Pignoloni v Gallagher, Slip Copy, 2012 WL 5904440 (E.D.N.Y.) [Italy] [Consent]

In Pignoloni v Gallagher, Slip Copy, 2012 WL 5904440 (E.D.N.Y.), Petitioner Fabrizio Pignoloni ("Petitioner") filed a petition under the Hague Convention
seeking an order directing Respondent Luise Ann Gallagher ("Respondent") to
return their two minor sons, E.G.P. and A.T.P. to Italy. Respondent maintained that
her removal and retention of the children were authorized by a consensual separation
agreement signed by Petitioner and ratified by an Italian court. The Court found that the consensual separation agreement authorized Respondent to return to the United
States with the children and therefore denied Petitioner's application for relief.

In December 2003, Petitioner, an Italian citizen, met Respondent, a United
States citizen, in New York. During that time, Respondent worked full-time at Polo Ralph Lauren ("Polo") as a technical designer, and Petitioner managed Soho IT Services, an information technology company that he owned for over twenty years, as of the date of the hearing in this action. On June 24, 2005, Petitioner married Respondent in New York, and shortly thereafter, returned to Italy. At the time of their marriage, Respondent worked at Polo and continued to work there until the end of On November 28, 2005, Petitioner's and Respondent's first son, E.G.P., was born in New York. In January 2006, Respondent and E.G.P. relocated to Italy. Respondent
returned to work in or around late 2006 or early 2007 and thereafter completed
various part-time projects for Polo in New York, requiring her to leave Italy for
weeks or months at a time. A.T.P. was born on September 18, 2008 in Ancona, Italy, and Respondent resumed her part-time work for Polo in New York a few months later. After the birth of A.T.P., Petitioner and Respondent experienced marital discord. During the summer of 2010, Respondent traveled to New York for a few months to work. Between June and August 2010, Respondent worked in New York for about two or three months without interruption. Upon Respondent's return to Italy, the marital problems reemerged, resulting in the parties' consensual separation.

In September 2010, Petitioner and Respondent formally entered into a separation agreement, which was ratified by an Italian court. Both parties were represented by counsel when they negotiated the terms of and entered into the September 2010 Separation Agreement. In accordance with the September 2010 Separation Agreement, Petitioner moved out of the parties apartment immediately after the separation. During this time, Respondent stopped working in order to stay home with A.T.P., who was diagnosed with muscular dystrophy, and did not return to work until approximately May 2011. Petitioner continued working to support the family and to pay Respondent the monthly child and spousal support obligations required under the  September 2010 Separation Agreement which required Petitioner to pay Respondent 500 per month in spousal support and 400 in child support for their two children. On April 29, 2011, Petitioner and Respondent signed a supplemental separation agreement that was subsequently integrated into the September 2010 Separation Agreement. In connection with the April 2011 Separation Agreement, Petitioner and Respondent were represented by Attorneys. On May 25, 2011, the Italian court ratified the April 2011 Separation Agreement, and the presiding judge so ordered the agreement. The April 2011 Separation Agreement contained provisions related to Petitioner's support obligations, Respondent's rights to travel for work, the parties' rights to travel with the children, and the parties' respective custody rights. Paragraph C of the April 2011 Separation Agreement set forth the joint custody rights of Petitioner and Respondent and specified that the children will live with Respondent in their Via Minucia apartment. Paragraph C further stated that the "mother, at the end of the children's school commitments, will also be able to spend one month in the company of the children in Italy or in any other place outside Italy, either in Europe as well as in the United States or in any other part of the world, as long as it has previously been agreed on with the husband." Paragraph D of the April 2011 Separation Agreement stated that "Mr. Pignoloni will take exclusively upon himself the obligation of child support paying to the wife 200/00 (two hundred/00 euros) ... for each son to be deposited, within the first five days of every month, in the bank checking account in the name of Mrs. Gallagher." Paragraph E of the April 2011 Separation Agreement reflected a reduction of 400 per month in spousal support from the September 2010 Separation Agreement as follows: "Fabrizio Pignoloni binds himself to pay to the wife spousal support of a monthly amount of 100/00 (one hundred/00 euros) ... within the first five days of every month by means of a credit transfer to the bank checking account in the name of Mrs. Gallagher."

Paragraph F of the April 2011 Separation Agreement set forth Petitioner's obligation to pay the rent on the Via Minucia apartment and provided that "Fabrizio Pignoloni binds himself to pay the rent of the apartment in Via Minucia, equal as of today to 456/00 monthly ... by making payment directly to the owners." Paragraph F further stipulated that "[i]n the case of relocation agreed on between the spouses of Mrs. Gallagher and the children to a different lodging, he binds himself to pay the new rent up to 600/00 monthly. Paragraph L delineated Respondent's right to travel to New York for work reasons and stateed that Petitioner "authorizes temporary transfers of his wife to  New York or to the United States generally for work reasons and for certain periods of time limited to the execution of the work itself ... [and] authorized the wife's departure from the home for a few days to sit for job interviews."

Paragraph O, a new provision added to the April 2011 Separation Agreement at the request of Respondent, provided that [i]n case of non-payment of several monthly rent installments by Mr. Pignoloni resulting in lawsuits on behalf of the owners / or of non-bank-deposit for at least four months of the support for the children and for the wife and should the wife be unable, not having any type of income of her own, to support and maintain the children and herself, Mr. Pignoloni is willing to authorize the wife to return with the children to the United States to her family's home provided that the wife proves that she has found a job of her own. Petitioner testified that he and his attorney had no objection to the addition of Paragraph O because he believed that Paragraph O was essentially meaningless and did not change anything with respect to his rights even though Respondent accepted a lower support payment in exchange for including Paragraph O in the April 2011 Separation Agreement. Respondent, who was to receive 400 less per month in spousal support under the April 2011 Separation Agreement, believed that Paragraph O was an important "safety net" that permitted her to return to the United States with the children in the event that Petitioner failed to comply with his support obligations under the separation agreement.

