Carrasco v. Carrillo-Castro, --- F.Supp.2d ----, 2012 WL 1948996 (D.N.M.)[Mexico] [Habitual Residence]

In Carrasco v. Carrillo-Castro, --- F.Supp.2d ----, 2012 WL 1948996 (D.N.M.) Petitioner Flor Jazmin Carrasco ("Flor") and Respondent Daniel Carrillo-Castro ("Daniel") were both from Mexico. The parties met in Albuquerque, New Mexico, and began a romantic relationship. They began living together shortly thereafter. In 2007, their son, N.C., was born. Flor, Daniel and N.C. lived together as a family in Albuquerque until January 2010, when the parties separated. Flor testified that they separated because of domestic violence: Daniel would beat her up, and hurt her. At the time of their separation, Flor and N.C. remained in the family home, and Daniel moved out. Soon thereafter, Flor and N.C. moved in with a sister of their social worker for one month, and then moved in with Flor's sister in Los Lunas, New Mexico, where they lived until June 2010. During that period, Daniel saw N.C. on weekends, and had regular telephone contact with him.

In June 2010, Flor and N.C. with Daniel's consent, left for Chihuahua, Mexico. Both parties testified that they did not discuss a specific date on which Flor and N.C. would return to the United States. According to Flor, in advance of that trip, she told Daniel on several occasions that she wanted to move back to Mexico to be near her family, and intended to find a place to live and work there. With regard to the June trip in particular, Flor testified that she told Daniel that she planned to look for a place to live and a job while she was in Mexico, and that if she found a job, she might not return to the United States. According to Daniel, Flor told him she had already gotten a job in Mexico, and that she and N.C. would live there while she was working. He further testified that although they did not discuss how long Flor and N.C. would be in Mexico, it was supposed to be temporary, "for a relatively short time." .According to Daniel, he told Flor that he did not want N.C. to live in Mexico, and that Flor assured him that she and N.C. would return to Albuquerque in several months..

While they were in Mexico, Flor and N.C. lived with Flor's mother in Chihuahua. Until January 2011, Flor's mother cared for N.C. while Flor was at work. Beginning in January 2011, N.C. attended a daycare center in the mornings and stayed with Flor's mother in the afternoons. N.C. spent time with family at social gatherings, and played with cousins and friends from the neighborhood. His health was good, and according to Flor, he had a regular doctor that he saw every month. Daniel spoke to N.C. almost daily. In September 2010, Flor sent N.C. to Albuquerque with her mother to see Daniel.

Flor picked N.C. up at the end of the visit and brought him back to Mexico. In November 2010, Flor's mother again brought N.C. to Albuquerque to see Daniel. Flor, too, came to Albuquerque at that time, and stayed with her sister. N.C. stayed with Flor for the month of November and the first two weeks of December. He stayed with Daniel for the last two weeks of December for the holidays. While N.C. was with Flor, he saw Daniel daily. In November, Flor took N.C. for a check-up with his primary care physician in Albuquerque. Daniel testified that during Flor's stay in Albuquerque, she advised him that she intended to remain in Mexico, where she had gotten a good job. The parties together decided to enter into a written agreement regarding N.C.'s care and the distribution of their assets. Flor testified that the intent of the agreement was for N.C. to stay with her in Mexico, and to prevent future problems with visitation. .Daniel similarly testified that he entered into the agreement in order to "stay in contact" with N.C. while he and Flor were in Mexico. .He further testified that he understood that Flor would stay in Mexico, and while she was in Mexico, she would guarantee that he would see his son. Accordingly, on November 4, 2010, the parties entered into a written agreement, which was signed and notarized. The agreement provides as follows: By means of this document, we the interested parties Flor Jazmin Carrasco Lopez and Daniel Carrillo Castro arrived at an agreement as to the care of our son [N.C.]. In which we understand that for every 2 months that [N.C] spends living with his mom Flor Jazmin Carrasco in the city of Cuahutemoc Chihuahua. The following month he shall spend in the care of his dad Daniel Carrillo Castro in the city of Albuquerque New Mexico. In addition in this document we record how our assets were distributed as of our separation.
The agreement did not include any time limits on the arrangement for N.C.'s care, or any date on which Flor and N.C. would return to the United States. Despite his testimony that Flor advised him of her intention to remain in Mexico, where she had gotten a good job, Daniel also testified that he believed the agreement would be temporary, and that he repeatedly asked Flor to move back to Albuquerque. Daniel provided no factual basis, such as evidence that Flor's job was a temporary position, to support his testimony as to the temporary nature of Flor's stay in Mexico.



