Hamprecht v Hamprecht, 2013 WL 1155675 (M.D.Fla.) [Germany] [ Attorney's Fees and Costs]

In Hamprecht v Hamprecht, 2013 WL 1155675 (M.D.Fla.) after the Court granted the Verified Petition, and ordered respondent to surrender custody of the minor child to petitioner's father for return to Germany, Respondent filed a Notice of Appeal and sought a stay pending appeal in conjunction with her Notice of Appeal. The Court granted a temporary stay to allow respondent to seek a stay from the Eleventh Circuit Court of Appeals. On June 19, 2012, the Eleventh Circuit Court of Appeals dismissed the appeal based on petitioner's unopposed motion to dismiss the appeal as moot.

Petitioner now sought recovery of attorney fees and costs from respondent pursuant to the ICARA. Petitioner sought attorney's fees of $497,612.50, taxable costs of $23,950.96, and non-taxable expenses in the amount of $55,450.46, under Title 42, United States Code, Section 11607(b) (3), The district court observed that under this section, the Court has "broad discretion" in determining the fees, expenses, and costs, unless respondent satisfies the burden to establish that an award would be "clearly inappropriate." A reasonable attorney fee is calculated by multiplying the number of hours reasonably expended by the reasonable hourly rate, Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), and a "reasonable hourly rate" is "the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation," Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1299 (11th Cir.1988). The party seeking an award of fees should submit adequate documentation of hours and rates in support, or the award may be reduced. Hensley, 461 U.S. at 433. The burden is on the fee applicant "to produce satisfactory evidence" that the rate is in line with those prevailing in the community. Blum v. Stenson, 465 U.S.886, 896 n. 11 (1984).

Petitioner sought $590. 00 an hour for Mark S. Scott, $505.00 an hour for Jeffrey D. Pollack, $450.00 an hour for both Michelle M. Gervais and Warren D. Zaffuto, and $255.00 an hour for the paralegal. Counsel argued that "[g]iven the specialized and complex nature of Hague Convention cases", the hourly rates are reasonable in light of the range of fees previously found to be reasonable in the Middle District of Florida. The applicable prevailing market in this case was the Fort Myers area. Counsel did not provide an affidavit by an attorney in the Fort Myers area regarding the general reasonableness of the fee request, or an affidavit as to the proposed hourly rates."If a fee applicant desires to recover the non-local rates of an attorney who is not from the place in which the case was filed, he must show a lack of attorneys practicing in that place who are willing and able to handle his claims." ACLU v. Barnes, 168 F.3d 423, 437 (11th Cir.1999). The Court found that petitioner had not met the burden of demonstrating that the proposed hourly rates were reasonable, or that the Miami rate should be applied, or that no local counsel were available to handle the case. Therefore, the Court determined the appropriate hourly rate. It found no inherent reason to penalize petitioner for utilizing more than one attorney, much as respondent elected to do in this case. See Johnson v. University College of Univ. of Ala. in Birmingham, 706 F.2d 1205, 1208 (11^th Cir.1983) ("An award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation."). The Court found that Mr. Scott's language skills warranted the slightly higher than normal rate, however, the Court found that Mr. Pollack's rate should be considerably lower as he was an associate who was not admitted to practice in Florida and had less relevant experience than lead trial counsel, who is a partner. Upon review of counsel's respective experience and with due consideration to local prevailing rates, the Court fixed the reduced hourly rates at $400.00, $250.00 $300.00 $225.00 and $125.00 for the paralegal.

In determining the reasonable amount of hours, the Court held that it may conduct an hour-by-hour analysis or it may reduce the requested hours across the board, Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir.2008), and the Court must eliminate excessive, unnecessary, and redundant hours, Norman, 836 F.2d at 1301-02. When multiple attorneys are involved, the Court must consider whether they are being compensated for their distinct contributions or whether there is duplication. Johnson v. University College of Univ. of Ala., 706 F.2d at 1208. In this case, counsel did not sufficiently demonstrate that they used "billing judgment", and therefore the Court was unable to determine whether the hours were reasonable. See ACLU v. Barnes, 168 F.3d at 428. The Court was inclined to deny the motion in its entirety for the lack of billing judgment exercised and the flood of unsupported documentation, but considered the billing records attached as Exhibit B and filed in three parts to reduce the request.

Some of the entries were superfluously redacted and were denied for the reason that their reasonableness or relation to the Hague petition proceedings could not be determined. The Court did not apply Miami counsel's hourly rate for travel to Fort Myers from Miami without any affidavit attesting that no Fort Myers local counsel was available or capable of representing petitioner in this matter. The Court did not include the hours for travel overseas without argument or an affidavit that the travel time was spent working on the Hague petition proceedings. The Court eliminated travel time to Fort Myers and "daily rates" for simply being present in Fort Myers awaiting a decision by the Court. The Court did not permit hours for the attendance of the paralegal at trial when co-counsel was present to assist lead counsel for a two day hearing that did not take place two days in a row and also billed for that time. The hours also included the paralegal's travel time, coordinating exhibits with the courtroom deputy, and a great deal of secretarial tasks including the compilation of exhibits and folders for counsel. After all reductions, the Court awarded petitioner a total of $184,047.00 in attorneys' fees at the District Court level.

The court held that Petitioner sought an excessive $55,450.46 in non-taxable expenses for travel expenses, legal research, postage and overnight mail, messenger services, and translation services. Although the expenses were incurred "on behalf of the petitioner", they were not all necessary, and counsel's travel expenses had no relationship to the "transportation costs related to the return of the child" by either party. 42 U.S.C. § 11607(b) (3). The expenses of counsel was denied in their entirety as clearly inappropriate.

Petitioner sought $23,950.96 for taxable costs and filed a separate proposed Bill of Costs in support. Under Fed.R.Civ.P. 54(d)(1), costs "should be allowed to the prevailing party" unless the court provides otherwise. Deposition costs "merely incurred for convenience, to aid in thorough preparation, or for purposes of investigation only," are not recoverable. EEOC v. W & O, Inc., 213 F.3d 600, 620 (11th Cir.2000). Likewise, costs for charts and exhibits are not taxable, and copying costs are otherwise evaluated based on their necessity, including for discovery. "Compensation of interpreters" under Section 1920(6) is limited to the cost of oral translation and does not include document translation. Kouichi Taniguchi v. Kan Pac. Saipan, Ltd., 132 S.Ct. 1997 (2012). The Court taxed costs against respondent for the $350.00 filing fees of the Clerk; $746.00 for summonses and subpoenas; $13,282. for transcripts; and $4,672.41 for printing without any specific objection to their necessary use in this case. The $988.03 for demonstrative aids was not permitted as unsupported and unnecessary for use in this case. The $2,385.50 for interpreter services was reduced to reflect only the oral interpretation costs for English to German in the amount of $1,592.75 in light of the recent Supreme Court case. Therefore, the Court taxed costs in the amount of $20,643.26.

