Darin v. Olivero-Huffman, --- F.3d ----, 2014 WL 1053775 (C.A.1 (Puerto Rico)) [Argentina] [Habitual Residence] [Consent] [Acquiescence] [Petition granted]

In Darin v. Olivero-Huffman, --- F.3d ----, 2014 WL 1053775 (C.A.1 (Puerto Rico)) Lisandro Jonathan Darin ("Darin") initiated  proceedings against Lua Cecilia Olivero-Huffman ("Olivero"), seeking the return of their son ("LAD") to Argentina from the United States. In 2007 the parties entered into a romantic relationship. Olivero became pregnant, and by then the parties were living together in Olivero's apartment. During the pregnancy, Darin and Olivero traveled together to the United States, returning to Argentina prior to the arrival of their son. LAD was born in Buenos Aires on April 20, 2008, and was a citizen of both the United States and Argentina. Following the birth of their son, the parties moved into a Buenos Aires apartment Darin had inherited from his father.  

      On January 31, 2011, the family traveled to the United States. Their first stop
was Orlando, Florida, where they spent a total of four days. The family then moved
on to Puerto Rico. At the outset of the trip, the plan was to spend some time in
Puerto Rico with Olivero's family and then fly back to Argentina on March 2, 2011.
However, during their stay in Puerto Rico, the plan began to change and the date
of return was pushed back due to Olivero's involvement in a car accident and her
apparently new-found interest in pursuing a business venture with her sister.
Around mid-March 2011, Olivero announced to Darin that neither she nor LAD would
be returning to Argentina. Darin remained on the island as long as he could, but
his tourist visa was set to expire in July 2011.   On July 7, 2011-just two days before Darin's departure-Darin and Olivero executed an affidavit regarding the care and supervision of their son during Darin's absence. Olivero drafted the Affidavit herself. The Affidavit's terms authorized her to take any steps necessary to provide for the education, health care, and overall well-being of the child. A provision authorizing the child to travel with either parent was there as well. At Darin's insistence, language was included stating he was leaving the United States "against his will" and was not abandoning his child. He eventually left the country on July 9, 2011.  Thereafter, although separated geographically, Darin maintained continuous and frequent communication with his son.

    On November 18, 2011, Olivero filed for legal custody of LAD in Puerto Rico
state court. According to the custody petition, Olivero filed so that she could
"send [LAD] to visit [Darin] at Christmas," since they had not been able to reach
an agreement and she feared the retention of the child.  On December 19, 2011,
Darin filed an application under the Convention with the Argentina Central
Authority requesting the return of his son to Argentina. On February 22, 2012,
Darin filed the action with the federal district court in Puerto Rico, alleging Olivero's actions amounted to a "wrongful retention" of his son.

        After holding a hearing the district court concluded that Darin had not met his
burden of establishing a wrongful removal or retention. Indicating that the
alleged removal or retention had occurred in July 2011, on the date which Darin
left Puerto Rico, the court found that as of that time "a new habitual residence in [the United States] was acquired based on the parents' shared intention in signing the affidavit."  Darin had, according to the court, "acquiesced/consented" to LAD remaining in Puerto Rico. The court concluded that because LAD "was a habitual resident of Puerto Rico at the time of the claimed removal or retention," the retention or removal was not wrongful. It denied Darin's petition and dismissed his claims.

           The First Circuit reversed. No one disputed that  Darin had custody rights over LAD or that he was exercising them at the time of the alleged retention. The only question was whether Darin established by a preponderance of the evidence that Argentina ( was LAD's habitual residence prior to his retention. The district court thought Darin fell short, Upon  de novo review the First Circuit disagreed with it and found that he established habitual residence in Argentina.

  The First Circuit diverged from the district court on the question of when
LAD's alleged retention occurred. The district court indicated that the relevant date of retention was July 2011, which was when Darin left Puerto Rico. Darin argued that the retention occurred in mid-March 2011, when Olivero informed him that she would be remaining in Puerto Rico. The Fifth Circuit found the record supported Darin's position. By mid-March 2011, Olivero made it clear to Darin that she and their son would be permanently residing in the United States. Her actions afterwards only confirmed this. Olivero, true to her word, refused to return to Argentina.  Once Olivero decided to stay in the United States with the child, there was nothing Darin could do to prevent a separation from his son. His tourist visa excluded the possibility of staying indefinitely with LAD in the United States, and he could not take LAD back to Argentina because the POA authorizing the child to travel with only one parent had been revoked.  As of mid-March 2011, Darin had no legal way of remaining with his son.

The next question was whether Argentina was LAD's habitual residence in mid-March 2011. The Court observed that a child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective. In cases involving more than one potential residence, a distinction must be made between the abandonment of a prior habitual residence and the acquisition of a new one.  When the question is whether a young child-lacking both the material and psychological means to decide where he or she will reside-has abandoned a prior
habitual residence, "the intention or purpose which has to be taken into account
is that of the person or persons entitled to fix the place of the child's residence." Mozes, 239 F.3d at 1076.  Generally, it is "the parents' shared intent or settled purpose regarding their child's residence" that guides the inquiry.  One parent's wishes are not sufficient, by themselves, to effect a change in a child's habitual residence.   Utilizing Darin's July 2011 departure date as the operative date of retention, the district court found that the Affidavit (signed a couple days before), "clearly show[ed] the parents' last shared intent in determining habitual residence." The court's ultimate conclusion was the United States was LAD's habitual residence prior to the alleged retention. Upon conducting a de novo review, the Fifth Circuit concluded that this determination was flawed.   Based on the uncontested facts, it was safe to say that, prior to mid-March  2011, the parties' shared intent was not for the child to be a habitual resident
of the United States. It was the parties' shared intent to return to Argentina on March 2, 2011. Olivero did not deny this was the plan; she testified as much. Olivero admitted it was she who had a change of heart once in Puerto Rico and decided to stay there with her son. A unilateral decision is not enough. There was simply no evidence in the record from which the district court could have found a mutual intent to change their son's habitual residence on the date of retention.   Furthermore, the district court was misguided in emphasizing LAD's acclimatization to the United States for purposes of its habitual residence determination. Evidence of acclimatization is not enough to establish a child's habitual residence in a new country when contrary parental intent exists. See Mozes, 239 F.3d at 1078-79. A "change in geography" and "the passage of an appreciable period of time ... that is sufficient for acclimatization" are considerations for the court when "the decision to alter a child's habitual residence depends on the shared settled intention of the parents."  In the absence of shared parental intent, the district court should have "be [en] slow to infer ... an earlier habitual residence has been abandoned."    The evidence on record did not show that the parties shared an intent to change LAD's habitual residence to the United States, but instead it pointed only to Olivero's individual intent to do so. Accordingly, it concluded that the district court's finding otherwise was clearly erroneous. Applying the de novo standard of review the ultimate habitual residence determination calls for it found that Darin had established by a preponderance of the evidence that LAD's habitual residence as of the retention was Argentina, and that Olivero wrongfully retained LAD in the United States.

