Patrick v. Rivera-Lopez, 2012 WL 5462677 (D.Puerto Rico) [England] [Rights of Custody]

In Patrick v. Rivera-Lopez, 2012 WL 5462677 (D.Puerto Rico) Petitioner Lisandro Patrick was a national of the Dominican Republic and a Dutch citizen, who was permanently residing in the United Kingdom (England) when he filed a petition under the Hague Convention for the return of minor child L.N.R. in June 2012. Petitioner claimed respondent Noelia Rivera-Lopez, the mother of the infant, wrongfully removed L.N.R. on March of 2012 from England to Puerto Rico without petitioner's consent.

 
Petitioner Patrick and respondent Rivera-Lopez were married on June 8, 2010, in Lajas, Puerto Rico, after L.N.R. had been born. Petitioner Patrick submitted that, upon their marriage, he moved to England to set up a family home where respondent and her minor children joined him by January 11, 2011. Petitioner Patrick alleged the parties were all permanent residents of the United Kingdom where petitioner had been employed as a sales assistant, while he was attempting to convert his teaching qualifications so that he could begin working as a primary school teacher in the United Kingdom. Petitioner Patrick submitted that, since January of 2011, all the parties have been living in the United Kingdom as a family until March 6, 2012 when respondent Rivera-Lopez wrongfully removed the child L.N.R., and together with her older child, moved back to Puerto Rico. After several attempts to contact respondent, by March 11, 2012, she notified petitioner they would not be returning to the United Kingdom.

On June 22, 2012, petitioner Patrick filed an action under the Hague Convention. Respondent Rivera-Lopez filed a Motion to Dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The most relevant ground for dismissal of the petition was that he was not exercising the rights of custody or its equivalent in that he had not been granted parental responsibility as to minor L.N.R.

The district court observed that a petition needs to first comply with the requirements set up in the Hague Convention prior to federal court having jurisdiction on the claim. The Court agreed with respondent that petitioner failed to comply with the requirements of wrongful removal under the Hague Convention inasmuch as respondent was not exercising the rights of custody or its equivalent in that he had not been granted parental responsibility as to minor L.N.R. and granted the motion to dismiss.

The Court pointed out that Petitioner Patrick presented with the petition, and respondent included in the motion to dismiss, an affidavit where petitioner acknowledged, prior to L.N.R.'s birth, that the child, male or female, who was to be born from respondent was his. At the time, petitioner indicated he was domiciled in Puerto Rico. It was acknowledged that petitioner Patrick never registered L.N.R. as his daughter after her birth, during their marriage nor prior to the filing of the petition.

Respondent acknowledged petitioner and respondent were the natural parents of the minor L.N.R. and during her stay in England with her two children, they were residing with petitioner Patrick in the same place. The Court held that petitioner Patrick had to establish having rights of custody over L.N.R. that would allow the filing of the petition for return of the child under the Hague Convention to be proper. Respondent argued there was no parental responsibility agreement between the parties nor was there any action commenced where petitioner Patrick requested parental responsibility, guardianship or residence order as to the child. It was uncontested that respondent Rivera-Lopez was the mother of minor L.N.R., who was born in the year 2009 in the city of Mayaguez, Puerto Rico, and who was registered with the Puerto Rico Demographic Registry solely as the child of respondent Rivera-Lopez.

The Court did not need to hold a hearing to determine the child's habitual place of residence because, taking the averments of the petition as true under the motion to dismiss standard, it considered England to be the habitual place of residence of the child immediately prior to her alleged removal. Thus, it used the laws of England to
construe rights of custody of petitioner Patrick over minor L.N.R. The Court found that under the laws of England petitioner did not establish having rights of custody/ parental responsibility over minor L.N.R. Although the laws of England since the key
changes of the Children Act of 1989 were implemented, abandoned the notions of
rights of custody, there are equivalent residence orders and contact orders proceedings to determine any dispute between parents regarding their minor children and these orders encompass the parental responsibility predicate. For purposes of this petition, the law of England refereed to England and Wales.

The Court observed that when a father and a mother are married to each other at the time of the birth of the child, their joint parental responsibility is established at the time of the child's birth. This was not a factual predicate as to petitioner Patrick for at the time of birth of L.N.R. in 2009 they were residents of Puerto Rico and they were not married. Even had the parents been in England at such time, they were still not married until 2010. English law provides: [w]here a child's father and mother were not married to each other at the time of his birth- (a) the mother shall have parental responsibility for the child; (b) the father shall not have parental responsibility for the child, unless he acquires it in accordance with the provisions of this Act. Children Act 1989 (c.41) Part I, s 2(2). Although the Children Act does not employ the word "custody" as a legal term of art, it provides in relevant part that: "[w]here a child's father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child," which is defined as "all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property." Children

Act ss 2(1), 3(1) (emphasis added); see Haimdas v. Haimdas, 720 F.Supp.2d 183 (E.D.N.Y.,2010). The most likely way to acquire parental responsibility between unmarried parents after a child's birth is being named as a father in the child's birth certificate. See Amendment to the Children Act of 1989 as reflected in the Adoption and Children Act of 2002, effective in December of 2003. It was undisputed that petitioner Patrick did not appear as the father of minor L.N.R. in her birth certificate. Minor L.N.R. was registered solely in the birth certificate issued in 2009 in Mayaguez, Puerto Rico, by the mother, respondent. Another way to acquire parental responsibility by a father is to make a formal parental responsibility agreement with the mother, which has to be made in the form prescribed under the laws of England and be signed before a court officer. Children Act of 1989 P 4(1)(b). No such formal agreement or court officer documented form had been presented in regard to the parental responsibility of petitioner Patrick. The law of England also allows two other means for unmarried fathers to acquire parental responsibility, that is, by having a parental responsibility order made in his favor under Section 4(1)(c) of the Children Act of 1989 or by having a residence order made wherein a separate Section 4 parental responsibility order must be made. Children Act of 1989, P 12(1).FN13 None of those means were used by petitioner Patrick in this case to acquire parental responsibility of L.N.R.

The inquiry did not end here. The Court examined whether the subsequent
marriage of petitioner Patrick and respondent Rivera-Lopez was sufficient to establish the necessary parental responsibility determination as to minor L.N.R. A stepfather who has married a woman with children may be able to obtain parental responsibility determination under the Adoption and Children Act of 2002 which prospectively is considered to have amended the Children Act of 1989. When parents are unmarried or those who were married after the birth of a child, a father may acquire parental responsibility by being registered as the child's father under the Children Act of 1989, as provided by subsections (1A); or if the father and the child's mother make an agreement providing for parental responsibility of the child or if the court on his application orders that the father shall have parental responsibility. Where the birth was registered after December of 2003, parents will have joint parental responsibility if the details of both parents and their signatures are shown in the child's birth certificate.

None of these situations were present in the instant case.

 The Court held that petitioner Patrick failed to establish a prima facie case of wrongful removal under the Hague Convention inasmuch as he had not established that his custody rights were breached and that he was exercising the custody rights at the time of removal.

Petitioner's reply to the motion to dismiss juxtaposed that, as present residents of England, the laws of Puerto Rico would have concluded that upon the parties' subsequent marriage after the birth of L.N.R. on June 8, 2010, when they were
domiciled in Puerto Rico, the illegitimate child would have been legitimated by virtue of the marriage. Thus, the child was to be considered also legitimate under English law and petitioner as the legitimate father would have rights of custody to such a legitimated child. Petitioner referred to law of England at Legitimate Act of 1976, Part 1, Section 3 which provides that: where parents of an illegitimate person marry one another and the father of the illegitimate person is not at the time of marriage domiciled in England and Wales but is domiciled in a country by the law of which the illegitimate person became legitimated by virtue of such subsequent marriage, that person, if living, shall in England and Wales be recognized as having been so legitimated from the date of the marriage.

The district court found that the laws of Puerto Rico did not validate petitioner's averment as to a legitimated child, because a subsequent marriage would not automatically grant a child or children the paternity of the man who thereafter married the mother. Puerto Rico's legislative system allowed no room for liberal interpretation regarding facts of life recorded in Vital Statistics Registry of Puerto Rico and exceptions in its Sections 1041et seq. must be construed restrictively. See Leon Rosario v. Torres, 109 D.P .R. 804 (1980). The marriage of two individuals, whose children had been born prior to their marriage, who have not been registered by both contracting parties as theirs, will not be automatically considered as begotten by the married couple prior to such a marriage. Puerto Rico law requires that the recognition of a natural child be made in a public document or in an affidavit, and upon the presentation of the document or affidavit, the keeper of the Register of Vital Statistics would proceed to register it, and, for that purpose, the corresponding certificate of registration must be filled out. See Ramos v. Rosario, 67 P.R.R. 641 (1947).

