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 20^th, 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.