In Nixon v Nixon, --- F.Supp.2d ----, 2011 WL 7972481 (D.N.M.) Petitioner Mark Nixon was Australian and Respondent Gail Nixon was from the United States. On or about November 24, 2007, Mr. and Mrs. Nixon were married in Aztec, New Mexico. ON December 25, 2007, Mr. and Mrs. Nixon left for Sydney, Australia, where they lived together ever since. On or about July 15, 2010, in Australia, their son, Aidin Casey Nixon, was born. Aidin did not leave Australia until on or about July 2, 2011, when Mr. and Mrs. Nixon and Aidin traveled to New Mexico to visit Mrs. Nixon's family, who lived in Aztec. The parties had planned that Mr. Nixon would return to Sydney on July
10, 2011 because of work obligations, and that Mrs. Nixon and Aidin would stay on until August 31, 2011 with Mrs. Nixon's parents. Mrs. Nixon had a return ticket booked for August 31, 2011. On August 16, 2011, however, Mrs. Nixon canceled her return flight. On or about August 29, 2011, Mrs. Nixon filed a divorce action in the Eleventh Judicial District Court of New Mexico. On or about August 31, 2011, Mrs. Nixon informed Mr. Nixon by telephone that she was not coming back to
Australia, and that she had filed a divorce action in order to simplify custody.
On September 29, 2011, Mrs. Nixon's counsel advised Mr. Nixon's counsel that she would return to Australia. On October 4, 2011, however, Mrs. Nixon's counsel advised Mr. Nixon's counsel that Mrs. Nixon had changed her mind and intended to remain in New Mexico. Mr. Nixon did not consent to Mrs. Nixon's retention of Aidin in the United States. On October 5, 2011, Mr. Nixon filed the Petition, seeking, inter alia, an order directing that federal marshals and/or other law enforcement personnel be ordered to assist in picking up Aidin and returning him to the custody of Mr. Nixon,
allowing the prompt return of Mr. Nixon and Aidin to Australia, directing that Aidin's travel documents be surrendered with him, and requiring Mrs. Nixon to pay Mr. Nixon's costs and attorney fees. The Court granted the petition.
Mrs. Nixon argued that the United States, rather than Australia, was Aidin's habitual residence, because she never intended to be domiciled in Australia, but rather always intended to move back to Aztec, and, at some point in the past, believed that Mr. Nixon agreed to move to the United States. According to Mrs. Nixon, because Aidin was so young, his habitual residence was connected to his mother, and because she intended to move home to Aztec, Aztec was Aidin's habitual residence. Neither the evidence nor the relevant case law supported Mrs. Nixon's position. It was undisputed that, since their marriage, Mr. and Mrs. Nixon lived continuously in Australia. Mrs. Nixon was a permanent resident of Australia. Aidin was born in Australia and never left Australia until this trip to New Mexico. Mr. Nixon testified that it was never his intent to move to the United States. Mrs. Nixon admitted in her testimony that although she wanted to move back to Aztec at some point in the near future, Mr. Nixon did not share the same intention, and told her in no uncertain terms that he did not wish to relocate there. Mrs. Nixon further admitted that she is presently in the United States for what she intended to be a two-month vacation, and it was not until she had been here for six weeks that she decided not to return to Australia. Mrs. Nixon actually had a ticket to return to Australia with Aidin on August 31, 2011.
Considering Aidin's past experiences and the parties' shared intentions, it was clear that Australia was the only place where Aidin had been physically present for an amount of time sufficient for acclimatization, and which had a "settled purpose" from his perspective. Mr. and Mrs. Nixon had no shared intention that Aidin reside in Aztec, New Mexico. Although the parties brought Aidin to the United States, the trip was intended by both of them to be of a specific period of two months. The fact that Mrs. Nixon unilaterally changed her intentions six weeks into the visit was insufficient to alter Aidin's habitual residence. Aidin was born in Australia and resided exclusively in Australia until Mrs. Nixon retained him in the United States. The Court found that Aidin was a habitual resident of Australia at the time of his retention in the United States.
Because Australia would apply its own laws in this case, Mr. Nixon's "custody rights were determined by Australia's Family Law Act 1975, of which [this Court] may take notice directly." Under Australia's Family Law Act 1975, "in the absence of any orders of court, each parent is a joint guardian and a joint custodian of the child, and guardianship and custody rights involve essentially the right to have and make decisions concerning daily care and control of the child."(Family Law Act 63(F)(1), 63E(1) and (2)). As there were no court orders to the contrary, Mr. Nixon had joint custody and control of Aidin. Accordingly, Mrs. Nixon's unilateral decision to retain Aidin in the United States was in breach of Mr. Nixon's custody rights under the laws of Australia, the state of Aidin's habitual residence.
The evidence demonstrated that, far from abandoning his child, Mr. Nixon lived with Mrs. Nixon and Aidin "as a family." When Aidin was born, Mr. Nixon took four weeks leave from work to care for him. Mrs. Nixon testified that when she was at work every Friday, Saturday and Sunday evening, Mr. Nixon watched Aidin and put him to bed. Mr. Nixon similarly testified that he helped Mrs. Nixon "as much as possible, in terms of raising Aidin," which involved "doing anything from looking after Aidin, ... taking him for walks, bathing him, putting him to bed, reading him stories, playing with him." Accordingly, the Court found that Mr. Nixon was exercising his custodial rights at the time of Mrs. Nixon's retention of Aidin in the United States.
The sole defense argued by Mrs. Nixon was that Aidin would be exposed to a grave risk of harm if returned to Australia. Mrs. Nixon alleged that Aidin would suffer grave harm if he were taken from his mother, as she is still nursing him. Mrs. Nixon alleged that Mr. Nixon was diagnosed with ALS and suffered from obsessive/compulsive disorder, both of which conditions called into question his ability to care for Aidin Finally, Mrs. Nixon alleged that Mr. Nixon informed her that upon her return to Australia, he would take sole custody of Aidin and that she could live "somewhere," perhaps with her brother who lives five hours away from the marital residence, which would be an intolerable situation for Aidin. Mrs. Nixon testified that several times, Mr. Nixon held Aidin and fallen over, and she was worried that he would again hold Aidin and fall. She also testified that Mr. Nixon was controlling and rigid, and disagreed with her as to issues such as Aidin's feeding and sleeping schedules. Additionally, Mrs. Nixon testified that when she asked Mr. Nixon what would happen if she returned to Australia, he "made it clear that [she] might be able to live with him, maybe not." She further testified that, when she asked him where she was supposed to live, he responded, "I don't know, but we'll figure it out," and indicated that he could take leave from work and have primary custody of Aidin for a period of time. Based on this conversation, Mrs. Nixon became afraid that Mr. Nixon expected her to "land in Australia, hand Aidin over, and be basically on the streets." Mrs. Nixon testified: [I]t's still very alarming to fly halfway across the world, get off a plane, and not know where you're going to live and how you're going to be supported, especially with an infant that I'm still breast feeding. That is unacceptable and intolerable for myself and for our son."
The Court observed that federal courts uniformly note that "[t]he bar for proving the 'grave risk' exception is set exceptionally high." Krefter v. Wills, 623 F.Supp.2d 125, 135 (D.Mass.2009). The Court found that Mrs. Nixon's allegations fell short of establishing a grave risk of harm if Aidin was returned to Australia. Mrs. Nixon intended to return to Australia along with Aidin. Accordingly, any danger that would result from Aidin's separation from his mother would not come to pass. Notably, an order that Aidin be returned to Australia is not the equivalent of an order that Mr. Nixon is entitled
to sole custody of Aidin. Mr. Nixon testified that it was not his intention to take sole custody of Aidin upon his return to Australia. He explained that he had the opportunity to take five months paid leave to care for Aidin, so long as "he is designated the primary caregiver," and that this is "an option for discussion with [Mrs. Nixon]." Further, Mrs. Nixon's concerns about Mr. Nixon's fitness as a parent were unsupported. Mr. Nixon testified that he had not been officially diagnosed with ALS, and Mrs. Nixon presented no evidence that any doctor has ever advised him that it is unsafe for him to care for Aidin. Mr. Nixon had been in counseling for years for his emotional issues, and he had never been advised by a counselor that his OCD interferes with his ability to care for Aidin. Until they left for the United States, Mrs. Nixon routinely entrusted Aidin to Mr. Nixon's care. Mrs. Nixon's testimony as to her experience of Mr. Nixon as controlling did not rise to the level required to establish that Aidin's return to Australia will expose him to a grave risk of harm. While her testimony demonstrated parenting and personality differences, such differences were not uncommon, and certainly did not demonstrate that Mr. Nixon posed a danger to his son. Finally, courts routinely have held that financial concerns are insufficient to establish an "intolerable situation." Krefter, 623 F.Supp.2d at 136-37; Wilchynski v. Wilchynski, No. 3:1-CV-63, 2010 WL 1068070, *9 (S.D. Miss. Mar. 18, 2010). Accordingly, Mrs. Nixon's fears about her ability to support herself and maintain a home where she could nurse and properly care for Aidin did not meet the standard necessary to show a risk of grave harm. Because Mrs. Nixon failed to establish a valid defense to her wrongful retention of Aidin in the United States, Aidin had to be returned to Australia.
The Court accepted Mr. Nixon's proposed undertakings, and ordered that Mrs. Nixon will continue to live in the marital residence, and Mr. Nixon will provide Mrs. Nixon with maintenance and support, until such time as the courts in Australia make other arrangements for the parties.
Monday, June 18, 2012
Carrasco v. Carrillo-Castro, --- F.Supp.2d ----, 2012 WL 1948996 (D.N.M.)[Mexico] [Habitual Residence]
In Carrasco v. Carrillo-Castro, --- F.Supp.2d ----, 2012 WL 1948996 (D.N.M.) Petitioner Flor Jazmin Carrasco ("Flor") and Respondent Daniel Carrillo-Castro ("Daniel") were both from Mexico. The parties met in Albuquerque, New Mexico, and began a romantic relationship. They began living together shortly thereafter. In 2007, their son, N.C., was born. Flor, Daniel and N.C. lived together as a family in Albuquerque until January 2010, when the parties separated. Flor testified that they separated because of domestic violence: Daniel would beat her up, and hurt her. At the time of their separation, Flor and N.C. remained in the family home, and Daniel moved out. Soon thereafter, Flor and N.C. moved in with a sister of their social worker for one month, and then moved in with Flor's sister in Los Lunas, New Mexico, where they lived until June 2010. During that period, Daniel saw N.C. on weekends, and had regular telephone contact with him.
In June 2010, Flor and N.C. with Daniel's consent, left for Chihuahua, Mexico. Both parties testified that they did not discuss a specific date on which Flor and N.C. would return to the United States. According to Flor, in advance of that trip, she told Daniel on several occasions that she wanted to move back to Mexico to be near her family, and intended to find a place to live and work there. With regard to the June trip in particular, Flor testified that she told Daniel that she planned to look for a place to live and a job while she was in Mexico, and that if she found a job, she might not return to the United States. According to Daniel, Flor told him she had already gotten a job in Mexico, and that she and N.C. would live there while she was working. He further testified that although they did not discuss how long Flor and N.C. would be in Mexico, it was supposed to be temporary, "for a relatively short time." .According to Daniel, he told Flor that he did not want N.C. to live in Mexico, and that Flor assured him that she and N.C. would return to Albuquerque in several months..
While they were in Mexico, Flor and N.C. lived with Flor's mother in Chihuahua. Until January 2011, Flor's mother cared for N.C. while Flor was at work. Beginning in January 2011, N.C. attended a daycare center in the mornings and stayed with Flor's mother in the afternoons. N.C. spent time with family at social gatherings, and played with cousins and friends from the neighborhood. His health was good, and according to Flor, he had a regular doctor that he saw every month. Daniel spoke to N.C. almost daily. In September 2010, Flor sent N.C. to Albuquerque with her mother to see Daniel.
Flor picked N.C. up at the end of the visit and brought him back to Mexico. In November 2010, Flor's mother again brought N.C. to Albuquerque to see Daniel. Flor, too, came to Albuquerque at that time, and stayed with her sister. N.C. stayed with Flor for the month of November and the first two weeks of December. He stayed with Daniel for the last two weeks of December for the holidays. While N.C. was with Flor, he saw Daniel daily. In November, Flor took N.C. for a check-up with his primary care physician in Albuquerque. Daniel testified that during Flor's stay in Albuquerque, she advised him that she intended to remain in Mexico, where she had gotten a good job. The parties together decided to enter into a written agreement regarding N.C.'s care and the distribution of their assets. Flor testified that the intent of the agreement was for N.C. to stay with her in Mexico, and to prevent future problems with visitation. .Daniel similarly testified that he entered into the agreement in order to "stay in contact" with N.C. while he and Flor were in Mexico. .He further testified that he understood that Flor would stay in Mexico, and while she was in Mexico, she would guarantee that he would see his son. Accordingly, on November 4, 2010, the parties entered into a written agreement, which was signed and notarized. The agreement provides as follows: By means of this document, we the interested parties Flor Jazmin Carrasco Lopez and Daniel Carrillo Castro arrived at an agreement as to the care of our son [N.C.]. In which we understand that for every 2 months that [N.C] spends living with his mom Flor Jazmin Carrasco in the city of Cuahutemoc Chihuahua. The following month he shall spend in the care of his dad Daniel Carrillo Castro in the city of Albuquerque New Mexico. In addition in this document we record how our assets were distributed as of our separation.
The agreement did not include any time limits on the arrangement for N.C.'s care, or any date on which Flor and N.C. would return to the United States. Despite his testimony that Flor advised him of her intention to remain in Mexico, where she had gotten a good job, Daniel also testified that he believed the agreement would be temporary, and that he repeatedly asked Flor to move back to Albuquerque. Daniel provided no factual basis, such as evidence that Flor's job was a temporary position, to support his testimony as to the temporary nature of Flor's stay in Mexico.
Both parties testified that they understood the agreement would have to change when N.C. started school. Flor testified that she told Daniel that once N.C. started school, N.C. should visit Daniel during school vacations. However, Flor also testified, as did Daniel, that Daniel had always intended for N.C. to attend school in the United States, and had made that intention known to Flor. When asked in what grade he thought N .C. would start school, Daniel responded, kindergarten. Flor and N.C. returned to Mexico at the end of December 2010. In keeping with the parties' written agreement, in March 2011, Flor sent N.C. to Albuquerque with her mother to see Daniel. N.C. remained in Albuquerque for one month, and then returned to Mexico. Although, pursuant to the parties' written agreement, N.C. was to spend the month of June 2011 with Daniel, N.C. did not travel to Albuquerque at that time. Flor testified that she did not bring or send N.C. to Albuquerque both because Daniel had threatened to keep N.C. in the United States if she did, and because neither Flor nor her mother was able to bring N.C. to the United States. Specifically, Flor's visa had expired and she was unable to procure a new visa, and Flor's mother was unavailable. The Court found Flor's testimony credible.
Flor testified that for approximately one week in June, she and N .C. traveled to an area that made it difficult to have telephone contact. .According to Flor, she told Daniel in advance about the trip. On the other hand, Daniel testified that he was unable to reach N.C. by telephone for approximately one week, and had not been advised by Flor that they would be traveling and unreachable. Daniel testified that because he had not heard from N.C, he decided that N.C. should stay with him in the United States, and sought legal assistance to effectuate that decision.
Flor testified that after June 2011, Daniel changed. He stopped threatening her and "became nice" again. In September 2011, in keeping with the parties' written agreement, Flor sent N.C. to Albuquerque with her sister. Flor expected that Daniel would send N.C. back to her at the end of the month. At that time, N.C. spoke no English.
