Demaj v Sakaj, 2012 WL 476168 (D.Conn.) [Italy][Disclosure]

In Demaj v Sakaj, Slip Copy, 2012 WL 476168 (D.Conn.) On February 11, 2009, Esheref Demaj, filed a petition against Freda Sakah, pursuant to the Hague Convention for the immediate return of his three minor children to Italy. Petitioner claimed she illegally and wrongfully removed the minor children from Italy on or about September 7, 2007, in violation of Petitioner's custodial rights under Italian law. On January 25, 2012, Petitioner filed a Motion to Compel Production of Documents. Immediately following the commencement of this action.
Both parties acknowledged that when Petitioner was in Connecticut in January 2010 to visit his children, Petitioner, while at a Petco store, made a statement in his native Albanian, according to Petitioner, "curs[ing]", or according to Respondent's minor child, Kimberly to whom Petitioner was speaking, "threaten[ing] to kill" Respondent and her mother. Thereafter, Respondent filed a police report, a warrant was issued for Petitioner's arrest, and a mandated reporter made a referral of child abuse to the Department of Children and Families ["DCF"], which resulted in a substantiated report. According to Petitioner, on August 19, 2010, Respondent applied for a U-Visa. A U-Visa provides temporary immigration benefits to aliens who are victims of qualifying criminal activity, and to their qualifying family members, as appropriate. See http://www.uscis.gov/i-918 (Last visited Feb. 8, 2012). According to Respondent, by the summer of 2010, Respondent and the minor children had lived in this country for almost three years and their original visas had expired, so as to remain here legally, Respondent applied for nonimmigrant status which was granted to her and the children in July 2011. With the approval of their new nonimmigration status of legal permanent residents of the United States, Respondent and the children were issued Social Security cards and Employment Authorization cards, which Respondent used to obtain a Connecticut driver's license, and to register the children for Connecticut's Supplemental Nutrition Assistance Program and the healthcare program. Petitioner contended that he did not learn of Respondent's change in immigration status until December 30, 2011, in response to Petitioner's filing a motion to stay in the state court divorce proceedings that Respondent initiated in 2009. Petitioner contended that upon information and belief, Respondent used her passport, to which she was not supposed to have access, in accordance with this Court's order, to apply for a U-Visa, and, according to Petitioner, Respondent's immigration status wasrelevant to this case. Further, Petitioner contended that these documents were necessary for Petitioner to address Respondent's use of the "well-settled" defense at trial, as such documents will include Respondent's allegations of abuse which Petitioner will use in his case-in-chief, and to impeach Respondent by questioning the credibility of any testimony she may provide at trial. Accordingly, Petitioner requested the production of documents concerning Respondent's U-Visa application.
In her brief in opposition, Respondent argued that all of the appropriate documents, which documents include all visas, social security cards, and authorizations to work, had been produced, and the other documents withheld are those which would violate the attorney/client privilege or would violate the intent of protections found in 8 U.S.C. 1367. Additionally, Respondent asserted that her immigration status was not an important factor to the "well-settled" defense, and Petitioner had no standing to second-guess the Department of Homeland Security ["DHS"] and its decision to grant Respondent a U-Visa. Petitioner contended that courts have found "immigration status to be of utmost importance to establishing the Article 12 well settled defense
In Petitioner's Motion, he sought to compel production of documents responsive to Request Nos. 1, 3, 4 and 5, which document requests sought documents or correspondence related to Respondent and the children's current immigration status (No. 1), and related to any changes made to their immigration status since arrival in the United States (No. 3), as well as documents and correspondence, including, but not limited to applications, affidavits and all supporting documents submitted to the Department of Homeland Security or any other Federal or State agency or officials related to their immigration status or the change therein (No. 4), and any documents or correspondence between Respondent and the Department of Homeland Security or any other Federal or State agency or officials.
The Court observed that at issue in this was the application of the "well-settled" defense, which defense must be established by a preponderance of the evidence. 42 U.S.C. 11603(e)(2)(B) . The Convention itself does not define what constitutes a child being "settled in its new environment." Hague Convention, art. 12. However, the U.S. State Department has established that "nothing less than substantial evidence of the child's significant connections to the new country is intended to suffice to meet the respondent's burden of proof" in asserting the well-settled defense. Several factors are considered in determining whether or not a child has become settled: the age of the child[;] the stability of the child's residence in the new environment[;] whether the child attends school or day care consistently [;] whether the child attends church [or other religious institutions] regularly[;] the stability of the mother's
employment[;] and whether the child has friends and relatives in the new area. Lozano v. Alvarez, No. 10-CV-8485(KMK), 2011 WL 3667444, at *28 (S.D.N.Y. Aug. 22, 2011) (citations omitted); In re Koc, 181 F.Supp.2d 136, 152 (E.D.N.Y.2001) (same); see also In re: Filipczak, No. 11 Civ. 1178(VM), 2011 WL 6980845, at *7 (S.D.N.Y. Dec. 23, 2011), citing Lozano, 2011 WL 366744, at *28; Matovski v. Matovski, No. 06 Civ. 4259(PKC), 2007 WL 2600862, at *13 (S.D.N.Y. Aug. 31, 2007)(multiple citations omitted)(same); Reyes Olguin v. Cruz Santana, No. 03 CV 6299 JG, 2005 WL 67094, at *8 (E.D.N.Y. Jan. 13, 2005) (citations omitted)(same);
Diaz Arboleda v. Arenas, 311 F.Supp.2d 336, 343 (E.D.N.Y.2004) (citation
omitted)(same). To reach a finding of settled, the Court must be presented with substantial evidence of significant connections to the new environment. Koc, 181 F.Supp.2d at 152 (internal quotations & citation omitted).
In the bulk of cases in which immigration status is considered, it is done so after an assessment of the foregoing factors, and it is considered as only one element among many pointing either in favor of a finding of significant ties to the United States, or in finding a lack of significant ties to the United States. The Court pointed out that U.S. District Judge Kenneth M. Karas stated, "[c]ourts that have found that a child was not settled have tended to do so where ... a child has moved frequently and therefore not had a stable living situation." Lozano, 2011 WL 3667444, at *30 (citations omitted); see also Filipczak, 2011 WL 6980846, at *7-8 (immigration not considered but finding of not settled when lived in multiple cities and attended multiple schools, caring and intact family in both countries, and guardian ad litem testified children are readily adaptable to any environment). In Lozano, while Judge Karas noted concern that both the Respondent and the child had overstayed their visas, and thus were here illegally, he considered the other factors referenced above which evidenced their connection to the United States, before concluding that the child was, in fact, well settled in her current environment. Lozano, 2011 WL 3667444, at *31. Following the Ninth Circuit's lead, see In re B. Del C.S.B., 559 F.3d 999, 1010-14 (9th Cir.2009), "the idea that immigration status should render an otherwise settled child not settled" was
rejected, and Judge Karas concluded that "immigration status should only be a significant factor in the settled analysis if there is an immediate concrete threat of deportation." Lozano, 2011 WL 3667444, at *30,citing B. Del C.S.B., 559 F.3d at 1010-14. The rationale for this position, with which the Court agreed, was grounded in the language of the Convention. The Convention is concerned with the present as the Article 12 defense applies to a child "now settled in its new environment[,]" and the determination of the child's future well-being is left to the court conducting custody
proceedings. See Hague Convention, art. 12 ; B. Del C.S.B., 559
F.3d at 1013.
Respondent represented to the Court that she applied for and was granted nonimmigrant status in July 2011. An individual granted U Nonimmigrant status may, after threecontinuous years of physical presence in the United States, apply for a green card. Even if the Court were to consider immigration status as a "most important factor" in the "well-settled" defense, the Court need only consider the status, which status was evident from the existence of the U-Visa. Thus, to the extent not already produced, on or before February 16, 2012, Respondent was directed to produce copies of their current visas.
Petitioner requested Respondent's copies of all documents that would be barred from disclosure by "the Attorney General, or any other official or employee of the Department of Justice, the Secretary of Homeland Security, the Secretary of State, or any other official or employee of the Department of Homeland Security, or Department of State" under 8 U.S.C. 1367(a)(2), but to the extent they were in Petitioner's possession, such disclosure, while arguably running afoul of the letter of this section, was not prohibited by this statute. Although Petitioner asserted that he sought this information to determine whether the statements made in the U-Visa application were consistent with the evidence presented, Petitioner also claimed that Respondent secured her change in immigration status through fraud, which he sought to establish at trial. Thus, while Petitioner may need the documents underlying and related to Respondent's U-Visa application as they may be relevant to her credibility and may be used to impeach her, in order to use these documents in that manner, Petitioner must seek to undermine the decision of DHS by challenging the veracity of Respondent's statements, upon which both DHS and law enforcement relied, thereby, interfering with Respondent's immigration case. Petitioner's Motion to Compel production of documents responsive to Request Nos. 4 and 5 was denied.