Both parties testified that they understood the agreement would have to change when N.C. started school. Flor testified that she told Daniel that once N.C. started school, N.C. should visit Daniel during school vacations. However, Flor also testified, as did Daniel, that Daniel had always intended for N.C. to attend school in the United States, and had made that intention known to Flor. When asked in what grade he thought N .C. would start school, Daniel responded, kindergarten. Flor and N.C. returned to Mexico at the end of December 2010. In keeping with the parties' written agreement, in March 2011, Flor sent N.C. to Albuquerque with her mother to see Daniel. N.C. remained in Albuquerque for one month, and then returned to Mexico. Although, pursuant to the parties' written agreement, N.C. was to spend the month of June 2011 with Daniel, N.C. did not travel to Albuquerque at that time. Flor testified that she did not bring or send N.C. to Albuquerque both because Daniel had threatened to keep N.C. in the United States if she did, and because neither Flor nor her mother was able to bring N.C. to the United States. Specifically, Flor's visa had expired and she was unable to procure a new visa, and Flor's mother was unavailable. The Court found Flor's testimony credible.

Flor testified that for approximately one week in June, she and N .C. traveled to an area that made it difficult to have telephone contact. .According to Flor, she told Daniel in advance about the trip. On the other hand, Daniel testified that he was unable to reach N.C. by telephone for approximately one week, and had not been advised by Flor that they would be traveling and unreachable. Daniel testified that because he had not heard from N.C, he decided that N.C. should stay with him in the United States, and sought legal assistance to effectuate that decision.

Flor testified that after June 2011, Daniel changed. He stopped threatening her and "became nice" again. In September 2011, in keeping with the parties' written agreement, Flor sent N.C. to Albuquerque with her sister. Flor expected that Daniel would send N.C. back to her at the end of the month. At that time, N.C. spoke no English.

Although the parties' agreement required him to return N.C. to Flor at the end of September, Daniel refused to allow N.C. to return to Mexico. Flor testified that Daniel told her at the end of September that he was not going to send N.C. back. Consistent with Flor's testimony, at one point in the hearing, Daniel admitted that he decided to retain N.C. at the end of September and then began a custody proceeding so that Flor would not find out about the proceeding until it was too late for her to refuse to send N.C. to see him. At another point in the hearing, Daniel provided contradictory testimony that he had told Flor in August that he intended to start a custody proceeding, and that she would not be able to take him back to Mexico at the end of September .Daniel testified that Flor "knew perfectly well what [he] was going to do" before she sent N.C. to the United States. The Court did not find credible Daniel's testimony that Flor knew in advance of the September trip that he intended to keep N.C. This testimony was simply not believable, and inconsistent with Flor's testimony, which the Court found credible.

In November 2011, Daniel filed in the Second Judicial District Court, State of New Mexico, a Petition to Establish Parentage, and to Determine Child Custody, Timesharing, and Child Support Obligation, in which he sought primary physical custody of N.C. In that proceeding, Daniel specifically requested that the state court enter an order prohibiting the removal of N.C. from the United States. Accordingly, on November 15, 2011, the state court entered a temporary order prohibiting the removal of N.C. from the State of New Mexico by one parent without the written consent of the other parent. Since sending him to Albuquerque in September 2011, Flor has spoken to N.C. daily, but has not been able to see him. Flor attempted to travel to Albuquerque in November 2011, but was unable to enter the United States. To date, Flor was unable to procure the necessary documents to travel to the United States.

