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

Guevara v Soto, 2018 WL 7108069 (E.D. Tennessee, 2018)[Mexico] [Report and Recommendation of Magistrate Judge] [Enforcement remedies]

In Guevara v Soto, 2018 WL 7108069 (E.D. Tennessee, 2018) on April 15, 2016, the Chief District Judge granted the Verified Petition and directed that defendant is to return the [C]hild to Mexico, the country of the [C]hild’s habitual residence.” In the Memorandum Opinion, the Chief District Judge stated, “The parties are to decide among themselves the means and manner of the [C]hild’s return to Mexico.” The parties were unable to decide among themselves the means and the manner of the Child’s return to Mexico, and the issue was referred to a Magistrate Judge.  After hearing from both parties, the Magistrate Judge ordered Respondent to transport the Child to La Luz, Michoacán, Mexico, by May 16, 2016. On May 23, 2016, Petitioner filed an Emergency Petition, stating that Respondent and Child did not arrive in La Luz, Mexico, as ordered. Respondent’s attorney acknowledged that the last contact that he had with Respondent was on May 3, 2016, when he explained the Court’s previous Order and options to appeal. Respondent’s attorney also stated that he has made numerous attempts to contact Respondent to no avail. Prior testimony from Petitioner, which was uncontested, established that Petitioner visited La Luz, Mexico, on several occasions on May 16, 2016, and thereafter, but could not locate the Child or Respondent. The Chief District Judge instructed the Clerk of Court to issue a Writ of Attachment, which ordered the United States Marshals Service to take possession of the Child. Approximately a year later, the United States Marshals Service filed a return, stating that Respondent could not be located. Now, Petitioner stated that NCMEC has received a tip as to the location of the Child. The tip indicated that the Child was located in the United States.

The Petitioner made a Motion for Writ of Body Attachment of Respondent and Minor Child and for a Warrant of Arrest for Respondent .The Report and Recommendation of the Magistrate Judge  found it appropriate in these circumstances to issue another writ of attachment pursuant to Federal Rule of Civil Procedure 70, and determined that it would  recommend such action. Rule 70 provides as follows: (a) Party’s Failure to Act; Ordering Another to Act. If a judgment requires a party to convey land, to deliver a deed or other document, or to perform any other specific act and the party fails to comply within the time specified, the court may order the act to be done--at the disobedient party’s expense--by another person appointed by the court. When done, the act has the same effect as if done by the party. Respondent was supposed to transport the Child to Mexico pursuant to the Judgment in this case, and later, was specifically ordered to transport the Child to La Luz, Mexico, by May 16, 2016. Accordingly, the Report and Recommendation recommended that the Clerk of Court issue another writ of attachment that directs the United States Marshals Service to execute Judgment and attach the Child. Once the Child is in custody, the Report and Recommendation recommended that the Child be delivered to the Tennessee Department of Human Services (or similar agency in the state in which the Child is found) for temporary placement, after which said agency shall make the appropriate arrangements with the United States Central Authority for the Child’s return to Mexico or to Petitioner.

Petitioner also requested an arrest warrant commanding the pick-up of the Child and Respondent. For authority, Petitioner cited to 22 U.S.C. § 9004, which states as follows: In furtherance of the objectives of article 7(b) and other provisions of the Convention, and subject to the provisions of subsection (b) of this section, any court exercising jurisdiction of an action brought under section 9003(b) of this title may take or cause to be taken measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child’s further removal or concealment before the final disposition of the petition. The Report and Recommendation found that by its clear language, § 9004(a) only applies to actions taken “before” the petition is ruled on. Here, the Petition was granted on April 15, 2016, and Petitioner was simply seeking assistance in executing the final Judgment. He was not requesting assistance “before the final disposition of the petition,” and therefore, this statute does not apply under these circumstances. The cases that Petitioner relied on involved arrest warrants that were issued to bring the abducting parent before the court so that the petition could be appropriately litigated. See McCullough v. McCullough, 4 F. Supp. 2d 411, 416 (W.D. Pa. 1998) (directing the United States Marshal to serve respondent with a warrant of arrest for the children and copies of the pleadings and that the United States Marshal bring the children before the court); Marquez v. Castillo, No. 8:14-CV-2407-T-30TBM, 2014 WL 5782812, at *3 (M.D. Fla. Nov. 6, 2014) (finding the provisional remedy in the above statute appropriate and ordering respondent not to remove the child from the court’s jurisdiction pending a hearing on the petition). 

