In Ortiz v. Martinez, 2014 WL 1409446 (N.D.Ill.) the district court denied the motion of Petitioner Julio Cesar Ortiz ("Ortiz") for a New Trial pursuant to Fed.R.Civ.P. 59, after his petition for the return of his minor children was denied. Ortiz brought a petition for the return of his two minor children, L.O. and A.O., who both resided in the United States with their mother Zulima Juarez Martinez ("Juarez") Respondent mother raised a defense under article 13 of the Convention, claiming that the children faced grave risk of harm because Ortiz had previously sexually abused his five-year-old daughter. Additionally, Juarez claimed the children desired to remain in the United States with her instead of being returned to Mexico with their father. The Court found that while Ortiz demonstrated by a preponderance of the evidence that L.O.
and A.O. were wrongfully removed to the United States by Juarez, the children were in grave risk of harm if they returned to their native county, Mexico, and that the child L.O. had attained an age and maturity at which it is appropriate to take into account of his child's views, that he desired to remain with his mother in the United States as an independent factor for denial.
The Court observed that a motion for new trial may be granted at the court's discretion "for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.” Because the court has discretion to grant a Motion for a New Trial, "a district court need not write a comprehensive opinion explaining why it denied a motion for a new trial; indeed, the judge need not give an explanation of any kind." Dunn v. Truck World, Inc., 929 F.2d 311, 313 (7th Cir.1991).
In this case, the Petitioner claimed that a new trial was warranted for two
reasons: (1) because the evidence that L.O. and A.O. were at a grave risk of danger because Ortiz sexually abused A.O was insufficient under a clear and convincing standard and (2) because the Court considered the wishes of the child sua ponte as outlined in Article 13(2)(d) of the Convention. The Court rejected both arguments.
The court noted that determining whether the child faces a grave risk of harm requires a fact based inquiry. Petitioner challenged the sufficiency of the evidence, arguing that the Respondent failed to offer documentary or physical evidence of sexual abuse. The court held that one does not have to provide documentary or physical evidence of sexual abuse when there is testimony that is corroborated by multiple witnesses. See Sylvester v. SOS Children's Villages Illinois, Inc., 453 F.3d 900, 903 (7th Cir.2006). The Court heard testimony from all the witnesses, including Dr. Machabanski, and credited the testimony of Juarez, which was corroborated by A.O., who was a bright child. During the court's interview with A.O., she stated that her father had done something bad "for not to tell mommy. It was a secret." When asked what was bad, she replied with words and gestures that he put his finger in her vaginal area while she was showering with him on more than one occasion. During the court's interview with Juarez, she stated that she noticed recurrent rashes on A.O.'s vaginal area shortly after she was born, so she took her to see a doctor who prescribed medication for diaper rash. However, the rashes reappeared in the summer of 2010. Additionally, when A.O. was about three years old, Juarez walked in on Ortiz when he was bathing his daughter. Juarez remembers that A.O. and Ortiz were both naked, and that A.O. was standing against the shower wall and Ortiz was kneeling in front of her with his right hand between her legs without soap or a towel. About a week after that, Juarez overheard A.O. telling her father not to touch her in her private parts anymore. This Court indicated that as the fact finder, the Court properly weighed the evidence and credibility of the witnesses and found that the children would face a grave risk of harm if ordered to return to Mexico. Petitioner failed to present any new facts or law to change the Court's holding.
The Petitioner claimed that the Court erred when it raised the ‘”wishes of the child” exception sua sponte, and that the burden was on the Respondent to raise such an exception. However, Petitioner ignored the language of the Convention, which specifically grants the court discretionary authority to avoid return based on the child's preference. This Court did not err by exercising its discretionary authority.
In Mauvais v Herissee, 2014 WL 1454452 (D.Mass.)) the district court granted the petition of Manel Mauvais for the return of his two minor children to Canada. The petitioner, and the respondent, Nathalie Herisse, were both citizens of Haiti. They had two children together: MM and RM. They lived together in Haiti until September 2009, when Herisse moved to her aunt's home in Mattapan, Massachusetts, so that the baby she was expecting would be born in the United States. Mauvais and MM remained in Haiti. RM was born in Boston in November 2009. After MM was born in France in 2005, Herisse returned to Haiti. A catastrophic earthquake devastated Haiti in January 2010. Mauvais and MM moved to Quebec, Canada in February 2010. Herisse was still living in Massachusetts with her aunt and new infant. She asked Mauvais to bring MM to Massachusetts, but he refused. In turn, he urged Herisse to join him in Canada. She testified he threatened to harm MM if she did not. In March 2010, Herisse reluctantly took RM to Canada. Mauvais, Herisse, their two daughters, and two of Mauvais's children from a prior relationship lived for a while in Montreal with Mauvais's sister and her family. In July 2010, Mauvais and Herisse moved into their own apartment with their two daughters and Mauvais's twin children. They lived together there until January 2011, when Herisse moved out, taking the children with her. The three first stayed with relatives, but in September 2011 they moved to a separate apartment in Montreal. In February or March 2012, Mauvais convinced her to allow him and his other children to move into her apartment. The children lived with their mother in an apartment in Montreal for about two years prior to the events that gave rise to the present petition. MM was enrolled in and attended a primary school beginning with the 2011-2012 school year, and was enrolled for the 2013-2014 school year when she was taken by the respondent to the United States. RM was enrolled in a full time day care program between the end of April 2013 and late August 2013. Both children visited regularly with relatives, apparently on both their mother's and their father's sides. With some of the father's relatives, they regularly attended church and Sunday school. According to an aunt, they developed a "Quebecois" accent when speaking French. In late August 2013, Mauvais consented to RM traveling to the United States for a month to live with Herisse's aunt in Mattapan, and the aunt traveled to Canada to take RM to Massachusetts.