On March 13, 2012, Flor filed the Petition, seeking, inter alia, an order directing prompt return of N.C. to Mexico, his habitual residence, and an order directing Daniel to pay her legal costs and fees. On April 10, 2012, Daniel filed an answer denying the allegations in the Petition. On May 3, 2012, the Court held an evidentiary hearing at which both parties testified. The Court observed term "habitual residence" is "not defined by either the Hague Convention or the ICARA." Kanth v. Kanth, 232 F.3d 901, 2000 WL 1644099, *1 (10th Cir. Nov. 2, 2000). Rather, a child's habitual residence "is defined by examining specific facts and circumstances." Accordingly, the inquiry into a child's habitual residence "is a fact-intensive determination that necessarily varies with the circumstances of each case." Whiting v. Krassner, 391 F.3d 540, 546 (3d Cir.2004). The federal circuit courts have interpreted the term "habitual residence" differently. In Feder, the Third Circuit held 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." 63 F.3d at 224. Considering N.C.'s past experiences and the parties' shared intentions, the Court found that Mexico was the place where N.C. had been physically present for an amount of time sufficient for acclimatization, and which has a "settled purpose" from his perspective. See Feder, 63 F.3d at 224. Since he was born, N.C. lived with Flor. When Daniel and Flor separated, N.C. continued to live with Flor. When Flor left for Mexico in June 2010 to look for work and a place to live, N.C, with Daniel's permission, went with her. At the time, N.C. was two and one-half years old. In November 2010, when Flor told Daniel that she had found a job and would remain in Mexico indefinitely, Daniel again consented to Flor taking N.C. with her. At no point did the parties discuss a specific date on which Flor and N.C. would return to the United States. Other than three trips to visit his father, N.C. lived with Flor in Mexico until his retention in the United States in September 2011, when he was just over four years old. N.C. spoke only Spanish. From the time he first arrived in Mexico until his September 2011 trip, N.C.'s grandmother cared for him, at least for part of the day each weekday, and beginning in January 2011, N.C. attended daycare every weekday morning. N.C. established a relationship with his extended family, spending time at social gatherings, and playing with cousins. He also established friendships with neighborhood children. Although he had primary care physicians in New Mexico as well, N.C. established a relationship with a doctor in Mexico, whom he saw every month. N.C.'s fifteen months in Mexico-which, at four years old, was almost thirty percent of his life-living with the primary caretaker he had always known, surrounded by his extended family, and speaking the only language he had ever known, was sufficient for him to become acclimatized. See Falls v. Downie, 871 F.Supp. 100, 102 (D.Mass.1994) (finding twenty-one month old child had become "completely accustomed to life in this country and with his father and grandparents" where he had been living in the United States for eight months). Further, from his perspective, N.C.'s purpose of living in Mexico-to remain with his mother where she had decided to make a life for herself-had a sufficient degree of continuity to be properly described as settled. The fact that N.C. spent some time during this fifteen-month period in Albuquerque does not change this analysis, as "[i]t is clear ... that an existing habitual residence in a country is not lost by the mere fact of leaving the country for a temporary absence which is intended to be of a short duration."E.M. Clive, The Concept of Habitual Residence, 1997 Jurid. Rev. 137, 142. This is true even if Daniel intended for N.C. to return to the Albuquerque two years later to attend kindergarten, or, indeed, even if Daniel was under the impression that Flor was planning to return to the United States after a short time. As Feder makes clear, one need not intend to stay somewhere permanently, or even indefinitely, so long as "the purpose of living where one does has a sufficient degree of continuity to be properly described as settled." Feder, 63 F.3d at 223. Accordingly, "Feder requires only a degree of settled purpose to accompany the move, even if such purpose is only for a limited period." Whiting, 391 F.3d at 549 (holding that shared intent by parents that child live in Canada for period of two years fulfills Feder requirement that her move to Canada was accompanied by a degree of settled purpose). That requirement was met easily here. Both parents agreed that Flor would return to Mexico for some period of time with N.C. The amount of time was left open, and Daniel agreed that N.C. should go
with Flor. These arrangements "amounted to a purpose with a sufficient degree of
continuity to enable it properly to be described as settled." Levesque v. Levesque, 816 F.Supp. 662, 666 (D.Kan.1993) . For these reasons, under the Feder test, the Court concluded that Mexico was N.C.'s habitual residence at the time of his retention in the United States.

The Court reached the same conclusion under the Mozes test. The circumstances surrounding N.C.'s stay in Mexico were such that, "despite the lack of perfect consensus", the Court found that Flor and Daniel shared a settled mutual intent that N.C.'s stay in Mexico last indefinitely. See Mozes, 239 F.3d at 1077-78. Flor and Daniel shared a settled mutual intent that N.C.'s stay in Mexico last indefinitely. As this is the case, the Court inferred a mutual abandonment of N.C.'s prior habitual residence in the United States. Daniel's stated intention that N.C. return to Albuquerque to attend kindergarten did not change this analysis. Flor and N.C. left for Mexico in June 2010. Daniel was not eligible to begin kindergarten until September 2012. Accordingly, even if the parties shared a settled mutual intent that N.C.'s stay in Mexico last for two years, this period was too long to expect N.C. to live abroad-in his parents' native country-without acquiring habitual residence. Under the Mozes test, the Court concluded that Mexico was N.C.'s habitual residence at the time of his retention in the United States.

The Court noted that its determination regarding N.C.'s habitual residence was further supported by the fact that Daniel has no legal status in the United States. "An unlawful or precarious immigration status ... is [ ] a highly relevant circumstance where, as here, the shared intent of the parties is in dispute." Although N.C, himself, is a United States citizen, he was only four years old, and thus needs to rely on the stability of his primary caretaker for several years to come. Unfortunately, Daniel is unable to offer that stability. Accordingly, although not determinative of this Court's decision, Daniel's status is a factor weighing in favor of finding Mexico to be N.C.'s habitual residence.

N.C.'s habitual residence at the time of retention was the State of Chihuahua, Mexico. Accordingly, the law of Chihuahua, Mexico governs the decision as to whether Flor had custody rights at the time Daniel retained N.C. in the United States. Title Eighth of the Civil Code for the State of Chihuahua contains several provisions defining the scope of parental authority/responsibility, or patria potestas. Under this Title, the Code provides that parental authority/responsibility over children will be exerted by the father and mother. Civil Code, Art. 391(1). Further, the Code provides that in the event of a separation between the parents, both parents are required to continue fulfilling their obligations, and may agree upon the terms of its exertion, particularly in all things concerning the care and custody of the minors. Art. 393. In the case of disagreement between separating parties, a judge will decide the matter. Id.  The Code specifies that those who exert parental authority/responsibility have a
right to coexist (spend time) with their children, even if they do not have custody, unless it represents a danger to the child. Id. Art. 394. Further, the Code provides that as long as the child is under parental authority/responsibility, he shall not leave the house of those who exert it without their permission. Id. Art. 398. Finally, the Code provides that the abduction or retention of the minor outside of his habitual residence without the permission of those exerting parental authority/responsibility or custody grants the right to initiate the restitution procedure contemplated in the Code of Civil Procedure.

