In Felder v. Ponder, 2012 WL 3128570 (D.Mass.) Petitioner Claudia Felder sought an order for the return of her fourteen year-old daughter ( "K.W."), to Switzerland. Felder claimed the wrongful retention of K.W. under the Hague Convention by Respondent Alexandra Ponder, K.W.'s godmother, Patrick Wetzel, K.W.'s father, and Children's Hospital Corporation where she had been treated. The District Court granted Wetzel’s motion to dismiss for lack of subject matter jurisdiction.
K.W. was a citizen of Switzerland. When K.W.'s parents divorced in August 2007, the Uster District Court in Switzerland granted Felder custody of K.W. and her two sisters. Ponder was K.W.'s godmother; she and Felder had known each other for over twenty years. In September 2011, Felder sent K.W. to the United States to study at Central Catholic High School in Lawrence, Massachusetts. Felder agreed to have Ponder, a resident of Haverhill, Massachusetts, care for K.W. while she attended
school in the United States. Although she resided here during the school year, K.W. flew back to Switzerland for approximately one week in December and returned to school on January 3, 2012. At some point, Ponder began complaining about K.W.'s behavior and expressed doubts about her ability to continue caring for K.W. On May 19, 2012, K.W. attempted suicide. This attempt came on the heels of Felder's suggestion that K.W. should return to Switzerland. K.W. was taken to the emergency room at Holy Family Hospital in Methuen, Massachusetts. She was subsequently admitted to the inpatient psychiatric unit at Children's Hospital. Ponder notified Felder of K.W.'s emergency hospitalization and Felder agreed that K.W. should receive immediate medical care to ensure her safety and well-being. Throughout the first three weeks of K.W.'s hospitalization, Felder monitored K.W.'s progress through Ponder and the medical team at the Hospital. After K.W. had been hospitalized for about three weeks, medical staff proposed that K.W. be discharged from the Hospital to McLean Hospital, a psychiatric facility, in Belmont. After consulting with medical professionals in Switzerland, Felder proposed that K.W. be transferred back to Switzerland for further treatment. Felder and K.W.'s physician in Switzerland advised the Hospital staff that they would take responsibility for K.W.'s health and safety and would personally accompany K.W. back to Switzerland. On June 7, 2012, Felder was contacted by a social worker of the Hospital and informed that K.W. could not return to Switzerland. By mid-June, Ponder and Felder's relationship had broken down and Ponder no longer responded to Felder's inquiries about K.W.
.On June 17, 2012, Felder refused to give her consent to Ponder's request for guardianship over K.W., including an order that K.W. remain in the United States, and told Ponder that any prior consent to temporary guardianship had been terminated. On June 20, 2012, Felder traveled to Boston and informed Ponder that she was revoking her temporary role as K.W.'s guardian. On the heels of K.W.'s suicide attempt, K.W.'s father, Wetzel, contacted the City of Lucerne Switzerland, Office of Guardianship Authority concerning his daughter's situation. The Guardianship Authority issued an order by letter dated June 21, 2012 to Felder, stating that the "endangerment of [K.W.] can only be avoided by withdrawing your right to determine the place of residence of [K.W.], or concretely the parental custody right.". The Guardianship Authority issued its precautionary decision withdrawing Felder's parental custody rights, ordering that K.W. continue to be hospitalized for further treatment at Children's Hospital and prohibiting Ponder from removing K.W. from the clinic at that time. Ponder then sought and obtained temporary guardianship over K.W. in Essex County Massachusetts Probate and Family Court on June 25, 2012. On June 27, 2012, Felder requested reconsideration of the Guardianship Authority's June 21, 2012 decision withdrawing her custody rights and requested "its complete repeal."
On July 10, 2012, Felder filed a Hague Convention petition for K.W.'s return to Switzerland, claiming the wrongful retention of K.W. under the Hague Convention by Ponder, Wetzel and Children's Hospital The following day, the Swiss Guardianship Authority issued a letter stating that it "always has jurisdiction over child protection matters" but that "since [K.W.] has resided in America for almost one year, this is a matter of international concern ... the authorities at the place of residence of the child have subject-matter jurisdiction...." The letter further stated that "[b]y the decision of June 25, 2012, the Essex Probate and Family Court ... appointed Alexandra Ponder as the preliminary custodian of [K.W.]. The American authorities thus acknowledged their jurisdiction due to residency and ordered the child protection measures they deemed necessary" and that because of that decision "the basis for the continuation of the child protection proceedings by the Lucerne guardianship office ... ceases to exist" and "the precautionary decision [of June 21, 2012] is to be repealed."
The same day the Swiss Guardianship Authority issued this decision, Felder filed an emergency motion to vacate Ponder's guardianship of K.W. in Probate and Family Court, which was denied. In rendering its decision, the Probate and Family Court reasoned that "the best evidence" before it demonstrated that Felder's "custody rights have been withdrawn" and that the last letter by the Guardianship Authority, does not make clear that those rights "had been reinstated."
On July 12, 2012, the District Court of Lucerne in Switzerland dismissed Felder's complaint against the Guardianship Authority regarding its June 21, 2012 ruling. The Court found that "[w]ith the repeal of the precautionary ruling handed down June 21, 2012, the revocation of the complainant's parental custody ordered by the custodianship authorities of Lucerne becomes obsolete. The complainant no longer has any legally protected interests in continuing the proceedings before the Lucerne District Court. This shall not affect any child protection actions offered by the U.S. authorities."
On July 16, 2012, Ponder filed her verified answer in the Federal District Court, and Wetzel moved to dismiss for lack of subject matter jurisdiction. The Court held a hearing on the matter on July 20, 2012.
