Montero-Garcia v. Montero, 2013 WL 6048992 (W.D.N.C.) [Dominican Republic] [Attorneys Fees]

　

In Montero-Garcia v. Montero, 2013 WL 6048992 (W.D.N.C.) the district court pointed out that after trial concluded, it issued ian Order finding that the children had been wrongfully retained and directed that the children be returned to their habitual place of residence. Finding that it was appropriate for the children to remain with the respondent until the flight home and that both parents should accompany the children on the flight, the court directed petitioner to purchase tickets for the children as well as the respondent for the return flight to the Dominican Republic. In so finding, the court determined based on the undisputed financial information submitted at trial that petitioner was the sole financial provider for the family, that his income of some $2000 a month would place this family above the poverty line in the Dominican Republic, and, absent some other source of income, they would be living in poverty if they remained in the United States. Further, while it appeared that the children had aunts in the United States willing to furnish housing, they had maternal grandparents in the Dominican Republic who had, based on past actions, the means to provide housing and some financial support when needed. The determination was based on respondent's unrefuted testimony that she was completely dependent on the support of petitioner, had to go on public assistance while in this jurisdiction, and that the family depended on some support from her parents before they came to the United States. Determining that it would be clearly inappropriate for respondent to bear the costs, expenses, and fees incurred in this action due to her complete dependence on income from petitioner, the court denied petitioner's request that respondent pay his costs, expenses, and fees under 42 U.S.C. § 11607.

Petitioner filed a request for reconsideration of the costs and fees portion of the Order after respondent had returned to the Dominican Republic and obtained counsel to represent her in the domestic action in her home country. In support of petitioner's request for attorney's fees and costs, petitioner contended that the court erred in relying on respondent's uncontroverted trial testimony concerning her lack of income and being on public assistance. A hearing was conducted at which counsel for the parties were present. Counsel for petitioner volunteered that he would submit detailed time records if requested by the court. The court noted that petitioner did not file a motion for attorney's fees and costs and did not demand fees in his Petition. The request for fees was found, for the first time, in a post-trial Brief in Support of Hague Petition. The Court observed that while petitioner clearly asked for an opportunity to submit "evidence regarding Petitioner's costs and fees," the evidence concerning respondent's ability to pay such costs and fees was already before the court. As there was no evidence that respondent had any ability to pay any fees or costs, the court found no reason to ignore the mandate of the convention and delay the return of the children simply to allow petitioner to submit evidence of his fees and costs. At the trial, counsel for respondent called respondent and asked a series of questions concerning respondent's financial situation. Such sworn testimony indicated to the court that respondent had absolutely no personal assets, all her income came from petitioner, and since being in the United States, she relied on public assistance as well as help from her church and sister to support her and her four children. It was apparent that respondent had no prospects for gainful employment outside the home. Petitioner cross-examined respondent, but her testimony concerning her financial situation was neither challenged nor impeached. Respondent testified that before coming to the United States, the family of six relied on petitioner's income, but that after petitioner lost his job with Verizon, the family's finances were so dire that the family depended on support from respondent's parents to pay certain bills, including health insurance premiums.

The court fully credited petitioner's assertion that respondent now had the assistance of paid counsel in the Dominican Republic in the domestic action that ensued upon the family's return. There was no evidence that she, rather than her parents, paid those attorneys. In light of petitioner's undisputed testimony, the fact that she now had the assistance of retained counsel in the Dominican Republic did not unsettle the court's conclusion that imposition of costs and fees was "clearly inappropriate" based on an inability to pay. The court noted that it is a very common practice for concerned relatives-especially concerned grandparents-to hire counsel to represent indigent parties in court, especially in domestic matters that could impact child custody and grandparental visiting rights. The fact that respondent had counsel in the Dominican Republic was not, standing alone, sufficient cause for revisiting the earlier determination that respondent has no ability to pay. It was pure speculation that respondent had a source of funds that she did not reveal to the court. Petitioner did not submit evidence (such as bank records, wage statements, or property records from the Dominican Republic) that would support a conclusion that respondent committed perjury before the court or had a post-return windfall that would justify reopening the issue of attorney's fees. The court did not consider it appropriate to reopen this matter and conduct what would now be expensive, international, court-sanctioned discovery (which would also need to meet requirements of other aspects of the Hague Convention concerning international judicial assistance) based on petitioner's speculation as to the source of his wife's attorney's fees in the Dominican Republic. Respondent's at-trial testimony concerning her financial condition was clearly intended to provide the court with information with which to make the §

11607(b)(3) determination, as it was not helpful in proving any of the defenses available under the International Child Abduction Remedies Act ("ICARA"). Petitioner was afforded an unfettered opportunity to examine respondent at trial, but in no way challenged her testimony concerning her finances.

The Court observed that while petitioner clearly proved that respondent had wrongfully retained the children in this jurisdiction, the court found that shifting petitioner's fees and costs to respondent would be "clearly inappropriate" as respondent established at trial that she had no ability to pay and was completely indigent. There was no evidence to suggest that respondent would be able to pay any amount of an award. While the court was unfamiliar with the laws of the Dominican Republic concerning distribution of debt incurred during a marital relationship, respondent's argument at the hearing that awarding fees, costs, and expenses to petitioner would simply serve to convert counsel's pro bono work into a marital debt was a compelling argument. The evidence adduced at trial indicated that respondent was a stay-at-home mother of four with no income or assets, with no prospects for working outside of the home, and who intended to home school her four children. While in this jurisdiction, it was respondent's testimony that she relied on public assistance as well as assistance from her church and sister. Although counsel for petitioner cross-examined respondent, her testimony concerning her lack of income and assets was in no manner impeached. Petitioner also testified, but presented no testimony that respondent had any hidden income or assets in the Dominican Republic or elsewhere. The court concluded from all the evidence and testimony that petitioner lost his job at Verizon, that his attempt at entrepreneurship in the cheese business led to a large tax liability, and that as a result, petitioner could no longer provide for all the needs of his wife and four children, falling back on respondent's parents to provide for certain expenses. With the respondent and children all being dual citizens of the United States and the Dominican Republic, the family came to the United States in search of a better financial life and with hopes of the parents saving their marriage, neither of which came to fruition.

Counsel for petitioner also argued that, at a minimum, his costs should be allowed under Rule 54(d)(1), Federal Rules of Civil Procedure. The Court found that petitioner's reliance on Rule 54(d) was misplaced.

The Court denied the motion for reconsideration. It cited case law holding that shifting fees under ICARA is clearly inappropriate where the "child[ren] will be significantly adversely affected by the court's award," Whallon, 356 F.3d at 140, and where a respondent "would be unable to pay any amount of an award." East Sussex Children Servs., 919 F.Supp.2d at 734. The testimony at trial was compelling that respondent was totally dependent on income from petitioner, had no assets, and was on public assistance while in this jurisdiction. As it did at the conclusion of the trial based on careful consideration of all the evidence before it, the court reaffirmed its conclusion that the litigants' four children would be significantly adversely affected by the shifting of any award as respondent has no ability to pay such award, has no assets, and has no prospects for future employment, all of which would push these children further into poverty.

　

　

Valenzuela v Michel, 2013 WL 6038240 (9th Cir., 2013) [Mexico] [Habitual Residence]

In Valenzuela v Michel, 2013 WL 6038240 (9^th Cir., 2013) in late 2006, Steve Michel and Blanca Reyes Valenzuela chose to live together in Nogales, Mexico. Their twins were born in 2008. According to Steve's undisputed testimony, the couple lived together in Nogales, Mexico. The couple agreed in 2009 that to avoid having to cross the border for work, Steve should move to the Arizona side. They agreed to "set a pattern to keep [the twins] in the United States" in order to take advantage of education, medical help and government support in the United States. After the twins received their passports in May 2009, until the fall of 2010, they split their time between Mexico and the United States. They lived with Blanca in Mexico Monday through Wednesday and lived with Steve in the United States from Thursday through Sunday. In September 2010, the relationship between Blanca and Steve soured. Blanca threatened to have him beaten up or killed. For around two months in the fall of 2010, Blanca did not allow him to have any contact with the twins. Under the belief that she posed a danger to the children, Steve reported Blanca to Arizona Child Protective Services and to its Mexican equivalent, DIF, in November 2010. From Christmas 2010 to February 2011, the twins split their time between Steve and Blanca evenly. In February 2011, Blanca would not regularly meet Steve or respond to his messages to go to the border so he could take the twins to the United States. Steve did take the children on March 24, 2011. He told Blanca he would return them at 7 PM on March 27th, but he sent Blanca a text message on March 27th saying he would not bring them back.

Blanca filed her application two days after Steve retained the twins and filed a petition for Writ of Habeas Corpus for Return of Child in the District Court. At trial, Blanca and her witnesses testified via telephone from Mexico with the help of an interpreter. Steve testified that Blanca agreed to keep the twins in the United States to send them to school and get them better medical care. Blanca disagreed with much of what Steve had said during his testimony. She also talked over some of her witnesses. The District Court found Steve's testimony to be more credible, noting that Blanca seemed to be coaching her witnesses. Based on Steve's testimony and the testimony of Fernando Leal, the DIF social worker, the district court held that the parties "abandoned Mexico as [the children's] habitual state of residence when their parents decided they should, for an indefinite period, spend the majority of their time in the United States."



