Lomanto v Agbelusi, 2022 WL 17418696 (S.D. New York, 2022) [Attorney for Child Appointment]

 

In Lomanto v Agbelusi, 2022 WL 17418696 (S.D. New York, 2022) on October 24, 2022, attorney Sarah Phillips of the law firm Simpson Thatcher & Bartlett, LLP filed a notice of appearance in this Hague Convention case on behalf of the minor children, R.A.L. and S.M.L. On October 25, 2022, the Court provisionally appointed Simpson Thatcher as counsel for the children, pending briefing by the parties. The Court observed that Petitioner generally objected to the appointment of an attorney for the children, as “the Mother has several attorneys on her team who are tasked of rendering proof” related to the defenses that pertain to the children, such as “grave risk of harm” and the children’s wishes, and “the defenses asserted by the Mother are identical (duplicative) if the issues that would need to be addressed by the Attorney for the Children.” The Court disagreed. Appointing independent counsel for the children in this case was “consistent” with the procedures “adopted by district courts in Hague Convention cases.” Johnson v. Johnson, No. 11 Civ. 37, 2011 WL 569876, at *2 (S.D.N.Y. Feb. 10, 2011); see also Sanchez v. R.G.L., 761 F.3d 495, 508 (5th Cir. 2014)) (quoting Chaffin v. Chaffin, 568 U.S. 165, 178 (2013)). This case presented complex and delicate issues that pertain to the children, and appointment of counsel was not only consistent with regular practice in Hague Convention cases, but is also warranted. This was particularly true where it is possible that one or more children may be questioned by the Court, whether in camera or otherwise. See McGovern v. McGovern, 58 A.D.3d 911, 915, 870 N.Y.S.2d 618, 622 (2009) The role of the children’s counsel here was quite limited. The scope of children’s counsel’s representation in a Hague Convention proceeding is limited to precisely [the] types of issues raised under the Convention. Counsel does not perform a best interests analysis or make custody-related recommendations. The role of the children’s counsel, would be to advance the children’s articulated wishes, assist the children in understanding the proceedings and to appear on their behalf as needed by the Court to assess the parties’ claims. For this limited purpose and for the needs of this case the appointment of counsel for the children was appropriate, rather than the appointment of a guardian ad litem. Out of an abundance of caution, the Court determined that it was appropriate to add court-appointed co-counsel with experience representing children in Hague Convention cases. The Court therefore appointed Professor Jennifer Baum, the Director of the Child Advocacy Clinic at St. John’s University School of Law, as co-counsel along with Simpson Thatcher for both minor children.

 

Dubikovskyy v Goun, --- F.4th ----, 2022 WL 17421509 (Eighth Circuit, 2022) [Switzerland] [Age and Maturity Exception] [Petition granted]

 

In Dubikovskyy v Goun, --- F.4th ----, 2022 WL 17421509 (Eighth Circuit, 2022)  Elena Goun violated her joint custody agreement with Vladyslav Dubikovskyy by traveling from Switzerland to the United States with their then-12-year-old daughter, M.D., in July 2020. Dubikovskyy filed a petition seeking M.D.’s return to Switzerland, pursuant to the Hague Convention. After an evidentiary hearing on the merits, the district court denied the petition based on the mature child defense, finding that M.D. was of sufficient age and maturity such that the court should take account of her views and that she objected to returning to Switzerland. The Eight Circuit reversed the judgment of the district court and remanded the case with directions to grant the petition for the return of M.D. under the Hague Convention on the Civil Aspects of International Child Abduction.

 Dubikovskyy, a citizen of Ukraine, and Goun, a citizen of Russia, married in December 2007 while living in California. They have one child together, M.D., who was born in June 2008 in California and is a United States citizen. In 2011, the family moved to Lausanne, Switzerland, where Goun had taken a job as a chemistry professor at a university, and became permanent Swiss residents. On July 28, 2020, Dubikovskyy learned Goun and M.D. had traveled to the United States. Two days later, he petitioned a Swiss court to order their return to Switzerland, and on August 4, the court ordered Goun to return M.D. to Switzerland in time for her to start the school year. On August 13, 2020, Goun petitioned a Swiss court to transfer M.D.’s residence to the United States on the grounds that M.D. had decided she wanted to stay in Missouri. The Swiss court denied the petition and characterized Goun’s actions as an illegal abduction. The court found that Goun violated the custody arrangement and granted Dubikovskyy the sole right to determine M.D.’s residence. The ruling was upheld on appeal on September 11, 2020. Dubikovskyy also initiated criminal proceedings against Goun in Switzerland, and there is a warrant for Goun’s arrest if she returns to Switzerland or any other country in the Schengen Area. Despite the Swiss court’s ruling, Goun and M.D. remained in Columbia, Missouri, with M.D.’s half-sister and Goun’s partner, and M.D. started attending middle school in Missouri when the 2020–21 school year began. On October 23, 2020, Dubikovskyy filed a petition with the United States District Court for the Western District of Missouri seeking return of M.D. to Switzerland pursuant to the Hague Convention, implemented through the International Child Abduction Remedies Act, 22 U.S.C. §§ 9001–11. Dubikovskyy alleged that M.D.’s country of habitual residence is Switzerland and that Goun’s actions constitute an unlawful retention. He asked that the court order M.D. be returned to Switzerland. In response, Goun asserted two affirmative defenses—that there is a grave risk that M.D. would be exposed to physical or psychological harm or otherwise be in an intolerable situation if she returned to Switzerland (the grave risk of harm defense), and that M.D. objects to being returned and has attained an age and degree of maturity such that the court should take account of her views (the mature child defense).

