Law and The Family New York, 2d Ed by Joel R. Brandes contains almost 900 pages devoted to the Hague Convention on the Civil Aspects of International Child Abduction

Law and the Family New York, 2d Edition Revised

By Joel R. Brandes

Table of Contents, Volume 4 A, Pages 234-1111

Chapter 1

Hague Convention on the Civil Aspects of

International Child Abduction

§ 1:153 Nature and purpose of the Hague Convention and

Overview

§ 1:153.10 Text of the Convention on the Civil Aspects of

International Child Abduction done at the Hague on

October 25, 1980

§ 1:153.20 Text of the International Child Abduction Remedies Act.

§ 1:153.30 Central authority

§ 1:153.50 Hague Convention—Introduction to this Chapter

§ 1:153.60 Interpretation of The Hague Convention

§ 1:154 Applicable to habitual resident of state signatory countries

only

§ 1:154.10 Applicable only to Children less than 16 years old

§ 1:154.20 Defining “Habitual Residence”

§ 1:154.30 Wrongful Removal or Retention

§ 1:155 Rights of custody

§ 1:155.10 Rights of custody defined

§ 1:155.20 Ne exeat and Patria potestas—Defined

§ 1:155.30 Ne exeat rights and Patria potestas as rights of custody

§ 1:155.40 Rights of access distinguished

§ 1:155.50 Exercising rights of custody—Liberal approach

§ 1:156 Defenses to return under the Hague Convention—In

general

§ 1:157 Article 12: one-year limitations exception—The “now

settled” defense

§ 1:157.50 Article 12: one-year limitations and “now settled”