The Fifth Circuit found that the district court, incorrectly using the terms consent and acquiescence interchangeably, found that Darin had agreed to LAD remaining in the United States. It found that Darin, by signing the Affidavit, "voluntarily and without
intimidation, threats or coercion" was agreeing that LAD could stay in the United
States for an indefinite period of time. The district court also found that Darin had "consent[ed] to LAD's retention in the United States because he "failed for five
(5) months to make any meaningful effort to obtain return of the minor child and
failed to pay any child support." The evidence on record compelled the Fifth Circuit to conclude that the district court got it wrong.

The consent inquiry focuses on the time prior to the retention and therefore Darin's signing of the Affidavit was out of play. Focusing on the parties' conduct prior to mid-March 2011, there was little Olivero could rely on to support a consent defense during this time period. The objective facts in the record pointed to one conclusion only: Darin did not consent to LAD's retention in the United States in mid-March 2011. Olivero did not make the required preponderance-of-the-evidence showing and her consent defense failed. Because the defense of acquiescence pertains only to what happened post-retention, the relevant period was  between mid-March 2011
and Darin's filing of the petition for return on December 19, 2011.  Acquiescence tends to require more formality than consent. When attempting to characterize ambiguous conduct as a basis for inferred acquiescence, courts employ a pure subjective intent inquiry. The subjective intent refers to the subjective intent of the parent who is claimed to have acquiesced. Olivero's primary argument was that the Affidavit evidences Darin's acquiescence to LAD remaining in the United States. This was a dead end. Acquiescence to LAD's retention in the United States could not be found in the plain language of the Affidavit, nor could the Affidavit be read to imply such. The district court was mistaken in concluding it did.  A reading of the Affidavit revealed no mention in the entire two-page document, express or implied, of establishing a new residence in, or permanently relocating to, the United States.  Also, the fact that the Affidavit contained open-ended terms was not evidence that Darin acquiesced to LAD remaining permanently in the United States. Both parties testified that they executed the Affidavit so Olivero could take care of LAD while Darin was away.  In light of the Affidavit's language and the parties' testimony as to their reasons for its execution, the Affidavit simply could not be read as a declaration of acquiescence, much less unconditional acquiescence, to the retention of the child in the United States. The defense of acquiescence calls for definiteness and clarity, i.e., a clear and unequivocal expression of an agreement or a convincing written renunciation of rights. The Affidavit fell far short.    Moreover, the Affidavit did not support the district court's alternative finding that it functioned as a renunciation of rights under the Convention.

    Olivero contended that Darin's acquiescence could be inferred from some of
his actions after he left Puerto Rico. She argued that Darin's filing of the  petition for return in December 2011 was inconsistent with Darin opposing LAD's relocation to the United States. That Darin took around five months to file the petition after he was back in Argentina was not enough to constitute acquiescence. The fact that Darin officially filed on December 19, 2011 did not mean he decided to pursue legal action on that day.    Furthermore, the Convention allows for a petition to be filed up to a year after the wrongful retention. See Convention, supra Article 12 at 1502. And even when a petition is filed after the one year period, there are instances where a federal court may still order a child's return. To say that Darin acquiesced because he filed within the time prescribed by the Convention is irrational. It would render the Convention's one year provision pointless. Darin had a full year to file his petition, and he did file within that year. In this particular instance, the passage of time between Darin's departure from the United States and his filing of a timely petition for return was not probative of acquiescence.

      Darin established wrongful retention by a preponderance of the evidence.
Because Olivero did not introduce sufficient evidence to establish Darin's consent
or acquiescence to this retention, the court  ordered the return of LAD to Argentina.

Mendoza v Silva, 2014 WL 658068 (N.D.Iowa) [Mexico] [ Attorneys Fees] [Clearly inappropriate]

In Mendoza v Silva, 2014 WL 658068 (N.D.Iowa)   Plaintiff Maria Guadalupe Aguilar Mendoza, a citizen of Mexico, filed an action pursuant to the Hague Convention to secure the return of her daughters, to Mexico. After the district court ordered Mr. Medina to transfer the minor children to Ms. Mendoza at the United States/Mexico border in Nuevo Laredo, Mexico, the case was before the district court on Ms. Mendoza's December 20, 2013, Motion For attorney's fees totaling $32,265.00 and expenses totaling $3,084.62.

Mr. Medina contended that no award of fees or expenses was appropriate because he believed (and still believes) in good faith that the parties had an agreement for the children to come to and remain in the United States to start school; the attorney's fees and costs claimed by Ms. Mendoza were not reasonable and, were  approximately three times his own attorney's fees; and he was earning only approximately $9.00 per hour, so that he could not possibly afford to pay any attorney's fees or expenses in this matter.

         The district court surveyed the relevant cases under  42 U.S.C. § 11607(b)(3) and observed that there is a relatively small, but significant group of decisions of the Circuit Courts of Appeals concerning the standards for awards of fees and expenses under these provisions. (Citing Hollis v. O'Driscoll, 739 F.3d 108, 113 (2d Cir.2014) ; Ozaltin v. Ozaltin, 708 F.3d 355, 377 (2d Cir.2013); Whallon v. Lynn,  356 F.3d 138, 140 (1st Cir.2004);  West v. Dobrev, 735 F.3d 921, 932 (10th Cir.2013). The appropriate standards for awarding fees and expenses in international child return cases are as follows: [Section] 11607(b)(3) retains what we have previously described as the  "equitable" nature of cost awards.  Moore v. County of Delaware, 586 F.3d 219,  221 (2d Cir.2009).... [A] prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of  equitable principles by the district court. Absent any statutory guidance to the  contrary, the appropriateness of such costs depends on the same general  standards that apply when "attorney's fees are to be awarded to prevailing  parties only as a matter of the court's discretion." Fogerty v. Fantasy, Inc.,  510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994)."There is no precise  rule or formula for making these determinations, but instead equitable
 discretion should be exercised in light of the [relevant] considerations."Ozaltin, 708 F.3d at 375.   The Circuit Courts of Appeals have also provided guidance on specific considerations that go into the district court's exercise of its discretion and equitable consideration of claims for fees and expenses in international child return cases. First, where the respondent "is not blameless for the current state of affairs," the Tenth Circuit Court of Appeals has held that an award of fees and expenses is not "clearly inappropriate."  West, 735 F.3d at 933.   On the other hand, where the respondent had a "reasonable basis for thinking at the time of removing the children to the United States ... that her actions were consistent with [the law of the country of habitual residence]," that belief, even if mistaken, "is a relevant equitable factor when considering whether a costs award is appropriate." Ozaltin, 708 F.3d at 375. Also, "[a]t least two courts of appeals have recognized that a fee award in a case under the Convention might be excessive and an abuse of discretion if it prevents the respondent-parent from caring for the child." Norinder v. Fuentes, 657 F.3d 526, 536 (2d Cir.2011) (citing  Whallon, 356 F.3d at 139, and  Rydder, 49 F.3d at 373-74).   Several district courts have not simply reduced awards of costs in light of a respondent's inability to pay, but have declined to award costs at all, where the losing respondent would be unable to pay any amount of an award, on the ground that any award would be "clearly inappropriate" in such circumstances.

