Acosta v Acosta--- F.3d ----, 2013 WL 3970239 (C.A.8 (Minn.)) [Peru][Grave Risk of Harm] [Expert opinion] [Petition Denied]

In Acosta v Acosta--- F.3d ----, 2013 WL 3970239 (C.A.8 (Minn.)) Ricardo Acosta filed a petition in Minnesota seeking the return of his children to Peru. The district court denied Ricardo's petition, finding that although the children's mother, Anne Acosta , had wrongfully retained the children in the United States, returning the children to Peru would expose them to a grave risk of harm.

On appel Ricardo challenged the district court's credibility determinations but did not otherwise dispute its findings of fact. Ricardo, a Peruvian citizen, married Anne, a United States citizen, in Minnesota in November 2002. After their wedding, the couple made their home in the United States. Anne gave birth to the couple's first child, M.A.A., in February 2003. In the summer of 2006, the Acostas moved to Lima, Peru, where Anne began working at the Roosevelt School. Anne gave birth to the couple's second child, E.T.A., in August 2007. During their marriage, Ricardo verbally abused Anne in the children's presence. He told her that she looked like a "hippopotamus" and called her a "fucking bitch." He also lost his temper and became violent. On one occasion, Ricardo became angry with M.A.A. for talking back and pushed him down onto a bed. On another occasion in 2008 or 2009, Ricardo was driving with Anne and the children when a taxi cut them off. Ricardo forced the taxi to a stop, struck the taxi driver, and shattered the taxi's windshield with a theft-deterrent tool used to lock the family car's steering wheel.

While living in Peru, M.A.A. attended the Roosevelt School. The principal at the Roosevelt School, testified that M.A.A. exhibited significant behavior problems, including telling his teachers that he wanted to kill himself. The principal testified that M.A.A.'s behavior problems were the third most severe she had seen in her nineteen years of teaching. M.A.A. was referred to therapy but ceased attending after only two or three sessions because Ricardo felt that the family could not afford it and believed, based on his own experiences, that therapy was ineffective.

By late 2010, the couple's relationship had deteriorated. They were seeing a  counselor and sleeping in separate rooms. Anne testified that she was afraid of Ricardo  and unhappy in her marriage. In November 2010, the couple agreed that Anne and the  children would go to Minnesota to be with Anne's family over the holidays. Anne's parents urged Ricardo to join the family for the holidays, but he remained in  Peru. Anne and the children left on December 23, 2010, and were scheduled to return
to Peru on February 16, 2011. Anne’s father Stephen noticed that M.A.A. had violent outbursts, wet his bed at night, and said he wished he were dead. Stephen testified that M.A.A. had since enrolled in therapy and that his behavior had improved.

By early February 2011, Anne had told Ricardo that she wanted a divorce and that  she and the children would not be returning to Peru. Anne and her brother, Jeffrey  Campbell (Jeffrey), traveled to Peru on February 11, 2011, to gather her and the  children's belongings from the apartment she and Ricardo had shared. Anne and Jeffrey asked two of Anne's coworkers-Elizabeth Norton LeBoo and Jacob Johansen to accompany them. Anne, Jeffrey, LeBoo, and Johansen arrived at the apartment on
February 13, 2011. Anne called Ricardo from the apartment and told him that she was packing her things. Ricardo reacted badly, telling Anne and Jeffrey that he loved his family and that he was going to kill himself. Ricardo thereafter arrived at the apartment building in a rage, crashing his car into a pole and smashing a window of the taxi waiting for Anne and the others. To prevent Ricardo from entering the apartment, Jeffrey and Johansen tried to hold the apartment door shut. Ricardo kicked it to pieces and forced his way inside. After entering the apartment, Ricardo began throwing items at Anne. Thereafter, he grabbed a knife from the kitchen and chased the men while Anne and LeBoo retreated to a back room. Ricardo chased Johansen outside, where he cut Johansen's leg with the knife. Ricardo returned to the apartment, where he brandished the knife towards Jeffrey, who had backed into a corner. Jeffrey testified that he had begged for his life, believing Ricardo was going to kill him. Jeffrey described Ricardo's appearance as looking like "an enraged doppelganger."
Returning his focus to Anne, Ricardo forced his way into the room where she and LeBoo had hidden. Ricardo then first battered LeBoo and then Anne, notwithstanding the arrival of the police, who stood passively by until finally taking action to restrain Ricardo. Following the melee, Anne and her companions took an ambulance to a hospital, where she and Johansen received stitches for the injuries they had suffered at Ricardo's hands. The district court found that in the midst of the melee Ricardo had placed a cell phone call to Susan, in which "[i]n a profanity-laced tirade, he threatened to kill Susan Campbell, Stephen Campbell, Jeffrey Campbell, Anne, and Anne's sister."That evening, Ricardo called Harrington and said that he was going to come to the Roosevelt School and kill Anne with a knife. The following day, Ricardo or someone acting at his direction attempted to gain access to LeBoo's residence.

Anne returned to the United States on February 15, 2011. In the weeks following the altercation at the apartment, Ricardo called Stephen and Susan numerous times,  leaving threatening voicemails, in one of which he stated, "I'll kill your kids because  she's taking my babies away. And, I promise you, your daughter is going to be killed because she is taking my kids away."In a live conversation with Susan, Ricardo threatened to kill M.A.A., E.T.A., and himself.

Shortly after returning from Peru, Anne met with officers from the Ramsey County Sheriff's Department, following which a warrant was issued for Ricardo's arrest. In early March 2011, Ricardo initiated a custody action for the children in Peru. In May 2011, Ricardo traveled to Miami, Florida, where he was arrested on the  Minnesota warrant. Ricardo was then extradited to Minnesota, where he pleaded guilty  to making terroristic threats. Ricardo returned to Peru to serve his probation. Ricardo was allowed to visit with his children via video conference, which he did on only one occasion.

Ricardo filed this action in February 2012. Stephen and Susan moved to dismiss Ricardo's claim against them under Federal Rule of Civil Procedure 12(b)(6). During the evidentiary hearing on these matters, the district court heard testimony  from several witnesses, including Ricardo, Anne, Stephen, Jeffrey, Susan, LeBoo, and Harrington. The district court also heard testimony from Dr. Jeffrey Edleson, a professor at the School of Social Work at the University of Minnesota and who was the founding director of the Minnesota Center Against Violence and Abuse. Over Ricardo's objection, Dr. Edleson testified that several factors indicated that returning the children to Peru would expose them to a high risk of harm. Specifically, Dr. Edleson cited: 1) Ricardo's history of violence; 2) the escalating severity of Ricardo's violent acts, including his assault of Anne in the presence of others on February 13, 2011; 3) Ricardo's threats to kill Anne and her family, including E.T.A. and M.A.A.; 4) Ricardo's threat to commit suicide; and 5) Ricardo's estrangement from Anne. Dr. Edleson also testified that M.A.A.'s behavioral problems were consistent with exposure to domestic violence and that he believed M .A.A. to be exhibiting signs of depression.

At the close of evidence the district court granted Stephen and Susan's motion to dismiss, found that the children had been wrongfully retained in the United States, and ruled that Anne had failed to prove her Article 20 affirmative defense by clear and convincing evidence. In its subsequent findings of fact and conclusions of law, however, the district court found that the children would face a grave risk of physical and psychological harm if they were returned to Peru, and it thus denied Ricardo's petition.

　

The Eighth Circuit Court of Appeals affirmed. It observed that Federal Rule of Evidence 702 governs the admissibility of expert testimony. It provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. 

It rejected Ricardo’s argument that the district court abused its discretion in admitting Dr. Edleson's testimony because the testimony was uncorroborated and generic in nature and because it relied on facts in controversy. Generally such a challenge goes to the credibility of the expert testimony, rather than its admissibility. Only if the expert's opinion is so fundamentally unsupported that it can offer no assistance to the jury must such testimony be excluded." The court found that the factual basis for Dr. Edleson's testimony was sufficient. In preparation for his court appearance, Dr. Edleson interviewed Anne and M.A.A. and reviewed a myriad of documents and evidence, including the following: treatment summaries from M.A.A.'s therapist, summaries of Ricardo's supervised visitation with the children, notes from school teachers about the children's behavior, various court filings, and the threatening voice messages Ricardo left for Susan. As to Ricardo's concern that Dr. Edleson's opinions reflected only Anne's side of the story, Dr. Edleson clearly stated the factual basis for his opinions and was subjected to cross-examination on this issue. Ricardo failed to identify any specific facts that he believed were uncorroborated, and the factual basis for Dr. Edleson's opinions found ample support in the testimony of Anne, Jeffrey, Susan, Stephen, Harrington, and LeBoo. Dr. Edleson's testimony was not generic; he applied his expertise to the specific facts of this case when he opined that several factors indicated that returning the children to Peru would subject them to a high risk of harm. Accordingly, the district court did not abuse its discretion by admitting the testimony.

The Eighth Circuit observed that a grave risk of harm may exist in cases involving "serious abuse or neglect." Vasquez v. Colores, 648 F.3d 648, 650 (8th Cir.2011). Ricardo argueds that the facts of this case do not support a finding of a grave risk of harm and that the district court abused its discretion by failing to order "undertakings."

The district court found that Ricardo's violent temper and inability to cope with the prospect of losing custody of the children would expose the children to a grave risk of  harm were they returned to Peru. It found that "it is highly probable that Ricardo will  react with violence, threats, or other verbal abuse towards the children, Anne, or  others." Ricardo contended that this finding was erroneous because the majority of his violent conduct was in response to Anne's abduction of the children. Although it did not condone Anne's decision to retain the children in Minnesota without Ricardo's consent,

her conduct in doing so did not preclude it from considering Ricardo's violent response at the apartment. Ricardo's rage continued unabated for at least a week after  the altercation, during which he made multiple threats to kill Anne and her family. Ricardo's violent behavior when cut off by a taxi demonstrated his inability to control his temper in circumstances much less provocative than those that existed during the incident at the apartment. Although there was little evidence that Ricardo physically abused the children, the lack of such evidence did not necessarily render Article 13b inapplicable. See Baran v. Beaty, 526 F.3d 1340, 1346 (11th Cir.2008). The proper focus under Article 13b is whether returning the children to Peru would expose them to a grave risk of harm. The evidence presented to the district court supported its finding that Ricardo's inability to control his temper outbursts presents a significant danger that he would act irrationally towards himself and his children. Ricardo's assault of the taxi driver in his children's presence, his verbal abuse of Anne in their presence, and his shoving of M.A.A. demonstrate that Ricardo was either unwilling or unable to shield the children from his rage. His telephonically expressed threats to kill the children and then himself were further evidence of his extremely unstable nature. A written description of those telephone calls did not begin to convey the chilling intensity of Ricardo's rage that the recorded calls themselves communicated. Given Ricardo's violent temper and his disregard for protecting the children from its consequences, "it would be irresponsible to think the risk to the children less than grave."

