Bernal v. Gonzalez,--- F.Supp.2d ----, 2012 WL 7113186 (W.D.Tex.) [Mexico] [Habitual Residence][Rights of Custody] [Grave Risk of Harm] [Article 16 & 17] [Petition Granted]

In Bernal v. Gonzalez,--- F.Supp.2d ----, 2012 WL 7113186 (W.D.Tex.) Petitioner Amelia Aguilar Bernal filed a Verified Petition for Return of Children. Petitioner Bernal and Respondent Gonzalez were citizens of the Republic of Mexico; were married in Elk Point, South Dakota, on January 31, 2003; and were the parents of four children: A .B. (male), C.G.B., C.D.B., and A.B. (female). The children were all born in the United States of America and were United States citizens. A.B. (male) was born in 1996 in California and was currently sixteen years old. C.G.B. and C.D.B. were ten year old twins, born in Iowa in 2002. A.B. (female) was five years old, also born in Iowa, in 2007. In 2008, Petitioner and Respondent moved to Guasaves, Sinaloa, Mexico, from the United States, with their four children. There, Respondent purchased land and built a house. A.B. (male), C .G.B., and C.D.B. attended school in Guasaves, Sinaloa, Mexico. A.B. (female) was at home with Petitioner or family members. Petitioner took care of the children while Respondent worked in the United States. Petitioner and Respondent had marital problems and separated in 2010.

On December 16, 2010, Petitioner and Respondent entered into an agreement regarding the care of their four children at the Desarrollo Integral de La Familia (1) Respondent would pay $1500.00 Mexican pesos per week for support of A.B. (male), C.G.B., C.D.B., and A.B. (female); and (2) Respondent would have weekend visitation rights. The agreement restricted Respondent's visitation to locations within Sinaloa, Mexico. Respondent and Petitioner signed the agreement and each placed inked thumb prints on the document. After signing the agreement, Respondent returned to the United States to work. At some point in March of 2011, Respondent returned to Guasaves, Sinaloa, Mexico, with the intent to retrieve his four children and move them to the United States. On or about March 25, 2011, Respondent picked up A.B. (male), C.G.B., C.D.B., and A.B. (female) from Petitioner for a weekend of visitation as per their written agreement. On or about March 25, 2011, Respondent took A.B. (male), C.G .B., C.D.B., and A.B. (female) to the United States. Petitioner never consented to the initial removal of her four children to the United States and never subsequently acquiesced to the removal of the children. Petitioner diligently pursued the location and return of her children. On or about March 28, 2011, Petitioner reported Respondent's taking of the children to the Ministerio Publico in Guasaves, Sinaloa, Mexico.

On July 12, 2011, Petitioner signed an Application for Return of Children. Upon leaving Mexico, Petitioner first took A.B. (male), C.G.B., C.D.B., and A.B. (female) for a brief stay in San Diego, California. From California, they moved to Nebraska. From information provided to her by her aunt, Petitioner learned A.B. (male), C.G.B., C.D.B., and A.B. (female) were in Nebraska soon after their arrival there.. Petitioner requested that Respondent return the children to Mexico and he refused. Respondent moved A.B. (male), C.G.B., C.D.B., and A.B. (female) from Nebraska to Crane, Texas. Respondent filed for divorce in a Texas court on May 2, 2012. A default judgment was entered by the Texas court on July 26, 2012. Respondent was awarded sole managing custody.

Petitioner filed suit in the Western District of Texas, Midland/Odessa Division, for Return of Children on August 27, 2012. The court found that the Republic of Mexico was the country of habitual residence for A.B. (male), C.G.B., C.D.B., and A.B. (female) prior to their removal on or about March 25, 2011. Petitioner proved by a preponderance of the evidence that C.G.B., C.D.B., and A .B. (female) were wrongfully removed from their country of habitual residence. Petitioner had rights of custody under the laws of the State in which the children were habitual residents immediately before removal and was exercising those rights before removal. Respondent's removal of C.G.B., C.D.B., and A.B. (female) breached Petitioner's rights of custody.

The court observed that the the Fifth Circuit adopted its framework for making country of habitual residence determinations. Larbie v. Larbie, 690 F.3d 295, 310 (5th Cir.2012). The inquiry balances the interests of the child with the intentions of the parents. Larbie, 690 F.3d at 310. A court's "inquiry into a child's habitual residence is not formulaic; rather it is a fact-intensive determination that necessarily varies with the circumstances of each case." When determining a child's country of habitual residence, analysis focuses on the "parents' shared intent or settled purpose regarding their child's residence." Here the facts indicated that both parents shared the intent that Guasaves, Sinaloa, Mexico, was their children's residence prior to removal. Petitioner clearly established that in 2008, Petitioner and Respondent, together, moved their children, A.B. (male), C.G.B., C.D .B., and A.B. (female), from the United States to Sinaloa, Mexico. Once there, Respondent purchased land and built a home. Further, the children were enrolled in and attended the local Mexican public schools. Moreover, Respondent left the children in Mexico with Petitioner for months at a time while he worked in the United States. Habitual residence is determined by looking at the parents' intent or settled purpose prior to removal. See Larbie, 690 F.3d at 310. The parents' mutual decision to move their children to Mexico from the United States and establish roots in Guasaves, Sinaloa, Mexico, provided strong evidence of shared parental intent to make Mexico their children's country of habitual residence. Further evidence of shared parental intent and settled purpose was provided by the parents' signed written agreement, outlining Respondent's voluntary agreement to a visitation arrangement in Mexico.

