Culculoglu v Culculoglu, 2013 WL 4045905 (D.Nev.)) [Canada] [Consent or Acquiescence] [Petition Denied]

[Canada] [Consent or Acquiescence] [Petition Denied]



In Culculoglu v Culculoglu, 2013 WL 4045905 (D.Nev.))the Petition was served on March 27, 2013. A Motion for Temporary Restraining Order was filed by Petitioner on March 29, 2013. The Courtgranted Petitioner's Motion for Temporary Restraining Order on April 4, 2013 , which enjoined Respondent from removing the children from the State of Nevada during the pendency of this action without prior court approval. Respondent filed her answer on April 10, 2013 and an evidentiary hearing was conducted on May 6, 2013.

The Court determined that there was no wrongful removal or retention of the children by Respondent because Petitioner consented to their initial removal fromCanada and acquiesced to their retention in Nevada. Moreover, Petitioner wasunable to establish that the children's habitual residence was Canada and instead, the Court determined that the children's habitual residence became Nevada after September 15, 2012. Consequently, the Court recommended that the Petition be denied.

Burhan was a resident of Canada and a naturalized citizen of the United States. Michelle was a resident and citizen of the United States. The parties lived together in Seattle in early 2007. Their first child, TC, was born in 2008 in Seattle. In October 2008, the parties relocated to Singapore as a result of Burhan's employment with Fairmont Hotels and Resorts. Their second and third children were born in Singapore: KC in 2009 and AC in 2011.The parties were married on April 15, 2010 while visiting Michelle's parents in Henderson, Nevada. In early 2012, while still in Singapore, Burhan was offered a promotion to become the Director of Operations for the Fairmont Hotel in Whistler, British Colombia, Canada. Testimony by both parties revealed that they were having difficulty in their marital relationship at this time. Both Burhan and Michelle testified that they discussed divorce while in Singapore. Michelle credibly testified that, in April of 2012, she began looking for a house in Henderson near her parents in contemplation of divorce. Burhan accepted the new position in Canada and the family departed Singapore around July 4, 2012. They stayed in Henderson, Nevada and visited with Michelle's parents on the way to Canada. During their stay in Henderson, the parties obtained Nevada drivers licenses, registered to vote, and purchased two automobiles. According to Michelle, one automobile was registered solely in Michelle's name in contemplation of divorce and Burhan was present when the vehicle was registered. Michelle testified that they also opened a joint bank account for the purpose of depositing Burhan's support payments from Canada and used Michelle's parents' address in Henderson as the record address. Michelle testified that because of their marital difficulties she did not intend to remain in Canada with Burhan.

On July 21, 2012, the family drove to Canada in Michelle's automobile. Michelle testified that the automobile was not "imported" into Canada upon their arrival at the border because she did not intend to stay in Canada. Therefore, the car remained a Nevada registered vehicle. Burhan obtained a work visa for himself and visas for Michelle and the children to remain in Canada and be eligible for health insurance. Burhan immediately began his work and the family stayed in the hotel where he worked. During their stay, the parties searched for a rental home, enrolled the children in a ski-school, and TC, the oldest child, was placed on a waiting list for pre-school. Michelle testified credibly that the parties continued to discuss the uncertainties of their marriage. It appeared that the parties' relationship continued to vacillate. On August 1, 2012, Michelle told Burhan that she wanted a divorce. She indicated that the children were packed and they were leaving, apparently because she suspected that Burhan had a paramour. However, on August 23, 2012, Michelle texted Burhan that she desired to periodically hire a babysitter so that the couple could have "date nights." In spite of their efforts, the marital relationship further deteriorated. Michelle testified that on September 14, 2012, Burhan told her that he was still in love with his paramour and the marriage was over. On September 15, 2012, Michelle and the children returned to Nevada with one-way tickets purchased by Burhan. Burhan testified that Michelle departed because she was stressed from having lived in the hotel for such a long time and that the house they hoped to rent was not available. He also indicated that he wanted a few weeks away from Michelle to determine whether or not their relationship should continue. Burhan further explained that the one-way tickets were purchased in order to give flexibility to Michelle on the date of return. On September 16, 2012, Burhan sent an email to Michelle in response to her emailed question, "do you miss me," which confirmed that he wanted a divorce. On September 17, 2012, Michelle informed Burhan that she had activated the on-line capabilities for the bank account that the parties had opened during their visit to Henderson in July. She also asked him about the funds to be provided. Burhan agreed that he would add money to the account now that she was in Nevada. On September 19, 2012, the parties exchanged an email regarding a house that Michelle had apparently found in Henderson that cost $610 per month. Burhan asked, "How much down payment," and Michelle responded "It doesn't say."