exception—Equitable tolling

§ 1:158 Article 20: Human rights and Fundamental Freedoms

exception—The human rights defense

§ 1:159 Article 13(a): consent or acquiescence exception—The

Consent defense

§ 1:160 Article 13 (b)—Grave Risk of Harm Exception—The Grave

Risk of Harm Defense

§ 1:160.10 — — —Undertakings

§ 1:161 Article 13: Wishes of the child exception—The “Age and

Maturity” defense

§ 1:162 Article 18—Discretion to Order Return of Child Where

Defense Established

§ 1:163 Effect of notice of custody dispute—Automatic stay of

state court custody determinations

§ 1:164 Article 26—Security, Costs and Expenses

§ 1:165 Central Authority—Non-judicial remedies

§ 1:166 —Application to Central Authority

§ 1:167 —Statement of reasons for delay

§ 1:168 Right to Exercise Federal and state judicial remedies

§ 1:168.10 Federal Subject Matter Jurisdiction—In General

§ 1:168.20 Federal Subject Matter Jurisdiction Under the

International Child Abduction Remedies Act

§ 1:168.30 Federal Question Jurisdiction

§ 1:168.40 —Venue

§ 1:168.50 Standing to File a Hague Petition in Federal District

Court

§ 1:169 Commencement of proceedings—Jurisdiction and Venue

§ 1:169.10 Pleading Requirements and Service of Summons in Hague

Convention Cases—In General

§ 1:169.20 Commencment of Proceedings Under ICARA—Definitions

§ 1:169.30 Stay of Custody Proceedings After Notice of Wrongful

Removal or Retention—Article 16

§ 1:169.40 Article 17—Effect of State Court Decision after Notice

§ 1:169.60 Article 11—Expeditious Determination

§ 1:169.70 Motion Practice in Hague Convention Cases—In General

§ 1:170 Notice of commencement of proceedings

§ 1:171 Petitioner’s burden of proof

§ 1:172 Respondent’s burden of proof

§ 1:173 Determination as to Wrongful Removal From Authorities

of State of habitual residence of child

§ 1:174 Provisional Remedies—Temporary Restraining Order,

Surrender Passport, Post Bond, Temporary Custody and

Access to Child

§ 1:175 Appointment of Guardian Ad Litem and Attorney for the

Child In Hague Convention Cases

§ 1:176 Legal aid

§ 1:177 Full faith and credit

§ 1:177.08 Jurisdiction to enforce rights of access

§ 1:177.16 Pleading Requirements

§ 1:177.20 Default Judgment

§ 1:177.24 Removal of state Hague proceedings to federal court

§ 1:177.32 Discovery

§ 1:177.40 Federal Abstention Under the Younger and Colorado River

Abstention Doctrines

§ 1:177.48 Denial of Relief under the Fugitive Disentitlement

Doctrine

§ 1:177.56 Applicability of the Mootness Doctrine

§ 1:177.64 Withdrawal or dismissal of own petition

§ 1:177.72 Availability of summary judgment

§ 1:177.74 Referral of Hague Convention Petition to Magistrate

Judge to Report and Recommend

§ 1:177.76 Summary bench trial

§ 1:177.80 Rules of Evidence, Admissibility of Foreign Documents

and Expert Opinion—In General

§ 1:177.82 Testimony By Video Transmission from a different location

§ 1:177.86 Judicial notice of foreign law

§ 1:177.87 Child’s Right to Appeal

§ 1:177.88 Jurisidiction of District Court to Maintain Status Quo

Pending Appeal

§ 1:177.89 Judgment of District Court for Return. Remedies. Motion

for New Trial. Enforcement of Judgment

§ 1:177.90 Standard of review

§ 1:177.91 Issuance of Mandate by Court of Appeals

§ 1:177.92 Hague Convention Proceedings in New York State

Courts—Commencement of Proceedings

§ 1:177.93 State Court Jurisdiction of Hague Convention Cases

§ 1:177.94 Hague Convention Proceedings in New York State

Courts—Habitual Residence

§ 1:177.96 —Grave Risk of Harm

§ 1:177.98 Conditional order granting return of child

§ 1:178.99 Re-return order

Kovacic v Harris, 2018 WL 3388333 (D. Maryland, 2018)[Croatia] [Age and Maturity defense] [Petition denied]

In Kovacic v Harris, 2018 WL 3388333 (D. Maryland, 2018) the district court denied the application of Plaintiff Ivica Kovačić for the Return of his Child to Croatia, The Court concluded that while Mrs. Harris was wrongfully retaining N.K. in the United States under the Hague Convention, N.K. had reached an age and degree of maturity that the Court took into account her objections to returning to Croatia and did not order her return.

Plaintiff Ivica Kovačić and Defendant Danijela Harris were married on February 22, 2003 in Desna Martinska Ves, Croatia. On May 31, 2003, their daughter, “N.K.”, was born. She was currently fifteen-years-old. Two years after the couple separated, on February 9, 2009, the parties formally dissolved their marriage in the Municipal Court in Sisak. The Municipal Court Judgment entered that day ordered that N.K. “will live with the mother Danijela Kovačić in Sisak...[and] parental care remains shared.”  The Judgment further set a specified schedule for Mr. Kovačić’s visitation with N.K., including every other weekend while N.K. was in school, “the first half of all winter, spring and summer school holidays, other holidays alternately, and according to the agreement of parents.”  

In 2015, Mrs. Harris and N.K. decided to travel to the United States to visit Mrs. Harris’ family. Mrs. Harris testified that she had relatives who have been living in the United States for a long time. N.K. was twelve-years-old at the time and needed to obtain a tourist visa. In order to do so, Mr. Kovačić notarized a statement declaring that he gave Mrs. Harris permission to request a tourist visa for their daughter. He further stated that “I also agree that once her visa is issued, my daughter has my permission to spend her winter school vacation, 2015-2016, in the United States of America, in the company of Danijela Kovačić.” On January 7, 2016, Mrs. Harris told Mr. Kovačić that she and N.K. would not be returning to Croatia. Mrs. Harris and N.K. testified that they decided to stay so that N.K. could enroll in school and take English classes. Fourteen days later, on January 21, 2016, Mr. Kovačić filed a Request for Return in Croatia under Article 3 of the Hague Convention.

          

          During the bench trial, N.K., testified that she did not want to return to Croatia with her father. She lived with her mother and stepfather in Elkton, Maryland. She objected to returning to Croatia because most of her family and friends were here in the United States; the friends she had in Croatia have moved to a different city. She also objected to living with her father in Croatia, testifying that he had never been there for her when she needed him, and she was afraid of what he might do after the court proceedings. She did testify that although she was not open to having a relationship with her father right now, she may in the future “if things changed, and he shows that he cares about me and about my decisions.”

          N.K. impressed this Court as an extremely mature fifteen-year-old. She was able to testify in great depth about her relationship with her father. N.K. seemed more mature and measured in her testimony than did her father. She did not attempt to embellish her testimony with respect to any physical reactions of her father. However, she was quite clear in referencing that even in past years “he was never there for me when I needed him.”

          Prior to trial, the Court held a hearing on Plaintiff’s motion for partial summary judgment on his affirmative Hague Convention claim. Plaintiff Kovačić established a prima facie case of wrongful retention. The Court also found Mr. Kovačić had joint custody rights over N.K.

          The Court observed, inter alia, that there is the “age and maturity” exception. This exception provides that a court is not required to order the return of a wrongfully removed or retained child if the court finds that “the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.” Hague Convention, Art. 13. The party objecting to the child’s return must prove that this exception applies by a preponderance of the evidence. 22 U.S.C. § 9003(e)(2)(B). A court must exercise discretion when evaluating this exception “because of the potential for undue influence by the person who allegedly wrongfully retained the child.” Trudrung v. Trudrung, 686 F. Supp. 2d 570, 576 (M.D.N.C. Feb. 10, 2010) (quoting Hazbun Escaf v. Rodriquez, 200 F. Supp. 2d 603, 615 (E.D. Va. 2002)). The Hague Convention does not set an age at which a child is mature enough for the court to take into account his or her objection to being returned. Luis Ischiu v. Gomez Garcia, 274 F. Supp. 3d 339 (D. Md. 2017) Therefore, the inquiry is necessarily a factual determination to be made on a case-by-case basis. See Rodriguez v. Yanez, 817 F.3d 466, 474 (5th Cir. 2016)

