Gonzalez v Batres, 2015 WL 12819198 (D. New Mexico, 2015) [Mexico] [Federal & State Judicial Remedies] [Judicial Notice]

In Gonzalez v Batres, 2015 WL 12819198 (D. New Mexico, 2015) the Petitioner , citing to Article 14 of the Hague Convention and Federal Rule of Civil Procedure 44.1,  asked that the Court take judicial notice of Articles 278 through 280, Articles 406 through 419, Articles 438 through 439, and Articles 441 through 443 of the Civil Code for the State of Durango, Mexico, all of which govern the Mexican legal concept of patria potestas. She also asked that the Court “take judicial notice” of her expert report, including her expert witness’s conclusions of law; and that the Court “take judicial notice” of several specific conclusions of law regarding the nature of patria potestas and the rights afforded to her by that concept. 

The district court explained that Petitioner misunderstood  the purposes of these authorities. Rule 44.1 simply allows the Court to “consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence,” when determining foreign law. FED. R. CIV. P. 44.1. Rather than “imposing an obligation on the court to take „judicial notice’ of foreign law,” the Rule “provides flexible procedures for presenting and utilizing material on issues of foreign law.” Likewise, Article 14 simply allows the Court to “take notice directly of the law of, and of judicial or administrative decisions ... in the State of the habitual residence of the child.” Hague Convention on the Civil Aspects of International Child Abduction, art. 14, Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89. Both authorities allow the Court to consider foreign legal codes and judicial or administrative decisions, as well as expert testimony, in making determinations of foreign law. However, neither authority provides any basis for simply adopting a party’s conclusions regarding foreign law as the Court’s own. It therefore, granted the motion only insofar as Petitioner sought to have the Court (1) take judicial notice of the portions of the Durango Civil Code that she provided to the Court, pursuant to Article 14 of the Hague Convention; and (2) consider the submitted portions of the Durango Civil Code and the testimony and report of Petitioner’s expert witness, pursuant to Rule 44.1, in reaching any relevant determinations of Mexican law.

Benitez v Hernandez, 2017 WL 1404317 (D.NJ, 2017)[Ecuador] [Consent] [Petition denied]

          In Benitez v Hernandez, 2017 WL 1404317 (D. NJ, 2017) J.G.A. Guillermo Albornoz Benitez (“Guillermo”) brought a proceeding against his wife, Kristhel Angelica Diaz Hernandez (“Kristhel”), for the return of their children to Ecuador. Their daughter, “T.A.A.,” was born in 2006, and was 11 years old; their son, “J.G.A.,” was born in 2008 and was 9 years old. Mr. Albornoz alleged that on June 18, 2015, Ms. Diaz removed the children from Ecuador without his consent, and was wrongfully retaining them in the United States. The district court denied the petition.

          The district court accepted as true the evidence that Albornoz and Diaz agreed in 2014 that the sojourn in Ecuador was to be temporary. It accepted the evidence that Diaz’s June 2015 return to the United States with the children was not wrongful, but agreed-to. The picture that emerged was that Diaz had grown increasingly dissatisfied, and at any rate did not want to live in Ecuador. Albornoz wanted to keep the marriage together, and agreed to return to the U.S. in the hope of salvaging it. It appeared that he cooperated fully with the children’s removal from Ecuador, resettlement in the U.S., enrollment in a New Jersey school for the 2015–16 school year, and relocation to their own apartment. It was only later, when the marriage proved unsalvageable, that he began to maintain that moving back to the U.S. had never been his intent. Indeed, it seemed that he brought the petition for return of children either concurrently with, or as a response to, Diaz’s filing for divorce.

Pinto v Barone, 2017 WL 2779700 (S.D. California, 2017)[Brazil] [Grave Risk of Harm] [Petition granted]

          In Pinto v Barone, 2017 WL 2779700 (S.D. California, 2017) Brazilian citizens Luciana and Andre Barone entered a divorce agreement that provided for joint custody and allowed Luciana to travel to Boston with their two children, ages 5 and 11, for a temporary four month visit. The agreement specified that after four months, Andre would travel to Boston, which he did, and return to Brazil with the children.  The agreement also provided that the stay in Boston is “non-extendable,” that the children “shall be delivered” to Andre on January 13, 2017, and that Andre “shall return with them to Brazil” where “they shall be delivered to the mother, for the beginning of the school year in Sao Paulo.” Instead of turning the children over to Andre on January 13, 2017, Luciana fled to San Diego with the children. Applying the Hague Convention to these facts, the court concluded that Luciana breached Andre’s rights of custody as provided in the Brazilian divorce agreement.  Since Luciana wrongfully retained the children in the United States and no grave risk of harm was presented to the children by returning them to Brazil, the Court granted Andre’s petition.

