In Ozgul v. Ozgul, Not Reported in F.Supp.2d, 2010 WL 3981238 (D.Colo.) Petitioner Mustafa Ozgul brought an action pursuant to the International Child Abduction Remedies Act ("ICARA") seeking an order requiring Respondent to return their four-year-old child to Germany. Petitioner Mustafa Ozgul, a Turkish citizen and permanent German resident, and Respondent Jennifer Arlene Ozgul, a dual citizen of the United States and Germany, were married on October 23, 2006, in Colorado. Their son, Kaan Mete Malik Ozgul, was born on December 6, 2006, in Colorado Springs. In May 2007, the Ozguls moved to Neumarkt, Bavaria, Germany, and resided there until Respondent returned to Colorado, with Kaan, in December of 2009.
Respondent initiated divorce and custody proceedings in El Paso County in Colorado Springs in April of 2010.FN2 Petitioner responded by filing under the Treaty for Kaan's return through the German and American Central Authorities. There were there are no existing custody orders or agreements between the parties, and no proceedings other than these pending in any other court or tribunal. Since there was no formal custody order or agreement between the parties the rights and responsibilities to make legal decisions for the child were presumed to be shared in this case. Petitioner contended he exercised this right in Germany by allowing Kaan to visit the United States with his mother and that Respondent violated it by remaining in the United States longer than they had agreed.
The District Court found that Kaan child lived in the United States for the first six months of his life. He moved with his parents to Germany at that time, and lived there for two and a half years. He resided in the United States since his mother decided to take him from Germany ten months ago. The determinative factor in deciding whether Germany remained Kaan's habitual residence was the intention of the parties when they left the United States and moved to Germany. If they intended to create a home there permanently or for an indefinite period of time, Germany was the child's habitual residence. See In re Morris, 55 F.Supp.2d 1156, 1161 (D.Colo.1999) (Babcock, J.) ("Where the duration of a stay in a foreign country is intended to be indefinite, the habitual residence of a child is usually in that foreign country"). If, however, they manifested a different intent, by leaving possessions behind or otherwise evincing an intent to return to the United States after a short stint in Germany, the United States may still be the child's habitual residence. The Court found that the parties intended to create their home in Germany when they left when Kaan was six months old, and intended to remain there indefinitely. Kaan lived in Germany for most of his young life, where his parents leased an apartment, and where his father was and remained employed. Respondent was not employed outside the home in Germany, and was not currently employed in the United States. There was no intent to change that residence when Respondent left for the United States ten months earlier, and Respondent's refusal voluntarily to return him to Germany was in contravention of his father's equal custodial rights. In this regard, Respondent's removal of the child was per se wrongful.
Sunday, July 29, 2012
Salinier v. Moore, Not Reported in F.Supp.2d, 2010 WL 3515699 (D.Colo.) [France] [Attorneys Fees and Costs]
In Salinier v. Moore, Not Reported in F.Supp.2d, 2010 WL 3515699 (D.Colo.) the matter was before the court on petitioner's motion for fees and expenses Incurred regarding the petition for return of the minor child pursuant to 42 U.S.C. s 11607(b)(3). On March 1, 2010, the District Court ordered Respondent to return the minor child to Petitioner's custody in France in accordance with the Convention on International Child Abduction. Consequently, Petitioner was entitled to an order requiring the Respondent "to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of the proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearlyinappropriate." 42 U.S.C. s 11607(b)(3).
The Petitioner sought $24,397.67 in attorney fees, $3,350.84 in costs for litigating all aspects of this case, and $4,482.87 in travel and lodging expenses. In response, while Respondent does not contest "the reasonableness of the fees incurred ... [Respondent] suggest[s] that the paralegal time was excessive and that Respondent should not have to be liable for the costs for the travel expenses of Petitioner's Wife and other relatives." Respondent also contended that a fee award would be "clearly inappropriate" because it would limit her ability to support herself and her four other children.
The Court observed that : "The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). "In other words, to determine the reasonableness of a fee request, a court must begin by calculating the so-called 'lodestar amount' of a fee, and a claimant is entitled to the presumption that this lodestar amount reflects a 'reasonable' fee. Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir.1998)"A district court should approach this reasonableness inquiry 'much as a senior partner in a private law firm would review the eports of subordinate attorneys when billing clients.' "However, '[t]he record ought to assure [the appellate court] that the district court did not eyeball the fee request and cut it down by an arbitrary percentage.'