          Based on the testimony presented and the Court’s observations of N.K., N.K. attained an age and degree of maturity at which it is appropriate to take account of her objections to returning to Croatia. N.K. was over fifteen-years-old, and less than a year away from the age at which the Hague Convention would no longer apply to her. This Court observed her testify. She displayed a maturity for her age and demonstrated an understanding of the significance of the proceedings. She also spoke articulately considering English was not her first language and presented herself as well-mannered and intelligent. Mrs. Harris testified that since being in the United States, N.K. has made honor roll every grading period. The Court concluded that she had reached an age and degree of maturity for this Court to take account of her views. See Trudrung v. Trudrung, 686 F. Supp. 2d 570 (M.D.N.C. 2010)

          The court next pointed out that the district court’s finding that a child has or has not objected is a fact-intensive determination that is based in part on the court’s personal observations of the child. Custodio v. Samillan, 842 F.3d 1084, 1089 (8th Cir. 2016). The Court began by evaluating whether N.K.’s objections to returning to Croatia appeared to be the product of Mrs. Harris’ undue influence. See de Silva, 481 F.3d at 1286 (explaining that a “child’s wishes” should not be considered if the court finds that the child’s desires are the “product of undue influence”). Mr. Kovačić testified that N.K. had been “brain washed” by Mrs. Harris. N.K. testified that Mrs. Harris never spoke poorly or otherwise criticized Mr. Kovačić’s role as her father. N.K. testified that she would be open to having a relationship with her father in the future “if things changed, and he showed that he cared about [her] and [her] decisions.” On the other hand, N.K. testified that her father openly spoke poorly about her mother and the United States. Mr. Kovačić acknowledged in September of 2017 that Mrs. Harris encouraged N.K.’s relationship with her father.

The reasons behind N.K.’s objection to returning to Croatia demonstrated that she was not objecting merely because she had been in the United States with her mother since December of 2015. N.K.’s reasons for not wanting to return were similar to those in Vasconcelos v. Batista, 512 F. App’x 403, 408 (5th Cir. 2013), where the Fifth Circuit affirmed the district court’s application of the age and maturity exception when the child (1) expressed she did not want to visit her father when he was in the United States, (2) had particularized ties to the United States including that she had done well in school, was involved in extracurricular activities, and had been receiving treatment for epilepsy, and (3) had virtually no ties to Brazil and “barely any knowledge” of her father who had not communicated with her since she left Brazil.

          The Court found that N.K. was not objecting to returning to Croatia merely because of the length of time she had spent with her mother in the United States. She was objecting because she has had a difficult relationship with her father and had very few connections left in Croatia. The Court concluded that N.K. was of the “age and degree of maturity at which it is appropriate to take account of [her] views” and she “objects to being returned.” Hague Convention, Art. 13. Therefore, under the Hague Convention, although Mrs. Harris was wrongfully retaining N.K. in the United States, this Court was not bound to order her return to Croatia.

         

         The Court acknowledged its discretion to order the return of N.K. despite finding that the age and maturity exception applies and declined to do so.

Amdamaskal v Amdamaskal, 2018 WL 3360767 (D. Minnesota, 2018)[Israel] [Now settled defense] [Petition denied]

In Amdamaskal v Amdamaskal, 2018 WL 3360767 (D. Minnesota, 2018) the district court denied the Petition of Adis Marsha Amdamaskal (“Adis”) who sought the return of his children, M. and L., to Israel.