The Ninth Circuit affirmed. It observed that it had rejected a purely factual approach to habitual residence for reasons laid out by Chief Judge Kozinski in Mozes v. Mozes. 239 F.3d 1067, 1071–73 (9th Cir.2001) It was undisputed that Blanca was exercising her rights of custody at the time of retention. The question was whether the children were habitually resident in Mexico, the United States, or both, at the time of their retention. The Court of Appeals noted that the district court based its findings of fact primarily on three key credibility determinations. First, it found that Steve's version of the facts was credible. Second, it found that Blanca's account was not consistent with her earlier statement to the social worker about how long the twins were living in the United States. Finally, it found that Blanca's witnesses either lacked independent foundation for their testimony or were being audibly coached while they were testifying, possibly by Blanca herself.
The Court pointed out that in the Ninth Circuit, they look for the last shared, settled intent of the parents in an attempt to determine which country is the "locus of the children's family and social development." Mozes, 239 F.3d at 1084. Mozes requires that there be a shared intent to abandon the prior habitual residence, unless the child "consistently splits time more or less evenly between two locations, so as to retain alternating habitual residences in each." Once intent is shown, Mozes requires an "actual change in geography" combined with an "appreciable period of time" to establish a change in habitual residence. Following Mozes, the district court ruled that Steve and Blanca had a shared, settled intent to abandon Mexico and adopt the United States as the twins' habitual residence, and therefore the Convention did not attach. It agreed that the Convention did not attach.

In affirming the district court's decision, the Ninth Circuit offered "an alternate route to the same outcome". It pointed out that very few cases arising under the Convention feature shuttle custody. In shuttle custody situations, Parent 1 and Parent 2 agree to split custody between two countries, shuttling the children between the countries on a regular basis. Here, Steve and Blanca decided the children would split time between countries before their relationship soured, and the children were shuttled more frequently than in any other cases. Blanca's and Steve's residences, as of the time of the petition, were in two different countries, but they were only around ten miles apart, the closest of any two parents in all of the habitual residence cases brought under the treaty worldwide. The only U.S. court to entertain the possibility that a child had alternating habitual residences was a district court in New York. In Brooke v. Willis, a court-ordered custody arrangement dictated that a child spend fifty percent of her time in the United States and the other fifty percent in England. 907 F.Supp. 57 (S.D.N.Y.1995). After a fall semester in California, the mother retained the child in California in breach of the agreement. The father, in England, filed a petition under the Convention. The court ruled that the child was habitually resident in England at the time of her retention, with the caveat that "it is arguable that [the child] is also a habitual resident of the United States under the Convention. However, for purposes of this petition it is only crucial to determine if England can be considered [her] habitual residence." No other U.S. court has been faced with shuttle custody under the Convention. The closest fact pattern to the one before it was from a case decided by the High Court of Northern Ireland. In In re C.L. (a minor), a child shuttled between Belfast and Dublin, a distance of 105 miles. After acknowledging that the fact pattern is "unusual if not unique", the court found that when the child moved between his parents "on a weekly basis, he was habitually resident in whichever jurisdiction he was living in." In re C.L. (a minor) and In re the Child Abduction and Custody Act 1985; JS v. CL (unreported NIFam HIGJ2630 25 Aug. 1998). Courts in other jurisdictions have held that the shuttle custody cases before them reflected serial, or alternating, habitual residence. See Wilson v. Huntley, 2005 Carswell Ont 1606(WL), (Can.O.N.S.C.) ; See also Watson v. Jamieson, (1998) S.L.T. 180, 182 (Scot.).


The Court held that district court judge below did not err in deciding that Blanca and Steve shared a settled intention to abandon Mexico—they had immediate plans to avail the twins of government assistance in the United States as well as longer-term plans to educate the children in the United States. It noted that based on the shuttle custody cases from sister courts, Steve could have prevailed by showing that he and Blanca shared a settled intention to abandon Mexico as the twins' sole habitual residence, that there was an actual change in geography, and that an appreciable period of time had passed. Because all three elements were present here, it affirmed the district court in its decision that the twins were habitually resident in the United States when Steve retained them.

West v Dobrev, 2013 WL 5813749 (10th Cir, 2013) [France][Belgium] [Summary Determination]

 

　

In West v Dobrev, 2013 WL 5813749 (10^th Cir, 2013) Petitioner West, a lawyer, was a citizen of Romania and the United States. Respondent Dobrev, a college professor, was a citizen of Bulgaria and the United States. The two were married in 2003 in Chicago, Illinois. They had two children, a female born January 27, 2004 and a male born January 12, 2006, both citizens of the United States. In June 2008, the couple and their children moved to Fontainbleau, France after Respondent accepted a teaching position at a local university. In May 2009, Petitioner filed for divorce in "Fontainbleau Departmental Court." In an interim order dated October 2009, the French court ordered the children to "remain in the usual home of the mother," and Respondent to pay for their support. Respondent left his position with the local university in early February 2010. Respondent, contrary to the court’s order, ceased support payments. In May 2010, Respondent accepted employment as a professor at the University of Utah in Salt Lake City, but did not resume payments. In March 2010, Petitioner asked the French court for permission to move to Brussels, Belgium. Petitioner represented that "without resources, and after having searched in vain for employment in the U.S., she had to expand her search and ... found a job at the European Commission in [Brussels] Belgium." Respondent objected to Petitioner’s request. In a second interim order dated June 2010, the court "[a]uthorized the mother to move to Brussels as long as she notifie[d] her husband at least 15 days before leaving France." The court ordered the children to remain in the primary physical custody of their mother. Petitioner and her children moved to Brussels in August 2010. In the French proceeding, Respondent raised numerous arguments as to why the court should award him physical custody of the children. Respondent never argued that Petitioner abused the children, physically or psychologically. One of Respondent’s principal arguments was Petitioner hid her intention to move to Brussels with the children "where she prevents him from seeing his children." The French court was unpersuaded and in its final decree found:

Ms. West did not hide anything and ... took the precaution of obtaining [the] court’s authorization before moving. Such authorization was given by the decision of June 2, 2010....* * * Mr. Dobrev does not prove that the mother prevented him from seeing his children.... [T]he exchange of emails between the spouses submitted as evidence took back [Mr. Dobrev’s] initial consent of having the children enrolled at the European School in Brussels, indicating that he had enrolled the children instead at a school in the United States, and threatened the mother to bring them back to the United States. The French court found upon all the facts presented that the divorce was the "exclusive fault of Mr. Dobrev," and "in the context of joint exercising of parental authority [i.e., joint custody] the usual home of the children must be maintained at their mother’s home." At no time did Respondent appear to have contested the French court’s jurisdiction to adjudicate the matter of the children’s custody. On July 24, 2012, four weeks after entry of the decree, Respondent waived his right to appeal, thereby finalizing the decree and terminating the French proceeding.

Prior to waiving his right to appeal, Respondent picked up the children on July 11 and brought them to the United States to vacation consistent with the terms of the final decree. The children were scheduled to return to Belgium on August 12, 2012, but did not return. Instead, on August 8, Respondent filed suit in Utah state court for "Emergency Jurisdiction and Custody." Respondent asked the state court to award him temporary custody of the children for the reason that if they were returned to their mother in Belgium "such a return would pose a grave risk of physical and psychological harm to each child or otherwise place each child in an intolerable situation, as contemplated by Article 13(b) of the Hague Convention." In his state suit, Respondent alleged for the first time that "[d]uring the years the parties were married and during the time [Ms. West] and the children lived in France and Belgium, [he] has been concerned about [her] treatment of the children."

 

On August 23, 2012 Petitioner petitioned the Utah federal district court for return of the children. Petitioner included with her petition a letter from the director of the children’s elementary school in Brussels containing favorable comments from the children’s teachers; the older child’s school records showing average or above average marks; and a letter from a neighbor tenant in Brussels containing favorable comments about the family. A few days prior, the State Department notified the Utah state court that Petitioner also had submitted an administrative application for return of the children pursuant to Article 8 of the Convention. That application stayed the state court proceeding pursuant to Article 16.

 

Respondent answered Petitioner’s federal suit by again disputing many of the facts found in the French court’s final decree. He denied he wrongfully retained the children from their residence in Belgium. Respondent again asserted, this time as an affirmative defense, that he properly retained the children under Article 13(b) of the Convention because they faced a grave risk of harm if returned to their mother. Respondent submitted a letter from a clinical psychologist whom he hired to interview the children after they reportedly expressed dissatisfaction with their current living arrangement in Belgium. According to the psychologist’s letter, Petitioner reportedly (1) had little time for the children, (2) disciplined the children by slapping them, pulling their hair, and spanking them, and (3) failed to provide them adequate medical or hygienic care. On one unspecified occasion, Petitioner reportedly pushed her daughter down after chasing and catching her. The letter concluded: "It is strongly suggested that the children’s current living situation be investigated and that the children continue to receive therapy." Respondent asked "the court to appoint an additional therapist to evaluate both the children and determine if there has been abuse and, if so, what kind, how serious, and does it justify retention."

