In Neergaard-Colon v Neergaard, --- F.3d ----, 2014 WL 2111307 (C.A.1 (Mass.))
Respondent Lisette Neergaard-Colon ("mother") and Petitioner Peter Moeller Neergaard ( "father") had two young daughters, S.S.N. and L.A.N. Although both girls were born in the United States, they lived abroad with their parents for approximately a year and a half after their father's employer temporarily relocated him to Singapore in June 2012. The family's time in Singapore ended in January 2014 when the mother traveled with the children to the United States and refused to return. As a result, the father filed a petition for the return of the children to Singapore. The District Court granted the father’s petition. The Court of Appeals reversed and remanded for a further hearing, finding that the district court erred by determining that the children's place of habitual residence was Singapore without first considering whether the parties intended to retain their habitual residence in the United States while living abroad for a temporary period of fixed duration.
The mother, a citizen of the United States, and the father, a citizen of Denmark, married in Massachusetts in 2011 and their daughters were born in Massachusetts in February 2011 and February 2012. At some point in late 2011 or early 2012, the father's employer informed him that it wanted to relocate him temporarily to Singapore for a three-year assignment. In June 2012, the family packed up their things and moved to Singapore, where they rented an apartment. The father obtained an employment pass authorizing him to work in Singapore through 2015, and the mother and children each received a dependant's pass. While in Singapore, the father was paid by the Singapore-based entity Ab Initio Software Private Limited. The family obtained health insurance in Singapore through the father's employer, and the parties opened a bank account there. They also found pediatricians for their daughters, arranged play dates, and purchased a Singapore Zoo membership. The older daughter, S.S.N., was enrolled in parent-accompanied "EduPlay" classes, and the parents looked at a few Singapore preschools. During their time in Singapore, the parents retained ownership of their two properties in Boston. Singapore. They rented both properties to tenants on one-year leases. They kept open their bank accounts and retirement accounts in the United States, as well as their credit cards issued by U.S. banks. The mother preserved her position with Boston public schools by requesting a three-year extension of her maternity leave, and the father maintained his green-card status.
The First Circuit Court of Appeals observed that in determining "habitual residence" it begins with the parents' shared intent or settled purpose regarding their child's residence. While intent is the initial focus, evidence of a child's acclimatization to his or her place of residence may also be relevant. In this case the father presented a claim of wrongful retention. It noted that the Hague Convention only provides for the return of a child retained outside of his or her place of habitual residence. If the state in which a child is retained was also the child's place of habitual residence immediately prior to retention, that retention is not wrongful under the Hague Convention. Thus, in order to establish wrongful retention, the father had the burden of showing by a preponderance of the evidence that Singapore was the children's state of habitual residence immediately prior to their retention in the United States. See Darin, 746 F.3d at 9.
The Court of Appeals found that the district court misapplied the legal test for habitual residence by failing to analyze whether the parties ever intended to abandon their habitual residence in the United States, and by placing undue weight on evidence of the children's acclimatization in Singapore. The Court of Appeals pointed out that when the child in question is very young, its habitual-residence inquiry focuses on the parents' shared intent and settled purpose rather than the child's, as a very young child lacks both the material and psychological means to decide where he or she will reside. In the event that the parents disagree as to their children's place of habitual residence, they look to the intent of the parents "at the latest time that their intent was shared." Mota v. Castillo, 692 F.3d 108, 112 (2d Cir.2012). It is imperative that the district court distinguish "between the abandonment of a prior habitual residence and the acquisition of a new one. A person cannot acquire a new habitual residence without forming a settled intention to abandon the one left behind. Otherwise, one is not habitually residing; one is away for a temporary absence of long or short duration.
The district court-relying upon the parties' affidavits and without the benefit of an evidentiary hearing-found that, "at a minimum, the parties agreed to move to Singapore for three years, and the three-year period has not yet elapsed."Accordingly, the court concluded that the parties' shared intent was that their children reside in Singapore at the time immediately prior to their retention.
The Court of Appeals found that the district court failed to differentiate between the abandonment of a prior habitual residence and the creation of a new one as required by Darin. Instead, it merely found that the parents agreed that the children would be present in a particular place for a particular period of time that had yet to elapse. The district court made no factual finding one way or the other as to whether the parents intended to abandon their habitual residence in the United States in favor of Singapore, or whether they intended to retain their habitual residence while simply residing temporarily in Singapore. As a result, the district court overlooked an important factor in the habitual-residence analysis.
The Court of Appeals pointed out that although it has recognized that in certain circumstances, " 'a child can lose its habitual attachment to a place even without a parent's consent ... if the objective facts point unequivocally to a person's ordinary or habitual residence being in a particular place,' " Darin, 746 F.3d at 11-12 it has also cautioned that in the absence of shared parental intent, the district court should be slow to infer an earlier habitual residence has been abandoned. In the typical case, evidence of acclimatization is not enough to establish a child's habitual residence in a new country when contrary parental intent exists. Here, the facts found by the district court in this case did not point so unequivocally towards Singapore being the children's habitual residence that it could conclude the same in the absence of a finding that the parties intended to abandon their habitual residence in the United States. Here, the district court found that the children spent a substantial amount of time in Singapore and that they had friends, books, and toys there. The children were ages one and two at the time of retention. These ages are important, because acclimatization is rarely, if ever, a significant factor when children are very young. See Holder, 392 F.3d at 1020-21
(holding that in the case of a ten-month-old child, it is "practically impossible"
for a child so young, "who is entirely dependent on its parents, to acclimatize
independent of the immediate home environment of the parents"). They did not
attend school and did not participate in sports. None of their extended family
lived in Singapore, and they took multiple trips-each several weeks long-to the
United States during the year and a half that they lived in Singapore. The Court of Appeals could not conclude that the record points unequivocally to the children's habitual residence being in a particular place. Accordingly, it remanded the case to the district court for a determination of the children's place of habitual residence that considers whether or not the parents intended to abandon their habitual residence in the United States.
In Larrategui v Laborde, 2014 WL 2154477 (E.D.Cal.) the Court granted Petitioner's petition for the return of S.C. to Argentina pursuant to the Hague Convention. Petitioner sought $55,372.14 in attorney's fees and costs pursuant to Article 26 of the Hague Convention and 42 U.S.C.§ 11607 of ICARA.
The District Court observed that were a court has ordered the return of the child to her habitual residence, the court must order the respondent-abductor to pay "necessary expenses incurred by or on behalf of the petitioner," unless it would be "clearly inappropriate." 42 U.S.C. §11607(b)(3). The award of fees and costs serves two purposes: (1) "to restore the applicant to the financial position he or she would have been in had there been no removal or retention" and (2) "to deter such removal or retention."Hague International Child Abduction Convention: Text and Legal Analysis, 51 Fed.Reg. 10494-01, 10511 (Mar. 26, 1986).
Respondent argued that fees were clearly inappropriate because the
Court's intervention was required to obtain undertakings to protect S.C.; that Respondent was unable to pay for Petitioner's attorney's fees and costs, and
Petitioner did not spend his own funds to retain representation in this matter.
The Court rejected these arguments. The fact that Petitioner did not spend his own funds does not provide a basis to deny an award to Petitioner. See Cuellar v. Joyce, 603 F.3d 1142, 1143 (9th Cir.2010) (holding that denying a fee award because petitioner's counsel provided their services pro bono would "encourage abducting parents to engage in improper delaying tactics whenever the petitioning parent is represented by pro bono counsel.") Second, Respondent made a good faith, but unsuccessful, "grave risk" argument that S.C. had not received, and consequently would not receive, proper medical treatment in Argentina. As a result, the Court granted Petitioner's Petition for Return of Child with narrowly focused undertakings to ensure that S.C. received the necessary medical treatments and ensures that Respondent is allowed access to and visitation with S.C. However, denying an award to Petitioner because the Court issued undertakings would encourage parties to always request undertakings even if the request is meritless in order to avoid paying fees and costs. Finally, entirely denying an award to Petitioner because of Respondent's financial status would not further § 11607(b)(3)'s purposes. Kufner v. Kufner, CIV.A. 07-046 S, 2010 WL 431762, at *5 (D.R.I. Feb.3, 2010) ("To deny any award to Petitioner [because of respondent's financial status] would undermine the dual
statutory purposes of Section 11607(b)(3)-restitution and deterrence (both general
as to the public and specific as to the Respondent))." The Court held that it was not "clearly inappropriate" to award attorney's fees and costs to Petitioner.