The Petitioner sought $63,073.50 in appellate attorneys' fees for 132.3 hours, and an additional $2,690.72 in costs . The Court denied appellate fees in their entirety. The Court was frustrated by the failure of counsel to properly divide and supplement the first request for fees with separate billing statements that are limited to the appeal. Instead, counsel have re-submitted the same billing records previously submitted with no indication of how they reached a total of $63,073.50. The Court permitted attorneys' fees at the trial level with some trepidation and after expending an excessive amount of time deciphering the billing records. The Court would not hazard to estimate the appellate fees based on the submissions. The motion for appellate fees was denied.

Petitioner sought $2,690.72 for printing, copying, legal research, overnight mail, and messenger services, under both 28 U.S.C. § 1920 as taxable costs and under ICARA as necessary costs associated with the return of the minor child. Petitioner sought $398.55 for printing and duplication, which is a taxable cost. The other amounts were not taxable costs recoverable under Section 1920. Computerized research costs are not taxable costs. Respondent did not argue that the cost was not necessary for use in the case or that this amount was specifically excessive. Therefore, this amount was permitted.

Petitioner sought $35.90 for messenger expenses to deliver documents to the Eleventh Circuit Court of Appeals. The Court permitted this expense as a necessary expense related to the return of the child. The Court did not permit the $267.14 for overnight deliveries to the Ritz-Carlton in California where apparently counsel was located while the appeal was ongoing, or to other counsel and law firms without any indication from counsel how the expenses were necessary to the return of the child. The $1,989.13 for legal research was denied as clearly inappropriate and unrelated to the actual return of the child.

Bedder v Bedder, 2013 WL 504022 (S.D.Ohio) [Canada] [Habitual Residence] [Petition Granted]

In Bedder v Bedder, 2013 WL 504022 (S.D.Ohio) On January 2, 2013, Petitioner Jonathan William Bedder filed a petition for the return of his daughter, "R," to Canada. Petitioner alleged that his daughter was wrongfully abducted to the United States by his estranged wife, Respondent Sarah Rebecca Bedder.


Sarah and Jonathon met as undergraduate students in New York. Petitioner was a Canadian citizen, while Respondent and R were United States citizens. The couple married in June of 2008, beginning married life in Jonathon's apartment in upper Manhattan. Their daughter was born on October 5, 2009 during their sojourn in New York. In or about late 2010 or early 2011, the couple decided to move to Seattle, Washington, where Petitioner hoped to find more sustainable employment. After they were evicted from their apartment in Seattle, Petitioner flew home to Canada in late June, and Respondent's and R's travel was booked to fly to Canada on July 30, 2012. At the time they were evicted, both hoped to eventually return to Seattle and find a new apartment. The couple eventually canceled Respondent and R's return tickets to Seattle, notified R's Seattle preschool that she would not be returning, and canceled their U.S. health insurance. They engaged in extensive activities to complete their family's relocation to Canada. They went shopping and purchased clothing and additional toys, since they had originally planned to stay for only a month. Respondent requested that a few small items be sent to their new home in Winnipeg, and the remaining items originally placed in storage in Seattle were eventually sold or donated to charity. With his parents' financial support and encouragement, Petitioner enrolled in additional computer certification courses. The couple obtained a Canadian health insurance card for R, and almost immediately enrolled her in a local religious preschool three mornings per week. Respondent wrote several blogs, and her contemporaneous blog entries were telling. In August she wrote "I'm so grateful that there was nothing really tying us to Seattle so we had the option to just stay here instead of returning to Seattle." In September, she wrote about R's enrollment in her new Canadian preschool. "I'm so grateful that there's a religious preschool here that's comparable to MMSC in Seattle. By early September, 2012, the couple had met with an immigration lawyer, who explained the requirements for Sarah to obtain permanent legal residency in Canada. Despite their serious marital problems, the couple still hoped to work out their differences. Initially, Jonathon expressed a willingness to legally sponsor Sarah-a Canadian legal commitment to be financially responsible for her for a period of three
years. However, during a family counseling session on or about September 20, 2012, Petitioner conveyed to Respondent that he did not think their marriage would survive.

On that day or shortly thereafter, he advised Respondent that he would not sponsor her. Respondent reacted with anger, but expressed no intention to leave Canada prior to December 2012. She continued to live-with the consent of all involved- in her basement quarters, and R continued to sleep in her second-floor bedroom. The couple considered themselves separated as of September, when Jonathon moved to the main floor of his parents' home and began sleeping on the couch. Sarah testified that she continued to pursue her options for remaining in Canada by consulting with another immigration lawyer. Respondent looked into obtaining a work permit, another sponsor, or extending her visitor's visa, which was valid on its face until January 30, 2013 and could be extended for up to 2 years. Although Respondent testified that she believed that it would be "difficult" to extend her visa without showing that she had some money in a bank account, Respondent repeatedly testified that she made a "good faith effort" to remain in Canada and that she intended to remain in Canada if she could. She testified that she pursued employment opportunities in part through the local Jewish community, and through that community she was able to obtain one job interview in November. As a result of that interview, she was initially offered training to become a kosher inspector at a bakery, but that position fell through in early December. When that occurred, the Jewish community offered to help her find a different position.

In mid-November, Respondent and Petitioner had an argument about the impending break-up of their marriage, during which Respondent told Petitioner that if he would not sponsor her and she was forced to leave Canada, she would take R. Petitioner advised Respondent she would not be permitted to do that, and that his parents had placed R's passport in a safe deposit box to prevent her from such action. Respondent suggested, and equivocally testified, that Petitioner knew or should have known from the start that Respondent's move to Canada was conditioned on the success of her marriage and corresponding ability to remain legally in Canada with her daughter. However, Respondent frequently contradicted herself regarding these intentions, and the Court foundds credible Petitioner's testimony that Respondent never expressed (or held) any intention to leave Canada with R until, at the earliest, the November argument. When asked where she believed R's habitual residence might be, if not Winnipeg, Respondent was unable to answer other than "the United States." She testified that she never made any effort to return to Seattle after arriving in Canada, but also disavowed Cincinnati as R's "habitual residence." On Thursday, December 13, 2012, Petitioner enlisted the help of a friend in her tight-knit religious community to hide R's original birth certificate, in furtherance of a plan to leave and take R to the U.S. The next day, deliberately concealing her plans from her husband and R's grandparents, Respondent picked R up from preschool and took R to her Rabbi's house, where Petitioner and his mother eventually discovered them. On Sunday evening, December 16, they drove Respondent and R across the U.S. border to North Dakota, where she was met by her parents. Her parents drove her and R to Cincinnati, where they arrived on December 18, 2012.