 

Six days after the federal petition’s filing, the district court held a preliminary hearing during which it raised questions about the need for an evidentiary hearing. Respondent’s attorney told the court that the psychologist who had interviewed the children would not testify at an evidentiary hearing due to ethical considerations: "I would like to develop the case so I can present it to you, but I need another psychologist appointed and Ms. West directed to cooperate with that. That is the best way of finding out if there is not any abuse, because if she cooperates, and I am sure she is going to deny [the abuse], then we have [a psychologist] that is presenting here is what the children have said and here is what [Ms. West] said, and my opinion as a psychologist is there is abuse or there is not abuse. "

The district court expressed frustration with Respondent’s position: During the preliminary hearing the district court never stated it would hold an evidentiary hearing. And Respondent never suggested due process required an evidentiary hearing. Rather, Respondent claimed only that the evidence before the court was sufficient to warrant further inquiry. At one point the court stated: "Let me review what [the parties] have submitted and then decide whether there is enough to have a hearing on the matter of abuse." A week later the district court decided no evidentiary hearing was necessary. The court issued a brief written decision summarily granting the petition and ordering Respondent to "immediately" return the children to Petitioner "for their safe return with her to Belgium." The court identified the question presented as whether Respondent had shown as required by Article 13(b) of the Convention "a grave risk the children will be exposed to physical or psychological harm or otherwise be placed in an intolerable situation if they are returned to Belgium." The court answered "no." The court explained that, "even on its face," the evidence of abuse Respondent presented, in particular, the uncorroborated letter of the clinical psychologist (aside from his own allegations), "is far from demonstrating a ‘grave risk’ that a return to Belgium will expose the children to physical or psychological harm or otherwise place them in an intolerable situation." A few days later the court ordered Respondent to pay Petitioner’s fees, costs, and expenses pursuant to ICARA, 42 U.S .C. § 11607(b)(3).

 

The Tenth Circuit affirmed. It observed that consistent with the aims of the Convention, Article 11 of the Convention provides "[t]he judicial ... authorities of Contracting States shall act expeditiously in proceedings for the return of children." Article 18 adds the provisions of the Convention "do not limit the power of a judicial ... authority to order the return of the child at any time. This means a district court has a substantial degree of discretion in determining the procedures necessary to resolve a petition filed pursuant to the Convention and ICARA. Neither the Convention nor ICARA, nor any other law including the Due Process Clause, requires that discovery be allowed or that an evidentiary hearing be conducted" as a matter of right in cases arising under the Convention. If the circumstances warrant, both the Convention and ICARA provide the district court with "the authority to resolve these cases without resorting to a ... plenary evidentiary hearing."

On appeal, Respondent claimed he was denied due process because the district court provided him no opportunity to challenge its finding that Belgium was the "habitual residence" of the children. The Court of Appeals pointed out that at the preliminary hearing, however, Respondent never challenged any element of Petitioner’s prima facie case as alleged in her petition—although he had ample opportunity to do so. Perhaps this was because Respondent admitted in his response to the petition the Petitioner’s allegations established a prima facie case for return of the children. In ¶ 22, Petitioner alleged: At the time of the children’s wrongful removal and retention ... Petitioner was actually exercising custody rights within the meaning of Articles Three and Five of the Convention, in that she is the biological mother of the children and has exercised custody rights over her children since they were born, and she was awarded joint physical custody, joint legal custody, and primary physical custody of the children pursuant to the [French] Decree. Furthermore, the Children were habitually residents of Belgium within the meaning of Article 3 of the Convention since their move to Belgium in August 2010. Respondent "[a]dmit[s] the allegations of ¶ 22 of the petition except that the actions of Respondent are not wrongful but fully in accord with the provisions of Article 13(b) of the Convention." Thus, Respondent’s belated claim that he was entitled to an evidentiary hearing to challenge Petitioner’s prima face case was meritless.

The Tenth Circuit pointed out that because Petitioner alleged a prima facie case for return of the children under Article 3 of the Convention and Respondent did not deny those allegations, the burden shifted to him to establish one of the affirmative defenses or "narrow exceptions set forth in the Convention." The Court was concerned only with the exception contained in Article 13(b): A court is not bound to return a child wrongfully retained or removed if the respondent establishes "by clear and convincing evidence," 42 U.S.C. § 11603(e)(2)(A), that "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. "Grave risk" means the "potential harm to the child must be severe, and the level of risk and danger ... very high." Souratgar v. Lee, 720 F.3d 96, 103 (2d Cir.2013). The Court held that whatever one must show to establish a "grave risk" to a child under Article 13(b) Respondent did not make that showing before the district court "by clear and convincing evidence."

Haruno v Haruno, 2013 WL 5663070 (D.Nev.) [New Zealand] [Habitual Residence] [Consent]

In Haruno v Haruno, 2013 WL 5663070 (D.Nev.) Petitioner Toby Makoto Haruno ("Toby") sought to have his minor child, Jordan Haruno, returned to New Zealand from Las Vegas, Nevada. Toby and Jennifer were United States citizens and were married in the United States. They moved from Los Angeles, California to Wellington, New Zealand on approximately June 30, 2008. Although they had one-year visas, they renewed those visas each successive year. Toby was employed in New Zealand in the animation industry. Although over the years they discussed ultimately returning to the United States, they never took concrete steps to leave New Zealand. Jordan was born in Wellington, New Zealand on January 11, 2011. He was a United States citizen. Jordan lived his entire life in New Zealand, until December 8, 2012. On that date, Toby, Jennifer and Jordan took a long vacation trip to North America, having purchased round-trip tickets with a return flight to New Zealand from Vancouver on February 2, 2013. On February 1, 2013, Jennifer changed her flight arrangements so that, instead of returning to New Zealand, she and Jordan flew from Vancouver to Las Vegas, Nevada, where her parents lived. There was conflicting testimony about whether and to what extent Toby protested this change, but he did not prevent them from going to Las Vegas, and he helped them check in their luggage for the flight. Toby returned to New Zealand alone. After returning to New Zealand, Toby made repeated efforts to convince Jennifer to return to New Zealand. He continued to financially support Jennifer and Jordan in Las Vegas, and kept in regular contact with them via video and telephone connections. A few months later, Toby visited them in Las Vegas and discovered that Jennifer had contacted a lawyer in Las Vegas to obtain a divorce. Toby returned to New Zealand, contacted legal counsel, and initiated this proceeding. In the meantime, Jennifer filed a divorce proceeding in Las Vegas.

The district court granted the petition. It observed that a court determining whether a child was wrongfully removed must] answer a series of four questions: (1) When did the removal or retention at issue take place? (2) Immediately prior to the removal or retention, in which state was the child habitually resident? (3) Did the removal or retention breach the rights of custody attributed to the
petitioner under the law of the habitual residence? (4) Was the petitioner exercising those rights at the time of the removal or retention? Mozes v. Mazes, 239 F.3d 1067, 1070 (9th Cir.2001). It appeared that the removal evolved over the period February through June of 2013. The parties left New Zealand on December 8, 2012, with return tickets for February 2, 2013. On February 1, 2013, Jennifer changed her and Jordan's tickets and instead flew to Las Vegas, where they have remained. The evidence was overwhelming that New Zealand was the child's habitual residence before he was retained in the United States. Under New Zealand law, as a married father living with the child's mother, Toby had joint guardianship and custody of the child prior to Jennifer's retaining him in the United States. Jennifer's retention of the child in the United States interfered with Toby's custodial rights. Jennifer claimed that Toby worked excessive hours at his job, did not regularly participate in activities with the child, and thus was not exercising his rights. The evidence presented at the hearing proved that Toby was exercising his parental rights. Even though Toby may have worked long hours, he still interacted with the child, went to play groups with him, was involved in his life, and contributed to his care and upbringing until Jennifer retained him in the United States. Based on the foregoing, Toby had proven a cause of action for the return of the child to New Zealand.

Jennifer attempted to defend against the child's return to New Zealand by alleging that (a) Toby consented to or acquiesced in the child's remaining in the United States, and (b) returning the child presents a grave risk to his physical and emotional health.

Jennifer contended that Toby consented to allowing her to take the child to the United States. She claimed he did not protest when she changed their flight from Vancouver to Las Vegas, and that he helped them check in their bags at the airport. Even if true, such actions did not constitute consent to allow the child to permanently remain in the United States. Toby's actions thereafter proved that he did not consent to the permanent relocation of the child. Toby remained in regular contact with Jennifer and the child (through both video and telephone), and continually tried to convince them to return to New Zealand. He purchased return flight tickets for them (which Jennifer  ultimately canceled after coincidentally becoming injured the day before the flight). He traveled to Las Vegas to convince them to return.

Jennifer contended that the child would face grave risk of physical and emotional injury if he is returned to New Zealand. In support of that allegation, she pointed out that Toby was arrested and charged with domestic violence against Jennifer over two years before the child was born. Those charges were later dropped after Jennifer hired a lawyer to help her recant her allegations. Even if the allegations were true, they did not constitute a grave threat to the child. The injury occurred to Jennifer, and there were no reports of violence in the years thereafter. While Jennifer accused Toby of having a bad temper and being prone to angry outbursts, the evidence indicated that at most only once was it directed towards the child. The only episode involving the child occurred when Toby allegedly shook him once after becoming frustrated at having difficulty putting on his diaper. While this is not to be condoned, it apparently was not a "grave" event, as a few hours later Jennifer left the child in Toby's care so she could go out and party with her friends. Moreover, a single episode such as this does not constitute a grave threat of future violence to the child.

Avila v. Morales, 2013 WL 5499806 (D.Colo.) [Mexico] [Habitual Residence] [Telephone appearance]

In Avila v. Morales, 2013 WL 5499806 (D.Colo.) the district court adopted the recommendation of the Magistrate Judge and granted the petition for return. Petitioner sought an order returning her children to their place of habitual residence in Mexico. The Court held a hearing on June 19, 2013, at which the Petitioner appeared telephonically. Her attorney appeared in person. Respondent appeared in person and was also represented by counsel. Petitioner was a Mexican citizen residing in Durango, Mexico. Respondent was a Mexican citizen residing in Aurora, Colorado. The parties never married but had two children subject to this petition: A.G.E.M, an 11-year-old boy, and A.E.M., a 9-year-old boy. Both boys were born in Colorado and had Colorado birth certificates. Petitioner, Respondent and their two sons resided together from August 2000 until December 2004, when Petitioner and the boys moved out and lived with other family members from that point until April 2010. From December 2004 to April 2010, the children resided with Petitioner, and she parented them nearly exclusively.