The doctrine of patria potestas set forth in the Code "implies a meaningful, decision making role in the life and care of the child." Whallon, 230 F.3d at 458. Accordingly, the rights of parental authority/responsibility afforded to Flor, as N.C.'s mother, pursuant to these Code provisions was sufficient to establish that she had rights of custody for purposes of the Hague Convention. Under the Code, Flor had the right to exert parental authority/responsibility, and the right to spend time with N.C. Daniel violated those rights by retaining N.C. in Albuquerque after the date upon which the parties agreed N.C. would be returned to Mexico. Assuming the Mexican courts would honor the parties' agreement here, Daniel was in violation of that agreement when he retained N.C. Further, Daniel retained N.C. outside of his habitual residence without Flor's permission, thus violating the Code. Accordingly, the Court found that Daniel's unilateral decision to retain N.C. was in breach of Flor's custody rights under the laws of N.C.'s habitual residence at the time of his removal.

The Court "liberally find[s] "exercise" whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child ." Friedrich, 78 F.3d at 1067. Accordingly, "if a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to 'exercise' those custody rights under the Hague Convention
short of acts that constitute clear and unequivocal abandonment of the child." The evidence demonstrated that, far from abandoning her child, Flor was living with and caring for N.C. in Mexico. Although, pursuant to the parties' agreement, she sent N.C. to spend the month of September with Daniel, she intended to continue to live with and care for Daniel upon his expected return at the end of the month. Accordingly, the Court found that Flor was exercising her custodial rights at the time of Daniel's retention of N.C. in the United States.

The Court concluded that Flor established by a preponderance of the evidence that Mexico was N.C.'s habitual residence, that Daniel's retention of N.C. in the United States was in breach of Flor's custody rights under Mexican law, and that Flor was exercising her custody rights at the time of retention. Accordingly, Flor made a prima facie case of wrongful retention. The burden thus shifted to Daniel to establish a defense. Daniel, however, did not assert any defense to Flor's prima facie case of
wrongful retention. Accordingly, the Court ordered the return of N.C. to Mexico.

Hamprecht v Hamprecht, 2012 WL 1890857 (M.D.Fla.) Germany ] [Habitual Residence]

[Germany ] [Habitual Residence]

In Hamprecht v Hamprecht, 2012 WL 1890857 (M.D.Fla.) Petitioner and respondent were both born in Germany, and had always been German citizens. They were married in Germany on December 16, 1994, and became the parents of sons born in 1995, 1997, and 2005 in Germany. The family resided in Germany until February 18, 2009, when they came to the United States. Prior to that time the family had often traveled to the United States, but no member of the family ever attempted to obtain United States citizenship. The child at issue in this case was the youngest son, referred to as "F.H.", who was born in Germany on October 25, 2005.

Petitioner was the Chief Executive Officer (CEO) for Tube Technology Systems AG (TTS AG), a company located in Massen, Brandenburg, Germany. TTS AG currently manufactured and supplied specialized braking systems to Volkswagen, Audi, Lamborghini, and Bentley automobiles. Petitioner traveled extensively on his German passport. Respondent had not been employed outside the home. The parents wanted to immerse their oldest two sons in English, and decided to come to the United States for an extended stay. Petitioner testified that the stay in the United States was to coincide with his temporary employment duties, and the family never intended to stay permanently. Respondent testified that it had always been the plan and intent to move permanently to Florida.

In 2008, the parties sold their house in Germany, which was about 350 miles from the TTS AG plant, and moved to rental property in Dresden, Germany closer to the company. On August 28, 2008, petitioner purchased a $739,000 waterfront home on Harbour Circle in Cape Coral, Florida. Subsequent correspondence from respondent and her attorney refers to this house as the parties' "vacation home." The parties also began making arrangements for their trip to the United States, checking on schools for the two older sons and checking on how to enter the United States. On February 4 or 5, 2009, respondent and F.H. were issued six-month B-2 (visitor) visas at the U.S. Embassy in Berlin, Germany, while the other two boys were issued F-1 (student) visas. Petitioner was admitted to the United States pursuant to the waiver program. Petitioner, respondent, and their three sons arrived in the United States on February 18, 2009.

Upon their arrival in the United States, the family lived in the vacation home in Cape Coral and the two older boys enrolled in a private school in Fort Myers, Florida.

