Munoz v. Rivera, --- F.Supp.2d ----, 2013 WL 563419 (W.D.Tex.) [Mexico] [Grave Risk of Harm] [Petition Granted]

 In Munoz v. Rivera, --- F.Supp.2d ----, 2013 WL 563419 (W.D.Tex.) Petitioner Munoz was a citizen of the Republic of Mexico. Respondent Ramirez was a citizen of the United States. Petitioner and Respondent were the parents of A.R.R. The child was born in Chihuahua, Chihuahua, Mexico, in April, 2007. She was five years old.. Petitioner and Respondent were not married and had never been married to each

other, nor had they ever cohabited as spouses. On March 18, 2008, the parties officially added Respondent as the father of A.R.R. on the child's State of Chihuahua Civil Registry Birth Certificate. On March 19, 2008, the parties obtained a Consular Report of Birth Abroad of a Citizen of the United States from the U.S. Consulate in Ciudad Juarez, Mexico. A.R.R. was a dual citizen of the Republic of Mexico and the United States.

From birth until on or about a date between June 2011 and August 2, 2011, A.R.R. continuously lived with Petitioner in Chihuahua, Chihuahua, Mexico, with periodic trips to see her father and extended family in the United States. Before A.R.R.'s birth Petitioner moved to Chihuahua, Chihuahua, Mexico, from San Luis Potosi, Mexico, with her three children from a previous marriage: C.D.(age 15), L.G.(age 13), and M.J.(age 12). Petitioner continuously lived in Chihuahua, Chihuahua, Mexico, with all of her children since 2006. Petitioner and Respondent did not have a formal custody or visitation agreement. The parties had a verbal agreement as to visitation that Petitioner would always let Respondent take A.R.R. for visitation if Respondent promised to bring A.R.R. back. Petitioner freely allowed Respondent or Respondent's family members to take A.R.R. from Chihuahua, Chihuahua, Mexico, for visitation in the United States. Except for the last visit, at the conclusion of each visitation A.R.R. was returned to Petitioner's home in Chihuahua, Chihuahua, Mexico.

In early or mid-June of 2011, Respondent and Laura Ramirez (Respondent's sister) picked up A.R.R. from her home in Chihuahua, Chihuahua, Mexico, for a verbally-agreed period of visitation in the United States. The parties further agreed that A.R.R. would travel with Respondent or Respondent's family from Lenorah, Texas, to San Luis Potosi, Mexico, for Laura Ramirez' quinceanera scheduled on or about June 25, 2011. The parties also agreed that Petitioner and her children would travel from

Chihuahua, Chihuahua, Mexico, to San Luis Potosi, Mexico, to attend the quinceanera. On or about June 25, 2011, Petitioner, Respondent, A.R.R., and Petitioner's other children, all attended Laura Ramirez' quinceanera. Petitioner asserted that after the quinceanera, on or about July 1, 2011, she took all of her children, including A.R.R., from San Luis Potosi, Mexico, by bus back to her home in Chihuahua, Chihuahua, Mexico. Petitioner asserted that A.R.R. spent the entire month of July 2011 with her, and in her possession, in Chihuahua, Chihuahua, Mexico. , Respondent asserted that upon conclusion of the quinceanera A.R.R. went directly back to the United States from San Luis Potosi, Mexico, with Respondent's parents. Respondent asserted that A.R.R. had lived with Respondent in Lenorah, Texas, since his parents brought A.R.R. back to Lenorah, Texas, following the quinceanera. Respondent asserted that A.R.R. was with Respondent, and in Respondent's possession, for both July and August 2011. Respondent further asserted that the parties agreed that A.R.R. would be educated in the United States and begin school in September of 2011. Petitioner asserted that the parties agreed that A.R.R. would be educated in Chihuahua, Chihuahua, Mexico, and that she never gave permission for A.R.R. to begin school in the United States.

On or about August 21, 2011, Respondent spoke with Petitioner by telephone and informed Petitioner that he (Respondent) was not going to return A.R.R. to Mexico. Respondent told Petitioner he would bring A.R.R. back in December to visit. On or about August 24, 2011, Respondent enrolled A.R.R. in school in Texas. After Respondent communicated on or about August 21, 2011, that he was not returning A.R.R. to Mexico, Petitioner sought legal assistance from the Human Rights Center for Women, Inc., in Chihuahua, Chihuahua, Mexico. On August 31, 2011, Petitioner filed her Application for Return of Child with the Mexican Central Authorities. Petitioner filed suit in the Western District of Texas, Midland/Odessa Division, for Return of Child on July 19, 2012.

The Court found that the Petitioner established a prima facie case for return. The court found that the facts clearly indicated that both parents shared the intent that Chihuahua, Chihuahua, Mexico, was their child's residence prior to Respondent's taking of A.R.R. with Petitioner's consent, in early to mid-June 2011, to Lenorah, Texas, from Chihuahua, Chihuahua, Mexico. The Court determined that Petitioner never agreed to A.R.R. taking up habitual residence in the United States and never agreed to A.R.R. being enrolled in school in the United States, thus there was no shared parental intent to shift A.R.R.'s habitual residence from Mexico to the United States. See Mozes, 239 F.3d at 1076. The evidence pointed toward Respondent's retention and subsequent enrollment of A.R.R. in school in the United States as Respondent's unilateral action.

