Stein v. Kohn, 2024 WL 4848986 (2d Circuit, 2024) [Canada] [Petition denied] [now settled defense established]

In Stein v. Kohn, 2024 WL 4848986 (2d Circuit, 2024) Petitioner-Appellant Raphael Stein (“Stein”) appealed pro se from the denial of his petition for the return of his three Canadian-born minor children to Montreal, Canada. The petition alleged that the children’s mother, Adeena Kohn (“Kohn”), wrongfully retained the minors in Monsey, New York, after a trip to this country in 2020. Stein faulted the district court’s findings, following a bench trial, that (1) his return petition was untimely filed more than a year after the alleged wrongful retention and (2) the children were “now settled” in Monsey. 

The Court reviewed the district court’s factfinding for clear error and its “application of the Convention to the facts” de novo. The clear error standard is deferential, and the Court will “accept the trial court’s findings unless we have a definite and firm conviction that a mistake has been committed.” Tereshchenko v. Karimi, 102 F.4th 111, 124 (2d Cir. 2024) (quoting Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir. 2013)). Because Stein appealed pro se, it construed his briefs liberally to raise the strongest arguments they suggest. 

Stein primarily argued on appeal that Kohn’s wrongful retention of the children occurred not in March or October 2021, but instead at some point in January 2022, when he realized that Kohn had changed the locks on her apartment. The Court observed that the distinction mattered because, if credited, it would mean that Stein’s December 2022 petition was timely and foreclose Kohn’s defense that the children are “now settled” in this country, thereby requiring their return to Canada. It pointed out that in cases where the petitioning parent originally consented to the child’s stay outside its habitual residence, wrongful retention occurs on the date that the petitioning parent is informed that the co-parent will not be returning the child to its country of habitual residence. See Marks, 876 F.3d at 421–22. It saw no error in the district court’s finding that the wrongful retention of the children here occurred on March 6, 2021, or, at the latest, on October 4, 2021. On March 5, 2021, Stein told Kohn that he did not agree with the children staying in New York permanently and that he wanted the family to resume living in Canada as soon as possible. The next day, Kohn responded that the parents were not on the same page and that she would not return to Montreal. Because the parties agreed that Kohn would not live apart from the children, the district court reasonably found that “Stein understood Kohn would keep the children with her wherever she was living.” Alternatively, Kohn’s October 4, 2021 divorce filing, where she sought custody of the children, clearly alerted Stein to her intent to remain in New York with the children. See Hofmann v. Sender, 716 F.3d 282, 291 (2d Cir. 2013). Either way, the wrongful retention occurred more than a year before Stein filed his petition on December 19, 2022, meaning the “now settled” defense was available to Kohn.

 The Second Circuit stated that Article 12 of the Convention requires the district court to grant even an untimely petition for the return of the child to its habitual residence, “unless it is demonstrated that the child is now settled in its new environment.” The respondent bears the burden of proving this “now settled” defense by a preponderance of the evidence. In determining whether a respondent carried this burden, a district court properly considers whether “the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment,” Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir. 2012), an inquiry informed by the following non-exhaustive factors: (1) the age of the child; (2) the stability of the child’s residence in the new environment; (3) whether the child attends school or daycare consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent’s employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent. Here, the district court carefully evaluated each factor. Viewing the record as a whole, it identified no clear error in its factual findings. The children, who at the time of trial were seven, five, and three, had “lived in Monsey for at least half their lives,” with the youngest having “lived in Monsey nearly her entire life.” Thus, the district court reasonably found that “most, if not all,” of the two elder children’s “memories are likely of Monsey, not Montreal.” The district court further found the children to have lived continuously in the same apartment complex for the whole of their time in Monsey, surrounded by their maternal grandparents, “great-grandmother, aunts, and several of the children’s cousins.” Also, each child had consistently attended daycare and school in Monsey and regularly joined Kohn’s extended family at their local synagogue. The children frequently played with local friends and cousins. Nor was there any risk of deportation given that “Kohn is [a] U.S. citizen, and at least the two older children [already] have U.S. passports.” The only factor weighing against settlement is Kohn’s failure to maintain stable employment in New York. The district court was not required to accord this factor great weight because Kohn had the support of her family, and the children enjoyed a stable environment throughout their time in Monsey. 