Petitioner Patrick never presented to the Puerto Rico Vital Statistics Office the affidavit referred to in his petition where he claimed having recognized the minor L.N.R. who was to be born from respondent Rivera Lopez. For these reasons the court was not in a position to recognize whether the document would be considered as establishing, without more, the paternal rights of petitioner Patrick under Puerto Rico laws or if it would have been accepted as sufficient by the keeper of the Register to recognize L.N.R. as the child of petitioner and respondent. Petitioner did not go either to the Demographic Registry in Puerto Rico to recognize L.N.R. as his daughter following the readily available established procedure for a father to recognize a child as his son or daughter.

The Court dismissed the petition finding that Petitioners parental rights had not been previously established for the Court to exercise its limited jurisdiction under the Hague Convention.

Rodriguez v. Sieler, 2012 WL 5430369 (D.Mont.) [Mexico] [Habitual Residence] [Grave Risk of Harm] [Article 20]

[Mexico] [Habitual Residence] [Grave Risk of Harm] [Article 20]

In Rodriguez v. Sieler, 2012 WL 5430369 (D.Mont.) Rocio Jatsuel Chavez Rodriguez's filed a Petition for return. Rodriguez was a Mexican citizen who resided in the State of Nayarit, Mexico, most of her life. She recently moved to the State of Jalisco. Sieler was a United States citizen and resided in Kalispell, Montana. Rodriguez and Sieler met in Nayarit in 1996 when Sieler began doing mission work there through a church. They were married by the church there on May 5, 1999, and were married legally in Kalispell on December 4, 1999. For the next several months, Rodriguez and Sieler lived in Kalispell with Sieler's parents. During this time, Rodriguez was granted temporary residency in the United States, and the couple raised funds from local churches so that they could return to Nayarit to build a church. Rodriguez and Sieler returned to Nayarit in September 2002. They lived together in the house of Rodriguez's parents for the first few years while building a church, and in 2005, a home, in the town of Ursulo Galvan. Sieler was a pastor in the church and Rodriguez worked as a schoolteacher. Their monthly support check from the church was deposited in a joint checking account at the Mountain West Bank in Kalispell, Montana, and both Sieler and Rodriguez paid taxes to the IRS and the Montana Department of Revenue. In 2003, Sieler filed for an "FM3" as a non-immigrated visitor to Mexico doing religious work. During the same year, Rodriguez was granted permanent resident status in the United States. Thereafter, Rodriguez and Sieler returned to the United States annually for four to six weeks at a time, usually during the summers. Sieler testified that as a missionary, he knew his stay in Mexico would not be permanent. However, Rodriguez testified that they never agreed how long they would reside in Nayarit and that she did not believe a move was imminent because Sieler had told her that he had been called to serve in Mexico. Sieler's and Rodriguez's son, P.A.S.C., was born in Mexico on December 20, 2004; he was now 7. C.J.S.C. was born on March 23, 2009; she was now 3. Both children were registered as United States citizens born abroad and issued American passports. However, they lived in Ursulo Galvan with both their parents their entire lives, except for the few weeks a year that the family visited Kalispell. They lived close to Rodriguez's parents and siblings, with whom they spent significant time, and P.A.S.C. attended preschool and primary school there.

In July and August of 2011, the family made their typical summer trip to Kalispell.
Sieler testified that at this time, he had begun to seriously consider moving the family
back to Montana. During the visit, he decided he was going to move. Rodriguez testified that he did not tell her of his plan during this visit and that she would not have agreed to the move. Sieler insisted he did tell her his intention and that while she was not angry, she was not happy about it either and that she neither said she would or would not come with him. The family returned to Mexico on August 20, 2011. Two days later, Sieler's father passed away, and Sieler returned to Kalispell to help settle his family's affairs. Rodriguez and the children joined him in late September, expecting to help out for a couple of months and then to return to Mexico. Rodriguez testified that it was at this time that Sieler first told her he planned to move to Montana permanently. She denied ever agreeing to move or to allow the children to move to Montana. Sieler confirmed that Rodriguez never said she wanted the children to move to Montana permanently, although in his affidavit before the state court, he suggested that Rodriguez was helping him prepare for a permanent move. The parties agreed that the proposed move caused or amplified tensions in their marriage that fall. Rodriguez returned to Mexico with C.J.S.C. on December 25, 2011, because her sister was ill. Sieler and P.A.S.C. returned to Mexico a month later. P.A.S.C. re-enrolled in school in Nayarit.

The problems in Sieler's and Rodriguez's marriage continued in Mexico. For the next four months, Sieler continued to advocate moving the family to Kalispell, and Rodriguez continued to resist his plan. She began contemplating separation. On May 7, 2012, still in Nayarit, during an argument, it appeared that Rodriguez suggested that Sieler could take P.A.S.C. and that she could take C.J.S.C. if they separated. Sieler contended she meant that he could take P.A.S.C. to the United States permanently. Rodriguez denied she gave permission for Sieler to permanently remove P.A.S.C. from Mexico or her care. She testified that she meant that a short separation might help them resolve their difficulties and that they could each take care of one of the children during that separation. When Rodriguez awoke the next morning, Sieler and both children were gone. She went to one of Sieler's fellow missionaries who told her that Sieler had taken P.A.S.C. and C.J.S.C. and left for the United States. Sieler finally contacted Rodriguez from Kalispell and informed her that neither he nor the children were returning to Mexico. Rodriguez did not agree to that arrangement. Within days, Sieler initiated dissolution and custody proceedings in Kalispell, and Rodriguez made efforts through the Mexican and United States consulates in Guadalajara, Jalisco, Mexico, to initiate return proceedings. Rodriguez's efforts resulted in the present case. The state court proceedings in Kalispell were stayed pending resolution of this petition.

The district court found that the habitual residence of both children was Mexico. "Being habitually resident in a place must mean that you are, in some sense, 'settled' there-but it need not mean that's where you plan to leave your bones." When determining a child's habitual residence, the Court must consider "the parents' present, shared intentions regarding their child's presence." Their intentions may be express or inferred through their actions. Where it is alleged that a child has acquired a new habitual residence, the Court must find the parents shared a "settled intention to abandon" the prior habitual residence. Mozes v. Mozes, 239 F.3d 1067, 1073 (9th Cir.2001) The habitual residence of both P.A.S.C. and C.J.S.C. was Mexico, where they were born and raised. Both children resided in Ursulo Galvan in a house with their parents from the time they were born until they were removed to the United States by their father. Their family on their mother's side was in Nayarit, and P.A.S.C. attended preschool and primary school there. Though C.J.S.C. was very young, she was born in Mexico while her parents were habitually resident there. Thus Mexico was her initial habitual residence, and no circumstances had changed that. The children visited Kalispell, Montana, on summer vacations and when their paternal grandfather passed away, but they always returned to Mexico, and their parents never mutually agreed that they should move to Montana. Mexico provided the family and social environment in which the children's lives developed.

Sieler emphasized that the work of a missionary is often transient, and that Rodriguez knew this when they were married. He also noted that the children were American citizens and that Rodriguez was a permanent resident of the United States, which requires a person to plan to reside permanently in the United States at some future point. He suggested that Rodriguez may have been equivocal at times about whether she would eventually agree to move the family to Montana. These facts did not alter the Court's conclusion, however. The decision to alter a child's habitual residence cannot be accomplished through wishful thinking alone or by unilateral action. Mozes v. Mozes, 239 F.3d 1067, 1073 (9th Cir.2001) It was evident from both parties' testimony that when it came down to it, Rodriguez refused to move to the United States though Sieler insisted. Nor did she ever expressly or through her actions indicate that she intended either child to move permanently to the United States in May 2012. There was no evidence she made arrangements to move herself or the children to the United States, and she consistently expressed disagreement with Sieler's intention to move.

Even if, during their argument on May 7, 2011, Rodriguez gave Sieler permission to take P.A.S.C. to the United States, the consent of the parent left behind "is not usually enough to shift" the child's habitual residence absent other circumstances from which  the Court can infer a shared intent that the child abandon the previous habitual residence. Rodriguez denied any intent to allow the move to be permanent, and her testimony was entirely credible. It was not reasonable for Sieler to take Rodriguez's statement as permission to take either or both children from the country and her care permanently. Moreover, when Rodriguez woke to find the children and Sieler gone, she immediately objected and persistently sought their return ever since. There was no evidence of a "shared, settled intent" that the children abandon their habitual residence of Mexico for a new habitual residence in the United States.