The Court determined that the State of Chihuahua, Mexico, in accordance with the Chihuahua Civil Code adheres to the legal doctrine of patria potestad. See Chih. Civ.Code, tit. 8, ch. 1, art. 388 et seq. "Pursuant to that doctrine both parents had joint custody rights. . Article 389 of the Chihuahua Civil Code details how an unemancipated minor child such as A.R.R. is under patria potestad ( parental authority) as long as a relative can exercise parental authority over the child in accordance with the law. Chih. Civ.Code, art. 389; Article 394 explains that even when a person who has patria potestad ( parental authority) over a child, but does not have possession of that child, that person still has the right to live with that child, unless the parent presents a danger to the child. Chih. Civ.Code, art. 394; Petitioner had been exercising patria potestad over A .R.R. since her birth in Chihuahua, Chihuahua, Mexico, in April 2007. See Chih. Civ.Code, art. 389. Although Petitioner had not been in physical possession of A.R.R. since on or about August 2, 2011, she still had patria potestad ( parental authority) under the Chihuahua Civil Code. See Chih. Civ.Code, art. 394. Based on the aforementioned, the Court found that Petitioner had rights of custody conveyed by patria poteststad under the laws of the State of Chihuahua, Petitioner proved by a preponderance of the evidence that Respondent retained A.R.R. in breach of Petitioner's rights of custody under the laws of the child's habitual residence-the Republic of Mexico. Petitioner's made out a a prima facie case for wrongful retention

of A.R.R. by showing that at the time of retention she was actually exercising her rights of custody or would have been exercising those rights but for the retention. Larbie v.. Larbie, 690 F.3d 295, 307 (5th Cir.2012); Convention art. 3(b). The Court pointed out that Courts apply a liberal approach when determining whether rights of custody were actually being exercised. Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 344-345 (5th Cir.2004) (citing Friedrich v. Friedrich, 78 F.3d 1060, 1065-66 (6^th Cir.1996)). To show failure to exercise custody rights, the removing parent must show the other parent has abandoned the child." Sealed Appellant, 394 F.3d at 344-345. Respondent made no showing that Petitioner abandoned her child.

Respondent asserted that there was a grave risk of physical and psychological harm if A.R.R. was returned to Petitioner; specifically, asserting that return would be to an intolerable situation. Convention, art. 13(b). Respondent argued that the following provided evidence that return would expose the child to physical or psychological harm or place the child in an intolerable situation: (1) the living environment in Chihuahua, Chihuahua, Mexico; (2) Petitioner's fear of break-ins of her home evidenced by her testimony that she has bars on her doors and windows; (3) Petitioner's extreme economic hardship when compared to Respondent's relative economic affluence; (4) Petitioner's severe financial stress evidenced by her bank records suggesting that Petitioner could not provide basic needs for A.R.R. or Petitioner's three other children; (5) Petitioner's inability to attend a pretrial hearing because she could not afford the cost of a Visa to travel to the United States; (6) a request for financial assistance made on the day before trial by the caretaker watching over Petitioner's other three children in Chihuahua, Chihuahua, Mexico, while Petitioner was in the United States attending these legal proceedings, seeking funds from Carmen Ramirez to purchase food for Petitioner's children; (7) alleged sexual abuse of Petitioner's other child, M.J.(age 12), by Petitioner's boyfriend Maximino Munoz, who lived with Petitioner and her children in their home in Chihuahua, Chihuahua, Mexico.

The court found that poverty and economic hardship are not relevant factors to use when determining whether a court should use its discretionary power in not returning a child to his or her country of habitual residence. A review of deliberations on the Convention revealed that "intolerable situation" was not intended to encompass return to a home where money is in short supply, or where educational or other opportunities are more limited than in the requested State. An example of an "intolerable situation" is one in which a custodial parent sexually abuses the child. If the other parent removes or retains the child to safeguard it against further victimization, and the abusive parent then petitions for the child's return under the Convention, the court may deny the petition. Such action would protect the child from being returned to an "intolerable situation" and subjected to a grave risk of psychological harm. Friedrich v. Friedrich, 78 F.3d 1060, 1068-69 (6th Cir.1996).