The Court found that traveling costs are necessary costs because Petitioner's attorney was required to attend the hearings and that file management costs are appropriate as part of the costs associated with litigation. However, the Court denied the costs associated with the uncertified interpreter because Respondent should not be required to pay for Petitioner's error. The Court also denied the fees recorded in Spanish in the invoices because they were not appropriately documented in English. The Court denied the costs for a custody order because it was not necessary for this proceeding. The Court awarded all other costs. It reduced the costs and fees by $3,437.50 to $51,934.64.
The Respondent requested a 30% reduction based on her financial status. The district court noted that although denying an award because of Respondent's financial status would not further §11607(b)(3)'s purposes, courts have recognized that they have discretion to reduce any potential award to allow for the financial condition of the respondent. See, e.g., Rydder v. Rydder, 49 F.3d 369, 373-74 (8th Cir.1995) (reducing award from $18,487.42 to $10,000.00 because of respondent's financial status); Berendsen v. Nichols, 938 F.Supp. 737, 739 (D.Kan.1996) (applying 15% reduction to the fee award because of respondent's financial status); Salinier v. Moore, No. 10-CV00080-WYD, 2010 WL 3515699, at *4 (D.Colo. Sept.1, 2010) (reducing award by 25% because of respondent's financial condition). Respondent provided evidence that she was self-employed with limited income, nominal assets, and significant debt. Therefore, the Court exercised its discretion and reduced the total award by 25%. The Court awarded Petitioner $38,950.98 in attorney's fees and costs.
Appellate Division Holds Family Court Had Jurisdiction to Determine Father's Petition for Custody Even Though Court of Dominican Republic, Applying Hague Convention, Denied His Petition for Return to the United States.
In Matter of Katz v Katz, --- N.Y.S.2d ----, 2014 WL 2198516 (N.Y.A.D. 2 Dept.) the father filed a petition for custody in the Family Court alleging that, on October 2, 2011, the mother took the parties' child, who had been residing in the Bronx, to the Dominican Republic without his permission. The Family Court held the matter in abeyance pending a determination in the Dominican Republic with regard to the father's application there for a return of the child pursuant to the Convention on the Civil Aspects of International Child Abduction. On October 5, 2012, the Civil Chamber of the Court of Children and Adolescents of the Judicial District of Santo Domingo rejected the father's request for a return of the child, and directed that the child remain in the company of the mother in the Dominican Republic, finding that if the child were returned to the United States she would be exposed to a violation of her fundamental rights due to issues of domestic violence. Family Court dismissed the father's petition for custody, concluding that it was bound to do so pursuant to the order issued by the court in the Dominican Republic.
The Appellate Division reversed. It observed that the Uniform Child Custody Jurisdiction and Enforcement Act (Domestic Relations Law art 5-A) governs a New York State court's jurisdiction in international child custody matters. Domestic Relations Law § 76, which establishes initial child custody jurisdiction, provides, inter alia, that a court of this State has jurisdiction to make an initial child custody determination if this State is the home state of the child on the date of the commencement of the proceeding (Domestic Relations Law §76[a] ). "Home state" is defined as the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding (Domestic Relations Law § 75-a[7] ). Pursuant to Domestic Relations Law § 75-d[1], a "court of this state shall treat a foreign country as if it were a state of the United States". The Convention provides that a child abducted in violation of rights of custody must be returned to his or her country of habitual residence, unless certain exceptions apply. A decision under the Convention is not a determination on the merits of any custody issue, but leaves custodial decisions to the courts of the country of habitual residence. It was undisputed that the United States was the child's country of habitual residence, and that, at the time the petition was filed, New York was the child's "home state." Thus, the Family Court had jurisdiction to determine the father's petition for custody. Moreover, the denial, by the court in the Dominican Republic, of the father's application for a return of the child pursuant to the Convention, did not preempt his custody proceeding (see In re T.L.B., 272 P3d 1148 [Colo App]. Accordingly, it held that the Family Court erred in dismissing the father's petition.
In Salazar v Maimon, 2014 WL 1688197 (5th Cir., 2014) Ms. Rossy Bellorin Salazar (“Salazar”), the mother filed suit on December 2, 2011 seeking the return of her child to Venezuela, pursuant to ICARA. A bench trial was set for March 20, 2012. On the morning of trial, the parties reached a settlement whereby the father agreed to voluntarily return the child. The Court incorporated the terms of the parties' settlement agreement into an order stating that (1) Maimon agreed to voluntarily surrender the child into the custody of her mother, and (2) authorizing Salazar to return to Venezuela with the child. Shortly after the settlement, Salazar filed a motion for attorneys' fees and costs, seeking to recoup all the expenses she incurred in connection with her ICARA Petition. Maimon opposed the motion, arguing that since the parties settled without a trial, he did not have an opportunity to present evidence on the merits of this case; therefore there was no basis to impose fees against him. The district court entered a written opinion awarding Salazar $39,079.13 in necessary expenses, and holding that ICARA only requires the plaintiff to obtain the primary relief sought, whether by court-approved settlements or a judgment on the merits, to entitle her to a fee award under 42 USC § 11607(b)(3).
The Fifth Circuit affirmed. It observed that Section 11607(b)(3) provides: Any court ordering the return of a child pursuant to an action brought under section 11603 of this title shall order the respondent to pay necessary expenses incurred by or on behalf of the petitioner, including court costs, legal fees, foster home or other care during the course of proceedings in the action, and transportation costs related to the return of the child, unless the respondent establishes that such order would be clearly inappropriate. The language in section 11607(b)(3) was unambiguous. Nothing in the language requires a finding of wrongful removal or retention of a child, or an adjudication on the merits, as a prerequisite for an award under this provision. Rather, the plain reading of this statute simply requires that the action be brought pursuant to section 11603 and that the court enter an order directing the return of the child. The Court concluded that nothing in the statute conditions the court's obligation to award fees on a trial on the merits or upon a judicial determination that Maimon wrongfully retained the child within the United States, and that the district court correctly interpreted “[a]ny court ordering the return of a child pursuant to an action brought under section 11603” to mean “any court ordering the return of a child pursuant to an action brought under the Convention .” This interpretation was consistent with the plain meaning of the statute as well as the policy of the effective and speedy return of abducted children under ICARA and the Hague Convention.
The Fifth Circuit rejected appellant's argument that an award of necessary expenses is inappropriate when the parties have settled the case. It observed that Congress has authorized the award of attorneys' fees to the “prevailing party” in numerous statutes, including the ICARA. The Supreme Court has identified the prevailing party as “one who has been awarded some relief by a court,” such that, in addition to judgments on the merits, settlement agreements enforced through a consent decree may serve as the basis for an award of attorneys' fees. This Circuit had previously held that for a party to qualify as a prevailing party it “must (1) ‘obtain actual relief, such as an enforceable judgment or a consent decree; (2) that materially alters the legal relationship between the parties; and (3) modifies the defendant's behavior in a way that directly benefits the plaintiff at the time of the judgment or settlement.’ Therefore, the precedent was clear that both judgments on the merits and settlement agreements enforced through consent decrees are sufficient to create prevailing party status for purposes of authorizing an award of attorneys' fees. Between the parents in the present action, Salazar was the prevailing party. Applying the three-factor test of the Circuit, Salazar was successful in obtaining the relief she initially sought. The legal relationship between the parties was materially altered when the court ordered the child returned to Salazar and authorized the child to travel back to Venezuela with her on the next available flight. The settlement order effectively accomplished the Convention's objective of promptly returning the child to the country of her habitual residence. Although Maimon's relinquishment was voluntary, the court order accepting the parties' agreement was a judicial act that modified Maimon's behavior to confer a direct benefit upon Salazar. Accordingly, it found the settlement order was sufficient to create a duty on the district court to order an award of necessary fees and expenses under section 11607(b)(3).
