Tavares v Morales, 2014 WL 2038318 (S.D.N.Y.) [Spain] [Now Settled] [Petition Denied]

In Tavares v Morales, 2014 WL 2038318 (S.D.N.Y.)  Inocencia Herrera Taveras's , who resided in Spain, filed a Petition seeking return of her child, LAH. The Court held that although Petitioner  made out a prima facie case, Respondent established that the child was now "settled" in the United States and denied the petition.

LAH, was born in Santo Domingo, Dominican Republic, on September 20, 2005. Petitioner and Respondent, who never married, lived together with LAH in the Dominican Republic from the child's birth until September 2007.  The parties separated in September 2007.  In approximately March 2008, Petitioner moved to Spain in order to take advantage of a better economic climate, and the child began to live with Respondent, who remained in the Dominican Republic.  Respondent returned the child to Petitioner on December 9, 2009, when Petitioner returned to the Dominican Republic after acquiring Spanish residency. In early March of that year, Petitioner decided to return to Spain and made plans to leave the child with Respondent. In June 2010, Petitioner returned to the Dominican Republic from Spain. The child then moved in with Petitioner.  On August 29, 2010 Respondent arrived at Petitioner's home and took the child, over Petitioner's objection. Petitioner-who was seven months pregnant with LAH's half-sister-then traveled to Respondent's home in an attempt to recover LAH. On  the following day the parties signed an agreement stating that Respondent "relinquishes and gives custody of the minor [LAH] to Ms. Inocencia Herrera Taveras"; that "Ms. Inocencia Herrera Taveras accepts custody of the minor [LAH], with all legal consequences"; and that "Mr. Jose Leopoldo Alonzo Morales will have visitation with his daughter during the school vacation period and will maintain phone communication with
her." On September 10, 2010, the First Court of Children and Adolescents of the National District in the Dominican Republic issued an order that "approved" the parties' August 30, 2010 agreement. 

Petitioner returned to Spain in September;  after her departure, LAH, who remained in the Dominican Republic, lived with Petitioner's mother and visited with Respondent on weekends.  On February 2, 2011, LAH left the Dominican Republic to live with Petitioner in Spain.  LAH became a legal resident of Spain by April 2011, and remained there until May 2012. Respondent's mother obtained US residence in 1998 through her sister, who was a United States citizen. With his mother's "sponsorship," Respondent applied for residence in 2000, before LAH was born.  Respondent moved to the United States in April 2011, while LAH was in Spain, and eventually obtained his residence.   When Respondent became aware that he could also apply for LAH's residence, he conferred with Petitioner, who agreed that LAH should apply for United States residence. LAH's application for residence was submitted in 2008.    In April 2012, the United States embassy in the Dominican Republic contacted Respondent to inform him that it had scheduled an interview for LAH's permanent residence application. Petitioner agreed to send LAH to the Dominican Republic and, ultimately, the United States.  LAH arrived in the Dominican Republic on May 5, 2012, and completed the consular interview, accompanied by Respondent and his mother. LAH remained in the Dominican Republic until early July. She spent part of that time living with Petitioner's family and part living with Respondent, his mother, and other members of his family. Respondent left the Dominican Republic for the United States on June 26, 2012, and Petitioner arrived in the Dominican Republic from Spain on June 28, 2012. With Petitioner's permission-LAH traveled from the Dominican Republic to the United States accompanied by Respondent's mother and arrived in the United States on July 12, 2012.  Respondent and his mother testified that approximately twenty-eight days after LAH entered the United States they were informed that she had received her residence card at approximately this time . According to LAH's permanent residence card, she became a United States resident on July 11, 2012.    According to Respondent, he told Petitioner that LAH had obtained her permanent residence almost immediately after LAH received the card-approximately twenty-five to thirty days after LAH had arrived in the United States. Respondent testified further that Petitioner demanded LAH's return. Petitioner testified that after LAH arrived in the United States, Respondent repeatedly dodged her questions about whether the child had received her residence, stating only that "[t]hings will arrive." According to Petitioner, the first time Respondent told her that LAH had received her residence was in a conversation on November 25, 2012.  