Respondent made two arguments against the Court's finding that R's habitual residence was Canada: (1) that she and R were not "settled" in Canada because they had resided there for fewer than 6 months when she departed; and (2) that her initial agreement for R to live in Canada was contingent upon Respondent's own circumstances, which changed over time due to the impending breakup of her
marriage and additional barriers she faced in order to obtain permanent residency in Canada. The Court held that neither argument had legal merit Respondent's first argument was rejected because the issue presented was wholly separate from the issue of domicile, or the determination of which "home State" a child may be living in under the Parental Kidnapping Prevention Act or Uniform Child Custody Jurisdiction and Enforcement Act. Under ICARA, habitual residence may, at least theoretically, be established in a single day. Respondent's second argument was equally irrelevant to the Court's inquiry. The Sixth Circuit has instructed courts to look backward to determine the facts and circumstances, without considering the subjective future intentions of her parents . See Robert, 507 F.3d 981, 989-993;Friedrich v. Friedrich ("Friedrich I"), 983 F.2d 1396, 1401 (6th Cir.1993). The critical issue was whether R's living arrangements in Canada evinced a "degree of settled purpose from the child's perspective," and whether the circumstances were "sufficient for acclimatization." Robert, 507 F.3d at 989. Where, as in this case, the child is able to develop "a certain routine" and acquire "a sense of environmental normalcy," and is able "to form meaningful connections with the people and places [she] encounters each day," then the court must focus on the child's degree of acclimatization. Karkkainen v. Kovalchuk, 445 F.3d 280, 292). When R moved to Canada she was very young, a few months shy of her third birthday. She lived there in the same household with both parents and her paternal grandparents for four and a half months, a period of time that was appreciably long in a toddler's life. She was given no indication by either parent that her stay in Canada was for just days or weeks as if on a holiday. In fact, both parents unequivocally expressed a joint intention, not later than early August 2012, to remain in Canada indefinitely with her while they made attempts at a fresh start in their personal, financial, and professional lives. The fact that some of those attempts ultimately failed was of no consequence to the analysis. The court found that Canada had become R's habitual residence within a week of her arrival, not later than August, 2012. Unlike a newborn who may be less cognizant of her environment, R was able to form many attachments to people and places, and was actively encouraged by her parents to do so.

The petition was granted, with Petitioner to assume temporary care, custody and control of R and to accompany her on her return to Canada.

Yaman v. Yaman, 2013 WL 322204 (D.N.H.) [Turkey] [Well-Settled] [Equitable Tolling]

 In Yaman v. Yaman, 2013 WL 322204 (D.N.H.) Ismail Ozgur Yaman, the children's father, was granted custody of both children by a Turkish court. He filed a petition seeking an order requiring that the children be returned to Turkey pursuant to the Hague Conventio. Linda Margherita Yaman, the children's mother, responded by arguing, that the children should not be returned to Turkey because they were "now settled" in New Hampshire. Dr. Yaman conceded that he did not file his petition within the one-year filing period, but he argued that the filing period should be equitably tolled because Ms. Yaman made it impossible for him to file his petition earlier by concealing the children's whereabouts. The Court denied his motion to preclude the Respondent from raising the "well-settled" defense and held that concealment does not equitably toll the Hague Convention's one-year filing period.

Dr. and Ms. Yaman met in 1997 in Detroit, Michigan where he was enrolled in post-graduate studies at Wayne State University. The couple married in August 2000 in Turkey, and then returned to the United States. Ms. Yaman became a Turkish citizen on October 3, 2000. The couple's older daughter, K.Y., was born on March 5, 2002, in the United States and later became a Turkish citizen. In January 2003, the family moved to Turkey, where Dr. Yaman's parents lived, and where Dr. Yaman had been hired as a professor in the Civil Engineering Department at the Middle East Technical University. The Yamans' younger daughter, E.Y., was born in Turkey on August 11, 2003. Both children were dual citizens of Turkey and the United States. In May 2004, Ms. Yaman accused her husband of sexually abusing their daughters. Dr. Yaman denied the allegations. The parties separated in late December 2004. In February 2005, Dr. Yaman filed for divorce, citing the "irretrievable breakdown of the marriage." Ms. Yaman filed a counter suit in March 2005. Following divorce and custody proceedings, on March 13, 2006, a Turkish family court rejected the abuse allegations, concluding after a thorough investigation that they were false. The court granted Dr. Yaman sole custody of the children. In August 2007, Ms. Yaman fled Turkey in a boat bound for Greece with the children and without informing Dr. Yaman of her intentions to leave or where she was going. From Greece, Ms. Yaman traveled with the children to Andorra, where they lived for about two and a half years. She then moved with them to the United States in 2010, where they have remained to date. Dr. Yaman filed a Hague Convention petition in this court in June 2012. He contended that Ms. Yaman sought to conceal the children's whereabouts from him after taking them from Turkey. For purposes of the motion, the Court assumed that his allegations of concealment were true.



The Court observed that Article 12 establishes rules for when a tribunal must issue a return order that differ depending upon the amount of time that elapses between the date of abduction and the date the return petition is filed. If "a period of less than one year has elapsed from the date of wrongful removal or retention," Article 12 states that "the authority concerned shall order the return of the child forthwith." Hague Convention, art. 12. In contrast, if the judicial or administrative proceeding is commenced more than one year following abduction, a return order must issue "unless it is demonstrated that the child is now settled in its environment.

The district Court rejected Dr. Yaman argument that the one-year filing period set forth in Article 12 must be equitably tolled while an abducting parent is concealing the location of a wrongfully removed child. Ms. Yaman. It found that the treaty did not authorize a court to equitably toll the one-year filing period. Neither the Hague Convention nor ICARA explicitly authorizes a court to equitably toll the one-year period set out in Article 12.

 

Vujicevic v. Vujicevic, 2013 WL 2627132 (W.D.Wash.) [Croatia] [Age & Maturity] [Petition Denied]

In Vujicevic v. Vujicevic, 2013 WL 2627132 (W.D.Wash.) on May 30, 2013. Ivan Vujicevic filed a petition seeking the return of his child, E.V., to Croatia pursuant to the Hague Convention. The parties stipulated to facts establishing a prima facie case of child abduction under the Convention. The Court therefore found that petitioner Adriana Vargas Vujicevic wrongfully removed E.V. to the United States in February 2012 in violation of Mr. Vujicevic's custody rights under the laws of Croatia. Miro Vujicevic, E.V.'s older brother, also accompanied his mother to the United States. Miro was over the age of sixteen in February 2012, and was not therefore subject to return under the Convention.

