Blackledge v.Blackledge, --- F.3d ----, 2017 WL 3298449 (3rd Cir., 2017) [Germany] [Habitual residence] [Petition denied]

In Blackledge v.Blackledge, --- F.3d ----, 2017 WL 3298449  (3rd Cir., 2017) the Third Circuit affirmed an order of the district court which denied the Petition of Charles Blackledge, a United States citizen who currently resided in Berlin, Germany, for the return of his then-eight-year-old son to Germany. 

J.B., a United States citizen, was born in the Ukraine in 2008 to Petitioner and Respondent Olga Blackledge, a Ukrainian citizen and lawful permanent resident of the United States who currently resided in Pittsburgh, United States. In the spring of 2011, Petitioner secured a job as a patent agent in Germany at about the same time Respondent was accepted to a Ph.D. program at the University of Pittsburgh. In the summer of 2013, after Respondent and J.B. had lived in Pittsburgh for two years, J.B. underwent cardiac surgery at the Children’s Hospital in Pittsburgh. Petitioner went to Pittsburgh to be with J.B. during his recuperation and to seek jobs in the United States. When those efforts proved fruitless, Petitioner decided to return to Germany and Respondent agreed to join him, both because she had agreed, before the initial move to Pittsburgh, to move to Germany for two years and because she was financially unable to support herself at that point. After the move, Respondent continued to pursue her Ph.D. studies at the University of Pittsburgh, remotely, and J.B. was enrolled in the J.F.K. School in Germany .In August 2015, when J.B. was seven years old, Respondent sought to return to Pittsburgh to complete the final phase of her Ph.D. program. By this point, according to both parties, the marriage had become acrimonious, and, according to Respondent, they had “agreed that [they would] divorce. Petitioner initially agreed that Respondent and J.B. would return to Pittsburgh, and they requested a one-year leave of absence for J.B. from the J.F.K. School. In Pittsburgh, J.B. attended second grade in the 2015-2016 school year and, according to his teacher, “performed as a wonderful second grader.” In February 2016, Petitioner initiated a series of emails with Respondent that formed the bulk of the record of the parties’ shared intent as to J.B.’s habitual residence. These began with Petitioner’s request that Respondent “confirm [her] commitment to our agreement” that J.B. would return to Germany for the 2016-17 academic year. Respondent did not deny the existence of an agreement but asked the Petitioner to “reconsider it,” explaining, “I do not think ... it is a good idea for a child [J.B.’s] age to live with one parent for a year, and with the other for a year”. That agreement, Respondent stated, “presupposes ... yearly adaptation to living with different parents [which] is psychologically disadvantageous” to J.B., and urged Petitioner to consider J.B.’s well-being, suggesting that Petitioner move “somewhere close” so that they could both “take care of [J.B.] on a permanent basis” and not “change [J.B.’s] permanent caregiver every year.” In response, Petitioner observed that Respondent had not expressed any concerns about J.B. “spend[ing] alternate years with us when the agreement was made.”  And while Petitioner acknowledged Respondent’s “concerns about stability of dwelling,” he explained that he did not “think there [we] re better options than maintaining [their] previous agreement,” which he characterized as: “[J.B.] would go with you to Pitt [sburgh] and return to me for 2016-2017 academic year. Then back to you ....”  In subsequent correspondence, Petitioner advised Respondent to “prepare [herself] for fulfillment of [the] agreement that [J.B.] returns to [Respondent] for 2016-2017,” reassuring her, “You’ll have him again in 2017,”  And in May, the parties again discussed the prospect of J.B. alternating years between his parents, with Petitioner documenting in his notes of their call that Respondent continued to oppose “any plan for [J.B.] to alternate between Germany and [the] USA,” because she believed that it “put [ ] too much pressure on [J.B.] to go back and forth” and “insist[ed] upon more consistency.” 

         While the dispute between the parties over J.B.’s long-term residency arrangements was ongoing, Respondent filed petitions for divorce and custody.  On July 6, 2016, Petitioner filed a petition in the United States District Court seeking J.B.’s return to Germany. The District Court held a two-day bench trial and entered an order denying the petition. The District Court calculated the retention date as August 2016.  The District Court correctly recognized that it was required to consider both the parents’ shared intent and the child’s acclimatization. As to shared parental intent, it concluded there was “no credible evidence” that the parties agreed that J.B.’s stay would be for a “specific duration.” And, considering evidence of J.B.’s activities and expectations up until the August retention date, the Court concluded that J.B. was acclimatized to Pittsburgh. 

The Third Circuit concluded that the proper retention date was July 6, the date petitioner filed his Hague Convention petition.  The Third Circuit held that the retention date is the date beyond which the noncustodial parent no longer consents to the child’s continued habitation with the custodial parent and instead seeks to reassert custody rights, as clearly and unequivocally communicated through words, actions, or some combination thereof. That determination is, by necessity, fact-intensive and will vary with the circumstances of each case. While in some cases the notice date and actual expiration date will coincide, in other cases the notice will indicate a future date as the date consent will be withdrawn, in which case that latter date, depending on the facts of the case, will constitute the expiration date and, hence, the retention date.

