In Ramirez v Buyauskas, 2012 WL 606746 (E.D.Pa.) the District Court denied the Petition for return of his three children, filed by Francisco Javier Montes Ramirez, a Mexican citizen. The Petition was filed on October 13, 2011. Petitioner was a Mexican national who resided in Zapopan, in the Mexican state of Jalisco. Around 1992, while visiting his sister in Philadelphia, petitioner met respondent at a party. Respondent, a United States citizen, moved to Mexico to live with petitioner approximately three months after they met. They married in West Chester, Pennsylvania, on August 23, 1997 and had three children together: Francisco Javier, Junior, born January 7, 2000, age twelve ("Paco" or "Paquito") (referred to as "Paquito"); Kate Alexis, born August 14, 2003, age eight ("Katie"); and Chelsey Megan, born March 3, 2009, age two. All three children were born in the United States and were United States citizens, but, with the exception of some visits to relatives in the greater Philadelphia area, they never resided in the United States before August 2010. In Mexico, Paquito was most recently enrolled in fifth grade, and Katie was in second grade; Chelsey was too young for school. The children attended a large public school at which the school day lasted four hours. The children received inadequate medical care in Mexico because the family
lacked medical insurance. In Mexico, the children did not have regular doctors or dentists, and they only were able to see a doctor when they were sick. After Paquito arrived in the United States, respondent learned that Paquito had contracted a latent form of tuberculosis in Mexico that required nine months of antibiotic treatment.
As of June 2010, respondent had recently reconnected with her biological
father, Richard Buyauskas, who lived in Houston, Texas, after an extensive period
during which they did not communicate. On about June 11, 2010, Richard Buyauskas purchased airline tickets for respondent, Paquito, Katie, and Chelsey. The airline tickets were for round-trip travel between Guadalajara, Mexico, and Houston, Texas. Respondent and the children were to leave Mexico on July 12, 2010, and to return to Mexico on September 3, 2010. Petitioner believed that respondent was planning to travel to the United States with the children in July 2010 "[t]o visit her father, her new father, to travel here to Philadelphia to visit her mother, and to return to Mexico" on September 3, 2010. Petitioner had "a concern" about the trip because he was worried that respondent and the children might not return. Respondent had told him that she wanted the family to move to the United States, but petitioner was hesitant to agree because respondent was just reconnecting with her biological father. The Court found that Petitioner did not consent to respondent and the children moving to the
United States permanently in July 2010. Petitioner executed a document that gave respondent permission to travel outside of Mexico with the children. Respondent did not seek permission from a court to remove the children from Mexico before leaving.
On July 12, 2010, petitioner drove respondent and the children, who had only
some of their belongings with them, to the airport. Among those belongings were legal documents, including the children's birth certificates and the parties' marriage certificate. . On July 12, 2010, respondent and the children traveled from Mexico to Houston, Texas, where they stayed with Richard Buyauskas for about a month. Respondent called petitioner from Richard Buyauskas's house about a week after leaving Mexico and informed him that she intended to remain in the United States with the children permanently. Respondent told petitioner that he could not "follow them or do anything because she's in the United States and that she has
the support of her whole family." Petitioner tried to encourage respondent to return to Mexico with the children. After receiving respondent's phone call, petitioner began seeking legal assistance to regain custody.
The Court concluded that the wrongful retention in this case began on the date
July 25 when respondent called petitioner from Houston, Texas, and told him that she intended to remain in the United States with the children permanently. After the telephone call, petitioner understood that respondent did not intend to bring the children back to Mexico, he informed her that he wanted her to return, and he contacted the Mexican Secretariat to learn what legal remedies were available to him. It also found that prior to July 25, 2010, the children's habitual residence was Mexico. Before the wrongful retention, the children habitually resided in Mexico with petitioner and respondent for the children's entire lives, interrupted only by vacations to the United States. Petitioner did not consent to a permanent move to the United States; instead, he believed that respondent and the children were traveling to the United States for a vacation that was to end on September 3, 2010, with a return flight from Houston to Guadalajara. "Where the child's initial move from an established habitual residence was clearly intended to be for a specific, limited duration ... most courts will find no change in habitual residence," unless "the child's original habitual residence has been effectively abandoned by the shared intent of the parents."Whiting, 391 F.3d 549.There was no such shared intent in this case; petitioner never agreed for the children to reside in the United States, nor had he abandoned his desire for the children to return to Mexico. The Court concluded that the children's habitual residence prior to July 5, 2010, was Mexico and that petitioner and respondent had no "present, shared intention" for the children to reside in the United States. The Court therefore looked to the child custody laws of the state of Jalisco, Mexico, where the family resided prior to July 2010, to determine whether respondent breached petitioner's custody rights. The Court observed that custody law in Mexico is based on the concept of "patria potestas" (also
spelled "patria potestad"), which is: "The parents' responsibility to care for the child, reside with the child, and provide for the child's necessities, including food, education and development."The patria potestas gives a right to correct the child, the right
to control and manage any property or rights the child may have and the right to
