Redmond v Redmond, --- F.3d ----, 2013 WL 3821595 (C.A.7 (Ill.)) [Ireland] [Habitual Residence]

In Redmond v Redmond, --- F.3d ----, 2013 WL 3821595 (C.A.7 (Ill.)) Mary Redmond left her home in Illinois at age 19 to attend college in Ireland, where she met Derek Redmond. For most of the next 11 years, the couple lived together in Ireland, though they never married. In 2006 Mary became pregnant. The couple agreed that the child would be born in America but raised in Ireland. They traveled together to the United States, and on March 28, 2007, their son, JMR, was born in Illinois. Derek was present at the birth and signed a voluntary acknowledgment of paternity; he is also listed as JMR's father on the child's birth certificate. In accordance with their original plan, Mary and Derek returned to Ireland with JMR on April 8, 2007, when the baby was 11 days old. The couple remained together for several months, but during this time, their relationship fell apart. In November 2007 Mary decided to end the relationship, move back to Illinois, and raise JMR there. On November 10, 2007, she and JMR left Ireland and flew to Illinois. In February 2008 Mary returned to Ireland with JMR for a visit. On March 25, 2008, while Mary and JMR were still in Ireland, Derek filed a petition for guardianship and custody rights in an Irish court and obtained an ex parte order preventing them from leaving the country. On April 22, 2008, an Irish court vacated the ex parte order, and Mary left Ireland with JMR the next day. During the course of the next three years, Mary returned to Ireland periodically to participate in hearings on Derek's guardianship and custody petition. Mary filed her own application in the Irish court to relocate with JMR to the United States permanently. Throughout this time JMR lived with Mary in Orland Park, Illinois. The final hearing was heLD on on February 9, 2011. By the time of that hearing, JMR had spent well over three of his four years in Illinois. He attended daycare and preschool in Orland Park from the age of two and a half, and was enrolled in kindergarten at St. Michael's School in Orland Park for September 2012. He saw a pediatrician and a dentist in Illinois, where all of his medical records were kept. He played on a children's baseball team with the local baseball association, had playdates with friends, and went to church with his mother and played in the neighborhood park on Sundays. He had a large extended family in Illinois and had frequent contact with his grandparents, aunts, uncles, and cousins. During this time, he periodically traveled to Ireland with Mary, mostly for court proceedings. Between November 2007 and February 2011, he spent about ten and a half separated weeks in Ireland. On February 10, 2011, the day after the final hearing, the Irish court entered an order denying Mary's application to relocate and granting Derek's request for guardianship and joint custody over JMR. The court ordered that JMR live in Ireland,, and attend the Ballymurphy National School. Derek and Mary were ordered to share custody on an equal basis. Mary and JMR were in Ireland for the final hearing; the court allowed her to return to Illinois with JMR to wind up her affairs. As a condition of her return to Illinois, Mary promised under oath not to apply to any court outside of Ireland regarding JMR's custody, not to remove JMR to a third country, and to quit her job and move with JMR to Ireland on or before March 30, 2011. The Irish court incorporated these undertakings into its order. Derek promised not to remove JMR to a third country, to pay $200 per month in child support, and to pay for Mary's plane ticket to return to Ireland. Mary admitted that she never intended to keep these promises. On February 15, 2011, she returned to Illinois with JMR, and on March 23 she petitioned for sole custody in Cook County Circuit Court. The March 30 deadline came and went. Mary did not move to Ireland with JMR as ordered. On May 10, 2011, the Irish court issued a further order compelling Mary to bring JMR to Ireland on or before June 30. This order stated that retaining the child in the United States violated the Hague Convention. Mary did not comply. Back in Cook County Circuit Court, Derek moved through counsel to dismiss Mary's sole-custody petition for lack of jurisdiction under the Uniform Child- Custody Jurisdiction and Enforcement Act. Under the Act Illinois courts generally lack jurisdiction over a custody petition when a valid custody order of another state or foreign court already governs the disposition of the child. After conferring with the Irish court, the Illinois state-court judge concluded as follows: (1) Derek had timely invoked the jurisdiction of the Irish court; (2) the Irish guardianship and custody decree was issued in substantial conformity with the requirements of the Act; and (3) the decree did not violate fundamental principles of human rights. On July 27, 2011, the Illinois court deferred to the prior claim of jurisdiction by the Irish court, and declined to exercise jurisdiction over Mary's petition. At this point Derek might have sought registration and enforcement of the Irish decree in Cook County Circuit Court, along with an order granting him immediate physical custody of JMR, as provided under the Uniform Act. Instead, on December 1, 2011-five months