In April 2010 Petitioner decided, upon the sudden death of her father in Durango, Mexico, to move to Mexico with the boys to take care of her mother. She called Respondent the night before she left to tell him she was leaving with the children the next day, on April 27, 2010. Respondent did not think this was a permanent move because on two prior occasions Petitioner had traveled to Mexico with their sons, returning both times. Respondent asked Petitioner not to take the children with her in 2010. Petitioner took them anyway, packing their belongings and moving to El Pueblito, Durango, Mexico, to live with Petitioner's mother. The children went to school in El Pueblito for two years. They were enrolled to start a third year there in the fall of 2012. They had integrated into the family, community, and church in Durango. The children had been baptized in Colorado but completed their communions and confirmations in Mexico. While the boys lived in Mexico during a period of two years and four months, Respondent communicated by phone with the children periodically and his family visited the children in Mexico six (6) times. Respondent also sent at least some money to Mexico to support the children. Respondent did not take any action through the courts to seek return of his children, nor did he seek their return in any manner in the two years and four months they were living in Mexico.

  Petitioner made plans for the children to visit Colorado for two weeks in the summer of 2012 before they were to return to Mexico for the school year. Before the boys traveled to the United States, Petitioner procured Mexican birth certificates from the Mexican government. Petitioner was able to do so because both of the children's parents are Mexican citizens. Petitioner intended her children to travel to the United States using their American birth certificates and return to Mexico using their Mexican birth certificates. Petitioner's mother, nephew, and three children traveled to the United States as planned in early August 2012. Just a few days into the visit, however, Petitioner decided that her mother and nephew should end the trip and return the children to Mexico. As the children and Petitioner's mother and nephew headed south from Denver through Colorado on a commercial bus on August 8, 2012, Respondent and his sister contacted the bus company to request the bus to be stopped, claiming people were taking Respondent's children illegally. The bus driver pulled the bus over and Respondent, his sister, and his girlfriend, all of whom had been following the bus, pulled behind it and waited a few minutes until the City of Pueblo police officer arrived, took the children off the bus, and gave them to Respondent. Respondent assured the children that he just wanted to continue their visit but would return them home to their mother in Mexico after the two-week visit. The day after taking the children off the bus, Respondent filed a petition for custody in Adams County District Court. The Adams County magistrate dismissed the case on September 13, 2012, for lack of jurisdiction. Respondent decided he would not allow the children to return to Mexico.

Petitioner filed on October 8, 2012, an application with the Mexican Central Authority seeking return of the boys from the United States. Petitioner on March 27, 2013, filed the now-pending Petition with the district Court. For its analysis, the Court applied the Tenth Circuit's procedural directives on handling Convention petitions. It observed that Courts have also made it clear that a parent cannot create a new settled purpose and therefore a new habitual residence simply by fleeing a country with a child in tow or retaining a child in his former habitual residence. Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir.1997) "In an attempt to untangle the Gordian knot the parents, together, have seen fit to tie," the court indicated, in discussing the parents' repeated efforts to help themselves outside legitimate legal channels through "grab-and-run" law, that it would "refuse to condone such conduct." Id. The Tenth Circuit in Ohlander addressed parents who had both filed petitions under the Hague Convention; thus, the court also provided specific details of the "proper interpretation of the Hague Convention's procedures." The court criticized and ultimately reversed the district court for "misconstru(ing) the Convention's contemplated procedures." "According to the Convention, once a petition is filed, a court should consider only whether respondent's removals of a child are wrongful." A court is to examine whether a respondent parent took the child wrongfully-not whether the petitioning parent did. Similarly, exceptions to return run only one way-a respondent asserts them, not a petitioner. Only when a cross petition is filed would bilateral analysis be appropriate. Petitioner asserted that the habitual residence was Mexico, where the children lived for two years and four months with the Respondent's eventual acquiescence. Respondent's primary theory of habitual residence relied on the children's birth and residence in the United States and Petitioner's removal of the children to Mexico without his permission or consent.

The Court found that the parents shared an intent that the children's habitual residence would be Mexico. This shared intent was sufficient for the Court to find that the parents had a "settled purpose" that the children's habitual residence would be Mexico. While the Court believed it likely that Respondent did not initially agree to such a move nor did he immediately know that Petitioner planned a permanent move, even his own testimony indicated he knew within weeks of Petitioner's intent to stay there. The Court found Respondent's testimony credible that he continued his involvement with the children once they moved to Mexico, that he called them regularly, and that he sent them money. However, these facts merely validated the argument that he knew where they were, knew they were integrating in school and the community, and yet still did not seek their return in any way. As in Mozes, the Court also considered the significant passage of time. Respondent allowed the children to stay in Mexico for two years and four months, which is long enough to create a "settled purpose" that this was the children's new habitual residence-if not by clear consent, then at least by clear acquiescence. Mozes, 239 F.3d at 1081. Similarly, Respondent's own testimony indicated that he knew the children were only coming to visit the United States for two weeks and that they would return home to Mexico to start the school year. Regardless of his reasons, the Court found that not unlike the grab-and-run parents in Feder and Ohlander, the Respondent utilized his own illegal version of grab-and-run law, taking matters into his own hands and running down a bus to wrongfully retain his children. He testified that he stopped the bus because he wanted his full two weeks of visitation, not to keep them permanently. Respondent's attempt to reestablish their U.S. habitual residence failed, because wrongfully retaining children for two months before their mother filed her Petition did not create a new "settled purpose" and change the habitual residence from Mexico. Respondent continued to assert that Petitioner was the initial abductor back in April 2010 when she left for Mexico. Even assuming the truth of this assertion, the Court found that the Respondent within the first year of their wrongful taking could have sought a legal remedy for their return. Importantly, he did not. He sought no legal remedy for their return, including failing to file his own Convention petition. As the Tenth Circuit clearly directed in Ohlander, this Court is to evaluate the current petition in only one direction: "whether the respondent's removals of a child are wrongful." Ohlander, 114 F.3d at 1540. The Court's consideration of "whether the petitioner's removals of the child were wrongful" would be "antithetic[al] to the Convention's intent as a whole." Therefore, Respondent's arguments concerning his efforts to regain his children, made years too late after the children had become well established in a new habitual residence to which he consented by his actions, and made without the required framework of a Convention petition, fell short. Thus, the court found that the habitual residence was Mexico.

The Court found that Mexican law, as outlined in the Civil Code for the State of Durango, Mexico, uses a concept called "patria potestas " ("parental authority/responsibility") to determine rights of custody. United States courts have determined that patria potestas creates rights of custody, not rights of access, and begins from birth. Whallon v. Lynn, 230 F.3d 450 (1st Cir.2000). The Court found that Petitioner had rights of custody under Mexican law as described in Whallon that far exceeded mere rights of access as described in Abbott, and that Respondent breached those rights by retaining the children in the United States. Petitioner enrolled the children in school, met their physical and religious needs, participated in their day-to-day lives, made decisions about their care, and lived with them as their primary caretaker until the August 2012 retention. The Court found that under the Convention, Petitioner's care of the children until their removal demonstrated her exercise of those rights of custody at the time of their retention in the United States. The Court determined that Petitioner met her burden, and that Respondent did not establish any exceptions. It granted her petition.

Haylock v. Ebanks, 2013 WL 5410463 (E.D.La.) [Honduras] Necessary Costs and Expenses]

In Haylock v. Ebanks, 2013 WL 5410463 (E.D.La.) the district judge made an order granting an award of reasonable attorney's fees to Plaintiff, Krisna Juliek Haycock, against Defendant, Carlos Rafael Ebanks, Jr., and referred the matter to a Magistrate Judge to determine the reasonableness of Plaintiff's fee application.

The Magistrate observed that the Supreme Court indicated that the "lodestar" calculation is the "most useful starting point" for determining the award of attorney's fees. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). After determining the lodestar, the court must then consider the applicability and weight of the twelve factors set forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974). The court can make upward or downward adjustments to the lodestar figure if the Johnson factors warrant such modifications. See Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir.1993). However, the lodestar should be modified only in exceptional cases. Id. (citing City of Burlington v. Dague, 505 U.S. 557, 562 (1992)). The fee application submitted by Haycock sought to recover fees from two attorneys who it claimed works on the case, Michael D. Conroy, who practiced in Covington, Louisiana, and Cesar Gonzalez Icaza, who practiced in Roatan Bay, Honduras. Stephen Conroy, Christie Marks, and Haycock submitted affidavits in support of this motion. The Court observed that attorney's fees must be calculated at the "prevailing market rates in the relevant community for similar services by attorneys of reasonably comparable skills, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 895 (1984). Such a request is reasonable if it falls within the "range" of reasonable fees awarded. See Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 328 (5th Cir.1995). The applicant bears the burden of producing satisfactory evidence that the requested rate is aligned with prevailing market rates. See NAACP v. City of Evergreen, 812 F.2d 1332, 1338 (11th Cir.1987). Satisfactory evidence of the reasonableness of the rate necessarily includes an affidavit of the attorney performing the work and information of rates actually billed and paid in similar lawsuits. Blum, 465 U.S. at 896 n. 11. However, mere testimony that a given fee is reasonable is not satisfactory evidence of a market rate. See Hensley, 461 U.S. at 439, n. 15.