Petitioner would travel back and forth to Germany for his employment activities while his family remained in Florida. TTS AG maintained an apartment for petitioner in Berlin, Germany. Shortly thereafter, TTS AG decided to expand its production to the United States. In March 2009, TTS AG incorporated Tube Technology Systems, Inc. (TTS Inc.) as a wholly owned Florida subsidiary. TTS AG asked petitioner to run the United States affiliate in addition to his other duties with TTS AG. Respondent's six-month visitor status was to expire on August 17, 2009. In a letter dated July 12, 2009 to the United States Citizenship and Immigration Services (USCIS), respondent's attorney submitted an application for an extension of respondent's B-2 status. Attached to the attorney's letter was an undated letter by respondent to the USCIS requesting the extension of her B-2 status. Respondent's letter stated she was "requesting that my stay be extended until to allow me to remain with and care for my young sons until we return to Germany at the end of the school year. They are currently enrolled with valid F-2 student visas in a private program at Canterbury School in Fort Myers, Florida." Both letters referred to an enclosure of a copy of a warranty deed to "our vacation home" in Florida. Respondent's "application for extension of temporary stay" was approved effective from August 18, 2009 through February 16, 2010.

On November 18, 2009, TTS Inc. applied for a L-type visa for petitioner, which was granted on November 20, 2009. A L-type visa is a nonimmigrant temporary visa to effectuate an intracompany transfer of an executive or manager to the United States. In February 2010, petitioner formally agreed to establish and manage TTS Inc. for the manufacture of specialty automobile brake systems for United States automakers. On February 11, 2010, petitioner became the CEO of TTS Inc. pursuant to an additional employment contract with TTS AG and TTS Inc. This additional employment contract, which was governed by German law, was to terminate on November 30, 2011. TTS AG officials variously estimated the project would take 18 to 24 months, and then petitioner was to return to Germany. Because her visa extension would expire soon, in a February 10, 2010 letter by counsel, respondent applied for a change of her B-2 status to an L-2 status and an extension until January 31, 2011 to coincide with petitioner's L-1 status. This application was approved on April 2, 2010, and respondent was given L-2 status (which was derivative of and dependent upon her husband's L-1 status) through January 31, 2011. A similar status change was granted for F.H. on May 5, 2010. Petitioner traveled back and forth to Germany, and researched a location in the United States for the new TTS Inc. plant.

The parties' two older sons re-enrolled in their private school for the 2010 school year. Petitioner's business activities were succeeding. Petitioner and respondent, however, were having marital difficulties. To address their immigration statuses, both petitioner and respondent filed additional applications for extensions. On November 9, 2010, respondent applied for an extension of her L-2 status through January 30, 2013. On November 17, 2010, TTS Inc. filed a petition with the USCIS for an extension of petitioner's L-1A status based upon his employment. TTS Inc. reported that petitioner had negotiated incentives with the City of Auburn, Alabama, hired a consultant to assist with preliminary work in setting up a production facility, shipped machinery and equipment required to begin operations, and reached an agreement with Volkswagen to supply its brake systems. TTS Inc. stated that the dates of intended employment were January 31, 2011 to January 30, 2013.

On December 16, 2010, both petitions were granted. Petitioner was issued an extension of the L-1 visa to stay in the United States through January 30, 2013, based upon his continued employment for TTS Inc. Respondent was granted a "temporary stay" extending her stay in the United States through January 30, 2013. This form notified respondent that her nonimmigrant status was based on the separate nonimmigrant status held by virtue of her husband's authorized employment in the United States. In February 2011, respondent signed contracts with the private school for all three of her sons for the 2011 school year. By a letter dated March 16, 2011, respondent filed an application for permission to accept employment in the United  States. This was approved on May 26, 2011. In March 2011, the parties sold the vacation house in Cape Coral because it was too small for the family, and began planning to build a new house. On March 15, 2011, respondent purchased a lot in the Gulf Harbor Yacht and Country Club, in Fort Myers, Florida, for $320,000. Petitioner retained a real estate developer and former neighbor to design a custom residence with over 6,400 square feet of living space at an estimated cost of $1.25 million. The design process would be completed, but was eventually cancelled due to the marital difficulties. In March 2011, during an exchange of emails between petitioner in Germany and the designer, petitioner made reference to a "move to Fort  Myers full time" and requested that the design process be expedited.

Marital difficulties continued during the design process for the new house. Respondent had opened up a bank account in her own name at a Florida bank in March 2011. The parties separated in about August 2011. In September 2011,  petitioner discovered that respondent was having an on-going extramarital affair.

On September 26, 2011, respondent took in excess of $330,000 from a joint account with petitioner and deposited it in her sole account in the Florida bank. By mid-October 2011, petitioner had physical custody of the two older boys and respondent had physical custody of F.H. Both parents, however, remained active in the care and upbringing of all three sons. On October 13, 2011, respondent filed a domestic violence action against petitioner and obtained a state court temporary restraining order. On October 20, 2011, petitioner filed for petition for divorce in the Lee County Circuit Court, stating that he and respondent "have been residents of the State of Florida for more than six months next before filing this petition." Florida law requires that at least one of the parties to a divorce proceeding have been a Florida resident for more than six months.Fla. Stat. 61.021.Petitioner dismissed the divorce petition on December 6, 2011. Respondent, however, filed a cross-petition for divorce, which remained pending but was stayed by agreement of the parties.

