Sanchez-Londono v. Gonzalez, 752 F.3d 533 (1st Cir., 2014) [Colombia] [Habitual Residence] [Petition Denied]

In Sanchez-Londono v. Gonzalez, 752 F.3d 533 (1st Cir., 2014) the mother claimed that Respondent–Appellee Nelson González (the “father”) wrongfully retained their daughter, E.G., in the United States and sought an order requiring the child's return to Colombia, where E.G. lived with her mother for two-and-a-half years. The district court found that no wrongful retention of E.G. occurred under the Hague Convention because the United States was E.G.'s place of habitual residence. The First Circuit affirmed. 

The mother was a citizen of Colombia who, in 2004, entered the United States illegally. The father came to the United States from the Dominican Republic and became a naturalized U.S. citizen in April 2000. They married on December 20, 2005. In October 2006, the couple's daughter, E.G., was born in Massachusetts. E.G. was a citizen of both the United States and Colombia. After E.G. was born, the family lived together in Framingham, Massachusetts, for more than two years. The mother was stopped for a traffic violation in 2008, prompting concerns that she would be identified as an illegal immigrant and deported. The couple agreed that the mother temporarily would move back to Colombia. From there, they believed she would have a better chance of obtaining legal residency in the United States. The parents agreed that the mother would take E.G. back to Colombia with her, and that the mother, E.G., and her older daughter, C.A. would all move to the United States once the mother obtained legal status. The mother and E.G., who was two years old at the time, moved to Colombia on December 7, 2008. What was intended to be a short stay in Colombia turned into a stay of two-and-a-half years. While the mother and E.G. were living in Colombia, the father worked on petitions seeking permission for the mother and C.A. to enter the United States legally. He filed a petition for the mother in January 2009 and for C.A. in December 2009. C.A.'s petition was granted on December 30, 2010. The mother's petition was denied because she had previously entered the United States illegally and therefore was excluded from reentering for ten years. Believing that the father would take good care of both girls and that it would improve her chances of obtaining a waiver if both of her daughters were living in the United States, the mother agreed to let both C.A. and E.G. move to the United States. The father returned to Colombia to pick up the girls, and he flew with them  back to the United States on May 28, 2011. E.G. was approximately four-and-a-half years old at the time. When the father and girls arrived in the United States in May 2011, they lived in the father's residence in Framingham, Massachusetts. In December 2011, the father informed the mother that he would be sending C.A. back to Colombia.  The mother demanded that he also return E.G., who was then five years old, but the father refused. The mother's suspicions of an affair were confirmed when she spoke with C.A. upon C.A.'s return to Colombia in February 2012.  According to the mother, the father cut off all communication between her and E.G. from December 2011 until October 2013. He obtained a new phone number in February 2012, filed for divorce on April 4, 2012, and in May of 2012, he moved from Framingham to Quincy, Massachusetts, with E.G. and McShane. The father did not inform the mother of the move or of their new address, thereby interfering with her ability to communicate with her daughter. When E.G. began kindergarten at a school in Quincy in the fall of 2012, the father did not give the school the mother's contact information. On November 21, 2012, the Middlesex Probate and Family Court granted the father's uncontested petition for divorce, giving him sole legal and physical custody of E.G. The father married McShane after the divorce, and on January 2, 2013, the pair wrote an e-mail to the United States Citizenship and Immigration Services (“USCIS”) asking that the mother's immigrant visa petition be terminated. The e-mail explained that the parents had divorced and that the father no longer supported the mother's request.

The mother filed a petition for E.G.'s return in the district court on May 3, 2013. The district court denied the mother's petition for E.G.'s return. The court found that the date of E.G.'s retention was December 2011, when the mother demanded E.G.'s return to Colombia and the father refused. The district court also found that immediately prior to December 2011, the shared intent and settled purpose of both parties was that E.G. live in the United States, as neither parent had intended that E.G. abandon her habitual residence there. While the court found that E.G. had been acclimatized to Colombia by the time that she left in May 2011, it also found that at the time of her retention in December 2011, E.G. was acclimatized to the United States. Thus, the district court concluded that E.G.'s habitual residence was the United States at the time of her retention, and that her retention was not wrongful under the Hague Convention. 

