In Arulpragasam v. Bronfman, 2013 WL 2249256 (E.D.N.Y.) Petitioner Mathangi Arulpragasam
filed a petition under the Hague Convention seeking an order directing
Respondent Benjamin Bronfman to refrain from retaining their son in New York and
allowing Petitioner and son to return to England.
Petitioner requested that the following information be redacted from all
court filings: 1. "[A]ll identifying information about the [c]hild (to protect
his privacy and safety), including his name, the school he is now attending" and
certain other personal information regarding the child; 2. "[I]dentifying
information about [P]etitioner (to protect her safety and effectuate the [c]hild's
privacy concerns)," to include Petitioner's home address and other personal
information; and 3. "[T]he names of the parties (to effectuate the foregoing),
including revision of the caption to be 'Anonymous v. Anonymous.' "
The Court granted the first two requests and denied the third request. It
observed that this was not a child custody case, and was not governed by New
York law, but by a treaty which Petitioner did not assert provided for the
sealing of this proceeding. Petitioner argued that the Second Circuit's decision
in United States v. Amodeo, 71 F.3d 1044 (2d Cir.1995), supported the redaction
of the personal information requested. The Court agreed with Petitioner that
some of the information that Petitioner sought to redact from the filings should
be redacted. Pursuant to Rule 5.2 of the Federal Rules of Civil Procedure,
parties are required to redact certain personal information from all documents
filed with the Court, including the name of the child. As to the other personal
information Petitioner sought to redact, the Court found that such information
should be redacted from all filings.
The Court denied Petitioner's third request which sought to conceal the
identity of the parties in this case and to identify them as Anonymous v.
Anonymous. Petitioner's only argument in support of this request was that
"removing the parties' names from the caption will lessen the likelihood of
interest being directed toward" the case. The Court held that the public's
interest in Petitioner is not a legal basis for sealing this proceeding, nor is
it a legal basis for anonymity. In Sealed Plaintiff v. Sealed Defendant, the
Second Circuit discussed the standard governing the use of pseudonyms in civil
litigation. 537 F.3d 185, 189-90 (2d Cir.2008). The court stated that "the
interests of both the public and the opposing party should be considered when
determining whether to grant an application to proceed under a pseudonym.
Accordingly, we ... hold that when determining whether a plaintiff may be
allowed to maintain an action under a pseudonym, the plaintiff's interest in
anonymity must be balanced against both the public interest in disclosure and
any prejudice to the defendant." Id. at 189.The Second Circuit held that the
balancing of interests entails the consideration of several factors citing. It
noted that this list is non-exhaustive and district courts should take into
account other factors relevant to the particular case under consideration
Although Respondent did not oppose Petitioner's requests, Petitioner did not
convince the Court that the balance of these factors weighed in her favor.
Thursday, August 15, 2013
Walker v Walker, 2013 WL 1110876 (N.D.Ill.) [Australia] [Habitual Residence] [Age & Maturity] [Petition Granted]
In Walker v Walker, 2013 WL 1110876 (N.D.Ill.) in early May 2011, Iain Walker,
a citizen of Australia, filed suit against his then wife Norene Walker, a United
States citizen, seeking to compel her to return their three children to
Australia. In September 2011, another judge of the court conducted a bench trial
on the petition, and, on October 20, 2011, he ruled in Norene's favor. The court
of appeals in Walker v. Walker, 701 F.3d 1110, 1114 (7th Cir.2012), overturned
as insufficiently supported the district judge's determinations that the United
States was the children's habitual residence at the relevant time; that Iain had
abandoned the children and was not exercising his rights of custody at the
relevant time; and that Iain had consented to the children remaining in the
United States. The court remanded the case for further proceedings setting forth
in its opinion the crucial issues which were not fully developed in the previous
proceedings, and directed that the district court resolve at least the following
questions: 1. What was Iain and Norene's mutual intent regarding the trip to the
United States in June 2010? Was this intended as an extended vacation or as a
permanent move? 2. What has been the precise nature of Iain's participation in
the Illinois divorce proceedings, and to what extent, if at all, does this
participation indicate that Iain either consented to or acquiesced in the
children's retention in the United States? 3. To the extent the children have
"attained an age and degree of maturity at which it is appropriate to take
account of their views," [ Hague Convention] Art. 13, what is the children's
attitude to being returned to Australia? In conducting this inquiry, we caution
that the district court must be attentive to the possibility that the children's
views may be the product of "undue influence" of the parent who currently has
custody. 51 Fed.Reg. 10510.
The district court observed that the first step, was to determine the children's habitual residence at the relevant time. As the Seventh Circuit stated in its decision in this case, to prevail, Iain was "required to show that Australia was the children's habitual residence at the time of their retention in the United States." Walker, 701 F.3d at 1119. It found that the time of the children's retention in the United States by Norene was, at the latest, late January 2011. Norene testified that this was when she first formed the intention to remain in the United States and not return the children to Australia. It was undisputed that the Walkers resided in Australia from 1998 through June 2010. In a case of alleged wrongful retention, a court determines a child's habitual residence "by asking whether a prior place of residence was effectively abandoned and a new residence established by the shared actions and intention of the parents coupled with the passage of time." Walker, 701 F.3d at 1119." Because the parents often dispute their intentions, the court should look at actions as well as declarations in determining whether the parents shared an intent to abandon a prior habitual residence." Iain had proven by a preponderance of the evidence that the Walkers did not have a shared intention to abandon their residence in Australia and establish a new residence in the United States. This proposition was amply established by the testimony of both parties as well as their earlier statements and actions and the circumstantial evidence. Iain and Norene were married in Chicago, where Norene's parents lived, in 1993. They lived in Seattle, Washington until 1998, and their first child was born there in 1997. They moved to Perth, a city in Western Australia, in 1998, when their first child was about one year old. Iain and Norene's two younger children were born in Australia in 1999 and 2001. Norene testified that she and Iain initially intended to live in Australia for five years and then relocate to the United States. She testified that she agreed to marry Iain only on that condition. They actually lived together in Australia, however, for twelve years, until 2010. As the Seventh Circuit stated in its ruling, and as the evidenced presented to this Court showed, [o]ver this period, they and their children appeared to be well-settled: they owned a home, furniture, and a dog named Chubba; the children attended school, had friends, and participated in activities; and Iain worked as a software test engineer while Norene cared for the children. Iain, Norene, and their children traveled to the United States in June 2010. The Seventh Circuit stated, and the Court found based on the evidence presented, that "[w]hen they left Australia, both Iain and Norene expected that Norene and the children would remain in the United States for six months to one year." Norene contended, however, that this trip was intended "as an extended prelude to a permanent move to the United States." Norene testified that she married Iain on the condition that after five years, they would relocate in the United States. She contended that the June 2010 trip represented the fulfillment of that condition, or at least the initial steps toward its fulfillment. Iain contended, by contrast, that they intended for Norene and the children to live with Norene's parents in Chicago while the family demolished their house in Perth and built a new one, at which point Norene and the children would return to Australia and resume living there indefinitely.
It was undisputed that their home in Perth was demolished and that construction of two new homes on the property was to begin thereafter. Iain said that the family planned to live in one; Norene said they planned to sell both. The evidence overwhelmingly showed that Iain and Norene did not have a "shared intention" to abandon residence in Australia and establish residence in the United States at any time relevant to this case. The Court found credible Iain's testimony that he did not intend to relocate himself or the family permanently to the United States and that the purpose of the extended stay in this country was to allow demolition and reconstruction of the family's home in Perth. The Court also found credible Iain's testimony that he did not participate along with Norene in what she described as initial efforts to look for a home in the United States. The Court did not doubt that Norene may have wanted to eventually establish residence in the United States. The Court found that Iain and Norene's mutual intent regarding the June 2010 trip to the United States was that it was not a permanent move or even a prelude to a permanent move. Rather, it was a temporary stay. At most the trip was an extended leave of absence from Australia with the intent to return to their permanent residence that country. There was no shared intention to abandon Australia as their residence and establish residence in the United States. The children's habitual residence was Australia as of the time of the alleged wrongful retention.
The Court found that Norene's retention of the children was in breach of Iain's custody rights under Australian law. It was not seriously disputed that Iain had, at the relevant time, the right of joint custody of the children under Australian law. The Court considered Norene to have forfeited this argument due to the utter absence of any reasonable effort by her counsel to support it; leaving it to the Court to wade through a complex and detailed 700-plus page statute did not cut it. The Court found that Iain had met his burden of providing that Norene's retention of the three children, which took place at the latest in late January 2011, breached his rights of custody under the law of Australia, which is where the children were habitually resident immediately before the retention. The Court also found that Iain was actually exercising his rights of custody up through and at the time of Norene's retention of the children.
The district judge who conducted the first trial concluded that Iain had abandoned the children after returning to Australia in July 2010 and at the latest in January 2011. This conclusion appeared to have been based largely on evidence that the Seventh Circuit concluded should have been excluded for this purpose. One way or another, however, the Court disagreed with the previous judge. The admissible evidence was all to the contrary. There was no abandonment of the children by Iain, and he was actually exercising his custody rights at the relevant time. The Court concluded that Iain established the necessary elements of a claim of wrongful retention under article 3 of the Hague Convention.
Norene contended that Iain had consented to, or subsequently acquiesced in, the retention of the children by Norene in the United States. She failed to prove either by a preponderance of the evidence, and the evidence was not close. Iain took prompt steps to seek relief via the Hague Convention.He has consistently and diligently pursued his petition for relief under the Convention and ICARA ever since that time, through the present day. In arguing acquiescence, Norene relied on Iain's participation in the Illinois divorce proceedings, and perhaps on his later non-participation in those proceedings. Iain participated in the Illinois divorce proceedings via counsel until approximately the end of January 2012. Nothing about his participation in the case suggested acquiescence in the children's retention in the United States. There was nothing about Iain's actions that suggested that this represented acquiescence in the children's retention in the United States. Even while ceasing participation in the Illinois divorce case, Iain continued to pursue vigorously in the court and on appeal his challenge to Norene's retention of the children.
