Quintero v de Loera Barba, 2019 WL 1386556 (W.D. Texas, 2019)[Mexico] [Habitual Residence] [Petition granted]

          In Quintero v de Loera Barba, 2019 WL 1386556 (W.D. Texas, 2019) the court granted the petition of David Pinto Quintero for the return of his four children to Mexico.  

          A few months after getting married in Mexico City, Pinto and de Loera moved to Colorado so Pinto could pursue post-graduate education. While in Colorado, de Loera bore two children, M.A.P.D.L.-1 (now thirteen years old) and A.M.P.D.L. (now ten). Six years later, the family moved to Guadalajara, Mexico, where they had Z.D.P.D.L. (now eight). After fifteen months in Guadalajara, the family moved back to Mexico City. The couple had their fourth child, M.A.P.D.L.-2 (now seven) a year later.

          For the next four years, the family lived alongside Pinto’s parents and other relatives in Mexico City. Though Pinto and de Loera briefly considered relocating to the Pintos’ house in Florida—even using its address to apply for credit cards and to obtain a driver’s license, , and exploring potential schools for their children, see—they ultimately decided not to move, partly due to their children’s relationship with their grandparents, who saw the children multiple times each week and paid for their education.  In October 2015, Pinto and de Loera separated. At the time, they informally agreed to share custody: Pinto would take the kids to school three days a week and would further spend every other weekend with them. Six months later, Pinto filed for divorce. After retaining counsel, consenting to jurisdiction, and agreeing the family would be based in Mexico City, Pinto and de Loera entered into a provisional decree giving primary custody to de Loera, awarding visitation rights to Pinto, and prohibiting either parent from removing the children from Mexico City without the other’s permission. A year into that provisional decree, de Loera decamped with the children to live eleven hours away in Nuevo Vallarta. Pinto went to court to defend his parental rights. When de Loera responded with allegations of abuse, the Mexican judge interviewed each child in camera to test her claims. But none corroborated de Loera’s account, instead describing their father as “nice, good, [and] caring,” noting “they [we]re happy to see him and they would love to stay and sleep at his home,” and adding “that they love him very much and that they do want to see him.” They expressly denied ever being “beaten or told rude words.” In part based on these representations, in November 2017 the Mexican trial court ordered de Loera to return the children to Mexico City. But de Loera refused to comply, and continued to frustrate Pinto’s attempts to visit his children in Nuevo Vallarta. Both Pinto and de Loera appealed.

          While that case was pending, de Loera brought a separate action against Pinto and his parents that accused them of domestic and “economic” violence. A second judge interviewed the children in camera to assess these new allegations. And he found their testimony wholly noncredible: it was based solely on what “their mother told them,” and the youngest child admitted de Loera coached her testimony. The judge rejected all of de Loera’s claims.

          On May 21, 2018, a three-judge panel reversed the November 2017 child custody order. Concluding de Loera caused the children “serious psycho-emotional harm,” the Mexican appellate court awarded Pinto primary custody, limited de Loera to visitation rights, and threatened de Loera with arrest if she did not return the children to Mexico City within twenty days after their school term ended. The appellate court required de Loera to allow Pinto to visit and communicate with his children, and prohibited either parent from removing the children from Mexico without the other’s consent. Despite de Loera’s repeated—and unsuccessful—collateral attacks, that order became final. The next week, armed with the Mexican appellate court’s final order, Pinto traveled to Nuevo Vallarta to visit his children. But he couldn’t find them. School administrators reported they had been missing all week, and the house where they lived had been abandoned. Pinto searched for his children to no avail. On January 30, 2019—eight months after the Mexican appellate court order—Pinto’s cousin thought he spotted de Loera picking up the children at a San Antonio Montessori school. Subsequent investigation confirmed de Loera secreted the children to San Antonio, where they lived in a house held by a corporation controlled by her mother. On February 19, 2019, considering the “substantial risk that upon being notified of this proceeding, [de Loera] may remove the Children from the Court’s Jurisdiction,” Chief Judge Garcia granted Pinto’s ex parte application for a temporary restraining order (TRO) and for a writ of execution to take physical custody of the children. The next day—510 days since he last saw them—Pinto was reunited with his four children.

          The Court denied de Loera’s successive requests to appoint an attorney or a guardian ad litem for the children. Children do not generally participate in Hague Convention proceedings, and this case lacked the exceptional circumstances where a guardian ad litem would assist the court, particularly given this case’s expedited posture—a posture further accelerated by de Loera’s refusal to extend the TRO. See Chafin v. Chafin, 568 U.S. 165, 179 (2013) (“[C]ourts can and should take steps to decide these [Hague Convention] cases as expeditiously as possible, for the sake of the children who find themselves in such an unfortunate situation.”); cf. Sanchez v. R.G.L., 761 F.3d 495, 507-08 (5th Cir. 2014). And the Court denied de Loera’s request for the Court to individually interview each child in camera to consider whether equity compelled modifying the TRO, though the Court agreed to interview the thirteen-year-old in camera to ascertain the applicability of the Hague Convention’s mature-child-objection exception.