.         Adis immigrated to Israel from Ethiopia in 1991.  They were married in Ethiopia in 2002. After the marriage, Selamawit immigrated to Israel.  M. was born in 2006 while Adis and Selamawit were traveling in the United States. The family returned to Israel when M. was six months old. L. was born in Israel in 2011.  In March 2013, Adis was convicted of assaulting Selamawit and one of the children. Adis was sentenced to a conditional sentence of six months, with the condition being that he not be convicted of additional assaults.  Selamawit alleged that Adis regularly verbally and physically abused her during their marriage. Selamawit testified that she brought her children to the United States to protect them from Adis.  With Adis’s knowledge and permission, Selamawit and the children left Israel in January 2016 to visit family in Ethiopia. They were supposed to return to Israel on February 4, 2016, but instead Selamawit brought the children to the United States without the knowledge or permission of Adis. A few days after Selamawit traveled to the United States, Adis’s sister contacted one of Selamawit’s sisters in Ethiopia. Selamawit’s sister informed Adis’s sister that Selamawit had left for the United States.  Adis testified that Selamawit’s family thought that Selamawit had returned to Israel and that they did not tell him that she had departed for the United States. Documents in the record made it clear that Adis knew almost immediately that Selamawit and the children were in the United States. The Court therefore credited the written statement of Selamawit’s sister, that she told Adis’s sister that Selamawit went to the United States. On February 4, 2016—the same day that Selamawit and the children were supposed to return to Israel—Adis filed a complaint with the Israeli police concerning his missing wife and children. Ten days later, on February 14, 2016, Adis, through counsel, sent a letter and supporting materials to the Israeli Ministry of Justice entitled “Re: Application to Institute Proceedings Under The Hague Convention—Abduction of Minors.”  On February 29, 2016, Adis obtained an ex parte order from an Israeli court prohibiting the removal of the children from Israel. Adis also obtained a stay of leave order from the court dated March 1, 2016, apparently also prohibiting the children’s removal. Adis knew almost immediately that Selamawit and the children were in the United States. At least as early as March 2016, Adis knew that they were in Minnesota. And as of May 30, 2016, Adis knew that the children were probably living in St. Paul, where Selamawit’s sister and brother lived. Adis testified that he did not learn of his children’s whereabouts until sometime after March 2017. The Court did not credit this testimony. On March 7, 2017, Selamawit initiated divorce proceedings in Ramsey County District Court by serving Adis with a summons and petition for dissolution of marriage.  Adis initially filed what appeared to be a pro se response asking that the case be dismissed and citing, among other things, his Hague Convention application. In the meantime, the State Department formally notified the court that Adis had applied for the children’s return under the Hague Convention. The State Department explained that, as a result, the state court should refrain from making any custody determinations until the Hague Convention issue was resolved.. The state court eventually gave Adis until September 18, 2017 to initiate court proceedings under the Hague Convention.  Adis did not meet the September 18 deadline. But on or about October 17, 2017, Adis commenced this action in state court by serving Selamawit with a verified petition. Selamawit removed the proceeding to the district Court on October 31, 2017.

There was no dispute that Adis met his burden of proving that the children habitually resided in Israel, that their removal to the United States on or about February 4, 2016, was in breach of his custody rights, and that he was exercising those rights at the time of removal. Accordingly, the burden shifted to Selamawit to establish an affirmative defense to the children’s return. Custodio, 842 F.3d at 1089; 22 U.S.C. § 9003(e)(2).  Slamawit first raised the “well settled” defense—that is, she asserted that Adis commenced these proceedings more than one year after the wrongful removal and the children are now settled in their new environment. Lozano, 134 S. Ct. at 1229. The district court found that she had proven the elements of the well-settled defense. The Hague Convention permits a court to deny a petition for a child’s return if the petition was filed more than one year after the wrongful removal and the child is settled in her new environment. The one-year period is not a statute of limitations; instead, its expiration “opens the door to consideration of a third party’s interests, i.e., the child’s interest in settlement.” Lozano, 134 S. Ct. at 1234–35. For that reason, it is not subject to equitable tolling. Id. at 1236. Adis did not dispute that he did not commence these proceedings until more than one year had passed from February 4, 2016, the date of the wrongful removal. See Wojcik v. Wojcik, 959 F. Supp. 413, 418–20 (E.D. Mich. 1997) (submitting a Hague Convention application to the State Department does not stop the one-year clock). The only question, then, was whether the children are settled in the United States. In this context, “settled” means that “the child has significant emotional and physical connections demonstrating security, stability, and permanence in [her] new environment.” Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir. 2012), aff’d sub nom. Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (2014). In determining whether a child is settled, courts consider such factors as: (1) the age of the child; (2) the stability of the child’s residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent’s employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent.

All of these factors indicated that M. and L. were settled in their new environment. At the time Adis filed the petition, the children were 11 and 6 years old, which is old enough to form relationships and emotional ties to the community. They had also been here for over 20 months—over a fourth of L.’s life—and had lived with extended family in the same housing complex since their arrival. Selamawit took immediate steps to enroll the children in school—and it was clear, from the specific and affectionate testimony of the school official, that they were fully integrated into and thriving in their classrooms. They were fluent in English. Through their school and after-school programming, the children had connection to their local religious community. The older child, M., was involved in age-appropriate extracurricular activities. The children were also surrounded by extended family; they not only lived with their uncle and his wife, but they had an aunt and cousins nearby with whom they were close. Finally, Selamawit was legally authorized to work in the United States, had a full-time job, and had applied for asylum; M. was a citizen of the United States. The Court found that Selamawit met her burden of showing that the children were settled in their new environment.

The Court observed that even when a court has found a child to be settled in her new environment, the court retains the equitable discretion to order the child’s return if other factors—including “the need to discourage inequitable conduct”—outweigh the child’s need for stability. Lozano, 134 S. Ct. at 1237 (Alito, J., concurring); see also Tsai–Yi Yang v. Fu–Chiang Tsui, 499 F.3d 259, 278 (3d Cir. 2007) (even if the respondent establishes an affirmative defense, the court retains the discretion to return the child if necessary to effectuate the goals of the Hague Convention).  In this case, returning the children to Israel despite their settled status in the United States was not necessary to serve the purposes of the Hague Convention. Although Selamawit did not inform Adis of the children’s location, she did not hide their presence in Minnesota. Instead, she lived openly with relatives—relatives whose identities and whose presence in the United States were known to Adis. She also enrolled the children in school, obtained medical care for them, and applied for asylum.