The third question posed by the court of appeals involves the application of the child objection provision of the Hague Convention. Article 13 of the Hague Convention states that a judicial authority "may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views."Hague Conv. art. 13. During the initial trial before the previous judge, each of the three children was questioned in the presence of counsel but not the parties, informally, while sitting around a table. The Court followed the same practice at the trial just conducted. The three children were a fifteen year old girl who would turn sixteen on March 18 of that year, a thirteen year old boy who would turn fourteen in August, and an eleven year old girl who would turn twelve in June.. The older daughter had a sheet of handwritten notes that she consulted from time to time. All of the children were doing well in school, better than they were doing during the period shortly after they first came to the United States. All of them were involved in activities here. They expressed the view that there were better opportunities here than in Australia. The children all reported that they like living here and with their mother. They also all reported that they had frequent contact with their father by telephone and Skype. The oldest daughter still had contact with some of her friends from Australia, and all of them remembered living there and that they liked it when they were there. The middle child stated that he was a bit angry with his father and disappointed that his father had "ordered a retrial," which he said he had learned from his mother. (The Court attempted to explain to him that the "retrial" had been ordered by judges, not by his father.) All three of the children expressed their desire to remain in the United States, with their mother. The Court found that the two older children had reached an age and maturity at which it was appropriate to take account of their views. The Court assumed for purposes of discussion that the younger daughter likewise has reached a sufficient age and maturity for the article 13 provision to apply.
It observed that a court must take care not to give significant weight to a child's views if the child has been unduly influenced by the respondent parent. See, e.g., Walker v. Kitt, --- F.Supp.2d ----, 2012 WL 5237262, at *5 (N.D.Ill. Oct. 24, 2012) There was evidence of that here. First, as indicated earlier, the middle child's apparent anger with his father arose rom his mother having told him that his father "ordered a retrial." Second, each of the children made reference to better "opportunities" for education and otherwise, using very similar terminology. The Court might have regarded this as independently derived had it come only from the Walkers' oldest daughter, a high school sophomore, or perhaps from their son, an eighth grader. After the two older children spoke, however, the youngest child, after some initial introductory questions, began her statement about the relevant topics by talking about better education and a lot more opportunities here than in Australia. Given the three children's remarkably similar statements in this regard, the Court was constrained to conclude that their statements were subject of some degree of influence, and it was reasonable to infer that this was from their mother. Even were that not the case, although the Court found the children quite likeable and respects their views, the circumstances did not warrant giving their views controlling weight. As of the date of the trial, they had been in the United States for just three months short of three years. They had become acclimated to living here, and they had become settled in. It was both understandable and predictable that they did not now wish to relocate. It wsa likewise understandable and predictable that they had a far closer connection with their mother, with whom they have lived for this extended period, than with their father. But all of this was, at least in significant part, a direct result of their wrongful retention here by Norene. As the Third Circuit noted in Yang,"[a] lengthy wrongful retention could enable the child to become comfortable in his or her new surroundings, which may create a desire to remain in his or her new home." Yang, 499 F.3d at 280. In such a case, "application of the exception ... would reward [a respondent] for violating [a petitioner's] custody rights, and defeat the purposes of the Convention."
The Court entered judgment in favor of the petitioner and directed the respondent to immediately return the parties' three children to petitioner in Australia.
The district court observed that the first step, was to determine the children's habitual residence at the relevant time. As the Seventh Circuit stated in its decision in this case, to prevail, Iain was "required to show that Australia was the children's habitual residence at the time of their retention in the United States." Walker, 701 F.3d at 1119. It found that the time of the children's retention in the United States by Norene was, at the latest, late January 2011. Norene testified that this was when she first formed the intention to remain in the United States and not return the children to Australia. It was undisputed that the Walkers resided in Australia from 1998 through June 2010. In a case of alleged wrongful retention, a court determines a child's habitual residence "by asking whether a prior place of residence was effectively abandoned and a new residence established by the shared actions and intention of the parents coupled with the passage of time." Walker, 701 F.3d at 1119." Because the parents often dispute their intentions, the court should look at actions as well as declarations in determining whether the parents shared an intent to abandon a prior habitual residence." Iain had proven by a preponderance of the evidence that the Walkers did not have a shared intention to abandon their residence in Australia and establish a new residence in the United States. This proposition was amply established by the testimony of both parties as well as their earlier statements and actions and the circumstantial evidence. Iain and Norene were married in Chicago, where Norene's parents lived, in 1993. They lived in Seattle, Washington until 1998, and their first child was born there in 1997. They moved to Perth, a city in Western Australia, in 1998, when their first child was about one year old. Iain and Norene's two younger children were born in Australia in 1999 and 2001. Norene testified that she and Iain initially intended to live in Australia for five years and then relocate to the United States. She testified that she agreed to marry Iain only on that condition. They actually lived together in Australia, however, for twelve years, until 2010. As the Seventh Circuit stated in its ruling, and as the evidenced presented to this Court showed, [o]ver this period, they and their children appeared to be well-settled: they owned a home, furniture, and a dog named Chubba; the children attended school, had friends, and participated in activities; and Iain worked as a software test engineer while Norene cared for the children. Iain, Norene, and their children traveled to the United States in June 2010. The Seventh Circuit stated, and the Court found based on the evidence presented, that "[w]hen they left Australia, both Iain and Norene expected that Norene and the children would remain in the United States for six months to one year." Norene contended, however, that this trip was intended "as an extended prelude to a permanent move to the United States." Norene testified that she married Iain on the condition that after five years, they would relocate in the United States. She contended that the June 2010 trip represented the fulfillment of that condition, or at least the initial steps toward its fulfillment. Iain contended, by contrast, that they intended for Norene and the children to live with Norene's parents in Chicago while the family demolished their house in Perth and built a new one, at which point Norene and the children would return to Australia and resume living there indefinitely.
It was undisputed that their home in Perth was demolished and that construction of two new homes on the property was to begin thereafter. Iain said that the family planned to live in one; Norene said they planned to sell both. The evidence overwhelmingly showed that Iain and Norene did not have a "shared intention" to abandon residence in Australia and establish residence in the United States at any time relevant to this case. The Court found credible Iain's testimony that he did not intend to relocate himself or the family permanently to the United States and that the purpose of the extended stay in this country was to allow demolition and reconstruction of the family's home in Perth. The Court also found credible Iain's testimony that he did not participate along with Norene in what she described as initial efforts to look for a home in the United States. The Court did not doubt that Norene may have wanted to eventually establish residence in the United States. The Court found that Iain and Norene's mutual intent regarding the June 2010 trip to the United States was that it was not a permanent move or even a prelude to a permanent move. Rather, it was a temporary stay. At most the trip was an extended leave of absence from Australia with the intent to return to their permanent residence that country. There was no shared intention to abandon Australia as their residence and establish residence in the United States. The children's habitual residence was Australia as of the time of the alleged wrongful retention.
The Court found that Norene's retention of the children was in breach of Iain's custody rights under Australian law. It was not seriously disputed that Iain had, at the relevant time, the right of joint custody of the children under Australian law. The Court considered Norene to have forfeited this argument due to the utter absence of any reasonable effort by her counsel to support it; leaving it to the Court to wade through a complex and detailed 700-plus page statute did not cut it. The Court found that Iain had met his burden of providing that Norene's retention of the three children, which took place at the latest in late January 2011, breached his rights of custody under the law of Australia, which is where the children were habitually resident immediately before the retention. The Court also found that Iain was actually exercising his rights of custody up through and at the time of Norene's retention of the children.
The district judge who conducted the first trial concluded that Iain had abandoned the children after returning to Australia in July 2010 and at the latest in January 2011. This conclusion appeared to have been based largely on evidence that the Seventh Circuit concluded should have been excluded for this purpose. One way or another, however, the Court disagreed with the previous judge. The admissible evidence was all to the contrary. There was no abandonment of the children by Iain, and he was actually exercising his custody rights at the relevant time. The Court concluded that Iain established the necessary elements of a claim of wrongful retention under article 3 of the Hague Convention.
Norene contended that Iain had consented to, or subsequently acquiesced in, the retention of the children by Norene in the United States. She failed to prove either by a preponderance of the evidence, and the evidence was not close. Iain took prompt steps to seek relief via the Hague Convention.He has consistently and diligently pursued his petition for relief under the Convention and ICARA ever since that time, through the present day. In arguing acquiescence, Norene relied on Iain's participation in the Illinois divorce proceedings, and perhaps on his later non-participation in those proceedings. Iain participated in the Illinois divorce proceedings via counsel until approximately the end of January 2012. Nothing about his participation in the case suggested acquiescence in the children's retention in the United States. There was nothing about Iain's actions that suggested that this represented acquiescence in the children's retention in the United States. Even while ceasing participation in the Illinois divorce case, Iain continued to pursue vigorously in the court and on appeal his challenge to Norene's retention of the children.