Petitioner also relied on Pesin v Rodriguez, 244 F.3d 1250 (11th Cir. 2001). In Pesin, however, the court did not issue an arrest warrant pursuant to § 9004. Instead, after the court granted the petition, petitioner informed the court that respondent failed to return the children as ordered to do so. The district court set a status conference and ordered the respondent and the children to attend, but they failed to attend.  The court then issued a show cause order as to why respondent should not be held in contempt of court and scheduled another hearing.  Again, neither the respondent, nor the children, attended the show cause hearing. Following the respondent’s failure to attend the second hearing, the district court found respondent in contempt for her multiple refusals to comply with the court’s orders, and the court entered a bench warrant for her arrest. As demonstrated in Pesin, a finding of contempt of court is appropriate when a party fails to abide by the Court’s orders. “When a court seeks to enforce its order or supervise its judgment, one weapon in its arsenal is contempt of court.” Elec. Workers’ Pension Trust Fund of Local Union # 58, IBEW v. Gary’s Elec. Serv. Co., 340 F.3d 373, 379 (6th Cir. 2003) (citing NLRB v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987)). The Magistrate Judge’s role in contempt cases is to certify facts relevant to the issue of contempt to the District Judge. See 28 U.S.C. § 636(e)(6)(B); The Euclid Chemical Company v. Ware et. al., No. 1:11-cv-135, 2013 WL 6632436, at *1 (S.D. Ohio Dec. 17, 2013) (stating the same). Accordingly, the Magistrate Judge certified the facts and recommended that the District Judge issue a show cause order to Respondent to appear on a date and time certain to show cause why she should not be held in contempt of Court for the failure to abide by the Court’s Orders to return the Child to Mexico.

Leonard v Lentz, --- Fed.Appx. ----, 2019 WL 181185 (Mem) (8th Cir., 2019)[Turkey][Grave risk of harm][Petition denied]

         In Leonard v Lentz, --- Fed.Appx. ----, 2019 WL 181185 (Mem) (8^th Cir., 2019) Ozgur Leonard, a dual citizen of Turkey and the United States, claimed that Rachel Lentz, a United States citizen, had wrongfully removed the couple’s three minor children, I.Y.L., E.M.L., and S.M.L, to the United States, and he sought the return of the children to the Republic of Turkey. Lentz denied having taken any wrongful action. As an affirmative defense, she asserted, inter alia, that E.M.L., who had been born with End Stage Renal Disease and needed a kidney transplant, required a much more advanced treatment facility and medical team than Turkey could provide; and that returning the children to Turkey would create a grave risk that they would suffer some physical or psychological harm, or place them in an intolerable situation.

          The district court concluded that Leonard had established a prima facie case for wrongful removal.. The district court further determined, however, that Lentz had established the grave risk exception to removal, finding, as relevant, that the evidence, particularly testimony provided by E.M.L.’s doctors at the University of Iowa Health Care (UIHC), showed that ordering E.M.L. to be returned at that time would pose a grave risk to her physical health, and that E.M.L. would need to remain in close proximity to UIHC for the duration of her post-transplant recovery. Accordingly, the court denied Leonard’s request to return the children to Turkey. Just weeks after E.M.L. received a kidney transplant from Lentz, Leonard asked the court to reconsider its decision and, as relevant, to “order the return of the [c]hildren contingent on a future medical ‘release’ by [E.M.L’s nephrologist] stating [she was] satisfied that E.M.L’s further care [could] be provided in Turkey.” The district court found that the issue of whether E.M.L. could be returned to Turkey post-transplant was not ripe for consideration.

          The Eighth Circuit affirmed the judgement. It rejected Leonards argument that, inter alia, that the district court improperly denied his request to return the children to Turkey because the transplant had already occurred and because there was no evidence before the district court demonstrating that Turkish medical facilities were unable to provide adequate post-transplant care. It agreed that the issue was not ripe for consideration, as the record contained neither evidence that E.M.L. had reached the point in her recovery where her medical team was prepared to release her nor evidence establishing the point at which post-transplant return to Turkey would be safe for E.M.L. See Parrish v. Dayton, 761 F.3d 873, 875 (8th Cir. 2014) (ripeness is reviewed de novo; “[a] claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all”).

Malmgren v Malmgren, --- Fed.Appx. ----, 2019 WL 211324 (Mem) (4th Cir., 2019)[Sweden] [Well settled defense] [Petition granted]

          In Malmgren v Malmgren, --- Fed.Appx. ----, 2019 WL 211324 (Mem) (4^th Cir., 2019) Dick Goran Malmgren (“father”) filed a petition against Lisha Chevonne Malmgren (mother”). for the return of his daughter to Sweden. The district court determined that the child had been wrongfully removed from Sweden, her country of habitual residence, but because she was well settled in the United States, the court denied the petition and did not order that the child be returned to Sweden. The Fourth Circuit vacated the judgment and and directed the district court on remand to expeditiously grant the petition for return.

          The Court pointed out that it reviews the district court’s factual findings for clear error and reviews de novo the court’s conclusions regarding principles of domestic, foreign, and international law. Bader v. Kramer, 484 F.3d 666, 669 (4th Cir. 2007). It noted that Article 12 of the Convention directs that when a child has been wrongfully removed or retained, the Contracting State shall order the prompt return of a child to his or her country of habitual residence if less than a year has elapsed between the wrongful removal or retention and the commencement of the proceeding, unless one of the enumerated exceptions applies. Convention, art. 12. If the petition is not filed within one year of the child’s removal, the court “shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.”  For a child to be settled within the meaning of the Convention, the child must have significant connections demonstrating a secure, stable, and permanent life in his or her new environment.” Alcala v. Hernandez, 826 F.3d 161, 170 (4th Cir. 2016). The “well-settled” defense, however, is not applicable if the petition was filed within one year after the wrongful removal or detention. Article 12 states “[t]he general rule that when a court receives a petition for return within one year after the child’s wrongful removal, the court shall order the return of the child forthwith.” Lozano v. Alvarez, 572 U.S. 1, 5 (2014); see also Miller, 240 F.3d at 402 n.14 (finding that “the ‘well-settled’ defense [ ] has no application” because “the petition was filed within a year of the wrongful removal”).