The Hague Petition was filed on October 31, 2013. The Court observed that 
to make out a prima facie case under the Hague Convention, the petitioner must
show, inter alia, that "the child was habitually resident in one State and has been removed to or retained in a different State. Respondent challenged only this element. habitual residence of the child." Petitioner understood that the child would eventually return to live in Spain. This understanding was manifest in the parties' May 5, 2010 "Amicable Agreement," which provided that after LAH obtained her residency, she was to "reside and study in Spain with her mother" and would "spend December and summer holidays in the United States of America with her father." The parties' August 30, 2010 custody agreement confirmed this understanding. Petitioner testified unequivocally that she understood that Spain would be the child's residence, and nothing in Respondent's testimony suggested otherwise. Petitioner has demonstrated that Spain is the child's habitual residence,  and with that showing has established a prima facie case.

The District Court noted that when a child has been wrongfully retained, Article 12 of the Convention requires the court to "order the return of the child forthwith" if the petition is filed within one year of the wrongful retention. Article 12 then provides: "The
judicial or administrative authority, even where the proceedings have been
commenced after the expiration of the period of one year referred to in the
preceding paragraph, shall also order the return of the child, unless it is
demonstrated that the child is now settled in its new environment."    This provision thus "allows-but does not require-a judicial or administrative authority to refuse to order the repatriation of a child on the sole ground that the child is settled in its new environment, if more than one year has elapsed between the abduction and the petition for return." To determine when the one-year period began to run the Court adopted the definition of the official Reporter of the Hague Convention which noted that "[t]he fixing of the decisive date in cases of wrongful retention should be understood as that on which the child ought to have been returned to its custodians or on which the holder of the right of custody refused to agree to an extension of the child's stay in a place other than that of its habitual residence." . When the petitioner
consents to the child's stay with respondent until a specific date, the retention
becomes wrongful after that date-the date "on which the child ought to have been
returned."Perez-Vera Report P 108. If, on the other hand, the petitioner does not
specify a return date at the outset, or initially consents to a stay of indefinite
duration, the retention becomes wrongful on the date the petitioner "refused to
agree to an extension of the child's stay." The Court concluded that regardless of
whether it credits Respondent's testimony or what the Court views as the more
plausible version of Petitioner's testimony, the retention became wrongful before
October 31, 2012. The "now-settled" defense was available to Respondent. The  Court concluded, -based on Petitioner's unequivocal testimony,  that she did not consent to Respondent's retention of LAH became wrongful as of the end of the summer of 2012. Because her Petition was filed over one year after the end of summer 2012, the "now-settled" defense was available to Respondent.

The Court noted that although the Hague Convention does not define the phrase "settled," the Second Circuit has explained that the term "should be viewed to mean that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment." Lozano v. Alvarez, 697 F.3d 41, 56 (2d Cir.2012). Although courts "may consider any factor relevant to a child's
connection to his living arrangement," the Circuit has explained that courts
should "generally" consider: (1) the age of the child; (2) the stability of the child's residence in the new  environment; (3) whether the child attends school or day care consistently; (4)  whether the child attends church or participates in other community or  extracurricular school activities regularly; (5) the respondent's employment and
 financial stability; (6) whether the child has friends and relatives in the new
 area; and (7) the immigration status of the child and the respondent. The court reviewed each of these factors and concluded that LAH was settled in the United States.

  The Court recognized that it may order repatriation notwithstanding
Respondent's proof of an Article 12 defense. Blondin v. Dubois, 238 F.3d 153,
164 (2d Cir.2001) ("As we read Article 12, it allows-but does not, of course,
require-a judicial or administrative authority to refuse to order the repatriation
of a child on the sole ground that the child is settled in its new environment, if
more than one year has elapsed between the abduction and the petition for
return."). It chose not to do so here. This was not a case in which Petitioner waited
years to assert her custody rights. The child's interest in remaining settled is also a factor the Court may consider. As the Supreme Court has explained, while the Convention "reflects a design to discourage child abduction," it "does not pursue that goal at any cost." Lozano v. Alvarez, --- U.S. ----, ----, 134 S.Ct. 1224, 1235, 188 L.Ed.2d 200 (2014). In certain instances, "the child's interest in settlement" may overcome the petitioner's right to adjudicate the custody dispute in the child's habitual
residence. This was one of those cases. Because the evidence shows overwhelmingly that LAH was now settled- thriving-in the United States, the Court declined to exercise its authority to order repatriation notwithstanding Respondent's Article 12 defense. The Petition was denied.