In an email exchange on September 25, 2012, the parties discussed the characteristics of the schools Michelle found for the children in Henderson. Burhan testified that he expected the school to be temporary so that the children did not sit around with nothing to do in Henderson; Michelletestified it was to be the school the children would attend in the future.Michelle testified that, within a short period of time, Burhan fedexed the children's birth certificates, medical records, and social security cards tofacilitate registration. On September 29, 2012 Michelle agreed that a divorce was the best course of action. Burhan indicated that he was looking "for 2 bedroom place." In an email dated September 30, 2012, Burhan agreed to transport Michelle's things and car to her in addition to again agreeing to file fordivorce. He also indicated that Michelle would have custody of the children until they finished elementary school. After that, Burhan proposed that the children would go to school near him and they would share custody with the children as follows: Michelle would have them for eight months and Burhan for four months consisting of three to four weeks in the winter duringthe school holidays and twelve to thirteen weeks in the summer. Also, Burhanwrote that he would put $1,500 per month in Michelle's bank account. Inresponse, Michelle suggested that she drive her car from Canada and Burhan drive a "U-haul" (rental vehicle) around October 18 or 19.

By late October, the parties' discussions regarding divorce became more certain. Burhan often claimed that Michelle was keeping the children in Nevada without his consent and made threats that he would take the children from Michelle. On November 18, 2012, Burhan drove Michelle's vehicle to Nevada including her and the children's clothing and personal effects. Michelle testified that Burhan wanted to stay at her parents' home during the visit, which she rejected because they were divorcing. She also testified that Burhan was emotional and erratic during the visit and wanted to reunite with her. Burhan testified that Michelle cut his visit short by threatening to call the police and he was unable to spend any substantive time with the children. Burhan bought an airline ticket and returned to Canada on November 20, 2012. On January 15, 2013, consistent with on-going text discussions with Burhan, Michelle filed for divorce in Nevada. On January 29, 2013, Burhan filed an application pursuant to the Convention in British Colombia, Canada for the return of his children. As he arrived at the airport to visit the children in February of 2013, Burhan was served with the divorce complaint. Burhan met with Michelle and her lawyer on February 11, 2013. Thereafter, as the parties had agreed Michelle dismissed her complaint on February 19, 2013 and Burhan instructed his lawyer to dismiss his Convention application. In spite of their attempts, however, the parties were unable to resolve the terms of the divorce and custody.

On March 1, 2013, Burhan advised Michelle that he intended to pick-up the children and remove them from the United States. Burhan arrived, but his effort was unsuccessful, which resulted in the Verified Complaint - Petition at issue in this case. In the Petition, Burhan sought return of the three children to Canada for an appropriate custody determination under Canadian law.

The Court found that there was no date that could be the date of a wrongful removal. n September 15, 2012, Michelle and the children returned to Nevada using one-way tickets purchased by Burhan.The removal of the children on September 15, 2012 was not wrongful because it was with Burhan's consent. The Court found that arrangements for support payments, housing, and schooling in Nevada were evidence of Burhan's intent that Michelle and the children remain in Nevada. They were also consistent with the parties' preliminary discussions, confirmed by email on October 2, 2012, to address custody of the children. The parties reaffirmed that divorce was the best course of action on September 29, 2012. Burhan indicated that he was looking for a two bedroom house in Whistler despite previously looking for a three to four bedroom house. On September 30, 2012, Burhan agreed to transport Michelle's car and her and the children's clothing to Nevada. This two week sequence of events was inconsistent with Burhan's testimony that he expected Michelle and the children to temporarily visit the United States and return to Canada in October 2012. Further, the Court did not find Burhan to be credible with respect to his testimony that the children were to return to Canada no later than October 16, 2012. The Court could not find a time when Michelle wrongfully removed or retained the children in Nevada from September 15, 2013 through March 14, 2013. It is not until this action was filed, on March 15, 2013, that Burhan consistently contended that the removal and retention of the children in Nevada was wrongful.

