Culculoglu v Culculoglu, 2013 WL 1413231 (D.Nev.) [Canada] [Federal & State Judicial Remedies] [Temporary Restraining Order] [Delivery of Passport to Court]

In Culculoglu v Culculoglu, 2013 WL 1413231 (D.Nev.) Petitioner alleged that he resided in Whistler, British Columbia, Canada where, until September 2012, he lived with Respondent and their three children. On March 15, 2013, Petitioner filed his Verified Complaint asserting a cause of action for Wrongful Retention under The Hague Convention on International Child Abduction. In the Petition, Petitioner sought return of the children to Canada to allow the courts of the children's "habitual residence" to determine any custody issues. Petitioner filed a motion seeking an ex parte Temporary Restraining Order to ensure that the minor children, remained in Nevada until the Court can resolve the merits of this matter.

The Court observed that Federal Rule of Civil Procedure 65 governs preliminary injunctions and temporary restraining orders, and requires that a motion for temporary restraining order include "specific facts in an affidavit or a verified complaint [that] clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition," as well as written certification from the movant's attorney stating "any efforts made to give notice and the reasons why it should not be required."Fed.R.Civ.P. 65(b).Temporary restraining orders are governed by the same standard applicable to preliminary injunctions. Like a preliminary injunction, the Court may issue a temporary restraining order if a plaintiff establishes: (1) likelihood of success on the merits; (2) likelihood of irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) ."Injunctive relief [is] an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Id. at 22.

The district court concluded that Plaintiff established each of the prongs of the TRO analysisThe first prong requires Petitioner to establish that the children were removed or retained away from the country of their habitual residence. See Hague Convention, art. 3(a). The second prong of Petitioner's Wrongful Retention claim requires that Petitioner prove that Respondent's retention of the children in the United States was in breach of the custody rights of the Petitioner, as provided by Canadian law. Hague Convention, art. 3(a). Finally, Petitioner must establish that, at the time the children were removed or retained, Petitioner was actually exercising his rights of custody. Hague Convention, art. 3(b). Petitioner's Verified Complaint adequately demonstrates that he was exercising his rights of custody at the time Respondent brought the children to the United States and that Petitioner would have continued to exercise his rights of custody but for Respondent's allegedly wrongful retention of the children in the United States. Given the risk that Respondent could further conceal the location of the children, the Court found that Petitioner would likely be irreparably harmed in the absence of the requested relief to maintain the status quo.

The Court concluded that the risk of Respondent secreting away the children before the resolution of the Petition, outweighed any injury to the Respondent or the children that may result from ordering them to stay in the District. First, the Order merely maintained the status quo by ordering that Respondent and the children remain in the District during the pendency of this action. Second, the Verified Complaint stated that Respondent's parents reside in the District.  Thus, this Order would not impose a hardship on Respondent.

Accordingly, the balance of equities tipped in favor of Petitioner and supported the issuance of the requested temporary restraining order. "The public interest analysis for the issuance of [injunctive relief] requires [district courts] to consider whether there exists some critical public interest that would be injured by the grant of preliminary relief." ICARA expressly authorizes a court to "take or cause to be taken measures under Federal or State law, as appropriate, ... to prevent the child[ren]'s further removal or concealment before the final disposition of the petition." 42 U.S.C. § 11604(a). Accordingly, in this case, the Court found no such public interest that would be injured by the issuance of such injunctive relief.

The Court also directed Respondent to deliver to the United States Marshal, for safekeeping, any passports for TC, KC, and AC that are were Respondent's possession, custody, or control, and shall further notify the United States Marshal if Respondent knows of any person having possession of such a passport. The Court directed that the summons and other papers be served upon the Respondent.

Arulpragasam v. Bronfman, 2013 WL 2249256 (E.D.N.Y.) [England] [Federal & State Judicial Remedies] [Use of Pseudonyms in Civil Litigation]

 In Arulpragasam v. Bronfman, 2013 WL 2249256 (E.D.N.Y.) Petitioner Mathangi Arulpragasam filed a petition under the Hague Convention seeking an order directing Respondent Benjamin Bronfman to refrain from retaining their son in New York and allowing Petitioner and son to return to England.

