Galaviz v Reyes, --- F.4th ----, 2024 WL 982223 (Fifth Circuit, 2024)[Mexico] [Petition granted] [Fundamental Freedoms Article 20 defense and Grave risk of harm not established] [This Opinion was substituted for the October 11, 2023 opinion]

 

In Galaviz v Reyes,  --- F.4th ----, 2024 WL 982223 (Fifth Circuit, 2024) Abigail Galaviz and Luis Reyes had a son and daughter while living in Mexico. The young children remained in that country with Galaviz when their parents separated. In July 2021, Reyes took the children to El Paso, Texas, and refused to return them. Galaviz filed an action in federal district court requesting the return of the children to Mexico under the Hague Convention. Reyes raised affirmative defenses under Articles 20 and 13(b), asserting that returning the children would violate a fundamental right to an education and would expose them to a grave risk of harm or an intolerable situation. The district court ruled in favor of Reyes and denied Galaviz’s request for the return of the children. The Fifth Circuit reversed and remanded.

After Galaviz and Reyes separated, the children remained in Juarez, Mexico under Galaviz’s care. Reyes moved out of the home and relocated to El Paso, Texas. In July 2021, Reyes took the children to El Paso for an appointment with a physician and refused to return them to their mother or Mexico. In October 2021, Galaviz submitted an Application for the Return of her Children to the United States Central Authority under the Hague Convention. In November, Galaviz filed a Verified Petition for the Return of the Children in the Western District of Texas. At the time of the proceedings in district court, there were no formal custody or possession court orders in place governing the parents’ custodial rights. The son was five years old, and the daughter was four years old. The district court held a trial and Reyes conceded that Galaviz met her burden of establishing a prima facie case of wrongful removal by a preponderance of the evidence. The burden then shifted to Reyes, who opposed the return, to establish an exception. Reyes raised exceptions set forth in Articles 20 and 13(b) of the Convention.

As to Reyes’s Article 20 defense, the district court concluded that “[Galaviz’s] inability to be present with the children, as required so that they can attend school, effectively denied the children the fundamental right to an education,” and “[t]he denial of an education to two special needs children in their most formative years utterly shocks the conscience of the court.” As to Reyes’s Article 13(b) defense, the court concluded that “[t]he incidents of abuse and neglect collectively and the strong suggestion of sexual abuse constitute a grave risk of physical and psychological harm and an intolerable situation should the children return to Juarez.” The court concluded that Reyes had established the exceptions upon which he relied by clear and convincing evidence and denied Galaviz’s request for the return of the children to Mexico.

The Fifth Circuit noted that the Article 20 defense allows repatriation to be denied when it ‘would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.’ ” A parent resisting repatriation of a child based on Article 20 has the burden of establishing by clear and convincing evidence that this exception applies. Article 20 is to be “restrictively interpreted and applied.”  

The Court first determined the applicable standard of review. In recent years, the Supreme Court has held in a Hague Convention case that “[m]ixed questions [of law and fact] are not all alike.” The Court has explained that “[i]n short, the standard of review for a mixed question all depends—on whether answering it entails primarily legal or factual work.” In Monasky v. Taglieri the Court held that the location of a child’s “habitual residence” within the meaning of the Hague Convention “depends on the totality of the circumstances specific to the case,” and the district court’s determination of “habitual residence” “is subject to deferential appellate review for clear error.”   It appeared that whether repatriation of a child should be denied because “it ‘would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms’ ” presents a question that is quite different from the location of a child’s “habitual residence.”

The court explained that to be able to refuse to return a child based on Article 20, it will be necessary to show that the fundamental principles of the requested State concerning the subject-matter of the Convention do not permit it; it will not be sufficient to show merely that its return would be incompatible, even manifestly incompatible, with these principles. An inquiry of that nature would be a legal one, once the underlying facts were determined. It concluded that determining whether “the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms” would not permit the return of a child entails primarily legal work. Accordingly, it reviews the district court’s findings of fact regarding Reyes’ invocation of Article 20 for clear error, bearing in mind that the heightened clear-and-convincing-evidence burden applies, and it reviews de novo whether the circumstances permit a United States court to decline to return a child under Article 20.

 

The Court held that Article 20 is to be “restrictively interpreted and applied.” It “is not to be used ... as a vehicle for litigating custody on the merits or for passing judgment on the political system of the country from which the child was removed.” It noted that the district court found that while in Galaviz’s care, the children did not attend preschool or kindergarten due to the school’s requirement that Galaviz attend school with them to help with their special needs. Because Galaviz did not comply with this requirement, the children did not attend school. However, the district court did not find that the children would be entirely deprived of an education if returned to Mexico. The court acknowledged that “the law in Mexico may provide for special education.” 

These findings did not establish an Article 20 exception. The district court focused primarily on Galaviz’s actions or inactions regarding the children’s education, not on laws or policies of the United States that would prohibit the return of the children. By focusing on Galaviz’s actions or inactions, the district court essentially made an impermissible custody decision. It held that Reyes did not present clear and convincing evidence demonstrating that, as a matter of law, the return of the children would utterly shock the conscience or offend all notions of due process.

The Fifth Circuit held that an Article 13(b) defense determination is a mixed question of law and fact. Because it concluded that the district court’s finding that Reyes established an exception under Article 13(b) cannot stand under either de novo or clear error review, it did not resolve which standard of review is required. 

