Darin v. Olivero-Huffman, --- F.3d ----, 2014 WL 1053775 (C.A.1 (Puerto Rico)) [Argentina] [Habitual Residence] [Consent] [Acquiescence] [Petition granted]

In Darin v. Olivero-Huffman, --- F.3d ----, 2014 WL 1053775 (C.A.1 (Puerto Rico)) Lisandro Jonathan Darin ("Darin") initiated  proceedings against Lua Cecilia Olivero-Huffman ("Olivero"), seeking the return of their son ("LAD") to Argentina from the United States. In 2007 the parties entered into a romantic relationship. Olivero became pregnant, and by then the parties were living together in Olivero's apartment. During the pregnancy, Darin and Olivero traveled together to the United States, returning to Argentina prior to the arrival of their son. LAD was born in Buenos Aires on April 20, 2008, and was a citizen of both the United States and Argentina. Following the birth of their son, the parties moved into a Buenos Aires apartment Darin had inherited from his father.  

      On January 31, 2011, the family traveled to the United States. Their first stop
was Orlando, Florida, where they spent a total of four days. The family then moved
on to Puerto Rico. At the outset of the trip, the plan was to spend some time in
Puerto Rico with Olivero's family and then fly back to Argentina on March 2, 2011.
However, during their stay in Puerto Rico, the plan began to change and the date
of return was pushed back due to Olivero's involvement in a car accident and her
apparently new-found interest in pursuing a business venture with her sister.
Around mid-March 2011, Olivero announced to Darin that neither she nor LAD would
be returning to Argentina. Darin remained on the island as long as he could, but
his tourist visa was set to expire in July 2011.   On July 7, 2011-just two days before Darin's departure-Darin and Olivero executed an affidavit regarding the care and supervision of their son during Darin's absence. Olivero drafted the Affidavit herself. The Affidavit's terms authorized her to take any steps necessary to provide for the education, health care, and overall well-being of the child. A provision authorizing the child to travel with either parent was there as well. At Darin's insistence, language was included stating he was leaving the United States "against his will" and was not abandoning his child. He eventually left the country on July 9, 2011.  Thereafter, although separated geographically, Darin maintained continuous and frequent communication with his son.

    On November 18, 2011, Olivero filed for legal custody of LAD in Puerto Rico
state court. According to the custody petition, Olivero filed so that she could
"send [LAD] to visit [Darin] at Christmas," since they had not been able to reach
an agreement and she feared the retention of the child.  On December 19, 2011,
Darin filed an application under the Convention with the Argentina Central
Authority requesting the return of his son to Argentina. On February 22, 2012,
Darin filed the action with the federal district court in Puerto Rico, alleging Olivero's actions amounted to a "wrongful retention" of his son.

        After holding a hearing the district court concluded that Darin had not met his
burden of establishing a wrongful removal or retention. Indicating that the
alleged removal or retention had occurred in July 2011, on the date which Darin
left Puerto Rico, the court found that as of that time "a new habitual residence in [the United States] was acquired based on the parents' shared intention in signing the affidavit."  Darin had, according to the court, "acquiesced/consented" to LAD remaining in Puerto Rico. The court concluded that because LAD "was a habitual resident of Puerto Rico at the time of the claimed removal or retention," the retention or removal was not wrongful. It denied Darin's petition and dismissed his claims.

           The First Circuit reversed. No one disputed that  Darin had custody rights over LAD or that he was exercising them at the time of the alleged retention. The only question was whether Darin established by a preponderance of the evidence that Argentina ( was LAD's habitual residence prior to his retention. The district court thought Darin fell short, Upon  de novo review the First Circuit disagreed with it and found that he established habitual residence in Argentina.

  The First Circuit diverged from the district court on the question of when
LAD's alleged retention occurred. The district court indicated that the relevant date of retention was July 2011, which was when Darin left Puerto Rico. Darin argued that the retention occurred in mid-March 2011, when Olivero informed him that she would be remaining in Puerto Rico. The Fifth Circuit found the record supported Darin's position. By mid-March 2011, Olivero made it clear to Darin that she and their son would be permanently residing in the United States. Her actions afterwards only confirmed this. Olivero, true to her word, refused to return to Argentina.  Once Olivero decided to stay in the United States with the child, there was nothing Darin could do to prevent a separation from his son. His tourist visa excluded the possibility of staying indefinitely with LAD in the United States, and he could not take LAD back to Argentina because the POA authorizing the child to travel with only one parent had been revoked.  As of mid-March 2011, Darin had no legal way of remaining with his son.