  The First Circuit noted that in this case, the only factor in dispute was first factor: whether Colombia was E.G.'s habitual residence immediately prior to her retention in the United States in December 2011. This factor was critical, because if the state in which a child is retained was also the child's place of habitual residence immediately prior to retention, that retention is not wrongful under the Hague Convention. Although the Hague Convention does not define the term “habitual residence,” the court had adopted an approach that “begins with the parents' shared intent or settled purpose regarding their child's residence.” Nicolson v. Pappalardo, 605 F.3d 100, 103–04 (1st Cir.2010). As a secondary factor, “evidence of a child's acclimatization to his or her place of residence may also be relevant.” Neergaard–Colón, 2014 WL 2111307, at *2, 752 F.3d at 530. The Court began its analysis with the critical issue of shared intent. Because young children like E.G. lack both the material and psychological means to decide where they will reside, the Courts inquiry focuses on the shared intent or settled purpose of the parents, who are entitled to determine the child's place of habitual residence. Specifically, the Court  must determine the intent of the parents at the latest time that their intent was shared, recognizing that the unilateral wishes of one parent alone are not sufficient to change a child's habitual residence.   Additionally, it must distinguish between the abandonment of a prior habitual residence and the acquisition of a new one. A person cannot acquire a new habitual residence without forming a settled intention to abandon the one left behind. Otherwise, one is not habitually residing; one is away for a temporary absence of long or short duration. 

In this case the district court determined that it was the shared intent and settled purpose of the parties that E.G. live in the United States, and that they did not intend to abandon their habitual residence in the United States in favor of Colombia. The First Circuit found that the  mother testified that she never discussed the possibility of the father moving to Colombia, that both parties agreed in 2011 that E.G. should be in the United States, and that she agreed that the father could raise E.G. in the United States. There was  ample record support for the district court's factual finding that “[t]here was no condition, agreed or otherwise, that E.G. would return to Colombia if [the mother] could not gain admission into the United States.”  Both parties intended for the separation of daughter and mother to end with the mother's return to the United States, not with E.G.'s return to Colombia.The record revealed that the district court's finding was not clearly erroneous. The mother testified under oath that she would still move to the United States to be with E.G. if allowed entry, and she did not request that the father return E.G. to Colombia until December 2011. By that time, nearly seven months had passed without any change in the mother's immigration status, and roughly four months had passed since she first suspected that her husband was engaged in an extramarital affair. Neither realization prompted her to request E.G.'s return prior to the father's announcement that he was sending back C.A. in December 2011.Finding no error—clear or otherwise—in the district court's reasoning and review of the record, the court upheld its factual finding that the parties' shared intent was that E.G. habitually reside in the United States.

The First Circuit observed that in addition to shared parental intent, factors evidencing a child's acclimatization to a given place—like a change in geography combined with the passage of an appreciable period of time—may influence our habitual-residence analysis. Typically, evidence of acclimatization is not enough to establish a child's habitual residence in a new country when contrary parental intent exists.  Nevertheless, it may be possible for a child to obtain a new habitual residence without such shared intent in certain limited circumstances. A child can lose its habitual attachment to a place even without a parent's consent if the objective facts point unequivocally to a person's ordinary or habitual residence being in a particular place.  

In this case, the district court recognized that after more than two years in Colombia, E.G. had acclimatized to that country by the time she left it in May 2011. Noting that the date of retention was December 2011, however, the district court concluded that by that time, E.G. was once again acclimatized to the United States. E.G. had spent time with her father and half-sisters in Massachusetts, she went on trips to the park and to the swimming pool with a family friend from church, and she had been attending daycare in Massachusetts for nearly four months. Thus, the district court concluded that E.G.'s return to the United States and her acclimatization there, coupled with the parents' shared intent that E.G. live permanently in the United States, established that the United States was E.G.'s habitual residence at the time immediately prior to her retention.

The mother  argued that had the district court properly found that Colombia was E.G.'s habitual residence in May 2011, it should have been slow to find that her habitual residence in Colombia had been abandoned in favor of the United States by December 2011.The First Circuit found that this argument cut against the mother's position.  A district court should be “slow to infer” that an earlier habitual residence has been abandoned in favor of a new one, in the absence of shared parental intent.  It held that  was precisely the approach taken by the district court in this case. In the absence of shared parental intent to abandon habitual residence in the United States, the district court was quite correctly slow to infer that E.G.'s earlier habitual residence in the United States had been abandoned. Thedistrict court found, and the record supported, that then-five-year-old E.G. had acclimatized to life in the United States by December 2011. This fact, coupled with the finding of shared parental intent that E.G. live permanently in the United States, showed that E.G.'s habitual residence immediately prior to her retention was the United States. Accordingly, E.G.'s retention in her place of habitual residence was not wrongful under the Hague Convention, and the district court properly denied the mother's petition for the return of E.G. to Colombia.

