Larbie v Larbie, --- F.3d ----, 2012 WL 3089773 (C.A.5 (Tex.) [United Kingdom] [Moot Appeal ][Consent and Acquiescence] [Habitual Residence]

In Larbie v Larbie, --- F.3d ----, 2012 WL 3089773 (C.A.5 (Tex.) Plaintiff-Appellee Evelyn Larbie filed a petition under the Hague Convention seeking the return of her son, K.L., to the United Kingdom. The district court granted Evelyn's petition and ordered Defendant Derek Larbie to turn K.L. over to Evelyn's care. The Fifth Circuit Court of Appeals found that district court's application of the Convention effectively reversed a custody order entered after lengthy proceedings, culminating in a final divorce and custody order, in which neither party objected to the state court's jurisdiction, creating precisely the type of international custody dispute that  the Convention seeks to avoid. Accordingly, it vacated the district court's order and rendered judgment in Derek's favor.

 Derek and Evelyn were Ghanian nationals. Derek obtained naturalized citizenship in the United States and served as an officer in the United States Air Force. Evelyn possessed permanent residency in the U.K. They married in December 2005. They lived in San Antonio, Texas. K.L. was born in August 2006. Derek had a son from a previous relationship. Derek sponsored Evelyn for a "green card," which expired on June 27, 2009. Although Evelyn held a temporary work permit, she stayed home to care for K.L. In March 2008, Derek filed for divorce in Texas state court. Shortly thereafter, Derek received orders to report in June for two months of training in preparation for a deployment to Afghanistan. Evelyn responded to Derek's divorce petition by answer and counter petition. In her counter petition she asserted that she had been domiciled in Texas for at least six months and that she had resided in San Antonio for at least ninety days before the suit commenced. She also specified that no other court had jurisdiction over K.L. Given Derek's impending overseas assignment, the Larbies entered into an agreed temporary divorce decree on June 11, 2008 which appointed Derek and Evelyn "Temporary Joint Managing Conservators" of K.L. and entered a "Standard Possession Order" outlining how the parties would spend time with him. The Temporary Order also gave Evelyn the authority to determine K.L.'s residence "without regard to geographic location." However, it also provided that "[i]n the event that [K.L.] [was] to travel internationally," Evelyn had to inform Derek of the dates and location of such travel, the identity of those persons with whom K.L. was staying, and the telephone numbers at which K.L. could be reached "while [he was] traveling." The Temporary Order ordered Evelyn to allow K.L. "weekly" visits with Derek's other son, and provided that various provisions were operative only so long as the "case [was] pending." On the same day the parties agreed to the Temporary Order, the Court granted Derek’s motion to stay the proceedings pursuant to the Service members Civil Relief Act,"until Sept. 1, 2009 or until such time as [he] return [ed] to Lackland Air Force Base at the conclusion of [his] deployment. It granted Derek's motion to stay and entered the Temporary Order on July 23 and 24, 2008, respectively. The Temporary Order specified that it was to "continue in force until the signing of the Final Decree of Divorce or until further order of th[e] Court."

 A few weeks after Derek left for training, Evelyn bought a plane ticket to travel to London on July 12th. Evelyn took only what was "permissible on the aircraft," leaving behind "substantially all" of her and K.L.'s "clothing and personal effects" and giving no indication that the trip was anything other than temporary. She and Derek exchanged e-mails that indicated her intent to return to San Antonio. Derek deployed to Afghanistan. Although Evelyn apparently contemplated obtaining a residence order there , she never sought custody of K.L. in the U.K. courts. A residence order is the U.K. equivalent of a custody order and different from he contact order. See Children Act 1989, c. 41, Part II, s 8(1) ("In this Act-'a contact order' means an order requiring the person with whom a child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other...."). K.L. had entered the U.K. on a limited-duration visitor's visa that expired in early 2009. Without notifying Derek, Evelyn filed an application to obtain permanent resident status for K.L. in autumn 2008. The U.K. denied that application on June 23, 2009, in part because Evelyn failed to show that she was " 'present and settled in the [U.K.] and ... had sole responsibility for [K.L.'s] upbringing.' " The U.K. official also reasoned that the Temporary Order " 'impl[ied] that the final decision regarding [K.L.'s] place of residence and which of [his] parents will have primary responsibility for [his] upbringing will not be decided until [his] parents' final decree is signed.' " The official saw " 'nothing to indicate that [Derek had] agreed to [K.L.'s] residing in the [U.K.] permanently with [his] mother.' "

 Days later, Evelyn asked the Texas court to set the divorce for a final hearing. In her motion, Evelyn stated that she had returned to Texas and discovered that her immigration paperwork was missing from the marital residence. These documents were crucial, Evelyn argued, because without them she could not "retain her current green card status in the United States." On June 30, 2009, Evelyn, her attorney, and Derek's attorney attended a hearing in San Antonio. Contending that K.L. could be ejected from England at any point in time, Evelyn's counsel asked either that the Texas Court order Derek to give consent for K.L. to have residency in London or lift the stay to allow the parties to litigate the divorce issue, because in order for Evelyn to remain in the United States, she's had to either be divorced or have sponsorship. Evelyn's attorney represented at least two more times in the relatively brief hearing that Evelyn hoped to maintain permanent residence in the United States. Derek's attorney noted that he had been served with "full blown discovery" shortly before the hearing and argued that Derek's continued deployment mandated that the stay remain in place. In response to the judge's questioning, the attorney admitted that he could not think of a solution to K.L.'s visa problem. He reiterated, however, that Derek ultimately sought full custody.

 The judge then proposed a potential solution: "what if [the parties] did some kind of an order that said, the Court finds that this temporary order that was agreed to by the parties signifies [Derek's] consent for [K.L.] to temporarily reside with [Evelyn] in London, until such time as the Court hears ... further orders in ... October of 2009 or something[?]" The attorneys agreed "that might do the trick." The judge repeatedly made clear that any consent for K.L. to stay overseas was to temporarily avoid separating him from Evelyn and should not "prejudice [Derek's] right to come back here and conduct a custody trial in the future." The judge also warned the parties that if they could not reach an agreement along the lines she had proposed, she would not rule out lifting the stay and finalizing the divorce. The attorneys agreed to work on an agreed order and to come back before another judge in a few days. The next day, Derek's attorney sent Derek an email about the "emergency" proceedings. Attached to the email was an affidavit for Derek's signature giving consent for K.L. to "reside" with Evelyn. In line with the discussion at the June 30th Hearing, Derek's attorney suggested that any consent would be valid only through Derek's return to the United States, noting that they would "have to have a side agreement between [Evelyn], her lawyer, and [Derek's attorney] that [K.L.'s] residence in England is not permanent and that he shall be returning to the U.S. eventually and that this case shall proceed here and only here in Texas." Derek signed the affidavit on July 6, 2009 . In it, Derek affirmed that he was K.L.'s biological father, reported that he was "currently deployed in Afghanistan," and gave his consent for K.L. to "reside with his mother ... in England," which he considered to be in K.L.'s "best interest." The same day, Derek emailed the affidavit to his attorney, writing only that he had "read, signed[,] and attached the consent form as discussed." On July 2nd-just two days after the June 30th Hearing-Evelyn filed an amended counter petition in the Texas court. Consistent with her stated desire to maintain permanent residency in the United States, the counter petition again stated that Evelyn had been domiciled in Texas for the preceding six months and had been a resident of Bexar County, in which San Antonio is located, for the preceding ninety days. Evelyn also sought "the exclusive use and possession" of the marital residence and an injunction against Derek's "entering or remaining on  the premises." The counter petition further asked the Texas court to appoint Evelyn as sole managing conservator of K.L. and to enter certain "temporary" child support and spousal maintenance provisions "until a final decree [was] signed." The counter petition also disavowed that K.L. was "under the continuing jurisdiction of any other court" or subject to any "court-ordered conservatorships, court-ordered guardianships, or other court-ordered relationships."

 The second hearing on Evelyn's motion to lift the imposed stay was held on July 6, 2009-the same day that Derek signed and emailed the Consent Affidavit. Evelyn's representations differed from those made at the June 30th Hearing in at least two crucial aspects. This time, Evelyn's counsel reported that U.K. immigration officials had scheduled K.L.'s deportation for July 9th, just three days away, and that Evelyn "could never come back over here and live with her child" because her green card had expired. Both of these claims were questionable. Evelyn's counsel nonetheless contended that the only way to prevent K.L.'s deportation was to grant a divorce or to have Derek sign the consent form. Derek's attorney had not yet heard back from Derek about the Consent Affidavit and announced "not ready." He argued that any action without Derek's participation violated the Service members Civil Relief Act, but attempted to work out some sort of agreement. Based on the alleged emergency, the judge crafted a compromise. She "order {ed] that [Derek] sign the consent form to do a status quo. In the event he fail[ed] to do that, [the judge would] enter a divorce decree." Although the decree would "grant the divorce and grant custody," it would only be a temporary arrangement to prevent K.L.'s deportation. After entry of the decree, the judge proposed that a motion for new trial be filed by Evelyn's attorney to "prevent it becoming a final order until [Derek was] able to get back from Afghanistan." The judge noted that she did not expect Derek's attorney to agree to this solution. In fact, when Derek's attorney asked for sanctions and attorneys' fees under the Service members Civil Relief Act, the judge promised to take up those issues when  "we really do have a final hearing." The judge was explicit that this arrangement would "not prejudice [Derek] for his custody suit" and that he was "not in any way precluded from coming back and obtaining [custody]-and [that] if he want[ed] to come back sooner, [she would] grant him a new trial." Although Derek emailed the Consent Affidavit to his attorney on July 6th, there apparently was some objection to Derek's failure to have it notarized. The Texas court therefore entered a "final" divorce decree on July 30, 2009, awarding Evelyn sole managing conservatorship over K.L. but notably omitting the Temporary Order's "without regard to geographic location" modifier. Evelyn forwarded the "final" divorce decree to U.K. immigration authorities.

 Derek returned from Afghanistan just over two weeks later. He quickly filed motions for a new trial and to lift the stay. The Texas court entered an agreed order granting the motion for new trial on August 26, 2009.