Petitioner sought fees in the amount of $24,397.67-76 .9 hours at $200 per hour for Attorney Courtney Leathers and 55.5 hours at $100 per hour for Paralegal Cathy Butler. Respondent suggested, without providing any supporting authority or documentation, that the number of paralegal hours spent on this case was excessive. Respondent does not object to the $3,350.84 request for costs.
The Court noted that in determining the reasonableness of the hours expended, it must consider several factors, including: (1) whether the amount of time spent on a particular task appears reasonable in light of the complexity of the case, the strategies pursued, and the responses necessitated by an opponent's maneuvering; (2) whether the amount of time spent is reasonable in relation to counsel's experience; and (3) whether the billing entries are sufficiently detailed, showing how much time was allotted to specific task. See Ramos v. Lamm, 713 F.2d 546, 553-54 (10th Cir.1983),
The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed." Hensley, 461 U .S. at 433. The Tenth Circuit has noted that "[c]ounsel for the party claiming the fees has the burden of proving hours to the district court by submitting meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks." Case, 157 F.3d at 1250. "A district court is justified in reducing the reasonable number of hours if the attorney's time records are 'sloppy and imprecise' and fail to document adequately how he or she utilized large blocks of time. Once the court has adequate time records before it, "it must then ensure that the winning attorneys have exercised 'billing judgment.' " Case, 157 F.3d at 1250 (quoting Ramos, 713 F.2d at 553). "Billing judgment consists of winnowing the hours actually expended down to the hours reasonably expended." "Hours that an attorney would not properly bill to his or her client cannot reasonably be billed to the adverse party, making certain time presumptively unreasonable." In other words, the district court should exclude from this initial fee calculation hours that were not 'reasonably expended.' " Hensley, 461 U.S. at 434 (quotation omitted). "After examining the specific tasks and whether they are properly chargeable, the district court should look at the hours expended on each task to determine if they are reasonable." "The Ramos court suggested that among the factors to be considered were (1) whether the tasks being billed 'would normally be billed to a paying client,' (2) the number of hours spent on each task, (3) 'the complexity of the case,' (4) 'the number of reasonable strategies pursued,' (5) 'the responses necessitated by the maneuvering of the other side,' and (6) 'potential duplication of services' by multiple lawyers. Roberts, 160 F.3d at 1281 (quoting Ramos, 761 F.2d at 554). "In this analysis, [the court should] ask what hours a reasonable attorney would have incurred and billed in the marketplace under similar circumstances."
Petitioner's counsel submitted detailed billing records that "reveal, for each lawyer [and paralegal] for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks." Considering the Ramos factors, the court found that a large majority of the tasks Petitioner's counsel billed would normally be billed to a paying client. It found that although this case was resolved quickly, it involved highly contested, complex and sensitive issues. The court was unpersuaded by Respondent's argument that excessive paralegal hours were billed. In response, Petitioner's counsel stated that "it is this firm's policy to utilize paralegals to keep costs down for our clients, as it would be twice as expensive to have attorneys handling all tasks." The Court found Petitioner's counsel's billing statements reasonable and necessary. As to the hourly rate, the Tenth Circuit indicates that "the court must look to 'what the evidence shows the market commands for civil rights or analogous litigation.' The "local market rate" is usually the state or city in which counsel practices. Ellis v. Univ. of Kansas Medical Center, 163 F.3d 1186, 1203 (10th Cir.1998). The court is also entitled to consider the quality of counsel's performance in setting the fee. Ellis, 163 F.3d at 1203.
Respondent did not contest Ms. Leathers' hourly fee of $200 or Ms. Butler's hourly fee of $100, and thus, the court found the rates to be reasonable. It also found the request for $3,350.84 in costs to be reasonable.
In light of Respondent's financial status and her obligations to her children, the court held that it would be "clearly inappropriate" for Respondent to pay for Petitioner's parents' airplane tickets. However, it found that Respondent was financially responsible for costs associated with the travel of Petitioner's wife, who testified at the hearing. Accordingly, Petitioner's request for travel and lodging expenses was reduced by the total cost of Petitioner's parents' airplane tickets.