Petitioner conceded that between September 2011 and April 2012, he failed to deposit the required monthly payments of 500 into Respondent's bank account within the first five days of each calendar month, as required by the April 2011 Separation Agreement. The evidence revealed deficiencies in Petitioner's total spousal and child support obligations in the amount of 500 per month between the months of September 2011 and April 2012. Petitioner routinely failed to pay rent for the Via Minucia apartment where Respondent and the children resided, resulting in the commencement of an eviction proceeding. Respondent credibly testified that between September 2011 and April 2012, she would have been unable to pay for
her living expenses, childcare expenses, and the rent. On February 28, 2012,

Petitioner signed a new lease for a different residence in Ascoli Piceno. During the last week of March 2012, Respondent and the children moved out of the Via Minucia
apartment and into the new residence. Petitioner testified that he paid rent in advance
for the new apartment for the months of April, May, and June 2012. At trial, Petitioner
and Respondent advanced seemingly contradictory testimony regarding whether
Respondent notified Petitioner and obtained his express consent to travel to New York with the children prior to her departure in April 2012. The Court found resolution of this factual dispute unnecessary to determine the issues before the court, but found Respondent's testimony to be credible.

On April 24, 2012, Respondent departed from Italy with the children and
traveled to New York. Prior to her departure, Respondent did not provide Petitioner with any contact information for herself or the children because Petitioner had all of Respondent's contact information for Respondent's family in the United States. On or around June 6, 2012, Petitioner filed an application under the Hague Convention with the Italian Central Authority, although it did not appear that Respondent was notified of that Hague Convention application. On June 24, 2012, Respondent sent Petitioner an e-mail, in which she expressed her intent to remain in the United States with the children and stated the following: Fabrizio, Due to your failure to support the children and I by not paying 9 months support and 18 months of our rent which had caused us to be evicted. The children and I are staying here in the United States because I have found a job and will provide them with the necessary care in a stable enviornment [sic]. regards, Louise Gallagher Pignoloni

On July 3, 2012, Petitioner filed the Hague Convention petition in the United States District Court for the Eastern District of New York. On July 27, 2012, Respondent filed her Answer to the Hague Convention Petition. In that Answer, Respondent argued that her removal and subsequent retention of the children in the United States were justified because the conditions of Paragraph O of the April 2011 Separation Agreement were satisfied by (1) Petitioner's failure to pay rent and support payments and (2) Respondent's acquisition of stable employment with Polo.

The District Court held that the interpretation and application of Paragraph O read in the context of the April 2011 Separation Agreement was crucial to the court's ultimate determination regarding whether the Respondent's removal and retention of the children in the United States was wrongful. Paragraph O, stated as follows:

[i]n case of non-payment of several monthly rent installments by Mr. Pignoloni
resulting in lawsuits on behalf of the owners / or of non-bank-deposit for at least four months of the support for the children and for the wife and should the wife be unable, not having any type of income of her own, to support and maintain the children and herself, Mr. Pignoloni is willing to authorize the wife to return with the children to the United States to her family's home provided that the wife proves that she has found a job of her own.

The District Court observed that in the Second Circuit, the law is " 'unsettled
when it comes to applying either a federal common law choice of law rule or state
choice law principles in non-diversity cases.'" (quoting Pescatore, 97 F.3d at 12).

Nevertheless, both federal and state choice of law approaches demand the application of Italian contract law when interpreting, construing, and applying Paragraph O of the April 2011 Separation Agreement. The April 2011 Separation Agreement was negotiated in Italy, entered into in Italy with the advice of Italian attorneys, and thereafter approved by an Italian court. Consequently, it held that Italian substantive law, specifically those provisions set forth in the Italian Civil Code, must guide the interpretation, construction, and application of Paragraph O and the rest of the April 2011 Separation Agreement. The court took judicial notice of and relied chiefly upon the Italian Civil Code provisions as critical guideposts in its interpretation, construction, and application of Paragraph O and the rest of the April 2011 Separation Agreement.

The district court observed that other courts in the Second Circuit have applied foreign contract and domestic relations law in interpreting parties' mutual agreements in Hague Convention cases. See A.A.M. v. J .L.R.C., 840 F.Supp.2d 624, 629-39 (E.D.N.Y.2012), aff'd, Mota v. Castillo, 692 F.3d 108 (2d Cir.2012). The court construed the September 2010 and April 2011 Separation Agreements as valid contracts under Italian law.

Petitioner argued that Paragraph O contemplates satisfaction of the following three requirements before Respondent is authorized to return to the United States with
the children: (1) Petitioner must fail to pay several monthly rent installments
resulting in a lawsuit OR must fail to deposit into Respondent's bank account four
months of spousal and child support; (2) Respondent must be unable to support the
children and herself and must not have any income of her own; and (3) Respondent
must prove to Petitioner that she has found a job of her own. Petitioner further argues that Respondent cannot have any income in Italy in order to satisfy the second condition because the language of Paragraph O stipulates that she be "unable, not having any type of income of her own." Petitioner lastly contends that, even upon satisfaction of the three required conditions, Respondent must still seek authorization from Petitioner because the contractual language only indicates that he "is willing to authorize" Respondent's return with the children to the United States and thus provides no guaranteed right for her to leave Italy and return to the United
States with the children.