          The Court rejected de Loera’s argument that the children’s country of habitual residence should be the United States, based on the family’s short-lived plan to relocate to Florida. Determining a child’s country of habitual residence turns on “the parents’ shared intent or settled purpose regarding their child’s residence.” Larbie, 690 F.3d at 310. In cases like this one, where “the child is too young to decide residency on the child’s own,” the last place “ ‘both parents intended for the child’ ” to live controls absent “ ‘objective facts point[ing] unequivocally to [an alternative] conclusion.’ ” Cartes v. Phillips, 865 F.3d 277, 282-83 (5th Cir. 2017) (quoting Delgado v. Osuna, 837 F.3d 571, 578 (5th Cir. 2016)). Under this test, the children habitually resided in Mexico. A preponderance of evidence showed Pinto and de Loera most recently agreed to locate their family in Mexico City. For starters, it was the last place they lived as husband and wife, raising their family and giving birth to their fourth child over a five-year period. Because the children habitually resided in Mexico, and because de Loera admitted removing and retaining her children in the United States, Pinto proved the first prong of wrongful removal. Pinto had custody rights under the Mexican trial court’s November 2017 order, or even under the basic patria potestad authority de Loera concedes he would have under Mexican law. Pinto showed his children’s wrongful removal contravened his custody rights. Pinto cleared the final and “relatively easy” determination that he would have exercised his parental rights. Larbie, 690 F.3d at 307.  After all, “courts ‘liberally find’ that rights of custody have been exercised unless evidence demonstrates ‘acts that constitute clear and unequivocal abandonment of the child.’” The record supported Pinto’s claim that he exercised his rights under the provisional agreement, and that de Loera repeatedly thwarted his efforts to exercise his rights under the November 2017 and May 2018 orders. 

          De Loera tried to invoke the Convention’s mature-child-objection and grave-risk exceptions. The Fifth Circuit instructs both should “be applied narrowly,” and only where return does not further the Convention’s twin aims: “restor[ing] the pre-abduction status quo” and “deter[ring] parents from crossing borders in search of a more sympathetic court.” England v. England, 234 F.3d 268, 270-72 (5th Cir. 2000) . Since de Loera failed to carry the applicable burdens, the Court need not even consider their applicability. De Loera had to prove each element of the mature-child-objection exception by a preponderance of the evidence. See § 9003(e)(2)(B). Specifically, de Loera had to show that the children had “attained an age and degree of maturity at which it is appropriate to take account of [their] views,” and that they “object[ ] to being returned.” Rodriguez v. Yanez, 817 F.3d 466, 474 (5th Cir. 2016). The Fifth Circuit requires their objection be more than “a mere preference” not to return—the child must affirmatively claim “living in that country would be unacceptable.” Rodriguez, 817 F.3d at 477. What’s more, “[a] child’s objection to being returned may be accorded little if any weight if the court believes that the child’s preference is the product of the abductor parent’s undue influence over the child.” The Convention sets no explicit threshold age for determining a child’s maturity, leaving courts to undertake a fact-intensive, case-by-case inquiry. Some Fifth Circuit courts have considered a thirteen-year-old sufficiently mature, see, e.g., Vasconcelos, 512 Fed. App’x at 407, but others have not, see, e.g., England, 234 F.3d at 272.

          Here, a preponderance of evidence suggested that no child had attained enough maturity to persuade the Court their views should control. The Court reaches this conclusion after interviewing the thirteen-year-old in camera, hearing testimony from each child’s teacher, and reviewing various writings by each child. Because de Loera failed to prove her children are mature enough for the Court to account for their views, the Court did not consider the mature-child-objection exception.

          De Loera's own testimony undermined the grave risk of harm exception. De Loera described the Pinto family’s Mexico City neighborhood as one of the grandest and most exclusive in the world. And two Mexican courts—to which this Court owed comity—already rejected any suggestion that either Pinto or his family abused the children. 

Rivero v Godoy, 2019 WL 1178472 (S.D. Florida, 2019)[Venezuela] [Necessary Costs]

In Rivero v Godoy, 2019 WL 1178472 (S.D. Florida, 2019) Plaintiff Camilo Ernesto Crespo Rivero requested an award of $47,306 in attorney’s fees and $2,810.63 in taxable costs after prevailing in this action. Defendant Angie Carolina Godoy did not file an opposition. The Magistrate Judge recommended that the District Court grant in part and deny in part Crespo’s motion and award him $47,306 in attorney’s fees and $2,122.75 in taxable costs ($687.88 less than requested).

In July 2018, Crespo filed a verified petition under ICARA against Godoy. Crespo, who lived in Venezuela, alleged that Godoy had wrongly kept their four-year-old son within the Southern District of Florida. 

In his fee motion, Crespo detailed the out-of-court preparation and work his counsel undertook in this case. In the same vein, Crespo added that his counsel: prepared for and participated in a four-day evidentiary hearing before the Court; prepared Mr. Crespo for his live testimony; prepared extensively for an evidentiary hearing including preparing for direct and cross examinations; coordinated with the Marshal’s Service regarding execution of the summons and ex parte order, and compliance with the Court’s Order Granting Petition; coordinated Respondent’s visitations with the child; and participated in numerous meetings and discussions with the U.S. Department of State and the Venezuelan Central Authority.

Crespo moved for attorney’s fees and costs under ICARA. That statute provides for fees and costs shifting from losing respondents to prevailing petitioners: Any court ordering the return of a child pursuant to an action brought under section 9003 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate.22 U.S.C. § 9007(b)(3).
The Eleventh Circuit has “read the statutory text as creating a strong presumption in favor of fee-shifting, rebuttable only by a showing from the losing respondent that an award of attorney’s fees, costs and expenses would be clearly inappropriate.” Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018). Here, Godoy, who lost this ICARA case, did not respond to the fees and costs motion. So, she obviously made no showing that a fee-shifting award would be “clearly inappropriate.” As such, Crespo was entitled to a fees award for prevailing in this case.

The Court noted that the amount of recoverable fees in ICARA cases (like many others) turns on an application of the “lodestar” method. See, e.g., Ovalle v. Perez, No. 16-CV-62134, 2017 WL 7792719, at *1 (S.D. Fla. Nov. 9, 2017). Florida has adopted the federal “lodestar” approach to calculating attorney’s fees awards. Fla. Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985). The lodestar figure is calculated by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate for the services of the prevailing party’s attorney. The court must separately consider the reasonableness of the hourly rate and the number of hours expended. A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by attorneys with reasonably comparable skills, experience, and reputation. Norman v. Hous. Auth. of the City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). In determining the prevailing market rate, the Court should consider several factors, including “the attorney’s customary fee, the skill required to perform the legal services, the attorney’s experience, reputation and ability, the time constraints involved, preclusion of other employment, contingency, the undesirability of the case, the attorney’s relationship to the client, and awards in similar cases.” Mallory v. Harkness, 923 F. Supp. 1546, 1555 (S.D. Fla. 1996).

