Hogan v Hogan, 2017 WL 106021 (E.D. Va., 2017) [Spain] [Federal & State Judicial Remedies] [Diplomatic Immunity]

In Hogan v Hogan, 2017 WL 106021 (E.D. Va., 2017) Petitioner sought the return of the children to Spain. Respondent  moved to dismiss it pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court denied the motion. 

Petitioner and Respondent married in 2001. Both were U.S. citizens. Petitioner and Respondent had two children together, GTH and JWH, who were citizens of both the United States and Brazil. Respondent was employed by U.S. Immigration and Customs Enforcement. In 2012, Respondent accepted a three-year assignment in Spain as an attaché to the United States embassy in that country. Petitioner and the couple’s two children relocated to Spain in June of 2013, where the family resided for the following three years. Shortly before her assignment was to expire, Respondent informed Petitioner that she intended to file for divorce, seek a new job, and relocate their children to the United States. Petitioner objected to the removal of their children from Spain, as they were thriving in their Spanish community. Several weeks later, in the early hours of November 17, 2016, Respondent removed the children from their home in Spain without warning and took them to the airport. Respondent then flew with the children to the United States, where she has since resided with them. Respondent’s assignment in Spain terminated, and Respondent intended to remain in the United States with the children against Petitioner’s wishes.

The district court observed that the purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint; the Court “must accept as true all of the factual allegations contained in the complaint,” drawing “all reasonable inferences” in the plaintiff’s favor. E.I. du Pont de Nemours & Co., 637 F.3d at 440. Respondent’s Motion appeared to take as its premise that Respondent was presently entitled to diplomatic immunity in Spain. (“The Respondent’s family members, including the children at issue herein enjoy precisely the same privileges and immunities as their diplomat Mother. This immunity acts as a legal barrier which precludes any Spanish court from exercising personal jurisdiction over Respondent as well as the parties’ children.”) Respondent’s Motion argued that the Petition must be dismissed because the Hague Convention is “inapplicable” to the custody dispute underlying the Petition. She contended that she and her family were entitled to diplomatic immunity in Spain under the Vienna Convention on Diplomatic Relations due to Respondent’s work as an attaché to the United States embassy. The Motion claimed that because her family cannot be haled into Court in Spain, “no Spanish court has jurisdiction to issue an enforceable custody order” should the Court order the children returned to that country. The Court found that Respondent failed to establish that she presently enjoyed diplomatic immunity in Spain. Respondent’s diplomatic position was of limited duration and its term expired. She ceased working as an attaché to the United States embassy in Spain on December 14, 2016. Article 39 of the Vienna Convention on Diplomatic Relations provides that “[w]hen the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so.” As Respondent’s position with the embassy terminated and she left Spain her diplomatic immunity in Spain had come to an end. Accordingly, diplomatic immunity would not bar custody proceedings initiated in that country.

Respondent also claimed that her earlier immunity prevented her children from accruing “habitual residence” status in that country. She contends that her diplomatic immunity created a “bubble” around her family, such that they could not be considered to reside in Spain in a legal sense. Respondent had no legal authority to support this novel proposition, and the Court found her argument unpersuasive.  The Court observed that in Pliego v. Hayes, 86 F. Supp. 3d 678 (W.D. Ky. 2015), the wife of a Spanish diplomat residing in Turkey abducted their son and brought him to the United States. The court rejected the mother’s argument that the father’s diplomatic status prevented him from meaningfully possessing custodial rights in Turkey, reasoning that nothing in Turkish law precluded him from doing so. The Vienna Convention provides “absolute immunity from criminal prosecution and protection from most civil and administrative actions,” which is to say immunity from the enforcement of local law. In addition, diplomats are immune from the receiving state’s “jurisdiction to prescribe” to the extent that laws effecting their position, such as laws regulating employment and national service, are “incompatible with...diplomatic status.” Restatement (Third) of Foreign Relations Law § 464 (1987). Beyond this, however, “a diplomatic agent is subject to law generally” in the receiving state. The Court found that diplomats and their families do not exist in the legal “bubble” Respondent posited.

Alanis v Reyes, 2017 WL 416306 (N.D. Miss., 2017)[Mexico] [Habitual Residence] [Petition granted]

        In Alanis v Reyes, 2017 WL 416306 (N.D. Miss., 2017) the Court granted the petition of  Lourdes Guadalupe Lored Alanis and found that her daughter, DFB, was wrongfully retained from her habitual residence of Mexico by Respondent Jose Carmen Badillo Reyes.