Respondent argued that Paragraph O constituted authorization by the Petitioner, ratified by the Italian court, for her to return to the United States with the children upon satisfaction of the following two conditions: (1)(a)Petitioner must fail to pay several installments of rent resulting in lawsuits against the Petitioner and Respondent, OR (b)Petitioner must fail to pay at least four months of child and spousal support, and Respondent must be unable to support herself and the children as a consequence; and (2) Respondent must demonstrate that she has found a job of her own. Respondent maintains that, based upon common sense, grammar, and logic, the requirement that Respondent be "unable to support herself" applied only to the circumstance in which Petitioner has failed to pay four months of spousal and child support and not to the alternative circumstance in which Petitioner had failed to pay his rental obligations. (Id. at 6-7, 9.) Respondent contended that Paragraph O was a self-executing provision and that she need not obtain further additional authorization from Petitioner or go back to the Italian court before exercising her right to return to the United States with the children and remain there once the conditions of Paragraph O have been satisfied.

The district court rejected Petitioner's interpretation of Paragraph O and found that the interpretation offered by Respondent was reasonable and supported by the facts and the law.

The Court agreed that the language of Paragraph O of the April 2011
Separation Agreement contemplated two separate contingencies under which the
Petitioner and the Italian court authorized Respondent to exercise her right to
return with the children to the United States. Under the first contingency in
Paragraph O, Petitioner and the Italian court authorized Respondent to return to
the United States with the children (1) if Petitioner failed to pay several rent
installments resulting in legal proceedings against the Petitioner and Respondent
and (2) if Respondent could demonstrate that she found a job. Under the second
alternative contingency, Respondent was authorized to return to the United States
with the children (1) if Petitioner failed to deposit into her account at least
four months of spousal and child support; (2) if Respondent was without income
that would enable her to support herself and the children in Italy in light of
Petitioner's failure; and (3) if Respondent could demonstrate that she found a
job. The court thus agreed with Respondent that the condition requiring Respondent
to be "unable to support herself" applied only to the circumstance in which
Petitioner fails to deposit four months of spousal and child support payments as
required by the separation agreement. The structure and text of Paragraph O
supported this interpretation.

Applying Paragraph O according to the interpretation set forth above, the court
concluded that the conditions of Paragraph O have been met and that Respondent was therefore authorized to remove the children from Italy and to return with them to
the United States.

The Court found that the children's habitual residence at the time of their removal was Italy. The Italian court ratified and so ordered the April 2011 Separation Agreement only after "[c]onsidering the opinion expressed by the public
prosecutor's office ... after having verified that the conditions of the separation are not contrary to the law, the public order and the public morality." Thus, Paragraph O permitted Respondent to remove the children and relocate to the United States. The Court held that as testified to by Petitioner's Italian law expert, in Italy, where, as here, an agreement sets forth conditions triggering a parent's right to remove the children and relocate to another country, the realization of those conditions alone is sufficient to permit that parent to exercise that right. The Court rejected Petitioner’s reliance upon a letter from the Italian Central Authority, in which the Central Authority apparently determined that Respondent's removal of the children was wrongful under 574-bis of the Italian Penal Code. In its letter, the Central Authority advised that Respondent was under criminal investigation for child abduction under Italian Penal Code 574-bis and that "in spite of the agreements signed within consensual separation proceedings, [Respondent's] sudden disappearance with her children without previously informing the father thereof is considered as a criminal offence in our legal system." The court accorded no weight to the cursory statement contained in the Central Authority's letter, particularly in light of the admitted lack of notice and opportunity for Respondent to offer facts that would have provided the Italian authorities with a more complete and balanced understanding of the circumstances. The court noted that, as it had previously determined at trial, the Central Authority's letter, although admitted into evidence, did not constitute an Article 15 letter under the Hague Convention because neither the court nor the United States Department of State requested Petitioner to obtain this ruling from the Central Authority. see Hague Convention, art. 15. Moreover, even if the letter were an Article 15 determination, the court could take notice of, but was not bound by that determination. See Norden-Powers, 125 F.Supp.2d at 635 n. 1 (noting that the court "may under Article 15 take notice of ... decisions" made by the Australian family court).

For these reasons, the court found that Petitioner had failed to establish, by
a preponderance of the evidence, that his custody rights were violated and that
Respondent's removal of the children was wrongful within the meaning of the Hague
Convention. As such, Petitioner failed to establish his prima facie case that
Respondent's removal of the children on April 24, 2012 was wrongful. The Court concluded that Paragraph O constituted Petitioner's pre-committed consent to Respondent's departure from Italy conditioned upon the satisfaction of Paragraph
O's enumerated conditions. A.A.M., 840 F.Supp.2d at 632 (quoting Hague Convention,
art. 13(a)). Paragraph O set forth the parameters that would trigger Petitioner's consent to Respondent's removal of the children to the United States. All of those parameters were indisputably met.

In addition to Petitioner's failure to satisfy his prima facie burden to establish that the children were removed wrongfully in violation of his custody rights, Respondent also established, by a preponderance of the evidence, that Petitioner both consented to Respondent's removal of the children when Respondent informed him of her plans prior to her departure in April 24, 2012, and also consented by agreeing to Paragraph O, pursuant to which the conditions precedent came to pass prior to her removal of the children from Italy.