The Court explained that under Article 13(b), a court in its discretion need not order a child returned if there is a grave risk that return would expose the child to physical harm or otherwise place the child in an intolerable situation.” “The person opposing the child’s return must show that the risk to the child is grave, not merely serious.” “The grave risk involves not only the magnitude of the potential harm but also the probability that the harm will materialize.” “The alleged harm ‘must be a great deal more than minimal’ and ‘greater than would normally be expected on taking a child away from one parent and passing him to another.’ ” A district court’s factual finding is clearly erroneous “when ‘the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ”  The district court’s conclusion that evidence of neglect established a grave risk of harm under the clear and convincing standard was clearly erroneous. Article 13(b) focuses on the risk of harm posed by the child’s repatriation. is not an invitation to determine whether custody with one parent would be in the best interest of the child. The question is whether there is clear and convincing evidence that return would expose the child to a grave risk of harm, not whether a parent is a worthy custodian. The evidence Reyes presented that Galaviz neglected the children’s medical care was not sufficient to support a finding under the clear-and-convincing burden of proof that returning the children to Mexico would present a grave risk of physical harm. Reyes presented evidence that the children had “rotten molars” when in Galaviz’s care and when brought to the United States. He also presented evidence that, when brought to the United States, the children were behind on their vaccinations, their daughter had hearing loss requiring hearing aids, and their son had an astigmatism requiring eyeglasses. On this record, it was clearly erroneous for the district court to conclude that there was clear and convincing evidence that a grave risk of physical harm arose from the medical care the children would obtain if repatriated to Mexico.  Similarly, it was clearly erroneous to base a grave risk finding on Reyes’s evidence with respect to the allegations of unsuitable childcare, poor hygiene, and lack of educational opportunities. That evidence did not clearly and convincingly demonstrate a grave risk of physical or psychological harm. Reyes presented no evidence that these hygiene issues or the older daughters’ supervision of the children would expose the children to a grave risk or intolerable situation. If a child’s standard of living provided clear and convincing evidence of a grave risk of harm, “parents in more developed countries would have unchecked power to abduct children from countries with a lower standard of living.”

The Fifth Circuit found that the district court also clearly erred in concluding that Galaviz was the cause of the children’s regression. If there are “equally plausible explanations” for the outcome, a party does not sustain its burden of proving clear and convincing evidence. The behavioral regressions by the children could be attributed to the fact they are very young, have special needs, and were separated from their father—an “equally plausible explanation[ ]” that undermined the district court’s finding. The evidence was not clear and convincing that Galaviz was the cause of regression. 

Finally, the district court also clearly erred by concluding Reyes presented clear and convincing evidence that the children’s return to Mexico would pose a grave risk of harm by impeding their development. There was no evidence before the district court that programs, classes, or educational opportunities for autistic children are unavailable in Mexico. Nor was there evidence that returning to Mexico would irreversibly impede the children’s development.  The district court found that Galaviz attempted to enroll her children in a special needs school in Mexico, which required Galaviz to be present during the children’s classes. The district court concluded that Galaviz’s inability to be present at the school effectively denied the children their right to an education.

 The district court clearly erred in concluding the evidence related to physical abuse clearly and convincingly established a grave risk of harm. “Sporadic or isolated incidents of physical discipline directed at the child, or some limited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk” under the clear and convincing burden. Cases concluding that the grave risk exception has been met often involve the use of physical force that is repetitive or severe. The district court in the present case found that the children had been physically abused based on the children’s behavior and on the testimony of Galaviz’s former friend. The court found that the children cowered and protected their heads when bathing, that the son reacted to protect his sister when she spilled her beverage and that he covered her mouth to quiet her when she cried. Reyes testified that he never saw Galaviz hit the children, but that he observed her yell at them. Reyes stated that he would attempt to conduct video conferences between Galaviz and the children, but that they would become very upset and cry and throw the phone at him. None of this evidence rose to the level of clear and convincing evidence of a grave risk of physical or psychological harm if the children are returned to Mexico. There were also other plausible explanations for the children’s behavior. Reyes’s sister acknowledged that it was possible the children did not want to be bathed by someone they didn’t know. The children could have behaved fearfully because of prior actions by Reyes—Galaviz testified that Reyes had punched her, tried to strangle her, caused swelling, bruises, black eyes, a busted lip, and a broken nose. If there are “equally plausible explanations” for the outcome, a party does not sustain its burden of providing clear and convincing evidence.

Galaviz’s former friend testified that she witnessed Galaviz hit the children “[n]ot in their face but in their ... thigh.” She stated that Galaviz hit her son with a foam slipper to reprimand him for climbing a kitchenette. She saw Galaviz slap her adult daughter when the latter was confronted about spanking her young brother. She also testified that Galaviz would hit the children because they would cry. This evidence represents the type of “[s]poradic or isolated incidents of physical discipline” that courts have rejected as establishing an Article 13(b) exception. Without more, the district court clearly erred in concluding this evidence established a grave risk of harm by clear and convincing evidence. 

Lastly, the district court clearly erred in determining that there was clear and convincing evidence of sexual abuse. The district court characterized the evidence as indicating merely a “strong suggestion of sexual abuse.” This “strong suggestion” was based on a finding that Reyes received anonymous text messages stating that the children had been sexually abused with Galaviz’s knowledge, a police report filed by Reyes, and a police report narrative in which a physician expressed their belief that the son could have been sexually abused. The district court, however, did not admit the text messages or the police reports for the truth of the matter asserted therein, and their content was not presented in an otherwise admissible form. The only evidence offered to establish the alleged sexual assault was Reyes’s own testimony. This evidence did not meet the clear and convincing evidence burden. Simply put, the only evidence of sexual abuse is the father’s testimony that he suspected sexual abuse. Accordingly, the district court clearly erred in concluding this was clear and convincing evidence of sexual abuse.

