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Sunday, August 7, 2022

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.

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