Here, the hourly rates of Crespo’s attorneys, Ronald H. Kauffman and Raquel Lacayo-Valle, were $495 and $350, respectively. Kauffman had been practicing law in Florida since 1993; was board certified in family law; and, according to the motion, “is a frequent speaker on Hague and interstate family jurisdiction issues and is a published author on family law issues in the Florida Bar Journal and Florida Bar Family Law Section Commentator.” Lacayo-Valle had been practicing law in Florida since 2014 but was barred in California in 2001. Given that Godoy did not respond to the fees motion, she did not object to the hourly rates. Moreover, the Court using its knowledge and experience as an attorney and federal magistrate judge in South Florida since 1983, found the rates to be reasonable. See Norman, 836 F.2d at 1303 (“The court ... is itself an expert on the question and may consider its own knowledge and experience concerning reasonable and proper fees[.]”).


The Court must exclude compensation for hours that are “excessive, redundant or otherwise unnecessary.” Norman, 836 F.2d at 1301.  Crespo seeks $47,306 in attorney’s fees, which is comprised of 77 hours of work by Kauffman and 26.26 hours of work by Lacayo-Valle. Crespo explains that this requested amount already deducts “one half of Ms. Lacayo-Valle’s time spent preparing for and in trial, (10 hours with a value of $3,500.00). The Court found the requested number of compensable hours is reasonable.


Crespo sought to tax the following costs: (1) $400 for fees of the clerk; (2) $419.10 for fees and disbursements for printing; (3) $101.88 in fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; (4) $1,957.50 for compensation of interpreters and costs of special interpretation services under 28 U.S.C. § 1828; and (5) $166.90 for PACER fees. The Court allowed taxation for categories (1) and (4) but disallowed taxation for categories (2), (3), and (5).

The Court recommended awarding $400 for the filing fee. This filing fee was reimbursable because it falls within the scope of taxable costs under § 1920(1). It did not recommend awarding $419.10 for fees and disbursements for printing. Crespo did not explain how these printing costs were necessarily incurred in the case. The motion to tax costs contains only a one-page summary of the printing costs, without any detail. Likewise, the Court did not recommend awarding $101.88 in fees for exemplification and the costs of making copies. Copying costs are recoverable if the copies were “necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). The party requesting taxation of costs must present evidence “regarding the documents copied including their use or intended use.” Cullens v. Georgia Dept. of Trans., 29 F.3d 1489, 1494 (11th Cir. 1994). General copying costs without any accompanying description are not recoverable. Duckworth v. Whisenant, 97 F.3d 1393, 1399 (11th Cir. 1996) . Crespo includes in his motion to tax costs only two invoices for color copies. The invoices did not say what the copies are for, and Crespo did not provide any detail about the copies in his motion. Therefore, $101.88 in fees for exemplification and the costs of making copies should not be taxed. The Court recommended awarding $1,957.50 for compensation of interpreters. The date of the invoice showed that these interpretation services were done for multiple days of trial. These costs are recoverable. See, e.g., Dimingo v. Midnight Xpress, Inc., No. 17-23010-CV, 2018 WL 7047958, at *3 (S.D. Fla. Oct. 25, 2018), report and recommendation adopted, No. 17-23010-CIV, 2019 WL 201717 (S.D. Fla. Jan. 15, 2019) (finding “award for costs for interpreter fees is appropriate, as such costs may be recovered under 28 U.S.C. § 1920(6)”).  The Court did not recommend awarding $166.90 for PACER fees. PACER costs are not taxable under § 1920. See MB Reo-FL Church-2, LLC v. Tampa for Christ Church, Inc., No. 8:16-CV-276-T-33AEP, 2018 WL 3008896, at *3 (M.D. Fla. June 15, 2018); Panico v. Ygsl Holdings LLC, No. 12-61269-CIV, 2013 WL 12092116, at *1 n.2 (S.D. Fla. Apr. 5, 2013); Parrot, Inc. v. Nicestuff Distrib. Int’l, Inc., No. 06-61231-CIV, 2010 WL 680948, at *15 (S.D. Fla. Feb. 24, 2010).

Castro v Hernandez Renteria, 2018 WL 7680608 (D. Nevada, 2018)[Mexico] [Report & Recommendation that Petition be granted]

In Castro v Hernandez Renteria, 2018 WL 7680608 (D. Nevada, 2018) the Magistrate Judge recommended that the petition of Carmen Castro Flores’ for the return of the minor child filed on September 7, 2018 be granted.

Petitioner and Z.M.F.Z. were both dual citizens of the United States and Mexico. Respondent was a citizen of Mexico, and she was the maternal grandmother of Z.M.F.Z. Z.M.F.Z. was born in Clark County, Nevada, on November 23, 2009 to Raul Flores Hernandez, her father, and C. Rusia Michel, her mother. Following Z.M.F.Z.’s birth, the family returned to Mexico. Z.M.F.Z.’s primary caregivers were her mother and respondent, until Z.M.F.Z.’s mother disappeared in April of 2014.  Following the disappearance, respondent became Z.M.F.Z.’s primary caregiver, and occasionally Z.M.F.Z. would see petitioner. In 2016, Raul and respondent established an informal custody agreement, permitting respondent custody on weekdays and Raul custody on the weekends. The informal arrangement continued for 10 months. According to respondent’s son, Jose Rufo Corona, Raul provided respondent with financial support to care for Z.M.F.Z. 

