Pennacchia v Hayes, 2016 WL 4059246 (D. Idaho,2016) [Italy] [Habitual residence] [Petition denied]

In Pennacchia v Hayes, 2016 WL 4059246 (D. Idaho,2016) SAPH was born in Seattle, Washington on August 24, 2010. In October of 2010, after SAPH’s birth, the parties decided that Ms. Hayes and SAPH would travel with Mr. Pennacchia to his home in Anagni, Italy to try and live as a family. Petitioner argued the parties’ intention was to move to and live in Italy as a family and, therefore, SAPH’s habitual residence was Italy because that is where she had lived from the time she was two months old, attended preschool, and is where the locus of her family and social environment had developed for the majority of her life. Respondent argued that she agreed to live with the Petitioner in Italy during her year of maternity leave but that it was a “trial basis” and a “conditional stay” that could be terminated if the parties’ relationship did not work out. The District Court denied the petition finding that Seattle was the childs habitual residence. In Mozes, 239 F.3d at 1074 the Ninth Circuit instructs that where, as here, the child at issue has “not yet reached a stage in their development where they are deemed capable of autonomous decisions as to their residence,” the appropriate inquiry is the subjective intent of the parents. Thus, the Court will “look for the last shared, settled intent of the parents.” After taking into account the shared, settled intent of the parents, the Court then asks whether there has been sufficient acclimatization of the child in the new country to trump that intent. Mozes, 239 F.3d at 1074.  Before traveling to Italy in October of 2010, Ms. Hayes made several arrangements and executed many documents evidencing her intention was that SAPH’s habitual residence was the United States. Following SAPH’s birth, Ms. Hayes executed a will and opened a college savings plan for SAPH under Section 529 of the Internal Revenue Code. Ms. Hayes prepared paperwork to appoint guardians for SAPH in the United States. Ms. Hayes presented the document to Mr. Pennacchia who agreed to and signed the paperwork appointing the United States guardians. Ms. Hayes also obtained a United States passport for SAPH, private United States medical insurance, a Social Security account, and listed SAPH as her dependent on her United States taxes. The Respondent took other actions that demonstrate her own intention was to remain a resident of the United States. She consistently maintained a home, vehicle, bank accounts, credit cards, driver’s license, and health care all in the United States. In addition, the Respondent paid taxes and voted in the United States and traveled on a United States passport. These actions only established the Respondent’s residence, not SAPH’s. However, they were indicative of the Respondent’s intentions concerning her own permanent residence and, naturally, her intentions as to SAPH’s place of habitual residence. It is reasonable to infer the Respondent’s intention was for her infant child to be a habitual resident of the same country that she too called home. The Court found Petitioner failed to prove, that the parties’ intention was for SAPH’s habitual residence to be Italy. Instead, the Court finds the evidence proves that SAPH’s habitual residence was and is the United States. cases where there is no shared, “settled intention,” a country may be deemed a child’s habitual residence if unequivocal and objective facts prove the child has acclimatized to the new country to a degree that the Court could “say with confidence that the child’s relative attachments to the two countries have changed to the point where requiring return to the original forum would now be tantamount to taking the child ‘out of the family and social environment in which its life has developed.’ The Court found the evidence did  not show that SAPH has acclimated to Italy such that her habitual residence has changed from the United States. Petitioner offered only very limited evidence of SAPH’s Italian influences or her acclimatization. The Respondent came forward with compelling, credible evidence that SAPH’s habitual residence was, and remained, the United States during their time in Italy. While in Italy, SAPH attended a trilingual school where she was known as the “American Girl,” celebrated the Fourth of July and, for nine months, had an American-English speaking nanny. SAPH traveled to the United States frequently and for extended stays with her American family and friends. These strong cultural ties to the United States demonstrated that despite her residing in Italy for large portions of the year, she retained her original habitual residence in the United States.