On November 9, 2011, the state court entered an Order on Stipulation for No Contact directing petitioner to have no contact with respondent, and directing dismissal of the temporary injunction. Without informing respondent, on November 14, 2011, petitioner and the two older sons left Florida for Germany. Respondent had possession of the passports for all three sons. On November 15, 2011, petitioner and his two older sons went to the German embassy in Florida where they obtained emergency documents for the two older sons to return to Germany. They left for Germany later that day and arrived on November 16, 2011.

On or about November 17, 2011, both parents filed motions in the divorce proceeding asking for a temporary parenting plan. Petitioner and respondent both asked for custody of all three children. On December 7, 2011, the state court entered an order granting temporary custody of all three children to the mother and directing that the two older children be returned to Florida.

On November 21, 2011, TTS Inc. withdrew its November 18, 2009, petition for nonimmigrant worker status for petitioner. The USCIS revoked the petition effective that date. The last time respondent attempted to contact her two sons in Germany, or to speak with them when they attempted to contact her, was in the end of November 2011. Petitioner tried to contact respondent and F.H. repeatedly by email, but respondent has never returned the contact or allowed F.H. to do so. Additionally, respondent had not let F.H. contact his father or paternal grandparents since that time.

On January 3, 2012, petitioner filed an Application for Regulation of Parental Custody in a German court regarding his three sons. Petitioner sought full parental custody, or alternatively, the right to determine the place of residence of his three sons.

Respondent's immigration status in the United States was derivative of petitioner's status, which was dependent upon his employment in the United States. Respondent therefore applied for and was accepted as a student at Edison State College for classes beginning January 12, 2012. By a January 10, 2012, letter authored by counsel, respondent filed an application with the USCIS for an extension/change of nonimmigrant status. Respondent's January 3, 2012 application requested an F-1 (student) status, independent of any application or status of petitioner, stating that she traveled on a German passport and was not an applicant for an immigrant visa. Respondent's signed Certificate of Eligibility for Nonimmigrant (F-1) Student Status stated she had been accepted at Edison State College for classes majoring in Early Childhood Education and Teaching, which she expected to complete "not later than 05/05/2014."Respondent certified that "I seek to enter or remain in the United States temporarily, and solely for the purpose of pursuing a full course of study at the school...." In a separate Affidavit of Stephanie Hamprecht dated January 3, 2012, respondent stated that she was currently present in the United States pursuant to a grant of Change of Status to L-2 status as a dependent spouse "during my husband's temporary work assignment" valid from February 1, 2011 to January 30, 2013; that her husband had filed for divorce; that while divorce proceedings are pending, and after the termination of the marriage, she "wish[ed] to stay in the United States to pursue a degree in Early Child Education in order to better my chances of employment in Germany"; that she was not employed during her 17 year marriage, and therefore "I will have difficulty finding employment upon my return to Germany without any kind of formal education"; that after completion of her program at Edison Community College "I plan on moving back to my residence in Germany, where I have a strong support circle made up of many friends and a large family and where I have a strong financial standing"; and that "I own property in Dorsten, Germany, where I plan to return and seek employment upon the termination of my program at Edison  Community College."

On February 24, 2012, the requested change of status to F-1 (student) was granted  for respondent. The approved "temporary stay" was valid for the duration of respondent's student status. In a March 7, 2012 letter by counsel, respondent caused an application to be filed on behalf of F.H. requesting a change of status to F-2 status. The application stated that F.H. was "supported by my mother, based on whose principal status I am applying." The application remained pending as the USCIS issued a Request for Evidence on May 1, 2012 requiring a Dependant Copy of the SEVIS Form I-20 by June 3, 2012. In an April 5, 2012, answer to request for admission, respondent stated:"Respondent denies that she ever intended to return to Germany after moving to the United States."

The District Court found that the retention of F.H. in the United States was clearly with the petitioner's consent until November 14, 2011, the date petitioner left for Germany with his two other sons. It observed that the Eleventh Circuit has adopted an approach to determine habitual residence. Determination of a habitual residence focuses on the existence or non-existence of a settled intention to abandon the former residence in favor of a new residence, coupled with an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized. Ruiz, 392 F.3d at 1253-54,adopting the approach set forth in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001). The Court concluded that petitioner has established by a preponderance of the evidence that F.H.'s habitual residence remained Germany.

It found that the parents never had a shared intention to abandon Germany as a habitual residence and to make the United States the habitual residence for themselves or F.H. Both parents clearly had the shared intent to come to the United States for some period of time. There was an agreement to stay for the duration of petitioner's employment activities in the United States. Petitioner maintained this was the extent of the agreement, while respondent asserted that it was agreed they would never again reside in Germany.