Respondent argued that return of A.R.R. to the child's country of habitual residence, the Republic of Mexico, would pose a grave risk of harm to A.R.R. as return would place A.R.R. in an intolerable situation because of an allegation that sexual abuse was committed against Petitioner's child, M.J. (age 12), by Petitioner's boyfriend, Maximino Munoz, who lived with Petitioner and her children in their home in Chihuahua, Chihuahua, Mexico. The facts revealed that Petitioner's daughter, M.J.(age 12), spoke with Respondent and alleged that Petitioner's boyfriend, Maximino Munoz, touched her in an inappropriate sexual manner. Respondent brought this allegation to the attention of Petitioner and then M.J.(age 12) told Petitioner about the alleged inappropriate touching. Maximino Munoz lived with Petitioner and her four children for approximately two years. At trial, Petitioner testified that M.J. (age 12) had been previously molested and raped by Petitioner's brother. Petitioner pressed charges against her brother, took M.J. (age 12) to a psychologist, therapist, a caseworker at school, and attended group therapy. The brother fled Chihuahua, Chihuahua, Mexico, and had never been prosecuted. After hearing the allegations against Maximino Munoz and upon the urging of Respondent, Petitioner made Maximino Munoz move out in late August 2011. Additionally, Petitioner entered M.J.(age 12) and the entire family into group therapy for approximately three to four months. Petitioner testified that Maximino Munoz was cleared of the allegations during therapy and that she allowed Maximino Munoz to move back into her home in December 2011. Both parties agreed that there were no allegations that Maximino Munoz ever inappropriately touched A.R.R., the subject of the Petition for Return. Respondent, did not present any actual evidence that Maximino Munoz has a history of sexually molesting children or that he actually inappropriately touched M.J.(age 12). Respondent testified that he had knowledge that Maximino Munoz was convicted of criminal charges for sexual assault of a minor, but he produced no evidence of any such conviction that might corroborate his testimony. Petitioner testified that she knew Maximino Munoz served time in prison for a marijuana conviction and was released in 2002. Her testimony indicated that she had information that there were previous legal proceedings against him involving molestation, but she made clear that she had no knowledge of a conviction for any such crime. Based on the evidence presented, Respondent did not meet the burden of proof to prove that A.R.R. would face a "grave risk" of harm by being placed in an intolerable situation upon return to the Republic of Mexico.

The Court found that Respondent failed to establish by a preponderance of the evidence that Petitioner consented to removal or subsequently consented or later acquiesced to A.R.R.'s retention and failed to establish that the "well settled into new environment" affirmative defense was available to Respondent. Petitioner's suit for Return of Child was filed on July 19, 2012, within one-year of A .R.R.'s wrongful retention on or about August 21, 2011.

Paulus ex rel. P.F.V. v. Cordero, 2013 WL 432769 (M.D.Pa.) [Dominican Republic] [Attorney Fees and Costs] [Pro Bono Counsel]

In Paulus ex rel. P.F.V. v. Cordero, 2013 WL 432769 (M.D.Pa.) Petitioner Alberto Eugenio Font Paulus's Motion for an Award of Attorneys' Fees and Costs was before the court. Respondent, Ana Virginia Vittini Cordero, argued that an award of attorneys' fees for Mr. Font Paulus's counsel would be clearly inappropriate because he was represented on a pro bono basis and a fee award would prevent her from providing for herself or her two minor children. Because she had not shown that it would be clearly inappropriate for the Court to order her to pay the necessary expenses incurred by or on behalf of Mr. Font Paulus in this matter, his motion was granted.

Mr. Font Paulus sought reimbursement of $7,251.57 in costs, $1,704 .50 of which he incurred and $5,547.07 of which was incurred by his New York counsel, Vanessa Nadal, Esq. and Tracy Schaffer, Esq. of Jones Day. He stated that he spent $1,704.50 on travel and lodging costs, including: (1) round trip airfare for his flights to and from the United States for the June 2012 hearing; (2) airfare for P.F.V.'s return flight to the Dominican Republic; (3) round trip bus fare to and from Wilkes-Barre, Pennsylvania for himself, his sister, and her husband (who served as a guide and translator) for the hearing; (4) round trip bus fare to and from Pennsylvania for himself, his sister, and her husband to pick up P.F.V.; (4) return bus fare to New York for P.F.V.; and (5) his lodging in Wilkes-Barre for the hearing.

Attorneys Nadal and Schaffer sought reimbursement of $5,547.07 for various necessary expenses incurred on Mr. Font Paulus's behalf in this matter, including: (1) lodging in Wilkes-Barre for the hearing; (2) certified English translations of the Dominican court orders and laws appended to the Petition and Spanish translations of the Petition and Memorandum of Law for Mr. Font Paulus to verify; (3) court filing fees; (4) a translator at the hearing; and (5) the courier service that obtained P.F.V.'s passport from the United States Marshals on Mr.Font Paulus's behalf and verified that Ms. Vittini Cordero had not fled with P.F.V. following her failure to answer Mr. Font Paulus's phone calls for three days following the Court's June 29, 2012 Order.