There was no parenting plan, judicial or administrative decision, or other agreement regarding custody of P.A.S.C. and C.J.S.C. Thus, the law of the children's habitual residence, Mexico, governed the question of whether Rodriguez has custody rights over the children. The Court observed that custody law in Mexico is based on the concept of "patria potestas " or "patria potestad." Patria potestas is common to all of Mexico's states, including Jalisco, where Rodriguez was currently residing, and Nayarit, where the children were born and raised. Patria potestas governs the relationship between parents and their children, conferring upon both parents, jointly, the broadest possible right over their children's care, custody, and well-being. Title 8, ch. 1, art. 406

Nayarit Code. The patria potestas right has consistently and rightly been recognized as a right of custody under the Hague Convention. The term "right of custody" is construed broadly under the Convention, and, in both Nayarit and Jalisco, the right of patria potestas clearly encompassed the right to care for a child and determine the child's residence, see Nayarit Civil Code, art. 405, doc. 6-3 ("Parental authority/responsibility (patria potestas ) is to be exerted over the children themselves as well as over their assets and is instituted for their care and protection."); Ramirez, 2012 WL 606746, (citing Jalisco Civil Code, art. 581). Additionally, the Nayarit Civil Code specifically provided that a child shall not leave the parents' residence without their permission, and in Jalisco as well, both parents must consent to the removal of the child from the country. Ramirez, 2012 WL 606746.

Once custody rights are established, it is presumed that a person who has care of her child is exercising her custody rights, and it is the respondent's burden to prove otherwise. Convention, art. 13(a). There was no evidence presented that Rodriguez was not exercising her custody rights at the time the children were removed from Mexico in May 2012 or that she had lost those rights and responsibilities under articles 435 or 436 of the Nayarit Civil Code. Moreover, the children were living with both parents, as they had throughout their lives, up through the morning of their departure, and they were cared for by both Rodriguez and Sieler. Accordingly, Rodriguez established that she had joint custody rights over P.A.S.C. and C.J.S.C. under Mexican law and that she was actually exercising those rights at the time of their removal. Alleging that the P.A.S.C. and C.J.S.C. were removed from Mexico without her consent, Rodriguez established a prima facie case that there removal and retention in the United States was wrongful.

The Court held that respondent did not show by a preponderance of the evidence, that the petitioner "consented to or subsequently acquiesced in the removal or retention" of the children from their habitual residence. He removed both P.A.S.C. and C.J .S.C. from Mexico without Rodriguez's consent. He did so secretly, while Rodriguez was sleeping, and prevented her from learning of his plan until he was already out of the country. Sieler admitted that he did not have permission to take C.J.S.C. out of the country. However, he insisted that Rodriguez consented to his removal of P.A.S.C. based on her alleged statement, just hours before he took P .A.S.C. from the country, that they could separate and he could take care of P.A.S.C. and she could take care of C.J.S.C. This statement, made during a late-night argument, was not sufficient to establish consent to P.A.S.C.'s removal from Mexico. There was no evidence the couple shared an understanding that P.A.S.C. would thenceforth live in the United States with Sieler. Even if this disputed and broad statement could be construed as consent to take P.A.S.C. out of the country, Rodriguez immediately and vehemently objected to Sieler's retention of P.A.S.C. in the United States and his intent to keep both children here permanently. Rodriguez's efforts to negotiate some settlement about the children's care and custody, despite Sieler's unilateral actions, could not be construed as acquiescence in P.A.S.C.'s continued retention in the United States, particularly as no agreement was reached and Rodriguez persisted in her efforts to have both children returned to Mexico. The Court held that P.A.S.C. and C.J.S.C. were wrongfully removed from Mexico, in violation of Rodriguez's custody rights, on May 8, 2012 when Sieler took them out of the country or, at the latest, were wrongfully retained in the United States when Rodriguez objected to Sieler's plan to keep them in the United States permanently.

Sieler urged the Court to apply the grave risk of harm exception here based on increased violence in Mexico due to drug cartel activity. The once quiet State of Nayarit was under military control due to the cartels, there were bodies hanging off overpasses; random shootings throughout the city; and ambushes at police check points. Sieler's sister-in-law was caught in a shooting at the grocery store in which 8 people were killed and many others wounded. Kidnappings, home invasions, and robberies greatly increased. The same sister -in-law was later robbed at knife point in her home, which was close to the children's grandparents' house where Rodriguez and the children spent a significant amount of time. Additionally, Sieler alleged that his brother-in-law might be involved in a drug cartel and that the house across from the family's home in Ursulo Galvan is a "drug house." Finally, he noted that houses in Nayarit as well as the rest of Mexico typically have reinforced doors and bars on the windows and that children are taught in school what to do if a shooting takes place. Sieler indicated that he had read about the general increase in violence in newspapers of general circulation and warnings from the United States Department of State, and that he had heard stories of kidnappings and other incidents from church members and friends. Rodriguez testified that much of the violence Sieler described had occurred in Tepic, the capital of Nayarit, which was two and half hours from Ursulo Galvan.

The Court pointed out that like the other exceptions," the grave-risk exception is " 'drawn very narrowly lest its application undermine the express purposes of the Convention, to effect the prompt return of abducted children. The risk must be "grave, not merely serious," and the exception should only be applied in "extreme cases,". Educational or economic opportunities or other such advantages are not appropriate considerations under the grave-risk inquiry. Blondin v. Dubois, 238 F.3d 153, 161-62 (2d Cir.2001); Cuellar, 596 F.3d at 511. Additionally, "because the Hague Convention provides only a provisional, short-term remedy in order to permit long-term custody proceedings to take place in the home jurisdiction, the grave-risk inquiry should be concerned only with the degree of harm that could occur in the immediate future." Gaudin, 415 F.3d at 1037. The Sixth Circuit has held that a grave risk of harm can be found "when return of the child puts the child in imminent danger prior to the resolution of the custody dispute, e.g., returning the child to a zone of war, famine, or disease." Friedrich v. Friedrich, 78 F.3d 1060, 1069 (6th Cir.1996). Courts have construed this standard narrowly, in conformance with the goals of the Hague Convention. In Silverman v. Silverman, for example, the Eighth Circuit rejected the district court's finding that Israel constituted a "zone of war" warranting the application of the grave-risk exception, holding that there must be "specific evidence of potential harm to the individual children." 338 F.3d 886, 900 (8th Cir.2003). Allegations of "general regional violence, such as suicide bombers, that threaten everyone in Israel" were "not sufficient."

The Court observed that at least two district courts have considered facts strikingly similar to those alleged by Sieler. In Vazquez v.. Estrada, the district court rejected the respondent's argument that returning the child to Monterrey, Mexico, would expose her to a grave risk of physical harm due to the "'spiraling violence and surge in murders in Monterey' and because of 'specific violent acts that have been committed in the school [the child] attended in Monterrey and in the neighborhood where Petitioner resides.' " 2011 WL 196164, *5 (N.D.Tex. Jan. 19, 2011). A surge of violent activity, drug cartel activity, and a dangerous neighborhood were not sufficient to find that Monterrey was a "zone of war." Likewise, the district court in Castro v. Martinez held that the respondent failed to allege a grave risk when he alleged, among other things, that the area was burdened by drug cartel activities, the child had seen a Mexican police officer arrest and possibly beat an individual; the petitioner's home was unsafe; the child possibly saw violent acts in Mexico; and one or more of the mother's relatives may be members of a "gang cartel." --- F.Supp.2d ----, 2012 WL 359901, *2 (W.D.Tex. Feb. 2, 2012). The Court held that respondent did not meet the burden of proving a grave risk or intolerable situation by clear and convincing evidence.. He did not present "specific evidence of potential harm to the individual children" and most of his concerns were based on second- and third-hand accounts of violence in the region.

  A court is not required to return a child to its habitual residence when the return
"would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. Art. 20. The exception is construed even more narrowly than the grave-risk exception. Sieler contended the exception applied because "[t]he due process rights and fundamental freedom of Nayarit and Mexico in general are not at the same high level as the United States," he may face charges in Mexico and be arrested if he returns, he believes he would be in danger in Mexico, and he cannot access the judicial system in Mexico." Sieler provided no evidence, except his own speculation, to support his allegations and has therefore failed to establish the Article 20 exception by clear and convincing evidence.