The Fifth Circuit held that the district court's decision not to hold an evidentiary hearing was within its broad discretionary powers. Maimon sought an evidentiary hearing to dispute the merits of the underlying action rather than to dispute the propriety of Salazar's claimed expenses. In addressing his request, the district court properly held that “to the extent that Respondent did not have an opportunity to present evidence on the lawfulness of his retention of the child, that has no bearing on his obligation to present evidence on the question of attorney's fees.” Maimon did not raise an adequate factual dispute in responding to Salazar's motion for attorneys' fees to warrant an evidentiary hearing. Maimon's response was composed entirely of attorney arguments attempting to set forth his version of the underlying facts relating to the child's retention. It contained no exhibits, affidavits, or any evidence to dispute the necessity or propriety of the claimed expenses. Absent an actual dispute over whether the expenses were necessary, the district court had no reason to conduct an evidentiary hearing on petitioner's motion for attorneys' fees.
The Court rejected Maimon’s argument that the district court's imposition of fees was clearly inappropriate. The district court did not grant Salazar reimbursement for all expenses incurred. It conducted a two-step inquiry and considered twelve factors under the lodestar method to arrive at an attorneys' fee award that it considered reasonable. After careful analysis, the district court determined the billing rates to be reasonable but found the time and labor expended as excessive and therefore, unreasonable. As a result, the expenses the district court deemed necessary were reduced by almost fifty percent from the requested $75,149.91 to $39,079.13.
]
In re A.L.C., 2014 WL 1571274 (C.D.Cal.) the district court granted the Petition of Andreas Carlwig for the return of his two minor children to Sweden. On February 27, 2014, Petitioner Andreas Carlwig ("Father") filed a Verified Petition for Return of Children to Sweden. Respondent Sarodjiny Carlwig ("Mother") was served with the Petition on March 13, 2014.
The district court found that Father and Mother married in Las Vegas, Nevada, on November 1, 2007. Father was a citizen of Sweden. Mother was born in India and is a citizen of both the U.S. and France. Throughout their marriage, the family's residence has been largely dictated by Father's job assignments. Shortly after their wedding, the couple moved to Dubai, United Arab Emirates. Their first child, A.L.C., was born in Dubai in 2008. A.L.C. was a citizen of both the U.S. and Sweden. In September 2011, Father's employer closed its operations in the U.A.E., and he was given a new assignment in Sweden. Father commuted between Stockholm, Sweden and Dubai for the next three months. He testified at the hearing that he was able to visit his wife and A.L.C. in Dubai every third weekend. In January 2012, the entire family relocated to Stockholm. Father and A.L.C. left first for Sweden, while Mother remained in Dubai to finish the last part of the move. Mother contended that she was forced to move to Sweden and only agreed to a six-month trial period. In her Response and at the hearing, Mother went into great detail about her residency status in Sweden and how the move to Sweden interrupted previous plans to move to the U.S. Ultimately, Mother acquiesced to the move and lived in Sweden with Father and A.L.C. for about thirteen months. While living in Sweden, A.L.C. started preschool and began making friends. Father's relatives also lived in Sweden and A.L.C. was able to spend time with his relatives including his grandparents, aunts, and cousins. When the family moved to Sweden in 2012, they moved into a rented apartment. The lease was for nine months and was later extended an additional three months. Father was employed in Sweden and was still employed by the same company he worked for in Dubai. Mother was not employed while the family lived in Sweden. Mother admitted that they left no belongings behind in Dubai.
In September 2012, while living in Sweden, Mother learned that she was pregnant
with the couple's second child-E.R.S.C. Father testified at the hearing that Mother first raised the possibility of traveling to Los Angeles in November 2012 for the purpose of giving birth to E.R.S.C. By all accounts, Mother's pregnancy with E.R.S.C. was a difficult one. The reason she gave Father for wanting to give birth in Los Angeles was to be close to her friends-whom she referred to as "family"-and because the birth of A.L.C. in Dubai was a bad experience. Father ultimately agreed to the trip He purchased roundtrip tickets from Stockholm, Sweden to Los Angeles for Mother and A.L.C., with a departure date of January 16, 2013, and a return date of September 4, 2013. Right before the scheduled departure date, Mother visited a doctor in Sweden and learned that she had a low platelet count. Concerned about her health, the trip to Los Angeles was cancelled. But Mother later changed her mind and a new flight to Los Angeles was booked for herself and A.L.C. They left for Los Angeles on February 27, 2013, while Father remained in Sweden. Both Mother and Father admitted to the existence of a note, written by Father, consenting to the trip to Los Angeles. A handwritten note, apparently signed by Father, was submitted by Mother in her Response. The note stated that Father consented to Mother taking A.L.C. to Los Angeles. The note was silent as to the trip's purpose or duration. Father maintained that the note was either a forgery or an earlier draft of the note. Father stated that the final draft included that the trip was to be only four to six months in duration-enough time for Mother to give birth and recuperate. Father's contention that the trip was only temporary was consistent with the round-trip tickets that were initially purchased for Mother and A.L.C. None of Mother's submissions indicated that the parties reached an agreement to move to anywhere in the U.S.in February 2013. In May 2013, E.R.S.C. was born in Los Angeles. Father made arrangements to take time off from work and travel to Los Angeles for the birth, though Mother ultimately asked him to stay away. But Father did visit Los Angeles to see A.L.C. and E.R.S.C. in June and July of 2013. Father stayed with Mother and the children in a temporary apartment. During
the visit, the family took a trip to Carlsbad, California, and Father testified that he and A.L.C. visited LegoLand together. However, Father had to return to work in Sweden at the end of July. In the Petition, Father stated that he suggested bringing A.L.C. back with him, but when Mother refused, he went home alone because the agreed-upon six months in Los Angeles had not passed. In August and September 2013, Mother and Father attempted to reach a resolution on where the family should live. But no resolution was reached, and Father never agreed to Mother remaining in Los Angeles with the children. Mother also admitted on cross-examination that Father never agreed to a move to Los Angeles. Both parties filed for divorce. On September 9, 2013, Mother filed for divorce in Los Angeles County Superior Court. Father claims he was unaware of these proceedings until traveling to Los Angeles in November 2013. Meanwhile, Father filed for divorce and custody of the children in Sweden in October 2013. The couple remained in communication throughout this time and Mother was made aware of the proceedings in Sweden. On November 2, 2013, Father traveled to Los Angeles with the children's grandfather. On November 10, 2013, Mother filed a police report alleging that Father sexually assaulted her during his visit to Los Angeles in June and July 2013. Mother also alleged that Father has been physically violent and verbally abusive throughout their marriage. Most of her allegations were vague.
The court found that Father met his burden of establishing a prima facie case for the return of A.L.C. and E.R.S.C. to Sweden. The Petition was based on wrongful retention in the U.S.. Father argued that the trip to Los Angeles was supposed to be for four to six months while Mother gave birth and recuperated. Mother contended that the parties agreed that she was never returning to Sweden with A.L.C. and E.R.S.C., and that the children's habitual residence was now the U.S. In Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001), the Ninth Circuit emphasized the importance of shared parental intent in determining a child's habitual residence. Moreover, "the first step toward acquiring a new habitual residence is forming a settled intention to abandon the one left behind." An actual change in geography and passage of an appreciable period of time sufficient for acclimatization are also relevant to whether a child's habitual residence has changed. The second Mozes fact pattern is when a child's initial move from an established habitual residence was clearly intended to be of a limited and specific duration. Courts in these cases will usually find that the changed intentions of one parent do not lead to a change in the child's habitual residence. The third scenario arises when the petitioning parent initially agreed that the child could stay abroad for a period of indefinite or ambiguous duration. These cases are very fact-dependent
and usually have no clear answer.