The third question posed by the court of appeals involves the application of the child objection provision of the Hague Convention. Article 13 of the Hague Convention states that a judicial authority "may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views."Hague Conv. art. 13. During the initial trial before the previous judge, each of the three children was questioned in the presence of counsel but not the parties, informally, while sitting around a table. The Court followed the same practice at the trial just conducted. The three children were a fifteen year old girl who would turn sixteen on March 18 of that year, a thirteen year old boy who would turn fourteen in August, and an eleven year old girl who would turn twelve in June.. The older daughter had a sheet of handwritten notes that she consulted from time to time. All of the children were doing well in school, better than they were doing during the period shortly after they first came to the United States. All of them were involved in activities here. They expressed the view that there were better opportunities here than in Australia. The children all reported that they like living here and with their mother. They also all reported that they had frequent contact with their father by telephone and Skype. The oldest daughter still had contact with some of her friends from Australia, and all of them remembered living there and that they liked it when they were there. The middle child stated that he was a bit angry with his father and disappointed that his father had "ordered a retrial," which he said he had learned from his mother. (The Court attempted to explain to him that the "retrial" had been ordered by judges, not by his father.) All three of the children expressed their desire to remain in the United States, with their mother. The Court found that the two older children had reached an age and maturity at which it was appropriate to take account of their views. The Court assumed for purposes of discussion that the younger daughter likewise has reached a sufficient age and maturity for the article 13 provision to apply.
It observed that a court must take care not to give significant weight to a child's views if the child has been unduly influenced by the respondent parent. See, e.g., Walker v. Kitt, --- F.Supp.2d ----, 2012 WL 5237262, at *5 (N.D.Ill. Oct. 24, 2012) There was evidence of that here. First, as indicated earlier, the middle child's apparent anger with his father arose rom his mother having told him that his father "ordered a retrial." Second, each of the children made reference to better "opportunities" for education and otherwise, using very similar terminology. The Court might have regarded this as independently derived had it come only from the Walkers' oldest daughter, a high school sophomore, or perhaps from their son, an eighth grader. After the two older children spoke, however, the youngest child, after some initial introductory questions, began her statement about the relevant topics by talking about better education and a lot more opportunities here than in Australia. Given the three children's remarkably similar statements in this regard, the Court was constrained to conclude that their statements were subject of some degree of influence, and it was reasonable to infer that this was from their mother. Even were that not the case, although the Court found the children quite likeable and respects their views, the circumstances did not warrant giving their views controlling weight. As of the date of the trial, they had been in the United States for just three months short of three years. They had become acclimated to living here, and they had become settled in. It was both understandable and predictable that they did not now wish to relocate. It wsa likewise understandable and predictable that they had a far closer connection with their mother, with whom they have lived for this extended period, than with their father. But all of this was, at least in significant part, a direct result of their wrongful retention here by Norene. As the Third Circuit noted in Yang,"[a] lengthy wrongful retention could enable the child to become comfortable in his or her new surroundings, which may create a desire to remain in his or her new home." Yang, 499 F.3d at 280. In such a case, "application of the exception ... would reward [a respondent] for violating [a petitioner's] custody rights, and defeat the purposes of the Convention."
The Court entered judgment in favor of the petitioner and directed the respondent to immediately return the parties' three children to petitioner in Australia.
Bernal v. Gonzalez,--- F.Supp.2d ----, 2012 WL 7113186 (W.D.Tex.) [Mexico] [Habitual Residence][Rights of Custody] [Grave Risk of Harm] [Article 16 & 17] [Petition Granted]
In Bernal v. Gonzalez,--- F.Supp.2d ----, 2012 WL 7113186 (W.D.Tex.) Petitioner Amelia Aguilar Bernal filed a Verified Petition for Return of Children. Petitioner Bernal and Respondent Gonzalez were citizens of the Republic of Mexico; were married in Elk Point, South Dakota, on January 31, 2003; and were the parents of four children: A .B. (male), C.G.B., C.D.B., and A.B. (female). The children were all born in the United States of America and were United States citizens. A.B. (male) was born in 1996 in California and was currently sixteen years old. C.G.B. and C.D.B. were ten year old twins, born in Iowa in 2002. A.B. (female) was five years old, also born in Iowa, in 2007. In 2008, Petitioner and Respondent moved to Guasaves, Sinaloa, Mexico, from the United States, with their four children. There, Respondent purchased land and built a house. A.B. (male), C .G.B., and C.D.B. attended school in Guasaves, Sinaloa, Mexico. A.B. (female) was at home with Petitioner or family members. Petitioner took care of the children while Respondent worked in the United States. Petitioner and Respondent had marital problems and separated in 2010.
On December 16, 2010, Petitioner and Respondent entered into an agreement regarding the care of their four children at the Desarrollo Integral de La Familia (1) Respondent would pay $1500.00 Mexican pesos per week for support of A.B. (male), C.G.B., C.D.B., and A.B. (female); and (2) Respondent would have weekend visitation rights. The agreement restricted Respondent's visitation to locations within Sinaloa, Mexico. Respondent and Petitioner signed the agreement and each placed inked thumb prints on the document. After signing the agreement, Respondent returned to the United States to work. At some point in March of 2011, Respondent returned to Guasaves, Sinaloa, Mexico, with the intent to retrieve his four children and move them to the United States. On or about March 25, 2011, Respondent picked up A.B. (male), C.G.B., C.D.B., and A.B. (female) from Petitioner for a weekend of visitation as per their written agreement. On or about March 25, 2011, Respondent took A.B. (male), C.G .B., C.D.B., and A.B. (female) to the United States. Petitioner never consented to the initial removal of her four children to the United States and never subsequently acquiesced to the removal of the children. Petitioner diligently pursued the location and return of her children. On or about March 28, 2011, Petitioner reported Respondent's taking of the children to the Ministerio Publico in Guasaves, Sinaloa, Mexico.
On July 12, 2011, Petitioner signed an Application for Return of Children. Upon leaving Mexico, Petitioner first took A.B. (male), C.G.B., C.D.B., and A.B. (female) for a brief stay in San Diego, California. From California, they moved to Nebraska. From information provided to her by her aunt, Petitioner learned A.B. (male), C.G.B., C.D.B., and A.B. (female) were in Nebraska soon after their arrival there.. Petitioner requested that Respondent return the children to Mexico and he refused. Respondent moved A.B. (male), C.G.B., C.D.B., and A.B. (female) from Nebraska to Crane, Texas. Respondent filed for divorce in a Texas court on May 2, 2012. A default judgment was entered by the Texas court on July 26, 2012. Respondent was awarded sole managing custody.
Petitioner filed suit in the Western District of Texas, Midland/Odessa Division, for Return of Children on August 27, 2012. The court found that the Republic of Mexico was the country of habitual residence for A.B. (male), C.G.B., C.D.B., and A.B. (female) prior to their removal on or about March 25, 2011. Petitioner proved by a preponderance of the evidence that C.G.B., C.D.B., and A .B. (female) were wrongfully removed from their country of habitual residence. Petitioner had rights of custody under the laws of the State in which the children were habitual residents immediately before removal and was exercising those rights before removal. Respondent's removal of C.G.B., C.D.B., and A.B. (female) breached Petitioner's rights of custody.
The court observed that the the Fifth Circuit adopted its framework for making country of habitual residence determinations. Larbie v. Larbie, 690 F.3d 295, 310 (5th Cir.2012). The inquiry balances the interests of the child with the intentions of the parents. Larbie, 690 F.3d at 310. A court's "inquiry into a child's habitual residence is not formulaic; rather it is a fact-intensive determination that necessarily varies with the circumstances of each case." When determining a child's country of habitual residence, analysis focuses on the "parents' shared intent or settled purpose regarding their child's residence." Here the facts indicated that both parents shared the intent that Guasaves, Sinaloa, Mexico, was their children's residence prior to removal. Petitioner clearly established that in 2008, Petitioner and Respondent, together, moved their children, A.B. (male), C.G.B., C.D .B., and A.B. (female), from the United States to Sinaloa, Mexico. Once there, Respondent purchased land and built a home. Further, the children were enrolled in and attended the local Mexican public schools. Moreover, Respondent left the children in Mexico with Petitioner for months at a time while he worked in the United States. Habitual residence is determined by looking at the parents' intent or settled purpose prior to removal. See Larbie, 690 F.3d at 310. The parents' mutual decision to move their children to Mexico from the United States and establish roots in Guasaves, Sinaloa, Mexico, provided strong evidence of shared parental intent to make Mexico their children's country of habitual residence. Further evidence of shared parental intent and settled purpose was provided by the parents' signed written agreement, outlining Respondent's voluntary agreement to a visitation arrangement in Mexico.
Rights of custody was to be determined by the application of the laws of the Republic of Mexico. Petitioner Bernal asserted that the parties voluntarily executed a legally enforceable custody agreement under Article 17 of the Sinaloa Civil Code. To assist in proving that the document was a legally enforceable custody agreement under the laws of the Republic of Mexico, Petitioner submitted into evidence an affidavit by Mexican attorney Mariano Nunez Arreloa which explained relevant Mexican laws. When interpreting issues of foreign law, Federal Rule of Civil Procedure 44.1 allows a liberal approach to evidentiary rules, thus making Mariano Nunez Arreola's affidavit acceptable proof of Mexican laws. The State of Sinaloa, Mexico, in accordance with the Sinaloa Civil Code adhered to the legal doctrine of patria potestad. See Sina. Civ.Code, tit. 8, ch. 1, art. 412 et seq.; "Pursuant to that doctrine both parents have joint custody
rights." The Court found that the agreement between Petitioner and Respondent was valid under the laws of the State of Sinaloa, Mexico. Furthermore, the agreement gave Petitioner specific rights of custody as defined by the Convention. Petitioner proved by a preponderance of the evidence that Respondent took C.G.B., C.D.B., and A.B. (female) in breach of Petitioner's rights of custody under the laws of the children's habitual residence-the Republic of Mexico ,and that such rights were exercised at the time of removal.