Lopez v Villareal, 2012 WL 458490 (D.Nev.)) [Mexico] [Consent or Acquiescence]

In Lopez v Villareal, 2012 WL 458490 (D.Nev.)) Jorge Ramon Guadalupe Rivera Lopez, has filed a verified petition pursuant to the Hague Convention and respondent, Janet Nieri Villareal, aka Janet Patchett, moved to dismiss or stay this action. Jorge and Janet married in Mexico in April 2003. A son was born to the couple in November 2003. Jorge and Janet divorced, in Mexico, in August 2009. Janet was awarded physical custody of their son. Jorge was granted the right to visit and spend time with their son on any day of the week. Jorge could take their son outside the city only with the prior written consent of Janet. Janet was required only to inform Jorge when she intended to take their son outside of the city, informing him of the city, address, and specific time that would be spent outside of the city. Until late-December 2009, Jorge, Janet, and their son continued to reside in Mexico. In December, Jorge consented to Janet traveling with their son to the United States. Janet and their son entered the United States on December 26, 2009. By January 15, 2010, Janet informed Jorge that she would not be returning to Mexico. Jorge alleged that he did not consent to their son remaining in the United States after January 15, 2010. On December 15, 2011, Jorge filed the present petition pursuant to the Hague Convention and the International Child Abduction Remedies Act, seeking the return of their son to Mexico.
Janet's response to Jorge's petition raised a single argument-consent or acquiescence under Article 13-that rests solely upon the allegations of the petition. She argued that, pursuant to those allegations, Jorge could not obtain the relief requested as a matter of law. She pointed to Jorge's admission that in December 2009 he consented to her travel to the United States with their son and his concession that he was aware in January 2010 that she would not be returning to Mexico. She further noted that Jorge did not file the present petition until December 2011. Janet argues that Jorge consented to their son's travel to the United States. She further argued that Jorge's knowledge that Janet would not be returning to Mexico with their son, and his lack of action in attempting to obtain the return of their son establishes that he acquiesced to Janet's retention of their son in the United States.
The Court disagreed that Jorge alleged facts establishing that he consented and acquiesced to Janet's retention of their son in the United States. He alleged facts indicating that he consented to Janet traveling to the United States with their son. Absent from the petition, however, was any allegation suggesting that Jorge's consent was for Janet to travel to and remain in the United States, and indefinitely retain their son in the United States. Rather, Jorge alleged in the petition that Janet
indicated that the purpose of the travel was for Janet to visit her sister, and that Janet intended to return to Mexico with their son by January 7, 2010. Jorge did not allege that he consented to Janet retaining their son in the United States after January 15, 2010.
Jorge's admission that he knew Janet was retaining their son in the United States in January 2010, and his filing of the petition in December 2011, did not establish as a matter of law that he acquiesced in Janet's retention of their son in the United States after January 2010. Janet did not direct the Court's attention to any authority suggesting that a delay of 23 months between obtaining knowledge of the wrongful retention and the filing of a Hague petition establishes, as a matter of law, acquiescence in the wrongful retention. This is particularly true where, as here, Jorge alleged that subsequent to Janet's wrongful retention of their son he has sought the assistance of the Central Authority of Mexico, the Mexican Courts, the United States State Department, and local law enforcement officials in Las Vegas in obtaining the return of their son to Mexico. Accordingly, as Jorge had not alleged facts establishing, as a matter of law, that he either consented or acquiesced to Janet's retention of their son in the United States after January 15, 2010, the Court denied the motion to dismiss Jorge's petition.

Guzzo v Cristofano, 2011 WL 6934108 (S.D.N.Y.) [Italy] [Habitual Residence]

In Guzzo v Cristofano, 2011 WL 6934108 (S.D.N.Y.) the District Court denied the Petition of Gerardo Guzzo for an order directing the return to Italy of his five-year-old son, who was in the care of his mother, Respondent Luisa Maria Cristofano, in New York.
Petitioner was an Italian citizen who was born and raised in Italy. Respondent was a United States citizen who grew up in the Bronx, New York. The parties met in September 2005, while on a flight from New York to Italy. Petitioner and Respondent are both attorneys with small practices near their respective homes. The parties' plan was to have a "bi-continental" marriage, in which "[Respondent] would live in New York, [Petitioner] would live in Italy, and [the parties] would go back and forth." In January 2006, Respondent discovered that she was pregnant. Petitioner told Respondent that if she agreed to live in Scario, he would marry her in a religious ceremony. Respondent resisted, and the parties were ultimately married in a civil ceremony in New York while maintaining their bi-continental residences. In September 2006, the child was born. In the several years following the child's birth, the parties maintained their bicontinental marriage as originally contemplated. From 2006 through 2008, each party visited the other on numerous occasions. In December 2007, the parties agreed on a visitation schedule pursuant to which Respondent would stay with Petitioner in Italy for a two-month period, and then return to New York for no more than twenty days. Respondent testified that, through the end of 2008, she attempted to
comply with that arrangement. Despite the substantial amount of time that she was
spending in Italy, Respondent maintained her New York law office, and even refused an
offer to sell her practice to a pair of New York attorneys.
In July 2008, Respondent became pregnant again. The parties again argued over whether the child should be born in Italy or New York. In August 2008, however, Respondent miscarried. (Id.) For the remainder of 2008, Respondent and the child spent the vast majority of their time in Italy. In November 2008, Respondent became pregnant once again. Shortly thereafter, the parties' relationship became quite tumultuous. They argued often, and, ultimately, Respondent had another miscarriage.
In February 2009, Respondent took the child back to New York and told Petitioner that she wanted a separation.
Over the next several months, the parties and their counsel negotiated a separation agreement, which was executed in English by Respondent on May 20, 2009, and in Italian by Petitioner on June 10, 2009. The Separation Agreement provided, among other things, that: (i) "[t]he parties shall continue to live separate and apart"; (ii) "[t]he Wife shall have custody[ ] of the minor child of the parties"; (iii) "the Husband shall pay child support to the Wife for the benefit of the minor child of the parties in the amount of Euro 500 per month"; and (iv) Petitioner "consents to [the child's] current registration in the Good Counsel Academy" in White Plains, New York.
The Separation Agreement also provided for Petitioner's visitation rights as follows:
The husband and wife may agree to any reasonable periods of visitation of the child
by the husband at any time, subject to reasonable notice and final approval by the wife
as to the location and length of such visitation. In view of the international aspect of
this issue, however, the husband shall have the absolute and uncompromisable right of
visitation during the months of July and August of each year in Italy, or such other
two month (or 60-day period) as shall be agreed upon by husband and wife with two
months prior notice by either. The husband shall also have the absolute right of visitation with respect to Christmas and Easter in alternating years.
When visitation occurs in Italy and until the child is 16 years of age, the wife shall
accompany [the child] who will live with his father. At the husband's absolute and
unreviewable discretion, the wife may live with the child during the 2-month period of
visitation throughout the year; however, the wife shall have the right to find and live at
her own apartment at her expense.... When [the child] shall become 16 years of age,
he shall be able to travel alone and can go to Italy to visit his father who will pay for his
international travel and his stay.
When visitation occurs in the USA, the husband may reside in the basement
apartment at the wife's house at 34 Read Street, Tuckahoe, NY, at his discretion and
rent free.

After the Separation Agreement was signed by both parties, Respondent returned to
Italy with the child. Respondent testified that her trip to Italy was undertaken as an
attempt at reconciliation with Petitioner, but that she was only willing to make the
attempt because she had the protection of the Separation Agreement. Respondent also testified that, regardless of the reconciliation attempt, she never intended to have the child attend primary school in Italy and that she always planned to live with the child in New York once he was in kindergarten. Respondent spent most of the summer of 2009 in Scario, and, after a brief stay in New York, Respondent returned to Scario in November 2009 and the child began attending nursery school there. At the end of 2009, Respondent purchased a small cottage in the hills outside Scario for 30,000 Euros. Respondent testified that she purchased the house because the Separation Agreement required her to bring the child to Scario each summer for two months for Petitioner's visitation.
In 2010, Respondent and the child spent the vast majority of the year in Scario, but
periodically made trips to New York. In September 2010, Respondent
became pregnant yet again, but miscarried shortly thereafter. Around this time, the parties were arguing frequently, and in November 2010, Respondent took the child back to New York with the intention of not returning to Italy.
In late December 2010, Petitioner visited Respondent in New York and the parties agreed to make another attempt at reconciliation. Respondent and the child returned to Italy with Petitioner on January 10, 2011. Over the next several months, however, the parties' relationship became tumultuous once again and, in August 2011, Respondent returned to New York with the child, where they remained. Respondent enrolled the child at Good Counsel Academy in White Plains and initiated a divorce proceeding in Westchester County.
Petitioner initiated this action on October 12, 2011, by filing a writ of habeas corpus in Supreme Court, Bronx County, pursuant to the Hague Convention and the International Child Abduction Remedies Act. On October 19, 2011, Respondent removed the action to the District Court.
The District Court found that Petitioner failed to demonstrate by a preponderance of the evidence that Italy, rather than New York, was the child's habitual residence. It observed that in Gitter, the Second Circuit set forth a two-part test for ascertaining a child's habitual residence pursuant to the Hague Convention: First, the court should inquire into the shared intent of those entitled to fix the child's residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents' latest shared intent. Gitter, 396 F.3d at 134.
The Court found that the Separation Agreement, pursuant to which the parties
agreed that Respondent would have custody of the child, live with the child in New York, and send the child to school in New York, constituted the last shared intent of the
parties. The terms of the Separation Agreement were consistent with the nature of the
parties' relationship leading up to the execution of the document. From the time the
parties met in 2005, they engaged in a "bi-continental" relationship in which
"[Respondent] would live in New York, [Petitioner] would live in Italy, and [the parties]
would go back and forth. If anything, the parties' actions prior to the Separation Agreement suggest that Petitioner-and not Respondent- was open to relocating permanently.
Petitioner argued that, even if the Separation Agreement represented the
intent of the parties at the time it was executed, the parties' subsequent actions demonstrate a changed shared intent that the child should be raised in Italy. Petitioner testified that, after the agreement was signed and Respondent went with the child to visit Petitioner in Italy, the parties "started to live as if the agreement had never existed." Petitioner, for example, testified that Respondent made no effort to enforce the child support provisions of the Separation Agreement. Indeed, according to Petitioner:
Petitioner testified that, after this purported reconciliation, the parties developed a new "mutually shared opinion that [the child] would start the ... first five years of primary school and the following three years of middle school" in Italy before moving to the United States to continue his secondary education. With respect to this assertion, the Court found that Petitioner's testimony was not credible. Moreover, it was belied by the other evidence presented at trial. On the other hand, Respondent's conduct following the execution of the Separation Agreement, when viewed as a whole, was thoroughly consistent with her stated intention to educate the child in New York once it became time to enroll him in kindergarten. Despite the parties' apparently sincere attempts at reconciliation, the evidence demonstrated that Respondent never contemplated spending her life in Italy or having the child attend Italian schools following preschool.
Moreover, the evidence demonstrates that Respondent retained her New York real
estate-another fact consistent with her stated intention to have the child attend school
in New York. Additionally, and of particular significance, Respondent repeatedly refused to register the parties' marriage in Italy, which would have entitled her to state funded health insurance while there. The Court's finding that New York was the child's place of habitual residence was consistent with recent Second Circuit case law on this issue. Gitter, 396 F.3d at 128; Poliero v. Centenaro, 373 F. App'x 102 (2d Cir.2010)
The Court found that taken as a whole, the evidence presented that Respondent did not intend to make Italy the child's habitual residence was more compelling than that cited by the Gitter and Poliero courts. First, and most significantly, the parties documented their shared intention in a Separation Agreement, which expressly contemplated that the child would live and attend school in New York with Respondent. Second, Respondent testified credibly that, after executing the Separation Agreement, her willingness to attempt a reconciliation in Italy was clearly premised on the understanding that, should the reconciliation prove unsuccessful, the parties would continue to abide by the terms of the agreement. Third, the evidence suggested that, even if the parties were to reconcile, Respondent still intended to send the child to kindergarten in New York. Finally, even during Respondent's time in Italy following the Separation Agreement, Respondent retained numerous connections to New York. Respondent maintained real estate and a law practice in New York. Additionally, she had only a New York drivers license and bank account. Respondent also kept the majority of her possessions in New York, including furniture, books, and clothing.
Neither Respondent nor the child had Italian passports and, on every trip to Italy, entered as tourists on 90-day visas. Thus, the evidence overwhelmingly demonstrated that, following the execution of the Separation Agreement, the parties never shared an intention to make Italy the child's habitual residence.