Respondent asserts that she was a stay-at-home mother. She was currently pregnant and the primary caretaker of three minor children ages 12 years, 2 years and 8 months. Respondent stated that she was unemployed, had only nominal assets and any award of fees and costs would "substantially impair ... [her] ability to support herself, her unborn child and her four living children." The Court had discretion pursuant to 42 U.S.C. s 11607(b)(3), to reduce any potential award to to allow for the financial condition of the Respondent. See Rydder v. Rydder, 49 F.3d 369, 373-74 (8th Cir.1995). Accordingly, it believed a fee award which unduly limited Respondent's ability to support her children would be "clearly inappropriate." As a result, it reduced the attorneys fee by 25% or $6,099.42. See Berendsen v. Nichols, 938 F.Supp. 737, 739 (D.Kan.1996) (reducing fee award by 15% to account for respondent's financial condition).
Petitioner was awarded attorney fees in the amount of $18,298.25, which was the original fee award, $24,397.67, reduced by 25% or $6,099.42. Petitioner was awarded costs for litigating all aspects of this case in the amount of $3,350.84. Petitioner was awarded $4,482.87 in travel and lodging expenses reduced by the total cost of Petitioner's parents' airplane tickets.
The Petitioner sought $24,397.67 in attorney fees, $3,350.84 in costs for litigating all aspects of this case, and $4,482.87 in travel and lodging expenses. In response, while Respondent does not contest "the reasonableness of the fees incurred ... [Respondent] suggest[s] that the paralegal time was excessive and that Respondent should not have to be liable for the costs for the travel expenses of Petitioner's Wife and other relatives." Respondent also contended that a fee award would be "clearly inappropriate" because it would limit her ability to support herself and her four other children.
The Court observed that : "The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). "In other words, to determine the reasonableness of a fee request, a court must begin by calculating the so-called 'lodestar amount' of a fee, and a claimant is entitled to the presumption that this lodestar amount reflects a 'reasonable' fee. Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir.1998)"A district court should approach this reasonableness inquiry 'much as a senior partner in a private law firm would review the eports of subordinate attorneys when billing clients.' "However, '[t]he record ought to assure [the appellate court] that the district court did not eyeball the fee request and cut it down by an arbitrary percentage.'
Petitioner sought fees in the amount of $24,397.67-76 .9 hours at $200 per hour for Attorney Courtney Leathers and 55.5 hours at $100 per hour for Paralegal Cathy Butler. Respondent suggested, without providing any supporting authority or documentation, that the number of paralegal hours spent on this case was excessive. Respondent does not object to the $3,350.84 request for costs.
The Court noted that in determining the reasonableness of the hours expended, it must consider several factors, including: (1) whether the amount of time spent on a particular task appears reasonable in light of the complexity of the case, the strategies pursued, and the responses necessitated by an opponent's maneuvering; (2) whether the amount of time spent is reasonable in relation to counsel's experience; and (3) whether the billing entries are sufficiently detailed, showing how much time was allotted to specific task. See Ramos v. Lamm, 713 F.2d 546, 553-54 (10th Cir.1983),
The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed." Hensley, 461 U .S. at 433. The Tenth Circuit has noted that "[c]ounsel for the party claiming the fees has the burden of proving hours to the district court by submitting meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks." Case, 157 F.3d at 1250. "A district court is justified in reducing the reasonable number of hours if the attorney's time records are 'sloppy and imprecise' and fail to document adequately how he or she utilized large blocks of time. Once the court has adequate time records before it, "it must then ensure that the winning attorneys have exercised 'billing judgment.' " Case, 157 F.3d at 1250 (quoting Ramos, 713 F.2d at 553). "Billing judgment consists of winnowing the hours actually expended down to the hours reasonably expended." "Hours that an attorney would not properly bill to his or her client cannot reasonably be billed to the adverse party, making certain time presumptively unreasonable." In other words, the district court should exclude from this initial fee calculation hours that were not 'reasonably expended.' " Hensley, 461 U.S. at 434 (quotation omitted). "After examining the specific tasks and whether they are properly chargeable, the district court should look at the hours expended on each task to determine if they are reasonable." "The Ramos court suggested that among the factors to be considered were (1) whether the tasks being billed 'would normally be billed to a paying client,' (2) the number of hours spent on each task, (3) 'the complexity of the case,' (4) 'the number of reasonable strategies pursued,' (5) 'the responses necessitated by the maneuvering of the other side,' and (6) 'potential duplication of services' by multiple lawyers. Roberts, 160 F.3d at 1281 (quoting Ramos, 761 F.2d at 554). "In this analysis, [the court should] ask what hours a reasonable attorney would have incurred and billed in the marketplace under similar circumstances."