 

 

Baz v Patterson, 2024 WL 1879035 (Seventh Circuit, 2024) [Germany][Petition granted] [Habitual residence] [Agreement for future Habitual residence ]

 Baz v Patterson, 2024 WL 1879035 (Seventh Circuit, 2024) [Germany][Petition granted] [Habitual residence]

 

In Baz v Patterson, 2024 WL 1879035 (Seventh Circuit, 2024) Asli Baz, a citizen of Germany, filed suit seeking to compel Anthony Patterson, a citizen of the United States, to return their six-year-old son, A.P., from Illinois to Germany. The district court found that A.P.’s habitual residence at the time he was retained was in Germany, where he had lived with Baz for over a year, and that the retention in Illinois violated Baz’s rights of custody under German law. It thus granted Baz’s petition and ordered the child’s return. The Seventh Circuit affirmed. It concluded that the district court properly exercised the jurisdiction granted to it by ICARA and that the record supported its decision.

 

In 2013, Baz was living in the United Kingdom and Patterson resided in Florida. Two years later, Baz moved to Chicago on a student visa to pursue a doctoral degree in clinical psychology. Patterson accompanied her, they moved into a house together, and their son, A.P., was born in May 2017. Although Baz and Patterson ended their relationship shortly after A.P.’s birth, they continued to occupy the same house, on different floors, pursuant to an order from the Circuit Court of Cook County, Illinois (“Illinois state court”). On August 5, 2019, Baz sought and received the court’s permission to relocate with A.P. to Wisconsin for her pre-doctoral internship. In September 2020, Baz again requested permission to relocate with A.P., this time to Minnesota so that she could complete a mandatory pre-doctoral fellowship in forensic psychology. The Illinois state court granted this request, and Baz completed her fellowship in March 2021.

In May 2022, Baz sought permission from the Illinois state court to relocate with A.P. to Germany. The Illinois state court held a trial and, on May 9, 2022, granted her petition. The court then instructed Baz and Patterson to draft an agreement detailing how they would divide their parenting time and decision-making responsibilities after Baz relocated. The Illinois state court memorialized the parental agreement on May 23, 2022, in a document entitled “Allocation Judgment: Allocation of Parenting Responsibilities and Parenting Plan” (“Illinois Allocation Judgment”). The Illinois Allocation Judgment was signed by Baz, Patterson, and the presiding judge, but not by the guardian ad litem. It provided that A.P. would move with Baz to Germany, where he would attend school, with each parent paying half of his tuition. The agreement also stated that A.P. would continue with his primary health-care provider in the United States, but that Baz would be responsible for securing medical, health, and hospitalization insurance for him in Germany, at least through the first month following his eighteenth birthday. The Illinois Allocation Judgment provided that Patterson would have parenting time during the summer and other school breaks. He also was allowed to have daily video calls with A.P. and to visit him in Germany. The parents agreed that each of them would maintain possession of A.P.’s U.S. passport during his or her respective parenting time, and that they would exchange the passport whenever A.P. was dropped off or picked up. The parties were allowed to modify this parenting schedule by written agreement. The Illinois Allocation Judgment also purported to determine A.P.’s habitual residence for purposes of the Convention. The habitual-residence provision of the Illinois Allocation Judgment states that “[t]he ‘Habitual Residence’ of the minor child is the United States of America, specifically the County of Cook, State of Illinois, United States of America.” Another provision provides that neither Baz nor Patterson had “consented, or acquiesced to the permanent removal of the child to or retention in any country other than the United States of America.” The agreement also includes a jurisdictional provision, which states that “[s]o long as at least one parent resides in the State of Illinois, the Circuit Court of the State of Illinois shall retain exclusive and continuing jurisdiction over this cause to enforce or modify the terms and provisions of this Allocation Judgment.” On May 13, 2022, with the permission of the Illinois state court, she and A.P. relocated to Germany. A.P. at the time was about five years old. Shortly after they arrived, Baz acquired a German passport for A.P., who, had dual U.S. and German citizenship. Baz testified that she applied for the passport because under German law A.P. could not attend school or enroll in the national health-care system without identification. After Baz and A.P. relocated to Germany, A.P. enrolled in school as planned.

Baz and Patterson subsequently negotiated an agreement and memorialized it in a “German Consent Order” dated May 31, 2023. It reaffirmed that joint parental care and custody of A.P. would remain in place, and that the Illinois Allocation Judgment would continue to apply to the extent that additional specifications had not been adopted. The parents further agreed that A.P. was living in Germany with Baz, but that Patterson was authorized and required to have parenting time or contact with A.P. from June 19, 2023, through July 31, 2023, pursuant to the Illinois Allocation Judgment. Once A.P. was back in Germany, Patterson would be allowed to see him at discrete times in August 2023 and to attend the child’s first-day-of-school ceremony on August 8, 2023. Patterson would keep A.P.’s U.S. passport going forward, and Baz would keep his German passport. Through the German Consent Order, Baz and Patterson also agreed that they would not continue to pursue custody-related matters pertaining to A.P. in either the United States or Germany. Patterson “commit[ted] himself to submit the [German Consent Order] to the [Illinois state] court in Chicago by” June 2, 2023. He also agreed “to request that the American court suspend the proceedings in view of the fact that the German attorneys want to come up with an out-of-court solution.” Patterson notified the Illinois state court of the agreement on June 1, 2023, but he did not furnish the court a complete copy of the German Consent Order. Immediately after informing the Illinois state court about the German Consent Order, Patterson told the guardian ad litem that he had agreed to that order under duress.