Ms. Vittini Cordero argued that Mr. Font Paulus's round trip flight from the Dominican Republic to the United States was unnecessary because he could have testified at the June 2012 hearing by telephone or video conference. However, the court found that federal courts have awarded successful ICARA petitioners airfare incurred in traveling to and from the United States to appear in court. See, e.g., Freier v. Freier, 985 F.Supp. 710, 714 (E.D.Mich.1997) (awarding $2,422.00 for Petitioner's round trip and minor child's one-way airfare); Guaragno v. Guaragno, No. 09-CV-187, 2010 WL 5564628, at * 5 (N.D.Tex. Oct. 19, 2010), aff'd, 2011 WL 108946 (N.D.Tex. Jan.18, 2011). Therefore, as Ms. Vittini Cordero had not shown that it would be clearly inappropriate to require her to pay for Mr. Font Paulus's airfare to and from the United States for the hearing, she was be ordered to reimburse him $555.80 for his reasonable and necessary air travel costs. The Court found that the $290.00 in airfare for P.F.V.'s return flight to the Dominican Republic, which Ms. Vittini Cordero had not challenged, was a necessary expense under ICARA.

Ms. Vittini Cordero maintained that the $1,944.00 for interpreting services and $2,111.51 for translation services incurred by Attorneys Nadal and Schaffer were not recoverable because neither the translators nor the interpreter were court-appointed. The court found that she failed to establish that an order requiring her to pay for interpreting and translation services incurred on behalf of Mr. Font Paulus in this matter would be clearly inappropriate. Many federal courts have awarded translation and translator costs to successful ICARA petitioners. See, e.g., Guaragno v. Guaragano, No. 09-CV-187, 2011 WL 108946, at *4 (N.D.Tex. Jan. 18, 2011) (awarding "reasonably and necessarily incurred and adequately documented" translator trial fees and costs of $3,788.75 and foreign document translation fees of $8,702.47); Blanc v. Morgan, 721 F.Supp.2d 749, 768 (W.D.Tenn.2010) (awarding "translation services ... and other incidental expenses contemplated by § 11607(b)(3)"); Neves v. Neves, 637 F.Supp.2d 322, 343-44 (W.D.N.C.2009) (awarding translation costs of $191.25); Antunez Fernandes v. Connors-Fernandes, 259 F.Supp.2d 800, 816-17 (N.D.Iowa 2003) (awarding translation costs of $717.75, including a translator for trial); Friedrich v. Thompson, No. 99-CV-772, 1999 WL 33954819, at *8 (M.D.N.C. Nov. 26, 1999) (awarding expenses for translation of documents from German to English). Ms. Vittini Cordero was ordered to pay for interpreting services and translation services.



Ms. Vittini Cordero contende that Mr. Font Paulus should not be awarded court costs on equitable grounds because he filed this action with unclean hands. The Court held that equitable defense unclean hands defense was inapplicable here. The United States Court of Appeals for the Third Circuit has held that applying "the unclean hands doctrine would undermine the Hague Convention's goal of protecting the well-being of the child, of restoring the status quo before the child's abduction, and of ensuring that rights of custody... of one Contracting State are effectively respected in the other Contracting States." Karpenko v. Leendertz, 619 F.3d 259, 265 (3d Cir.2010). Furthermore, court costs are explicitly mentioned in §11607(b)(3) as "necessary expenses incurred by or on behalf of the petitioner."

Ms. Vittini Cordero challenged the $500.00 in post-hearing investigatory and courier costs incurred by Attorneys Nadal and Schaffer. The court found these services were reasonable and necessary expenses incurred on behalf of Mr. Font Paulus and related to the return of P.F.V.,

The court determined the issue of reasonable attorneys' fees by the lodestar calculation, which entails multiplying the number of hours reasonably expended by each attorney by a reasonable hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The party seeking fees has the initial burden of presenting evidence that the claimed rates and amounts of time are reasonable. See Pennslyvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986). Once the fee applicant has made this initial showing, "the resulting product is presumed to be the reasonable fee to which counsel is entitled." The opposing party then has the burden of making specific objections to the proposed fee by affidavit or brief. In considering the opposing party's objections, the district court has significant discretion to adjust the lodestar downwards. The Court concluded that Attorney Macdonald-Matthes's figure was $16,380.00 (54.6 hours x $300.00 per hour). Attorney Nadal's figure was $8,910.00 (54 hours x $165.00 per hour). Attorney Schaffer's figure was $11,700.00 (45 hours x $260.00 per hour). When added together, these attorneys' fees, which were "necessary expenses incurred ... on behalf of the petitioner," totaled $36,990.00.



Ms. Vittini Cordero contended that "the integrity of awarding ... fees to counsel who agree to take a case as a pro bono matter is questionable." However, she  failed to establish that ordering her to pay attorneys' fees would be clearly inappropriate, as many federal courts have found counsel representing a successful ICARA petitioner on a pro bono basis are entitled to recover attorneys' fees. See Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir.2010) ("The fact that [successful ICARA petitioner's] lawyers provided their services pro bono does not make a fee award inappropriate."); see also Hamidas v. Hamidas, 720 F.Supp.2d 183, 209 (E.D.N.Y.2010) ("[T]he fact that the petitioner in this case was represented by pro bono counsel does not provide a basis for disregarding the Convention's fee provision."); Sullivan v. Sullivan, No. 09-545, 2010 WL 1651994, at *1 (D.Idaho Apr.20, 2010) ("[E]ven where a [successful ICARA] case is taken on a pro bono basis, the Petitioner is still entitled to recovery of reasonable attorney fees.") Accordingly, the Court rejected Ms. Vittini Cordero's argument..