Both Petitioner and Respondent were citizens of Mexico.  They began a relationship in in Mexico. Respondent later moved to the United States. Petitioner later moved to the United States, and both of them resumed their relationship. Both Petitioner and Respondent also testified that they were in the United States illegally. DFB was born on September 9, 2007 in Southaven, Mississippi. DFB was a citizen of the United States. Both Petitioner and Respondent were acknowledged as DFB’s biological parents on her birth certificate. Respondent has since questioned whether he was the father of DFB. Respondent testified that he ordered a paternity test kit on the internet and, according to the instructions, sent to the testing company samples of DFB’s saliva and his own, as well as photographs. Respondent testified that the result of that paternity test was that he was not the father of DFB. From September 2007 to December 2009, Petitioner, Respondent, and DFB lived together in Mississippi. Neither Petitioner nor Respondent had any “immigration status that allow[ed] them to permanently reside in the United States”. On December 3, 2009, Respondent executed a notarized travel permit for DFB to travel with Petitioner. It was  undisputed that both parties intended that DFB would move to Mexico with Petitioner. Petitioner and DFB moved to Petitioner’s family home in Mexico in December 2009 or early 2010. Petitioner and Respondent apparently ended their relationship. For at least two years, Respondent remained in communication with Petitioner and DFB and sent money to cover their basic needs. Petitioner began living with a man, Ruben Gonzalez Espinoza. Petitioner and Espinoza had two children. Petitioner, Espinoza, DFB, and the other two children lived together until August of 2016. On August 14, 2016, Petitioner granted temporary authorization for DFB to travel with Epinoza’s sister, Anel G. Valdivia, from Mexico to Valdivia’s home in Irving, Texas. Petitioner also granted temporary custody of DFB to Valdivia for the time that DFB was in the United States. Respondent subsequently discovered that DFB was in Irving, Texas. Respondent testified that he traveled to Irving to DFB’s school and requested to take her with him. However, the school principal and administrators denied his request, purportedly because Respondent did not have paperwork demonstrating that he was the child’s father. Respondent took DFB for one weekend with Valdivia’s consent, but not Petitioner’s, and when Petitioner learned that DFB had visited with Respondent, she was not pleased. Respondent then retrieved paperwork demonstrating that he was the father of DFB. On August 31, 2016, Respondent traveled to Irving, Texas; showed up at Valdivia’s residence with a police officer from the Irving Police Department; and demanded custody of DFB as her father. Petitioner maintained that during this event, Valdivia called Petitioner and had her talk to the police officer and that Petitioner “asked him not to allow [Respondent] to take [DFB] with him” and explained their situation to him. The police officer nonetheless allowed Respondent to take DFB with him, stating that Respondent’s paperwork demonstrated that he was the father of the child and had the right to take the child. Respondent subsequently took DFB to Horn Lake, Mississippi, against Petitioner’s wishes. Petitioner maintained that more than ten times she requested that Respondent return DFB to Petitioner in Mexico, but that Respondent refused to respond to her requests and stopped answering Petitioner’s phone calls. 

The Court held that in cases such as this one, where the child is so young that she cannot possibly decide the issue of residency, see England v. England, 234 F.3d 268, 273 (5th Cir. 2000), “the threshold test is whether both parents intended for the child to abandon the [habitual residence] left behind,” see Delgado, 837 F.3d at 578 (citing Larbie, 690 F.3d at 310–11). The Fifth Circuit indicates that “context, rather than specific periods of time spent in one location or another, is key to the concept” and that the “primary consideration in the habitual residence determination [is] shared parental intent.” Berezowsky, 765 F.3d at at 467–69. The Court found that  Petitioner  demonstrated by a preponderance of the evidence that DFB’s habitual residence was Mexico. Neither Petitioner nor Respondent was in the United States legally. Their illegal immigration status and the unsteady and temporary nature of their living arrangements in the United States indicated that the United States was not DFB’s habitual residence. Both parties agreed that Petitioner and DFB would move to Mexico. Because Petitioner had no legal basis for entering the United States, Respondent could not reasonably have expected her to return to the United States with DFB. Furthermore, Respondent’s doubts as to whether he was the father of the child raised a question as to whether he even had parental rights. Regardless, both parties  agreed that DFB lived continuously in Mexico from 2010 to 2016, where she attended school. Petitioner began living with a man, Espinoza, and  Petitioner and Espinoza had two children together. Respondent sent Petitioner money to cover basic needs for at least two years after Petitioner and DFB moved to Mexico. The Court concluded that Petitioner demonstrated by a preponderance of the evidence that DFB’s habitual residence was Mexico.