Rights of custody was to be determined by the application of the laws of the Republic of Mexico. Petitioner Bernal asserted that the parties voluntarily executed a legally enforceable custody agreement under Article 17 of the Sinaloa Civil Code. To assist in proving that the document was a legally enforceable custody agreement under the laws of the Republic of Mexico, Petitioner submitted into evidence an affidavit by Mexican attorney Mariano Nunez Arreloa which explained relevant Mexican laws. When interpreting issues of foreign law, Federal Rule of Civil Procedure 44.1 allows a liberal approach to evidentiary rules, thus making Mariano Nunez Arreola's affidavit acceptable proof of Mexican laws. The State of Sinaloa, Mexico, in accordance with the Sinaloa Civil Code adhered to the legal doctrine of patria potestad. See Sina. Civ.Code, tit. 8, ch. 1, art. 412 et seq.; "Pursuant to that doctrine both parents have joint custody

rights." The Court found that the agreement between Petitioner and Respondent was valid under the laws of the State of Sinaloa, Mexico. Furthermore, the agreement gave Petitioner specific rights of custody as defined by the Convention. Petitioner proved by a preponderance of the evidence that Respondent took C.G.B., C.D.B., and A.B. (female) in breach of Petitioner's rights of custody under the laws of the children's habitual residence-the Republic of Mexico ,and that such rights were exercised at the time of removal.



In support of his "grave risk" affirmative defense, Respondent argued that the narrow exception to return of the children to Mexico applies because the ongoing cartel violence in Guasaves, Sinaloa, Mexico, posed a grave risk; and Petitioner was less fit than Respondent to care for their children. The court found that Respondent failed to establish by clear and convincing evidence that there was a grave risk that return of C.G.B., C.D.B., and A.B. (female) would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation. Respondent argued that the following provided evidence that return would expose the children to physical or psychological harm or place the children in an intolerable situation: (1) the ongoing cartel violence in Guasaves, Sinaloa, Mexico; Respondent testified to observing what appeared to be dead bodies in the river near their home in Guasaves, Sinaloa, Mexico. (2) an occurrence in which A.B. (male) was a passenger in a vehicle stopped at gunpoint by alleged cartel members; A.B. (male) testified that he was in a vehicle with his uncle, grandmother, and cousin. The vehicle was stopped by armed men and a gun was pointed at his uncle. A.B. (male) further testified that the armed men were not police and were looking for people in a similar vehicle. The armed men allowed them to leave.

The Court held that ongoing violence in the Republic of Mexico was a serious concern; however, the general cartel violence in Mexico, and specifically the testimonial evidence, did not constitute the clear and convincing evidence necessary to trigger the grave risk of harm exception. Moreover, courts have refused to extend the grave risk of harm exception to cases in which return of a child was to a country facing similarly violent sociopolitical disruptions as those currently confronting the citizens of the Republic of Mexico. Respondent demonstrated that the ongoing violence in Mexico posed serious risk: however, Respondent failed to show that the risk to the children was grave. Respondent failed to show that the conditions in Guasaves, Sinaloa, Mexico, equated to a "zone of war, famine, or disease." Respondent's grave risk of harm defense based on the cartel violence in Mexico was denied.

Respondent presented evidence that Petitioner possibly over-consumed alcohol; possibly entertained late night visits by men seeking money; failed to provide a clean house for the children; did not have employment; failed to provide the children with properly fitting clothing and shoes with money supplied by Respondent; and failed to rid the children of lice infestation. At trial, much was made over an incident in which A.B. (female) was stung by a scorpion at approximately 10:00 p.m., while staying at her grandparents' home. The child was rushed to the local hospital for treatment. Petitioner could not be immediately located, however, Petitioner testified that once she learned of the scorpion incident she went to the hospital and found that A.B. (female) had already been released. Although the evidence presented did not paint Petitioner in a pleasant light, Respondent failed to present any evidence of serious neglect or abuse to satisfy the grave risk of harm exception. The grave risk of harm defense was not intended to be used by a respondent as a vehicle to litigate the child's best interests.