Kovacic v Harris, 2018 WL 3105772 (D. Maryland, 2018) [Croatia] [Well-settled exception]

In Kovacic v Harris, 2018 WL 3105772 (D. Maryland, 2018) Plaintiff Ivica Kovačić (“Plaintiff” or “Kovačić”) sought the return of his daughter, “N.K.,” to Croatia. Plaintiff Ivica Kovačić and Defendant Danijela Harris (formerly Kovačić) were married on February 22, 2003 in Desna Martinska Ves, Croatia. On May 31, 2003, their daughter, “N.K.”, was born. Six years later, on February 9, 2009, the parties dissolved their marriage. In a Judgment dated that same day, the Municipal Court of Sisak, Croatia ordered that N.K. would “live with the mother Danijela Kovačić in Sisak...[and that p]arental care remain[ed] shared.”  The Croatian Court further ordered that Kovačić would have specified visitation time with N.K., pursuant to a schedule set out in paragraph III of the Judgment. Harris testified that after the divorce, Kovačić saw N.K. almost every other weekend. Two years later, Plaintiff moved to amend the Croatian Court’s Judgment, asserting that due to a change in circumstances N.K. should be entrusted to his care. The court declined to do so, noting a “problem of communication” between the parties “about their shared care of the minor child,” but finding that there was not a sufficient change in circumstances warranting an amended judgment.  In December of 2015, Harris departed Croatia and brought N.K. to the United States to see Harris’ sick aunt and grandmother. Kovačić had given Harris permission to apply for a tourist visa for N.K. and also agreed that N.K. could spend her winter school vacation from December of 2015 to January of 2016 in the United States. On January 7, 2016, however, Harris made the decision to stay in the United States. On January 6, 2017, Plaintiff filed suit under the International Child Abduction Remedies Act (“ICARA”), 22 U.S.C. § 9001, et seq., seeking the return of his daughter, “N.K.,” to her “habitual residence” in Croatia, On September 7, 2017, this Court approved the parties’ voluntary stipulation of dismissal on the ground that they had “agreed to settle this matter and ha[d] fully executed a settlement agreement.” Six months later, however, Plaintiff Kovačić filed a Motion for Relief from Judgment, asserting that Defendant had not honored commitments to intermittently send N.K. to Croatia. The Court granted Plaintiff’s Motion, and this case was scheduled for a two-day bench trial.

Plaintiff filed, among other things, a Motion in Limine to Admit Official Croatian Government Declarations, and a Motion for Partial Summary Judgment on Defendant’s Third Affirmative Defense.

The Court granted Plaintiff’s Motion in Limine to admit two declarations of Suncica Loncar, Senior Adviser Specialist for the Ministry for Demography, Family, Youth and Social Policy of the Republic of Croatia. He asserted that the declarations were instructive on the issue of whether Plaintiff had “rights of custody. The district court pointed out that it had  previously noted that “[i]t is well-established that the Hague Convention envisions that proof of foreign law may be established via ‘certificates or affidavits,’ Central Authority opinions, letters, and expert testimony.” Kovacic, 2017 WL 2719362, at *4 (citing Pérez-Vera Report, note 19; Whallon v. Lynn, 230 F.3d 450, 458 (1st Cir. 2000); Giampaolo v. Erneta, 390 F. Supp. 2d 1269 (N.D. Ga. 2004)). Further, Federal Rule of Evidence 44.1 provides that “[i]n determining foreign law, the court may consider any relevant material or source, including testimony.” Fed. R. Civ. P. 44.1.

Plaintiff Kovačić also moved for partial summary judgment on Defendant Harris’ third affirmative defense which invoked the “well-settled” exception in Article 12 of the Hague Convention, asserting that it was undisputed that he filed suit less than one year after he learned of the wrongful retention. He asserted that Defendant stated in a Response to an Interrogatory that she did not make the decision to stay in the United States until January 7, 2016, and he filed this action on January 6, 2017. Defendant did not dispute that Plaintiff filed the action within one year of the wrongful retention. Rather, she argued that “it has been an additional year and a half since the filing, and N.K. is settled and has built a life in the United States.” The district court held that the only relevant time period for considering whether the well-settled exception applies, is the time between the alleged wrongful removal and retention and the filing of the action. Because Plaintiff filed this action within one year of learning that Harris intended to keep N.K. in the United States, the well-settled exception did not apply. Plaintiff’s Motion for Partial Summary Judgment on Defendant’s Third Affirmative Defense was granted.