      The district court concluded that it was "clearly inappropriate" to award any of Ms. Mendoza's claimed legal fees against Mr. Medina. The court found it to be a very close case. It believed that Mr. Medina had a mistaken, but nevertheless good faith belief that the parties had agreed that he would take the children to the United States where they would attend school. See  Ozaltin, 708 F.3d at 375. Just as importantly, it  found that Mr. Medina's financial circumstances made it "clearly inappropriate" to award any substantial amount of attorney's fees against him. Doing so would interfere with his ability to provide other support to his children. Mr. Medina earned approximately $9 per hour, and the record did not show that he had any other assets from which so large a fee award could be satisfied. However, with regard to Ms. Mendoza's claimed expenses it found that even considering Mr. Medina's financial condition, awarding some share of Ms. Mendoza's expenses is consistent with the goals of Article 26 of the 1980 Hague Convention and 42 U.S.C. § 11607(b)(3); and, in part, because Ms. Mendoza had some obligation to pay these expenses out-of-pocket, even if her legal representation was pro Bono.  It awarded her one-half of her claimed expenses, that is $1,542.31,against Mr. Medina.

Neergaard v Colon, 2014 WL 936691 (D.Mass.) [Singapore] [Habitual Residence] [Petition Granted]

In Neergaard v Colon, 2014 WL 936691 (D.Mass.) Petitioner Peter Moeller Neergaard, a Danish citizen, and respondent Lisette Neergaard Colon, a United States citizen, lived in Singapore with their two minor daughters, S.S. and L.A.  Petitioner and respondent were married. Petitioner worked for a software company in Singapore.. His employer expects him to work in Singapore for three years, beginning in June 2012. Respondent, who worked for the Boston Public Schools, requested an extension of her maternity leave through June 2015, the conclusion of the three-year period. The couple had two daughters, S.S., age 3, and L.A., age 2. The daughters were dual Danish and American citizens.   In December 2013, the parties and the children traveled to Denmark to celebrate Christmas. They agreed that on January 4, 2014, respondent and her children would fly to the  United States and remain here for two weeks. Respondent reserved seats for herself and the children on a return flight to Singapore on January 20, 2014, but they did not board the plane. Since that time, the parties were unable to resolve the situation among themselves. The remained in the United States. Petitioner filed a verified petition for immediate return of the children to Singapore pursuant to the Hague Convention. After a hearing the district court granted the petition. 

Respondent did not challenge the substantive allegations of the petition , nor did she allege that any of the  exceptions excusing the ordering of immediate return upon a finding of wrongful retention applied. The dispute  boiled down to the following question: what was the children's habitual residence immediately preceding the retention? If it was Singapore, the retention is unlawful. If it was the United States, it is lawful.

Petitioner contended that "[t]he parties' only shared intention was to leave the U.S. and reside in Singapore. The parties rented a house in Singapore and shipped their belongings there. They  opened a bank account and bought health insurance in Singapore. They enrolled S.S., their eldest daughter, in educational programs. Both daughters  lived in Singapore for the majority of their lives. They had regular "play dates" with friends there. Id. In short, "[t]he children have become  accustomed to life in Singapore since their arrival in June 2012.

Respondent contended that the parties understood that the move to Singapore 
was temporary; they did not agree to stay there beyond the three-year job assignment. Petitioner had obtained permanent resident status in the United States and met with an attorney to make sure the move to Singapore did not  compromise that status. They owned two condominiums in Boston, the second of which they purchased the week  before they moved.  Respondent did not extend her maternity leave beyond the end of the three-year assignment and intends to return to work at that time.   According to her, "[p]eople who share an intent to abandon the United States for a new home in Singapore do not behave in that manner.”

The district court found that the parties agreed to move to Singapore for three years, and the three-year period had not yet elapsed. "To establish an habitual residence, it is not necessary to have an intention to stay in a place indefinitely."  McManus v. McManus, 354 F.Supp.2d 62, 67 (D.Mass.2005). What is  required is a " 'sufficient degree of continuity to be properly described as settled.' "  Feder v. Evans-Feder, 63 F.3d 217, 223 (3d Cir.1995) (quoting re Bates, No. CA 122-89, High Court of Justice, Family Div'l Ct. Royal Courts of Justice, United Kingdom (1989)). Petitioner found work in Singapore and the parties settled there to live as a family, even if not indefinitely. They did what people who settle in a new place do: find a house, open financial accounts, establish medical care, and explore schooling options. Respondent's intention not to remain there cannot overcome this undisputed fact. The Court found that the parties' shared the intention that S.S. and L.A. reside in Singapore. The record showed that S.S. and L.A. had acclimated to Singapore.  Given the parties' shared intention to live in Singapore as a family and the degree to which  S.S. and L.A. have adapted to life there, the court found that  Singapore was the children's place of habitual  residence in January 2014 when respondent retained them in the United States, and granted the petition.

Lozano v. Montoya Alvarez [United Kingdom] [Equitable tolling]

In Lozano v. Montoya Alvarez, --- S.Ct. ----, 2014 WL 838515 (U.S.) Respondent Montoya Alvarez and petitioner Lozano resided with their daughter in London until November 2008, when Montoya Alvarez left with the child for a women's shelter. In July 2009, Montoya Alvarez and the child left the United Kingdom and ultimately settled in New York. Lozano did not locate Montoya Alvarez and the child until November 2010, more than 16 months after Montoya Alvarez and the child had left the United Kingdom. Lozano filed a Petition for Return of Child pursuant to the Hague Convention in the Southern District of New York.

The United States ratified the Hague Convention in 1988, and Congress implemented the Convention that same year through the International Child Abduction Remedies Act (ICARA). 102 Stat. 437, 42 U.S.C. §§ 11601–11610. That statute instructs courts to “decide the case in accordance with the Convention.” § 11603(d). Echoing the Convention, ICARA further provides that “[c]hildren who are wrongfully removed ... are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies.” § 11601(a)(4). ICARA requires the abducting parent to establish by a preponderance of the evidence that Article 12's exception to return applies. § 11603(e)(2)(B). Article 12 of the Convention states the general rule that when a court receives a petition for return within one year after the child's wrongful removal, the court “shall order the return of the child forthwith.”  Article 12 further provides that the court, “where the proceedings have been commenced after the expiration of the period of one year [from the date of the wrongful removal], shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.” Thus, at least in some cases, failure to file a petition for return within one year renders the return remedy unavailable. 