Raul and petitioner initiated custody proceedings against respondent before a family judge in the Sixth Judicial Court of the State of Jalisco in May of 2017. The Jalisco family court awarded custody to Raul on May 8, 2017. Following the custody order, Z.M.F.Z. resided with Raul and his wife until he was later arrested. Petitioner testified that following Raul’s arrest, Raul informally gave petitioner custody of Z.M.F.Z. In petitioner’s verified complaint, petitioner attests under the penalty of perjury that Z.M.F.Z. then resided with her beginning in July of 2017. In 2017, Raul was arrested in Mexico in relation to the United States’ Office of Foreign Assets Control’s (“OFAC”) allegations of drug trafficking.  In August of 2017, petitioner first learned that her husband, Oscar Armando Jimenez Hernandez, also appeared on OFAC’s drug trafficking designation list, alongside her father, Raul. However, petitioner testified that her husband was not involved in drug trafficking, or her father’s business. Petitioner also testified that she and her husband had never been arrested, and that there are no pending criminal charges against them. 

During the pendency of the custody proceedings, the Jalisco family court awarded respondent provisional custody rights from August 11, 2017 until August 18, 2017, to allow Z.M.F.Z. to be interviewed by a psychologist. Respondent was ordered to return with Z.M.F.Z. and the psychological report at the hearing scheduled for August 18, 2017. The Jalisco family court ordered respondent not to leave the State of Jalisco or Mexico with Z.F.M.Z during the pendency of the proceedings. On August 30, 2017, petitioner informed the court that respondent had left the country with Z.M.F.Z. Respondent failed to appear with Z.M.F.Z. at the September 8th hearing, but the Jalisco family court proceeded with the hearing and the taking of evidence. The Jalisco family court directed the Mexican Central Authority to begin the process of returning Z.M.F.Z. to Mexico under the Hague Convention. The Jalisco family court received a letter from respondent on September 13, 2017, stating that respondent had initially taken Z.M.F.Z. to the United States for a week, but that the two would now remain in the United States indefinitely. The Jalisco family court issued an official written notice to the Mexican Office of Foreign Relations that respondent had left the country with Z.M.F.Z. and ordered the initiation of Hague Convention proceedings for the return of the child. In this official notice, the court noted that respondent had removed Z.M.F.Z. from the country “notwithstanding the fact that the legal custody of [Z.M.F.Z.] is under legal dispute.” On May 8, 2018, the Jalisco family court revoked respondent’s provisional custody and awarded petitioner custody of Z.M.F.Z.  Petitioner testified that she first learned that Z.M.F.Z. left Mexico for Las Vegas in September of 2017. Based on the provisional custody order, petitioner assumed that Z.M.F.Z. was with respondent, and that it was not until Z.M.F.Z. did not return for the hearing that she knew respondent “had taken her.” Rufo testified that respondent is seeking asylum in the United States because she fears for her life in Mexico. 

Petitioner initiated an application for the return of Z.M.F.Z., under the Hague Convention, on July 4, 2018, with the Jalisco family court judge named as the petitioner. The petition was filed on September 7, 2018. 

Meanwhile, once in Las Vegas, respondent enrolled Z.M.F.Z. in the Ruben P. Diaz Elementary School on August 31, 2017, where Z.M.F.Z. continued to attend. 
The court heard testimony from Dr. Roitman, who the parties stipulated is an expert in child psychiatry. Dr. Roitman opined that Z.M.F.Z. has attained an age where it would be appropriate to consider her wishes to remain in the country. Dr. Roitman testified Z.M.F.Z. is “strongly attached to her grandmother” and that she views respondent as her primary caregiver, like a mother. Z.M.F.Z. has experienced two traumatic injuries caused by the separation of her primary caregivers, her mother who disappeared, and respondent. Dr. Roitman testified that Z.M.F.Z. has no ongoing psychiatric disorder, but exhibits avoidant anxiety resulting from being removed from respondent. Dr. Roitman attributed the cause of these symptoms to the three-month separation between respondent and Z.M.F.Z., when Z.M.F.Z. lived with Raul and then with petitioner in 2017. Dr. Roitman testified that Z.M.F.Z. lives in constant fear that the separation may occur again, and that the fear has manifested into the physical symptoms of stomach pain, nausea, and vomiting. Dr. Roitman further testified that Z.M.F.Z. experiences nightmares when she anticipates visits with petitioner. When asked whether he “believe[s] with a reasonable degree of medical certainty that there is a grave risk that [Z.M.F.Z.] will suffer psychological harm if she’s separated again from her primary caregiver, her grandmother,” Dr. Roitman responded with “yes.” Dr. Roitman continued, stating that the bond between respondent and Z.M.F.Z. must continue and that the bond itself is “more important than the location.” 

The parties did not dispute that Mexico was Z.M.F.Z.’s place of habitual residence until respondent removed Z.M.F.Z. to Las Vegas in August of 2017. Z.M.F.Z.’s habitual residence at the time of retention was Mexico. Respondent did not dispute that petitioner had custody rights and was exercising those rights at the time of wrongful retention. Petitioner and her father, Raul, initiated custody proceedings in May of 2017 against respondent. The court then awarded custody to Raul, who then informally passed on his custody of Z.M.F.Z. to petitioner upon his arrest. Petitioner established by a preponderance of the evidence a claim for return of Z.M.F.Z. to Mexico under the Hague Convention.

Respondent argued these proceedings were initiated more than a year after Z.M.F.Z. was removed from Mexico, and that Z.M.F.Z. is now well-settled in her new environment. Respondent argued that Z.M.F.Z. is of sufficient age and maturity and objects to a return. Finally, respondent argued a return to Mexico exposes Z.M.F.Z. to a grave risk of harm. The court found that respondent had not established a defense to return under the Hague Convention. 