The Court did not find respondent's testimony regarding their agreement to remain permanently in the United States to be credible. Respondent had shown a propensity to make whatever statement was in her best interest at the time in this regard. Petitioner testified before the Court that since February 18, 2009, it has been her intent to live permanently in Florida; that this intent has never changed; and that since her arrival in the United States she never intended to return to Germany. In an April 5, 2012, answer to requests for admissions, respondent denied "that she ever intended to return to German after moving to the United States." And yet, in July 2009, respondent told the USCIS that she was requesting a visa extension to stay with her children "until we return to Germany at the end of the school year." In January 2012, respondent told the USCIS she was requesting a student visa to complete her education so as to "better my chances for employment in Germany." Respondent said she owned property in Dorsten, Germany, "where I plan to return and seek employment upon the termination of my program" at school. The Court found that the parents never had the settled intention of abandoning Germany as their habitual residence in favor of the United States.

It was undisputed that respondent had maintained custody of F.H. in the United States, and refused to allow petitioner to communicate with F.H. and refused to allow F.H. to communicate with petitioner. Respondent retained F.H.'s German passport (until surrendered to the court), has declined to return F.H. to Germany, and initiated legal proceedings to prevent that from occurring. The Court found that there was a "retention" of F.H. within the meaning of the Hague Convention from at least November 17, 2012 forward.

The Court concluded that the evidence in this case established that respondent's retention of the child was a wrongful retention under the Hague Convention. Respondent's refusal to allow communication between F.H. and petitioner, and her unilateral retention of F.H. without the consent of petitioner, violated petitioner's custody rights under German law. Petitioner also established he was exercising his rights of  custody at the time the child was wrongfully retained. Petitioner continued to see and 
visit with the child and participate in his life prior to leaving for Germany. After November 14, 2011, petitioner made multiple efforts to maintain contact with the child as well as to obtain custody of F.H.

Khan v. Fatima, --- F.3d ----, 2012 WL 1560398 (C.A.7 (Ill.)) [Canada] [Federal & State Judicial Remedies -Rule 52 -Duty to Make Findings of Fact]

 In Khan v. Fatima, --- F.3d ----, 2012 WL 1560398 (C.A.7 (Ill.)) the petitioner was the father, and the respondent, his wife, was the mother. She removed the child from their joint custody and is thus the "abductor." The child is a girl not yet 4 years old, who was referred to as ZFK. The father, an optometrist in Edmonton, Alberta (Canada), wanted to take the child back to Edmonton. He filed for divorce in Canada on the ground of the mother's "physical or mental cruelty" to him, and sought sole custody of the children. The mother, a U.S. citizen living in Illinois, wanted to keep the children with her in the United States. The district court ordered ZFK returned to Canada with her father, and the mother appealed.

The Court observed that Article 13(b) of the Convention provides a defense to the return of the " abducted" child if "there is a grave risk that [the child's] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." The respondent (the abductor) must prove this defense by clear and convincing evidence, 42 U.S.C. s 11603(e)(2)(A), and Hague Convention proceedings must be conducted with dispatch. Art. 11; March v. Levine, 249 F.3d
462, 474 (6th Cir.2001).

The parties became husband and wife in an arranged marriage two years before the birth of ZFK, their first child. During the family's visit to India the wife complained to the Indian police of domestic abuse. The police investigated, charged the husband, and took away his passport in April of last year. While he was in India the wife (pregnant at the time with a second child), flew to the United States with ZFK. Eventually the husband's passport was returned and he flew back to Canada and some months later, in February of this year, filed the petition for the return of the child. That child was born in the United States after the mother had brought ZFK here and was therefore a U.S. citizen. The father did not argue that the mother abducted that child, who continued to live with her mother.

On March 7 the father obtained an ex parte order from the district court requiring the mother to yield custody of ZFK to him pending resolution of his petition, and on the thirteenth the judge scheduled an evidentiary hearing for March 22. It was held that day and he issued a final order of return the next day and also ordered the wife to hand over ZFK's passport to her husband so that he could take the child back to Canada. But the judge conditioned the orders on the husband's agreeing to pay a retainer (though not necessarily any additional fees) for an attorney who would be hired by the wife to handle the divorce and custody proceeding that her husband has begun in Canada.

On the wife's motion the Circuit Court of Appeals stayed both the order of return, and the order that she turn over the child's passport to her husband, pending the decision of her appeal. And on May 1, after hearing oral argument in the appeal the day before, it ordered the child returned to the mother pending its decision, but that both the mother's passport and the child's passport be held by the U.S. Marshals Service until further notice.

The Court observed that the wife's testimony, if believed, revealed that her husband had a violent, ungovernable temper, had physically abused her on many occasions, some in the presence of ZFK (and in front of the child he had told his wife he would take out her eyeballs, had been rough on occasion with the child, terrified the child, and that the child's mood had brightened greatly when she was living apart from her father. But if the husband's testimony is believed, he was, if not a model husband, not an abuser of his wife or the child.