The Court rejected Ricardo’s argument that finding a grave risk of harm based on the above-described facts would allow courts to refuse to return a child whenever there is any indication of domestic violence, no matter how slight. "The gravity of a risk involves not only the probability of harm, but also the magnitude of the harm if the probability materializes." The probability that Ricardo will lose his temper and harm the children should they be returned to Peru for a custody determination was high, for as the district court found, "The evidence shows that Ricardo does not have the emotional fortitude to acknowledge custody of his children may ultimately be with Anne." Ricardo's testimony and voice messages indicated that he wanted the children returned to his care. A Peruvian court's order to the contrary likely could cause Ricardo to become violent and harm the children. Dr. Edleson's testimony that there was a high risk that Ricardo would abuse the children in the future, including the possibility of homicide, further supported this determination. These facts distinguish this case from those in which courts have declined to find a grave risk of harm.

The Court rejected Ricardo’s argument that the district court abused this discretion when it declined to return the children to Peru because "undertakings," or conditions on the children's return, would ameliorate any risk of harm. When a grave risk of harm to a child exists as a result of a violent parent, courts have been reluctant to rely on undertakings to protect the child. As the petitioner proffering the undertaking, Ricardo bears the burden of proof. Ricardo did not make a specific proposal for appropriate undertakings before the district court. Ricardo's attack on Anne and LeBoo in the presence of the police indicated that any undertaking ordered by a foreign court might well not deter him from engaging in violence towards the children or others if confronted with a temper-igniting situation Given these circumstances, the district court did not abuse its discretion in declining to return the children to Peru.

In re D.T.J.2013 WL 3866636 (S.D.N.Y.) [Hungary] [Passport] [Counsel for Child] [Intervention] [Well Settled] [Age & Maturity] [Grave Risk of Harm] [Petition Denied]

In re D.T.J.2013 WL 3866636 (S.D.N.Y.) Petitioner Gyula Janos Jakubik petitioned the Court for the return of his daughter, D.T.J., to Hungary, pursuant to the Hague Convention. She was brought to the United States by her mother, Respondent Eva Schmirer, on September 6, 2011. On June 14, 2013, Jakubik filed the petition, along with an application for emergency relief in the form of an Order to Show Cause. That Order, which the Court issued that day, directed the United States Marshals Service to take D.T.J.'s and Schmirer's passposts into custody for safekeeping by the Court. The Court appointed counsel for D.T.J. and granted, over Petitioner's objection, D.T.J.'s motion to intervene as a party to the case. (2013 WL 3465857 (S.D.N.Y. July 9, 2013)). At that trial, the Court heard testimony from D.T.J., whom the Court interviewed at length, with D.T.J. under oath, in the Court's robing room, having been provided with proposed questions from the parties, ex parte, in advance. The Court's interview with D.T.J. was conducted in the presence of counsel; and counsel were given the opportunity before the interview ended to propose supplemental questions to the Court.

The Court found that Jakubik and Schmirer met in 1996, at the ages of 20 and 19, respectively; they became cohabitants and life partners. On August 11, 1998, D.T.J. was born to them in Kistarcsa, Hungary. For the next six years, D.T.J. and her parents lived together in Valko, Hungary. During the time the couple was living together, Jakubik was physically and verbally abusive to Schmirer, both in and out of the presence of D.T.J. The evidence established that Jakubik engaged in a pattern of serious physical and verbal abuse of Schmirer during the time they were a couple, including hitting and punching her, as well as threatening to kill her on repeated occasions. The Court found Schmirer's testimony credible and compelling on this point. The couple separated in 2004. On August 11, 2005, D.T.J.'s D.T.J. was living with Schmirer. Laszlo Paolo-Jakubik came to take D.T.J. to celebrate her birthday and refused to allow D.T.J. to exit the car, grabbing her by the arm and hand and drove off. Schmirer brought a proceeding in Hungarian court to have D.T.J. returned to her custody. On June 22, 2006, the Municipal Court of Salgotarjan, Hungary granted custody to Schmirer. Jakubik was given visitation rights For the next five years, D.T.J. lived with Schmirer in Karancsaija. Schmirer. In 2007, Jakubik married Adrienn Viczian, and in 2008, the two gave birth to another daughter, Bogolarka. On September 6, 2011, Schmirer and D.T.J. left Hungary and traveled to the United States. Upon their arrival in New York, D.T.J. and Schmirer moved in with Katalin O'Toole in Haverstraw, New York, which is located in Rockland County.



The district court found that Petitioner made out a prima facie case by a preponderance of the evidence. DJT was born in Hungary and lived there until age 13, thus meeting the definition of a "habitual resident" of Hungary. Schmirer brought D.T.J. to the United States without the knowledge or consent of Jakubik, and that, according to the custody order of the Municipal Court of Salgotarjan, Jakubik was to have visitation rights every other week. D.T.J.'s abduction by Schmirer, therefore, was in violation of Jakubik's custody rights under the Convention.

Schmirer and D.T.J. both argued that D.T.J. was well-settled in her new environment, and that returning her to Hungary for custody proceedings would be harmful and disruptive. The Court observed that the petition was filed in the United States more than a year after D.T.J.'s wrongful removal and that the Article 12 "settled" defense was available. The "settled" defense allows courts to examine the child's present situation and circumstances if more than a year has passed since his or her removal. Article 12 does not define the term "settled." However, courts have interpreted it to ask whether "the child is in fact settled in or connected to the new environment so that, at least inferentially, return would be disruptive with likely harmful effects." In Re Lozano, 806 F.Supp.2d 197, 230 (S.D.N.Y.2011). Although there is no exhaustive list of the factors that are to be considered in assessing the "settled" defense, they include: the age of the child; the stability of the child's residence in the new environment; whether the child attends school or day care consistently; whether the child attends a religious establishment] regularly; the stability of the respondent's employment; and whether the child has friends and relatives in the new area. In Re Koc, 181 F.Supp.2d at 152;accord Lozano, 697 F.3d at 57; Matovski, 2007 WL 2600862, at *13; Reyes Olguin v. Cruz Santana, No. 03 CV 6299(JG), 2005 WL 67094, at *8 (E.D.N.Y. Jan. 13, 2005).

The court discussed each of the factors. Age - D.T.J. was just a few weeks shy of 15 years old. The Court found that this first factor, that of age, supported D.T .J.'s "settled" defense. Stability of Environment- By all accounts, D.T.J.'s environment in the United States was a stable and happy one. This finding went far in bolstering Respondent's and D.T.J.'s "settled" defense. School Attendance - D.T.J.'s testimony about school was overwhelmingly positive. This factor, too, strongly supported a finding that D.T.J. was "settled" here. Friends and Relatives - D.T.J. testified to being extremely close with her relatives in the United States. This factor, also strongly supported the "settled" defense. Respondent's Employment - Schmirer was not employed in the United States, nor was any member of the household in which D.T.J. lived. That fact, viewed in isolation, undercut D.T.J.'s and Schmirer's claim that D.T.J. was "settled." At the same time, there was evidence of continuing financial support for D.T.J. from means other than presently earned income. The evidence at trial established that Schmirer and D.T.J. were supported financially by John and Katalin O'Toole. Schmirer's lack of employment or income undercut the "settled" defense but was mitigated somewhat by the financial assistance provided to Schmirer and D.T.J. by the O'Tooles. This factor pointed in conflicting directions as to the "settled" defense.

Immigration status - Both Schmirer and D.T.J. were living as undocumented persons in the United States. The consequences of this status presented an obstacle to Schmirer and D.T.J.'s ability to demonstrate that D.T.J. was well-settled in the United States. The Court observed that the Second Circuit has squarely held that lack of legal immigration status does not preclude a court from finding that the "settled" defense has been established. See Lozano, 697 F.3d at 56 ("[I]mmigration status should only be one of many factors courts take into account when deciding if a child is settled within the meaning of Article 12.... [I]n any given case, the weight to be ascribed to a child's immigration status will necessarily vary."); see also Broca v. Giron, No. 13-1014-cv, 2013 WL 3745985, at *1 (2d Cir. July 18, 2013) ("The ['well-settled'] test is a 'fact-specific multi-factor' test, in which no factor, including immigration status, is dispositive."). The factors to be considered when assessing the relative weight that should be given to a child's immigration status include "the likelihood that the child will be able to acquire legal status or otherwise remain in the United States, the child's age, and the extent to which the child will be harmed by her inability to receive certain government benefits." Lozano, 697 F.3d at 57. On this subject, the Court had the benefit of hearing testimony from a professor of law at New York Law School specializing in immigration law. Her testimony confirmed that there were potential avenues by which D.T.J. could normalize her status. On balance, D.T.J.'s immigration status unavoidably pointed against a finding that she "settled." However, notwithstanding this factor, balancing all of the foregoing "settled" factors, the Court was persuaded-overwhelmingly-that D.T.J. had met this affirmative defense by a preponderance of the evidence. Applying the multi-factor test, even without lawful status she was "well-settled" in the United States. See Broca, 2013 WL 3745985, at *1; Lozano, 697 F.3d at 56; Demaj, 2012 WL 476168, at *4.

The Court also held that D.T.J. was of a sufficient age and maturity that the Court should take into account her "considered objection to returning." A court may refuse repatriation "solely on th[at] basis." see Broca, 2013 WL 867276, at *9-10; Matovski, 2007 WL 2600862, at *9; de Silva, 481 F.3d at 1286. The Court viewed D.T.J. as reasonably mature for an almost 15 year-old. The Court perceived noticeable areas of emotional immaturity. For example, D.T.J.'s answers in certain instances revealed a willingness to make sweeping, absolute statements, and a degree of dogged refusal to reexamine conclusions she had drawn or statements she had made. That said, the vast majority of the evidence revealed D.T.J. to be a mature, thoughtful child with age-appropriate analytic skills and assessments of reality. D.T.J.'s maturity was particularly evident with respect to two topics. First, D.T.J.'s articulation of her reasons for wanting to stay in the United States was rational and reasoned. Her comments demonstrated that a mature and considered line of thinking had led her to this conclusion, and reflected a practical, sober sensibility. D.T.J. explained that she preferred the United States because her emotional and tangible needs are being met here, whereas they were not being met in Hungary. Her reasons for not wanting to go back, she stated, were "[n]ot because of this case" but because "it's better here." She demonstrated that she feels safe and secure in the United States, and that she sees a brighter future here for herself. The second revealing example of her emotional maturity came during D.T.J.'s discussion of her immigration status. D.T.J. demonstrated quite bluntly that she was aware of the challenges presented by her immigration status should she remain in the United States. She was able to enumerate some of these challenges, and demonstrated a mature sequence of reactions. The Court found that D.T.J. had successfully made out an Article 13 affirmative defense. This defense independently justified denial of the Petition.