No affidavit of a disinterested attorney in this matter who could have attested to Gonzalez's position or his prestige at his law firm was attached. Because the mere testimony that a given fee is reasonable is not satisfactory evidence of a market rate, the Court found Gonzalez's fee unreasonable, and unrecoverable. Ebanks did not oppose Conroy's proposed hourly rate of $250.00 per hour. Where an "attorney's rate ... is not contested, it is prima facie reasonable." La. Power & Light, 50 F.3d at 328. Conroy's verified report of attorney's fees also requested fees for Amanda D. Hogue, an attorney at "Conroy Law Firm, PLC" who was not enrolled in this matter. None of the affidavits provided that Ms. Hogue was an attorney in this case, or provided any other specific indication of the qualifications, experience, or any special skills Ms. Hogue had to determine whether or not her proposed rate of $125.00-$150.00 per hour was reasonable. Therefore, the reasonableness of the rates listed for Ms. Hogue were disallowed for failing to present evidence substantiating her background, education and experience. The Court found that the five hours Ms. Hogue billed was unrecoverable

Given the fact that Haycock submitted an itemized list of billable entries, as well as the fact that these entries were reasonably delineated, the Court conducted a line-by-line analysis of the bill in question to determine whether it is reasonable. It sorted Haycock's entries into the following categories: (a) vague entries, (b) irrelevant entries and (c) block billed entries. The Court awarded Conroy 50% of the total time requested in connection with the vague entries. The fee application submitted by Haycock contained a number of entries which were viewed as "block billing." This term can be defined as the time-keeping method by which an attorney lumps together the total daily time spent working on a case, rather than itemizing the time expended on specific tasks."This practice makes it impossible for the Court to determine the reasonableness of the hours spent on each task." While block billing creates impediments to the analysis of the attorney's fee bill, the Supreme Court has indicated that it is not a basis for refusing to award attorney's fees. Hensley, 461 U.S. at 437, n. 12. The method most often used to compensate for block billing is a flat reduction of a specific percentage from the award. The Court reduced the value of all block billed entries for block billed entries for Conroy by 30%.

Haycock requested reimbursement for the transportation costs, including airfare, hotel costs and travel expenses of Haycock and S.C.E Federal courts typically award successful ICARA petitioners "airfare incurred in traveling to and from the United States to appear in court."Paulus, at *4.See, e.g., Freier v. Freier, 985 F.Supp. 710, 714 (E.D.Mich.1997) (awarding $2,422.00 for Petitioner's round trip and minor child's one-way airfare); Guaragno v. Guaragno, No. 09-CV-187, 2010 WL 5564628, at *5 (N.D .Tex. Oct. 19, 2010), aff d, 2011 WL 108946 (N.D.Tex. Jan. 18, 2011). Furthermore, federal courts have also awarded expenses that were "reasonable and necessary" for a petitioner to participate in the ICARA proceeding and "pick up" the child. See e.g., id. See also 42 U.S.C. 11607(b)(3) (including "transportation costs related to the return of the child" among "necessary expenses incurred by or on behalf of the petitioner"); see Guaragno, 2010 WL 5564628, at *5 (N.D.Tex. Oct. 19, 2010), aff'd, 2011 WL 108946 (N.D.Tex. Jan. 18, 2011) (finding that the costs for two flights-one for trial and one for pickup of child-were "reasonable and necessarily incurred"); Salinier v. Moore, 2010 WL 3515699, at *4 (D.Colo. Sept., 1, 2010) (finding that travel and lodging expenses for petitioner's parents is clearly inappropriate, but that costs associated with Petitioner's wife's travel, including travel and lodging expenses, who also testified at the hearing, was appropriate). The Court found the appropriate award for transportation costs as it pertains to Haycock and S.C.E., totaled $4,079.32. Haycock sought reimbursement for Tammy Haycock Moore's flight from New Orleans Louisiana, to Orlando, Florida, to accompany S.C.E., as Haycock herself was unable to travel to obtain the child. Ebanks argued that this expense was unnecessary, as the child was being "released to her local attorney, Mr. Conroy, from the child's school," and Tammy was not required to facilitate the transportation. A petitioner may be awarded reasonable expenses that are necessary to facilitate the return of the child after an ICARA proceeding, unless the opposing party can establish that such award would be "clearly inappropriate." 42 U.S.C. s 11607(b)(3); Guaragno, at *5; Freier, 985 F.Supp. at 714. Although Ebanks argued that reimbursing Tammy's transportation costs were unreasonable and unnecessary, Courts have awarded expenses to the parent or relative facilitating the transportation or return of the child. Paulus, at *4;see, e.g., Freier, 985 F.Supp. at 714;Guaragno, at *5. 42 U.S.C. s 11607(b)(3) (including "transportation costs related to the return of the child" among "necessary expenses incurred by or on behalf of the petitioner"); see Aldinger, 157 Fed. App'x 317, 2005 WL 3116540; Neves v. Neves, 637 F.Supp.2d 322 (W.D.N.C.2009); Guaragno, 2010 WL 5564628, at *5 (N.D.Tex. Oct. 19, 2010), aff'd, 2011 WL 108946 (N.D.Tex. Jan. 18, 2011) (finding that the costs for two flights-one for trial and one for pickup of child-were "reasonable and necessarily incurred"). Ebanks failed to establish that this expense is clearly inappropriate. The Court found that reimbursement for Tammy's travel expenses of $557.80, as documented, was granted.

Haycock sought to recover approximately $787.41 in airfare costs, $1,121.54 for hotel, food and other travel expenses associated with the trip Cesar Gonzalez made to New Orleans for the ICARA bench trial. Haycock also sought to recover approximately $1,343.00 in fees associated with the "Hague Trip to Guanaya, Bay Islands" for interviews associated with Gonzalez and "Nilla Ramos" a Hague Attorney, "Geraldina" a psychologist and "Silvia" a social worker. Ebanks opposed reimbursement of the Hague Trip Interviews, and for Gonzalez's expenses related to food, gas and hotel stay during his stay in New Orleans for the failure to provide adequate documentation. The Court found that the airfare of Gonzalez, as evidenced by the receipt attached to the motion for $739.70 was recoverable. Similar to Distler v. Distler, attorneys fees and costs were recoverable to foreign counsel who was not Plaintiff's trial attorney in the United States because the foreign counsel had helped to facilitate the return of the child under the ICARA and similar to Gonzalez, had provided legal advice and attested to Petitioner's rights under the Hague Convention. See Distler, 26 F.Supp.2d 723, 728 (D.C.N.J.1998); see also Grimer v. Grimer, No. 93-4086-DES, 1993 WL 545261 (D.Kan. Dec. 8, 1998).

Skolnick v. Wainer, (Cite as: 2013 WL 5329112 (E.D.N.Y.)) [Singapore] [Federal & State Judicial Remedies] [Jurisdiction][Venue]

In Skolnick v. Wainer, (Cite as: 2013 WL 5329112 (E.D.N.Y.)) Fred Jay Skolnick commenced an action on August 21, 2013, for the return of his five children from Singapore by respondent, Andrea Wainer, his wife, claiming that the removal violated the Hague Convention. Petitioner asserted that the Court had jurisdiction pursuant to 42 U.S.C. 11603(a) and (b), since "Petitioner and Respondent jointly own residential property in this judicial district and ... the children that are the subject of this action were transported into the United States through airports located in ... Queens, New York." At a conference on September 3, 2013, the Court reiterated concern that the action was not properly brought in this district in light of evidence that the children had been residing in Connecticut since before the commencement of the action. Respondent moved for a change of venue. Petitioner filed a letter motion to change venue. It appeared that both sides agreed to transfer the action.

The court observed that Congress enacted ICARA to establish procedures for implementation of the Convention in the United States. ICARA provides that a "person seeking to initiate judicial proceedings under the Convention for the return of a child... may ... commenc [e] a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed." 42 U.S.C. § 11603(b). "Located" under ICARA does not require a showing of residency but contemplates the place where the abducted children are discovered. See Lops v. Lops, 140 F.3d 927, 937 (11th Cir.1998) (interpreting 42 U.S.C. s 11603(b)). In applying this clause federal courts have dismissed ICARA petitions where children were not located in the jurisdiction of the court at the time the petition was filed. See, e.g., Olangues v. Kousharian, 177 Fed. App'x 537, 538 (9th Cir.2006) (determining that the district properly dismissed an ICARA claim for lack of jurisdiction because the children were not within that district at the time the petition was filed); Diorinou v. Mezitis, 132 F.Supp.2d 139, 145-46 (S.D.N.Y.2000) (confirming its prior conclusion that the district court had no jurisdiction over the ICARA petition because the child was not in the jurisdiction at the time the petition was filed); see also Espinoza v. Mattoon, 2009 WL 1919297 (W.D. Wash. June 30, 2009) (sua sponte dismissing, for lack of subject matter jurisdiction, an ICARA petition brought in a jurisdiction where the child was not located). Although these courts treated the dismissal under 42 USC § 11603(b) to be "jurisdictional" in nature, some have referred to the provision as concerning venue. See, e.g., Saldivar v. Rodela, 879 F.Supp.2d 601, 613 (W.D.Tex.2012) (interpreting § 11603(b) to be a venue provision, and finding that venue was proper where the child was located in the district when the petition was filed"); East Sussex Children Servs. v. Morris, No. 12-cv-141, 2013 WL 704660, at *1 (N.D.W.Va. Feb. 27, 2013) ("Venue is appropriate because ICARA provides that a Hague Convention petitioner can bring [such an] action only in the place where the child is located.").