Although the parties' agreement required him to return N.C. to Flor at the end of September, Daniel refused to allow N.C. to return to Mexico. Flor testified that Daniel told her at the end of September that he was not going to send N.C. back. Consistent with Flor's testimony, at one point in the hearing, Daniel admitted that he decided to retain N.C. at the end of September and then began a custody proceeding so that Flor would not find out about the proceeding until it was too late for her to refuse to send N.C. to see him. At another point in the hearing, Daniel provided contradictory testimony that he had told Flor in August that he intended to start a custody proceeding, and that she would not be able to take him back to Mexico at the end of September .Daniel testified that Flor "knew perfectly well what [he] was going to do" before she sent N.C. to the United States. The Court did not find credible Daniel's testimony that Flor knew in advance of the September trip that he intended to keep N.C. This testimony was simply not believable, and inconsistent with Flor's testimony, which the Court found credible.
In November 2011, Daniel filed in the Second Judicial District Court, State of New Mexico, a Petition to Establish Parentage, and to Determine Child Custody, Timesharing, and Child Support Obligation, in which he sought primary physical custody of N.C. In that proceeding, Daniel specifically requested that the state court enter an order prohibiting the removal of N.C. from the United States. Accordingly, on November 15, 2011, the state court entered a temporary order prohibiting the removal of N.C. from the State of New Mexico by one parent without the written consent of the other parent. Since sending him to Albuquerque in September 2011, Flor has spoken to N.C. daily, but has not been able to see him. Flor attempted to travel to Albuquerque in November 2011, but was unable to enter the United States. To date, Flor was unable to procure the necessary documents to travel to the United States.
On March 13, 2012, Flor filed the Petition, seeking, inter alia, an order directing prompt return of N.C. to Mexico, his habitual residence, and an order directing Daniel to pay her legal costs and fees. On April 10, 2012, Daniel filed an answer denying the allegations in the Petition. On May 3, 2012, the Court held an evidentiary hearing at which both parties testified. The Court observed term "habitual residence" is "not defined by either the Hague Convention or the ICARA." Kanth v. Kanth, 232 F.3d 901, 2000 WL 1644099, *1 (10th Cir. Nov. 2, 2000). Rather, a child's habitual residence "is defined by examining specific facts and circumstances." Accordingly, the inquiry into a child's habitual residence "is a fact-intensive determination that necessarily varies with the circumstances of each case." Whiting v. Krassner, 391 F.3d 540, 546 (3d Cir.2004). The federal circuit courts have interpreted the term "habitual residence" differently. In Feder, the Third Circuit held that 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." 63 F.3d at 224. Considering N.C.'s past experiences and the parties' shared intentions, the Court found that Mexico was the place where N.C. had been physically present for an amount of time sufficient for acclimatization, and which has a "settled purpose" from his perspective. See Feder, 63 F.3d at 224. Since he was born, N.C. lived with Flor. When Daniel and Flor separated, N.C. continued to live with Flor. When Flor left for Mexico in June 2010 to look for work and a place to live, N.C, with Daniel's permission, went with her. At the time, N.C. was two and one-half years old. In November 2010, when Flor told Daniel that she had found a job and would remain in Mexico indefinitely, Daniel again consented to Flor taking N.C. with her. At no point did the parties discuss a specific date on which Flor and N.C. would return to the United States. Other than three trips to visit his father, N.C. lived with Flor in Mexico until his retention in the United States in September 2011, when he was just over four years old. N.C. spoke only Spanish. From the time he first arrived in Mexico until his September 2011 trip, N.C.'s grandmother cared for him, at least for part of the day each weekday, and beginning in January 2011, N.C. attended daycare every weekday morning. N.C. established a relationship with his extended family, spending time at social gatherings, and playing with cousins. He also established friendships with neighborhood children. Although he had primary care physicians in New Mexico as well, N.C. established a relationship with a doctor in Mexico, whom he saw every month. N.C.'s fifteen months in Mexico-which, at four years old, was almost thirty percent of his life-living with the primary caretaker he had always known, surrounded by his extended family, and speaking the only language he had ever known, was sufficient for him to become acclimatized. See Falls v. Downie, 871 F.Supp. 100, 102 (D.Mass.1994) (finding twenty-one month old child had become "completely accustomed to life in this country and with his father and grandparents" where he had been living in the United States for eight months). Further, from his perspective, N.C.'s purpose of living in Mexico-to remain with his mother where she had decided to make a life for herself-had a sufficient degree of continuity to be properly described as settled. The fact that N.C. spent some time during this fifteen-month period in Albuquerque does not change this analysis, as "[i]t is clear ... that an existing habitual residence in a country is not lost by the mere fact of leaving the country for a temporary absence which is intended to be of a short duration."E.M. Clive, The Concept of Habitual Residence, 1997 Jurid. Rev. 137, 142. This is true even if Daniel intended for N.C. to return to the Albuquerque two years later to attend kindergarten, or, indeed, even if Daniel was under the impression that Flor was planning to return to the United States after a short time. As Feder makes clear, one need not intend to stay somewhere permanently, or even indefinitely, so long as "the purpose of living where one does has a sufficient degree of continuity to be properly described as settled." Feder, 63 F.3d at 223. Accordingly, "Feder requires only a degree of settled purpose to accompany the move, even if such purpose is only for a limited period." Whiting, 391 F.3d at 549 (holding that shared intent by parents that child live in Canada for period of two years fulfills Feder requirement that her move to Canada was accompanied by a degree of settled purpose). That requirement was met easily here. Both parents agreed that Flor would return to Mexico for some period of time with N.C. The amount of time was left open, and Daniel agreed that N.C. should go
with Flor. These arrangements "amounted to a purpose with a sufficient degree of
continuity to enable it properly to be described as settled." Levesque v. Levesque, 816 F.Supp. 662, 666 (D.Kan.1993) . For these reasons, under the Feder test, the Court concluded that Mexico was N.C.'s habitual residence at the time of his retention in the United States.
The Court reached the same conclusion under the Mozes test. The circumstances surrounding N.C.'s stay in Mexico were such that, "despite the lack of perfect consensus", the Court found that Flor and Daniel shared a settled mutual intent that N.C.'s stay in Mexico last indefinitely. See Mozes, 239 F.3d at 1077-78. Flor and Daniel shared a settled mutual intent that N.C.'s stay in Mexico last indefinitely. As this is the case, the Court inferred a mutual abandonment of N.C.'s prior habitual residence in the United States. Daniel's stated intention that N.C. return to Albuquerque to attend kindergarten did not change this analysis. Flor and N.C. left for Mexico in June 2010. Daniel was not eligible to begin kindergarten until September 2012. Accordingly, even if the parties shared a settled mutual intent that N.C.'s stay in Mexico last for two years, this period was too long to expect N.C. to live abroad-in his parents' native country-without acquiring habitual residence. Under the Mozes test, the Court concluded that Mexico was N.C.'s habitual residence at the time of his retention in the United States.
The Court noted that its determination regarding N.C.'s habitual residence was further supported by the fact that Daniel has no legal status in the United States. "An unlawful or precarious immigration status ... is [ ] a highly relevant circumstance where, as here, the shared intent of the parties is in dispute." Although N.C, himself, is a United States citizen, he was only four years old, and thus needs to rely on the stability of his primary caretaker for several years to come. Unfortunately, Daniel is unable to offer that stability. Accordingly, although not determinative of this Court's decision, Daniel's status is a factor weighing in favor of finding Mexico to be N.C.'s habitual residence.
N.C.'s habitual residence at the time of retention was the State of Chihuahua, Mexico. Accordingly, the law of Chihuahua, Mexico governs the decision as to whether Flor had custody rights at the time Daniel retained N.C. in the United States. Title Eighth of the Civil Code for the State of Chihuahua contains several provisions defining the scope of parental authority/responsibility, or patria potestas. Under this Title, the Code provides that parental authority/responsibility over children will be exerted by the father and mother. Civil Code, Art. 391(1). Further, the Code provides that in the event of a separation between the parents, both parents are required to continue fulfilling their obligations, and may agree upon the terms of its exertion, particularly in all things concerning the care and custody of the minors. Art. 393. In the case of disagreement between separating parties, a judge will decide the matter. Id. The Code specifies that those who exert parental authority/responsibility have a
right to coexist (spend time) with their children, even if they do not have custody, unless it represents a danger to the child. Id. Art. 394. Further, the Code provides that as long as the child is under parental authority/responsibility, he shall not leave the house of those who exert it without their permission. Id. Art. 398. Finally, the Code provides that the abduction or retention of the minor outside of his habitual residence without the permission of those exerting parental authority/responsibility or custody grants the right to initiate the restitution procedure contemplated in the Code of Civil Procedure.
The doctrine of patria potestas set forth in the Code "implies a meaningful, decision making role in the life and care of the child." Whallon, 230 F.3d at 458. Accordingly, the rights of parental authority/responsibility afforded to Flor, as N.C.'s mother, pursuant to these Code provisions was sufficient to establish that she had rights of custody for purposes of the Hague Convention. Under the Code, Flor had the right to exert parental authority/responsibility, and the right to spend time with N.C. Daniel violated those rights by retaining N.C. in Albuquerque after the date upon which the parties agreed N.C. would be returned to Mexico. Assuming the Mexican courts would honor the parties' agreement here, Daniel was in violation of that agreement when he retained N.C. Further, Daniel retained N.C. outside of his habitual residence without Flor's permission, thus violating the Code. Accordingly, the Court found that Daniel's unilateral decision to retain N.C. was in breach of Flor's custody rights under the laws of N.C.'s habitual residence at the time of his removal.
The Court "liberally find[s] "exercise" whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child ." Friedrich, 78 F.3d at 1067. Accordingly, "if a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to 'exercise' those custody rights under the Hague Convention
short of acts that constitute clear and unequivocal abandonment of the child." The evidence demonstrated that, far from abandoning her child, Flor was living with and caring for N.C. in Mexico. Although, pursuant to the parties' agreement, she sent N.C. to spend the month of September with Daniel, she intended to continue to live with and care for Daniel upon his expected return at the end of the month. Accordingly, the Court found that Flor was exercising her custodial rights at the time of Daniel's retention of N.C. in the United States.
The Court concluded that Flor established by a preponderance of the evidence that Mexico was N.C.'s habitual residence, that Daniel's retention of N.C. in the United States was in breach of Flor's custody rights under Mexican law, and that Flor was exercising her custody rights at the time of retention. Accordingly, Flor made a prima facie case of wrongful retention. The burden thus shifted to Daniel to establish a defense. Daniel, however, did not assert any defense to Flor's prima facie case of
wrongful retention. Accordingly, the Court ordered the return of N.C. to Mexico.
In June 2010, Flor and N.C. with Daniel's consent, left for Chihuahua, Mexico. Both parties testified that they did not discuss a specific date on which Flor and N.C. would return to the United States. According to Flor, in advance of that trip, she told Daniel on several occasions that she wanted to move back to Mexico to be near her family, and intended to find a place to live and work there. With regard to the June trip in particular, Flor testified that she told Daniel that she planned to look for a place to live and a job while she was in Mexico, and that if she found a job, she might not return to the United States. According to Daniel, Flor told him she had already gotten a job in Mexico, and that she and N.C. would live there while she was working. He further testified that although they did not discuss how long Flor and N.C. would be in Mexico, it was supposed to be temporary, "for a relatively short time." .According to Daniel, he told Flor that he did not want N.C. to live in Mexico, and that Flor assured him that she and N.C. would return to Albuquerque in several months..
While they were in Mexico, Flor and N.C. lived with Flor's mother in Chihuahua. Until January 2011, Flor's mother cared for N.C. while Flor was at work. Beginning in January 2011, N.C. attended a daycare center in the mornings and stayed with Flor's mother in the afternoons. N.C. spent time with family at social gatherings, and played with cousins and friends from the neighborhood. His health was good, and according to Flor, he had a regular doctor that he saw every month. Daniel spoke to N.C. almost daily. In September 2010, Flor sent N.C. to Albuquerque with her mother to see Daniel.
Flor picked N.C. up at the end of the visit and brought him back to Mexico. In November 2010, Flor's mother again brought N.C. to Albuquerque to see Daniel. Flor, too, came to Albuquerque at that time, and stayed with her sister. N.C. stayed with Flor for the month of November and the first two weeks of December. He stayed with Daniel for the last two weeks of December for the holidays. While N.C. was with Flor, he saw Daniel daily. In November, Flor took N.C. for a check-up with his primary care physician in Albuquerque. Daniel testified that during Flor's stay in Albuquerque, she advised him that she intended to remain in Mexico, where she had gotten a good job. The parties together decided to enter into a written agreement regarding N.C.'s care and the distribution of their assets. Flor testified that the intent of the agreement was for N.C. to stay with her in Mexico, and to prevent future problems with visitation. .Daniel similarly testified that he entered into the agreement in order to "stay in contact" with N.C. while he and Flor were in Mexico. .He further testified that he understood that Flor would stay in Mexico, and while she was in Mexico, she would guarantee that he would see his son. Accordingly, on November 4, 2010, the parties entered into a written agreement, which was signed and notarized. The agreement provides as follows: By means of this document, we the interested parties Flor Jazmin Carrasco Lopez and Daniel Carrillo Castro arrived at an agreement as to the care of our son [N.C.]. In which we understand that for every 2 months that [N.C] spends living with his mom Flor Jazmin Carrasco in the city of Cuahutemoc Chihuahua. The following month he shall spend in the care of his dad Daniel Carrillo Castro in the city of Albuquerque New Mexico. In addition in this document we record how our assets were distributed as of our separation.
The agreement did not include any time limits on the arrangement for N.C.'s care, or any date on which Flor and N.C. would return to the United States. Despite his testimony that Flor advised him of her intention to remain in Mexico, where she had gotten a good job, Daniel also testified that he believed the agreement would be temporary, and that he repeatedly asked Flor to move back to Albuquerque. Daniel provided no factual basis, such as evidence that Flor's job was a temporary position, to support his testimony as to the temporary nature of Flor's stay in Mexico.
Both parties testified that they understood the agreement would have to change when N.C. started school. Flor testified that she told Daniel that once N.C. started school, N.C. should visit Daniel during school vacations. However, Flor also testified, as did Daniel, that Daniel had always intended for N.C. to attend school in the United States, and had made that intention known to Flor. When asked in what grade he thought N .C. would start school, Daniel responded, kindergarten. Flor and N.C. returned to Mexico at the end of December 2010. In keeping with the parties' written agreement, in March 2011, Flor sent N.C. to Albuquerque with her mother to see Daniel. N.C. remained in Albuquerque for one month, and then returned to Mexico. Although, pursuant to the parties' written agreement, N.C. was to spend the month of June 2011 with Daniel, N.C. did not travel to Albuquerque at that time. Flor testified that she did not bring or send N.C. to Albuquerque both because Daniel had threatened to keep N.C. in the United States if she did, and because neither Flor nor her mother was able to bring N.C. to the United States. Specifically, Flor's visa had expired and she was unable to procure a new visa, and Flor's mother was unavailable. The Court found Flor's testimony credible.
Flor testified that for approximately one week in June, she and N .C. traveled to an area that made it difficult to have telephone contact. .According to Flor, she told Daniel in advance about the trip. On the other hand, Daniel testified that he was unable to reach N.C. by telephone for approximately one week, and had not been advised by Flor that they would be traveling and unreachable. Daniel testified that because he had not heard from N.C, he decided that N.C. should stay with him in the United States, and sought legal assistance to effectuate that decision.