the child's assistance. By law, the right to patria potestas belongs to both parents, but the exercise of the right, by necessity, normally involves one decision-maker. Concurrence or agreement is not required. Historically, the father had superior rights of the patria potestas, but today it is a joint responsibility. If the parents are deceased or unavailable, the paternal grandparents may exercise the patria potestas. If the paternal grandparents are unavailable, the maternal grandparents may exercise the patria potestas. March v. Levine, 136 F.Supp.2d 831, 842 (M.D.Tenn.2000) In Jalisco, Mexico, patria potestas "governs the relationship between parents and their children" as part of the CCEJ. Patria potestas 'is exerted by both parents,' ( [CCEJ Art.] 581), and lasts until it ceases under Article 597, is terminated under Article 598, or is suspended under Article 601." The Court concludedthat petitioner had custody rights under CCEJ Article 581 and that those rights had not been abrogated by any other CCEJ provision. Under Article 581, which provides that "[ p]aternal
authority/responsibility (patria potestas) is exerted by both parents or in the given case, by the surviving parent," petitioner had custody rights over all three children unless one of the three exceptions-cessation under Article 597, termination under Article 598, or suspension under Article 601-applied. No such exception was applicable here. Article 597 provides that patria potestas ceases in the event of the parent's death, "emancipation of the minor," the
minor's reaching the age of majority, or the revocation of an adoption. None of
these have occurred. Article 598 states that patria potestas "can" be terminated
in certain circumstances, but only by a judicial decree at the conclusion of a
criminal, civil, or divorce case. See CCEJ Article 599. Likewise, Article 601
requires "a judicially pronounced lack of capacity," "a judicially pronounced absence," or "a guilty verdict that imposes the suspension [of patria potestas] as part of the sentence."In this case, neither party introduced any evidence that, at any time, there have been any Mexican court orders bearing on the custody of the children or on petitioner's fitness as a parent. Therefore, petitioner had custody rights as to his three children under the law of Jalisco, Mexico, before respondent retained the children in the United States.
The Court further concluded that respondent breached petitioner's custody
rights under the law of Jalisco when she retained the children in the United
States. Under the doctrine of patria potestas, both parents must consent to the
removal of the child from the country. Because he established that respondent breached his custody rights under the law of the children's habitual residence-that is, Jalisco, Mexico-the third prong of the prima facie case was satisfied. The fourth element of a prima facie case under the Hague Convention is "whether the petitioner was exercising his or her custody rights at the time of removal or retention. The petitioner can show the exercise of custody rights by demonstrating that he or she kept or sought to keep[ ] some sort of regular contact with the child. Essentially, nothing short of clear and unequivocal abandonment will prove that the petitioner failed to exercise his or her custodial rights."Once it is
determined that a party had valid custody rights under the country of origin's
laws ... [t]he applicant need only provide some preliminary evidence that he or
she actually exercised custody of the child, for instance, took physical care of
the child. This element was satisfied. Petitioner lived with the children and cared for
them until they left Mexico with respondent in July 2010. Although the Court did
not credit petitioner's testimony that he was the de facto sole caretaker of the
children, the Court found that petitioner shared the responsibilities of childcare
with respondent while they lived together in Mexico. The Court concluded that petitioner has established all four elements of a prima facie case for return of a child under the Hague Convention. Nevertheless, the court found that the Article 12 "well settled" and the Article 13 "mature child objecting" affirmative defenses applied in this case.
Respondent and the children resided in Pennsylvania since late August 2010,
and petitioner knew where they were; he even communicated with them while they
were at respondent's mother's house. Although petitioner was diligent in contacting the Mexican authorities for assistance, the delay of more than fourteen months before petitioner filed this case was not attributable to concealment of the children by respondent. The Court was sympathetic to petitioner in that it took him time to gather the documents to complete the Hague Applications and the CI and Secretariat took many months to process the applications. However, precedent does not authorize tolling based on bureaucratic foot-dragging; instead, tolling is appropriate "where the parent removing the child has secreted the child from the parent seeking return," obstructing the noncustodial parent seeking return from filing suit in the appropriate jurisdiction. Furnes v. Reeves, 362 F.3d 702, 723-24 (11th Cir.2004). Because respondent did not conceal the children's location from petitioner, the Court concluded that equitable tolling was not appropriate. Thus, the Article 12 well-settled defense was available to respondent.
In concluding that the well-settled exception applied, one district court in
this circuit considered the following factors: (1) the age of the child; (2) the stability of the child's new residence; (3) whether the child attends school or daycare consistently; (4) whether the child attends church regularly; (5) the stability of the [parent's] employment or other means of support; (6) whether the child has friends and relatives in the area; ... (7) to what extent the child has maintained ties to the country of habitual residence ... [8] the level of parental involvement in the child's life[;][9] active measures to conceal [the] child's whereabouts (and the possibility of criminal prosecution related thereto) [;] and [10] the immigration status of the child and respondent. Castillo, 597 F.Supp.2d at 438 (citing, inter alia, Lops v. Lops, 140 F.3d 927, 946 (11th Cir.1998); In re Koc, 181 F.Supp.2d 136, 153 (E.D.N.Y.2001)). The court considered the evidence of these factors which overwhelmingly showed that all three children were well settled in the United States. The evidence introduced at the hearing and the Court's in camera interviews with the children demonstrated that Paquito and Katie wereintelligent children of remarkable maturity. They spoke English fluently and
eloquently despite having lived in the United States for less than seventeen months. In addition to respondent's testimony that all three children were "doing great," the Court found credible respondent's mother's testimony that the children's adjustment to the United States was "impressive" and respondent's brother's testimony that the children were doing "extremely well." The Castillo factors also uniformly supported the Court's conclusion.