  In determining the retention date here, it concluded  that the District Court erred by looking solely to Petitioner’s original consent for J.B. to reside in Pittsburgh through August 2016 and failing to assess whether Petitioner’s subsequent communications, up to and including the filing of his Hague Convention petition, effected a withdrawal of that consent. Consistent with Karkkainen, it also rejected Petitioner’s argument in favor of a June 9, 2016 retention date, as that date reflected merely Petitioner’s notice of a possible expiration of consent on June 19, 2016. Distinguishing the facts in Karkkainen it noted that Petitioner only researched the possibility of purchasing a ticket; Respondent, not Petitioner, flagged a concern about “abduct [ion],” and Petitioner left open the possibility of further negotiations, stating after his demand email that he was “still waiting to hear anything more from the mediators.”  Under these circumstances, it concluded neither June 9 nor June 19 was the retention date, and in the absence of any earlier communication in which Petitioner clearly and unequivocally withdrew his prior consent and sought to reassert his custody rights, it held that consent expired and J.B. was therefore “retained” on the date Petitioner filed his Hague Convention petition, i.e., July 6.

       The Court explained that a child’s habitual residence is “the place where [the child] has been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child’s perspective.” Baxter v. Baxter, 423 F.3d 363, 368 (3d Cir. 2005) To assess whether a child’s habitual residence meets this threshold it analyzes both the child’s acclimatization and the “shared parental intent”—a factor that is relevant because “the child’s knowledge of [his parents’] intentions is likely to color [his] attitude to the contacts [he] is making” and “affect the length of time necessary for a child to become habitually resident or otherwise influence a child’s ability to acclimatize,” and, in addition, because it bears on the parents’ own intentions “regarding their child’s presence in a particular place.” Karkkainen, 445 F.3d at 292, 296.  As a general matter “courts will find no change in habitual residence” where the evidence of shared parental intent reflects that the “child’s initial move from an established habitual residence was clearly intended to be for a specific, limited duration.” Whiting v. Krassner, 391 F.3d 540, 549 (3d Cir. 2004). However, it has recognized an exception to this general rule where a move, though temporary, carries “a degree of settled purpose ..., even if such purpose is only for a limited period.”  The concept of “settled purpose,” does not require an intention “to stay ... indefinitely,” and may in fact be for a “limited period,” precipitated by various motivations, including “[e]ducation, business or profession, employment, health, family or merely love of the place.” Feder, 63 F.3d at 223-24. Regardless of the motivation for the location selected, or whether the stay was meant to be permanent or temporary, “[a]ll that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.” 

  As to the relative weight given the parents’ shared intent and the child’s acclimatization, the Court has held that when a child is very young, he “cannot possibly decide the issue of residency,” and the parents’ shared intent is, thus, “of paramount importance,” while acclimatization is secondary, Karkkainen, 445 F.3d at 296. However, once a child is old enough “to develop a certain routine and acquire a sense of environmental normalcy,” acclimatization becomes the central inquiry. Whiting, 391 F.3d at 550-51. Although it has not fixed the age when acclimatization takes on this greater significance, and it necessarily will vary depending on the maturity and cognitive and social abilities of the child in question, it has recognized that a typical four-year-old child “certainly has this ability” because he is “able to develop a certain routine and acquire a sense of environmental normalcy” and is “not only aware of those around him, but is able to form meaningful connections with the people and places he encounters each day.” At that point, because the child has “reached an age where [he is] capable of becoming firmly rooted in a new country,” it attaches greater significance to acclimatization and give “less weight to shared parental intent.” Karkkainen, 445 F.3d at 296.
  The District Court declined to apply the presumption that there is, ordinarily, no change in habitual residence when the child’s move is for a “specific, limited duration” because it found that there was “no credible evidence” that the parties had an agreement that J.B.’s stay in Pittsburgh would be for a “specific duration.” It agreed with Petitioner that this finding was clearly erroneous, given the evidence that there was such an agreement. But because that evidence overwhelmingly demonstrated the parties intended J.B.’s residence in Pittsburgh, albeit of specific, limited duration, to carry “a degree of settled purpose,” Whiting, 391 F.3d at 549, it nonetheless concluded that the “shared parental intent” factor favored the United States as J.B.’s habitual residence.