after the state judge dismissed Mary's sole-custody petition-Derek filed a Hague Convention petition in the United States District Court for the Northern District of Illinois seeking an order that JMR be returned to Ireland. Derek contended that by disobeying the Irish custody order, Mary had wrongfully retained JMR in the United States. The district court held an evidentiary hearing, and , granted Derek's petition. The judge concluded that as of March 30, 2011, when Mary defied the Irish court's order and the alleged wrongful retention occurred, JMR's habitual residence was Ireland, not the United States. The court focused on the parents' initial agreement to raise their son in Ireland, their last shared intent about where he would live, nd gave this evidence decisive effect. The judge ordered JMR returned to Ireland by July 9, 2012, accompanied by Mary. JMR was returned to Ireland, where he remained. The Seventh Circuit initially stated that it did not know why the court thought it had authority to order Mary, a free adult citizen, to go to Ireland. Neither the Hague Convention nor its implementing legislation, the International Child Abduction Remedies Act, authorizes the court to order the relocation of parents. In compliance with the district court's order The Seventh Circuit reversed. It held that the district court erred in treating the parents' last shared intent as a kind of fixed doctrinal test for determining a child's habitual residence. It held that the determination of habitual residence under the Hague Convention is a practical, flexible, factual inquiry that accounts for all available relevant evidence and considers the individual circumstances of each case. Here, the parents' shared intent when JMR was born shed little light on the question of his habitual residence in 2011. When Mary moved with the baby to Illinois in November 2007, she had the exclusive right to decide where he would live; because she was JMR's sole legal custodian, his removal from Ireland was not wrongful under the Convention. By March 2011, the time of the alleged wrongful "retention," JMR's life was too firmly rooted in Illinois to consider Ireland his home. Because JMR was habitually resident in the United States, the district court was wrong to order him "returned" to Ireland The Court noted at the outset that this was not a case of wrongful removal. Derek did not argue, nor could he, that Mary's move with JMR from Ireland to Illinois in November 2007 was wrongful under the Hague Convention. Under Irish law only the mother is recognized as the guardian of an illegitimate child; Ireland does not presumptively confer parental rights on unmarried fathers. As of November 2007, when Mary moved with JMR to the United States, Derek had no custody rights to assert against Mary's removal of their son from Ireland; under Irish law he was not recognized as JMR's legal guardian and had no right to direct the child's upbringing or decide where he would live.Instead, Derek contended that Mary wrongfully "retained" JMR in the United States on or after March 30, 2011, when she failed to return with him to Ireland in violation of the Irish court's guardianship and custody order. It appeared to the Court that Derek was using the Hague Convention as a substitute for an action in Illinois state court under the Uniform Act to enforce his newly recognized custody rights pursuant to the Irish court's order. Although Derek had won a legal victory in Ireland and his custody rights were now recognized in the courts of his country, it was hard to see how Mary's refusal to comply with the Irish court's order was, without more, a "retention" of JMR in the sense meant by the Convention. Derek's petitionpresented a threshold question: Is a change in one parent's custody rights enough to make the other's parent's continued physical custody of the child a putative wrongful "retention" under the Convention? Stated differently, does the parent with physical custody of a child commit a wrongful retention-colloquially, an "abduction"-by reneging on a promise, made under oath, to obey a newly entered custody order in favor of the other parent? The Court observed that Hague Convention targets international child abduction; it is not a jurisdiction-allocation or full-faith-and-credit treaty. It does not provide a remedy for the recognition and enforcement of foreign custody orders or procedures for vindicating a wronged parent's custody rights more generally. Those rules are provided in the Uniform Child Custody Jurisdiction and Enforcement Act. Rather than applying to the Cook County Circuit Court for enforcement of the Irish custody order under the Uniform Act, Derek sought to enforce his newly declared custody rights via a Hague petition by treating Mary's refusal to comply with the Irish court's order as a wrongful "retention" of their son in the United States. But the concepts of removal and retention can be understood only by reference to the child's habitual residence; a legal adjustment of a parent's custody rights does not by itself give rise to an abduction claim. "The determination of a child's habitual residence is significant because wrongful removal can occur only if the child has been taken away from his or her habitual residence. When a child is taken from its country of habitual residence, the left-behind parent may