Sealed Appellee v Sealed Appellant, --- Fed.Appx. ----, 2014 WL 3585835 (C.A.5 (Tex.)) [Mexico] [Habitual Residence] [Petition Granted]

In Sealed Appellee v Sealed Appellant, --- Fed.Appx. ----, 2014 WL 3585835 (C.A.5 (Tex.))   Plaintiff-Appellee A.V. filed a petition under the Hague Convention seeking the return of her child, M.V., to Mexico. Plaintiff-Appellee alleged that Defendant-Appellant, M.A.V., unlawfully abducted their minor child when he removed M.V. from Mexico and took M.V. to the United States on June 16, 2012. The district court found that M.V. had been wrongfully removed to the United States and ordered Respondent-Appellant to return M.V. to Mexico. The Fifth Circuit affirmed in a Per Curiam opinion.   The only issue on appeal was whether the district court correctly determined that Mexico, and not the United States, was M.V.'s habitual residence for the purposes of the Convention. Applying the decision in  Larbie v. Larbie, 690 F.3d 295 (5th Cir.2012), the district court found that the parties manifested a shared intent for M.V. to abandon the United States as her habitual residence and to remain in Mexico indefinitely. The Court of Appeals held that the district court's finding that Mexico was M.V.'s habitual residence at the time of M.V.'s removal was supported by sufficient and compelling evidence. The district court based its decision in part on the credibility of both Petitioner and Respondent. The Fifth Circuit stated that it affords credibility determinations great deference upon appellate review. See  Gitter v. Gitter, 396 F.3d 124, 133 (2d Cir.2005) ("[T]he court's task [is] to determine the intentions of the parents as of the last time that their intentions were shared. Clearly, this is a question of fact in which the findings of the district court are entitled to deference.") It rejected Respondent's argument that the district court should not have considered the parties' actions surrounding M.V.'s move to Mexico is unavailing. Since Larbie's shared intent standard is a fact-based inquiry, the district court properly considered the events surrounding the parties' agreement to move M.V. to Mexico when making its habitual residence determination. See  Gitter, 396 F.3d at 134 ("In making [the shared intent] determination the court should look, as always in determining intent, actions as well as declarations."); see also  Larbie, 690 F.3d at 310 (noting that the inquiry into a child's habitual residence "is a fact-intensive determination that necessarily varies with the circumstances of each case").

Neergaard-Colon v Neergaard, --- F.3d ----, 2014 WL 2111307 (C.A.1 (Mass.))[Singapore] [Habitual Residence] [Remanded]

In Neergaard-Colon v Neergaard, --- F.3d ----, 2014 WL 2111307 (C.A.1 (Mass.))
Respondent Lisette Neergaard-Colon ("mother") and Petitioner Peter Moeller Neergaard ( "father") had two young daughters, S.S.N. and L.A.N. Although both girls were born in the United States, they lived abroad with their parents for approximately a year and a half after their father's employer temporarily relocated him to Singapore in June 2012. The family's time in Singapore ended in January 2014 when the mother traveled with the children to the United States and refused to return. As a result, the father filed a petition for the return of the children to Singapore. The District Court granted the father’s petition. The Court of Appeals reversed and remanded for a further hearing, finding that the district court erred by determining that the children's place of habitual residence was Singapore without first considering whether the parties intended to retain their habitual residence in the United States while living abroad for a temporary period of fixed duration.
  
      The mother, a citizen of the United States, and the father, a citizen of Denmark, married in Massachusetts in 2011 and their daughters were born in Massachusetts in February 2011 and February 2012.    At some point in late 2011 or early 2012, the father's employer informed him that it wanted to relocate him temporarily to Singapore for a three-year assignment. In June 2012, the family packed up their things and moved to Singapore, where they rented an apartment. The father obtained an employment pass authorizing him to work in Singapore through 2015, and the mother and children each received a dependant's pass. While in Singapore, the father was paid by the Singapore-based entity Ab Initio Software Private Limited.   The family obtained health insurance in Singapore through the father's employer, and the parties opened a bank account there. They also found pediatricians for their daughters, arranged play dates, and purchased a Singapore Zoo membership. The older daughter, S.S.N., was enrolled in parent-accompanied "EduPlay" classes, and the parents looked at a few Singapore preschools.    During their time in Singapore, the parents retained ownership of their two properties in Boston. Singapore. They rented both properties to tenants on one-year leases. They kept open their bank accounts and retirement accounts in the United States, as well as their credit cards issued by U.S. banks. The mother preserved her position with Boston public schools by requesting a three-year extension of her maternity leave, and the father maintained his green-card status.