          Tthe district court found that the father established that the child was wrongfully removed from her habitual place of residence in violation of his custody rights. Nevertheless, the court allowed the mother to establish that the child is now well settled in the United States, reasoning that it could consider this defense because the father unreasonably delayed in filing the petition for return even though it was filed within the one-year period. Finding that it had equitable discretion to consider the mother’s “well-settled” defense even when the petition was filed within one year of the wrongful removal, the court determined that the mother established this defense and thereby denied the father’s petition.

          The Eleventh Circuit held that the district court’s finding that it could consider the “well-settled” defense even if the petition was filed within the one-year timeframe is not supported by the Convention or case law analyzing the relevant articles. See Convention, art. 12; Lozano, 572 U.S. at 5. It is mandatory under Article 12 that if the court determines that the petition for return is filed within one year of removal, with exceptions that are not relevant here, the child must be returned to her country of habitual residence. Miller, 240 F.3d at 402 n.14. Accordingly, it vacated the district court’s order denying the petition for return and directed the district court on remand to expeditiously grant the petition for return and order the prompt return of the child to Sweden, her country of habitual residence.

Pfeiffer v Bachotet, 2019 WL 190927 (11th Cir., 2019)[Switzerland] [Rights of custody][Petition denied]

      In Pfeiffer v Bachotet, 2019 WL 190927 (11^th Cir., 2019) the Eleventh Circuit affirmed a judgment of the district court which denied the petition of Plaintiff-Petitioner Marcellinus Pfeiffer, who sought the return of his children N.A.R. and R.H.E. from the United States to Switzerland.

          Pfeiffer and Rachel Bachotet were married in France in 2010. Two years later, in 2012, they moved to Switzerland. Pfeiffer and Bachotet had two children: N.A.R., a nine-year-old daughter, and R.H.E., an eight-year-old son. Until June 17, 2018, both children had lived continuously in Switzerland since 2012. In June 2017, Pfeiffer and Bachotet obtained a divorce when the District Court of Meilen, under the Canton of Zurich, Switzerland, issued a Sentence and Decree of Divorce (the “Divorce Judgment”). Among other provisions, this Divorce Judgment provided for the two children to “remain under shared custody of both parents.” It further “require[d] both parents’ consent [to relocate the children] if the new place of residence is located abroad or if relocation has some impact on the exercise of parental custody or visitation rights of either parent.” Nonetheless, section 3.2.a) of the Divorce Judgment expressly specified that Pfeiffer “does not object to the mother’s taking residence abroad (US or France) at/after the end of the school term 2016/2017.” Other parts of the Divorce Judgment also indicated that it anticipated Bachotet would relocate with the children outside of Switzerland. Paragraph 3.2.c) aa provided, “Until [Bachotet] relocates with the children abroad (see section [3.]2. a [)], last paragraph above), the children’s father is entitled and obliged to exercise his obligation of care towards the children as follows ....” Similarly, paragraph 3.2.c) bb stated, “As from relocation of [Bachotet] and the children abroad (see section [3.]2. a [)] last paragraph) the following visitation regime shall be effective .... Once per year, [Bachotet] shall pay for travelling costs (round trip), when the children visit their father. Any other visitation-related costs shall be borne by the father.”

Until Bachotet relocated the Divorce Judgment awarded Pfeiffer parenting time with the children every other weekend, with additional time for holidays and during the summer. In 2018, the guardian appointed to oversee the custodial arrangement between the parties modified the parents’ custodial agreement so that Pfeiffer and Bachotet had equal time with the children. While she entered a new parenting plan, under Swiss law, she lacked the authority to modify the Divorce Judgment. Therefore, the Divorce Judgment remained unchanged.

          At the end of the children’s 2016-17 school term, Bachotet began the relocation process by applying for a K-1 (fiancé) Visa for herself and K-2 Visas for the children to emigrate from Switzerland to the United States. Bachotet received notice that the United States had authorized the Visas on May 17, 2018. They were valid until July 6, 2018. On June 9, a letter from Pfeiffer dated June 7 was delivered to Bachotet. In that letter, Pfeiffer wrote that he “revoke[d] [his] consent to [Bachotet’s] relocation with [the] children ... abroad, in the US or in France, as expressed in the [Divorce Judgment] in 2017.” That same afternoon, Bachotet booked plane tickets for herself and her children to the United States for June 17, 2018. On June 15, 2018, Pfeiffer sent a letter to the District Court of Meilen, which had jurisdiction over the Divorce Judgment. In that letter, Pfeiffer stated that he “revoke[d] [his] consent to the relocation of [the] children ... to the United States of America.” He requested that the court “immediately impose a travel ban ... without consultation with ... Bachotet, in order to keep her from leaving [Switzerland] with the children.” The record contained no subsequent order from the Swiss court acting on Pfeiffer’s request. On about June 17, 2018, Bachotet left Switzerland with the children for the United States. The three currently resided in Marietta, Georgia, with Bachotet’s American fiancé.