Mr. Vujicevic and Ms. Vargas had a relationship marked with acts of physical violence and verbal abuse. Disagreements regarding mundane matters would, with depressing frequency, give rise to shouting matches and occasionally flare into physical violence. Their children, Miro and E.V., grew to hate the fights and realized that their mother always lost, regardless of the reasonableness of her inquiry or argument. Ms. Vargas, Miro, and E.V. came to feel that their role in the household was to serve Mr. Vujicevic and that the failure to stop whatever they were doing and immediately comply with his requests, no matter how small or seemingly inconsequential, could spark a violent confrontation. This general situation continued unabated and essentially unchanged from the mid-1990's to June 2011 when Ms. Vargas requested a divorce and began investigating her options for separating from Mr. Vujicevic. She contacted a domestic violence hotline and the domestic violence advisors recommended that Ms. Vargas file a police report regarding a June 2011 incident, which she did on July 15,

2011. In the process, Ms. Vargas also revealed that Mr. Vujicevic had weapons in the  house, mementoes of his days of fighting against Marshal Tito and Slobodan Milosevic on behalf of Croatia. Possession of these weapons apparently ran afoul of Croation law. Mr. Vujicevic ultimately pled guilty to domestic violence and was later convicted on illegal weapons charges. Both convictions resulted in suspended sentences, and, to Ms. Vargas' and Miro's surprise, Mr. Vujicevic returned to the house immediately thereafter. On February 7, 2012, Ms. Vargas submitted a "Statement of Special Circumstances" recounting twenty years of abuse at the hands of Mr. Vujicevic, recent events involving the children, and obtained a passport for EV from the United States Embassy and, in February 2012, Ms. Vargas and her sons secretly left Croatia for the United States.

Petitioner did not dispute that the events recounted by Ms. Vargas occurred, however. Rather, he relied primarily on the fact that Ms. Vargas did not label her home situation as one involving domestic violence until after she contacted the United States Embassy. There was no indication that any of the episodes reported by Ms. Vargas were falsified or exaggerated. The change, if any occurred, appears to be one of perspective.

Based on the foregoing facts, the Court found that Ms. Vargas failed to show by clear and convincing evidence that returning E.V. to Croatia would expose him to a grave risk of physical or psychological harm. E.V. had an overall positive impression of Croatia, and there are things about that country which he misses. Mr. Vujicevic stated that he was willing and able to provide a separate residence for E.V. and Ms. Vargas if  they returned to Croatia so that the courts of that country would have an opportunity to make the custody determination. Ms. Vargas herself indicated through both her words and actions that Mr. Vujicevic did not pose a grave threat to her children. Because the mere possibility of harm does not establish an Article 13(b) defense to an action for the return of a child, the Court found that the grave risk exception did not apply.

The Court found that E.V., at fourteen, had attained an age at which courts often take into consideration the child's wishes. In addition, he was mature beyond his fourteen years based on both the manner in which he conductd himself and the substance of his statements. During the proceedings in this matter, the Court conducted an in camera interview of E.V. and allowed counsel an opportunity to follow up with additional questions. The Court also heard testimony from a clinical psychologist, who evaluated E.V. and a math teacher, who had taught E.V. for over a year. Even petitioner's expert, who did not speak to any member of the family, said that E.V. sounds like a "resilient, balanced, and focused" child in all areas except with regards to his desire to not have a relationship with his father. Petitioner argued that E.V.'s unwillingness to reinitiate contact with his father is a sign of immaturity. While it is true that E.V. may not fully grasp the repercussions of completely cutting his father out of his life at this point in time, prescience is not required in order to be considered mature. The extent and focus of E.V.'s anger was rational, and the means by which he hoped to avoid the conflicts that he found so troubling, namely by staying away from his father, was logical even if there may be unintended consequences in the future.

Relying on the bare circumstances of this case, petitioner argued that E.V.'s mother and brother had unduly influenced his views. There was no doubt that E.V. had internalized the conflicts of his childhood and that he was aware of his mother's and brother's opinions in this matter. While the circumstances of his life obviously influenced the way he viewed the world, such influence was not undue or otherwise suspect. E.V. was fourteen years old, and clearly capable of distinguishing between his own interests and desires and those of his mother and brother, and had firm and full memories of his father and Croatia that he could compare with his current situation. In addition, all of E.V.'s answers rang true during the in camera interview. There was no evidence of improper coaching or any indication that E.V. did not firmly believe the views he espoused during the interview.

The Petition was denied.

Romero-Mejia v. Ivers, 2013 WL 1412237 (E.D.Wash.) [Mexico] [Federal & State Judicial Remedies ][Temporary Restraining Order]

In Romero-Mejia v. Ivers, 2013 WL 1412237 (E.D.Wash.) Petitioner Martha Ivers Romero-Mejia ("Ms.Romero-Mejia") sought the return of her two minor children, CTIR and DSIR, to their home country of Mexico under the Convention.. Ms. Mejia-Romero made an ex parte motion requesting an order temporarily restraining Mr. Ivers from removing the children from this Court's jurisdiction pending a full hearing on the merits of the Petition Fearing that Mr. Ivers may abscond with the children to Canada if given advance notice of the proceedings, Ms. Romero-Mejia requested that the restraining order be issued ex parte under Federal Rule of Civil Procedure 65(b).

The court drew its facts from the Petition filed on April 3, 2013 which were accepted as true for purposes of this motion. Ms. Romero-Mejia was a citizen of  Mexico. Her husband, Mr. Ivers, was a citizen of the United States. Mr. Ivers and Ms. Romero-Mejia were married on December 31, 2003 in Tijuana, Baja California, Mexico. The couple had two children, CTIR and DSIR, who were born in 2006 and 2008, respectively. CTIR and DSIR resided with their parents in Mexico until the events at issue. On September 14, 2012, Mr. Ivers told Ms. Romero-Mejia that he planned to take CTIR and DSIR on a day trip across the border to the San Diego Zoo. Ms. Romero-Mejia went to work for the day with the understanding that Mr. Ivers and the children would return home around 10:00 p.m. Upon returning from work, Ms. Romero-Mejia discovered that the children's clothing and several other household items were missing. Concerned that their house had been robbed, Ms. Romero Mejia immediately called her husband on his cellular phone. During this conversation, Mr. Ivers informed Ms. Romero-Mejia that their marriage was beyond repair and that he was taking CTIR and DSIR to live permanently with him in Spokane, Washington. Ms. Romero-Mejia begged her husband to return with the children to Mexico, but to no avail.

