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.” 

Swett v. Bowe, --- F.Supp.3d ----, 2024 WL 2034713 (S.D. NY., 2024) [Chile][Petition Denied][Age & Maturity defense][Well-settled Defense]

In Swett v. Bowe, --- F.Supp.3d ----, 2024 WL 2034713 (S.D. NY., 2024) Petitioner María Elena Swett Urquieta (“Swett”) petitioned for the return of her son, S.B.S., age 11, to Chile. Swett, a Chilean actress, and respondent John Francis Bowe (“Bowe”), an American writer, met in Brazil in 2010 and began a long-distance, romantic relationship. On June 27, 2012, their child, S.B.S., was born in Minnesota. Shortly after, the couple split up. In a family court order entered in Minnesota and adopted by a Chilean court, Swett and Bowe agreed that Swett would have sole physical custody of S.B.S. in Chile; that Swett and Bowe would share legal custody; that Bowe would be permitted to visit S.B.S.; and that S.B.S. could visit Bowe in New York City, for about 90 days every year, pursuant to travel authorizations granted by Swett. That custody arrangement was honored until 2022. In mid-2022, Bowe noticed a dramatic shift in S.B.S.’s mood and affect. S.B.S. was persistently depressed, referenced suicide, and on one occasion purposefully dug his nails so deep into his arm as to draw blood. Swett alerted to these circumstances, had not engaged professional help or otherwise meaningfully responded. Bowe concluded that S.B.S.’s living situation in Chile was the source of his anguish and depression. On December 23, 2022, S.B.S., accompanied by Bowe, left Chile for an authorized Christmas holiday visit to the United States. Fearful that S.B.S.’s despair would continue if not deepen in Chile, Bowe decided not to return S.B.S. on January 8, 2023, the expiration date of S.B.S.’s authorized travel to the United States.

 

On February 23, 2024, Swett filed the petition seeking S.B.S.’s return. On March 13, Bowe responded to the Petition, conceding that Swett had established a prima facie case that he had wrongfully retained S.B.S. in the United States, but asserting three affirmative defenses: that S.B.S. (1) is well-settled in the United States; (2) objects to being returned, and is of a sufficient age and maturity for his views to be taken into account; and (3) faces a grave risk of harm if returned to Chile. Between April 8 and 19, 2024, the Court held a bench trial on Swett’s petition. The Court denied Swett’s petition for return of S.B.S. to Chile finding compellingly established two defenses. Each defense ultimately respects S.B.S.’s latitude to author his destiny.

The Court explained that this was a case in which the removed child forcefully objects to being returned and is of sufficient age and maturity for his views to be taken into account and given weight. For nearly the past two years, starting a half-year before he departed from Chile and extending to his in-camera interview by the Court three weeks earlier, S.B.S. told every adult who would listen—and some who would not—of his earnest and factually based desire to live in the United States, not in Chile. In a case with voluminous evidence and ample complexities and ambiguities, the consistency and strength of S.B.S.’s views on this point—expressed with the precocity and articulateness of which the admiring adults in S.B.S.’s life have often taken note—was a vivid through-line. It justly decided this case. Second, this was a case in which, with the Petition for Return having been filed more than a year after the wrongful removal, the child has become settled in his new environment. Over the past 16 months, S.B.S., through his and Bowe’s efforts and those of a large and widening support circle,  built a stable, happy, purposeful, and together life in New York City, anchored in family, friends, community, activities, and education. His trajectory is upward. By the governing standards, S.B.S. is well-settled in his new environment.

In its lengthy opinion, the Court explained why Swett has made out a prima facie case of wrongful removal. It then evaluated Bowe’s defenses. It then considered whether, notwithstanding that two defenses had been established, equitable considerations arising from Bowe’s problematic conduct required S.B.S.’s return. Finding not, the Court denied the petition.