Ms. Vittini Cordero also claimed that an award of $36,900.00 in attorneys' fees was clearly inappropriate because it would render her, a minimum wage earner and single mother of two children, unable to provide for herself or her children. The court held that while it may reduce a fee award in a Hague Convention case if it prevents the respondent-parent with straitened financial condition from caring for his child, a reduction on the account of straitened financial condition, will not be applied to litigation costs and out-of-pocket expenses...." Saldivar, 2012 WL 4497507, at *16 (citing Rydder, 49 F.3d at 374; Whallon, 356 F.3d at 139). Although Ms. Vittini Cordero claimed that an order requiring her to pay $36,990.00 in attorneys' fees would be "clearly inappropriate" due the financial strain it would place her and her minor children under, she failed to provide any evidentiary support for this position. The record was devoid of any evidence or documentation showing Ms. Vittini Cordero's employment status, income, or assets. Nor did it contain any evidence that she had two minor children and was their sole provider. Ms. Cordero was be ordered to pay $16,380.00 in fees to Attorney Macdonald-Matthes, $8,910.00 in fees to Attorney Nadal, and $11,700.00 in fees to Attorney Schaffer.

Gallardo v. Orozco, --- F.Supp.2d ----, 2013 WL 3803905 (W.D.Tex) {Mexico] [Habitual Residence] [Patria Potestad] [Petition Granted]

In Gallardo v. Orozco, --- F.Supp.2d ----, 2013 WL 3803905 (W.D.Tex) Petitioner Gallardo was a citizen of the Republic of Mexico and Respondent Orozco was a citizen of the United States. Petitioner and Respondent were the parents of G.G. who was born in Denton, Texas, in May of 2005. G.G. was currently 8 years old. Petitioner and Respondent were married in Las Vegas, New Mexico, on December 18, 2006.

 In 2007, Petitioner and Respondent relocated with G.G. from Los Alamos, New Mexico, to Puerto Penasco, Sonora, Mexico. Petitioner and Respondent had a shared intent to move G.G. from the United States to Puerto Penasco, Sonora, Mexico. Since 2007 when the entire family relocated to Puerto Penasco, Sonora, Mexico, from Los Alamos, New Mexico, until on or about July 26, 2012, G.G. continuously lived with Petitioner in Puerto Penasco, Sonora, Mexico.. Respondent lived with Petitioner and G.G. in Puerto Penasco, Sonora, Mexico, for approximately two years, until he moved to Midland, Texas. In 2008 Petitioner and Respondent attempted to reunite and relocate to the United States. Petitioner tried to return to the United States illegally and was arrested on December 29, 2008, while attempting to cross the Rio Grande near the port of entry at El Paso, Texas. Respondent was in the United States awaiting Petitioner's crossing. Petitioner served approximately twenty-one (21) days for her illegal re-entry after prior removal stemming from this arrest. Upon release from custody in January 2009, Petitioner was deported to Ciudad Juarez, Chihuahua, Mexico, where Respondent picked her up and returned her to Puerto Penasco, Sonora, Mexico. After Respondent drove Petitioner to Puerto Penasco, Sonora, Mexico, Respondent lived with Petitioner and G.G. for approximately seven months before
 moving permanently to Midland, Texas. G.G. remained in Puerto Penasco, Sonora, Mexico, with Petitioner. Petitioner and Respondent had a shared intent that G.G. remain with Petitioner in Puerto Penasco, Sonora, Mexico. Thereafter, Respondent's mother, who resided in Puerto Penasco, Sonora, Mexico, would bring G.G. to Midland, Texas, to visit Respondent during the summer while G.G. was on vacation from school. Petitioner consented to these trips. Each visit would last approximately one-to-two months. At the end of each scheduled visit G.G. would be returned to Puerto Penasco, Sonora, Mexico.. G.G. has attended school in Puerto Penasco, Sonora, Mexico, since the 2009-2010 school year. G.G. was enrolled in school in Puerto Penasco, Sonora, Mexico, for the 2012-2013 school year.