The court found that before A.L.C. departed Sweden with his mother on February 27, 2013, he was clearly a habitual resident of Sweden. While A.L.C. spent only about thirteen months total in Sweden, the length of time was not as important as the fact that the family had abandoned Dubai and A.L.C. had by all appearances a relatively stable and normal life in Sweden. According to Father's testimony at the hearing, Mother first raised the idea of a trip to Los Angeles with A.L.C. in November 2012. Mother was pregnant with their second child at this point and expressed a desire to give birth in the U.S. Father ultimately agreed to the trip and permitted Mother to take A.L.C. with her. There were sufficient facts to demonstrate that Father only intended the trip to be temporary and last for a period of around six months. Father had been active in A.L.C.'s life in Sweden, but did not travel with Mother and A.L.C. Father made clear at the hearing that he had no job prospects in Los Angeles and that the family relied on his income. In addition, in June 2013, Father registered A.L.C. at a new school in Stockholm that he was expected to attend starting in September 2013. This comported with Father's belief that the trip to Los Angeles was merely an extended stay. Mother and A.L.C. also left belongings behind in Sweden. The Court found Mother's testimony and supporting evidence with regard to the parties' understanding about the trip to Los Angeles to be less than credible. Therefore, the Court gave little weight to the note as evidence of parental intent regarding the purpose and duration of the trip to Los Angeles. Overall, the Court found no shared intent to abandon Sweden as A.L.C.'s habitual residence. The Court noted that Mother has supplied evidence of A.L.C.'s acclimatization here in the U.S., but this did not support a finding of a change in A.L.C's habitual residence. The Court found the Father's testimony and evidence compelling and sufficient to meet his burden of establishing by a preponderance of the evidence that A.L.C. was a habitual resident of Sweden before Mother's retention of A.L.C. in the U.S.
E.R.S.C.'s habitual residence presented a trickier question - the habitual residence of a newborn absent shared parental intent. While the issue was complicated by the fact that E.R.S.C, unlike her brother A.L.C., had never been to Sweden, the Court found that its assessment of parental intent with regard to A.L.C. applied equally to E.R.S.C. and ultimately favored the same result as A.L.C. E.R.S.C. was born in the U.S., but a child's"place of birth is not automatically the child's habitual residence." Holder v. Holder, 392 F.3d 1009, 1020 (9th Cir.2004) Moreover, an infant's habitual residence is not established solely based on the location of the mother. Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 379 (8th Cir.1995) ("To say that the child's habitual residence derived from his mother would be inconsistent with the Convention, for it would reward the abducting parent and create an impermissible presumption that the child's habitual residence is wherever the mother happens to be.") Thus, E.R.S.C. was not a habitual resident of the U.S. simply because Mother was present here and desired to stay. The Third Circuit's holding in Delvoye v. Lee, 329 F.3d 330 (3d Cir.2003) was instructive on the habitual residence of a newborn like E.R.S.C. In Delvoye, the court held that Belgium was not the newborn's habitual residence, because the parents lacked a "degree of common purpose" to habitually reside in Belgium with the child..The mother was living out of suitcases in Belgium, had only temporary visa, and left most of her belongings behind in New York. Like in Delvoye, the Court found that Father and Mother lacked a shared intent for E.R.S.C. to reside in Los Angeles or anywhere in the U.S. Father only consented to Mother traveling to Los Angeles for E.R.S.C.'s birth-not for E.R.S.C. to remain in the U.S. permanently. The Court found that E.R.S.C.'s young age suggested that she could not simply acquire habitual residence here in the U.S. based on the ten months she has spent here. The Court found that the best approach to E.R.S.C.'s habitual residence was to look to the last location of shared parental intent, which was Sweden. The last location of any stability for the family was Sweden. Sweden was where Father was employed. In addition, the Court had already found that A.L.C.'s habitual residence was Sweden. Splitting the children up for custody determinations in two countries was untenable. For these reasons, the Court found that E.R.S.C.'s habitual residence was Sweden and not the U.S.
The Court found insufficient evidence that Father consented to the children
becoming habitual residents in the U.S. While consent does not have to be expressed with the same degree of formality that is required for subsequent acquiescence, a court should focus on "what the petitioner actually contemplated and agreed to in allowing the child to travel outside [his or her] home country." Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir.2005). Here, Father did not consent to either A.L.C. or E.R.S.C. remaining in the U.S. Father allowed Mother to travel to Los Angeles with A.L.C. to give birth to E.R.S.C. Father only intended and consented to the trip lasting for four to six months-enough time for Mother to give birth and recuperate. Baxter, 423 F.3d at 371 ("The fact that a petitioner initially allows children to travel, and knows their location and how to contact them, does not necessarily constitute formal consent to removal or retention under the Convention."). There was also insufficient evidence to establish Father's subsequent acquiescence. Acquiescence requires "an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time." Friedrich II, 78 F.3d at 1070. Mother submitted no evidence of a formal renunciation of custody rights by Father. Moreover, there was an utter lack of evidence of a "consistent attitude of acquiescence." The Court acknowledged that after Father realized that Mother was not going to return to Sweden with the children, he took steps to mediate the dispute with Mother. But at no time did Father agree to Mother remaining in Los Angeles with A.L.C. and E.R.S.C. Mother admitted during cross-examination at the hearing that Father never agreed to living in Los Angeles. In an email dated September 29, 2013, Father reiterated that he never agreed to a permanent stay in Los Angeles and continued to disagree with Mother retaining the children in Los Angeles. Father did consider a move to New York City with Mother in August 2013, but he had certain conditions of which Mother was less than amenable. Discussions about potentially moving elsewhere in the U.S., if certain conditions such as finding a job are met, hardly amount to a "consistent attitude of acquiescence." Moreover, the Court found that Father's attempts to reach a resolution with Mother only further demonstrated a lack of acquiescence to Mother's unilateral move to Los Angeles.
Mother alleged that Father had been physically and verbally abusive. She also claimed that Father raped her on more than one occasion. But the Court found that Mother's allegations lacked credibility.
Mother proffered numerous news articles and Internet postings to argue that Sweden is a racist country that will not welcome her children, who were of mixed race. However, a few examples of hate crimes and evidence of racist sentiments among a portion of the Swedish population did not reach the level of utterly shocking the conscience, especially when they did not involve the parties at issue here. Unfortunately, Sweden was not the only country where hate crimes and racism exist, and many examples of similar crimes and sentiments can be found here in the U.S. Accordingly, the Court found that the fundamental principles of human rights and fundamental freedoms did not prevent this Court from ordering the return of A.L.C. and E.R.S.C. to Sweden.
In Ortiz v. Martinez, 2014 WL 1409446 (N.D.Ill.) the district court denied the motion of Petitioner Julio Cesar Ortiz ("Ortiz") for a New Trial pursuant to Fed.R.Civ.P. 59, after his petition for the return of his minor children was denied. Ortiz brought a petition for the return of his two minor children, L.O. and A.O., who both resided in the United States with their mother Zulima Juarez Martinez ("Juarez") Respondent mother raised a defense under article 13 of the Convention, claiming that the children faced grave risk of harm because Ortiz had previously sexually abused his five-year-old daughter. Additionally, Juarez claimed the children desired to remain in the United States with her instead of being returned to Mexico with their father. The Court found that while Ortiz demonstrated by a preponderance of the evidence that L.O.
and A.O. were wrongfully removed to the United States by Juarez, the children were in grave risk of harm if they returned to their native county, Mexico, and that the child L.O. had attained an age and maturity at which it is appropriate to take into account of his child's views, that he desired to remain with his mother in the United States as an independent factor for denial.
The Court observed that a motion for new trial may be granted at the court's discretion "for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.” Because the court has discretion to grant a Motion for a New Trial, "a district court need not write a comprehensive opinion explaining why it denied a motion for a new trial; indeed, the judge need not give an explanation of any kind." Dunn v. Truck World, Inc., 929 F.2d 311, 313 (7th Cir.1991).