Lutman v Lutman, 2010 WL 3398985 (M.D.Pa.) [Israel] [Well Settled in New Environment]

In Lutman v Lutman, 2010 WL 3398985 (M.D.Pa.) on July 21, 2010, petitioner Pnina Lutman (mother) filed a petition for the return of minor child D.L., her nine-year-old son, pursuant to the Hague Convention. Pnina claimed that respondent Eyal Lutman (father), D.L.'s father, has wrongfully retained D.L. in the United States, away from D.L.'s habitual residence in Israel. The district court granted the petition.
Pnina and Eyal were married in 1986 in Israel, and their first child, a daughter named Hadar, was born in 1988. In 1989, Pnina and Eyal, who were both dual citizens of the United States and Israel, moved to Kansas. Another daughter, Meirav, was born in Kansas in 1990. In 1996, the family returned to Israel. Approximately four years later, they relocated to California. D.L. was born in California on April 10, 2001. The parties' entered into a marital separation agreement on June 22, 2005, and a California state court finalized their divorce on September 9, 2005. Pnina and Eyal also obtained a divorce decree from a Rabbinical Court in California, and they obtained a decision from a Rabbinical Court in Israel, acknowledging the California Rabbinical Court's decision. As a part of their divorce, their written separation agreement resolved the issue of custody of their children, by providing for joint legal and physical custody. The agreement stated that D.L. "shall primarily reside" with Pnina and that his older sisters "shall primarily reside" with Eyal. The custody provisions also forbid either parent from moving outside of Orange County, California, without further order of the court or written permission from the other party. Despite this provision, Pnina returned to Israel with D.L. and Meirav in 2005, shortly after the divorce. Eyal encouraged Pnina, D.L ., and Meirav to return to Pnina's family in Israel and he paid for their airfare. As a result of a change in his work assignments, undertaken at his request, Eyal also returned to Israel a few months later with Hadar. The California separation agreement provided that the parties agreed "to meet and confer regarding any necessary changes in their parenting plan" in the event that one of them moved, and that, if they could not negotiate a new agreement, they would "mediate the issue, equally sharing in the cost of the mediation." In order to reflect the change in their circumstances the parties voluntarily appeared before the Rabbinical Court of Haifa in Israel in 2007, which affirmed that D.L. is or will be in his mother's custody in Israel.
Eyal left Israel in 2007 and relocated to Ohio. Pnina encouraged D.L.'s relationship and regular contact with Eyal, not only during Eyal's residence in Israel, but also after Eyal returned to the United States. When Eyal invited his children to visit during their vacation in the summer of 2008, Pnina agreed to facilitate their visit.
Pnina was exercising her custody rights under the Rabbinical Court decree at
the time she sent D.L., with arrangements of a round trip ticket, to the United States for
this visit with his father. And she expected D.L.'s return on August 29, 2008, the date of
Meirav's and D.L.'s return flight to Israel. On August 29, 2008, only Meirav returned to
Israel, and Eyal retained D.L. in his custody. Eyal did not have Pnina's consent to retain
D.L. in the United States, and he acted unilaterally to retain D.L. This was a last-minute, emotional decision by Eyal to violate the terms of the custody decree of the Rabbinical Court of Haifa. D.L. has never returned to Israel since the summer of 2008, despite Pnina's efforts to have him returned.
In May of 2009, Eyal and D.L. moved to Red Lion, in Pennsylvania. Pnina visited D.L. in Red Lion for approximately four weeks in August 2009, in an attempt to secure his return informally. Eyal initially permitted Pnina to stay in his residence during her visit in the United States. However, Pnina testified that Eyal became jealous of D.L.'s reunion with his mother and feared that D.L. would ask to return to Israel with Pnina. In order to prevent such an occurrence, Eyal contacted authorities and alleged that Pnina had sexually abused D.L. Authorities conducted a brief, fruitless investigation of the allegations of child abuse, which concluded with an "unfounded" finding. The district court found that Eyal's accusation was baseless. At the conclusion of the investigation, financial constraints required Pnina to return to Israel, and she returned without D.L. and without resolution of D.L.'s custody. Pnina continued to seek D.L.'s return, and she diligently pursued her rights under the Convention. She initially contacted authorities on the Hague Convention and began completing paperwork in August of 2009. In October of 2009, she commenced official proceedings under the Hague Convention, and she requested pro bono legal representation from the Legal Assistance Coordinator (the "LAC") in the U.S. Central Authority for the Hague Convention, which is the U.S. Department of State. It was not until March of 2010 that Pnina successfully retained a pro bono attorney. Pnina filed a petition pursuant to the Hague Convention.
D.L. was nine years old. D.L. departed from Israel on July 15, 2008, and his return flight was scheduled for August 29, 2008. Thus, the date of the allegedly wrongful retention is August 29, 2008. The record was clear that Eyal's retention of D.L. in the United States violated Pnina's custody rights. The Rabbinical Court of Haifa formally adjusted D.L.'s primary physical custody to his mother in Israel. Pnina was clearly exercising her custody rights at the time of D.L.'s retention in the United States. The court noted that even a minimal exercise of custody rights will satisfy this requirement. "Essentially, nothing short of clear and unequivocal abandonment will prove that the petitioner failed to exercise his or her custodial rights." Tsui, 499 F.3d at 277. Finally, the evidence support the conclusion that Israel was D.L.'s habitual residence immediately prior to his retention in the United States. According to the Third Circuit, "a child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective." Feder v. Evans-Feder, 63 F.3d 217, 224. The Third Circuit has observed that "a determination of whether any particular place satisfies this standard must focus on the child and consists of an analysis of the child's circumstances in that place and the parents' present, shared intentions regarding their child's presence there." Under this standard, Israel qualified as D.L.'s habitual residence. Even though D.L. was physically present in the United States for slightly more than a month immediately prior to his retention, there was no evidence that D.L. had sufficient time to acclimate to life in the United States. Nor did the evidence indicate that D.L. would have perceived a "degree of settled purpose" in his father's Ohio home. D.L.'s trip to Ohio was intended as nothing more than a temporary summer vacation with his father. Hence, the United States did not become D.L's habitual residence prior to his retention.
Eyal alleged that Pnina consented to D.L.'s removal; that Pnina acquiesced in Eyal's retention of D.L.; and that Pnina failed to initiate proceedings under the Convention within one year of the retention, and that D.L. is well-settled in his current location.
Eyal argued that the court should infer consent to retention by virtue of Pnina's
willingness to send D.L. to the United States. The petition did not allege D.L.'s wrongful removal from Israel-rather, it complained that D .L. was wrongfully retained in the United States. D.L. went to Ohio with a round-trip ticket to return on August 29, 2008. There was no evidence that Pnina agreed that Eyal could retain D.L. in the United States after August 29, 2008. According to Eyal, "[t]he record is devoid of any evidence" that Pnina made efforts to secure D.L.'s return to Israel. He contended that Pnina failed to pursue any 11 custodial rights from August 29, 2008, until her visit to the United States in the summer of 2009. The record did not support this argument. To the contrary, Pnina's testimony was replete with evidence of her attempts to secure D.L.'s return: she never agreed to relinquish custody; during phone calls, she begged Eyal to return D.L.; and she searched (albeit unsuccessfully) for a lawyer in Israel. All of the evidence demonstrated that Pnina never acquiesced to Eyal's retention of D.L., and, therefore, the court rejects this affirmative defense.
The court noted that Pnina commenced proceedings under the Hague Convention in October of 2009, more than a year after the wrongful retention of D.L. on August 29, 2008. Eyal attempted to show that D.L. was well-settled in his current location, but his efforts were only been partially successful. In analyzing the applicability of the well-settled defense to a particular case, courts should look for "substantial evidence of the child's significant connections to the new country[,]" Castillo v. Castillo, 597 F.Supp.2d 432, 437-38 (D.Del.2009), and "consider any relevant factor informative of the child's connection with his or her living environment.". Considering all of the relevant factors together, the court could not find, by a preponderance of the evidence, that D.L. was well-settled. D.L. acclimated well to his studies during his one full year of elementary school in Red Lion, Pennsylvania. D.L.'s native language is Hebrew, but he was approaching fluency in English. His third grade teacher testified that D.L. assimilated into the classroom and that she observed appropriate academic progress and social interaction during the school year. D.L.'s elementary school experience weighed in favor of a finding that he was well-settled. However, there was sparse evidence that D.L. was settled with respect to the other factors that the court must consider in its analysis, including the child's age, stability in the child's residence, the child's participation in extracurricular or community activities, the presence of friends or relatives in the area, and the respondent's employment and financial position. Eyal presented limited evidence on each of these factors, but the evidence did not demonstrate that D.L. had a significant connection to the community where he currently lived. During the period of his wrongful retention in the United States, he resided in three different locations and attended three different schools. Although D.L. had connected with a handful of acquaintances and peers since that time, the network of friends surrounding him was limited. With respect to family and relatives, there was no doubt that he had far more connections in Israel. The record did not reflect that D.L. or Eyal established connections to any church or synagogue, engaged in any extracurricular activities or other community involvement in central Pennsylvania. There was no evidence of family relations in the area, with the exception of occasional visits by Hadar. D.L. has had several nannies, the most recent of which was
retained approximately one month ago. D.L. appeared to spend a considerable amount
of time watching television and playing video games. The court concluded that D.L. was not well-settled in his current location, and found that Eyal failed to prove that any of the exceptions listed in Article 13 of the convention apply to this case.
The court observed that Eyal had engaged in behavior that was manipulative
and otherwise contravenes the purposes of the Hague Convention, and that he should not be rewarded for such behavior. At the last minute, Eyal unilaterally decided not to return D.L. to Israel, and he has confirmed his intent to keep D.L. in the United States permanently, with no regard for Pnina's custody rights. Eyal brought a baseless complaint of sexual abuse to authorities during Pnina's visit in Red Lion, in a desperate attempt to maintain control of D.L.'s custody. Eyal's improper conduct also compeled the court to exercise its discretion to return D.L. to Israel.