A defense of delay requires a showing by the preponderance of the evidence that a) the petitioner has delayed more than one year in the filing of an application for return and b) that the child has become settled in her new environment. Hague Convention, art. 12, 19 I.L.M. at 1502. The one-year limitation is calculated from the date of the wrongful removal or wrongful retention to the commencement of the proceedings. In cases of wrongful retention, the clock begins to run either from the date the child remains with the abductor or when the acts of the abductor are so unequivocal that the other party knew, or should have known, that the child would not be returned. Based on the evidence presented, the court found that Z.M.F.Z. was well-settled. Although she had only been in Las Vegas for a little over a year, Z.M.F.Z. had established significant connections to Las Vegas, as she had developed friends, attended school regularly, and had family that resides in the area. Though respondent demonstrated by preponderance of the evidence that Z.M.F.Z. was well-settled in her new environment, petitioner’s Hague Convention petition was timely filed. Therefore, the court found that respondent had not established her untimely petition and well-settled defense by a preponderance of the evidence.

Respondent also argued Z.M.F.Z. had reached sufficient age and maturity, allowing her to object to return. Hague Convention, art. 13, 19 I.L.M. at 1502.  Z.M.F.Z. was called as a witness during the evidentiary hearing and testified to her age of eight, and her objections to returning to Mexico. When asked by respondent’s counsel why she did not want to return to Mexico, Z.M.F.Z. stated that she wished to remain in the Las Vegas because of her school, her friends, and to learn English. Further, Dr. Roitman testified to Z.M.F.Z.’s maturity level, concluding that she exhibited the maturity of at least an eight-year-old child. Based on the evidence, the court did  not find respondent had demonstrated by a preponderance of the evidence that Z.M.F.Z. had “exhibit[ed] an unusual degree of maturity and situational awareness” to accord her wishes “significant weight.” Blackledge, 866 F.3d at 187. While Z.M.F.Z. readily answered respondent’s counsel’s questions, Z.M.F.Z. had difficulty communicating and recalling events when questioned by petitioner’s counsel. Further, when petitioner’s counsel questioned Z.M.F.Z. as to why she changed her mind on participating in visitation, Z.M.F.Z. emotionally expressed concern that respondent would be harmed. Given Z.M.F.Z.’s emotional response, the court was not convinced that Z.M.F.Z.’s views were her own and not a result of influence from respondent. The court found that respondent had not demonstrated a mature-child defense by a preponderance of the evidence.

Respondent argued that returning Z.M.F.Z. to Mexico will expose her to physical or psychological harm. Respondent presented argument of counsel that returning Z.M.F.Z. would expose the child to contact with Raul’s family, who are allegedly “members of one of the largest drug cartels in Mexico.” According to respondent, petitioner’s immediate family members were designated by the United States Government as narcotics traffickers under the Drug Kingpin Act. Lastly, respondent argued that Raul, the alleged leader of the cartel, is still actively seeking custody, and thus exposes Z.M.F.Z. to harm.

The Court explained that a determination of grave risk is a question of fact and law. See Cuellar, 596 F.3d at 505. The grave-risk exception requires the court to consider “whether the child would suffer serious abuse that is a great deal more than minimal.” Gaudin, 415 F.3d at 1035. The grave-risk exception applies “only in extreme cases”. A grave risk of harm exists “when return of the child puts the child in imminent danger prior to the resolution of the custody dispute—e.g., returning the child to a zone of war, famine, or disease” or when there is “serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.” Friedrich, 78 F.3d at 1069 (indicating that sexual abuse of a child would constitute an intolerable situation). Proof of grave risk of harm requires “specific evidence of potential harm” to children. Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995). Other district courts and circuits have found a grave risk of harm in cases where the harm is a result of separation or disrupting the bond between the abductor and the child. See Rydder, 49 F.3d at 373; Steffen F. v. Severina P., 966 F. Supp. 922, 927-28 (D. Ariz. 1997). The Ninth Circuit, however, has not squarely addressed the issue, but has held that allowing an exception to return based on the trauma inflicted on a young child contravenes the Hague Convention’s rule of return. Asvesta, 580 F.3d at 1020-1021. The court in Asvesta recognized that a grave risk of harm must be more than what is expected when separating the child from a caregiver and passing her to another. 580 F.3d at 1021. Grave risk of harm is where “the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation.” Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir. 2001).

Here, respondent’s expert, Dr. Roitman, testified that Z.M.F.Z. exhibits anxiety and avoidant symptoms that were exacerbated by separation from Z.M.F.Z.’s primary caregiver, respondent. Dr. Roitman testified that the grave risk of psychological harm would only occur if Z.M.F.Z. is separated from respondent. Dr. Roitman cautioned that the bond between respondent and Z.M.F.Z. must continue, even if that meant that the bond was to continue in Mexico. Lastly, petitioner testified that neither her nor her husband have a criminal record and have no ties to the allegations against her father, Raul. Petitioner also did not express any concern that Z.M.F.Z. would be exposed to danger. The Court concluded that Respondent had not established by clear and convincing evidence that Z.M.F.Z. would be subject to a grave risk of serious harm from returning her to Mexico. Respondent only demonstrated that the possible grave risk of harm is attributed to the separation of Z.M.F.Z. from respondent. Given that respondent had not established a grave-risk defense by clear and convincing evidence, the court stated it would recommend that Z.M.F.Z. be returned to Mexico.

Djeric v Dejeric, 2019 WL 1046893 ( S.D. Ohio, 2019)[Serbia][Habitual residence][Petition granted]

[Serbia][Habitual residence][Petition granted]

       In Djeric v Dejeric, 2019 WL 1046893 ( S.D. Ohio, 2019) after an evidentiary hearing, at which the Court heard testimony from Mr. Djeric, who was present, and from Ms. Djeric via video conference from Serbia. the Court granted Ms. Djeric’s Petition for Return to Serbia.