The next question was whether Argentina was LAD's habitual residence in mid-March 2011. The Court observed 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. In cases involving more than one potential residence, a distinction must be made between the abandonment of a prior habitual residence and the acquisition of a new one.  When the question is whether a young child-lacking both the material and psychological means to decide where he or she will reside-has abandoned a prior
habitual residence, "the intention or purpose which has to be taken into account
is that of the person or persons entitled to fix the place of the child's residence." Mozes, 239 F.3d at 1076.  Generally, it is "the parents' shared intent or settled purpose regarding their child's residence" that guides the inquiry.  One parent's wishes are not sufficient, by themselves, to effect a change in a child's habitual residence.   Utilizing Darin's July 2011 departure date as the operative date of retention, the district court found that the Affidavit (signed a couple days before), "clearly show[ed] the parents' last shared intent in determining habitual residence." The court's ultimate conclusion was the United States was LAD's habitual residence prior to the alleged retention. Upon conducting a de novo review, the Fifth Circuit concluded that this determination was flawed.   Based on the uncontested facts, it was safe to say that, prior to mid-March  2011, the parties' shared intent was not for the child to be a habitual resident
of the United States. It was the parties' shared intent to return to Argentina on March 2, 2011. Olivero did not deny this was the plan; she testified as much. Olivero admitted it was she who had a change of heart once in Puerto Rico and decided to stay there with her son. A unilateral decision is not enough. There was simply no evidence in the record from which the district court could have found a mutual intent to change their son's habitual residence on the date of retention.   Furthermore, the district court was misguided in emphasizing LAD's acclimatization to the United States for purposes of its habitual residence determination. Evidence of acclimatization is not enough to establish a child's habitual residence in a new country when contrary parental intent exists. See Mozes, 239 F.3d at 1078-79. A "change in geography" and "the passage of an appreciable period of time ... that is sufficient for acclimatization" are considerations for the court when "the decision to alter a child's habitual residence depends on the shared settled intention of the parents."  In the absence of shared parental intent, the district court should have "be [en] slow to infer ... an earlier habitual residence has been abandoned."    The evidence on record did not show that the parties shared an intent to change LAD's habitual residence to the United States, but instead it pointed only to Olivero's individual intent to do so. Accordingly, it concluded that the district court's finding otherwise was clearly erroneous. Applying the de novo standard of review the ultimate habitual residence determination calls for it found that Darin had established by a preponderance of the evidence that LAD's habitual residence as of the retention was Argentina, and that Olivero wrongfully retained LAD in the United States.

The Fifth Circuit found that the district court, incorrectly using the terms consent and acquiescence interchangeably, found that Darin had agreed to LAD remaining in the United States. It found that Darin, by signing the Affidavit, "voluntarily and without
intimidation, threats or coercion" was agreeing that LAD could stay in the United
States for an indefinite period of time. The district court also found that Darin had "consent[ed] to LAD's retention in the United States because he "failed for five
(5) months to make any meaningful effort to obtain return of the minor child and
failed to pay any child support." The evidence on record compelled the Fifth Circuit to conclude that the district court got it wrong.

The consent inquiry focuses on the time prior to the retention and therefore Darin's signing of the Affidavit was out of play. Focusing on the parties' conduct prior to mid-March 2011, there was little Olivero could rely on to support a consent defense during this time period. The objective facts in the record pointed to one conclusion only: Darin did not consent to LAD's retention in the United States in mid-March 2011. Olivero did not make the required preponderance-of-the-evidence showing and her consent defense failed. Because the defense of acquiescence pertains only to what happened post-retention, the relevant period was  between mid-March 2011
and Darin's filing of the petition for return on December 19, 2011.  Acquiescence tends to require more formality than consent. When attempting to characterize ambiguous conduct as a basis for inferred acquiescence, courts employ a pure subjective intent inquiry. The subjective intent refers to the subjective intent of the parent who is claimed to have acquiesced. Olivero's primary argument was that the Affidavit evidences Darin's acquiescence to LAD remaining in the United States. This was a dead end. Acquiescence to LAD's retention in the United States could not be found in the plain language of the Affidavit, nor could the Affidavit be read to imply such. The district court was mistaken in concluding it did.  A reading of the Affidavit revealed no mention in the entire two-page document, express or implied, of establishing a new residence in, or permanently relocating to, the United States.  Also, the fact that the Affidavit contained open-ended terms was not evidence that Darin acquiesced to LAD remaining permanently in the United States. Both parties testified that they executed the Affidavit so Olivero could take care of LAD while Darin was away.  In light of the Affidavit's language and the parties' testimony as to their reasons for its execution, the Affidavit simply could not be read as a declaration of acquiescence, much less unconditional acquiescence, to the retention of the child in the United States. The defense of acquiescence calls for definiteness and clarity, i.e., a clear and unequivocal expression of an agreement or a convincing written renunciation of rights. The Affidavit fell far short.    Moreover, the Affidavit did not support the district court's alternative finding that it functioned as a renunciation of rights under the Convention.