When a petition for return of child is commenced in a court after one year from the date of removal, the respondent can assert an affirmative defense and prevent removal back to the country of habitual residence if respondent proves by a preponderance of the evidence that the child is now settled into the new environment. 42 U.S.C. § 11603(e)(2)(B); Convention, art. 12. Petitioner filed suit five months after the deadline. However, Respondent never raised the settled into new environment affirmative defense. Convention, art. 12. It was not raised in his answer, supplemental briefing, post-trial briefing, or at trial. Petitioner urged the Court to treat the Article 12 affirmative defense as waived because Respondent never asserted the defense. See Fed.R.Civ .P. 8(c)(1) (requiring parties to plead affirmative defenses)." Nevertheless the court held that Petitioner was never per se ambushed by an Article 12 settled into new environment defense because Respondent never raised the defense at any time over the course of the proceedings. Petitioner was well aware of the potential for an Article 12 affirmative defense based on the delayed filing of Petitioner's Verified Petition for Return of Children. However, the Court was mindful that by exercising its "contingent discretionary power" and examining Respondent's unpleaded Article 12 affirmative defense, Petitioner might be prejudiced by her inability to respond and assert a potentially viable equitable tolling defense, available to petitioners that fail to meet the one-year filing deadline under the Convention.

Through the exercise of the Court's "contingent discretionary power" to examine Respondent's settled into new environment affirmative defense under Article 12 of the Convention, it held that substantial evidence had not been presented to the Court to prove by a preponderance of evidence that C.G.B., C .D.B., and A.B. (female) were now settled into Crane, Texas; thus, there was no exception to return under the Convention. See 42 U.S.C. s 11603(e)(2)(B).

Respondent asserted that a default judgment divorce, entered by a Texas court on July 26, 2012, in which the Court awarded Respondent sole managing custody over the children was a defense to the return of C.G.B., C.D.B., and A.B. (female) to their country of habitual residence-the Republic of Mexico. The court pointed out that the Convention provides that state court actions "shall not decide ... the merits of rights of custody until it has been determined that the child is not to be returned" to the country of habitual residence in cases of wrongful removal under the Convention. Convention. art. 16. Furthermore, ICARA expressly prohibits a court from deciding the underlying merits of a custody dispute. 42 U.S.C. § 11601(b)(4). Under Article 17, that State cannot refuse to return a child solely on the basis of a court order awarding custody to the alleged wrongdoer made by one of its own courts or by the courts of another country. Significantly, the Court's determination that C.G.B., C.D.B., and A.B. (female) were wrongfully removed from their country of habitual residence under the Convention preempted the default judgment in state court that awarded sole managing custody. Respondent's award of sole managing custody under the laws of Texas was no defense to the return C.G.B., C.D.B., and A.B. (female) to the Republic of Mexico. The Texas court did not have the authority to decide the custody of the children and assign Respondent sole managing custody while the suit for return of children under the Convention was pending. Convention, art. 16.

Aly v. Aden, 2013 WL 593420 (D. Mn) [Canada] [Habitual Residence] [Grave Risk of Harm] [Attorneys Fees & Costs Clearly Inappropriate] [Petition Granted]

[Canada] [Habitual Residence] [Grave Risk of Harm] [Attorneys Fees & Costs Clearly Inappropriate] [Petition Granted]


In Aly v. Aden, 2013 WL 593420 (D. Mn) petitioner Mohamed Aly Saad Aly filed a petition against respondent Amal Aden alleging that Aden wrongfully removed their child from Canada to the United States. Petitioner Aly was born and raised in Cairo, Egypt. Aly had been a permanent resident of Ontario, Canada since 2007, where he was pursuing a PhD in engineering at the University of Waterloo. Aly applied for Canadian citizenship, and his application was being processed. Aly supported himself financially with a stipend he received from serving as a research/teaching assistant at the University of Waterloo, a temporary position that would end when Aly completed his PhD. Respondent Aden was a United States citizen who was born in Somalia and immigrated to Minnesota in 1999. Aden received a Bachelor's Degree in nursing in 2007 and worked part-time at the Hennepin County Medical Center.

Aly and Aden were religiously married in an Islamic ceremony in April 2010. On June 7, 2011, the couple was civilly married in Canada. In May 2010, Aden moved from Minnesota to Ontario and began living with Aly in his apartment. Aden purchased a townhome in Minnesota in 2007, which she continued to rent to a tenant after moving to Canada. Her immigration status in Canada was one of a visiting American. Upon moving to Canada, Aden retained her Minnesota driver's license, and when it expired obtained a New York driver's license. In November 2010, Aly added Aden to the lease agreement for his apartment. In November 2010, Aden became pregnant with P.H.A.S.A. In December 2010, Aden began working as a nurse at Millard Fillmore Gates Hospital in Buffalo, New York. In January 2011, Aden alleged that she told Aly she wanted to separate. On February 27, 2011, Aly and Aden were involved in a violent incident. An argument began when Aly became upset that Aden did not make him lunch, and instead suggested that he prepare his own lunch. Aden alleged that the argument escalated verbally, and she began to pack her bags, planning to end the relationship with Aly and move out of the apartment. At this point, Aden alleged that Aly threw her onto the bed, punched her in the head several times, and lay on top of her. When Aden got off the bed, she alleged that Aly grabbed her by the shoulders to prevent her leaving the room and kneed her forcibly in the stomach.. Aly testified that as the verbal argument over the preparation of lunch escalated, Aden threatened him with a kitchen knife and also threatened to kill herself or stab her belly. Aly further alleged that he, not Aden, sought refuge in the bathroom. The Court found neither Aly's nor Aden's version of the events of February 27, 2011 to be entirely credible.