          Mr. and Ms. Djeric were married in Serbia and had a son, M.D. In 2013, Mr. and Ms. Djeric divorced.  On September 26, 2013, the First Basic Court in Belgrade, Serbia, granted Ms. Djeric “sole parental right” over M.D., including the rights to “care, upbringing, and custody. Thereafter, Mr. Djeric moved to the United States. In August of 2017, Ms. Djeric allowed M.D. to attend school in Columbus, Ohio, subject to certain terms, which Ms. Djeric laid out in a letter, stating: “[D.M. can] continue his education in Worthingway Middle School in Columbus.... During his education in the United States, [M.D.] will live with [Mr. Djeric], who will be taking care of him, and consult with me about everything.”

          Unbeknownst to Ms. Djeric, Mr. Djeric filed actions for custody in the Franklin County Court of Common Pleas. On March 17, 2018, Ms. Djeric learned about the Second Franklin Action and began writing letters to the court, stating “I strongly oppose to the plan that [ ] full custody be given to [Mr. Djeric]. In another letter, Ms. Djeric wrote, “I did not and will not sign any document about giving [ ] custody to anyone, in this case, to [M.D.]. I will never give up [ ] my own child.”. And in another, Ms. Djeric stated, “This is already the third letter I am sending you. I don’t know what’s going on in America, about this case. I’m completely confused by what [Mr. Djeric] is trying through your court.... I’m scared too, because I just realized it was an attempt to take my child away, for good.” Ms. Djeric also directly communicated with Mr. Djeric, texting him “... I cannot sign the documents where you are asking to disown my child.... I hereby inform you that the final deadline has been set when [M.D.] has to return to Serbia, which is on May 25, 2018.” M.D. did not return to Serbia after the school year ended on May 25, 2018

          The District Court held that the dispositive inquiry in this case was the country of the child’s habitual residence. See Taglieri v. Monasky, 907 F.3d 404, 407 (6th Cir. 2018) (en banc). The court noted that there are five “principles” to consider when determining habitual residence: First, habitual residence should not be determined through the technical rules governing legal residence or common law domicile. Instead, courts should look closely at the facts and circumstances of each case. Second, because the Hague Convention is concerned with the habitual residence of the child, the court should consider only the child’s experience in determining habitual residence. Third, this inquiry should focus exclusively on the child’s past experience. Any future plans that the parents may have are irrelevant to our inquiry. Fourth, a person can have only one habitual residence. Finally, a child’s habitual residence is not determined by the nationality of the child’s primary care-giver. Only a change in geography and the passage of time may combine to establish a new habitual residence. Panteleris v. Panteleris, 601 F. Appx. 345, 349 (6th Cir. 2015). Therefore, in wrongful retention cases, courts look to the last date upon which it is undisputed that the child was in the new country with both parents’ consent. Karkkainen v. Kovalchuk, 445 F.3d 280, 290 (3d Cir. 2006). Specifically, courts look to the date when the non-abducting parent was truly on notice that the abducting parent was not going to return the child. Blanc v. Morgan, 721 F. Supp. 2d 749, 762 (W.D. Term. 2010).

          Ms. Djeric offered a letter she mailed to M.D.’s school, Mr. Djeric’s attorney in Serbia, and the Franklin County Court of Common Pleas. That letter stated: I, Ivana Djeric, Mother of M.D., ... hereby give my consent and agree that he can stay for the purpose of education in the United States of America, until May 25, 2018. Ms. Djeric also offered text messages, dated May 9th, 2018, which require Mr. Djeric to return M.D. to Serbia by May 25, 2018. Based on this evidence, the Court concluded that Mr. Djeric wrongfully retained M.D. on May 25, 2018, the date Mr. Djeric kept M.D. from returning to Serbia, thereby defying the limited consent of Ms. Djeric—M.D.’s sole custodian. This was also the date Ms. Djeric (the non-abducting parent) was on notice that Mr. Djeric (the abducting parent) was not returning M.D. to Serbia. See Blanc, 721 F. Supp. 2d at 762. To determine M.D.’s habitual residence, the Court limited the record to evidence related to M.D.’s experiences prior to May 25, 2018.

          The court held that only the acclimatization standard applied. Under this approach, the question is “whether the child has been physically present in the country for an amount of time sufficient for acclimatization and whether the place has a degree of settled purpose from the child’s perspective.” Ahmed, 867 F.3d at 687. Some questions relevant to determining if a child has acclimatized to a particular country include: “whether the child participated in academic activities, social engagement, sports programs and excursions, and whether the child formed meaningful connections with the country’s people and places.” Taglieri, 907 F.3d at 408 (citing Ahmed, 867 F.3d at 687).

          The parties offered evidence that M.D. had engaged in productive activities during his time in both Serbia and the United States. Over the first thirteen years of his life in Serbia, M.D. achieved academic and athletic success. M.D. enjoyed playing soccer, basketball, and swimming at a local sports club in Belgrade. And, even while in the United States, M.D. has remained in touch with his friends and family in Serbia and he spoke to Ms. Djeric on the phone every day, sometimes for several hours at a time. During his first eight months in the United States, M.D. established close ties with his family—especially his grandmother and aunt. Mr. Djeric testified that M.D. had become friends with several classmates and neighbors. M.D.’s principal, Nathan Kellenberger, testified that M.D. and succeeded in school and had impressed teachers with his leadership skills and kindness to others. Mr. Kellenberger also explained that during M.D.’s seventh grade schoolyear, he never missed class and was a top academic student.²

          Although the record illustrated that M.D. participated in academic activities, social engagements, and sports programs, and formed meaningful connections with others during his brief time in the United States, this evidence did not overcome the significant ties M.D. still held to Serbia. See Jenkins v. Jenkins, 659 F.3d 549, 562 (6th Cir. 2009) (“sufficiency of acclimatization to a new place will vary based on the strength of a child’s relationship with his or her prior habitual residence.”) Since there was no dispute that M.D.’s prior habitual residence was Serbia, the evidence must establish a change in habitual residence to the United States.. Mr. Djeric did not carry that burden. M.D. lived in Serbia for thirteen years and, by all accounts, thrived academically, athletically, and socially. It was no surprise then that M.D. transitioned so well during his stay in the United States. Still, the Court was not convinced that M.D.’s success in the United States over a brief period transcends the meaningful connections that M.D. established over his thirteen years in Serbia. Therefore, the Court found that Serbia was M.D.’s habitual residence.