Urquieta v Bowe, --- F.4th ----, 2024 WL 4630284 (United States Court of Appeals, Second Circuit, 2024)[Chile][Petition denied] [Habitual residence] [Now settled defense established]

 In Urquieta v Bowe, --- F.4th ----, 2024 WL 4630284 (United States Court of Appeals, Second Circuit, 2024) Petitioner-Appellant Maria Elena Swett Urquieta (“Swett”)1 appealed from an order of the United States District Court denying her petition for repatriation to Chile of her minor son S.B.S. from the United States, where S.B.S. was wrongfully retained by his father, Respondent-Appellee John Francis Bowe. 

Swett, a Chilean actress, and Bowe, a writer based in the United States, have a son, S.B.S., who was born in Minnesota in 2012. Swett and Bowe separated shortly thereafter but shared legal custody of S.B.S, who lived in Chile with Swett. While Swett enjoyed sole physical custody, she granted travel authorizations that permitted S.B.S. to visit Bowe in New York City. On December 23, 2022, S.B.S. and Bowe traveled from Chile to New York under a travel authorization that expired on January 8, 2023. This litigation arose because Bowe refused to return S.B.S. to Chile on January 8. Instead, he wrongfully retained S.B.S., enrolled S.B.S. in a school in New York City, and sought sole custody. On February 23, 2024, Swett filed this ICARA petition seeking S.B.S.’s return. The District Court explained that Swett had made out a prima facie case of wrongful retention under the Hague Convention but that S.B.S. need not be returned to Chile because Bowe had established two affirmative defenses available under the Convention,  the “well-settled” defense and the “child objection” defense. 

The Court of Appeals pointed out that the Article 12 well-settled defense “permits courts to consider the interests of a child who has been in a new environment for more than a year before ordering that child to be returned to [his] country of habitual residency.” Lozano v. Alvarez, 697 F.3d 41, 52 (2d Cir. 2012). The defense is available only if over a year has passed from the wrongful removal or retention until the filing of the Hague Convention petition. The defense requires a respondent to show by a preponderance of evidence that the proceeding seeking the child’s return commenced more than one year “from the date of the wrongful ... retention” and “the child is now settled in its new environment.” Hague Convention, art. 12; 22 U.S.C. § 9003(e)(2)(B). The Court of Appeals agreed with the District Court that the petitioner can consent to an extension of time for the child’s stay, in which case the retention becomes wrongful at the end of the extension. 

The Court observed that that it had not previously decided whether a petitioning parent can extend authorization for a child to remain outside the country of habitual residence after an initial instance of wrongful retention. This extension would postpone the date of wrongful retention to determine whether the well-settled defense is available. It adopted the District Court’s analysis of the defense. It held that the District Court correctly concluded that, even after an initial instance of wrongful retention, a parent may extend authorization for the child to remain outside the country of habitual residence. But it was also right to conclude that Swett did not consensually extend the authorized time and instead merely acceded to circumstances she felt she could not change after Bowe wrongfully retained S.B.S. on January 8, 2023. Swett, ––– F.Supp.3d at –––– – ––––, 2024 WL 2034713, at *31–34. Critically, the District Court found that Swett could not meaningfully consent to Bowe’s continued retention because she lacked any practical ability to control Bowe’s decisions, had already filed a police report in Chile on January 10, 2023, and did not have any firm belief that Bowe would return S.B.S at the end of the extension. The District Court thus correctly found that Bowe’s wrongful retention of S.B.S. occurred on January 8, 2023, and that the well-settled defense was available because Swett did not file her petition until more than a year after that date.

As to the remaining issues raised by Swett on appeal, the Court affirmed for substantially the reasons articulated by the District Court in its opinion and order entered on May 7, 2024.