The Court could not agree with the District Court that there was no credible evidence that the parties had agreed J.B.’s stay in Pittsburgh was intended to be for a specific duration.  Although the District Court was correct that the parties’ emails stop short of identifying a date certain that was originally agreed for J.B.’s return, or similarly “specific terms of the agreement,” they made clear that the parties intended J.B.’s stay in Pittsburgh to be of a “specific, limited duration,”  Notwithstanding such error, “we may affirm on any grounds supported by the record,” and “[w]hen the outcome is clear as a matter of law ... remand is not necessary,” Mahmood v. Gonzales, 427 F.3d 248, 253 (3d Cir. 2005). Here, it concluded such an outcome was clear as a matter of law because this case was on all fours with its decision in Whiting v. Krassner, 391 F.3d 540 (3d Cir. 2004).  Here it was evident that J.B.’s move to the United States, although of limited duration, was intended by both Petitioner and Respondent to be accompanied by a degree of “settled purpose.” The record reflected that J.B. moved to Pittsburgh in August 2015 for the purpose of assuming a full and normal life of an eight-year-old boy during the intended period of his stay, making long-term friends and plans, developing routines and a sense of environmental normalcy, exploring his city and other parts of the Commonwealth, and putting down roots, not only for the 2015-2016 school year, but also, per the parents’ express agreement, for future alternating years, interspersed with the years he would be living with Petitioner in Germany. Under these circumstances, as in Whiting, the fact that the parties understood that J.B. would return to Germany “d [id] not in any way diminish ... the parties’ settled intention” that he was to remain in the United States for at least a year, settling into a normal routine, and the fact that J.B.’s stay was intended to be of a limited duration “in no way hinder [ed]” a finding that the United States was his habitual residence during that time. 

The Court emphasized that the parents’ shared intent as to the custody arrangement between them is probative—but not dispositive—in the determination of habitual residence. It views a parental agreement that a child will split time between the parents’ countries of residence as a significant consideration, but as one among others, informing the “necessarily fact-intensive and circumstantially based” inquiry a court must undertake to determine whether a child’s move was accompanied by a “degree of settled purpose.” Undertaking that inquiry here, it considered, in addition to the other record evidence discussed above concerning the parents’ shared expectations for J.B.’s move to Pittsburgh in 2015, the parents’ agreement that J.B. would “alternate between Germany and [the] USA” going forward, and, hence, that J.B. would be returning to Germany for only a single academic year before resuming his residence in Pittsburgh for the 2017-2018 year. In view of that agreement and the totality of the record in this case, was apparent that J.B.’s 2015 move to Pittsburgh was accompanied, through at least the July 6, 2016 retention date, by the requisite “degree of settled purpose” and that the element of shared parental intent thus supports the United States as J.B.’s then-habitual residence.10 Whiting, 391 F.3d at 549. The evidence of J.B.’s acclimatization to Pittsburgh as of July 6, 2016 was overwhelming. He had a tremendously successful academic year. The record demonstrated that J.B. was sufficiently mature to form “meaningful connections with the people and places he encounter[ed]” in Pittsburgh. and “ha[d] attained a sufficient degree of continuity to be properly described as settled,”  Given the extensive record evidence of J.B.’s success in school, his participation in various activities and sports, his many friendships, his experiences at cultural, entertainment, and sporting events, and his own stated preference for the United States, to which the District Court afforded “significant weight” because of “the degree of maturity and situational awareness” J.B. exhibited,  the District Court did not clearly err in its fact-finding related to J.B.’s acclimatization, nor did it commit legal error in its determination that J.B. was acclimatized to the United States at the time of retention.

  Because the parents’ shared intent was for J.B. to move to the United States with a “degree of settled purpose,” and because J.B. had acclimatized to the United States by the date of retention, it agreed with the District Court’s holding that the United States was J.B.’s habitual residence immediately prior to the retention date and that the retention therefore was not wrongful under the Hague Convention. 

Ahmed v Ahmed, 2017 WL 3497411 (6th Cir., 2017) [United Kingdom] Habitual Residence] [Petition denied]

         In Ahmed v Ahmed, 2017 WL 3497411 (6th Cir., 2017) the Father Faisal Ahmed claimed that his wife, Mardia Mohsin Ahmed wrongfully retained their daughters in Knoxville, Tennessee, from the infants’ habitual residence in the United Kingdom, and filed a petition for their return. The district court held that he failed to establish that the the United Kingdom was the children’s habitual residence at the time Mrs. Ahmed retained them. The Sixth Circuit affirmed.  

Mr. Ahmed was a citizen of the United Kingdom and resided in London. Mrs. Ahmed was a United States citizen and resided in Knoxville, Tennessee. The couple married in Bangladesh in December 2009. At the time, Mr. Ahmed lived in London and Mrs. Ahmed was an optometry student in Michigan. After the wedding, Mrs. Ahmed remained in Michigan to complete her studies. Mr. Ahmed visited periodically from London. In August 2011, Mrs. Ahmed moved to London to live with her husband. She obtained a visa, began working, and took steps to become licensed to practice optometry in the United Kingdom. Mrs. Ahmed returned to the United States in December 2011 for additional training needed to practice optometry in the United Kingdom. Mrs. Ahmed did not return to London until August 2013, which she considered a permanent move. That October she applied for Indefinite Leave to Remain (“ILR”) in the United Kingdom, stating in the application that she had considered London her permanent home for the previous two years. Mrs. Ahmed received her ILR the next year. In February 2014, Mrs. Ahmed became pregnant and was put on bed rest by her doctor for months. In April, she registered for an exam required to practice optometry in the United Kingdom. The couple had a bitter argument in May 2014. Mrs. Ahmed then traveled to Knoxville, where she had lived previously. Mrs. Ahmed maintained she did not plan to return. She contended that she did not return to the United Kingdom because of her high-risk pregnancy and the acrimony in her marriage. Mr. Ahmed traveled to Knoxville in October 2014 on a three-month visa in anticipation of the birth of their children. November 2014, Mrs. Ahmed gave birth to twins in Knoxville. After a few days, the family moved into a local apartment, where Mr. Ahmed cared for the children as his wife recovered from childbirth. 