Age and Maturity Affirmative Defense

The Court found that in his in camera testimony, S.B.S. unequivocally objected to being returned to Chile. As he explained in detail, his objections were based on his lived experiences in Chile, where he felt “depressed,” “sad,” and “frustrated,”, and in the United States, where he has felt “happy,” “support[ed],” “understood,” and “safe,” S.B.S.’s firm objections in his testimony did not come as any surprise. To the contrary, in communications to a range of persons dating to June 2022, S.B.S. forcefully and consistently expressed his deep discontent with his life in Chile, his yearning to leave, and, later, his relief to be in the United States. Since arriving in this country, he repeatedly told the adults in his life, with emphasis and sometimes a measure of desperation, that he did not want to return to Chile and to lose the happier and more stable life he built here with his father. S.B.S. expressed these views despite the greater material comforts he enjoyed in Chile, where he lived with Swett in a spacious luxury apartment and had access to a large beach home, in contrast to the walk-up studio apartment he today shares with Bowe. And he never wavered in these views, despite the turbulence of his intercontinental move—which has entailed a change of residence, school, and lingua franca—and the legal uncertainty of his situation. The durability, consistency, and clarity of S.B.S.’s objections to returning to Chile underscored that these are sincere, firmly held, and anchored in reason. S.B.S.’s situation was thus the antithesis of a situation in which a child expresses a “simple preference for the luxuries of living in New York.” In re Skrodzki, 642 F. Supp. 2d 108, 118 (E.D.N.Y. 2007). Quite the contrary: for S.B.S., the more lavish lifestyle would be in Chile. His mother is a successful actress with a large high-rise apartment in Santiago, a spacious vacation home in a nearby beach town, and the established earning capacity to hire live-in nannies and to fund regular weekend Uber Eats breakfast deliveries. That S.B.S. preferred to live with his father in a walk-up studio apartment, in which the two work side-by-side at a common desk, underscored that his draw to this country is anchored in substance, not extravagances or superficialities.

The Court carefully considered Swett’s argument that S.B.S.’s objections to return to Chile were the “product of undue influence” by Bowe. Swett’s expert, Dr. Favaro, so opined, terming S.B.S.’s objections the product of “manipulation” and “intense influence by the father.” The Court rejected that conclusion. The Court found, that S.B.S, developed a strong conviction that his life in Chile was destined to remain sad and that he belonged in the United States; that S.B.S.’s unhappiness in Chile was rooted in genuine perceptions about the downsides of his life there: loneliness, sparse friends, an emotionally distant maternal relationship, a physically distant father, long stretches in the care of nannies, and uninspired schooling. S.B.S.’s objections to Chile, the Court found, are genuine and “the product of independent reasoning.” Matovski, 2007 WL 2600862, at *14. In sum, the Court found that S.B.S.’s desire not to be returned to Chile, and to remain in the United States, was the product of his own mind and grounded in experience; that S.B.S. “objects to being returned” to Chile; and S.B.S., who is two months shy of age 12, to be of sufficient age and easily to be of sufficient maturity for his views about return to be given weight. The Court’s lengthy conversation with S.B.S. covered a wide range of subjects. These primarily related to his experience living in Chile with Swett, his experience living in New York with Bowe, and his goals and aspirations. S.B.S. presented as thoughtful, intelligent, poised, and direct. Based on his answers and demeanor, S.B.S. conveyed that he appreciated the solemnity of the occasion, the need for care, and the imperative of telling the truth. S.B.S. coherently articulated his objections to returning to Chile and his reasons to want to remain in the United States. The Court found S.B.S.’s reasoning, in the main, sensible, well-analyzed, and grounded in experience. And the views to which he testified tracked those he had told others. Explaining his unhappiness in Chile, S.B.S. noted his challenging relationship with Swett, his physical distance from his father, his crimped social life, and his unsatisfying school experience; explaining his desire to remain in New York, he noted his larger friend group and social life, his contentment living with Bowe, and the stimulating and challenging education he is receiving and stands to receive. The constancy and coherence of S.B.S.’s views underscore that these were not passing fancies. The Court was left with a firm conviction that S.B.S. knows his own feelings and is at peace with them. He presented as an astute and observant child who has come to his views based on reflection. The Court found S.B.S. of sufficient age and maturity for his views to be taken into account and given substantial weight. Based on S.B.S.’s strong and durable objections to repatriation, the Court found that Bowe has successfully made out the Article 13 affirmative defense by a preponderance of the evidence.