Petitioner's counsel submitted detailed billing records that "reveal, for each lawyer [and paralegal] for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks." Considering the Ramos factors, the court found that a large majority of the tasks Petitioner's counsel billed would normally be billed to a paying client. It found that although this case was resolved quickly, it involved highly contested, complex and sensitive issues. The court was unpersuaded by Respondent's argument that excessive paralegal hours were billed. In response, Petitioner's counsel stated that "it is this firm's policy to utilize paralegals to keep costs down for our clients, as it would be twice as expensive to have attorneys handling all tasks." The Court found Petitioner's counsel's billing statements reasonable and necessary. As to the hourly rate, the Tenth Circuit indicates that "the court must look to 'what the evidence shows the market commands for civil rights or analogous litigation.' The "local market rate" is usually the state or city in which counsel practices. Ellis v. Univ. of Kansas Medical Center, 163 F.3d 1186, 1203 (10th Cir.1998). The court is also entitled to consider the quality of counsel's performance in setting the fee. Ellis, 163 F.3d at 1203.
Respondent did not contest Ms. Leathers' hourly fee of $200 or Ms. Butler's hourly fee of $100, and thus, the court found the rates to be reasonable. It also found the request for $3,350.84 in costs to be reasonable.
In light of Respondent's financial status and her obligations to her children, the court held that it would be "clearly inappropriate" for Respondent to pay for Petitioner's parents' airplane tickets. However, it found that Respondent was financially responsible for costs associated with the travel of Petitioner's wife, who testified at the hearing. Accordingly, Petitioner's request for travel and lodging expenses was reduced by the total cost of Petitioner's parents' airplane tickets.
Respondent asserts that she was a stay-at-home mother. She was currently pregnant and the primary caretaker of three minor children ages 12 years, 2 years and 8 months. Respondent stated that she was unemployed, had only nominal assets and any award of fees and costs would "substantially impair ... [her] ability to support herself, her unborn child and her four living children." The Court had discretion pursuant to 42 U.S.C. s 11607(b)(3), to reduce any potential award to to allow for the financial condition of the Respondent. See Rydder v. Rydder, 49 F.3d 369, 373-74 (8th Cir.1995). Accordingly, it believed a fee award which unduly limited Respondent's ability to support her children would be "clearly inappropriate." As a result, it reduced the attorneys fee by 25% or $6,099.42. See Berendsen v. Nichols, 938 F.Supp. 737, 739 (D.Kan.1996) (reducing fee award by 15% to account for respondent's financial condition).
Petitioner was awarded attorney fees in the amount of $18,298.25, which was the original fee award, $24,397.67, reduced by 25% or $6,099.42. Petitioner was awarded costs for litigating all aspects of this case in the amount of $3,350.84. Petitioner was awarded $4,482.87 in travel and lodging expenses reduced by the total cost of Petitioner's parents' airplane tickets.
Thursday, July 19, 2012
Velasquez v Green, 2012 WL 2885662 (E.D.Tex.)) [Canada] [Well-Settled in New Environment] [Age and Maturity]
In Velasquez v Green, 2012 WL 2885662 (E.D.Tex.)) on February 8, 2012, Petitioner Beatriz Velasquez filed an action seeking the return of her daughter ("JCVG"), to Canada.
JCVG was born in Canada on March 1, 2000. Petitioner and Respondent were never married, and there was no formal custody agreement in place. Petitioner alleged that from her birth until late 2010, JCVG resided with her mother in Canada, with her father, Respondent, visiting her occasionally. In late 2010, with the apparent consent of her mother, JCVG traveled from Canada to Texas to visit her father for the holidays. According to Petitioner, the understanding between the parties was that JCVG would return to Canada at the start of 2011. Respondent claimed that the parties never agreed to a temporary stay in Texas but that the plan was for JCVG to come to live with him indefinitely. In any event, JCVG remained in Texas since late 2010 and did not return to Canada. Several months after JCVG came to Texas, Respondent commenced custody proceedings in Texas state court, seeking custody of his child.
At the hearing held on June 6, 2012, the Court heard testimony and Petitioner a submitted documentary evidence including, JCVG's Canadian birth certificate, JCVG's Canadian social security and insurance cards, JCVG's Canadian medical and school records, a Tenancy Agreement for Petitioner in Canada, and Facebook communications between Petitioner and Respondent and Petitioner and her daughter. Petitioner also introduced a copy of the Denton County Petition for Conservatorship of JCVG filed by Respondent and asked that the Court take judicial notice of a Canadian statute regarding custody. By agreement of the parties, the Court questioned JCVG in the courtroom outside the presence of her parents or any witnesses. Counsel for both sides were present but were not permitted to question the witness.