Paragraph O also authorized Respondent to retain the children in the United
States in late June 2012. In many ways, the court's analysis with respect to
Respondent's April 2012 removal of the children from Italy applied with equal, if
not greater, force to Respondent's retention of the children in June 2012. All of
the conditions precedent necessary to trigger Respondent's retention rights under
Paragraph O came to pass prior to her June 2012 determination to retain the
children in the United States. Petitioner had already failed to pay months of rent
and child and spousal support, and Respondent, who had a job of which Petitioner
was fully aware, was unable to support herself and the children in Italy because
of Petitioner's routine failure to satisfy his obligations under the April 2011
Separation Agreement. The court determined that Paragraph O of the April 2011 Separation Agreement, the conditions of which were fully satisfied by Petitioner's routine failure to fulfill his support and rent obligations, by Respondent's job as the owner of her own company and a freelance worker for design companies (and Petitioner's knowledge thereof), and by Respondent's inability to support herself and the children because of Petitioner's habitual failure to comply with his court-ordered support obligations-authorized Respondent to return and remain in the United States with the children. Petitioner's request for relief under the Hague Convention was denied and the petition was dismissed.

Vujicevic v Vujicevic, 2012 WL 5896766 (S.D.N.Y.) [Croatia] [Federal & State Judicial Remedies] [Service of Process]

In Vujicevic v Vujicevic, 2012 WL 5896766 (S.D.N.Y.) petitioner filed a Verified Petition for the Return of the Child to Croatia on September 21, 2012. On October 9,
2012, petitioner filed a Petition for Warrant in Lieu of Writ of Habeas Corpus. Six days later, on October 15, 2012, the Court filed a Memorandum declining to grant the Petition for Warrant due to lack of personal jurisdiction, without prejudice to reconsideration if petitioner later established jurisdiction. Vujicevic v. Vujicevic, No. 12 Civ. 7149, 2012 WL 4948640 (S.D.N.Y. Oct. 15, 2012). In its Memorandum, the Court noted that it could exercise personal jurisdiction over respondent only if respondent had been served. The Court also observed that service was specifically required by the International Child Abduction Remedies Act, 42 U.S.C.11601-11610 (2006) (citing 28 U.S.C. s 1738A(e) (2006); 42 U.S.C. § 11603(c); N.Y. Dom. Rel. Law § 76-d (McKinney 2012)). Because the docket sheet indicated that respondent had not yet been served, the Court concluded that it did not have personal jurisdiction over respondent.

On October 16, 2012 petitioner filed a Motion for an Order to the United States Marshal to Serve Respondent. In that Motion, petitioner noted that under ICARA,
service must be effected pursuant to New York law, specifically section 308 of the
C.P.L.R. (citing Vujicevic v. Vujicevic, 2012 WL 4948640; Ebanks v. Ebanks, No. 07-CV-314, 2007 WL 2591196, at *3 (S.D.N.Y. Sept. 6, 2007)). Petitioner argued that service under subsections (1), (2), or (4) of section 308 was impracticable because petitioner was unaware of respondent's exact whereabouts or her "actual place of business, dwelling place or usual place of abode.".Petitioner contended, however, that respondent was likely present in New York State and that service under subsection 308(5) was appropriate. C.P.L.R. §308 provides, in part:"Personal service upon a natural person shall be made by any of the following methods: ... 5. in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section.". Noting that the Court had authority to order the U.S. Marshal to effect service and that the Department of State had information that might aid the Marshal in locating respondent, petitioner moved for an Order to Show Cause, to prohibit the removal of the child from this jurisdiction, and to direct the U.S. Marshal to serve respondent and to seize all passports and travel documents for respondent and the child.

On October 22, 2012, the Court issued an Order to Show Cause, directing, that the U.S. Marshal "(I) serve Respondent with a copy of th [e] Order, as well as the Verified Petition (and all attachments), and (ii) seize all passports and travel documents for the Respondent Adriana Vujicevic and the Child, ."Vujicevic v. Vujicevic, No. 12 Civ. 7149 (S.D.N.Y. Oct. 22, 2012). Since the Order to Show Cause was issued, the U.S. Marshal diligently attempted to serve respondent. The Marshal was not been able to serve respondent within New York State.

The Court noted that under Rule 4(m) of the Federal Rules of Civil Procedure, a petitioner has 120 days from the date on which his Verified Petition was filed to achieve service. Although New York law governs the method by which the Hague Convention petitioner was required to effect service, Federal Rule of Civil Procedure 4(m) governs the deadline for service. If a petitioner fails to serve a respondent within 120 days, "the court-on motion or on its own after notice to the [petitioner]-must dismiss the action without prejudice against that [respondent] or order that service be made within a specified time."Fed.R.Civ.P. 4(m). The Court directed that unless petitioner effected service or could show good cause why his time to serve should be extended, the matter would be dismissed without prejudice on January 22, 2013.

Walker v Walker, 2012 WL 5668330 (C.A.7 (Ill.) [Australia] [Habitual Residence] [Consent]

In Walker v Walker, 2012 WL 5668330 (C.A.7 (Ill.) Iain Walker, a citizen of Australia, filed suit to compel his wife, Norene, a citizen of the United States, to return the couple's three children to Australia. Iain and Norene were married in Chicago in 1993. They lived in Seattle, Washington, until 1998 when they moved to Perth, in Western Australia. The couple's eldest child was born in the United States in 1997, but lived in this country only one year; the two younger children were born in Australia in 1999 and 2001.

Although Norene testified that she and Iain initially intended to stay in Australia for only five years, they ended up spending 12 years there. Over this period, they and their children appeared to be well-settled: they owned a home, furniture, and a dog named Chubba; the children attended school, had friends, and participated in activities; and Iain worked as a software test engineer while Norene cared for the children.