The First Circuit Court of Appeals observed that in determining "habitual residence" it begins with the parents' shared intent or settled purpose regarding their child's residence. While intent is the initial focus, evidence of a child's acclimatization to his or her place of residence may also be relevant. In this case the father presented a claim of wrongful retention. It noted that the Hague Convention only provides for the return of a child retained outside of his or her place of habitual residence. If the state in which a child is retained was also the child's place of habitual residence immediately prior to retention, that retention is not wrongful under the Hague Convention. Thus, in order to establish wrongful retention, the father had the burden of showing by a preponderance of the evidence that Singapore was the children's state of habitual residence immediately prior to their retention in the United States. See  Darin, 746 F.3d at 9.
          The Court of Appeals found that  the district court misapplied the legal test for habitual residence by failing to analyze whether the parties ever intended to abandon their habitual residence in the United States, and by placing undue weight on evidence of the children's acclimatization in Singapore. The Court of Appeals pointed out that when the child in question is very young, its habitual-residence inquiry focuses on the parents' shared intent and settled purpose rather than the child's, as a very young child lacks  both the material and psychological means to decide where he or she will reside. In the event that the parents disagree as to their children's place of habitual residence, they look to the intent of the parents "at the latest time that their intent was shared."  Mota v. Castillo, 692 F.3d 108, 112 (2d Cir.2012). It is imperative that the district court distinguish "between the abandonment of a prior habitual residence and the acquisition of a new one. A person cannot acquire a new habitual residence without forming a settled intention to abandon the one left behind. Otherwise, one is not habitually residing; one is away for a temporary absence of long or short duration. 

         The district court-relying upon the parties' affidavits and without the benefit of an evidentiary hearing-found that, "at a minimum, the parties agreed to move to Singapore for three years, and the three-year period has not yet elapsed."Accordingly, the court concluded that the parties' shared intent was that their children reside in Singapore at the time immediately prior to their retention.

       The Court of Appeals found that the  district court failed to differentiate between the abandonment of a prior habitual residence and the creation of a new one as required by Darin. Instead, it merely found that the parents agreed that the children would be present in a particular place for a particular period of time that had yet to elapse. The district court made no factual finding one way or the other as to whether the parents intended to abandon their habitual residence in the United States in favor of Singapore, or whether they intended to retain their habitual residence while simply residing temporarily in Singapore. As a result, the district court overlooked an important factor in the habitual-residence analysis.

The Court of Appeals pointed out that although it has recognized that in certain circumstances, " 'a child can lose its habitual attachment to a place even without a parent's consent ... if the objective facts point unequivocally to a person's ordinary or habitual residence being in a particular place,' "  Darin, 746 F.3d at 11-12 it has also cautioned that in the absence of shared parental intent, the district court should  be slow to infer an earlier habitual residence has been abandoned. In the typical case, evidence of acclimatization is not enough to establish a child's habitual residence in a new country when contrary parental intent exists. Here, the  facts found by the district court in this case did not point so unequivocally towards Singapore being the children's habitual residence that it could conclude the same in the absence of a finding that the parties intended to abandon their habitual residence in the United States. Here, the district  court found that the children spent a substantial amount of time in Singapore and that they had friends, books, and toys there. The children were ages one and two at the time of retention. These ages are important, because acclimatization is rarely, if ever, a significant factor when children are very young. See  Holder, 392 F.3d at 1020-21
(holding that in the case of a ten-month-old child, it is "practically impossible"
for a child so young, "who is entirely dependent on its parents, to acclimatize
independent of the immediate home environment of the parents"). They did not
attend school and did not participate in sports. None of their extended family
lived in Singapore, and they took multiple trips-each several weeks long-to the
United States during the year and a half that they lived in Singapore. The Court of Appeals could not conclude that the record points unequivocally to the children's habitual residence being in a particular place. Accordingly, it remanded the case to the district court for a determination of the children's place of habitual residence that considers whether or not the parents intended to abandon their habitual residence in the United States.