The Court also concluded that respondent had proven by a preponderance of the evidence that return was not appropriate because Katie and Paquito "object[ ] to being returned and ha[ve] attained an age and degree of maturity at which it is appropriate to take account of [their] views." Convention Art. 13. The Court concluded that both Paquito and Katie objected to being returned to Mexico and were old enough and mature enough for their views to be given credence. The Court further concluded that neither child's desire to remain in the United States was "the product of undue influence." The Court took Paquito's and Katie's views into account because both children were articulate, intelligent, and mature. Both demonstrated extraordinary composure and behavior throughout these adversarial legal proceedings. In circumstances that would be expected to unnerve most children their age-including, in Paquito's case, testifying in federal district court and being subject to cross-examination-Paquito and Katie remained unflappable. During Paquito's open-court testimony and the children's in camera interviews, both made extremely favorable impressions. The evidence introduced at the hearings-including that Paquito and Katie had learned fluent English in less than two years, that both
were on the honor roll, and that they had impressed respondent's family with their adaptation to the United States-further supported the Court's conclusion that they were "of sufficient age and maturity" for their views to receive consideration. See Art. 13. Paquito objected to being returned to Mexico in open court, and both children objected during their in camera interviews with the Court, away from respondent and her family. Paquito and Katie gave articulate, rational explanations as to why they wanted to stay in the United States; Katie cited the higher quality of life, including the family's greater ability to afford food, and Paquito expressed concern about his father's "violent" nature and use of a belt to discipline him . Given their coherent explanations, their mature comportment, their clear and forthright
statements that they wished to remain in the United States, and the fact that their
desire to stay persisted even when the Court questioned them further about whether
anyone told them how to answer the Court's questions, the Court concluded that the children's preferences were not the product of undue influence. Accordingly, the Court also concluded that the mature-child-objecting defense justified permitting the children to remain in the United States.
Tuesday, March 6, 2012
Tuesday, February 28, 2012
Castillo v Ochoa, 2012 WL 523696 (D.Nev.) [Mexico] [Well Settled in New Environment]
In Castillo v Ochoa, 2012 WL 523696 (D.Nev.) petitioner, Jose Manuel Garza-Castillo sought the return of his child from the United States to Mexico, pursuant to the Convention. The respondent, Mellody Nallely Guajardo-Ochoa opposed the petition. The court held an evidentiary hearing on Jose's petition, and denied the Petition pursuant to the second paragraph of Article 12 of the Hague Convention. It found that Jose commenced these proceedings more than one year from the date of the wrongful removal of the child from Mexico to the United States. Mellody demonstrated, by substantial evidence, that the child was well settled in its new environment.
Neither Jose nor Mellody disputed that Mexico and the United States
are Contracting States to the Hague Convention; the child was habitually resident in Mexico prior to November 2008; On or about November 1, 2008, Mellody removed the child from Mexico to the United States; Under the laws of Mexico, Jose had rights of custody to the child before the removal; At the time of the removal, Jose actually exercised his rights of custody to the child; Mellody's removal of the child from Mexico to the United States was in breach of Jose's rights of custody. The child, who was born
in May 2006, and has not yet attained the age of 16 years. The court found that Jose did not consent to Mellody removing the child from Mexico and retaining her in the United States.
It was undisputed that Mellody removed the child to the United States in early November 2008. Jose filed his petition on March 16, 2010, more than one year after Mellody removed the child to the United States. Pursuant to Article 12 of the Hague Convention, when proceedings are commenced more than one year after the wrongful removal, a child is to be ordered returned "unless it is demonstrated that the child is now settled in its new environment. Jose argued (in opposing Mellody's motion to dismiss his petition) that the Court should toll the one-year term because Mellody concealed the child's "exact location" from him, and because he did not have an address for Mellody and the child. The Ninth Circuit has held that equitable tolling is available under the Hague Convention only where "the abducting parent took steps to conceal the whereabouts of the child from the parent seeking return and such concealment delayed the filing of the petition for return." Duarte v. Bardales, 526 F.3d 563, 570 (9th Cir.2008). The evidence received during the hearing indicated that Mellody initially engaged in an effort to conceal the child's location from Jose. When Mellody left in late October or early November 2008, she left a note for Jose. The note, however, did not provide any indication as to where Mellody and the child were going. In her December 28, 2008, e-mail to Jose, Mellody expressed a reluctance to disclose her location (or to return to Mexico) as she perceived a risk of losing the child to Jose. The Court could not conclude, however, that Mellody's initial act of concealing the removal and location of the child from Jose "delayed the filing of the petition for return."The Court reached this conclusion after giving "significant consideration to the overarching intention of the Convention-deterring child abduction." .Jose did not offer any evidence into the record that, subsequent to December 28, 2008, Mellody engaged in an effort to conceal her location from Jose. The evidence received during the hearing also established that Jose was not only well aware of Mellody's connections to Las Vegas (where she was raised and had numerous relatives) but that he was aware of the addresses of Mellody's relatives in Las Vegas. When Mellody left Mexico, she left behind her address book, which contained the addresses of her relatives in Las Vegas. By the end of January 2009, the names and addresses of Mellody's relatives in Las Vegas appeared in official Mexican documents as locations where Mellody could be located. The documents included the name and address of the aunt with whom Mellody stayed for the first three months in Las Vegas. The documents also included the name of the uncle with whom Mellody stayed during the early part of 2009, until July 2009 (when Mellody moved in with Melvin). Mellody was served with Jose's petition at the address where she had resided since July 2009. Further, the Court found little, if any, credible evidence to suggest that, subsequent to December 28, 2008, Jose engaged in an effort to locate the child sufficient to warrant tolling of the one-year period.. Other than his own testimony, which the court said was discredited, Jose did not offer evidence into the record of efforts made to locate the child. Also absent from the record was any explanation as to the change in circumstances resulting in Jose being able to locate Mellody and the child in the Las Vegas area in March 2010, but not prior to that date.