On July 17, 2018, Pfeiffer filed the litigation seeking return of the children to Switzerland under the Hague Convention.

          Following a hearing, on August 29, 2018, the district court issued an order denying Pfeiffer’s petition. The court reasoned that Pfeiffer had failed to satisfy his burden to show that Bachotet’s removal of the children from Switzerland violated Pfeiffer’s rights of custody, in light of the Divorce Judgment’s provision awarding Bachotet “the exclusive right to determine whether the children would remain in Switzerland or move to the United States or France at the end of the 2016/2017 school year.” The Eleventh Circuit affirmed.  It found that Pfeiffer had established that the children’s habitual residence at the time of removal was Switzerland, but the district court nonetheless correctly denied Pfeiffer’s petition because Pfeiffer had not demonstrated that Bachotet’s removal of the children violated his custody rights under Swiss law.

          The Eleventh Circuit Court noted that in identifying when a child’s habitual residence has been changed, it has set forth two requirements to alter a child’s habitual residence: (1) the parents must share a “settled intention” to leave the old habitual residence behind; and (2) an “actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized” must occur. Ruiz, 392 F.3d at 1252-53. Both must be present to change a child’s habitual residence. It concluded based on the second requirement, that the children’s habitual residence had not changed as of the date of the challenged removal. As of the time of the challenged removal, June 17, 2018, the children—then seven and nine years old—had lived continuously in Switzerland for six years. Nothing in the record indicated that they had ever lived in—or even spent significant time in—the United States as of that date. Nor did the record suggest or did the parties argue that any other country could have served as the children’s habitual residence as of June 17, 2018. And since acclimatization cannot take place without the parties’ physical presence in a new country, the children’s habitual residence as of the date of removal was Switzerland.

          The court also found that Bachotet’s removal of the children from Switzerland did not violate Pfeiffer’s custody rights under Swiss law.  Rights of custody, include “rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” Convention art. 5(a). It observed that Article 133 of the Swiss Civil Code, Code Civil [CC] [Civil Code] Dec. 10, 1907, SR 210, RS 210, as amended, art. 133, endows courts with the authority to “regulate [] parental rights and obligations in accordance with the provisions on the legal effects of the parent-child relationship. ... In particular it [has the power to] regulate []: ... residence ....” Under Swiss law, in cases like this one, where the parents enjoy joint parental responsibility, either the consent of the other parent or “a decision of the court or the child protection authority” is necessary before one parent may establish a new place of residence outside Switzerland. Swiss Civil Code, Art. 301a, Code Civil [CC] [Civil Code] Dec. 10, 1907, SR 210, RS 210, as amended, art. 301a. Here, the Divorce Judgment constituted a decision of the Swiss court. And though Swiss law generally provides parents with a ne exeat right as it pertains to removal of a child from Switzerland, see Swiss Civil Code, Art. 301a, the Divorce Judgment here expressly empowered Bachotet to relocate with the children to either the United States or France “at [or possibly after] the end of the school term 2016/2017.” So, by Swiss law, under the Divorce Judgment, Bachotet had the sole rights of custody as they pertained to determining whether to move the children to the United States.

          Pfeiffer did not contest this analysis, but he nonetheless asserted that events transpiring after the court entered the Divorce Judgment revoked Bachotet’s authority to remove the children from Switzerland. In support of this claim, Pfeiffer urges that Bachotet’s authority to remove the children was time-dependent and automatically expired when Bachotet failed to move them to the United States in June 2017. The Court could not conclude that Bachotet did not take steps to remove the children as soon as possible after the end of the 2016/2017 school term. Second, Pfeiffer contended that, following the court’s entry of the Divorce Judgment, he reestablished his rights of custody to determine the children’s place of residence, based upon the modification to the custodial agreement that the guardian reached and the parents agreed to. But Pfeiffer had not showed that the guardian’s modification of the custodial agreement cognizably revoked the court’s order authorizing Bachotet to remove the children to the United States at the end of the 2016/2017 school term or modified the Swiss Court’s Divorce Judgment. Nor had Pfeiffer showed that the Swiss court ever amended the Divorce Judgment to incorporate or otherwise recognize the modified custodial agreement, even though under Swiss law, the Swiss court retained jurisdiction to amend its orders regarding custody. Under the Divorce Agreement, Pfeiffer did not enjoy a ne exeat right as it pertained to Bachotet’s authority to move the children from Switzerland to the United States. And since the Divorce Agreement was a court order that has not been modified, it constituted Swiss law for purposes of ascertaining the parties’ rights of custody to determine the children’s place of residence. The Court was bound to apply its terms and affirm the district court’s conclusion that Pfeiffer had not satisfied his burden to establish a prima facie case of wrongful removal under the Hague Convention.

Cocom, v. Timofeev, 2019 WL 76773(D. South Carolina, 2019) [Belize][Consent][Petition granted]

         In Cocom, v. Timofeev, 2019 WL 76773(D. South Carolina, 2019) the district court granted the petition of Raquel Margarita Cocom against her child’s father Andrey Timofeev and Grandmother, Irina Timofeev to have her child minor child returned to her in Belize.  