In support of his "grave risk" affirmative defense, Respondent argued that the narrow exception to return of the children to Mexico applies because the ongoing cartel violence in Guasaves, Sinaloa, Mexico, posed a grave risk; and Petitioner was less fit than Respondent to care for their children. The court found that Respondent failed to establish by clear and convincing evidence that there was a grave risk that return of C.G.B., C.D.B., and A.B. (female) would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation. Respondent argued that the following provided evidence that return would expose the children to physical or psychological harm or place the children in an intolerable situation: (1) the ongoing cartel violence in Guasaves, Sinaloa, Mexico; Respondent testified to observing what appeared to be dead bodies in the river near their home in Guasaves, Sinaloa, Mexico. (2) an occurrence in which A.B. (male) was a passenger in a vehicle stopped at gunpoint by alleged cartel members; A.B. (male) testified that he was in a vehicle with his uncle, grandmother, and cousin. The vehicle was stopped by armed men and a gun was pointed at his uncle. A.B. (male) further testified that the armed men were not police and were looking for people in a similar vehicle. The armed men allowed them to leave.
The Court held that ongoing violence in the Republic of Mexico was a serious concern; however, the general cartel violence in Mexico, and specifically the testimonial evidence, did not constitute the clear and convincing evidence necessary to trigger the grave risk of harm exception. Moreover, courts have refused to extend the grave risk of harm exception to cases in which return of a child was to a country facing similarly violent sociopolitical disruptions as those currently confronting the citizens of the Republic of Mexico. Respondent demonstrated that the ongoing violence in Mexico posed serious risk: however, Respondent failed to show that the risk to the children was grave. Respondent failed to show that the conditions in Guasaves, Sinaloa, Mexico, equated to a "zone of war, famine, or disease." Respondent's grave risk of harm defense based on the cartel violence in Mexico was denied.
Respondent presented evidence that Petitioner possibly over-consumed alcohol; possibly entertained late night visits by men seeking money; failed to provide a clean house for the children; did not have employment; failed to provide the children with properly fitting clothing and shoes with money supplied by Respondent; and failed to rid the children of lice infestation. At trial, much was made over an incident in which A.B. (female) was stung by a scorpion at approximately 10:00 p.m., while staying at her grandparents' home. The child was rushed to the local hospital for treatment. Petitioner could not be immediately located, however, Petitioner testified that once she learned of the scorpion incident she went to the hospital and found that A.B. (female) had already been released. Although the evidence presented did not paint Petitioner in a pleasant light, Respondent failed to present any evidence of serious neglect or abuse to satisfy the grave risk of harm exception. The grave risk of harm defense was not intended to be used by a respondent as a vehicle to litigate the child's best interests.
When a petition for return of child is commenced in a court after one year from the date of removal, the respondent can assert an affirmative defense and prevent removal back to the country of habitual residence if respondent proves by a preponderance of the evidence that the child is now settled into the new environment. 42 U.S.C. § 11603(e)(2)(B); Convention, art. 12. Petitioner filed suit five months after the deadline. However, Respondent never raised the settled into new environment affirmative defense. Convention, art. 12. It was not raised in his answer, supplemental briefing, post-trial briefing, or at trial. Petitioner urged the Court to treat the Article 12 affirmative defense as waived because Respondent never asserted the defense. See Fed.R.Civ .P. 8(c)(1) (requiring parties to plead affirmative defenses)." Nevertheless the court held that Petitioner was never per se ambushed by an Article 12 settled into new environment defense because Respondent never raised the defense at any time over the course of the proceedings. Petitioner was well aware of the potential for an Article 12 affirmative defense based on the delayed filing of Petitioner's Verified Petition for Return of Children. However, the Court was mindful that by exercising its "contingent discretionary power" and examining Respondent's unpleaded Article 12 affirmative defense, Petitioner might be prejudiced by her inability to respond and assert a potentially viable equitable tolling defense, available to petitioners that fail to meet the one-year filing deadline under the Convention.
Through the exercise of the Court's "contingent discretionary power" to examine Respondent's settled into new environment affirmative defense under Article 12 of the Convention, it held that substantial evidence had not been presented to the Court to prove by a preponderance of evidence that C.G.B., C .D.B., and A.B. (female) were now settled into Crane, Texas; thus, there was no exception to return under the Convention. See 42 U.S.C. s 11603(e)(2)(B).
Respondent asserted that a default judgment divorce, entered by a Texas court on July 26, 2012, in which the Court awarded Respondent sole managing custody over the children was a defense to the return of C.G.B., C.D.B., and A.B. (female) to their country of habitual residence-the Republic of Mexico. The court pointed out that the Convention provides that state court actions "shall not decide ... the merits of rights of custody until it has been determined that the child is not to be returned" to the country of habitual residence in cases of wrongful removal under the Convention. Convention. art. 16. Furthermore, ICARA expressly prohibits a court from deciding the underlying merits of a custody dispute. 42 U.S.C. § 11601(b)(4). Under Article 17, that State cannot refuse to return a child solely on the basis of a court order awarding custody to the alleged wrongdoer made by one of its own courts or by the courts of another country. Significantly, the Court's determination that C.G.B., C.D.B., and A.B. (female) were wrongfully removed from their country of habitual residence under the Convention preempted the default judgment in state court that awarded sole managing custody. Respondent's award of sole managing custody under the laws of Texas was no defense to the return C.G.B., C.D.B., and A.B. (female) to the Republic of Mexico. The Texas court did not have the authority to decide the custody of the children and assign Respondent sole managing custody while the suit for return of children under the Convention was pending. Convention, art. 16.
Aly v. Aden, 2013 WL 593420 (D. Mn) [Canada] [Habitual Residence] [Grave Risk of Harm] [Attorneys Fees & Costs Clearly Inappropriate] [Petition Granted]
[Canada] [Habitual Residence] [Grave Risk of Harm] [Attorneys Fees & Costs Clearly Inappropriate] [Petition Granted]
In Aly v. Aden, 2013 WL 593420 (D. Mn) petitioner Mohamed Aly Saad Aly filed a petition against respondent Amal Aden alleging that Aden wrongfully removed their child from Canada to the United States. Petitioner Aly was born and raised in Cairo, Egypt. Aly had been a permanent resident of Ontario, Canada since 2007, where he was pursuing a PhD in engineering at the University of Waterloo. Aly applied for Canadian citizenship, and his application was being processed. Aly supported himself financially with a stipend he received from serving as a research/teaching assistant at the University of Waterloo, a temporary position that would end when Aly completed his PhD. Respondent Aden was a United States citizen who was born in Somalia and immigrated to Minnesota in 1999. Aden received a Bachelor's Degree in nursing in 2007 and worked part-time at the Hennepin County Medical Center.
Aly and Aden were religiously married in an Islamic ceremony in April 2010. On June 7, 2011, the couple was civilly married in Canada. In May 2010, Aden moved from Minnesota to Ontario and began living with Aly in his apartment. Aden purchased a townhome in Minnesota in 2007, which she continued to rent to a tenant after moving to Canada. Her immigration status in Canada was one of a visiting American. Upon moving to Canada, Aden retained her Minnesota driver's license, and when it expired obtained a New York driver's license. In November 2010, Aly added Aden to the lease agreement for his apartment. In November 2010, Aden became pregnant with P.H.A.S.A. In December 2010, Aden began working as a nurse at Millard Fillmore Gates Hospital in Buffalo, New York. In January 2011, Aden alleged that she told Aly she wanted to separate. On February 27, 2011, Aly and Aden were involved in a violent incident. An argument began when Aly became upset that Aden did not make him lunch, and instead suggested that he prepare his own lunch. Aden alleged that the argument escalated verbally, and she began to pack her bags, planning to end the relationship with Aly and move out of the apartment. At this point, Aden alleged that Aly threw her onto the bed, punched her in the head several times, and lay on top of her. When Aden got off the bed, she alleged that Aly grabbed her by the shoulders to prevent her leaving the room and kneed her forcibly in the stomach.. Aly testified that as the verbal argument over the preparation of lunch escalated, Aden threatened him with a kitchen knife and also threatened to kill herself or stab her belly. Aly further alleged that he, not Aden, sought refuge in the bathroom. The Court found neither Aly's nor Aden's version of the events of February 27, 2011 to be entirely credible.
Aden testified that in July 2011 she and Aly were involved in another physical altercation, which arose out of a woman claiming to have married Aly in March 2011 contacting Aden. Aden packed her belongings, intending to leave, and Aly allegedly hit her in the head several times. Aden also alleged that Aly deleted instant messages in which he admitted that he hit her in the head in July 2011. Aly and Aden's daughter, P.H.A.S.A., was born on August 27, 2011, in Canada. Because Aden did not have health insurance in Canada, she was ultimately billed $13,000 for her delivery at the Canadian hospital. P.H.A.S.A. was a Canadian and an American citizen. And also had a United States passport and social security card. Aden returned to her nursing job at Millard in October 2011 and began working weekends. On weekends Aly would care for P.H.A.S.A. Aly and P.H .A.S.A. would accompany Aden to the Canadian border near Buffalo and stay at a bed and breakfast while Aden worked. Aden alleged that she "fear[ed] for [P.H.A.S.A.]'s safety" and "was terrified" when she went back to work and left P.H.A.S.A. in Aly's custody. The Court found this testimony to be not credible. Aden consistently left P.H.A.S.A. in the sole care of Aly. These actions were inconsistent with Aden's alleged terror. This was particularly true in light of Aden's history of a willingness and ability to leave Aly. Aden made no allegations that P.H.A.S.A. was harmed physically, psychologically, or emotionally while in the sole custody of Aly. Prior to April 26, 2012, P.H.A.S.A. attended all of her medical appointments in Canada, including specialist appointments for a possible genetic disease. In February 2012, Aden entered into another rental agreement with the tenant for her Minnesota townhome. The agreement granted the tenant a lease through April 30, 2013.
