E.D.T. ex rel. Adamah v. Tayson, Not Reported in F.Supp.2d, 2010 WL 4116666 (E.D.N.Y.) [United Kingdom] [Attorneys fees and Costs]

In E.D.T. ex rel. Adamah v. Tayson, Not Reported in F.Supp.2d, 2010 WL 4116666 (E.D.N.Y.) Petitioner Ides Adamah successfully petitioned for the return of her child ("E.D.T.") to the United Kingdom pursuant to the Hague Convention. See Adamah v. Tayson (In re E.D.T.), 2010 U.S. Dist. LEXIS 54172, 2010 WL 2265308 (May 27, 2010 E.D.N.Y.). Petitioner then sought reimbursement from respondent Evans Tayson ("Tayson") of costs incurred pursuant to 42 U.S.C. 11607(b)(3).

Adamah did not seek an award of attorney's fees against Tayson, only costs, including reimbursement for: (1) filing fees for commencement of her petition for the return of her child; (2) fees related to service of process; (3) costs of procuring transcripts of depositions, the hearing and other trial proceedings; (4) disbursements for postage, telephone calls, copying costs, messenger service and local transportation; and (5) airfare for Adamah's attendance at trial-related proceedings and the collection of her daughter. In support of her motion, she submitted documentation and/or invoices attesting to the foregoing costs, with the exception of travel expenses for two plane trips. Further, apart from airfare, the remainder of Adamah's costs were out-of-pocket expenses incurred by her counsel on her behalf.

The Court observed that an award of costs to a prevailing petitioner is mandatory under ICARA unless the respondent establishes that "such order would be clearly inappropriate." 42 U.S.C. 11607(b) (3). After being duly served with Adamah's motion for costs, Tayson failed to respond or to otherwise defend against the petition; therefore, he did not establish that an award of costs against him would be inappropriate.

The Court held that the travel expenses Adamah incurred were clearly "transportation costs related to the return of the child," 42 U.S.C. 11607(b) (3), and she was entitled to reimbursement for those travel expenses for which she had airfare charges. The Court observed that as to the expenses her counsel incurred on her behalf, the Second Circuit has held that reasonable, identifiable out-of-pocket disbursements ordinarily charged to clients are recoverable. See United States Football League, 887 F.2d 408, 416 (2d Cir.1989); Kuzma v. Internal Revenue Service, 821 F.2d 930, 933-34 (2d Cir.1987) (providing a non-exclusive list of recoverable costs, including photocopying, travel and telephone costs). Payment is not permitted, however, for items that constitute routine office overhead. See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir.1998). Based on a review of Adamah's application, the Court found that the costs incurred on her behalf were recoverable. Adamah's motion is granted and she was awarded costs in the total amount of $9,408.95.

Rivera Rivas v. Segovia, Not Reported in F.Supp.2d, 2010 WL 5394778 (W.D.Ark.) [El Salvador] [Well-Settled in New Environment]

In Rivera Rivas v. Segovia, Not Reported in F.Supp.2d, 2010 WL 5394778 (W.D.Ark.) Dinora del Carmen Rivera Rivas filed a Petition for Return of Child to Petitioner. Both parties testified at the hearing, with Petitioner appearing telephonically from El Salvador. Petitioner had local counsel present in the courtroom, and Salvadoran counsel present with her in El Salvador. An interpreter was also provided by the Court.

The minor child, K.S.R., was born to Dinora del Carmen Rivera Rivas and Nathan Christian Segovia in El Salvador on August 30, 2003. The parents were never married . Both parents were born in El Salvador, but Segovia, previous to his relationship with Rivas and the birth of K.S.R., immigrated to the U.S. and obtained dual citizenship. The Respondent was a citizen of both the United States and El Salvador. K.S.R. was granted U.S. citizenship shortly after birth in addition to her Salvadoran citizenship. After her birth, K.S.R. lived continuously with her mother in El Salvador. Segovia visited K.S.R. occasionally in El Salvador but maintained his home with his family in Arkansas. Segovia also spoke frequently with K.S.R. by telephone.

On April 5, 2009, Segovia took K.S.R., with Rivas's permission, to the United States for what was to be a one week vacation to Disneyland and an opportunity for K.S.R. to meet her half-siblings. Segovia and K.S.R. were scheduled to return to El Salvador on April 11, 2009. Rivas contends that when she called to check on K.S.R. after the flight to the US, Segovia informed her that they had not gone to Disneyland but were, instead, in Arkansas at Segovia's residence. Segovia at some point told Rivas that he thought it would be better for K.S.R. if she lived with him in the United States.

