Recent Hague Convention District Court Cases - Bre v Aguirre, 2023 WL 8371981( S.D. Florida, 2023)[Argentina][Habitual residence][Petition denied]

 

 

In Bre v Aguirre, 2023 WL 8371981( S.D. Florida, 2023) the District Court denied the  mothers Petition to have her minor child, I.A.B., returned to her custody in Argentina.

 The child was born in the United States in January 2015, but in 2017 moved to Argentina with the Petitioner. On or about December 15, 2022, I.A.B. traveled to the United States to spend the Argentine summer break period with the Respondent, ending on March 15, 2023. The Respondent never returned I.A.B. to Argentina, and I.A.B. remains in the United States. The Petitioner alleged that she never consented to the child’s retention in the United States following the child’s short-term visit to Florida.

 In opposition to the petition, the Respondent argued in his motion to dismiss and at the hearing that I.A.B. was born in the United States and that a Parenting Plan established by the Eleventh Judicial Circuit in and for Miami-Dade County established by mutual agreement that I.A.B.’s country of habitual residence is the United States. Courts must consider the totality of the circumstances in determining the habitual residence of a child for Hague Convention purposes. Monasky v. Taglieri, 140 S. Ct. 719, 729 (2020). “As best I can determine, the concept of “habitual residence” [...] means the place where the child in fact has been living for an extended period—unless that place was never regarded as more than temporary or there is another place to which the child has a strong attachment.” Id. at 734-35 (2020) (Alito, J., concurring). I.A.B. was born in Miami and lived here with both parents until 2017, when the Petitioner moved to Argentina due to immigration issues, bringing the child with her. The child did not hold Argentine citizenship. In June 2021, the parties signed a Parenting Agreement, under the terms of which it was agreed the child would live with the Petitioner in Argentina until she was ten years old (January 2025), at which time she would return to Miami, and the Respondent was allowed time sharing in Miami during the extended summer and winter school breaks until that time. In December 2022, the Petitioner allowed the Respondent to exercise his summer visitation and allowed the paternal grandfather to take the child to Miami with the understanding the child would be returned to Argentina in March 2023. The grandfather returned to Argentina in March 2023 without the child, who remains living in Miami with the Respondent. The Respondent told the Petitioner he did not intend to return the child.

 The Petitioner claimed that she was defrauded into signing the Parenting Plan because she did not understand the contents of the document when she signed it, and that the United States therefore should not be regarded as the child’s habitual residence. The Court held that a person seeking to disavow a contract based upon their claim of not being proficient in English must establish more than lack of English proficiency to render the contract unenforceable, such as fraud on the part of the other party. “[I]nability to read in English will not preclude a person from entering into a binding contract that he signs without reading.” “Unless one can show facts and circumstances to demonstrate that he was prevented from reading the contract, or that he was induced by statements of the other party to refrain from reading the contract, it is binding. No party to a written contract in this state can defend against its enforcement on the sole ground that he signed it without reading it.” Federal courts have similarly found that inability to understand English does not invalidate a contract.. The Petitioner testified that she believed that the documents merely established the Respondent’s paternity of the child and set forth the legal name of the child agreed to by the parties. However, this subjective belief was insufficient to establish that the Petitioner’s agreement was fraudulently obtained.  The Court therefore concluded that I.A.B.’s habitual residence was the United States based upon the totality of the circumstances, including her parents’ shared intentions as reflected in the Parenting Plan and Final Judgment of Paternity and the child’s practical circumstances. Because the child was currently present in the country of habitual residence, relief under the Hague Convention was not available. See Hague Convention Preamble, T.I.A.S. No. 11,670, at 4, 1343 U.N.T.S. 89, at 98.

 

Tereshchenko v. Karimi, 2023 WL 8452224 (S.D. New York, 2023) [Ukraine][Subject matter jurisdiction] [Motion to dismiss denied]

In Tereshchenko v. Karimi, 2023 WL 8452224 (S.D. New York, 2023) Yasamin Karimi and her children fled Ukraine in early 2022, following Russia’s invasion. The children’s father, Roman Tereshchenko petitioned the Court under the Hague Convention for the return of his two minor children. Respondent moved to dismiss the petition pursuant to Rule 12(b)(1), Fed. R. Civ. P., on the ground that this Court lacks subject matter jurisdiction. The Court denied the motion.

