[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 systemIn our International Child Abduction Blog we report Hague Convention Child Abduction Cases decided by the US Supreme Court, the Second Circuit Court of Appeals, Circuit Courts of Appeals, district courts and New York State Courts. We also provide information to help legal practitioners understand the basic issues, discover what questions to ask and learn where to look for more information when there is a child abduction that crosses country boarders.
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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).
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.
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.
Recent Hague Convention District Court Cases - Soulier v. Matsumoto, 2022 WL 2666946, Not For Publication, (D. New Jersey, 2022)
[Belgium] [Habitual Residence] [Wrongful retention] [Petition granted]
In Soulier v. Matsumoto, 2022 WL 2666946, Not For Publication, (D. New Jersey, 2022) the principal contested issues were (1) whether Respondent had “wrongfully retained” A.L.S. and A.H.S. in New Jersey as of July 10, 2019 without Petitioner’s consent; (2) if she had, whether the United States or Belgium was the children’s “habitual residence” immediately prior to the date of wrongful retention; and (3) if the habitual residence was Belgium, whether Respondent had any affirmative defenses. The Court found that Respondent wrongfully retained the children in New Jersey in July 2019. Respondent asserts four affirmative defenses: intolerable situation, consent or acquiescence, the well-settled exception, and the mature child exception, but did not prove any of them. The Petition for return was granted.
Recent Hague Convention District Court Cases - Smith v Smith , 2019 WL 13201172 (N.D. Texas, 2019)
[Argentina] [Habitual Residence] [Age and Maturity Defense] [Petition denied]
In Smith v Smith , 2019 WL 13201172 (N.D. Texas, 2019) the Court found that: 1) Petitioner failed to establish a prima facie case because there wass not enough evidence that Argentina was the children’s habitual residence; 2) Petitioner and Respondent only intended to move to Argentina for a specific, limited duration; 3) a two-year time period falls within the language of “specific, limited” duration; 4) M.G.S., a 14 year old, was of sufficient age and maturity, was not unduly influenced, and objected to being returned to Argentina; and 5) A.C.S., a 10 year old, was is of sufficient age and maturity, was not unduly influenced, and objected to being returned to Argentina. Accordingly, the Court denied Petitioner’s request to have his children returned to Argentina.
Recent Hague Convention District Court Cases - Harutyunyan v. Sargsyan,2020 WL 13444203 (D. Mass., 2020)
[Armenia] [Rights of Custody] [Petition granted]
In Harutyunyan v. Sargsyan,2020 WL 13444203 (D. Mass., 2020) the court found that, at the time of the removal, Petitioner was not exercising rights of custody, and failed to show that he would have exercised them but for the removal. The rights Petitioner exercised in the months prior to Respondent’s removal of the child were “rights of access” under the Convention, and not “rights of custody,” and, accordingly, could not support the wrongful removal claim.8 Nor had Petitioner demonstrated that he would have asserted custodial rights but for the removal. In light of the finding that the Petitioner was not actually exercising any rights of custody at the time of the child’s removal, the court did not need to reach the question of whether Petitioner had legal custody of the child under Armenian law at the time of the child’s removal. Having found that the removal of the child from Armenia was not wrongful, the court also does not reach Respondent’s affirmative defenses that Petitioner consented to her removal of the child from Armenia, subsequently acquiesced to the removal, poses a grave risk of harm to the child should she be returned, or undertook this litigation with unclean hands.