Schmrer and D.T.J. argued that, should D.T.J. return to Hungary, she would be at grave risk of harm, as defined by Article 13(b) of the Convention. They argued, D.T.J. would incur psychological damage, occasioned by her proximity to a violent and abusive father; and be at risk of sexual abuse at the hands of her father. The district court found that D.T.J. would suffer great psychological trauma should she be repatriated so as to be in proximity and contact with her father. The evidence at trial
convincingly showed that Jakubik could be a brutal, violent, jealous and possessive man. It established that, while Schmirer resided in Hungary, Jakubik repeatedly engaged in horrific acts of violence towards Schmirer. The Court described these acts in its opinion, which occurred in the presence of D.T.J. During all of these incidents, Schmirer testified, D.T.J. was present. D.T.J., who was very young, recalled only some of those incidents.

In considering whether Schmirer and D.T.J. had established this defense, the Court was mindful that the relevant issue was whether the evidence established a grave risk to D.T.J., who was never physically assaulted by Jakubik. It pointed out that the law is clear that "[e]vidence of ... incidents aimed at persons other than the child at issue, have not been found sufficient to support application of the 'grave risk' exception." Laguna, 2008 WL 1986253, at *8; accord Souratgar, 2013 WL 2631375, at *4 ("Spousal abuse ... is only relevant under Article 13(b) if it seriously endangers the child. The Article 13(b) inquiry is not whether repatriation would place the respondent parent's safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm.... )The Court was also mindful that the incidents chronicled all occurred prior to the point in 2006 when the Hungarian Court in Salgotarjan made its custody determination. However, the evidence at trial revealed that Jakubik maintained a torrent of verbal abuse towards D.T.J. Since her arrival in the United States, Jakubik and D.T.J. had remained in contact via Facebook, and voluminous evidence of their Facebook communications since mid-2012 was admitted at trial. This evidence revealed a series of diatribes by Jakubik towards D.T.J., both in Facebook messages to her personally and in "wall postings" to which she and other users had access. On May 4, 2012, for example, Jakubik wrote to D.T.J.: It's your mother who doesn't care about you because taking you there was for her own good and not yours. But Interpol will be looking for you soon, because what your mother did was a crime, ...Once you are home, we will have a talk!.... [T]ell her to come back to her senses and put you on a plane because I will have her imprisoned if I have to. In an October 2, 2012 conversation, Jakubik taunted D.T.J., "I will put your dickhead mother where she belongs because I made a vow at my father's grave.:) ... So when your Mom comes home, the same thing will happen as I wrote before. (She will die like a bum under a gate and no one will give a crap about her)." As recently as a few weeks earlier, Jakubik told D.T.J. that "Your fucking mother wanted to raise you to be a whore." Jakubik's Facebook "wall postings" consisted of similarly profane invective. In one post, he stated: I am telling the entire lousy (Schmirer) family that you, rotten scums cannot hide; Uncle Gyula will find you and then you will get yours. You took my daughter away to suck [cocks] like a pig, I hope you know what sucking means (rotten scums). Jakubik's communications and postings also contained substantial anti-Semitic invective, notable given that D.T.J. was of partially Jewish ancestry on her mother's side. One such posting rails: I should fuck and impregnate all those dick-waving dogs, who sit in the Parliament pissing away assets belonging to me and to millions of other patriots. These Jewish henchmen don't balk at anything, when they rob our sweet homeland. They want secrecy? I would give it to them: about 2 meter deep in horizontal position; you cock-sucker Romanian-Gypsy Orban scum, why don't you ruin your fucking bitch mother and your lousy Jewish henchmen lackeys? You will be very much fucked because of this. D.T.J.'s testimony clearly revealed deep distress at Jakubik's abusive writings. She testified that returning to Hungary and to contact with her father would be traumatic for her. D.T.J. stated on more than one occasion during her testimony that she had very real fears about her father killing her mother. She voiced fear that "[m]aybe if we have to go back to Hungary, I think he will do it."D.T.J. remembered that Jakubik had said that "[h]e would put handcuffs on everybody in the family and he would shoot them in the head."D.T.J. also expressed distress at her father's anti-Semitic writings. It was clear to the Court that D.T.J. had been deeply wounded by her father's verbal assaults on her mother and her mother's family, with whom she identified. Dr. Rand, consistent with this, described D.T.J. as having recounted the incidents of her father's past violence "with a flat affect." This, he stated, was "suggestive of a dissociative process which serves as a psychological defense, a way of avoiding experiencing the full psychological impact of that which she fears-namely harm or death to her mother, proximity to her father if she were returned to Hungary, and the destruction of her happy and hopeful life in New York. Such dissociation was consistent with the presentation of victims of trauma." Considering all the evidence, the Court found, by clear and convincing evidence, that repatriating D.T.J. to Hungary, and to proximity with her father, would severely damage D.T.J.'s psychological and emotional state. A return to Hungary, and to proximity with her abusive and volatile father, would be deeply traumatic for D.T.J. Dr. Rand forcefully confirmed this finding. He credibly opined that "[p]utting [D.T.J.] back in Hungary in proximity of [her] relationship [with her father] ... would lead to a ... severe downturn in her psychological functioning" and would be "emotionally severely harmful to her." The Court carefully considered whether there were "any ameliorative measures (by the parent and by the authorities of the state having jurisdiction over the question of custody) that can reduce whatever risk might otherwise be associated with [the] child's repatriation" here, Blondin II, 189 F.3d at 248, thus protecting the child while also preserving the jurisdiction of the Hungarian court. Because the return to Hungary itself and proximity to Jakubik himself presented a grave psychological risk to D.T.J., the Court did not find that such measures existed here.

The Court also considered whether, despite these affirmative defenses having been established, the Court should exercise its discretion to repatriate D.T.J. nonetheless. See Laguna, 2008 WL 1986253, at *12 ("A court retains the discretion to return a child to his home country, regardless of any other determination, if return would further the aims of the Convention."). The Court saw no reason to do
so. The equities, on balance, favored heeding D.T.J.'s desire to remain in the United States. Notably, there was no sign that Schmirer's removal of D.T.J., although unlawful, was motivated by a desire to "remov[e] D.T.J. to [a] jurisdiction[ ] more favorable to [her] custody claims." Gitter v. Gitter, 396 F.3d 124, 129 (2d Cir.2005).

Redmond v Redmond, --- F.3d ----, 2013 WL 3821595 (C.A.7 (Ill.)) [Ireland] [Habitual Residence]