K.S.R. was now 7 years old. Segovia presented evidence indicating that K.S.R. was well-adjusted to her life and family in the United States. She attended school and received good grades. She went on family trips with her father, step-mother, and half-siblings, and evidence presented by Segovia indicated that she got along well with her half-siblings. Phone records filed by Segovia, and testimony from both parties, indicated that Rivas had frequent contact with the family since K.S.R.'s arrival in the United States, although Rivas claimed that her contact with K.S.R. has been limited by Segovia.

Rivas filed a complaint pursuant to the Hague Convention on the Civil Aspects of International Child Abduction on July 9, 2010. Segovia contended that more than a year passed between retention of the child and commencement of proceedings in contravention of Article 12 of the Convention, and the child was now "settled in her environment." Segovia contended that Article 13 of the Convention does not require return of the child if it is established by clear and convincing evidence that return of the child will result in psychological or physical harm. Segovia contended that the child need not be returned, under Article 12, if the child has "attained an age and degree of maturity at which it is appropriate to take account" of their views and they object to being returned.

The Court noted that some of Segovia's allegations were previously considered in Arkansas State Court, in an ex parte proceeding which ultimately granted custody to Segovia. The Court emphasized that Article 16 of the Hague Convention provides that proceedings in an abducted-to-nation (here the United States) may not determine custody issues. Hague Convention, Art. 16. The Convention imposes and requires a preliminary determination of which country has jurisdiction to consider custody questions. Silverman v. Silverman, 338 F.3d 886, 890 n. 8 (8th Cir.2003). While this Court, in its discretion, may take into consideration the reasoning behind the Arkansas State Court's findings, Miller v..Miller, 240 F.3d 392,402 (4th Cir.2001), the Court is not bound by those findings and limits itself to consideration of only the narrow question presented by Rivas's Petition under the Convention.

Segovia did not dispute that Rivas could meet her initial burden of establishing wrongful retention under the Convention. Accordingly, the Court found that Rivas could satisfy her burden of establishing that K.S.R. was wrongfully retained in the United States by Segovia.

The Court found that Segovia left El Salvador with K.S.R. on April 5, 2009. They were to return to El Salvador on April 11, 2009. Rivas did not file this Complaint until July 9, 2010. Using either of the April dates, more than a year passed between the wrongful removal/retention and the commencement of proceedings. However, the Respondent should not benefit from the effects of his own actions and the barriers the Petitioner faces in bringing an action. Antunez-Fernandes, 259 F.Supp.2d at 815; see also 51 Fed.Reg. 10,494, 10,509 (1986) ("The reason for the passage of time, which may have made it possible for the child to form ties to the new country, is also relevant to the ultimate disposition of the return petition."). In this case, both parties admitted that there were ongoing discussions about arriving at a mutual agreement for the return of the child. Although an agreement was never reached, it would not be a stretch of logic for Rivas to have believed that Segovia may have eventually returned K.S.R. without the intervention of the courts. Rivas started the process required by the Convention, by filing an Application with the Central Authority in El Salvador, in October of 2009. The Court held that Segovia should not be allowed to benefit from any lingering hope that Rivas may have had in reaching a more amicable solution or for any obstacles Rivas may have faced in ensuring that her application was processed expeditiously. For these reasons, the Court found that the reasons for the passage of time after K.S.R. was removed from El Salvador, mitigate against allowing Segovia to benefit from the effects of his own actions in wrongfully retaining K.S.R. in the United States.

Segovia presented much evidence that K.S.R. was well-settled in Arkansas. K.S.R. received good grades in school and her artwork was entered into a local contest. Segovia provided pictures of her interacting with family and friends in various situations. Both Rivas and Segovia testified that K.S.R. continued to have frequent contact with her mother. K.S.R. had other family in El Salvador as well, including half-siblings. Therefore, although K.S.R. had, naturally, grown accustomed to her environment in the United States over the past year, she also maintained consistent ties with her habitual residence of El Salvador. The Court had no doubt that K.S.R. would be academically successful in El Salvador. K.S.R., in speaking directly with the Court in camera, with only the judge and a clerk present, expressed that, while she enjoyed living in the United States, she missed her mother. The Court found that Segovia had not met his burden of establishing, by a preponderance of the evidence that the "well-settled defense" should apply in this case and prevent the return of K.S.R.