         In January 2015, Mr. Ahmed’s visa expired and he returned to London. Mrs. Ahmed insisted she told Mr. Ahmed then that she intended to remain in the United States with the children indefinitely. Mrs. Ahmed moved with the children to her parents’ home in Knoxville, where they live today. The children received medical care in Knoxville from birth until May 2015. Mr. Ahmed returned to the United States in April 2015. The next month, the entire family traveled to the United Kingdom. Once there, they moved into Mr. Ahmed’s parents’ home for one or two months. Mrs. Ahmed asserted that she left Knoxville “for a short summer visit” “to see if [their] marriage was going to work.” Mr. Ahmed believed this to be a permanent move. Mrs. Ahmed traveled on a round-trip ticket with a return scheduled for November 2015. Mrs. Ahmed states she left her valuables in Knoxville, including her optometry instruments, jewelry and diplomas. Mr. Ahmed insists that his wife took nearly everything important to London. Mrs. Ahmed’s friend testified that Mrs. Ahmed planned to return to Knoxville to live, and the children’s medical records from May 2015 reflect appointments for that fall. Mrs. Ahmed did not sell her car or cancel her auto insurance in the United States, retained American medical insurance for herself and the children, renewed her Tennessee optometry license and professional liability insurance, and paid her Tennessee professional privilege tax before leaving for London. Once in London, however, Mrs. Ahmed took the exam required to practice optometry in the United Kingdom. She also registered the children with the National Health Service and took them for a check-up in London. In July 2015, Mrs. Ahmed traveled with the children to a wedding in Bangladesh. Their tickets indicated they were scheduled to return to London on August 5. Mrs. Ahmed claimed she told her husband upon leaving London that she would not return. Mr. Ahmed claimed he did not learn her plans until August 4, when she flew to Knoxville with the children.

In March 2016, Mr. Ahmed filed this action in the district court. The district court denied Mr. Ahmed’s petition for return. The Sixth Circuit noted that the question of which standard should be applied in determining a child’s habitual residence under the Hague Convention is one of law, and is reviewed de novo. But the determination of habitual residence is “one of fact, and is reviewed for abuse of discretion.” It reviews underlying legal conclusions de novo and factual findings for clear error. “Under the clear-error standard, we abide by the court’s findings of fact unless the record leaves us with the definite and firm conviction that a mistake has been committed.” The only issue on appeal was whether Mr. Ahmed had shown by a preponderance of the evidence that the United Kingdom was their habitual residence on August 4, when she traveled from Bangladesh to the United States.

           The district court concluded that it was bound by circuit precedent to apply the “acclimatization standard” to determine the children’s habitual residence under the Hague Convention. Under this standard, “a court should consider 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.” Simcox, 511 F.3d at 602 “[A]cademic activities” are “highly suggestive of acclimatization” and “social engagements, participation in sports programs and excursions, and meaningful connections with the people and places in the ... country all point to the child being acclimatized.” Jenkins v. Jenkins, 569 F.3d 549, 556 (6th Cir. 2009). Because the children were infants, however, its analysis boiled down to a simple comparison between the length of stay in each country—six months in the United States and seven to eight weeks in the United Kingdom. The district court concluded the latter was insufficient to establish a habitual residence and thus denied Mr. Ahmed’s petition. At the same time, the court noted the infants’ inability to partake in “school, sports or other extra-curricular activities, or meaningful friendships.” The district court devoted most of its analysis to any shared parental intent between the Ahmeds and made factual findings under that standard. In sum, the district court found “no settled mutual intent during the children’s lives and much of Mrs. Ahmed’s pregnancy.” 