In Redmond v Redmond, --- F.3d ----, 2013 WL 3821595 (C.A.7 (Ill.)) Mary Redmond left her home in Illinois at age 19 to attend college in Ireland, where she met Derek Redmond. For most of the next 11 years, the couple lived together in Ireland, though they never married. In 2006 Mary became pregnant. The couple agreed that the child would be born in America but raised in Ireland. They traveled together to the United States, and on March 28, 2007, their son, JMR, was born in Illinois. Derek was present at the birth and signed a voluntary acknowledgment of paternity; he is also listed as JMR's father on the child's birth certificate. In accordance with their original plan, Mary and Derek returned to Ireland with JMR on April 8, 2007, when the baby was 11 days old. The couple remained together for several months, but during this time, their relationship fell apart. In November 2007 Mary decided to end the relationship, move back to Illinois, and raise JMR there. On November 10, 2007, she and JMR left Ireland and flew to Illinois. In February 2008 Mary returned to Ireland with JMR for a visit. On March 25, 2008, while Mary and JMR were still in Ireland, Derek filed a petition for guardianship and custody rights in an Irish court and obtained an ex parte order preventing them from leaving the country. On April 22, 2008, an Irish court vacated the ex parte order, and Mary left Ireland with JMR the next day. During the course of the next three years, Mary returned to Ireland periodically to participate in hearings on Derek's guardianship and custody petition. Mary filed her own application in the Irish court to relocate with JMR to the United States permanently. Throughout this time JMR lived with Mary in Orland Park, Illinois. The final hearing was heLD on on February 9, 2011. By the time of that hearing, JMR had spent well over three of his four years in Illinois. He attended daycare and preschool in Orland Park from the age of two and a half, and was enrolled in kindergarten at St. Michael's School in Orland Park for September 2012. He saw a pediatrician and a dentist in Illinois, where all of his medical records were kept. He played on a children's baseball team with the local baseball association, had playdates with friends, and went to church with his mother and played in the neighborhood park on Sundays. He had a large extended family in Illinois and had frequent contact with his grandparents, aunts, uncles, and cousins. During this time, he periodically traveled to Ireland with Mary, mostly for court proceedings. Between November 2007 and February 2011, he spent about ten and a half separated weeks in Ireland. On February 10, 2011, the day after the final hearing, the Irish court entered an order denying Mary's application to relocate and granting Derek's request for guardianship and joint custody over JMR. The court ordered that JMR live in Ireland,, and attend the Ballymurphy National School. Derek and Mary were ordered to share custody on an equal basis. Mary and JMR were in Ireland for the final hearing; the court allowed her to return to Illinois with JMR to wind up her affairs. As a condition of her return to Illinois, Mary promised under oath not to apply to any court outside of Ireland regarding JMR's custody, not to remove JMR to a third country, and to quit her job and move with JMR to Ireland on or before March 30, 2011. The Irish court incorporated these undertakings into its order. Derek promised not to remove JMR to a third country, to pay $200 per month in child support, and to pay for Mary's plane ticket to return to Ireland. Mary admitted that she never intended to keep these promises. On February 15, 2011, she returned to Illinois with JMR, and on March 23 she petitioned for sole custody in Cook County Circuit Court. The March 30 deadline came and went. Mary did not move to Ireland with JMR as ordered. On May 10, 2011, the Irish court issued a further order compelling Mary to bring JMR to Ireland on or before June 30. This order stated that retaining the child in the United States violated the Hague Convention. Mary did not comply. Back in Cook County Circuit Court, Derek moved through counsel to dismiss Mary's sole-custody petition for lack of jurisdiction under the Uniform Child- Custody Jurisdiction and Enforcement Act. Under the Act Illinois courts generally lack jurisdiction over a custody petition when a valid custody order of another state or foreign court already governs the disposition of the child. After conferring with the Irish court, the Illinois state-court judge concluded as follows: (1) Derek had timely invoked the jurisdiction of the Irish court; (2) the Irish guardianship and custody decree was issued in substantial conformity with the requirements of the Act; and (3) the decree did not violate fundamental principles of human rights. On July 27, 2011, the Illinois court deferred to the prior claim of jurisdiction by the Irish court, and declined to exercise jurisdiction over Mary's petition. At this point Derek might have sought registration and enforcement of the Irish decree in Cook County Circuit Court, along with an order granting him immediate physical custody of JMR, as provided under the Uniform Act. Instead, on December 1, 2011-five months after the state judge dismissed Mary's sole-custody petition-Derek filed a Hague Convention petition in the United States District Court for the Northern District of Illinois seeking an order that JMR be returned to Ireland. Derek contended that by disobeying the Irish custody order, Mary had wrongfully retained JMR in the United States. The district court held an evidentiary hearing, and , granted Derek's petition. The judge concluded that as of March 30, 2011, when Mary defied the Irish court's order and the alleged wrongful retention occurred, JMR's habitual residence was Ireland, not the United States. The court focused on the parents' initial agreement to raise their son in Ireland, their last shared intent about where he would live, nd gave this evidence decisive effect. The judge ordered JMR returned to Ireland by July 9, 2012, accompanied by Mary. JMR was returned to Ireland, where he remained. The Seventh Circuit initially stated that it did not know why the court thought it had authority to order Mary, a free adult citizen, to go to Ireland. Neither the Hague Convention nor its implementing legislation, the International Child Abduction Remedies Act, authorizes the court to order the relocation of parents. In compliance with the district court's order The Seventh Circuit reversed. It held that the district court erred in treating the parents' last shared intent as a kind of fixed doctrinal test for determining a child's habitual residence. It held that the determination of habitual residence under the Hague Convention is a practical, flexible, factual inquiry that accounts for all available relevant evidence and considers the individual circumstances of each case. Here, the parents' shared intent when JMR was born shed little light on the question of his habitual residence in 2011. When Mary moved with the baby to Illinois in November 2007, she had the exclusive right to decide where he would live; because she was JMR's sole legal custodian, his removal from Ireland was not wrongful under the Convention. By March 2011, the time of the alleged wrongful "retention," JMR's life was too firmly rooted in Illinois to consider Ireland his home. Because JMR was habitually resident in the United States, the district court was wrong to order him "returned" to Ireland The Court noted at the outset that this was not a case of wrongful removal. Derek did not argue, nor could he, that Mary's move with JMR from Ireland to Illinois in November 2007 was wrongful under the Hague Convention. Under Irish law only the mother is recognized as the guardian of an illegitimate child; Ireland does not presumptively confer parental rights on unmarried fathers. As of November 2007, when Mary moved with JMR to the United States, Derek had no custody rights to assert against Mary's removal of their son from Ireland; under Irish law he was not recognized as JMR's legal guardian and had no right to direct the child's upbringing or decide where he would live.Instead, Derek contended that Mary wrongfully "retained" JMR in the United States on or after March 30, 2011, when she failed to return with him to Ireland in violation of the Irish court's guardianship and custody order. It appeared to the Court that Derek was using the Hague Convention as a substitute for an action in Illinois state court under the Uniform Act to enforce his newly recognized custody rights pursuant to the Irish court's order. Although Derek had won a legal victory in Ireland and his custody rights were now recognized in the courts of his country, it was hard to see how Mary's refusal to comply with the Irish court's order was, without more, a "retention" of JMR in the sense meant by the Convention. Derek's petitionpresented a threshold question: Is a change in one parent's custody rights enough to make the other's parent's continued physical custody of the child a putative wrongful "retention" under the Convention? Stated differently, does the parent with physical custody of a child commit a wrongful retention-colloquially, an "abduction"-by reneging on a promise, made under oath, to obey a newly entered custody order in favor of the other parent? The Court observed that Hague Convention targets international child abduction; it is not a jurisdiction-allocation or full-faith-and-credit treaty. It does not provide a remedy for the recognition and enforcement of foreign custody orders or procedures for vindicating a wronged parent's custody rights more generally. Those rules are provided in the Uniform Child Custody Jurisdiction and Enforcement Act. Rather than applying to the Cook County Circuit Court for enforcement of the Irish custody order under the Uniform Act, Derek sought to enforce his newly declared custody rights via a Hague petition by treating Mary's refusal to comply with the Irish court's order as a wrongful "retention" of their son in the United States. But the concepts of removal and retention can be understood only by reference to the child's habitual residence; a legal adjustment of a parent's custody rights does not by itself give rise to an abduction claim. "The determination of a child's habitual residence is significant because wrongful removal can occur only if the child has been taken away from his or her habitual residence. When a child is taken from its country of habitual residence, the left-behind parent may invoke the Convention's return remedy to restore the factual status quo-in ordinary language, to bring an abducted child home. But a parent may not use the Convention to alter the child's residential status based on a legal development in the parent's favor. The availability of the return remedy depends on the child's habitual residence because the "retention of a child in the state of its habitual residence is not wrongful under the Convention." A petitioner cannot invoke the protection of the Hague Convention unless the child to whom the petition relates is "habitually resident" in a State signatory to the Convention and has been removed to or retained in a different State. The petitioner must then show that the removal or retention is "wrongful." Accordingly, every Hague Convention petition turns on the threshold determination of the child's habitual residence; all other Hague determinations flow from that decision. If a child has not been moved from its habitual residence, there is no "left-behind" parent with grounds to complain about the move, and it makes no sense to speak in terms of ordering the child's "return." In that situation, relief under the Hague Convention must be denied without further inquiry into whether the petitioning parent's custody rights have been breached or whether the petitioning parent was actually exercising those rights at the relevant time. The Court held that determination of "habitual residence" is to be made on the basis of the everyday meaning of these words rather than the legal meaning that a particular jurisdiction attaches to them, as otherwise forum shopping would come in by the back door-each contestant would seek a forum that would define "habitual residence" in the contestant's favor. It interpreted the phrase "habitual residence" in accordance with the ordinary and natural meaning of the two words it contains, as a question of fact to be decided by reference to all the circumstances of any particular case. Determining a child's habitual residence thus requires an assessment of the observable facts on the ground, not an inquiry into the child's or parent's legal status in a particular place. Only after habitual residence is determined does an examination of custody rights come into play; treating the question of habitual residence as a legal inquiry would misconstrue the Convention as a custody-rights enforcement treaty. Under this commonsense and fact-based approach, the court found that as of March 30, 2011, when the alleged wrongful retention occurred, JMR habitually resided in Illinois and had for some time. He was born in Illinois, and except for seven and a half months of his infancy, he lived continuously in Illinois withonly periodic, brief visits to Ireland. By March 30, 2011, he had spent more than three of his four years in Illinois-approximately 80% of his young life. It was true that the length of time a child has spent in one place is not dispositive and must be considered with care. Mary's removal of JMR from Ireland was not wrongful, so giving weight to the substantial duration of the child's residence in the United States did not undermine the purposes of the Convention. The Seventh Circuit held that the district court's reliance on the parents' last shared intent was misplaced. Many Hague Convention cases emphasize the last shared intent of the parents as an important factor in the analysis of a child's habitual residence. But the habitual-residence inquiry remains a flexible one, sensitive to the unique circumstances of the case and informed by common sense. The parents' last shared intent is one fact among others, and may be a very important fact in some cases. But it is not a uniformly applicable "test" for determining habitual residence, as the district court seemed to think. In substance, all circuits consider both parental intent and the child's acclimatization, differing only in their emphasis. The crux of disagreement is how much weight to give one or the other, especially where the evidence conflicts. Nothing in its caselaw justified the overwhelming weight the district court gave the parents' last shared intent at the expense of the undisputed evidence of JMR's acclimatization. In the final analysis, the court's focus must remain on the child's habitual residence. Shared parental intent may be a proper starting point in many cases because parental intent acts as a surrogate in cases involving very young children for whom the concept of acclimatization has little meaning. Acclimatization is an ineffectual standard by which to judge habitual residence in such circumstances because the child lacks the ability to truly acclimatize to a new environment. On the other hand, an emphasis on shared parental intent does not work when the parents are estranged essentially from the outset. The concept of "last shared parental intent" is not a fixed doctrinal requirement, and it is unwise to set in stone the relative weights of parental intent and the child's acclimatization. The habitual-residence inquiry remains essentially fact-bound, practical, and unencumbered with rigid rules, formulas, or presumptions. Here, Mary had sole custody under Irish law from the time of JMR's birth until March 2011; as such, she had the exclusive right to fix the place of JMR's residence. Because Mary had the lawful authority to relocate without Derek's consent, JMR's residence in Illinois was neither "temporary" nor wrongful as a matter of law under the Hague Convention. Moreover, the actual facts of JMR's life in Orland Park and his acclimatization there for almost all of his life sufficed to establish the United States as JMR's habitual residence notwithstanding Derek's objections. Mary and Derek were estranged essentially from the outset. Under the circumstances here, JMR's acclimatization in Illinois overwhelmingly outweighed the last shared parental intent. Immediately prior to March 30, 2011, when the alleged wrongful retention occurred, JMR's life was in Illinois, and legitimately so. Based on a commonsense view of all the evidence, the court could say with confidence that the child's relative attachments to the two countries had changed to the point where requiring return to Ireland would now be tantamount to taking the child out of the family and social environment in which its life has developed. Accordingly, immediately prior to March 30, 2011, JMR was habitually resident in Illinois, so sending him to Ireland was not sending him home. Because JMR was habitually resident in Illinois, Mary did not wrongfully retain him in the United States.. In a footnote the court indicated that it thought that the court had the equitable authority to issue an order requiring JMR's return to the United States. That was the position of the U.S. Department of State, the designated Central Authority for assisting the implementation of the Hague Convention in the United States. On its behalf the United States filed an amicus curiae brief in Chafin explaining its position that because the court has the inherent equitable power to order the child's re-return, an appeal of a return order under the Hague Convention does not become moot by the return of the child.