 Petitioner asserted that on or about July 25, 2012, Respondent came to Puerto Penasco, Sonora, Mexico, to have a few days of visitation with G.G. at his parents' home in Puerto Penasco. Petitioner asserted that she agreed to allow Respondent to have overnight visitation with G.G. at his parents' home and that Respondent was scheduled to return G.G. after a few days. Petitioner further asserted that instead of returning G.G. to Petitioner as scheduled, Respondent removed G.G. to the United States without her permission. In contrast, Respondent asserted that prior to arriving at Puerto Penasco, Sonora, Mexico, in late July 2012, Respondent arranged with Petitioner to take G.G. to Midland, Texas, for approximately a month to 45 days. It was Respondent's position that Petitioner agreed and consented to the visitation. Respondent asserts that before he took G.G. to Midland, Texas, the parties discussed the possibility of G.G. staying in the United States to attend school. Respondent asserts that Petitioner agreed to think about it, but did not agree at that time to allow G.G. to stay and attend school in Midland, Texas. Respondent asserted that Petitioner gave Respondent G.G.'s birth certificate. Respondent asserted that he agreed to return G.G. if Petitioner wanted G.G. returned and not enrolled in school in Midland, Texas. Respondent further asserted that after G.G. was in Midland, Texas, the parties continued to have discussions about enrolling G.G. in school. On July 31, 2012, Petitioner sent and Respondent received a text message informing Respondent that G.G.'s school in Puerto Penasco, Sonora, Mexico, started on August 20, 2012, and that G.G. needed to be back by that day. On August 22, 2012, Petitioner sent and Respondent received a text message demanding that Respondent return G.G. to her in Puerto Penasco, Sonora, Mexico. After Respondent received the text message from Petitioner demanding G.G.'s return, Respondent told Petitioner that he was going to enroll G.G. in school in Midland, Texas. Petitioner objected to Respondent enrolling G.G. in school in Midland, Texas. G.G. started school in Midland, Texas, on August 27, 2012.

 The court observed 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." The inquiry balances the interest of the child with the parents intentions, but gives greater weight to the parents' subjective intentions when the child is relatively young and incapable of deciding residency.

 The court found that the facts indicated that both parents shared the intent that Puerto Penasco, Sonora, Mexico, was their child's residence prior to Respondent's taking of G.G. to Midland, Texas, with or without Petitioner's consent, in late July of 2012. Petitioner established that in 2007, Respondent and Petitioner, together, moved their child G.G. to Puerto Penasco, Sonora, Mexico, from Los Alamos, New Mexico. After relocating to Puerto Penasco, Sonora, Mexico, Respondent lived in Mexico with Petitioner and G.G. for approximately two years. The parents' mutual decision to move their child to Mexico from the United States and relocate to Puerto Penasco, Sonora, Mexico, provided strong evidence of shared parental intent in 2007 to make the Republic of Mexico their child's country of habitual residence. Additionally, Respondent moved permanently to Midland, Texas, in 2009, leaving G.G. with Petitioner in Puerto Penasco, Sonora, Mexico. Even though no formal custody agreements existed, the parties arranged visitation. Respondent's mother who resided in Puerto Penasco, Sonora, Mexico, would bring G.G. to Midland, Texas, to visit Respondent during the summer while G.G. was on vacation from school. Petitioner allowed G.G. to go on these trips to visit Respondent and each visit would last approximately one to two months. At the end of each scheduled visit G.G. would be returned to Puerto Penasco, Sonora, Mexico. The parents' decision for G.G. to remain in Puerto Penasco, Sonora, Mexico, with summer visitation in the United States, also provided strong evidence of shared parental intent that the Republic Mexico was G.G.'s country of habitual residence.

 The question remained whether G.G.'s habitual residence was abandoned, thus changing from Puerto Penasco, Sonora, Mexico, to the United States. The threshold test for determining whether the parties intended for G.G. to " 'abandon the [habitual residence] left behind' " was whether both parties shared that intention. Larbie, 690 F.3d at 310-11. "[I]n the absence of settled parental intent, courts should be slow to infer from such contacts that an earlier habitual residence has been abandoned." Mozes, 239 F.3d at 1079. Without shared parental intent the " 'prior habitual residence should be deemed supplanted only where the objective facts point unequivocally to this conclusion.' " Larbie, 690 F.3d at 311. In cases such as this in which the parties no longer agree where the child's habitual residence is fixed and "the representations of the parties cannot be accepted at face value ... courts must determine from all available evidence whether the parent petitioning for return of a child has already agreed to the child's taking up habitual residence where it is." Mozes, 239 F.3d at 1076.

 After an exhaustive review of all available evidence the Court determined that Petitioner never agreed to G.G. taking up habitual residence in the United States and never consented to G.G. being enrolled in school in the United States. There was, therefore, no shared parental intent to shift G.G.'s habitual residence from Mexico to the United States. The evidence pointed toward Respondent's retention and subsequent enrollment of G.G. in school in the United States as Respondent's unilateral action.

 Petitioner satisfied the threshold requirement for cases arising under the Convention by establishing that the child's country of habitual residence prior to removal or retention was the Republic of Mexico. Petitioner proved by a preponderance of the evidence that Respondent removed or retained G.G. in the United States, "somewhere other than the child's habitual residence." The State of Sonora, Mexico, in accordance with the Sonora Civil Code adheres to the legal doctrine of patria potestad. See Son. Civ.Code, tit. 8, ch. 1, art. 578 et seq.; "Pursuant to that doctrine both parents have joint custody rights." The Court found that Petitioner had rights of custody conveyed by patria potestad under the laws of the State of Sonora, Mexico. Petitioner proven by a preponderance of the evidence that Respondent removed or retained G.G. in breach of Petitioner's rights of
 custody under the laws of the child's habitual residence-the Republic of Mexico and that such at the time of removal or retention she was actually exercising her rights of custody or would have been exercising those rights but for the removal or retention. Larbie v. Larbie, 690 F.3d 295, 307 (5th Cir.2012); Convention art. 3(b).).