 

On December 2, 2020, the district court held an evidentiary hearing on the merits of the petition. Two days after the evidentiary hearing, the district court, pursuant to Federal Rule of Evidence 706,³ appointed psychologist Dr. James Straub to “provide information about the maturity and independence of [M.D.]” because the court was concerned that M.D. may have been unduly influenced by her mother when she was removed from Switzerland. Dubikovskyy objected to Dr. Straub’s appointment. Notwithstanding that objection, Dr. Straub examined M.D. and submitted a written report to the court on December 14, 2020. After receiving the report, the district court again interviewed M.D. in camera, this time outside the presence of counsel. On January 7, 2021, the district court denied Dubikovskyy’s petition, relying on the mature child defense. The district court found that M.D. was “sufficiently mature and independent [such that the court could] account for her views” and that M.D. had “stated an objection to returning to Switzerland,” with reasons similar to those “an adult might consider when deciding where to live, i.e.[,] family responsibilities, comfort, and opportunities to pursue goals that are meaningful and inspiring to them.” The district court noted M.D. “was reluctant to use the word objection because she did not want to make her father sad,” but nonetheless concluded that “there is no doubt based on her words and expressions that she does not want to return to Switzerland.” The court further explained it was “confident M.D.’s decision [was] made independently of either parent’s influence.” On February 5, 2021, Dubikovskyy appealed.⁴

 

The Eighth Circuit found that there was no dispute that Dubikovskyy has established a prima facie case; the sole issue on appeal is whether the district court erred by applying one of the narrow exceptions—the mature child defense—to deny his petition. The mature child defense comes from Article 13 of the Hague Convention, which provides that a judicial or administrative authority may “refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” For the mature child defense to apply, the respondent must establish by a preponderance of the evidence that (1) the child has attained an age and degree of maturity at which it is appropriate to take account of her views, and (2) the child objects to being returned. Custodio, 842 F.3d at 1089 (citing Hague Convention art. 13); see also 22 U.S.C. § 9003(e)(2)(B). If a child is found to be mature, the reasons the child objects to being returned are immaterial. See Custodio, 842 F.3d at 1091 (adopting the rule from Rodriguez, 817 F.3d at 475–76, that the mature child defense may apply “whatever the reason for the child’s objection”). The Court construes the mature child defense narrowly. Id., 842 F.3d at 1089. A stricter standard also applies when a child’s views are the sole reason for denying repatriation. See Tsai-Yi Yang v. Fu-Chiang Tsui, 499 F.3d 259, 278 (3d Cir. 2007).

 

          On appeal, Dubikovskyy did not contest the district court’s finding that M.D. had attained an age and degree of maturity at which it is appropriate to take account of her views. Rather, Dubikovskyy argued that the district court erred at the second step by accepting M.D.’s preference for staying in Missouri, rather than requiring an objection to returning to Switzerland. Indeed, “[a] preference is not an objection,” and there is a “substantive difference between preferring to live in one of two countries ... and affirmatively objecting to returning to one country.” Rodriguez, 817 F.3d at 476–77. Under the Hague Convention, a child’s preference or “generalized desire” to remain in the United States is insufficient to invoke the narrow mature child exception. See Tsai-Yi Yang, 499 F.3d at 279. Instead, the child’s testimony must include “particularized objections” to returning to the former country of residence. Id. The district court recognized the important distinction between a preference and an objection, citing a dictionary definition for objection, “a reason, ground, or cause for expressing opposition,” and noting that an objection “connotes more than a preference for the alternative.” M.D. testified that she “would love to live [in Missouri] because [she has a] lot of things here, and it would be really great for [her] dad to come [to Missouri] for vacation.” When asked about returning to Switzerland, however, she said that she thought she would be “okay,” and that she was not afraid to go back there. But she added that she would be “unhappy” if she had to move to Switzerland, and she gave several reasons: she would not be able to attend the same school as her close friend who lived in a different Swiss town; she could not bring her dog with her; she would miss her mother, her half-sister, and her friends in Missouri; and it was more difficult to ride horses in Switzerland.