Aden testified that in July 2011 she and Aly were involved in another physical altercation, which arose out of a woman claiming to have married Aly in March 2011 contacting Aden. Aden packed her belongings, intending to leave, and Aly allegedly hit her in the head several times. Aden also alleged that Aly deleted instant messages in which he admitted that he hit her in the head in July 2011. Aly and Aden's daughter, P.H.A.S.A., was born on August 27, 2011, in Canada. Because Aden did not have health insurance in Canada, she was ultimately billed $13,000 for her delivery at the Canadian hospital. P.H.A.S.A. was a Canadian and an American citizen. And also had a United States passport and social security card. Aden returned to her nursing job at Millard in October 2011 and began working weekends. On weekends Aly would care for P.H.A.S.A. Aly and P.H .A.S.A. would accompany Aden to the Canadian border near Buffalo and stay at a bed and breakfast while Aden worked. Aden alleged that she "fear[ed] for [P.H.A.S.A.]'s safety" and "was terrified" when she went back to work and left P.H.A.S.A. in Aly's custody. The Court found this testimony to be not credible. Aden consistently left P.H.A.S.A. in the sole care of Aly. These actions were inconsistent with Aden's alleged terror. This was particularly true in light of Aden's history of a willingness and ability to leave Aly. Aden made no allegations that P.H.A.S.A. was harmed physically, psychologically, or emotionally while in the sole custody of Aly. Prior to April 26, 2012, P.H.A.S.A. attended all of her medical appointments in Canada, including specialist appointments for a possible genetic disease. In February 2012, Aden entered into another rental agreement with the tenant for her Minnesota townhome. The agreement granted the tenant a lease through April 30, 2013.



On April 25, 2012, Aly and Aden had an argument during which Aden told Aly she wanted to separate. Aden alleged that while she was holding P.H.A.S.A. Aly slapped Aden in the face. Aden alleged that this was the seventh time Aly had physically assaulted her. Aden testified that Aly then grabbed P.H.A.S.A. from Aden's arms and threw P.H.A.S.A. into the corner of the room .P.H.A.S.A. landed on the floor and began crying hysterically according to Aden's account of the evening. Aly denied all of the allegations of the April 25, 2011 event, and specifically denied that he threw P.H.A.S.A. across the room. The next day, April 26, 2011, Aden took P.H.A.S.A. to a doctor's appointment in Hamilton City, Ontario, that had previously been scheduled. Aden brought the bags she had packed the previous night. The Court again found neither party's testimony regarding the events of April 25 to be entirely credible. It found Aden's testimony credible to the extent that it believed a verbal argument erupted between the parties and that Aly did become physically violent toward Aden. The Court, however, found Aden's testimony that Aly grabbed P.H.A.S.A. from Aden's arms and threw her across the room to be not credible because Aden, a trained nurse, did not seek medical attention for her eight-month-old child after the child was allegedly thrown across the room. Additionally, the Court believed that if the allegations were true Aden would have mentioned the incident at P.H.A.S.A's doctor's appointment the next day, since Aden's conduct on February 27, 2011, showed that she was not afraid to report incidents of domestic abuse. Finally, the Court found the testimony not credible to the extent that an eight-month-old child grabbed forcibly from someone's arms and thrown across a room, landing on the floor, would likely have sustained some injuries visible to a doctor at an appointment that occurred the day after the incident.



After P.H.A.S.A.'s doctor's appointment, Aden drove with the child to Buffalo, New York. Aden withdrew her final paycheck from Millard and began driving to Minnesota. Aden and P.H.A.S.A. arrived in Minnesota on April 27, 2012. Aden sent Aly an instant message informing him that she and P.H.A.S.A. had arrived safely in Minnesota. Aden's townhome tenant made other living arrangements, and Aden and P.H.A.S.A. eventually moved into this home.

Aden alleged that Aly approved of the practice of female genital mutilation Aden also alleged that Aly asked Aden to take P.H.A.S.A. to Aden's mother, who lived in Kenya, to have the child undergo FGM. Aden testified that Aly then stated that if Aden's mother would not do the procedure, Aly would take P.H.A.S.A. to his mother in Egypt to have the procedure done. Aly denied that he approved of FGM or that he would subject P .H.A.S.A. to FGM and instead alleged that Aden's mother and Aden herself had been advocates of subjecting P.H.A.S.A. to the procedure.(Aden presented expert testimony from Elizabeth Boyle about the practice of FGM. Aly presented expert testimony from Mr. Abed Awad, an expert on Islamic law, about the practice of FGM. FGM is associated with physical and psychological harm. FGM can cause, among other things, hemorrhaging, infection, and complications with childbirth, as well as anxiety disorders, depression, and post-traumatic stress disorder. FGM is not a practice mandated by Islam. And the mainstream Islamic organizations' position is that the practice is unIslamic. FGM is not an accepted or prevalent practice in North America and is illegal in both Canada and the United States. Dr. Jeffrey Edelson holds a PhD in social work, and provided expert testimony regarding the likelihood of future domestic violence based on a perpetrator's history. He opined that "there is a grave risk of physical harm and psychological harm to the infant [P.H.A.S.A.] involved in this case ... [s]hould she be returned" to Canada.