Broca v Giron,--- Fed.Appx. ----, 2013 WL 3745985 (C.A.2 (N.Y.)) [Mexico] [Well-Settled]

In Broca v Giron,--- Fed.Appx. ----, 2013 WL 3745985 (C.A.2 (N.Y.)) Not for Publication, Jose Leonides Varillas Broca appealed from the judgment of the United States District Court, denying Varillas's petition for the repatriation of his three children under the Hague Convention. Varillas appealed the determination that his youngest child, JV, was well settled in the United States, such that JV's return to Mexico was not required under Article 12 of the Hague Convention. Varillas's oldest child turned sixteen during the pendency of the proceedings, thus the Hague Convention no longer applied to him. As to the middle child, the district court denied the request for repatriation, concluding that she was well settled, and that she was sufficiently mature that her objection to returning to Mexico should be taken into account. Varillas did not appeal this determination. Varillas primarily argued that the district court improperly considered the importance of keeping JV together with his siblings in deciding that JV was well settled." The Second Circuit reviewed the district court's interpretation of the Convention de novo and its factual determinations for clear error." Souratgar v. Fair, --- F.3d ----, 2013 WL 2631375, at *3 (2d Cir. June 13, 2013). It pointed out that if Hague Convention proceedings are initiated within a year of a child's wrongful removal, then Article 12 requires the court to order repatriation of that child, unless an exception applies. Hague Convention, art. 12. If the proceedings are commenced after the one-year period, the court "shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment." Respondent bears the burden of proving this exception by a preponderance of the evidence. 42 U.S.C. § 11603(e)(2)(B). It noted that it has discussed the "[f]actors that courts consider" in determining whether a child is well settled, which "should generally include": (1) the age of the child; (2) the stability of the child's residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child attends church [or participates in other community or extracurricular school activities] regularly; (5) the respondent's employment and financial stability; (6) whether the child has friends and relatives in the new area; and (7) the immigration status of the child and the respondent. Lozano v. Alvarez, 697 F.3d 41, 57 (2d Cir.2012), cert. granted in part, No.12-820, 2013 WL 56044 (U.S. June 24, 2013). While useful, these factors are neither mandatory nor exclusive. "[C]ourts are permitted to consider any relevant factor surrounding the child's living arrangement-without limitation." The test is a "fact-specific multi-factor" test, in which no factor, including immigration status, is dispositive. Here, the district court considered the above factors in determining that JV was well settled. Under Lozano, the court rightly considered JV's relationship with his mother and siblings in reaching its conclusion. Even though the court emphasized this factor in its final balancing analysis, it was one of many considerations. Reviewing the record as a whole and focusing on the Lozano factors, the Second Circuit agreed that JV was well settled in the United States. JV's consistent school attendance, involvement in church, and strong relationships with friends and relatives in the area, in particular his mother and sister, all supported a conclusion that he was well settled. His immigration status, lack of residential stability, and poor performance in school, as well as his mother's lack of financial stability, counselled against a conclusion that he was well settled. Nonetheless, in the overall balancing, it concluded that the exception applied.

Jakubik v Schmirer, 2013 WL 3465857 (S.D.N.Y.) [Hungary] [Federal & State Judicial Remedies] [Intervention By Child Subject of Proceeding]

In Jakubik v Schmirer, 2013 WL 3465857 (S.D.N.Y.) Gyula Janos Jacubik, petitioned for the return to Hungary of his fifteen year old daughter D.T.J.. DTJ, moved to intervene through her next friend, Fr .Christian Gobel. Petitioner opposed the motion. Respondent did not take a position on the motion. D.T.J.'s motion to intervene was granted. The Clerk of Court is directed to add D.T.J., through her next friend Fr. Christian Gobel, as a party to the case, to be represented by an attorney appointed by the court. The Court observed that Federal Rule of Civil Procedure 24(a)(2) provides that "[o]n timely motion, the court must permit anyone to intervene who ... claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest."T he Second Circuit has set out a four-part test, each part of which is required for intervention as of right: In order to be entitled to intervene as of right under Rule 24(a)(2), "an intervenor must show that: (1) the application is timely; (2) the applicant claims an interest relating to the property or transaction which is the subject matter of the action; (3) the protection of the interest may as a practical matter be impaired by the disposition of the action; and (4) the interest is not adequately protected by an existing party. St. John's Univ., N.Y. v. Bolton, 450 F. App'x 81, 83 (2d Cir.2011). The Court found that D.T.J. had met each of these requirements. Her application to intervene was timely. It came just three business days after counsel was appointed to represent her and one day after counsel's initial conversation with D.T.J. She had an obvious interest in this litigation: It would determine whether D.T.J., age 15, would be repatriated to Hungary for custody proceedings. Her interest might be impaired by the outcome of this action: She claimed an interest in remaining in the United States, and a ruling (in either direction) would profoundly affect her. Finally, D.T.J.'s interests were not identical to those of her mother, Respondent Eva Schmirer and the Court did not believe they were necessarily adequately represented by Respondent. D.T.J.'s counsel pointed out, "[t]he child has a potential right to immigration remedies which are foreclosed to Respondent, and which have not been explored by Respondent. D.T.J.'s counsel represented that she was "actively seeking" retention of an immigration expert. As to this issue, it was possible that D.T.J.'s and Respondent's interests diverged. The Court concluded that D.T.J. had met all four prongs required in a motion to intervene as of right. The Court held that D.T.J. had even more clearly met the standard required for a permissive intervention. See Fed.R.Civ.P. 24(b) (court may permit intervention by anyone who "has a claim or defense that shares with the main action a common question of law or fact," although "court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights."). A district court has broad discretion under Rule 24(b). "The requirement of the Rule is satisfied if the applicant shows that representation of his interest 'may be' inadequate; and the burden of making that showing should be treated as minimal." Trbovich v. United Mine Workers of America, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972) . The Court held that the interests of D.T.J. in the litigation sufficiently outweighed any potential "costs to allowing the Child to become a party," Moreover, the Court saw no undue delay caused by the child's intervention.

Souratgar v. Fair, --- F.3d ----, 2013 WL 2631375 (C.A.2 (N.Y.)) [Singapore] [Grave Risk of Harm] [Fundamental Freedoms]

In Souratgar v. Fair, --- F.3d ----, 2013 WL 2631375 (C.A.2 (N.Y.)) Lee Jen Fair appealed the grant of a petition brought by her husband Abdollah Naghash Souratgar for repatriation of their son from New York to Singapore. In May 2012, Lee removed the boy to Dutchess County, New York, in direct violation of a Singapore court order. The District Court granted Souratgar's petition pursuant to the Hague Convention.(Souratgar v. Lee Jen Fair, No. 12 CV 7797(PKC), 2012 WL 6700214 (S.D.N.Y. Dec. 26, 2012). The Second Circuit affirmed rejecting her “grave risk of harm” and “fundamental freedoms’ defenses.

Four-year-old Shayan, was born in Singapore in January 2009 to Lee and Souratgar, who were both residents of that country. Souratgar was an Iranian national who has owned a business in Singapore since 1989. Lee was a Malaysian national. She converted to Islam, Souratgar's faith, just prior to their marriage in Singapore in 2007. Shayan was a citizen of Malaysia with Malaysian and Iranian passports. At the district court hearing, the parties traded accusations and denials of domestic abuse. Souratgar accused Lee, among other things, of biting him, repeatedly threatening him with a knife and chopper, having suicidal tendencies, and inflicting injuries on herself. Lee asserted in her testimony more serious allegations-that Souratgar repeatedly slapped, beat, shook, and kicked her, and that he forced her to perform sex acts against her will. The district court found spousal abuse by Souratgar, including "shouting and offensive name-calling," and several incidents of physical abuse in which he "kicked, slapped, grabbed, and hit" . The district court found no credible evidence of any harm directed against the child. Both parties acknowledged the other's love for Shayan, and was not disputed that the boy dearly loves both of his parents. In April 2011, when Shayan was two, Lee filed an ex parte application in the Singapore High Court for sole custody. On May 16, the Subordinate Court of Singapore issued an ex parte order directing Souratgar to hand over Shayan's passports and personal documents to Lee and barring Souratgar from removing the child from Singapore without court approval and Lee's knowledge or consent. Souratgar complied with the order, denied Lee's charges, and cross-applied for sole custody. While the custody proceedings were pending in Singapore, Lee moved out of the marital home with Shayan and refused to disclose their whereabouts to Souratgar. He eventually found them in Malaysia, where Lee denied him access to the boy. Souratgar then filed a custody application in the Syariah Court of Malaysia, which granted joint custody to the couple in early July. Thereafter, Lee succeeded in obtaining a dismissal of that order from the Malaysian Syariah Court for lack of jurisdiction. After Lee and Shayan returned to Singapore, the custody proceedings in Singapore's Subordinate Court resumed. Following a mediation session on July 14, 2011, the Subordinate Court barred either parent from removing Shayan from Singapore without the other's consent and ordered interim supervised visitation for Souratgar at Singapore's Centre for Family Harmony. Following another mediation session on February 16, 2012, both parties agreed to a consent order by the Subordinate Court to have custody decided by the Syariah Court of Singapore. In the meantime, Shayan remained in Lee's care, while Souratgar's visitation time was doubled. In late 2011, Lee had filed for divorce in Singapore's Syariah Court and used that proceeding to dismiss the temporary joint custody order of the Malaysian Syariah Court. On May 20, 2012, Lee removed Shayan from Singapore, in violation of the Singapore Subordinate Court's order.

Souratgar, through a private investigator, eventually located Lee and Shayan in Dutchess County, and on October 18, 2012 filed an ex parte application in the district court under the Convention for Shayan's return to Singapore. The district court heard testimony from nine witnesses over a nine-day evidentiary hearing, and on December 26, granted Souratgar's petition. The Court of Appeals for the Second Circuit affirmed. The parties did not dispute either that Singapore was the country of Shayan's habitual residence or that his removal from Singapore was wrongful under the Convention. The issue on appeal was whether the two affirmative defenses that Lee raised under Articles 13(b) and 20 of the Convention precluded repatriation. Under Article 13(b), the judicial or administrative authority of the requested State is not bound to order the return of the child if [the party opposing repatriation] establishes that ... there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Under Article 20, repatriation also "may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms." The respondent parent opposing the return of the child has the burden of establishing "by clear and convincing evidence that one of the exceptions set forth in article 13b or 20 of the Convention applies." 42 U.S.C.§ 11603(e)(2)(A). Subsidiary facts may be proven by a preponderance of the evidence.. The Second Circuit observed that it reviews the district court's interpretation of the Convention de novo and its factual determinations for clear error. Its "review under the 'clearly erroneous' standard is significantly deferential." Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 623 (1993). It must accept the trial court's findings unless it has a "definite and firm conviction that a mistake has been committed."