    Olivero contended that Darin's acquiescence could be inferred from some of
his actions after he left Puerto Rico. She argued that Darin's filing of the  petition for return in December 2011 was inconsistent with Darin opposing LAD's relocation to the United States. That Darin took around five months to file the petition after he was back in Argentina was not enough to constitute acquiescence. The fact that Darin officially filed on December 19, 2011 did not mean he decided to pursue legal action on that day.    Furthermore, the Convention allows for a petition to be filed up to a year after the wrongful retention. See Convention, supra Article 12 at 1502. And even when a petition is filed after the one year period, there are instances where a federal court may still order a child's return. To say that Darin acquiesced because he filed within the time prescribed by the Convention is irrational. It would render the Convention's one year provision pointless. Darin had a full year to file his petition, and he did file within that year. In this particular instance, the passage of time between Darin's departure from the United States and his filing of a timely petition for return was not probative of acquiescence.

      Darin established wrongful retention by a preponderance of the evidence.
Because Olivero did not introduce sufficient evidence to establish Darin's consent
or acquiescence to this retention, the court  ordered the return of LAD to Argentina.

Mendoza v Silva, 2014 WL 658068 (N.D.Iowa) [Mexico] [ Attorneys Fees] [Clearly inappropriate]

In Mendoza v Silva, 2014 WL 658068 (N.D.Iowa)   Plaintiff Maria Guadalupe Aguilar Mendoza, a citizen of Mexico, filed an action pursuant to the Hague Convention to secure the return of her daughters, to Mexico. After the district court ordered Mr. Medina to transfer the minor children to Ms. Mendoza at the United States/Mexico border in Nuevo Laredo, Mexico, the case was before the district court on Ms. Mendoza's December 20, 2013, Motion For attorney's fees totaling $32,265.00 and expenses totaling $3,084.62.

Mr. Medina contended that no award of fees or expenses was appropriate because he believed (and still believes) in good faith that the parties had an agreement for the children to come to and remain in the United States to start school; the attorney's fees and costs claimed by Ms. Mendoza were not reasonable and, were  approximately three times his own attorney's fees; and he was earning only approximately $9.00 per hour, so that he could not possibly afford to pay any attorney's fees or expenses in this matter.

         The district court surveyed the relevant cases under  42 U.S.C. § 11607(b)(3) and observed that there is a relatively small, but significant group of decisions of the Circuit Courts of Appeals concerning the standards for awards of fees and expenses under these provisions. (Citing Hollis v. O'Driscoll, 739 F.3d 108, 113 (2d Cir.2014) ; Ozaltin v. Ozaltin, 708 F.3d 355, 377 (2d Cir.2013); Whallon v. Lynn,  356 F.3d 138, 140 (1st Cir.2004);  West v. Dobrev, 735 F.3d 921, 932 (10th Cir.2013). The appropriate standards for awarding fees and expenses in international child return cases are as follows: [Section] 11607(b)(3) retains what we have previously described as the  "equitable" nature of cost awards.  Moore v. County of Delaware, 586 F.3d 219,  221 (2d Cir.2009).... [A] prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of  equitable principles by the district court. Absent any statutory guidance to the  contrary, the appropriateness of such costs depends on the same general  standards that apply when "attorney's fees are to be awarded to prevailing  parties only as a matter of the court's discretion." Fogerty v. Fantasy, Inc.,  510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994)."There is no precise  rule or formula for making these determinations, but instead equitable
 discretion should be exercised in light of the [relevant] considerations."Ozaltin, 708 F.3d at 375.   The Circuit Courts of Appeals have also provided guidance on specific considerations that go into the district court's exercise of its discretion and equitable consideration of claims for fees and expenses in international child return cases. First, where the respondent "is not blameless for the current state of affairs," the Tenth Circuit Court of Appeals has held that an award of fees and expenses is not "clearly inappropriate."  West, 735 F.3d at 933.   On the other hand, where the respondent had a "reasonable basis for thinking at the time of removing the children to the United States ... that her actions were consistent with [the law of the country of habitual residence]," that belief, even if mistaken, "is a relevant equitable factor when considering whether a costs award is appropriate." Ozaltin, 708 F.3d at 375. Also, "[a]t least two courts of appeals have recognized that a fee award in a case under the Convention might be excessive and an abuse of discretion if it prevents the respondent-parent from caring for the child." Norinder v. Fuentes, 657 F.3d 526, 536 (2d Cir.2011) (citing  Whallon, 356 F.3d at 139, and  Rydder, 49 F.3d at 373-74).   Several district courts have not simply reduced awards of costs in light of a respondent's inability to pay, but have declined to award costs at all, where the losing respondent would be unable to pay any amount of an award, on the ground that any award would be "clearly inappropriate" in such circumstances.