In this case, the Petitioner claimed that a new trial was warranted for two
reasons: (1) because the evidence that L.O. and A.O. were at a grave risk of danger because Ortiz sexually abused A.O was insufficient under a clear and convincing standard and (2) because the Court considered the wishes of the child sua ponte as outlined in Article 13(2)(d) of the Convention. The Court rejected both arguments.
The court noted that determining whether the child faces a grave risk of harm requires a fact based inquiry. Petitioner challenged the sufficiency of the evidence, arguing that the Respondent failed to offer documentary or physical evidence of sexual abuse. The court held that one does not have to provide documentary or physical evidence of sexual abuse when there is testimony that is corroborated by multiple witnesses. See Sylvester v. SOS Children's Villages Illinois, Inc., 453 F.3d 900, 903 (7th Cir.2006). The Court heard testimony from all the witnesses, including Dr. Machabanski, and credited the testimony of Juarez, which was corroborated by A.O., who was a bright child. During the court's interview with A.O., she stated that her father had done something bad "for not to tell mommy. It was a secret." When asked what was bad, she replied with words and gestures that he put his finger in her vaginal area while she was showering with him on more than one occasion. During the court's interview with Juarez, she stated that she noticed recurrent rashes on A.O.'s vaginal area shortly after she was born, so she took her to see a doctor who prescribed medication for diaper rash. However, the rashes reappeared in the summer of 2010. Additionally, when A.O. was about three years old, Juarez walked in on Ortiz when he was bathing his daughter. Juarez remembers that A.O. and Ortiz were both naked, and that A.O. was standing against the shower wall and Ortiz was kneeling in front of her with his right hand between her legs without soap or a towel. About a week after that, Juarez overheard A.O. telling her father not to touch her in her private parts anymore. This Court indicated that as the fact finder, the Court properly weighed the evidence and credibility of the witnesses and found that the children would face a grave risk of harm if ordered to return to Mexico. Petitioner failed to present any new facts or law to change the Court's holding.
The Petitioner claimed that the Court erred when it raised the ‘”wishes of the child” exception sua sponte, and that the burden was on the Respondent to raise such an exception. However, Petitioner ignored the language of the Convention, which specifically grants the court discretionary authority to avoid return based on the child's preference. This Court did not err by exercising its discretionary authority.
In Mauvais v Herissee, 2014 WL 1454452 (D.Mass.)) the district court granted the petition of Manel Mauvais for the return of his two minor children to Canada. The petitioner, and the respondent, Nathalie Herisse, were both citizens of Haiti. They had two children together: MM and RM. They lived together in Haiti until September 2009, when Herisse moved to her aunt's home in Mattapan, Massachusetts, so that the baby she was expecting would be born in the United States. Mauvais and MM remained in Haiti. RM was born in Boston in November 2009. After MM was born in France in 2005, Herisse returned to Haiti. A catastrophic earthquake devastated Haiti in January 2010. Mauvais and MM moved to Quebec, Canada in February 2010. Herisse was still living in Massachusetts with her aunt and new infant. She asked Mauvais to bring MM to Massachusetts, but he refused. In turn, he urged Herisse to join him in Canada. She testified he threatened to harm MM if she did not. In March 2010, Herisse reluctantly took RM to Canada. Mauvais, Herisse, their two daughters, and two of Mauvais's children from a prior relationship lived for a while in Montreal with Mauvais's sister and her family. In July 2010, Mauvais and Herisse moved into their own apartment with their two daughters and Mauvais's twin children. They lived together there until January 2011, when Herisse moved out, taking the children with her. The three first stayed with relatives, but in September 2011 they moved to a separate apartment in Montreal. In February or March 2012, Mauvais convinced her to allow him and his other children to move into her apartment. The children lived with their mother in an apartment in Montreal for about two years prior to the events that gave rise to the present petition. MM was enrolled in and attended a primary school beginning with the 2011-2012 school year, and was enrolled for the 2013-2014 school year when she was taken by the respondent to the United States. RM was enrolled in a full time day care program between the end of April 2013 and late August 2013. Both children visited regularly with relatives, apparently on both their mother's and their father's sides. With some of the father's relatives, they regularly attended church and Sunday school. According to an aunt, they developed a "Quebecois" accent when speaking French. In late August 2013, Mauvais consented to RM traveling to the United States for a month to live with Herisse's aunt in Mattapan, and the aunt traveled to Canada to take RM to Massachusetts.
In the fall of 2012, RM began to have some health problems, including frequent nosebleeds and weight loss. Herisse took her to various clinics but was not satisfied with the care RM received. Herisse decided that it would be best for RM, a U.S. citizen, to return to the U.S. to receive medical care. For that purpose, the parties agreed that Herisse's aunt could bring RM to the U.S. in late August 2013. Medical records from the Boston Medical Center in evidence indicate no major health issues. In the fall of 2013, RM was examined and treated for eczema, a tendency to experience nosebleeds, and mild anemia. For the latter, she was prescribed an iron supplement.
The parties' written agreement provided that RM would be returned to Canada around September 20, 2013. She was not returned as agreed. On September 13, 2013, the respondent left Canada with MM and traveled to her aunt's home in Massachusetts, where she and her two children remained.
The district court found that prior to the children's removal and retention in September 2013, that the parties both were content to have their children live in their existing setting in Canada. For approximately two years, the children lived in a settled, "acclimatized" way in Canada. The fact that one or both of the parties may have harbored some desire eventually to move to the United States did not undercut these conclusions. After Herisse had stopped living with Mauvais, she established her own household with the children in Montreal. The children attended school and participated in various social activities. Herisse's actions showed that even when she was not under Mauvais's control or influence, she chose to remain in Canada. That she subsequently had a change of heart and decided that the children would be better off living elsewhere was of no moment, as any such intent was not a shared one with Mauvais. It was noteworthy RM had spent almost her entire life, and MM about half her life, in Canada, and the evidence presented at trial showed that both she and MM had had sufficient time for acclimatization. The court found that Mauvais had proven that Canada was the habitual residence of the children at the time of their retention and removal and, consequently, that MM and RM were wrongfully removed or retained within the meaning of the Convention.
The respondent testified that the petitioner frequently acted toward her in a sexually abusive manner. She further testified that he insisted on sexual activity at times and under circumstances when the children were or could have been exposed to it. The testimony was general and vague, however, and it was difficult to draw any reliable conclusions about how frequently such conduct occurred or how significant any impact on the children might have been. She also testified that Mauvais's son, BM, who was a few years older than MM, was sexually assaultive toward her. One such incident occurred while the family was still living in Haiti. According to the respondent, when she reported the incident to the petitioner, he disciplined BM by beating him with a belt. The respondent's aunt testified about a similar incident a couple of years later in Canada. There was no evidence as to what, if any, discipline was meted out to BM for that occasion. The evidence in the nature of an opinion that RM and/or MM might suffer psychological harm if returned to Canada was unconvincing because it did not appear to be based on an indepth investigation, but rather on some office interviews and a review of hospital records that themselves did not disclose any grave medical or emotional issue. The evidence fell well short of supporting a finding of a grave risk of psychological harm. Herisse contended that MM and RM faced a grave risk of physical and psychological harm if they return to Canada. At trial, Herisse testified that Mauvais has sexually abused her for many years, that BM had acted in sexually inappropriate ways toward MM on numerous occasions, and that Mauvais has been violent toward BM. Herisse also argued that RM's medical issues might not be as adequately addressed in Canada as in the United States. Herisse relied heavily on the First Circuit's decision in Walsh, but in that case the court relied on "ample evidence" that the petitioner "has been and can be extremely violent and ... cannot control his temper," and that the petitioner had a history of violence toward others, including threats to kill a neighbor and a physical confrontation with his adult son. Walsh, 221 F.3d at 219-20. The petitioner in Walsh was also a fugitive who had demonstrated a "chronic disobedience of court orders."