The Second Circuit rejected Lee’s argument that returning Shayan to Singapore would expose him to "a grave risk" of "physical or psychological harm" or "otherwise place him in an intolerable situation" and that the district court's finding to the contrary was error. The harms he could face upon return, she asserted, were (1) exposure to spousal abuse; (2) direct abuse from his father; or (3) the loss of his mother. The Court found that Lee's arguments were permeated with conjecture and speculation and that there was no error in the district court's determination that Lee had failed to meet her burden to establish the Article 13(b) defense.

The Second Circuit held that under Article 13(b), a grave risk of harm from repatriation arises in two situations: "(1) where returning the child means sending him to a zone of war, famine, or disease; or (2) in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection." Blondin IV, 238 F.3d at 162. The potential harm to the child must be severe, and the the level of risk and danger required to trigger this exception has consistently been held to be very high. The grave risk involves not only the magnitude of the potential harm but also the probability that the harm will materialize. This grave risk' exception is to be interpreted narrowly, lest it swallow the rule. The Second Circuit indicated that while many cases for relief under the Convention arise from a backdrop of domestic strife spousal abuse is only relevant under Article 13(b) if it seriously endangers the child. The Article 13(b) inquiry is not whether repatriation would place the respondent parent's safety at grave risk, but whether so doing would subject the child to a grave risk of physical or psychological harm. The exception to repatriation has been found where the petitioner showed a sustained pattern of physical abuse and/or a propensity for violent abuse that presented an intolerably grave risk to the child. Evidence of prior spousal abuse, though not directed at the child, can support the grave risk of harm defense, as could a showing of the child's exposure to such abuse. Evidence of this kind, however, is not dispositive in these fact-intensive cases. Sporadic or isolated incidents of physical discipline directed at the child, or some limited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk. In this case, the district court found that, while Lee was subjected to domestic abuse on certain occasions, albeit less than she claimed, at no time was Shayan harmed or targeted. The Court noted that it has held that Article 13(b) relief could be granted if repatriation posed a grave risk of causing unavoidable psychological harm to the child. See Blondin IV, 238 F.3d at 160-61 (affirming denial of petition to repatriate after an expert psychologist opined that returning the boy and girl to France, where they had been abused by their father, would likely trigger recurrence of PTSD, and that no arrangement could mitigate this risk). The holding in Blondin IV depended on the fact, due to the nature of the potential harm at issue, recurrence of PTSD that would occur as soon as the children entered France, there was nothing the courts could do to prevent it. In this case, there was nothing in the record beyond speculation that Shayan would suffer unavoidable psychological harm if returned to Singapore. Neither party nor the guardian ad litem requested a psychological evaluation of the boy, and the guardian ad litem reported, after observing Shayan's interactions with both parents and interviewing him separately, that the boy appeared to be an active and happy child, who seemed distressed about the difficulties between his parents. Shayan expressed unqualified love for both parents and indicated that he was never physically disciplined and never saw or heard either parent hit the other or try to hurt the other parent. In contrast, the girl in Blondin IV had herself been abused and expressed fear of her father. The circuit court cases affirming denial of repatriation cited by Lee were distinguishable in that the petitioning parent had actually abused, threatened to abuse, or inspired fear in the children in question.

The Court emphasized that it on held “ that in this case, the evidence, which did not match the showing in those cases, did not establish that the child faced a grave risk of physical or psychological harm upon repatriation. Lee contended that the district court erred in discounting the likelihood that Shayan would be exposed to renewed domestic strife and suffer grievous psychological harm upon his return to Singapore. She also faulted the district court for refusing to credit expert testimony characterizing Souratgar as having a coercive and controlling personality type with a tendency to hurt women and children. At the hearing, the district court heard a psychological expert describe abusive spouses of the "coercive control" type and of the "situational" type and placed Souratgar in the former category. The coercive control type is said to demand domination and control and grows more dangerous upon separation from the victim. On this basis, the expert concluded that Souratgar still posed an "extreme danger" to Lee even though they had been estranged for more than a year. The experts assessment of Souratgar was based entirely on Lee's answers to a survey, which the district court found to contain inaccuracies. The district court therefore discredited the experts conclusions. There was no basis in the record for disagreement with the district court's finding.

The Second Circuit held that for it “to hold evidence of spousal conflict alone, without a clear and convincing showing of grave risk of harm to the child, to be sufficient to decline repatriation, would unduly broaden the Article 13(b) defense and undermine the central premise of the Convention: that wrongfully removed children be repatriated so that questions over their custody can be decided by courts in the country where they habitually reside. Our holding today is not that abuse of the kind described by Lee can never entitle a respondent to an Article 13(b) defense; rather it depends on the district court's finding that Shayan would not be in danger of being exposed to a grave risk of physical or psychological harm and that the Singapore court system has demonstrated its ability to adjudicate the dispute over his custody.” It found no clear error in the district court's finding that the facts did not indicate a grave risk of harm to the child in this particular instance.

Lee also contended that Shayan faced a direct risk of harm from his father, who, having been abusive to Lee, was also likely to turn on Shayan, citing the description of the "coercive control" type in the social science literature that draws certain correlations between perpetrators of spousal abuse and child abuse. However, given the problems with the experts methodology in type-casting Souratgar, the lack of any indicia of ill-will on the part of Souratgar toward Shayan, and contrary credited evidence of a loving father-son relationship, there was no clear and convincing showing that the boy faced a grave risk of harm from his father. Lee also posited various scenarios in which the boy would be deprived of his mother post-repatriation. She claimed Souratgar may (a) resort to Syariah court proceedings in Singapore or Malaysia to win custody outright; (b) abscond with Shayan to Iran; or (c) expose her to the charge of apostasy (leaving the Muslim faith), a religious crime punishable by death in her home country of Malaysia. The district court dismissed these claims as lacking factual support. As an initial matter, the Second Circuit held that the court could not conclude that the prospect that one parent may lose custody of the child, post-repatriation, necessarily constitutes a grave risk to the child under the Convention. Since the Convention defers the determination of custody to courts in the country where the child habitually resides, it is quite conceivable that in some cases one or the other parent may lose legal custody after repatriation and be deprived of access to the child. Thus, the possible loss of access by a parent to the child does not constitute a grave risk of harm per se for Article 13(b) purposes. Even assuming that the prospect of the child losing his mother posed a grave risk to the child's well-being, there was no basis to disturb the district court's finding that Lee had not made a clear and convincing showing that any of the scenarios that she raised was likely to occur.

The Second Circuit pointed out that the Article 20 defense allows repatriation to be denied when it "would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms." This defense is to be "restrictively interpreted and applied." Article 20 is a unique formulation that embodies a political compromise among the states that negotiated the Convention, which might never have been adopted otherwise.. The defense is to be invoked only on the rare occasion that return of a child would utterly shock the conscience of the court or offend all notions of due process. It is not to be used as a vehicle for litigating custody on the merits or for passing judgment on the political system of the country from which the child was removed. This defense has yet to be used by a federal court to deny a petition for repatriation. Lee argued that Syariah Courts are incompatible with the principles "relating to the protection of human rights and fundamental freedoms" of this country. The Second Circuit declined to make this categorical ruling as a legal matter. Moreover, Lee failed to show that the issue of custody was likely to be litigated before Singapore's Syariah Court. Given that failure, it was not inclined to conclude simply that the presence of a Syariah Court in a foreign state whose accession to the Convention has been recognized by the United States is per se violative of "all notions of due process.” It noted that such a holding would contradict the State Department's view expressed upon Singapore's accession as a bilateral partner under the Convention, that Singapore is a "role model" among states in the region. It was also mindful of the need for comity, as the careful and thorough fulfillment of our treaty obligations stands not only to protect children abducted to the United States, but also to protect American children abducted to other nations-whose courts, under the legal regime created by this treaty, are expected to offer reciprocal protection. In the exercise of comity, we are required to place our trust in the court of the home country to issue whatever orders may be necessary to safeguard children who come before it. For all of the above reasons, it concluded that the district court did not err in rejecting Lee's Article 20 defense.

Guzzo v. Cristofano, --- F.3d ----, 2013 WL 2476835 (C.A.2 (N.Y.)) [Italy] [Habitual Residence]