When Baz learned that Patterson was acting contrary to the German Consent Order, she expected that he would also refuse to return A.P. to Germany by July 31, 2023, when his summer parenting time was up. Motivated by this concern, Baz did not make plans for A.P. to return to the United States on June 19, 2023. This conflicted with the German Consent Order. On June 27, 2023, the Illinois state court found that Baz had not turned A.P. over to Patterson on June 1, 2023, as the Illinois Allocation Judgment had required. It ordered Baz immediately to turn over A.P. to Patterson, and authorized Patterson to travel to Germany to retrieve the child. On July 3, 2023, Patterson arrived in Germany, went to A.P.’s school, and removed the child from his kindergarten class to bring him to the United States. Sometime around July 7, 2023, Patterson filed an “Emergency Ex Parte Petition for Temporary Restraining Order and Preliminary Injunction” with the Illinois state court. He requested that Baz be ordered to return A.P. to Chicago (though A.P. was in Chicago by that time) and sought sole custody. On July 10, 2023, Patterson secured a favorable ruling on his motion. The order stated that, until further order from the court, Baz was “restrained from having physical contact with” A.P. and that Patterson was “granted exclusive parenting time and decision making for the minor child[.]” It further ordered Baz to “deposit any and all foreign identification, passport(s) (including, but not limited to any German passport), or travel document(s)” for A.P. with the court by July 25, 2023.

 On July 18, 2023, about a week after the temporary restraining order was entered, Baz filed a Hague Convention Application for Return with the Central Authorities for the United States and Germany, seeking A.P.’s return to Germany. See 22 U.S.C. § 9003. On August 1, 2023, Baz filed her Verified Petition for Return of Child to Germany in the Northern District of Illinois. The district court held a two-day evidentiary hearing. On December 13, 2023, the court granted Baz’s petition. It issued an order the following day requiring that A.P. be returned to Germany.

The Ninth Circuit held that Patterson could not rely on the Illinois Allocation Judgment to oust federal jurisdiction over a case brought under the Convention. Congress, enacted ICARA so that a parent of a wrongfully retained or removed child could petition courts in the United States for the return of the child to the child’s habitual residence. Faced with such a petition, the court’s job is to consult the governing law and decide where the child habitually resides. If that residence is not in the forum state, then the court dismisses as instructed by ICARA and the Convention so that the proper court can decide the delicate issues of residence and custody that these cases present. Those are preliminary procedural decisions, not jurisdictional rulings. As applied here, there was no subject-matter jurisdiction bar preventing Baz from filing her petition for a return order in the federal court, notwithstanding the language in the Illinois Allocation Judgment purporting to give “exclusive and continuing jurisdiction” over the case to the Circuit Court of the State of Illinois. Upon Patterson’s motion, the federal court simply had to decide what weight to give that choice-of-forum (or law) provision under the Convention.

 The Ninth Circuit held that Baz had shown by a preponderance of the evidence that A.P. was wrongfully retained away from his habitual residence. See 22 U.S.C. § 9003(e)(1).

A. Time of Retention: The district court identified July 7, 2023, as the date of A.P.’s retention.  The record amply supported the district court’s finding.

B. Habitual Residence Prior to Retention: The Ninth Circuit pointed out that determining where a child was at home at the time of retention is a “fact-driven inquiry,” “not a categorical one.” The inquiry “must be ‘sensitive to the unique circumstances of the case and informed by common sense.’. Among the factors to consider are “facts indicating acclimatization,” which “will be highly relevant,” and “the intentions and circumstances of caregiving parents.” But “[n]o single fact ... is dispositive across all cases,” and so courts must consider “the totality of the circumstances specific to the case” to determine a child’s habitual residence. Monasky announced the standard that an appellate court must apply when reviewing a district court’s habitual-residence determination. The Court concluded that the inquiry presents a mixed question of law and fact because a district court must first “correctly identif[y] the governing totality-of-the-circumstances standard.”  Once a district court has identified the appropriate standard, “what remains for the court to do in applying that standard ... is to answer a factual question: Was the child at home in the particular country at issue?” Thus, so long as a district court applies the correct legal standard, its habitual-residence determination “should be judged on appeal by a clear-error review standard deferential to the factfinding court.”

 

The Court noted that  the district court applied the totality-of-the-circumstances standard to determine where A.P. was at home on July 7, 2023. The Court rejected Pattersons argument, that the totality-of-the-circumstances standard did not apply. In his view, the habitual-residence clause of the Illinois Allocation Judgment, which stated that A.P.’s habitual residence for purposes of the Convention is Cook County, should have been conclusive upon the court. The Court found that a parental stipulation as to their child’s future habitual residence is simply a factor (albeit a powerful one) for the totality-of-the-circumstances test. Patterson’s theory suffers from two fatal flaws. First, it rests on the fallacy that Baz’s and Patterson’s stipulation can bind third parties (such as A.P.’s guardian ad litem, who was not a party to the Illinois Allocation Judgment) or the district court. Patterson cited no Convention case in which a court concluded that either it or a non-party was bound by a parental stipulation about the future habitual residence of a child, and neither are we aware of such a case. To the contrary, the courts that have confronted arguments of the kind that Patterson presses have found them unpersuasive. See, e.g., Karkkainen v. Kovalchuk, 445 F.3d 280, 292–93 (3d Cir. 2006) (concluding that a habitual-residence stipulation was no longer binding because the child’s circumstances had changed since the agreement was made).

 

The second flaw in Patterson’s theory was that it assumes that parental intent alone can dictate a child’s habitual residence. That assumption is mistaken. The Supreme Court adopted that view in Monasky, where it concluded that “[w]hat makes a child’s residence habitual is ... some degree of integration by the child in a social and family environment.” 589 U.S. at 77, 140 S.Ct. 719 (quotation omitted). Although Baz and Patterson attempted to tie the court’s hands in the Illinois Allocation Judgment with respect to the future habitual residence of their child, the district court correctly determined that the stipulation can be only one factor among others to consider when applying the totality-of-the-circumstances test. A parental stipulation as to their child’s future habitual residence will often be powerful evidence of “the intentions and circumstances of caregiving parents,” which are “relevant considerations.” Monasky, 589 U.S. at 78, 140 S.Ct. 719. In the end, a child’s habitual residence depends not on any one fact, but on the totality of the circumstances specific to the case.