The child was born in May 2006. Mellody removed the child to the United States in late October or early November 2008, when the child was just less than two and one-half years old. Jose filed his petition in March 2010, and served Mellody with the petition in late April or early May 2010, when the child was just less than four years old. At the time Jose filed his petition, the child had spent a significant portion, though not the majority, of her life in the United States. At the time of the evidentiary hearing in January 2012, the child was more than five and one-half years old, and had been living in its new environment for significantly more than half of its life. Upon arrival in Las Vegas, the child resided for several months with Mellody in the home of Mellody's Aunt Dora. The child and Mellody then resided in the home of another of her aunts until July 2009. In July 2009, the child and Mellody moved into a residence of Melvin Albrego, to whom Mellody is now married. The child continued to reside with Mellody and Melvin at that residence for two years. About six or seven months prior to the hearing, the child, Mellody, and Melvin moved to a new residence, where they have since resided. Each of these residences is within the Las Vegas area. Since the end of August 2011 the child had been enrolled in and attended kindergarten in the Clark County School District. Prior to becoming old enough to attend school, while Mellody was at her place of employment, the child would be in the care of her aunt, with whom Mellody and the child were residing in April 2009. The aunt continued to provide child-care to the child after Mellody and the child moved into the residence of Melvin. The child, through Mellody, has approximately 50 extended relatives in the Las Vegas area, including her great-grandparents, great aunts and uncles, and cousins. The child regularly (often on a weekly basis) met with and participates in events with her extended relatives. The child's relatives include young children with whom the child interacted. The child often met with her extended relatives and knew them by name. Melvin, who was now married to Mellody, had between 80 and 100 extended relatives in the Las Vegas area. Typically, Melvin, Mellody and the child had a family dinner at the home of Melvin's mother on Tuesdays. The child often met with Melvin's extended family, and knew many of them by name. The child treated Melvin's extended family as if they were the child's extended family. The child had created friendships with other children who are not her relatives. The child spent time with her friends, including attending events and birthday parties. The court received testimony that, with at least one other child, the child had maintained a friendship for three years. The child and Mellody attended church two or three times each month. Mellody had been employed since April 2009 with the same employer, earning approximately $1500 to $2000 bi-weekly. Melvin was also employed.
The Ninth Circuit has indicated the following factors are to be considered in making this determination: (1) the child's age, (2) the stability and duration of the child's residence in the new environment, (3) whether the child attends school consistently, (4) whether the child has friends or relatives in the new environment, (5) whether the child participates in community or extracurricular school activities, (6) and the respondent's employment and financial stability. Mendoza v. Miranda, 559 F.3d 999, 1009 (9th Cir.2009). Further, of these, the factor that is ordinarily the most important is the length and stability of the child's residence in the new environment.
The court held that Mellody met her burden of proof of "substantial evidence of the child's significant connections" to the new environment and denied the petition.
Neither Jose nor Mellody disputed that Mexico and the United States
are Contracting States to the Hague Convention; the child was habitually resident in Mexico prior to November 2008; On or about November 1, 2008, Mellody removed the child from Mexico to the United States; Under the laws of Mexico, Jose had rights of custody to the child before the removal; At the time of the removal, Jose actually exercised his rights of custody to the child; Mellody's removal of the child from Mexico to the United States was in breach of Jose's rights of custody. The child, who was born
in May 2006, and has not yet attained the age of 16 years. The court found that Jose did not consent to Mellody removing the child from Mexico and retaining her in the United States.