 A U.K. immigration appeals judge granted K.L. permanent residency in the U.K. a week later, but not because Evelyn had been granted sole managing conservatorship. The judge found that it was "quite clear from the [Texas court] documents that both parents retain[ed] a significant responsibility for the care of [K.L.]" and that Evelyn's "evidence [was] far from showing that [she] ha[d] sole responsibility for [him]." The U.K. judge noted that it was "not in dispute that suitable arrangements [had] been made for [K.L.'s] care both as a result of the American divorce proceedings and as a result of [Evelyn's] financial condition." The judge thus affirmed the rejection of K.L.'s application under the U.K. law provision relied upon in the original decision. The judge instead granted the appeal based on a provision allowing permanent residency in cases where "one parent is present and settled in the [U.K.] and there are serious and compelling family or other considerations which make exclusion of the child undesirable."

 Derek filed a "Motion for Additional Temporary Orders" on September 16, 2009, seeking extended visitation with K.L. in the U.K. The Texas court granted the motion on September 30th, and ordered Evelyn to allow Derek three weeks of "continuous and unrestricted (twenty four (24) hours per day) visitation with K.L." from October 20th to November 10th. Evelyn lodged no objections to this order even though she originally opposed Derek's visitation request.

 With Derek's return, the divorce proceedings turned to discovery. The record suggests that Evelyn refused to comply with several discovery requests and court orders. Derek filed motions to compel, for sanctions, and for a continuance. After a December hearing, the Texas court granted Derek's requests, ordering Evelyn to respond to the discovery requests and to pay Derek $1538 in sanctions. Trial was continued to March 1, 2010. Evelyn failed to comply with the order, and Derek filed another motion to compel and other motions. The Texas court granted these requests by, among other things, giving Derek the exclusive right to occupy the marital residence, ordering Evelyn to comply with certain discovery requests, and setting other matters for a hearing. Evelyn was ordered to bring K.L. to the hearing. On February 4th, the Texas court issued a multi-part order addressing several pending matters. Among other things, the order provided that Derek discontinue child and spousal support payments as a sanction for Evelyn's failure to bring K.L. to the hearing; that Evelyn comply with the outstanding discovery requests and finish paying the previously ordered sanction; that Evelyn was prohibited from raising certain issues in future proceedings; and that Evelyn pay an additional $1200 in sanctions for her failure to abide by various orders. The order also imposed heavy sanctions for her conduct, but allowed her to fully participate in the final divorce hearing if she complied with all unresolved orders and discovery requests by March 1, 2010. Evelyn complied with the sanction order, as well as an order to bring K.L. back to the United States for the trial. The Texas court heard arguments on March 1 and 2, 2010. Derek and Evelyn both testified, along with an immigration specialist and an accountant.

 The Texas court entered a "Final Decree of Divorce" on May 25, 2010, finding that it had "jurisdiction of [the] case and of all the parties." It appointed Derek and Evelyn as joint managing conservators of K.L., with Derek as the possessory parent, and found that such an arrangement was in K.L.'s "best interests." Because the parties "reside[d] in different and remote countries," the Final Decree imposed a custom possession order rather than the Texas Standard Possession Order used in the Temporary Order. In lieu of child support, Evelyn was ordered to pay "all costs of travel associated with her visitation" rights. Unlike the Temporary Order, the Final Decree contained a mutual ne exeat provision that required each party to obtain "written authorization" from the other to take K.L. "beyond the territorial limits of the United States," provided that during her periods of possession, Evelyn had the right to take K.L. to England, Scotland, and Wales. Before removing K.L. from the United States, however, the Final Decree obligated Evelyn to post a $25,000 bond in Derek's favor. The Texas court gave Derek "the exclusive right to designate the primary residence of [K.L.] without regard to geographic location," and found "that the United States of America is the country of habitual residence of [K.L.]"

 Derek took possession of K.L. shortly after the trial ended. Evelyn appealed and in January 2011 filed a "Motion to Modify and Motion for Clarification" of the Final Decree which was disposed of.

 On February 25, 2011, Evelyn initiated this action. A an evidentiary hearing, at which both parties testified and presented evidence the district court granted Evelyn's petition on August 10, 2011, and ordered that Derek immediately return K.L. to Evelyn's possession. The district court found that the U.K. was K.L.'s "habitual residence" under the Convention; that Derek breached Evelyn's U.K. custody rights by retaining K.L. pursuant to the Final Decree; and that Evelyn was actually exercising her U.K. custody rights at the time of retention. Evelyn departed for the U.K. with K.L. in tow. Derek timely appealed.

 The Fifth Circuit rejected Evelyn’s argument that the court should adopt the reasoning of the Eleventh Circuit's opinion in Bekier v. Bekier, 248 F.3d 1051 (11th Cir.2001), and hold that the case was moot in light of K.L.'s return to the U.K. The petitioner in Bekier took his son from the United States to Israel immediately after the district court resolved the Convention issue in his favor. The Eleventh Circuit dismissed the respondent's appeal, reasoning that it could provide her "no actual affirmative relief" because any "potential remedies ... lie in the Israeli courts." The Fifth Circuit found that Bekier was inconsistent with the grain of circuit authority. The Third and Fourth Circuits, the only other circuit courts to rule on the issue, had explicitly rejected Bekier 's approach. See Whiting v. Krassner, 391 F.3d 540, 544-46 & n.2 (3d Cir.2004); Fawcett v. McRoberts, 326 F.3d 491, 494-97 (4th Cir.2003). The Court held that Derek's appeal was not moot for basically the reasons articulated by the Fawcett court. '[C]ompliance [with a trial court's order] does not [ordinarily] moot an appeal [of that order] if it remains possible to undo the effects of compliance or if the order will have a continuing impact on future action.' " The Convention and U.K. law perhaps best demonstrate that granting Derek relief can " 'affect the matter in issue.' Both provide a "mechanism for enforcing a judgment by this court or the district court on remand." It also was possible that Evelyn could voluntarily respond to an order requiring K.L.'s return or risk contempt sanctions.

 Turning to the merits of Evelyn's case the court concluded that Derek should prevail. The district court's order had the effect of undoing the custody arrangement ordered by the Texas court of competent jurisdiction, before which both parties participated and sought relief, in favor of relitigating custody before tribunals that, until this proceeding, Evelyn never argued had authority over the matter. Derek contended that Evelyn consented to the Texas court's resolution of the custody issue and "waived" recourse to the Convention by failing to raise it in the Texas court. The district court, however, held that Evelyn's "[m]erely participating in the Texas divorce and custody proceedings [was] not consent to [K.L.'s] removal or retention in Texas." According to the district court, Evelyn attended the final divorce proceedings "under compulsion of the Texas court's order," belying the voluntariness of her participation. Similarly, the district court believed that "[t]here was nothing consensual or voluntary in her surrender of her son."

 The Court observed that under Article 13(a), "[t]he consent defense involves the petitioner's conduct prior to the contested removal or retention, while acquiescence addresses whether the petitioner subsequently agreed to or accepted the removal or retention." Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir.2005). The focus of inquiry is "the petitioner's subjective intent," , as "evinced by the petitioner's statements or conduct, which can be rather informal." Nicolson v. Pappalardo, 605 F.3d 100, 105 (1st Cir.2010). "In examining a consent defense, it is important to consider what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country. The nature and scope of the petitioner's consent, and any conditions or limitations, should be taken into account." Consent for a particular tribunal to make a final custody determination, which may be established by entry of a temporary custody order, suffices to establish an affirmative defense under the Convention. See Nicolson, 605 F.3d at 106-07 ("The consent order in this case provided only for temporary custody but, if it were read as agreeing to let the Maine courts determine final custody..., we would think that this was an acquiescence or, alternatively, a waiver of Hague Convention rights."; cf. Navani, 496 F.3d at 1132 ("As the English family court retained jurisdiction at all times over [the child's] custody, and we have never had jurisdiction over the merits of the English family court's custodial decisions, we are powerless to alter the current custodial regime forbidding the very relief that [the appellant-respondent] seeks: return of the child to the United States.").

 Applying these principles left no doubt that Evelyn gave " 'clear and unequivocal' " consent for the Texas court to make a final custody determination. Evelyn and Derek agreed to the Temporary Order because Derek's military service made a final resolution and trial impractical at the time. Evelyn answered the divorce lawsuit and filed a counter petition seeking affirmative relief. Evelyn exercised custody, as a temporary joint managing conservator, under the Temporary Order until July 30, 2009, when the "final" divorce decree was entered at the suggestion of a Texas judge and as a compromise to forestall what was claimed to be K.L.'s imminent deportation. That decree was vacated weeks later by agreement of the parties. During Evelyn's time in the U.K., she recognized and obeyed orders entered by the Texas court on multiple occasions. Although Evelyn was sanctioned for discovery abuses and for failing to bring K.L. to the United States on one occasion, she ultimately paid the imposed sanctions and complied with all Texas court orders. She participated in the divorce trial, appealed the Final Decree, and later moved that the Texas court modify its terms based on her consistent obedience to the court's orders and submission to its jurisdiction. By her own admission, at no time did Evelyn initiate custody proceedings in the U.K.

 The only thing in the record suggesting that Evelyn disagreed with the Texas court's authority was the filing of this action nine months after Final Decree was entered and almost a year after the divorce trial ended. Accordingly, the Fifth Circuit held that Derek proved as a matter of law that Evelyn agreed to the Texas court's final resolution of the custody issue.

 The Courts conclusion that consent was given defeated Evelyn's claim of "wrongful retention." Even if this analysis was incorrect, however, the Court concluded that Evelyn failed to satisfy her burden on the elements necessary to establish wrongful retention. Because wrongful-retention analysis depends on first determining
 K.L.'s country of "habitual residence," it began there. The Fifth Circuit joined the majority of circuits that "have adopted an approach that begins with the parents' shared intent or settled purpose regarding their child's residence." Nicolson, 605 F.3d at 104 & n.2 (collecting cases). This approach does not ignore the child's experience, but rather gives greater weight to the parents' subjective intentions relative to the child's age. For example, parents ' intentions should be dispositive where, as here, the child is so young that "he or she cannot possibly decide the issue of residency." Whiting, 391 F.3d at 548-49. In such cases, the threshold test is whether both parents intended for the child to "abandon the [habitual residence] left behind." Mozes, 239 F.3d at 1075; see also Whiting, 391 F.3d at 549-50. Absent shared intent, "prior habitual residence should be deemed supplanted only where 'the objective facts point unequivocally' to this conclusion." Mozes, 239 F.3d at 1082. Notably, when "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." Mere retention in another country and "private reservations" or intentions that are made "manifest and definitive" only after the child has left its country of origin are generally insufficient to establish intent to change a child's habitual residence.