The Court observed that the Second Circuit has not addressed the issue of whether the requirements in §11603(b) implicates jurisdictional or venue concerns. It held that it did not have to resolve this issue in light of the general agreement of both parties to continue the litigation in Connecticut. District courts may, in cases where they lack subject matter or personal jurisdiction, or proper venue, transfer a case "in the interest of justice." (See 28 U.S.C. ss 1404, 1406, 1631). Both parties consented to transferring the action to the District of Connecticut, and no evidence had been presented demonstrating that the children were in the Eastern District of New York when the petition was filed. Given the importance of speedy adjudication of the claim in this action and the consent of both parties to the transfer to a court authorized to hear the case, the Court found that transfer to the District of Connecticut was in the interests of justice, without deciding whether § 11603(b) refers to jurisdiction or venue, and ordered that the action was transferred to the District of Connecticut.

Gee v Hendroffe, 2013 WL 5375294 (D.Nev.) [South Africa] [Federal & State Judicial Remedies] [Jurisdiction] [Venue]

In Gee v Hendroffe, 2013 WL 5375294 (D.Nev.) Petitioner filed his Petition for return of Children and Motion Warrant in Lieu of Habeas Corpus in the United States District Court for the District of Nevada on August 30, 2013. The court scheduled a hearing for September 4, 2013. At the hearing on September 4, 2013, the Court raised the issue of whether it had subject matter jurisdiction over this litigation. The Court ordered Petitioner to meet his burden of establishing jurisdiction and ordered Respondent to provide her airline ticket or other evidence to her Nevada attorney, which indicated when she left Las Vegas, Nevada, for Malaysia.

Respondent filed a Motion for Dismissal in which she stated that she was not served with the Petition until September 4, 2013, and that she and the children left the state of Nevada on August 27, 2013, and left the United States on August 31, 2013. Respondent attached an email from Petitioner's counsel's office which informed her of the September 4, 2013, hearing and provided her with a copy of the Petition as well as this Court's order setting the hearing. Respondent also attached a debit card statement for a card which was used in California as early as August 27, 2013, and copies of the airline tickets she and the two children used to fly from Los Angeles, California to Malaysia on August 31, 2013.

Shortly after Respondent filed her motion on September 5, 2013, Petitioner filed a Motion Under Hague Convention for Entry of a Temporary Restraining Order and a  UCCJEA Warrant. Attached to his motion was an Affidavit signed by Respondent and notarized in Las Vegas, Nevada at 10:30 a.m. on August 30, 2013. On September 6, 2013, prior to the hearing, Respondent filed a Declaration of Yasmin Acevedo, a friend of Respondent since 2011, who lived in Las Vegas. According to the Declaration, Ms. Acevedo accompanied Respondent and the two children to California on August 27, 2013, where they visited some family friends and local attractions. Thereafter, Ms. Acevedo represented, on August 30, 2013, Respondent returned to Las Vegas to attend to some legal matters while she and the children stayed in California. Ms. Acevedo concluded that she accompanied Respondent and the Children to the airport for their departure to Malaysia.

The Court set an evidentiary hearing concerning jurisdiction for October 8, 2013, and ordered all parties, including the children, present in person at the hearing.

The district court pointed out that any person seeking to initiate judicial proceedings under the Convention for the return of a child or for arrangements for organizing or securing the effective exercise of rights of access to a child may do so by commencing a civil action by filing a petition for the relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed. 42 U.S.C.A. § 11603.

The Ninth Circuit has recognized, "located" has a particular meaning in the context of ICARA, distinct from "a traditional residency test." Holder v. Holder,305 F.3d 854, 869 (9th Cir.2002) n. 5; citing Lops v. Lops, 140 F.3d 927, 937 (11th Cir.1998). It means "the place where the abducted children are discovered," and is more equivalent to the concept of physical presence. Here, the evidence showed that once Petitioner discovered that the Children were in Las Vegas, and that Respondent likely did not intend to return to South Africa with the children, he promptly filed his petition for return of the children. Under the Holder/Lops common sense definition of "located" and in light of the Convention's purpose of providing an "expeditious avenue" for seeking return of
children, this was sufficient to establish jurisdiction. Respondent's contention that the children were in California with Ms. Acevedo on or around August 27, 2013, was irrelevant because Petitioner had no knowledge of that alleged trip, the children were discovered in Las Vegas, and by Respondents own admission, the children had been located in Las Vegas from July 11 until at least August 27. Further, the Court found that Respondent's argument that the children were in California was not credible. The debit card statements provided by Respondent had no name attached to the card and the affidavit of Ms. Acevedo did not come until after Petitioner provided proof that Respondent was in Nevada on August 30, 2013. Additionally, the legal documents that Respondent signed and notarized in Law Vegas on August 30, 2013, were documents for an Australian legal action, and could have been signed and notarized in California as well. The Court found that the evidence showed that the children were located in Nevada at the time the Petition was filed. Accordingly, the Court found that it had jurisdiction over this matter.

Caro v Sanchez, 2013 WL 5300671 (D.N.J.) [Spain] [Consent] [Petition Denied]

[Spain] [Consent] [Petition Denied]

In Caro v Sanchez, 2013 WL 5300671 (D.N.J.) [Not for Publication] Petitioner Antonio Osuna Caro and Respondent Beruzka Mesa Sanchez were married in 2007 in Sevilla, Spain. Their daughter was born in 2008. Both parents were still married and shared custody of the Child under Spanish law. The family lived together in Sevilla until the fall of 2011. On September 30, 2011, Ms. Sanchez and the Child traveled to New Jersey and resided there since that date.

Caro alleged in his Petition that the purpose of the trip was to allow Sanchez a short-term visit with her seriously ill mother. Caro states that he believed Sanchez and the Child would return to Spain in October 2011, but that the return date was extended

by his wife because her mother was still ill. On September 17, 2012, Caro filed an Application for Return of the Child with the Ministry of Justice in Spain, which triggered the U.S. State Department to send a Voluntary Return Letter dated November 29, 2012 to Sanchez, asking her to "consider voluntarily agreeing to return the child to Spain in order to avoid the applicant's initiation of legal proceedings in the United States under the Hague Convention."Sanchez allegedly did not respond. This Petition for Return of the Child to Spain was filed on May 31, 2013.

Sanchez's submitted undisputedly authentic documents to support her factual averrals. She averred that she and her husband jointly decided to move to the United States with the Child. Acting on that plan, in May 2011, Mr. Caro filed an application seeking authorization to travel to the United States under the Visa Extension Program, which would enable him to stay for an extended duration in this country. In September 2011, Sanchez and the Child traveled to New Jersey as "the initial step
of relocation for the family." The family began investigating the possibility of purchasing a house in New Jersey. This fact was supported by a letter from the Realtor with whom they both met to search for a home to buy, as well as financial documents submitted by Caro to be used to qualify for a mortgage to buy real estate in New Jersey. When Caro visited New Jersey in December 2011, he brought along the family dog to live here. Ms. Sanchez averred that while her husband was in the United States on that trip, they jointly continued their search for a house. In mid-2012, Sanchez became employed in New Jersey, rented an apartment with her mother, and enrolled the Child in a Head Start Program. In December 2012, Sanchez received the Voluntary Return Letter from the U.S. State Department. When Sanchez asked Caro about the letter, he said he had requested the letter so as not to lose custody of the Child. In January 2013, Caro again visited Sanchez and the Child in New Jersey.

Sanchez filed a complaint for custody and child support in New Jersey Superior Court on February 1, 2013. On April 27, 2013, Caro sent Sanchez a letter describing his frustration in his job search for a foreign position (he was a Spanish attorney) saying: ... I don't have good news. I've finally been able to speak to someone in charge of the Ministry of Foreign Affairs. They are not going to give me, not even one of the posts/jobs I've applied for at the Embassies and Consulates. The reason is a technical problem that makes no sense explaining it now. There are still other possibilities; but they are more remote. I have to make some contacts with other organizations. I am not going to give up. I will find some alternative. But it is true that the plan for us to go live in another country seems that it will not be possible at this time. One month later, Caro filed the Petition, claiming that his Child had been abducted. Sanchez states that Caro filed the Petition because he realized he would not be able to easily find employment and join the family in the United States. He did, however, in the letter a mere month before claiming child abduction, state that he was continuing to persevere in that job search. 

Caro filed the Petition for Return of the Child on May 31, 2013. He disclosed almost none of the above facts. He initially sought, and was granted temporary restraints based upon his ex parte submissions. However, those were vacated after Caro failed to effect timely service of the Petition in accordance with the Court's Order.  The Petition by Mr. Caro alleged that Ms. Sanchez wrongfully retained the Child in New Jersey. Sanchez did not contest that Caro had custody rights over the child, and that he continued to exercise those rights. Caro claimed that the child was wrongfully retained in New Jersey after a trip from Spain to New Jersey to visit her mother which Caro claimed was intended to be of short duration, while Sanchez has submitted contemporaneous unrefuted documentation showing that the shared intention of the parties when she and the Child left Spain was to establish a new family residence in the United States. Even the family dog relocated here. In light of the documentary evidence presented by Sanchez, Caro's sworn statement that he did not intend for the Child to move to the United States was not credible. The Court found that at the time the Child traveled to the United States in the fall of 2011, both of her parents intended that she move to the United States. Caro and Sanchez jointly searched for a house and relocated the family dog to New Jersey. Caro's affidavit to the contrary was belied by his own heartsick letter, in which he acknowledged the family's plan to relocate away from Spain. There had been no wrongful retention. As of September 30, 2011, the Child's habitual residence had been in the United States. Caro could not unilaterally change the agreement for the Child to move to this country because he was unsatisfied with his job search and wished to alter the joint plan to relocate here.