Flor testified that after June 2011, Daniel changed. He stopped threatening her and "became nice" again. In September 2011, in keeping with the parties' written agreement, Flor sent N.C. to Albuquerque with her sister. Flor expected that Daniel would send N.C. back to her at the end of the month. At that time, N.C. spoke no English.
Although the parties' agreement required him to return N.C. to Flor at the end of September, Daniel refused to allow N.C. to return to Mexico. Flor testified that Daniel told her at the end of September that he was not going to send N.C. back. Consistent with Flor's testimony, at one point in the hearing, Daniel admitted that he decided to retain N.C. at the end of September and then began a custody proceeding so that Flor would not find out about the proceeding until it was too late for her to refuse to send N.C. to see him. At another point in the hearing, Daniel provided contradictory testimony that he had told Flor in August that he intended to start a custody proceeding, and that she would not be able to take him back to Mexico at the end of September .Daniel testified that Flor "knew perfectly well what [he] was going to do" before she sent N.C. to the United States. The Court did not find credible Daniel's testimony that Flor knew in advance of the September trip that he intended to keep N.C. This testimony was simply not believable, and inconsistent with Flor's testimony, which the Court found credible.
In November 2011, Daniel filed in the Second Judicial District Court, State of New Mexico, a Petition to Establish Parentage, and to Determine Child Custody, Timesharing, and Child Support Obligation, in which he sought primary physical custody of N.C. In that proceeding, Daniel specifically requested that the state court enter an order prohibiting the removal of N.C. from the United States. Accordingly, on November 15, 2011, the state court entered a temporary order prohibiting the removal of N.C. from the State of New Mexico by one parent without the written consent of the other parent. Since sending him to Albuquerque in September 2011, Flor has spoken to N.C. daily, but has not been able to see him. Flor attempted to travel to Albuquerque in November 2011, but was unable to enter the United States. To date, Flor was unable to procure the necessary documents to travel to the United States.
On March 13, 2012, Flor filed the Petition, seeking, inter alia, an order directing prompt return of N.C. to Mexico, his habitual residence, and an order directing Daniel to pay her legal costs and fees. On April 10, 2012, Daniel filed an answer denying the allegations in the Petition. On May 3, 2012, the Court held an evidentiary hearing at which both parties testified. The Court observed term "habitual residence" is "not defined by either the Hague Convention or the ICARA." Kanth v. Kanth, 232 F.3d 901, 2000 WL 1644099, *1 (10th Cir. Nov. 2, 2000). Rather, a child's habitual residence "is defined by examining specific facts and circumstances." Accordingly, the inquiry into a child's habitual residence "is a fact-intensive determination that necessarily varies with the circumstances of each case." Whiting v. Krassner, 391 F.3d 540, 546 (3d Cir.2004). The federal circuit courts have interpreted the term "habitual residence" differently. In Feder, the Third Circuit held that 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." 63 F.3d at 224. Considering N.C.'s past experiences and the parties' shared intentions, the Court found that Mexico was the place where N.C. had been physically present for an amount of time sufficient for acclimatization, and which has a "settled purpose" from his perspective. See Feder, 63 F.3d at 224. Since he was born, N.C. lived with Flor. When Daniel and Flor separated, N.C. continued to live with Flor. When Flor left for Mexico in June 2010 to look for work and a place to live, N.C, with Daniel's permission, went with her. At the time, N.C. was two and one-half years old. In November 2010, when Flor told Daniel that she had found a job and would remain in Mexico indefinitely, Daniel again consented to Flor taking N.C. with her. At no point did the parties discuss a specific date on which Flor and N.C. would return to the United States. Other than three trips to visit his father, N.C. lived with Flor in Mexico until his retention in the United States in September 2011, when he was just over four years old. N.C. spoke only Spanish. From the time he first arrived in Mexico until his September 2011 trip, N.C.'s grandmother cared for him, at least for part of the day each weekday, and beginning in January 2011, N.C. attended daycare every weekday morning. N.C. established a relationship with his extended family, spending time at social gatherings, and playing with cousins. He also established friendships with neighborhood children. Although he had primary care physicians in New Mexico as well, N.C. established a relationship with a doctor in Mexico, whom he saw every month. N.C.'s fifteen months in Mexico-which, at four years old, was almost thirty percent of his life-living with the primary caretaker he had always known, surrounded by his extended family, and speaking the only language he had ever known, was sufficient for him to become acclimatized. See Falls v. Downie, 871 F.Supp. 100, 102 (D.Mass.1994) (finding twenty-one month old child had become "completely accustomed to life in this country and with his father and grandparents" where he had been living in the United States for eight months). Further, from his perspective, N.C.'s purpose of living in Mexico-to remain with his mother where she had decided to make a life for herself-had a sufficient degree of continuity to be properly described as settled. The fact that N.C. spent some time during this fifteen-month period in Albuquerque does not change this analysis, as "[i]t is clear ... that an existing habitual residence in a country is not lost by the mere fact of leaving the country for a temporary absence which is intended to be of a short duration."E.M. Clive, The Concept of Habitual Residence, 1997 Jurid. Rev. 137, 142. This is true even if Daniel intended for N.C. to return to the Albuquerque two years later to attend kindergarten, or, indeed, even if Daniel was under the impression that Flor was planning to return to the United States after a short time. As Feder makes clear, one need not intend to stay somewhere permanently, or even indefinitely, so long as "the purpose of living where one does has a sufficient degree of continuity to be properly described as settled." Feder, 63 F.3d at 223. Accordingly, "Feder requires only a degree of settled purpose to accompany the move, even if such purpose is only for a limited period." Whiting, 391 F.3d at 549 (holding that shared intent by parents that child live in Canada for period of two years fulfills Feder requirement that her move to Canada was accompanied by a degree of settled purpose). That requirement was met easily here. Both parents agreed that Flor would return to Mexico for some period of time with N.C. The amount of time was left open, and Daniel agreed that N.C. should go
with Flor. These arrangements "amounted to a purpose with a sufficient degree of
continuity to enable it properly to be described as settled." Levesque v. Levesque, 816 F.Supp. 662, 666 (D.Kan.1993) . For these reasons, under the Feder test, the Court concluded that Mexico was N.C.'s habitual residence at the time of his retention in the United States.
The Court reached the same conclusion under the Mozes test. The circumstances surrounding N.C.'s stay in Mexico were such that, "despite the lack of perfect consensus", the Court found that Flor and Daniel shared a settled mutual intent that N.C.'s stay in Mexico last indefinitely. See Mozes, 239 F.3d at 1077-78. Flor and Daniel shared a settled mutual intent that N.C.'s stay in Mexico last indefinitely. As this is the case, the Court inferred a mutual abandonment of N.C.'s prior habitual residence in the United States. Daniel's stated intention that N.C. return to Albuquerque to attend kindergarten did not change this analysis. Flor and N.C. left for Mexico in June 2010. Daniel was not eligible to begin kindergarten until September 2012. Accordingly, even if the parties shared a settled mutual intent that N.C.'s stay in Mexico last for two years, this period was too long to expect N.C. to live abroad-in his parents' native country-without acquiring habitual residence. Under the Mozes test, the Court concluded that Mexico was N.C.'s habitual residence at the time of his retention in the United States.
The Court noted that its determination regarding N.C.'s habitual residence was further supported by the fact that Daniel has no legal status in the United States. "An unlawful or precarious immigration status ... is [ ] a highly relevant circumstance where, as here, the shared intent of the parties is in dispute." Although N.C, himself, is a United States citizen, he was only four years old, and thus needs to rely on the stability of his primary caretaker for several years to come. Unfortunately, Daniel is unable to offer that stability. Accordingly, although not determinative of this Court's decision, Daniel's status is a factor weighing in favor of finding Mexico to be N.C.'s habitual residence.
N.C.'s habitual residence at the time of retention was the State of Chihuahua, Mexico. Accordingly, the law of Chihuahua, Mexico governs the decision as to whether Flor had custody rights at the time Daniel retained N.C. in the United States. Title Eighth of the Civil Code for the State of Chihuahua contains several provisions defining the scope of parental authority/responsibility, or patria potestas. Under this Title, the Code provides that parental authority/responsibility over children will be exerted by the father and mother. Civil Code, Art. 391(1). Further, the Code provides that in the event of a separation between the parents, both parents are required to continue fulfilling their obligations, and may agree upon the terms of its exertion, particularly in all things concerning the care and custody of the minors. Art. 393. In the case of disagreement between separating parties, a judge will decide the matter. Id. The Code specifies that those who exert parental authority/responsibility have a
right to coexist (spend time) with their children, even if they do not have custody, unless it represents a danger to the child. Id. Art. 394. Further, the Code provides that as long as the child is under parental authority/responsibility, he shall not leave the house of those who exert it without their permission. Id. Art. 398. Finally, the Code provides that the abduction or retention of the minor outside of his habitual residence without the permission of those exerting parental authority/responsibility or custody grants the right to initiate the restitution procedure contemplated in the Code of Civil Procedure.
The doctrine of patria potestas set forth in the Code "implies a meaningful, decision making role in the life and care of the child." Whallon, 230 F.3d at 458. Accordingly, the rights of parental authority/responsibility afforded to Flor, as N.C.'s mother, pursuant to these Code provisions was sufficient to establish that she had rights of custody for purposes of the Hague Convention. Under the Code, Flor had the right to exert parental authority/responsibility, and the right to spend time with N.C. Daniel violated those rights by retaining N.C. in Albuquerque after the date upon which the parties agreed N.C. would be returned to Mexico. Assuming the Mexican courts would honor the parties' agreement here, Daniel was in violation of that agreement when he retained N.C. Further, Daniel retained N.C. outside of his habitual residence without Flor's permission, thus violating the Code. Accordingly, the Court found that Daniel's unilateral decision to retain N.C. was in breach of Flor's custody rights under the laws of N.C.'s habitual residence at the time of his removal.
The Court "liberally find[s] "exercise" whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child ." Friedrich, 78 F.3d at 1067. Accordingly, "if a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to 'exercise' those custody rights under the Hague Convention
short of acts that constitute clear and unequivocal abandonment of the child." The evidence demonstrated that, far from abandoning her child, Flor was living with and caring for N.C. in Mexico. Although, pursuant to the parties' agreement, she sent N.C. to spend the month of September with Daniel, she intended to continue to live with and care for Daniel upon his expected return at the end of the month. Accordingly, the Court found that Flor was exercising her custodial rights at the time of Daniel's retention of N.C. in the United States.
The Court concluded that Flor established by a preponderance of the evidence that Mexico was N.C.'s habitual residence, that Daniel's retention of N.C. in the United States was in breach of Flor's custody rights under Mexican law, and that Flor was exercising her custody rights at the time of retention. Accordingly, Flor made a prima facie case of wrongful retention. The burden thus shifted to Daniel to establish a defense. Daniel, however, did not assert any defense to Flor's prima facie case of
wrongful retention. Accordingly, the Court ordered the return of N.C. to Mexico.
Hamprecht v Hamprecht, 2012 WL 1890857 (M.D.Fla.) Germany ] [Habitual Residence]
[Germany ] [Habitual Residence]
In Hamprecht v Hamprecht, 2012 WL 1890857 (M.D.Fla.) Petitioner and respondent were both born in Germany, and had always been German citizens. They were married in Germany on December 16, 1994, and became the parents of sons born in 1995, 1997, and 2005 in Germany. The family resided in Germany until February 18, 2009, when they came to the United States. Prior to that time the family had often traveled to the United States, but no member of the family ever attempted to obtain United States citizenship. The child at issue in this case was the youngest son, referred to as "F.H.", who was born in Germany on October 25, 2005.
Petitioner was the Chief Executive Officer (CEO) for Tube Technology Systems AG (TTS AG), a company located in Massen, Brandenburg, Germany. TTS AG currently manufactured and supplied specialized braking systems to Volkswagen, Audi, Lamborghini, and Bentley automobiles. Petitioner traveled extensively on his German passport. Respondent had not been employed outside the home. The parents wanted to immerse their oldest two sons in English, and decided to come to the United States for an extended stay. Petitioner testified that the stay in the United States was to coincide with his temporary employment duties, and the family never intended to stay permanently. Respondent testified that it had always been the plan and intent to move permanently to Florida.
In 2008, the parties sold their house in Germany, which was about 350 miles from the TTS AG plant, and moved to rental property in Dresden, Germany closer to the company. On August 28, 2008, petitioner purchased a $739,000 waterfront home on Harbour Circle in Cape Coral, Florida. Subsequent correspondence from respondent and her attorney refers to this house as the parties' "vacation home." The parties also began making arrangements for their trip to the United States, checking on schools for the two older sons and checking on how to enter the United States. On February 4 or 5, 2009, respondent and F.H. were issued six-month B-2 (visitor) visas at the U.S. Embassy in Berlin, Germany, while the other two boys were issued F-1 (student) visas. Petitioner was admitted to the United States pursuant to the waiver program. Petitioner, respondent, and their three sons arrived in the United States on February 18, 2009.
Upon their arrival in the United States, the family lived in the vacation home in Cape Coral and the two older boys enrolled in a private school in Fort Myers, Florida.
Petitioner would travel back and forth to Germany for his employment activities while his family remained in Florida. TTS AG maintained an apartment for petitioner in Berlin, Germany. Shortly thereafter, TTS AG decided to expand its production to the United States. In March 2009, TTS AG incorporated Tube Technology Systems, Inc. (TTS Inc.) as a wholly owned Florida subsidiary. TTS AG asked petitioner to run the United States affiliate in addition to his other duties with TTS AG. Respondent's six-month visitor status was to expire on August 17, 2009. In a letter dated July 12, 2009 to the United States Citizenship and Immigration Services (USCIS), respondent's attorney submitted an application for an extension of respondent's B-2 status. Attached to the attorney's letter was an undated letter by respondent to the USCIS requesting the extension of her B-2 status. Respondent's letter stated she was "requesting that my stay be extended until to allow me to remain with and care for my young sons until we return to Germany at the end of the school year. They are currently enrolled with valid F-2 student visas in a private program at Canterbury School in Fort Myers, Florida." Both letters referred to an enclosure of a copy of a warranty deed to "our vacation home" in Florida. Respondent's "application for extension of temporary stay" was approved effective from August 18, 2009 through February 16, 2010.
On November 18, 2009, TTS Inc. applied for a L-type visa for petitioner, which was granted on November 20, 2009. A L-type visa is a nonimmigrant temporary visa to effectuate an intracompany transfer of an executive or manager to the United States. In February 2010, petitioner formally agreed to establish and manage TTS Inc. for the manufacture of specialty automobile brake systems for United States automakers. On February 11, 2010, petitioner became the CEO of TTS Inc. pursuant to an additional employment contract with TTS AG and TTS Inc. This additional employment contract, which was governed by German law, was to terminate on November 30, 2011. TTS AG officials variously estimated the project would take 18 to 24 months, and then petitioner was to return to Germany. Because her visa extension would expire soon, in a February 10, 2010 letter by counsel, respondent applied for a change of her B-2 status to an L-2 status and an extension until January 31, 2011 to coincide with petitioner's L-1 status. This application was approved on April 2, 2010, and respondent was given L-2 status (which was derivative of and dependent upon her husband's L-1 status) through January 31, 2011. A similar status change was granted for F.H. on May 5, 2010. Petitioner traveled back and forth to Germany, and researched a location in the United States for the new TTS Inc. plant.