It was undisputed that Mellody removed the child to the United States in early November 2008. Jose filed his petition on March 16, 2010, more than one year after Mellody removed the child to the United States. Pursuant to Article 12 of the Hague Convention, when proceedings are commenced more than one year after the wrongful removal, a child is to be ordered returned "unless it is demonstrated that the child is now settled in its new environment. Jose argued (in opposing Mellody's motion to dismiss his petition) that the Court should toll the one-year term because Mellody concealed the child's "exact location" from him, and because he did not have an address for Mellody and the child. The Ninth Circuit has held that equitable tolling is available under the Hague Convention only where "the abducting parent took steps to conceal the whereabouts of the child from the parent seeking return and such concealment delayed the filing of the petition for return." Duarte v. Bardales, 526 F.3d 563, 570 (9th Cir.2008). The evidence received during the hearing indicated that Mellody initially engaged in an effort to conceal the child's location from Jose. When Mellody left in late October or early November 2008, she left a note for Jose. The note, however, did not provide any indication as to where Mellody and the child were going. In her December 28, 2008, e-mail to Jose, Mellody expressed a reluctance to disclose her location (or to return to Mexico) as she perceived a risk of losing the child to Jose. The Court could not conclude, however, that Mellody's initial act of concealing the removal and location of the child from Jose "delayed the filing of the petition for return."The Court reached this conclusion after giving "significant consideration to the overarching intention of the Convention-deterring child abduction." .Jose did not offer any evidence into the record that, subsequent to December 28, 2008, Mellody engaged in an effort to conceal her location from Jose. The evidence received during the hearing also established that Jose was not only well aware of Mellody's connections to Las Vegas (where she was raised and had numerous relatives) but that he was aware of the addresses of Mellody's relatives in Las Vegas. When Mellody left Mexico, she left behind her address book, which contained the addresses of her relatives in Las Vegas. By the end of January 2009, the names and addresses of Mellody's relatives in Las Vegas appeared in official Mexican documents as locations where Mellody could be located. The documents included the name and address of the aunt with whom Mellody stayed for the first three months in Las Vegas. The documents also included the name of the uncle with whom Mellody stayed during the early part of 2009, until July 2009 (when Mellody moved in with Melvin). Mellody was served with Jose's petition at the address where she had resided since July 2009. Further, the Court found little, if any, credible evidence to suggest that, subsequent to December 28, 2008, Jose engaged in an effort to locate the child sufficient to warrant tolling of the one-year period.. Other than his own testimony, which the court said was discredited, Jose did not offer evidence into the record of efforts made to locate the child. Also absent from the record was any explanation as to the change in circumstances resulting in Jose being able to locate Mellody and the child in the Las Vegas area in March 2010, but not prior to that date.
The child was born in May 2006. Mellody removed the child to the United States in late October or early November 2008, when the child was just less than two and one-half years old. Jose filed his petition in March 2010, and served Mellody with the petition in late April or early May 2010, when the child was just less than four years old. At the time Jose filed his petition, the child had spent a significant portion, though not the majority, of her life in the United States. At the time of the evidentiary hearing in January 2012, the child was more than five and one-half years old, and had been living in its new environment for significantly more than half of its life. Upon arrival in Las Vegas, the child resided for several months with Mellody in the home of Mellody's Aunt Dora. The child and Mellody then resided in the home of another of her aunts until July 2009. In July 2009, the child and Mellody moved into a residence of Melvin Albrego, to whom Mellody is now married. The child continued to reside with Mellody and Melvin at that residence for two years. About six or seven months prior to the hearing, the child, Mellody, and Melvin moved to a new residence, where they have since resided. Each of these residences is within the Las Vegas area. Since the end of August 2011 the child had been enrolled in and attended kindergarten in the Clark County School District. Prior to becoming old enough to attend school, while Mellody was at her place of employment, the child would be in the care of her aunt, with whom Mellody and the child were residing in April 2009. The aunt continued to provide child-care to the child after Mellody and the child moved into the residence of Melvin. The child, through Mellody, has approximately 50 extended relatives in the Las Vegas area, including her great-grandparents, great aunts and uncles, and cousins. The child regularly (often on a weekly basis) met with and participates in events with her extended relatives. The child's relatives include young children with whom the child interacted. The child often met with her extended relatives and knew them by name. Melvin, who was now married to Mellody, had between 80 and 100 extended relatives in the Las Vegas area. Typically, Melvin, Mellody and the child had a family dinner at the home of Melvin's mother on Tuesdays. The child often met with Melvin's extended family, and knew many of them by name. The child treated Melvin's extended family as if they were the child's extended family. The child had created friendships with other children who are not her relatives. The child spent time with her friends, including attending events and birthday parties. The court received testimony that, with at least one other child, the child had maintained a friendship for three years. The child and Mellody attended church two or three times each month. Mellody had been employed since April 2009 with the same employer, earning approximately $1500 to $2000 bi-weekly. Melvin was also employed.
The Ninth Circuit has indicated the following factors are to be considered in making this determination: (1) the child's age, (2) the stability and duration of the child's residence in the new environment, (3) whether the child attends school consistently, (4) whether the child has friends or relatives in the new environment, (5) whether the child participates in community or extracurricular school activities, (6) and the respondent's employment and financial stability. Mendoza v. Miranda, 559 F.3d 999, 1009 (9th Cir.2009). Further, of these, the factor that is ordinarily the most important is the length and stability of the child's residence in the new environment.
The court held that Mellody met her burden of proof of "substantial evidence of the child's significant connections" to the new environment and denied the petition.