The Court also found that Petitioner had rights of custody with respect to DFB at the time of the wrongful retention. According to the Family Code of the State of San Luis Potosi, she had parental rights with respect to DFB for the approximate six years the two lived in Mexico, enrolling her in school and extracurricular activities, maintaining a household wherein DFB resided, and otherwise engaging in parental responsibilities, The Court also found that Petitioner demonstrated exercise of the rights of custody at the time of the wrongful retention of DFB. Although Petitioner temporarily agreed to allow DFB to attend school in the United States with Valdivia, by definition, that was a temporary arrangement. Further, the Court found a crucial factor in the determination was the arrangement for Valdivia to transport DFB to her mother’s home in Mexico on weekends and holidays. At the hearing, Petitioner argued that it was akin to a boarding school situation. The Court found  this analogy to be well taken. Given all the facts and testimony before the Court, Petitioner  demonstrated that Respondent wrongfully retained DFB in the United States away from her habitual residence in Mexico.  
Finally, the Court found that Respondent failed to demonstrate any applicable affirmative defenses. Respondent did not plead any defenses, as he filed no responsive pleading to the verified petition

Cisneros v Lopez, 2016 WL 7428197 (D. Nev., 2016)[Mexico] [Grave Risk of Harm] [Petition denied]

In Cisneros v Lopez,  2016 WL 7428197 (D. Nev., 2016)  Petitioner, Respondent, and their daughters, AVES  who was nine years old and AIES who was two years old were all Mexican citizens. Respondent and the children left Mexico for the United States on March 17, 2015. Petitioner initiated the case in the district court on January 12, 2016. The Magistrate Judge found that Petitioner met his burden of establishing his case-in-chief for the return but given the clear and convincing evidence of physical and psychological abuse, that returning the children to Mexico would pose a grave risk to their physical and psychological well-being, and recommend that the petition for return be denied. Respondent testified regarding domestic violence. AVES also testified that she saw Petitioner hit Respondent, causing her nose to bleed on two occasions; that when they were on a family camping trip, Petitioner threatened to kill her, AIES, and Respondent; that she was afraid of her father; that she was afraid of the dark and that she had nightmares “[a]bout my dad killing my mom.” When asked whether she feels safe living in Mexico, AVES testified that “I’m scared that my dad [sic] kill my mom.” AVES objected to being returned to Mexico and wanted to stay in the United States. Respondent’s witness Dr. Norman Roitman, an expert in psychiatry testified that AVES maturity level was advanced beyond her chronological age by one or two years, to age ten or eleven. Based on his evaluation, Dr. Roitman diagnosed AVES with post-traumatic stress disorder (“PTSD”) and adjustment disorder with anxiety and depression. Dr. Roitman stated that AVES “has a close anxious bond with her mother, has separation anxiety that’s separate and apart from the PTSD, and separation from her mother could constitute the beginning of a significant psychiatric injury.” He further testified that separating AVES from her mother could result in “posttraumatic reinjury.” Dr. Roitman’s opinions were uncontroverted and were the only evidence before the court on whether returning AVES to Mexico would cause her PTSD to worsen. The Magistrate judge found that Respondent presented evidence of domestic violence directed at her by Petitioner over the course of their nine-year relationship, including physical and emotional abuse. There was some evidence of physical abuse against AVES. Respondent presented uncontroverted evidence that Petitioner caused significant psychological harm to AVES, as well as specific evidence of potential harm that AVES would suffer if she returned to Mexico. Dr. Roitman concluded AVES should not be returned to her father.  Based on Dr. Roitman’s uncontroverted expert opinion testimony, the court found there was a grave risk that return would subject AVES to psychological harm. In addition, there was evidence that returning her to Mexico would expose her to grave risk of physical harm due to escalating domestic abuse. There was evidence that the day before Respondent left home with the children, Petitioner hit AVES in the face, causing her lip to split, and that Petitioner threatened to kill both of the children. The court found that in addition to the risk of psychological harm, there was a grave risk that return would expose AVES to physical harm. Given that Respondent has established the grave-risk defense as to AVES, the court recommended that the petition be denied as to AIES as well, citing Miltiadous v. Tetervak, 686 F. Supp. 2d 544, 556 (E.D. Pa. 2010) (declining to separate siblings and finding that the younger sibling who was not suffering from PTSD would be exposed to the same grave risk of harm as the older sibling suffering from PTSD).

Hernandez v Cardoso, --- F.3d ----, 2016 WL 7404767 (7th Cir., 2016) [Mexico] [Grave Risk of Harm Defense] [Petition denied]

          In Hernandez v Cardoso, --- F.3d ----, 2016 WL 7404767 (7^th Cir., 2016) the Seventh Circuit affirmed an order of the district court which denied the father’s petition for return of the parties child to Mexico. The parties were both citizens of Mexico who resided in Mexico until December 15, 2014 and were the parents of  A.E., born in 2008, and M.S., born in 2002. Cardoso claimed to have left Mexico with A.E. and M.S. in December of 2014 to escape abuse from Hernandez and protect the children. In August  2015, Cardoso agreed returned M.S. to Hernandez. On December 18, 2015, Hernandez filed a Petition for Return. The District Court found that Cardoso testified credibly that Hernandez would hit her in the presence of A.E. with the intention of having A.E. witness the abuse of his mother. It observed a significant change in the demeanor of A.E. when the child discussed Hernandez, the domestic violence and the possible return to Hernandez’s custody. The District Court found that Cardoso and AE’s testimony about the domestic violence provided clear and convincing evidence that there was a grave risk of physical or psychological harm to A.E. if he was returned to Hernandez’s custody.