to her habitual residence of El Salvador. Even had Segovia, been able to establish this affirmative defense, the Court stated that it would find, in its discretion, that ordering K.S.R.'s return would nevertheless be necessary to further the aims of the Convention. The Court noted that Segovia retains Salvadoran citizenship but chose not to avail himself of any judicial remedies available to him in El Salvador to seek custody of his daughter. Instead, he chose to retain his daughter in the United States and seek custody of K.S.R. here. This was precisely the kind of situation that the Convention was designed to discourage.

At the evidentiary hearing, Segovia argued that K.S.R. would be at risk if returned to El Salvador because she may have witnessed an act of domestic violence between her mother and another woman. Rivas denied that any such incident had ever taken place. The Court held that regardless of whether the incident occurred, the type of risk Segovia sought to establish would not rise to the kind of "grave risk" contemplated by the Convention. "[O]nly severe potential harm to the child will trigger this Article 13b exception." Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir.1995). There are two types of grave risk that are appropriate under Article 13(b): sending a child to a 'zone of war, famine, or disease,' or in cases of serious abuse or neglect." (Friedrich II, 78 F.3d at 1060 and Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir.2001)). This exception was not intended to apply to a "return to a home where money is in short supply, or where educational or other opportunities are more limited ... An example of an 'intolerable situation' is one in which a custodial parent sexually abuses the child." 51 Fed.Reg. 10494.

The Court observed that "may also refuse to order the return of the 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 its views." Hague Convention, Art. 13. Pitts, 481 F.3d 1279, 1286 (10th Cir.2007)). A child's expression of a generalized desire to remain in a familiar place, without more particularized objections to being returned, are generally insufficient to invoke the application of this exception. The Court, without making a finding as to whether a seven-year-old may have the sufficient age and maturity to invoke this exception, found that K.S.R. was not of sufficient age and maturity to warrant the application of the exception in this particular case. Furthermore, K.S.R. did not express any particularized objections to being returned to El Salvador during in camera conversation. Therefore, the Court found that application of this exception was not appropriate in this case. Accordingly, Petitioner Dinora del Carmen Rivera Rivas's Petition for Return of Minor Child was granted.

Etienne v. Zuniga, Not Reported in F.Supp.2d, 2010 WL 4918791 (W.D.Wash.) [Mexico][Well-Settled in New Environment]

In Etienne v. Zuniga, Not Reported in F.Supp.2d, 2010 WL 4918791 (W.D.Wash.) Raphael Noel Etienne ("Etienne") filed a petition seeking the return of his two minor children to Mexico. On June 2, 2010, the Court issued findings of fact and conclusions of law and denied the petition for return with respect to E.N. based on her objections to return. The Court found that there was substantial evidence that B.N. was well-settled in the United States. However, the Court reserved judgment on the well-settled issue and other defenses, with respect to B.N., finding it would benefit from the report of a child psychologist, or similar professional, based on his or her interview with B.N. with respect to his life in Mexico, his relationship with his parents, and his life in the United States.

The parties agreed to have Joanne Solchany, PhD, ARNP, a professional who specialized in working with children, interview B.N. and submit her report to the Court. In the Court's June 2, 2010, order containing its findings of fact and conclusions of law, the Court reserved ruling on whether Respondent Beatriz Villarreal Zuniga ("Villarreal") had proven by a preponderance of the evidence that B.N. was well-settled in the United States as defined in Article 12 of the Convention. The Court observed that because the Court concluded that Etienne did not file his petition within one year of the wrongful retention of the children Villarreal was entitled to demonstrate that B.N. should not be returned because they are now settled in their new environment. See Convention, art. 12. The Court now concluded that B.N. was well-settled in the United States . It noted that Courts analyzing this defense have weighed several factors in determining whether a child is "settled" for purposes of this defense. In re B. DEL C.S.B., 559 F.3d 999, 1009 (9th Cir.2009); In re Koc, 181 F.Supp.2d 136 (S.D.N.Y.2001); In re Robinson, 983 F.Supp. at 1346; Zuker, 2 F.Supp.2d at 141. In In re B. DEL C.S.B., the Ninth Circuit adopted a list of six factors it considered relevant to a court's determination of whether a child is now settled in a new environment: (1) the child's age; (2) the stability and duration of the child's residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child has friends and relatives in the new area; (5) the child's participation in community or extracurricular school activities, such as team sports, youth groups, or school clubs; and (6) the respondent's employment and financial stability. In addition to these six factors, the Ninth Circuit decided that, in some cases, a court should consider the immigration status of the child and the respondent. However, the Ninth Circuit in In re B. DEL C.S.B. concluded, as a matter of first impression, that lack of lawful immigration status is not determinative of whether a child is "settled" for purposes of Article 12 of the Convention and such status is relevant only where an "immediate, concrete threat of deportation" exists. "Although all of these factors, when applicable, may be considered in the 'settled' analysis, ordinarily the most important is the length and stability of the child's residence in the new environment."