The facts of this case were neither as dire nor as clear. Herisse admited that Mauvais had never harmed or attempted to harm MM or RM. Even after moving out in January 2011, Herisse took no steps to prevent Mauvais from having contact with their children. A general likelihood that serial spousal abusers may also eventually abuse
their children is insufficient to establish, by the requisite degree of proof, grave risk of physical or psychological harm to MM and RM. Further, as to RM's medical care, there was insufficient evidence that there is a grave risk that RM's medical condition could not be appropriately addressed in Canadian medical facilities.
In Pignoloni v Gallagher, 2014 WL 642596 (2d Cir 2014) Petitioner Fabrizio Pignoloni brought a petition pursuant to the Hague Convention seeking an order directing Respondent Luise Gallagher, the mother, to return their two minor sons, E.G.P. and A.T.P. to Italy. The district court denied the petition. The Second Circuit affirmed in a summary order.
Pignoloni was an Italian citizen and Gallagher was a United States citizen. They married in New York in 2005 and shortly thereafter moved to Italy. Their elder son, E.G.P., was born in New York, while their younger son, A.T.P., was born in Italy; both children lived nearly all their lives in Italy and were citizens of both Italy and the United States. Pignoloni and Gallagher continued to live together in Italy until approximately September 2010, when they signed a separation agreement which was “so ordered” by an Italian court. Pignoloni thereafter moved out of the family apartment. In April 2011, the parties signed a supplemental separation agreement which was then “so-ordered” by an Italian court. The agreement gave the parties joint custody of the children and imposed certain support obligations on Pignoloni. Pignoloni agreed to pay monthly child support and spousal support, and to pay the rent on the apartment in which Gallagher and the children lived. Paragraph O of the 2011 Separation Agreement, upon which the District Court heavily relied, provided conditions under which Gallagher might be permitted to remove the children from Italy. That paragraph read: (o) In case of non-payment of several monthly rent installments by Mr. Pignoloni resulting in lawsuits on behalf of the owners / or of non-bank-deposit for at least four months of the support for the children and for the wife and should the wife be unable, not having any type of income of her own, to support and maintain the children and herself, Mr. Pignoloni is willing to authorize the wife to return with the children to the United States to her family's home provided that the wife proves that she has found a job of her own.
On April 24, 2012, Gallagher traveled to New York with the two children. At the end of June 2012, Gallagher notified Pignoloni that she was remaining in the United States with the children. On July 3, 2012, Pignoloni filed his petition under the Hague Convention District Court held a bench trial. It found that Pignoloni had failed to meet his monthly spousal and child support and rent obligations, and that Gallagher was unable to support herself in Italy. The District Court denied the petition on two separate bases. First, it found that the removal of the children from Italy and their retention in the United States was not wrongful, because all of the conditions set forth in Paragraph O of the 2011 Separation Agreement had been met, giving Gallagher the right to change the children's habitual residence to the United States. Second, it found Pignoloni had given his prior consent in Paragraph O to the children's removal and retention, and therefore Gallagher had a valid affirmative defense under Article 13(a) of the Hague Convention.
On November 22, 2012, after the trial, but only two days before the District Court issued its decision, an Italian court modified the 2011 Separation Agreement and granted sole custody to Pignoloni. There was a pending motion before the Court to supplement the record with this Italian court decision. The District Court denied the petition on two separate bases: failure to make out a prima facie case and the affirmative defense of consent. Only the first basis relied on the 2011 Separation Agreement as establishing enforceable custody rights. The Italian court ruling, which altered the parents' custody rights prospectively, did not affect the analysis of their agreement in 2011. The Court stated that even if it were to grant Pignoloni's motion to supplement the record with the Italian court decision, it held that it would still affirm the District Court's decision as to consent. Accordingly, it denied Pignoloni's motion to supplement the record as moot.
The District Court found that Gallagher had proven by a preponderance of the evidence that Pignoloni consented to the children's removal. Specifically, it found that “Paragraph O constituted Petitioner's ex ante consent to Respondent's return to the United States, consent which is not rendered inoperable by Petitioner's ex post regret that he permitted Respondent to relocate his children to the United States under the terms of the court-ordered April 2011 Separation Agreement.” On appeal, Pignoloni argued that the words “is willing to authorize” could not be read to mean that he, in fact, authorized Gallagher to remove the children. Rather, he claimed, once the conditions in Paragraph O were met, Gallagher was required to seek his authorization and the approval of the Italian court system in order to return to the United States. This was unpersuasive. The District Court found that Paragraph O was a result of negotiations in which Gallagher accepted an 80% reduction in spousal support per month in exchange for this clause. It also credited Gallagher's testimony that she perceived the clause to be a safety net in the event of Pignoloni's failure to provide spousal and child support. The District Court's credibility determinations on these issues were not clearly erroneous. Furthermore, its interpretation of the 2011 Separation Agreement—based on Italian contract law and relying on Pignoloni's legal expert—were correct. For substantially the reasons stated by the District Court, it adopted its conclusions as to Paragraph O. The Italian court decision did not change this conclusion. The District Court's holding that Paragraph O effected Pignoloni's ex ante consent applied whether or not Paragraph O could modify the actual, legally enforceable custody arrangement between the parties. That was so because, on a plain reading of the agreement, Pignoloni consented to Gallagher's removal of the children if certain conditions came to pass. The District Court determined that those conditions did indeed come to pass. That was sufficient to prove, by a preponderance of the evidence, that Pignoloni had consented. Such a finding did not conflict with the Italian court decision.
Accordingly it affirmed the District Court's finding that Pignoloni consented to the children's removal and retention in Paragraph O of the 2011 Separation Agreement.
In Darin v. Olivero-Huffman, --- F.3d ----, 2014 WL 1053775 (C.A.1 (Puerto Rico)) Lisandro Jonathan Darin ("Darin") initiated proceedings against Lua Cecilia Olivero-Huffman ("Olivero"), seeking the return of their son ("LAD") to Argentina from the United States. In 2007 the parties entered into a romantic relationship. Olivero became pregnant, and by then the parties were living together in Olivero's apartment. During the pregnancy, Darin and Olivero traveled together to the United States, returning to Argentina prior to the arrival of their son. LAD was born in Buenos Aires on April 20, 2008, and was a citizen of both the United States and Argentina. Following the birth of their son, the parties moved into a Buenos Aires apartment Darin had inherited from his father.
On January 31, 2011, the family traveled to the United States. Their first stop
was Orlando, Florida, where they spent a total of four days. The family then moved
on to Puerto Rico. At the outset of the trip, the plan was to spend some time in
Puerto Rico with Olivero's family and then fly back to Argentina on March 2, 2011.
However, during their stay in Puerto Rico, the plan began to change and the date
of return was pushed back due to Olivero's involvement in a car accident and her
apparently new-found interest in pursuing a business venture with her sister.
Around mid-March 2011, Olivero announced to Darin that neither she nor LAD would
be returning to Argentina. Darin remained on the island as long as he could, but
his tourist visa was set to expire in July 2011. On July 7, 2011-just two days before Darin's departure-Darin and Olivero executed an affidavit regarding the care and supervision of their son during Darin's absence. Olivero drafted the Affidavit herself. The Affidavit's terms authorized her to take any steps necessary to provide for the education, health care, and overall well-being of the child. A provision authorizing the child to travel with either parent was there as well. At Darin's insistence, language was included stating he was leaving the United States "against his will" and was not abandoning his child. He eventually left the country on July 9, 2011. Thereafter, although separated geographically, Darin maintained continuous and frequent communication with his son.
On November 18, 2011, Olivero filed for legal custody of LAD in Puerto Rico
state court. According to the custody petition, Olivero filed so that she could
"send [LAD] to visit [Darin] at Christmas," since they had not been able to reach
an agreement and she feared the retention of the child. On December 19, 2011,
Darin filed an application under the Convention with the Argentina Central
Authority requesting the return of his son to Argentina. On February 22, 2012,
Darin filed the action with the federal district court in Puerto Rico, alleging Olivero's actions amounted to a "wrongful retention" of his son.