Monday, February 27, 2012
Radu v Toder, 2012 WL 556174 (C.A.2 (N.Y.))(Romania) (Rights of Custody)
In Radu v Toder, 2012 WL 556174 (C.A.2 (N.Y.))(Not Selected for publication in the Federal Reporter) Petitioner Iulian Cristian Radu appealed from an August 3, 2011 order of the District Court denying his petition to compel the return of his son, L.R., to Romania pursuant to the Hague Convention. Radu argued that his ex-wife, respondent Petruta Toader, wrongfully moved L.R. from Romania to the United States in violation of Radu's "rights of custody" under the Hague Convention. The Court of Appeals affirmed. It reviewed a district court's factual determinations in cases arising under the Hague Convention for clear error and its legal conclusions de novo. (Citing Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir.2001). It observed that the Convention defines "rights of custody" to include "rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence."Hague Convention, art. 5. The Convention distinguishes between rights of custody and rights of access. The latter is also a defined term under the Convention and means "the right to take a child for a limited period of time to a place other than the child's habitual residence." ICARA similarly defines "rights of access" to mean "visitation rights." 42 U.S.C. 11602(7). A parent has a "right of custody" if his or her consent is legally required before the other parent may move the child to another country (a "ne exeat " right), and a breach of such right gives rise to a return remedy under the Convention. (Citing Abbott v. Abbott, 130 S.Ct. 1983, 1992 (2010). By contrast, "[t]he Convention provides no return remedy when a parent removes a child in violation of a right of access." Radu has no ne exeat right. Under Romanian law, a child's domicile is established as the domicile of the parent to whom the child was entrusted by a final and irrevocable court decision. Decision No. 922/2009. If parents do not share the same domicile, then the child's domicile is established by common agreement of the parents, or, absent such agreement, by a court. But that provision does not govern a situation in which sole custody of the child has been granted to one parent. Because the divorce decree entrusted sole custody of L.R. to Toader, giving Radu only a right of visitation, Toader did not need Radu's consent to change L.R.'s domicile. While L.R.'s removal may have violated Radu's rights of access, it did not violate any rights of custody for purposes of the Convention. This interpretation of Romanian law was reinforced by an April 2011decision of a Romanian court, which denied Radu's efforts to compel the return of L.R. and noted that Radu could not seek L.R.'s return because custody of the child had been entrusted to Toader. (Citing Diorinou v. Mezitis, 237 F.3d 133, 142 (2d Cir.2001) ("American courts will normally accord considerable deference to foreign adjudications as a matter of comity. In particular, we have observed that comityis at the heart of the Hague Convention.")
Tuesday, February 21, 2012
Oddy v Morris, 2012 WL 464227 (D.Hawaii) [United Kingdom][Grave Risk of Harm]
In Oddy v Morris, 2012 WL 464227 (D.Hawaii) Christopher Oddy ("Petitioner") filed an Emergency Verified Petition for Return of Children to the United Kingdom. Petitioner and Respondent were married on April 11, 2003 in the United Kingdom; Petitioner is a citizen of the United Kingdom and Respondent is a citizen of the United States. The children were born in the County of Poole, United Kingdom, and are citizens of the United Kingdom and the United States. Petitioner and Respondent were divorced in the Bournemouth County Court in the United Kingdom on October 7, 2009. The Bournemouth County Court did not make any orders with respect to parental responsibility, residence or contact at the time of the parties' divorce. Petitioner stated that, under English law, specifically the Children Act 1989, he and Respondent share equally parental responsibility of both
children. According to Petitioner, the following acts took place in 2010 and 2011: On March 17, 2010, the Mother [Respondent] had filed an application in the United Kingdom's High Court of Justice, Family Division, Bournemouth District Registry (the "English Court"), requesting permission to permanently remove the children from the United Kingdom. A trial was scheduled for December 2 and 3, 2010 on the Mother's application. As a result of the Mother's application for permanent removal having been filed, the English Court ordered that a report be prepared by the Children and Family Reporter, Mrs. Pat Holmes. Mrs. Holmes prepared her report dated October 8, 2010 and submitted it to the English Court. After the report was submitted to the English Court, a hearing was held before His Honour Judge Meston Q.C. on October 25, 2010. Judge Meston had reviewed both parties' submissions, reviewed the report prepared by the Children and Family Reporter and had heard from counsel for both parties with respect to agreements reached between the parties. At the hearing on October 25, 2010, the English Court issued a Residence and Contact Order on October 25, 2010. . The Residence and Contact Order provided hat the children shall reside with the Mother in the United Kingdom and set out a detailed and extensive schedule of contact for the Father in the United Kingdom. No order was made with respect to the parents' ex lege joint parental responsibility pursuant to the Children Act 1989. The Residence and Contact Order provided hat the Mother's application to permanently remove the children from the United Kingdom would be withdrawn and that the trial on her application scheduled for December 2-3, 2010 be vacated.
Thereafter the parties functioned pursuant to the Residence and Contact Order, which did not address the issue of parental responsibility, and both parties continued to share parental responsibility under the Children Act. Because the parties were both the parents of the children and no court suspended or otherwise terminated either party's parental responsibility, the parties continue to share parental responsibility for the children under the Children Act by operation of law. The Residence and Contact Order provides as follows with respect to removing the children from the United Kingdom: "WARNING: Where a Residence Order is in force no person may cause the child to be known by a new surname or remove the child from the United Kingdom without written consent of every person with parental responsibility for the child or the leave of court. However, this does not prevent the removal of the child for a period of less than one month by the person in whose favor the Residence Order is made (Sections 13(1) and (2) Children Act 1989). It may be a criminal offence under the Child Abduction Act of 1984 to remove the child from the United Kingdom without the leave of the court." After the issuance of the Residence and Contact Order, the parties and children continued to reside in the United Kingdom and followed the schedule for residence and contact set out in the Residence and Contact Order. The Father was scheduled to have his regularly scheduled time with the children on July 30, 2011 and was also scheduled to begin his summer holiday time with the
children on August 1, 2011. When the Father went to pick up the children on July 30, 2011, he discovered that the Mother's home was completely empty. Immediately upon discovering that the Mother's home was completely empty, the Father began searching for the children and reaching out to family and friends for help locating his daughters. The Father learned from one of the Mother's friends that the Mother had taken the children to Hawaii and later confirmed from other friends and relatives that the Mother had taken the children to Hawaii.