           Mr. Djeric conceded that Ms. Djeric had established the last two elements of her prima facie case. First, Mr. Djeric acknowledged that the First Basic Court of Belgrade granted Ms. Djeric “sole custody” over M.D. Second, Mr. Djeric conceded that his refusal to return M.D. to Serbia violated the First Basic Court’s order, which granted Ms. Djeric the rights to “care, upbringing, and custody” of M.D. Therefore, Ms. Djeric established her prima facie case for wrongful retention under the Hague Convention and ICARA.

          Mr. Djeric raised one affirmative defense: that Ms. Djeric had consented to or subsequently acquiesced in Mr. Djeric’s retention of M.D. See 22 U.S.C. § 9003(e)(2)(B). Ms. Djeric contended that this defense does not apply because Mr. Djeric failed to meet the requisite standard, which is narrowly construed and has a high evidentiary bar. The affirmative defense of consent or acquiescence by the petitioner “requires either (1) a formal act or statement, such as testimony in a judicial proceeding, (2) a written renunciation of rights, or (3) a consistent attitude of acquiescence over a significant period of time.” Flores-Aldape v. Kamash, 202 F. Supp. 3d 793, 804 (N.D. Ohio 2016) (citing Friedrich v. Friedrich, 78 F.3d 1060, 1070 (6th Cir. 1996) (“Friedrich II”) ). Mr. Djeric argued that Ms. Djeric’s letter, dated August 11, 2017, amounted to a written renunciation of custody rights over M.D. This argument was rejected. In the letter dated August 11, 2017, Ms. Djeric stated “[d]uring his education in the United States, [M.D.] will live with his father, [Mr. Djeric], who will be taking care of him, and consult with me about everything.” Ms. Djeric’s declaration that Mr. Djeric “will be taking care” of M.D. while he continues his education in the United States is consistent with her custodial powers under the Serbian Divorce Decree. Moreover, Ms. Djeric had consistently refused to renounce—or even reduce—her sole parental rights over M.D. Therefore, the Court concluded that the Ms. Djeric did not renounce her rights with the August 11, 2017 letter.  Additionally, nothing in the record illustrated that Ms. Djeric consented to or acquiesced in Mr. Djeric’s wrongful retention of M.D.

          Mr. Djeric pointed out that Article 13 of the Hague Convention provides that a district court “may refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” During an in camera discussion with M.D., the Court learned that M.D. enjoyed the United States and prefered to stay here. While M.D.’s maturity and demeanor were undeniably impressive, the Court held that it would not exercise its discretionary power to refuse ordering his return because M.D.’s stated preference did not amount to a “particularized objection.” See Neumann v. Neumann, 310 F. Supp. 3d 823, 835 (E.D. Mich. 2018) (“courts have required that children subject to the Convention set forth particularized reasons why they object to return, as opposed to a generalized opposition”). As a result, none of the affirmative defenses apply.

Vite-Cruz v. Sanchez, 2019 WL 402057 ( D. South Carolina, 2019)[Mexico] [Motion for Costs][Clearly inappropriate]

         In Vite-Cruz v. Sanchez, 2019 WL 402057 ( D. South Carolina, 2019) on December 19, 2018, the Court granted Petitioner’s Petition and ordered the immediate return of A.V., a twelve-year-old child (the “Child”), to his habitual residence of Hidalgo, Mexico. Following the issuance of the Order, Petitioner filed a Motion for Costs.

         The district court observed that Article 26 of the Hague Convention permits a court to award expenses to a prevailing party “where appropriate.” Similarly, ICARA allows for an award of costs, stating in relevant part: Any court ordering the return of a child pursuant to an action brought under [ICARA] shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. 22 U.S.C. § 9007(b)(3).

         The district court pointed out that although the Fourth Circuit has not spoken on the issue, other courts have interpreted this statutory provision to give district courts “broad discretion” to determine when an award of costs is appropriate. See, e.g., West v. Dobrev, 735 F.3d 921, 932 (10th Cir. 2013) (noting the “broad discretion” conferred by ICARA); Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir. 2004) (”We also read the statute as giving the district court broad discretion in its effort to comply with the Hague Convention consistently with our own laws and standards.”).

          The motion sought $13,521.97 in costs, including interpretation fees, translation expenses, and other related litigation expenses. The Court reviewed the records submitted by counsel and found these costs to be reasonable in light of the nature and complexity of this case. Nonetheless, the Court considered the totality of the circumstances in determining whether an award of costs is “clearly inappropriate.” Respondent was indisputably indigent and had a large family to support in the United States. In the event Respondent was even able to pay costs, it would be to the detriment of her other children. Furthermore, Respondent relied entirely on her partner’s finances, as she did not make any income. Additionally, the case presented a very close question. Finally, Petitioner’s counsel served in a pro bono capacity, and Petitioner had not personally incurred any costs. The law firms involved in this case participated in a pro bono capacity and received no remuneration for their work. Considering the unique circumstances of this case and financial conditions of the parties, the Court held that it would be “clearly inappropriate” to award Petitioner costs. See in re Application of Stead v. Menduno, 77 F. Supp. 3d 1029, 1038 (D. Co. 2014) (”The Court finds that an award of filing fees and deposition costs is inappropriate in this [Hague Convention] matter, given the petitioner’s pro bono representation and respondent’s relatively low salary, total savings of slightly over $2,000, the fact that respondent spends 80% of her income on housing, and the fact that most of her other expenses relate to providing for [the child].”).