 Tereshchenko and Karimi, both Ukrainian citizens, were married on April 22, 2017, in Odessa, Ukraine. The parties share two minor children, K.T. and M.T. On November 16, 2018, the parties divorced. On May 29, 2019, Tereshchenko and Karimi executed an agreement concerning their respective custody rights. Under the Custody Agreement, the Children were to reside with Respondent in Odessa, and Petitioner maintains certain visitation rights. There are ongoing custody proceedings in Ukraine, where Tereshchenko and Karimi are both seeking to modify provisions of the Custody Agreement. On February 24, 2022, Russia invaded Ukraine. In early March, Karimi fled Ukraine with the Children. In July, Karimi and the Children ultimately made their way to the United States where they were granted humanitarian parolee status. Karimi and the Children have remained in the United States since July 2022. Tereshchenko has been residing in France since May 2022, where he asserts he has established a primary residence.

 On March 8, 2023, Tereshchenko filed the petition asserting that Karimi wrongfully removed the Children from Ukraine. Tereshchenko seeks the Children’s return to him in France. Respondent moves to dismiss the petition pursuant to Fed. R. Civ. P. 12(b)(1), which requires the Court to dismiss an action for lack of subject matter jurisdiction if the Court determines that it lacks the constitutional or statutory power to adjudicate the case. When a Rule 12(b)(1) motion is made solely based on the allegations in the pleading, the “task of the district court is to determine whether the [p]leading alleges facts that affirmatively and plausibly suggest” that subject-matter jurisdiction exists. Carter v. HealthPort Tech., LLC, 822 F.3d 47, 56 (2d Cir. 2016) (citation omitted). Courts must be careful, however, not to conflate “federal-court ‘subject-matter’ jurisdiction over a controversy[ ] and the essential ingredients of a federal claim for relief.” Green v. Dep’t of Educ. of N.Y., 16 F.4th 1070, 1076 (2d Cir. 2021). To resolve whether an issue goes to the merits or subject matter jurisdiction, the Court must look to the language of the statute to determine whether Congress intended “that a threshold limitation on a statute’s scope shall count as jurisdictional.” Arbaugh v. Y&H Corp., 546 U.S. 500, 515 (2006).

 The district court held that Karimi conflated jurisdiction with the merits of Tereshchenko’s petition for the Children’s return. ICARA confers “concurrent original jurisdiction of actions arising under the Convention” on “[t]he courts of the States and the United States district courts.” 22 U.S.C. § 9003(a). A petition for the return of a child is properly heard by “any court which has jurisdiction ... in the place where the child is located at the time the petition is filed.” Id. § 9003(b). The Children were residing within this district at the time the petition was filed, and thus § 9003 confers subject matter jurisdiction upon this Court. Karimi made four arguments in support of her assertion that this Court lacked subject matter jurisdiction over the petition. Three of those contentions related to an element of proof required either of the Petitioner who sought the Children’s return or of the Respondent who opposed that return. Those contentions do not, however, relate to the Court’s power to adjudicate the merits. The fourth argument -- that Petitioner may not seek the return of the Children to France, a state other than their habitual state of residence -- was similarly unavailing. That question concerns potential remedies available under the Hague Convention. It has no bearing on whether the Court has subject matter jurisdiction over the petition.

Guzzo v. Hansen, Not Reported in Fed. Rptr., 2023 WL 8433557 (Eighth Circuit, 2023)[Spain][Petition granted]

 

In  Guzzo v. Hansen,  Not Reported in Fed. Rptr., 2023 WL 8433557 (Eighth Circuit,  2023) Erica Hansen, a United States citizen, appealed the district court’s order that her son with Fabrizio Guzzo be returned to Spain. The Eighth Circuit affirmed. Hansen argued that the district court erred in determining the record did not support her defenses to returning her son to Spain. This court discerned no error in the district court’s conclusion that Hansen failed to establish her son would face a grave risk of harm if returned to Spain. See Acosta v. Acosta, 725 F.3d 868, 874 (8th Cir. 2013) (standard of review); see also Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir. 1995) (grave-risk inquiry only requires assessment of whether the child will face immediate and substantial risk of an intolerable situation if he is returned to habitual residence). The court discerned no error in the district court’s finding that, even if her son had attained sufficient maturity to consider his views, he did not express a particularized objection to living in Spain. See Custodio v. Samillan, 842 F.3d 1084, 1089 (8th Cir. 2016) (standard of review); see also Dubikovskyy v. Goun, 54 F.4th 1042, 1048 (8th Cir. 2022) (child’s preference or generalized desire to remain in United States is insufficient, as child’s testimony must include particularized objections to returning to former country).