 

The Court rejected Patterson’s argument that the district court erred by considering evidence of A.P.’s acclimatization in Germany. In his telling, facts about A.P.’s time in Germany are tainted as evidence of post-abduction acclimatization, because Baz wrongfully removed A.P. to Germany and retained him there. This argument was a non-starter. Patterson agreed to Baz’s relocation to Germany with A.P. when he entered into the Illinois Allocation Judgment and again when he signed the German Consent Order. He cannot now claim that an arrangement that he authorized constitutes a wrongful removal or retention of A.P. Patterson resists that conclusion by pointing to evidence in the record that Baz procured permission to return to Germany under false pretenses, namely, by disingenuously telling the Illinois state court that she would continue to pursue lawful immigration status in the United States when she had no actual intent to do so.. On the basis of the facts the district court found, it properly considered evidence of A.P.’s acclimatization. The district court nonetheless concluded that there was more evidence showing that A.P. had acclimated to social life in Germany. There was no clear error in the district court’s weighing of the evidence. The district court’s finding that A.P. was at home in Germany on July 7, 2023, was plausible, and so we must accept its determination.

C. Wrongful Nature of Retention: The district court properly concluded that Baz had rights of custody under German law. The German Consent Order specifically states that the joint parental care and custody required by the Illinois Allocation Judgment would remain in place. Dr. Andreas Hanke, an expert in German family law and procedure, testified that this settlement gave Baz joint custody rights under German law. Patterson did not dispute Dr. Hanke’s interpretation of German law, nor did he submit evidence showing that he was authorized to retain A.P. in the United States at the time of retention. The balance of the evidence thus shows that Patterson’s refusal to abide by the parental agreements, as evidenced by his efforts to seek sole custody and his claim to have agreed to the German Consent Order under duress, breached Baz’s rights of custody under German law.

D. Exercise of Rights of Custody: The Ninth Circuit explainted that the standard for finding that a parent was exercising his custody rights is a liberal one.” A person who has valid custody rights to a child under the law of the country of the child’s habitual residence “ ‘cannot fail to “exercise” those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.’ ” (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1066 (6th Cir. 1996)). Nothing in the record suggested that Baz abandoned, or sought to abandon, A.P. Quite the opposite, the evidence shows that Baz actively sought to maintain regular contact with A.P. and that she was able to do so. That was enough to establish that she was exercising her rights of custody at the time of the retention.

 

Rodriguez v Molina, --- F.4th ----, 2024 WL 1246542 (8th Circuit, 2024) [Honduras] [Petition denied] [Grave risk of harm not established]

  

Rodriguez v Molina, --- F.4th ----, 2024 WL 1246542 (8^th Circuit, 2024) [Honduras] [Petition denied] [Grave risk of harm not established]

In Rodriguez v Molina, --- F.4th ----, 2024 WL 1246542 (8^th Circuit, 2024) after Dennys Antonio Reyes Molina (Reyes) wrongfully removed his daughter from Honduras to the United States, the child’s mother, Eny Adamy Mejia Rodriguez (Rodriguez), petitioned for the child’s return under the Hague Convention. Reyes conceded wrongful removal but argued that the child should not be returned because doing so would put her at grave risk of physical harm. The district court found that Reyes had failed to prove any such grave risk by clear and convincing evidence, and ordered that the child be returned to Honduras. The Eighth Circuit affirmed.

Reyes and Rodriguez were citizens of Honduras. Their daughter was born in July 2016 in Honduras, where she lived with both parents for the first four months of her life. When her parents separated, the child continued to live in Honduras with Rodriguez and Rodriguez’s son from a previous relationship. Reyes took the child from her home on October 12, 2021. They walked from Honduras to Mexico, where Reyes paid someone to smuggle them into the United States. Reyes and the child settled in Des Moines, Iowa. All the while, Rodriguez attempted to secure the child’s return, eventually filing a petition in federal district court in the Southern District of Iowa.

Reyes submitted evidence in support of his position that the child should not be returned to Honduras. He testified that Rodriguez had struck the child with a broom when the child was two years old and that she had struck the child’s back with an open hand or fist on multiple occasions beginning when the child was four years old. According to Reyes, Rodriguez repeatedly hit the child with a belt after she had wet the bed, which caused the child to have additional similar incidents. Reyes testified that Rodriguez would not cease using physical punishment, despite his pleas that she do so and that Rodriguez had hit him when he tried to intervene. Reyes submitted eight photos that he had taken in early October 2021. The district court described five of the photos as showing significant bruises on the child’s “back, buttocks, or legs consistent with being struck forcefully and repeatedly by a belt,” while the other photos depicted mere scrapes. Mejia Rodriguez v. Molina, 628 F. Supp. 3d 905, 918 (S.D. Iowa 2022). Reyes’s two sisters testified regarding instances of physical punishment, although their testimony lacked specific detail. One sister testified that “in Honduras, it’s okay to correct a child with a belt.” Reyes also submitted a recording of an angry, expletive-filled voice message from Rodriguez’s ex-boyfriend. Rodriguez admitted that she had once used a belt to discipline the child after the child bullied and repeatedly slapped her brother. Rodriguez testified that she had never struck the child for urinating on herself, that she did not strike Reyes, that Reyes had never spoken with her about physical punishment, and that Reyes’s sisters had had minimal involvement in the child’s life. Rodriguez testified that she had no intention of using physical punishment to correct the child’s behavior in the future, but instead would take away privileges or use time outs. Rodriguez submitted several affidavits to establish that the child would not face a grave risk of harm if returned to Honduras.