The testimony and evidence presented at the hearing supported these facts as set forth in the Petition. The Court found that Petitioner established that he had parental responsibility for the children and did not consent to their removal from their habitual residence in the United Kingdom. Respondent did not obtain leave of court before she removed the children from the United Kingdom, and, since the removal of the children, Petitioner had not acquiesced to their removal or retention.
Based on the evidence presented, the Court found that Respondent had not met her burden of establishing that the children were at grave risk of harm if returned to the United Kingdom. The evidence that Petitioner was physically, verbally, and mentally abusive to Respondent during the course of their marriage and thereafter was troubling. Respondent testified regarding Petitioner's history of alcohol abuse and anger management issues, and its effect on the family. The Court found Respondent's
testimony credible with respect to her fear of Petitioner's angry outbursts and threats of violence against her and her friends. Respondent also presented credible evidence that the children witnessed verbal confrontations and disagreements between their parents, which may have affected the children psychologically and emotionally. Specifically, a 2006 incident in which Petitioner physically kicked and struck Respondent in front of the oldest child and destroyed household property, and subsequently pleaded guilty to breaching the peace and criminal property damage, and an April 2011 incident at Waterloo Station in which Petitioner verbally threatened Respondent and a third-party in front of the children during a custody exchange. The Court also heard testimony regarding an April 2011 incident during which the younger child was injured while in Petitioner's care. The parties disputed the cause and severity of the injury to the child's elbow. Respondent maintained that Petitioner yanked
the child up by her arm as she resisted having her diaper changed; Petitioner contended the injury was the result of normal play with the children. Respondent faulted Petitioner for waiting several hours between the time of the injury and when he eventually sought medical care for the child the next morning. A hospital record indicated the following history of the presenting complaint: "[p]laying when getting nappy changed L. arm around her elbow very painful and not moving it, very upset in triage." The Court found that the parties' respective views of the incident were reconcilable based on the testimony and evidence presented at the hearing, and credited each. Respondent also recounted another recent incident in which the older child became ill while playing outside with Petitioner during poor weather conditions, and detailed her concerns regarding Petitioner's parenting capabilities. It was clear that the parties' relationship was troubled both during and after their marriage, when Petitioner was abusive toward Respondent, and that Respondent believed that matters were deteriorating in the months before she removed the children. The Court, however, found that, as troubling as this behavior may be, Respondent had not established for purposes of the article 13(b) analysis that the children would suffer "serious abuse that is a great deal more than minimal." Gaudin, 415 F.3d at 1035; see also Whallon v. Lynn, 230 F.3d 450, 460 (1st Cir.2000) (stating that a husband's "verbal abuse and an incident of physical shoving" directed at his wife, while regrettable, was insufficient to establish a "grave risk" of harm to the child, especially where there was no allegation that the father had ever abused the child, either physically or psychologically). The Court considered the alleged psychological harm suffered by the children and found that, while regrettable and unacceptable, any such harm did not to rise to the level required for sustaining an article 13(b) exception. See Whallon, 230 F.3d at 460 ("The logic, purpose, and text of the Convention all mean that such harms are not per se the type of psychological harm contemplated by the narrow exception under article 13(b). To conclude otherwise would risk substituting a best interest of the child
analysis for the analysis the Convention requires. This would undercut the Convention's presumption of return where rights of custody have been violated....").
Based on the foregoing, the Court granted the Petition.
children. According to Petitioner, the following acts took place in 2010 and 2011: On March 17, 2010, the Mother [Respondent] had filed an application in the United Kingdom's High Court of Justice, Family Division, Bournemouth District Registry (the "English Court"), requesting permission to permanently remove the children from the United Kingdom. A trial was scheduled for December 2 and 3, 2010 on the Mother's application. As a result of the Mother's application for permanent removal having been filed, the English Court ordered that a report be prepared by the Children and Family Reporter, Mrs. Pat Holmes. Mrs. Holmes prepared her report dated October 8, 2010 and submitted it to the English Court. After the report was submitted to the English Court, a hearing was held before His Honour Judge Meston Q.C. on October 25, 2010. Judge Meston had reviewed both parties' submissions, reviewed the report prepared by the Children and Family Reporter and had heard from counsel for both parties with respect to agreements reached between the parties. At the hearing on October 25, 2010, the English Court issued a Residence and Contact Order on October 25, 2010. . The Residence and Contact Order provided hat the children shall reside with the Mother in the United Kingdom and set out a detailed and extensive schedule of contact for the Father in the United Kingdom. No order was made with respect to the parents' ex lege joint parental responsibility pursuant to the Children Act 1989. The Residence and Contact Order provided hat the Mother's application to permanently remove the children from the United Kingdom would be withdrawn and that the trial on her application scheduled for December 2-3, 2010 be vacated.