Leser v Berridge,--- F.3d ----, 2011 WL 6811035 (C.A.10 (Colo.)) [Czech Republic] [Federal & State Judicial Remedies]

In Leser v Berridge,--- F.3d ----, 2011 WL 6811035 (C.A.10 (Colo.)) Respondent Alena Berridge relocated to Denver, Colorado from the Czech Republic with her two children. Subsequently, Petitioner Max Joseph Leser, Respondent's ex-husband and father of the children, filed a petition in the United States District Court seeking return of the children to the Czech Republic pursuant to the Hague Convention and ICARA. The district court held a hearing on the petition, at which it addressed Respondent's motion to continue. Respondent filed the motion to continue in response to a summons for the children to attend a custody hearing in the Czech court on March 24, 2011. Respondent indicated that the Czech court at the March hearing intended to rule on Petitioner's and Respondent's cross motions for "custody rights," "contact rights," and "the right to determine residence ." The district court asked respondent: "[Y]our position with regard to this ICARA action is that it is the Czech court that should make this determination and [you are] willing to take the children back to [the Czech Republic] so that indeed that determination can be made. Is that correct?"Respondent answered affirmatively. Petitioner also agreed that the Czech court was the court where all custody issues should be heard, including whether Respondent had the right to relocate the children to the United States. The district court asked Respondent if she planned to attend the March hearing in the Czech Republic. Respondent stated she would attend if Homeland Security would allow her to leave the United States without adverse effect to her visa status. Before pronouncing its decision, the district court stated it did not believe the real issue before the court was whether Respondent had wrongfully removed her children to the United States. Rather, the district court believed the issues to be which court, the Czech court or United States court, should interpret the custody orders and determine whether Respondent violated those custody orders. Because both parents agreed the Czech court was the appropriate court to hear these issues, the district court, pursuant to the stipulation and without objection, ordered the children returned to the Czech Republic for the March 24, 2011 hearing. The district court made no finding as to wrongful removal as required by the Hague Convention. Rather than granting Respondent's motion to continue, however, the court asked the parties to submit a proposed order setting forth the court's ruling. Respondent agreed to prepare the order and stated she could submit it to Petitioner the next day. But because the parties could not agree to the wording of a proposed order, both Respondent and Petitioner filed separate proposed orders with the court. The court then drafted and entered an order granting the petition for return of the children based not on wrongful removal, but on the parties' stipulation that the children would be present for the hearing in the Czech Republic: “ The Respondent represents that the children will be present for the hearing.... Given the parties' stipulation, there was no disputed issue for this Court to determine. Accordingly, pursuant to the authority of the Court under 42 U.S.C.
11603(a), it is ordered that (1) The Petition (# 1) is granted. (2) Respondent Alena
Berridge f/k/a Alena Leserova shall return the minor children, [M.L. and O.L.], to the
jurisdiction of the Czech Republic within such time as is necessary to participate in the
Czech court's hearing on March 24, 2011. The children shall remain within the
jurisdiction of such court until directed or authorized otherwise by such court. The
return of the children shall be expeditiously reported to the appropriate Central
Authority.”
Respondent appealed. Once the children arrived in the Czech Republic, the Czech courts seized the children's passports and issued new custody orders. The Tenth Circuit dismissed the appeal as moot. On appeal, Respondent asserted the district court order was ultra vires because the district court lacked jurisdiction to grant the petition. Respondent contended ICARA authorizes United States district courts "to order the return of a child to the country of habitual residence upon a finding of wrongful removal." According to Respondent, "the [district] court lacked jurisdiction to order anything" without a finding of wrongful removal. Thus, Respondent argued the district court erred when it ordered the children to attend and participate in legal proceedings in the Czech Republic despite the fact she agreed to it. Although Respondent acknowledged the district court did not make an explicit finding of wrongful removal of the children, at oral argument Respondent asserted that in granting the petition, the district court implicitly found wrongful removal and that such a finding was clear error based on the existing Czech custody orders.
The Tenth Circuit observed that Article III of the Constitution limits a federal court's jurisdiction to "cases and controversies." Its duty is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions. It is a basic principle of Article III that a justiciable case or controversy must remain extant at all stages of review, not merely at the time the complaint is filed. A case or controversy no longer exists when it is impossible to grant any effectual relief. In this appeal, Respondent requested that the court reverse the district court order and dismiss the petition for return of children, or in the alternative, remand to the district court to hold an evidentiary hearing on the issue of wrongful removal. In discussing mootness at oral argument, Respondent criticized the district court order for "granting" the petition for return of children without a finding of wrongful removal. In making that argument, Respondent attacked the merits of the district court order. The Court held that because it could not offer Respondent any relief, it could not decide whether the district court erred in ordering Respondent to return the children to the country of habitual residence without a finding of wrongful removal, where the parents stipulated that the children would return to the Czech Republic for the hearing. The district court's order, entitled "Order for Return of Children," clearly articulated the court's belief that no disputed issues existed because of the stipulation to return the children. After "granting" the petition, the court ordered Respondent to return the children to the Czech Republic to participate in the custody hearing. The order also stated the "children shall remain within the jurisdiction of such court until directed or authorized otherwise by such court." Furthermore, the district court's language that the "children shall remain within the jurisdiction of such court until directed or authorized otherwise by such court" was not contrary to the parties' stipulation. Respondent expressed concern that, without reversal of the district court order, she would be in violation of the district court order if she returned to the United States with the children. The Court believed Respondent misread the district court order. Because ICARA empowers United States courts "to determine only rights under the Convention and not the merits of any underlying child custody claims," the Czech court has jurisdiction to decide custody issues-including jurisdiction to restrict the children's travel by seizing their passports. If the Czech court determines to return the children's passports and Respondent returns to the United States with the children, it envisioned no scenario where she would be in violation of the district court order. And if the children subsequently returned to the United States, Petitioner may file a second petition for the return of children if he believes such removal to the United States to be wrongful without being subject to either issue preclusion or claim preclusion. Because it concluded that the district court made no finding as to wrongful removal and because it found no language in the district court order preventing the children from returning to
the United States upon return of their passports, any ruling on the merits "would have
no effect in the world we now inhabit but would serve only to satisfy the curiosity of the
litigants about a world that once was and is no more." Wyoming, 587 F.3d at 1253. Thus, given the unique circumstances of this case, it concluded that this action was moot. Accordingly, the appeal was dismissed as moot, the district court opinion was
vacated, and the action was remanded to the district court with instructions to
dismiss the petition for lack of subject matter jurisdiction.

Rowe v Vargason, 2011 WL 6151523 (D.Minn.) [Australia] [Federal and State Judicial Remedies]

In Rowe v Vargason, 2011 WL 6151523 (D.Minn.) the Respondent moved for a stay pending appeal. The district court noted that it may stay enforcement of a judgment while an appeal is pending pursuant to Fed.R.Civ.P. 62(c) if the following factors support such a stay: "(1) whether the stay applicant has made a strong showing that [s]he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The party seeking such a stay has a difficult burden. Haimdas v.. Haimdas, 720 F.Supp.2d 183,210 (E.D.N.Y.2010) (citing United States v. Private Sanitation Indus. Ass'n, 44 F.3d 1082, 1084 (2d Cir.1994)). The most important factor is the likelihood of success on the merits. Brady v. National Football League, 640 F.3d 785, 789 (8th Cir.2011). The Court found that the proper standard is a strong showing of success on the merits or substantial case on the merits, as set forth in the Hilton decision. The court analyzed the factors and denied the motion.
It found, inter alia, that the Respondent had not made a substantial case on the merits and rejected her argument that a conflict of law exists as to whether evidence of abuse of the mother is sufficient to establish the Article 13(b) defense. The Court disagreed that a conflict of law exists in the circuit courts of appeal as to the relevance of evidence concerning abuse of the mother in determining whether a grave risk of harm exists as to the child. The cases cited by Respondent on this issue applied the same standard as the Eighth Circuit. See Walsh v. Walsh, 221 F.3d 204 (1st Cir.2000); In re Adan, 437 F.3d 381 (3d Cir.2006); Simcox v. Simcox, 511 F.3d 594, 608-09 (6th Cir.2007); Van de Sande v. Van de Sande, 431 F.3d 567, 570 (7th Cir.2005); Baran v. Beaty, 526 F.3d 1340, 1346 (11th Cir.2005). The applicable standard in the Eighth Circuit, and in the cases cited above, is whether Respondent demonstrated, by clear and convincing evidence, that there exists a grave risk that the child would be exposed to harm if returned to Australia. Accordingly, the argument that a conflict of law existed had no merit.