The parties' two older sons re-enrolled in their private school for the 2010 school year. Petitioner's business activities were succeeding. Petitioner and respondent, however, were having marital difficulties. To address their immigration statuses, both petitioner and respondent filed additional applications for extensions. On November 9, 2010, respondent applied for an extension of her L-2 status through January 30, 2013. On November 17, 2010, TTS Inc. filed a petition with the USCIS for an extension of petitioner's L-1A status based upon his employment. TTS Inc. reported that petitioner had negotiated incentives with the City of Auburn, Alabama, hired a consultant to assist with preliminary work in setting up a production facility, shipped machinery and equipment required to begin operations, and reached an agreement with Volkswagen to supply its brake systems. TTS Inc. stated that the dates of intended employment were January 31, 2011 to January 30, 2013.
On December 16, 2010, both petitions were granted. Petitioner was issued an extension of the L-1 visa to stay in the United States through January 30, 2013, based upon his continued employment for TTS Inc. Respondent was granted a "temporary stay" extending her stay in the United States through January 30, 2013. This form notified respondent that her nonimmigrant status was based on the separate nonimmigrant status held by virtue of her husband's authorized employment in the United States. In February 2011, respondent signed contracts with the private school for all three of her sons for the 2011 school year. By a letter dated March 16, 2011, respondent filed an application for permission to accept employment in the United States. This was approved on May 26, 2011. In March 2011, the parties sold the vacation house in Cape Coral because it was too small for the family, and began planning to build a new house. On March 15, 2011, respondent purchased a lot in the Gulf Harbor Yacht and Country Club, in Fort Myers, Florida, for $320,000. Petitioner retained a real estate developer and former neighbor to design a custom residence with over 6,400 square feet of living space at an estimated cost of $1.25 million. The design process would be completed, but was eventually cancelled due to the marital difficulties. In March 2011, during an exchange of emails between petitioner in Germany and the designer, petitioner made reference to a "move to Fort Myers full time" and requested that the design process be expedited.
Marital difficulties continued during the design process for the new house. Respondent had opened up a bank account in her own name at a Florida bank in March 2011. The parties separated in about August 2011. In September 2011, petitioner discovered that respondent was having an on-going extramarital affair.
On September 26, 2011, respondent took in excess of $330,000 from a joint account with petitioner and deposited it in her sole account in the Florida bank. By mid-October 2011, petitioner had physical custody of the two older boys and respondent had physical custody of F.H. Both parents, however, remained active in the care and upbringing of all three sons. On October 13, 2011, respondent filed a domestic violence action against petitioner and obtained a state court temporary restraining order. On October 20, 2011, petitioner filed for petition for divorce in the Lee County Circuit Court, stating that he and respondent "have been residents of the State of Florida for more than six months next before filing this petition." Florida law requires that at least one of the parties to a divorce proceeding have been a Florida resident for more than six months.Fla. Stat. 61.021.Petitioner dismissed the divorce petition on December 6, 2011. Respondent, however, filed a cross-petition for divorce, which remained pending but was stayed by agreement of the parties.
On November 9, 2011, the state court entered an Order on Stipulation for No Contact directing petitioner to have no contact with respondent, and directing dismissal of the temporary injunction. Without informing respondent, on November 14, 2011, petitioner and the two older sons left Florida for Germany. Respondent had possession of the passports for all three sons. On November 15, 2011, petitioner and his two older sons went to the German embassy in Florida where they obtained emergency documents for the two older sons to return to Germany. They left for Germany later that day and arrived on November 16, 2011.
On or about November 17, 2011, both parents filed motions in the divorce proceeding asking for a temporary parenting plan. Petitioner and respondent both asked for custody of all three children. On December 7, 2011, the state court entered an order granting temporary custody of all three children to the mother and directing that the two older children be returned to Florida.
On November 21, 2011, TTS Inc. withdrew its November 18, 2009, petition for nonimmigrant worker status for petitioner. The USCIS revoked the petition effective that date. The last time respondent attempted to contact her two sons in Germany, or to speak with them when they attempted to contact her, was in the end of November 2011. Petitioner tried to contact respondent and F.H. repeatedly by email, but respondent has never returned the contact or allowed F.H. to do so. Additionally, respondent had not let F.H. contact his father or paternal grandparents since that time.
On January 3, 2012, petitioner filed an Application for Regulation of Parental Custody in a German court regarding his three sons. Petitioner sought full parental custody, or alternatively, the right to determine the place of residence of his three sons.
Respondent's immigration status in the United States was derivative of petitioner's status, which was dependent upon his employment in the United States. Respondent therefore applied for and was accepted as a student at Edison State College for classes beginning January 12, 2012. By a January 10, 2012, letter authored by counsel, respondent filed an application with the USCIS for an extension/change of nonimmigrant status. Respondent's January 3, 2012 application requested an F-1 (student) status, independent of any application or status of petitioner, stating that she traveled on a German passport and was not an applicant for an immigrant visa. Respondent's signed Certificate of Eligibility for Nonimmigrant (F-1) Student Status stated she had been accepted at Edison State College for classes majoring in Early Childhood Education and Teaching, which she expected to complete "not later than 05/05/2014."Respondent certified that "I seek to enter or remain in the United States temporarily, and solely for the purpose of pursuing a full course of study at the school...." In a separate Affidavit of Stephanie Hamprecht dated January 3, 2012, respondent stated that she was currently present in the United States pursuant to a grant of Change of Status to L-2 status as a dependent spouse "during my husband's temporary work assignment" valid from February 1, 2011 to January 30, 2013; that her husband had filed for divorce; that while divorce proceedings are pending, and after the termination of the marriage, she "wish[ed] to stay in the United States to pursue a degree in Early Child Education in order to better my chances of employment in Germany"; that she was not employed during her 17 year marriage, and therefore "I will have difficulty finding employment upon my return to Germany without any kind of formal education"; that after completion of her program at Edison Community College "I plan on moving back to my residence in Germany, where I have a strong support circle made up of many friends and a large family and where I have a strong financial standing"; and that "I own property in Dorsten, Germany, where I plan to return and seek employment upon the termination of my program at Edison Community College."
On February 24, 2012, the requested change of status to F-1 (student) was granted for respondent. The approved "temporary stay" was valid for the duration of respondent's student status. In a March 7, 2012 letter by counsel, respondent caused an application to be filed on behalf of F.H. requesting a change of status to F-2 status. The application stated that F.H. was "supported by my mother, based on whose principal status I am applying." The application remained pending as the USCIS issued a Request for Evidence on May 1, 2012 requiring a Dependant Copy of the SEVIS Form I-20 by June 3, 2012. In an April 5, 2012, answer to request for admission, respondent stated:"Respondent denies that she ever intended to return to Germany after moving to the United States."
The District Court found that the retention of F.H. in the United States was clearly with the petitioner's consent until November 14, 2011, the date petitioner left for Germany with his two other sons. It observed that the Eleventh Circuit has adopted an approach to determine habitual residence. Determination of a habitual residence focuses on the existence or non-existence of a settled intention to abandon the former residence in favor of a new residence, coupled with an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized. Ruiz, 392 F.3d at 1253-54,adopting the approach set forth in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001). The Court concluded that petitioner has established by a preponderance of the evidence that F.H.'s habitual residence remained Germany.
It found that the parents never had a shared intention to abandon Germany as a habitual residence and to make the United States the habitual residence for themselves or F.H. Both parents clearly had the shared intent to come to the United States for some period of time. There was an agreement to stay for the duration of petitioner's employment activities in the United States. Petitioner maintained this was the extent of the agreement, while respondent asserted that it was agreed they would never again reside in Germany.
The Court did not find respondent's testimony regarding their agreement to remain permanently in the United States to be credible. Respondent had shown a propensity to make whatever statement was in her best interest at the time in this regard. Petitioner testified before the Court that since February 18, 2009, it has been her intent to live permanently in Florida; that this intent has never changed; and that since her arrival in the United States she never intended to return to Germany. In an April 5, 2012, answer to requests for admissions, respondent denied "that she ever intended to return to German after moving to the United States." And yet, in July 2009, respondent told the USCIS that she was requesting a visa extension to stay with her children "until we return to Germany at the end of the school year." In January 2012, respondent told the USCIS she was requesting a student visa to complete her education so as to "better my chances for employment in Germany." Respondent said she owned property in Dorsten, Germany, "where I plan to return and seek employment upon the termination of my program" at school. The Court found that the parents never had the settled intention of abandoning Germany as their habitual residence in favor of the United States.
It was undisputed that respondent had maintained custody of F.H. in the United States, and refused to allow petitioner to communicate with F.H. and refused to allow F.H. to communicate with petitioner. Respondent retained F.H.'s German passport (until surrendered to the court), has declined to return F.H. to Germany, and initiated legal proceedings to prevent that from occurring. The Court found that there was a "retention" of F.H. within the meaning of the Hague Convention from at least November 17, 2012 forward.
The Court concluded that the evidence in this case established that respondent's retention of the child was a wrongful retention under the Hague Convention. Respondent's refusal to allow communication between F.H. and petitioner, and her unilateral retention of F.H. without the consent of petitioner, violated petitioner's custody rights under German law. Petitioner also established he was exercising his rights of custody at the time the child was wrongfully retained. Petitioner continued to see and
visit with the child and participate in his life prior to leaving for Germany. After November 14, 2011, petitioner made multiple efforts to maintain contact with the child as well as to obtain custody of F.H.
In Hamprecht v Hamprecht, 2012 WL 1890857 (M.D.Fla.) Petitioner and respondent were both born in Germany, and had always been German citizens. They were married in Germany on December 16, 1994, and became the parents of sons born in 1995, 1997, and 2005 in Germany. The family resided in Germany until February 18, 2009, when they came to the United States. Prior to that time the family had often traveled to the United States, but no member of the family ever attempted to obtain United States citizenship. The child at issue in this case was the youngest son, referred to as "F.H.", who was born in Germany on October 25, 2005.
Petitioner was the Chief Executive Officer (CEO) for Tube Technology Systems AG (TTS AG), a company located in Massen, Brandenburg, Germany. TTS AG currently manufactured and supplied specialized braking systems to Volkswagen, Audi, Lamborghini, and Bentley automobiles. Petitioner traveled extensively on his German passport. Respondent had not been employed outside the home. The parents wanted to immerse their oldest two sons in English, and decided to come to the United States for an extended stay. Petitioner testified that the stay in the United States was to coincide with his temporary employment duties, and the family never intended to stay permanently. Respondent testified that it had always been the plan and intent to move permanently to Florida.
In 2008, the parties sold their house in Germany, which was about 350 miles from the TTS AG plant, and moved to rental property in Dresden, Germany closer to the company. On August 28, 2008, petitioner purchased a $739,000 waterfront home on Harbour Circle in Cape Coral, Florida. Subsequent correspondence from respondent and her attorney refers to this house as the parties' "vacation home." The parties also began making arrangements for their trip to the United States, checking on schools for the two older sons and checking on how to enter the United States. On February 4 or 5, 2009, respondent and F.H. were issued six-month B-2 (visitor) visas at the U.S. Embassy in Berlin, Germany, while the other two boys were issued F-1 (student) visas. Petitioner was admitted to the United States pursuant to the waiver program. Petitioner, respondent, and their three sons arrived in the United States on February 18, 2009.
Upon their arrival in the United States, the family lived in the vacation home in Cape Coral and the two older boys enrolled in a private school in Fort Myers, Florida.
Petitioner would travel back and forth to Germany for his employment activities while his family remained in Florida. TTS AG maintained an apartment for petitioner in Berlin, Germany. Shortly thereafter, TTS AG decided to expand its production to the United States. In March 2009, TTS AG incorporated Tube Technology Systems, Inc. (TTS Inc.) as a wholly owned Florida subsidiary. TTS AG asked petitioner to run the United States affiliate in addition to his other duties with TTS AG. Respondent's six-month visitor status was to expire on August 17, 2009. In a letter dated July 12, 2009 to the United States Citizenship and Immigration Services (USCIS), respondent's attorney submitted an application for an extension of respondent's B-2 status. Attached to the attorney's letter was an undated letter by respondent to the USCIS requesting the extension of her B-2 status. Respondent's letter stated she was "requesting that my stay be extended until to allow me to remain with and care for my young sons until we return to Germany at the end of the school year. They are currently enrolled with valid F-2 student visas in a private program at Canterbury School in Fort Myers, Florida." Both letters referred to an enclosure of a copy of a warranty deed to "our vacation home" in Florida. Respondent's "application for extension of temporary stay" was approved effective from August 18, 2009 through February 16, 2010.
On November 18, 2009, TTS Inc. applied for a L-type visa for petitioner, which was granted on November 20, 2009. A L-type visa is a nonimmigrant temporary visa to effectuate an intracompany transfer of an executive or manager to the United States. In February 2010, petitioner formally agreed to establish and manage TTS Inc. for the manufacture of specialty automobile brake systems for United States automakers. On February 11, 2010, petitioner became the CEO of TTS Inc. pursuant to an additional employment contract with TTS AG and TTS Inc. This additional employment contract, which was governed by German law, was to terminate on November 30, 2011. TTS AG officials variously estimated the project would take 18 to 24 months, and then petitioner was to return to Germany. Because her visa extension would expire soon, in a February 10, 2010 letter by counsel, respondent applied for a change of her B-2 status to an L-2 status and an extension until January 31, 2011 to coincide with petitioner's L-1 status. This application was approved on April 2, 2010, and respondent was given L-2 status (which was derivative of and dependent upon her husband's L-1 status) through January 31, 2011. A similar status change was granted for F.H. on May 5, 2010. Petitioner traveled back and forth to Germany, and researched a location in the United States for the new TTS Inc. plant.
The parties' two older sons re-enrolled in their private school for the 2010 school year. Petitioner's business activities were succeeding. Petitioner and respondent, however, were having marital difficulties. To address their immigration statuses, both petitioner and respondent filed additional applications for extensions. On November 9, 2010, respondent applied for an extension of her L-2 status through January 30, 2013. On November 17, 2010, TTS Inc. filed a petition with the USCIS for an extension of petitioner's L-1A status based upon his employment. TTS Inc. reported that petitioner had negotiated incentives with the City of Auburn, Alabama, hired a consultant to assist with preliminary work in setting up a production facility, shipped machinery and equipment required to begin operations, and reached an agreement with Volkswagen to supply its brake systems. TTS Inc. stated that the dates of intended employment were January 31, 2011 to January 30, 2013.
On December 16, 2010, both petitions were granted. Petitioner was issued an extension of the L-1 visa to stay in the United States through January 30, 2013, based upon his continued employment for TTS Inc. Respondent was granted a "temporary stay" extending her stay in the United States through January 30, 2013. This form notified respondent that her nonimmigrant status was based on the separate nonimmigrant status held by virtue of her husband's authorized employment in the United States. In February 2011, respondent signed contracts with the private school for all three of her sons for the 2011 school year. By a letter dated March 16, 2011, respondent filed an application for permission to accept employment in the United States. This was approved on May 26, 2011. In March 2011, the parties sold the vacation house in Cape Coral because it was too small for the family, and began planning to build a new house. On March 15, 2011, respondent purchased a lot in the Gulf Harbor Yacht and Country Club, in Fort Myers, Florida, for $320,000. Petitioner retained a real estate developer and former neighbor to design a custom residence with over 6,400 square feet of living space at an estimated cost of $1.25 million. The design process would be completed, but was eventually cancelled due to the marital difficulties. In March 2011, during an exchange of emails between petitioner in Germany and the designer, petitioner made reference to a "move to Fort Myers full time" and requested that the design process be expedited.
Marital difficulties continued during the design process for the new house. Respondent had opened up a bank account in her own name at a Florida bank in March 2011. The parties separated in about August 2011. In September 2011, petitioner discovered that respondent was having an on-going extramarital affair.