           The Sixth Circuit considered the parties settled mutual intent in disposing of Mr. Ahmed’s petition. It observed that it generally preferred the acclimatization standard because it serves one of the main purposes of the Hague Convention: ensuring a child is not kept from her family and social environment. This ceases to be a concern, of course, if a child never forms such ties or is incapable of doing so. It did not reach the issue of especially young children in Friedrich I. Consequently, incorporating the shared parental intent standard in cases concerning especially young children would mean addressing a gap, not overturning precedent. The most compelling reason for applying the settled mutual intent standard is the difficulty, if not impossibility, of applying the acclimatization standard to especially young children. The period a child spends in a given location is but one component of acclimatization. Not only must the child have “been present long enough,” but he or she must have developed a “degree of settled purpose [there] from [her own] perspective.” What a child does in a country and how she feels about it are as important as the length of her stay there. As a result, virtually all children who lack cognizance of their surroundings are unable to acclimate, making the standard generally unworkable. It held that it is appropriate to consider the shared parental intent of the parties in cases involving especially young children who lack the cognizance to acclimate to any residence. This is not a bright-line rule, and the determination of when the acclimatization standard is impracticable must largely be made by the lower courts, which are best positioned to discern the unique facts and circumstances of each case. It made no changes to the acclimatization standard itself, which lower courts should continue to apply in accordance with its precedent.
 Beginning with the acclimatization standard, the district court properly found that the twins’ seven-to-eight-week stay in the United Kingdom hardly allowed them to acquire a “degree of settled purpose” there. As infants, they were unable to do so anywhere when Mrs. Ahmed traveled with them to the United States in August of 2015. The conclusion that the acclimatization standard is unworkable with children this young then requires consideration of any shared parental intent to determine if Mr. Ahmed has shown that the United Kingdom was the children’s habitual residence when they were retained. The district court’s factual findings showed that Mr. Ahmed has failed to carry his burden under the shared parental intent standard. He relied on the court’s finding of the couple’s settled mutual intent to live in the United Kingdom in the fall of 2013, before the twins were conceived. But what matters is where the Ahmeds intended the children to live. Nicolson, 605 F.3d at 104; Gitter, 396 F.3d at 133, 135; Feder, 63 F.3d at 224. There was no error in the district court’s findings of fact as to the Ahmeds’ lack of shared intent as to their children’s residence. The district court’s detailed factual findings established that the Ahmeds’ mutual intent for where their children would live was either unclear or absent from the time the children were conceived until Mrs. Ahmed retained them. Accordingly, Mr. Ahmed had not proven by a preponderance of evidence, under either standard, that the United Kingdom was the children’s habitual residence when Mrs. Ahmed traveled with them to the United States in August of 2015.

Cartes v Phillips, --- F.3d ----, 2017 WL 3141036 (5th Cir, 2017) [Paraguay] [Petition granted] [Habitual residence]

  In Cartes v Phillips, --- F.3d ----, 2017 WL 3141036 (5th Cir, 2017) Sebastian Cartes, the father of a three-year-old girl, O.C.P., petitioned to order Lisa Phillips, O.C.P.’s mother and Cartes’s wife, to return O.C.P. to Paraguay, where she had lived with both Cartes and Phillips from October 2015 to October 2016. 

       Cartes, a U.S. citizen who grew up in Paraguay, and Lisa Phillips, a U.S. citizen, met in California in 2012 and married there in February 2013. Their daughter, O.C.P., was born in California on September 23, 2013. Cartes and Phillips’s marriage was marked by drug use (Cartes’s), sickness (O.C.P.’s), and frequent travel and relocation. Neither Cartes nor Phillips had a job; they relied almost exclusively on Cartes’s mother Sarah, the sister of Paraguay’s current president, to pay their expenses. One month after O.C.P. was born, the family moved to Houston, where Phillips’s parents live. The family lived there for about two years. When Cartes wasn’t in rehab, the family lived together until September 2014, when Phillips and O.C.P. moved out and separately rented an apartment. From June through September 2015, Cartes and Phillips looked for apartments to rent in California. 

          Cartes testified that sometime in the spring of 2015, he moved to Paraguay without Phillips and O.C.P. to live there more permanently. He returned to the United States in early September to collect the rest of his things. At this time, he and Phillips talked about divorce. Cartes consulted with two divorce lawyers and sent Phillips an email telling her that he was leaving for Paraguay without her. At the district court’s bench trial, Cartes admitted that “at that time what was going through [his] mind [wa] s ... going back to Paraguay and ending [their] marriage.” He “wasn’t thinking at the time of ... [his] wife and child—or where they would live.”  A month later, on October 18, 2015, Phillips and O.C.P. flew to Paraguay. According to Cartes, before Phillips and O.C.P. arrived in Paraguay, he and Phillips “had several conversations about the possibility of going to live in Paraguay [for] employment, the financial future of [their] family, [and] the fact that [they] would have assistance with [their] daughter [from] nannies, parents and so on.” According to Phillips, however, she and O.C.P. weren’t moving to Paraguay. Rather, they wanted to be there when Phillips’s sister-in-law gave birth to Phillips’s nephew (O.C.P.’s cousin). Before leaving Houston, Phillips renewed the lease for her apartment. While in Paraguay, Phillips and O.C.P. traveled back to the United States at least twice. O.C.P. continued to have American health insurance and saw doctors in the United States. Similarly, Phillips maintained American health insurance for herself and Cartes. She also kept a car in Houston and paid her car insurance regularly while she was in Paraguay. But Cartes testified that he and Phillips also decided to develop O.C.P.’s connection to Paraguay. For example, the two decided that O.C.P. would attend a Paraguayan preschool, and school records reflected that she regularly attended.