Petitioner testified that she lived in Canada since 1990 and had been a Canadian citizen since 1995. She had a job as a flower designer and was in school for real estate. According to Petitioner, she and Respondent met in 1998 but never lived together and were never married. Their child, JCVG, was born in March of 2000 in Canada, had a Canadian social security number, and was a Canadian citizen. Petitioner testified that she regularly took JCVG to the doctor in Canada, that JCVG received all required vaccinations, and that JCVG was enrolled in school in Canada and involved in after school programs there. Petitioner testified that Respondent would see his daughter a few times a month or over a weekend and sometimes take her to his home in Buffalo and then return her to Canada. According to Petitioner, with the exception of an extended visit to Texas in the summer of 2010, those visits were never longer than a weekend. Petitioner testified that she agreed to allow JCVG to visit her father in Texas for the 2010 winter holiday but expected Respondent to return JCVG to Canada at the end of January 2011. According to Petitioner, it was not until October 2011, when she was served with court papers from Texas seeking custody of JCVG, that she realized that Respondent planned on keeping JCVG in Texas. She subsequently testified that JCVG went to Texas in "December 2009 or 2010 or somewhere around there."Despite Petitioner's confusion, her pleadings, as well as other witnesses' testimony, indicated that the removal/retention at issue involved a winter 2010 trip to Texas.
Respondent testified that he was present at JCVG's birth and that he would see his daughter almost daily from 2000 until 2003. After that, he would visit her approximately two weekends out of the month. After moving to Texas in 2007, Respondent testified, he would visit JCVG a few times a year and made regular phone calls to her. Respondent claimed that Petitioner surrendered custody to him in Buffalo in November 2010. According to Respondent, due to ongoing health and legal issues with Petitioner and difficulties she was facing with JCVG's behavior, he and Petitioner arranged for JCVG to live with him in Texas in November 2010. Respondent conceded that they never determined how long JCVG would live with him but stated that the intention of the trip was more than just a holiday visit. Respondent testified that he and Petitioner decided that his mother would meet Petitioner and JCVG in Buffalo and then his mother would return with JCVG to Texas on November 22, 2010. According to Respondent, JCVG spent Thanksgiving 2010 with him in McKinney, Texas. Respondent also testified that he enrolled JCVG in McKinney schools in November 2010. Respondent stated that this was why he had requested her school and shot records from Petitioner. According to Respondent, JCVG started school in Texas on December 8, 2010, had only missed three days of classes since being in Texas schools, received B’s in her classes, and participated in sports since moving there. Respondent testified that Petitioner only called her daughter 11 times since the move to Texas and he had not changed his phone number since moving there. According to Respondent, JCVG talked to her mom frequently on Facebook and Respondent never restricted any calls from Petitioner. Respondent testified that Petitioner did not ask for him to return JCVG until September 2011.
There was no question here that, prior to November 2010, JCVG was a habitual resident of Canada. As shown by Petitioner, and not disputed by Respondent, she was born there, received medical care there, and was schooled there.
It was undisputed that there was no formal custody agreement in place as to JCVG when she left Canada in 2010. The court observed that when no formal custody agreement exists between the parents, courts must apply the laws of the country of the child's habitual residence to determine if the non-removing parent had "rights of custody" within the meaning of the Convention. Sealed v. Sealed, 394 F.3d 338, 343 (5th Cir.2004). Petitioner cited to Ontario law, R.S.O.1990, Chapter C.12(20)(4), which provides "[w]here the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody ... is suspended until a separation agreement or order otherwise provides." The Court found that Petitioner established that she had ne exeat rights as to JCVG when she left for Texas in November 2010.
The court found that the evidence supported Respondent's claim that-at the time JCVG left Canada, the plan was for her to remain in Texas indefinitely. The Court was not convinced that Petitioner had shown by a preponderance of the evidence that JCVG was wrongfully retained in Texas. Nor was the Court convinced that Respondent had shown by of preponderance of the evidence Petitioner's consistent attitude of acquiescence over a significant period of time. Because there was significant dispute as to whether Petitioner consented to have JCVG live in Texas and because some of Petitioner's testimony lacked credibility and was inconsistent with both her pleadings and the testimony of other witnesses, the Court was hesitant to find that Petitioner sustained her burden in showing wrongful retention. The Court held that it need not make a determination as to wrongful retention to find that JCVG need not be returned to Canada until a further custody order is issued as the Court found exceptions to return applied.