 The district court concluded that the U.K. was K.L.'s habitual residence in March 2010 based on K.L.'s acclimation to the U.K. and Derek's intent that K.L. reside there with Evelyn during Derek's deployment. The district court relied primarily on Derek's agreeing to the Temporary Order provision giving Evelyn the right to determine K.L.'s residence without geographic restrictions and on his executing the Consent Affidavit allowing K.L. to reside in the U.K. The district court found that Evelyn and Derek's "last shared agreement ... was that [K.L.] reside in the U.K. with his mother." The Fifth Circuit disagreed.

 As an initial matter, the district court's order did not consider several components of the habitual-residence inquiry. The order never analyzed the threshold question of whether Derek and Evelyn shared an intention that K.L. abandon the United States, which was indisputably his habitual residence before his arrival in the U.K.. Nor did the order address the fact that Evelyn never claimed before filing her petition that she intended for K.L. to permanently remain in the U.K. Derek, for his part, never intended for K.L. to "abandon" the United States for any amount of time and, at most, agreed for K.L. to stay in the U.K. through resolution of the divorce proceedings. Thus, although Derek agreed that K.L. could remain in the U.K. for some time, no objective facts "unequivocally" show that the U.K. should "supplant[ ]" the United States as K.L.'s habitual residence. Regardless of the ties that K.L. unavoidably developed in the U.K., his young age required Derek and Evelyn's
 shared intentions be the primary focus in the habitual residence inquiry here. The Court opted against following the Sixth Circuit's exclusively child-centered approach. To focus on a young child's experience encourages future "would-be abductor[s] to seek unilateral custody over a child in another country" or to delay returning to the child's original habitual residence as long as possible.

 The record established that K.L.'s presence in the U.K. was to last for a limited duration; that Derek never agreed to any other arrangement; and that no special circumstances justified departing from courts' general practice of finding no change in habitual residence in such cases. See Whiting, 391 F.3d at 549-50. It concluded that Evelyn's sojourn did not alter K.L.'s habitual residence. As a result, it did not need to analyze any other element of the "wrongful-retention" analysis.

 It held that the appeal was not moot; that Derek satisfied his affirmative defense burden under the Convention to show that Evelyn consented and acquiesced to the Texas court's authority to make a final custody adjudication; and found that K.L.'s habitual residence at the time of the alleged retention remained the United States. 

White v White, 2012 WL 3041660 (S.D.N.Y.) [Germany] [Federal & State Judicial Remedies] [Rooker-Feldman Doctrine] [Res Judicata] [Collateral Estoppel][Failure to State a Claim]

In White v White, 2012 WL 3041660 (S.D.N.Y.) pro se Plaintiff Keith White brought an action against his ex-wife Gabriela White under the Hague Convention, seeking the return of the parties' son S. to Keith and repayment of monies that Keith paid to Gabriela since 2005.

 According to the complaint, on January 27, 2005, Gabriela "abducted" S., who was then three years old, from S.'s residence in New York City and transported S. to Germany without Keith's consent. While in Germany, Gabriela "said to the Competent Agency for Youth Services that she 'was not willing to return w[i]th the child to the United States.' " In an effort to bring about the return of his son to the United States, Keith filed Hague Convention proceedings in Germany through the United States Department of State. The German Local Court Koblenz assumed jurisdiction over Keith's case and set a trial date for May 24, 2005. Two days before trial was scheduled to begin, Gabriela "vanished [with S.] and eventually resurfaced in New Jersey," where she and S. resided since. In April 2006, in light of Gabriela's voluntary return with S. to the United States, the German Court issued an order terminating the Hague Convention proceedings because "[b]oth parties in agreement declared the lawsuit finished" and assessing Keith's costs of adjudicating the proceedings on Gabriela. In explaining its imposition of costs, the German Court noted that, prior to the date set for trial, several efforts had been made to "force [Gabriela] to return to the United States with the child and to there clarify the issue of the child's custody " but that, only under the pressure of trial, did Gabriela "change[ ] her mind to fly back to New York and ... stand trial at divorce and child custody proceedings." The German Court concluded that, had Gabriela not "returned voluntarily with the child to the United States, an order would have been enacted to effect the surrender of the child... for the immediate return purpose of the child to New York, NY, United States." Therefore, because it was "indisputable that a sentence of repatriation would have been [issued]," the German Court determined that Keith's costs of litigating the Hague Convention proceedings should be imposed on Gabriela.

 Upon Gabriela's return to the United States in 2005, the parties each filed divorce actions in Supreme Court, New York County, asserting divorce, custody, and support claims. These suits were consolidated into a single action. On April 17, 2008, after trial, Supreme Court (Lobis,J.) issued an order granting joint custody of S. to both parents, primary residential custody to Gabriela, weekly and holiday visitation to Keith, and shared decision-making authority over S. In awarding Gabriela primary residential custody, Justice Lobis acknowledged that "[t]here is no dispute over the fact that [Gabriela] removed S. from New York [to] ... Germany for approximately four months without [Keith]'s permission" . On March 11, 2010, the Appellate Division affirmed the Custody Order. In so holding, the Appellate Division stated: We note, contrary to plaintiff's assertions, that the German court to which he applied for return of the child did not declare defendant a kidnapper or "child abductor." Rather, the record shows that the Hague Convention proceedings initiated by plaintiff were dismissed, upon agreement of the parties, without any such finding having been made.

 The support claims and other financial matters were tried before a referee in December 2008. On June 30, 2010, New York Supreme Court Justice Saralee Evans, to whom the case had been reassigned, issued a Decision/Order adopting in part and modifying in part the referee's recommendation as it related to child support, maintenance, distribution of marital property, and counsel fees. Justice Evans characterized as undisputed "the fact that [Gabriela] removed S. from New York, traveled to see her family, and stayed in Germany for approximately four months without [Keith's] permission." Justice Evans also acknowledged Keith's "conten[tion] that vacatur of the referee's report was warranted because defendant ' kidnapped' the parties' son in 2005, when she took him to Germany against plaintiff's wishes, and remained there for four months, until plaintiff brought an action under the Hague Convention" and Keith's "object[ion] that this constituted egregious fault, barring [Gabriela] from receiving maintenance." Justice Evans found the referee's recommendation to be "substantially supported by the record" and made financial awards. Justice Evans recognized that the German Court had imposed the costs of the Hague Convention proceedings on Gabriela after ruling "that the transport of the parties' son to Germany by defendant was illegal," and found that, "[w]hile these facts do not warrant vacatur of the Referee's report, it appears to the court that the German court's determination of [Gabriela's] liability under the Hague Convention for wrongful retention of the parties' son in Germany should be afforded full faith and credit pursuant to 42 U.S.C.S. s 11603(g) and ... [Keith] is therefore entitled ... to payment by [Gabriela] of his demonstrated expenses in that action." Consequently, Justice Evans reduced Keith's aggregate financial obligations to Gabriela by his costs of adjudicating the Hague Convention action, which she calculated at "the sum of $6,247.13 plus the value of 3,874.98 euros."

 On December 15, 2010, Justice Evans issued a Judgment of Divorce that incorporated the Custody and Support Orders and reaffirmed that Keith's financial obligations to Gabriela were to "be reduced by [Keith's Hague Convention] legal and court costs, in the sum of $6,247.13 plus the value of 3,874.98. On January 5, 2012, the Appellate Division summarily dismissed Keith's appeal from the Divorce Judgment.

 On January 11, 2012, proceeding pro se, Keith filed a complaint under the Hague Convention and ICARA. The complaint alleged that, by returning to New Jersey voluntarily in May 2005, Gabriela "frustrated the German Court in its efforts to issue 'a sentence of repatriation to the state of habitual residence ... [of] New York' " and that "[d]espite New York State Civil Supreme Court extending full faith and credit to the German Court's decision and order [,] ... [t]o date a return order incorporating the German Court's definition ... of the state of habitual residence has not been issued." The complaint also alleged that Gabriela had "refused to comply with the German Court's decision and order" and "essentially extort[ed] monies from [Keith], forcing [him] to in essence, pay for the ongoing abduction of their son." Keith asked the Court to "honor the definition of the state of habitual residence established for this case by the German Court and issue an order for the immediate return of S. to the plaintiff in New York, NY, United States" and "to require [Gabriela to] repay all monies paid to her by [Keith] since January 27, 2005."

 On January 18, 2012, Judge Daniels of the District Court referred the case to the Magistrate for general pretrial purposes and to issue a report and recommendation regarding any dispositive motions. On February 16, 2012, Gabriela filed a motion to dismiss arguing that the Hague Convention did not apply to domestic custody disputes and that the only possible relief to which Plaintiff could be entitled under the Hague Convention, transfer of the parties' son to the United States for custody proceedings in New York, occurred seven years ago, when Gabriela voluntarily returned to the United States with S. Keith filed an opposition in which he did not assert that Gabriela had wrongfully removed S. from the United States since 2005, but rather that Gabriela's continued residential custody of S. pursuant to the New York State Supreme Court's Custody Order violated the German Court order. ("[T]he Hague case has already been adjudicated by the [German] Court. Plaintiff is not asking for the case to be reopened or litigated again. He is asking that the status quo that existed prior to the wrongful retention of the parties' child, which was the intention of the [German] Court's order, be enforced."). Keith's opposition papers further clarified that he brought his claim, under ICARA's full faith and credit provision, 42 U.S.C. 11603(g), which requires a district court to enforce a Hague Convention order that has issued elsewhere.

 The Magistrate observed that though courts in this Circuit have previously applied the Rooker-Feldman doctrine coextensively with claim and issue preclusion, the Supreme Court recently clarified that the doctrine does not "supersed[e] the ordinary application of preclusion law pursuant to 28 U.S.C. 1738." Instead, it occupies a "narrow ground" and "is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Green, 585 F.3d at 101 (quoting Exxon Mobil, 544 U.S. at 284). The Second Circuit interpreted this language to impose four conditions, each of which must be met for the Rooker-Feldman doctrine to bar a district court from hearing the case: "(1) the party raising the claim must have lost in state court; (2) that party's injuries must be caused by the state court judgment; (3) that party's claims must invite the district court to review and reject the state court judgment; and (4) the state court judgment must have been rendered prior to the commencement of the federal court proceedings."