Finding that the petition was filed more than one year after removal, the district court denied the petition on the basis that the child was now settled in New York. It also held that the 1–year period could not be extended by equitable tolling. In re Lozano, 809 F.Supp.2d 197, 204 (S.D.N.Y.2011). “Viewing the totality of the circumstances, ” the court found sufficient indicia of “stability in her family, educational, social, and most importantly, home life,  to conclude that the child was settled in her current environment and that repatriation would be “extremely disruptive Lozano argued that the child should be returned forthwith because the 1–year period in Article 12 should be equitably tolled during the period that Montoya Alvarez concealed the child. The court rejected that argument, holding that the 1–year period could not be extended by equitable tolling. The District Court held in the alternative that even if equitable tolling could apply, it would not be warranted in this case because Lozano had contact information for Montoya Alvarez' sister Maria in New York. Lozano's solicitors did not attempt to contact Maria to determine if Montoya Alvarez and the child were there. 809 F.Supp.2d, at 229–230. Consistent with Second Circuit precedent, see Blondin v. Dubois, 238 F.3d 153, 164 (2001), the District Court also considered “whether to exercise its discretion and repatriate the child even though she was now settled in New York.” 809 F.Supp.2d, at 234. The court declined to exercise that discretion because the “strong evidence that the child is quite settled in New York” outweighed Lozano's “fairly diligent” search efforts and Montoya Alvarez' conduct. On appeal, the Second Circuit affirmed. 697 F.3d 41 (2012). The Court of Appeals agreed that the 1–year period in Article 12 is not subject to equitable tolling. The United States Supreme Court, in an opinion for a unanimous court by Justice Thomas, held that Article 12's 1–year period is not subject to equitable tolling and affirmed.

In re One Infant Child, 2014 WL 704037 (S.D.N.Y.) [Fees and Costs]

In In re One Infant Child,  2014 WL 704037 (S.D.N.Y.) the District Court awarded the successful petitioner attorneys fees of  $ 217,949.56, attorney's costs of $1,274.08, fact witness fees of $6,279.52, expert witness fees of $2,400, transcript fees of $1,465.20, lodging and travel fees of     $20,451.88 and Investigative fees of  $33,246.38 . [See Souratgar v. Fair, 12 Civ. 7797 (PKC), 2012 WL 6700214, at *1 (S.D.N.Y. Dec. 26, 2012) aff’d Souratgar v. Lee, 720 F.3d 96 (2d Cir.,2013)]. 
                
           The District Court observed that the 'lodestar' approach is the proper method for determining the amount of reasonable attorneys' fees once a court orders the return of the child under the Hague Convention." (Citing Knigge v. Corvese, 01 Civ. 5743 (DLC), 2001 WL 883644, at *1 (S.D.N.Y. Aug. 6,2001) (quoting Distler v. Distler, 26 F. Supp. 2d 723, 727 (D.N.J. 1998). It observed that "Both [the Second Circuit] and the Supreme Court have held that the lodestar-the product of a reasonable hourly rate and the reasonable number of hours required by the case-creates a "presumptively reasonable fee." (Citing Millea v. Metro-North R. Co., 658 F.3d 154, 166 (2d Cir. 2011). The presumptively reasonable attorney's fee is calculated by setting the reasonable hourly rate and multiplying it by the hours spent on the client's matter. (Citing Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany and Albany Cnty. Bd. of Elections, 522 F.3d 182, 186 (2d Cir. 2008). "The reasonable hourly rate is the rate a paying client would be willing to pay." Id. at 190. The Court should endeavor to determine "the market rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998) (internal quotation marks omitted). The court "should ... bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively." Arbor Hill, 522 F.3d at 190. The starting point is a determination of whether the proposed hourly rate is reasonable in this district for the type of services and work. Id. In setting the reasonable hourly rate, Arbor Hill approves the use of the twelve Johnson factors cited in Arbor Hill and several related considerations: "the complexity and difficulty of the case, the available expertise and
capacity of the client's other counsel (if any), the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), the timing demands of the case, whether an attorney might have an interest (independent of that of his client) in achieving the ends of the litigation or might initiate the representation himself, whether an attorney might have initially acted pro bono (such that a client might be aware that the attorney expected low or non-existent remuneration), and other returns (such as reputation, etc.) that an attorney might expect from the representation." rd. at 184.2 "[Considerations concerning the quality of a prevailing party's counsel's representation 2 See Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 92-93, 96 (1989). "The twelve Johnson factors are: (I) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) normally are reflected in the reasonable hourly rate." Perdue v. Kenny A ex reI Winn, 559 U.S. 542, 553 (2010).


       In support of his attorneys' proposed hourly rates, Souratgar's counsel submitted the affirmation of a matrimonial law attorney  who attested that counsels billable rates were reasonable in this district for attorneys of their experience and qualifications. The district court appeared to discounted his affirmation because he did not state whether he was experienced in Hague Convention litigation or whether his hourly rate was consistent with the rates of other attorneys in this district who practice in this niche area of law.

The district court pointed out that in determining the reasonableness of the requested attorneys' fees, the Court considers the quality of the work done by the attorneys. The Court concluded that a rate of $425.00 per hour was reasonable on this record for lead counsel and $300.00 was reasonable for his associate. The Court awarded attorneys fees of $217,949.56. 

The court held that time billed for dealing visitation disputes during the pendency of the proceeding is not recoverable. See Saldivar v. Rodela, 894 F. Supp. 2d 916, 937 (W.D. Tex. 2012) (denying fees and costs incurred in obtaining a court order providing for increased visitation hours), Aldinger v. Seigler, 338 F. Supp. 2d 296,298 (D.P.R. 2004), affd, 157 Fed App'x 317 (1st Cir. 2005) (reducing fees in part because at least 20 billable hours were spent on visitation issues). 

       The application sought reimbursement for legal services by foreign attorneys, Gomez and Vasu.  Gomez was an Advocate and Solicitor who had practiced law in Singapore for 26 years.  Vasu has practiced law in Singapore for 16 years. Gomez and Vasu advised Souratgar’s attorney  on the laws of Singapore and Malaysia, discussed  legal strategy with him, and reviewed drafts of submissions to this Court and the Second Circuit. The court held that they were not entitled to be compensated for legal advice and strategy regarding Souratgar's case in the district court, nor may they recover for coordination between proceedings in the district court and other foreign tribunals. "[The foreign attorney] did not represent [Petitioner] in the instant action before this Court. There is no showing that [the foreign attorney] is admitted to practice in [this state] or before this Court. [Petitioner] has not submitted any authority which allows this Court to award fees and costs incurred by an attorney who does not represent a patty in an action before this Court." Freier v. Freier, 985 F. Supp. 710,714 (B.D. Mich. 1997). But see Distler v. Distler, 26 F. Supp. 723,728 (D.N.J. 1998) (awarding fees for a foreign attorney who provided legal services to the petitioner in support of the Hague Convention petition). 

Gomez testified as a fact witness, not as an expert witness, during the
evidentiary hearing. Souratgar v. Fair, 12 Civ. 7797 (PKC), 2012 WL 6700214, at *1 (S.D.N.Y. Dec. 26, 2012). She  was entitled to reimbursement for travel expenses and lost time due to her testimony. Prasad v. MML Investors Services, Inc., 04 Civ. 380 (RWS), 2004 WL 1151735, at *5 (S.D.N.Y. May 24,2004) ("[T]he federal courts ... are generally in agreement that a witness may properly receive payment related to the witness' expenses and reimbursement for time lost associated with the litigation."). The Court awarded fact witness fees of $6,279.52. The Court held that  Gomez's business class flight was not compensable at the rate of  $ 8,113.00.  28 U.S.C. § l82l(c)(1) provides that a witness shall be paid for "the actual expenses of travel" at the "most economical rate reasonably available." See Salvidar, 894 F. Supp. 2d at 947 (applying 28 U.S.C. § 1821 to a Hague Convention case). Gomez's nightly hotel rate of $369.00 was within the range of reasonableness, and the Court compensated her for three nights.  Gomez charged Souratgar a daily fee of $783.63 per day, which she attested was a reduction of her usual rate. The Court found this rate reasonable compensation for her lost time. It observed that the average price of a hotel room in New York City in 2012 was $281.00. See "NYC Statistic page" NYC: The Official Guide, http://www.nycgo.comlarticles/nyc-statistics-page (last accessed January 30,2014). The hearing  was held in the month of December which is a peak period and the hearing was convened on relatively short notice. Accordingly, one would expect a higher than average rate.