The Court pointed out that Article 12 of the Convention is very clear that the Court looks to the date on which these proceedings were commenced in applying the one-year limitations period. see, e.g.,Muhlenkamp v. Blizzard, 521 F.Supp.2d 1140, 1152 (E.D.Wash.2007). This case was filed on February 8, 2012. JCVG was removed from Canada in November 2010. Petitioner asked the Court to look to the filing of the Denton County petition for conservatorship to determine when JCVG was wrongfully retained. Petitioner testified that she was served with the state court action in October 2011 and claimed that it was not until this date, almost a year after JCVG went to Texas for the holidays, that she realized that Respondent would not be returning her daughter to Canada. Thus, Petitioner argued, this was the date that triggered the running of the one-year limitations proceedings. The Court disagreed .The Court found that the proceedings were not commenced within a year of any wrongful retention, which occurred, if at all, sometime in January 2011, based on Petitioner's position at the time suit was filed.
Because more than a year had elapsed, the Court then looked to whether JCVG was well-settled. It noted that Courts determining whether a child is well-settled can look to the following factors: (1) the age of the child; (2) the stability and duration of the child's new residence; (3) whether the child attends school or daycare 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; (6) whether the child attends church regularly; and (7) the father's employment and financial stability. Edoho v. Edoho, 2010 WL 3257480, 6 (S.D.Tex.2010); Van Driessche v. Ohio-Esezeoboh, 466 F.Supp.2d 828, 847 (S.D.Tex.2006). "[F]or the child to be well-settled, the court should consider more than whether he or she has a comfortable material existence, taking into consideration the child's living environment and any active measures taken to conceal a child." Van Driessche, 466 F.Supp.2d at 848.
Having considered the testimony presented, the Court found that JCVG was well-settled in the United States. Since coming to Texas, she has been enrolled in-and regularly attended-school. She testified to having friends and appeared to be a well-adjusted pre-teen girl. She lived her father, her brother, and her paternal grandmother. She testified that she had a close relationship with her grandmother (an individual who appeared to be active in JCVG's daily life) and had a good relationship with her father. Moreover, her father was employed and appeared financially stable. More than one year had elapsed since JCVG came to, and remained in, Texas, and she was well-settled here. Thus, the exception set forth in Article 12 of the Hague Convention applied and return was not appropriate.
The Court also found that JCVG's desire to remain in Texas should be taken into account. The Hague Convention permits the Court to refuse to return a child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of her views. Art. 13. It is not enough that the child has maintained friendships, prefers her new residence over the country of removal, or enjoys a more stabilized situation to support a finding that the child is mature enough for the Court to take into account her views. England v. England, 234 F.3d 268, 272 (5th Cir.2000). No age is too young or old enough as a matter of law for the exception to apply, but must be determined on a case-by-case basis. When questioning JCVG, it was clear to the Court that she was sufficiently mature such that her wishes should be taken into account. She, unlike many seasoned counsel and adults who appear before the Court, listened to directions, heeded the Court's warnings regarding proper court conduct, and was a polite in her testimony. She behaved appropriately, was well-spoken, and even knew the precise name of her father's employer. She also testified that she preferred to remain in Texas in part because she was receiving a better education here. The Court found this statement exemplified her level of maturity and that her wishes were another basis to deny the request that she be returned to Canada.
Because the Court found that even if there were wrongful retention, Respondent satisfied the well-settled and age and maturity exceptions outlined in the Hague Convention, the Magistrate found that Petition for Return of Child should be denied and this matter should be closed on the Court's docket.
JCVG was born in Canada on March 1, 2000. Petitioner and Respondent were never married, and there was no formal custody agreement in place. Petitioner alleged that from her birth until late 2010, JCVG resided with her mother in Canada, with her father, Respondent, visiting her occasionally. In late 2010, with the apparent consent of her mother, JCVG traveled from Canada to Texas to visit her father for the holidays. According to Petitioner, the understanding between the parties was that JCVG would return to Canada at the start of 2011. Respondent claimed that the parties never agreed to a temporary stay in Texas but that the plan was for JCVG to come to live with him indefinitely. In any event, JCVG remained in Texas since late 2010 and did not return to Canada. Several months after JCVG came to Texas, Respondent commenced custody proceedings in Texas state court, seeking custody of his child.