Toufighjou v Tritschler, 2016 WL 3883193 (M.D. Florida, 2016) [Canada] [Defense of Consent Not Established] [Petition granted]

In Toufighjou v Tritschler, 2016 WL 3883193 (M.D. Florida, 2016) Toufighjou (father) and Tritschler (mother) were residents of Canada and had a three year old child, A.R.T. In July of 2015, both Toufighjou and Tritschler signed paperwork for A.R.T. to attend a daycare program in Florida. On August 2, 2015, Toufighjou went on a short vacation to the Canadian side of Niagara Falls, which was to end on August 6, 2015. On August 5, 2015, Tritschler informed Toufighjou that she would be going to a friend's home for a few days. Toufighjou soon discovered that Tritschler had crossed the border into the United States and traveled to Florida with the child. Tritschler removed the child from Canada with no warning to Toufighjou, and Toufighjou testified that Tritschler did not take her personal belongings to Florida. Immediately thereafter, Toufighjou contacted the police and hired an attorney. Toufighjou filed a request for return of the child with the Canadian government and took other formal and informal steps to secure his child's return to Canada. Days after arriving in Florida with the child. On June 23, 2016, Toufighjou commenced the proceeding for return. Tritschler did not dispute and the Court found that Toufighjou established a prima facie case. It rejected Tritschler’s defense of consent to or subsequent acquiescence in the removal or retention” of the child. Convention Art. 13(a); 22 U.S.C. § 9003(e)(2)(B). The facts did not establish that Toufighjou consented to his child's removal from Canada to Florida. A.R.T.'s removal was made without warning and while Toufighjou was on a short vacation. Tritschler did not tell Toufighjou that she was going to remove his child, and Toufighjou therefore had no opportunity to consent to his child's removal to Florida. Although Tritschler has come forward with daycare paperwork that Toufighjou signed in April of 2015, that does not carry Tritschler's burden of demonstrating that Toufighjou consented to the August 2015 removal of his child. In addition, the record did not show that Toufighjou acquiesced to his child's removal after that removal was made known to him.

Perla v Vasquez, 2016 WL 3878495 (D. Maryland, 2016) [El Salvador] [Venue]

In Perla v Vasquez, 2016 WL 3878495 (D. Maryland, 2016) Petitioner Jose Omar Flores Perla (Father) filed a verified petition against Respondent Jacqueline Ivonneth Perla Velasquez (Mother), his former wife, alleging that the child was in Maryland, seeking the return of the parties’ minor child, to El Salvador, from the United States where the Mother allegedly wrongfully removed and retained him on or after April 27, 2014. The Mother filed a Motion to Dismiss or, in the Alternative, to Transfer Venue. The district court granted the motion, transferring the case to the United States District Court for the Southern District of Texas in Houston. The court found that the Mother and the Child lived in Houston since moving to the United States, except for a period of time from Spring 2015 until early January, 2016 that they spent in Maryland for Respondent to care for her mother, Sandra Velasquez, who lived in Maryland.  The district court observed that 22 U.S.C. § 9003(a) provides that a person seeking a child’s return “may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.” The district court pointed out that section 9003(a) clearly confers jurisdiction; whether § 9003(b) pertains to jurisdiction or venue is less clear. It found after a hearing that the Child was in Texas on January 11, 2016, when Petitioner filed suit; and the parties agreed that “located” refers to where the Child was on January 11, 2016. Located” under ICARA does not require a showing of residency but contemplates the place where the abducted children are discovered. Regardless whether 22 U.S.C. § 9003(b) pertains to jurisdiction or venue, the proper place for this proceeding to have been filed was Texas, not Maryland. See 22 U.S.C. § 9003(b). The district court exercised its jurisdiction to transfer a civil action to another district or division pursuant to 28 U.S.C. § 1404(a), for the convenience of parties and witnesses, in the interest of justice.

O.A. v D.B., Slip Copy, 2016 WL 3748779 (Table), 2016 N.Y. Slip Op. 51089(U) (Fam. Ct.,2016) [Norway] [New York Family Court][Petition Denied]

In O.A. v D.B., Slip Copy, 2016 WL 3748779 (Table), 2016 N.Y. Slip Op. 51089(U) (Fam. Ct.,2016) Petitioner Father, O.A., a Norwegian citizen, filed a petition in Family  Court for the return of his daughters, D.A.P. and D.P. to Norway. The petition was brought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (1343 UNTS 89, TIAS No. 11, 670, 1343 [1980]), and its domestic implementing legislation, the International Child Abduction Remedies Act, 42 USC §§ 11601. Respondent mother, D.B., an American citizen, opposed the petition and argued that a return of the family to Norway will subject the subject children to a grave risk of harm because of the repeated domestic violence petitioner inflicted upon respondent. Respondent also alleged that some of the said domestic violence incidents occurred in the presence of the eldest subject child. The Court held a hearing and found that the petitioner had established, by a preponderance of the evidence, each required element under the Hague Convention. It also found that  respondent failed to establish that the subject children would be subjected to a grave risk of harm, psychologically or physically, if they return to Norway and granted the petition.