The Court observed that the issuance of an ex parte temporary restraining order ("TRO") is governed by Federal Rule of Civil Procedure 65(b). Under Rule 65(b), a party seeking a TRO must establish the following: (1) a likelihood of success on the merits, (2) a likelihood of irreparable injury if injunctive relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) an advancement of the public interest. See Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). When these elements are satisfied, a court may temporarily enjoin the opposing party from engaging in a specific action pending a hearing to determine whether the restrictions should continue in the form of a preliminary injunction. The Court found that the the issuance of a TRO was appropriate. Ms. Romero-Mejia has established a sufficiently high likelihood of success on the merits by alleging that her two children, over whom she has "rights of custody" under the laws of Mexico, were removed to the United States without her permission. Ms. Romero-Mejia further established that her children (1) were less than sixteen years old; (2) were residing with her in Mexico immediatelyprior to their removal; and (3) were currently residing with Mr. Ivers in Spokane.

Accordingly, Ms. Romero-Mejia appeared to be entitled to the requested relief under the Convention. There was also a sufficient likelihood of irreparable injury if the requested relief is not granted. According to the Petition, Mr. Ivers had family in Canada and may take the children there if not enjoined from doing so. Given that Mr. Ivers had already absconded with the children on one occasion, there wasreason to believe that he may do so again upon learning of Ms. Romero-Mejia's efforts to secure their return to Mexico. If this occurs, Ms. Romero-Mejia would be forced to restart the removal application process anew, thereby jeopardizing her ability to obtain timely relief under the Convention. See Convention, Art. 12 (imposing a one-year statute of limitations from the date of wrongful removal or retention). The Court found that injunctive relief is necessary to prevent this potential injury from occurring. For the same reasons, the Court found that issuance of this Order without notice to Mr. Ivers was appropriate. Fed.R.Civ.P. 65(b)(2). A balancing of the hardships also weighed in Ms. Romero-Mejia's favor. Prohibiting Mr. Ivers from removing CTIR and DSIR from the Eastern District of Washington without the Court's approval-at least until he could be heard on the matter-was not a burdensome condition. Conversely, the hardship that Ms. Romero-Mejia would face if the requested relief were not granted was substantial. Finally, the Court found that an order barring Mr. Ivers from removing the children from this jurisdiction would advance the public interest. In implementing the Convention, the United States Congress found, inter alia, that "the international abduction... of children is harmful to their well-being" and that persons who engage in such conduct "should not be permitted to obtain custody of children by virtue of their wrongful removal or retention." The Court concluded that Ms. Romero-Mejia was entitled to an order temporarily restraining Mr. Ivers from removing CTIR and DSIR from the Court’s jurisdiction. Respondent was further ordered to show cause why the relief requested in the Verified Petition for Return of Children should not be granted, and the courter directed that a copy of the order, along with a copy of the Verified Petition for Return of Children, shall be promptly served upon Respondent.

n re D.T.J., 2013 WL 3866636 (S.D.N.Y.)[Hungary] [Federal & State Judicial Remedies ] [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 repeatedlyengaged 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).

Culculoglu v Culculoglu, 2013 WL 4045905 (D.Nev.)) [Canada] [Consent or Acquiescence] [Petition Denied]

[Canada] [Consent or Acquiescence] [Petition Denied]



In Culculoglu v Culculoglu, 2013 WL 4045905 (D.Nev.))the Petition was served on March 27, 2013. A Motion for Temporary Restraining Order was filed by Petitioner on March 29, 2013. The Courtgranted Petitioner's Motion for Temporary Restraining Order on April 4, 2013 , which enjoined Respondent from removing the children from the State of Nevada during the pendency of this action without prior court approval. Respondent filed her answer on April 10, 2013 and an evidentiary hearing was conducted on May 6, 2013.

The Court determined that there was no wrongful removal or retention of the children by Respondent because Petitioner consented to their initial removal fromCanada and acquiesced to their retention in Nevada. Moreover, Petitioner wasunable to establish that the children's habitual residence was Canada and instead, the Court determined that the children's habitual residence became Nevada after September 15, 2012. Consequently, the Court recommended that the Petition be denied.

Burhan was a resident of Canada and a naturalized citizen of the United States. Michelle was a resident and citizen of the United States. The parties lived together in Seattle in early 2007. Their first child, TC, was born in 2008 in Seattle. In October 2008, the parties relocated to Singapore as a result of Burhan's employment with Fairmont Hotels and Resorts. Their second and third children were born in Singapore: KC in 2009 and AC in 2011.The parties were married on April 15, 2010 while visiting Michelle's parents in Henderson, Nevada. In early 2012, while still in Singapore, Burhan was offered a promotion to become the Director of Operations for the Fairmont Hotel in Whistler, British Colombia, Canada. Testimony by both parties revealed that they were having difficulty in their marital relationship at this time. Both Burhan and Michelle testified that they discussed divorce while in Singapore. Michelle credibly testified that, in April of 2012, she began looking for a house in Henderson near her parents in contemplation of divorce. Burhan accepted the new position in Canada and the family departed Singapore around July 4, 2012. They stayed in Henderson, Nevada and visited with Michelle's parents on the way to Canada. During their stay in Henderson, the parties obtained Nevada drivers licenses, registered to vote, and purchased two automobiles. According to Michelle, one automobile was registered solely in Michelle's name in contemplation of divorce and Burhan was present when the vehicle was registered. Michelle testified that they also opened a joint bank account for the purpose of depositing Burhan's support payments from Canada and used Michelle's parents' address in Henderson as the record address. Michelle testified that because of their marital difficulties she did not intend to remain in Canada with Burhan.

On July 21, 2012, the family drove to Canada in Michelle's automobile. Michelle testified that the automobile was not "imported" into Canada upon their arrival at the border because she did not intend to stay in Canada. Therefore, the car remained a Nevada registered vehicle. Burhan obtained a work visa for himself and visas for Michelle and the children to remain in Canada and be eligible for health insurance. Burhan immediately began his work and the family stayed in the hotel where he worked. During their stay, the parties searched for a rental home, enrolled the children in a ski-school, and TC, the oldest child, was placed on a waiting list for pre-school. Michelle testified credibly that the parties continued to discuss the uncertainties of their marriage. It appeared that the parties' relationship continued to vacillate. On August 1, 2012, Michelle told Burhan that she wanted a divorce. She indicated that the children were packed and they were leaving, apparently because she suspected that Burhan had a paramour. However, on August 23, 2012, Michelle texted Burhan that she desired to periodically hire a babysitter so that the couple could have "date nights." In spite of their efforts, the marital relationship further deteriorated. Michelle testified that on September 14, 2012, Burhan told her that he was still in love with his paramour and the marriage was over. On September 15, 2012, Michelle and the children returned to Nevada with one-way tickets purchased by Burhan. Burhan testified that Michelle departed because she was stressed from having lived in the hotel for such a long time and that the house they hoped to rent was not available. He also indicated that he wanted a few weeks away from Michelle to determine whether or not their relationship should continue. Burhan further explained that the one-way tickets were purchased in order to give flexibility to Michelle on the date of return. On September 16, 2012, Burhan sent an email to Michelle in response to her emailed question, "do you miss me," which confirmed that he wanted a divorce. On September 17, 2012, Michelle informed Burhan that she had activated the on-line capabilities for the bank account that the parties had opened during their visit to Henderson in July. She also asked him about the funds to be provided. Burhan agreed that he would add money to the account now that she was in Nevada. On September 19, 2012, the parties exchanged an email regarding a house that Michelle had apparently found in Henderson that cost $610 per month. Burhan asked, "How much down payment," and Michelle responded "It doesn't say."