Souratgar requested expert fees in the amount of $21,500. He sought $13,000 in
fees for the expert testimony of Awad, an expert on Singapore and Malaysian law. The Court found  that "To determine whether an expert's proposed rate is reasonable, courts in this Circuit are guided by eight factors: (1) the [expert]'s area of expertise, (2) the education and training that is required to provide the expert insight that is sought, (3) the prevailing rates for other comparably respected available experts, (4) the nature, quality and complexity of the discovery responses provided, (5) the cost of living in the particular geographic area, (6) the fee being charged by the expert to the party who retained him, (7) fees traditionally charged by the expert on related matters, and (8) any other factor likely to be of assistance to the court in balancing the interests implicated by Rule 26." Matteo v. Kohl's Dep't Stores, Inc., 09 Civ. 7830 (RJS), 2012 WL 5177491, at *5 (S.D.N.Y. Oct. 19,2012), affd, 533 Fed App'x 1 (2d Cir. 2013). 

Awad testified at trial regarding Islamic family law and the Singapore legal system. He testified that he is admitted to practice law in New York and New Jersey, and that a substantial part of his practice is devoted to matrimonial litigation. He also testified that he has certain expertise in Islamic family law and the family laws of Muslim countries. He stated on the record that he billed at the rate of $550.00 per hour. The court pointed out that in support of this motion, Souratgar  provided no evidence of Awad's rate, the services provided, or any data regarding comparable experts. He did  not establish what work Awad conducted that would make his fees reasonable. Souratgar did not provide relevant documentation of the services provided to him by Awad, or any evidence of Awad's compensation rate. The Court held that "In the face of very limited evidence, a court may, in its discretion, simply apply an across-the-board reduction of expert's fees. Matteo, 2012 WL 5177491, at *5.  The Court awarded expert witness fees of $2,400.


The Court found that there is no authority allowing a prevailing party to recover expert witness fees of a witness who did not testify at trial." Freier v. Freier, 985 F. Supp. 710, 714 (E.D. Mich. 1997). Accordingly, Souratgar's request for Dr. Lubit's fee ( a child psychologist)  was denied.

Souratgar sought $2,038.00 for his round trip flight from Singapore to New York,
$1,479.00 for his change of flight from New York to Singapore and his son's return flight to Singapore. The Court granted his motion for travel expenses in the amount 
of  $3,517.00 

Souratgar sought lodging fees totaling $22,579.84. The Court found that Souratgar did not establish that the cost of his accommodations was reasonable. Souratgar stayed in Kingston, New York, during the proceedings, which is located approximately 100 miles from the courthouse located in Manhattan. Souratgar only argued that the costs of lodging were reasonable because of the "cost of living in the New York metropolitan area."  Souratgar did not demonstrate that an average rent of approximately $2,800.00 per month in Kingston, New York was reasonable. Therefore the  Court found that a reduction in  the lodging costs of 25% was appropriate given the lack of documentation supporting the rate as reasonable. The Court granted Souratgar's motion for lodging expenses in the amount of $16,934.88.


The court noted that a petitioner may be entitled to recover investigation costs if such costs are "necessary" to secure the return of the child. Neves v. Neves, 637 F. Supp. 2d 322, 344 (W.D.N.C. 2009) (finding, after reviewing supporting documentation, that an expense of $10,324.65 in investigative fees was reasonable and necessary). The Court reviewed the supporting documentation for the investigative fees.
While some award of investigative fees was appropriate, it found that the fees should be reduced, as not all expenses were necessary to secure the child's return and Souratgar did not demonstrate that the rates charged by the investigators were reasonable. Souratgar submitted invoices from three separate investigative firms. The Court did not find that investigative fees incurred after the issuance of the warrant were necessary to secure the return of the child. Just as attorney's fees regarding visitation are not recoverable under the ICARA, investigator hours supervising visitation and other investigative work after the issuance of the warrant are not recoverable. Additionally, investigative hours spent conducting background checks on potential lawyers to bring the petition were not necessary to secure the return of the child, and are not compensable. Souratgar did not demonstrate the reasonableness of the rates paid for the investigative services. The court noted that "If the parties do not provide sufficient evidence to support the moving party's interpretation of a reasonable rate, a court may use its discretion to determine a reasonable fee.  Matteo, 2012 WL 5177491, at *5 (discussing expert and expert investigator fees). The Court concluded that of the $92,958.10 in fees incurred, $44,328.50 were necessary costs to secure the child's return. 

The Court pointed out that Fair argued that  awarding any fee would be clearly inappropriate  because: (1) of Souratgar's past abusive behavior towards Fair. (2) her inability to pay; (3) her son would be adversely affected by any award because further financial strain will impede her ability to pay her Singapore counsel, which would prevent her from obtaining representation in future  custody hearings and may result in the complete loss of the child's relationship with Fair. 

  The Court found that Souratgar engaged in abusive conduct towards Fair.  
Souratgar v. Fair, 2012 WL 6700214, at *11. But Fair did not establish that the past abuse in this case made an award of fees clearly inappropriate. Fair did not establish that the past abuse of her was causally related to her decision to  leave Singapore with her son in violation of a court order issued by a court of that country. 

 Fair asserted that she lacked the financial resources to pay any award. She was represented by pro bono counsel. Fair attested that  pro bono representation in Singapore was unavailable to her. She stated that she owed approximately $17,600 in car payments and $3,820.45 in attorney's fees to the law firm that represented her in proceedings in Singapore. Fair had not worked in 5 years. She did  not provide the Court with any other information regarding her current income. Her Central Provident Fund Board  Account, contained $149,558.59. While it ws not clear that Fair would be able to access the funds in her CFP account in the near future, she did not demonstrate that she would never have access to those funds.   Fair owned a one-third interest in a family property in Malaysia. Fair asserteds that she held this interest in trust for 
her brother; however, Fair came forward with nothing other than her say-so to support the claim of trust. In the absence of documentation for the alleged trust arrangement, she failed to establish that this interest would not be properly reachable by the judgment.

Fair's claim as to the effects in custody proceedings if an award of fees was 
entered against her was speculative. Fair provided the Court with a bill from her Singapore  lawyers  but did not demonstrate, beyond speculation, that she would 
be unable to acquire representation in the Singapore proceedings as a result of a fee award.  Fair did not provide the Court with any concrete information about how her lack of funds might affect her under Singapore or Malaysian law. She did not endeavor to explain whether and to what extent her wages may be subject to garnishment or pension assets reached, whether and to what extent her interest in property jointly owned with others in Malaysia could be reached, whether and to what extent a judge presiding over a divorce proceeding with her present husband, Souratgar, could take account of the judgment in adjudicating her rights to any marital or other property. Instead, Fair speculated that she was likely to face jail time because Mr. Souratgar's Singapore lawyer has made it clear that Souratgar intends to pursue his contempt of court application". Fair did not proved the Court with any documentation of her assets or income beyond the CFP account and the deed of her interest in her family's home. 