Sanchez-Londono v. Gonzalez, 752 F.3d 533 (1st Cir., 2014) [Colombia] [Habitual Residence] [Petition Denied]

In Sanchez-Londono v. Gonzalez, 752 F.3d 533 (1st Cir., 2014) the mother claimed that Respondent–Appellee Nelson González (the “father”) wrongfully retained their daughter, E.G., in the United States and sought an order requiring the child's return to Colombia, where E.G. lived with her mother for two-and-a-half years. The district court found that no wrongful retention of E.G. occurred under the Hague Convention because the United States was E.G.'s place of habitual residence. The First Circuit affirmed. 

The mother was a citizen of Colombia who, in 2004, entered the United States illegally. The father came to the United States from the Dominican Republic and became a naturalized U.S. citizen in April 2000. They married on December 20, 2005. In October 2006, the couple's daughter, E.G., was born in Massachusetts. E.G. was a citizen of both the United States and Colombia. After E.G. was born, the family lived together in Framingham, Massachusetts, for more than two years. The mother was stopped for a traffic violation in 2008, prompting concerns that she would be identified as an illegal immigrant and deported. The couple agreed that the mother temporarily would move back to Colombia. From there, they believed she would have a better chance of obtaining legal residency in the United States. The parents agreed that the mother would take E.G. back to Colombia with her, and that the mother, E.G., and her older daughter, C.A. would all move to the United States once the mother obtained legal status. The mother and E.G., who was two years old at the time, moved to Colombia on December 7, 2008. What was intended to be a short stay in Colombia turned into a stay of two-and-a-half years. While the mother and E.G. were living in Colombia, the father worked on petitions seeking permission for the mother and C.A. to enter the United States legally. He filed a petition for the mother in January 2009 and for C.A. in December 2009. C.A.'s petition was granted on December 30, 2010. The mother's petition was denied because she had previously entered the United States illegally and therefore was excluded from reentering for ten years. Believing that the father would take good care of both girls and that it would improve her chances of obtaining a waiver if both of her daughters were living in the United States, the mother agreed to let both C.A. and E.G. move to the United States. The father returned to Colombia to pick up the girls, and he flew with them  back to the United States on May 28, 2011. E.G. was approximately four-and-a-half years old at the time. When the father and girls arrived in the United States in May 2011, they lived in the father's residence in Framingham, Massachusetts. In December 2011, the father informed the mother that he would be sending C.A. back to Colombia.  The mother demanded that he also return E.G., who was then five years old, but the father refused. The mother's suspicions of an affair were confirmed when she spoke with C.A. upon C.A.'s return to Colombia in February 2012.  According to the mother, the father cut off all communication between her and E.G. from December 2011 until October 2013. He obtained a new phone number in February 2012, filed for divorce on April 4, 2012, and in May of 2012, he moved from Framingham to Quincy, Massachusetts, with E.G. and McShane. The father did not inform the mother of the move or of their new address, thereby interfering with her ability to communicate with her daughter. When E.G. began kindergarten at a school in Quincy in the fall of 2012, the father did not give the school the mother's contact information. On November 21, 2012, the Middlesex Probate and Family Court granted the father's uncontested petition for divorce, giving him sole legal and physical custody of E.G. The father married McShane after the divorce, and on January 2, 2013, the pair wrote an e-mail to the United States Citizenship and Immigration Services (“USCIS”) asking that the mother's immigrant visa petition be terminated. The e-mail explained that the parents had divorced and that the father no longer supported the mother's request.