 The district court found that Rodriguez had physically punished the child for typical childhood behaviors “such as urinating in her bed, arguing with a sibling, or being energetic” and that Rodriguez had “physically abused the child on at least one occasion,” i.e. when she had struck the child with a belt. The court found that the testimony was entitled to some weight, however, because Rodriguez “understands the looming custody battle she faces in Honduras and the likely impact abusive discipline would have on such litigation.” The court relied upon the affidavits in support of Rodriguez’s petition to find that any future abuse by Rodriguez was “possible, but not highly probable.” The court also determined that the child’s injuries—specifically, the bruises depicted in Reyes’s photos—did not indicate that the child “would face a magnitude of physical harm that would allow the Court to lawfully decline to return the child to Honduras.”. The district court ultimately concluded that Reyes had not proved by clear and convincing evidence that the child’s return to Honduras would subject her to a grave risk of harm.

The Eighth Circuit observed that whether the respondent has established “a grave risk of harm under the Hague Convention is a mixed question of law and fact that it  reviews de novo.” It  defers to the district court’s credibility and factual findings, however, unless they are clearly erroneous.. District courts must engage in “a fact-intensive inquiry” to determine whether the respondent has proved a grave risk of harm, which requires “careful consideration of several factors, including the nature and frequency of the abuse [and] the likelihood of its recurrence.” Appellate courts should usually review with deference a mixed question that immerses a district court “in case-specific factual issues—compelling the [court] to marshal and weigh evidence [and] make credibility judgments.” Monasky v. Taglieri, ––– U.S. ––––, 140 S. Ct. 719, 730, 206 L.Ed.2d 9 (2020) (concluding that the determination of a child’s habitual residence “should be judged on appeal by a clear-error review standard deferential to the factfinding court”).

Reyes contended that Rodriguez’s admission that she used a belt to discipline the child and the photos of the bruises inflicted upon the child during that beating, as well as the testimony and affidavits that she frequently hit her child, proved that Rodriguez would continue to use the same methods of discipline against the child upon her return. He also argued that the blows constituted serious abuse. See Vasquez v. Colores, 648 F.3d 648, 650 (8th Cir. 201d) (a grave risk of harm may exist in cases involving “serious abuse or neglect”). The Court found that in  its analysis, the district court correctly identified Reyes’s evidentiary burden and conducted its narrow inquiry “of whether the child will face immediate and substantial risk” of harm if she is returned to Honduras “pending final determination of [her] parents’ custody dispute.” Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir. 1995). The court did not fully credit Reyes’s evidence, finding that it was only “possible” Rodriguez would continue to use physical punishment. The court relied on Rodriguez’s testimony and her supporting affidavits in finding that it was not “highly probable” that the physical punishment would continue. The Eight Circuit held that the district court’s credibility findings were not clearly erroneous; nor was its assessment of the risk of harm upon the child’s return. The Court noted Rodriguez had “painfully injured her daughter” on at least one occasion by “forcefully and repeatedly” striking the child with a belt. It held that even if the magnitude of the harm on that occasion constituted serious abuse, it could not say that the district court clearly erred in finding that it was not “highly probable” that similar abuse would continue upon the child’s return.

The Court rejected Reyes's argument that the district court erred by ordering the child’s return in the absence of evidence of any measures to protect the child’s safety. The district court determined that returning the child to Honduras would not expose her to a grave risk of harm, notwithstanding the lack of any protective measures. See Golan v. Saada, 596 U.S. 666, 142 S. Ct. 1880, 1892, 213 L.Ed.2d 203 (2022) (“The question whether there is a grave risk ... is separate from the question whether there are ameliorative measures that could mitigate that risk.”); Simcox, 511 F.3d at 608 (“Once the district court determines that the grave risk threshold is met, only then is the court vested by the Convention with the discretion to refuse to order return. It is with this discretion that the court may then craft appropriate undertakings.”). In light of its determination that no such risk existed, the district court did not err in ordering the child’s return.

De Costa v. De Lima, 2024 WL 834750 (First Circuit, 2024) [Brazil] [Petition denied] [Now-settled defense]

 In De Costa  v. De Lima, 2024 WL 834750 (First Circuit, 2024) after their marriage ended in Brazil, petitioner-appellant Heitor Ferreira da Costa (da Costa) accused respondent-appellee Jessica Camila Albefaro de Lima (de Lima) of absconding with their minor child to the United States where unbeknownst to da Costa for about a year, the mother and child settled into a new life on Martha’s Vineyard. The district court denied the petition. The First Circuit affirmed.