          Cocom was a Belizean citizen who had lived in Belize all her life. Timofeev was a Russian citizen who moved to Belize towards the end of 2008. At the time of Timofeev’s relocation to Belize, Grandmother was already living in the United States as a lawful permanent resident. Cocom and Timofeev met in Belize in March 2009.  Cocom and Timofeev were the biological parents of the Child, who was born in Belize in November 2015. Until her travel to the United States with Timofeev in 2017, the Child’s only residence was Belize. Early in their relationship, Timofeev told Cocom of his intention to immigrate to the United States. At trial he testified that moving to Belize was always part of his plan to immigrate to the United States, because it was an English-speaking country close to the United States. Cocom testified that, prior to the Child’s birth, she had no problem with Timofeev immigrating to the United States, but that she intended to remain in Belize with J.J.R. and her family. Grandmother filed Form I-130 with the Department of Homeland Security (“DHS”) on May 27, 2009, in which she petitioned for Timofeev to (1) receive a visa to travel to the United States as an unmarried adult son of a naturalized American citizen, and (2) become a lawful permanent resident. Timofeev testified that, at around the time of this initial filing, he considered himself in a common law marriage with Cocom, though the Child was not yet born. Shortly after the Child’s birth in November 2015, Timofeev again mentioned his plan to immigrate to the United States. Cocom explained at trial that she had been open to this idea, but only if she, Timofeev, the Child, and J.J.R. all immigrated to the United States together as a family. Around the same time as this conversation, Timofeev completed an online Form DS-260 that he electronically signed and filed with DHS on May 9, 2016. Cocom testified that she did not know that Timofeev had been filing any of these immigration papers. After Timofeev e-filed his Form DS-260, Grandmother filed Form I-864 with DHS affirming that she was sponsoring Timofeev to become a lawful permanent resident. This time, however, Grandmother included the Child on the immigration form as an immediate family member of Timofeev, who was the principal immigrant she would be sponsoring. The Child was a derivative beneficiary eligible to receive a visa to travel to the United States to become a lawful permanent resident. Around the same time, Timofeev also had completed the Form DS-260 online for the Child. Cocom testified that she did not know that Timofeev had started the process for the Child to receive a green card. She claimed she did not know about this process until Timofeev and the Child were already in the United States. In July 2016, the Child was examined by a doctor as part of the paperwork for her immigration to the United States. During the doctor’s exam, Cocom testified that she questioned the doctor regarding the Child’s shots because the Child already had an appointment scheduled for October of that year to receive her vaccinations. The doctor responded that the Child would be in the United States at that time.  Cocom claimed that she asked Timofeev to explain what the doctor meant after the exam finished. She said that Timofeev explained that the Child was getting shots that the government of Belize could not afford to give to all Belizeans. Timofeev testified that, at that appointment, he “explained we are applying for, permanent residence for me, my child...”   The parties’ accounts of the visa interview also diverged. Timofeev claimed that the interviewer explained that only Timofeev and the Child would be travelling to the United States and that Cocom might not see the Child for several years. By contrast, Cocom testified that she was at the United States Embassy in Belize on July 11, 2017, but was not formally interviewed or put under oath. She claimed that Timofeev was the only one to answer any questions that were asked. She testified that she never gave consent to an embassy official for the Child to travel to the United States permanently, and that she did not raise any objections while at the embassy because of Timofeev’s bad temperament and her lack of understanding of the process. Cocom testified that Timofeev explained to the official at the consulate that Cocom would be travelling to the United States on a tourist visa, leading her to believe that the whole family would be getting tourist visas. Following the completion of the immigration process, Timofeev and the Child received visas to travel to the United States and to become lawful permanent residents. Cocom testified that she was not aware of this, instead thinking that they had received tourist visas. Timofeev testified that his and the Child’s visas for permanent residency status were approved in mid-October 2017, and that he informed Cocom of this immediately. Cocom testified that she was not made aware of the permanent residency visas and was rather told on November 4, 2017 that Timofeev and the Child would be departing for a two week visit the following day.  On November 4, 2017, Grandmother purchased tickets for Timofeev and the Child to fly from Belize to Miami the following day. The parties testified when they arrived at the airport the next day, November 5, 2017, the Belizean immigration authorities required a signed document from Cocom authorizing the Child to fly out of the country. The document was drafted and signed at the airport shortly before the flight. The document authorized Timofeev to take the Child out of Belize, but was silent as to the length of the trip or the scope of the authorization. Cocom testified throughout the trial that she and Timofeev had agreed that Timofeev would take the Child to the United States for two weeks to visit Grandmother and would then return home. By contrast, Timofeev claimed that the plan at the time of his departure was that he and the Child would travel to the United States and then petition to bring Cocom and her son, J.J.R., into the United States legally. Timofeev and the Child arrived in Miami on November 5, 2017, and presented themselves to Customs and Border Protection for admission into the country. Timofeev and the Child became lawful permanent residents, and several weeks later they received their permanent resident cards (“green cards”) in the mail. After arriving in the United States, Cocom would routinely speak with Timofeev and the Child over the phone. The Child began living with Timofeev and Grandmother in Georgetown County, South Carolina, where she currently lived.  