 Under this framework, the Magistrate determined that Keith was a "state-court loser." In terms of the issues before the Court, whether enforcement of the German Court order required that Gabriela "return" S. to Keith in New York and reimburse Keith for more than $100,000 paid to her since 2005 (presumably pursuant to either the Support Order or an earlier interim order of the Supreme Court), Keith plainly "lost" in state court. On these issues, Keith asserted virtually identical arguments to the Supreme Court that he now made, namely that "extend[ing] full faith and credit to [the German Court] order ... [required Justice Evans to] vacate the [referee's] findings against [Keith]", and that Keith should be given primary custody of S. because "the crime of kidnapping should not be rewarded with custody and should not be rewarded in general." The Supreme Court considered these arguments, including the degree to which the German Court order affected Gabriela's entitlement to child support and maintenance , and held that the German Court order's only legal effect was in its imposition of Keith's Hague Convention costs on Gabriela. In so holding, the Supreme Court necessarily rejected Keith's arguments that the German Court order had any further import for its custody and financial determinations. The Appellate Division also addressed and rejected Keith's argument that enforcement of the German Court order required a different disposition of custody. Since Keith urged a view of the German Court order that was presented to and rejected by the Supreme Court and Appellate Division, he "lost" on those issues in state court. Thus, the first element of the test was met. The second issue was whether Keith's injuries were "caused" by the state court judgment. The complaint described Keith's injuries as Gabriela's "refus[al] to comply with the German Court's decision and order by returning S. to New York, Ny"; Gabriela's "obstruct[ion][of] access" between S. and Keith; and Gabriela's collection from Keith of "in excess of $100,000 ... during the ongoing abduction of S." Though Keith attributed these injuries to Gabriela, the Supreme Court's Custody and Support Orders created Gabriela's legal entitlement to retain primary custody of S. and receive support payments from Keith. Thus, that the state court orders "caused" the custody and support arrangement of which Keith now complained. The third element of Rooker-Feldman was also met because Keith asked the Court to overturn the state court's Custody and Support Orders by mandating the "immediate return of S. to [Keith] in New York, NY" and requiring Gabriela to "repay all monies paid to her by [Keith] since January 27, 2005." Keith's opposition papers further explained that "this Court has authority to supersede any ruling issued by the New York state courts" and ask the Court to "immediately return" S. to Keith "regardless of any standing custody orders...." . Moreover, Keith's opposition papers did not challenge Gabriela's assertion that "she has the permission of the state courts" to live with S. in New Jersey, but merely argued that "State Court decisions did not render moot, replace or supersede a Hague recovery process." Keith's complaint and opposition papers therefore constituted invitations to "review and reject the state court judgment." Williams, 2012 WL 691832, at *4. Finally, because the Divorce Judgment incorporating the Custody and Support Orders was rendered in 2010, and this action was not filed under January 11, 2012, the fourth element of Rooker-Feldman, that the state court judgment was rendered prior to commencement of the federal court proceedings, was also met.

 Though Keith did not specifically request review of the state court judgment, claiming instead that he sought merely to enforce the German Court order under the full faith and credit provision of ICARA, analysis of the four elements made clear that his federal lawsuit would require the Court to review and reject the Supreme Court's Custody and Support Orders after Keith has lost on appeal to the Appellate Division. The Court was therefore divested of subject matter jurisdiction over Keith's claims and could not hear them.

 The Magistrate found that Keith's Claims were also barred by the doctrine of res judicata, or claim preclusion, and by the doctrine of collateral estoppel (or issue preclusion) The Magistrate also found that even if Keith's claims were not precluded by the state court action, Keith failed to state a claim upon which relief can be granted. Keith did not state a case of wrongful retention (or removal) under 42 U.S.C. 11603(b) because he acknowledged that S. did not remain in Germany but was returned to the United States in 2005. Instead, Keith's theory of relief was premised on enforcement of the German Court's order under 42 U.S.C. 11603(g). However, that provision required only that "[f]ull faith and credit shall be accorded by the courts of the States and the courts of the United States to the judgment of any other such court ordering or denying the return of a child, pursuant to the Convention...."42 U.S.C. 11603(g) . The German Court did not order or deny S.'s return to the United States. It declared that it "would have" ordered S.'s return to New York, but that it was unnecessary to do so because Gabriela voluntarily returned with S. to the United States. Keith sought only to have this Court "honor the definition of the state of habitual residence established for this case by the German Court." However, ICARA does not provide for the enforcement of a "definition" and, even if it did, at most, that definition would determine where custody proceedings should take place and not what the outcome of those proceedings should be. Keith misconstrued the Convention in seeking to use the German Court's order, not to protect New York's jurisdiction as home-state arbiter of custody (as the Convention seeks to do), but instead to override New York's custody determination. There was simply no authority under the Hague Convention for such an outcome; it was fundamentally inconsistent with the treaty's purpose and plain language and expressly excluded from ICARA's limited grant of jurisdiction. See Hague Convention, art. 19 ("A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue."); 42 U.S.C. 11601(b)(4). Thus, the Convention not only does not authorize-it prohibits-the Court from using the Convention as a basis to alter New York's custody determination. Nor did 42 U.S.C. 11607-or any other provision of the Convention or ICARA-authorize the Court to order Gabriela to "repay all monies paid to her by [Keith] since January 27, 2005." Section 11607 merely provides that "[a]ny court ordering the return of a child pursuant to an action brought under [ 42 U.S.C. s 11603(b) ] shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner...."42 U.S .C. 11607(3). Because no return order ever issued, it was not clear that Keith was entitled to recover such expenses at all under section 11607(3). Nevertheless, to the extent the German Court ordered that Keith should recover his costs, and the state court found that its determination should be given full faith and credit, that relief had already been incorporated into the Support Order. Accordingly, the Court found that even if Keith's claims were not foreclosed under the doctrines of Rooker-Feldman, res judicata, and collateral estoppel, Keith failed to state claim on which relief could be granted, and recommended that the motion to dismiss be granted and that the complaint be dismissed with prejudice.
 

Saldivar v Rodela, 2012 WL 2914833 (W.D.Tex.) [Mexico] [Habitual Residence] [Rights of custody] [Consent]

In Saldivar v Rodela, Slip Copy, 2012 WL 2914833 (W.D.Tex.) D.I.R.A. was the only child of Acosta and Rodela. Acosta was a Mexican citizen and held a United States permanent resident card. She lived most of her life in Ciudad Juarez, Chihuahua, Mexico. Rodela, who was an American citizen, grew up in Juarez, until he was twelve years old; he now lived in El Paso, Texas. Ciudad Juarez and El Paso are located next to each other on the border between the United States of America and the United States of Mexico.

In June 2002, Acosta and Rodela got married. Prior to their marriage, they lived in Juarez, but moved to the United States when they got married by the church in August that year. Following their marriage, they lived in El Paso for a few months and then moved back to Juarez around March 2003. In June 2004, D.I.R.A. was born at a hospital in El Paso, Texas. At the time of the child's birth, the parties were living in a rented home in Juarez. After his birth, Acosta, Rodela, and the child stayed in El Paso for a few days-not more than two months by Rodela's account-long enough to allow the mother to recuperate. Thereafter, Acosta and Rodela moved back to Juarez with the child. Once in Juarez, Acosta, Rodela, and D.I.R.A. lived in multiple rented homes, until sometime in 2007, when Rodela and Acosta purchased a house there. The house was located on a street across from and in front of the house of Maria del Rocio Acosta Saldivar, Petitioner's sister. The family lived together in the purchased house until October 2010, when Rodela and Acosta separated and he moved to El Paso. Since their separation, D.I.R.A. lived with his mother in that house until his removal to the United States in January 2012. Acosta continued to live there.

After the parties' separation in 2010 and prior to D.I.R.A.'s removal in January 2012, D.I.R.A. spent weekends with his father in El Paso. On occasion, the father visited the child in Juarez during weekdays after his school. During his school-break in summer 2011, D.I.R.A. stayed with his father in El Paso for three to four weeks. On August 10, 2011, Rodela filed a petition for divorce in the 388th Judicial District Court of Texas in El Paso. In his petition, he also sought sole custody of D.I.R.A. Acosta was not aware of this filing until sometime later. On Saturday, January 7, 2012, shortly before noon, Rodela arrived at the family's house in Juarez to take D.I.R.A. to El Paso. Acosta believed the child's trip to El Paso would be for that weekend only. She asked Rodela to return the child by 9:00 p.m. on Sunday, January 8, 2012, and Rodela agreed. The child picked up a few toys and his backpack, and left with the father. On January 8, when the child was not returned, Acosta called Rodela on his cellphone several times beginning at around 9:00 p.m., but her calls went unanswered. On the morning of January 9, she called Rodela again and asked him to return the child. Rodela instructed her to meet at the Ysleta-Zaragoza International Bridge for the purpose of returning D.I.R.A. When she arrived at the bridge on the Mexican side, she called Rodela on his cellphone, and he told her that he could not cross the bridge because he had lost his wallet and his ID. Explaining that it would not be safe for the child to cross over to the Mexican side by himself, Rodela instructed Acosta to cross the bridge to the American side to pick up the child. When she did as instructed, a process server approached her and served her with Rodela's petition for divorce. Neither Rodela nor D.I.R.A. met Acosta at the bridge; D.I.R.A. was not returned. D.I.R.A. now resided with his father at his paternal grandmother's home in El Paso.

On March 5, 2012, Acosta filed a petition under the Convention with the District Court. On March 28, 2012, Acosta filed a petition for divorce in the First Family Court of Bravos Judicial District in Juarez. In that petition, she also sought custody of the child. The District Court found that at the time of his removal, D.I.R.A. was enrolled in second grade at Colegio Latino Americano in Juarez and was mid-way through 2011-2012 academic year. Prior to that, he completed first grade and kindergarten, also in Juarez. Beginning January 9, 2012, he attended Lujan Chavez Elementary School in El Paso. At around the age of three, D.I.R.A. began to show signs of developmental and behavioral problems. He had difficulties with sustaining attention, following instructions, dealing with authority figures, and interacting with children of his age. The mother described that on occasion, he would refuse to go outside of home, would be found naked in the home, and would hit himself and cry. Between 2008 and 2010, he received therapy at a Chihuahua state facility, where twice a week he attended classes for children with special needs. With therapy, his condition improved, but in the recent years, following his parents' separation, it worsened.. During the parties' marriage and prior to their separation, Rodela held jobs in El Paso, though he lived in Juarez. During the same period, Acosta did not work. After their separation, she began to work in Juarez and continued to work there as of this date.