Michelle asserted both consent and acquiescence as affirmative defenses to Burhan's allegation of wrongful removal or retention of the children in Nevada. Under Article 13, the right to a child's return secured by the Convention is extinguished if "the person ... having the care of the child ... consented to or subsequently acquiesced in the removal or retention."19 I.L.M. at 1502. Under the Convention's plain, unambiguous language, consent before removal and retention or subsequent acquiescence extinguishes the right of return. In considering consent or acquiescence, "ambiguous statements or actions don't suffice." Cuellar v. Joyce, 596 F.3d 505, 512 (9th Cir.2010). A statement or action must "unequivocally demonstrate that [the petitioner] consented to the child's indefinite stay in [America]." Conduct after removal can be useful in determining whether consent was present at the time of removal. Gonzalez-Caballero, 251 F3d at 794. The Court found that the preponderance of the evidence demonstrated that Burhan consented to the children's removal and retention. He sent Michelle and the children to Nevada on a one-way ticket. Burhan also deposited monthly support funds. He participated in arranging schooling and housing. Finally, Burhan transported Michelle's car and her and the children's personal property to Nevada. Moreover, Burhan specifically gave written consent to the children being in Nevada from the time they left Canada until at least March 14, 2013. The Court did not find Burhan's testimony, after-the-fact, that he did not consent and always believed the children would return to Canada to be credible in the face of this clear, unambiguous, written statement of consent. Accordingly, the Court found that Michelle has met her burden of proving that the removal and retention of the children in Nevada was not wrongful because it was done with Burhan's consent.

The acquiescence defense has been held to require "an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time." Friedrich v. Friedrich, 78 F.3d 1060, 1070 (6th Cir.1996). By making arrangements for Michelle and the children to remain in Nevada after September 15, 2012, the Court found that Burhan demonstrated a consistent attitude of acquiescence. This attitude continued from the time the children left Canada at least until Burhan filed his Hague application on January 29, 2013. The Court also found that on February 19, 2013, when Burhan formally withdrew his Hague application and agreed in writing to the children remaining in Nevada until at least March 14, 2013, he acquiesced to the children residing in Nevada. This was a clear, written, statement of Burhan's acquiescence that the Court found convincing despite Burhan's testimony that he expected the children to return to Canada to live permanently. Accordingly, the Court found that Michelle has met her burden of proving that the removal and retention of the children in Nevada was not wrongful because it was done with Burhan's acquiescence.

Assuming, arguendo, that Burhan did not consent to the children's permanent removal or acquiesce to their retention, the Court found that the children were not habitual residents of Canada. It was not disputed that the parties intended to abandon their residence in Singapore. Nor was there a question that Burhan intended to remain in Canada-he accepted a promotion to a new position there. It was true that the family lived together in the hotel in Canada, attempted unsuccessfully to find a permanent residence, made arrangements for future activities for the children including ski school and preschool for TC, and Michelle scheduled a doctor's appointment. This was evidence that the parties intended that the children reside in Canada prior to September 15, 2012. It did not appear, however, that Michelle intended to permanently reside in Canada. The marital discord and the contemplation of separation or divorce dated back to the parties time in Singapore. Michelle testified credibly that she was concerned about the future of her marriage even before she departed Singapore. Michelle's efforts to find a house in Henderson prior to departing Singapore reinforced this finding. Burhan's testimony that the couple was only looking for a vacation home in Nevada was not credible given that Michelle's parents lived in Henderson and their income was not conducive to an investment home. Additionally,  the Court found credible Michelle's testimony that the establishment of a bank account in Henderson before the family traveled to Canada was for her to receive support payments in the event of separation. The purchase of two cars, one placed in Michelle's name, served as another indicator of Michelle's uncertainty about remaining in Canada. From their arrival in Canada on July 21, 2012 until September 15, 2012, a period of 56 days, the parties continued to suffer significant marital difficulties. Michelle made no friends in Canada, the family lived in a hotel that was understood to be temporary, and the children did not participate in many activities. This was the evidence that the parties intended the children to reside in Nevada after their 56 day stay in Canada.