Once the Court reviewed the papers, in light of Caro's inability to proffer any genuine evidence to meet his burden to prove wrongful retention, it became clear that there was no need for an oral evidentiary hearing to supplement the documentary evidentiary hearing that the Court conducted. The Petition For Return of the Child to Spain was denied.

Matter of S.E.O. and Y.O., 2013 WL 4564746 (S.D.N.Y.)) [Turkey] [Costs and Expenses] [Clearly Inappropriate]

In Matter of S.E.O. and Y.O., 2013 WL 4564746 (S.D.N.Y.)) Nurettin Ozaltin filed a Petition seeking the return of his two minor children, S.E.O. and Y.O., to Turkey, and the enforcement of court-ordered visitation so long as the children remained in the United States. After a hearing the district court granted the Father's Petition and directed the Mother to return the children to Turkey. The Court also held that, because it was granting the Father's Petition, "[the Mother] will be required to pay any necessary costs [the Father] incurred in connection with [the] action." On appeal, the Second Circuit affirmed the Court's decision ordering the return of the children to Turkey but vacated the order insofar as it determined that the Mother would be required to pay "any necessary costs," and remanded the action for further proceedings. See Ozaltin v. Ozaltin, 708 F.3d 355 (2d Cir.2013). On the Father's renewed application for costs the court denied his application.

In its Ozaltin decision, the Second Circuit clarified that "a prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of  equitable principles by the district court," directing lower courts to the equitable standards developed under the Copyright Act's discretionary fee award provision. The district court held that in applying this standard, the district court "must exercise its equitable discretion, balancing a variety [of] factors, including frivolousness, motivation, objective unreasonableness (both in factual and in the legal components of the case) and the need in particular circumstances to advance considerations of compensation and  deterrence." (citing Psihoyos v. John Wiley & Sons, Inc., No. 11 Civ. 1416, 2013 WL 1285153, at *2 (S.D.N.Y. Mar. 29, 2013) (citing Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994)). The district court noted that in vacating its earlier award of "any necessary costs [that the Father] incurred in connection with this action," the Second Circuit found that the Mother had maintained an objectively reasonable legal position throughout the case, and also noted concerns that, by bringing an action in this Court rather than before a Turkish court, the Father may have been forum-shopping, contrary to the purpose of the Hague Convention. Ozaltin, 708 F .3d at 375. The Second Circuit concluded that "it would be clearly inappropriate to award all necessary expenses associated with the Father's action under the Hague Convention."

In light of what it perceived to be the standards articulated in the Second Circuit opinion, the district Court determined that an award of costs to the father was "clearly inappropriate" because the mother had a reasonable basis for removing the children to the United States, and the Father appeared to have engaged in forum-shopping by filing a Hague Convention petition in this district rather than seeking a custody determination from a Turkish Court. In light of this conclusion, the Court did not address the parties' arguments as to their respective financial situations, or the adequacy of the Father's documentation of his expenses.

The district court noted that the Second Circuit found that a series of Turkish court orders implying that the children could live with the Mother in the United States gave the Mother "a reasonable basis for thinking at the time of removing the children to the United States in 2011 that her actions were consistent with Turkish law." Ozaltin, 708 F.3d at 375. After reviewing the various Turkish Court orders, the Court found that the Mother had a reasonable basis for believing that she could remove the children from Turkey and that, although such a mistake of law was not a defense to the return action itself, it is "a relevant equitable factor when considering whether a costs award is
appropriate." See Ozaltin, 708 F.3d at 375-76. The district court also observed that the Second Circuit pointed out its concerns that, by bringing an action in the district Court, the Father may have been forum-shopping, contrary to the purpose of the Hague Convention. In the summer of 2011, during the children's temporary return to Turkey, the Father filed a petition with the Turkish Ministry of Justice to bar the Mother from removing the children from the country. The Ministry responded that, because the children were then in Turkey, no other procedure could be carried out in accordance with the Hague Convention. Ozaltin, 708 F.3d at 376. The Ministry instead directed the Father to make an application to the relevant Turkish court to "take the necessary measures to prevent the residential address of the children [from] be[ing] change[d]."Rather than applying to the Turkish Court for such an order however, the Father waited until the children left Turkey and then filed the Hague petition. After the district Court granted the Father's return petition, the Father returned to the Turkish Court and argued that this Court's order precluded the return of the children to the United States, despite the fact that the order clearly stated that it did not resolve the underlying custody dispute between the parties. The Court found that, unlike the Mother, who "has consistently submitted to the jurisdiction of Turkish courts with respect to all divorce and child-custody matters," the Father appeared to have engaged in forum-shopping by filing a Hague Convention petition in this district rather than seeking a custody determination from a Turkish Court as recommended by the Turkish Ministry of Justice in 2011. See Ozaltin, 708 F.3d at 376. Given the equitable nature of cost awards, the Court concluded that the Mother had met her burden of establishing that awarding any costs to the Father would be clearly inappropriate.

Yaman v. Yaman, --- F.3d ----, 2013 WL 4827587 (C.A.1 (N.H.)) [Turkey] [Now Settled][Equitable Tolling][Guardian Ad Litem]

In Yaman v. Yaman, --- F.3d ----, 2013 WL 4827587 (C.A.1 (N.H.)) the district court denied the petition of Ismail Ozgur Yaman ("Yaman") for return of his two daughters, E.Y., now 10, and K.Y., now 11, to Turkey, pursuant to the Hague Convention. There was no question that the habitual residence of the children was Turkey, that Yaman had been given custody of the children by the Turkish courts, that their American mother, Linda Margherita Yaman, a/k/a Linda Margherita Polizzi ("Polizzi"), wrongfully removed the children in 2007 and then hid them, and that this prevented Yaman from locating them and filing his petition for return until he recently found them. The First Circuit affirmed. It held that the Convention does not allow a federal district court to toll equitably the one-year period that must elapse before a parent can assert the "now settled" defense. The First Circuit also held that the Convention does not prevent the district court from ordering the return of "now settled" children, and the court erred in holding otherwise. The court, at that point, should analyze the return question under principles of equity consistent with the Convention's purposes, an analysis it undertook in its alternative holding.

On June 12, 2012, Yaman filed a petition in the District Court for the District of New Hampshire, requesting an order to return the two children to Turkey. Yaman also requested provisional remedies to ensure that both Polizzi and the two children remained in New Hampshire throughout the course of the proceedings. On June 15, 2012, the district court ordered provisional remedies and appointed a guardian ad litem to issue a report on the two children's behalf. One month before the court's scheduled evidentiary hearing, Yaman filed a motion to preclude Polizzi from asserting the affirmative "now settled" defense under Article 12 of the Convention. Yaman argued that Polizzi "should not be permitted to avail herself of t[hat] defense where she has, for years, actively and egregiously attempted to evade legal proceedings." The district court denied the motion. Yaman v. Yaman, 919 F.Supp.2d 189, 198 (D.N.H.2013). In an order dated January 28, 2013, the district court explained that neither the text nor the drafting history of the Convention supported the argument that Article 12's one-year period was subject to equitable tolling. Moreover, the district court observed, the Executive Branch had taken the position that equitable tolling does not apply. The district court noted that the judicial decisions of other signatory nations supported the proposition that Article 12's "now settled" defense does not equitably toll.

On January 22, 2013, the district court commenced a three-day bench trial, which included evening hearings. The court heard testimony from the mother about how settled the children were in the community, their friendships, their schooling, and her concealment of their location, among other things. The court also heard testimony from the guardian ad litem for the children, who testified that his interviews with their teachers showed no red flags, and that other witnesses confirmed that the children were assimilating well. The guardian ad litem, after a thoughtful explanation, concluded the children were unable to provide a mature judgment about where they should live. The court also considered the guardian ad litem's formal report and those of experts concerning each of the children. The district court denied Yaman's petition after trial. Yaman had made out his prima facie case for return, with Polizzi conceding both that she had removed the children in violation of Yaman's custody rights and that the children were habitually resident in Turkey immediately before they were removed. See Convention, art. 3. The district court also found that Polizzi had concealed the children after removal, and that Yaman had been diligent in his efforts to assert his rights under the Convention. The district court nevertheless denied the petition for return. The district court rejected Polizzi's argument that, pursuant to Article 13 of the Convention, return should be refused because it would pose a "grave risk" of harm to the children. The district court concluded that, in its best judgment, Polizzi's actions were ones of a "concerned but misguided mother." The district court found that the children were "now settled," applying the totality of the circumstances test articulated by the Ninth Circuit in Duarte, 526 F.3d at 576. The district court assigned particular weight to the guardian ad litem's testimony and report, describing it as "the best evidence on this point." Having found that the children were "now settled," the district court went on to hold that, in light of this finding, it lacked discretion to order the children's return under the language of Article 12. The court went on to hold in the alternative that, even if it did have authority to order the return of a child "now settled," it would not exercise that authority here. The district court articulated various considerations in favor of return, including the interest in a child's being "reunited with the parent ... from whom [she] w[as] wrongfully removed," the interest in "effectively punish[ing]" Polizzi, and the interest in "deter[ring] future clever abductors." On the other hand, the district court observed, the two children were of such ages that "attachments in a community [we]re particularly important," remarking "[t]he settlement issue would not be nearly so big in my mind if they were 14 or 15 or if they were three and five." Moreover, the district court noted, although Polizzi had made efforts to conceal the children's location, it "s[aw] very little evidence that she did anything that would be damaging to the ... children's psyche." This was consistent with the district court's more general observation that Polizzi had "acted under a mistaken but well-intentioned belief" regarding the safety of the children. The district court stated that punishing the mother would have, at best, a "very limited" deterrent effect.