On September 26, 2011, respondent took in excess of $330,000 from a joint account with petitioner and deposited it in her sole account in the Florida bank. By mid-October 2011, petitioner had physical custody of the two older boys and respondent had physical custody of F.H. Both parents, however, remained active in the care and upbringing of all three sons. On October 13, 2011, respondent filed a domestic violence action against petitioner and obtained a state court temporary restraining order. On October 20, 2011, petitioner filed for petition for divorce in the Lee County Circuit Court, stating that he and respondent "have been residents of the State of Florida for more than six months next before filing this petition." Florida law requires that at least one of the parties to a divorce proceeding have been a Florida resident for more than six months.Fla. Stat. 61.021.Petitioner dismissed the divorce petition on December 6, 2011. Respondent, however, filed a cross-petition for divorce, which remained pending but was stayed by agreement of the parties.
On November 9, 2011, the state court entered an Order on Stipulation for No Contact directing petitioner to have no contact with respondent, and directing dismissal of the temporary injunction. Without informing respondent, on November 14, 2011, petitioner and the two older sons left Florida for Germany. Respondent had possession of the passports for all three sons. On November 15, 2011, petitioner and his two older sons went to the German embassy in Florida where they obtained emergency documents for the two older sons to return to Germany. They left for Germany later that day and arrived on November 16, 2011.
On or about November 17, 2011, both parents filed motions in the divorce proceeding asking for a temporary parenting plan. Petitioner and respondent both asked for custody of all three children. On December 7, 2011, the state court entered an order granting temporary custody of all three children to the mother and directing that the two older children be returned to Florida.
On November 21, 2011, TTS Inc. withdrew its November 18, 2009, petition for nonimmigrant worker status for petitioner. The USCIS revoked the petition effective that date. The last time respondent attempted to contact her two sons in Germany, or to speak with them when they attempted to contact her, was in the end of November 2011. Petitioner tried to contact respondent and F.H. repeatedly by email, but respondent has never returned the contact or allowed F.H. to do so. Additionally, respondent had not let F.H. contact his father or paternal grandparents since that time.
On January 3, 2012, petitioner filed an Application for Regulation of Parental Custody in a German court regarding his three sons. Petitioner sought full parental custody, or alternatively, the right to determine the place of residence of his three sons.
Respondent's immigration status in the United States was derivative of petitioner's status, which was dependent upon his employment in the United States. Respondent therefore applied for and was accepted as a student at Edison State College for classes beginning January 12, 2012. By a January 10, 2012, letter authored by counsel, respondent filed an application with the USCIS for an extension/change of nonimmigrant status. Respondent's January 3, 2012 application requested an F-1 (student) status, independent of any application or status of petitioner, stating that she traveled on a German passport and was not an applicant for an immigrant visa. Respondent's signed Certificate of Eligibility for Nonimmigrant (F-1) Student Status stated she had been accepted at Edison State College for classes majoring in Early Childhood Education and Teaching, which she expected to complete "not later than 05/05/2014."Respondent certified that "I seek to enter or remain in the United States temporarily, and solely for the purpose of pursuing a full course of study at the school...." In a separate Affidavit of Stephanie Hamprecht dated January 3, 2012, respondent stated that she was currently present in the United States pursuant to a grant of Change of Status to L-2 status as a dependent spouse "during my husband's temporary work assignment" valid from February 1, 2011 to January 30, 2013; that her husband had filed for divorce; that while divorce proceedings are pending, and after the termination of the marriage, she "wish[ed] to stay in the United States to pursue a degree in Early Child Education in order to better my chances of employment in Germany"; that she was not employed during her 17 year marriage, and therefore "I will have difficulty finding employment upon my return to Germany without any kind of formal education"; that after completion of her program at Edison Community College "I plan on moving back to my residence in Germany, where I have a strong support circle made up of many friends and a large family and where I have a strong financial standing"; and that "I own property in Dorsten, Germany, where I plan to return and seek employment upon the termination of my program at Edison Community College."
On February 24, 2012, the requested change of status to F-1 (student) was granted for respondent. The approved "temporary stay" was valid for the duration of respondent's student status. In a March 7, 2012 letter by counsel, respondent caused an application to be filed on behalf of F.H. requesting a change of status to F-2 status. The application stated that F.H. was "supported by my mother, based on whose principal status I am applying." The application remained pending as the USCIS issued a Request for Evidence on May 1, 2012 requiring a Dependant Copy of the SEVIS Form I-20 by June 3, 2012. In an April 5, 2012, answer to request for admission, respondent stated:"Respondent denies that she ever intended to return to Germany after moving to the United States."
The District Court found that the retention of F.H. in the United States was clearly with the petitioner's consent until November 14, 2011, the date petitioner left for Germany with his two other sons. It observed that the Eleventh Circuit has adopted an approach to determine habitual residence. Determination of a habitual residence focuses on the existence or non-existence of a settled intention to abandon the former residence in favor of a new residence, coupled with an actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized. Ruiz, 392 F.3d at 1253-54,adopting the approach set forth in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001). The Court concluded that petitioner has established by a preponderance of the evidence that F.H.'s habitual residence remained Germany.
It found that the parents never had a shared intention to abandon Germany as a habitual residence and to make the United States the habitual residence for themselves or F.H. Both parents clearly had the shared intent to come to the United States for some period of time. There was an agreement to stay for the duration of petitioner's employment activities in the United States. Petitioner maintained this was the extent of the agreement, while respondent asserted that it was agreed they would never again reside in Germany.
The Court did not find respondent's testimony regarding their agreement to remain permanently in the United States to be credible. Respondent had shown a propensity to make whatever statement was in her best interest at the time in this regard. Petitioner testified before the Court that since February 18, 2009, it has been her intent to live permanently in Florida; that this intent has never changed; and that since her arrival in the United States she never intended to return to Germany. In an April 5, 2012, answer to requests for admissions, respondent denied "that she ever intended to return to German after moving to the United States." And yet, in July 2009, respondent told the USCIS that she was requesting a visa extension to stay with her children "until we return to Germany at the end of the school year." In January 2012, respondent told the USCIS she was requesting a student visa to complete her education so as to "better my chances for employment in Germany." Respondent said she owned property in Dorsten, Germany, "where I plan to return and seek employment upon the termination of my program" at school. The Court found that the parents never had the settled intention of abandoning Germany as their habitual residence in favor of the United States.
It was undisputed that respondent had maintained custody of F.H. in the United States, and refused to allow petitioner to communicate with F.H. and refused to allow F.H. to communicate with petitioner. Respondent retained F.H.'s German passport (until surrendered to the court), has declined to return F.H. to Germany, and initiated legal proceedings to prevent that from occurring. The Court found that there was a "retention" of F.H. within the meaning of the Hague Convention from at least November 17, 2012 forward.
The Court concluded that the evidence in this case established that respondent's retention of the child was a wrongful retention under the Hague Convention. Respondent's refusal to allow communication between F.H. and petitioner, and her unilateral retention of F.H. without the consent of petitioner, violated petitioner's custody rights under German law. Petitioner also established he was exercising his rights of custody at the time the child was wrongfully retained. Petitioner continued to see and
visit with the child and participate in his life prior to leaving for Germany. After November 14, 2011, petitioner made multiple efforts to maintain contact with the child as well as to obtain custody of F.H.
Khan v. Fatima, --- F.3d ----, 2012 WL 1560398 (C.A.7 (Ill.)) [Canada] [Federal & State Judicial Remedies -Rule 52 -Duty to Make Findings of Fact]
In Khan v. Fatima, --- F.3d ----, 2012 WL 1560398 (C.A.7 (Ill.)) the petitioner was the father, and the respondent, his wife, was the mother. She removed the child from their joint custody and is thus the "abductor." The child is a girl not yet 4 years old, who was referred to as ZFK. The father, an optometrist in Edmonton, Alberta (Canada), wanted to take the child back to Edmonton. He filed for divorce in Canada on the ground of the mother's "physical or mental cruelty" to him, and sought sole custody of the children. The mother, a U.S. citizen living in Illinois, wanted to keep the children with her in the United States. The district court ordered ZFK returned to Canada with her father, and the mother appealed.
The Court observed that Article 13(b) of the Convention provides a defense to the return of the " abducted" child if "there is a grave risk that [the child's] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." The respondent (the abductor) must prove this defense by clear and convincing evidence, 42 U.S.C. s 11603(e)(2)(A), and Hague Convention proceedings must be conducted with dispatch. Art. 11; March v. Levine, 249 F.3d
462, 474 (6th Cir.2001).
The parties became husband and wife in an arranged marriage two years before the birth of ZFK, their first child. During the family's visit to India the wife complained to the Indian police of domestic abuse. The police investigated, charged the husband, and took away his passport in April of last year. While he was in India the wife (pregnant at the time with a second child), flew to the United States with ZFK. Eventually the husband's passport was returned and he flew back to Canada and some months later, in February of this year, filed the petition for the return of the child. That child was born in the United States after the mother had brought ZFK here and was therefore a U.S. citizen. The father did not argue that the mother abducted that child, who continued to live with her mother.
On March 7 the father obtained an ex parte order from the district court requiring the mother to yield custody of ZFK to him pending resolution of his petition, and on the thirteenth the judge scheduled an evidentiary hearing for March 22. It was held that day and he issued a final order of return the next day and also ordered the wife to hand over ZFK's passport to her husband so that he could take the child back to Canada. But the judge conditioned the orders on the husband's agreeing to pay a retainer (though not necessarily any additional fees) for an attorney who would be hired by the wife to handle the divorce and custody proceeding that her husband has begun in Canada.
On the wife's motion the Circuit Court of Appeals stayed both the order of return, and the order that she turn over the child's passport to her husband, pending the decision of her appeal. And on May 1, after hearing oral argument in the appeal the day before, it ordered the child returned to the mother pending its decision, but that both the mother's passport and the child's passport be held by the U.S. Marshals Service until further notice.
The Court observed that the wife's testimony, if believed, revealed that her husband had a violent, ungovernable temper, had physically abused her on many occasions, some in the presence of ZFK (and in front of the child he had told his wife he would take out her eyeballs, had been rough on occasion with the child, terrified the child, and that the child's mood had brightened greatly when she was living apart from her father. But if the husband's testimony is believed, he was, if not a model husband, not an abuser of his wife or the child.
The Court pointed out that Rule 52(a)(1) of the civil rules requires the judge to "find the facts specially and state [his] conclusions of law separately" when he is the trier of fact. He is not excused from this duty in a proceeding under the Hague Convention. And the duty is not waived when, as in this case, plaintiff and defendant testify inconsistently and it is impossible to demonstrate by objective evidence which one is telling the truth, or more of the truth. The trier of fact must decide whom to believe (and how much to believe) on the basis of the coherence and plausibility of the contestants' testimony, corroboration or contradiction by other witnesses, and other clues to falsity and veracity. The process of factfinding in such a situation is inexact and the findings that result are doubtless often mistaken. But the judge can't just throw up his hands, as happened in this case, because he can't figure out what is true and what is false in the testimony. There is no uncertainty exception to the duty imposed by Rule 52. And if there were such an exception, it would not be available when the evidentiary hearing had lasted only a day, as in this case. The judge could have
adjourned the hearing for a few days to enable additional evidence to be obtained and presented; in particular he could have had ZFK examined by a child psychologist. The wife's lawyer, his initial proposal of an expert witness having been turned down because the witness hadn't had time to examine the child (the hearing was held only two weeks after the respondent learned about the suit), offered to submit an evaluation based on an examination of the child by the end of the week. The judge refused. His final order, issued the day after the hearing, was two pages long and contained no findings of fact relating to the Article 13(b) defense, just a conclusion that the wife had failed to meet her burden of proof. That was not a finding of fact, but a conclusion of law. Rule 52(a)(1) requires both: that the facts be found "specially" and the conclusions of law stated separately. There is no rule exempting the judge from the duty of finding the facts in cases in which the plaintiff has a higher burden of proof than the usual civil burden of the preponderance of the evidence.
At the end of the evidentiary hearing the judge had had a discussion with the lawyers, and from that the Court pieced together his thinking and extracted a single, solitary factfinding. The judge began by saying, directly after the parties' witnesses had testified (there were no closing arguments), that "neither-none of the parties to the suit are residents of Illinois."Not true; the wife is currently a resident of Illinois. The judge said that "if I send it [the issue of custody of the child] back to
Canada, the Canadian courts presumably will look and take evidence and so forth and hear essentially the same evidence, I guess, I'm hearing today and make a decision to award custody to the mother or to the father.... [Under the Hague Convention] the child is to be returned except where there's grave risk of harm to the child. And, now, there's-presumably, there's always some risk. All I know is
what I heard here today. And I'm-there's been a he said/she said hearing today. nd it's very difficult for me to say categorically one side is telling the truth and one side is not telling the truth." The judge mentioned a bruise that the mother had received on her arm in India and that had been photographed at the police station and was a basis for her complaint to the police. The judge said that if the father had inflicted the bruise-which he declined to decide one way or the other-that was a bad thing to have done but it hadn't created a "grave risk," a key term in Article 13(b). The Court noted that the issue was not creating a grave risk to the mother, but a grave risk (of psychological harm) to the child. If the mother's testimony about the father's ungovernable temper and brutal treatment of her was
believed, it would support an inference of a grave risk of psychological harm to the child if she continued living with him.
Very little of the wife's testimony was mentioned by the judge, even though the wife had testified that she'd been beaten, knocked down by him in front of ZFK, hit in the chest by a heavy wallet that he had hurled at her, choked by him twice (and she said she thought she would die) when she was pregnant with her second child, threatened with having her eyeballs yanked out, and dragged bodily from the backyard into a room in the house.
The mother's testimony was corroborated by her sister and her sister's husband.
The judge did not mention the testimony of those witnesses, the testimony of a supervisor from Supervised Visitation Services (who testified about the child's having said she "hurt"), or any testimony of the mother except about the bruise on her arm and he made no finding about whether the father had inflicted it, instead dismissing it as not evidence of a "grave risk" to the mother. His focus on the bruise to the exclusion of any mention of the mother's testimony that her husband had choked her hard enough to make her afraid she would die, or indeed of any of her other testimony, was perplexing. Much of that abuse occurred in the child's presence; and repeated physical and psychological abuse of a child's mother by the child's father, in the presence of the child (especially a very young child, as in this case), was likely to create a risk of psychological harm to the child. Whether it was a grave risk, and thus triggered the Article 13(b) defense, was a separate question, but one that cannot be addressed, let alone answered, without recognizing the potential for such a risk in the father's behavior toward the mother in the child's presence. All this the judge ignored.
Throwing up his hands at what he may have thought an incomprehensible quarrel between foreigners, the judge remarked that even if the child wouldn't be safe living with her father, "Why can't Canada any more than Illinois protect-offer her protection?"The mother's lawyer pointed out that other witnesses besides the mother had testified and that there was testimony of "multiple instances" of abuse, to which the judge replied: "Then she ultimately should prevail.... Canada should make the decision on who gets custody of the child because the child is a Canadian citizen and domiciled in Canada."The lawyer asked for a few days to obtain a psychologist's evaluation of the child and the judge refused.
The Court stated that unless a trier of fact determines that the mother is a thorough liar, it was concerned that continuing the child in her father's custody may inflict inflict psychological harm on her. The Court held that the evidentiary hearing was inadequate. Rule 52(a) was violated; there were no findings of fact on the key issues. Decisions are frequently reversed for such omissions. The failure to allow psychological evidence was another error. The errors were not harmless. The district court's order was vacated and the case remanded for a proper hearing.