On April 25, 2012, Aly and Aden had an argument during which Aden told Aly she wanted to separate. Aden alleged that while she was holding P.H.A.S.A. Aly slapped Aden in the face. Aden alleged that this was the seventh time Aly had physically assaulted her. Aden testified that Aly then grabbed P.H.A.S.A. from Aden's arms and threw P.H.A.S.A. into the corner of the room .P.H.A.S.A. landed on the floor and began crying hysterically according to Aden's account of the evening. Aly denied all of the allegations of the April 25, 2011 event, and specifically denied that he threw P.H.A.S.A. across the room. The next day, April 26, 2011, Aden took P.H.A.S.A. to a doctor's appointment in Hamilton City, Ontario, that had previously been scheduled. Aden brought the bags she had packed the previous night. The Court again found neither party's testimony regarding the events of April 25 to be entirely credible. It found Aden's testimony credible to the extent that it believed a verbal argument erupted between the parties and that Aly did become physically violent toward Aden. The Court, however, found Aden's testimony that Aly grabbed P.H.A.S.A. from Aden's arms and threw her across the room to be not credible because Aden, a trained nurse, did not seek medical attention for her eight-month-old child after the child was allegedly thrown across the room. Additionally, the Court believed that if the allegations were true Aden would have mentioned the incident at P.H.A.S.A's doctor's appointment the next day, since Aden's conduct on February 27, 2011, showed that she was not afraid to report incidents of domestic abuse. Finally, the Court found the testimony not credible to the extent that an eight-month-old child grabbed forcibly from someone's arms and thrown across a room, landing on the floor, would likely have sustained some injuries visible to a doctor at an appointment that occurred the day after the incident.
After P.H.A.S.A.'s doctor's appointment, Aden drove with the child to Buffalo, New York. Aden withdrew her final paycheck from Millard and began driving to Minnesota. Aden and P.H.A.S.A. arrived in Minnesota on April 27, 2012. Aden sent Aly an instant message informing him that she and P.H.A.S.A. had arrived safely in Minnesota. Aden's townhome tenant made other living arrangements, and Aden and P.H.A.S.A. eventually moved into this home.
Aden alleged that Aly approved of the practice of female genital mutilation Aden also alleged that Aly asked Aden to take P.H.A.S.A. to Aden's mother, who lived in Kenya, to have the child undergo FGM. Aden testified that Aly then stated that if Aden's mother would not do the procedure, Aly would take P.H.A.S.A. to his mother in Egypt to have the procedure done. Aly denied that he approved of FGM or that he would subject P .H.A.S.A. to FGM and instead alleged that Aden's mother and Aden herself had been advocates of subjecting P.H.A.S.A. to the procedure.(Aden presented expert testimony from Elizabeth Boyle about the practice of FGM. Aly presented expert testimony from Mr. Abed Awad, an expert on Islamic law, about the practice of FGM. FGM is associated with physical and psychological harm. FGM can cause, among other things, hemorrhaging, infection, and complications with childbirth, as well as anxiety disorders, depression, and post-traumatic stress disorder. FGM is not a practice mandated by Islam. And the mainstream Islamic organizations' position is that the practice is unIslamic. FGM is not an accepted or prevalent practice in North America and is illegal in both Canada and the United States. Dr. Jeffrey Edelson holds a PhD in social work, and provided expert testimony regarding the likelihood of future domestic violence based on a perpetrator's history. He opined that "there is a grave risk of physical harm and psychological harm to the infant [P.H.A.S.A.] involved in this case ... [s]hould she be returned" to Canada.
The parties did not dispute that in April 2012 Aly was exercising a right of custody over P.H.A.S.A. Ontario law provides that "the father and the mother of a child are equally entitled to custody of the child." Children's Law Reform Act, R. S.O.1990, c. C.12, s. 20(1). The court pointed out that a child's habitual residence is "the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a ‘degree of settled purpose’ from the child's perspective." Feder v. Evans–Feder, 63 F.3d 217, 224 (3d Cir.1995). "[S]ettled purpose need not be to stay in a ... location forever, but the family must have a' sufficient degree of continuity to be properly described as settled. " Silverman, 338 F.3d at 898 (quoting Feder, 63 F.3d at 223).7 In determining whether a particular place satisfies the standard for habitual residence, "[t]he child's perspective should be paramount," and "[p]arental intent is not dispositive." Stern, 639 F.3d at 452. Finally, habitual residence is determined by examining "past experience, not future intentions." Nunez–Escudero v. Tice–Menley, 58 F.3d 374, 379 (8th Cir.1995). This case involved a different question than the typical Convention case. Rather than determining whether there was a change in habitual residence, the Court had to determine whether eight-month-old P.H.A.S.A. ever established a habitual residence in Canada before being removed to the United States. In cases where the parents lack a settled intent to reside together at the time of the child's birth, the infant may not acquire a habitual residence in the country in which she is born. However, "where a matrimonial home exists, i.e., where both parents share a settled intent to reside, determining the habitual residence of an infant presents no particular problem, it simply calls for application of the analysis under the Convention with which courts have become familiar." Under these circumstances, even very young infants can acquire a habitual residence. The Court found that P.H.A.S.A. was a habitual resident of Canada prior to her removal. Aly and Aden were married in Canada before P.H.A. S.A.'s birth. At the time of their daughter's birth Aly and Aden had lived together in a Canadian apartment for over fifteen months. Both Aly and Aden were obligated on the lease, which extended through May 31, 2012. P.H .A.S.A. was born in Canada, acquired Canadian citizenship, and lived in Canada for eight months before being removed to the United States. Prior to her removal, P.H.A.S.A. had never been to the United States. All of these facts indicated that Aly and Aden shared a settled intent to reside with P.H.A.S.A. in their matrimonial home in Canada.That Aden retained numerous ties with the United States did not alter the Court's conclusion that P.H.A.S.A. was a habitual resident of Canada. Although P .H.A.S.A. was only eight months old when she was removed from Canada, unlike cases involving very young infants, there was evidence suggesting some degree of acclimatization. In eight months, P.H.A.S .A. had never been outside of Canada. P.H.A.S.A. had begun to form important contacts in Canada. P.H.A.S.A. was a Canadian citizen and was the recipient of Canadian child benefits. Moreover, P.H.A.S.A. attended all of her doctor's appointments in Canada, including several visits to specialists related to a possible genetic disorder.
Aden argued that returning P.H.A.S.A. to Canada would put the child at a grave risk of physical and psychological harm because of Aly's history of abuse and desire to subject P.H.A.S.A. to FGM. "[S]erious abuse or neglect" can qualify as a grave risk of harm under Article 13(b)." Silverman v. Silverman, 338 F.3d 886, 900 (8th Cir.2003) (en banc) The grave risk inquiry is narrow in scope, and "there must be evidence of a grave risk of harm to [the] child, not solely to a parent or some other third party." Acosta v. Acosta, Civ. No. 12–342, 2012 WL 2178982, at *7 (D. Minn. June 14, 2012). "[B]ecause the Hague Convention provides only a provisional, short-term remedy in order to permit long-term custody proceedings to take place in the home jurisdiction, the grave-risk inquiry should be concerned only with the degree of harm that could occur in the immediate future." Gaudin v. Remis, 415 F.3d 1028, 1037 (9th Cir.2005).The petitioner cannot rely on generalized evidence but must produce "specific evidence of potential harm." Rydder, 49 F.3d at 373.
With respect to physical and psychological abuse, where the child herself has been subjected directly to serious physical and psychological abuse, the grave risk defense is typically met. See Blondin v. Dubois, 238 F.3d 153, 161–62 (2d Cir.2001) (explaining that where "the child faces a real risk of being hurt, physically or psychologically" the grave risk of harm exception is met).Typically, however, "general evidence concerning abuse of the mother is not sufficient to establish the Article 13(b) exception that return will expose the child to a grave risk of harm." . A petitioner must demonstrate a connection between the harm to her in returning to the home country and a risk to the child. See Abbott, 130 S.Ct. at 1997. The Court concluded that Aden has failed to demonstrate that P.H.A.S.A. would face a grave risk of harm if she was returned to Canada. The Court found Aden's allegations that P.H.A.S.A. would face a grave risk of physical or psychological harm at the hands of Aly were either not credible or fail to meet the standard of clear and convincing evidence required by the grave risk exception.
The Court fouond that Aly had not directly abused P.H.A.S.A. as it found Aden's testimony alleging that Aly threw P.H.A.S.A. across the room and kneed Aden in the stomach while she was pregnant to be insufficiently credible to satisfy the heightened standard for establishing the grave risk exception. It found that Aly physically abused Aden on at least four occasions—in the fall of 2010, on February 27, 2011, in July 2011, and on April 25, 2012. However, the Court found Aden's testimony regarding the severity of the February and April violent episodes to be exaggerated. The incidents in the fall of 2010 and July 2011 involved some pushing and slapping. These isolated instances of abuse aimed at the mother did not rise to the level of severity required to meet the grave risk exception, which focuses on a grave risk of harm to the child that would occur prior to the resolution of a custody dispute and must be established by clear and convincing evidence. Additionally, Aly's abuse was not characterized by prolonged violent outbursts. Aly's outbursts of rage were short-lived, and after becoming physically violent he would immediately become calm and resume normal life activities. Finally, and most importantly, the Court found that these incidents of violence had not directly impacted P.H.A.S.A. This violence was not perpetrated against P.H.A.S.A., and only one incident allegedly occurred in P.H.A.S.A.'s presence. Additionally, the Court found the allegations that Aly would subject P.H.A.S.A. to FGM to be too speculative to demonstrate a grave risk of physical and psychological harm by clear and convincing evidence. Although subjecting P.H.A.S.A. to FGM would clearly constitute a grave harm, the grave risk inquiry focuses on "immediate" risks. At most, the record contained allegations that Aly believed in the practice and has expressed a desire to subject his daughter to the procedure, potentially by taking her to Egypt. None of the female members of Aly's family had undergone the procedure, suggesting that immediate family pressure was not an issue. The record did not reflect that Aly would be able to obtain this procedure in the United State or Canada, which the Court found mitigated any immediate risk to P.H.A.S.A. Aly was not currently in possession of P .H.A.S.A.'s passport. Should Aly's alleged desire to subject P. H.A. S.A. to FGM manifest itself into actual plans to carry out the procedure, the Court believed that the Canadian court was equipped to prevent this occurrence. Further, the Court found that the generalized evidence presented by Aden about Aly's controlling behavior and disrespect toward women was insufficient to establish that P.H.A.S.A. would be subjected to a grave risk of psychological harm if she was returned to Canada for purposes of resolving Aly and Aden's custody dispute. Although Aly's apparent devaluation of women was troubling, the Court did not find that these views would subject P.H.A.S.A. to grave psychological harm in the period of time that custody proceedings are pending in Canada. Moreover, courts in the abducted-from country, Canada, were as ready and able as we are to protect children.