          Cocom testified that upon learning that Timofeev would not be returning with the Child two weeks after the child departed Belize, she visited INTERPOL in Belize to request information about the location of Timofeev and the Child. She did so on November 21, 2017, shortly after the alleged fourteen-day return deadline passed on November 19, 2018. She also visited a governmental agency, Human Development, which serves as the Belizean Central Authority under the Hague Convection. At that time, she applied for return of the Child under the Hague Convention.  The next day, November 22, 2017, Cocom visited the Orange Walk Police Department and filed a police report. In that police report, she stated that the parties had an agreement for the Child to return from the United States after two weeks, but that Timofeev violated the agreement by failing to return the Child to Belize. Cocom also testified that during this time she continued to ask Timofeev to return the Child to Belize. She testified that when she would ask Timofeev to return the Child, she would remind him that they had a verbal agreement that the Child would only be gone from Belize for two weeks. Belizean officials completed the application for the Petition on or about January 26, 2018, after which it was transmitted to the United States Department of State. Cocom then obtained pro bono counsel in the United States to locate the Child and to file the Petition. Cocom’s petition before the court, filed on August 14, 2018, alleged wrongful detention of the Child, in violation of the Convention and ICARA.  The court held a trial on the merits of this case on December 5–6, 2018.

          The district court indicated that the Ninth Circuit’s opinion in Mozes v. Mozes has served as a guide for federal courts in determining parental intentions in Hague Convention cases.” Maxwell, 588 F.3d at 251. The court found that the habitual residence of the child was Belize and that the Child had not acclimatized to life in the United States to such an extent that returning the Child to Belize would be improper under the Convention. It also found that the Child’s removal violated her rights of custody. “[R]ights of custody for purposes of Article 3 of the Convention means rights of custody at the time of removal.” White v. White, 718 F.3d 300, 307 (4th Cir. 2013). Courts should rely on the law of the state in which the Child was habitually resident to determine whether the petitioner possessed rights of custody at the time of the Child’s removal. See Bader v. Kramer, 445 F.3d 346, 349–50 (4th Cir. 2006). Under Belizean law, biological parents have “rights relating to the care of the person of the Child.” Belizean family law mandates that “[e]very parent shall have parental responsibility for his [or her] child.” Belize Families and Children Act Ch. 173, Rev. Statutes of Belize 2011, § 6(1). The court finds that Cocom had rights of custody under the Convention at the time when the Child was removed to the United States, and has thus proven the second element of her prima facie case. Cocom presented sufficient evidence at trial to allow the court to conclude that she was caring for the Child, who was living with her, at the time that the Child was removed from Belize.

          The evidence at trial clearly demonstrated that Cocom did not acquiesce to the Child’s permanent retention in the United States after Timofeev and the Child arrived here. Regarding whether Cocom had consented to the Child’s permanent relocation to the United States before she departed Belize, Cocom testified that her agreement with Timofeev regarding where the Child and the whole family would reside shifted with time. She claimed that she and Timofeev first agreed that they would obtain visas to immigrate to the United States together, but that Timofeev then changed plans and only applied for a visa for himself and the Child without informing her. She claims that Timofeev first told her on November 4, 2017 that Grandmother had bought tickets for him and the Child to fly out of Belize the very next day. At this point, according to Cocom, the parents no longer had a shared intention that the Child would permanently relocate to the United States. Rather, as Cocom testified, the parents agreed that Timofeev would only travel to South Carolina with the Child for two weeks to visit his family, after which Timofeev would return with the Child. By contrast, Timofeev testified that the plan was always for him and the Child to come to the United States first, obtain green cards, and then apply to have Cocom and J.R.R. join them in the United States. He testified that Cocom was fully aware of this plan when he and the Child left Belize. Timofeev testified that he and Cocom had expected that he and the Child would receive their green cards about two weeks after arriving in the United States, at which point they would be able to begin the process to bring over Cocom and her son. At the trial, Timofeev explained that this must be the basis for Cocom’s “two weeks” theory, implying that she had agreed to the plan until it took more than two weeks for him and the Child to receive their green cards, at which point she abandoned the original plan and initiated proceedings to ensure the return of the Child. The operative fact in this case was that Timofeev had not proceeded with the immigration process for Cocom and J.R.R to move to the United States, even though he received his green card one year earlier in December 2017. According to his narrative, this promise to pursue immigration status on behalf of Cocom and her son was part of the original plan. Yet at trial, Timofeev testified that he had since abandoned that plan because Cocom initiated this proceeding against him. The physical evidence admitted at trial did not conclusively support one narrative over the other, and the court found both stories to be plausible. It held that Cocom had the burden to prove by a preponderance of the evidence that she and Timofeev had not shared a settled intention that the Child relocate permanently to the United States. On the other hand, Timofeev had the burden to prove by a preponderance of the evidence that Cocom consented to the Child’s removal in order successfully assert “consent” as an affirmative defense.