  Cartes also testified that although he and Phillips fought frequently, they “always intend[ed] to reconcile.” According to Cartes, “[Phillips] agreed that she wouldn’t be as happy anywhere else and that she would be fine and happy there and that [Paraguay] was also her home.” Cartes reiterated that Phillips agreed that Paraguay “would always be” both her and O.C.P.’s “home” or “base.” Text messages between Cartes and Phillips illustrated that Phillips described Paraguay as “home.”  On October 23, 2016, Phillips decided to leave Paraguay, and she flew back to Houston with O.C.P. October 24. On December 1, 2016, Cartes filed a petition for O.C.P.’s return to Paraguay. On March 6, 2017, the district court ruled in favor of Cartes, finding that Paraguay was O.C.P.’s habitual residence and that Phillips had wrongfully removed her to the United States. 
The Fifth Circuit affirmed. It rejected Respondents argument that the district court applied the wrong legal standard because the district court did not point to any “explicit meeting of [Cartes’s and Phillips’s] minds to abandon the United States” as O.C.P.’s habitual residence before they traveled to Paraguay in October 2015. Phillips was correct that the “threshold” inquiry under its approach is whether “both parents intended for the child to abandon the habitual residence left behind.” Berezowsky, 765 F.3d at 578. However, that the district court did not legally err. The district court quoted circuit authority recognizing abandonment as the threshold inquiry and analyzed the parties’ positions in light of these references. It also rejected Respondents argument that it nonetheless factually erred by finding that Cartes and Phillips jointly intended to make Paraguay O.C.P.’s habitual residence before Phillips and O.C.P. returned to the United States. The district court’s habitual-residence finding that Cartes and Phillips were “determined to make a home for themselves and their minor child” in Paraguay was not “implausible” and thus not clearly erroneous. See Berezowsky, 765 F.3d at 466 & n.7. The record supported Cartes’s testimony, on which the district court heavily relied, that despite discord, he and Phillips agreed Paraguay would be O.C.P.’s habitual residence. Cartes also testified that during certain periods of reconciliation—specifically June, July, and August of 2016—he told Phillips that he wanted O.C.P. to live in Paraguay permanently and that Phillips agreed Paraguay “would always be” home to both her and O.C.P. See id. at 468 (“[S]hared parental intent requires ... the parents [to] reach some sort of meeting of the minds regarding their child’s habitual residence, so that they are making the decision together.”). Text messages between Cartes and Phillips supported the district court’s decision to credit Cartes’s version of events. 

           The Court observed that parents’ shared intent about their child’s habitual residence does not—and need not—always coincide with the child’s initial change in location. Sometimes, “the family as a unit has manifested a settled purpose to change habitual residence ... when both parents and the child translocate together under circumstances suggesting that they intend to make their home in the new country.” Mozes v. Mozes, 239 F.3d 1067, 1076-77 (9th Cir. 2001). In other cases, a parent may have “earlier consented to let the child stay abroad for some period of ambiguous duration [, but] circumstances surrounding the child’s stay are such that, despite the lack of perfect consensus, the court finds the parents to have shared a settled mutual intent that the stay last indefinitely.” Accordingly, it could not say that the district court’s finding of habitual residence was implausible in light of the record as a whole.

The Fifth Circuit agreed with Phillips that the district court erred by excluding evidence of emails between Cartes and various real estate agents in California. It noted that its approach to determining a child’s habitual residence is a subjective test requiring district courts to ascertain “parents’ intent or settled purpose” about their child’s home. With typical Convention cases between estranged spouses, it has encouraged courts to consider not only the parties’ testimony, but also, more generally, “all available evidence.” Because the threshold for relevance is “low,” Hicks-Fields v. Harris Cty., 860 F.3d 803, 809 (5th Cir. 2017), documentary evidence tending to corroborate testimony about the parties’ shared intent is likely to be relevant in most Convention cases. But any error in this case was harmless. 

Cunningham v Cunningham, --- Fed.Appx. ----, 2017 WL 3867813 (Mem) (11th Cir., 2017)[Japan][Petition granted]

In Cunningham v Cunningham, --- Fed.Appx. ----, 2017 WL 3867813 (Mem) (11th Cir., 2017) after custody disputes in Florida state court led to Mr. Cunningham’s mother, Glenda Cunningham, obtaining physical custody of the minor child, and Mrs. Cunningham’s then abrupt departure from the United States to Japan, Mrs. Cunningham a verified petition for the return of her child pursuant to the Hague Convention to have the child returned to Japan. The district court concluded that the child’s habitual residence—before Mr. Cunningham and his mother retained the child—was Japan, that the child had been wrongfully retained in the United States, and that the child should return to Japan. The district court also concluded that Mr. Cunningham had failed to prove his affirmative defenses, finding that Mr. Cunningham did not establish that Mrs. Cunningham acquiesced to the child’s residence in the United States, that the child would be subject to a grave risk of harm if it were to return to Japan, or that the child was well-settled in the United States. Mr. Cunningham and his mother now appeal. The 11th Circuit affirmed.  It observed that a district court’s determination of a child’s habitual residence under the Hague Convention is reviewed as a mixed question of law and fact, so underlying factual determinations are reviewed for clear error and the application of legal principles to the facts are reviewed de novo. See Ruiz v. Tenorio, 392 F.3d 1247, 1251–52 (11th Cir. 2004). A district court’s rulings as to a respondent’s affirmative defenses under the Convention are similarly reviewed under a mixed standard of review. See Seaman v. Peterson, 766 F.3d 1252, 1258, 1261–62 (11th Cir. 2014) (applying a mixed standard of review in a case involving a grave risk of harm defense).” It affirmed for the reasons set forth in the district courts order.