invoke the Convention's return remedy to restore the factual status quo-in ordinary language, to bring an abducted child home. But a parent may not use the Convention to alter the child's residential status based on a legal development in the parent's favor. The availability of the return remedy depends on the child's habitual residence because the "retention of a child in the state of its habitual residence is not wrongful under the Convention." A petitioner cannot invoke the protection of the Hague Convention unless the child to whom the petition relates is "habitually resident" in a State signatory to the Convention and has been removed to or retained in a different State. The petitioner must then show that the removal or retention is "wrongful." Accordingly, every Hague Convention petition turns on the threshold determination of the child's habitual residence; all other Hague determinations flow from that decision. If a child has not been moved from its habitual residence, there is no "left-behind" parent with grounds to complain about the move, and it makes no sense to speak in terms of ordering the child's "return." In that situation, relief under the Hague Convention must be denied without further inquiry into whether the petitioning parent's custody rights have been breached or whether the petitioning parent was actually exercising those rights at the relevant time. The Court held that determination of "habitual residence" is to be made on the basis of the everyday meaning of these words rather than the legal meaning that a particular jurisdiction attaches to them, as otherwise forum shopping would come in by the back door-each contestant would seek a forum that would define "habitual residence" in the contestant's favor. It interpreted the phrase "habitual residence" in accordance with the ordinary and natural meaning of the two words it contains, as a question of fact to be decided by reference to all the circumstances of any particular case. Determining a child's habitual residence thus requires an assessment of the observable facts on the ground, not an inquiry into the child's or parent's legal status in a particular place. Only after habitual residence is determined does an examination of custody rights come into play; treating the question of habitual residence as a legal inquiry would misconstrue the Convention as a custody-rights enforcement treaty. Under this commonsense and fact-based approach, the court found that as of March 30, 2011, when the alleged wrongful retention occurred, JMR habitually resided in Illinois and had for some time. He was born in Illinois, and except for seven and a half months of his infancy, he lived continuously in Illinois withonly periodic, brief visits to Ireland. By March 30, 2011, he had spent more than three of his four years in Illinois-approximately 80% of his young life. It was true that the length of time a child has spent in one place is not dispositive and must be considered with care. Mary's removal of JMR from Ireland was not wrongful, so giving weight to the substantial duration of the child's residence in the United States did not undermine the purposes of the Convention. The Seventh Circuit held that the district court's reliance on the parents' last shared intent was misplaced. Many Hague Convention cases emphasize the last shared intent of the parents as an important factor in the analysis of a child's habitual residence. But the habitual-residence inquiry remains a flexible one, sensitive to the unique circumstances of the case and informed by common sense. The parents' last shared intent is one fact among others, and may be a very important fact in some cases. But it is not a uniformly applicable "test" for determining habitual residence, as the district court seemed to think. In substance, all circuits consider both parental intent and the child's acclimatization, differing only in their emphasis. The crux of disagreement is how much weight to give one or the other, especially where the evidence conflicts. Nothing in its caselaw justified the overwhelming weight the district court gave the parents' last shared intent at the expense of the undisputed evidence of JMR's acclimatization. In the final analysis, the court's focus must remain on the child's habitual residence. Shared parental intent may be a proper starting point in many cases because parental intent acts as a surrogate in cases involving very young children for whom the concept of acclimatization has little meaning. Acclimatization is an ineffectual standard by which to judge habitual residence in such circumstances because the child lacks the ability to truly acclimatize to a new environment. On the other hand, an emphasis on shared parental intent does not work when the parents are estranged essentially from the outset. The concept of "last shared parental intent" is not a fixed doctrinal requirement, and it is unwise to set in stone the relative weights of parental intent and the child's acclimatization. The habitual-residence inquiry remains essentially fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions. Here, Mary had sole custody under Irish law from the time of JMR's birth until March 2011; as such, she had the exclusive right to fix the place of JMR's residence. Because Mary had the lawful authority to relocate without Derek's consent, JMR's