After holding a hearing the district court concluded that Darin had not met his
burden of establishing a wrongful removal or retention. Indicating that the
alleged removal or retention had occurred in July 2011, on the date which Darin
left Puerto Rico, the court found that as of that time "a new habitual residence in [the United States] was acquired based on the parents' shared intention in signing the affidavit." Darin had, according to the court, "acquiesced/consented" to LAD remaining in Puerto Rico. The court concluded that because LAD "was a habitual resident of Puerto Rico at the time of the claimed removal or retention," the retention or removal was not wrongful. It denied Darin's petition and dismissed his claims.
The First Circuit reversed. No one disputed that Darin had custody rights over LAD or that he was exercising them at the time of the alleged retention. The only question was whether Darin established by a preponderance of the evidence that Argentina ( was LAD's habitual residence prior to his retention. The district court thought Darin fell short, Upon de novo review the First Circuit disagreed with it and found that he established habitual residence in Argentina.
The First Circuit diverged from the district court on the question of when
LAD's alleged retention occurred. The district court indicated that the relevant date of retention was July 2011, which was when Darin left Puerto Rico. Darin argued that the retention occurred in mid-March 2011, when Olivero informed him that she would be remaining in Puerto Rico. The Fifth Circuit found the record supported Darin's position. By mid-March 2011, Olivero made it clear to Darin that she and their son would be permanently residing in the United States. Her actions afterwards only confirmed this. Olivero, true to her word, refused to return to Argentina. Once Olivero decided to stay in the United States with the child, there was nothing Darin could do to prevent a separation from his son. His tourist visa excluded the possibility of staying indefinitely with LAD in the United States, and he could not take LAD back to Argentina because the POA authorizing the child to travel with only one parent had been revoked. As of mid-March 2011, Darin had no legal way of remaining with his son.
The next question was whether Argentina was LAD's habitual residence in mid-March 2011. The Court observed that a child's habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a 'degree of settled purpose' from the child's perspective. In cases involving more than one potential residence, a distinction must be made between the abandonment of a prior habitual residence and the acquisition of a new one. When the question is whether a young child-lacking both the material and psychological means to decide where he or she will reside-has abandoned a prior
habitual residence, "the intention or purpose which has to be taken into account
is that of the person or persons entitled to fix the place of the child's residence." Mozes, 239 F.3d at 1076. Generally, it is "the parents' shared intent or settled purpose regarding their child's residence" that guides the inquiry. One parent's wishes are not sufficient, by themselves, to effect a change in a child's habitual residence. Utilizing Darin's July 2011 departure date as the operative date of retention, the district court found that the Affidavit (signed a couple days before), "clearly show[ed] the parents' last shared intent in determining habitual residence." The court's ultimate conclusion was the United States was LAD's habitual residence prior to the alleged retention. Upon conducting a de novo review, the Fifth Circuit concluded that this determination was flawed. Based on the uncontested facts, it was safe to say that, prior to mid-March 2011, the parties' shared intent was not for the child to be a habitual resident
of the United States. It was the parties' shared intent to return to Argentina on March 2, 2011. Olivero did not deny this was the plan; she testified as much. Olivero admitted it was she who had a change of heart once in Puerto Rico and decided to stay there with her son. A unilateral decision is not enough. There was simply no evidence in the record from which the district court could have found a mutual intent to change their son's habitual residence on the date of retention. Furthermore, the district court was misguided in emphasizing LAD's acclimatization to the United States for purposes of its habitual residence determination. Evidence of acclimatization is not enough to establish a child's habitual residence in a new country when contrary parental intent exists. See Mozes, 239 F.3d at 1078-79. A "change in geography" and "the passage of an appreciable period of time ... that is sufficient for acclimatization" are considerations for the court when "the decision to alter a child's habitual residence depends on the shared settled intention of the parents." In the absence of shared parental intent, the district court should have "be [en] slow to infer ... an earlier habitual residence has been abandoned." The evidence on record did not show that the parties shared an intent to change LAD's habitual residence to the United States, but instead it pointed only to Olivero's individual intent to do so. Accordingly, it concluded that the district court's finding otherwise was clearly erroneous. Applying the de novo standard of review the ultimate habitual residence determination calls for it found that Darin had established by a preponderance of the evidence that LAD's habitual residence as of the retention was Argentina, and that Olivero wrongfully retained LAD in the United States.
The Fifth Circuit found that the district court, incorrectly using the terms consent and acquiescence interchangeably, found that Darin had agreed to LAD remaining in the United States. It found that Darin, by signing the Affidavit, "voluntarily and without
intimidation, threats or coercion" was agreeing that LAD could stay in the United
States for an indefinite period of time. The district court also found that Darin had "consent[ed] to LAD's retention in the United States because he "failed for five
(5) months to make any meaningful effort to obtain return of the minor child and
failed to pay any child support." The evidence on record compelled the Fifth Circuit to conclude that the district court got it wrong.
The consent inquiry focuses on the time prior to the retention and therefore Darin's signing of the Affidavit was out of play. Focusing on the parties' conduct prior to mid-March 2011, there was little Olivero could rely on to support a consent defense during this time period. The objective facts in the record pointed to one conclusion only: Darin did not consent to LAD's retention in the United States in mid-March 2011. Olivero did not make the required preponderance-of-the-evidence showing and her consent defense failed. Because the defense of acquiescence pertains only to what happened post-retention, the relevant period was between mid-March 2011
and Darin's filing of the petition for return on December 19, 2011. Acquiescence tends to require more formality than consent. When attempting to characterize ambiguous conduct as a basis for inferred acquiescence, courts employ a pure subjective intent inquiry. The subjective intent refers to the subjective intent of the parent who is claimed to have acquiesced. Olivero's primary argument was that the Affidavit evidences Darin's acquiescence to LAD remaining in the United States. This was a dead end. Acquiescence to LAD's retention in the United States could not be found in the plain language of the Affidavit, nor could the Affidavit be read to imply such. The district court was mistaken in concluding it did. A reading of the Affidavit revealed no mention in the entire two-page document, express or implied, of establishing a new residence in, or permanently relocating to, the United States. Also, the fact that the Affidavit contained open-ended terms was not evidence that Darin acquiesced to LAD remaining permanently in the United States. Both parties testified that they executed the Affidavit so Olivero could take care of LAD while Darin was away. In light of the Affidavit's language and the parties' testimony as to their reasons for its execution, the Affidavit simply could not be read as a declaration of acquiescence, much less unconditional acquiescence, to the retention of the child in the United States. The defense of acquiescence calls for definiteness and clarity, i.e., a clear and unequivocal expression of an agreement or a convincing written renunciation of rights. The Affidavit fell far short. Moreover, the Affidavit did not support the district court's alternative finding that it functioned as a renunciation of rights under the Convention.
Olivero contended that Darin's acquiescence could be inferred from some of
his actions after he left Puerto Rico. She argued that Darin's filing of the petition for return in December 2011 was inconsistent with Darin opposing LAD's relocation to the United States. That Darin took around five months to file the petition after he was back in Argentina was not enough to constitute acquiescence. The fact that Darin officially filed on December 19, 2011 did not mean he decided to pursue legal action on that day. Furthermore, the Convention allows for a petition to be filed up to a year after the wrongful retention. See Convention, supra Article 12 at 1502. And even when a petition is filed after the one year period, there are instances where a federal court may still order a child's return. To say that Darin acquiesced because he filed within the time prescribed by the Convention is irrational. It would render the Convention's one year provision pointless. Darin had a full year to file his petition, and he did file within that year. In this particular instance, the passage of time between Darin's departure from the United States and his filing of a timely petition for return was not probative of acquiescence.
Darin established wrongful retention by a preponderance of the evidence.
Because Olivero did not introduce sufficient evidence to establish Darin's consent
or acquiescence to this retention, the court ordered the return of LAD to Argentina.