The Court observed that Article 13(b) of the Convention provides a defense to the return of the " abducted" child if "there is a grave risk that [the child's] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." The respondent (the abductor) must prove this defense by clear and convincing evidence, 42 U.S.C. s 11603(e)(2)(A), and Hague Convention proceedings must be conducted with dispatch. Art. 11; March v. Levine, 249 F.3d
462, 474 (6th Cir.2001).
The parties became husband and wife in an arranged marriage two years before the birth of ZFK, their first child. During the family's visit to India the wife complained to the Indian police of domestic abuse. The police investigated, charged the husband, and took away his passport in April of last year. While he was in India the wife (pregnant at the time with a second child), flew to the United States with ZFK. Eventually the husband's passport was returned and he flew back to Canada and some months later, in February of this year, filed the petition for the return of the child. That child was born in the United States after the mother had brought ZFK here and was therefore a U.S. citizen. The father did not argue that the mother abducted that child, who continued to live with her mother.
On March 7 the father obtained an ex parte order from the district court requiring the mother to yield custody of ZFK to him pending resolution of his petition, and on the thirteenth the judge scheduled an evidentiary hearing for March 22. It was held that day and he issued a final order of return the next day and also ordered the wife to hand over ZFK's passport to her husband so that he could take the child back to Canada. But the judge conditioned the orders on the husband's agreeing to pay a retainer (though not necessarily any additional fees) for an attorney who would be hired by the wife to handle the divorce and custody proceeding that her husband has begun in Canada.
On the wife's motion the Circuit Court of Appeals stayed both the order of return, and the order that she turn over the child's passport to her husband, pending the decision of her appeal. And on May 1, after hearing oral argument in the appeal the day before, it ordered the child returned to the mother pending its decision, but that both the mother's passport and the child's passport be held by the U.S. Marshals Service until further notice.
The Court observed that the wife's testimony, if believed, revealed that her husband had a violent, ungovernable temper, had physically abused her on many occasions, some in the presence of ZFK (and in front of the child he had told his wife he would take out her eyeballs, had been rough on occasion with the child, terrified the child, and that the child's mood had brightened greatly when she was living apart from her father. But if the husband's testimony is believed, he was, if not a model husband, not an abuser of his wife or the child.
The Court pointed out that Rule 52(a)(1) of the civil rules requires the judge to "find the facts specially and state [his] conclusions of law separately" when he is the trier of fact. He is not excused from this duty in a proceeding under the Hague Convention. And the duty is not waived when, as in this case, plaintiff and defendant testify inconsistently and it is impossible to demonstrate by objective evidence which one is telling the truth, or more of the truth. The trier of fact must decide whom to believe (and how much to believe) on the basis of the coherence and plausibility of the contestants' testimony, corroboration or contradiction by other witnesses, and other clues to falsity and veracity. The process of factfinding in such a situation is inexact and the findings that result are doubtless often mistaken. But the judge can't just throw up his hands, as happened in this case, because he can't figure out what is true and what is false in the testimony. There is no uncertainty exception to the duty imposed by Rule 52. And if there were such an exception, it would not be available when the evidentiary hearing had lasted only a day, as in this case. The judge could have
adjourned the hearing for a few days to enable additional evidence to be obtained and presented; in particular he could have had ZFK examined by a child psychologist. The wife's lawyer, his initial proposal of an expert witness having been turned down because the witness hadn't had time to examine the child (the hearing was held only two weeks after the respondent learned about the suit), offered to submit an evaluation based on an examination of the child by the end of the week. The judge refused. His final order, issued the day after the hearing, was two pages long and contained no findings of fact relating to the Article 13(b) defense, just a conclusion that the wife had failed to meet her burden of proof. That was not a finding of fact, but a conclusion of law. Rule 52(a)(1) requires both: that the facts be found "specially" and the conclusions of law stated separately. There is no rule exempting the judge from the duty of finding the facts in cases in which the plaintiff has a higher burden of proof than the usual civil burden of the preponderance of the evidence.
At the end of the evidentiary hearing the judge had had a discussion with the lawyers, and from that the Court pieced together his thinking and extracted a single, solitary factfinding. The judge began by saying, directly after the parties' witnesses had testified (there were no closing arguments), that "neither-none of the parties to the suit are residents of Illinois."Not true; the wife is currently a resident of Illinois. The judge said that "if I send it [the issue of custody of the child] back to
Canada, the Canadian courts presumably will look and take evidence and so forth and hear essentially the same evidence, I guess, I'm hearing today and make a decision to award custody to the mother or to the father.... [Under the Hague Convention] the child is to be returned except where there's grave risk of harm to the child. And, now, there's-presumably, there's always some risk. All I know is
what I heard here today. And I'm-there's been a he said/she said hearing today. nd it's very difficult for me to say categorically one side is telling the truth and one side is not telling the truth." The judge mentioned a bruise that the mother had received on her arm in India and that had been photographed at the police station and was a basis for her complaint to the police. The judge said that if the father had inflicted the bruise-which he declined to decide one way or the other-that was a bad thing to have done but it hadn't created a "grave risk," a key term in Article 13(b). The Court noted that the issue was not creating a grave risk to the mother, but a grave risk (of psychological harm) to the child. If the mother's testimony about the father's ungovernable temper and brutal treatment of her was
believed, it would support an inference of a grave risk of psychological harm to the child if she continued living with him.
Very little of the wife's testimony was mentioned by the judge, even though the wife had testified that she'd been beaten, knocked down by him in front of ZFK, hit in the chest by a heavy wallet that he had hurled at her, choked by him twice (and she said she thought she would die) when she was pregnant with her second child, threatened with having her eyeballs yanked out, and dragged bodily from the backyard into a room in the house.
The mother's testimony was corroborated by her sister and her sister's husband.
The judge did not mention the testimony of those witnesses, the testimony of a supervisor from Supervised Visitation Services (who testified about the child's having said she "hurt"), or any testimony of the mother except about the bruise on her arm and he made no finding about whether the father had inflicted it, instead dismissing it as not evidence of a "grave risk" to the mother. His focus on the bruise to the exclusion of any mention of the mother's testimony that her husband had choked her hard enough to make her afraid she would die, or indeed of any of her other testimony, was perplexing. Much of that abuse occurred in the child's presence; and repeated physical and psychological abuse of a child's mother by the child's father, in the presence of the child (especially a very young child, as in this case), was likely to create a risk of psychological harm to the child. Whether it was a grave risk, and thus triggered the Article 13(b) defense, was a separate question, but one that cannot be addressed, let alone answered, without recognizing the potential for such a risk in the father's behavior toward the mother in the child's presence. All this the judge ignored.
Throwing up his hands at what he may have thought an incomprehensible quarrel between foreigners, the judge remarked that even if the child wouldn't be safe living with her father, "Why can't Canada any more than Illinois protect-offer her protection?"The mother's lawyer pointed out that other witnesses besides the mother had testified and that there was testimony of "multiple instances" of abuse, to which the judge replied: "Then she ultimately should prevail.... Canada should make the decision on who gets custody of the child because the child is a Canadian citizen and domiciled in Canada."The lawyer asked for a few days to obtain a psychologist's evaluation of the child and the judge refused.
The Court stated that unless a trier of fact determines that the mother is a thorough liar, it was concerned that continuing the child in her father's custody may inflict inflict psychological harm on her. The Court held that the evidentiary hearing was inadequate. Rule 52(a) was violated; there were no findings of fact on the key issues. Decisions are frequently reversed for such omissions. The failure to allow psychological evidence was another error. The errors were not harmless. The district court's order was vacated and the case remanded for a proper hearing.
Friday, April 27, 2012
Hamprecht v Hamprecht, 2012 WL 1367534 (M.D.Fla.) [Germany] [Testimony By Video]
In Hamprecht v Hamprecht, 2012 WL 1367534 (M.D.Fla.) Marian Hamprecht filed a petition which alleged that his minor child was being unlawfully retained in the Middle District of Florida by his wife and the child's mother, Stephanie Hamprecht, who had restricted their son's ability to return to his habitual residence of Germany. He moved under Fed.R.Civ.P. 43(a) to be permitted to testify via video conference from Germany for the May 4th hearing. According to the petitioner's declaration attached to his motion, he was in fear of returning to the United States because his life was threatened by an individual claiming that "his group" was hired to kill him. He claimed that he alerted the police, fled his home in Florida, hid out of sight, and returned to Germany with his two oldest children four days later. He also claimed that the additional expense of international travel to attend the hearing was unnecessary and would require petitioner to leave his two oldest children in Germany. He asserted that his request would not prejudice respondent, and proposed that if respondent's counsel wishes to show petitioner a document during cross examination, counsel may provide that document to the witness prior to his testimony. Petitioner also proposed that he would be represented by U.S. counsel at the hearing and by German counsel in Germany, ensuring that proceedings would run smoothly and that the Court's orders adhered to. Respondent, characterized petitioner's motion as nothing more than an improper attempt to avoid subjecting himself to a proper in-person cross examination by respondent's counsel and a proper credibility evaluation by the Court, and called petitioner's fear baseless. Respondent supported her opposition by attaching the "full" police report which included the following relevant facts: (1) the alleged incident occurred at approximately 8:30 AM but the petitioner did not call the police until 6:48 PM; (2) petitioner was unable to describe the subject, his vehicle, or provide any information to assist in identifying him ; and (3) petitioner failed to follow up with the police and the case was closed as "Victim Unwilling to Proceed" . Respondent asserted, and petitioner admitted, that on the day following the incident petitioner went golfing. Respondent also claimed that petitioner could not show any hardship from the expense of travel because of his salary and asked theCourt to judicially notice that Germany, as a member of the European Union, is part of the U.S. Visa Waiver
Program, which allows citizens of certain countries to enter the United States for ninety
days without the need for any prior visa to be arranged. Petitioner's reply focused on the "full" police report and in support attached a declaration from his attorney who asserted that the report did not accurately reflect the communications he had with Detective Nolen and stated in relevant part: (1) he spoke only once with Detective Nolen on January 13, 2012 and during that conversation Detective Nolen informed him that the police were seriously investigating petitioner's claim and the police were aware of and investigating a group of people who had been making similar threats; (2) at the conclusion of the call they made tentative plans to discuss the matter again in two weeks but Detective Nolen did not call him back or take him up on his offer to communicate with petitioner; (3) during the call, Detective Nolen did not state that the investigation would be closed if they did not talk again within two weeks; (4) until receiving respondent's opposition he had not seen a "full" police report and as of that date believed that the police investigation remained open; and (5) the ten day letter sent by Detective Nolen was sent to petitioner's German counsel and not to Mr. Scott.
The district court observed that Rule 43(a) permits "for good cause shown in compelling circumstances and upon appropriate safeguards" the "contemporaneous transmission" of testimony to a hearing from a "different location." The Advisory Committee Notes make clear that there is a decided preference for live testimony in open court: “Contemporaneous transmission of testimony from a different location is permitted only on showing good cause in compelling circumstances. The importance of presenting live testimony in court cannot be forgotten. The very ceremony of trial and the presence of the factfinder may exert a powerful force for truthtelling. The opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition. Transmission cannot be justified merely by showing that it is inconvenient for the witness to attend the trial.” As an example of "compelling circumstances," the Notes offer "unexpected reasons, such as accident or illness" but, even these should be balanced against the advantages and disadvantages of rescheduling the trial. The Notes add that "[o]ther possible justifications for remote transmission must be approached cautiously."The Court was not convinced that petitioner established good cause or compelling circumstances and denied his motion.
Program, which allows citizens of certain countries to enter the United States for ninety
days without the need for any prior visa to be arranged. Petitioner's reply focused on the "full" police report and in support attached a declaration from his attorney who asserted that the report did not accurately reflect the communications he had with Detective Nolen and stated in relevant part: (1) he spoke only once with Detective Nolen on January 13, 2012 and during that conversation Detective Nolen informed him that the police were seriously investigating petitioner's claim and the police were aware of and investigating a group of people who had been making similar threats; (2) at the conclusion of the call they made tentative plans to discuss the matter again in two weeks but Detective Nolen did not call him back or take him up on his offer to communicate with petitioner; (3) during the call, Detective Nolen did not state that the investigation would be closed if they did not talk again within two weeks; (4) until receiving respondent's opposition he had not seen a "full" police report and as of that date believed that the police investigation remained open; and (5) the ten day letter sent by Detective Nolen was sent to petitioner's German counsel and not to Mr. Scott.
The district court observed that Rule 43(a) permits "for good cause shown in compelling circumstances and upon appropriate safeguards" the "contemporaneous transmission" of testimony to a hearing from a "different location." The Advisory Committee Notes make clear that there is a decided preference for live testimony in open court: “Contemporaneous transmission of testimony from a different location is permitted only on showing good cause in compelling circumstances. The importance of presenting live testimony in court cannot be forgotten. The very ceremony of trial and the presence of the factfinder may exert a powerful force for truthtelling. The opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition. Transmission cannot be justified merely by showing that it is inconvenient for the witness to attend the trial.” As an example of "compelling circumstances," the Notes offer "unexpected reasons, such as accident or illness" but, even these should be balanced against the advantages and disadvantages of rescheduling the trial. The Notes add that "[o]ther possible justifications for remote transmission must be approached cautiously."The Court was not convinced that petitioner established good cause or compelling circumstances and denied his motion.
Wednesday, March 21, 2012
R.S. v. D.O., 2012 WL 874833 (N.Y.Sup.), 2012 N.Y. Slip Op. 50479(U) [Italy] [State and Local Judicial Remedies]
In R.S. v. D.O., 2012 WL 874833 (N.Y.Sup.), 2012 N.Y. Slip Op. 50479(U),
Petitioner R.S. (Father) sought, inter alia, an order pursuant to Article 3 of the Hague Convention and the International Child Abduction Remedies Act directing the return to him in Italy of the parties' children, D and E .The Mother opposed the motion, and cross-moved for an order dismissing the Father's petition. The Court granted the father’s Petition and denied the cross motion.
The parties were never married. The Father was an Italian citizen, and the
Mother was a citizen of the United States. They met in Rome, Italy in or about
2003. The Father was a medical doctor and dentist, licensed to practice in Italy.
He resided and worked in Rome. The parties' first child was born in New York on
July 18, 2006, while the Mother was visiting her family here. Both children were
Italian citizens. Shortly after D was born, the Father joined the Mother and D, and they returned to Italy, where they resided together. Their second child, E, was born on July 26, 2008 in Rome, Italy. Both children attended preschool, and had friends, extended family, and their primary care physician in Rome. Although the parties and their children sometimes visited New York, frequently staying with friends in New York City, they resided in Italy since the children were born. In or about 2010, the parties' relationship deteriorated, and the Father moved out of their home in Rome and into an apartment nearby. He later moved to a home on the same property as the Mother and children. After the parties separated, they shared time equally with the children. In winter 2011, the parties became involved in custody litigation in Italy, and attended mediation. On or about November 14, 2011, however, the Mother took the children to New York. The parties had discussed the Mother taking the children to Florida for the upcoming Christmas holiday with the children, and returning to Italy by December 26 to spend time with their Father and his family. However, they had not agreed on a departure date, and the Father was alarmed when he found the Mother and children had disappeared, without a word from the Mother. The Mother claimed that the Father hit her on one occasion, but did not specify the date, time, location, or any other details about this allegation. She also alleged that the Father did not put the children in car seats when he drove with them, and that he used cocaine. The Husband denied these claims, noting that he was subject to periodic drug testing for compliance with various licenses and permits required by his profession. He submitted copies of two drug tests taken on May 10, 2010 and January 25, 2012. Although the tests were not translated into English, they appeared to be hair follicle test results showing a negative result for
cocaine.