Aly requested that the Court award all legal costs, fees, and travel expenses incurred in securing the return of P.H.A.S.A pursuant to the Article 26 of the Convention, and pursuant to ICARA, which provides that any court ordering the return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay necessary expenses and costs unless the respondent establishes that such order would be clearly inappropriate." 42 U.S.C. § 11607(b)(3).
Although Aden was employed on a part-time basis, she demonstrated that due to her monthly income and expenditures, paying Aly's attorneys' fees and costs would present a financial hardship. Additionally, Aden's financial situation was affected by the $13,000 hospital bill for P.H.A. S.A.'s delivery that was still outstanding, an expense that Aden incurred on behalf of both herself and Aly. Moreover, the Court found that at least some of Aden's current financial hardship was due to the control that Aly exerted over her funds while Aden was living in Canada, including Aly naming himself as the recipient of P.H.A. S.A.'s Canadian Child Benefits. That Aly contributed to Aden's straitened financial circumstances made an award of fees to Aly inappropriate. Finally, the Court found that Aly "bears at least some responsibility for the acrimony between the parties." The Court determined that Aly did not provide truthful testimony, and was physically and verbally abusive toward respondent. These factors were appropriately considered in determining whether a fee award would be appropriate. In light of Aden's financial circumstances, an award of fees could compromise Aden's ability to care for P.H.A.S.A. The Court therefore found that an award of attorneys' fees and costs was clearly inappropriate.
In Aly v. Aden, 2013 WL 593420 (D. Mn) petitioner Mohamed Aly Saad Aly filed a petition against respondent Amal Aden alleging that Aden wrongfully removed their child from Canada to the United States. Petitioner Aly was born and raised in Cairo, Egypt. Aly had been a permanent resident of Ontario, Canada since 2007, where he was pursuing a PhD in engineering at the University of Waterloo. Aly applied for Canadian citizenship, and his application was being processed. Aly supported himself financially with a stipend he received from serving as a research/teaching assistant at the University of Waterloo, a temporary position that would end when Aly completed his PhD. Respondent Aden was a United States citizen who was born in Somalia and immigrated to Minnesota in 1999. Aden received a Bachelor's Degree in nursing in 2007 and worked part-time at the Hennepin County Medical Center.
Aly and Aden were religiously married in an Islamic ceremony in April 2010. On June 7, 2011, the couple was civilly married in Canada. In May 2010, Aden moved from Minnesota to Ontario and began living with Aly in his apartment. Aden purchased a townhome in Minnesota in 2007, which she continued to rent to a tenant after moving to Canada. Her immigration status in Canada was one of a visiting American. Upon moving to Canada, Aden retained her Minnesota driver's license, and when it expired obtained a New York driver's license. In November 2010, Aly added Aden to the lease agreement for his apartment. In November 2010, Aden became pregnant with P.H.A.S.A. In December 2010, Aden began working as a nurse at Millard Fillmore Gates Hospital in Buffalo, New York. In January 2011, Aden alleged that she told Aly she wanted to separate. On February 27, 2011, Aly and Aden were involved in a violent incident. An argument began when Aly became upset that Aden did not make him lunch, and instead suggested that he prepare his own lunch. Aden alleged that the argument escalated verbally, and she began to pack her bags, planning to end the relationship with Aly and move out of the apartment. At this point, Aden alleged that Aly threw her onto the bed, punched her in the head several times, and lay on top of her. When Aden got off the bed, she alleged that Aly grabbed her by the shoulders to prevent her leaving the room and kneed her forcibly in the stomach.. Aly testified that as the verbal argument over the preparation of lunch escalated, Aden threatened him with a kitchen knife and also threatened to kill herself or stab her belly. Aly further alleged that he, not Aden, sought refuge in the bathroom. The Court found neither Aly's nor Aden's version of the events of February 27, 2011 to be entirely credible.
Aden testified that in July 2011 she and Aly were involved in another physical altercation, which arose out of a woman claiming to have married Aly in March 2011 contacting Aden. Aden packed her belongings, intending to leave, and Aly allegedly hit her in the head several times. Aden also alleged that Aly deleted instant messages in which he admitted that he hit her in the head in July 2011. Aly and Aden's daughter, P.H.A.S.A., was born on August 27, 2011, in Canada. Because Aden did not have health insurance in Canada, she was ultimately billed $13,000 for her delivery at the Canadian hospital. P.H.A.S.A. was a Canadian and an American citizen. And also had a United States passport and social security card. Aden returned to her nursing job at Millard in October 2011 and began working weekends. On weekends Aly would care for P.H.A.S.A. Aly and P.H .A.S.A. would accompany Aden to the Canadian border near Buffalo and stay at a bed and breakfast while Aden worked. Aden alleged that she "fear[ed] for [P.H.A.S.A.]'s safety" and "was terrified" when she went back to work and left P.H.A.S.A. in Aly's custody. The Court found this testimony to be not credible. Aden consistently left P.H.A.S.A. in the sole care of Aly. These actions were inconsistent with Aden's alleged terror. This was particularly true in light of Aden's history of a willingness and ability to leave Aly. Aden made no allegations that P.H.A.S.A. was harmed physically, psychologically, or emotionally while in the sole custody of Aly. Prior to April 26, 2012, P.H.A.S.A. attended all of her medical appointments in Canada, including specialist appointments for a possible genetic disease. In February 2012, Aden entered into another rental agreement with the tenant for her Minnesota townhome. The agreement granted the tenant a lease through April 30, 2013.
On April 25, 2012, Aly and Aden had an argument during which Aden told Aly she wanted to separate. Aden alleged that while she was holding P.H.A.S.A. Aly slapped Aden in the face. Aden alleged that this was the seventh time Aly had physically assaulted her. Aden testified that Aly then grabbed P.H.A.S.A. from Aden's arms and threw P.H.A.S.A. into the corner of the room .P.H.A.S.A. landed on the floor and began crying hysterically according to Aden's account of the evening. Aly denied all of the allegations of the April 25, 2011 event, and specifically denied that he threw P.H.A.S.A. across the room. The next day, April 26, 2011, Aden took P.H.A.S.A. to a doctor's appointment in Hamilton City, Ontario, that had previously been scheduled. Aden brought the bags she had packed the previous night. The Court again found neither party's testimony regarding the events of April 25 to be entirely credible. It found Aden's testimony credible to the extent that it believed a verbal argument erupted between the parties and that Aly did become physically violent toward Aden. The Court, however, found Aden's testimony that Aly grabbed P.H.A.S.A. from Aden's arms and threw her across the room to be not credible because Aden, a trained nurse, did not seek medical attention for her eight-month-old child after the child was allegedly thrown across the room. Additionally, the Court believed that if the allegations were true Aden would have mentioned the incident at P.H.A.S.A's doctor's appointment the next day, since Aden's conduct on February 27, 2011, showed that she was not afraid to report incidents of domestic abuse. Finally, the Court found the testimony not credible to the extent that an eight-month-old child grabbed forcibly from someone's arms and thrown across a room, landing on the floor, would likely have sustained some injuries visible to a doctor at an appointment that occurred the day after the incident.
After P.H.A.S.A.'s doctor's appointment, Aden drove with the child to Buffalo, New York. Aden withdrew her final paycheck from Millard and began driving to Minnesota. Aden and P.H.A.S.A. arrived in Minnesota on April 27, 2012. Aden sent Aly an instant message informing him that she and P.H.A.S.A. had arrived safely in Minnesota. Aden's townhome tenant made other living arrangements, and Aden and P.H.A.S.A. eventually moved into this home.
Aden alleged that Aly approved of the practice of female genital mutilation Aden also alleged that Aly asked Aden to take P.H.A.S.A. to Aden's mother, who lived in Kenya, to have the child undergo FGM. Aden testified that Aly then stated that if Aden's mother would not do the procedure, Aly would take P.H.A.S.A. to his mother in Egypt to have the procedure done. Aly denied that he approved of FGM or that he would subject P .H.A.S.A. to FGM and instead alleged that Aden's mother and Aden herself had been advocates of subjecting P.H.A.S.A. to the procedure.(Aden presented expert testimony from Elizabeth Boyle about the practice of FGM. Aly presented expert testimony from Mr. Abed Awad, an expert on Islamic law, about the practice of FGM. FGM is associated with physical and psychological harm. FGM can cause, among other things, hemorrhaging, infection, and complications with childbirth, as well as anxiety disorders, depression, and post-traumatic stress disorder. FGM is not a practice mandated by Islam. And the mainstream Islamic organizations' position is that the practice is unIslamic. FGM is not an accepted or prevalent practice in North America and is illegal in both Canada and the United States. Dr. Jeffrey Edelson holds a PhD in social work, and provided expert testimony regarding the likelihood of future domestic violence based on a perpetrator's history. He opined that "there is a grave risk of physical harm and psychological harm to the infant [P.H.A.S.A.] involved in this case ... [s]hould she be returned" to Canada.