The parties did not dispute that in April 2012 Aly was exercising a right of custody over P.H.A.S.A. Ontario law provides that "the father and the mother of a child are equally entitled to custody of the child." Children's Law Reform Act, R. S.O.1990, c. C.12, s. 20(1). The court pointed out 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." Feder v. Evans–Feder, 63 F.3d 217, 224 (3d Cir.1995). "[S]ettled purpose need not be to stay in a ... location forever, but the family must have a' sufficient degree of continuity to be properly described as settled. " Silverman, 338 F.3d at 898 (quoting Feder, 63 F.3d at 223).7 In determining whether a particular place satisfies the standard for habitual residence, "[t]he child's perspective should be paramount," and "[p]arental intent is not dispositive." Stern, 639 F.3d at 452. Finally, habitual residence is determined by examining "past experience, not future intentions." Nunez–Escudero v. Tice–Menley, 58 F.3d 374, 379 (8th Cir.1995). This case involved a different question than the typical Convention case. Rather than determining whether there was a change in habitual residence, the Court had to determine whether eight-month-old P.H.A.S.A. ever established a habitual residence in Canada before being removed to the United States. In cases where the parents lack a settled intent to reside together at the time of the child's birth, the infant may not acquire a habitual residence in the country in which she is born. However, "where a matrimonial home exists, i.e., where both parents share a settled intent to reside, determining the habitual residence of an infant presents no particular problem, it simply calls for application of the analysis under the Convention with which courts have become familiar." Under these circumstances, even very young infants can acquire a habitual residence. The Court found that P.H.A.S.A. was a habitual resident of Canada prior to her removal. Aly and Aden were married in Canada before P.H.A. S.A.'s birth. At the time of their daughter's birth Aly and Aden had lived together in a Canadian apartment for over fifteen months. Both Aly and Aden were obligated on the lease, which extended through May 31, 2012. P.H .A.S.A. was born in Canada, acquired Canadian citizenship, and lived in Canada for eight months before being removed to the United States. Prior to her removal, P.H.A.S.A. had never been to the United States. All of these facts indicated that Aly and Aden shared a settled intent to reside with P.H.A.S.A. in their matrimonial home in Canada.That Aden retained numerous ties with the United States did not alter the Court's conclusion that P.H.A.S.A. was a habitual resident of Canada. Although P .H.A.S.A. was only eight months old when she was removed from Canada, unlike cases involving very young infants, there was evidence suggesting some degree of acclimatization. In eight months, P.H.A.S .A. had never been outside of Canada. P.H.A.S.A. had begun to form important contacts in Canada. P.H.A.S.A. was a Canadian citizen and was the recipient of Canadian child benefits. Moreover, P.H.A.S.A. attended all of her doctor's appointments in Canada, including several visits to specialists related to a possible genetic disorder.



Aden argued that returning P.H.A.S.A. to Canada would put the child at a grave risk of physical and psychological harm because of Aly's history of abuse and desire to subject P.H.A.S.A. to FGM. "[S]erious abuse or neglect" can qualify as a grave risk of harm under Article 13(b)." Silverman v. Silverman, 338 F.3d 886, 900 (8th Cir.2003) (en banc) The grave risk inquiry is narrow in scope, and "there must be evidence of a grave risk of harm to [the] child, not solely to a parent or some other third party." Acosta v. Acosta, Civ. No. 12–342, 2012 WL 2178982, at *7 (D. Minn. June 14, 2012). "[B]ecause the Hague Convention provides only a provisional, short-term remedy in order to permit long-term custody proceedings to take place in the home jurisdiction, the grave-risk inquiry should be concerned only with the degree of harm that could occur in the immediate future." Gaudin v. Remis, 415 F.3d 1028, 1037 (9th Cir.2005).The petitioner cannot rely on generalized evidence but must produce "specific evidence of potential harm." Rydder, 49 F.3d at 373.

With respect to physical and psychological abuse, where the child herself has been subjected directly to serious physical and psychological abuse, the grave risk defense is typically met. See Blondin v. Dubois, 238 F.3d 153, 161–62 (2d Cir.2001) (explaining that where "the child faces a real risk of being hurt, physically or psychologically" the grave risk of harm exception is met).Typically, however, "general evidence concerning abuse of the mother is not sufficient to establish the Article 13(b) exception that return will expose the child to a grave risk of harm." . A petitioner must demonstrate a connection between the harm to her in returning to the home country and a risk to the child. See Abbott, 130 S.Ct. at 1997. The Court concluded that Aden has failed to demonstrate that P.H.A.S.A. would face a grave risk of harm if she was returned to Canada. The Court found Aden's allegations that P.H.A.S.A. would face a grave risk of physical or psychological harm at the hands of Aly were either not credible or fail to meet the standard of clear and convincing evidence required by the grave risk exception.