Lyon v. Moreland-Lyon, 2012 WL 5384558 (D.Kan.) [England] [Attorneys Fees]

In Lyon v. Moreland-Lyon, 2012 WL 5384558 (D.Kan.) the petitioner Kevin Lyon's moved for attorneys fees after the court granted his Petition for Return and ordered that his son F.M.S.L. be returned to England. The Court observed that the International Child Abduction Remedies Act provides that a court ordering the return of a child pursuant to an action brought under the act "shall" order the respondent to pay the petitioner's "necessary expenses" unless the respondent shows that such an order would be "clearly inappropriate ."

The petitioner provided proof of the requested fees and expenses. The court found that all of the amounts were "related to the return of the child," as required by 42 U.S.C. 11607(b) and declined to reduce the amount requested. It considered the total sum of $18,565.30 in fees, costs and expenses in calculating an appropriate award to petitioner.

Respondent argued that awarding any attorneys' fees and costs would be clearly
inappropriate because of the respondent's "straitened financial circumstances."

The court noted that it has the discretion to reduce any potential award to allow for the financial condition of the respondent. Berendsen v. Nichols, 938 F.Supp. 737, 739 (D.Kan. Sept. 19, 1996). In Berendsen, the court reduced the fee award in an ICARA case by 15% because of the respondent's financial status. Respondent relied on an ICARA case from the Eastern District of Pennsylvania to argue that no fees should be awarded against her. The court in In re Application of Hirts, found it clearly inappropriate to award any of the petitioner's $31,958.45 in expenses and costs against one respondent who had "straitened financial circumstances." See 2004 WL 1588227 at *1 n. 1. In that case the court explained that the respondent held assets totaling $610.22, was unable to become employed because of her immigration status, resided with her children in a women's shelter, and received government assistance to cover their daily living expenses.However, the court held the other respondent in the case responsible for paying $20,000 of the petitioner's expenses. The court explained that the second respondent held assets of $42,695.73 and received a pension of $300 per month. Additionally, the court noted that she had no obstacle preventing her from working in some capacity. Although the court stated that this second respondent suffered from straitened financial circumstances, it pointed out that her position was "in no way as severe" as the first respondent's. As a result, the second respondent was required to pay the petitioner's expenses, but the court reduced the amount by 37%.

The district court recognized the respondent's straitened financial circumstances. She had no job in England, no income, no car, and no savings. She applied for financial aid and housing benefits in England, but was been unable to receive either because of a habitual residence test. Respondent was living on loans from her family to support herself and her young child. Respondent had not identified any obstacles preventing her from getting a job. However, petitioner stopped paying $450 per month in child support to respondent in February 2012. Since February, respondent received only $189 from petitioner in child support. Meanwhile, respondent paid $3,031.49 in moving and basic living expenses. Additionally, she paid $2,505.00 for airline tickets to England for a hearing at the High Court in London. Although petitioner was ordered by the court to pay for those airline tickets he had not reimbursed respondent for them. Given the respondent's financial position, the court found that awarding any of petitioner's attorneys' fees against the respondent would be clearly inappropriate and denied the motion.

　

　

Walker v. Kitt, --- F.Supp.2d ----, 2012 WL 5237262 (N.D.Ill.) [Israel] [Grave Risk of Harm] [Article 20]

In Walker v. Kitt, --- F.Supp.2d ----, 2012 WL 5237262 (N.D.Ill. Juaquin Walker ("Petitioner") brought an action for the return of his daughter to Israel under the Hague Convention. Petitioner claimed that Jaquelyn Kitt ("Respondent"), the Child's mother, wrongfully retained the Child in violation of the Convention and ICARA. The district court granted the petition.

Petitioner and Respondent both joined the Black Hebrew Israelite community in Dimona, Israel in the 1970's, as children. Members of the Community recite vows each year in which they promise not to question the judgment of the leader of the Community, who is Considered to be the spiritual Messiah. The Community permits polygamous marriage, and the Israeli government recognizes such marriages as legitimate. In general, women in the Community are subservient to men. A woman's path in life consists of getting married and serving her husband. Petitioner testified that if a woman acts not in accordance with her husband's wishes, she should be punished.

Respondent testified that women are not able to express themselves in the Community. Several additional witnesses testified that women in the Community do not have the ability to make decisions governing their own lives, but that the leader and the men make the decisions. Respondent began to pursue Petitioner when she turned seventeen and was of age to be allowed by the Community to do so. On April 30, 2003, Respondent married Petitioner, becoming his second concurrent wife. Petitioner has six children with his first wife. Before they married, Petitioner's first wife slapped and spat on Respondent. Respondent testified that after the marriage, she continued to be disrespected and verbally abused by Petitioner's first wife, and that she was treated like a servant by Petitioner and his first wife. Respondent gave birth to the Child in Israel in September 2004. Respondent moved out of Petitioner's house in May 2005, but after Petitioner reported her action to Community officials, she moved back in. In October 2005, Respondent again moved out of Petitioner's house and into her father's, taking the Child with her. Petitioner ordered Respondent to return to his house, but she refused. In October 2005, shortly after she moved out of Petitioner's house, the Community leadership requested that Respondent travel to the United States to work in one of the Community's restaurants. She explained to Petitioner and several members of the Community leadership that she did not want to be separated from her daughter, but she was told to go anyway. Respondent believed that if she did not obey the Community leadership, she could be expelled from the Community. Respondent left Israel to come to the United States at the request of the Community leadership in December 2005. She returned to Israel in May 2007 and stayed with her sister. Respondent and Petitioner were not on speaking terms, and the Child stayed with Respondent at her sister's. Respondent returned to the United States in August 2007. She again visited Israel in June 2009. ( She stayed in Israel for six months, and the Child stayed with her during this period. Respondent's mission ended in 2009, yet she returned to the United States in December 2009. Respondent returned to Israel in June 2011, and she remained there until she left for the United States with the Child in September 2011.

In a declaratory judgment action in September 2011, an Israeli family court issued an order, based on DNA testing, declaring Petitioner's paternity of the Child. The Child was currently eight years old. She lived in Israel her entire life until Respondent brought her to the United States in September 2011. Petitioner and Respondent agreed that the Child would visit the United States with Respondent until the end of the Jewish holiday season in November 2011.(Petitioner and Respondent reported to the Child's school and the United States Embassy in Israel that the Child would return to Israel after less than two months. Respondent and the Child resided in the Washington, D.C. area from September 2011 until the filing of this action in July 2012. Respondent testified that, once in the United States, the Child "began to cry regularly, saying she did not want to go back to Israel, but that she wanted to stay with [Respondent] in the U.S. instead." In late October, Petitioner requested that Respondent's brother, who was planning a trip to Israel, bring the Child with him. Respondent understood the agreement to entail Petitioner's coming to the United States to retrieve the Child and did not allow the Child to return to Israel with Respondent's brother. In November 2011, Respondent retained the Child beyond the two-month visit that she and Petitioner had agreed upon. Respondent testified that she received phone calls from Petitioner's family informing her that Petitioner was planning on kidnaping the Child.

Petitioner filed a Petition and Emergency Petition for Warrant of Arrest, which was granted and Petitioner was given temporary custody of the Child pending resolution of his petition for her return. A hearing was held on October 11. Respondent did not provide any evidence or arguments that the removal was not wrongful either in her response or in the evidentiary hearing. Given that the Child lived in Israel from the time she was born until Respondent brought her to the United States in September 2011, a fact the parties stipulated to, the Court found that the Child was a habitual resident of Israel. The Israeli law relevant here, provided by Petitioner, is Israel's Capacity and Guardianship Law of 1962. The law provides that parents, as the natural guardians of their minor children, have "the right to the custody of the minor, to determine his place of residence and the authority to act on his behalf."Capacity and Guardianship Law, 5722-1962, 16 LSI 106, 14-15 (5722-1961/62) (Isr.). As the Child's natural father, Petitioner had custody rights over her, which were breached by Respondent's retention of the Child past the agreed-upon time period. If a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to 'exercise' those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child." Friedrich v. Friedrich, 78 F.3d 1060, 1066 (6th Cir.1996)(Friedrich II ). No such acts were present in this case; in fact, by Respondent's own admission, Petitioner cared for the Child during the time periods when Respondent was in the United States and was a good father. Finally, Petitioner obtained an ex parte decision in the Beer Sheva Family Court in Israel declaring that Petitioner and Respondent have joint custody rights under Israeli law, and that Respondent's actions had violated Petitioner's custody rights.

Thus, the Court found that Petitioner has met his initial burden and has established a prima facie case of wrongful retention under the Hague Convention.