Comment: 

        It appears to us that the Family Court, a court of limited jurisdiction, lacked subject matter jurisdiction to hear the petition. 

A petition for the return of a child commencing a civil action for the return of a child must be filed "in any court which has jurisdiction of such action." 22 U.S.C. § 9003 (b), formerly cited as 42 USC § 11603 (b). The New York State Supreme Court has jurisdiction to hear these proceedings. N.Y. Const, art VI, § 7[a].  On the other hand, the Family Court is a court of limited jurisdiction, whose jurisdiction is proscribed by Article VI, § 13 of the New York State Constitution. It has not been conferred with jurisdiction under  Article VI, § 13 of the New York state constitution to determine such cases. 

A court hearing a Hague Convention proceeding must have jurisdiction of the action and must be authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed. 22 U.S.C. § 9003 (b), formerly cited as 42 USC § 11603 (b). Family Court is not authorized to exercise such jurisdiction. While 22 U.S.C. § 9003, formerly cited as 42 USC § 11603, grants original  jurisdiction of these proceedings to State and federal district courts, it does not grant jurisdiction to state courts of limited jurisdiction, such as the family court and surrogates court, nor does it purport to do so. Domestic Relations Law §77-a, the Uniform Child Custody Jurisdiction and Enforcement Act, which provides that a “court of this state may enforce an order for the return of the child made under the Hague Convention on the Civil Aspects of International Child Abduction as if it were a child custody determination”, does not authorize the commencement of a civil action for the return of a child.


It appears that the Family Court lacks subject matter jurisdiction to hear Hague Convention cases. This has been confirmed by the U.S. Court of Appeals for the Second Circuit, which has held that " [t]he phrase “in any court which has jurisdiction of such action,” 42 U.S.C. § 11603(b), underscores that while § 11603(a) confers jurisdiction in a particular federal forum (i.e., in United States district courts), it does not confer jurisdiction in particular state courts (e.g., a family-law court; a juvenile court; or a court of general jurisdiction); the appropriate state forum for an action under the Hague Convention is an issue of state law. The court in which the petition is filed must also be “authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.”  Ozaltin v. Ozaltin, 708 F.3d 355, 360 (2d Cir. 2013). See footnote 25 

Neumann v Neumann, 2015 WL 3661907 (E.D. Michigan, 2016) [Mexico] [Federal & State Judicial Remedies] [Stay Pending Appeal Denied]

In Neumann v Neumann, 2015 WL 3661907 (E.D. Michigan, 2016) on May 17, 2016, the district court granted the petition for return in part and ordered Respondent Julie Neumann to return two of the three minor children, JSN and MKN, to Mexico by June 30, 2016.  Julie filed a motion to stay the Court’s return order pending appeal. The Court applied the four traditional stay factors which guide the Court’s analysis: “(1) whether the stay applicant has made a strong showing that [s]he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Chafin v. Chafin, 133 S. Ct. 1017, 1027 (2013). The Court denied Julie’s motion, concluding that none of the four factors relevant to the appropriateness of a stay weighed in favor of issuing one here.