In Guzzo v. Cristofano, --- F.3d ----, 2013 WL 2476835 (C.A.2 (N.Y.)) the Second Circuit observed that the Hague Convention uses the terms "habitual residence" and "habitually resident" in a practical way, referring to the country where a child usually or customarily lives. The term is not equivalent to the American legal concept of "domicile," which relies principally on intent. Nonetheless, when parents move temporarily to another country, without agreeing to change the child's principal place of residence, a petitioner claiming that the new location has become the child's "habitual residence" must show that the child has "acclimated" to that country. Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir.2005). The petitioner in this case failed to show that the parents agreed to settle in Italy, and he did not attempt to show that the child had acclimated there. Accordingly, the district court properly denied the petition for return of the child. Petitioner-appellant Gerardo Guzzo ("Father") was an Italian citizen and resident of Scario, Italy, and respondent-appellee Luisa Maria Cristofano (the "Mother") was a United States citizen and resident of New York. They met in September 2005 onboard a flight from New York to Italy and began visiting each other regularly and discussing the prospect of marriage. In January 2006, the Mother discovered that she was pregnant. She soon visited the Father in Italy, where they resumed discussions about whether to get married in New York or Italy. The Father and Mother eventually agreed to marry in New York while maintaining their respective residences in Italy and New York. In September 2006, their child was born. Based on the evidence presented at trial, the District Court found that from 2006 to 2007 the parties maintained their "bi-continental marriage," each parent visiting the other on numerous occasions, and in December 2007 the parties agreed that the Mother and the child would live primarily in Italy with the Father but return periodically to New York. During this time, however, the parents' relationship became increasingly tumultuous. In February 2009, the Mother took the child to New York and told the Father that she wanted a separation. Over the next few months, the parents negotiated a separation agreement (the "Separation Agreement"), which the Mother signed in English on May 20, 2009, and which the Father signed in Italian on June 10, 2009. As relevant here, the Separation Agreement provided that the parents would " 'continue to live separate and apart,' " that the Mother would " 'have custody[ ] of the minor child,' " and that the child would attend school at the Good Counsel Academy in White Plains, New York. Guzzo v. Cristofano, No. 11 Civ. 7394(RJS), 2011 WL 6934108, at *2 (S.D.N.Y. Dec. 30, 2011) The Separation Agreement also established a visitation schedule, which provided that the child would spend at least two months each year in Italy with the Father. Soon after signing the Separation Agreement, the Mother returned to Italy with the child. As the District Court explained, the Mother "testified that her trip to Italy was undertaken as an attempt at reconciliation with [the Father], but that she was only willing to make the attempt because she had the protection of the Separation Agreement." The Mother also testified that "regardless of the reconciliation attempt, she never intended to have the child attend primary school in Italy and that she always planned to live with the child in New York once he was in kindergarten." With only intermittent vacations, including several trips to New York, the child continued to live in Italy, where he attended nursery school. In November 2010, the Mother took the child to New York with the intention of not returning to Italy. The following month, the parents agreed to make another attempt at reconciliation, and the Mother moved back to Italy in January 2011 with the child. The effort was unsuccessful. In August 2011, the Mother returned with the child to New York, where they have lived ever since. The Mother also initiated divorce proceedings in Westchester County, New York. The Father initiated this action under the Hague Convention in October 2011, alleging that the Mother had wrongfully removed the child from Italy in August 2011. The District Court held a three-day bench trial and denied the petition, concluding that the Father had not proved by a preponderance of the evidence that Italy, rather than the United States, was the child's country of "habitual residence." Guzzo, 2011 WL 6934108, at *4. The District Court began by restating the two-part test for determining a child's habitual residence. (citing Gitter, 396 F.3d at 134). Under that test, a court must first "inquire into the shared intent of those entitled to fix the child's residence ... at the [last] time that their intent was shared." If a court concludes that the parents did not intend to change a child's habitual residence, it then must assess "whether the evidence unequivocally points to the conclusion" that the child has acclimated to the new location, notwithstanding the parents' intentions. The District Court noted that the Father had rested his petition entirely on the first prong, arguing that the parents had agreed to change the child's habitual residence to Italy; he had explicitly abandoned any argument that the child had acclimated to life in Italy. Based on the evidence presented at trial, the District Court determined that the parents' Settlement Agreement in 2009 exhibited their last shared intent regarding the child's usual residence. Although the Mother had moved to Italy with the child after signing the agreement, and had attempted to reconcile with the Father, the Court found "no evidence that the attempted reconciliation, in and of itself, altered the [Settlement] [A]greement in any way." The Court also found the Father's testimony that the parents reconciled in June 2009 and formed a new shared opinion that the child would live in Italy to be "not credible." The Court further concluded that "[d]espite the parties' apparently sincere attempts at reconciliation, the evidence demonstrates that [the Mother] never contemplated spending her life in Italy or having the child attend Italian schools following preschool." With respect to the child's attendance at nursery school in Italy, the Court found that the Mother had "testified credibly that, regardless of the outcome of the attempted reconciliation, she intended to send the child to kindergarten in New York." The Mother also refused to register her marriage with Italian authorities, which would have enabled her to obtain Italian public health insurance. And the child "did not have Italian medical insurance, but rather was insured through Medicaid and received his primary medical treatment in the United States." After reviewing the relevant case law, the Court concluded that "the evidence overwhelmingly demonstrates that, following the execution of the Separation Agreement, the parties never shared an intention to make Italy the child's habitual residence." The Second Circuit observed that "Habitual residence," as one court has observed, "is the central-often outcome-determinative-concept on which the entire [Hague Convention] system is founded." Understood in an ordinary and nontechnical way, a child's "habitual residence" is simply the place where he usually or customary lives.'[I]n their natural and ordinary meaning[,] the words mean that the person must be habitually and normally resident [in that country], apart from temporary or occasional absences of long or short duration.' " Mozes, 239 F.3d at 1073. Or, put another way, "we might say that if we observe someone centering his life around a particular location during a given period, so that every time he goes away from it he also comes back, we will call this his habitual residence." Under the Hague Convention, a petitioner bears the burden of establishing by a preponderance of the evidence a child's habitual residence at the time of the contested removal. Mota v. Castilo, 692 F.3d 108, 112 (2d Cir.2012) (citing 42 U.S.C. s 11603(e)(1)(A)). ( The Court observed in a footnote that parents cannot stipulate to habitual residency, see Barzilay v. Barzilay, 600 F.3d 912, 920 (8th Cir.2010). Determining a child's habitual residence often becomes difficult when parents move a child from one country to another, raising the question of which country is the "habitual residence" of the child. In evaluating these cases, the Court has looked to the intent of the parents as a particularly important factor in understanding the context of a child's move to another country. As it explained: Focusing on intentions gives contour to the objective, factual circumstances surrounding the child's presence in a given location. This approach allows an observer to determine whether the child's presence at a given location is intended to be temporary, rather than permanent. Accordingly, "we will presume that a child's habitual residence is consistent with the intentions of those entitled to fix the child's residence at the time those intentions were mutually shared." At the same time, however, "parental intent cannot alone establish a child's habitual residence," nor can it prevent a habitual residence from changing. Instead, a child's habitual residence changes when the child becomes settled in another country, even if one or both of the parents intend for the child to return to the original country of habitual residence. As the Court has explained: "The question in these cases is not simply whether the child's life in the new country shows some minimal degree of settled purpose, but whether we can say with confidence that the child's relative attachments to the two countries have changed to the point where requiring return to the original forum would now be tantamount to taking the child out of the family and social environment in which its life has developed." In other words, the Court asks: "[W]ould returning the children ... be tantamount to sending them home?" Accordingly, although "[n]ormally the shared intent of the parents should control the habitual residence of the child," that intent is not controlling when "the evidence unequivocally points to the conclusion that the child has [acclimated] to the new location." Gitter, 396 F.3d at 134. The two-step framework is flexible enough to account for the varied circumstances of individual cases. When applying this framework, the age of the child and the time spent in the respective countries can affect how much weight a court should place on parental intent. For instance, parental intentions become less relevant the longer a child remains in the new environment. In fact, once a child has "been living in one country ... for a sufficiently long period," then "questions as to the purpose of the residence become irrelevant,". Accordingly, although it makes sense to " 'regard the intentions of the parents as affecting the length of time necessary for a child to become habitually resident, because the child's knowledge of these intentions is likely to color its attitude toward the contacts it is making,' " courts must not forget that the core concern of "habitual residence" is where a child normally or usually lives. Once a court " 'can say with confidence' " that the child has become settled into a new environment, habitual residence in that country is established. Gitter, 396 F.3d at 134. [It noted in a footnote that when a child is younger, with less sense of the surrounding environment, courts place more emphasis on the intentions of the parents. The Court summarized its rule as follows: "[t]o determine which country is a child's country of habitual residence under the Hague Convention, we apply the two-part test set forth in Gitter v. Gitter." We "begin an analysis of a child's habitual residence by considering the relevant intentions," because "[f]ocusing on intentions gives contour to the objective, factual circumstances surrounding the child's presence in a given location." We "presume that a child's habitual residence is consistent with the intention of those entitled to fix the child's residence at the time those intentions were mutually shared." This presumption can be overcome, however, if the evidence shows that a child is settled into (or, "acclimated" to) the new environment-a burden that is more easily satisfied the longer a child has lived in that country. When considering these two steps, the court must not lose sight of the fact that the framework is designed simply to ascertain where a child usually or customarily lives. The Second Circuit held that "a determination of habitual residence under Article 3 of the Hague Convention is a mixed question of law and fact, under which it reviews essentially factual questions for clear error and the ultimate issue of habitual residence de novo. It concludes that a district court "clearly erred" only if a review of the record "leave[s] us with 'the definite and firm conviction that a mistake has been committed.' " Hofmann, 2013 WL 1955846, at *8 (quoting Mota, 692 F.3d at 114). Even assuming that the child was habitually resident in Italy prior to 2009, the Second Circuit concluded that his habitual residence changed to the United States after the parties reached the Settlement Agreement in May and June of 2009. Habitual residence depends on a combination of parental intent and physical presence, but when a child is very young, the shared intent of the parents is of paramount importance. It found no clear error in the District Court's finding that the Separation Agreement-signed by the Mother and Father in May 2009 and June 2009, respectively-demonstrated the parents' shared intent for the child to live primarily in New York. Moreover, the child, who was then less than three years old, had been living with the Mother in New York for several months. Because the child was living in New York, and because the parents agreed that he would continue to reside in New York, the child, in light of his age, was habitually resident in the United States at the time of the Settlement Agreement. The Second Circuit rejected the fathers argument that the Settlement Agreement was invalid under Italian and New York law and therefore cannot support the District Court's finding of shared intent. Regardless of whether the document was enforceable in state court, it was nevertheless clearly probative of the parties 'last shared intent' for the purposes of determining habitual residence under ICARA. The Father acknowledged at trial that when he signed the Agreement he understood (1) its terms; (2) that it provided for the child's residence in New York; and (3) that it would be legally binding, even though he hoped to reconcile with the Mother. Accordingly, the Court found no clear error in the District Court's finding regarding the parents' shared intent that the child would reside in New York. Having found no error in the District Court's determination that the child was habitually resident in the United States at the time of the Settlement Agreement in 2009, the Second Circuit found the child did not become habitually resident in Italy following his return to that country in the summer of 2009. At the first step of the Gitter test, the Court asked whether the evidence offered at trial showed settled mutual intent from which abandonment of the prior habitual residence could be inferred. When considering this issue, "the court should look ... at actions as well as declarations." Gitter, 396 F.3d at 134. Clearly, this was one of those questions of historical and narrative facts in which the findings of the district court are entitled to great deference. See Hofmann, 2013 WL 1955846, at *8 ("The last shared intent of the parents is a question of fact, and the district court's determination in that regard is reviewed for clear error and thus entitled to deference."). Having reviewed the record and the parties' submissions, the Court concluded that the District Court's findings were "amply supported by the record, and there was nothing leaving it with 'the definite and firm conviction that a mistake has been committed. Hofmann, 2013 WL 1955846, at *8 (quoting Mota, 692 F.3d at 114). Although the Mother agreed to the child's return to Italy and attendance at an Italian nursery school, the District Court found credible the Mother's testimony that her stay in Italy was temporary, and that she consistently intended to return to New York for the child to begin kindergarten. Record evidence amply supported this conclusion. For instance, the Mother and the child entered Italy on temporary tourist visas, and they registered for health care in New York even though eligible for public health insurance in Italy. The District Court also credited the Mother's testimony that "her willingness to attempt a reconciliation in Italy was clearly premised on the understanding that, should the reconciliation prove unsuccessful, the parties would continue to abide by the terms of the agreement." Guzzo, 2011 WL 6934108, at *9. Indeed, the Mother returned to New York with the child in November 2010, with the stated expectation of staying permanently in the United States, before she agreed to make another attempt at reconciliation with the Father the following month. Accordingly, it did not disturb the District Court's finding that the parents never shared an intent for their child to abandon his prior habitual residence in the United States. The Court pointed out that second step in the Gitter framework is to examine whether, notwithstanding a lack of shared parental intent to change the child's long-term residence, the child was nonetheless sufficiently settled into (or, "acclimated" to) the new environment such that returning the child to that environment would "be tantamount to sending [him] home." In this case, the five-year-old child lived mostly in Italy from soon after his birth in 2006 until his removal in 2011, and he regularly attended nursery school there. If it were properly raised in this appeal, the Court stated that it might conclude that the child was "acclimated" to living in Italy, that is, it might be able to say with confidence that the child's usual or customary place of residence was Italy, notwithstanding any parental intentions to the contrary. Gitter, 396 F.3d at 134. However, the Court did not address this issue, however, because the Father did not preserve any argument that the child was acclimated to Italy.