The parties did not dispute that in April 2012 Aly was exercising a right of custody over P.H.A.S.A. Ontario law provides that "the father and the mother of a child are equally entitled to custody of the child." Children's Law Reform Act, R. S.O.1990, c. C.12, s. 20(1). The court pointed out that a child's habitual residence is "the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a ‘degree of settled purpose’ from the child's perspective." Feder v. Evans–Feder, 63 F.3d 217, 224 (3d Cir.1995). "[S]ettled purpose need not be to stay in a ... location forever, but the family must have a' sufficient degree of continuity to be properly described as settled. " Silverman, 338 F.3d at 898 (quoting Feder, 63 F.3d at 223).7 In determining whether a particular place satisfies the standard for habitual residence, "[t]he child's perspective should be paramount," and "[p]arental intent is not dispositive." Stern, 639 F.3d at 452. Finally, habitual residence is determined by examining "past experience, not future intentions." Nunez–Escudero v. Tice–Menley, 58 F.3d 374, 379 (8th Cir.1995). This case involved a different question than the typical Convention case. Rather than determining whether there was a change in habitual residence, the Court had to determine whether eight-month-old P.H.A.S.A. ever established a habitual residence in Canada before being removed to the United States. In cases where the parents lack a settled intent to reside together at the time of the child's birth, the infant may not acquire a habitual residence in the country in which she is born. However, "where a matrimonial home exists, i.e., where both parents share a settled intent to reside, determining the habitual residence of an infant presents no particular problem, it simply calls for application of the analysis under the Convention with which courts have become familiar." Under these circumstances, even very young infants can acquire a habitual residence. The Court found that P.H.A.S.A. was a habitual resident of Canada prior to her removal. Aly and Aden were married in Canada before P.H.A. S.A.'s birth. At the time of their daughter's birth Aly and Aden had lived together in a Canadian apartment for over fifteen months. Both Aly and Aden were obligated on the lease, which extended through May 31, 2012. P.H .A.S.A. was born in Canada, acquired Canadian citizenship, and lived in Canada for eight months before being removed to the United States. Prior to her removal, P.H.A.S.A. had never been to the United States. All of these facts indicated that Aly and Aden shared a settled intent to reside with P.H.A.S.A. in their matrimonial home in Canada.That Aden retained numerous ties with the United States did not alter the Court's conclusion that P.H.A.S.A. was a habitual resident of Canada. Although P .H.A.S.A. was only eight months old when she was removed from Canada, unlike cases involving very young infants, there was evidence suggesting some degree of acclimatization. In eight months, P.H.A.S .A. had never been outside of Canada. P.H.A.S.A. had begun to form important contacts in Canada. P.H.A.S.A. was a Canadian citizen and was the recipient of Canadian child benefits. Moreover, P.H.A.S.A. attended all of her doctor's appointments in Canada, including several visits to specialists related to a possible genetic disorder.
Aden argued that returning P.H.A.S.A. to Canada would put the child at a grave risk of physical and psychological harm because of Aly's history of abuse and desire to subject P.H.A.S.A. to FGM. "[S]erious abuse or neglect" can qualify as a grave risk of harm under Article 13(b)." Silverman v. Silverman, 338 F.3d 886, 900 (8th Cir.2003) (en banc) The grave risk inquiry is narrow in scope, and "there must be evidence of a grave risk of harm to [the] child, not solely to a parent or some other third party." Acosta v. Acosta, Civ. No. 12–342, 2012 WL 2178982, at *7 (D. Minn. June 14, 2012). "[B]ecause the Hague Convention provides only a provisional, short-term remedy in order to permit long-term custody proceedings to take place in the home jurisdiction, the grave-risk inquiry should be concerned only with the degree of harm that could occur in the immediate future." Gaudin v. Remis, 415 F.3d 1028, 1037 (9th Cir.2005).The petitioner cannot rely on generalized evidence but must produce "specific evidence of potential harm." Rydder, 49 F.3d at 373.
With respect to physical and psychological abuse, where the child herself has been subjected directly to serious physical and psychological abuse, the grave risk defense is typically met. See Blondin v. Dubois, 238 F.3d 153, 161–62 (2d Cir.2001) (explaining that where "the child faces a real risk of being hurt, physically or psychologically" the grave risk of harm exception is met).Typically, however, "general evidence concerning abuse of the mother is not sufficient to establish the Article 13(b) exception that return will expose the child to a grave risk of harm." . A petitioner must demonstrate a connection between the harm to her in returning to the home country and a risk to the child. See Abbott, 130 S.Ct. at 1997. The Court concluded that Aden has failed to demonstrate that P.H.A.S.A. would face a grave risk of harm if she was returned to Canada. The Court found Aden's allegations that P.H.A.S.A. would face a grave risk of physical or psychological harm at the hands of Aly were either not credible or fail to meet the standard of clear and convincing evidence required by the grave risk exception.
The Court fouond that Aly had not directly abused P.H.A.S.A. as it found Aden's testimony alleging that Aly threw P.H.A.S.A. across the room and kneed Aden in the stomach while she was pregnant to be insufficiently credible to satisfy the heightened standard for establishing the grave risk exception. It found that Aly physically abused Aden on at least four occasions—in the fall of 2010, on February 27, 2011, in July 2011, and on April 25, 2012. However, the Court found Aden's testimony regarding the severity of the February and April violent episodes to be exaggerated. The incidents in the fall of 2010 and July 2011 involved some pushing and slapping. These isolated instances of abuse aimed at the mother did not rise to the level of severity required to meet the grave risk exception, which focuses on a grave risk of harm to the child that would occur prior to the resolution of a custody dispute and must be established by clear and convincing evidence. Additionally, Aly's abuse was not characterized by prolonged violent outbursts. Aly's outbursts of rage were short-lived, and after becoming physically violent he would immediately become calm and resume normal life activities. Finally, and most importantly, the Court found that these incidents of violence had not directly impacted P.H.A.S.A. This violence was not perpetrated against P.H.A.S.A., and only one incident allegedly occurred in P.H.A.S.A.'s presence. Additionally, the Court found the allegations that Aly would subject P.H.A.S.A. to FGM to be too speculative to demonstrate a grave risk of physical and psychological harm by clear and convincing evidence. Although subjecting P.H.A.S.A. to FGM would clearly constitute a grave harm, the grave risk inquiry focuses on "immediate" risks. At most, the record contained allegations that Aly believed in the practice and has expressed a desire to subject his daughter to the procedure, potentially by taking her to Egypt. None of the female members of Aly's family had undergone the procedure, suggesting that immediate family pressure was not an issue. The record did not reflect that Aly would be able to obtain this procedure in the United State or Canada, which the Court found mitigated any immediate risk to P.H.A.S.A. Aly was not currently in possession of P .H.A.S.A.'s passport. Should Aly's alleged desire to subject P. H.A. S.A. to FGM manifest itself into actual plans to carry out the procedure, the Court believed that the Canadian court was equipped to prevent this occurrence. Further, the Court found that the generalized evidence presented by Aden about Aly's controlling behavior and disrespect toward women was insufficient to establish that P.H.A.S.A. would be subjected to a grave risk of psychological harm if she was returned to Canada for purposes of resolving Aly and Aden's custody dispute. Although Aly's apparent devaluation of women was troubling, the Court did not find that these views would subject P.H.A.S.A. to grave psychological harm in the period of time that custody proceedings are pending in Canada. Moreover, courts in the abducted-from country, Canada, were as ready and able as we are to protect children.
Aly requested that the Court award all legal costs, fees, and travel expenses incurred in securing the return of P.H.A.S.A pursuant to the Article 26 of the Convention, and pursuant to ICARA, which provides that any court ordering the return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay necessary expenses and costs unless the respondent establishes that such order would be clearly inappropriate." 42 U.S.C. § 11607(b)(3).
Although Aden was employed on a part-time basis, she demonstrated that due to her monthly income and expenditures, paying Aly's attorneys' fees and costs would present a financial hardship. Additionally, Aden's financial situation was affected by the $13,000 hospital bill for P.H.A. S.A.'s delivery that was still outstanding, an expense that Aden incurred on behalf of both herself and Aly. Moreover, the Court found that at least some of Aden's current financial hardship was due to the control that Aly exerted over her funds while Aden was living in Canada, including Aly naming himself as the recipient of P.H.A. S.A.'s Canadian Child Benefits. That Aly contributed to Aden's straitened financial circumstances made an award of fees to Aly inappropriate. Finally, the Court found that Aly "bears at least some responsibility for the acrimony between the parties." The Court determined that Aly did not provide truthful testimony, and was physically and verbally abusive toward respondent. These factors were appropriately considered in determining whether a fee award would be appropriate. In light of Aden's financial circumstances, an award of fees could compromise Aden's ability to care for P.H.A.S.A. The Court therefore found that an award of attorneys' fees and costs was clearly inappropriate.
Monday, August 12, 2013
Matas-Vidal v. Libbey-Aguilera, 2013 WL 3995300 (D.Utah) [Mexico] [Well-Settled] [Age and Maturity] [Petition Denied]
In Matas-Vidal v. Libbey-Aguilera, 2013 WL 3995300 (D.Utah) on June 7, 2013 Juan Pablo Matas-Vidal filed a Petition for Return against Respondent Susan Consuelo Libbey-Aguilera, also known as Brooke Robinson, who was the mother of the children,
At the same time, he filed a Motion for a Temporary Restraining Order, Order to Show Cause, Writ of Assistance, and Request for Immediate Return of Minor Children. On June 7, 2013, the court granted the Motion for a TRO and entered an Order which, among other things, prohibited Ms. Libbey-Aguilera from interfering with the children being taken into protective custody.