The Fist Circuit rejected Yaman’s argument that the one-year period that triggers the availability of Article 12's "now settled" defense is subject to equitable tolling. If found no support in the text of the Convention for that interpretation, nor did it gain support from any extratextual source of evidence. The text of Article 12 does not address equitable tolling explicitly. It does, however, suggest that equitable tolling does not apply. It noted that Article 12 does not use a trigger such as "the date the petitioning parent discovered or could have reasonably discovered the child's location." See Lozano, 697 F.3d at 51 n. 8 ("It would have been a simple matter, if the state parties to the Convention wished to take account of the possibility that an abducting parent might make it difficult for the petitioning parent to discover the child's whereabouts, to run the period ‘from the date that the petitioning parent learned [or, could reasonably have learned] of the child's whereabouts.’ But the drafters did not adopt such language." From the text, it was clear Article 12's one-year period does not operate as a statute of limitations. As the Second Circuit observed in Lozano: Unlike a statute of limitations prohibiting a parent from filing a return petition after a year has expired, the settled defense merely permits courts to consider the interests of a child who has been in a new environment for more than a year before ordering that child to be returned to her country of habitual residency. 697 F.3d at 52.



Article 12's drafting history further supported the conclusion that the one-year period was not subject to equitable tolling. Courts of other signatory nations have most commonly held that equitable tolling does not apply to the one- year period that triggers the availability of the "now settled" defense. It note that in its carefully reasoned opinion in Lozano, as described, the Second Circuit held that Article 12's one-year period is not subject to equitable tolling. 697 F.3d at 50–55. By contrast, in Furnes v. Reeves, 362 F.3d 702, 723–24 (11th Cir.2004), the Eleventh Circuit considered the one-year period to be a statute of limitations. In Duarte v. Bardales, 526 F.3d 563, 570 (9th Cir.2008), the Ninth Circuit, too, considered the one-year period as a statute of limitations. The Court joined the Second Circuit's views.

The First Circuit agreed with Yaman that the district court erred when it concluded that it lacked authority to order the return of a child found to be "now settled." This conclusion was not supported by the Convention's text or history, and was contrary to the view of the Executive Branch and the views of the other circuits. See Blondin v. Dubois, 238 F.3d 153, 164 (2d Cir.2001) (recognizing discretionary authority to return "now settled" child); see also Asvesta v. Petroutsas, 580 F.3d 1000, 1004 (9th Cir.2009) (recognizing discretionary authority to return child even if one of Convention's affirmative defenses is established); Miller v. Miller, 240 F.3d 392, 402 (4th Cir.2001) (same); Friedrich v. Friedrich, 78 F.3d 1060, 1067 (6th Cir.1996) (same); Feder v. Evans–Feder, 63 F.3d 217, 226 (3d Cir .1995) (same). It pointed out that the Second Circuit concluded in Blondin, Article 12 "allows—but does not, of course, require—a judicial or administrative authority to refuse to order the repatriation of a child" just on the basis of settledness. 238 F.3d at 164. In reaching that conclusion, the Second Circuit treated the language of Article 12 as plainly permissive.

The First Circuit added that the language of Article 18 of the Convention reinforced its reading. According to Article 18, "[t]he provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time." Convention, art. 18. Polizzi argued that Article 18 merely serves to clarify that the Convention does not limit whatever power to return an authority might have under other laws. Even if this reading of Article 18 were correct—a point it did not decide—the other powers not limited by Article 18 include the power to order the return of a settled child. It found that power reasonably implicit in both Article 12 and Congress' grant to federal courts of jurisdiction over Hague Convention actions, which it presumed was enacted with awareness of the broad equitable powers that those courts customarily enjoy. A federal court has the more limited authority to order the return of a child who was "wrongfully removed or retained" despite her being "now settled." Courts of other signatory nations have held that the Convention confers upon a court the authority to weigh considerations such as concealment when determining whether to order the return of a child "now settled."

While no other circuit has addressed the "now settled" defense in particular, numerous circuits accept the general proposition that "courts retain the discretion to order return even if one of the [Convention's] exceptions is proven." Feder, 63 F.3d at 226; Miller, 240 F.3d at 402 (quoting Feder ); accord Friedrich, 78 F.3d at 1067 ("[A] federal court retains, and should use when appropriate, the discretion to return a child, despite the existence of a defense, if return would further the aims of the
Convention."); Asvesta, 580 F.3d at 1004 (quoting Friedrich ).

The First Circuit held that the district court erred in finding it had no authority to order the return of a child found to be "now settled." It found that that Article 12 affords the court discretion to dispense with the "settled" inquiry— which can involve a fact-intensive inquiry into the child's living situation—when the court concludes that the circumstances justify ordering return regardless of the outcome of the settlement inquiry. For instance, the conduct of the concealing parent might be so extreme that return is called for irrespective of other circumstances. That authority is underscored by Article 18, which provides that "[t]he provisions of this Chapter [enumerating exceptions] do not limit the power of a judicial or administrative authority to order the return of the child at any time."

Murphy v. Sloan, ,2013 WL 4725120 (N.D. California) [Ireland] [Temporary Restraining Order]

 

          In Murphy v. Sloan, ,2013 WL 4725120 (N.D. California) Petitioner Elaine Mary Murphy's Ex Parte filed an Application for a Temporary Restraining Order enjoining Respondent William Milligan Sloan from removing their minor child from the jurisdiction of this Court pursuant to the Hague Convention on the Civil Aspects of International Child. The district court granted the application. According to the Petitioner's Verified Complaint and Petition for Return. Petitioner, a citizen of Ireland, sought the return of her eight-year-old daughter, E.. Petitioner and Respondent married and lived together in California in 2000. Their child, E., was born in 2005, during the marriage. In April 2010, Petitioner moved to Ireland with E., with Respondent's consent. Petitioner and E returned to the United States twice during the summer of 2010 before returning to Ireland so E. could start school in Kinsale, County Cork, Ireland.  Respondent resided, and continued to reside, in Marin County, California. He filed for divorce in Marin County Superior Court on October 25, 2010, That action was pending. E attended school in Ireland for the 2010, 2011, and 2012 scholastic years.  According to Petitioner, E. spoke Gaelic, and considered Ireland her home. E. had previously visited Respondent in the United States in 2010, 2011, 2012 and Easter 2013. On June 12, 2013, Respondent arrived in Kinsale to pick up E. for a summer vacation in the United States. On June 16, 2013, E. left Kinsale, County Cork, Ireland with Respondent for a summer visit to the United States. On June 21, 2013, over the phone from the United States, Respondent revealed to Petitioner that he did not intend to return E. to Ireland. 

The district court observed that a court exercising jurisdiction under ICARA “may take or cause to be taken measures under Federal or State law, as appropriate, to protect the well-being of the child involved or to prevent the child's further removal or concealment before the final disposition of the petition.” 42 U.S.C. § 11604(a). That authority extends to issuing an ex parte temporary restraining order where the requirements of Federal Rule of Civil Procedure 65(b) are satisfied. Under Rule 65(b), a party seeking a temporary restraining order 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 (2008). The court found that Petitioner satisfied each element. Petitioner  adequately established a likelihood of success on the merits by making a prima facie showing that E. is under sixteen years of age, that her habitual residence is in Ireland, that E. was removed from Ireland in breach of Petitioner's custodial rights, which rights Petitioner would have exercised but for the removal.

 

          The Court found that there was no reasonable likelihood of harm to Respondent from being wrongfully enjoined, and therefore ordered that Petitioner was not required to give security pursuant to Federal Rule of Civil Procedure 65(c). It directed Respondent to show cause why he should not be prohibited from removing the child from the Court's jurisdiction until the proceeding was concluded; to show cause why the relief requested in the Verified Complaint and Petition should not be granted and directed him to produce E.'s passports and any other identification and/or travel documents and to deposit them with the Court for safekeeping until the proceeding was concluded.

Biel v. Bekmukhamedova, --- F.Supp.2d ---- 2013 WL 4574161 (E.D. Louisiana.) [Luxembourg] [Younger and Colorado River Abstention]

In Biel v. Bekmukhamedova, --- F.Supp.2d ---- 2013 WL 4574161 (E.D. Louisiana.) Plaintiff Pierre Biel filed a petition under the Hague Convention seeking the return of his son to Luxembourg. Upon learning of an ongoing custody proceeding, the Court raised the issue of abstention sua sponte,



In October 2012, Plaintiff and Defendant Dinara Bekmukhamedova traveled with their son, VPZB, from Luxembourg to the United States. Defendant allegedly promised the family would return to Luxembourg after she obtained a Form I–551 Alien Registration Card (commonly known as a "Green Card"). Defendant subsequently informed Plaintiff that she intended to remain in the United States with VPZB indefinitely. On March 3, 2013, Plaintiff was allegedly awarded a preliminary Guardianship by a Luxembourg court. Plaintiff subsequently flew to New Orleans—where Defendant had recently moved—and filed a petition in New Orleans civil court on May 1, 2013, to obtain custody of VPZB. The state court held a preliminary hearing on May8, 2013, and set a trial date of June 14, 2013. The court further ordered that Plaintiff be allowed visitation, that VPZB not be removed from Orleans Parish, and that Defendant surrender VPZB's passport to the court. Upon motion of Plaintiff, the trial was continued until August 14, 2013. Plaintiff filed a second motion to continue on August 8, 2013. Neither the petition nor any of the state court filings mention the Hague Convention or ICARA.

Having reviewed the state court proceedings, the district court found abstention inappropriate in this case, under both Younger v. Harris,. 401 U.S. 37 (1971) and Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)