Petitioner requested that the following information be redacted from all court filings: 1. "[A]ll identifying information about the [c]hild (to protect his privacy and safety), including his name, the school he is now attending" and certain other personal information regarding the child; 2. "[I]dentifying information about [P]etitioner (to protect her safety and effectuate the [c]hild's privacy concerns)," to include Petitioner's home address and other personal information; and 3. "[T]he names of the parties (to effectuate the foregoing), including revision of the caption to be 'Anonymous v. Anonymous.' "

The Court granted the first two requests and denied the third request. It observed that this was not a child custody case, and was not governed by New York law, but by a treaty which Petitioner did not assert provided for the sealing of this proceeding. Petitioner argued that the Second Circuit's decision in United States v. Amodeo, 71 F.3d 1044 (2d Cir.1995), supported the redaction of the personal information requested. The Court agreed with Petitioner that some of the information that Petitioner sought to redact from the filings should be redacted. Pursuant to Rule 5.2 of the Federal Rules of Civil Procedure, parties are required to redact certain personal information from all documents filed with the Court, including the name of the child. As to the other personal information Petitioner sought to redact, the Court found that such information should be redacted from all filings.

The Court denied Petitioner's third request which sought to conceal the identity of the parties in this case and to identify them as Anonymous v. Anonymous. Petitioner's only argument in support of this request was that "removing the parties' names from the caption will lessen the likelihood of interest being directed toward" the case. The Court held that the public's interest in Petitioner is not a legal basis for sealing this proceeding, nor is it a legal basis for anonymity. In Sealed Plaintiff v. Sealed Defendant, the Second Circuit discussed the standard governing the use of pseudonyms in civil litigation. 537 F.3d 185, 189-90 (2d Cir.2008). The court stated that "the interests of both the public and the opposing party should be considered when determining whether to grant an application to proceed under a pseudonym. Accordingly, we ... hold that when determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff's interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant." Id. at 189.The Second Circuit held that the balancing of interests entails the consideration of several factors citing. It noted that this list is non-exhaustive and district courts should take into account other factors relevant to the particular case under consideration Although Respondent did not oppose Petitioner's requests, Petitioner did not convince the Court that the balance of these factors weighed in her favor.

Walker v Walker, 2013 WL 1110876 (N.D.Ill.) [Australia] [Habitual Residence] [Age & Maturity] [Petition Granted]

In Walker v Walker, 2013 WL 1110876 (N.D.Ill.) in early May 2011, Iain Walker, a citizen of Australia, filed suit against his then wife Norene Walker, a United States citizen, seeking to compel her to return their three children to Australia. In September 2011, another judge of the court conducted a bench trial on the petition, and, on October 20, 2011, he ruled in Norene's favor. The court of appeals in Walker v. Walker, 701 F.3d 1110, 1114 (7th Cir.2012), overturned as insufficiently supported the district judge's determinations that the United States was the children's habitual residence at the relevant time; that Iain had abandoned the children and was not exercising his rights of custody at the relevant time; and that Iain had consented to the children remaining in the United States. The court remanded the case for further proceedings setting forth in its opinion the crucial issues which were not fully developed in the previous proceedings, and directed that the district court resolve at least the following questions: 1. What was Iain and Norene's mutual intent regarding the trip to the United States in June 2010? Was this intended as an extended vacation or as a permanent move? 2. What has been the precise nature of Iain's participation in the Illinois divorce proceedings, and to what extent, if at all, does this participation indicate that Iain either consented to or acquiesced in the children's retention in the United States? 3. To the extent the children have "attained an age and degree of maturity at which it is appropriate to take account of their views," [ Hague Convention] Art. 13, what is the children's attitude to being returned to Australia? In conducting this inquiry, we caution that the district court must be attentive to the possibility that the children's views may be the product of "undue influence" of the parent who currently has custody. 51 Fed.Reg. 10510.