White v White, --- F.3d ----, 2013 WL 2284877 (C.A.4 (Va.)) [Switzerland] [Rights of Custody]

In White v White, --- F.3d ----, 2013 WL 2284877 (C.A.4 (Va.)) the Fourth Circuit affirmed an order which denied the petition for return. Mr. White married Ms. White in Switzerland. Later that year, they had a son in Switzerland. In June 2010, Mr. White and Ms. White separated and Mr.White initiated legal proceedings in Switzerland pertaining to the separation, including rights to the couple's child. In October 2010, the Swiss Court of First Instance of Geneva authorized Mr. and Ms. White's legal separation and granted " custody of the child" to Ms. White. The court also granted visitation rights to Mr. White "two afternoons each weekend, to be expanded to one weekend in two, in agreement with the curator when the time comes." Mr. White learned of the April 24, 2011 departure of Ms. White and the child three days after they had left Switzerland. Ms. White left him a voicemail message saying that she had taken their son on a "holiday" in the United States. Ms. White subsequently claimed that she came to the United States to visit her sister and seek medical care for her son. Doctors in Switzerland had diagnosed the child with autism; in the United States, doctors later diagnosed him with a feeding disorder for which he had been receiving treatment. Since coming to the United States, the child was been present in the country continuously, except for a brief visit to Canada. At the time of the departure of Ms. White and the child to the United States, court- appointed psychologists in Switzerland were conducting an analysis of the parties and the child to assess custody arrangements. In July 2011, at which time Ms. White and the child had resided in the United States for three months, the psychologists issued their preliminary report. In it, they suggested that Ms. White suffered from psychological problems, which affected her ability to properly care for her son, and that the court should transfer custody of the child to Mr. White if her condition did not improve within six months. In September 2011, the Court of First Instance of Geneva issued an emergency ruling prohibiting Ms. White from leaving Switzerland with the child. However, in December 2011, the same court found that it did not have jurisdiction because Switzerland was no longer Ms. White and the child's usual place of residence. In February 2012, the Swiss tutelary court in Geneva also found that it lacked jurisdiction but noted that Ms. White had sole custody of the child and could therefore remove the child from Switzerland without authorization. On April 6, 2012, upon finding that Ms. White and the child were residing in Alexandria, Virginia, Mr. White brought this action in the United States District Court for the Eastern District of Virginia.

 Following a bench trial, the district court denied the petition for return finding that Mr. White did not establish by a preponderance of the evidence that his son's removal breached any rights of custody. The parties filed their appellate briefs in the fall of 2012 and the Court of Appeals heard oral argument in the case on March 20, 2013. One day later, Mr. White filed with it an order of the Court of First Instance of Geneva dated March 15, 2013. In that order, the Court of First Instance related that, in September 2012, Geneva's Court of Justice, an appellate court, found the Geneva courts did have jurisdiction to rule on protective measures for the child of Mr. and Ms. White. Accordingly, although Ms. White and the child remained in the United States and did not appear at the hearing before the Court of First Instance, in its March 2013 order the Court of First Instance purported to adjust its earlier custody arrangements to "[g]rant[ ] to Malcolm WHITE the custody of and parental authority over the child" and "[g]rant[ ] to Soudabeh WHITE a visitation right of the child." Because it was undisputed in this case that Switzerland was the child's habitual residence before his removal, Swiss law determined whether there was a breach of rights.

The Fourth Circuit found that the October 2010 separation order explicitly awarded "the custody of the child ... to Soudabeh WHITE."It reserved to Mr. White only the "right to visit the child ." This language clearly seemed to provide that Ms. White had sole custody and Mr. White had only a "right of access," i.e., a "right to take [the] child for a limited period of time to a place other than the child's habitual residence." Hague Convention art. 5(b). Under the Convention, breach of a right of access alone does not provide cause for return of a child. Mr. White contended, however, that the text of the separation order did not tell the full story because there was a background principle in Swiss law that parents share parental authority. See Code Civil [CC] [Civil Code] Dec. 10, 1907, SR 210, RS 210, art. 297 ("During marriage, the parents shall have joint parental authority."). Such parental authority includes joint responsibility for care, education, religion, and legal representation. See id. arts. 296-317. Although Swiss law does specify that, "if the spouses separate, the judge may assign parental authority to one of the spouses,"id. art. 297, in this case the October 2010 separation order did not specifically assign parental authority to either Ms. White or Mr. White. The court found that Swiss parental authority rights alone provide no basis for a wrongful removal action under the Convention. The Swiss Supreme Court has made clear that "subject to an abuse of rights," a parent who holds "exclusive custody is entitled to move with the children, and even abroad, without having to obtain for this the judge's authorization," or the authorization of the other parent. See Tribunal federal [TF] [Federal Supreme Court] June 1, 2010, 136 ATF III 353 P 3.3. This is true even when the other parent retains parental authority rights. See id. PP 3.4-3.5 ("[G]ranting sole custody to one of the parents [removes] from the other the right to decide on the residence ... of the children.... This means that the legal situation of the holder of the restricted parental authority does not suffer any prejudice within the meaning of [ Hague Convention] art. 3 ... if the holder of the exclusive right of custody moves the children out of Switzerland...."). In February 2012, the Swiss tutelary court applied the Swiss Supreme Court's teaching in this very case, explaining that, at the time of removal, "Mrs. Soudabeh WHITE [was] the only one who [held] custody of [her son,]" and "the bearer of sole custody may, breach of law excepted, move with the child, notably to a foreign country." The Court distinguished the out-of-circuit cases Mr. White cited in which courts found removal wrongful, ostensibly based on breach of parental authority-type rights. In none of those cases were the petitioning parent's rights subject to the removing parent's sole right to remove under a governing court order, as interpreted by the courts of the country of habitual residence. Moreover, in most of the cases Mr. White cited, unlike this one, the petitioning parent had a ne exeat right to prohibit the other parent from removing the child. The district court did not err in holding that Mr. White had not demonstrated that the removal of their child by Ms. White breached any parental authority rights he retained at the time of removal.

Mr. White maintained that Ms. White's removal "secretly and in the midst of a court-ordered psychological evaluation, was intended to compromise the Father's relationship with the child and threatened the child's well-being," constituting an "abuse of rights under Swiss law."The Swiss Supreme Court has held that "a relocation without reasonable grounds, that is to say only intended to compromise the personal relationships between the child and the other parent," may be an abuse of rights and consequently a breach of rights of custody under the Convention. See Tribunal federal 136 ATF III 353 P 3.3. Further, "the spouse who holds the right of custody may be barred from taking the child outside the country ... provided that the wellbeing of the person concerned is seriously threatened by this relocation."Id . However, under Swiss law, typical relocation and integration difficulties "do not normally constitute a serious threat" and so "there will rarely be a serious threat to the wellbeing of the child when he is still very young."Id. Whether there was an "abuse of rights" by Ms. White therefore hinged on the factual question of why she decided to leave Switzerland with the child and whether her decision to do so seriously threatened his well being. Ms. White testified at trial in the district court that she brought her son to the United States to see her sister and to seek medical treatment. The district court explicitly found Ms. White's explanation credible. The Court could not hold that the district court clearly erred in finding that Ms. White had legitimate reasons for coming to the United States. It therefore rejected Mr. White's contention that Ms. White's removal of the child from Switzerland constituted an abuse of her rights under Swiss law.

Mr. White relied on the Swiss Court of First Instance's very recent March 2013 order purporting to transfer custody of the child from Ms. White to Mr. White two years after the child's removal to the United States. Mr. White maintained that the new order "dramatically [a]ffects this case" and "confirms that the Swiss Court has always been in accord with [his] position." The Court held that the only reasonable reading of the Convention is that a removal's wrongfulness depends on rights of custody at the time of removal. Removal could not be considered in breach of rights of custody if those rights did not exist at the time of removal. Moreover, the Convention explicitly provides that removal is only wrongful when " at the time of removal " custody "rights were actually exercised ... or would have been so exercised but for the removal."Id. art. 3(b). Thus, courts have repeatedly assumed rights of custody for purposes of Article 3 of the Convention means rights of custody at the time of removal. Because the Court had ot previously addressed directly the question of whether a custody determination after removal affects a Hague Convention case, it looked also to the practice of our sister signatories and concluded that our sister signatories agree that orders claiming to adjust custody arrangements after removal or retention do not typically affect rights under Article 3 of the Convention. Accordingly, it held hold that the determination of whether removal is wrongful is based on rights of custody at the time of removal. The Swiss Court of First Instance's March 2013 order did not purport to reject the authenticity of, or retroactively alter, the previously governing October 2010 order granting Ms. White sole custody of the child. The October 2010 order, which was in effect at the time of the child's removal, therefore controlled this case.