The Seventh Circuit observed that Cardoso did not dispute that Hernandez established a prima facie case for wrongful removal. However, Article 13(b) provides that “when there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, the automatic return required by the Convention should not go forward.” Norinder v. Fuentes, 657 F.3d 526, 533 (7th Cir. 2011). The District Court found that both Hernandez and Cardoso used physical discipline of the children. Hernandez testified that he would spank the children with an open hand and described Cardoso’s physical discipline as “more harsh” because she would pull her daughter’s hair and “really fight with her.” Cardoso testified that she would spank the children with her hand or with a shoe. She objected to the way Hernandez disciplined the children because it was “too much” and he would “hit them very hard” with a belt. The District Court questioned A.E. in camera during the evidentiary hearing. A.E. testified that Hernandez would hit him with a belt if he misbehaved “really bad.” He further testified that he saw Hernandez hit Cardoso with a belt and with his hands and saw him give Cardoso a black eye. A.E. said he was “a little bit” afraid of Hernandez.  The District Judge determined that Cardoso’s testimony that Hernandez abused her repeatedly and in the presence of the children was credible, despite the fact that she allowed her daughter to return to Mexico to live with Hernandez and provided inconsistent testimony about whether Hernandez knew she would leave Mexico with the children. Cardoso’s testimony about the abuse was corroborated by A.E., who testified of Hernandez’s physical abuse toward Cardoso and himself. With the deference given to the District Court, the Court found there was no error in the lower court’s credibility determination.  A district court’s credibility findings are ‘binding on appeal unless the [court] has chosen to credit exceedingly improbable testimony.   Moreover, the District Court’s application of the facts in this case to the Article 13(b) “grave risk” standard was appropriate. “[R]epeated physical and psychological abuse of a child’s mother by the child’s father, in the presence of the child (especially a very young child, as in this case), is likely to create a risk of psychological harm to the child.” Khan v. Fatima, 680 F.3d 781, 787 (7th Cir. 2012). The District Court recognized it had to consider “risk in the father’s behavior toward the mother in the child’s presence” in its analysis. Id. The Court having found the factual findings made by the district court supported the conclusion that there was a “grave risk” of physical or psychological harm to A.E. if he was returned to Hernandez’s custody.

Pennacchia v Hayes, --- Fed.Appx. ----, 2016 WL 7367848 (9th Cir.,2016)[Italy] Habitual Residence] [Petition denied]

          In Pennacchia v Hayes, --- Fed.Appx. ----, 2016 WL 7367848 (9^th Cir., 2016) the Ninth Circuit affirmed a judgment which denied Danilo Pennacchia’s petition for return of his minor child to Italy. In observing that the dispute centered around the habitual residence of the child the court pointed out that to determine a child’s habitual residence, they first look for the last shared, settled intent of the parents.  It explained that the district court concluded SAPH’s habitual residence was the United States, and that in doing so, the court applied the correct legal standard by focusing on the shared, settled intent of the parents. The district court acknowledged that the parents’ testimony differed concerning their intentions at the time they left the United States, but found Pennacchia’s “testimony lacked credibility and evidence to support his position.” The Ninth Circuit indicated that it gives heavy deference to factual determinations such as which witnesses to believe and which documents corroborate the most credible version of disputed testimony. The district court found Pennacchia agreed to and signed several documents, that supported the mother’s testimony and evidenced the parties’ initial agreement that “their living arrangement in Italy was conditional and ‘a trial period.’ It held that the district court did not err when it concluded that, for both parents, “the settled intention was for SAPH’s habitual residence to be the United States.

The Ninth Circuit indicated that for SAPH’s habitual residence to change, “the agreement between the parents and the circumstances surrounding it must enable the court to infer a shared intent to abandon the previous habitual residence.” Mozes, 239 F.3d at 1081. Although it is possible for a child’s contacts standing alone to be sufficient for a change of habitual residence, in view of ‘the absence of settled parental intent, [we] should be slow to infer from such contacts that an earlier habitual residence has been abandoned.’ To infer abandonment of a habitual residence by acclimatization, the ‘objective facts [must] point unequivocally to [the child’s] ordinary or habitual residence being in [the new country].’  It indicated that SAPH had significant contacts in Italy, but the district court did not find a shared parental intent to abandon her habitual residence in the United States or that the objective facts pointed unequivocally to a change in SAPH’s habitual residence. Pennacchia did not meet his burden on acclimatization, and therefore, the district court did not err by concluding SAPH’s habitual residence under the 1980 Hague Convention remains the United States.