 

In an effort to determine whether M.D. truly “objected” to returning to Switzerland, the district court asked her if she knew the meaning of the words “objection” and “preference.” M.D., speaking in a second language,⁵ said she did not understand “object.” The court tried to explain the difference between the two words by offering M.D. some examples: “I object to cleaning the bathroom.” “I object to my little sister yelling in my ears.” “Do you object to getting up early in the morning to go to school?” The court continued by saying that “[a]n objection is something you don’t want. You’re displeased. One is stronger than the other.” When the court then asked M.D. whether she “objected” to returning to Switzerland or whether she simply “preferred” one location over the other, M.D. was equivocal. Her most complete answer was: “I would say it’s, like, middle, but, yeah. Maybe I object — I don’t know. ... I mean, I — I’m kind of in the middle, but I think I — I’m more on the object — object side. I don’t know. Objection. Yeah.” The court asked M.D. why she hesitated in her answer, and M.D. responded, “I don’t know. It’s, like, hard ....”

 

The Eighth Circuit recognized the challenges that come with deciphering the difference between an objection and a preference in a child’s testimony. If given two choices, country A and country B, an objection to living in A will almost always (although not invariably) indicate a preference for living in B. But a preference to live in B does not necessarily indicate an objection to living in A. In this case, M.D.’s testimony failed to show by a preponderance of the evidence that she “objected” to returning to Switzerland. Rather, when asked why she would be “unhappy,” or “dissatisfied” if she had to go back to Switzerland, M.D. consistently responded with reasons why she preferred to stay in Missouri.⁶ As to the district court’s discussion of M.D.’s above-average intelligence, strong personality, and well-developed sense of responsibility for her younger sibling and the feelings of others, such findings are relevant to whether the child has reached the age and maturity at which it is appropriate to consider her views on repatriation. But these observations do not speak to whether M.D. has in fact lodged an objection to being returned to Switzerland. Here, M.D.’s desire to remain in the United States was not coupled with a particularized objection to returning to Switzerland. As a result, it was insufficient to meet the strict standard that applies when the mature child defense is the sole grounds for denying an abducted child’s return. See Tsai-Yi Yang, 499 F.3d at 278. Because M.D. did not express a particularized objection to returning to Switzerland, instead describing a preference—for a variety of understandable reasons—to remain in the United States, the district court’s finding that M.D.’s statements constituted an objection within the meaning of the mature child defense was clearly erroneous. Custodio, 842 F.3d at 1089 (whether a mature child has objected to the return to her country of habitual residence is reviewed for clear error).

Recent Hague Convention District Court Cases - Soulier v Matsumoto, 2022 WL 17250549 (D. New Jersey, 2022)

 

[Belgium][Necessary Expenses] [Granted] 

In Soulier v Matsumoto, 2022 WL 17250549 (D. New Jersey, 2022) on July 8, 2022, the district court granted Petitioner’s application, and ordered that the Children be returned to Belgium, and also granted Petitioner leave to file this motion for attorney’s fees and costs. The Court granted the Petitioners motion for Counsel fees and Costs but reduced the amount requested. The  district court pointed out that in an action brought under section 9003 ... shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. 22 U.S.C. § 9007(b)(3); see also Cillikova v. Cillik, Civ. No. 15-2823, 2016 WL 541134, at *3 (D.N.J. Feb. 9, 2016). Therefore, it is presumed that a prevailing ICARA petitioner will be awarded fees, unless the respondent establishes that the award would be clearly inappropriate. To determine whether the award demanded by the prevailing party would be clearly inappropriate, courts assess the opposing party’s financial circumstances, and whether such an award would significantly impair that party’s ability to provide for the child. See id. at *5;³ Hirts v. Hirts, 152 F. App’x 137, 139 (3d Cir. 2005); Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir. 2004). Courts also consider a respondent’s basis for removing and/or retaining the child. See, e.g., Ozaltin v. Ozaltin, 708 F.3d 355, 375 (2d Cir. 2013); Clarke v. Clarke, Civ. No. 08-690, 2008 WL 5191682, at *3 (E.D. Pa. Dec. 11, 2008) District courts also may apply equitable principles in determining such fees. See Ozaltin, 708 F.3d at 375. The Court reduces the block-billed entries for use of the vague “review of file” description, but otherwise concludes that the block-billed entries were  reasonable in terms of the time expended on the tasks performed. It also agreed with  Respondent that Petitioner’s counsel should not be allowed to charge his partner rate for tasks that non-lawyers could have performed.. “A claim by a lawyer for maximum rates for ... tasks [that can be] performed by administrative assistants, paralegals, or secretaries” is unreasonable. Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 180 (3d Cir. 2001). After accounting for the reductions via the lodestar analysis above, the Petitioner’s attorney’s fees were reduced to $76,620.00. The court rejected respondents argument that she had a reasonable basis for retaining the Children. However, it reduced the attorney’s fees by 20% because while Respondent was employed and lived with her parents through the litigation, she has few assets. Second, taking care of the Children may require that Respondent travel to Europe, or the Children visit the United States. Also, it was not apparent to the Court whether Respondent will have any financial obligations related to the Children after the parties resolve their custody dispute. A reduction was warranted in the amount of $15,324.00 (20% of the Court’s reduced total from its analysis. The Court granted Petitioner’s motion for attorney’s fees and costs in the reduced amount of $65,821.54, consisting of: $61,296.00 in attorney’s fees; $2,406.75 in travel expenses; and $2,118.79 in costs.