The district court observed that the first step, was to determine the children's habitual residence at the relevant time. As the Seventh Circuit stated in its decision in this case, to prevail, Iain was "required to show that Australia was the children's habitual residence at the time of their retention in the United States." Walker, 701 F.3d at 1119. It found that the time of the children's retention in the United States by Norene was, at the latest, late January 2011. Norene testified that this was when she first formed the intention to remain in the United States and not return the children to Australia. It was undisputed that the Walkers resided in Australia from 1998 through June 2010. In a case of alleged wrongful retention, a court determines a child's habitual residence "by asking whether a prior place of residence was effectively abandoned and a new residence established by the shared actions and intention of the parents coupled with the passage of time." Walker, 701 F.3d at 1119." Because the parents often dispute their intentions, the court should look at actions as well as declarations in determining whether the parents shared an intent to abandon a prior habitual residence." Iain had proven by a preponderance of the evidence that the Walkers did not have a shared intention to abandon their residence in Australia and establish a new residence in the United States. This proposition was amply established by the testimony of both parties as well as their earlier statements and actions and the circumstantial evidence. Iain and Norene were married in Chicago, where Norene's parents lived, in 1993. They lived in Seattle, Washington until 1998, and their first child was born there in 1997. They moved to Perth, a city in Western Australia, in 1998, when their first child was about one year old. Iain and Norene's two younger children were born in Australia in 1999 and 2001. Norene testified that she and Iain initially intended to live in Australia for five years and then relocate to the United States. She testified that she agreed to marry Iain only on that condition. They actually lived together in Australia, however, for twelve years, until 2010. As the Seventh Circuit stated in its ruling, and as the evidenced presented to this Court showed, [o]ver this period, they and their children appeared to be well-settled: they owned a home, furniture, and a dog named Chubba; the children attended school, had friends, and participated in activities; and Iain worked as a software test engineer while Norene cared for the children. Iain, Norene, and their children traveled to the United States in June 2010. The Seventh Circuit stated, and the Court found based on the evidence presented, that "[w]hen they left Australia, both Iain and Norene expected that Norene and the children would remain in the United States for six months to one year." Norene contended, however, that this trip was intended "as an extended prelude to a permanent move to the United States." Norene testified that  she married Iain on the condition that after five years, they would relocate in the United States. She contended that the June 2010 trip represented the fulfillment of that condition, or at least the initial steps toward its fulfillment. Iain contended, by contrast, that they intended for Norene and the children to live with Norene's parents in Chicago while the family demolished their house in Perth and built a new one, at which point Norene and the children would return to Australia and resume living there indefinitely.

It was undisputed that their home in Perth was demolished and that construction of two new homes on the property was to begin thereafter. Iain said that the family planned to live in one; Norene said they planned to sell both. The evidence overwhelmingly showed that Iain and Norene did not have a "shared intention" to abandon residence in Australia and establish residence in the United States at any time relevant to this case. The Court found credible Iain's testimony that he did not intend to relocate himself or the family permanently to the United States and that the purpose of the extended stay in this country was to allow demolition and reconstruction of the family's home in Perth. The Court also found credible Iain's testimony that he did not participate along with Norene in what she described as initial efforts to look for a home in the United States. The Court did not doubt that Norene may have wanted to eventually establish residence in the United States. The Court found that Iain and Norene's mutual intent regarding the June 2010 trip to the United States was that it was not a permanent move or even a prelude to a permanent move. Rather, it was a temporary stay. At most the trip was an extended leave of absence from Australia with the intent to return to their permanent residence that country. There was no shared intention to abandon Australia as their residence and establish residence in the United States. The children's habitual residence was Australia as of the time of the alleged wrongful retention.

The Court found that Norene's retention of the children was in breach of Iain's custody rights under Australian law. It was not seriously disputed that Iain had, at the relevant time, the right of joint custody of the children under Australian law. The Court considered Norene to have forfeited this argument due to the utter absence of any reasonable effort by her counsel to support it; leaving it to the Court to wade through a complex and detailed 700-plus page statute did not cut it. The Court found that Iain had met his burden of providing that Norene's retention of the three children, which took place at the latest in late January 2011, breached his rights of custody under the law of Australia, which is where the children were habitually resident immediately before the retention. The Court also found that Iain was actually exercising his rights of custody up through and at the time of Norene's retention of the children.

The district judge who conducted the first trial concluded that Iain had abandoned the children after returning to Australia in July 2010 and at the latest in January 2011. This conclusion appeared to have been based largely on evidence that the Seventh Circuit concluded should have been excluded for this purpose. One way or another, however, the Court disagreed with the previous judge. The admissible evidence was all to the contrary. There was no abandonment of the children by Iain, and he was actually exercising his custody rights at the relevant time. The Court concluded that Iain established the necessary elements of a claim of wrongful retention under article 3 of the Hague Convention.