Acosta requested that D.I.R.A. be returned to Mexico because Rodela's retention of the child in the United States was wrongful under Article 3 of the Convention. The Court observed that in Mozes v Mozes, 239 F.3d 1067, the Ninth Circuit set out an elaborate approach for determining a child's habitual residence.. Under this approach, the focus of the inquiry is the parents', not the child's, subjective intention about the child's habitual residence. In applying that approach, a court must also inquire whether the child has lived in the country for "an appreciable period of time ... that is sufficient for acclimatization." D.I.R.A. lived essentially his entire life in Mexico. Although he was born at a hospital in El Paso, his parents were residing in Juarez for more than a year at the time of his birth. Following his birth, they stayed in El Paso for a few days and then returned to Juarez with the newborn. Since then, D.I.R.A. lived in Juarez until his removal in January 2012. There, he grew up surrounded by members of his extended family including his maternal grandmother, aunts, uncles, and eighteen cousins. With them, he developed a meaningful relationship. Acosta's sister (Rocio), who lived across from the child's house, cared for the child whenever Acosta had to run an errand. With his cousins, he celebrated holidays and birthdays. Moreover, in Juarez, he completed his kindergarten and first grade education, and at the time of his removal, he was enrolled in second grade. He also had friends with whom he played soccer after school. These facts led to the conclusion that D.I.R.A. was highly acclimatized and firmly rooted in Juarez. Rodela contended that when they translocated from the United States to Mexico in or around March 2003, they had a mutual intention that their stay in Mexico would last for a temporary period of time until they were financially able to buy a home in El Paso; the parties had lived in El Paso for six to eight months following their marriage. Acosta flatly denied that, stating that they moved to Mexico to live there for the long haul. Although the parties agreed that economic reasons motivated their move to Mexico (housing was cheaper in Juarez than in El Paso), Acosta testified that they had another reason for the move: Rodela, who grew up in Juarez until he was twelve years old, liked living there. Rodela's contention notwithstanding, subsequent events suggested that the parties adopted Juarez as their home. By late 2010, when the parties separated, they had lived together in Juarez for more than seven years. In 2007, they even bought a house in Juarez (the house appears to have been paid for in full at the time of its purchase), where the child and the parties lived. During this period, the only routine aspect of their daily lives that had a connection to the United States was Rodela's employment in El Paso. (In this part of the world, living on one side of the border and working on the other side is fairly commonplace.) Under these facts, even if the parties had a shared intention to someday return to the United States, they effectively abandoned their prior residence in that country and established a new one in Mexico. Rodela pointed out that Acosta obtained a U.S. resident alien card in 2009 and a Texas driver's license in 2010, which, according to him, indicated that they shared an intent to move back to El Paso. According to Acosta, she acquired the resident alien card as insurance against a possible eventuality. At best, the mother's acquisition of the resident alien card and the driver's license suggested that they were developing a tenuous plan to someday move to the United States and abandon their residence in Mexico. However, the parties never actually followed through with that plan. While the transformation of a child's habitual residence depends upon the settled intention of the parents, it cannot be accomplished "by wishful thinking alone." Mozes, 239 F.3d at 1078. It "requires an actual change in geography, as well as the passage of an appreciable amount of time." Koch v. Koch, 450 F.3d 703, 715 (7th Cir.2006). The Court found that the parties had no shared, settled intention about the child's habitual residence. Thus, to the extent that D.I.R.A. was highly acclimatized in Mexico, the Court concluded that Mexico was the country of his habitual residence immediately prior to his removal to the United States.



Acosta claimed that her "rights of custody" arose by operation of Chihuahua's civil law doctrine or institution of patria potestad, meaning parental rights or authority. At trial, Acosta submitted into evidence an affidavit by Mexican attorney Mariano Nunez Arreola, which explained some of the relevant Mexican laws.. Pursuant to Rule 44.1, Arreloa's affidavit was acceptable as proof of Mexican laws. The Court relied upon Arreola's affidavit and, when necessary, upon publically available, relevant materials on Mexican laws. The Court found that under the Mexican law, Acosta and D.I.R.A. were domiciled in Chihuahua at the time of his removal to the United States. Consequently, Mexico's choice of law rules directed that the Chihuahua Civil Code governed the determination of whether Acosta had "rights of custody" under the Convention.

The Court noted that the institution of patria potestad "regulates relations between parents and children until the latter reach the age at which they must fend for themselves." It is largely governed by the civil codes of Mexican states. Designed to protect the interest of children, patria potestad constitutes the "most comprehensive" right that a parent can exercise over the person and property of his or her minor children. As with the Federal Civil Code and the civil codes of other Mexican states, Chihuahua's Civil Code embodied the same concept of patria potestad comprising a bundle of correlative rights over a minor child. Chih. Civ.Code, tit. 8, ch. 1, art. 388 et seq. These rights are equally shared by the mother and the father. Id ., art. 391 (providing that parental authority over children shall be exercised by the father and mother). In case of separation, parents can "agree on the terms of their exercise of parental authority, particularly in regards to the custody and care of minors," and if the parents are unable to reach an agreement, a judge decides the parents' respective rights. Chih. Civ.Code, art. 393; Absent an agreement or a court ruling, the parents' rights and obligations under patria potestad continue during their separation. Chih. Civ.Code, art. 393; Following their separation in 2010, Acosta and Rodela had not reached a formal agreement as to their parental rights over D.I.R.A. Moreover, there has not been any court ruling regarding the allocation of their rights; nor has there been any court judgment that stripped of either parent's patria potestad over D.I.R. A. The Court t found that Acosta and Rodela continued to jointly and severally share all of the rights derived from the institution of patria potestad. Cf. Hague Convention, arts. 3(a)-(b) (recognizing that "rights of custody" may be held "jointly or alone"). Chihuahua's institution of patria potestad gave Acosta both "the right relating to the care of the person of the child" and "the right to determine the child's place of residence" as contemplated under Article 5(a) of the Convention. The Chihuahua Civil Code's provisions governing patria potestad expressly gave her the rights to live with the child, to provide physical care (guarda ) to the child, to educate the child, and to discipline the child. Chih. Civ.Code, arts. 390, 394, 399, 400, 402; Additionally, parents with patria potestad are required to raise their minor children correctly and to conduct themselves in a manner so as to set a good example for their children. Id. art. 400. These extensive rights are clearly the "right[s] relating to the care of the person of the child." Hague Convention, art. 5(a). Moreover, while the Chihuahua Civil Code gives a parent having patria potestad over a child the right to live with that child, it also places a reciprocal obligation on the child not to leave the home of that parent without her permission. Chih. Civ.Code, arts. 394, 398. See also Chih. Civ.Code, art. 32(1) (providing that an un-emancipated minor, like D.I.R.A., is deemed as legally domiciled with the person who exercises patria potestad over him). It followed therefore that Chihuahua's patria potestad gave Acosta, who was free to reside anywhere, the right to determine D.I.R.A.'s "place of residence"-be it an address in Mexico or the country of residence-and consequently the "right to determine the child's place of residence." Hague Convention, art. 5(a); Abbott, supra, 130 S.Ct. at 1991. That conclusion was further reinforced by the amendatory language of Article 398 of the Chihuahua Civil Code. Article 398 gives a parent the right to consent before her child can be removed or retained away from Mexico. Article 398 is therefore a ne exeat-plus provision. Under ne exeat, a civil law doctrine, a parent's consent is required before her child can be taken to another country. The Supreme Court has held that ne exeat rights are "rights of custody," reasoning that ne exeat gives a parent the right to determine his child's country of residence, and thereby the right to "determine the child's place of residence" as contemplated under Article 5(a) of the Convention. Abbott, 130 S.Ct. at 1990-91. Acosta's Article 398 right to consent gave her the right to determine D.I.R.A.'s country of residence, and thereby the right to "determine the child's place of residence."

Accordingly, the Court concluded that Acosta's rights pursuant to Chihuahua's institution of patria potestad were "rights of custody" under the Convention. The Court found that Rodela's retention of D.I.R.A. in the United States was in breach of Acosta's custody rights. Specifically, because Acosta did not consent to Rodela's retention of the child in the United States, his retention was in breach of Acosta's right to consent before D.I.R.A. could be retained away from Mexico, as provided under Article 398 of the Chihuahua Civil Code. His retention also breached Acosta's other rights under Chihuahua's patria potestad, such as her rights to live with the child and care for the child, as his retention precluded her from exercising those rights.

The court found that she was actually exercising her custody rights at the time of D.I.R.A.'s removal and retention. Courts in this country have construed the term broadly in order to avoid crossing the line into a consideration of the underlying custody dispute. Sealed Appellant, 394 F.3d at 344. Under the courts' liberal construction, a non-removing parent with rights of custody cannot fail to exercise those rights short of acts that constitute abandonment of the child. Id. at 345.The non-removing parent need only adduce "some preliminary evidence that he or she actually exercised custody of the child, for instance, took physical care of the child."

Having found that Acosta established a prima facie entitlement to the return remedy, the court pointed out that respondent asserted the defense of consent. A child may not be returned to his country of habitual residence if the removing party can show, by a preponderance of the evidence, that the non-removing party "had consented to ... the removal or retention." Hague Convention, art. 13(a); 42 U.S.C. s 11603(e) (2)(B)."The consent defense involves the petitioner's conduct prior to the contested removal or retention." Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir.2005) (citations omitted). The consent inquiry turns on the subjective intent of the parent who is claimed to have consented. .Further, " 'each of the words and actions of a parent during the separation are not to be scrutinized for a possible waiver of custody rights.' " Simox v. Simox, 511 F.3d 594, 603 (6th Cir.2007).

Rodela testified that during the last week of December 2011, he met with Acosta in Juarez to discuss the child's schooling. At the meeting, he related to Acosta that he wanted the child to attend school in El Paso. He also testified that previously the parties had exchanged emails, wherein he explained that it would be too expensive to have the child reside in Mexico (thus be considered a resident of Mexico for purposes of tuition and fees) and attend school in El Paso; he suggested that the child should live with Rodela's mother in El Paso. The meeting and the emails show, according to Rodela, that Acosta agreed to let the child live and attend school in El Paso beginning January 2012. He further testified that he made arrangements for the child to live with Rodela's mother at her home in El Paso, and that a few days before D.I.RA.'s removal, Rodela moved into her home (previously he stayed with his uncle in El Paso). Thus, when he arrived at Acosta's house on January 7, 2012, Rodela maintained, he did not agree to return the child by the next day; he was there to pick up the child and relocate him to El Paso permanently. During her testimony, Acosta denied that she ever agreed to let the child live and attend school in El Paso.