Londano v Gonzalez, 2013 WL 1934043, (D. Massachusetts) [Colombia] [Federal & State Judicial Remedies] [Temporary Restraining Order]

In Londano v Gonzalez, 2013 WL 1934043, (D. Massachusetts) Petitioner Francelly Sanchez Londono filed a Verified Emergency Petition for the Return of Child and Warrant of Arrest in Lieu of Writ of Habeas Corpus, pursuant to 42 U.S.C. § 11601. The petition was accompanied by an Emergency Motion for Relief and an Application to Proceed in District Court Without Prepaying Fees or Costs. The petition was brought pursuant to the Hague Convention and sought, among other things, to compel respondent Nelson Gonzalez to appear in court to show cause why the child EG should not be returned to Colombia. The petition alleged that EG was brought from Colombia to the United States in May 2011 by her father, Gonzalez, and had been retained here without petitioner’s consent.

Petitioner filed an Emergency Petition for the Return of Child and an Emergency Motion for Relief. The court denied the motion for poor person relief. However, it observed that upon appropriate motion, the Court has the authority to prevent a child’s concealment or removal from the District until such a petition is ruled upon. See 42 U.S.C. § 11604(a); Fed.R.Civ.P. 65. ICARA expressly authorizes a court to "take or cause to be taken measures under federal or state law, as appropriate, ... to prevent the child’s further removal or concealment before the final disposition of the petition." 42 U.S.C. § 11604(a).

Given the representations made to the Court by petitioner, and the very serious irreparable harm that was likely to result both to the child and to petitioner in the event the child was wrongly removed from this jurisdiction, a temporary restraining order was justified to preserve the status quo pending a hearing. For the purposes of Fed.R.Civ.P. 65(b), the Court found that petitioner had made a sufficient showing that, without an injunction, she may sustain immediate and irreparable injury before there was an opportunity for a hearing. The record did not suggest any comparable irreparable harm to respondent that would result from the granting of this temporary injunction. The balance of hardships tiped in favor of petitioner. Based on the present record, the Court was also convinced that it was necessary to issue an injunction without prior notice to respondent. Petitioner’s submissions indicated a risk that, should notice be provided, the child might be concealed or taken from this jurisdiction before an injunction could be served. The Court did not require petitioner to post a bond as a condition of obtaining the injunction at this trial. It directed that a summons be served on the respondent.

Wood v Wood, 2013 WL 1907492, (E.D. Washington) [United Kingdom] [Federal & State Judicial Remedies ][Temporary Restraining Order] [Deposit Passport with Court]

 In Wood v Wood, 2013 WL 1907492, (E.D. Washington) Petitioner filed an Ex Parte Request for Expedited Consideration of Verified Petition for Return of Child to the United Kingdom and Issuance of Show Cause Order (ECF No. 3). He sought the return of his minor child, LPBW, to the child’s home country of the United Kingdom. He alleged that LPBW has been wrongfully retained in the United States by his mother, Respondent Melissa Renee Wood ("Respondent"), and was currently residing with Respondent in Moxee, Washington. Petitioner requested an order (1) temporarily restraining Respondent from removing LPBW from this Court’s jurisdiction; (2) requiring Respondent to deposit LPBW’s passport and other travel documents with the Court; and (3) directing Respondent to appear for a show cause hearing. Fearing that Respondent would attempt to remove the child from the Eastern District of Washington if given advance notice of these proceedings, Petitioner filed the motion ex parte.