 Well-settled defense

The Court found January 8, 2023, the date of wrongful retention. At no point thereafter did Bowe’s retention of S.B.S. cease being wrongful. Because Swett filed her Petition on February 23, 2024—some 411 days later—the well-settled defense, premised on the life S.B.S. has built in New York since January 8, 2023, was available for Bowe to pursue.  The Courts factor-by-factor evaluation overwhelmingly showed that S.B.S. today lived a predictable, comfortable, and fulfilling life in New York, where he has forged meaningful connections with family, friends, and a community. As S.B.S. stated, the centerpiece of his life is his father, with whom he shares a deep connection. Bowe’s presence in S.B.S.’s life, as the primary caretaker, has given S.B.S. a baseline level of security and predictability that he was missing in Chile. In New York, S.B.S. states, he “feels comfortable, understood, safe, loved, and ‘normal.’ ”. S.B.S. feels that he can openly share his feelings with Bowe; that Bowe listens to him and “protect[s]” him; and that Bowe has S.B.S.’s best interests at heart. Beyond this, S.B.S., with Bowe’s help, has built a happy and interesting life in New York over the past 16 months. S.B.S. is flourishing—socially, academically, and emotionally. He has taken advantage of opportunities to grow intellectually in school. He is motivated to learn and actively challenges himself. In a relatively short time period, he has made meaningful academic progress—rapidly improving his grades, perfecting his English, and discovering interests in art, drawing, and sports. Id. He is coming into his own socially, within a “large and interesting friend group.”. He no longer feels lonely, isolated, and bored, as he reported feeling in Chile, but is engaged by his friends, extra-curricular activities, academic interests, and school. (S.B.S.) (“I feel like I’m part of a community.”). The evidence also reflects that, since arriving, S.B.S. has steadily assimilated to life here. All this has occurred at an important stage: he is on the verge of adolescence and is formulating views on who he is, where he wants to live, and with whom he wants to spend time. The evidence reflects that S.B.S. is enthusiastic about living in New York, wants to continue building a life here, and is desperate not to be ousted and risk losing all he has gained. The  “well-settled” factors all pointed in the same direction. Considering these together, Bowe easily established this defense by a preponderance of the evidence.

Grave Risk of Harm Affirmative Defense

Bowe argued that S.B.S. if returned to Chile, would be at grave risk of psychological harm occasioned by Swett’s purported neglect, lack of attention to his needs, and habit of leaving him in the care of generally short-tenured nannies and with limited out-of-school access to peers. Bowe raised the specter that S.B.S. if returned, would be suicidal. Swett disputes the claim that harm on any such scale would ensue. She downplayed S.B.S.’s unhappiness in Chile in late 2022. The Court did not find this defense established. Swett understated S.B.S.’s distress in Chile, and blamed Bowe for it, when in fact that distress was real and rooted in aspects of S.B.S.’s life in Chile for which Bowe was not responsible. But, critically, Bowe, in pursuing this defense, overstates S.B.S.’s trauma and the prospects of its resumption on return. He has not established by clear and convincing evidence that, back in Chile, S.B.S. would be exposed to a grave risk of harm. In light of this record, the Court could not find that S.B.S, was at grave risk of harm as of December 2022, when he left Chile for the last time. Simply put, he was depressed and lonely. Bowe was justified in his worry about this, and warranted in pressing Swett to agree to therapy for a 10-year-old he saw as “very, very sad.” But S.B.S.’s circumstances fall far short of establishing, in severity or likelihood, the “grave risk” of psychological harm required by the Convention, See Dongguk Univ. v. Yale Univ., 734 F.3d 113, 123 (2d Cir. 2013) (to find clear and convincing evidence, a court must be left with “no substantial doubt”). The Court found that  Bowe had not established by clear and convincing evidence that S.B.S. would be at a grave risk of harm if returned to Chile.

 Discretionary Return

 A final issue was whether, notwithstanding that two affirmative defenses to return have been established, the Court should exercise equitable discretion to order S.B.S.’s return to Chile. The Court declined to do so. It noted that the case law on this point is sparse, see da Costa v. de Lima, 94 F.4th 174, 180 (1st Cir. 2024), but it underscores that discretion to order a child’s return in the face of an affirmative defense is limited to exceptional cases. The Court found that the equities overwhelmingly favored S.B.S.’s retention in New York, and declined to exercise its discretion to order his return to Chile. See Fernandez, 909 F.3d at 363 (“[A] district court ordering the return of a settled child should be an infrequent occurrence, so as not to swallow the text of Article 12’s stated exception.”). The Court denied the Petition.