In June 2010, the Walkers traveled to the United States. When they left Australia,
both Iain and Norene expected that Norene and the children would remain in the United States for six months to one year. According to Iain, the plan was for Norene and the children to live with Norene's parents in Chicago while the family demolished its existing house in Perth and built a new one. According to Norene, the trip was intended as an extended prelude to a permanent move to the United States; she testified that Iain promised to look for a job in Chicago and that they looked at real estate in San Francisco and Seattle. Although both recalled that Norene and the children had concrete plans to return to Australia by June 2011 at the latest, Norene labeled this most likely a temporary visit and Iain understood it to be a permanent return. After spending several weeks with Norene and the children in the United States, Iain returned to Australia in late July 2010. In November, Norene filed for divorce in Cook County, Illinois. As of that time, she said, she had not made up her mind whether she (and presumably the children) would remain in the United States permanently or return to Australia.

  
Upon receiving Norene's petition for divorce, Iain's lawyer in Australia sent a letter to Norene's attorney offering to settle the divorce out of court. The letter also dealt with the division of property. Notably, the letter explicitly referred to the Hague Convention. On Iain's behalf, the lawyer asserted that "[t]he parties' habitual residence is quite clearly Australia," and that Iain "would clearly be entitled to bring an Application under the Hague Convention to have the children returned to Australia."In closing, the letter stated "this offer is open for a period of 7 days ... and if not accepted [Iain] will then proceed to exercise his full rights pursuant to the Hague Convention, and do all that is required to ensure that proceedings are transferred" to the Family Court of the State of Western Australia. The January 21 letter marked a turning point for Norene. She regarded it as giving her permission to stay in the United States and indicating that Iain "didn't want the kids." She testified that shortly after receiving the letter, she made up her mind not to return to Australia. The negotiations ended without a resolution in mid-February. Iain immediately filed a request for the return of the children with the Australian Central Authority charged with administering the Convention. In May, Iain filed a petition for return in the district court for the Northern District of Illinois. Following a two-day evidentiary hearing, the district court denied the petition.

The Seventh Circuit rejected Noreens argument that the case was mooted by an Illinois state-court judgment awarding sole custody of the children to Norene.
According to Norene, the Illinois judgment conclusively resolved the parties'
custody dispute in her favor and precluded the court from ruling that the Hague
Convention required the custody determination to occur in the courts of Australia.
It observed that Article 17 of the Hague Convention expressly states that "[t]he sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention." This treaty provision qualifies the finality of any state-court custody judgment and thus ensures that there is still a live controversy before the federal court.

It distinguished Navani v. Shahani, 496 F.3d 1121 (10th Cir.2007) which did not address this question. The issue of habitual residence, and thus the question of which country's courts had the power finally to determine custody under the Convention, was not before the court in Navani. Here, Iain and Norene disputed habitual residence. Until that question is resolved, it could not say which country's courts had the power to resolve the issue of custody. As Article 17 of the Convention implies, this antecedent question must be answered before the court knows what weight to give to the judgment of the Illinois court. Accepting Norene's position that an abducting parent may render a petition for return moot by racing to a courthouse in her chosen country to obtain a custody judgment would turn the Convention on its head. To consider this case moot would encourage the very sort of jurisdictional gerrymandering the Convention was designed to prevent.

The Court of Appeals also held that the district court's decision to admit the January 21 letter into evidence over Iain's objection that the letter was an offer of settlement and thus inadmissible under Federal Rule of Evidence 408 was error. Iain challenged the district court's findings that he (1) failed to establish that the  children were habitually resident in Australia; (2) failed to establish that he was exercising his custody rights; and (3) consented to the children remaining permanently in the United States.

The district court identified May 4, 2011, the day Iain filed his petition for return in the district court, as the date the retention began. It considered that to be the date when
Iain first "unequivocally signaled h[is] opposition to [the children's] presence in the
United States."Although Iain had expressed his intent to file a petition for return of the  children in the January 21 letter (and again in a follow-up letter on February 16), the district court declined to view these statements as "unequivocal[ ] signal[s]" of opposition because, in the court's view, "it was apparent that Petitioner was referring to the Convention as a bargaining chip." Nothing but speculation supported the
district court's "bargaining chip" idea. The January 21 letter unequivocally said that "[t]he parties' habitual residence is quite clearly Australia."It goes on to point out that the "clearly appropriate forum" for the parties' divorce proceedings is Australia and that it is "an abuse of process to unilaterally decide to remain in the United States."It then repeats that "Western Australia is the habitual residence of the children."Finally, the letter announces Iain's intent to file a petition under the Hague Convention, a step that he confirmed in his February 16 letter. Under the circumstances, it was hard to see how much more "unequivocal" one could be. For purposes of analysis, the court assumed that the retention began on January 21, or, at the latest, several weeks thereafter.

The Court of Appeals observed that to prevail on his petition, Iain was required to show that Australia was the children's habitual residence at the time of their retention in the United States. It explained in detail how to determine a child's habitual residence in Koch v. Koch, 450 F.3d 703 (7th Cir.2006). In a case of wrongful detention the court determines a child's habitual residence by asking whether a prior place of residence ... was effectively abandoned and a new residence established by the shared actions and intent of the parents coupled with the passage of time. Because the parents often dispute their intentions, "the court should look at actions as well as declarations" in determining whether the parents "shared an intent to abandon a prior habitual residence."