Brosselin v Harless, 2011 WL 6130419 (W.D.Wash.) [France] [Habitual Residence]

In Brosselin v Harless, 2011 WL 6130419 (W.D.Wash.) Nicolas F. Brosselin filed a petition for the return of his child to France. The district court held a hearing and determined that the Hague Convention did not apply to the petition because the child’s habitual residence was Oak Harbor, Washington, not France and dismissed the petition for lack of jurisdiction. Petitioner Brosselin had requested the Court issue an order compelling the return of Petitioner's and Respondent Shannon Harless's son, LT, to France. The Court observed that the Ninth Circuit has counseled that the habitual residence of an infant is determined by examining the parents' mutual, settled intent to move to a new country for a sufficiently "appreciable period of time" for the infant to acclimatize to the new country of residence. “ Petitioner has the burden to prove habitual residence by a preponderance of the evidence.
The Court found that Petitioner Nicolas Brosselin was a citizen and resident of France. Respondent Shannon Harless was a citizen of the United States of America and a legal permanent resident of France. Harless and Brosselin met in 2007 in France and began living together in France in May 2008. Harless became pregnant in January 2009 with a child conceived with Brosselin in France. Harless resided in France with Brosselin until April 2009, when she moved to Oak Harbor, Washington, and began residing with her mother. Harless gave birth to LT in October 2009 in Oak Harbor, Washington. Brosselin was present at the birth. LT had both French and American citizenship. Brosselin returned to France after the birth and organized the purchase of a new home. Emails sent by Harless to Brosselin in November, 2009, showed the house was intended to be shared by Harless, Brosselin, and their son. In December, 2009, Harless and LT travelled to France and stayed with Brosselin until February 6, 2010. On February 6, 2010, Harless and LT travelled back to Oak Harbor, Washington, and returned to Harless's mother's home. Harless held a variety of jobs during her residence in Washington in 2010. In April, 2010, Harless informed Brosselin that she had become engaged to Troy Williams in Oak Harbor. Harless did not return to France. Although the parties disputed whether Harless intended to move back to France, it was clear the relationship between Harless and Brosselin became fractured by this point in 2010. Brosselin traveled to Oak Harbor, Washington to visit LT and Harless in June 2010 for ten days. Brosselin's parents also visited LT and Harless in August 2010. Brosselin made a second trip in October 2010, at which point he proposed marriage to Harless. During this trip Brosselin appeared to have prompted Harless to consider reconnecting with Brosselin in France, but only equivocally. In November, 2010, Harless suffered a severe injury from a horse and spent multiple days in the Harborview Hospital in Seattle. During her recuperation, she continued to reconnect with Brosselin. At some point in January 2011, Harless and Brosselin agreed that Harless and LT would travel to France. On February 2, 2011, Brosselin purchased a round-trip ticket for Harless and LT for travel from February 17, 2011 to May 10, 2011. Harless testified that she was traveling to France to see if she and Brosselin could get along. Brosselin testified that Harless was returning to stay in France permanently. Amy Gumbel, another friend of Harless, spoke to Harless prior to the February 17, 2011 departure, and Harless stated that she was leaving to go back to France for a little while. Harless told Gumbel it was not intended to be an indefinite stay. Harless wrote an email to Brosselin on February 12, 2011, explaining that she believed LT needed more stability than she could offer and that she was "scared and tired." She wrote that she was "ready to start again," but that she wanted Brosselin to "[c]all me, tell me that it's going to be ok ... help me know that I am coming home..not leaving it." In February 17, 2011, Harless traveled to France with LT with four suitcases. She brought clothing and some toys for LT, as well as her own clothes and her horse riding saddle. She did not ship any boxes or move any furniture. She left furniture, baby items, and clothing in her mother's home in Oak Harbor, although she did not possess much. Upon her return to France with LT, took up residence with Brosselin. Although LT had his own bedroom, Harless did not consistently share a room with Brosselin. On March 6, 2011, Brosselin left on a 3-week Army mission to Libya. During their son's absence, Brosselin's parents visited Harless and LT. In this same time frame, Harless wrote to Brosselin: "It's poop to yell all the time ... lets [sic] just talk about happy things and not get into it. I'll settle things down in my own mind and heart." At some point in March, 2011, Harless discovered that Brosselin had become romantically involved with another woman in Ireland, who had been identified as Pauline. Brosselin admited to having traveled to Ireland to be with Pauline for one weekend prior to Harless's arrival in February 2011. He denied any further contact at the hearing, but email records showed he had substantial correspondence with Pauline. Emails between Brosselin and Pauline from March 7, 2011 through March 13, 2011, reveal a significant romantic relationship had developed. On March 9, 2011, Brosselin wrote to Pauline: "I absolutely did not expect to see Shannon burst back into my life with LT under her arm, settle into the house for an undetermined period of time and start to blackmail me in order to be the only woman in my life." He wrote further, "I thought all was over, that I was going to be
able to make a new start at a nice quiet life with you at my side and afterward find a
way to get my son back." He concluded, "I deeply hope at the bottom of my heart
that things can be resolved and bring us [he and Pauline] back to each other." In a second email to Pauline, sent on March 9, 2011, Brosselin wrote "I don't really know what Shannon wants for the long term .. to stay in France, or make my life so impossible that I put her on the plane with a big maintenance allowance every month
and guarantee her that I won't try to take LT away from her.". Brosselin also discovered that Harless continued her romantic relationship with Williams. Brosselin included screen captures of one online sexual encounter between Harless and Williams. A postcard sent by Harless to Williams dated March 5, 2011 includes Harless's protestation of love for Williams and her desire to return to him. In or around March 18, 2011, Harless's friend Margaret Sara Celik visited Harless and LT in France. She testified that Harless was living out her suitcase and had not settled in the home.
On April 1, 2011, Harless renewed her French business license and contacted the
Mayor of Bras sur Meuse, France, to set up a work opportunity. Harless also gave
some English teaching lessons. Harless also signed up for a one-year membership at a
horse riding facility. Harless also obtained medical insurance coverage with the aid of Brosselin in March. From March 1 through April 30, 2011, LT received in-home babysitting care and also spent time in daycare. After his return from his mission, on April 10, 2011, Brosselin called the police to intervene in a domestic dispute. He also called his parents for assistance. On May 2, 2011, Harless filed a complaint with the French police that she had been psychologically abused by Brosselin. On May 3, 2011, Harless took LT from France to Luxemburg and flew back to the United States on a new ticket purchased by her mother. Brosselin attempted to contact Harless and LT in the United States, but his phone calls and emails have been largely unanswered. Brosselin demanded the return of his child. Harless has not made LT available to his father on any consistent basis. Brosselin commenced this lawsuit on November 7, 2011.
In examining the testimony about the parties' mutual intent to move LT permanently to France, the Court found neither one to be particularly credible. Ultimately the parties' testimony showed that neither shared a mutual intent to have Harless and LT settle in France indefinitely, a fact that the other evidence in the record confirmed. The Court stated that it had to answer the question of whether LT's parents shared a settled intent to move LT to France, and that he stayed there for a sufficiently "appreciable period of time" for him to acclimatize to the new country of residence. See Holder, 392 F.3d at 1015. The Court examined the issue of settled intent before turning to the acclimatization of the child. It indicated that Petitioner must show first that he and Harless shared a settled intent to have LT abandon his residence in Oak Harbor, Washington. Holder, 392 F.3d at 1015. There is no rigid definition of "settled intent," although the Court is instructed to examine the mutual intent of the parents at the time of the translocation and shortly thereafter. Id. at 1017; Papakosmas v. Papakosmas, 483 F.3d 617, 622 (9th Cir.2007). The parties and the Ninth Circuit agreed that when the child involved is a young infant, "we look to the subjective intent of the parents, not the children." Hodler, 392 F.3d at 1016. Where the "parents no longer agree on where the children's habitual residence has been fixed, we must look beyond the representations of the parties and consider 'all available evidence.' " (quoting Mozes v. Mozes, 329 F.3d 1067, 1076 (9th Cir.2004)). There are no bright line rules as to when habitual residence changes. Rather, a flexible application of the law to the unique facts of every case has created a continuum. On the one end of the spectrum are cases where "the court finds that the family as a unit has manifested a settled purpose to change habitual residence, despite the fact that one parent may have had qualms about the move." Mozes, 239 F.3d at 1076. This occurs where "both parents and the child translocate together under circumstances suggesting that they intend to make their home in the new country."The Court will usually find abandonment of the habitual residence in favor of the new country, even if one parent's reservations about the move stand in the way of settled intent. On the other end of the continuum "are cases where the child's initial translocation from an established habitual residence was clearly intended to be of a specific, delimited period." The present dispute before the Court fell somewhere in between these cases, though clearly closer to the latter.
The Court observed that the case was similar to Papakosmas, where the Court found a family's relocation from California to Greece did not result in the changed habitual residence of the two children in part because the parents did not appear to share a mutual intent to relocate permanently to Greece. 438 F.3d 617.The court found the four-month move was conditional where the evidence showed the husband was selling the couple's American property without his wife's knowledge, the parents lacked employment in Greece, the husband had an affair in Greece, and the couple continued to operate an American business.The case differs to the extent that both husband and wife moved together, but it shares common elements of deception between the parents as evidence lack of settled intent. It observed that a A Fourth Circuit case, Maxwell v. Maxwell, was hauntingly similar to the present case, and worth an in-depth examination. 588 F.3d 245 (4th Cir.2009). The district court and the Fourth Circuit in Maxwell agreed that Kristina and the children's move to Australia was conditional and experimental, and not a change in habitual residence. Id. at 251.The courts held that there was an absence in parental shared intent to move the children to Australia indefinitely particularly where the parties provided conflicting testimony. Looking beyond representations of the parties, the Fourth Circuit found a lack of settled intent in the absence of marital stability, the retention of ties to the United States, and the lack of stability in the home environment. The Court found these factors relevant to the present dispute and the decision in Maxwell instructive.
Brosselin was unable to show that he and Harless possessed a settled intent to
move to France indefinitely. It was clear that at some point in January 2011, Harless and Brosselin agreed that Harless would travel to France with LT. While Brosselin maintained that the stay was to be indefinite, the record appeared otherwise. Harless's intentions as to where to reside seemed in constant flux. Upon her return to Oak Harbor in 2010, she quickly became engaged to Williams and lived either with her mother or Williams. She appeared only to have reconnected with Brosselin in November 2010, at a time that she appeared to have still been engaged with Williams. Central to Harless's lack of settled intent is an email she wrote to Brosselin on February 12, 2011, five days before her departure. The email captures quite clearly the tentative intent of her trip: "[c]all me, tell me that it's going to be ok ... help me know that I am coming home..not leaving it." In addition to the unsettled nature of her relationship with Brosselin and Williams, and the ties she left in Washington, this email shows that Harless's return trip was more an experiment than a commitment to stay in France. Brosselin's testimony at the hearing that Harless was moving for an indefinite period is also undermined by emails he wrote to Pauline on March 9, 2011. He told Pauline that he "absolutely did not expect to see Shannon burst back into my life with LT under her arm, [and] settle into the house for an undetermined period of time...." He also wrote to Pauline that he did not "know what Shannon wants for the long term." The Court did not find credible Brosselin's testimony these emails were entirely false and only intended to protect Pauline's feelings. They were probative of the lack of certainty as to Harless's intent and reflect Brosselin's recognition of this fact. They also showed that Brosselin was still attempting to maintain his relationship with Pauline after Harless arrived in France despite the fact he testified that he was only in love with Harless at this time. Given the parties' disputed testimony, the Court, as in Maxwell, looked to other evidence that makes clear there was no shared intent. Most notably, the record showed that the relationship between Harless and Brosselin was not stable and that there was little stability in the home after Harless's arrival in February 2011. The Court did not find Brosselin's evidence of Harless's intent to remain in France convincing. Based on the record and testimony, the Court did not find a settled mutual intent to relocate to France and change LT's habitual residence. Whatever Brosselin might have wished, Harless lacked any firm commitment to live in France indefinitely. As Brosselin wrote in his emails, Harless changed her mind frequently. Neither Harless she nor Brosselin trusted each other as they both carried on relationships with other persons. Harless lived out of her suitcase, did not become settled, and the relationship was dysfunctional enough to require police intervention. It is difficult for the Court to imagine how a young child such as LT might be settled in such an environment where his parents' mood swings dominated the home environment. The Court thus concluded that LT's habitual residence has not changed from Washington to France because there was no mutual settled intent to move LT to France indefinitely. The Hague Convention did not therefore apply, and the Court dismissed the action.