The court concluded that Fair had not established that an award would be clearly inappropriate, and that she wrongfully removed her son from Singapore and absconded to the United States. By doing so, she violated an order of the Court in Singapore and demonstrated an indifference to whether the young boy would ever see his father again. An unreduced award  on the basis of Fair's inability to pay would not be "clearly inappropriate."

Vasquez v Vasquez, 2013 WL 7045041 (N.D.Tex.)[Mexico] [Consent] [Grave Risk of Harm] [Petition Denied]

In Vasquez v Vasquez, 2013 WL 7045041 (N.D.Tex.) On April 11, 2013 Petitioner Ana Carolina Vazquez filed a Petition for return of  M.V., a child born of  the non marital union of Petitioner and Respondent to Mexico, where M.V.
had been residing for seventeen consecutive months. The Court granted the petition.

Petitioner was a Mexican citizen who was brought to the United States at the age
of eight and remained in the United States from that time forward without proper
documentation. Petitioner primarily lived in Texas during her residence in the United States. In 2004, Petitioner and Respondent, a United States citizen, met and began a romantic relationship. The two never married. They lived together with Respondent's son from a previous relationship, M.G.V, at Respondent's parents' house and at a separate apartment.   M.V. was born in 2007 in the United States. M.V. was  a United States citizen. She lived with Petitioner, Respondent, and Respondent's son from her birth until she was two years old.  In January 2010, Petitioner was arrested at J.C. Penney for theft. M.V. was with Petitioner when Petitioner was arrested. At the time of the arrest, Petitioner called Respondent to alert him to the fact that she had been arrested and that he needed to pick up M.V. at the store. After some time had passed and Respondent had not arrived, one of the police officers at the store called
Respondent and told Respondent to come to the store. Respondent testified that he
had to pick up his mother prior to picking up M.V. and that the drive to the store was long. The police officers would not wait any longer, took Petitioner with them, and left M.V. with a store employee. Upon Respondent's and his mother's arrival at the store, they found M.V. with the store employee with a soiled diaper. After Petitioner's arrest, the immigration authorities discovered that Petitioner was unlawfully residing in the United States. Petitioner consequently remained detained with immigrations services from the date of her arrest until her removal to Mexico on April 26, 2010. Petitioner was removed to Mexico and immediately traveled to Linares, Nuevo Leon, Mexico to live with her grandmother, Rebeca Alanis, at Ms. Alanis' house. Petitioner lived at Ms. Alanis' house in Linares from that date through the present. During Petitioner's detention and in the two months immediately thereafter, M.V. lived with Respondent. 

In July 2010, M.V. traveled from the United States to Linares, Mexico to stay with Petitioner and Ms. Alanis. Respondent's mother, Ramona Vasquez, took M.V. from the Dallas, Texas area to Mexico. Ramona testified that she had a letter from Respondent and a separate letter written by her, the latter of which was notarized by Ramona's sister-in-law Norma Rodriguez. Apparently, when a minor is traveling across the border without a parent, the minor must have a notarized letter signed by the parent permitting the child to cross the border and outlining where the child would stay and with whom the child would stay.  Petitioner admitted that she and Respondent had not decided M.V.'s length of stay. Petitioner testified that the plan at that time was for M.V. to be in Mexico, then go to the United States, then go back to Mexico, etc. The parties did agree that M.V. would remain in Linares with her mother and maternal great-grandmother until October 2010. Although M.V. was going back to the United States in October, Petitioner enrolled her in the first year of a three-year kindergarten program at the school in Linares where Petitioner was working as an English teacher.

  In October 2010, Respondent went to Mexico with his friend, Lorenzo Dillon.
Respondent and Lorenzo met up with Petitioner and M.V. in Reynosa, a city near the
Mexican-United States border. The purpose of the trip was for Respondent to pick
up M.V. and take her to Texas for a few months. M.V. remained in Texas from October 2010 through January 2011.   On January 11, 2011, M.V., accompanied by Ramona Vasquez, traveled from the United States to Linares, Mexico. Ramona dropped M.V. off at the border with Petitioner's cousin, who then delivered M.V. to her mother's care.   M.V. remained in her mother's care in Linares, Mexico from January 2011 until Respondent's alleged wrongful removal of her in June 2012, approximately seventeen months.

         In August 2011, Respondent and his son took a trip to Linares, Mexico to
Petitioner's and Ms. Alanis' home. On the second-to-last day of his visit,
Respondent told Petitioner that he was taking M.V. with him back to the United
States. Petitioner testified that she was unaware of Respondent's plan and
immediately objected. Petitioner testified that the parties  came to an agreement that Petitioner that M.V. would permanently remain in Mexico. Respondent admitted that he and Petitioner "were trying to come to an agreement."Respondent also admitted that he ultimately allowed M.V. to remain in Mexico. However, Respondent testified that he felt that he had no choice since M.V. was enrolled in pre-school in Mexico. The next day, Respondent and his son returned to the United States without M.V.

        On December 7, 2011, Respondent and one of his cousins discussed via e-mail
M.V.'s return to the United States. Respondent admits that he talked to his cousin
about "tricking" Petitioner by pretending to want to be a family again and taking
M.V. back to Texas for a short period of time. On December 24, 2011, Respondent and his son took another trip to Linares, Mexico to celebrate the Christmas holiday.  On Christmas 2011 morning Respondent  packed M.V.'s items and then he, his son, and M.V. took a taxi to the bus station and then boarded a bus for the United States.
Petitioner testified that she woke up around 10:30am and was surprised to see that
Respondent, his son, and M.V. were gone. She testified that she was "in shock."  After the police confirmed that they had stopped Respondent, Petitioner's uncle drove her to the location where Respondent, his son, and M.V. were being held. At that time, Petitioner and Respondent spoke with the police. The parties argued, disputing whether M.V. was allowed to go to the United States and whether Petitioner had consented to it. Petitioner alleged that she had not consented to it and asked Respondent why, if she had consented, did he fail to disclose M.V.'s departure and prevent Petitioner from saying goodbye to M.V. The police told the parties that the police could not resolve the conflict, so Respondent and Petitioner had to come to an agreement between themselves regarding M.V. or they would both go to jail. Respondent testified that Petitioner was willing to go to jail, but he was not, so he had no choice but to allow Petitioner to take M.V. In contrast, Petitioner testified that, after their discussion, Respondent admitted that he "did wrong" and that Petitioner should keep M.V. Ultimately, Respondent agreed to leave M.V. in Mexico. He and his son took a second bus back to the United States.

  The district court found that the evidence and credible witness testimony demonstrated by a preponderance of the evidence that M.V.'s habitual residence at the time of her removal in June 2012 was Mexico, that Respondent breached Petitioner's custodial rights by removing M.V. from Mexico, and that Petitioner was actually exercising her custodial rights at the time of M.V.'s removal. Accordingly, the Court concluded that Petitioner  met her prima facie burden under Article 3 of the
Hague Convention and under the ICARA for a claim of wrongful removal and
retention.