          At the hearing, Luciana suggested that the United States was the children’s habitual residence since they had been present here since September 2016 and two state courts (Massachusetts and California) issued TROs. However, it was undisputed that “immediately before” Luciana retained the children in Boston, and then in San Diego, the children were habitually resident in Brazil. The terms of the divorce agreement made clear that “the settled intention of the parents” was for the children to return to school in Sao Paulo and retain their Brazilian domicile. Mozes v. Mozes, 239 F.3d 1067, 1078 (9th Cir. 2001). Moreover, the argument that the children had acclimated to the United States lacked merit. Luciana was temporarily permitted to be in the United States on a student visa, did not have a job, and did not have a place for the children to stay. She was dependent on financial support from Andre pursuant to the Brazilian divorce agreement. During the course of several months, Luciana moved the children from Brazil, to Boston, and then to San Diego, where the children were staying in a hotel until funds were exhausted.  At the time the TRO issued, Luciana had vacated the hotel and her plans for food and shelter were uncertain The Court stated that it “can say with confidence” that the children’s attachments to the United States have not “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 district court indicated that the only colorable exception to return was whether a “grave risk” of harm exists if the Court orders the children returned to Brazil. Luciana obtained a domestic violence restraining order from a state court in Boston and another one in San Diego. In the restraining order request. Luciana alleged that Andre called her on January 29, 2017, and threatened to kill her and the kids. To overcome the Convention’s imperative that courts return wrongfully retained children under the grave risk exception, “[t]he potential harm to the child must be severe, and the level of risk and danger required to trigger this exception has consistently been held to be very high.” Souratgar v. Lee 720 F.3d 96, 103 (2d Cir. 2013. Some courts, however, have found that a threat to kill the children or a history of domestic violence qualifies as a grave risk. See Van De Sande v. Van De Sande, 431 F 3d 567, 570 (7th Cir. 2005); Ermini v. Vittori, 758 F.3d 153, 164 (2d Cir. 2014). To determine if a grave risk of harm exists, the Court heard testimony from Andre and Luciana. Luciana testified that in twenty years of marriage, Andre never behaved violently except for a fight the day they divorced—she says Andre hit her. Luciana claimed that after she obtained a TRO in Boston, Andre threatened to kill her and the kids. Andre categorically denied both allegations. He also offered a third-party declaration from Carmen Gomide, Luciana’s good Samaritan host for a few weeks in San Diego, who opined Luciana was unstable and said she feared Luciana would kill the kids.

          The Court concludes Luciana has failed to show by clear and convincing evidence a “probability” that Andre will harm the children.  The testimony revealed that both parents deeply loved their children and were highly protective of them. There was no credible evidence that Andre presents a grave risk of harm to the children. Notably, after Andre was alleged to have threatened Luciana in Brazil, Luciana agreed to shared custody of the children. No reports of violence were ever filed. And the Brazilian divorce agreement was thereafter entered, in which joint custody was awarded. In addition, when Luciana refused to comply with the divorce agreement and called the police in Boston, Andre did not react with violence. He returned to Brazil and pursued lawful options through the courts; he filed suit in Brazil to enforce the divorce agreement, contacted the Central Authority (State Department), and retained legal counsel in the United States and filed this petition. Andre’s past actions confirmed that he would l comply with the Court’s order to safely return the children to Brazil and abide by any custody decision in the Brazilian courts, where that determination is properly made.

          The court granted the petition and directed that Andre return to Brazil with Pedro and Luiz Felipe so the important matter of child custody can be determined by the Brazilian courts. Andre was directed to pay all reasonable travel expenses for the children and Luciana to return to Brazil.

Williard v Williard, 2017 WL 3278745 (E.D. Michigan, 2017)[Italy] [Federal & State Judicial Remedies] [Waiver] [Motion to dismiss denied]

          In Williard v Williard, 2017 WL 3278745 (E.D. Michigan, 2017) on May 24, 2017, Billy Joe Willard, Jr. (“Petitioner”) commenced an action against Erika Lynn Willard (“Respondent”). In his Amended Complaint, filed June 7, 2017, he alleged Respondent violated the Hague Convention on the Civil Aspects of International Child Abduction.