Petitioner and Respondent were married in Mexico City on June 26, 1999. Petitioner was a Mexican national, and Respondent had dual citizenship in Mexico and the United States, as her father was a United States citizen and her mother was a Mexican citizen. SM-L was born in Mexico City in May 2001, and RM-L was born in Mexico City in November 2003. At some point when the children were very young, the couple discussed the possibility of moving to the United States, but that
possibility never came to fruition because Petitioner could not find adequate-paying work in the United States. The children were granted United States citizenship in 2005. In October 2006, Ms. Libbey-Aguilera purchased a condominium in San Antonio, Texas and sometimes visited there. For the duration of their marriage, however, Petitioner, Respondent, and their two children always lived in Mexico City. They lived there until the time Ms. Libbey-Aguilera removed the children from Mexico to Utah in December 2010. Petitioner filed for divorce in early October 2007 in Mexico City. On October 16, 2007, the Mexican court issued an Order barring the removal of the children from Mexico. On December 14, 2007, after a mediation on December 11, 2007, the court ordered that Ms. Libbey-Aguilera would be granted the provisional physical custody of the children at their marital domicile. Petitioner would have visits on Saturdays and Sundays every other week from 10:00 a.m.-1:00 p.m. at the Supervised Visitation and Socialization Center. It was also ordered that Mr. Matas-Vidal may socialize with his children on holidays, the children's birthdays, and fifty percent of school vacations, with prior notice and mutual agreement of both parties. The December 14, 2007 Order again prohibited Respondent from taking the children out of Mexico. On June 30, 2010, the Mexican court issued an order granting "custodia definitiva " to Respondent argued that the Order granted her "sole custody" and dissolved any restrictions on her travel outside of Mexico. Petitioner, however, provided evidence that the English translation of "custodia definitiva" is not "sole custody," as that term is understood in the United States, and he also provided evidence that, because he still had custody rights, Respondent was still prohibited from leaving Mexico. The June 30, 2010 Order provided that Mr. Matas-Vidal "has the obligation and essential human right to visit and go out with his children... on Saturdays and Sundays ... every other weekend. Visitations shall begin on Saturdays at 10 AM and end on Sundays at 6 PM." These visits were not ordered to take place at the Supervised Visitation and Socialization Center. Mr. Matas-Vidal was to "pick the children up at they place where they live with their mother and return them to the same place."
On November 25, 2010, a bifurcated decree of divorce was entered. Thus, the divorce had become final, but the issue of child custody and support were still being litigated. During the custody litigation, Petitioner exercised all visitation awarded to him by the Mexican court. He regularly exercised his right of access until the children were removed from Mexico. On January 8, 2011 and January 9, 2011, he went to the Supervised Family Interaction Center but Ms. Libbey-Aguilera and the boys did not show up. He then confirmed that they no longer lived at their marital home and was informed by the boys' school that, as of December 16, 2010, the boys had stopped attending school. In December 2010, Respondent surreptitiously removed the children from Mexico to the United States. She came directly to Orem, Utah and enrolled the children in school on December 21, 2010.
On January 7, 2011, after Respondent had removed the children from Mexico, the Mexican appeals court revoked the June 30, 2010 Order. On February 9, 2011, in the District Court for the Seventh Judicial District in the State of Idaho, Respondent had her name legally changed to Brooke Robinson, claiming that she needed to change her name because she was "divorcing her husband and am seeking to avoid being located by my husband for the reason he has threatened to kill me and my family." Respondent and her two children had been living in Orem, Utah from December 2010 through the present time. Petitioner had been looking for his children since he realized they were gone in January 2011. The Petition was filed on June 7, 2013.
The court found that that the Convention applied to this dispute. SM-L and RM-L were both under 16 years old; they were habitual residents of Mexico; and both Mexico and the United States are contracting states. The children were "wrongfully removed" from Mexico, in violation of a right of custody. The children were born in Mexico City and never lived anywhere other than Mexico until Respondent removed them to the United States in December 2010. The court also concluded that the removal was in breach of Petitioner's custody rights under Mexican law and that Petitioner was exercising those rights at the time of removal. Although Respondent claims that she was awarded "sole custody" and that any restraints on her ability to take the children across the border were dissolved, the court did not agree. The July 9, 2010 Order stated that Respondent was given "custodia definitiva," but that is not the same thing as "sole custody," as discussed below. Moreover, both parties appealed that order in August 2010. Under Mexican law, the challenged order had no effect, so the ne exeat order from October 16, 2007 remained in effect. Because the June 30, 2010 order was being appealed, and because custody was still subject to litigation, the interim ne exeat order from October 16, 2007 continued to apply. Regardless of which Order applied, however, Petitioner had intrinsic ne exeat rights barring the children's removal pursuant to Mexico's Civil Code.
The Court rejected Respondents contention that there was a grave risk that return of the children would expose them to physical and/or psychological harm. While Respondent alleged that she and the children were victims of domestic violence, the court was not persuaded that these allegations were entirely true. Moreover, the records submitted from the Supervised Visitation Center suggested that, at first, the children did not exhibit any fear or reluctance to see their father. Indeed, they appeared to demonstrate a warm, loving, and playful interaction. Over time, however, they seemed to develop more hesitation about seeing him, which he blamed on Ms. Libbey-Aguilera's efforts to alienate the children from him. The reason the children most often gave to the supervisors about their reluctance to visit with their father was that his breath was bad. It seemed unlikely that the children would provide such an answer if they were actually subjected to physical or psychological abuse, and it was puzzling that the children did not appear to have any reluctance to see their father during the
beginning weeks or months of their supervised visits. The court found that even if there were a grave risk she had not demonstrated that Mexican courts would be incapable of providing adequate protection. Thus, the court concluded that Article 13 "grave risk" defense did not apply in this case.
The Respondent raised the Article 12 well settled defense. The default presumption under the Convention is that a child shall be returned to the state from which he originally was wrongfully removed unless both of two conditions are met: (1) one year has elapsed between the date of wrongful removal and the date proceedings commence; and (2) the child is found to be "now settled in its new environment." Loranzo v. Alvarez, 697 F.3d 41, 51 (2nd Cir.2012). SM-L and RM-L had been in Utah since late December, 2010-for over two and one-half years. The court found that they were both very well settled. And given the boys' ages, 12 and 9 ½, respectively, these thirty-plus months had been meaningful to the boys. They had been consistently enrolled in school since January 2011. They missed very few days during those two school years, and their academic success had been remarkable. Both boys had many friends, caring neighbors, and fellow LDS church members with whom they had formed close bonds. Their maternal grandmother also frequently cared for them. The children were active in their church, in boy scouts (or cub scouts for RM-L), and they were on a competitive swim team. SM-L is also on a soccer team. Many friends and neighbors have provided glowing letters about Respondent and the boys, and attesting to the boys' happiness and stable environment. Their mother had also been consistently employed since March 2011 and appeared to be financially stable. They boys both spoke fluent English and appeared to have adjusted well to their
living situation. Given the outpouring of support for the boys and Respondent, both in terms of having friends and neighbors attend the two court hearings and in submitting letters to the court, there was no question that these two boys were surrounded by a loving and supportive community and that the boys were thriving in their current environment. They were indeed settled in their new environment.
The Court rejected Petitioner’s argument that he was entitled to equitable tolling of the one-year period for the filing of his Hague petition and that the Article 12 defense is therefore inapplicable. While the court agreed that Respondent concealed the boys, that such concealment delayed Petitioner's ability to file a petition, and that he filed his petition within one year after he finally learned of their location, the court declined to apply equitable tolling to the one-year mandatory return period. The Court agreed with the Second Circuit (Loranzo v. Alvarez, 697 F.3d 41, 51 (2nd Cir.2012), cert. granted in part, 133 S.Ct. 2851 (June 24, 2013) ) and other district courts that have found that the purpose of the one-year mandatory return period is not to provide a deadline for a petitioner to assert a claim but rather is to put a limit on the uprooting of a settled child. Thus, the court declined to apply the doctrine of equitable tolling to the Article 12 "well-settled" defense.
The Court observed that the Hague Convention provides that "[t]he judicial or administrative authority [considering a petition] may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Hague Convention, art. 13. In this case, SM-L was twelve-years old and would start seventh grade next month. RM-L would be ten-years old in three months and would soon start fourth grade. The court had the opportunity to observe the demeanor and maturity of both children during the court's in camera interview of each of them. They both demonstrated a high level of maturity in answering the court's questions-answering the questions in an articulate, thoughtful, and respectful manner. They were both good students with strong academic records. They both expressed a strong desire to remain in Utah and had particular objections to returning to Mexico. They confirmed that they enjoyed going to school here, were involved in church and several sports activities, and had many friends here. Both boys became visibly distraught when the court discussed the court's task of evaluating whether they should be returned to Mexico. The response of both boys appeared to be purely genuine-not concocted or rehearsed in any way.
Additionally, the boys were adamant about not wanting to have a supervised visit their father while he was in town for the court proceeding. The court found that the boys were of an appropriate age and maturity such that it was appropriate for the court to take into account their desire to not return to Mexico. The court recognizes that the boys had spent the past two years solely with their mother and maternal grandmother, and that this circumstance had undoubtedly had an impact on their desire to stay with their mother in Utah. It was also possible that their mother negatively colored the boys' view of their father. Here, while the children's objections to returning to Mexico could be due to the mother's possible undue influence over them, the court found that this possible undue influence was not the only reason the children desired not to return to Mexico, and thus, the court declined to ignore their wishes. The children appeared to be genuinely happy and thriving in their current situation. The court was convinced that the return of these children to Mexico City would severely traumatize these children. The Petition was denied.
Saturday, August 10, 2013
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.
Friday, August 2, 2013
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).
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