The Court fouond that Aly had not directly abused P.H.A.S.A. as it found Aden's testimony alleging that Aly threw P.H.A.S.A. across the room and kneed Aden in the stomach while she was pregnant to be insufficiently credible to satisfy the heightened standard for establishing the grave risk exception. It found that Aly physically abused Aden on at least four occasions—in the fall of 2010, on February 27, 2011, in July 2011, and on April 25, 2012. However, the Court found Aden's testimony regarding the severity of the February and April violent episodes to be exaggerated. The incidents in the fall of 2010 and July 2011 involved some pushing and slapping. These isolated instances of abuse aimed at the mother did not rise to the level of severity required to meet the grave risk exception, which focuses on a grave risk of harm to the child that would occur prior to the resolution of a custody dispute and must be established by clear and convincing evidence. Additionally, Aly's abuse was not characterized by prolonged violent outbursts. Aly's outbursts of rage were short-lived, and after becoming physically violent he would immediately become calm and resume normal life activities. Finally, and most importantly, the Court found that these incidents of violence had not directly impacted P.H.A.S.A. This violence was not perpetrated against P.H.A.S.A., and only one incident allegedly occurred in P.H.A.S.A.'s presence. Additionally, the Court found the allegations that Aly would subject P.H.A.S.A. to FGM to be too speculative to demonstrate a grave risk of physical and psychological harm by clear and convincing evidence. Although subjecting P.H.A.S.A. to FGM would clearly constitute a grave harm, the grave risk inquiry focuses on "immediate" risks. At most, the record contained allegations that Aly believed in the practice and has expressed a desire to subject his daughter to the procedure, potentially by taking her to Egypt. None of the female members of Aly's family had undergone the procedure, suggesting that immediate family pressure was not an issue. The record did not reflect that Aly would be able to obtain this procedure in the United State or Canada, which the Court found mitigated any immediate risk to P.H.A.S.A. Aly was not currently in possession of P .H.A.S.A.'s passport. Should Aly's alleged desire to subject P. H.A. S.A. to FGM manifest itself into actual plans to carry out the procedure, the Court believed that the Canadian court was equipped to prevent this occurrence. Further, the Court found that the generalized evidence presented by Aden about Aly's controlling behavior and disrespect toward women was insufficient to establish that P.H.A.S.A. would be subjected to a grave risk of psychological harm if she was returned to Canada for purposes of resolving Aly and Aden's custody dispute. Although Aly's apparent devaluation of women was troubling, the Court did not find that these views would subject P.H.A.S.A. to grave psychological harm in the period of time that custody proceedings are pending in Canada. Moreover, courts in the abducted-from country, Canada, were as ready and able as we are to protect children.

Aly requested that the Court award all legal costs, fees, and travel expenses incurred in securing the return of P.H.A.S.A pursuant to the Article 26 of the Convention, and pursuant to ICARA, which provides that any court ordering the return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay necessary expenses and costs unless the respondent establishes that such order would be clearly inappropriate." 42 U.S.C. § 11607(b)(3).

Although Aden was employed on a part-time basis, she demonstrated that due to her monthly income and expenditures, paying Aly's attorneys' fees and costs would present a financial hardship. Additionally, Aden's financial situation was affected by the $13,000 hospital bill for P.H.A. S.A.'s delivery that was still outstanding, an expense that Aden incurred on behalf of both herself and Aly. Moreover, the Court found that at least some of Aden's current financial hardship was due to the control that Aly exerted over her funds while Aden was living in Canada, including Aly naming himself as the recipient of P.H.A. S.A.'s Canadian Child Benefits. That Aly contributed to Aden's straitened financial circumstances made an award of fees to Aly inappropriate. Finally, the Court found that Aly "bears at least some responsibility for the acrimony between the parties." The Court determined that Aly did not provide truthful testimony, and was physically and verbally abusive toward respondent. These factors were appropriately considered in determining whether a fee award would be appropriate. In light of Aden's financial circumstances, an award of fees could compromise Aden's ability to care for P.H.A.S.A. The Court therefore found that an award of attorneys' fees and costs was clearly inappropriate.

Matas-Vidal v. Libbey-Aguilera, 2013 WL 3995300 (D.Utah) [Mexico] [Well-Settled] [Age and Maturity] [Petition Denied]

　

In Matas-Vidal v. Libbey-Aguilera, 2013 WL 3995300 (D.Utah) on June 7, 2013 Juan Pablo Matas-Vidal filed a Petition for Return against Respondent Susan Consuelo Libbey-Aguilera, also known as Brooke Robinson, who was the mother of the children,

At the same time, he filed a Motion for a Temporary Restraining Order, Order to Show Cause, Writ of Assistance, and Request for Immediate Return of Minor Children. On June 7, 2013, the court granted the Motion for a TRO and entered an Order which, among other things, prohibited Ms. Libbey-Aguilera from interfering with the children being taken into protective custody.