 

 

Recent Hague Convention District Court Cases - Esparza v Nares, 2022 WL 17724414 ( S.D. Texas, 2022)

 

[Mexico] [Age and Maturity exception] [Petition granted]

In Esparza v Nares, 2022 WL 17724414 ( S.D. Texas, 2022) the District Court granted the petition for the return of the two minor children to Mexico. Petitioner and Respondent were Mexican. During their marriage, Esparza and Nares had two children: M.G.R.D. and V.N.R.D. The Children were both Mexican citizens, having been born in Nuevo Leon, Mexico. They resided there for the majority of their lives. In April  2021, Esparza and Nares divorced. As part of their divorce, the parties, entered into a divorce decree, that governs the legal custody arrangement of the Children. Under the decree, that was agreed to by both sides, the parents maintained joint legal custody of the Children. Pursuant to that decree, Esparza was permitted to see and live with his daughters from 11:00 a.m. to 8:00 p.m. on Saturdays and from 2:00 p.m. to 9:00 p.m. on Wednesdays. At all other times, the Children remained with Nares. The divorce agreement also specified how the parents were to travel with the Children. Under that agreement, each parent was allowed to travel with the Children, but travel was limited to 15 days per trip and the parties were required to inform one another about the trips. In May 2022, Nares, without permission or prior notice to Esparza, left Nueva Leon and brought the two Children to Texas. The Children remained in Texas ever since. The only issue for the Court to decide was whether the Hague Convention’s Article 13 age and maturity exception applied. It states, “[t]he judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Hague International Child Abduction Convention; 51 Fed. Reg.at 10494-01, Art. 13. The party opposing the child’s return must establish the child’s maturity by a preponderance of the evidence. England v. England, 234 F.3d 268, 272 (5th Cir. 2000). “[W]hether a child is of sufficient age and maturity is a fact-intensive process,” and the Fifth Circuit has “declined to hold, as a matter of law, that any particular age is sufficient of insufficient to meet the defense.” Dietz v. Dietz, 349 F. App’x 930, 934 (5th Cir. 2009). The  age and maturity exception is to be applied narrowly. The two Children here were  eleven and six years old. Neither speaks English; consequently, the Court’s interpreter translated. The girls were interviewed separately so the Court could evaluate them separately. During their respective interviews, both kept their eye cast downwards and spoke in a quiet manner. Both Children only spoke a couple of words at a time. For the most part, they were unable to explain their answers, often sticking to yes, no, I don’t know or one word answers. The case shared similarities with Dietz v. Dietz. In the Dietz case, the court held a 13-year-old was not mature under the Hague Convention. Dietz, 349 F. App’x at 934. The court noted that he was “highly defensive,... he spoke in a short and cut manner in a low monotone and kept his eyes cast downward.” The court also pointed to the report of a child psychologist who examined the boy and determine despite showing high average to superior intelligence, he displayed only average verbal skills, and performed poorly in school. Id. Also in that case, the Court did not credit 9-year-old Angus’s preference because it found that his views were “unduly influenced by his father.” The Court acknowledged that both Children voiced a preference for remaining in Texas with their mother, but this testimony, even when one gives due consideration to the circumstances surrounding the questioning, was not sufficient to prove by a preponderance of the evidence that the Children were mature enough for the Court to appropriately take into account their views under the age and maturity exception. Rodriguez v. Yanez, 817 F.3d 466, 476 (5th Cir. 2016) (requiring an “[o]bject[tion] not a mere preference.”). In so holding, this Court considered their answers, but also their demeanor, their attention to what was being asked, and the manner of their responses. The totality of the evidence made it clear that neither girl demonstrated the age and maturity necessary for the Court to take their views into account. Since the Court found the Children were not of sufficient age and maturity, and ordered the two minor children be returned to Nuevo Leon, Mexico.