 Respondent Orozco pleaded the grave risk affirmative defense. Respondent elicited testimony from Petitioner admitting that she worked late hours at a casino. In addition, Respondent questioned whether Petitioner works, or had worked in the past, as a prostitute. Petitioner denied the allegations of prostitution and no other evidence of such activities was placed before the Court. Respondent's argument that return of G.G. to the child's country of habitual residence, the Republic of Mexico, would pose a grave risk of harm to G.G. because of Petitioner's work at a casino and unsupported allegations of prostitution fell extremely short of reaching the high threshold necessary to establish the grave risk of harm affirmative defense.

 Respondent pleaded, and argued at trial, that Petitioner consented or subsequently acquiesced to Respondent removing G.G. from Puerto Penasco, Sonora, Mexico, to Midland, Texas. When examining a consent defense, a court considers what the petitioner actually agreed to when allowing the child to travel outside of its country of residence and the scope of the petitioner's consent. Larbie, 690 F.3d at 309. In contrast, the "acquiescence [defense] addresses whether the petitioner subsequently agreed to or accepted the removal or retention." When examining an acquiescence defense, "'each of the words and actions of a parent during the separation are not to be scrutinized for a possible waiver of custody rights.' " Simcox v. Simcox, 511 F.3d 594, 603 (6th Cir.2007). The defense of acquiescence 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, 78 F.3d at 1070. Respondent's affirmative defense of consent failed on his own testimony. Respondent's argument that Petitioner acquiesced to the removal or retention of G.G. in the United States also fell short. There was no evidence before the Court that Petitioner subsequently acquiesced to G.G.'s removal or retention in the United States.

 Respondent asserted that G.G. objected to being returned, and should not be returned to Petitioner in Puerto Penasco, Sonora, Mexico. The court undersigned met in camera with G.G., who had recently turned 8 years old. The Fifth Circuit has previously held that a 13 year-old child did not meet the degree of maturity required to object and determine where he/she wanted to live. In the Courts opinion GG was not of sufficient age and maturity for the Court to take into account her objection to being returned to Mexico.

 The Court granted the petition. 

Mlynarski v. Pawezka, --- F.Supp.2d ----, 2013 WL 1150310 (D. Mass, 2013) [Poland] [Grave Risk of Harm] [Petition Granted]

 In Mlynarski v. Pawezka, --- F.Supp.2d ----, 2013 WL 1150310 (D. Mass, 2013) Petitioner filed a motion for an order to return his minor son to Poland after Respondent removed him and brought him to Massachusetts. Petitioner and Respondent were the biological parents of A.M., who was born on April 2, 2007. Although Petitioner and Respondent were never married, they resided in the same home in Poland, in the later stages of Respondent's pregnancy and until August 2, 2007, when Respondent left with A.M. and moved in with her aunt in the same town. Respondent testified that before she "escaped" from the residence (Petitioner's parents' house), Petitioner held her captive in the basement where she was only able to eat the eggs and jam stored there. She also testified that during these several months Petitioner verbally and physically abused her and sexually abused the infant A.M.


Within months of leaving the residence, Respondent sought child support through the Polish court and began receiving approximately $100 per month. In or around February of 2008, however, a custody dispute arose. Petitioner filed an action to regulate his contact with A.M., while Respondent, represented by counsel, countersued to terminate Petitioners parental rights. In August of 2008, the Polish court received a psychological report from the Diagnostic and Consultation Family Center, which had conducted evaluations of Petitioner and Respondent at the court's request. he report indicated that, while Respondent was socially and emotionally immature, suffered from extreme helplessness, and made decisions regarding A.M. based on her emotions rather than his developmental needs, she fulfilled her duties as a mother and had a great bond with As to Petitioner, the report stated that he could control his behavior but that he did not perceive, understand, or take responsibility for his own mistakes; the report also indicated that Petitioner had a high self-evaluation. The report concluded that, because of Respondents "low level of social and emotional maturity" and her resulting inability to "fully understand the minors needs," Petitioners contact with A.M. was "indispensable." However, considering Petitioners own "low level of social maturity" and "susceptibility to taking psychoactive substances," the report recommended that Petitioners visits with A.M. be facilitated in a controlled environment accompanied by the presence of a supervising court monitor. On February 19, 2009, after Respondent withdrew her request to terminate Petitioner's parental rights, the Polish court granted Petitioner supervised visitation with A.M. at specified dates and times. Following that order, the parties continued their ongoing legal battle over their respective rights. Petitioner continued to seek the enforcement of the order regulating his contact with A.M., while Respondent continued her efforts to limit Petitioner's parental authority.