The determination of this issue turned on who was more credible. To that end, the timing of and the surreptitious manner in which Rodela served process on Acosta undercut his credibility. On the morning of January 9, when the mother called him for the child's return, he instructed her to meet him at the Ysleta-Zaragoza International Bridge. According to his own testimony, they were going to discuss the child's schooling at the bridge, but he also gave Acosta specific instructions to cross the bridge so that she could be on the American side of the border (he testified that she was supposed to cross over the bridge). But what transpired next at the bridge was not a meeting for such a discussion, but a service of process on Acosta; neither Acosta nor D.I.R.A. was there to meet her. Accordingly, the Court found that at the time D.I.R.A. was removed to the United States, Acosta agreed only to let the child stay with Rodela until January 8, 2012, and that she did not consent to Rodela's retention of the child in the United States beyond that date.

At trial, Rodela alleged that Acosta subjected the child to physical and psychological abuse. He averred that, on several occasions, Acosta struck the child with a stick and a belt. At times, he further claimed, Acosta struck her hand to the child's head, face, and leg. He also asserted that Acosta yelled at the child. These conducts, according to Rodela, resulted in family violence under Texas law. At trial, Rodela introduced a demonstrative evidence of the stick: it is 1-1/2 feet long, 1-1/2 inches wide, and 1/4 inches thick, and weighs about two ounces. According to the testimony of Rocio, Petitioner's sister, Rodela used to bring those sticks to the parties' home because the child liked to play with them and use them as swords. Rodela testified that although he never saw any marks on D.I.R.A.'s body, the child suffered psychological harm. He related that the child "freezes"-presumably because of the psychological harm done to him by his mother. Acosta testified that she had one such stick. In her family, she explained, such sticks are known as "magic stick" or the "wisdom stick," and they are used to discipline children: swat a child with it once and she/he will be scared of it. In case of D.I.R.A, she would say in his presence "where is that stick?" or "I am going to look for the stick"; that, she said, would be enough to secure his obedience. She further testified that during the child's entire life, she struck him with the stick only on three occasions; and on each occasion, she struck him only once and only on his buttocks. She also testified that on one occasion, when the child was hitting the wall with a belt, she took the belt away from him and struck him with the belt. Other than these four occasions, she stated, she never hit the child. She vehemently denied Rodela's characterization that she abuses or hits the child as a matter of course. Acosta also introduced a deposition testimony by one Veronica S. Torres, who was a special education teacher at Centro de Atencion Multiple, a Chihuahua state facility in Juarez. It was there that the child received therapy for his developmental and behavioral problems between 2008 and 2010. Torres's testimony revealed that after D.I.R.A.'s removal, Rodela took the child to Torres, asking her to evaluate whether the child had been a victim of mistreatment. She testified that based on her evaluation, she observed no sign of any physical or psychological mistreatment. She further testified that over the course of her dealing with D.I.R.A. since 2008, she never observed any sign that the child might have been subjected to any aggression, mistreatment, or abuse. At trial Rodela presented no expert or opinion (other than his own) testimony in support of his allegations of physical and psychological harm, even though prior to trial, he filed a witness list, listing as witnesses, among others, a child protective representative and a licensed professional counselor, who allegedly treated the child for physical and emotional harm. The Court found that the evidence presented fails to meet the demanding burden for establishing an exception under Article 13(b) of the Convention. Accordingly, Rodela's defense on this ground failed and the court granted the petition for return to Mexico.

Edoho v Edoho, 2010 WL 3257480, (S.D. Texas, 2010) [Bahamas] [Well-Settled in New Environment]

In Edoho v Edoho, 2010 WL 3257480, (S.D. Texas, 2010) Godwin A. Edoho filed a petition for the return of his children to the Bahamas. On June 24, 2000, Godwin A. Edoho and Ekekere G. Edoho' were married in Lagos, Nigeria. By September 2002, they had moved to the Bahamas where they co-habitated as man and wife. Ekekere testified that Godwin regularly threatened to kill her. On September 19, 2003, the Bahamian police were called to the Edoho's home for a domestic disturbance. They warned Mr. Edoho to be on good behavior towards his wife. Ekekere testified that the threats did not cease until the time that she moved out. The couple's first son, Uduak Edoho ("Uduak"), was born in the Bahamas on January 11, 2004. He was now 6 years old. The couple's second son, Emem Edoho ("Emem"), was born in the Bahamas on August 19, 2006. He was 4 years old. According to Godwin's petition, Ekekere moved out of the marital home on March 17, 2008 while he was at work. Ekekere filed for maintenance and custody of the children. And, on April 8, 2008, the Bahamian court entered an order granting her custody of the children. Godwin was to keep the children three days a week; the balance of their time was spent with Ekekere. Additionally, the order stipulated that all travel must be agreed upon by the parents or, if necessary, granted by the court. On July 7, 2008, Ekekere filed for divorce predicated on cruelty. In her petition she alleged inter alia that Godwin had subjected her to physical, verbal, and emotional abuse; that he was violent and hot tempered; and that at one point he threatened to kill her and send her corpse back to Nigeria.

In September 2008, Ekekere left The Bahamas, taking Uduak and Emem with her. She traveled to Houston and lived openly with her sister, her sister's husband, and her sister's four children. At some point in September, Godwin called Ekekere's job and was told that she was traveling on vacation and would return at the end of November.

On September 2, 2008, Godwin filed an answer in the divorce proceedings denying the allegations of cruelty on his part and counterclaiming that, in fact, Ekekere was the violent one. He alleged, among other things, that she had attacked him with a cooking fork and a kitchen knife; that she refused to wash or clean the home; and that she tried to have him deported. At some point in early December of 2008, Godwin called Ekekere's place of work again and was told she was still not back from vacation.

Three months later, on March 13, 2009, Godwin filed a missing persons report with the Bahamian Police Department. According to the Bahamian Police report Godwin came home from work to find his wife and children missing on September 1, 2009.

On March 19, 2009, the Bahamian court entered an order disolving the marriage between Godwin and Ekekere, finding that Godwin's allegations of cruelty supported the dissolution. This order was entered against Ekekere in abstentia and her petition was dismissed for failure to prosecute. Ekekere remarried on March 24, 2009. She and the two boys moved in with her new husband, Frederick Pearson.

On May 4, 2009, Godwin filed an application for assistance with the U.S. Department of State pursuant to the Hague Convention requesting access to his children. He stated on his application that he was requesting access. On May 20, 2009, the Bahamian Ministry of Foreign Affairs contacted the U.S. Department of State regarding Godwin's Hague Convention application for access to his children. The letter stated that Godwin "does not wish to pursue voluntary return through a U.S. Department of State voluntary return letter." Notably, the letter also stated that Godwin "is in receipt of information from a private investigator that suggests his wife and children are allegedly in the state of Texas. Apparently, one of his children has been registered at a school in that state."

On July 24, 2009, the Bahamian Ministry of Foreign Affairs notified the U.S. Department of State that Godwin had opted to change his Hague Convention application from being granted access to the children to having the children returned to the Bahamas. . Godwin testified that on September 10, 2009, the Bahamian court issued an order granting him full custody of both children and enjoining Ekekere from removing the children from the jurisdiction of the court. However, the record contained only the pleading requesting custody, but no court order granting custody.

Godwin filed a petition for return of the children in the Southern District of Texas on May 25, 2010. The court held a hearing on the petition for return of the children. Godwin testified that he diligently sought his children's whereabouts. The letter dated May 20, 2009 from the Bahamian ministry stated that Godwin was in receipt of information that his wife and children were in Texas. Therefore, the Court concluded that Godwin knew his children were in Texas before May 20, 2009. Godwin explained that the reason he waited from the time he discovered their whereabouts until May 25, 2010 to file his petition was that it took him that entire period of time to retain a lawyer sufficiently versed in the Hague Convention to accept his case. Notably, Ekekere found and retained lawyers to defend her in this case within a few days. And, the U.S. Department of State has significant resources available to all parties involved in these Hague Convention cases, including lawyer referrals. Godwin's argument, therefore, lacked plausibility.

During her testimony, Ekekere alleged that Godwin was abusive to her and the children. She further explained that because her immigration status in the Bahamas was based on her nursing job and her marriage to Godwin, she lived in constant fear that Godwin would have her deported by using his influence to have her nursing contract cancelled. She also made specific allegations that Godwin had sexually abused their older son. Ekekere testified that the oldest son—Uduak—would start first grade this year. He attended kindergarden here last year. He was on the soccer team, had participated in a summer reading competition, and sang in the family's church's choir. She testified that the younger son—Emem—while too young for school participated karate class. Both children regularly attended Sunday school at the family's church along with their cousins. Ekekere had remarried to Frederick Pearson. The children got along well with their stepfather, calling him Daddy Fred. At the time of the hearing Pearson was unemployed. However, he had a job interview and testified to his intent to get a job through which he could buy health insurance for his wife and stepsons. Ekekere testified that she was in the process of applying for an adjustment of immigration status based on her marriage. The adjustment would also apply to the children.

The District Court observed that where, as here, the petition for return is brought more than a year after the removal of the children, the removing parent can prevent return by demonstrating that the children are settled in their new environment. Convention, art. 12. The Ninth Circuit had recently addressed the well-settled defense. "In determining whether a child is settled within the meaning of Article 12, we consider a number of factors that bear on whether the child has "significant connections to the new country." These factors include: (1) the child's age; (2) the stability and duration of the child's residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child has friends and relatives in the new area; (5) the child's participation in community or extracurricular school activities, such as team sports, youth groups, or school clubs; and (6) the respondent's employment and financial stability. In some circumstances, we will also consider the immigration status of the child and the respondent. In general, this consideration will be relevant only if there is an immediate, concrete threat of deportation. Although all of these factors, when applicable, may be considered in the "settled" analysis, ordinarily the most important is the length and stability of the child's residence in the new environment." In re B. Del C.S.B., 559 F.3d 999, 1009 (9th Cir.2009) (quoting 51 Fed.Reg. at 10509). "Additionally, for the child to be well-settled, the court should consider more than whether he or she has a comfortable material existence, taking into consideration the child's living environment and any active measures taken to conceal a child."
Van Driessche, 466 F.Supp.2d at 848.

The Court found that the children were well-settled in Houston and denied the petition for return. The had been in Houston for almost two years. They lived close to extended family with which they had significant contact. They both participated in activities, attended Sunday school, and went to church regularly. The older child had already attended one year of school here and was enrolled in first grade starting this fall. Although the mother and step-father were unemployed at the time of the hearing, they both testified to their efforts to gain employment and were employable.