Larrategui v Laborde, 2014 WL 2154477 (E.D.Cal.) [Argentina] [Fees and Costs] [Not clearly inappropriate]

In Larrategui v Laborde, 2014 WL 2154477 (E.D.Cal.) the Court granted Petitioner's petition for the return of S.C. to Argentina pursuant to the Hague Convention.  Petitioner sought $55,372.14 in attorney's fees and costs pursuant to Article 26 of the Hague Convention and 42 U.S.C.§ 11607 of ICARA.

The District Court observed that were a court has ordered the return of the child to her habitual residence, the court must order the respondent-abductor to pay "necessary expenses incurred by or on behalf of the petitioner," unless it would be "clearly inappropriate." 42 U.S.C. §11607(b)(3). The award of fees and costs serves two purposes: (1) "to restore the applicant to the financial position he or she would have been in had there been no removal or retention" and (2) "to deter such removal or retention."Hague International Child Abduction Convention: Text and Legal Analysis, 51 Fed.Reg. 10494-01, 10511 (Mar. 26, 1986).

 Respondent argued that fees were clearly inappropriate because the 
Court's intervention was required to obtain undertakings to protect S.C.; that Respondent was unable to pay for Petitioner's attorney's fees and costs, and
Petitioner did not spend his own funds to retain representation in this matter. 

The Court rejected these arguments. The fact that Petitioner did not spend his own funds does not provide a basis to deny an award to Petitioner. See  Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir.2010) (holding that denying a fee award because petitioner's counsel provided their services pro bono would "encourage abducting parents to engage in improper delaying tactics whenever the petitioning parent is represented by pro bono counsel.")  Second, Respondent made a good faith, but unsuccessful, "grave risk" argument that S.C. had not received, and consequently would not receive, proper medical treatment in Argentina. As a result, the Court granted Petitioner's Petition for Return of Child with narrowly focused undertakings to ensure that S.C. received the necessary medical treatments and ensures that Respondent is allowed access to and visitation with S.C. However, denying an award to Petitioner because the Court issued undertakings would encourage parties to always request undertakings even if the request is meritless in order to avoid paying fees and costs. Finally, entirely denying an award to Petitioner because of Respondent's financial status would not further § 11607(b)(3)'s purposes.  Kufner v. Kufner, CIV.A. 07-046 S, 2010 WL 431762, at *5 (D.R.I. Feb.3, 2010) ("To deny any award to Petitioner [because of respondent's financial status] would undermine the dual
statutory purposes of Section 11607(b)(3)-restitution and deterrence (both general
as to the public and specific as to the Respondent))."  The Court held that it was not "clearly inappropriate" to award attorney's fees and costs to Petitioner.

The Court found that traveling costs are necessary costs because Petitioner's attorney was required to attend the hearings and that file management costs are appropriate as part of the costs associated with litigation. However, the Court denied the costs associated with the uncertified interpreter because Respondent should not be required to pay for Petitioner's error.  The Court also denied the fees recorded in Spanish in the invoices because they were not appropriately documented in English.  The Court denied the costs for a custody order because it was not necessary for this proceeding. The Court awarded all other costs. It reduced the costs and fees by $3,437.50 to $51,934.64.

   The Respondent requested a 30% reduction based on her financial status. The district court noted that although denying an award because of Respondent's financial status would not further §11607(b)(3)'s purposes, courts have recognized that they have discretion to reduce any potential award to allow for the financial condition of the respondent. See, e.g.,  Rydder v. Rydder, 49 F.3d 369, 373-74 (8th Cir.1995) (reducing award from $18,487.42 to $10,000.00 because of respondent's financial status);  Berendsen v. Nichols, 938 F.Supp. 737, 739 (D.Kan.1996) (applying 15% reduction to the fee award because of respondent's financial status);  Salinier v. Moore, No. 10-CV00080-WYD, 2010 WL 3515699, at *4 (D.Colo. Sept.1, 2010) (reducing award by 25% because of respondent's financial condition). Respondent  provided evidence that she was self-employed with limited income, nominal assets, and significant debt. Therefore, the Court exercised its discretion and reduced the total award by 25%. The Court awarded Petitioner $38,950.98 in attorney's fees and costs.