Thereafter the parties functioned pursuant to the Residence and Contact Order, which did not address the issue of parental responsibility, and both parties continued to share parental responsibility under the Children Act. Because the parties were both the parents of the children and no court suspended or otherwise terminated either party's parental responsibility, the parties continue to share parental responsibility for the children under the Children Act by operation of law. The Residence and Contact Order provides as follows with respect to removing the children from the United Kingdom: "WARNING: Where a Residence Order is in force no person may cause the child to be known by a new surname or remove the child from the United Kingdom without written consent of every person with parental responsibility for the child or the leave of court. However, this does not prevent the removal of the child for a period of less than one month by the person in whose favor the Residence Order is made (Sections 13(1) and (2) Children Act 1989). It may be a criminal offence under the Child Abduction Act of 1984 to remove the child from the United Kingdom without the leave of the court." After the issuance of the Residence and Contact Order, the parties and children continued to reside in the United Kingdom and followed the schedule for residence and contact set out in the Residence and Contact Order. The Father was scheduled to have his regularly scheduled time with the children on July 30, 2011 and was also scheduled to begin his summer holiday time with the
children on August 1, 2011. When the Father went to pick up the children on July 30, 2011, he discovered that the Mother's home was completely empty. Immediately upon discovering that the Mother's home was completely empty, the Father began searching for the children and reaching out to family and friends for help locating his daughters. The Father learned from one of the Mother's friends that the Mother had taken the children to Hawaii and later confirmed from other friends and relatives that the Mother had taken the children to Hawaii.
The testimony and evidence presented at the hearing supported these facts as set forth in the Petition. The Court found that Petitioner established that he had parental responsibility for the children and did not consent to their removal from their habitual residence in the United Kingdom. Respondent did not obtain leave of court before she removed the children from the United Kingdom, and, since the removal of the children, Petitioner had not acquiesced to their removal or retention.
Based on the evidence presented, the Court found that Respondent had not met her burden of establishing that the children were at grave risk of harm if returned to the United Kingdom. The evidence that Petitioner was physically, verbally, and mentally abusive to Respondent during the course of their marriage and thereafter was troubling. Respondent testified regarding Petitioner's history of alcohol abuse and anger management issues, and its effect on the family. The Court found Respondent's
testimony credible with respect to her fear of Petitioner's angry outbursts and threats of violence against her and her friends. Respondent also presented credible evidence that the children witnessed verbal confrontations and disagreements between their parents, which may have affected the children psychologically and emotionally. Specifically, a 2006 incident in which Petitioner physically kicked and struck Respondent in front of the oldest child and destroyed household property, and subsequently pleaded guilty to breaching the peace and criminal property damage, and an April 2011 incident at Waterloo Station in which Petitioner verbally threatened Respondent and a third-party in front of the children during a custody exchange. The Court also heard testimony regarding an April 2011 incident during which the younger child was injured while in Petitioner's care. The parties disputed the cause and severity of the injury to the child's elbow. Respondent maintained that Petitioner yanked
the child up by her arm as she resisted having her diaper changed; Petitioner contended the injury was the result of normal play with the children. Respondent faulted Petitioner for waiting several hours between the time of the injury and when he eventually sought medical care for the child the next morning. A hospital record indicated the following history of the presenting complaint: "[p]laying when getting nappy changed L. arm around her elbow very painful and not moving it, very upset in triage." The Court found that the parties' respective views of the incident were reconcilable based on the testimony and evidence presented at the hearing, and credited each. Respondent also recounted another recent incident in which the older child became ill while playing outside with Petitioner during poor weather conditions, and detailed her concerns regarding Petitioner's parenting capabilities. It was clear that the parties' relationship was troubled both during and after their marriage, when Petitioner was abusive toward Respondent, and that Respondent believed that matters were deteriorating in the months before she removed the children. The Court, however, found that, as troubling as this behavior may be, Respondent had not established for purposes of the article 13(b) analysis that the children would suffer "serious abuse that is a great deal more than minimal." Gaudin, 415 F.3d at 1035; see also Whallon v. Lynn, 230 F.3d 450, 460 (1st Cir.2000) (stating that a husband's "verbal abuse and an incident of physical shoving" directed at his wife, while regrettable, was insufficient to establish a "grave risk" of harm to the child, especially where there was no allegation that the father had ever abused the child, either physically or psychologically). The Court considered the alleged psychological harm suffered by the children and found that, while regrettable and unacceptable, any such harm did not to rise to the level required for sustaining an article 13(b) exception. See Whallon, 230 F.3d at 460 ("The logic, purpose, and text of the Convention all mean that such harms are not per se the type of psychological harm contemplated by the narrow exception under article 13(b). To conclude otherwise would risk substituting a best interest of the child
analysis for the analysis the Convention requires. This would undercut the Convention's presumption of return where rights of custody have been violated....").
Based on the foregoing, the Court granted the Petition.
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.
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.
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.
Friday, January 6, 2012
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.
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.
Tuesday, January 3, 2012
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.
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.
Thursday, December 29, 2011
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.
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.
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.
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.
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.
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