At the hearing held on June 6, 2012, the Court heard testimony and Petitioner a submitted documentary evidence including, JCVG's Canadian birth certificate, JCVG's Canadian social security and insurance cards, JCVG's Canadian medical and school records, a Tenancy Agreement for Petitioner in Canada, and Facebook communications between Petitioner and Respondent and Petitioner and her daughter. Petitioner also introduced a copy of the Denton County Petition for Conservatorship of JCVG filed by Respondent and asked that the Court take judicial notice of a Canadian statute regarding custody. By agreement of the parties, the Court questioned JCVG in the courtroom outside the presence of her parents or any witnesses. Counsel for both sides were present but were not permitted to question the witness.
Petitioner testified that she lived in Canada since 1990 and had been a Canadian citizen since 1995. She had a job as a flower designer and was in school for real estate. According to Petitioner, she and Respondent met in 1998 but never lived together and were never married. Their child, JCVG, was born in March of 2000 in Canada, had a Canadian social security number, and was a Canadian citizen. Petitioner testified that she regularly took JCVG to the doctor in Canada, that JCVG received all required vaccinations, and that JCVG was enrolled in school in Canada and involved in after school programs there. Petitioner testified that Respondent would see his daughter a few times a month or over a weekend and sometimes take her to his home in Buffalo and then return her to Canada. According to Petitioner, with the exception of an extended visit to Texas in the summer of 2010, those visits were never longer than a weekend. Petitioner testified that she agreed to allow JCVG to visit her father in Texas for the 2010 winter holiday but expected Respondent to return JCVG to Canada at the end of January 2011. According to Petitioner, it was not until October 2011, when she was served with court papers from Texas seeking custody of JCVG, that she realized that Respondent planned on keeping JCVG in Texas. She subsequently testified that JCVG went to Texas in "December 2009 or 2010 or somewhere around there."Despite Petitioner's confusion, her pleadings, as well as other witnesses' testimony, indicated that the removal/retention at issue involved a winter 2010 trip to Texas.
Respondent testified that he was present at JCVG's birth and that he would see his daughter almost daily from 2000 until 2003. After that, he would visit her approximately two weekends out of the month. After moving to Texas in 2007, Respondent testified, he would visit JCVG a few times a year and made regular phone calls to her. Respondent claimed that Petitioner surrendered custody to him in Buffalo in November 2010. According to Respondent, due to ongoing health and legal issues with Petitioner and difficulties she was facing with JCVG's behavior, he and Petitioner arranged for JCVG to live with him in Texas in November 2010. Respondent conceded that they never determined how long JCVG would live with him but stated that the intention of the trip was more than just a holiday visit. Respondent testified that he and Petitioner decided that his mother would meet Petitioner and JCVG in Buffalo and then his mother would return with JCVG to Texas on November 22, 2010. According to Respondent, JCVG spent Thanksgiving 2010 with him in McKinney, Texas. Respondent also testified that he enrolled JCVG in McKinney schools in November 2010. Respondent stated that this was why he had requested her school and shot records from Petitioner. According to Respondent, JCVG started school in Texas on December 8, 2010, had only missed three days of classes since being in Texas schools, received B’s in her classes, and participated in sports since moving there. Respondent testified that Petitioner only called her daughter 11 times since the move to Texas and he had not changed his phone number since moving there. According to Respondent, JCVG talked to her mom frequently on Facebook and Respondent never restricted any calls from Petitioner. Respondent testified that Petitioner did not ask for him to return JCVG until September 2011.
There was no question here that, prior to November 2010, JCVG was a habitual resident of Canada. As shown by Petitioner, and not disputed by Respondent, she was born there, received medical care there, and was schooled there.
It was undisputed that there was no formal custody agreement in place as to JCVG when she left Canada in 2010. The court observed that when no formal custody agreement exists between the parents, courts must apply the laws of the country of the child's habitual residence to determine if the non-removing parent had "rights of custody" within the meaning of the Convention. Sealed v. Sealed, 394 F.3d 338, 343 (5th Cir.2004). Petitioner cited to Ontario law, R.S.O.1990, Chapter C.12(20)(4), which provides "[w]here the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody ... is suspended until a separation agreement or order otherwise provides." The Court found that Petitioner established that she had ne exeat rights as to JCVG when she left for Texas in November 2010.