The record reflected that Godwin suspected his children's presence in Texas sometime before May 20, 2009. Since he filed his petition on May 25, 2010, over a year passed from discovery to filing. The Court noted that the one year period may be equitably tolled if Godwin could demonstrate that Ekekere secreted the children away from him. Furnes v. Furnes, 362 F.3d 702, 723 (11th Cir.2004). "[A] court may equitably toll the one-year period where two related conditions are met: (1) the abducting parent concealed the child and (2) that concealment caused the petitioning parent's filing delay." In re B. Del C.S.B., 559 F.3d at 1015. This determination is an equitable one, taking into account all of the facts surrounding the removal and discovery of the children, including the efforts made to secrete the children by the removing parent, and the efforts made to locate the children by the non-removing parent. The Court found that Ekekere made no effort to conceal the children. While she did not inform Godwin of her whereabouts, she went to live openly with a known relative, she did not change her name or the children's names, and she enrolled Uduak in school. Even if Ekekere had made some effort to conceal her whereabouts, the concealment did not cause the petitioning parent's filing delay. Godwin waited six months from the time his wife left The Bahamas with the children before filing a missing persons report with the Bahamian Police. The efforts he did take to find them could not be described as determined or diligent. For example, he called her work to determine if they knew her whereabouts, but only once a month. And, he sent his family in Nigeria to her family to ask her whereabouts, but not until June 2009. Additionally, the record reflects that his other efforts were equally desultory. Therefore, the court found that equitable tolling was not appropriate in this case.

E.D.T. ex rel. Adamah v. Tayson, Not Reported in F.Supp.2d, 2010 WL 4116666 (E.D.N.Y.) [United Kingdom] [Attorneys fees and Costs]

In E.D.T. ex rel. Adamah v. Tayson, Not Reported in F.Supp.2d, 2010 WL 4116666 (E.D.N.Y.) Petitioner Ides Adamah successfully petitioned for the return of her child ("E.D.T.") to the United Kingdom pursuant to the Hague Convention. See Adamah v. Tayson (In re E.D.T.), 2010 U.S. Dist. LEXIS 54172, 2010 WL 2265308 (May 27, 2010 E.D.N.Y.). Petitioner then sought reimbursement from respondent Evans Tayson ("Tayson") of costs incurred pursuant to 42 U.S.C. 11607(b)(3).

Adamah did not seek an award of attorney's fees against Tayson, only costs, including reimbursement for: (1) filing fees for commencement of her petition for the return of her child; (2) fees related to service of process; (3) costs of procuring transcripts of depositions, the hearing and other trial proceedings; (4) disbursements for postage, telephone calls, copying costs, messenger service and local transportation; and (5) airfare for Adamah's attendance at trial-related proceedings and the collection of her daughter. In support of her motion, she submitted documentation and/or invoices attesting to the foregoing costs, with the exception of travel expenses for two plane trips. Further, apart from airfare, the remainder of Adamah's costs were out-of-pocket expenses incurred by her counsel on her behalf.

The Court observed that an award of costs to a prevailing petitioner is mandatory under ICARA unless the respondent establishes that "such order would be clearly inappropriate." 42 U.S.C. 11607(b) (3). After being duly served with Adamah's motion for costs, Tayson failed to respond or to otherwise defend against the petition; therefore, he did not establish that an award of costs against him would be inappropriate.

The Court held that the travel expenses Adamah incurred were clearly "transportation costs related to the return of the child," 42 U.S.C. 11607(b) (3), and she was entitled to reimbursement for those travel expenses for which she had airfare charges. The Court observed that as to the expenses her counsel incurred on her behalf, the Second Circuit has held that reasonable, identifiable out-of-pocket disbursements ordinarily charged to clients are recoverable. See United States Football League, 887 F.2d 408, 416 (2d Cir.1989); Kuzma v. Internal Revenue Service, 821 F.2d 930, 933-34 (2d Cir.1987) (providing a non-exclusive list of recoverable costs, including photocopying, travel and telephone costs). Payment is not permitted, however, for items that constitute routine office overhead. See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir.1998). Based on a review of Adamah's application, the Court found that the costs incurred on her behalf were recoverable. Adamah's motion is granted and she was awarded costs in the total amount of $9,408.95.

Rivera Rivas v. Segovia, Not Reported in F.Supp.2d, 2010 WL 5394778 (W.D.Ark.) [El Salvador] [Well-Settled in New Environment]

In Rivera Rivas v. Segovia, Not Reported in F.Supp.2d, 2010 WL 5394778 (W.D.Ark.) Dinora del Carmen Rivera Rivas filed a Petition for Return of Child to Petitioner. Both parties testified at the hearing, with Petitioner appearing telephonically from El Salvador. Petitioner had local counsel present in the courtroom, and Salvadoran counsel present with her in El Salvador. An interpreter was also provided by the Court.

The minor child, K.S.R., was born to Dinora del Carmen Rivera Rivas and Nathan Christian Segovia in El Salvador on August 30, 2003. The parents were never married . Both parents were born in El Salvador, but Segovia, previous to his relationship with Rivas and the birth of K.S.R., immigrated to the U.S. and obtained dual citizenship. The Respondent was a citizen of both the United States and El Salvador. K.S.R. was granted U.S. citizenship shortly after birth in addition to her Salvadoran citizenship. After her birth, K.S.R. lived continuously with her mother in El Salvador. Segovia visited K.S.R. occasionally in El Salvador but maintained his home with his family in Arkansas. Segovia also spoke frequently with K.S.R. by telephone.

On April 5, 2009, Segovia took K.S.R., with Rivas's permission, to the United States for what was to be a one week vacation to Disneyland and an opportunity for K.S.R. to meet her half-siblings. Segovia and K.S.R. were scheduled to return to El Salvador on April 11, 2009. Rivas contends that when she called to check on K.S.R. after the flight to the US, Segovia informed her that they had not gone to Disneyland but were, instead, in Arkansas at Segovia's residence. Segovia at some point told Rivas that he thought it would be better for K.S.R. if she lived with him in the United States.

K.S.R. was now 7 years old. Segovia presented evidence indicating that K.S.R. was well-adjusted to her life and family in the United States. She attended school and received good grades. She went on family trips with her father, step-mother, and half-siblings, and evidence presented by Segovia indicated that she got along well with her half-siblings. Phone records filed by Segovia, and testimony from both parties, indicated that Rivas had frequent contact with the family since K.S.R.'s arrival in the United States, although Rivas claimed that her contact with K.S.R. has been limited by Segovia.

Rivas filed a complaint pursuant to the Hague Convention on the Civil Aspects of International Child Abduction on July 9, 2010. Segovia contended that more than a year passed between retention of the child and commencement of proceedings in contravention of Article 12 of the Convention, and the child was now "settled in her environment." Segovia contended that Article 13 of the Convention does not require return of the child if it is established by clear and convincing evidence that return of the child will result in psychological or physical harm. Segovia contended that the child need not be returned, under Article 12, if the child has "attained an age and degree of maturity at which it is appropriate to take account" of their views and they object to being returned.

The Court noted that some of Segovia's allegations were previously considered in Arkansas State Court, in an ex parte proceeding which ultimately granted custody to Segovia. The Court emphasized that Article 16 of the Hague Convention provides that proceedings in an abducted-to-nation (here the United States) may not determine custody issues. Hague Convention, Art. 16. The Convention imposes and requires a preliminary determination of which country has jurisdiction to consider custody questions. Silverman v. Silverman, 338 F.3d 886, 890 n. 8 (8th Cir.2003). While this Court, in its discretion, may take into consideration the reasoning behind the Arkansas State Court's findings, Miller v..Miller, 240 F.3d 392,402 (4th Cir.2001), the Court is not bound by those findings and limits itself to consideration of only the narrow question presented by Rivas's Petition under the Convention.

Segovia did not dispute that Rivas could meet her initial burden of establishing wrongful retention under the Convention. Accordingly, the Court found that Rivas could satisfy her burden of establishing that K.S.R. was wrongfully retained in the United States by Segovia.

The Court found that Segovia left El Salvador with K.S.R. on April 5, 2009. They were to return to El Salvador on April 11, 2009. Rivas did not file this Complaint until July 9, 2010. Using either of the April dates, more than a year passed between the wrongful removal/retention and the commencement of proceedings. However, the Respondent should not benefit from the effects of his own actions and the barriers the Petitioner faces in bringing an action. Antunez-Fernandes, 259 F.Supp.2d at 815; see also 51 Fed.Reg. 10,494, 10,509 (1986) ("The reason for the passage of time, which may have made it possible for the child to form ties to the new country, is also relevant to the ultimate disposition of the return petition."). In this case, both parties admitted that there were ongoing discussions about arriving at a mutual agreement for the return of the child. Although an agreement was never reached, it would not be a stretch of logic for Rivas to have believed that Segovia may have eventually returned K.S.R. without the intervention of the courts. Rivas started the process required by the Convention, by filing an Application with the Central Authority in El Salvador, in October of 2009. The Court held that Segovia should not be allowed to benefit from any lingering hope that Rivas may have had in reaching a more amicable solution or for any obstacles Rivas may have faced in ensuring that her application was processed expeditiously. For these reasons, the Court found that the reasons for the passage of time after K.S.R. was removed from El Salvador, mitigate against allowing Segovia to benefit from the effects of his own actions in wrongfully retaining K.S.R. in the United States.

Segovia presented much evidence that K.S.R. was well-settled in Arkansas. K.S.R. received good grades in school and her artwork was entered into a local contest. Segovia provided pictures of her interacting with family and friends in various situations. Both Rivas and Segovia testified that K.S.R. continued to have frequent contact with her mother. K.S.R. had other family in El Salvador as well, including half-siblings. Therefore, although K.S.R. had, naturally, grown accustomed to her environment in the United States over the past year, she also maintained consistent ties with her habitual residence of El Salvador. The Court had no doubt that K.S.R. would be academically successful in El Salvador. K.S.R., in speaking directly with the Court in camera, with only the judge and a clerk present, expressed that, while she enjoyed living in the United States, she missed her mother. The Court found that Segovia had not met his burden of establishing, by a preponderance of the evidence that the "well-settled defense" should apply in this case and prevent the return of K.S.R.

to her habitual residence of El Salvador. Even had Segovia, been able to establish this affirmative defense, the Court stated that it would find, in its discretion, that ordering K.S.R.'s return would nevertheless be necessary to further the aims of the Convention. The Court noted that Segovia retains Salvadoran citizenship but chose not to avail himself of any judicial remedies available to him in El Salvador to seek custody of his daughter. Instead, he chose to retain his daughter in the United States and seek custody of K.S.R. here. This was precisely the kind of situation that the Convention was designed to discourage.