          Petitioner and Respondent, both American citizens, were married in Tennessee in 2010. In 2013, Respondent gave birth to Petitioner’s two children—“ADW” and “MLW” —in Florida. Petitioner was an active duty member of the United States Air Force and was assigned to a military base in Vicenza, Italy in 2015.  Respondent and the children moved with Petitioner to Italy. In July 2016, Respondent and the children accompanied Petitioner back to the United States. While Petitioner underwent training Respondent and the children visited family in Michigan.  On September 29, 2016, Petitioner arrived in Michigan to fly back to Italy with Respondent and the children.  Respondent refused to return to Italy and would not allow Petitioner to take the children back to Italy. On October 31, 2016, Respondent filed a complaint against Petitioner in Oakland County Circuit Court (“Michigan state court”) seeking a divorce and the custody of the children. Respondent served Petitioner with the Michigan state court case filing on December 22, 2016. In January 2017, Petitioner filed a parallel divorce case against Respondent in Johnson County, Texas (“Texas state court”). The Texas state court conferred with the Michigan state court about which state court had jurisdiction over the proceedings, as Petitioner requested. On April 5, 2017, both state courts determined that the Michigan state court should retain jurisdiction over the custody and divorce proceedings.  Two weeks after the state courts determined jurisdiction was proper in Michigan, Petitioner filed a new custody case in Italy seeking a divorce and custody of the couple’s children.

          On May 24, 2017, Petitioner filed a Complaint in the district Court seeking return of the children to Italy pursuant to the Hague Convention. He amended his Complaint on June 7, 2017. Respondent moved to dismiss. She argued in her Motion to Dismiss that Petitioner waived his rights under the Hague Convention by arguing in Texas state court that Texas was the proper forum in which his claims should be adjudicated. Only after the Texas state court found Michigan was the proper forum did Petitioner invoke his Hague Convention claims in Italy and this Court. The district court observed that Federal Rule of Civil Procedure 12(b) (6) authorizes dismissal of a complaint for “failure to state a claim upon which relief can be granted.” When considering a Rule 12(b) (6) motion to dismiss, the Court must construe the complaint in a light most favorable to the plaintiff and accept all of his or her factual allegations as true. Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008). However, the Court need not accept mere conclusory statements or legal conclusions couched as factual allegations. See Iqbal, 556 U.S. at 678.  The district court noted that “Waiver is the intentional relinquishment of a known right.” United States v. Fowler, 819 F.3d 298, 306 (6th Cir. 2016). There are very few cases analyzing the concept of waiver in the context of the Hague Convention. In Journe v. Journe, the District of Puerto Rico held that a petitioning parent waived his Hague Convention rights by voluntarily dismissing his action for divorce and custody in France, having believed that he and his spouse had reconciled. 911 F. Supp. 43 (D.P.R. 1995). The petitioning parent’s voluntarily dismissed suit had been brought pursuant to provisions of the Convention. The district court found that this constituted a waiver, having been an “intentional or voluntary relinquishment of a known right” where the relinquishing party had “both knowledge of [the right’s] existence and an uncoerced intent to relinquish it.” (writing that acts constituting waiver “should be so manifestly consistent with and indicative of an intent to relinquish voluntarily a particular right that no other reasonable explanation of this conduct is possible”).  

          The district court noted that several circuits outside of the Sixth Circuit have mentioned waiver while analyzing consent or acquiescence. The Ninth Circuit has not treated a decision to file for custody in state court, without raising Hague Convention claims, as a waiver of Hague Convention rights. See, e.g., Gaudin v. Remis, 415 F.3d 1028, 1034 (9th Cir. 2005) (holding that a federal court was not bound by a state court’s custody decision where the state court did not actually adjudicate the Hague Convention claim); Holder v. Holder, 305 F.3d 854, 872–73 (9th Cir. 2002) (finding that the petitioner’s suit for custody in California state court did not exhibit an “uncoerced intent to relinquish” rights under the Hague Convention). Respondent failed to submit a single case where the district court dismissed a Hague Convention claim based on waiver at the motion to dismiss stage. Here, neither the Michigan nor the Texas state court issued a final decision on the merits of the parties’ complaints. The Texas state court found the Michigan state court had jurisdiction, and then the Michigan state court stayed its proceedings pending resolution of the present case. Furthermore, the exhibits attached to the motion did not establish that Petitioner knowingly and intentionally relinquished his Hague Convention rights before the Texas or Michigan state courts.