The District Court observed that 42 U.S.C. § 11604(a) extends the Courts authority to issuing an ex parte temporary restraining order where the requirements of Federal Rule of Civil Procedure 65(b) are satisfied. Morgan v. Morgan, 289 F.Supp.2d 1067, 1069 (N.D. Iowa 2003. In taking any preventative measures pursuant to § 1 1604(a), however, a court must ensure that "the applicable requirements of State law are satisfied." 42 U.S.C. § 11604(b).

Petitioner requested an order barring respondent from removing LPBW from this Court’s jurisdiction pending full adjudication of the Petition. Given that Petitioner filed his motion without serving a copy on Respondent, the Court construed this request as a motion for an ex parte temporary restraining order ("TRO"). Under Rule 65(b), a party seeking a TRO must establish: (1) a likelihood of success on the merits, (2) a likelihood of irreparable injury if the requested relief is not granted, (3) that a balancing of the hardships weighs in its favor; and (4) that the requested relief will advance the public interest. See Winter v. Natural Res. Def. Council, 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). When these elements are satisfied, a court may temporarily enjoin the opposing party from engaging in a specific action pending a hearing to determine whether the restrictions should remain in force in the form of a preliminary injunction.

The Court found that the issuance of a TRO was appropriate. Petitioner established a prima facie case of wrongful retention under the Hague Convention by alleging that Respondent was holding LPBW, a child under sixteen years of age whose country of habitual residence is the United Kingdom, in the United States without his permission and in violation of his rights of custody under the Law of England and Wales. Petitioner also established to the Court’s satisfaction that Respondent and LPBW were currently residing within the Eastern District of Washington. Accordingly, Petitioner established a sufficiently high likelihood of success on the merits. Petitioner also established a sufficiently high likelihood of irreparable injury if the requested relief was not granted. According to the Petition, Respondent had taken LPBW "on the road" through at least four different states in an effort to conceal the child’s whereabouts from Petitioner. In light of these allegations, there was reason to believe that Respondent may remove LPBW from this Court’s jurisdiction upon learning of these proceedings if not expressly prohibited from doing so. If that occurred, Petitioner would likely experience great difficulty in locating the child and pursuing the child’s safe return to the United Kingdom. The Court found that injunctive relief was necessary to prevent this and other potential injuries from occurring. For these same reasons, the Court found that issuance of the Order without notice to Respondent was appropriate under Rule 65(b)(2). Prohibiting Respondent from removing LPBW from the Eastern District of Washington until she could be heard on the matter was a minimally burdensome condition. Indeed, given that Respondent and LPBW appeared to have settled in Moxee (at least for the time being), there was no reason to believe that either Respondent or the child will be burdened at all. Conversely, Petitioner faced a substantial hardship if the requested relief was not granted. As noted above, Petitioner’s ability to obtain effective relief under the Hague Convention would be seriously jeopardized if Respondent were to remove the child from this Court’s jurisdiction. Finally, the Court found that an order barring Respondent from removing LPBW from the jurisdiction would advance the public interest. In implementing the Convention through ICARA, the United States Congress found, inter alia, that "the international abduction ... of children is harmful to their well-being" and that persons who engage in such conduct "should not be permitted to obtain custody of children by virtue of their wrongful removal or retention." 42 U.S.C. § 11601(a)(1), (2). Granting the requested relief would, at least temporarily, prevent Respondent from further profiting from her alleged wrongful retention of LPBW in the United States. Accordingly, the Court concluded that Petitioner was entitled to an order temporarily restraining Respondent from removing LPBW from the Court’s jurisdiction; it prohibited her from directly or indirectly removing the minor child, LPBW, born in 2007, from the Eastern District of Washington; directed that Petitioner shall not be required to give security under Rule 65(c); directed Respondent to appear before the court to show cause why she should not be prohibited from removing the LPBW from the Court’s jurisdiction until the proceeding was concluded; directed Respondent to produce LPBW’s passport and any other identification and/or travel documents at the hearing and to deposit them with the Court for safekeeping until the proceeding was concluded; and directed Petitioner to arrange for the Order, along with a copy of the Verified Petition and all attached documents, to be personally served upon Respondent at the earliest possible time, and file proof of service prior to the hearing.