Medina v Villasanti, 2018 WL 3036558 (N.D. Texas, 2018)[Mexico][Habitual Residence][Petition denied]

In Medina v Villasanti, 2018 WL 3036558 (N.D. Texas, 2018) the district court denied Plaintiff Gloria Medina’s petition for return of child to Mexico. The district court found that bBeginning around 2007, Medina and Brandon Villasanti dated and lived together in Dallas, Texas, United States. In September 2009, Medina gave birth to a child (“SBV”) fathered by Villasanti. Eventually, Medina and Villasanti’s relationship ended. Medina and SBV moved to San Luis Potosi, Mexico while Villasanti remained in Dallas. For several years, Villasanti would annually visit Medina and SBV in San Luis Potosi. During the summer of 2015, Medina’s and Villasanti’s stories diverged. Medina alleged that Villasanti requested Medina’s permission to take SBV to the United States merely for a limited vacation. To memorialize this agreement, Villasanti sought Medina’s signature on a contract written in English. But because Medina only understood Spanish, Villasanti orally translated the agreement to Spanish for her. Medina maintained that Villasanti’s translation of the agreement matched his initial request: to take SBV to the United States for a brief vacation. Thus, Medina signed the agreement. Villasanti claimed instead that he clearly requested and received Medina’s permission to take SBV to the United States indefinitely. In support, Villasanti produced the agreement at issue. Signed by Villasanti on July 31, 2015, notarized on the same day, and signed by Medina a day later, the agreement indicated that Medina granted permission for SBV to travel and live with Villasanti and that Medina trusts Villasanti to take care of SBV while she is living with him. Villasanti further claimed that his translation of the agreement to Spanish accurately reflected its terms, including that it would allow him to retain SBV without any temporal limit. Based on the agreement, Villasanti took SBV to Dallas. According to Medina, Villasanti began wrongfully retaining SBV in late August of 2015 when he did not return the child to Mexico. As a result, Medina filed the petition for return of SBV. The Court found Villasanti to be the more credible witness and, in all cases where Medina’s testimony conflicted with Villasanti’s testimony, the Court accepted Villasanti’s account.


The district court noted that Medina’s petition was  one for wrongful retention. The threshold inquiry in any wrongful retention case is determining which country is the child’s habitual residence. The Fifth Circuit adopted its framework for making country of habitual residence determinations. Larbie, 690 F.3d at 310. The inquiry balances the interests of the child with the intentions of the parents.  A court’s “inquiry into a child’s habitual residence is not formulaic; rather it is a fact-intensive determination that necessarily varies with the circumstances of each case.” When determining a child’s country of habitual residence, analysis focuses on the “parents’ shared intent or settled purpose regarding their child’s residence.. The inquiry balances the interest of the child with the parents’ intentions, but gives greater weight to the parents’ subjective intentions when the child is relatively young and incapable of deciding residency. Absent shared intent, “prior habitual residence should be deemed supplanted only where ‘the objective facts point unequivocally’ to this conclusion.” Mozes, 239 F.3d at 1082. “Notably, when ‘the child’s initial move from an established habitual residence was clearly intended to be for a specific, limited duration[,]...most courts will find no change in habitual residence.’ 

The Court determined that SBV’s habitual residence at all times relevant to Medina’s petition had been the United States. Prior to August 2015, SBV’s habitual residence was Mexico: the fact that SBV resided there with Medina for several years with Villasanti making annual visits exhibits the parents’ shared intent for the child to remain in Mexico. But, when Villasanti took SBV to the United States in August 2015, that changed. Although the parties disputed the length of time that Medina allowed Villasanti to take SBV to the United States, the Court credited Villasanti’s testimony on this matter. Villasanti produced the written agreement at issue, which did not include any temporal limit. Where a written agreement between the parents determines the child’s habitual residence it controls. As a result, the parties evinced a shared intent in August 2015 to change SBV’s habitual residence to United States. Thus, because SBV habitually resided in the United States at the time Medina filed the  petition and Medina consented to SBV’s residing there indefinitely, Villasanti had not wrongfully retained SBV.

The district court also determined first, that even assuming that Medina has made a prima facie case for wrongful retention, Villasanti  met his burden under ICARA to prevent SBV’s return to Mexico. Villasanti established by clear and convincing evidence that there was a grave risk that SBV’s return to San Luis Potosi would expose her to physical harm. In support, Villasanti produced photographs of SBV’s arms taken mere months after her arrival in the United States in August 2015. The images demonstrated that SBV was ravaged by bugs while residing in Mexico over the previous several years.  Villasanti testified that pickup trucks full of civilians armed with automatic weapons openly drive on the public streets of Medina’s village. Villasanti also testified that SBV was malnourished when he picked her up in Mexico. The Court credited Villasanti’s photographs and testimony as sufficiently establishing a grave risk of physical harm to SBV if returned to Mexico.

It also found that Villasanti also established by a preponderance of the evidence that Medina consented to Villasanti’s retention of SBV in the United States. 