The Court pointed out that Rule 52(a)(1) of the civil rules requires the judge to "find the facts specially and state [his] conclusions of law separately" when he is the trier of fact. He is not excused from this duty in a proceeding under the Hague Convention. And the duty is not waived when, as in this case, plaintiff and defendant testify inconsistently and it is impossible to demonstrate by objective evidence which one is telling the truth, or more of the truth. The trier of fact must decide whom to believe (and how much to believe) on the basis of the coherence and plausibility of the contestants' testimony, corroboration or contradiction by other witnesses, and other clues to falsity and veracity. The process of factfinding in such a situation is inexact and the findings that result are doubtless often mistaken. But the judge can't just throw up his hands, as happened in this case, because he can't figure out what is true and what is false in the testimony. There is no uncertainty exception to the duty imposed by Rule 52. And if there were such an exception, it would not be available when the evidentiary hearing had lasted only a day, as in this case. The judge could have
adjourned the hearing for a few days to enable additional evidence to be obtained and presented; in particular he could have had ZFK examined by a child psychologist. The wife's lawyer, his initial proposal of an expert witness having been turned down because the witness hadn't had time to examine the child (the hearing was held only two weeks after the respondent learned about the suit), offered to submit an evaluation based on an examination of the child by the end of the week. The judge refused. His final order, issued the day after the hearing, was two pages long and contained no findings of fact relating to the Article 13(b) defense, just a conclusion that the wife had failed to meet her burden of proof. That was not a finding of fact, but a conclusion of law. Rule 52(a)(1) requires both: that the facts be found "specially" and the conclusions of law stated separately. There is no rule exempting the judge from the duty of finding the facts in cases in which the plaintiff has a higher burden of proof than the usual civil burden of the preponderance of the evidence.

At the end of the evidentiary hearing the judge had had a discussion with the lawyers, and from that the Court pieced together his thinking and extracted a single, solitary factfinding. The judge began by saying, directly after the parties' witnesses had testified (there were no closing arguments), that "neither-none of the parties to the suit are residents of Illinois."Not true; the wife is currently a resident of Illinois. The judge said that "if I send it [the issue of custody of the child] back to
Canada, the Canadian courts presumably will look and take evidence and so forth and hear essentially the same evidence, I guess, I'm hearing today and make a decision to award custody to the mother or to the father.... [Under the Hague Convention] the child is to be returned except where there's grave risk of harm to the child. And, now, there's-presumably, there's always some risk. All I know is
what I heard here today. And I'm-there's been a he said/she said hearing today. nd it's very difficult for me to say categorically one side is telling the truth and one side is not telling the truth." The judge mentioned a bruise that the mother had received on her arm in India and that had been photographed at the police station and was a basis for her complaint to the police. The judge said that if the father had inflicted the bruise-which he declined to decide one way or the other-that was a bad thing to have done but it hadn't created a "grave risk," a key term in Article 13(b). The Court noted that the issue was not creating a grave risk to the mother, but a grave risk (of psychological harm) to the child. If the mother's testimony about the father's ungovernable temper and brutal treatment of her was
believed, it would support an inference of a grave risk of psychological harm to the child if she continued living with him.

Very little of the wife's testimony was mentioned by the judge, even though the wife had testified that she'd been beaten, knocked down by him in front of ZFK, hit in the chest by a heavy wallet that he had hurled at her, choked by him twice (and she said she thought she would die) when she was pregnant with her second child, threatened with having her eyeballs yanked out, and dragged bodily from the backyard into a room in the house.

The mother's testimony was corroborated by her sister and her sister's husband.

The judge did not mention the testimony of those witnesses, the testimony of a supervisor from Supervised Visitation Services (who testified about the child's having said she "hurt"), or any testimony of the mother except about the bruise on her arm and he made no finding about whether the father had inflicted it, instead dismissing it as not evidence of a "grave risk" to the mother. His focus on the bruise to the exclusion of any mention of the mother's testimony that her husband had choked her hard enough to make her afraid she would die, or indeed of any of her other testimony, was perplexing. Much of that abuse occurred in the child's presence; and repeated physical and psychological abuse of a child's mother by the child's father, in the presence of the child (especially a very young child, as in this case), was likely to create a risk of psychological harm to the child. Whether it was a grave risk, and thus triggered the Article 13(b) defense, was a separate question, but one that cannot be addressed, let alone answered, without recognizing the potential for such a risk in the father's behavior toward the mother in the child's presence. All this the judge ignored.

Throwing up his hands at what he may have thought an incomprehensible quarrel between foreigners, the judge remarked that even if the child wouldn't be safe living with her father, "Why can't Canada any more than Illinois protect-offer her protection?"The mother's lawyer pointed out that other witnesses besides the mother had testified and that there was testimony of "multiple instances" of abuse, to which the judge replied: "Then she ultimately should prevail.... Canada should make the decision on who gets custody of the child because the child is a Canadian citizen and domiciled in Canada."The lawyer asked for a few days to obtain a psychologist's evaluation of the child and the judge refused.

The Court stated that unless a trier of fact determines that the mother is a thorough liar, it was concerned that continuing the child in her father's custody may inflict inflict psychological harm on her. The Court held that the evidentiary hearing was inadequate. Rule 52(a) was violated; there were no findings of fact on the key issues. Decisions are frequently reversed for such omissions. The failure to allow psychological evidence was another error. The errors were not harmless. The district court's order was vacated and the case remanded for a proper hearing.