residence in Illinois was neither "temporary" nor wrongful as a matter of law under the Hague Convention. Moreover, the actual facts of JMR's life in Orland Park and his acclimatization there for almost all of his life sufficed to establish the United States as JMR's habitual residence notwithstanding Derek's objections. Mary and Derek were estranged essentially from the outset. Under the circumstances here, JMR's acclimatization in Illinois overwhelmingly outweighed the last shared parental intent. Immediately prior to March 30, 2011, when the alleged wrongful retention occurred, JMR's life was in Illinois, and legitimately so. Based on a commonsense view of all the evidence, the court could say with confidence that the child's relative attachments to the two countries had changed to the point where requiring return to Ireland would now be tantamount to taking the child out of the family and social environment in which its life has developed. Accordingly, immediately prior to March 30, 2011, JMR was habitually resident in Illinois, so sending him to Ireland was not sending him home. Because JMR was habitually resident in Illinois, Mary did not wrongfully retain him in the United States.. In a footnote the court indicated that it thought that the court had the equitable authority to issue an order requiring JMR's return to the United States. That was the position of the U.S. Department of State, the designated Central Authority for assisting the implementation of the Hague Convention in the United States. On its behalf the United States filed an amicus curiae brief in Chafin explaining its position that because the court has the inherent equitable power to order the child's re-return, an appeal of a return order under the Hague Convention does not become moot by the return of the child.

Broca v Giron,--- Fed.Appx. ----, 2013 WL 3745985 (C.A.2 (N.Y.)) [Mexico] [Well-Settled]

In Broca v Giron,--- Fed.Appx. ----, 2013 WL 3745985 (C.A.2 (N.Y.)) Not for Publication, Jose Leonides Varillas Broca appealed from the judgment of the United States District Court, denying Varillas's petition for the repatriation of his three children under the Hague Convention. Varillas appealed the determination that his youngest child, JV, was well settled in the United States, such that JV's return to Mexico was not required under Article 12 of the Hague Convention. Varillas's oldest child turned sixteen during the pendency of the proceedings, thus the Hague Convention no longer applied to him. As to the middle child, the district court denied the request for repatriation, concluding that she was well settled, and that she was sufficiently mature that her objection to returning to Mexico should be taken into account. Varillas did not appeal this determination. Varillas primarily argued that the district court improperly considered the importance of keeping JV together with his siblings in deciding that JV was well settled." The Second Circuit reviewed the district court's interpretation of the Convention de novo and its factual determinations for clear error." Souratgar v. Fair, --- F.3d ----, 2013 WL 2631375, at *3 (2d Cir. June 13, 2013). It pointed out that if Hague Convention proceedings are initiated within a year of a child's wrongful removal, then Article 12 requires the court to order repatriation of that child, unless an exception applies. Hague Convention, art. 12. If the proceedings are commenced after the one-year period, the court "shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment." Respondent bears the burden of proving this exception by a preponderance of the evidence. 42 U.S.C. § 11603(e)(2)(B). It noted that it has discussed the "[f]actors that courts consider" in determining whether a child is well settled, which "should generally include": (1) the age of the child; (2) the stability of the child's residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent's employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent. Lozano v. Alvarez, 697 F.3d 41, 57 (2d Cir.2012), cert. granted in part, No.12-820, 2013 WL 56044 (U.S. June 24, 2013). While useful, these factors are neither mandatory nor exclusive. "[C]ourts are permitted to consider any relevant factor surrounding the child's living arrangement-without limitation." The test is a "fact-specific multi-factor" test, in which no factor, including immigration status, is dispositive. Here, the district court considered the above factors in determining that JV was well settled. Under Lozano, the court rightly considered JV's relationship with his mother and siblings in reaching its conclusion. Even though the court emphasized this factor in its final balancing analysis, it was one of many considerations. Reviewing the record as a whole and focusing on the Lozano factors, the Second Circuit agreed that JV was well settled in the United States. JV's consistent school attendance, involvement in church, and strong relationships with friends and relatives in the area, in particular his mother and sister, all supported a conclusion that he was well settled. His immigration status, lack of residential stability, and poor performance in school, as well as his mother's lack of financial stability, counselled against a conclusion that he was well settled. Nonetheless, in the overall balancing, it concluded that the exception applied.