The district court found that the children's habitual residence became the United States by January 21, 2011, at the latest. This conclusion was premised on the
following findings: that Iain consented to the children's living in the United States in
the January 21 letter; that five months passed between the letter and the filing of
the petition for return in district court; and that Iain and Norene looked for houses in
the United States. The first finding fundamentally misreads the January
21 letter. The problem with the second finding was that Iain took prompt steps to secure the children's return by filing a request for return with the Australian Central Authority in mid-February 2011, as soon as it became apparent that a negotiated settlement was not forthcoming. The Court could not find enough in the record to support the conclusion that Iain and Norene arrived in the United States with the shared intention of abandoning Australia and establishing a new habitual residence here.

Assuming that the children's habitual residence was Australia, Iain must still show he
was "actually exercis[ing]" his custody rights at the time of the retention. Art. 3. The
standard for finding that a parent was exercising his custody rights is a liberal one, and  courts will generally find exercise whenever "a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child." Bader v. Kramer, 484 F.3d 666, 671 (4th Cir.2007) Indeed, "a person cannot fail to 'exercise' [his] custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child." Friedrich, 78 F.3d at 1066. Although it acknowledged the liberal nature of the standard, the district court  nevertheless found that Iain had "abandoned" his children. In support of this rather
extreme conclusion, the court noted that Iain did not return to the United States after
July 2010, that he ceased supporting Norene financially after January 21, 2011, and
that his January 21 letter was mainly concerned with "the negotiation of support
payments and property settlement." All of those things may be true, but they did not add up to "unequivocal abandonment" of the children (as opposed, perhaps, to Norene). The district court overlooked Norene's undisputed testimony that Iain keeps "regular contact" with the children by speaking to them weekly over Skype. Just as the January 21 letter did not show that Iain consented to the children's remaining in the United States, it similarly did not show that Iain was interested exclusively in reaching a settlement regarding marital property. A letter that requests custody for the children's entire summer vacation plus Christmas and asks for multiple visitation opportunities at other times of the year can hardly be characterized as indifferent to custody issues.

lain's lack of financial support after January 21, 2011, was not enough for a finding of abandonment. Because non-exercise is evaluated at the time of the retention, which must have occurred on January 21 or shortly thereafter, lain's failure to provide support after the retention was irrelevant to whether he was exercising his custody rights when the wrongful retention began. See, e.g., Baxter v. Baxter, 423 F.3d 363, 369 (3d Cir.2005) The cases that address some version of this issue have found that a parent does not fail to exercise his custody rights merely by failing to provide financial support for some period prior to the removal or retention. The Court could not find on the current record that Iain's failure to provide financial assistance while Convention proceedings are pending amounted to a failure to exercise his custody rights.

Even if Iain had established a case for return under the Convention, he could
have waived that right if he consented to, or acquiesced in, the children's remaining in the United States with their mother. Art. 13. Consent and acquiescence are analytically distinct defenses to return under the Convention. Baxter, 423 F .3d at 371. The consent exception applies when a petitioning parent, either expressly or through his conduct, agrees to a removal or retention before it takes place. A parent's consent need not be formal, but "it is important to consider what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country. Acquiescence is implicated if a petitioning parent agrees to or accepts a removal or retention after the fact. Baxter, 423 F.3d at 371. Unlike consent, acquiescence must be formal, and might include "testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time." One way or another, the "exceptions [must] be drawn very narrowly lest their application undermine the express purposes of the Convention. The Article 13 exceptions are  permissive: a court may order return even if it finds that the parent opposing the petition has established that one of the exceptions applies.

The district court found that Norene had established consent. The bases for this
conclusion were the January 21 letter, which the district court characterized as indicating Iain's "unconditional consent" to the children remaining in the United States, Iain's failure to visit the United States after July 2010, and his failure to provide financial support. The January 21 letter could not be read as an expression of consent, let alone unconditional consent, to anything. The letter was an opening offer, a single stage in a negotiation; it conceded nothing and in any event was rendered null by the parties' failure to come to an agreement. Apart from the letter, the district court's remaining justifications were either clearly erroneous or irrelevant.

Having concluded that the district court's decision the Court remanded for further fact finding setting forth the questions the district court must resolve taking evidence as necessary.

Estrada v. Salas-Perez, 2012 WL 4503147 (N.D.Ill.) [Mexico][Habitual Residence] [Grave Risk of Harm]

In Estrada v. Salas-Perez, 2012 WL 4503147 (N.D.Ill.) Petitioner Enrique Estrada and Respondent Sofia Salas-Perez were the parents of a seven year-old child. On February 13, 2012, Estrada filed a Hague Convention petition in the district court. The district court granted the petition.

Estrada was born in Mexico and moved to the United States in or around 1996. He was a Mexican national. Estrada moved from Illinois back to Mexico in May 2007. . Salas-Perez was born in Mexico and moved to the United States in or around 2001 with her son Rigoberto. She was a Mexican national and currently resided in Illinois.Estrada and Salas-Perez met in Mexico as children. When Salas-Perez first moved to Chicago, Estrada helped her get situated. On October 5, 2004, in Chicago, Salas-Perez gave birth to the child. Estrada's and Salas-Perez's romantic relationship ended in or around May 2006. On July 17, 2006, Estrada filed in the Circuit Court of Cook County, Illinois, a petition to establish his paternity of the child. On August 25, 2006, the Illinois court entered an agreed order awarding Estrada the "sole care, custody, control and education" of the child. Salas-Perez was given weekend visitation rights and was required to pay child support. After losing his job, Estrada decided in 2007 that he wanted to move back to Mexico with the child. Without obtaining Salas-Perez's consent or the Illinois court's permission, Estrada moved with the child to Mexico on May 27, 2007. Salas-Perez did not have advance notice of the move and did not learn that Estrada had left for Mexico with their child until days later. On July 17, 2007, on Salas-Perez's motion, the Illinois court entered an emergency order of protection requiring Estrada to return the child to Illinois, in compliance with the  court's August 2006 custody order. On July 26, 2007, Salas-Perez submitted a Hague Convention petition to the United States Department of State, claiming that Estrada's removal of the child to Mexico was wrongful because it violated her custody rights under the Illinois court's August 2006 and July 2007 orders. Salas-Perez's petition eventually was registered in the Family Court of Cuautitlan Izcalli, Mexico. Estrada enrolled the child in kindergarten and elementary school in Mexico. On May 16, 2009, Estrada married a woman named Janet. Estrada did not learn of Salas-Perez's Hague Convention petition until June 2009, when he was served with process by a Mexican court officer.