Walker v Walker, 2011 WL 5008533 (N.D.Ill.) [Australia] [Habitual Residence] [Abandonment and Consent]

In Walker v Walker, 2011 WL 5008533 (N.D.Ill.) Petitioner sought to secure the return of his children to Australia who he claimed were wrongfully removed from Australia and wrongfully retained in the United States by Respondent Norene Ann Walker, the mother of the children. At the evidentiary hearing the Petitioner testified, and Respondent moved for a directed verdict. The court found based on its observations in court of Petitioner's testimony and demeanor, that the Petitioner was being evasive during the evidentiary hearing. Nor was the Petitioner's testimony in certain regards credible on its face. The Court found that Respondent's testimony was entirely credible.
The District Court found that Petitioner and Respondent were married in Evanston, Illinois and lived in Seattle, Washington for approximately eight years before moving to Australia, and, while residing in the United States, the oldest of the Children was born. In 1998 Petitioner, Respondent, and their child moved to Australia. Before the family moved to Australia, the Petitioner promised Respondent that the move would only be for five years and the family would then return to the United States. While living in Australia, the two younger Children were born. Petitioner, Respondent, and their three Children resided in Australia prior to June 2010, but made several extended trips to the United States. In June 2010, Petitioner, Respondent, and the Children traveled to the United States and prior to coming to the United States made arrangements for the Children to attend school in the United States until June 2011. Upon arriving in the United States, Petitioner, Respondent, and the Children went on a vacation on the west coast and looked for housing before moving in the building that the Respondent's parents resided in. In July 2010, Petitioner returned to Australia and Respondent and the three Children remained in the United States. In September 2010, the Children enrolled in school in the United States. Petitioner helped in arranging for the transfer of transcripts from Australia to the United States to assist in the enrollment of the Children in school in the United States. Petitioner knew that the Children would attend school in the United States at least until June 2011. In November 2010, Respondent filed for a divorce in the United States. In a Jan 21 Letter, Petitioner consented that the Children could continue to live permanently with the Respondent in the United States.
The Respondent decided to permanently remain in the United States with the
Children when she received the Jan 21 Letter. Respondent responded to the Jan 21 Letter with the Jan 30 Letter and Petitioner then replied with the Feb 16 Letter. After consenting for the Children's permanent residence in the United States in the Jan 21 Letter, nowhere in the Feb 16 Letter did the Petitioner demand the return of the Children to Australia. Instead, in the Feb 16 Letter, Petitioner continued to bargain relating to a property settlement and the amount relating to the support of the Children.
Petitioner did not visit the Children after he left the United States in July 2010 and
before he filed the Petition. Petitioner failed to support his Children financially for several months before filing the Petition and Respondent had to borrow money and work to support the Children. Petitioner did not demand the return of the Children until five months after he had consented for the Children to remain in the United States permanently with the Respondent and seven months after Respondent filed for divorce, indicating that she would seek custody of the Children. It was only after the Respondent filed for divorce and the Petitioner was unsuccessful in persuading the Respondent not to seek default against him that Petitioner had second thoughts and decided to file a charge of abduction of the Children under the Convention and demand the return of the Children to Australia.
The District Court found that Petitioner has failed to show any wrongful
removal. Petitioner not only consented for the Children's travel to the United States in June 2010, but he actually accompanied the Children to the United States. In addition, Petitioner, Respondent, and the Children went on a vacation to the west coast of the United States before Petitioner returned to Australia. Thus, even if the court considered that the Children's habitual residence was in Australia prior to June 2010, based on the above facts, Petitioner failed to meet his burden of showing a wrongful removal of the Children.
Petitioner also brought a wrongful retention claim contending that the Children
were wrongfully retained in the United States after they arrived in June 2010. For a
wrongful retention claim under the Convention, a petitioner must establish by a
preponderance of the evidence: (1) that the child is under the age of 16 years, (2) the
child was wrongfully retained, (3) the child was wrongfully retained from his or her
habitual residence, and (4) the retention was in violation of the custody rights of the
parent that remains in the habitual residence of the child. A retention occurs when the
petitioner "unequivocally signaled h[is] opposition to [the child's] presence in the United
States," and at that point the child "remained with [the parent in the United States]
against [the other parent's] wishes and was therefore retained." Karkkainen v.
Kovalchuk, 445 F.3d 280, 290-91 (3rd Cir.2006). Based on the evidence presented in this case, the alleged wrongful retention occurred on May 4, 2011, when the Petitioner filed the original Petition under the Convention alleging wrongful retention. Prior to that date, there was no evidence that any wrongful retention of the Children occurred. Since the date of the alleged wrongful retention was May 4, 2011, Petitioner had the burden to establish by a preponderance of the evidence that immediately before that date, the Children were being retained away from their habitual residence in violation of
the custody rights of the Petitioner in Australia. The Seventh Circuit has held that a child's habitual residence is determined by " 'the shared actions and intent of the parents coupled with the passage of time.' " Norinder, 2011 WL 3966153, at *5 (quoting Koch v. Koch, 450 F.3d 703 (7th Cir.2006)); see also Koch, 450 F.3d at 715 (7th Cir.2006) (stating that the "establishment of a habitual residence requires an actual change in geography, as well as the passage of an appreciable amount of time"). The Seventh Circuit has indicated that "habitual residence must encompass some form of settled purpose but the settled purpose need not be to stay in the new location forever; rather the family must have a sufficient degree of continuity to be described as settled." Koch, 450 F.3d at 717 (citing Silverman v. Silverman, 338 F.3d 886, 896 (8th Cir.2003)). The Seventh Circuit has cautioned, however, that in regard to the determination of a habitual residence, the "shared intent to someday return to a prior place of residence does not answer the primary question of whether that residence was effectively abandoned and a new residence established by the shared actions and intent of the parents coupled with the passage of time." . In addition, the length of the time that the child has spent in one country "cannot be decisive," because otherwise a
parent could establish a habitual residence of a child by the "wrongful removal and
sequestering of a child." Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir.2006) (quoting Diorinou v. Mezitis, 237 F.3d 133, 142 (2d. Cir.2001)).
Petitioner failed to establish by a preponderance of the evidence that at the time of the alleged wrongful retention, the Children's habitual residence was Australia. The evidence showed that immediately before May 4, 2011, the date of the alleged wrongful retention, the Children's habitual residence was the United States. The Children's habitual residence became the United States at the latest after January 21, 2011, and there was ample evidence indicating that Petitioner and Respondent shared an intent to make the Children's habitual residence the United States sooner than January 21, 2011. For example, Petitioner clearly indicated his consent in the Jan 21 Letter. Petitioner then took no action to attempt to visit the Children or to get the Children returned to Australia until five months later. There was also evidence that even prior to January 2011 Petitioner looked for houses in the United States and indicated an intent to have the children permanently remain in the United States. Petitioner stated in the Feb 16 Letter that he had returned to Australia in July 2010 "for business reasons," thus indicating that he was not returning to Australia temporarily for business reasons.
Respondent contended that Petitioner abandoned the Children in the United
States. After returning to Australia in July 2010 and at the latest in January 2011, Petitioner abandoned the Children. Petitioner did not return to visit and offered no justification for failing to visit since July 2010. Petitioner, who was the sole breadwinner of the Family, also ultimately cut the Respondent and the Children off from financial support. Although Petitioner had correspondence with Respondent in the Jan 21 and Feb 16 Letters, the main concern of Petitioner in such correspondence was the negotiation of support payments and property settlement. Respondent had shown that after returning to Australia in July 2010 and at the latest in January 2011, Petitioner abandoned the Children. Therefore, based on the above, Petitioner failed to establish his prima facie case by a preponderance of the evidence that the Children were wrongfully retained from their habitual residence at the time of the alleged wrongful retention.
The Court granted Respondent's motion for a directed verdict on the wrongful
removal claim. The Petition for Return was denied as Petitioner has failed to establish that the Children were wrongfully removed or wrongfully retained in the United States. The court found that even if Petitioner could establish a wrongful removal or retention, the consent exception and abandonment of custody rights under the Convention applied.