The mother filed a petition for E.G.'s return in the district court on May 3, 2013. The district court denied the mother's petition for E.G.'s return. The court found that the date of E.G.'s retention was December 2011, when the mother demanded E.G.'s return to Colombia and the father refused. The district court also found that immediately prior to December 2011, the shared intent and settled purpose of both parties was that E.G. live in the United States, as neither parent had intended that E.G. abandon her habitual residence there. While the court found that E.G. had been acclimatized to Colombia by the time that she left in May 2011, it also found that at the time of her retention in December 2011, E.G. was acclimatized to the United States. Thus, the district court concluded that E.G.'s habitual residence was the United States at the time of her retention, and that her retention was not wrongful under the Hague Convention. 

  The First Circuit noted that in this case, the only factor in dispute was first factor: whether Colombia was E.G.'s habitual residence immediately prior to her retention in the United States in December 2011. This factor was critical, because 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. Although the Hague Convention does not define the term “habitual residence,” the court had adopted an approach that “begins with the parents' shared intent or settled purpose regarding their child's residence.” Nicolson v. Pappalardo, 605 F.3d 100, 103–04 (1st Cir.2010). As a secondary factor, “evidence of a child's acclimatization to his or her place of residence may also be relevant.” Neergaard–Colón, 2014 WL 2111307, at *2, 752 F.3d at 530. The Court began its analysis with the critical issue of shared intent. Because young children like E.G. lack both the material and psychological means to decide where they will reside, the Courts inquiry focuses on the shared intent or settled purpose of the parents, who are entitled to determine the child's place of habitual residence. Specifically, the Court  must determine the intent of the parents at the latest time that their intent was shared, recognizing that the unilateral wishes of one parent alone are not sufficient to change a child's habitual residence.   Additionally, it must 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. 

In this case the district court determined that it was the shared intent and settled purpose of the parties that E.G. live in the United States, and that they did not intend to abandon their habitual residence in the United States in favor of Colombia. The First Circuit found that the  mother testified that she never discussed the possibility of the father moving to Colombia, that both parties agreed in 2011 that E.G. should be in the United States, and that she agreed that the father could raise E.G. in the United States. There was  ample record support for the district court's factual finding that “[t]here was no condition, agreed or otherwise, that E.G. would return to Colombia if [the mother] could not gain admission into the United States.”  Both parties intended for the separation of daughter and mother to end with the mother's return to the United States, not with E.G.'s return to Colombia.The record revealed that the district court's finding was not clearly erroneous. The mother testified under oath that she would still move to the United States to be with E.G. if allowed entry, and she did not request that the father return E.G. to Colombia until December 2011. By that time, nearly seven months had passed without any change in the mother's immigration status, and roughly four months had passed since she first suspected that her husband was engaged in an extramarital affair. Neither realization prompted her to request E.G.'s return prior to the father's announcement that he was sending back C.A. in December 2011.Finding no error—clear or otherwise—in the district court's reasoning and review of the record, the court upheld its factual finding that the parties' shared intent was that E.G. habitually reside in the United States.

The First Circuit observed that in addition to shared parental intent, factors evidencing a child's acclimatization to a given place—like a change in geography combined with the passage of an appreciable period of time—may influence our habitual-residence analysis. Typically, evidence of acclimatization is not enough to establish a child's habitual residence in a new country when contrary parental intent exists.  Nevertheless, it may be possible for a child to obtain a new habitual residence without such shared intent in certain limited 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.  

In this case, the district court recognized that after more than two years in Colombia, E.G. had acclimatized to that country by the time she left it in May 2011. Noting that the date of retention was December 2011, however, the district court concluded that by that time, E.G. was once again acclimatized to the United States. E.G. had spent time with her father and half-sisters in Massachusetts, she went on trips to the park and to the swimming pool with a family friend from church, and she had been attending daycare in Massachusetts for nearly four months. Thus, the district court concluded that E.G.'s return to the United States and her acclimatization there, coupled with the parents' shared intent that E.G. live permanently in the United States, established that the United States was E.G.'s habitual residence at the time immediately prior to her retention.