In January 2010, Salas-Perez, filed a Motion for Modification of Parenting Agreement in the Illinois court. The motion asked the state court to modify the August   2006 order to give Salas-Perez sole custody of the child. In early 2010, Estrada and Salas-Perez spoke about negotiating a custody agreement; Salas-Perez credibly testified at the evidentiary hearing, without contradiction, that Estrada threatened that she would not be able to see the child unless she reached an agreement with him. An agreement was reached with the assistance of the parties' lawyers; Salas-Perez's lawyer was not licensed to practice in Mexico. Salas-Perez's lawyer told her that it might be difficult for the Mexican authorities to bring Estrada into court, and that the fastest and surest way for her to see the child again would be to reach an agreement. In March 2010, the Office of the Secretary of Foreign Relations of Mexico wrote a letter to the Mexican family court reporting that the parties had reached an agreement regarding custody. The letter noted that Salas-Perez had submitted the custody agreement to the Secretary of Foreign Relations for the purpose of having it signed by Estrada and ratified by the Mexican court. Salas-Perez signed the custody agreement at the Mexican Consulate in Chicago in front of a consular official. The custody agreement was entered on March 17, 2010, by the Mexican family court. The court order was signed by the Mexican judge, a representative of the Mexican Ministry of Foreign Affairs, Estrada, Estrada's attorney, and Silvia Torres Elizondo. Elizondo signed on Salas-Perez's behalf, having previously been granted power of attorney.

The March 2010 custody agreement provided for shared custody. It stated that  the child shall remain "under the care and attendance of her father [Estrada] in the  domicile located in [Cuautitlan Izcalli, Mexico] in reason of considering both convenient  and healthy for their minor daughter." It further provided that the child shall  attend school in Mexico under her father's "attention," that Salas-Perez shall have  phone privileges while the child is in Mexico, and that the child shall visit Salas-Perez in
Illinois during school breaks in December, Holy Week, and the summer. The  agreement also provided that the child shall return to Mexico from Illinois around the time school resumes after those breaks. n August 3, 2010, the Illinois court entered an order stating: “As this settlement agreement addresses all issues before this Court and the respondent having moved this Court for leave to withdraw her Motion to Modify the Parenting Agreement, ...respondent is given leave to withdraw her Motion to
Modify the Parenting Agreement.” The order was prepared by Salas-Perez's counsel. In March 2010, July 2010, December 2010, and April 2011, consistent with the March 2010 custody agreement, the child visited Salas-Perez in Chicago for one - to three-week periods. At the end of each of these four visits, Salas-Perez sent the child back to Mexico. The child traveled to Chicago to visit Salas-Perez in May 2011 for summer vacation. Salas-Perez did not allow the child to return to Mexico in August 2011. Salas-Perez retained the child because the child said that she had been abused by Janet (Estrada's wife) in Mexico.

On September 30, 2011, Estrada filed a Hague Convention petition with the  Mexican Central Authority seeking the child's return to Mexico. The Mexican Central Authority forwarded the petition to the United States Central Authority on October 3, 2011.   The district court found that Salas-Perez retained the child in Illinois in August 2011 by failing to return her to Mexico for the start of the school year and that Mexico was the child's habitual residence immediately before the retention occurred. Estrada's unilateral and unauthorized move of the child to Mexico did not in any respect weigh in favor of finding the child's habitual residence to be Mexico. The child's habitual residence was Illinois in the wake of, and in the years following, Estrada's move to Mexico with the child in May 2007. The child's habitual residence changed from Illinois to Mexico in March 2010, when the Mexican family court entered an order ratifying the custody agreement reached by Estrada and Salas-Perez. The March 2010 custody agreement explicitly manifested Estrada's and Salas-Perez's shared intent as of March 2010 that the child spend most of the year with Estrada in Mexico, where she would attend school, and that she stay with Salas-Perez in Chicago only during school vacations. The agreement resolved the judicial proceeding that the Mexican court opened to adjudicate Salas-Perez's Hague Convention petition, which sought the child's return to Illinois; the agreement therefore manifested Salas-Perez's unequivocal understanding and intent that the child's principal residence be Mexico rather than Illinois.

Salas-Perez contended that the March 2010 custody agreement did not reflect her  true intent because it was signed out of fear that Estrada otherwise would have  prevented her from seeing the child. The contention was not without force, and had it  been made immediately after she signed the agreement, a close question would have been presented. But much water passed under the bridge between March 2010, when  the agreement was entered by the Mexican family court, and the summer of 2011;
during that time, Salas-Perez's actions plainly and unequivocally demonstrated that she shared an intent with Estrada that the child's habitual residence be Mexico. Salas-Perez sent the child back to Mexico after four visits to Illinois between  March 2010 and May 2011, reflecting her ratification and acceptance of the custody agreement even if it had been coerced at its inception.