The Court rejected the affirmative defenses asserted by Respondent. Respondent did not provide the Court any reasons or evidence indicating that the Child should be considered of sufficient age and maturity to have her views considered. The Court conducted an in camera interview with the Child on October 11, 2012. The Court asked the Child where she considered "home." The Child answered firmly and without hesitation, "in Israel." "The Court found it unnecessary to determine whether the Child was of sufficient age and maturity to have her views considered because the Child did not give any indication that she would prefer to remain in the United States. Thus, Respondent's assertion of the "age and
maturity" exception failed because the Child did not object to returning to Israel.

 Respondent contended that the Court should refuse to return the child based on Article 13(b) of the Convention. Respondent believed "there is a grave risk that the child would be exposed to physical and psychological harm and that the child would be put in an intolerable situation" if the Court ordered her return to Israel. Respondent contended, and introduced multiple witnesses at the evidentiary hearing to testify, that women are subordinate to men in the Community. Respondent testified that the Child should stay in the United States where she would have better opportunities for education and self-expression than she would in the Community. Additionally, Respondent testified that she had been mistreated by Petitioner's first wife and treated as a servant in Petitioner's household. Respondent's mother, who had lived in the Community at least part-time for 35 years, expressed concern that as the daughter of Petitioner's second wife, the Child may not receive the same opportunities or affection as his other children.

The Court commended Respondent's desire to provide better educational opportunities for her daughter while admonishing her methods. However, the Article 13(b) exception is "not intended to encompass return to a home where money is in short supply, or where educational or other opportunities are more limited than in the requested State. The lack of opportunities available to women in general and children of second wives more specifically does not approach a "grave risk of harm" or an "intolerable situation" for the purposes of the Convention. The Court did not condone the subordination of women. Given the testimony about the lack of meaningful educational opportunities and the limited roles available for women in the Community, the Court empathized with Respondent's desire to raise her daughter in the United States. However, where the Child may be better off is a custody matter, which is reserved for the courts in the country of her habitual residence. The Court concluded that returning the Child to a community that may only ever afford her second-class status because of her gender does not pose a grave risk of harm as intended by Article 13(b) of the Convention. Respondent testified that she believed Petitioner was a good father; that she believed he would protect the Child from harm; that he had never abused or neglected the Child or any of his other children; that Respondent felt comfortable with the Child visiting and staying with Petitioner; and that she had  never had any reason to contact the police or social services about Petitioner.

Respondent appealed to the exception provided in Article 20 of the Hague Convention. Article 20 states that "[t]he return of the child ... may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms." Hague Convention, art. 20. Respondent contended that "[p]olygamy is illegal in the United States without exception. And molestation and the subjection of women are considered to be against the fundamental principles of this society." Respondent argued that even if Israel has laws with respect to those behaviors, "the government acquiesces, at least in the polygamy realm." Respondent filed a supplemental brief alleging that "[e]qual protection of women is a fundamental principle in the United States." Respondent argues that because "[t]he principles and practices of this community are anathema to the fundamental principles of the United States relating to the protection of human rights and fundamental freedoms of women," the Child's "future prospects in this community will be affected negatively by the role designated to women." Finally, Respondent suggested that the facts that all adults in the Community pledge yearly oaths of allegiance and obedience to the leader and that the Child "may inevitably have to pledge oaths and submit to the wishes of the leader" might "utterly shock the conscience"of the Court.

Both Respondent and the Court were unable to find a single decision from a court in the United States in which a child was not repatriated based on Article 20. Respondent's counsel admitted failure to find precedent but argued that "there has to be a case where [Article 20] does apply." The court held that this case is not it. While polygamy is certainly illegal in this country, and the systemic subordination of women is incompatible with the United States' aim of equality, "the Convention requires that the fundamental principles of the State not permit the return of the child; merely offending principles espoused in [United States] laws is insufficient." Habrzyk v. Habrzyk, 759 F.Supp.2d 1014, 1027 (N.D.Ill.2011) .The narrow jurisdiction of the Court, however, was limited to determining if any defense exists to the mandatory repatriation of the Child for the purposes of custody proceedings in Israel. Unfortunately, the fact that the Child may not have as robust rights as a man when she reaches maturity does not shock the conscience under Article 20. Cultural gender inequality is a serious issue. However, accepting cultural gender inequality as a sufficient basis for an Article 20 defense would undermine the Convention. To invoke Article 20 to refuse to return a child for anything less than gross violations of human rights
would seriously cripple the purpose and effectivity of the Convention. The Court found that Respondent had failed to provide the clear and convincing evidence necessary in asserting an Article 20 defense.

Prouse v. Thoreson, 2012 WL 5199182 (W.D.Wis.) [Italy] [Habitual Residence

In Prouse v. Thoreson, 2012 WL 5199182 (W.D.Wis.) Petitioner Giorgio Prouse brought an action against his wife, respondent Robin Thoreson under the Hague Convention, petitioning for the return of his minor daughter to Milan, Italy.

The district court denied the petition. It pointed out that before respondent brought their daughter to the United States. Petitioner Dr. Giorgio Prouse and respondent Robin Thoreson were married and the parents of an eight-year-old child, JP. Petitioner lived in Milan, Italy, and worked as a cardiovascular surgeon. Until December 2011, respondent lived in Milan and worked as a flight attendant out of Chicago, Illinois. JP was born in Milan and lived there with her parents for most of her life. JP visited the United States regularly during her school breaks and spent time here with her maternal grandparents. In the summer and fall of 2011, while petitioner was still completing his residency program, the family began experiencing financial difficulties. Throughout 2011, the parties discussed various living arrangements after petitioner completed his residency in 2012. The parties agreed that respondent and JP would go to the United States, where JP could attend the local school and live with respondent's parents while respondent worked. On December 28, 2011, respondent and JP flew to the United States. They moved in with respondent's parents in Beloit, Wisconsin, where JP began attending school in the local school district. Respondent's parents cared for JP while respondent lived during the week in Chicago. Respondent made a trip back to Milan in early January to finish cleaning their previous home and to bring some of the family pets to the United States. When respondent and JP left Italy, petitioner listed the family's home for sale or lease and entered into a four-year lease with the right to renew the lease for four additional years. Next, he moved into the family's old apartment, a small one-bedroom below ground unit adjacent to his mother's home. Finally, he wrote JP's school in Milan and informed the administrators that JP would no longer be in attendance due to "our move" to the United States for "sudden, unexpected reasons of work ." (Petitioner said that he referred to "our move" only in an attempt to persuade the school to refund a portion of JP's tuition that he had already paid.) Petitioner, respondent and JP visited each other in the United States and Italy in the following months. Petitioner visited the United States in January 2012 for JP's birthday. At that time he asked respondent to book the return portion of his flight for August "when returning to Italy would be difficult. He made no mention of taking JP back to Milan with him in August or any other time. JP then visited petitioner in Italy in March and April of 2012 for Easter break. They booked another trip for JP to go to Italy between July 14, 2012 and August 4, 2012. In April 13, 2012, petitioner informed respondent over the telephone that he wished to end their marriage. Respondent emailed petitioner and told him that she would do anything to make the marriage work, including moving back to Italy, transferring to another city that had more frequent flights to Milan on which she could work or moving somewhere else after petitioner finished his residency. Four days later, she flew to Italy. During her visit, she asked petitioner where she and JP would live. Petitioner told her that "the United States is a big place" and that Arizona would be a good place for her and JP because respondent's friend Michelle could help respondent raise JP. That summer, respondent became convinced that she and JP should no longer live with her parents and should look for a place of their own. On June 6, 2012, respondent emailed petitioner, explaining her concern and her desire to talk to him about moving and whether he would be able to help her financially. Petitioner agreed to help respondent and JP rent their own place. Petitioner and respondent communicated a few more times about the price of a rental, but eventually respondent dropped the issue. Petitioner assumed it was because she had worked things out with her parents. Before petitioner began this action, he did not tell respondent that he wanted JP to return to Italy for school in the fall. JP had a successful spring semester of school in Beloit. Although JP was engaged in life in the United States, respondent emailed petitioner on June 17, 2012 that JP missed "home, the dogs, you, etc." On June 26, 2012, respondent filed for divorce in Cook County, Illinois. The next day, petitioner came to the United States to attend his sister's wedding in Washington D.C. Respondent dropped JP off at the Chicago airport so that she could travel with petitioner to the wedding. She picked up petitioner and JP from the airport when they returned from Washington D.C. The next morning, July 2, 2011, respondent and JP took petitioner to the airport for his return flight to Italy. At some point while petitioner was in Chicago, a private investigator served him with respondent's divorce petition. Despite the pending divorce, the parties continued to communicate about JP.

On July 30-31, 2012, after obtaining legal counsel Petitioner filed a criminal complaint and an action under the Hague Convention in Italy, followed by this action, which he filed on September 5, 2012.