          The district court held that it would order the return of the Child due to Timofeev’s violation of the conditions of Cocom’s consent. Under the Convention, the court must consider all of the “conditions” of consent. Here, the court found that a crucial condition of Cocom’s alleged consent was violated and should be remedied. The court’s decision was also motivated by the reality that, by bringing the Child to the United States but not fulfilling his promise to also bring Cocom, he had essentially deprived Cocom from seeing the Child for the remainder of her childhood. Cocom, who was proceeding in the court in forma pauperis with pro bono counsel, was not financially capable of making frequent visits to the United States to visit her child. Without making a determination regarding which of the parties’ factual narratives were accurate, the court found that, even if it relied on Timofeev’s version of events, Timofeev violated the condition of Cocom’s consent, which rendered the consent invalid.

          Thus, the court found that the Child has been wrongfully detained in the United States in violation of the Convention and granted Cocom’s Petition.

Vite-Cruz v Sanchez, 2018 WL 6680514 (D. South Carolina, 2018)[Mexico] [Discretionary return] [Re-abduction]

          In Vite-Cruz v Sanchez, 2018 WL 6680514 (D. South Carolina, 2018) the district court granted the Petition filed by Petitioner Jose Luis Vite-Cruz (” Father”) for the return of A.V., a twelve-year-old child (the “Child”), to his habitual residence of Hidalgo, Mexico.  The Court held a bench trial in Columbia, South Carolina. Mother was present in the courtroom, and Father was present via teleconference from Mexico.  Child was born in Charleston, South Carolina, on March 17, 2006.  He was a dual-citizen of Mexico and the United States.  Father was a Mexican citizen and resident.  Mother was born in Mexico; had been a Lawful Permanent Resident of the United States since August 19, 1997; and was a resident of Richland County, South Carolina, where she resided with the Child.  Child resided for some time in South Carolina from his birth in 2006 until he began residing in the state of Hidalgo, Mexico, with Father. The parties stipulated Child was a habitual resident of Hidalgo, Mexico, at the time Mother removed him on or about December 1, 2016. Father had rights of custody over Child under Mexican (Hidalgo) law. Both parties agreed that Father was exercising his custodial rights at the time Mother removed Child from Mexico. As a result, Mother’s removal of Child from Mexico was a breach of Father’s custody rights. Based on the stipulations and facts properly before the Court, Father proved a prima facie case for the return of Child under the Hague Convention by a preponderance of the evidence.

          The Father and Mother were married in the United States in 2005 while living in Charleston County, South Carolina.  After the Child’s birth, Father and Mother traveled to Mexico with the Child in 2006. For approximately four months, the family lived together in Zacualtipán de Ángeles, Hidalgo, Mexico.  Thereafter, Mother and the child traveled to North Charleston, South Carolina. For a period of time while Father remained in Mexico, the Child lived with Mother and her parents in the North Charleston area. In 2008, Father returned to North Charleston, South Carolina. At that time, Mother was in a relationship with another man and was pregnant with his child. After Father returned to North Charleston, he and Mother lived apart but shared the care and custody of Child. Child would stay with Mother for a few days and then go to stay with Father for a few days. Mother fell on difficult financial times. When this happened, Child went to live with Father.

          Over the next twelve to eighteen months, Child continued to live with Father in North Charleston. Child continued to live in North Charleston with Father until 2010. In 2010, Father advised Mother that he was going to move back to Hidalgo, Mexico with Child. Father testified that Mother did not visit Child or help raise him and that the reason for wanting to return to Mexico was to be closer to Child’s paternal grandmother, who could provide him assistance with raising Child. Because Mother opposed the proposed move, Father did not move back to Mexico immediately after their initial discussion. However, when Mother did not visit Child for another month or so, Father proceeded with the plan to move back to Hidalgo, Mexico.  On or about April 2010, Father and Child returned to the same city where the family had lived before: Zacualtipán de Ángeles, Hidalgo, Mexico. At the time of this move, Father had been Child’s custodian and caregiver for almost two years in North Charleston. Father continued to be the sole custodian of Child in Mexico from April 2010 until November 28, 2016.  During the roughly six and one-half years Father and Child lived together in Mexico, Mother did not make any effort to support, visit, or communicate with Child or Father. The earliest message from Mother to Child admitted at trial was dated November 8, 2016. When Mother first contacted Child through Father’s Facebook account on November 8, 2016, she asked for his address so she could send Child some gifts. Mother received the address several days later.  Shortly after Mother began her communications with Child, she made a plan to visit him later that month in Mexico. Before she left for Mexico, Mother did not advise Child or Father she was going to see Child in late November 2016. On or about November 28, 2016, Mother arrived in her former hometown in Mexico. At the time she arrived, Child was ten years old and a well-adjusted young boy who spoke only Spanish. Mother then asked Father if she could take Child to the United States to visit with her and her family. Father made it clear he would not consent to Mother taking Child outside of Mexico. However, after a visit to the local police station, Father did consent to Mother taking Child for a short visit with her to a beach in a nearby Mexican town, provided she return Child at a specified date, time, and location. Child also understood and agreed he would go on a short beach trip to get to know his Mother. Mother agreed to these very specific and limited terms. Contrary to her express agreement with Father, Mother took Child from Mexico to the United States without Father’s consent and without telling him they were leaving the country. Father immediately requested that she return Child as promised; however, Mother refused to do so. Unbeknownst to Father, Mother took Child to North Charleston, South Carolina. Shortly after their arrival, on or about December 8, 2016, Mother enrolled Child in fifth grade at Pinehurst Elementary in Charleston County School District One. Child began fifth grade on or about December 12, 2016. Mother did not list Father on the school’s registration form as the father of Child. Despite Father’s repeated requests through telephone calls and electronic messaging, Mother refused to provide her and Child’s address or any specific information about his wellbeing. Messages from Mother to Father during this time also indicate that she was willfully preventing Father’s contact with Child and taunting him when he asked to speak to his son.  Less than two months later, on January 28, 2017, Mother withdrew Child from Pinehurst Elementary and moved from North Charleston to Columbia, South Carolina.