Petitioner and Respondent were married in Mexico City on June 26, 1999.  Petitioner was a Mexican national, and Respondent had dual citizenship in Mexico and the United States, as her father was a United States citizen and her mother was a Mexican citizen. SM-L was born in Mexico City in May 2001, and RM-L was born in Mexico City in November 2003. At some point when the children were very young, the couple discussed the possibility of moving to the United States, but that
possibility never came to fruition because Petitioner could not find adequate-paying work in the United States. The children were granted United States citizenship in 2005. In October 2006, Ms. Libbey-Aguilera purchased a condominium in San Antonio, Texas and sometimes visited there. For the duration of their marriage, however, Petitioner, Respondent, and their two children always lived in Mexico City. They lived there until the time Ms. Libbey-Aguilera removed the children from Mexico to Utah in December 2010. Petitioner filed for divorce in early October 2007 in Mexico City. On October 16, 2007, the Mexican court issued an Order barring the removal of the children from Mexico. On December 14, 2007, after a mediation on December 11, 2007, the court ordered that Ms. Libbey-Aguilera would be granted the provisional physical custody of the children at their marital domicile. Petitioner would have visits on Saturdays and Sundays every other week from 10:00 a.m.-1:00 p.m. at the Supervised Visitation and Socialization Center. It was also ordered that Mr. Matas-Vidal may socialize with his children on holidays, the children's birthdays, and fifty percent of school vacations, with prior notice and mutual agreement of both parties. The December 14, 2007 Order again prohibited Respondent from taking the children out of Mexico. On June 30, 2010, the Mexican court issued an order granting "custodia definitiva " to Respondent argued that the Order granted her "sole custody" and dissolved any restrictions on her travel outside of Mexico. Petitioner, however, provided evidence that the English translation of "custodia definitiva" is not "sole custody," as that term is understood in the United States, and he also provided evidence that, because he still had custody rights, Respondent was still prohibited from leaving Mexico. The June 30, 2010 Order provided that Mr. Matas-Vidal "has the obligation and essential human right to visit and go out with his children... on Saturdays and Sundays ... every other weekend. Visitations shall begin on Saturdays at 10 AM and end on Sundays at 6 PM." These visits were not ordered to take place at the Supervised Visitation and Socialization Center. Mr. Matas-Vidal was to "pick the  children up at they place where they live with their mother and return them to the same place."

On November 25, 2010, a bifurcated decree of divorce was entered. Thus, the divorce had become final, but the issue of child custody and support were still being litigated. During the custody litigation, Petitioner exercised all visitation awarded to him by the Mexican court. He regularly exercised his right of access until the children were removed from Mexico. On January 8, 2011 and January 9, 2011, he went to the Supervised Family Interaction Center but Ms. Libbey-Aguilera and the boys did not show up. He then confirmed that they no longer lived at their marital home and was informed by the boys' school that, as of December 16, 2010, the boys had stopped attending school. In December 2010, Respondent surreptitiously removed the children from Mexico to the United States. She came directly to Orem, Utah and enrolled the children in school on December 21, 2010.

On January 7, 2011, after Respondent had removed the children from Mexico, the Mexican appeals court revoked the June 30, 2010 Order. On February 9, 2011, in the District Court for the Seventh Judicial District in the State of Idaho, Respondent had her name legally changed to Brooke Robinson, claiming that she needed to change her name because she was "divorcing her husband and am seeking to avoid being located by my husband for the reason he has threatened to kill me and my family." Respondent and her two children had been living in Orem, Utah from December 2010 through the present time. Petitioner had been looking for his children since he realized they were gone in January 2011. The Petition was filed on June 7, 2013.

The court found that that the Convention applied to this dispute. SM-L and RM-L were both under 16 years old; they were habitual residents of Mexico; and both Mexico and the United States are contracting states. The children were "wrongfully removed" from Mexico, in violation of a right of custody. The children were born in Mexico City and never lived anywhere other than Mexico until Respondent removed them to the United States in December 2010. The court also concluded that the removal was in breach of Petitioner's custody rights under Mexican law and that Petitioner was exercising those rights at the time of removal. Although Respondent claims that she was awarded "sole custody" and that any restraints on her ability to take the children across the border were dissolved, the court did not agree. The July 9, 2010 Order stated that Respondent was given "custodia definitiva," but that is not the same thing as "sole custody," as discussed below. Moreover, both parties appealed that order in August 2010. Under Mexican law, the challenged order had no effect, so the ne exeat order from October 16, 2007 remained in effect. Because the June 30, 2010 order was being appealed, and because custody was still subject to litigation, the interim ne exeat order from October 16, 2007 continued to apply. Regardless of which Order applied, however, Petitioner had intrinsic ne exeat rights barring the children's removal pursuant to Mexico's Civil Code.