In an email exchange on September 25, 2012, the parties discussed the characteristics of the schools Michelle found for the children in Henderson. Burhan testified that he expected the school to be temporary so that the children did not sit around with nothing to do in Henderson; Michelletestified it was to be the school the children would attend in the future.Michelle testified that, within a short period of time, Burhan fedexed the children's birth certificates, medical records, and social security cards tofacilitate registration. On September 29, 2012 Michelle agreed that a divorce was the best course of action. Burhan indicated that he was looking "for 2 bedroom place." In an email dated September 30, 2012, Burhan agreed to transport Michelle's things and car to her in addition to again agreeing to file fordivorce. He also indicated that Michelle would have custody of the children until they finished elementary school. After that, Burhan proposed that the children would go to school near him and they would share custody with the children as follows: Michelle would have them for eight months and Burhan for four months consisting of three to four weeks in the winter duringthe school holidays and twelve to thirteen weeks in the summer. Also, Burhanwrote that he would put $1,500 per month in Michelle's bank account. Inresponse, Michelle suggested that she drive her car from Canada and Burhan drive a "U-haul" (rental vehicle) around October 18 or 19.

By late October, the parties' discussions regarding divorce became more certain. Burhan often claimed that Michelle was keeping the children in Nevada without his consent and made threats that he would take the children from Michelle. On November 18, 2012, Burhan drove Michelle's vehicle to Nevada including her and the children's clothing and personal effects. Michelle testified that Burhan wanted to stay at her parents' home during the visit, which she rejected because they were divorcing. She also testified that Burhan was emotional and erratic during the visit and wanted to reunite with her. Burhan testified that Michelle cut his visit short by threatening to call the police and he was unable to spend any substantive time with the children. Burhan bought an airline ticket and returned to Canada on November 20, 2012. On January 15, 2013, consistent with on-going text discussions with Burhan, Michelle filed for divorce in Nevada. On January 29, 2013, Burhan filed an application pursuant to the Convention in British Colombia, Canada for the return of his children. As he arrived at the airport to visit the children in February of 2013, Burhan was served with the divorce complaint. Burhan met with Michelle and her lawyer on February 11, 2013. Thereafter, as the parties had agreed Michelle dismissed her complaint on February 19, 2013 and Burhan instructed his lawyer to dismiss his Convention application. In spite of their attempts, however, the parties were unable to resolve the terms of the divorce and custody.

On March 1, 2013, Burhan advised Michelle that he intended to pick-up the children and remove them from the United States. Burhan arrived, but his effort was unsuccessful, which resulted in the Verified Complaint - Petition at issue in this case. In the Petition, Burhan sought return of the three children to Canada for an appropriate custody determination under Canadian law.

The Court found that there was no date that could be the date of a wrongful removal. n September 15, 2012, Michelle and the children returned to Nevada using one-way tickets purchased by Burhan.The removal of the children on September 15, 2012 was not wrongful because it was with Burhan's consent. The Court found that arrangements for support payments, housing, and schooling in Nevada were evidence of Burhan's intent that Michelle and the children remain in Nevada. They were also consistent with the parties' preliminary discussions, confirmed by email on October 2, 2012, to address custody of the children. The parties reaffirmed that divorce was the best course of action on September 29, 2012. Burhan indicated that he was looking for a two bedroom house in Whistler despite previously looking for a three to four bedroom house. On September 30, 2012, Burhan agreed to transport Michelle's car and her and the children's clothing to Nevada. This two week sequence of events was inconsistent with Burhan's testimony that he expected Michelle and the children to temporarily visit the United States and return to Canada in October 2012. Further, the Court did not find Burhan to be credible with respect to his testimony that the children were to return to Canada no later than October 16, 2012. The Court could not find a time when Michelle wrongfully removed or retained the children in Nevada from September 15, 2013 through March 14, 2013. It is not until this action was filed, on March 15, 2013, that Burhan consistently contended that the removal and retention of the children in Nevada was wrongful.

Michelle asserted both consent and acquiescence as affirmative defenses to Burhan's allegation of wrongful removal or retention of the children in Nevada. Under Article 13, the right to a child's return secured by the Convention is extinguished if "the person ... having the care of the child ... consented to or subsequently acquiesced in the removal or retention."19 I.L.M. at 1502. Under the Convention's plain, unambiguous language, consent before removal and retention or subsequent acquiescence extinguishes the right of return. In considering consent or acquiescence, "ambiguous statements or actions don't suffice." Cuellar v. Joyce, 596 F.3d 505, 512 (9th Cir.2010). A statement or action must "unequivocally demonstrate that [the petitioner] consented to the child's indefinite stay in [America]." Conduct after removal can be useful in determining whether consent was present at the time of removal. Gonzalez-Caballero, 251 F3d at 794. The Court found that the preponderance of the evidence demonstrated that Burhan consented to the children's removal and retention. He sent Michelle and the children to Nevada on a one-way ticket. Burhan also deposited monthly support funds. He participated in arranging schooling and housing. Finally, Burhan transported Michelle's car and her and the children's personal property to Nevada. Moreover, Burhan specifically gave written consent to the children being in Nevada from the time they left Canada until at least March 14, 2013. The Court did not find Burhan's testimony, after-the-fact, that he did not consent and always believed the children would return to Canada to be credible in the face of this clear, unambiguous, written statement of consent. Accordingly, the Court found that Michelle has met her burden of proving that the removal and retention of the children in Nevada was not wrongful because it was done with Burhan's consent.

The acquiescence defense has been held to require "an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time." Friedrich v. Friedrich, 78 F.3d 1060, 1070 (6th Cir.1996). By making arrangements for Michelle and the children to remain in Nevada after September 15, 2012, the Court found that Burhan demonstrated a consistent attitude of acquiescence. This attitude continued from the time the children left Canada at least until Burhan filed his Hague application on January 29, 2013. The Court also found that on February 19, 2013, when Burhan formally withdrew his Hague application and agreed in writing to the children remaining in Nevada until at least March 14, 2013, he acquiesced to the children residing in Nevada. This was a clear, written, statement of Burhan's acquiescence that the Court found convincing despite Burhan's testimony that he expected the children to return to Canada to live permanently. Accordingly, the Court found that Michelle has met her burden of proving that the removal and retention of the children in Nevada was not wrongful because it was done with Burhan's acquiescence.