 

 

Tereshchenko v. Karimi, --- F.4th ---- 2024 WL 2202151 (2d Cir., 2024) [Ukraine][Grave risk of harm][ Temporary ameliorative measure][Return a child to petitioner not in the place of habitual residence]

 

In Tereshchenko v. Karimi, --- F.4th ---- 2024 WL 2202151 (2d Cir., 2024) in February 2022, immediately after Russia invaded Ukraine, Tereshchenko agreed to have Karimi remove their children from Ukraine, their place of habitual residence, for safety reasons. In giving that consent, he requested that they be brought to him in Dubai, where he had a home and an office. Karimi ignored that request and took the children to locations that she did not disclose to Tereshchenko, including in July 2022 to the United States. Following a hearing on January 3, 2024, the District Court (Cote, J.) granted Tereshchenko’s petition and ordered the children to return to Tereshchenko at his current residence in France.

 The Second Circuit affirmed the  District Court’s ruling insofar as it exercised subject matter jurisdiction over Tereshchenko’s petition; concluded that Tereshchenko proved his prima facie case of wrongful removal or retention under Article 3 of the Convention; excluded Karimi’s evidence related to the “now settled” defense; and directed Karimi to return the children to Tereshchenko at his residence in France. Although it further concluded that the District Court erred in determining under Article 13(b) that no grave risk of harm would result from returning the children to western Ukraine, it also decided that the District Court correctly granted the petition and entered a return order in Tereshchenko’s favor. The order it entered was not adequately tailored to preserve the authority of the Ukrainian courts over the parties’ custody dispute and to avoid effecting an impermissible custody order. The order was affirmed in part and the case was remanded to allow the District Court to amend its order returning the children to Tereshchenko in France by adding conditions designed to serve this important purpose.

Tereshchenko and Karimi married in Odesa, Ukraine, on April 22, 2017. They were the parents of M.T. and K.T. M.T. was born on March 27, 2016, in Kyiv, Ukraine, and was a citizen of Ukraine; K.T. was born on June 3, 2017, in Hollywood, Florida, and was a citizen of Ukraine and of the United States. The parties divorced on November 16, 2018. In January 2019, Karimi began to travel for extended periods, spending more than half of her time away from Odesa, where she was then residing with the children. Tereshchenko, while apparently based in Odesa, frequently traveled internationally for work and maintains an office and residence in Dubai. In May 2019, the parties executed a custody agreement under which the children would reside with Karimi, and Tereshchenko would “freely visit” with them and participate in their upbringing. Some months later, in the fall of 2019, Karimi moved to London to seek a master’s degree in journalism from the City, University of London, leaving the children with her mother in Odesa. Beginning in June 2020, however, the children began to reside primarily with Tereshchenko. By November 2020, the parties had begun a legal contest over their custody arrangements. Tereshchenko sought to modify the May 2019 agreement and to have the children reside primarily with him; Karimi, for her part, sought sole custody. In October 2021, the Children’s Service of Odesa City Council (the “Guardianship Body”) determined that the children would reside with Tereshchenko in Odesa. Shortly after, on November 22, 2021, when Tereshchenko was undergoing medical treatment abroad and the children were staying at his home under the care of their paternal grandmother and nannies, Karimi came to Tereshchenko’s home and took the children, promising that she would return them the following morning. When she failed to do so, Tereshchenko reported the abduction to the police, and the children were placed on a “wanted list.” Tereshchenko was unable to visit his children again until after he located Karimi and the children in New York City and filed this proceeding.

The children were with Karimi at an undisclosed location in Odesa when, on February 24, 2022, Russia invaded Ukraine. On February 25, Karimi contacted Tereshchenko in Dubai by phone and requested that he have the children’s passports delivered to her so that she and the children could quickly leave the country. Tereshchenko agreed, but he also asked that the children be brought from Ukraine to him in Dubai. According to Tereshchenko, he asked Karimi to notify him when they reached the intermediate stop of Moldova. The plan was that he would then purchase plane tickets for Karimi and the children to travel to Dubai. That did not occur. Instead, Karimi left Ukraine with the children and, on March 2, took the children to Poland. From there, the three traveled to the Netherlands and, eventually, to La Manga, Spain, where they stayed for about three months. On July 11 of that year, Karimi brought the children to the United States under the auspices of the U.S. Department of Homeland Security’s “Uniting for Ukraine” program. The humanitarian parole status established by that program is set to expire a few months from now, in July 2024. At no point did Karimi advise Tereshchenko that she had taken the children overseas, to the United States. Tereshchenko began to hunt for the children. He moved to France in around May 2022. He has been living in a rented three-bedroom home in Antibes since October 2022. Tereshchenko eventually was able to determine that Karimi and the children were likely living in Manhattan. Tereshchenko v. Karimi, 2024 WL 195547, at *1 (S.D.N.Y. Jan. 18, 2024). On March 8, 2023, he filed this petition in the Southern District of New York.