In Mendoza v Silva, 2014 WL 658068 (N.D.Iowa) Plaintiff Maria Guadalupe Aguilar Mendoza, a citizen of Mexico, filed an action pursuant to the Hague Convention to secure the return of her daughters, to Mexico. After the district court ordered Mr. Medina to transfer the minor children to Ms. Mendoza at the United States/Mexico border in Nuevo Laredo, Mexico, the case was before the district court on Ms. Mendoza's December 20, 2013, Motion For attorney's fees totaling $32,265.00 and expenses totaling $3,084.62.
Mr. Medina contended that no award of fees or expenses was appropriate because he believed (and still believes) in good faith that the parties had an agreement for the children to come to and remain in the United States to start school; the attorney's fees and costs claimed by Ms. Mendoza were not reasonable and, were approximately three times his own attorney's fees; and he was earning only approximately $9.00 per hour, so that he could not possibly afford to pay any attorney's fees or expenses in this matter.
The district court surveyed the relevant cases under 42 U.S.C. § 11607(b)(3) and observed that there is a relatively small, but significant group of decisions of the Circuit Courts of Appeals concerning the standards for awards of fees and expenses under these provisions. (Citing Hollis v. O'Driscoll, 739 F.3d 108, 113 (2d Cir.2014) ; Ozaltin v. Ozaltin, 708 F.3d 355, 377 (2d Cir.2013); Whallon v. Lynn, 356 F.3d 138, 140 (1st Cir.2004); West v. Dobrev, 735 F.3d 921, 932 (10th Cir.2013). The appropriate standards for awarding fees and expenses in international child return cases are as follows: [Section] 11607(b)(3) retains what we have previously described as the "equitable" nature of cost awards. Moore v. County of Delaware, 586 F.3d 219, 221 (2d Cir.2009).... [A] prevailing petitioner in a return action is presumptively entitled to necessary costs, subject to the application of equitable principles by the district court. Absent any statutory guidance to the contrary, the appropriateness of such costs depends on the same general standards that apply when "attorney's fees are to be awarded to prevailing parties only as a matter of the court's discretion." Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994)."There is no precise rule or formula for making these determinations, but instead equitable
discretion should be exercised in light of the [relevant] considerations."Ozaltin, 708 F.3d at 375. The Circuit Courts of Appeals have also provided guidance on specific considerations that go into the district court's exercise of its discretion and equitable consideration of claims for fees and expenses in international child return cases. First, where the respondent "is not blameless for the current state of affairs," the Tenth Circuit Court of Appeals has held that an award of fees and expenses is not "clearly inappropriate." West, 735 F.3d at 933. On the other hand, where the respondent had a "reasonable basis for thinking at the time of removing the children to the United States ... that her actions were consistent with [the law of the country of habitual residence]," that belief, even if mistaken, "is a relevant equitable factor when considering whether a costs award is appropriate." Ozaltin, 708 F.3d at 375. Also, "[a]t least two courts of appeals have recognized that a fee award in a case under the Convention might be excessive and an abuse of discretion if it prevents the respondent-parent from caring for the child." Norinder v. Fuentes, 657 F.3d 526, 536 (2d Cir.2011) (citing Whallon, 356 F.3d at 139, and Rydder, 49 F.3d at 373-74). Several district courts have not simply reduced awards of costs in light of a respondent's inability to pay, but have declined to award costs at all, where the losing respondent would be unable to pay any amount of an award, on the ground that any award would be "clearly inappropriate" in such circumstances.
The district court concluded that it was "clearly inappropriate" to award any of Ms. Mendoza's claimed legal fees against Mr. Medina. The court found it to be a very close case. It believed that Mr. Medina had a mistaken, but nevertheless good faith belief that the parties had agreed that he would take the children to the United States where they would attend school. See Ozaltin, 708 F.3d at 375. Just as importantly, it found that Mr. Medina's financial circumstances made it "clearly inappropriate" to award any substantial amount of attorney's fees against him. Doing so would interfere with his ability to provide other support to his children. Mr. Medina earned approximately $9 per hour, and the record did not show that he had any other assets from which so large a fee award could be satisfied. However, with regard to Ms. Mendoza's claimed expenses it found that even considering Mr. Medina's financial condition, awarding some share of Ms. Mendoza's expenses is consistent with the goals of Article 26 of the 1980 Hague Convention and 42 U.S.C. § 11607(b)(3); and, in part, because Ms. Mendoza had some obligation to pay these expenses out-of-pocket, even if her legal representation was pro Bono. It awarded her one-half of her claimed expenses, that is $1,542.31,against Mr. Medina.
In Neergaard v Colon, 2014 WL 936691 (D.Mass.) Petitioner Peter Moeller Neergaard, a Danish citizen, and respondent Lisette Neergaard Colon, a United States citizen, lived in Singapore with their two minor daughters, S.S. and L.A. Petitioner and respondent were married. Petitioner worked for a software company in Singapore.. His employer expects him to work in Singapore for three years, beginning in June 2012. Respondent, who worked for the Boston Public Schools, requested an extension of her maternity leave through June 2015, the conclusion of the three-year period. The couple had two daughters, S.S., age 3, and L.A., age 2. The daughters were dual Danish and American citizens. In December 2013, the parties and the children traveled to Denmark to celebrate Christmas. They agreed that on January 4, 2014, respondent and her children would fly to the United States and remain here for two weeks. Respondent reserved seats for herself and the children on a return flight to Singapore on January 20, 2014, but they did not board the plane. Since that time, the parties were unable to resolve the situation among themselves. The remained in the United States. Petitioner filed a verified petition for immediate return of the children to Singapore pursuant to the Hague Convention. After a hearing the district court granted the petition.
Respondent did not challenge the substantive allegations of the petition , nor did she allege that any of the exceptions excusing the ordering of immediate return upon a finding of wrongful retention applied. The dispute boiled down to the following question: what was the children's habitual residence immediately preceding the retention? If it was Singapore, the retention is unlawful. If it was the United States, it is lawful.
Petitioner contended that "[t]he parties' only shared intention was to leave the U.S. and reside in Singapore. The parties rented a house in Singapore and shipped their belongings there. They opened a bank account and bought health insurance in Singapore. They enrolled S.S., their eldest daughter, in educational programs. Both daughters lived in Singapore for the majority of their lives. They had regular "play dates" with friends there. Id. In short, "[t]he children have become accustomed to life in Singapore since their arrival in June 2012.
Respondent contended that the parties understood that the move to Singapore
was temporary; they did not agree to stay there beyond the three-year job assignment. Petitioner had obtained permanent resident status in the United States and met with an attorney to make sure the move to Singapore did not compromise that status. They owned two condominiums in Boston, the second of which they purchased the week before they moved. Respondent did not extend her maternity leave beyond the end of the three-year assignment and intends to return to work at that time. According to her, "[p]eople who share an intent to abandon the United States for a new home in Singapore do not behave in that manner.”
The district court found that the parties agreed to move to Singapore for three years, and the three-year period had not yet elapsed. "To establish an habitual residence, it is not necessary to have an intention to stay in a place indefinitely." McManus v. McManus, 354 F.Supp.2d 62, 67 (D.Mass.2005). What is required is a " 'sufficient degree of continuity to be properly described as settled.' " Feder v. Evans-Feder, 63 F.3d 217, 223 (3d Cir.1995) (quoting re Bates, No. CA 122-89, High Court of Justice, Family Div'l Ct. Royal Courts of Justice, United Kingdom (1989)). Petitioner found work in Singapore and the parties settled there to live as a family, even if not indefinitely. They did what people who settle in a new place do: find a house, open financial accounts, establish medical care, and explore schooling options. Respondent's intention not to remain there cannot overcome this undisputed fact. The Court found that the parties' shared the intention that S.S. and L.A. reside in Singapore. The record showed that S.S. and L.A. had acclimated to Singapore. Given the parties' shared intention to live in Singapore as a family and the degree to which S.S. and L.A. have adapted to life there, the court found that Singapore was the children's place of habitual residence in January 2014 when respondent retained them in the United States, and granted the petition.