The Court rejected Respondents contention that there was a grave risk that return of the children would expose them to physical and/or psychological harm. While Respondent alleged that she and the children were victims of domestic violence, the court was not persuaded that these allegations were entirely true. Moreover, the records submitted from the Supervised Visitation Center suggested that, at first, the children did not exhibit any fear or reluctance to see their father. Indeed, they appeared to demonstrate a warm, loving, and playful interaction. Over time, however, they seemed to develop more hesitation about seeing him, which he blamed on Ms. Libbey-Aguilera's efforts to alienate the children from him. The reason the children most often gave to the supervisors about their reluctance to visit with their father was that his breath was bad. It seemed unlikely that the children would provide such an answer if they were actually subjected to physical or psychological abuse, and it was puzzling that the children did not appear to have any reluctance to see their father during the
beginning weeks or months of their supervised visits. The court found that even if there were a grave risk she had not demonstrated that Mexican courts would be incapable of providing adequate protection. Thus, the court concluded that Article 13 "grave risk" defense did not apply in this case.

The Respondent raised the Article 12 well settled defense. The default presumption under the Convention is that a child shall be returned to the state from which he originally was wrongfully removed unless both of two conditions are met: (1) one year has elapsed between the date of wrongful removal and the date proceedings commence; and (2) the child is found to be "now settled in its new environment." Loranzo v. Alvarez, 697 F.3d 41, 51 (2nd Cir.2012). SM-L and RM-L had been in Utah since late December, 2010-for over two and one-half years. The court found that they were both very well settled. And given the boys' ages, 12 and 9 ½, respectively, these thirty-plus months had been meaningful to the boys. They had been consistently enrolled in school since January 2011. They missed very few days during those two school years, and their academic success had been remarkable. Both boys had many friends, caring neighbors, and fellow LDS church members with whom they had  formed close bonds. Their maternal grandmother also frequently cared for them. The children were active in their church, in boy scouts (or cub scouts for RM-L), and they were on a competitive swim team. SM-L is also on a soccer team. Many friends and neighbors have provided glowing letters about Respondent and the boys, and attesting to the boys' happiness and stable environment. Their mother had also been consistently employed since March 2011 and appeared to be financially stable. They boys both spoke fluent English and appeared to have adjusted well to their
living situation. Given the outpouring of support for the boys and Respondent, both in terms of having friends and neighbors attend the two court hearings and in submitting letters to the court, there was no question that these two boys were surrounded by a loving and supportive community and that the boys were thriving in their current environment. They were indeed settled in their new environment.

The Court rejected Petitioner’s argument that he was entitled to equitable tolling of the one-year period for the filing of his Hague petition and that the Article 12 defense is therefore inapplicable. While the court agreed that Respondent concealed the boys, that such concealment delayed Petitioner's ability to file a petition, and that he filed his petition within one year after he finally learned of their location, the court declined to apply equitable tolling to the one-year mandatory return period. The Court agreed with the Second Circuit (Loranzo v. Alvarez, 697 F.3d 41, 51 (2nd Cir.2012), cert. granted in part, 133 S.Ct. 2851 (June 24, 2013) ) and other district courts that have found that the purpose of the one-year mandatory return period is not to provide a deadline for a petitioner to assert a claim but rather is to put a limit on the uprooting of a settled child. Thus, the court declined to apply the doctrine of equitable tolling to the Article 12 "well-settled" defense.

The Court observed that the Hague Convention provides that "[t]he judicial or administrative authority [considering a petition] 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. In this case, SM-L was twelve-years old and would start seventh grade next month. RM-L would be ten-years old in three months and would soon start fourth grade. The court had the opportunity to observe the demeanor and maturity of both children during the court's in camera interview of each of them. They both demonstrated a high level of maturity in answering the court's questions-answering the questions in an articulate, thoughtful, and respectful manner. They were both good students with strong academic records. They both expressed a strong desire to remain in Utah and had particular objections to returning to Mexico. They confirmed that they enjoyed going to school here, were involved in church and several sports activities, and had many friends here. Both boys became visibly distraught when the court discussed the court's task of evaluating whether they should be returned to Mexico. The response of both boys appeared to be purely genuine-not concocted or rehearsed in any way.

Additionally, the boys were adamant about not wanting to have a supervised visit their father while he was in town for the court proceeding. The court found that the boys were of an appropriate age and maturity such that it was appropriate for the court to take into account their desire to not return to Mexico. The court recognizes that the boys had spent the past two years solely with their mother and maternal grandmother, and that this circumstance had undoubtedly had an impact on their desire to stay with their mother in Utah. It was also possible that their mother negatively colored the boys' view of their father. Here, while the children's objections to returning to Mexico could be due to the mother's possible undue influence over them, the court found that this possible undue influence was not the only reason the children desired not to return to Mexico, and thus, the court declined to ignore their wishes. The children appeared to be genuinely happy and thriving in their current situation. The court was convinced that the return of these children to Mexico City would severely traumatize these children. The Petition was denied.