Assuming, arguendo, that Burhan did not consent to the children's permanent removal or acquiesce to their retention, the Court found that the children were not habitual residents of Canada. It was not disputed that the parties intended to abandon their residence in Singapore. Nor was there a question that Burhan intended to remain in Canada-he accepted a promotion to a new position there. It was true that the family lived together in the hotel in Canada, attempted unsuccessfully to find a permanent residence, made arrangements for future activities for the children including ski school and preschool for TC, and Michelle scheduled a doctor's appointment. This was evidence that the parties intended that the children reside in Canada prior to September 15, 2012. It did not appear, however, that Michelle intended to permanently reside in Canada. The marital discord and the contemplation of separation or divorce dated back to the parties time in Singapore. Michelle testified credibly that she was concerned about the future of her marriage even before she departed Singapore. Michelle's efforts to find a house in Henderson prior to departing Singapore reinforced this finding. Burhan's testimony that the couple was only looking for a vacation home in Nevada was not credible given that Michelle's parents lived in Henderson and their income was not conducive to an investment home. Additionally,  the Court found credible Michelle's testimony that the establishment of a bank account in Henderson before the family traveled to Canada was for her to receive support payments in the event of separation. The purchase of two cars, one placed in Michelle's name, served as another indicator of Michelle's uncertainty about remaining in Canada. From their arrival in Canada on July 21, 2012 until September 15, 2012, a period of 56 days, the parties continued to suffer significant marital difficulties. Michelle made no friends in Canada, the family lived in a hotel that was understood to be temporary, and the children did not participate in many activities. This was the evidence that the parties intended the children to reside in Nevada after their 56 day stay in Canada.

Londano v Gonzalez, 2013 WL 1934043, (D. Massachusetts) [Colombia] [Federal & State Judicial Remedies] [Temporary Restraining Order]

In Londano v Gonzalez, 2013 WL 1934043, (D. Massachusetts) Petitioner Francelly Sanchez Londono filed a Verified Emergency Petition for the Return of Child and Warrant of Arrest in Lieu of Writ of Habeas Corpus, pursuant to 42 U.S.C. § 11601. The petition was accompanied by an Emergency Motion for Relief and an Application to Proceed in District Court Without Prepaying Fees or Costs. The petition was brought pursuant to the Hague Convention and sought, among other things, to compel respondent Nelson Gonzalez to appear in court to show cause why the child EG should not be returned to Colombia. The petition alleged that EG was brought from Colombia to the United States in May 2011 by her father, Gonzalez, and had been retained here without petitioner’s consent.

Petitioner filed an Emergency Petition for the Return of Child and an Emergency Motion for Relief. The court denied the motion for poor person relief. However, it observed that upon appropriate motion, the Court has the authority to prevent a child’s concealment or removal from the District until such a petition is ruled upon. See 42 U.S.C. § 11604(a); Fed.R.Civ.P. 65. ICARA expressly authorizes a court to "take or cause to be taken measures under federal or state law, as appropriate, ... to prevent the child’s further removal or concealment before the final disposition of the petition." 42 U.S.C. § 11604(a).

Given the representations made to the Court by petitioner, and the very serious irreparable harm that was likely to result both to the child and to petitioner in the event the child was wrongly removed from this jurisdiction, a temporary restraining order was justified to preserve the status quo pending a hearing. For the purposes of Fed.R.Civ.P. 65(b), the Court found that petitioner had made a sufficient showing that, without an injunction, she may sustain immediate and irreparable injury before there was an opportunity for a hearing. The record did not suggest any comparable irreparable harm to respondent that would result from the granting of this temporary injunction. The balance of hardships tiped in favor of petitioner. Based on the present record, the Court was also convinced that it was necessary to issue an injunction without prior notice to respondent. Petitioner’s submissions indicated a risk that, should notice be provided, the child might be concealed or taken from this jurisdiction before an injunction could be served. The Court did not require petitioner to post a bond as a condition of obtaining the injunction at this trial. It directed that a summons be served on the respondent.

Wood v Wood, 2013 WL 1907492, (E.D. Washington) [United Kingdom] [Federal & State Judicial Remedies ][Temporary Restraining Order] [Deposit Passport with Court]

 In Wood v Wood, 2013 WL 1907492, (E.D. Washington) Petitioner filed an Ex Parte Request for Expedited Consideration of Verified Petition for Return of Child to the United Kingdom and Issuance of Show Cause Order (ECF No. 3). He sought the return of his minor child, LPBW, to the child’s home country of the United Kingdom. He alleged that LPBW has been wrongfully retained in the United States by his mother, Respondent Melissa Renee Wood ("Respondent"), and was currently residing with Respondent in Moxee, Washington. Petitioner requested an order (1) temporarily restraining Respondent from removing LPBW from this Court’s jurisdiction; (2) requiring Respondent to deposit LPBW’s passport and other travel documents with the Court; and (3) directing Respondent to appear for a show cause hearing. Fearing that Respondent would attempt to remove the child from the Eastern District of Washington if given advance notice of these proceedings, Petitioner filed the motion ex parte.

The District Court observed that 42 U.S.C. § 11604(a) extends the Courts authority to issuing an ex parte temporary restraining order where the requirements of Federal Rule of Civil Procedure 65(b) are satisfied. Morgan v. Morgan, 289 F.Supp.2d 1067, 1069 (N.D. Iowa 2003. In taking any preventative measures pursuant to § 1 1604(a), however, a court must ensure that "the applicable requirements of State law are satisfied." 42 U.S.C. § 11604(b).

Petitioner requested an order barring respondent from removing LPBW from this Court’s jurisdiction pending full adjudication of the Petition. Given that Petitioner filed his motion without serving a copy on Respondent, the Court construed this request as a motion for an ex parte temporary restraining order ("TRO"). Under Rule 65(b), a party seeking a TRO must establish: (1) a likelihood of success on the merits, (2) a likelihood of irreparable injury if the requested relief is not granted, (3) that a balancing of the hardships weighs in its favor; and (4) that the requested relief will advance the public interest. See Winter v. Natural Res. Def. Council, 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). When these elements are satisfied, a court may temporarily enjoin the opposing party from engaging in a specific action pending a hearing to determine whether the restrictions should remain in force in the form of a preliminary injunction.

