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.  

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 Medellín, 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.