Even if Medina did not consent to the retention, it found that SBV was settled in her new environment. Longer than a year elapsed from the date of the alleged wrongful retention and the filing of the and Villasanti testified at trial that SBV (1) had been enrolled in school since her arrival in the United States, (2) lived in a home with Villasanti and her grandparents, and (3) repeatedly said she did not want to return to Mexico when asked. Collectively, this testimony established by a preponderance of the evidence that SBV was settled in her new environment.
Signed June 19, 2018.

Martinez v Urena, 2018 WL 2451199 (EDNY, 2018)[Dominican Republic] [Return remedy] [Enforcement]

        In Martinez v Urena, 2018 WL 2451199 (EDNY, 2018) Petitioner moved the Court for an order directing the parties’ twin boys be returned to the Dominican Republic in accordance with a stipulation of settlement which was previously “so-ordered” by the district court. The lawsuit was commenced in November 2016. The complaint recited that petitioner was a citizen of the Dominican Republic. Respondent was a citizen of the United States and the Dominican Republic. The parties were married in 2010. After their marriage, the parties tried unsuccessfully to obtain a United States visa for petitioner. In October 2013, after the parties’ twin boys were born, respondent proposed that he bring them to the United States and that petitioner continue with the visa-application process so that she could join them. Petitioner authorized the children to travel to the United States in 2014 but did so on the implicit condition that she would join them in the United States as soon as her visa application was granted. After the two boys traveled to the United States to meet respondent (no later than July 28, 2014), respondent filed divorce papers against petitioner in the Dominican Republic. Respondent then informed petitioner that he intended to keep the children with him in the United States. Respondent obtained a default custody order in Queens Family Court. Petitioner did not participate in the proceeding. On July 28, 2015, exactly one year after the date that her second child traveled to the United States, petitioner filed an application under the Hague Convention. Petitioner then filed this complaint in federal court in November 2016 seeking the return of her twin boys under the Hague Convention.

         In January 2017, the parties entered into a stipulation, which provided (in relevant part): 1. Custody, including temporary custody, of the Children, AAUM and ASUM, shall be determined by a court in the Dominican Republic; 2. Petitioner shall commence the custody proceeding in the Dominican Republic by February 10, 2017; 3. Respondent shall subject himself and, if required by a court in the Dominican Republic, the Children[,] to the jurisdiction of the court in the Dominican Republic for purposes of such custody proceeding;  4. If the Children must be present in the Dominican Republic for purposes of such custody proceeding or for the court in the Dominican Republic to obtain jurisdiction over them, the Children shall be made present in the Dominican Republic for such purposes; * * * 9. The Court shall retain jurisdiction over this matter for purposes of enforcing this Stipulation and Order. The parties submitted the proposed agreed-to stipulation to the Court, which “so-ordered’ it.

  As contemplated by the stipulation, petitioner commenced a proceeding for custody in the Dominican Republic. The Dominican Republic court held a hearing on the case in January 2018 and dismissed the case. Petitioner then filed this motion for an order directing the children to be returned to the Dominican Republic. Petitioner attached to he motion a translation of the Dominican Republic court’s opinion dismissing the case. According to petitioner, the dismissal was for lack of jurisdiction because the children resided in the United States with their father. Article 90 of the Dominican Republic Code 136-03, states that a custody claim must be filed in the court where the person with guardianship over the children resides. According to petitioner, this dismissal was without prejudice and petitioner could bring her case again if respondent returns the children to the Dominican Republic. To support this interpretation, petitioner provided a declaration of her counsel from the Dominican Republic, sworn under penalty of perjury.
The Petitioner then made the current motion. The district court observed that this case and the Petitioner’s motion was based on the Hague Convention and that the return remedy does not alter the pre-abduction allocation of custody rights but leaves custodial decisions to the courts of the country of habitual residence. Art. 19; see also 22 U.S.C. § 9001(b)(4). Petitioner sought an order enforcing the stipulation and order to which both parties agreed, which was intended to resolve petitioner’s claim under the Hague Convention that respondent wrongfully removed their children from the Dominican Republic to the United States because he removed the children in breach of her rights of custody over them.  

         The district court pointed out that Respondent’s opposition did not challenge the Court’s authority to enforce the parties’ agreed-to order but made several arguments on the merits of petitioner’s underlying complaint. First, respondent argued that petitioner could not bring her claim under the Hague Convention because she granted permission for the children to travel to the United States in the first instance.  Second, respondent argued that bringing the children to the Dominican Republic would be futile because the court in the Dominican Republic has already determined that he has legal custody, or, in the alternative, it would be futile because the Dominican Republic court will simply defer to the Brooklyn Family Court’s current custody order. It rejected this argument because that Court did not decide the merits of the claim but dismissed the case for lack of jurisdiction because the children resided in the United States with their father. Furthermore, respondent has not cited any provisions of Dominican Republic law to support his argument that the Dominican Republic court would defer to the Brooklyn Family Court if the children were returned to the Dominican Republic. Finally, respondent argued that Hague Conviction did not apply because “petitioner waited more than a year to bring the instant motion before this Court.” The court pointed out that Defendant appeared to be invoking the “now settled” defense in Article 12 of the Convention. A respondent who opposes the return of the children has the burden of proving this exception under Article 12 applies, meaning that he must establish, by the preponderance of the evidence, that (1) the petitioner did not file the petition within one year of the time that the child was wrongfully removed or retained and (2) the child has become settled in the new environment.