Norene contended that Iain had consented to, or subsequently acquiesced in, the retention of the children by Norene in the United States. She failed to prove either by a preponderance of the evidence, and the evidence was not close. Iain took prompt steps to seek relief via the Hague Convention.He has consistently and diligently pursued his petition for relief under the Convention and ICARA ever since that time, through the present day. In arguing acquiescence, Norene relied on Iain's participation in the Illinois divorce proceedings, and perhaps on his later non-participation in those proceedings. Iain participated in the Illinois divorce proceedings via counsel until approximately the end of January 2012. Nothing about his participation in the case suggested acquiescence in the children's retention in the United States. There was nothing about Iain's actions that suggested that this represented acquiescence in the children's retention in the United States. Even while ceasing participation in the Illinois divorce case, Iain continued to pursue vigorously in the court and on appeal his challenge to Norene's retention of the children.

The third question posed by the court of appeals involves the application of the child objection provision of the Hague Convention. Article 13 of the Hague Convention states that a judicial authority "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 Conv. art. 13. During the initial trial before the previous judge, each of the three children was questioned in the presence of counsel but not the parties, informally, while sitting around a table. The Court followed the same practice at the trial just conducted. The three children were a fifteen year old girl who would turn sixteen on March 18 of that year, a thirteen year old boy who would turn fourteen in August, and an eleven year old girl who would turn twelve in June.. The older daughter had a sheet of handwritten notes that she consulted from time to time. All of the children were doing well in school, better than they were doing during the period shortly after they first came to the United States. All of them were involved in activities here. They expressed the view that there were better opportunities here than in Australia. The children all reported that they like living here and with their mother. They also all reported that they had frequent contact with their father by telephone and Skype. The oldest daughter still had contact with some of her friends from Australia, and all of them remembered living there and that they liked it when they were there. The middle child stated that he was a bit angry with his father and disappointed that his father had "ordered a retrial," which he said he had learned from his mother. (The Court attempted to explain to him that the "retrial" had been ordered by judges, not by his father.) All three of the children expressed their desire to remain in the United States, with their mother. The Court found that the two older children had reached an age and maturity at which it was appropriate to take account of their views. The Court assumed for purposes of discussion that the younger daughter likewise has reached a sufficient age and maturity for the article 13 provision to apply.

It observed that a court must take care not to give significant weight to a child's views if the child has been unduly influenced by the respondent parent. See, e.g., Walker v. Kitt, --- F.Supp.2d ----, 2012 WL 5237262, at *5 (N.D.Ill. Oct. 24, 2012) There was evidence of that here. First, as indicated earlier, the middle child's apparent anger with his father arose rom his mother having told him that his father "ordered a retrial." Second, each of the children made reference to better "opportunities" for education and otherwise, using very similar terminology. The Court might have regarded this as independently derived had it come only from the Walkers' oldest daughter, a high school sophomore, or perhaps from their son, an eighth grader. After the two older children spoke, however, the youngest child, after some initial introductory questions, began her statement about the relevant topics by talking about better education and a lot more opportunities here than in Australia. Given the three children's remarkably similar statements in this regard, the Court was constrained to conclude that their statements were subject of some degree of influence, and it was reasonable to infer that this was from their mother. Even were that not the case, although the Court found the children quite likeable and respects their views, the circumstances did not warrant giving their views controlling weight. As of the date of the trial, they had been in the United States for just three months short of three years. They had become acclimated to living here, and they had become settled in. It was both understandable and predictable that they did not now wish to relocate. It wsa likewise understandable and predictable that they had a far closer connection with their mother, with whom they have lived for this extended period, than with their father. But all of this was, at least in significant part, a direct result of their wrongful retention here by Norene. As the Third Circuit noted in Yang,"[a] lengthy wrongful retention could enable the child to become comfortable in his or her new surroundings, which may create a desire to remain in his or her new home." Yang, 499 F.3d at 280. In such a case, "application of the exception ... would reward [a respondent] for violating [a petitioner's] custody rights, and defeat the purposes of the Convention."

The Court entered judgment in favor of the petitioner and directed the respondent to immediately return the parties' three children to petitioner in Australia.