The mother  argued that had the district court properly found that Colombia was E.G.'s habitual residence in May 2011, it should have been slow to find that her habitual residence in Colombia had been abandoned in favor of the United States by December 2011.The First Circuit found that this argument cut against the mother's position.  A district court should be “slow to infer” that an earlier habitual residence has been abandoned in favor of a new one, in the absence of shared parental intent.  It held that  was precisely the approach taken by the district court in this case. In the absence of shared parental intent to abandon habitual residence in the United States, the district court was quite correctly slow to infer that E.G.'s earlier habitual residence in the United States had been abandoned. Thedistrict court found, and the record supported, that then-five-year-old E.G. had acclimatized to life in the United States by December 2011. This fact, coupled with the finding of shared parental intent that E.G. live permanently in the United States, showed that E.G.'s habitual residence immediately prior to her retention was the United States. Accordingly, E.G.'s retention in her place of habitual residence was not wrongful under the Hague Convention, and the district court properly denied the mother's petition for the return of E.G. to Colombia.

Sealed Appellee v Sealed Appellant, --- Fed.Appx. ----, 2014 WL 3585835 (C.A.5 (Tex.)) [Mexico] [Habitual Residence] [Petition Granted]

In Sealed Appellee v Sealed Appellant, --- Fed.Appx. ----, 2014 WL 3585835 (C.A.5 (Tex.))   Plaintiff-Appellee A.V. filed a petition under the Hague Convention seeking the return of her child, M.V., to Mexico. Plaintiff-Appellee alleged that Defendant-Appellant, M.A.V., unlawfully abducted their minor child when he removed M.V. from Mexico and took M.V. to the United States on June 16, 2012. The district court found that M.V. had been wrongfully removed to the United States and ordered Respondent-Appellant to return M.V. to Mexico. The Fifth Circuit affirmed in a Per Curiam opinion.   The only issue on appeal was whether the district court correctly determined that Mexico, and not the United States, was M.V.'s habitual residence for the purposes of the Convention. Applying the decision in  Larbie v. Larbie, 690 F.3d 295 (5th Cir.2012), the district court found that the parties manifested a shared intent for M.V. to abandon the United States as her habitual residence and to remain in Mexico indefinitely. The Court of Appeals held that the district court's finding that Mexico was M.V.'s habitual residence at the time of M.V.'s removal was supported by sufficient and compelling evidence. The district court based its decision in part on the credibility of both Petitioner and Respondent. The Fifth Circuit stated that it affords credibility determinations great deference upon appellate review. See  Gitter v. Gitter, 396 F.3d 124, 133 (2d Cir.2005) ("[T]he court's task [is] to determine the intentions of the parents as of the last time that their intentions were shared. Clearly, this is a question of fact in which the findings of the district court are entitled to deference.") It rejected Respondent's argument that the district court should not have considered the parties' actions surrounding M.V.'s move to Mexico is unavailing. Since Larbie's shared intent standard is a fact-based inquiry, the district court properly considered the events surrounding the parties' agreement to move M.V. to Mexico when making its habitual residence determination. See  Gitter, 396 F.3d at 134 ("In making [the shared intent] determination the court should look, as always in determining intent, actions as well as declarations."); see also  Larbie, 690 F.3d at 310 (noting that the inquiry into a child's habitual residence "is a fact-intensive determination that necessarily varies with the circumstances of each case").

Neergaard-Colon v Neergaard, --- F.3d ----, 2014 WL 2111307 (C.A.1 (Mass.))[Singapore] [Habitual Residence] [Remanded]

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.

Larrategui v Laborde, 2014 WL 2154477 (E.D.Cal.) [Argentina] [Fees and Costs] [Not clearly inappropriate]

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.

Matter of Katz v Katz, --- N.Y.S.2d ----, 2014 WL 2198516 (N.Y.A.D. 2 Dept.)

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.

Salazar v Maimon, 2014 WL 1688197 (5th Cir., 2014) [Venezuela] [Costs and Necessary Expenses]

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.) [Sweden] [Habitual Residence ] [Acquiescence] [Fundamental Freedoms]

]

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.

         

Ortiz v. Martinez, 2014 WL 1409446 (N.D.Ill.) [Mexico] [Grave Risk of Harm]

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.

Mauvais v Herissee, 2014 WL 1454452 (D.Mass.)) [Canada] [Habitual Residence] [Grave Risk of Harm]

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.

Pignoloni v Gallagher, 2014 WL 642596 (2d Cir 2014) [Italy] [Consent] [Petition denied]

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.