Calixto v Lesmes, 2019 WL 397003 (M.D. Florida, 2019)[Colombia] [Habitual Residence] [On remand]

          In Calixto v Lesmes, 2019 WL 397003 (M.D. Florida, 2019) on September 1, 2017, Mr. Calixto filed an action against Ms. Lesmes, M.A.Y.’s mother, for the return of five-year old M.A.Y., to Colombia. The Court referred the matter to a Magistrate Judge to hold an evidentiary hearing. Her Report and Recommendation reasoned: “Because the United States, not Colombia, is M.A.Y.’s habitual residence, Petitioner cannot establish a prima facie case of Respondent’s wrongful retention of M.A.Y.,” and therefore Mr. Calixto’s Verified Petition to Return the Child to Colombia should be denied. The District Court adopted the initial Report and Recommendation and denied Mr. Calixto’s Petition.

          On appeal the Eleventh Circuit remanded the case for further fact finding noting: “The critical question, as the district court correctly understood, is whether in November of 2016 M.A.Y. remained a habitual resident of Colombia or whether her habitual residence had changed to the United States.” According to the Eleventh Circuit, “If it is the former, Mr. Calixto established a prima facie case requiring M.A.Y.’s return to Colombia.”. However, the Eleventh Circuit explained that if M.A.Y.’s habitual residence changed to the United States, then “M.A.Y.’s retention was not wrongful under the Convention, and Mr. Calixto’s petition fails.”.

The Eleventh Circuit pointed out that the District Court “did not resolve the significant conflicts in the testimony, such as the status of the relationship between Mr. Calixto and Ms. Lesmes in November of 2015, the reason for Mr. Calixto’s execution of the travel consent form, and the circumstances surrounding the travel of Ms. Lesmes and M.A.Y. to the United States.” Further, the Eleventh Circuit noted that the District Court failed to “address whether Mr. Calixto’s intent to change M.A.Y.’s habitual residence was conditioned upon his joining Ms. Lesmes and M.A.Y. in the United States or whether that intent was vitiated once Mr. Calixto was unable to come to the United States.” The Eleventh Circuit highlighted the instances where Mr. Calixto and Ms. Lesmes offered differing accounts of critical facts and directed this Court to make further findings of fact to resolve the discrepancies. And, in an effort to prevent subsequent appeals, the Eleventh Circuit directed the District Court to address on remand whether the evidence provides either of the alternative means of establishing habitual residence as set forth in Ruiz v. Tenorio, 392 F.3d 1247, 1254 (11th Cir. 2004). (Doc. # 67 at 29). The Eleventh Circuit retained jurisdiction over the appeal in order to issue an expedited ruling. The District Court thereafter referred the matter to the Magistrate Judge for supplemental findings in accordance with the Eleventh Circuit’s directives.

          Thereafter, the Magistrate Judge held a status conference and asked the parties to brief the issues. The Magistrate Judge held oral argument after receiving the parties’ briefs.  On January 15, 2019, she issued her Supplemental Report and Recommendation.  The Magistrate Judge recommended that the Court find that “the travel consent form indicates Mr. Calixto’s agreement that M.A.Y. would move to the United States, and the return date was indication that Mr. Calixto wanted M.A.Y. to visit him if he could not gain entry into the United States.” The Magistrate Judge explained: “Centrally, because Mr. Calixto and Ms. Lesmes were not a couple [in November of 2015, when he signed the travel consent form], Mr. Calixto’s belief that they would travel to the United States as a family is unsupported.”  The Magistrate Judge highlighted that Mr. Calixto made no reasonable efforts to gain permanent residency status in the United States.  Instead, he only applied for tourist visas, and such visas were denied.  The Magistrate Judge noted: “The evidence suggests his visa applications were denied because he lied on them.”  After making numerous factual findings and credibility determinations, the Magistrate Judge found that “Mr. Calixto shared an unconditional intent to change M.A.Y.’s habitual residence to the United States, regardless of his ability to enter the United States.” The Magistrate found that M.A.Y.’s habitual residence changed to the United States, and that the alternative means discussed in Ruiz, 392 F.3d at 1254, were not satisfied. The Magistrate Judge ultimately recommended that the Court “find that M.A.Y.’s habitual residence changed to the United States based on her parents’ shared, unconditional intent.”

          After conducting a careful and complete review of the findings, conclusions and recommendations, and giving de novo review to matters of law, the Court accepted the factual findings and legal conclusions of the Magistrate Judge and the recommendation of the Magistrate Judge. The Court determined that it was appropriate to adopt the Supplemental Report and Recommendation. In so doing, the Court stated that it was aware of the Eleventh Circuit’s strong admonition: “The return remedy is the Convention’s central operating feature.” Fernandez v. Bailey, 909 F.3d 353, 363 (11th Cir. 2018)(citing Abbott v. Abbott, 560 U.S. 1, 9 (2010)). The Fernandez Court explains: “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, return must be the default in order to lay venue for the ultimate custody determination in the child’s country of habitual residence rather than the country to which the child is abducted.” In Fernandez, it was undisputed that the abducted children were habitual residents of Panama. The petitioning father established a prima facie case under the Hague Convention for return of the children to Panama, but the Court determined that the respondent mother demonstrated that an exception applied. The Court’s analysis of the exception, regarding the children being well settled in the new country, was reversed. Here, rather than dealing with an exception to repatriation, the Court was called upon to determine whether Mr. Calixto had met his prima facie burden of demonstrating that M.A.Y. was a habitual resident of Colombia. This Court adopted all of the factual findings and credibility determinations of the Supplemental Report and Recommendation and found that M.A.Y.’s habitual residence changed to the United States based on Mr. Calixto’s unconditional intent, which he shared with Ms. Lesmes, and returned the matter to the Eleventh Circuit