On November 15, 2011, the Mother obtained an ex parte temporary order of
protection from the Suffolk County Family Court, which directed the Father to stay
away from her and from the children . On November 16, 2011, the Mother filed custody petitions in Suffolk County Family Court, in which she alleged that her and the children's address was in Commack, New York. Her petitions further alleged that each of the children resided at both that address with her and at the Father's address in Italy from birth. By order dated November 16, 2011, the Mother's custody petitions were dismissed based on a lack of "home state" jurisdiction under the Uniform Child Custody Jurisdiction Enforcement Act, and a finding that the Mother and children had resided in Italy since October 2006, and had been in New York for only a matter of days at the time the petitions were filed. On December 22, 2011, the Father filed his Petition and Motion. Because he did not know where the children were staying, he filed in New York
County, since the parties had stayed in Manhattan when they had visited New York
together, and because he understood from a mutual friend, whose affidavit was
attached to the Father's reply papers, that the Mother had been seen in Manhattan.
The Father had sought assistance from the Deputy Counsel to the Consulate General in Italy, who contacted the maternal grandmother, who would not provide any information about the Mother's or the children's whereabouts.
Supreme Court observed that pursuant to 42 U.S. C. 11603(a), the court had original and concurrent jurisdiction with the Federal courts to enforce the Hague Convention (citing People ex rel. Geiser v. Valentine, 17 Misc.3d 1117A [Sup Ct Richmond Co 2007] ). An affirmation submitted by the Husband's Italian counsel stated that under Italian law, both parents jointly exercise parental authority by operation of law, absent an agreement or order to the contrary. The Supreme Court held that the finding in the November Family Court Order that Italy was the children's home country was now res judicata. It was undisputed that the children had resided in Italy their entire lives, that the Father exercised his joint parental rights with the Mother on a regular basis prior to the children's removal, and that the Mother removed the children from Italy with the intention to remain in New York with them, and without the Father's consent, on or about November 13, 2011. Therefore, the children were wrongfully removed from their home country .The court found that the Mother had also failed to make a prima facie case that returning the children to Italy would pose a grave risk to them of physical harm or otherwise place them in an intolerable situation (citing Geiser, supra ).
The Mother did not base her request that the court decline jurisdiction to hear the Father's Petition on any exception to the Convention's and/or ICARA's requirement that the children be returned to Italy. She claimed that "the children were not residing in New York County when the Petition was filed. " The Court found that the children's only residence, as a matter of law pursuant to the November Family Court Order, and as was undisputed by the Mother, was Rome, Italy. It was not clear where the Mother's residence was. In order for a particular venue "to qualify as a residence a party must stay there for some length of time and have the bona fide intent to retain the place as a residence with at least some degree of permanency'" ( Bennet v. Bennet, 49 AD3d 949, 949-950 [3d Dept 2008][quoting Hammerman v. Louis Watch Co., 7 A.D.2d 817, 818 [3d Dept 1958]]; see also Neu v. St. John's Episcopal Hospital, 27 AD3d 538 [2d Dept 2006] ). The Mother did not clearly state where she had lived since she left Italy, and she did not state an intent to remain in any particular place. Accordingly, the Court found that she did not establish that her residence was Suffolk County either.
The Mother argued that the court should decline jurisdiction based on
improper venue. CPLR 503 states that, where neither party is a resident of the State of New York, as was the case here, venue shall be "in any county designated by the plaintiff." Furthermore, where a party wishes to move venue to a more convenient location, she must serve a written demand prior to seeking a change of venue by motion (CPLR 511[b] ). The Mother had never done so, and had failed to state any reason why Suffolk County would be a more convenient venue. The Mother also argued that the Father's Petition should be brought in Suffolk County because she filed petitions in Suffolk County Family Court for custody, paternity, and an order of protection. However, the Court found most relevant of these petitions to this Petition was the custody proceeding, and that proceeding was dismissed for lack of jurisdiction. Furthermore, the Temporary Order of Protection was issued without the Father's presence in court and without any findings being made. Accordingly, that was not a basis for the Father's Petition to be transferred to Suffolk County. In addition, dismissal of the Father's Petition, or transfer of it to Suffolk County, would only serve to frustrate the purposes of the Convention and ICARA, which require courts to act quickly to return children to their place of habitual residence, where custody disputes may be determined by a court that has jurisdiction to decide such matters. The Father could have brought, and still could bring, his Petition in Federal Court, in which case the Mother might have had to travel to New York City to litigate in any event, since the federal courthouse for the Eastern District of New York is located in Brooklyn. The Mother's cross-motion to dismiss the Father's Petition was denied and the court granted the petition.
Petitioner R.S. (Father) sought, inter alia, an order pursuant to Article 3 of the Hague Convention and the International Child Abduction Remedies Act directing the return to him in Italy of the parties' children, D and E .The Mother opposed the motion, and cross-moved for an order dismissing the Father's petition. The Court granted the father’s Petition and denied the cross motion.
The parties were never married. The Father was an Italian citizen, and the
Mother was a citizen of the United States. They met in Rome, Italy in or about
2003. The Father was a medical doctor and dentist, licensed to practice in Italy.
He resided and worked in Rome. The parties' first child was born in New York on
July 18, 2006, while the Mother was visiting her family here. Both children were
Italian citizens. Shortly after D was born, the Father joined the Mother and D, and they returned to Italy, where they resided together. Their second child, E, was born on July 26, 2008 in Rome, Italy. Both children attended preschool, and had friends, extended family, and their primary care physician in Rome. Although the parties and their children sometimes visited New York, frequently staying with friends in New York City, they resided in Italy since the children were born. In or about 2010, the parties' relationship deteriorated, and the Father moved out of their home in Rome and into an apartment nearby. He later moved to a home on the same property as the Mother and children. After the parties separated, they shared time equally with the children. In winter 2011, the parties became involved in custody litigation in Italy, and attended mediation. On or about November 14, 2011, however, the Mother took the children to New York. The parties had discussed the Mother taking the children to Florida for the upcoming Christmas holiday with the children, and returning to Italy by December 26 to spend time with their Father and his family. However, they had not agreed on a departure date, and the Father was alarmed when he found the Mother and children had disappeared, without a word from the Mother. The Mother claimed that the Father hit her on one occasion, but did not specify the date, time, location, or any other details about this allegation. She also alleged that the Father did not put the children in car seats when he drove with them, and that he used cocaine. The Husband denied these claims, noting that he was subject to periodic drug testing for compliance with various licenses and permits required by his profession. He submitted copies of two drug tests taken on May 10, 2010 and January 25, 2012. Although the tests were not translated into English, they appeared to be hair follicle test results showing a negative result for
cocaine.
On November 15, 2011, the Mother obtained an ex parte temporary order of
protection from the Suffolk County Family Court, which directed the Father to stay
away from her and from the children . On November 16, 2011, the Mother filed custody petitions in Suffolk County Family Court, in which she alleged that her and the children's address was in Commack, New York. Her petitions further alleged that each of the children resided at both that address with her and at the Father's address in Italy from birth. By order dated November 16, 2011, the Mother's custody petitions were dismissed based on a lack of "home state" jurisdiction under the Uniform Child Custody Jurisdiction Enforcement Act, and a finding that the Mother and children had resided in Italy since October 2006, and had been in New York for only a matter of days at the time the petitions were filed. On December 22, 2011, the Father filed his Petition and Motion. Because he did not know where the children were staying, he filed in New York
County, since the parties had stayed in Manhattan when they had visited New York
together, and because he understood from a mutual friend, whose affidavit was
attached to the Father's reply papers, that the Mother had been seen in Manhattan.
The Father had sought assistance from the Deputy Counsel to the Consulate General in Italy, who contacted the maternal grandmother, who would not provide any information about the Mother's or the children's whereabouts.
Supreme Court observed that pursuant to 42 U.S. C. 11603(a), the court had original and concurrent jurisdiction with the Federal courts to enforce the Hague Convention (citing People ex rel. Geiser v. Valentine, 17 Misc.3d 1117A [Sup Ct Richmond Co 2007] ). An affirmation submitted by the Husband's Italian counsel stated that under Italian law, both parents jointly exercise parental authority by operation of law, absent an agreement or order to the contrary. The Supreme Court held that the finding in the November Family Court Order that Italy was the children's home country was now res judicata. It was undisputed that the children had resided in Italy their entire lives, that the Father exercised his joint parental rights with the Mother on a regular basis prior to the children's removal, and that the Mother removed the children from Italy with the intention to remain in New York with them, and without the Father's consent, on or about November 13, 2011. Therefore, the children were wrongfully removed from their home country .The court found that the Mother had also failed to make a prima facie case that returning the children to Italy would pose a grave risk to them of physical harm or otherwise place them in an intolerable situation (citing Geiser, supra ).
The Mother did not base her request that the court decline jurisdiction to hear the Father's Petition on any exception to the Convention's and/or ICARA's requirement that the children be returned to Italy. She claimed that "the children were not residing in New York County when the Petition was filed. " The Court found that the children's only residence, as a matter of law pursuant to the November Family Court Order, and as was undisputed by the Mother, was Rome, Italy. It was not clear where the Mother's residence was. In order for a particular venue "to qualify as a residence a party must stay there for some length of time and have the bona fide intent to retain the place as a residence with at least some degree of permanency'" ( Bennet v. Bennet, 49 AD3d 949, 949-950 [3d Dept 2008][quoting Hammerman v. Louis Watch Co., 7 A.D.2d 817, 818 [3d Dept 1958]]; see also Neu v. St. John's Episcopal Hospital, 27 AD3d 538 [2d Dept 2006] ). The Mother did not clearly state where she had lived since she left Italy, and she did not state an intent to remain in any particular place. Accordingly, the Court found that she did not establish that her residence was Suffolk County either.
The Mother argued that the court should decline jurisdiction based on
improper venue. CPLR 503 states that, where neither party is a resident of the State of New York, as was the case here, venue shall be "in any county designated by the plaintiff." Furthermore, where a party wishes to move venue to a more convenient location, she must serve a written demand prior to seeking a change of venue by motion (CPLR 511[b] ). The Mother had never done so, and had failed to state any reason why Suffolk County would be a more convenient venue. The Mother also argued that the Father's Petition should be brought in Suffolk County because she filed petitions in Suffolk County Family Court for custody, paternity, and an order of protection. However, the Court found most relevant of these petitions to this Petition was the custody proceeding, and that proceeding was dismissed for lack of jurisdiction. Furthermore, the Temporary Order of Protection was issued without the Father's presence in court and without any findings being made. Accordingly, that was not a basis for the Father's Petition to be transferred to Suffolk County. In addition, dismissal of the Father's Petition, or transfer of it to Suffolk County, would only serve to frustrate the purposes of the Convention and ICARA, which require courts to act quickly to return children to their place of habitual residence, where custody disputes may be determined by a court that has jurisdiction to decide such matters. The Father could have brought, and still could bring, his Petition in Federal Court, in which case the Mother might have had to travel to New York City to litigate in any event, since the federal courthouse for the Eastern District of New York is located in Brooklyn. The Mother's cross-motion to dismiss the Father's Petition was denied and the court granted the petition.
Monday, March 12, 2012
Giles v Bravo, 2012 WL 704745 (D. Nev.) [Mexico] [Well Settled in New Environment] [Acquiescence]
In Giles v Bravo, 2012 WL 704745 (D. Nev.) the district court denied review and affirmed the finding of the Magistrate Judge, that the Child in question should not be returned to Mexico pursuant to the Hague Convention.
Plaintiff served her Petition on October 18, 2011. The Court held a status conference on December 9, 2011.Respondents admitted evidence of a letter issued by the Consul of the United States of America at Mexico, Federal District ("D.F."). wherein Petitioner granted Respondents permission to travel with the child from July, 2010 until the year 2015. Further, Respondents submitted an Order Granting Guardianship of the child to them in the Eighth Judicial District of Nevada dated February 10, 2011.
Petitioner was born in Mexico City. Her parents, Rogelio Sanvicente Bravo and Eva Rodriguez Giles (Respondents), illegally transported her to the United States at the age of three. Petitioner became pregnant with the child at the age of 15 while living with Respondents. Petitioner lived in Respondents' home with her child after the birth. Petitioner testified that her father took care of the baby during the night. After several months, Petitioner agreed to leave the child with Respondents while she cohabited with her boyfriend. She testified that she routinely visited the child. Petitioner's paternal grandmother advised her at this time that Respondents wished to obtain custody over the child.
Petitioner then attempted to remove the child from Respondents' home. Petitioner testified that she did take the child without her belongings, but then stated
that she could not keep the child because her parents threatened to notify Social
Services that Petitioner was unemployed. Petitioner further testified that around this
time, Respondent Rogelio Bravo told her he would "follow up" with her immigration
case, which would allow her to legally remain in the United States, in exchange for
custody of the child.
The child remained with Respondents. At some point during the next two years,
Petitioner became pregnant with her second child, and married a man named
Vladimir. Petitioner and Vladimir moved back into Respondents' home. Petitioner
testified that in 2007 Vladimir witnessed Respondent Eva Rodriguez Giles refer to the
Petitioner as "Tania" instead of "your mom" when speaking to the child. This comment
upset Vladimir, causing him and Petitioner to decide to take the child and relocate.
Petitioner and her family relocated to another home in Las Vegas and in 2008, Petitioner decided to move with her family to Mexico where her husband had obtained employment. Petitioner testified that the child thrived in Mexico and enjoyed her life.
In May 2010, Petitioner notified her mother that Vladimir had abused her, threatened to take the children, and kicked her out on the street. Respondents gave Petitioner money in order to travel to the D.F. in Mexico. While there, Petitioner stayed with her maternal grandmother. Respondents traveled to Mexico to meet with Petitioner and the child. The following month, Petitioner began the process to obtain a passport for the child. In addition, Petitioner signed a travel authorization that gave her consent for the child to travel between Mexico and the United States with Respondents over a period of five years. Respondent Eva Rodriguez Giles testified that Petitioner told her that she wanted the child to have more opportunity and to study in the United States and learn English, as had Petitioner. Petitioner maintained that she believed the sole reason for the child's visit to the United States was for medical treatment.
Sometime after Petitioner initiated the travel process to allow the child to travel to the United States with Respondents, Vladimir traveled to the D.F. and attempted to thwart the child's international trip with Respondents. Petitioner testified that
Vladimir warned her that Respondents were tricking her in order to obtain custody of
the child, but Petitioner stated that she trusted her parents and still planned on the child
traveling to the United States with Respondents. Vladimir presumably voiced his concerns to Respondents, as Petitioner testified that Respondent Eva Rodriguez Giles stated "if anyone tries to stop me from taking the girl I will shoot them."Petitioner left her grandmother's home for a few days, but the child remained. On July 20, 2010 Petitioner received a phone call from Respondent Eva Rodriguez Giles, who informed Petitioner that the child was in Las Vegas, Nevada with her. Petitioner reacted angrily at the fact that she was unable to bid farewell to the child. Petitioner then talked with her child, but when Vladimir began talking with the child, Respondent Giles retrieved the telephone and ended the call. On September 9, 2010 Petitioner filed a petition with the Mexican Central Authority under the Hague Convention, reporting that the child had been wrongfully removed from Mexico. Sometime in December 2010, Petitioner obtained Respondents' telephone number from a cousin in Las Vegas. Petitioner contacted Respondents who informed her that they would not be bringing the child back to Mexico. On February 8, 2011 the District Court for the Eighth Judicial District, located in Clark County, Nevada, granted Respondents petition for guardianship of the
child.