The New York Matrimonial Trial Handbook, by Joel R. Brandes

The New York Matrimonial Trial Handbook was written for both the attorney who has never tried a matrimonial action and for the experienced litigator. It is not a treatise. It is a “how to” book for lawyers. This 800 page handbook is a companion work to Law and the Family New York, 2d (Thomson Reuters Westlaw), which contains extensive coverage of the substantive and procedural law related to matrimonial actions and family court proceedings. 

The New York Matrimonial Trial Handbook focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a matrimonial action.  It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial.  The handbook deals extensively with the testimonial and documentary evidence necessary to meet the burden of proof.  There are thousands of suggested questions for the examination of witnesses at trial to establish each cause of action and requests for ancillary relief, as well as for the cross-examination of difficult witnesses.

The  New York Matrimonial Trial Handbook, by Joel R. Brandes will be in  bookstores and available on line in  October 2017.   Click on the title for more information about the contents of the book.  Click on this link for the complete table of contents.

If you would like to be notified when The New York Matrimonial Trial Handbook is on sale send an email to joel@nysdivorce.com with the words “notify me” in the subject line and your email address. The anticipated publication date is October, 2017.

Oliver A v Diana Pina B, --- N.Y.S.3d ----, 2017 WL 2467202, 2017 N.Y. Slip Op. 04548 (1st Dept., 2017) [Norway][Grave Risk of Harm][Petition denied]

In Oliver A v Diana Pina B, --- N.Y.S.3d ----, 2017 WL 2467202, 2017 N.Y. Slip Op. 04548 (1st Dept., 2017) the parties were married in New York in 2009, and their two children were born in Norway in 2010 and 2012. The family lived in Norway and also spent months at a time living in the maternal grandmother’s apartment in New York. In 2013, after the mother was directed to leave Norway, the parties sold much of their personal property and their car, and went to the Dominican Republic. They then went to New York and stayed with the maternal grandmother. In about March 2014, the father returned to Norway to look for an apartment and job, with the expectation that the mother would follow with the children. In court, the parties both confirmed their understanding that the mother would return to Norway with the children when he was settled. However, the mother testified that, following a long history of domestic violence, including a choking incident in February 2014 where the police were called she determined not to return to Norway and told the father she would not return.  In April 2015, the father filed a petition for the return of the children pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. 

The Appellate Division observed that a petition will be denied if the parent opposing return of a child establishes “by clear and convincing evidence” the exception set forth in article 13b of the Convention (22 USC § 9003[e][2][A] )—namely, that “there is a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation” (Hague Convention art 13 [b] ). It noted that the determination of a child’s “habitual residence” requires inquiry into the “shared intent” of the parents “at the latest time that their intent was shared,” taking into account the parents’ “actions [and] declarations,” as well as “whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent” (Mota, 692 F3d at 112, quoting Gitter v.. Gitter, 396 F3d 124, 134 [2d Cir2005] ). 

Although the record supported Family Court’s determination that the parties’ last shared intent was to return to Norway, the court did not consider the mother’s evidence that the children had been acclimatized to New York, and whether that evidence trumped the parents’ shared intent (see also Hofmann v. Sender, 716 F3d 282 [2d Cir2013] ). It concluded that the mother met her burden to show, by clear and convincing evidence, that the children’s return to Norway would result in a grave risk of harm to them (Blondin v. Dubois, 189 F3d 240, 245 [2d Cir1999] ). The mother presented detailed testimony of multiple acts of domestic abuse towards her by the father, at times in the presence of the parties’ children. She also presented corroborating evidence, including the testimony of the maternal grandmother, who witnessed two of the violent incidents, including the February 2014 incident, and testified to visible signs of injury to her daughter, which was also noted in a Domestic Incident Report. The mother also submitted copies of text messages sent by the father threatening the mother’s life. She further showed that the father had a propensity for violent abuse, as demonstrated by his violent acts, jealous rages, and, on at least two instances, forceful treatment toward the older daughter (see Ermini v. Vittori, 758 F3d 153, 164–165 [2d Cir2014]; Souratgar v. Lee, 720 F3d 96, 104 [2d Cir2013]; Blondin, 189 F3d at 247). The mother presented evidence that the nature of the abuse was such that it would inevitably resume if the parties were reunited. The father acknowledged that the parties fought over the mother’s infidelity, but broadly denied the mother’s claims, other than admitting to pushing or grabbing the mother to restrain her. His testimony, however, was entirely uncorroborated. The mother further presented evidence that, as a noncitizen of Norway, there would be minimal, if any, domestic violence resources available to her if she were to move there with the children, and that, due to her immigration status, she would not be allowed to live there for more than 90 days.