          The Court did not find that Respondent had proven that Petitioner waived his Hague Convention rights, when the Court views the facts in the light most favorable to the nonmoving party, and denied the motion to dismiss.

Tomynets v Koulik, 2017 WL 2645518 (M.D. Florida, 2017)[Ukraine][Habitual Residence] [Petition granted]

          In Tomynets v Koulik, 2017 WL 2645518 (M.D. Florida, 2017) the Report and Recommendation of the magistrate judge was adopted as the opinion of the Court and the petition for return of S.O.T. to Ukraine under the Hague Convention was granted.

          The district court observed that it may accept, reject, or modify a magistrate judge’s report and recommendation. 28 U.S.C. § 636(b) (1). In absence of specific objections, there is no requirement that factual findings be reviewed de novo. Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993). Rather, a district court is bound to defer to the factual findings of a magistrate judge unless the findings are clearly erroneous. Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994) (per curiam). Legal conclusions are reviewed de novo, even in the absence of an objection. See id.; LeCroy v. McNeil, 397 F. App’x 554, 556 (11th Cir. 2010) (per curiam) (citing United States v. Warren, 687 F.2d 347, 348 (11th Cir. 1982)).

          The court found that (1) S.O.T. was a “habitual resident” of Ukraine immediately before the wrongful retention by Respondent; (2) the wrongful retention was in breach of Petitioner’s custody rights under the laws of Ukraine; (3) Petitioner had been exercising or would have been exercising custody rights concerning S.O.T. at the time of the wrongful retention of S.O.T.; and (4) S.O.T. has not attained the age of 16.

          The Magistrate Judge also concluded that Respondent failed to establish any of the Hague Convention’s narrow exceptions. (Id. at p. 28). On de novo review, the Court agreed with the Magistrate Judge’s conclusions. LeCroy, 397 F. App’x at 556.

          The district court held that Magistrate Judge’s findings were not clearly erroneous, and establish that S.O.T. was a habitual resident of Ukraine prior to Respondent’s retention of her in the United States. S.O.T.’s trip to the United States was intended to be for a specific, delimited period, and the parties therefore had no shared, settled intention to abandon Ukraine and make the United States S.O.T.’s habitual residence. See Ruiz, 392 F.3d at 1252-53. Further, the six months that S.O.T. was in the United States immediately prior to Respondent’s retention of her was an insufficient amount of time for her to become acclimatized. The absence of the parties’ shared intention to establish a new habitual residence and because S.O.T. did not have sufficient time to become acclimatized during her visit demonstrate that she was habitual resident of Ukraine as of June 3, 2013, the date Respondent retained her in the United States. Petitioner also maintained regular contact with S.O.T. during her six month visit to the United States. After Respondent wrongfully retained S.O.T. past the end of the planned visit, Petitioner continued to maintain or attempt to maintain contact with her via mail, Skype, and telephone calls. Petitioner’s efforts to maintain communication with S.O.T. constituted an exercise of her custody rights. See, e.g. Friedrich, 78 F.3d at 1065; Rodriguez, 817 F.3d at 472. Petitioner, therefore, established a prima facie case that S.O.T. should be returned to Ukraine because of Respondent’s wrongful retention of her in the United States. The Magistrate Judge correctly concluded that Respondent failed to establish any of the exceptions that would prevent S.O.T.’s return to Ukraine, and that the goals of the Hague Convention are furthered by returning S.O.T. to Ukraine. The Magistrate Judge’s findings are not clearly erroneous, and considered together, established that she was not well-settled in the United States. See Cooper-Houston, 37 F.3d at 604; Lops, 140 F.3d at 946. Respondent did not met his burden of establishing that S.O.T. was well-settled in the United States or that any other exception applies to defeat Petitioner’s prima facie case for return of S.O.T. to Ukraine under the Hague Convention.