Tucker v Ellenby, 2011 WL 5361154 (S.D.Fla.) [Belize] [Yunger and Colorado River Abstention]

In Tucker v Ellenby, 2011 WL 5361154 (S.D.Fla.) Petitioner claimed that Respondent wrongfully removed their two-year old son, Mateo Robinson Tucker, from his habitual residence of Belize and was wrongfully retaining the child in the United States, without his consent and in violation of his custody rights over the child. Prior to the filing of the Petition, on March 29, 2011, Respondent filed a petition for dissolution of marriage in the Circuit Court of the 11th Judicial Circuit in Miami-Dade County, Florida, seeking in part sole parental custody of the child. The case was pending until very recently. Parental time-sharing was ordered but final determinations on dissolution and custody have not yet been made. It was undisputed that Petitioner did not ask the state court to order that the child be returned to Belize based on allegations of wrongful removal and retention pursuant to the Hague Convention and ICARA or on any other basis.
Respondent argued that the District Court should abstain from deciding the Petition and allow the issues raised therein to be decided in the state custody proceeding pursuant to the Younger and Colorado River abstention doctrines. The District Court rejected her argument. It observed that Federal courts have a "virtually unflagging obligation ... to exercise the jurisdiction given them." 31 Foster Children v. Bush, 329 F.3d 1255, 1274 (11th Cir.2003) (citing Colorado River, 424 U.S. at 817)). "Virtually" is not "absolutely," however, and in exceptional cases federal courts may and should withhold equitablerelief to avoid interference in state proceedings. "The Younger doctrine, which counsels federal-court abstention when there is a pending state proceeding, reflects a strong policy against federal intervention in state judicial processes in the absence of great and immediate irreparable injury to the federal plaintiff." Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). This doctrine is an exception to the general rule of nonabstention and derives from "the vital consideration of comity between the state and national governments." 31 Foster Children, 329 F.3d at 1274 (internal citation omitted). Under Younger, abstention is warranted when (1) there is an ongoing state judicial proceeding with which the federal proceeding would interfere; (2) the state court proceeding implicates important state court interests; and (3) the state court proceeding provides the petitioner with an adequate opportunity to raise his claims. Yang v. Tsui, 416 F.3d 199, 202 (3d Cir.2005).
The District Court concluded that Respondent failed to demonstrate that its adjudication of the Hague Convention claim would interfere with the ongoing state custody proceeding, an essential showing under the first Younger factor. In deciding this issue, it looked to the relief requested and the effect it would have on the state proceeding. The adjudication of the issues raised in the Petition--whether the child's removal from Belize and his retention in this country were wrongful and, if so, whether he should be returned to Belize--would not affect the custody determination that would be made in state court pursuant to state family law. In Yang, because the Hague Convention had not been raised in the state custody proceeding, the court concluded that the federal court's adjudication of a Hague Convention petition would not interfere with the state action. As in Yang, in this case the Hague Convention was not raised in the state proceeding. Because there was no Hague Convention claim pending in the state proceeding, the adjudication of the Petition would not interfere with the state proceeding. If a custody proceeding does not have a Hague Convention claim before it, an adjudication of such a claim by the federal court would not constitute interference." The second Younger factor, whether the state proceeding implicates important state court interests, likewise did not support abstention. It could not be disputed that the
State of Florida has a strong interest in domestic relations and custody matters, but
they are not issues in the case. The Petition sought the return of the child "under the
Hague Convention and ICARA, which is a federal statutory matter." If a federal court abstained from adjudicating a Hague Convention petition simply because child custody was being disputed in state court, the Hague Convention and ICARA would be rendered meaningless. Finally, Respondent failed to establish the third Younger factor for abstention. Although the state court has jurisdiction to entertain a Hague Convention petition, Petitioner did not raise such a claim in the state proceeding. He chose instead to file the Petition in federal court. It was unlikely, therefore, that Petitioner would have an adequate opportunity to raise his Hague Convention claims in the state forum. Because Respondent failed to meet the Younger requirements for abstention, the court denied her motion on that ground.
Respondent also asked the Court to abstain from adjudicating the merits of the Petition under the Colorado River abstention doctrine. This doctrine allows abstention by a federal court in favor of a parallel state proceeding based on "considerations of '(w)ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.' " Colorado River, 424 U.S. at 817. Abstention from federal jurisdiction is the exception, however, not the rule. Lops, 140 F.3d at 942. When a parallel state court proceeding exists, the Supreme Court has outlined six factors to consider in determining whether to abstain and dismiss a federal action: (1) whether one of the courts has assumed jurisdiction over any property in issue; (2) the inconvenience of the federal forum; (3) the potential for piecemeal litigation; (4) the order in which the forums obtained jurisdiction; (5) whether federal or state law will be applied; and (6) the adequacy of each forum to protect the parties' rights. No one factor is per se determinative; how each factor is weighed depends on the facts of each case. When on balance the factors weigh against abstention, the federal court should
proceed notwithstanding the existence of the a parallel state proceeding. The Court first had to determine whether the concurrent state and federal cases were in fact
parallel proceedings. The cases need not involve identical parties, issues, and requests
for relief. Ambrosia Coal & Constr. Co. v. Pages Morales, 368 F.3d 1320, 1329-30
(11th Cir.2004). Rather, they must "involve substantially the same parties and
substantially the same issues." If the cases are not parallel, the Colorado
River doctrine does not apply. The Court found that this threshold test had not been met. Arguably the parties were not substantially the same. Petitioner was asserting a wrongful retention claim against the Ellenbys in federal court whereas neither of the Ellenbys was a party to the divorce and custody proceeding in state court. Although the relief requested in federal court was the return of the child to Belize, which based on the facts of the case was directed more toward Respondent than her parents who allegedly were assisting in the wrongful retention of the child, the Ellenbys were nevertheless subject to this Court's jurisdiction, once properly invoked, under the Hague Convention. More significant to the determination was the fact that the issues were not substantially similar. The subject matter of the two cases was decidedly different. The Court could not decide issues of custody, only which jurisdiction should properly determine custody. And the state court cannot decide whether the child should be returned to Belize. The fact that the same evidence could be used in both proceedings does not mean the issues are necessarily substantially similar. Even assuming the existence of a parallel state proceeding, the Court found abstention under Colorado River inappropriate. It considered all of the factors and found that they strongly militated against abstention under the Colorado River doctrine. Accordingly, Respondent's motion was denied on this basis.

Dalsgaard v Montoya, 2011 WL 5037223 (M.D.Fla.) [Denmark] [Habitual Residence] [Wishes of the Child defense]

In Dalsgaard v Montoya, 2011 WL 5037223 (M.D.Fla.) the District Court granted the father’s petition under the Hague Convention for the return of his eight-year-old daughter to Denmark, which it found was the father's residence, the daughter's habitual residence, and the situs of the marriage, the divorce, and the creation and enforcement of the custody rights at issue.
Eight-year-old D.S.D. lived in Denmark since infancy. Her parents, Peter Dalsgaard and Denise Montoya, were divorcing, in Denmark. The parents shared joint custody of D.S.D., and under Danish law parents with joint custody must each consent to a child's remaining abroad. A March, 2011, agreement signed by both parents allowed D.S.D. to visit Montoya, who moved to the United States after the separation, from June 25, 2011, until August 1, 2011. On August 1st Dalsgaard flew to Tampa, Florida, to accompany his daughter during her return to Denmark in
accord both with the agreement and with Danish law. D.S.D. refused to return with her father; the preponderant evidence suggests Montoya and her family assented to, and perhaps fueled and encouraged, D.S.D.'s resistence. Dalsgaard returned to Denmark and gained full temporary custody of D.S.D. from the pertinent Danish authority. On September 28, 2011, Dalsgaard petitioned the District Court for D.S.D's return to Denmark under the Hague Convention on the Civil Aspects of International Child Abduction. After a hearing the court orally ordered D.S.D. returned to Dalsgaard and to Denmark on Tuesday, October 25, 2011.
Montoya exerted no effort arguing that D.S.D.'s "habitual residence" is the United States. Nor could Montoya argue with any success that no retention occurred. "[T]he term 'retention' is meant to cover the circumstances where a child has been prevented from returning to h[er] usual family and social environment." Pielage, 516 F.3d at 1288. A "retention" began when without Dalsgaard's consent Montoya kept D.S.D. in the United States and away from "her usual family and social environment" after August 1st. Montoya protested that no "intentional" or "overt" retention occurred because she merely acquiesced to D.S.D.'s desire to remain. Although whether the retention is intentional is not controlling under the Convention, Montoya signed an agreement under which her eight-year-old was due back in Denmark on August 1st. The record was devoid of evidence that Montoya insisted or even urged D.S.D. to return to Denmark--certainly nothing suggests that Montoya attempted to enforce the agreement with the persistence, authority, and persuasion typifying the responsible parent of an eight-yearold. The Convention grants Montoya no presumption of neutral (let alone pristine) motivation. The retention that began August 2nd was "wrongful" under the Convention. A retention is not "wrongful" because of an abductor's intentions; a retention is "wrongful" because of a violation of a custody right in the child's habitual residence. D.S.D.'s habitual residence is Denmark, and the question is whether Montoya retained D .S.D. in contravention of Danish law. Under Chapter 1, Section 3 of the Danish Act on Parental Responsibility: (1) If the parents have joint custody, they must agree on significant decisions regarding the child. The parent with whom the child lives can make decisions about general day-to-day matters relating to the child, including where in Denmark the child will have his or her habitual place of residence. (2) If the parents have joint custody but disagree about the custody, they both have to give their consent for the child to leave the country.... They also have
to give their consent if the child's stay abroad ... is extended beyond the agreed, presumed, or specified duration, unless an agreement has been made according to section 17(1)....Under Chapter 3, Section 17, "(1) If the parents have joint custody and disagree about which parent the child should live with, the court will decide the matter.... (2) The court can change an agreement or a decision about a child's place of residence." A letter from the Department of Family Affairs to the State Department confirmed that under Danish law "[b]oth parents must [ ] consent if a child's stay in a foreign country is extended beyond what is decided or agreed." see Familiestyrelsen, Legislation and Rules,
http://www.familiestyrelsen.dk/en/englishversion/legislationandrules/ (last visited Oct. 22, 2011); Hague Convention, Art. 14 (permitting direct judicial notice of the law of the habitual residence).
Dalsgaard and Montoya's March, 2011, agreement declared joint custody and
provided that D.S.D. will visit the United States for "specified duration[s]." Unless a Danish court orders otherwise, Danish law required that Dalsgaard consent before D.S.D. remained outside Denmark for longer than the "agreed, presumed, [ ] specified duration."
The Court found that Montoya's retention of D.S.D. violated Danish law. A Danish state administration granted Dalsgaard temporary full custody, which further proved that Montoya retained D.S.D. in violation of the law of D.S.D.'s habitual residence. Also, Dalsgaard applied for temporary full custody on August 2nd, the day that Montoya's wrongful retention of D.S.D. began. Not that Montoya challenged the point, but the order confirmed that Dalsgaard unquestionably exercised his custody rights when the wrongful retention began.
Montoya claimed that Dalsgaard consented to the retention and that D.S.D. "objects to being returned and has attained an age and degree of maturity at which it is
appropriate to take account of [her] views." Montoya's argument that Dalsgaard consented to the retention required no attention because the only evidence of consent under the Hague Convention was the evidence that fails to show consent under Danish law, namely, the "re-assessment" provision of the March, 2011, agreement. The one difference is the burden of proof; under Article 13 of the Hague Convention and ICARA, Montoya had to demonstrate consent by a preponderance of the evidence. No evidence showed that Dalsgaard consented under Danish law to D.S.D.'s move to
the United States. That left D.S.D.'s state of mind and "degree of maturity." The burden was again Montoya's by a preponderance of the evidence, though even if D.S.D. was mature and objected to return, application of the exception was not mandatory. The Court indicated that before the evidentiary hearing, an hour and twenty minute in camera interview of D.S.D. transpired; no lawyers and no parents. Although a vibrant, cheerful, and delightful guest in chambers, D.S .D. when questioned had little to say about her parents' dispute. D.S.D. expressed in head nods and one-word sentences a preference to remain in the United States. Her reticent and laconic responses (she had plenty to say about other matters) left the depth and sophistication of her conviction, and the maturity behind her conviction, highly doubtful. Contributing to this doubt, Montoya conceded that D.S.D. was "in a lot of turmoil right now" and "has to digest a lot of things." Montoya admitted also that D.S.D.'s desire to
remain in the United States wavered. Dalsgaard asserted that D.S.D.'s preference to remain in the United States was the product of Montoya and her family's influence. Montoya denied that D.S.D. experienced untoward manipulation. Based on her testimony, however, Montoya conspicuously failed to explain to D.S.D. that D.S.D. was supposed to return to Dalsgaard on August 1st. The evidence suggested that Montoya allowed a belief to fester in D.S.D. that returning to Denmark betrayed Montoya. The point was, even if Montoya inflicted no "undue" influence, D.S.D. behaved as if she believes she must elect between her parents, and her unenviable position obviously agonized her. Head nods and monosyllables in favor of the status quo--an eight-year-old's best effort at a balance of terror–was the closest D.S.D. can get to appearing to favor neither parent. The sentiments of a perspicacious district judge addressing a Hague Convention petition for a ten-year-old boy resonate. D.S.D. was not afraid of the girlfriend, who in fact treated D.S.D. well by D.S.D.'s own account.
The Court concluded that D.S.D.'s distressing story fully justified an order to return.