Petitioner initiated the instant action on October 5, 2011. The child was seven years old. Petitioner testified that she had no knowledge of the state court guardianship proceedings. The application reflected that it was mailed to the address of Petitioner's maternal grandmother, where Petitioner was living at the time Respondents left Mexico in the summer of 2010. However, there was no proof of service and therefore the Court could not impute knowledge to Petitioner regarding the proceeding.
The parties did not dispute that the child was habitually residing in Mexico until her removal to the United States. Thus, Mexican federal law governed with respect to the scope of Petitioner's custody rights. See A.A.M. v.. J.L.R. C., No. 11-CV-5732, 2012 WL 75049, at *9 (E.D.N.Y. Jan. 9, 2012). Under Mexican law, "[t]he exercise of parental authority ... gives rise to a duty of custody and care." The child lived with Petitioner for around two years in Mexico prior to the removal. Petitioner presented a receipt of student enrollment showing that in February 2010 she had registered the child in preschool in Mexico for the 2010-2011 school year. A few months prior to removal, in May 2010, Petitioner relocated the child from Sonara to the D.F. in Mexico. The child was in Petitioner's custody and she was caring for the child. After Respondents arrived in Mexico, Petitioner signed a travel document, applied for the child's passport, and made copies of the child's birth certificate available to Respondents. The travel authorization signed by Petitioner gave the Respondents permission to travel between Mexico and the United States with the child. Although the authorization was effective for five years, Petitioner testified that she gave permission only for Respondents to take the child to the United States in order to seek medical treatment, not to remain with the child in the United States forever. Petitioner stated that she was not distressed by the fact that the child was taken, but rather that she did not have a chance to say good-bye. Based on these facts, the Court found that the travel authorization did not relinquish Petitioner's custody rights. See Muhlenkamp v. Blizzard, 521 F.Supp.2d 1140, 1150 (E.D.Wash.2007). The Court found that Petitioner was exercising her custody rights in Mexico, where the child habitually resided, at the time of the child's removal to the United States on about July 20, 2010. Although the removal in July 2010 appeared to have been with the consent of Petitioner, the subsequent retention of the child was wrongful, and breached the rights of custody attributed to Petitioner under Mexican law.
The Court observed that if the petition was filed one year from the time of the alleged wrongful retention and the child has since settled into the new environment, then the Court must not order the return of the child. Hague Conv. art. 12. The petition was filed on October 5, 2011. The one year limit ran when the petitioner should have known of the wrongful removal or retention. Petitioner initiated a Hague Convention proceeding with the Mexican Central Authority on September 9, 2010 by filing a detailed claim that the child had been wrongfully removed from Mexico. Petitioner's September 9, 2010 filing, however, states the following: "I have been threatened more than once by my parents saying they would take my daughter [Child's Name Stated] away from me. I was threatened by my parents that if I or anyone tryed (sic) to stop them frome (sic) taking [Child's Name Stated] to Las Vegas N .V. they would get a gun and shoot them."These statements support a finding that in July, 2010, Petitioner believed, and was on notice, that Respondents intended to take the child and would likely not return her unless required by force. By September 2010, when Petitioner filed her complaint with the Authority, and Petitioner had had no contact with Respondents, it seems clear that Petitioner was on notice that her child was being retained by Respondents. Regardless of any misunderstanding there may have been between Petitioner and Respondent regarding the original removal of the child from Mexico by July 20, 2010, the court found that the wrongful retention of the child began no later than September 9, Under Article 12 of the Convention, the term "commencement of proceedings" means the filing of a petition in any court which has jurisdiction of the action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed. Thus, Petitioner commenced the proceeding on October 5, 2011 by filing a petition with the Court.
The child currently lived in their Las Vegas home with the Respondents. Respondents lived in the same location for several years until recently moving to a smaller home to downsize financially. Respondents cared for the child for extended periods of time throughout her life. Petitioner lived with Respondents after the child's birth, and testified that Respondents took care of the child. Petitioner further testified that when she lived in Las Vegas, she moved in with her boyfriend and left the child with Respondents at their home. Petitioner agreed the child was safer with Respondents than with Petitioner and her then-boyfriend when she lived in Las Vegas. The child had a close relationship with her grandparents, having lived in their home for a majority of her life. No other family members resided in the area. Respondents represented to the Court that the child attended kindergarten last year and that she was currently in the first grade and attended school regularly. While the child initially struggled with the English language, Respondents stated that she now understood English well and spoke some English. The child testified that she enjoyed school. The majority of the child's testimony before the Court was spoken in English with out the assistance of a translator. By obtaining legal guardianship over the child, Respondents were able to make decisions regarding the child's education and welfare, and have apparently done so by ensuring the child was enrolled in, and attending school. Through the child's testimony and the Court's observations of the child, it appeared, and the court found, that the child was stable in her current environment, and it was reasonable to infer that given the passage of time and events, and a return to Petitioner would be disruptive to the child.
The Court found that Petitioner consented to the removal of the child from Mexico to the United States. Even if Petitioner had not consented to removal, she subsequently acquiesced to retention of the child in the United States. Acquiescence under the Convention has been interpreted to require either: "an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time." Friedrich, 78 F.3d at 1070 . Despite the fact that Petitioner filed a petition for the child's return with Mexican authorities, Petitioner made no effort to locate the child. Petitioner even claimed that she filed the petition in retaliation of Respondents taking the child without allowing Petitioner to say goodbye, not to reclaim custody of the child. It took Petitioner over one year to take proper legal action in the country where she knew the child was located. The Court found that Petitioner exhibited a consistent attitude of acquiescence over a significant period of time. The Court determined that two of the affirmative defenses had been established and that the child should not be returned to Mexico pursuant to the Hague Convention.
Plaintiff served her Petition on October 18, 2011. The Court held a status conference on December 9, 2011.Respondents admitted evidence of a letter issued by the Consul of the United States of America at Mexico, Federal District ("D.F."). wherein Petitioner granted Respondents permission to travel with the child from July, 2010 until the year 2015. Further, Respondents submitted an Order Granting Guardianship of the child to them in the Eighth Judicial District of Nevada dated February 10, 2011.
Petitioner was born in Mexico City. Her parents, Rogelio Sanvicente Bravo and Eva Rodriguez Giles (Respondents), illegally transported her to the United States at the age of three. Petitioner became pregnant with the child at the age of 15 while living with Respondents. Petitioner lived in Respondents' home with her child after the birth. Petitioner testified that her father took care of the baby during the night. After several months, Petitioner agreed to leave the child with Respondents while she cohabited with her boyfriend. She testified that she routinely visited the child. Petitioner's paternal grandmother advised her at this time that Respondents wished to obtain custody over the child.
Petitioner then attempted to remove the child from Respondents' home. Petitioner testified that she did take the child without her belongings, but then stated
that she could not keep the child because her parents threatened to notify Social
Services that Petitioner was unemployed. Petitioner further testified that around this
time, Respondent Rogelio Bravo told her he would "follow up" with her immigration
case, which would allow her to legally remain in the United States, in exchange for
custody of the child.
The child remained with Respondents. At some point during the next two years,
Petitioner became pregnant with her second child, and married a man named
Vladimir. Petitioner and Vladimir moved back into Respondents' home. Petitioner
testified that in 2007 Vladimir witnessed Respondent Eva Rodriguez Giles refer to the
Petitioner as "Tania" instead of "your mom" when speaking to the child. This comment
upset Vladimir, causing him and Petitioner to decide to take the child and relocate.
Petitioner and her family relocated to another home in Las Vegas and in 2008, Petitioner decided to move with her family to Mexico where her husband had obtained employment. Petitioner testified that the child thrived in Mexico and enjoyed her life.
In May 2010, Petitioner notified her mother that Vladimir had abused her, threatened to take the children, and kicked her out on the street. Respondents gave Petitioner money in order to travel to the D.F. in Mexico. While there, Petitioner stayed with her maternal grandmother. Respondents traveled to Mexico to meet with Petitioner and the child. The following month, Petitioner began the process to obtain a passport for the child. In addition, Petitioner signed a travel authorization that gave her consent for the child to travel between Mexico and the United States with Respondents over a period of five years. Respondent Eva Rodriguez Giles testified that Petitioner told her that she wanted the child to have more opportunity and to study in the United States and learn English, as had Petitioner. Petitioner maintained that she believed the sole reason for the child's visit to the United States was for medical treatment.
Sometime after Petitioner initiated the travel process to allow the child to travel to the United States with Respondents, Vladimir traveled to the D.F. and attempted to thwart the child's international trip with Respondents. Petitioner testified that
Vladimir warned her that Respondents were tricking her in order to obtain custody of
the child, but Petitioner stated that she trusted her parents and still planned on the child
traveling to the United States with Respondents. Vladimir presumably voiced his concerns to Respondents, as Petitioner testified that Respondent Eva Rodriguez Giles stated "if anyone tries to stop me from taking the girl I will shoot them."Petitioner left her grandmother's home for a few days, but the child remained. On July 20, 2010 Petitioner received a phone call from Respondent Eva Rodriguez Giles, who informed Petitioner that the child was in Las Vegas, Nevada with her. Petitioner reacted angrily at the fact that she was unable to bid farewell to the child. Petitioner then talked with her child, but when Vladimir began talking with the child, Respondent Giles retrieved the telephone and ended the call. On September 9, 2010 Petitioner filed a petition with the Mexican Central Authority under the Hague Convention, reporting that the child had been wrongfully removed from Mexico. Sometime in December 2010, Petitioner obtained Respondents' telephone number from a cousin in Las Vegas. Petitioner contacted Respondents who informed her that they would not be bringing the child back to Mexico. On February 8, 2011 the District Court for the Eighth Judicial District, located in Clark County, Nevada, granted Respondents petition for guardianship of the
child.
Petitioner initiated the instant action on October 5, 2011. The child was seven years old. Petitioner testified that she had no knowledge of the state court guardianship proceedings. The application reflected that it was mailed to the address of Petitioner's maternal grandmother, where Petitioner was living at the time Respondents left Mexico in the summer of 2010. However, there was no proof of service and therefore the Court could not impute knowledge to Petitioner regarding the proceeding.
The parties did not dispute that the child was habitually residing in Mexico until her removal to the United States. Thus, Mexican federal law governed with respect to the scope of Petitioner's custody rights. See A.A.M. v.. J.L.R. C., No. 11-CV-5732, 2012 WL 75049, at *9 (E.D.N.Y. Jan. 9, 2012). Under Mexican law, "[t]he exercise of parental authority ... gives rise to a duty of custody and care." The child lived with Petitioner for around two years in Mexico prior to the removal. Petitioner presented a receipt of student enrollment showing that in February 2010 she had registered the child in preschool in Mexico for the 2010-2011 school year. A few months prior to removal, in May 2010, Petitioner relocated the child from Sonara to the D.F. in Mexico. The child was in Petitioner's custody and she was caring for the child. After Respondents arrived in Mexico, Petitioner signed a travel document, applied for the child's passport, and made copies of the child's birth certificate available to Respondents. The travel authorization signed by Petitioner gave the Respondents permission to travel between Mexico and the United States with the child. Although the authorization was effective for five years, Petitioner testified that she gave permission only for Respondents to take the child to the United States in order to seek medical treatment, not to remain with the child in the United States forever. Petitioner stated that she was not distressed by the fact that the child was taken, but rather that she did not have a chance to say good-bye. Based on these facts, the Court found that the travel authorization did not relinquish Petitioner's custody rights. See Muhlenkamp v. Blizzard, 521 F.Supp.2d 1140, 1150 (E.D.Wash.2007). The Court found that Petitioner was exercising her custody rights in Mexico, where the child habitually resided, at the time of the child's removal to the United States on about July 20, 2010. Although the removal in July 2010 appeared to have been with the consent of Petitioner, the subsequent retention of the child was wrongful, and breached the rights of custody attributed to Petitioner under Mexican law.
The Court observed that if the petition was filed one year from the time of the alleged wrongful retention and the child has since settled into the new environment, then the Court must not order the return of the child. Hague Conv. art. 12. The petition was filed on October 5, 2011. The one year limit ran when the petitioner should have known of the wrongful removal or retention. Petitioner initiated a Hague Convention proceeding with the Mexican Central Authority on September 9, 2010 by filing a detailed claim that the child had been wrongfully removed from Mexico. Petitioner's September 9, 2010 filing, however, states the following: "I have been threatened more than once by my parents saying they would take my daughter [Child's Name Stated] away from me. I was threatened by my parents that if I or anyone tryed (sic) to stop them frome (sic) taking [Child's Name Stated] to Las Vegas N .V. they would get a gun and shoot them."These statements support a finding that in July, 2010, Petitioner believed, and was on notice, that Respondents intended to take the child and would likely not return her unless required by force. By September 2010, when Petitioner filed her complaint with the Authority, and Petitioner had had no contact with Respondents, it seems clear that Petitioner was on notice that her child was being retained by Respondents. Regardless of any misunderstanding there may have been between Petitioner and Respondent regarding the original removal of the child from Mexico by July 20, 2010, the court found that the wrongful retention of the child began no later than September 9, Under Article 12 of the Convention, the term "commencement of proceedings" means the filing of a petition in any court which has jurisdiction of the action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed. Thus, Petitioner commenced the proceeding on October 5, 2011 by filing a petition with the Court.
The child currently lived in their Las Vegas home with the Respondents. Respondents lived in the same location for several years until recently moving to a smaller home to downsize financially. Respondents cared for the child for extended periods of time throughout her life. Petitioner lived with Respondents after the child's birth, and testified that Respondents took care of the child. Petitioner further testified that when she lived in Las Vegas, she moved in with her boyfriend and left the child with Respondents at their home. Petitioner agreed the child was safer with Respondents than with Petitioner and her then-boyfriend when she lived in Las Vegas. The child had a close relationship with her grandparents, having lived in their home for a majority of her life. No other family members resided in the area. Respondents represented to the Court that the child attended kindergarten last year and that she was currently in the first grade and attended school regularly. While the child initially struggled with the English language, Respondents stated that she now understood English well and spoke some English. The child testified that she enjoyed school. The majority of the child's testimony before the Court was spoken in English with out the assistance of a translator. By obtaining legal guardianship over the child, Respondents were able to make decisions regarding the child's education and welfare, and have apparently done so by ensuring the child was enrolled in, and attending school. Through the child's testimony and the Court's observations of the child, it appeared, and the court found, that the child was stable in her current environment, and it was reasonable to infer that given the passage of time and events, and a return to Petitioner would be disruptive to the child.
The Court found that Petitioner consented to the removal of the child from Mexico to the United States. Even if Petitioner had not consented to removal, she subsequently acquiesced to retention of the child in the United States. Acquiescence under the Convention has been interpreted to require either: "an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time." Friedrich, 78 F.3d at 1070 . Despite the fact that Petitioner filed a petition for the child's return with Mexican authorities, Petitioner made no effort to locate the child. Petitioner even claimed that she filed the petition in retaliation of Respondents taking the child without allowing Petitioner to say goodbye, not to reclaim custody of the child. It took Petitioner over one year to take proper legal action in the country where she knew the child was located. The Court found that Petitioner exhibited a consistent attitude of acquiescence over a significant period of time. The Court determined that two of the affirmative defenses had been established and that the child should not be returned to Mexico pursuant to the Hague Convention.
Tuesday, March 6, 2012
Ramirez v Buyauskas, 2012 WL 606746 (E.D.Pa.) [Mexico] ["patria potestas] [well-settled in New Environment] [Wishes of the Child]
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.
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.
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