Padilla v. Troxell, 2016 WL 4098588 (W.D. Virginia, 2016) [Mexico] [Consent Defense Established] [Petition Denied]

In Padilla v. Troxell, 2016 WL 4098588 (W.D. Virginia, 2016) on May 23, 2016, Petitioner Xochitl Jazmin Velasco Padilla (“Petitioner”) filed a Petition claiming that her son, J.V., was brought into this country without her consent and in contravention of her custody rights by the child’s legal father, Respondent Joe Richard Troxell. The district court found that J.V. was wrongfully removed (or retained) from his habitual residence in violation of her custody rights. However, Respondent established that Petitioner consented to J.V. being brought into this country. Because consent of the petitioning parent is a defense to the Petition, and because Respondent had adequately shown that Petitioner consented to J.V.’s removal from Mexico, the petition for return was denied. Although Respondent was not J.V.’s biological father, he was listed on J.V.’s birth certificate as his father and was listed with the full consent of both Petitioner and Respondent. Under Mexican law, as stipulated by the parties, Respondent enjoyed the same parental rights as Petitioner. In December of 2014, Petitioner and Respondent discussed Petitioner’s desire to live in the United States and whether J.V. would be better off with Respondent. According to Respondent, Petitioner said her other two sons were born in the United States, so they were U.S. citizens, but that she would have a problem moving with J.V. Respondent agreed to help Petitioner get papers for J.V. and bring him to the United States. After J.V.’s passport was secured in December 2014, J.V. returned with Respondent to his home in Acapulco. A few months later, Respondent acquired a “fiancee visa” for Blanca Leyva, which permitted Leyva to enter the United States for ninety days to marry Respondent. According to Respondent, it would have taken too long to get a visa for J.V., so he paid a smuggler to take the three-year-old J.V. across the U.S./Mexican border.  J.V. was picked up during a raid by Border Patrol near El Paso, Texas. After a review of his documents, J.V. was released into Respondent’s custody, and Respondent, J.V., and Leyva settled in Halifax County, Virginia. The Court rejected Petitioner’s story. She agreed that she wanted Respondent on J.V.’s birth certificate, and she agreed that she went with Respondent to acquire a passport for J.V. in December 2014; she contended, however, that Respondent took J.V. without her knowledge or consent. The district court found that the  evidence established that Petitioner consented to his removal and had no objections to J.V. remaining in Respondent’s care so long as Respondent supported her financially. The court pointed out, in a footnote that that “consent” would seem to obviate the “wrongful” element of Petitioner’s prima facie case, but the Convention nevertheless presupposes that one parent may consent to wrongful removal.

Tokic v. Tokic, 2016 WL 4046801 (S.D. Texas, 2016) [France] [Petition granted] [Grave Risk of Harm and Article 20 Defenses Not Proven]

In Tokic v. Tokic, 2016 WL 4046801 (S.D. Texas) the petitioner sought the return of his twelve year old and ten year old sons, asserting that on or about April 1, 2016, Jessica Tokic, their mother, abducted them from France and brought them to Texas where they remained. The parties stipulated or conceded that France was the children’s country of habitual residence.  The Court  determined that the respondent’s removal of the children to the United States was a breach of the petitioner’s “rights of custody” under the laws of France. Article 371-1 of the French Civil Code, parental authority is defined as “a set of rights and duties whose finality is the welfare of the child.” “It is vested in the father and mother until the majority or emancipation of the child in order to protect him in his security, health and morality, to ensure his education and allow his development, showing regard to his person.”  Article 371-3 further provides that “[a] child may not, without the permission of the father and mother, leave the family home and he may be removed from it only in cases of necessity as determined by statute.” The court found that petitioner established a prima facie case for return. It rejected, inter alia,  Respondents grave risk of harm” defense. The evidence failed to support the respondent’s claims concerning the petitioner’s abusive behavior. While the allegations made against the petitioner presented serious concerns, the respondent had not presented any actual evidence that the petitioner had a history of abusing the children or that he actually abused them. Although both parties engaged in arguments in the presence of their sons, the evidence did not support the view that one party was any more overbearing or aggressive than another, or that any physical altercation ever ensued. Respondent did not show by clear and convincing evidence that the children would face a grave risk of harm or be subjected to an intolerable situation if they were required to return to France.  It also rejected application of Article 20’s public policy exception, which  is to be invoked only on ‘the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process.’ ” Souratgar v. Lee, 720 F.3d 96, 108 (2nd Cir. 2013) The extraordinary nature of the public policy defense is further exemplified by the fact that, to date, no federal court has denied a petition for repatriation based upon this defense.

Dias v. De Souza, 2016 WL 4083354 (D. Mass, 2016)[Brazil [Petition granted ] [Grave Risk of Harm Defense Not Established]

In Dias v. De Souza, 2016 WL 4083354 (D. Mass, 2016) Marina De Aguiar Dias (“Petitioner”) the mother sought the return of her thirteen-year-old daughter, H.D., to Brazil. Petitioner and Respondent,  an unmarried couple,  separated approximately three years after H.D.’s birth., Petitioner and H.D. lived together in a house located in the Water Box  neighborhood of Salvador, Bahia, Brazil, which they shared with Petitioner’s parents and grandmother. In May 2013 Respondent moved to Massachusetts.  On June 13, 2015, accompanied by Respondent’s mother and with Petitioner’s permission, H.D. left Brazil to temporarily visit Respondent in Worcester, Massachusetts. On June 18, 2016, Respondent and his mother called Petitioner and asked for her permission to keep H.D. in the United States. Petitioner declined to give her permission, but Respondent nevertheless kept H.D. in the United States over Petitioner’s objection. The district court found that Petitioner established a prima facie case and that Respondent failed to establish by clear and convincing evidence that H.D.’s return would subject her to a grave risk of harm or otherwise place her in an intolerable situation. Respondent testified that areas “around” the Red River neighborhood where H.D. would return were extremely dangerous and controlled by drug traffickers, but did not demonstrate that H.D. would face a grave risk of harm due to the violence in those areas. Respondent testified that he believed H.D., while not in school, would spend the majority of her time inside her house if she were to return to Brazil, and Petitioner likewise testified that when H.D. previously lived in Brazil, she was not allowed to walk outside without adult supervision.  Petitioner’s husband testified that the house to which H.D. would return was located in a calm, middle-class neighborhood, and this testimony was uncontroverted by Respondent’s testimony, which focused on slum neighborhoods “around” the Red River area. Respondent also failed to show that H.D.’s living conditions in Salvador would constitute a grave risk of physical or psychological harm or lead to an otherwise intolerable situation. Respondent’s claim that H.D.’s return to Brazil would result in a grave risk of harm or an otherwise intolerable situation due to isolation also failed. It was  undisputed that H.D. would attend school outside of her house, and Petitioner testified that the school which H.D. would attend offered extracurricular activities, including athletics. Living in Salvador with Petitioner may reduce or even eliminate H.D.’s freedom to walk in the street unaccompanied by an adult, but an “intolerable situation was not meant to encompass return to a home where living conditions are less palatable,” and the situation envisioned by Respondent—where H.D. would spend most of her free time at home watching television and playing video games—does not approach a showing of “clear abuse.”

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