The district court observed that in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001), the Court of Appeals for the Ninth Circuit undertook a lengthy analysis of the term "habitual residence" that other courts have relied on since then. In this case, the analysis was straightforward. Both parties agreed that their financial difficulties required leaving Milan and taking up residence in the United States, where they could reduce their living expenses and where petitioner would be likely to find a higher paying position than he could obtain in Italy. They agreed that respondent would leave in December 2011 with JP, who would live with respondent's parents while respondent increased her work hours as a flight attendant (and reduced her commuting expenses), and petitioner would come when he finished his residency. With that plan in mind, petitioner applied for a refund of JP's tuition from her expensive international school, saying that the family was moving to the United States; put the couple's home on the market, either for sale or rent; and moved back into a small below ground apartment in Milan. Respondent cleaned out the family home, moved all the family pets to the United States and enrolled JP in a local school in Beloit, Wisconsin, where JP's grandparents lived. This was ample evidence of the parties' settled purpose in December 2011 to establish a new residence in the United States. JP's eight months of residency in this country, her success in the local schools and her involvement in horseback riding supported a finding that her habitual residence was now in the United States. This finding was bolstered by the fact that home environment to which she was accustomed in Italy no longer exists; her home was rented out and she was no longer enrolled in the school she had been accustomed to attending.

Petitioner argued that he never acquiesced in JP's continued residence in the United States. The proof was to the contrary. As explained at length, he made no arrangements for her to come back to Italy to attend school. The record contained nothing in writing to suggest that he ever told respondent that he wanted JP to return to Italy to live with him. The finding that JP's habitual residence was not the United States answered the question whether she was wrongfully removed or retained. She was not. She came here and continued to reside here in accordance with a plan developed by both of her parents at a time when they had a shared intent. Her father's subsequent decision to end his marriage to her mother did not mean that he did not have the settled intent in December 2011 to move his family to the United States for an indefinite period.

As to whether the removal breached petitioner's rights of custody under the law
of the child's habitual residence, that question was moot in view of the finding that the removal was in accordance with the parties' agreement to move to the United States, as was the question whether respondent was exercising his custody rights at the time.

Jensie v Jensie, 2012 WL 5178168 (E.D.Ky.) [Sweden] [Habitual Residence]

In Jensie v Jensie, 2012 WL 5178168 (E.D.Ky.) Petitioner Niklas Jensie ("Niklas"), a native and citizen of Sweden, met Respondent Marlena Jensie ("Marlena"), a native and citizen of the United States, in 1998. Marlena moved to Sweden in 2001, and the couple established a residence in Goteborg, Sweden, where Niklas's family lived. Niklas worked as a computer technician and Marlena, after attending Swedish educational courses, became employed as a preschool teacher. The couple married in 2003 while on a visit to Marlena's home state of Utah.

The couple's daughter, L.N.J. was born on January 2, 2009, in Goteborg , and she had dual Swedish and American citizenship. Soon after their daughter's birth, Niklas and Marlena travelled to the United States for approximately four weeks to visit Marlena's family so that they could meet L.N.J. In 2010, Marlena became a Swedish citizen. The couple began raising L.N.J. in Goteborg. In 2010, after Marlena returned to work from maternity leave, L.N.J. began attending a Swedish preschool. L.N.J. also spent time with Niklas's family and engaged in typical childhood activities. Each parent spoke to L.N.J. in their native tongue, but L.N .J. understood Swedish. In the summer of 2011, Niklas and Marlena again travelled with L.N .J. to the United States for vacation for approximately four to five weeks, visiting Marlena's family in several states. Other than these vacations, L.N.J. resided in Goteborg with her parents and attended preschool.

In late 2011, Niklas told Marlena that he wanted to separate. Marlena was upset by this news. The suggestion was made that Marlena travel to the United States to visit with her family and "clear her head." Tickets were purchased for Marlena and L.N.J. to travel to the United States on December 13, 2011, with a booked return for February 5, 2012. Marlena and L.N.J. did not return to Sweden as scheduled and Niklas had not consented to the trip extending past February 5, 2012. When Marlena did not return on February 5, Niklas called her and learned that she was still in the United States. Niklas immediately sought legal advice and contacted the Swedish government for assistance. He also began pleading with Marlena to return to Sweden. Marlena eventually agreed to return to Sweden with L.N.J. on April 5, 2012, using new tickets purchased by Niklas. The return date was not chosen with any intent that Marlena and Lily would actually return to the United States at that time. When Marlena and L.N.J. returned to Sweden in April, Niklas moved out of the apartment they had been sharing and moved in with his sister. During the next few months, Niklas and Marlena shared custody of L.N.J. and began meeting with Swedish social services to mediate their divorce and custody issues. Niklas testified, and Marlena did not dispute, that the mediator cautioned her about the seriousness of her prior refusal to return L.N.J. to Sweden in February.

Marlena testified that she believed that Niklas knew that it was her intention to return to the United States with L.N.J. once they had the custody issues worked out, and that the two had discussed various possible arrangements along those lines. Niklas, however, testified that he never consented for Marlena to take L.N.J. back to the United States to live and that, in fact, he was seeking an equal parenting schedule of every other week with custody of their daughter.

On June 7, 2012, Marlena sent Niklas an email stating, inter alia,:"Please don't turn in the divorce papers just for the sake of getting moving on things. Can we stop fighting? " Niklas nonetheless filed for divorce in early June. The parties had a mediation scheduled for June 25, 2012. The mediation was rescheduled for July 5, 2012. Marlena did not appear for the mediation on July 5. Alarmed, Niklas went to the apartment but Marlena and L.N.J. were not there. L.N.J.'s clothes and toys appeared undisturbed, however, and the apartment appeared normal. Niklas then discovered that Marlena's and L.N.J.'s passports were not in their normal place. . Niklas's eventurally concluded that Marlena had taken L.N.J. to Taylor Mill, Kentucky, where her father now resided. The next day, July 6, 2012, Niklas contacted the Swedish Central Authority and filed an Application for Assistance Under the Hague Convention on Child Abduction requesting L.N.J.'s return to Sweden. Niklas filed his petition on October 5, 2012.. On October 10, 2012, the Goteborg District Court entered an order granting Niklas full custody of L.N.J.

The district court granted the Petition. It observed that to determine the habitual residence, the court must focus on the child, not the parents, and examine past experience, not future intentions." Friedrich, 983 F.2d at 1401. "A person can have only one habitual residence. On its face, habitual residence pertains to customary residence prior to removal. The court must look back in time, not forward." Friedrich, 983 F.2d at 1401. Here, the evidence showed that L.N.J. was born in Sweden on January 2, 2009, and, but for family vacations, lived there until December 2011, engaging in normal family activities and attending preschool. Sweden was where she had been "present long enough to allow acclimatization" and where there was "a degree of settled purpose from the child's perspective." In December 2011, L.N.J. traveled to the United States with her mother, with the understanding that they would return in February 2012. The Court concluded that this trip of several months did not alter L.N.J.'s customary residence in Sweden. (Citing Blanc v. Morgan, 721 F.Supp.2d 749, 760 9W.D.Tenn.2010) (holding that fact that mother took child on extended trips to United States did not alter child's habitual residence of France). That Marlena overstayed the February 2012 return by two months was also immaterial because time spent by a child in another country after any wrongful removal or retention does not factor into the "habitual residence". The change in geography must occur before the questionable removal; here, the removal precipitated the change in geography. The same was true with respect to the approximately three and a half months that L.N.J. spent in the United States since her removal from Sweden in July. Moreover, although Marlena insisted that she always intended to return to the United States to live with L.N.J., such parental future intentions generally do not factor into the Sixth Circuit's child-centric analysis. Therefore, the Court concluded that L.N.J.'s habitual residence prior to July 2012 was Sweden.

The Court noted that under Swedish law, married parents have joint custody by operation of law. (Citing Fridlund v. Spychaj-Fridlund, 654 F.Supp.2d 634, 637-38 (E.D.Ky.2009)). Here, at the time of L.N.J.'s removal from Sweden in July 2012, there had been no judicial or administrative decision or agreement that altered Niklas's parental rights, and Marlena admitted this during the evidentiary hearing. Based upon the facts, the Court also concluded that Niklas was exercising his custodial rights when L.N.J. was taken from Sweden. Thus, to defeat a showing that removal was wrongful, Marlena has to prove by a preponderance of the evidence that Niklas consented to the removal. The Court had already found as a fact that Niklas did not consent to L.N.J.'s removal to the United States in July 2012, regardless of what the parties' prior discussions were regarding possible solutions to the custody dilemma. A parent's deliberately secretive actions is "extremely strong evidence" that the other parent would not have consented to removal. Simcox v. Simcox, 511 F.3d 594, 603 (6th Cir.2007) Marlena admitted that Niklas did not know she was leaving with L.N.J. when she did, and the surrounding circumstances indicated that she knew that Niklas would not have consented to L.N.J.'s removal to the United States. It was clear that when Niklas responded to Marlena's text message of July 2 confirming that he was seeking a 50/50 shared parenting arrangement, Marlena panicked. Under questioning by the Court, she admitted as much, conceding that she was afraid what a Swedish court might do with respect to custody. As soon as Niklas learned of her departure with L.N.J., he immediately took steps to secure his daughter's return. The Court had no doubt that Niklas did not consent to L.N.J.'s removal from Sweden.