Jakubik v Schmirer, 2013 WL 3465857 (S.D.N.Y.) [Hungary] [Federal & State Judicial Remedies] [Intervention By Child Subject of Proceeding]

In Jakubik v Schmirer, 2013 WL 3465857 (S.D.N.Y.) Gyula Janos Jacubik, petitioned for the return to Hungary of his fifteen year old daughter D.T.J.. DTJ, moved to intervene through her next friend, Fr .Christian Gobel. Petitioner opposed the motion. Respondent did not take a position on the motion. D.T.J.'s motion to intervene was granted. The Clerk of Court is directed to add D.T.J., through her next friend Fr. Christian Gobel, as a party to the case, to be represented by an attorney appointed by the court. The Court observed that Federal Rule of Civil Procedure 24(a)(2) provides that "[o]n timely motion, the court must permit anyone to intervene who ... claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest."T he Second Circuit has set out a four-part test, each part of which is required for intervention as of right: In order to be entitled to intervene as of right under Rule 24(a)(2), "an intervenor must show that: (1) the application is timely; (2) the applicant claims an interest relating to the property or transaction which is the subject matter of the action; (3) the protection of the interest may as a practical matter be impaired by the disposition of the action; and (4) the interest is not adequately protected by an existing party. St. John's Univ., N.Y. v. Bolton, 450 F. App'x 81, 83 (2d Cir.2011). The Court found that D.T.J. had met each of these requirements. Her application to intervene was timely. It came just three business days after counsel was appointed to represent her and one day after counsel's initial conversation with D.T.J. She had an obvious interest in this litigation: It would determine whether D.T.J., age 15, would be repatriated to Hungary for custody proceedings. Her interest might be impaired by the outcome of this action: She claimed an interest in remaining in the United States, and a ruling (in either direction) would profoundly affect her. Finally, D.T.J.'s interests were not identical to those of her mother, Respondent Eva Schmirer and the Court did not believe they were necessarily adequately represented by Respondent. D.T.J.'s counsel pointed out, "[t]he child has a potential right to immigration remedies which are foreclosed to Respondent, and which have not been explored by Respondent. D.T.J.'s counsel represented that she was "actively seeking" retention of an immigration expert. As to this issue, it was possible that D.T.J.'s and Respondent's interests diverged. The Court concluded that D.T.J. had met all four prongs required in a motion to intervene as of right. The Court held that D.T.J. had even more clearly met the standard required for a permissive intervention. See Fed.R.Civ.P. 24(b) (court may permit intervention by anyone who "has a claim or defense that shares with the main action a common question of law or fact," although "court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights."). A district court has broad discretion under Rule 24(b). "The requirement of the Rule is satisfied if the applicant shows that representation of his interest 'may be' inadequate; and the burden of making that showing should be treated as minimal." Trbovich v. United Mine Workers of America, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972) . The Court held that the interests of D.T.J. in the litigation sufficiently outweighed any potential "costs to allowing the Child to become a party," Moreover, the Court saw no undue delay caused by the child's intervention.