Cohen v Cohen, --- F.3d ----, 2017 WL 2453777 (8th Cir.2017) [Israel][Habitual residence][Petition denied]

         In Cohen v Cohen, --- F.3d ----, 2017 WL 2453777 (8th Cir.2017 ) the 8th Circuit affirmed the district court’s denial of Yaccov Cohen’s petition for return . Yaccov Cohen and Ocean Cohen were the parents of O.N.C., who was born on December 6, 2009 in Israel. During the first three years of O.N.C.’s life, the Cohens lived together as a family in Israel. Between 2010 and 2011, Yaccov served approximately one year in jail on various criminal charges. Shortly after Yaccov’s release, Ocean and two of her brothers discussed the possibility of her family moving to St. Louis to join them. However, Yaccov was subject to a Stay of Exit Order placed on his visa that prevented him from leaving Israel until he paid his accumulated debt, which included criminal fines, penalties, and restitution payments. Yaccov and Ocean decided that Ocean and O.N.C. would move to St. Louis, and that once there Ocean would work to help Yaccov pay off his debt so he could join them. Ocean testified that they intended to move permanently to the United States, while Yaccov testified that they intended to move for a period of three to five years. To prepare for the move, Yaccov and Ocean went to the United States Embassy together to submit naturalization paperwork for O.N.C. In December 2012, Ocean and O.N.C. traveled to St. Louis. Ocean promptly enrolled O.N.C. in school and speech therapy, found O.N.C. a pediatrician, and secured employment. Ocean purchased a vehicle, obtained a driver’s license, and eventually rented an apartment. As arranged, Ocean sent money to Yaccov to help pay off his debts. In May 2013 and April 2014, Ocean and O.N.C. visited Yaccov in Israel for approximately two weeks each time. During the April 2014 visit, it became apparent that the marriage was deteriorating. Shortly before Ocean and O.N.C. were scheduled to return to St. Louis, Yaccov asked a lawyer to draft a “travel agreement” requiring Ocean and O.N.C. to return to Israel if Yaccov remained unable to join them in St. Louis within six months. Ocean signed the agreement after adding a clause requiring Yaccov to “stay away from crime and not get into trouble.” If he breached this condition, Ocean and O.N.C. would not be obligated to return to Israel at the end of the six-month period. In August 2014, Yaccov was arrested for driving without a valid license. In July 2014, Ocean filed for divorce in St. Louis County. The St. Louis County Circuit Court entered a default judgment granting the divorce in March 2015, giving Ocean sole custody of O.N.C. and Yaccov supervised visitation. In September 2015, Yaccov filed a complaint requesting O.N.C.’s return under the Convention.

          The 8th Circuit observed that habitual residence is determined as of the time “immediately before the removal or retention” and depends on “past experience, not future intentions.” Silverman v. Silverman, 338 F.3d 886, 897-98 (8th Cir. 2003) Habitual residence encompasses some form of settled purpose but only requires that the familyhave a sufficient degree of continuity to be properly described as settled. However, this settled purpose need not be to stay in a new location forever. The Eighth Circuit determines settled purpose from the child’s perspective, although parental intent is also taken into account. That said, parental intent need not be completely clear, and one spouse harboring reluctance during a move does not eliminate the settled purpose from the child’s perspective. In addition to settled purpose and parental intent, relevant factors include the change in geography, the passage of time, and the acclimatization of the child to the new country.Stern v. Stern, 639 F.3d 449, 451 (8th Cir. 2011). It held that the district court did not err in finding that O.N.C.’s habitual residence was the United States. From O.N.C.’s perspective, his move to the United States resulted in a sufficient degree of continuity to be properly described as settled. The record supports that the alleged wrongful retention occurred either in July 2014, when Ocean filed for divorce, or in October 2014, when the six-month period under the travel agreement expired. At either of these junctures, O.N.C. had been living in the United States for almost two years—a significant portion of his young life. From his perspective, his family had moved to the United States indefinitely and established a home there, and he maintained considerable connections to his environment. O.N.C.’s mother obtained employment, purchased a vehicle, and rented an apartment for the family. O.N.C. attended school and speech-therapy classes, had a pediatrician, socialized with friends, and had extended family in the area. During the relevant time period, he primarily spoke English and participated in activities at his local Jewish Community Center. At the same time, little evidence established O.N.C.’s connection to Israel. In sum, O.N.C. experienced “a clear change in geography” and had acclimated to life in the United States. Moreover, the parents’ intent supported this conclusion. Both Yaccov and Ocean intended to move O.N.C. to the United States for at least three to five years, if not indefinitely. They applied together for O.N.C.’s U.S. citizenship and planned for Ocean and O.N.C. to settle in St. Louis and establish a home there until Yaccov could join them. In furtherance of this plan, Ocean established a life in St. Louis—all the while sending money to Yaccov in an effort to enable him to join his family. Both parties understood that O.N.C. would be without Yaccov for a significant period of time and that Ocean would establish a home in his absence.

         The parties disputed the circumstances under which Ocean signed the travel agreement, but Yaccov did not seek to enforce the agreement. Rather, he offered it only for the purpose of demonstrating parental intent. The 8th Circuit noted that even if Yaccov had sought to enforce the agreement, parents cannot establish the child’s habitual residence by contract. Barzilay v. Barzilay, 600 F.3d 912, 920 (8th Cir. 2010). The 8th Circuit agreed with the district court that Yaccov had not demonstrated by a preponderance of the evidence that O.N.C.’s habitual residence was Israel.