Hernandez v Cardoso, 2016 WL 3742858 (N.D. Ill, 2016) [Mexico] [Grave Risk of Harm] [Petition denied]

In Hernandez v Cardoso, 2016 WL 3742858 (N.D. Ill, 2016) Petitioner John Hernandez petitioned for the return of his son, AE, to Mexico. It was undisputed that Petitioner established a prima facie case. The petition was denied because there was a grave risk that return of AE to Mexico would expose him to physical or psychological harm. During the hearing, both Hernandez and Cardoso testified that they both used physical discipline on the children, but the parties dispute whose discipline was more forceful. Cardoso testified that Hernandez would hit her in front of the children “a lot” and that he wanted the children to watch him hit her. She would ask him to let the children leave the room when he was hitting her, and he would say “I want the children here. I don’t want them to go.” Cardoso testified to an incident where Hernandez slapped, kicked, and hit her with a wooden board in front of their daughter. When she tried to get away, Hernandez broke through a window, dragged her by her hair, and then raped her.  She testified that he would “always do that [rape her] when he would hit” her because “[t]o him it was like to make me happy.” The Court observed that under the law of this circuit, credible testimony of spousal abuse, carried out in the presence of the child at issue, supports a finding that return of the child to the abuser poses a grave risk of at least psychological harm. Khan v. Fatima, 680 F.3d 781, 786 (7th Cir. 2012). Although AE’s verbal expression about the effect of witnessing Hernandez hit Cardoso was limited (he felt “sad”), the Court observed a significant change in demeanor when AE discussed Hernandez, the domestic violence, and the possibility of returning to Hernandez’s custody. The Seventh Circuit has rejected the notion that courts should consider whether the petitioner’s country of residence can adequately protect the child. Khan, 680 F.3d at 788. “If handing over custody of a child to an abusive parent creates a grave risk of harm to the child, in the sense that the parent may with some nonnegligible probability injure the child, the child should not be handed over, however severely the law of the parent’s country might punish such behavior.” Van De Sande v. Van De Sande, 431 F.3d 567, 571 (7th Cir. 2005). Even where the petitioning parent has not seriously physically injured the child in the past, a “propensity for violence,” coupled with “the grotesque disregard” for child welfare demonstrated by committing spousal battery in the presence of children, indicates a risk that the petitioning parent will one day “lose control and inflict actual physical injury” upon the child. Van De Sande, 431 F.3d at 570.

Gonzalez v Pena, 2016 WL 3654283 (D. Az, 2016) [Mexico] [Grave Risk of Harm] [Petition Denied]

In Gonzalez v Pena, 2016 WL 3654283 (D. Az, 2016) Gonzalez was a Mexican citizen residing in Mexico. Pena was a Mexican citizen residing in Scottsdale, Arizona. The parties were the parents of two Children: J.P., born in 2007, and A.P., born in 2005 in Scottsdale. In 2012 Gonzalez moved to Nayarit, Mexico with the Children. Pena continued to reside in Scottsdale and visited the Children in Mexico. There were no court orders dictating the parties' parenting time. On June 7, 2015, Gonzalez agreed that the Children could visit Pena in Scottsdale. The parties agreed that Pena would return the Children to Mexico by August 6, 2015.. Approximately one week before the Children were to be returned to Mexico, A.P. informed Pena that she had been sexually abused by Gonzalez's live-in boyfriend. As a result, Pena decided to not allow the Children to return to Mexico.  The district court found that Gonzalez established a prima facie case for return. Although Pena's retention was wrongful, the Court found he had met his burden of showing that returning the Children to Mexico presents a “grave risk” or would be an “intolerable situation” and denied the petition.  Sexual abuse most  constitutes a ‘grave risk’ of physical or psychological harm.” Ortiz v. Martinez, 789 F.3d 722, 728 (7th Cir. 2015). The evidence clearly and convincingly established that Gonzalez's live in boyfriend sexually abused A.P. at least once. Moreover, Gonzalez's stated that she did not believe any abuse could have occurred because she had the only key to the bedroom. At one point, Gonzalez stated that she believed only “touching” had occurred, “not sexual abuse.” And she stated that she kicked her boyfriend out of the house not because she believed any abuse had occurred, but because she wanted the “situation to clarify.” Notably, not once during her testimony did Gonzalez state that she would take any steps to protect the Children from abuse if they returned to Mexico. The evidence also demonstrated that the Children had already suffered psychologically from the abuse. A.P. has been diagnosed with post-traumatic stress disorder, and J.P. had been experiencing anger issues with the incident. A.P. had experienced some depression, and experiences trouble sleeping and nightmares. The Court found separating the Children would significantly aggravate their emotional state.