When Villarreal and the children arrived in Washington in July of 2008, they lived with Villarreal's uncle, Filiberto Zuniga ("Filiberto"). Villarreal and Filiberto had disagreements while she and her children were living with him. On the evening of Thanksgiving day in 2008, Villarreal and the children came back to Filiberto's home and the family would not open the door for them. Villarreal and the children spent that night in a hotel. The next day, they moved into a house. Approximately two weeks later, Villarreal and her children moved into an apartment in Tacoma, Washington. Approximately six months later, Villarreal and her children moved into the apartment in Lakewood, Washington, where they now resided. B.N. was currently in the second grade at a public elementary school in Lakewood, Washington. He was doing well academically in school and had many friends. He enjoyed school, playing with his friends that lived near his apartment, and playing video games. B.N. also very much enjoyed going to church and was active with the church's children's group.

Villarreal had held several part-time jobs since she and the children have lived in Washington. She is not currently receiving any public assistance from Washington, with the exception of medical coupons. She currently earned money by selling jewelry at a swap meet. Villarreal had a petition for asylum pending with the United States Department of Homeland Security and applied for employment authorization from U.S. Citizenship and Immigration Services that, at the time of trial, was still pending approval. At the time of trial, Villarreal had received an offer of employment with an insurance company pending the approval of her application for work authorization.

The Court concluded that the factors weighed in favor of concluding that B.N. was well-settled as defined by Article 12 of the Convention and that Villarreal had shown substantial evidence of B.N.'s significant connections to the United States. Specifically, the Court found that while B.N. was not of an age where his objection to removal was on its own, insufficient to prevent removal, he was of an age and maturity level where he was able to explain his choices and requests and able to make connections to the community in which he lived that the age factor weighed in favor of finding him well-settled. Next, the Court found that while Villarreal and her children have had multiple residences since coming to the United States, the fact that they lived at their current residence for almost two years constituted a stable environment such that this factor weighed in favor of finding B.N. well-settled. Third, B.N. attended the same school and actively participated in the same church for almost two years, both of which weighed in favor of finding him well-settled. Although B.N., and Villarreal, described their relationship with their relatives in the area as somewhat tumultuous, B.N. had a significant amount of friends surrounding his residence as well as friends at his school and church. The fact that B.N. had been able to adapt to the new environment and make friends easily weighed in favor of finding him well-settled. Next, B.N.'s participation in swimming and very active participation in his church's youth group weighed in favor of finding him well settled. Finally, Villarreal's employment and financial stability had been somewhat of an issue, although the children had never gone without basic necessities and she had never received public assistance. Dr. Solchany reported that at the time she interviewed B.N., Villarreal had recently started a job working in a chiropractic clinic. Based on Villarreal's history of employment and financial situation, the Court concluded that this factor was neutral. In addition, the Court concluded that Villarreal's immigration status was not determinative or even relevant, as such status is only relevant if an "immediate, concrete threat of deportation" exists, which has not been shown. In re B. DEL C.S.B., 559 F.3d at 1009. Therefore, the Court concluded that the factors laid out by the Ninth Circuit, when taken as a whole, weighed in favor of concluding that B.N. was well-settled in his new environment.

B.N.'s perspective on his relationships with his parents also weighed in favor of concluding that he is well-settled in the United States as he considered his living situation with his mother his home and he viewed Mexico as a place he would go to visit his father.

The Court concluded that B.N. was "well-settled" in the United States as defined by Article 12 of the Convention. Etienne's petition, with respect to B.N., was denied based on his being "well-settled" in the United States.