The Court held that Estrada had rights of custody over the child  under Mexican law at the time of the August 2011 retention.. The custody agreement was entered by the Mexican family court in March 2010, and it required Salas-Perez to return the child to Mexico in August 2011 so the child could resume school there. Estrada's custody rights under Mexican law were beyond any reasonable dispute.

Salas-Perez also argued that Article 16 prohibited the Mexican court from deciding "the merits of rights of custody" while her Hague Convention petition was pending. Convention, art. 16 ("After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice."). The argument failed. The Mexican court that entered the March 2010 order was the very court before which Salas-Perez's Hague Convention petition was proceeding, and Salas-Perez expressly agreed to the entry of that order. Salas-Perez's submission that the Mexican court could not approve a custody agreement that she herself reached with Estrada could not be reconciled with Article 13(a), which excuses an otherwise wrongful removal or retention if "the person ... having the care of the ... child... had consented to or subsequently acquiesced in the removal or retention."Convention, art. 13(a)."[I]t is hard to think of a more formal acquiescence than entering into a consent order providing that the other parent be awarded custody ."

The Court held that Salas-Perez's retention of the child in Illinois breached Estrada's custody rights under the March 2010 custody order. By failing to send the child back to Mexico in August 2011, Salas-Perez deprived Estrada of his right to custody of the child during the school year. Estrada exercised and sought to exercise his rights of custody as of the time of retention. Estrada proved by a preponderance of the evidence that Salas-Perez's retention of the child in Illinois was wrongful under Article 3 of the Convention.

The court held that Salas-Perez did not prove grave risk by clear and convincing evidence. In July 2011, Salas-Perez brought the child to see Jennifer Lara, a licensed clinical professional counselor. Lara's written report of August 12, 2011, was admitted into evidence, and Lara testified at the evidentiary hearing.

On the parties' joint motion, the court appointed Dr. Hector Machabanski, Ph.D., a clinical psychologist, as an expert under Federal Rule of Evidence 706. The parties agreed that the court could consider Dr. Machabanski's report without having to call him to testify. They also agreed that neither party would call the child to testify.

Janet required the child to eat food that had been put in a blender. The court credited Lara's unrebutted testimony that the child understood this to be a form of punishment. But the court also credited Estrada's unrebutted testimony that  a doctor in Mexico recommended that the child's food be blended in those instances when the child was experiencing trouble swallowing. The child told Dr. Machabanski that Janet hit her on the arm two or three times, once with a wooden spoon, and that Estrada once hit her on the bottom with a shoe. Lara's report noted that the child said that she had been hit on the arm with a wooden spoon, hit on the bottom (though by Janet, not by Estrada), and thrown onto the couch, but the report did not address the frequency of those physical episodes. Lara's report also noted that the child said that she was forced to eat spicy food without being given water or tea. Dr. Machabanski concluded that "the episodes of hitting in Mexico were rare and unusual events, not recurrent or part of a pattern of violence. Lara testified that she disagree with this conclusion. The court resolves this discrepancy in Dr. Machabanski's favor. Lara's report stated that the child "did not want to return to Mexico with her father ... and his family because they made her feel 'bad.' Lara opined at the hearing that returning the child to Mexico would place her at a grave risk of psychological harm in light of the hitting episodes and the child being required to eat blended food.

Dr. Machabanski's report indicated that when asked about how she was treated in Mexico, her response was 'they treated me well.' When asked about having any problems in Mexico, her answer was 'no.' Later she said that Janet disciplined her, yelled, and hit her. When asked about the hitting, [the child] showed a slight slap on the arm, adding that perhaps it was two or three times and that it was always in the arm and once it happened with a wooden spoon." The report further stated: "When asked about where she would like to live and with whom, [the child] said, 'I don't know' several times. Later, she added that it was a difficult question and that she would like to live with both parents." Dr. Machabanski's report concluded: "While hitting children is not acceptable or an appropriate way of managing or disciplining them, in terms of what is generally defined as child abuse ..., what [the child] seems to report about the incidents in Mexico do not seem to constitute significant or a serious pattern and do not seem to suggest that [the child] would be in any kind of grave risk if she were to return to Mexico. It is possible that the attention given to this matter and/or the reaction of others to the reports of hitting/abuse and other issues in this case would make [the child] highlight or tune into these matters more than might be appropriate. The hitting episodes seem rare and not severe, and [the child] seems to describe her overall life in Mexico as positive and desirable."

The court found Dr. Machabanski's conclusions regarding the risks of returning the child to Mexico more persuasive than Lara's conclusions. The evidence showed that there were a handful of physical episodes during the two years that Janet lived with Estrada and the child. While both Lara and Dr. Machabanski opined that physical discipline was unacceptable, the court agreed with Dr. Machabanski that the "rare and unusual" physical episodes-which in addition to being rare and unusual were not terribly severe when compared by the episodes described in reported Hague Convention cases, did not create a serious risk of physical or psychological harm, let alone a grave risk of such harm. The evidence also showed that the child was required to eat blended-up food on at least one occasion and perhaps others. That may seem unusual, but Estrada and Janet took this step on a physician's advice after the child experienced trouble with swallowing. If Estrada and Janet had not followed that advice, they might have been deemed grossly inattentive for allowing the child to be insufficiently nourished despite having received medical advice on how to address the child's swallowing problems. Their decision to follow the physician's advice could not be deemed to have placed the child at a grave risk of physical or psychological harm.

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.