Rose v Blake, 2017 WL 3601292 (S.D. Florida, 2017)[Belgium][Habitual Residence] [Petition granted]

          In Rose v Blake, 2017 WL 3601292 (S.D. Florida, 2017) a petition was filed by  Damion Samuel Rose, a legal resident of Belgium, to secure the return of his six-year-old son, D.A.R., who was, removed from Belgium and brought Florida by the Child’s Mother, Lee Ann Nicole Blake (“Ms. Blake”). The district court found that the Petitioner was domiciled in Belgium. The parties met in Jamaica and had a relationship of which a child, D.A.R., was born in New York on January 17, 2011.  The parties separated in 2013 and Ms. Blake subsequently settled in the United States for a few months with the child.  Afterwards, Ms. Blake returned to Jamaica, where the applicant asked her to organize the living arrangements of the child in order to enable him to spend some time with his son despite their separation, which Ms. Blake refused.  In 2014, Mr. Rose moved to Belgium and the parties reached a verbal agreement, so as to enable D.A.R. to spend holidays with his father.  On the agreed date however, Ms. Blake opposed the child’s stay in Belgium and threatened to deprive Mr. Rose of any contact with the child if she was not authorized to stay with him in Belgium. In 2014, Ms. Blake and D.A.R. settled in Belgium and the parties decided to give themselves a chance to live together again. On February 10, 2015, they concluded a declaration of legal cohabitation, to which they have not put an end. A few months later, the couple separated again. A verbal agreement was reached according to which the child would have his residence with his mother two weeks per month, including the weekends, and with his father one week per month and two weekends.  Since Ms. Blake could scarcely comply with this agreement, Mr. Rose submitted a request to the Family Court aiming at obtaining a decision on parental responsibility. Ms. Blake informed the Plaintiff on several occasions that she intended to return to Jamaica with the child. The Plaintiff opposed such intention. Both parties and their lawyers agreed to meet on April 24, 2017 prior to the hearing scheduled on May 3, 2017 before the Brussels Family Court. On April 24, 2017 Ms. Blake’s lawyer informed the Mr. Rose’s attorney that Ms. Blake could not be present because she was in the United States with the child, but would be returning. Ms. Blake and the Child did not return on the expected date and the plaintiff did not receive any news of his son since July 22, 2017. Ms. Blake and D.A.R. reside at her cousin’s domicile in Davie, Florida. Subsequent to the removal of the Child by the mother, the Belgium Court issued an Order placing sole custody in the father, Damion Samuel Rose.

          The district court held a hearing and credited the Plaintiff’s testimony. It rejected the Defendant’s testimony and rejected the assertions of the Defendant set forth in her Response to the Verified Complaint and Petition. Because the Court found that Belgium was the habitual residence of the Child, that the Plaintiff never acquiesced in the removal of the Child, that there was no danger to the Child if he is returned to Belgium, and that the Respondent has failed to show cause why the child should not be returned to Belgium, it granted the Petition and directed that the Child be returned to Belgium in the custody of the father.

Valero v De Nevi, 2017 WL 3917161 (S.D. Florida, 2017)[Canada][Habitual Residence] [Petition granted]

           In Valero v De Nevi, 2017 WL 3917161 (S.D. Florida, 2017) the father was a Cuban national who had become a resident in Quebec, Canada. The mother was a Cuban national who now sought political asylum in the United States, but previously lived with the father and their son in Quebec, Canada from March 25, 2016 to September 20, 2016 before she removed the child to the United States.

          The district court found that the habitual residence of the child before his removal by the mother in late September 2016 was Quebec, Canada. The mother’s attorney argued that the mother’s habitual residence at the time of the alleged removal was in Cuba. It was undisputed that the mother had a physical residence in Cuba and received medical treatment in Cuba, where both parents and the child were born. But, both parties agreed that Cuba, which is not a signatory to the Hague Convention, was a country that both parents abandoned and a country where neither parent wanted to exercise parental rights. The mother’s counsel argued that since the alleged habitual residence of the child was Cuba at the time of the removal from Canada, then the Court is powerless to rule under the Hague Convention. However, the Court did not reach the issue of the residency in Cuba because neither the mother nor the father exercised custodial rights there. Both parents were Cuban political refugees who abandoned Cuba. The Court concluded that consistent with Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001), the child’s habitual residence was Canada and the Court did not decide the hypothetical issue of possible dual habitual residence. The Court also found that the child’s removal by the mother in September 2016 was in breach of the father’s custody rights.  Having found that the child was wrongfully removed by the mother, the Court foud that the mother had not proven by clear and convincing evidence the grave risk exception. The higher number of therapists and medical professionals in Miami when compared to the village of Saint-Guillaeime or the larger town of Drummondville in Quebec is not enough to preclude the prompt return of the child to Quebec. Nor was the payment for or availability of insurance in one province versus another or in one state versus another.