On November 21, the Ukrainian Court ruled, as had the Guardianship Body, that the children were to reside with Tereshchenko, and that they were to do so at a specific address in Odesa. Karimi filed an appeal. That appeal stayed both that decision and the decision of the Guardianship Body. On December 6, the District Court denied Karimi’s motion to dismiss for want of jurisdiction. See Tereshchenko v. Karimi, 2023 WL 8452224, *1–2 (S.D.N.Y. Dec. 6, 2023). On Friday, December 29, Tereshchenko moved in limine to exclude certain evidence from a scheduled January hearing. His motion focused on all proposed exhibits relating to what he inferred would be a new assertion by Karimi that the children were “now settled” in the United States, a defense under Article 12 of the Convention. Karimi opposed it on January 1, 2024. The January 3 hearing was convened as scheduled. The court first ruled on the motion in limine. It excluded the proposed evidence and decided both that Karimi had forfeited the “now settled” defense and that the defense failed on the merits. The court heard the cross-examination of five witnesses, including Karimi and Tereshchenko, each of whom had presented direct testimony by affidavit before the hearing. At the end of the day, the court orally granted Tereshchenko’s petition and advised that its written decision would soon follow. On January 8, the District Court issued its written Opinion and Order. See Tereshchenko, 2024 WL 80427. The court began by noting the parties’ agreement that the children are “habitual residents” of Ukraine within the meaning of the Convention, and that the Ukrainian Family Code governs the parents’ rights vis à vis their children. That law affords each parent the right to have access to the children and to participate in major decisions about the children’s lives. These decisions expressly include those regarding where the children will reside and others such as those concerning their medical care and education. The established law of Ukraine thus made it unnecessary, the court reasoned, for it to resolve the parties’ dispute regarding whether Karimi’s actions violated Tereshchenko’s more specific custody rights under either or both of the October 2021 Guardianship Body ruling or the November 2023 Ukrainian Court decision. No more was needed because Karimi’s actions in taking the children to the United States and retaining them there without notice to him undeniably interfered with Tereshchenko’s rights under the Ukrainian Family Code. Further, this history sufficed to show the wrongful retention required by the Convention as a predicate to relief.

The court then turned to the affirmative defenses advanced by Karimi. It concluded first that Karimi failed to show by clear and convincing evidence that the return of the children to western Ukraine, if ordered by the court, would result in a grave risk of harm referred to by Article 13(b). Id. at *6. Second, it ruled that Karimi had forfeited the “now-settled” defense. In any event, it found, the defense failed “on the merits”: Karimi was not entitled to assert the defense under Article 12 because Tereshchenko could not have known by March 8, 2022, a year before he filed the petition, that Karimi would not bring the children to Dubai and “would instead continue to deprive him of access to them.” Third, it found that Karimi failed to show by a preponderance that Tereshchenko consented to her taking the children to undisclosed locations including the United States, or to her interfering with his access to the children. This finding negated Karimi’s “consent” defense under Article 13(a). Finally, it determined that, under all the circumstances, it was appropriate and lawful for the court to return the children to Tereshchenko at his current residence in France even though France is not the children’s country of habitual residence. The court thus simply ordered the “return of the children to [Tereshchenko] to reside in his home in France.”

On January 18, the District Court entered judgment on its January 8 Opinion and Order, permitting this appeal. See 28 U.S.C. § 1291. On appeal, Karimi argued that (1) this case does not arise under the Convention and therefore the District Court lacked subject matter jurisdiction. She also contends that the District Court: (2) abused its discretion in excluding evidence of the children’s settlement in the United States; (3) erroneously concluded that returning the children to western Ukraine would not expose them to a grave risk of harm under Article 13(b); (4) lacked the power under the Convention to send the children to a country that is not their place of habitual residence; and (5) deprived her of a meaningful opportunity to be heard.