          The Court found that a preponderance of the evidence did not support the finding that Child was well-settled and that application of this narrow defense was not warranted. See Alcala, 826 F.3d at 170.  Mother argued that Child was sufficiently mature to permit the Court to consider his objections to returning to Mexico. The Court concluded that, regardless of his actual maturity, Mother failed to present sufficient evidence for the Court to apply this narrow defense. Mother failed to present any evidence showing that Child had a particularized objection to living in Mexico sufficient for the Court to take his views into consideration. The Court held that Mother had not carried her burden in proving consent or acquiescence.

          The court stated that analyzing the affirmative defenses did not end the Court’s inquiry. Instead, “the courts retain the discretion to order return even if one of the exceptions is proven.” Miller v. Miller, 240 F.3d 392, 402 (4th Cir. 2001) (quoting Feder v. Evans-Feder, 63 F.3d 217, 226 (3d Cir. 1995)); see also Hague Convention art. 18 (”The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.”); Lozano v. Alvarez, 572 U.S. at 18 (Alito, J., concurring) (discussing factors relevant to the exercise of discretion). Exercising its discretion, even in the event one of the affirmative defenses were to apply, the Court concluded that equitable justifications warranted the Court’s exercise of its discretion to return Child to Mexico.

          This alternative holding was buttressed by the Court’s factual finding that Mother abducted Child. While Mother’s motives may not have been malicious, the consequences of her actions could be enormous. As the Supreme Court of the United States has noted, An abduction can have devastating consequences for a child. Some child psychologists believe that the trauma children suffer from these abductions is one of the worst forms of child abuse. A child abducted by one parent is separated from the second parent and the child’s support system. Studies have shown that separation by abduction can cause psychological problems ranging from depression and acute stress disorder to posttraumatic stress disorder and identity-formation issues. A child abducted at an early age can experience loss of community and stability, leading to loneliness, anger, and fear of abandonment. Abductions may prevent the child from forming a relationship with the left-behind parent, impairing the child’s ability to mature. Abbott v. Abbott, 560 U.S. 1, 21 (2010).

          The Court considered a number of factors in reaching its equitable decision. First, Mother had taken steps to sever Child’s relationship with Father, including not disclosing where Child was living, not allowing Child to have any regular contact with the Father, taunting Father about her possession of Child, and not allowing Father to meaningfully participate in Child’s life. Second, if Child remained in the United States, it would be virtually impossible for him to see Father ever again, at least until he reached the age of eighteen. Father was financially prohibited from coming to the United States to see Child or attend a custody hearing. Critically, Father did not have legal status to permit him to visit Child in the United States, while there are no legal prohibitions keeping Mother from visiting Child in Mexico.

          Finally, an order denying Father’s request to return Child would have the effect of sanctioning Mother’s unilateral action to abduct Child in violation of Mexican and international law. The evidence presented indicated Father only consented to Mother visiting with Child for a short, specified time period in Mexico. Mother admitted she agreed to these terms but then chose to ignore her agreement so she could take Child to another country where she knew Father could not travel. Put plainly, this was the exact type of behavior that the Hague Convention seeks to prevent.

          Mother argued that her actions were justified because Father was the first to take Child to another country without consent. However, courts have consistently rejected this same argument when faced with a parent who “re-abducts” a child instead of seeking redress under the Convention. See Moreno v. Zank, 895 F.3d 917, 924 (6th Cir. 2018) (characterizing re-abduction as a disregard for Convention and threat to a child’s well-being); see also Kijowska v. Haines, 463 F.3d 583 (7th Cir. 2006) (”To give a legal advantage to an abductor who has a perfectly good legal remedy in lieu of abduction yet failed to pursue it would be contrary to the Hague Convention’s goal of discouraging abductions by denying to the abductor any legal advantage from the abduction.”).

          An order refusing to return Child to his habitual residence would not only reward the Mother, it could motivate other parents attempting to settle a difficult family situation to resort first to self-help and the protections of a foreign country rather than seeking the aid of the local authorities. This Court could not allow Mother to take matters into her own hands and effectively minimize or even terminate Father’s relationship with Child by bringing him to the United States. Instead, the Court had to follow the dictates of the Hague Convention and the equitable considerations present in this case.

          Based on the foregoing, the Court alternatively concluded that equitable justifications warranted the Court’s exercise of its discretion in granting the Verified Petition and ordering the return of Child to Mexico.