Respondent's first affirmative defense alleged that Petitioner consented to
Respondent's removal of M.V. from Mexico in June 2012.  Respondent raised a theory that Petitioner agreed to permit Respondent to take M.V. to Mexico with him if Respondent would buy Petitioner a car and give her cash. In support of this theory, Respondent presented his testimony and the testimony of his son. Both stated that the purpose of their June 2012 trip to Reynosa, Mexico was to take M.V. back to the United
States in exchange for giving Petitioner a car and cash. Respondent stated that
the car was for M.V. (even though M.V. could not yet drive and the car would be
used by Petitioner), because M.V. asked for it and Respondent would not say "no"
to M.V. The Court stated that if the plan was to swap M.V. for the car, why would Respondent buy a car in Mexico for M.V. in exchange for taking M.V. to the United States where she would not have access to the car?  The evidence showed that
Respondent stated at various times that he had bought a car in Mexico, that he had
partially paid for a car in Mexico, or that they were just going to look at cars
in Mexico. There was no car. Neither Respondent nor his son presented credible testimony, given that their stories differed from each other, their stories differed from their own prior deposition testimony, and given that their stories just did not make any sense. Respondent's evidence was insufficient to show that Petitioner consented to Respondent taking M.V. to the United States in June 2012. The credible evidence presented at trial demonstrated that Petitioner did not consent to M.V.'s removal to the United States in June of 2012.

       Respondent testified that Petitioner had stated since her departure from the
United States that she wanted to return to the United States. The evidence and testimony presented primarily demonstrated Petitioner's desire or consideration of return to the United States, but only through lawful means and prior to M.V.'s removal. The Court rejected the respondents argument that Petitioner's alleged desire to return to the United States equated with a post-removal acquiescence of M.V.'s removal there.

Respondent  raised the "grave risk" defense under Article 13b of the Hague
Convention" "[A] grave risk or intolerable situation exists where return of the child would send the child to a 'zone of war, famine, or disease,' or in cases of serious abuse or neglect." Vazquez v. Estrada, 3:10-CV-2519-BF, 2011 WL 196164, at *5 (N.D.Tex. Jan.19, 2011) (citing Silverman v. Silverman, 338 F.3d 886, 900 (8th Cir.2003), and Friedrich, 78 F.3d at 1069). "A grave risk of harm can be established when return of the child to the country of habitual residence puts the child in 'immediate danger
prior to resolution' of the underlying custody dispute." Gallardo, 2013 WL
3803905, at *13. Respondent raised three reasons why he believed returning M.V. to Mexico would result in grave risk to her. First, Respondent put forth testimony from
himself and his mother Ramona Vasquez alleging that, when Petitioner was arrested
in January 2010, M.V. was left at J.C. Penney with a store employee and her diaper
was very soiled. The court held that evidence of the incident of Petitioner's arrest did not constitute clear and convincing evidence of grave risk to M.V. if she is returned to Mexico. First, the incident does not involve the sort of "serious abuse or neglect" as contemplated by the Hague Convention. Second, although M.V.'s being left
with a store employee was indeed a product of Petitioner's arrest, the police
officers made the decision to leave M.V. with the store employee and Respondent
himself admitted that he did not go directly to the store upon learning that he
needed to pick up M.V. There were thus contributing factors to M.V.'s being left
with a stranger and having a dirty diaper. Third, Respondent did not provide
evidence of alleged neglect other than this single incident. The Court  rejected Respondent's theory of grave risk due to abuse and neglect.    Next, Respondent alleged that Mexico was a dangerous country and M.V.'s return there would put her at grave risk. The sole evidence presented at trial in support was Respondent's own testimony that there have been shootings in Linares, Mexico, where Petitioner lived. On cross examination, Respondent admitted that he had only read or heard of the shootings and was unaware of the circumstances surrounding the shootings. This
evidence fell far short of the standard for proving grave risk to M.V. in Mexico.
Silverman v. Silverman, 338 F.3d 886, 901 (8th Cir.2003)    Respondent argued that M.V. would be put at grave risk in Mexico because Petitioner could not  afford electricity and food. Respondent's evidence of grave risk in this respect was minimal and, in any event, was negated by Petitioner's credible explanations.

Cascio v Pace, --- F.Supp.2d ----, 2014 WL 197724 (N.D.Ill.)[Italy] [Rights of Custody] [Public Service Org] [Consent] [well settled] [Petition denied]

                                                      
In Cascio v Pace,  --- F.Supp.2d ----, 2014 WL 197724 (N.D.Ill.)  Petitioners, Silvestre Cascio and an Italian public services agency, Azienda Servizi Alla Persona Ambito 9 ("ASP"), petitioned for return of Cascio's two minor children, FC and MC, who were residing in Rockford, Illinois with their mother, respondent Rosa Maria Pace. The district court denied the petition.

Cascio was a citizen and permanent resident of Italy. Pace was born in Rockford, Illinois, and had dual U.S. and Italian citizenship. Cascio and Pace married in late 2000. The children were both born in Italy, and both had dual U.S. and Italian citizenship. Between 2000 and 2012, the family lived in Italy, with Cascio providing for the economic needs of the family and Pace acting as a homemaker. In September 2010, Cascio and Pace got into a physical altercation which began with Cascio kicking Pace in her backside and resulted in Pace calling the police. After a police investigation, the matter was referred to the Italian minors court who appointed ASP to monitor and supervise the children, provide support to the parents in parenting skills, and to provide marital mediation between Cascio and Pace. ASP also had to approve, and in turn seek judicial approval of, any decision to move the children. ASP never removed the children from the physical custody of their parents.   During nearly all of the summers between 2000 and 2012, the family vacationed in Rockford, where Pace's mother and extended family lived, for approximately three months at a time. In June 2012, Pace brought the children to Rockford for a summer vacation after informing ASP that she would return on September 2, 2012. Cascio joined Pace and the children on July 27, 2012. The entire family had tickets to return to Italy on September 2, 2012. In late August, Cascio and Pace had an argument in the presence of the children, wherein Pace made it known that she would prefer not to return to Italy, but rather wanted the family to relocate to the United States. Despite that argument, and continued tension for the remainder of the vacation, Pace began packing to return the family to Italy in early September. On the morning of September 2, 2012, Pace informed Cascio that she and the children would not be returning to Italy with him that afternoon, and asked that he move to the United States and stay with them. After a period of silence, and then some discussion, Cascio indicated that he consented to her staying in the United States (which he testified meant the children would remain as well) and would move with her to Rockford. Following the meeting, Cascio made a phone call, packed his clothing, and rode to the airport with Nunzio Pace, where he boarded a plane and left for Italy. Pace testified that Cascio returned to Italy to dispose of their property and see to his job, but promised he would return by no later than Christmas. Indeed, Pace and Nunzio Pace both testified that Cascio discussed local employment opportunities and even what car he would like to purchase in the United States on the drive to the airport. Cascio, on the other hand, testified that he only agreed to permit Pace to stay because he felt he was under duress, alone as he was, at the time of the meeting and that he needed to agree in order to be able to catch
his flight. He also testified that he thought he could subsequently change Pace's
mind and he never had any intention of relocating to the United States or
consenting to the children's permanent relocation. Beginning the next day, Cascio made it clear to Pace that he would not be returning to the United States and that he
wanted her and the children to rejoin him in Italy. Pace made it equally clear
that she did not plan to return to Italy with the children. ASP was informed of
Pace's failure to return on October 1, 2012, after the family missed an ASP-ordered appointment with a psychologist. ASP and Cascio filed a joint petition pursuant to the Hague Convention on September 27, 2013, a few weeks more than a year after Pace and the children failed to return from Rockford. Cascio has remained in contact with the children through Skype and telephone calls.