Felder argued that K.W.'s habitual residence was Switzerland. The Court observed that the determination of a child's habitual residence "begins with the parents' shared intent or settled purpose regarding their child's residence." Nicolson, 605 F.3d at 104 & n. 2. It was undisputed that K.W. was born and raised in Switzerland and that both of her parents still resided there. K.W. also resided in Switzerland until she came to the United States with her mother's permission to attend school. Felder had custody of K.W. since August 2007 and allowed her to come to the United States to attend Central Catholic in Lawrence, Massachusetts, arranging that Ponder would care for K.W. while she studied here. Shortly after purchasing K.W.'s tickets for travel to the United States in August 2011, Felder booked her return flight to Switzerland for July 12, 2012. She also flew back home to Switzerland in late December between the fall and spring semesters. Based on this record, even focusing, as the Court must, on where the child was habitually resident immediately before the alleged wrongful retention in June 2012, Felder's intent and settled purpose was that K.W.'s habitual residence would
remain in Switzerland even as she allowed K.W. to attend school in the United States. Although Ponder and Wetzel claimed that K.W.'s habitual residence was now the United States, the record did not support this contention. Even if the Court credited the Defendants' contention that Felder had acquired a four-year student visa for K.W. to attend school in the United States, such fact did not negate Felder's intent or settled purpose that K.W. would temporarily attend school here but retain a habitual residence in Switzerland. See Poliero v. Centenaro, 373 Fed. Appx. 102, 105-106 (2d Cir.2010) (finding that children's expressed preference for staying in the United States and their schooling for one year in New York did not alter intention that children's habitual residence remain Italy). This was not a case in which "the evidence points unequivocally to the conclusion that the child had become acclimatized to [her] new surroundings and that [her] habitual residence has consequently shifted," Poliero, 373 Fed. Appx. at 105, to the United States. "This is a difficult test to satisfy, and a child's habitual residence will only be found to have shifted due to acclimatization, if the child's relative attachments to the [the two possible habitual residences] have changed to the point where requiring return to the original forum would not be tantamount to taking the child out of the family and social environment in which its life has developed." The evidence here did not not unequivocally demonstrate that K.W.'s acclimatization to the United States had become so complete that returning her to Switzerland would be equivalent to taking her out of a family and social environment in which her life has developed. K.W. returned to Switzerland between the fall and spring semesters to spend time with her Mother and sisters, and there was no suggestion that since returning to the United States for her spring semester, she had not maintained regular contact with her family and friends in Switzerland, despite the allegedly volatile relationship between K.W. and her mother. Thus, it could not be said that K.W.'s habitual residence shifted to the United States.
The Court pointed out that although Felder was granted sole custody of K.W., as part of her divorce decree by the Uster District Court in Switzerland in August 2007, the Swiss Civil Code grants the Guardianship Authority the authority to determine parental custody rights in all matters apart from divorce decrees or modification of same. Under the Swiss Civil Code, the Swiss courts have jurisdiction to amend court orders regarding custody awards and child protection during divorce proceedings, proceeding to alter a divorce decree or in proceedings to modify measures for the protection of the marital union, but "[i]n all other cases jurisdiction lies with the guardianship authorities."Swiss Civil Code, art. 315b. Accordingly, the Guardianship Authority had the power to withdraw parental custody from a parent. Art. 307, 310-312. As of June 21st, the Guardianship Authority took the action that it was empowered to take and revoked Felder's parental custody. However, the Guardianship Authority did take further action after June 21, 2012, but its subsequent rulings did not unequivocally reinstate her custody rights. The Court agreed that the June 21, 2012 decision withdrawing Felder's custody rights over K.W. was a provisional, emergency ruling given the urgent situation involving K.W.'s hospitalization in the United States. The Guardianship Authority's July 11, 2012 letter explained that its previous decision to withdraw Felder's custody rights was based on the information it had at the time that Felder wanted to remove K.W. from the hospital against doctors' recommendations and that at the time of its decision, no Massachusetts court had exercised jurisdiction over the matter to ensure K.W.'s health and safety given the exigency of the situation. The letter explained that because the Probate and Family Court ordered child protection measures for K.W. in appointing Ponder as her temporary guardian on June 25, 2012, after the Guardianship Authority's June 21, 2012 decision, a Massachusetts court had now exercised jurisdiction over the matter, and, as a result, there was no longer a need for the child protection measures the Guardianship Authority had implemented in its June 21, 2012 decision and it repealed that decision. That the Guardianship Authority withdrew its June 21, 2012 order in light of the proceeding in Probate and Family Court, in which Ponder was appointed as a temporary guardian, did not mean that Felder retains her custodial rights. There was no affirmation by the Guardianship Authority of Felder's custody rights even in light of its knowledge of the Probate and Family Court proceedings in which Ponder was appointed as K. W.'s temporary guardian. In the absence of confirmation by the Guardianship Authority that Felder retained her custodial rights, the Court found that Felder failed to show, by a preponderance of evidence, the wrongful retention of K.W. in the United States.
Felder's counsel urged the Court to obtain from Swiss authorities pursuant to Article 15 of the Hague Convention"a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, ...." The Court stated that making such a request is at the discretion of the Court and, given both the emergency nature of the Petition and the rulings of the Guardianship Authority in Switzerland, the last of which deferred to Probate and Family Court's ongoing proceedings regarding K.W., the Court declined to make such request.
Saturday, August 4, 2012
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.
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.
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.
Sunday, July 29, 2012
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.
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