De Costa and de Lima, both of whom were Brazilian nationals, married, had a child, and subsequently made their home in São Sebastião do Anta, Brazil. The marriage ended in December 2019 after a Brazilian court entered a divorce judgment, which incorporated an agreement that explained how each parent could spend time with the child. De Lima was granted “definitive custody” of the child, while da Costa retained general visitation rights, subject to de Lima’s approval, and was allotted parenting responsibilities for one weekend each month (an interval later expanded to two weekends each month). Da Costa twice availed himself of this expanded parenting window before de Lima and the child surreptitiously decamped for São Paulo, Brazil — a journey that eventually took them to Martha’s Vineyard, Massachusetts. After first being removed by immigration officials, de Lima and the child successfully reentered the United States even though they lacked proper documentation. The mother and child made their home in Martha’s Vineyard, where they lived near several family members. The child enrolled in elementary school participated in extracurricular activities (like swim lessons), and attended mass and bible study at a local church. De Lima had pending before United States Citizenship and Immigration Services an asylum application (which includes the child). Da Costa remained in Brazil. For some time, he believed that de Lima and the child had traveled only as far as São Paulo. He was thus unaware — until about a year later — that his ex-wife and their child were residing in the United States. Unable to locate his child in Brazil, he lodged a report with the Brazilian civil police in São Sebastião do Anta. When he learned the true state of affairs, he applied for the return of the child with the Brazilian Ministry of Justice. Both of these initiatives proved fruitless, and da Costa then turned his attention to the American courts: he filed a petition under the Convention in the United States District Court for the District of Massachusetts. See Ferreira da Costa v. Albefaro de Lima, No. 22-10543, 2023 WL 4049378, at *1 (D. Mass. June 6, 2023).  The district court conducted a bench trial over three days, hearing testimony from the parties, family members, and teachers. See id. The court denied da Costa’s petition. Even assuming that da Costa had proven his prima facie case, he still would not prevail: de Lima had shown that the “now settled” defense applied. Based on the totality of the circumstances, the court determined “that the child [was] now settled in [his] new environment” of Martha’s Vineyard. Lozano v. Montoya Alvarez, 572 U.S. 1, 5, 134 S.Ct. 1224, 188 L.Ed.2d 200 (2014)). After all, the child had spent over half his life in Martha’s Vineyard; his age (six years old) permitted him to form meaningful connections with his new environment; he had developed strong relationships with family in the United States; he had bonded with teachers and classmates; he was making substantial progress in learning English; and he regularly attended mass and a bible study course with other children in the community. Finally, the court declined to exercise its discretion to order the return of the child.

The court recognized that de Lima and the child, along with other family members, remained uncertain about their immigration status. The court also recognized that de Lima and the child had moved several times and that the child’s nascent English ability hindered communication. Even so, the court did not think that any of these facts, individually or collectively, were weighty enough to tip the scales against de Lima. De Lima was authorized to work, worked full time, and applied for asylum. The family’s moves were within Martha’s Vineyard, kept them close to family members, occurred before the child had commenced school, and were carried out in conjunction with the family. And the child could speak Portuguese to family members and some classmates, while his English skills continued to improve. The court then declined to exercise its discretion to order the child’s return even though he was firmly settled because “the considerations related to [his] well-being outweigh[ed] the policy considerations related to deterring misconduct” by the removing parent. Although de Lima had engaged in misconduct by concealing the child’s location from da Costa, the court held that the interests of the child were paramount and “that requiring [the child] to return to Brazil would be disruptive, particularly given how much of his life he ha[d] spent in the United States, his strong family connections here, and his limited connections to his family in Brazil, other than to [da Costa].”

 

The Court of Appeals observed that under the Convention, “[c]ourts look to the totality of the circumstances in determining whether a child is now settled.” da Silva v. de Aredes, 953 F.3d 67, 75 (1st Cir. 2020). For this purpose, “[a] court may consider any relevant fact, including immigration status.” Id. In the last analysis, though, immigration status remains just one relevant data point, and its weight will vary based on the idiosyncratic circumstances of each particular case. See id. Other relevant factors include: (1) the child’s age; (2) the stability and duration of the child’s residence in the new environment; (3) whether the child attends school or daycare consistently; (4) whether the child has friends and relatives in the new area; (5) the child’s participation in community or extracurricular school activities, such as team sports, youth groups, or school clubs; and (6) the respondent’s employment and financial stability. In re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir. 2009); see Alcala v. Hernandez, 826 F.3d 161, 171 (4th Cir. 2016) (listing these factors along with immigration status); Hernandez v. Garcia Peña, 820 F.3d 782, 787-88 (5th Cir. 2016) (similar); Lozano v. Alvarez, 697 F.3d 41, 57 (2d Cir. 2012) (similar).

In Convention cases, the “ ‘now settled’ defense[ ] require[s] the court to identify a broad standard and then answer the factual question[ ] of ... whether the abducted child is ‘now settled.’ ” da Silva, 953 F.3d at 72. As the Supreme Court has explained in the analogous context of determining a child’s country of habitual residence, “[t]he inquiry begins with a legal question: What is the appropriate standard” to ascertain whether a child is now settled? Monasky, 140 S. Ct. at 730; see da Silva, 953 F.3d at 72 (applying reasoning in Monasky to now settled defense in Convention case). The standard for the now-settled defense mirrors that of the country-of-habitual-residence determination — that is, a totality-of-the-circumstances approach. See da Silva, 953 F.3d at 72. “Once the [district] court correctly identifies the governing totality-of-the-circumstances standard, ... what remains for the court to do in applying that standard ... is to answer a factual question: [Has] the child” become settled in his new environment? Monasky, 140 S. Ct. at 730; see da Silva, 953 F.3d at 72. Thus, review of that question is for clear error. See da Silva, 953 F.3d at 72.

At the outset, da Costa asserted that relying solely on the evidence that postdates the petition’s filing — as the district court purportedly did here — did not align with the reasoning behind the now-settled defense. The now-settled defense’s requirement that one year must pass after the petition’s filing, he maintains, “is a recognition that one year gives a child the opportunity to form ties to a new community and is intended to ensure rapid attempts to recover a wrongfully removed child.”³ De Lima rejoins that this argument is waived and that, in all events, it defies the text of the Convention. Because the parties’ arguments were of a legal nature, review is de novo. De Lima argued da Costa waived this argument by failing to object to her introduction of post-petition evidence and remaining silent on the matter throughout briefing and closing argument. Thus, de Lima insists, da Costa waived any challenge to the court’s consideration of post-petition evidence.  This objection misconstrues da Costa’s position. He did not urge a categorical exclusion of post-petition evidence. Instead, he deemed it clearly erroneous to rely only on post-petition evidence or, at least, to weigh the post-petition evidence as heavily as did the court below. Even though de Lima’s alleged paucity of pre-petition evidence certainly could have been fodder for da Costa’s closing argument, it was not until the court rendered its decision that the alleged error was committed, affording da Costa something concrete to challenge. It rejected the suggestion of waiver. With respect to the merits, da Costa offered no case law in support of his theory. What is more, the Convention itself gives a strong indication that post-petition evidence remains important. In describing the now-settled defense, the Convention’s text reads in relevant part: “The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year [following the child’s wrongful removal], shall also order the return of the child, unless ... the child is now settled in [his] new environment.” Hague Convention, art. 12 (emphases supplied). Refined to bare essence, the text of the Convention explicitly contemplates a court considering the child’s circumstances after the petition has been filed without reference to his prior situation. The phrase “now settled” — the wording of which itself suggests an emphasis on the present — is introduced in the context of post-petition circumstances without reference to pre-petition circumstances. If the drafters of the Convention had intended to require that the removing parent include pre-petition evidence, one would expect them to have expressed that intent more explicitly in the text. Yet, da Costa has presented no probative evidence of such an intent.

