.C. It then determined that allowing the children to testify at the evidentiary hearing would be “redundant, needlessly harmful to the [c]hildren, and potentially influenced by [L.C.].” App. 8a. See Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 279 (3d Cir. 2007) (noting that where “a child’s desire to remain or return to a place is ‘the product of undue influence,’ ... the ‘child’s wishes’ should not be considered.”). Applying the abuse of discretion standard to this determination and considering that the District Court heard testimony from several other witnesses in making this determination, it held  that the decision not to interview the children or permit their testimony did not meet the standard to establish an abuse of discretion.


Recent Hague Convention District Court Cases - Gabriel v Lavison, 2022 WL 952195 ( W.D. Washington, 2022)


[Mexico] [Petition granted]

 In Gabriel v Lavison, 2022 WL 952195 ( W.D. Washington, 2022) the Court granted the Petition and ordered the return of J.E.L.R. to Mexico.

 Respondent conceded that  Ms. Rivera had established a prima facie case for the return of J.E.L.R. to his habitual residence in Mexico. At the outset of the hearing, Mr. Lavison clarified that he no longer intended to assert consent and acquiescence as a defense and that he would only be proceeding with the defense of grave risk. The Court then asked Mr. Lavison if he understood that he would bear the burden of proving the grave risk defense by clear and convincing evidence. Upon acknowledging that he understood the required burden of proof, Mr. Lavison admitted that he was not prepared to present sufficient evidence to establish the defense and affirmatively abandoned all of his available defenses under the Hague Convention. The Court confirmed that Mr. Lavison understood that because of his concessions, the Court would be required to order the return of J.E.L.R. to Mexico.