Walker v Walker, 2011 WL 5008533 (N.D.Ill.) [Australia] [Habitual Residence] [Abandonment and Consent]

In Walker v Walker, 2011 WL 5008533 (N.D.Ill.) Petitioner sought to secure the return of his children to Australia who he claimed were wrongfully removed from Australia and wrongfully retained in the United States by Respondent Norene Ann Walker, the mother of the children. At the evidentiary hearing the Petitioner testified, and Respondent moved for a directed verdict. The court found based on its observations in court of Petitioner's testimony and demeanor, that the Petitioner was being evasive during the evidentiary hearing. Nor was the Petitioner's testimony in certain regards credible on its face. The Court found that Respondent's testimony was entirely credible.
The District Court found that Petitioner and Respondent were married in Evanston, Illinois and lived in Seattle, Washington for approximately eight years before moving to Australia, and, while residing in the United States, the oldest of the Children was born. In 1998 Petitioner, Respondent, and their child moved to Australia. Before the family moved to Australia, the Petitioner promised Respondent that the move would only be for five years and the family would then return to the United States. While living in Australia, the two younger Children were born. Petitioner, Respondent, and their three Children resided in Australia prior to June 2010, but made several extended trips to the United States. In June 2010, Petitioner, Respondent, and the Children traveled to the United States and prior to coming to the United States made arrangements for the Children to attend school in the United States until June 2011. Upon arriving in the United States, Petitioner, Respondent, and the Children went on a vacation on the west coast and looked for housing before moving in the building that the Respondent's parents resided in. In July 2010, Petitioner returned to Australia and Respondent and the three Children remained in the United States. In September 2010, the Children enrolled in school in the United States. Petitioner helped in arranging for the transfer of transcripts from Australia to the United States to assist in the enrollment of the Children in school in the United States. Petitioner knew that the Children would attend school in the United States at least until June 2011. In November 2010, Respondent filed for a divorce in the United States. In a Jan 21 Letter, Petitioner consented that the Children could continue to live permanently with the Respondent in the United States. The Respondent decided to permanently remain in the United States with the Children when she received the Jan 21 Letter. Respondent responded to the Jan 21 Letter with the Jan 30 Letter and Petitioner then replied with the Feb 16 Letter. After consenting for the Children's permanent residence in the United States in the Jan 21 Letter, nowhere in the Feb 16 Letter did the Petitioner demand the return of the Children to Australia. Instead, in the Feb 16 Letter, Petitioner continued to bargain relating to a property settlement and the amount relating to the support of the Children. Petitioner did not visit the Children after he left the United States in July 2010 and before he filed the Petition. Petitioner failed to support his Children financially for several months before filing the Petition and Respondent had to borrow money and work to support the Children. Petitioner did not demand the return of the Children until five months after he had consented for the Children to remain in the United States permanently with the Respondent and seven months after Respondent filed for divorce, indicating that she would seek custody of the Children. It was only after the Respondent filed for divorce and the Petitioner was unsuccessful in persuading the Respondent not to seek default against him that Petitioner had second thoughts and decided to file a charge of abduction of the Children under the Convention and demand the return of the Children to Australia.
The District Court found that Petitioner has failed to show any wrongful
removal. Petitioner not only consented for the Children's travel to the United States in June 2010, but he actually accompanied the Children to the United States. In addition, Petitioner, Respondent, and the Children went on a vacation to the west coast of the United States before Petitioner returned to Australia. Thus, even if the court considered that the Children's habitual residence was in Australia prior to June 2010, based on the above facts, Petitioner failed to meet his burden of showing a wrongful removal of the Children.
Petitioner also brought a wrongful retention claim contending that the Children
were wrongfully retained in the United States after they arrived in June 2010. For a
wrongful retention claim under the Convention, a petitioner must establish by a
preponderance of the evidence: (1) that the child is under the age of 16 years, (2) the
child was wrongfully retained, (3) the child was wrongfully retained from his or her
habitual residence, and (4) the retention was in violation of the custody rights of the
parent that remains in the habitual residence of the child. A retention occurs when the
petitioner "unequivocally signaled h[is] opposition to [the child's] presence in the United
States," and at that point the child "remained with [the parent in the United States]
against [the other parent's] wishes and was therefore retained." Karkkainen v.
Kovalchuk, 445 F.3d 280, 290-91 (3rd Cir.2006). Based on the evidence presented in this case, the alleged wrongful retention occurred on May 4, 2011, when the Petitioner filed the original Petition under the Convention alleging wrongful retention. Prior to that date, there was no evidence that any wrongful retention of the Children occurred. Since the date of the alleged wrongful retention was May 4, 2011, Petitioner had the burden to establish by a preponderance of the evidence that immediately before that date, the Children were being retained away from their habitual residence in violation of the custody rights of the Petitioner in Australia. The Seventh Circuit has held that a child's habitual residence is determined by " 'the shared actions and intent of the parents coupled with the passage of time.' " Norinder, 2011 WL 3966153, at *5 (quoting Koch v. Koch, 450 F.3d 703 (7th Cir.2006)); see also Koch, 450 F.3d at 715 (7th Cir.2006) (stating that the "establishment of a habitual residence requires an actual change in geography, as well as the passage of an appreciable amount of time"). The Seventh Circuit has indicated that "habitual residence must encompass some form of settled purpose but the settled purpose need not be to stay in the new location forever; rather the family must have a sufficient degree of continuity to be described as settled." Koch, 450 F.3d at 717 (citing Silverman v. Silverman, 338 F.3d 886, 896 (8th Cir.2003)). The Seventh Circuit has cautioned, however, that in regard to the determination of a habitual residence, the "shared intent to someday return to a prior place of residence does not answer the primary question of whether that residence was effectively abandoned and a new residence established by the shared actions and intent of the parents coupled with the passage of time." . In addition, the length of the time that the child has spent in one country "cannot be decisive," because otherwise a parent could establish a habitual residence of a child by the "wrongful removal and sequestering of a child." Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir.2006) (quoting Diorinou v. Mezitis, 237 F.3d 133, 142 (2d. Cir.2001)).
Petitioner failed to establish by a preponderance of the evidence that at the time of the alleged wrongful retention, the Children's habitual residence was Australia. The evidence showed that immediately before May 4, 2011, the date of the alleged wrongful retention, the Children's habitual residence was the United States. The Children's habitual residence became the United States at the latest after January 21, 2011, and there was ample evidence indicating that Petitioner and Respondent shared an intent to make the Children's habitual residence the United States sooner than January 21, 2011. For example, Petitioner clearly indicated his consent in the Jan 21 Letter. Petitioner then took no action to attempt to visit the Children or to get the Children returned to Australia until five months later. There was also evidence that even prior to January 2011 Petitioner looked for houses in the United States and indicated an intent to have the children permanently remain in the United States. Petitioner stated in the Feb 16 Letter that he had returned to Australia in July 2010 "for business reasons," thus indicating that he was not returning to Australia temporarily for business reasons.
Respondent contended that Petitioner abandoned the Children in the United
States. After returning to Australia in July 2010 and at the latest in January 2011, Petitioner abandoned the Children. Petitioner did not return to visit and offered no justification for failing to visit since July 2010. Petitioner, who was the sole breadwinner of the Family, also ultimately cut the Respondent and the Children off from financial support. Although Petitioner had correspondence with Respondent in the Jan 21 and Feb 16 Letters, the main concern of Petitioner in such correspondence was the negotiation of support payments and property settlement. Respondent had shown that after returning to Australia in July 2010 and at the latest in January 2011, Petitioner abandoned the Children. Therefore, based on the above, Petitioner failed to establish his prima facie case by a preponderance of the evidence that the Children were wrongfully retained from their habitual residence at the time of the alleged wrongful retention.
The Court granted Respondent's motion for a directed verdict on the wrongful
removal claim. The Petition for Return was denied as Petitioner has failed to establish that the Children were wrongfully removed or wrongfully retained in the United States. The court found that even if Petitioner could establish a wrongful removal or retention, the consent exception and abandonment of custody rights under the Convention applied.