The Court found that the issuance of a TRO was appropriate. Petitioner established a prima facie case of wrongful retention under the Hague Convention by alleging that Respondent was holding LPBW, a child under sixteen years of age whose country of habitual residence is the United Kingdom, in the United States without his permission and in violation of his rights of custody under the Law of England and Wales. Petitioner also established to the Court’s satisfaction that Respondent and LPBW were currently residing within the Eastern District of Washington. Accordingly, Petitioner established a sufficiently high likelihood of success on the merits. Petitioner also established a sufficiently high likelihood of irreparable injury if the requested relief was not granted. According to the Petition, Respondent had taken LPBW "on the road" through at least four different states in an effort to conceal the child’s whereabouts from Petitioner. In light of these allegations, there was reason to believe that Respondent may remove LPBW from this Court’s jurisdiction upon learning of these proceedings if not expressly prohibited from doing so. If that occurred, Petitioner would likely experience great difficulty in locating the child and pursuing the child’s safe return to the United Kingdom. The Court found that injunctive relief was necessary to prevent this and other potential injuries from occurring. For these same reasons, the Court found that issuance of the Order without notice to Respondent was appropriate under Rule 65(b)(2). Prohibiting Respondent from removing LPBW from the Eastern District of Washington until she could be heard on the matter was a minimally burdensome condition. Indeed, given that Respondent and LPBW appeared to have settled in Moxee (at least for the time being), there was no reason to believe that either Respondent or the child will be burdened at all. Conversely, Petitioner faced a substantial hardship if the requested relief was not granted. As noted above, Petitioner’s ability to obtain effective relief under the Hague Convention would be seriously jeopardized if Respondent were to remove the child from this Court’s jurisdiction. Finally, the Court found that an order barring Respondent from removing LPBW from the jurisdiction would advance the public interest. In implementing the Convention through ICARA, the United States Congress found, inter alia, that "the international abduction ... of children is harmful to their well-being" and that persons who engage in such conduct "should not be permitted to obtain custody of children by virtue of their wrongful removal or retention." 42 U.S.C. § 11601(a)(1), (2). Granting the requested relief would, at least temporarily, prevent Respondent from further profiting from her alleged wrongful retention of LPBW in the United States. Accordingly, the Court concluded that Petitioner was entitled to an order temporarily restraining Respondent from removing LPBW from the Court’s jurisdiction; it prohibited her from directly or indirectly removing the minor child, LPBW, born in 2007, from the Eastern District of Washington; directed that Petitioner shall not be required to give security under Rule 65(c); directed Respondent to appear before the court to show cause why she should not be prohibited from removing the LPBW from the Court’s jurisdiction until the proceeding was concluded; directed Respondent to produce LPBW’s passport and any other identification and/or travel documents at the hearing and to deposit them with the Court for safekeeping until the proceeding was concluded; and directed Petitioner to arrange for the Order, along with a copy of the Verified Petition and all attached documents, to be personally served upon Respondent at the earliest possible time, and file proof of service prior to the hearing.

Culculoglu v Culculoglu, 2013 WL 1413231 (D.Nev.) [Canada] [Federal & State Judicial Remedies] [Temporary Restraining Order] [Delivery of Passport to Court]

In Culculoglu v Culculoglu, 2013 WL 1413231 (D.Nev.) Petitioner alleged that he resided in Whistler, British Columbia, Canada where, until September 2012, he lived with Respondent and their three children. On March 15, 2013, Petitioner filed his Verified Complaint asserting a cause of action for Wrongful Retention under The Hague Convention on International Child Abduction. In the Petition, Petitioner sought return of the children to Canada to allow the courts of the children's "habitual residence" to determine any custody issues. Petitioner filed a motion seeking an ex parte Temporary Restraining Order to ensure that the minor children, remained in Nevada until the Court can resolve the merits of this matter.

The Court observed that Federal Rule of Civil Procedure 65 governs preliminary injunctions and temporary restraining orders, and requires that a motion for temporary restraining order include "specific facts in an affidavit or a verified complaint [that] clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition," as well as written certification from the movant's attorney stating "any efforts made to give notice and the reasons why it should not be required."Fed.R.Civ.P. 65(b).Temporary restraining orders are governed by the same standard applicable to preliminary injunctions. Like a preliminary injunction, the Court may issue a temporary restraining order if a plaintiff establishes: (1) likelihood of success on the merits; (2) likelihood of irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) ."Injunctive relief [is] an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Id. at 22.

The district court concluded that Plaintiff established each of the prongs of the TRO analysisThe first prong requires Petitioner to establish that the children were removed or retained away from the country of their habitual residence. See Hague Convention, art. 3(a). The second prong of Petitioner's Wrongful Retention claim requires that Petitioner prove that Respondent's retention of the children in the United States was in breach of the custody rights of the Petitioner, as provided by Canadian law. Hague Convention, art. 3(a). Finally, Petitioner must establish that, at the time the children were removed or retained, Petitioner was actually exercising his rights of custody. Hague Convention, art. 3(b). Petitioner's Verified Complaint adequately demonstrates that he was exercising his rights of custody at the time Respondent brought the children to the United States and that Petitioner would have continued to exercise his rights of custody but for Respondent's allegedly wrongful retention of the children in the United States. Given the risk that Respondent could further conceal the location of the children, the Court found that Petitioner would likely be irreparably harmed in the absence of the requested relief to maintain the status quo.

The Court concluded that the risk of Respondent secreting away the children before the resolution of the Petition, outweighed any injury to the Respondent or the children that may result from ordering them to stay in the District. First, the Order merely maintained the status quo by ordering that Respondent and the children remain in the District during the pendency of this action. Second, the Verified Complaint stated that Respondent's parents reside in the District.  Thus, this Order would not impose a hardship on Respondent.

Accordingly, the balance of equities tipped in favor of Petitioner and supported the issuance of the requested temporary restraining order. "The public interest analysis for the issuance of [injunctive relief] requires [district courts] to consider whether there exists some critical public interest that would be injured by the grant of preliminary relief." ICARA expressly authorizes a court to "take or cause to be taken measures under Federal or State law, as appropriate, ... to prevent the child[ren]'s further removal or concealment before the final disposition of the petition." 42 U.S.C. § 11604(a). Accordingly, in this case, the Court found no such public interest that would be injured by the issuance of such injunctive relief.

The Court also directed Respondent to deliver to the United States Marshal, for safekeeping, any passports for TC, KC, and AC that are were Respondent's possession, custody, or control, and shall further notify the United States Marshal if Respondent knows of any person having possession of such a passport. The Court directed that the summons and other papers be served upon the Respondent.

Arulpragasam v. Bronfman, 2013 WL 2249256 (E.D.N.Y.) [England] [Federal & State Judicial Remedies] [Use of Pseudonyms in Civil Litigation]

 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.

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.