　

　

　

Vujicevic v Vujicevic, 2012 WL 4948640 (S.D.N.Y.) [Croatia] [Federal & State Judicial Remedies] [Notice & Opportunity to Be Heard]

In Vujicevic v Vujicevic, 2012 WL 4948640 (S.D.N.Y.) Petitioner filed his Verified Petition for the Return of the Child to Croatia and his Petition for Warrant in Lieu of Writ
of Habeas Corpus on October 9, 2012. The docket sheet for the case indicated that
respondent had never been served. This lack of service was confirmed by an Affidavit of in support of the Petition for Warrant in Lieu of Writ of Habeas Corpus.

The district court observed that the United States Supreme Court has established that "[b]efore a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied." (Citing Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). Service is also specifically required by the International Child Abduction Remedies Act, ("ICARA"), which implemented the Hague Convention on the Civil Aspects of International Child Abduction. Under ICARA, "[n]otice of an action brought under subsection (b) of this section shall be given in accordance with the applicable law governing notice in interstate child custody proceedings." (42 U.S.C. 11603(c)). In New York, the laws governing notice in interstate child custody proceedings are the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), codified in Domestic Relations Law, §§75-78a and the federal Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A, 42 U.S.C. § 663 ("PKPA"). Both the UCCJEA and the PKPA require that, prior to any child custody determination, notice must be given to, inter alia,"any parent whose parental rights have not been previously terminated[ ] and any person having physical custody of the child." (Dom. Rel. Law § 76-d; 28 U.S.C. § 1738A(e). Accordingly, courts in this district deciding petitions under the Hague Convention have consistently required service on the respondent. [Citing Ebanks v. Ebanks, 2007 WL 2591196, at *3 (S.D.N.Y. Sept. 6, 2007) (ruling that service was necessary for the Court to exercise personal jurisdiction and that petitioner was required to serve respondent in accordance with New York law)].

The District Court declined to grant the Petition for Warrant as it appeared that while the Court had subject matter jurisdiction over the case there was no personal jurisdiction over respondent absent proper service.

Hynes v. Berger, 2012 WL 4889854 (D.Md.) [Germany] [Federal & State Judicial Remedies] [Denial of Notice and Opportunity to be Heard]

In Hynes v. Berger, 2012 WL 4889854 (D.Md.), decided October 12, 2012, Shawn T. Hynes filed a "Hague Convention Article 15 Petition asking the court "to expeditiously decide and determine, in accordance with the ... Hague Convention's provisions, and at the specific request of the District Court in Schleswig, Germany, whether the removal or retention of the parties' minor daughter, K.B., by respondent, Ulrike C. Berger, a/k/a Julie Berger, ... was wrongful within the meaning of Article 3 of the Hague Convention ...." Petitioner also filed a motion to expedite proceedings.

The court observed that it was in "a somewhat awkward position." The District Court in Schleswig, Germany, was scheduled to hold a hearing in this matter on October 23, 2012. Therefore, time was of the essence. Respondent, resided in the Federal Republic of Germany. Respondent had not yet been served, and the time for her to respond to the petition would be a date beyond October 23, 2012. The Court concluded that under the circumstances it should answer the question posed by the District Court in Schleswig, Germany. In doing it recognized that it had been denied the benefit of the adversary system that lies at the heart of the system of justice in the United States and without giving the Respondent notice or an opportunity to be heard, ruled in favor of Petitioner, giving Respondent 45 days after service of process upon her to move to rescind the order.

It ruled based upon the complaint and its attachments, Respondent's removal of K.B. from the child's habitual residence in Montgomery County, Maryland, in the United States of America, was wrongful within the meaning of Article 3 of the Hague Convention. For that reason it entered a judgment responding to the request made by the District Court in Schleswig, Germany that, based upon the information available Respondent's removal of K.B. from Montgomery County, Maryland, in the United States of America, to the Federal Republic of Germany was wrongful. The facts that lead to its conclusion were that Petitioner and Respondent, who were married to one another, were the parents of K.B., a five-year-old girl.. At the time of her removal, K.B.'s habitual residence was located in Montgomery County, Maryland, in the United States of America. Prior to her removal, Petitioner legally exercised his custodial rights by visiting K.B. and having regular telephonic and video conference and contact with her almost daily since the time that she was two years old. He also spent vacation time with K.B.  Petitioner did not consent to removal of K.B. from Montgomery County, Maryland to the Federal Republic of Germany. Under Maryland law, absent a court order to the contrary, parents are deemed to be joint natural guardians of their minor child and neither parent is presumed to have any right to custody that is superior to the right of the other parent.

Salvidar v Rodella, --- F.Supp.2d ----, 2012 WL 4497507 (W.D.Tex.) [Mexico] [Attorneys Fees]

In Salvidar v Rodella, --- F.Supp.2d ----, 2012 WL 4497507 (W.D.Tex.) the Court considered Petitioner Sonia Eledia Acosta Saldivar's "Application for Reasonable Attorneys' Fees and Costs . Having prevailed on the merits of the underlying action, Petitioner moved for award of expenses, including legal fees and costs, pursuant to 42 U.S.C. § 11607(b)(3), the fee-shifting provision of ICARA. In her fee application Petitioner sought attorneys' fees in the amount of $60,022 .00, litigation costs in
the amount of $11,718.16, and out-of-pocket expenses in the amount of $1,398.38.
Because Respondent asserted  that he was financially unable to pay any award of fees and costs, the Court issued an order instructing Respondent to submit evidence in support of his assertion. After due consideration, the Court issued a lengthy and instructive opinion granting the application in part.

The Court observed that where, as here, a court has ordered the return of the child to his habitual residence, the court must order the respondent-abductor to pay "necessary expenses incurred by or on behalf of the petitioner," unless to so order would be "clearly inappropriate." 42 U.S.C. 11607(b)(3).The respondent has the burden to show that an award of fees or expenses would be "clearly inappropriate. 

Respondent argued that Petitioner should be denied the statutory attorneys' fees and costs because her attorneys are employed by Texas Rio Grande Legal Aid, Inc. ("TRLA"), a publicly funded legal aid entity. Further, Respondent maintained that because Petitioner or a relative of Petitioner on her behalf had not paid or agreed to pay any attorneys' fees or costs to TRLA, the requested fees and costs have not been incurred on her behalf. Awarding fees under such circumstances, Respondent contended would reward legal aid societies, who are already funded by taxpayers, rather than compensating a petitioner for her legal fees and costs. Respondent invited the Court to interpret §11607(b)(3) as precluding an award where the petitioner is represented for free by a publicly funded legal aid entity. The Court rejected this argument.  Given that the text of § 11607(b)(3) does not in any way limit the scope of the entities who may recover under it, the structure of § 11607(b) suggests that Congress did not intend to cut off from recovery legal aid entities-the very entities on which Congress intended to rely in fulfilling the United States's obligations under the Convention, and the legislative history points to Congress's adoption of the Department of State's broad understanding of the phrase "on behalf of," the Court concluded that under ICARA, an award of expenses, including legal fees and costs, is not inappropriate where the petitioner is represented by a publicly funded legal aid entity, such as TRLA.

Respondent further asserted that an award was clearly inappropriate here because Petitioner had "unclean hands." Given the statutory mandate that the Court "shall order the respondent to pay," it was unclear whether equitable principles such as "unclean hands" should apply to outright deny any recovery of fees and costs. In any event, the Court found that the doctrine of unclean hands did not operate to bar an award of fees in this case. The Court concluded that Respondent has failed to carry his burden to show that an award of necessary expenses, including costs and legal fees, was "clearly inappropriate" in this case. Petitioner, therefore, was entitled to an award.