In the fall of 2012, RM began to have some health problems, including frequent nosebleeds and weight loss. Herisse took her to various clinics but was not satisfied with the care RM received. Herisse decided that it would be best for RM, a U.S. citizen, to return to the U.S. to receive medical care. For that purpose, the parties agreed that Herisse's aunt could bring RM to the U.S. in late August 2013. Medical records from the Boston Medical Center in evidence indicate no major health issues. In the fall of 2013, RM was examined and treated for eczema, a tendency to experience nosebleeds, and mild anemia. For the latter, she was prescribed an iron supplement.
The parties' written agreement provided that RM would be returned to Canada around September 20, 2013. She was not returned as agreed. On September 13, 2013, the respondent left Canada with MM and traveled to her aunt's home in Massachusetts, where she and her two children remained.
The district court found that prior to the children's removal and retention in September 2013, that the parties both were content to have their children live in their existing setting in Canada. For approximately two years, the children lived in a settled, "acclimatized" way in Canada. The fact that one or both of the parties may have harbored some desire eventually to move to the United States did not undercut these conclusions. After Herisse had stopped living with Mauvais, she established her own household with the children in Montreal. The children attended school and participated in various social activities. Herisse's actions showed that even when she was not under Mauvais's control or influence, she chose to remain in Canada. That she subsequently had a change of heart and decided that the children would be better off living elsewhere was of no moment, as any such intent was not a shared one with Mauvais. It was noteworthy RM had spent almost her entire life, and MM about half her life, in Canada, and the evidence presented at trial showed that both she and MM had had sufficient time for acclimatization. The court found that Mauvais had proven that Canada was the habitual residence of the children at the time of their retention and removal and, consequently, that MM and RM were wrongfully removed or retained within the meaning of the Convention.
The respondent testified that the petitioner frequently acted toward her in a sexually abusive manner. She further testified that he insisted on sexual activity at times and under circumstances when the children were or could have been exposed to it. The testimony was general and vague, however, and it was difficult to draw any reliable conclusions about how frequently such conduct occurred or how significant any impact on the children might have been. She also testified that Mauvais's son, BM, who was a few years older than MM, was sexually assaultive toward her. One such incident occurred while the family was still living in Haiti. According to the respondent, when she reported the incident to the petitioner, he disciplined BM by beating him with a belt. The respondent's aunt testified about a similar incident a couple of years later in Canada. There was no evidence as to what, if any, discipline was meted out to BM for that occasion. The evidence in the nature of an opinion that RM and/or MM might suffer psychological harm if returned to Canada was unconvincing because it did not appear to be based on an indepth investigation, but rather on some office interviews and a review of hospital records that themselves did not disclose any grave medical or emotional issue. The evidence fell well short of supporting a finding of a grave risk of psychological harm. Herisse contended that MM and RM faced a grave risk of physical and psychological harm if they return to Canada. At trial, Herisse testified that Mauvais has sexually abused her for many years, that BM had acted in sexually inappropriate ways toward MM on numerous occasions, and that Mauvais has been violent toward BM. Herisse also argued that RM's medical issues might not be as adequately addressed in Canada as in the United States. Herisse relied heavily on the First Circuit's decision in Walsh, but in that case the court relied on "ample evidence" that the petitioner "has been and can be extremely violent and ... cannot control his temper," and that the petitioner had a history of violence toward others, including threats to kill a neighbor and a physical confrontation with his adult son. Walsh, 221 F.3d at 219-20. The petitioner in Walsh was also a fugitive who had demonstrated a "chronic disobedience of court orders."
The facts of this case were neither as dire nor as clear. Herisse admited that Mauvais had never harmed or attempted to harm MM or RM. Even after moving out in January 2011, Herisse took no steps to prevent Mauvais from having contact with their children. A general likelihood that serial spousal abusers may also eventually abuse
their children is insufficient to establish, by the requisite degree of proof, grave risk of physical or psychological harm to MM and RM. Further, as to RM's medical care, there was insufficient evidence that there is a grave risk that RM's medical condition could not be appropriately addressed in Canadian medical facilities.