The court found that the evidence supported Respondent's claim that-at the time JCVG left Canada, the plan was for her to remain in Texas indefinitely. The Court was not convinced that Petitioner had shown by a preponderance of the evidence that JCVG was wrongfully retained in Texas. Nor was the Court convinced that Respondent had shown by of preponderance of the evidence Petitioner's consistent attitude of acquiescence over a significant period of time. Because there was significant dispute as to whether Petitioner consented to have JCVG live in Texas and because some of Petitioner's testimony lacked credibility and was inconsistent with both her pleadings and the testimony of other witnesses, the Court was hesitant to find that Petitioner sustained her burden in showing wrongful retention. The Court held that it need not make a determination as to wrongful retention to find that JCVG need not be returned to Canada until a further custody order is issued as the Court found exceptions to return applied.
The Court pointed out that Article 12 of the Convention is very clear that the Court looks to the date on which these proceedings were commenced in applying the one-year limitations period. see, e.g.,Muhlenkamp v. Blizzard, 521 F.Supp.2d 1140, 1152 (E.D.Wash.2007). This case was filed on February 8, 2012. JCVG was removed from Canada in November 2010. Petitioner asked the Court to look to the filing of the Denton County petition for conservatorship to determine when JCVG was wrongfully retained. Petitioner testified that she was served with the state court action in October 2011 and claimed that it was not until this date, almost a year after JCVG went to Texas for the holidays, that she realized that Respondent would not be returning her daughter to Canada. Thus, Petitioner argued, this was the date that triggered the running of the one-year limitations proceedings. The Court disagreed .The Court found that the proceedings were not commenced within a year of any wrongful retention, which occurred, if at all, sometime in January 2011, based on Petitioner's position at the time suit was filed.
Because more than a year had elapsed, the Court then looked to whether JCVG was well-settled. It noted that Courts determining whether a child is well-settled can look to the following factors: (1) the age of the child; (2) the stability and duration of the child's new residence; (3) whether the child attends school or daycare 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; (6) whether the child attends church regularly; and (7) the father's employment and financial stability. Edoho v. Edoho, 2010 WL 3257480, 6 (S.D.Tex.2010); Van Driessche v. Ohio-Esezeoboh, 466 F.Supp.2d 828, 847 (S.D.Tex.2006). "[F]or the child to be well-settled, the court should consider more than whether he or she has a comfortable material existence, taking into consideration the child's living environment and any active measures taken to conceal a child." Van Driessche, 466 F.Supp.2d at 848.
Having considered the testimony presented, the Court found that JCVG was well-settled in the United States. Since coming to Texas, she has been enrolled in-and regularly attended-school. She testified to having friends and appeared to be a well-adjusted pre-teen girl. She lived her father, her brother, and her paternal grandmother. She testified that she had a close relationship with her grandmother (an individual who appeared to be active in JCVG's daily life) and had a good relationship with her father. Moreover, her father was employed and appeared financially stable. More than one year had elapsed since JCVG came to, and remained in, Texas, and she was well-settled here. Thus, the exception set forth in Article 12 of the Hague Convention applied and return was not appropriate.
The Court also found that JCVG's desire to remain in Texas should be taken into account. The Hague Convention permits the Court to refuse to return a child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of her views. Art. 13. It is not enough that the child has maintained friendships, prefers her new residence over the country of removal, or enjoys a more stabilized situation to support a finding that the child is mature enough for the Court to take into account her views. England v. England, 234 F.3d 268, 272 (5th Cir.2000). No age is too young or old enough as a matter of law for the exception to apply, but must be determined on a case-by-case basis. When questioning JCVG, it was clear to the Court that she was sufficiently mature such that her wishes should be taken into account. She, unlike many seasoned counsel and adults who appear before the Court, listened to directions, heeded the Court's warnings regarding proper court conduct, and was a polite in her testimony. She behaved appropriately, was well-spoken, and even knew the precise name of her father's employer. She also testified that she preferred to remain in Texas in part because she was receiving a better education here. The Court found this statement exemplified her level of maturity and that her wishes were another basis to deny the request that she be returned to Canada.
Because the Court found that even if there were wrongful retention, Respondent satisfied the well-settled and age and maturity exceptions outlined in the Hague Convention, the Magistrate found that Petition for Return of Child should be denied and this matter should be closed on the Court's docket.
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