Karimi first argued that the District Court lacked subject matter jurisdiction over Tereshchenko’s petition. It was apparent, that argument had a false premise: consent (or lack of it) is not a jurisdictional requirement to a petition brought under the Convention. Neither the Convention’s jurisdictional provisions nor our domestic jurisdictional law requires that the removal be wrongful or without consent. While consent and wrongful removal bear on the merits of a petition under the Convention, those issues have nothing to do with jurisdiction, whether treaty or domestic. Accordingly, the District Court had subject matter jurisdiction over Tereshchenko’s petition. Karimi’s arguments went not to a court’s subject matter jurisdiction but to the merits of Tereshchenko’s petition. Considering these arguments on the merits, they failed.

The Second Circuit held that the District Court did not abuse its discretion in excluding evidence related to the “now settled” defense. Karimi did not raise a “now settled” defense in her Answer. The District Court did not rule “in an arbitrary and irrational fashion” when it granted the motion in limine and concluded that Tereshchenko would have been prejudiced had he been required to respond to Karimi’s “now-settled” defense on the pre-set timeline—a timeline that had already been unnecessarily protracted.

The Court held that the District Court erred in deciding that returning the children to Ukraine—including to western Ukraine—would not expose the children to “a grave risk” of “physical or psychological harm or otherwise place the child in an intolerable situation.”, A “grave risk of harm” defense that meets the Article 13(b) standard may arise “where returning the child means sending him to a zone of war, famine, or disease.” Souratgar, 720 F.3d at 103. Based on what record evidence does exist—and mindful of the rapidly evolving nature of the military conflict taking place—it declined to adopt the District Court’s stated determination that the children faced no “grave risk of harm” if returned to Ukraine with Tereshchenko.  In the face of Tereshchenko’s testimony that life in western Ukraine was dangerous and evidence establishing that Russia was bombing western Ukrainian cities, the District Court clearly erred in concluding that returning the children to L’viv would not expose them to a grave risk of harm. Nevertheless, this error did not require reversal.

The Second Circuit reached the same conclusion as did the District Court and affirmed its grant of Tereshchenko’s petition. It did so because the Convention permits—as a temporary ameliorative measure—a court in certain rare circumstances to return a child to a petitioner who is not himself in the place of habitual residence, but temporarily in a third country. The ongoing war in Ukraine simply precluded entry of the ordinary Hague Convention order. Even so, the District Court’s order returning the children to Tereshchenko in France must be tailored to secure the continued authority of the Ukrainian courts over the children and the parents’ respective custody rights. Absent such tailoring, the order had the effect of an impermissible custody determination. Accordingly, it remanded remand to allow expeditious amendment of the order in line with these fundamental goals. The court’s order was too open-ended, however, and in effect granted Tereshchenko permanent custody over the children in France. See Tereshchenko, 2024 WL 80427, at *10 (ordering the children returned to Tereshchenko to have the children physically “reside in his home in France”). This is a right that he did not previously enjoy. The Ukrainian executive order issued on March 21, 2022, in response to the war with Russia, grants relatives generally the equal right to unilaterally remove children from the country. But it does not purport to give Tereshchenko as an individual custody rights over the children in Ukraine or anywhere else. Although Tereshchenko has prevailed thus far before the Guardianship Body and the Ukrainian Court in his search for a custody ruling favorable to him, those decisions are stayed as a matter of Ukrainian law pending appeal. In any event, neither decision awarded Tereshchenko a right to have the children reside with him in France. Indeed, the Ukrainian Court decision grants Tereshchenko custody of the children at a particular address in Ukraine. In this regard, the District Court’s order imposes no limitation as to the “time and scope” of the children’s residence in France, or on other aspects of his rights to have them reside with him. Most crucially, it contains no conditions designed to preserve the authority of the Ukrainian Courts while the children stay with Tereshchenko in France, safe from the war in Ukraine. Accordingly, we think the order needs further shaping to avoid having the practical effect of granting Tereshchenko physical custody over the children in France. Such additional terms can be shaped and imposed expeditiously and without further fact-finding. It directed that on remand, the District Court should fashion a limited and temporary order that directs the children to stay with Tereshchenko in France, commits Tereshchenko to making the children available for the Ukrainian custody proceedings as required by those courts, and directs the parties to abide by the final custody determination of those courts.