      The district court concluded that it was "clearly inappropriate" to award any of Ms. Mendoza's claimed legal fees against Mr. Medina. The court found it to be a very close case. It believed that Mr. Medina had a mistaken, but nevertheless good faith belief that the parties had agreed that he would take the children to the United States where they would attend school. See  Ozaltin, 708 F.3d at 375. Just as importantly, it  found that Mr. Medina's financial circumstances made it "clearly inappropriate" to award any substantial amount of attorney's fees against him. Doing so would interfere with his ability to provide other support to his children. Mr. Medina earned approximately $9 per hour, and the record did not show that he had any other assets from which so large a fee award could be satisfied. However, with regard to Ms. Mendoza's claimed expenses it found that even considering Mr. Medina's financial condition, awarding some share of Ms. Mendoza's expenses is consistent with the goals of Article 26 of the 1980 Hague Convention and 42 U.S.C. § 11607(b)(3); and, in part, because Ms. Mendoza had some obligation to pay these expenses out-of-pocket, even if her legal representation was pro Bono.  It awarded her one-half of her claimed expenses, that is $1,542.31,against Mr. Medina.

Neergaard v Colon, 2014 WL 936691 (D.Mass.) [Singapore] [Habitual Residence] [Petition Granted]

In Neergaard v Colon, 2014 WL 936691 (D.Mass.) Petitioner Peter Moeller Neergaard, a Danish citizen, and respondent Lisette Neergaard Colon, a United States citizen, lived in Singapore with their two minor daughters, S.S. and L.A.  Petitioner and respondent were married. Petitioner worked for a software company in Singapore.. His employer expects him to work in Singapore for three years, beginning in June 2012. Respondent, who worked for the Boston Public Schools, requested an extension of her maternity leave through June 2015, the conclusion of the three-year period. The couple had two daughters, S.S., age 3, and L.A., age 2. The daughters were dual Danish and American citizens.   In December 2013, the parties and the children traveled to Denmark to celebrate Christmas. They agreed that on January 4, 2014, respondent and her children would fly to the  United States and remain here for two weeks. Respondent reserved seats for herself and the children on a return flight to Singapore on January 20, 2014, but they did not board the plane. Since that time, the parties were unable to resolve the situation among themselves. The remained in the United States. Petitioner filed a verified petition for immediate return of the children to Singapore pursuant to the Hague Convention. After a hearing the district court granted the petition. 

Respondent did not challenge the substantive allegations of the petition , nor did she allege that any of the  exceptions excusing the ordering of immediate return upon a finding of wrongful retention applied. The dispute  boiled down to the following question: what was the children's habitual residence immediately preceding the retention? If it was Singapore, the retention is unlawful. If it was the United States, it is lawful.

Petitioner contended that "[t]he parties' only shared intention was to leave the U.S. and reside in Singapore. The parties rented a house in Singapore and shipped their belongings there. They  opened a bank account and bought health insurance in Singapore. They enrolled S.S., their eldest daughter, in educational programs. Both daughters  lived in Singapore for the majority of their lives. They had regular "play dates" with friends there. Id. In short, "[t]he children have become  accustomed to life in Singapore since their arrival in June 2012.

Respondent contended that the parties understood that the move to Singapore 
was temporary; they did not agree to stay there beyond the three-year job assignment. Petitioner had obtained permanent resident status in the United States and met with an attorney to make sure the move to Singapore did not  compromise that status. They owned two condominiums in Boston, the second of which they purchased the week  before they moved.  Respondent did not extend her maternity leave beyond the end of the three-year assignment and intends to return to work at that time.   According to her, "[p]eople who share an intent to abandon the United States for a new home in Singapore do not behave in that manner.”

The district court found that the parties agreed to move to Singapore for three years, and the three-year period had not yet elapsed. "To establish an habitual residence, it is not necessary to have an intention to stay in a place indefinitely."  McManus v. McManus, 354 F.Supp.2d 62, 67 (D.Mass.2005). What is  required is a " 'sufficient degree of continuity to be properly described as settled.' "  Feder v. Evans-Feder, 63 F.3d 217, 223 (3d Cir.1995) (quoting re Bates, No. CA 122-89, High Court of Justice, Family Div'l Ct. Royal Courts of Justice, United Kingdom (1989)). Petitioner found work in Singapore and the parties settled there to live as a family, even if not indefinitely. They did what people who settle in a new place do: find a house, open financial accounts, establish medical care, and explore schooling options. Respondent's intention not to remain there cannot overcome this undisputed fact. The Court found that the parties' shared the intention that S.S. and L.A. reside in Singapore. The record showed that S.S. and L.A. had acclimated to Singapore.  Given the parties' shared intention to live in Singapore as a family and the degree to which  S.S. and L.A. have adapted to life there, the court found that  Singapore was the children's place of habitual  residence in January 2014 when respondent retained them in the United States, and granted the petition.