  Pace  offered proof as to the children's life in Rockford, which was 
relevant to one of the exceptions in the Hague Convention. MC, the younger child, was four years old, enrolled in pre-school, and spent considerable time with Pace's family and extended family in Rockford. MC spoke English almost exclusively, despite Pace and Nunzio Pace's attempt to keep him bilingual. Similarly, FC, the elder child, was enrolled in his second year of school in Rockford, participated in activities, spent time with friends, attended church, and also spends time with Pace's family. According to Pace, FC struggled with English when he first arrived, but quickly caught on and now remains bilingual. Cascio testified, however, that FC spends more time in the home, seems bored, and is not as active as he was in Italy. As to the children's living conditions, Pace and the children live with Pace's mother. Pace works full-time as a bank teller, making $10.24 an hour. The children currently lack health insurance, but are currently provided healthcare by a state program and are in good health. Pace's mother financially assists Pace. The unrebutted testimony at trial was that, based on Pace's family support structure and her own employment, the children were well-provided for in Rockford and enjoy regular outings and significant stability in their lives.

The parties agreed that the children's place of habitual residence was Italy immediately prior to their retention in the United States.  The parties agreed that
Cascio had rights of custody, but Pace objected that ASP's rights were "more of a
supervisor than a custodian" and thus "should not be considered by this Court to
be a custodian." Based on the controlling case law, the court rejected that argument. The unchallenged testimony concerning ASP's obligations to the children included the fact that the family was not permitted to move the children without first obtaining leave from ASP and the minors court. That was sufficient in and of itself-the Supreme Court has held that the right to veto a child's move, a so-called ne exeat right, qualifies as being a right of custody under the Hague Convention as the right to "determine the child's place of residence." See Abbott v. Abbott, 560 U.S. 1, 10-21, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010). Although Pace correctly pointed out that ASP never exercised the authority, the uncontroverted testimony also suggested that ASP had the authority to remove the children from their parents' care had it been determined necessary to protect the welfare of the children. Accordingly, ASP  proved by a preponderance of the evidence that it also had "rights of custody" on which it may base a petition for return. See E. Sussex Children Servs. v. Morris, 919 F.Supp.2d 721, 730-31 (N.D.W.Va.2013) (collecting cases which hold that public social services organizations can have "rights of custody" under the Convention). The court found that both Cascio and ASP were exercising their custody rights at the time of the retention.   Consequently, both petitioners met their burden to show a prima facie case for wrongful retention of the children in the United States.

Pace first argued that the children should not be returned to Italy, notwithstanding the prima facie proof, because Cascio consented to the children remaining in the United States."The consent exception applies when a petitioning parent, either expressly or through his conduct, agrees to a removal or retention before it takes place." Walker, 701 F.3d at 1122.   Cascio argued that his agreement was given under duress and that his subsequent conduct showed that he never actually consented to the retention. Based upon, inter alia, Cascio's admitted willingness to invent testimony under oath to shade the truth in his favor, the court found Cascio's testimony to be without credibility.  The court found that Cascio expressly consented
to the retention before it occurred, and that his later change of heart is
irrelevant. The court found that Pace had proven by a preponderance of the evidence that the retention of the children was not wrongful, based on consent, as against Cascio's rights of custody. This conclusion did not end the matter, as there was no evidence that ASP ever consented to, or thereafter acquiesced in, the retention of the children in the United States. The court found that Pace had not proved by a
preponderance of the evidence that the retention of the children was not wrongful,
based on consent, as against ASP's rights of custody.

The Court observed for the “settled” defense to apply, Pace had to prove by a
preponderance of the evidence that (1) the petition for return was filed more than
a year after the retention; and (2) the children were settled in their new
environment in Rockford. See Habrzyk, 759 F.Supp.2d at 1028-29. Here, although the retention began on September 2, 2012 and the petition was not filed until September 27, 2013, Petitioners argued that some form of equitable tolling should apply to reduce the approximately thirteen months between the retention and the filing to some amount of time less than a year, thereby making the exception inapplicable. The Court observed that even those cases which permit equitable tolling do so only where there is evidence of fraudulent concealment, that is, where there is evidence that the abducting parent took affirmative steps to conceal their location from the other parent (and presumably others who have rights of custody). See Duarte, 526 F.3d at 570.  Here, there was no evidence of fraudulent concealment, Pace took no affirmative steps to hide the children's location from either Cascio or ASP. Accordingly, even if equitable tolling applies in the event of fraudulent concealment (an issue on which the court passed no judgment), that would nevertheless provide no relief to Cascio or ASP. The factors courts consider in determining if a child has significant
 connections to the new country include: (1) the child's age; (2) the stability
 and duration of the child's residence in the new environment; (3) whether the
 child attends school or day care consistently; (4) whether the child has friends
 and relatives in the new area; (5) the child's participation in community or
 extracurricular school activities, such as team sports, youth groups, or school
 clubs; and (6) the respondent's employment and financial stability. Id. As to the age of the children, FC was nine as of the time of briefing and MC was four. Although Cascio argued that MC's young age cut in favor of finding that Pace has not met her burden, courts have been far from consistent in whether they consider a young age to be in favor of a finding of settled. See Broca v. Giron, No. 11 CV 5818(SJ)(JMA), 2013 WL 867276, at *6 (E.D.N.Y. Mar. 7, 2013). Although MC's age might raise an
inference that he was less likely to form an attachment to a particular place, in
this case, the testimony revealed that MC switched to English as his primary
language. His mother and Nunzio Pace both indicated that they had struggled to
keep him bilingual in Italian but had been largely unsuccessful thus far. Thus,
the court founds that MC's young age did not weigh against applying the exception.
As to the second, third, fourth, and fifth factors, they all weighed in favor of finding that Pace has met her burden to show that the children were settled.  The sixth factor, Pace's employment and financial situation, was somewhat more complicated. Pace was employed full time and making slightly more than ten dollars an hour. However, she admitted in her petition for divorce that she lacked the capability to provide for her family by herself. Also, the court was concerned that the children lacked health insurance, notwithstanding Pace's testimony that they were in good health and receive some health care from a state program. In contrast, however, it was clear that Pace receives support from her sizeable family in the area and there was no testimony to support the conclusion that the family support is in any danger of ending.  Balancing those factors, the court found that Pace met her burden to prove by a preponderance of the evidence that the children were settled in their new environment in Rockford, Illinois. The petition was denied.