  The district court found that the Respondents argument was misplaced. It attacked the underlying petition, which was already resolved through the parties’ stipulation and was not at issue in this motion. Moreover, even if it were appropriate to consider respondent’s “now settled” defense to the underlying petition respondent did not submit any evidence that the children have become settled in their new environment.

  Petitioner sought to enforce an order previously issued by this Court. None of respondent’s arguments in opposition provided reasons why the Court should not issue the requested order. However, 22 U.S.C. § 9004(b) limits a court’s authority to “order a child removed from the person having physical control of the child unless the applicable requirements of State law are satisfied.” Petitioner did not submit any evidence that the order she requested requiring respondent to surrender the children to her or a Court-appointed guardian complied with New York state law. The Court therefore granted petitioner’s request for an order enforcing the terms of the parties’ stipulation as follows: “Respondent is directed to return the children to the Dominican Republic as promptly as possible, but no later than 60 days from the date of this order. Respondent must pay the children’s reasonable travel expenses to return. The children must remain in the Dominican Republic for however long is required for a Dominican Republic court to exercise jurisdiction over them and the parties’ custody dispute. If respondent wishes the children to return in the company of petitioner or another temporary guardian appointed by the court, in lieu of returning with them to the Dominican Republic himself, he may do so, but must inform the Court of this choice within 14 days.”

Takeshi Ogawa v Kynong Sun Kang, 2018 WL 2376338 (D. Utah, 2018) [Japan] [Rights of Custody] [Petition denied]

In Takeshi Ogawa v Kynong Sun Kang, 2018 WL 2376338 (D. Utah, 2018)  Petitioner Takeshi Ogawa’ sought the ruturn of the parties twins to Japan. Ogawa and Kang were married and lived together in  Japan. Ogawa was a Japanese national, and Kang was a South Korean national. Ogawa and Kang were the parents of twelve-year-old twins, N.O and N.O. The family lived together, mostly in Japan, until 2012. In April 2012, Kang and the twins relocated to the United States while Ogawa remained in Japan. The parties were intending to divorce at that time. In March 2013, Ogawa and Kang finalized their divorce by mutual agreement. Pursuant to the agreement, Kang returned the children to Japan and Ogawa’s custody. Although the agreement stated that Ogawa was to hand over the children to Kang on March 31, 2017, Ogawa kept the children living with him in Japan. Kang stated that she made efforts with authorities in Japan to have the “hand-over” provision of the divorce agreement enforced but she received no help and was unable to have the children turned over to her. The divorce agreement also stated that commencing in April 2017, Ogawa would pay 30,000 yen for each child each month to an account designated by Kang. However, Kang alleged that Ogawa had paid nothing. In October 2017, the twins traveled from Japan to South Korea to celebrate a traditional Korean festival with their maternal grandparents. Ogawa intended to travel to South Korea after the festival to pick up the twins and return with them to Japan. However, Kang was in South Korea during the time of the festival and took the children back to the United States with her. Kang sent a text to Ogawa with a picture of the children and a message that the children were doing well in the United States. Ogawa responded to the text message with several objections. However, Kang did not respond. After several weeks, on October 23, 2017, Kang responded that the twins were very happy and doing well. She also stated that Ogawa “would have never cooperated and allowed the kids to come to the USA. I’m sorry, this is the only way I could have got them.”

After trial, the Court found that Petitioner failed to meet his burden of showing by a preponderance of the evidence that the removal of the twins was in breach of Ogawa’s custody rights under the parties’ divorce agreement. The court concluded that the only clear reading of the agreement was that Ogawa gained physical custody of the children until March 31, 2017, at which time he would deliver the children to Kang and begin paying monthly child support. There was no provision in the Agreement stating that Kang would return the children to Ogawa after she was given physical custody of the children on March 31, 2017. In addition, the agreement provided that Ogawa would pay monthly child support to Kang until the children were twenty years old. This provision clearly demonstrated that the parties intended that Kang would have the primary physical custody of the children from March 31, 2017, forward.

          In dicta, the Court applied the  “age and maturity” exception, and concluded that  even if the court had found that Ogawa had demonstrated a prima facie case, the girls wereof an appropriate age and maturity such that it was appropriate for the court to take into account their desire to stay in Utah with their mother and not to return to Japan to live with their father. The court denied  Ogawa’s petition for the return of the children under the Hague Convention.