The court held that to be awardable, the expenses must be "necessary"
to secure the child's return.  Aldinger v. Segler, 157 F. App'x 317, 318 (1st
Cir.2005).  Further, the expenses must be incurred in connection with an action brought under § 11603.Koch v. Koch, 450 F.3d 703, 719 (7th Cir .2006).  To determine an appropriate legal fee award, federal courts typically use the "lodestar" method in Hague Convention cases.  The calculation of attorneys' fees under the lodestar method is a two-step process. In the first step, the court calculates the lodestar amount by multiplying the reasonable number of hours expended on the case by the reasonable hourly rates for the participating lawyers.  In the second step, the court decides whether the lodestar amount should be adjusted upward or downward based on the circumstances of the case using the factors articulated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974) The attorneys' fees calculus is a fact-intensive one and its character varies from case to case." Hopwood v. Texas, 236 F.3d 256, 281 (5th Cir.2000).   The reasonableness of an attorney's hourly rate "depends on the experience and qualifications of the professional. Hourly rates are to be computed according to the prevailing market rates in the relevant legal market,
not the rates that lions at the bar may command. The relevant market was the
community in which the district court sits. Typically, the reasonable hourly rate for a particular community is established through affidavits of other attorneys practicing there.   Finally, a legal aid counsel, though she does not exact a fee from clients, is awarded the same hourly rate that a counsel in the private bar with the same experience and skills as hers commands. The Court found that the reasonable hourly rate for Brown was $250 and the reasonable hourly rate for Saenz was $150.

The district court pointed out that it must determine whether the hours claimed were "reasonably expended" on the litigation; that is, whether the total number of hours claimed were reasonable and whether specific hours claimed were reasonably expended.. The fee applicant bears the burden of establishing the reasonableness of the number of hours expended on the litigation,  and must present adequately documented time records to the court,  Using this documented time as a benchmark, the court must exclude hours which, though actually expended, are excessive, duplicative, or inadequately documented. The court considered(1) Hours Spent for Petitioner's Hague Application; (2) Hours Spent for State Court Proceedings; 
(3) Hours Spent for the Preliminary Injunction Hearing; (4) Hours Spent for Trial Preparation; (5) Hours Spent on Tasks Performed after the Child's Return; (6) Travel Time (noting that while travel time is not per se excludable, non-working travel time is often compensated at a discounted hourly rate.  In re Babcock & Wilcox Co., 526 F.3d
824, 828-29 (5th Cir.2008): and (7) Fees for Fees, hours spent in preparation of her application for attorney's fees and costs-commonly known as "fees for fees." In the Fifth Circuit, it is settled that a prevailing plaintiff is entitled to attorney's fees for the effort entailed in litigating a fee claim and securing compensation. ; and (8) Hours Inadequately Documented.  The court found that 71.8 hours expended by Brown were reasonable. It noted that if more than one attorney is involved, the possibility of duplication of  effort along with the proper utilization of time should be scrutinized. The time of two or three lawyers in a courtroom or conference when one would do, may obviously be discounted. the Court found that 8.0 hours expended by Saenz are reasonable.

  To arrive at the lodestar amount, the Court multiplied the reasonable hourly
rate by the number of hours reasonably expended. . For Attorney Brown, the Court multiplied 71.8 hours by the rate of $250, to arrive at the lodestar amount of $17,950, and for Attorney Saenz, it multiplied 8.0 hours by the rate of $150 to arrive at the lodestar amount of $1,200. The total lodestar amount therefore was $19,150.  Once the court has calculated the lodestar, it noted that it may adjust upward or downward
after considering following Johnson factors:  (1) the time and labor required to represent the client or clients;  (2) the novelty and difficulty of the issues in the case;  (3) the skill required to perform the legal services properly;  (4) the preclusion of other employment by the attorney;  (5) the customary fee charged for those services in the relevant community;  (6) whether the fee is fixed or contingent;  (7) the time limitations imposed by the client or circumstances;  (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorney;  (10) the undesirability of the case;  (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.     Johnson, 488 F.2d at 717-19. Of these factors, the court should give special heed to factors (1), (5), (8), and (9). Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 800 (5th Cir .2006)."    The Court determined that adjustment due to Johnson factors was not warranted. The factors that would warrant an upward or downward adjustment had already been considered when the Court made its determination regarding the reasonable hours expended and the hourly rates.

Respondent stated that he lacked financial means to pay the amount of fees
requested by Petitioner. The court noted that it may reduce a fee award in a Hague Convention case, if it prevents the respondent-parent with straitened financial condition from caring for his child.  Rydder v. Rydder, 49 F.3d 369, 373-74 (8th Cir.1995); Whallon v. Lynn, 356 F.3d 138, 139-40 (1st Cir.2004); see also  Norinder v.
Fuentes, 657 F.3d 526, 536-37 (7th Cir.2011).Such reduction is equitable in nature,  Rydder, 49 F.3d at 374, and the Court has "broad discretion,"  Whallon, 356 F.3d at 140. In determining whether and to what extent a fee award should be reduced on the basis of the respondent's financial situation, the Court inquires "whether respondent has clearly established that it is likely that h[is] child will be significantly adversely affected by the court's award."  Upon due consideration, the Court found that Respondent's financial condition was straitened, particularly in light of the recent termination from his work. This was not to say that his straitened condition was a permanent one, for given his past work history, it was not unreasonable to assume that he would be employed again soon. Since the parties' separation in 2010,
Respondent provided monthly child support and paid for D.I.R.A.'s cost of education. Pursuant to the parties' divorce agreement, Respondent was obligated to pay child support for D.I.R.A. There was nothing to indicate that he would not continue to provide for the child. Therefore, a large fee award in this case would undermine "the ability of [the] respondent to care for [his] child." Whallon, 356 F.3d at 140.    Accordingly, the Court was of the opinion that a reduction of the above-calculated fee award was warranted. However, the Court declined to reduce the fee award to an amount so little as to effectively result in a denial of all fees. To do so would contravene the statutorily mandated award of attorneys' fees and thwart the legislative purpose of deterring future violations of the Hague Convention. Accordingly, the Court reduced the fee award by 55%. A reduction on the account of straitened financial condition, however, would not be applied to litigation costs and out-of-pocket expenses.    Accordingly, the Court ordered Respondent to pay attorneys' fees  of $8,617.50.

Petitioner requested an award of $11,718.16 as litigation costs incurred on her
behalf by TRLA. Federal courts may only award those costs articulated in 28
U.S.C.  1920 absent explicit statutory or contractual authorization to the contrary."  Costs taxable under § 1920 are per se awardable under § 11607(b)(3). Under s 1920, a court may tax the following costs: fees of the clerk and marshal; fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; fees and disbursements for printing and witnesses; fees for exemplification and copies of papers necessarily obtained for use in the case; docket fees; compensation of court-appointed experts, interpreters, and special interpretation services. 28 U. S.C.1920. The court allowed the following costs as necessary expenses: fees for filing the action ($350.00), fees for service of summon ($91.30), and compensation of interpreter used at trial ($780 .00).  Petitioner itemized $65.56 for freight/postage expenses, without explaining for what purposes the freight was used. Because the Court was unable to determine their necessity without further elaboration, it disallowed this amount.  Petitioner sought $1075 for translation services. These costs were necessary and  the Court allowed them.  Petitioner itemized $384 as transcript fees. The Court deem these costs as necessary. (28 U.S.C.  1920(2) ("Fees for ... transcripts necessarily obtained for use in the case."). Petitioner asked for $401.50 as costs for a court reporter and $150 for a videographer. The Court allowed the costs for the court reporter, but not the costs for videographer.   Petitioner requested reimbursement of travel expenses incurred for Browns trips between Weslaco and El Paso. Reasonable transportation and lodging costs incurred by an out-of-town attorney are awardable under  11607(b)(3).  A total of $1446.10 was disallowed, resulting in awardable travel expenses in the amount of $2146. Petitioner requested $4828.70 in expert fees for services rendered by Mariano Nunez Arreola. An attorney licensed to practice law in Mexico. Arreola worked for TRLA as its foreign legal advisor and served in this action as an expert on Mexican law. He provided his expert opinions on the issue of whether Petitioner's custody rights under Mexican law are "rights of custody" under the Convention. Hague Convention, art. 3. His services included researching the Federal Civil Code of Mexico, the Chihuahua Civil Code, and Mexican Jurisprudencia, interpreting the relevant law, and preparing two affidavits. Such services were clearly necessary to establish Petitioner's entitlement to the
return remedy, as contemplated by the Convention. Accordingly, costs incurred for services rendered by Arreola were  generally awardable. The Court scrutinized the  claimed expert fees for reasonableness and necessity and disallowed some of his time as well as $748.70 billed as travel expenses incurred for his trip to El Paso
to attend the hearing.