In Pignoloni v Gallagher, 2014 WL 642596 (2d Cir 2014) Petitioner Fabrizio Pignoloni brought a petition pursuant to the Hague Convention seeking an order directing Respondent Luise Gallagher, the mother, to return their two minor sons, E.G.P. and A.T.P. to Italy. The district court denied the petition. The Second Circuit affirmed in a summary order.
Pignoloni was an Italian citizen and Gallagher was a United States citizen. They married in New York in 2005 and shortly thereafter moved to Italy. Their elder son, E.G.P., was born in New York, while their younger son, A.T.P., was born in Italy; both children lived nearly all their lives in Italy and were citizens of both Italy and the United States. Pignoloni and Gallagher continued to live together in Italy until approximately September 2010, when they signed a separation agreement which was “so ordered” by an Italian court. Pignoloni thereafter moved out of the family apartment. In April 2011, the parties signed a supplemental separation agreement which was then “so-ordered” by an Italian court. The agreement gave the parties joint custody of the children and imposed certain support obligations on Pignoloni. Pignoloni agreed to pay monthly child support and spousal support, and to pay the rent on the apartment in which Gallagher and the children lived. Paragraph O of the 2011 Separation Agreement, upon which the District Court heavily relied, provided conditions under which Gallagher might be permitted to remove the children from Italy. That paragraph read: (o) In case of non-payment of several monthly rent installments by Mr. Pignoloni resulting in lawsuits on behalf of the owners / or of non-bank-deposit for at least four months of the support for the children and for the wife and should the wife be unable, not having any type of income of her own, to support and maintain the children and herself, Mr. Pignoloni is willing to authorize the wife to return with the children to the United States to her family's home provided that the wife proves that she has found a job of her own.
On April 24, 2012, Gallagher traveled to New York with the two children. At the end of June 2012, Gallagher notified Pignoloni that she was remaining in the United States with the children. On July 3, 2012, Pignoloni filed his petition under the Hague Convention District Court held a bench trial. It found that Pignoloni had failed to meet his monthly spousal and child support and rent obligations, and that Gallagher was unable to support herself in Italy. The District Court denied the petition on two separate bases. First, it found that the removal of the children from Italy and their retention in the United States was not wrongful, because all of the conditions set forth in Paragraph O of the 2011 Separation Agreement had been met, giving Gallagher the right to change the children's habitual residence to the United States. Second, it found Pignoloni had given his prior consent in Paragraph O to the children's removal and retention, and therefore Gallagher had a valid affirmative defense under Article 13(a) of the Hague Convention.
On November 22, 2012, after the trial, but only two days before the District Court issued its decision, an Italian court modified the 2011 Separation Agreement and granted sole custody to Pignoloni. There was a pending motion before the Court to supplement the record with this Italian court decision. The District Court denied the petition on two separate bases: failure to make out a prima facie case and the affirmative defense of consent. Only the first basis relied on the 2011 Separation Agreement as establishing enforceable custody rights. The Italian court ruling, which altered the parents' custody rights prospectively, did not affect the analysis of their agreement in 2011. The Court stated that even if it were to grant Pignoloni's motion to supplement the record with the Italian court decision, it held that it would still affirm the District Court's decision as to consent. Accordingly, it denied Pignoloni's motion to supplement the record as moot.
The District Court found that Gallagher had proven by a preponderance of the evidence that Pignoloni consented to the children's removal. Specifically, it found that “Paragraph O constituted Petitioner's ex ante consent to Respondent's return to the United States, consent which is not rendered inoperable by Petitioner's ex post regret that he permitted Respondent to relocate his children to the United States under the terms of the court-ordered April 2011 Separation Agreement.” On appeal, Pignoloni argued that the words “is willing to authorize” could not be read to mean that he, in fact, authorized Gallagher to remove the children. Rather, he claimed, once the conditions in Paragraph O were met, Gallagher was required to seek his authorization and the approval of the Italian court system in order to return to the United States. This was unpersuasive. The District Court found that Paragraph O was a result of negotiations in which Gallagher accepted an 80% reduction in spousal support per month in exchange for this clause. It also credited Gallagher's testimony that she perceived the clause to be a safety net in the event of Pignoloni's failure to provide spousal and child support. The District Court's credibility determinations on these issues were not clearly erroneous. Furthermore, its interpretation of the 2011 Separation Agreement—based on Italian contract law and relying on Pignoloni's legal expert—were correct. For substantially the reasons stated by the District Court, it adopted its conclusions as to Paragraph O. The Italian court decision did not change this conclusion. The District Court's holding that Paragraph O effected Pignoloni's ex ante consent applied whether or not Paragraph O could modify the actual, legally enforceable custody arrangement between the parties. That was so because, on a plain reading of the agreement, Pignoloni consented to Gallagher's removal of the children if certain conditions came to pass. The District Court determined that those conditions did indeed come to pass. That was sufficient to prove, by a preponderance of the evidence, that Pignoloni had consented. Such a finding did not conflict with the Italian court decision.
Accordingly it affirmed the District Court's finding that Pignoloni consented to the children's removal and retention in Paragraph O of the 2011 Separation Agreement.