At the evidentiary hearing, Segovia argued that K.S.R. would be at risk if returned to El Salvador because she may have witnessed an act of domestic violence between her mother and another woman. Rivas denied that any such incident had ever taken place. The Court held that regardless of whether the incident occurred, the type of risk Segovia sought to establish would not rise to the kind of "grave risk" contemplated by the Convention. "[O]nly severe potential harm to the child will trigger this Article 13b exception." Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir.1995). There are two types of grave risk that are appropriate under Article 13(b): sending a child to a 'zone of war, famine, or disease,' or in cases of serious abuse or neglect." (Friedrich II, 78 F.3d at 1060 and Blondin v. Dubois, 238 F.3d 153, 162 (2d Cir.2001)). This exception was not intended to apply to a "return to a home where money is in short supply, or where educational or other opportunities are more limited ... An example of an 'intolerable situation' is one in which a custodial parent sexually abuses the child." 51 Fed.Reg. 10494.

The Court observed that "may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Hague Convention, Art. 13. Pitts, 481 F.3d 1279, 1286 (10th Cir.2007)). A child's expression of a generalized desire to remain in a familiar place, without more particularized objections to being returned, are generally insufficient to invoke the application of this exception. The Court, without making a finding as to whether a seven-year-old may have the sufficient age and maturity to invoke this exception, found that K.S.R. was not of sufficient age and maturity to warrant the application of the exception in this particular case. Furthermore, K.S.R. did not express any particularized objections to being returned to El Salvador during in camera conversation. Therefore, the Court found that application of this exception was not appropriate in this case. Accordingly, Petitioner Dinora del Carmen Rivera Rivas's Petition for Return of Minor Child was granted.

Etienne v. Zuniga, Not Reported in F.Supp.2d, 2010 WL 4918791 (W.D.Wash.) [Mexico][Well-Settled in New Environment]

In Etienne v. Zuniga, Not Reported in F.Supp.2d, 2010 WL 4918791 (W.D.Wash.) Raphael Noel Etienne ("Etienne") filed a petition seeking the return of his two minor children to Mexico. On June 2, 2010, the Court issued findings of fact and conclusions of law and denied the petition for return with respect to E.N. based on her objections to return. The Court found that there was substantial evidence that B.N. was well-settled in the United States. However, the Court reserved judgment on the well-settled issue and other defenses, with respect to B.N., finding it would benefit from the report of a child psychologist, or similar professional, based on his or her interview with B.N. with respect to his life in Mexico, his relationship with his parents, and his life in the United States.

The parties agreed to have Joanne Solchany, PhD, ARNP, a professional who specialized in working with children, interview B.N. and submit her report to the Court. In the Court's June 2, 2010, order containing its findings of fact and conclusions of law, the Court reserved ruling on whether Respondent Beatriz Villarreal Zuniga ("Villarreal") had proven by a preponderance of the evidence that B.N. was well-settled in the United States as defined in Article 12 of the Convention. The Court observed that because the Court concluded that Etienne did not file his petition within one year of the wrongful retention of the children Villarreal was entitled to demonstrate that B.N. should not be returned because they are now settled in their new environment. See Convention, art. 12. The Court now concluded that B.N. was well-settled in the United States . It noted that Courts analyzing this defense have weighed several factors in determining whether a child is "settled" for purposes of this defense. In re B. DEL C.S.B., 559 F.3d 999, 1009 (9th Cir.2009); In re Koc, 181 F.Supp.2d 136 (S.D.N.Y.2001); In re Robinson, 983 F.Supp. at 1346; Zuker, 2 F.Supp.2d at 141. In In re B. DEL C.S.B., the Ninth Circuit adopted a list of six factors it considered relevant to a court's determination of whether a child is now settled in a new environment: (1) the child's age; (2) the stability and duration of the child's residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child has friends and relatives in the new area; (5) the child's participation in community or extracurricular school activities, such as team sports, youth groups, or school clubs; and (6) the respondent's employment and financial stability. In addition to these six factors, the Ninth Circuit decided that, in some cases, a court should consider the immigration status of the child and the respondent. However, the Ninth Circuit in In re B. DEL C.S.B. concluded, as a matter of first impression, that lack of lawful immigration status is not determinative of whether a child is "settled" for purposes of Article 12 of the Convention and such status is relevant only where an "immediate, concrete threat of deportation" exists. "Although all of these factors, when applicable, may be considered in the 'settled' analysis, ordinarily the most important is the length and stability of the child's residence in the new environment."

When Villarreal and the children arrived in Washington in July of 2008, they lived with Villarreal's uncle, Filiberto Zuniga ("Filiberto"). Villarreal and Filiberto had disagreements while she and her children were living with him. On the evening of Thanksgiving day in 2008, Villarreal and the children came back to Filiberto's home and the family would not open the door for them. Villarreal and the children spent that night in a hotel. The next day, they moved into a house. Approximately two weeks later, Villarreal and her children moved into an apartment in Tacoma, Washington. Approximately six months later, Villarreal and her children moved into the apartment in Lakewood, Washington, where they now resided. B.N. was currently in the second grade at a public elementary school in Lakewood, Washington. He was doing well academically in school and had many friends. He enjoyed school, playing with his friends that lived near his apartment, and playing video games. B.N. also very much enjoyed going to church and was active with the church's children's group.

Villarreal had held several part-time jobs since she and the children have lived in Washington. She is not currently receiving any public assistance from Washington, with the exception of medical coupons. She currently earned money by selling jewelry at a swap meet. Villarreal had a petition for asylum pending with the United States Department of Homeland Security and applied for employment authorization from U.S. Citizenship and Immigration Services that, at the time of trial, was still pending approval. At the time of trial, Villarreal had received an offer of employment with an insurance company pending the approval of her application for work authorization.

The Court concluded that the factors weighed in favor of concluding that B.N. was well-settled as defined by Article 12 of the Convention and that Villarreal had shown substantial evidence of B.N.'s significant connections to the United States. Specifically, the Court found that while B.N. was not of an age where his objection to removal was on its own, insufficient to prevent removal, he was of an age and maturity level where he was able to explain his choices and requests and able to make connections to the community in which he lived that the age factor weighed in favor of finding him well-settled. Next, the Court found that while Villarreal and her children have had multiple residences since coming to the United States, the fact that they lived at their current residence for almost two years constituted a stable environment such that this factor weighed in favor of finding B.N. well-settled. Third, B.N. attended the same school and actively participated in the same church for almost two years, both of which weighed in favor of finding him well-settled. Although B.N., and Villarreal, described their relationship with their relatives in the area as somewhat tumultuous, B.N. had a significant amount of friends surrounding his residence as well as friends at his school and church. The fact that B.N. had been able to adapt to the new environment and make friends easily weighed in favor of finding him well-settled. Next, B.N.'s participation in swimming and very active participation in his church's youth group weighed in favor of finding him well settled. Finally, Villarreal's employment and financial stability had been somewhat of an issue, although the children had never gone without basic necessities and she had never received public assistance. Dr. Solchany reported that at the time she interviewed B.N., Villarreal had recently started a job working in a chiropractic clinic. Based on Villarreal's history of employment and financial situation, the Court concluded that this factor was neutral. In addition, the Court concluded that Villarreal's immigration status was not determinative or even relevant, as such status is only relevant if an "immediate, concrete threat of deportation" exists, which has not been shown. In re B. DEL C.S.B., 559 F.3d at 1009. Therefore, the Court concluded that the factors laid out by the Ninth Circuit, when taken as a whole, weighed in favor of concluding that B.N. was well-settled in his new environment.

B.N.'s perspective on his relationships with his parents also weighed in favor of concluding that he is well-settled in the United States as he considered his living situation with his mother his home and he viewed Mexico as a place he would go to visit his father.

The Court concluded that B.N. was "well-settled" in the United States as defined by Article 12 of the Convention. Etienne's petition, with respect to B.N., was denied based on his being "well-settled" in the United States.

Ozgul v. Ozgul, Not Reported in F.Supp.2d, 2010 WL 3981238 (D.Colo.) [Germany] [Habitual Residence]

In Ozgul v. Ozgul, Not Reported in F.Supp.2d, 2010 WL 3981238 (D.Colo.) Petitioner Mustafa Ozgul brought an action pursuant to the International Child Abduction Remedies Act ("ICARA") seeking an order requiring Respondent to return their four-year-old child to Germany. Petitioner Mustafa Ozgul, a Turkish citizen and permanent German resident, and Respondent Jennifer Arlene Ozgul, a dual citizen of the United States and Germany, were married on October 23, 2006, in Colorado. Their son, Kaan Mete Malik Ozgul, was born on December 6, 2006, in Colorado Springs. In May 2007, the Ozguls moved to Neumarkt, Bavaria, Germany, and resided there until Respondent returned to Colorado, with Kaan, in December of 2009.

Respondent initiated divorce and custody proceedings in El Paso County in Colorado Springs in April of 2010.FN2 Petitioner responded by filing under the Treaty for Kaan's return through the German and American Central Authorities. There were there are no existing custody orders or agreements between the parties, and no proceedings other than these pending in any other court or tribunal. Since there was no formal custody order or agreement between the parties the rights and responsibilities to make legal decisions for the child were presumed to be shared in this case. Petitioner contended he exercised this right in Germany by allowing Kaan to visit the United States with his mother and that Respondent violated it by remaining in the United States longer than they had agreed.

The District Court found that Kaan child lived in the United States for the first six months of his life. He moved with his parents to Germany at that time, and lived there for two and a half years. He resided in the United States since his mother decided to take him from Germany ten months ago. The determinative factor in deciding whether Germany remained Kaan's habitual residence was the intention of the parties when they left the United States and moved to Germany. If they intended to create a home there permanently or for an indefinite period of time, Germany was the child's habitual residence. See In re Morris, 55 F.Supp.2d 1156, 1161 (D.Colo.1999) (Babcock, J.) ("Where the duration of a stay in a foreign country is intended to be indefinite, the habitual residence of a child is usually in that foreign country"). If, however, they manifested a different intent, by leaving possessions behind or otherwise evincing an intent to return to the United States after a short stint in Germany, the United States may still be the child's habitual residence. The Court found that the parties intended to create their home in Germany when they left when Kaan was six months old, and intended to remain there indefinitely. Kaan lived in Germany for most of his young life, where his parents leased an apartment, and where his father was and remained employed. Respondent was not employed outside the home in Germany, and was not currently employed in the United States. There was no intent to change that residence when Respondent left for the United States ten months earlier, and Respondent's refusal voluntarily to return him to Germany was in contravention of his father's equal custodial rights. In this regard, Respondent's removal of the child was per se wrongful.