In July of 2009, Respondent, after claiming that her intention was to bring A.M. to the United States for a short holiday visit, received permission from the Polish court to obtain a passport for him. In March of 2010, after learning that Respondent applied for a permanent immigrant visa for A.M. as a child of a United States citizen—Respondent had become a United States citizen when, as a thirteen-year-old and living here, her father became a citizen—Petitioner sought to reverse the court's decision. On March 15, 2010, the Polish court—concerned that there was a "high probability" that A.M. would stay in the United States permanently without Petitioner's consent—issued an order prohibiting Respondent from taking A.M. outside Poland until at least the completion of the court proceedings. Despite that order, Respondent left with A.M. and brought him to the United States on April 4, 2010. On March 23, 2011, Petitioner initiated the present action seeking A.M.'s return to Poland.

Respondent, appealed the Polish court order prohibiting her from leaving Poland and traveling with A.M. to the United States. On June 16, 2011, the Court of Appeals in Poland denied Respondents appeal, citing Petitioners interest in maintaining ties with his son; the court found that both parents "are entitled to parental authority over [A.M.] and each of them is obliged and also entitled to exercising the same."

There was no question but that (1) A.M. was a habitual resident of Poland at the time of his removal, (2) Petitioner had "rights of custody" at the time, and (3) was actually exercising those rights.
Respondent claimed that there would be a grave risk of physical and psychological harm to A.M. were he to be returned to Poland. The court observed that a "grave risk" means a "more than serious" risk; Respondent claimed that Petitioner "sexualized" A.M. from the time of his birth in April of 2007 until she moved out of Petitioners home in August of that year. Respondent submitted photographs Petitioner allegedly took of A.M.'s genitals when he was only several months old as well as a brief video (taken by Respondent) showing Petitioner, wearing one of Respondents dresses, gently swinging A.M. in his arms. Respondent also testified that Petitioner would suck on A.M.'s penis when he cried in order to calm him, claiming this to be a Native American practice. She testified as well that Petitioner, when they resided together, often was under the influence of drugs when he cared for A.M. and, as a result, posed a risk to his safety. The court pointed out that the First Circuit has held that sexual abuse by a parent is an example of an Article 13(b) defense justifying non-return. Danaipour, 286 F.3d at 16. Drug use, under certain circumstances, also may qualify as grave-risk conduct. The evidence proffered by Respondent with regard to Petitioner's drug use includes her own testimony and the psychological report provided to the Polish court. The report indicated that Petitioner had a "susceptibility to taking psychoactive substances," smoked marijuana occasionally, but had ceased doing so in August of 2007 when asked by Respondent. The court credited that evidence accordingly. Respondent's allegations of sexual abuse, on the other hand, were far less persuasive. There was no mention of such abuse in the psychological report issued to the Polish court. Granted, Respondent testified that she was reluctant to bring this to the attention of the psychologist, but nonetheless the fact remains that no such information is contained in the report. Second, certain of Petitioner's photographs of A.M. while an infant, although questionable, do not amount, in the court's opinion, to sexual "abuse." Third, the allegations of Petitioner's engaging in what he described as a "Native American" practice, if practice it be, are disturbing but nonetheless vague and uncorroborated; had Respondent been as concerned about this at the time as she is presently, it was curious that she did not insist on sharing that information with the investigating psychologist. Most importantly, Respondent did not testify to or set forth any probative evidence to support her contention that, were A.M. to return to Poland, he would "certainly be at risk for more of the same type of abuse."

Respondent argued the court should consider the "well-settled" doctrine in the context of her grave risk argument. In support, Respondent cited Blondin v. Dubois, 238 F.3d 153, 164 (2d Cir.2001), which held that a court may consider evidence that the child is "so deeply rooted in the United States" that there would be a grave risk of psychological harm if the child were to be returned to the home country. The First Circuit, however, in a ruling which is binding on the court, had chosen to "disregard the arguments that grave risk of harm may be established by the mere fact that removal would unsettle the children who have now settled in the United States." Walsh, 221 F.3d at 222 n. 14. "That," the First Circuit stated, "is an inevitable consequence of removal."


Respondent's one remaining justification to remain in the United States was her concern that the Polish court system is ill-prepared to protect A.M. In support, Respondent cited a report prepared by the United States Department of State that discusses Poland's problems with domestic violence against women and low conviction rates in cases involving incidents of child abuse. This was evidence of the weakest sort. The court was not convinced that the report sufficiently demonstrated that the Polish court system was incapable of enforcing its visitation orders or of protecting A.M. from abuse during the pendency of the parties' dispute.

Respondent asserted that Petitioner "acquiesced" to A.M.'s living in the United States by his complete lack of communication or even an attempt to communicate with [Respondent], the child, or any member of [Respondents] extended family here in the United States. Respondent claimed that even though Petitioner had her relatives contact information in the United States and her own email addresses, he made no effort to contact them. Respondent's argument was not persuasive. Even if her assertions were true, a lack of communication, by itself, is not sufficient to establish that it was Petitioners subjective intent to acquiesce to A.M.'s living in the United States. Even if credited, Petitioners lack of communication was at best an ambiguous indication of his intention to allow A.M. to permanently reside in the United States.