Da Costa had a fallback position: he posited that the district court “erred in weighing the applicable considerations and facts” under the now-settled analysis by using the wrong geographic scope in defining the child’s “new environment,” mischaracterizing the stability of the child’s living situation, and ignoring de Lima’s misconduct in removing the child from Brazil. De Lima responds that this “kitchen-sink approach” attempts to jumble together “a variety of disparate arguments, none of which demonstrate[s] clear error.” The Court agreed. Separating da Costa’s fusillade into its component parts, it found no basis to second-guess the district court’s judgment.

 

Because these arguments effectively challenged the court’s finding that the child was settled, review was for clear error. See da Silva, 953 F.3d at 72. Da Costa first complains that the court employed the wrong definition of “new environment” by considering only Martha’s Vineyard, instead of the entire United States. The record, however, flatly contradicted da Costa’s plaint: the district court explicitly found “that [the child] is settled in the United States.” Proceeding past the question of regionalization, da Costa reprises his own narrative questioning the district court’s findings. The key facts include that the child’s living situation was less than stable due to his repeated moves (one of which was outside of Martha’s Vineyard); that the immigration statuses of the affected parties remain uncertain; that the child is too young to have his opinion considered, especially given that younger children are less likely to form attachments to their environment; and that the child had only minimal adjustment to his environment, particularly at school, in part because of the language barrier. These facts, cherry-picked from the record, did not move the needle. The district court considered every fact that da Costa now brought to its attention but found each of them outweighed by other evidence. Specifically, the court noted that de Lima was authorized to work, worked full time, and had applied for asylum; that the family’s moves (mostly) remained within Martha’s Vineyard, were with or near other family members, and occurred before the child had started school; that the child still could speak Portuguese to family members and some classmates, while his English skills improved rapidly; and that the child appeared to be connecting with teachers and classmates inside and outside of the classroom. Nowhere did da Costa identify a factual finding that was unsupported by the record.

Da Costa suggested that the district court ignored de Lima’s misconduct in secretly fleeing with the child to the United States. But this suggestion was of little consequence: the court failed to see how concealing the child’s location or allegedly forging a signature on the child’s passport has anything to do with whether the child is settled in a new environment. To be sure, the Supreme Court has acknowledged that “steps taken to promote concealment can also prevent the stable attachments that make a child ‘settled.’ ” Lozano, 572 U.S. at 17, 134 S.Ct. 1224. But the cases to which the Court cites connect the misconduct to the child’s being settled. Here, however, the steps allegedly taken to conceal the child have no bearing on whether he was settled.

Da Costa’s final claim was that the district court’s analysis was “tainted” by inappropriate consideration of the child’s best interests, a concern not contemplated by the Convention. See Whallon v. Lynn, 230 F.3d 450, 460 (1st Cir. 2000) (explaining that it is inappropriate to “risk substituting a best interest of the child analysis for the analysis the Convention requires”). This claim was wide of the mark. To a large extent, “[t]he Convention is based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence.” Abbott v. Abbott, 560 U.S. 1, 20, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010). Even so, “[t]he Convention also has as its ‘purpose ... deterring child abductions,’ thereby ‘prevent[ing] harms resulting’ therefrom.” In other words, once beyond the prima facie case, the Convention adopts “an additional ‘purpose’: the protection of a child’s ‘interest in remaining in a country in which [he] has lived for a substantial amount of time.’ ” Recognizing this other purpose of the Convention, the district court had the discretion to consider,  in its analysis of whether equitable factors supported the child’s return to Brazil even though he had become settled,  the effect that the return would have on the child’s wellbeing. What is more, da Costa did not point to anything in any other portion of the court’s opinion tending to indicate an improper consideration of the child’s best interests. Contrary to da Costa’s earlier importunings, de Lima’s misconduct was considered and weighed against the child’s interests. The court found that the child appeared to be doing well in the United States, while the extent of de Lima’s misconduct remained disputed (particularly the veracity of the allegation that she forged da Costa’s signature on the child’s passport). hus, it concluded that returning the child to Brazil,  where he has limited connections other than to da Costa, would be disruptive because he has spent most of his life in the United States and has developed many meaningful connections here. Put another way, equity could not be served by ordering the child’s departure from a supportive environment and the return to a less supportive one simply as punishment for the removing parent’s alleged malfeasance.

There was no clear error based on these factual findings. The court recognized that de Lima admitted to hiding the child’s location, and concerning the child’s passport, all that the record reflects is conflicting testimony about whether da Costa signed it. Nor could it detect an abuse of discretion in connection with the court’s decision. Da Costa primarily takes issue with the court lending credence to the child’s interests in remaining on Martha’s Vineyard while discounting his interests in returning to Brazil, but “[s]uch relative weighting of interests by the district court ... is not for this court to second-guess, and especially not on an abuse of discretion analysis.”etion analysis especially not on an abuse of discretion discretion analysis.”