In Murphy v Sloan, --- F.3d ----, 2014 WL 4179961 (C.A.9 (Cal.)) Sloan, a citizen of the United States, and Murphy, a citizen of Ireland, were married in California in 2000. They lived together in Mill Valley, in California, and had a daughter, E.S., in 2005. In October 2009, Sloan told Murphy that he felt their marriage was at an end, and moved to a different bedroom in their house. In January 2010, Murphy and Sloan enrolled E.S. in a private California preschool for the next fall. These plans changed in the spring of 2010, after Murphy proposed moving to Ireland so that she could get a master's degree in fine arts from University College Cork and so that E.S. "could experience going to school" there. Murphy and Sloan discussed the move to Ireland as a "trial period," and Sloan wrote to both the private preschool and the public school district to inform them of E.S.'s move and the temporary nature of the plan. ("This was very last minute, but we decided to try living in Ireland for a year[.]").
In early 2010, Sloan had purchased a second home in Mill Valley so that E.S.
could live easily with both parents. Sloan and Murphy agreed to store Murphy's belongings there during Murphy's time in Ireland, and to rent, rather than sell, this home during her absence so that she would have a place to live when she returned. Murphy moved with E.S. to Ireland in August, and Sloan paid the rent on that home as well. Sloan filed for divorce in October 2010, and served Murphy shortly thereafter. Over the next three years, E.S. attended school in Ireland, but returned to the United States each February, April, summer, Halloween and Thanksgiving to spend time with her father and his extended family. Sloan visited Ireland each December to spend Christmas with E.S. and Murphy. Throughout E.S.'s time in Ireland, she continued to receive her medical and dental care in California rather than in Ireland. In April 2013, without Sloan's knowledge or consent, Murphy took E.S. out of school before the term had ended to visit her boyfriend in the Maldives. She did not respond to Sloan's inquiries for five days. On May 1, Sloan wrote to Murphy asking when E.S. would return to Ireland to resume school, and stated, "If you do not tell me when you are going to get back to Ireland, I am going to start looking into getting her into school here in California for the remainder of the year, and I will come pick her up if I have to." Sloan wrote to Murphy twice the following day, still attempting to find out when she planned to return to Ireland and sending her links to furnished rental units near E.S.'s school. Murphy's only response was to ask Sloan to review the draft of a paper she had written for graduate school. She did not return with E.S. to Ireland until May 7, 2013, by which time E.S. had missed nineteen days of school.
Sloan arrived in Ireland on June 12, 2013, planning to celebrate E.S.'s birthday on June 13, depart on June 16, and return to Ireland on June 26 to bring E.S. back to California for the summer. On the day of Sloan's arrival, Murphy informed him that her landlord had terminated her lease, and that she was planning to leave again for Asia with E.S. Sloan, concerned about E.S.'s absences from school, objected strenuously and begged Murphy to allow E.S. to finish her last two weeks of school in Ireland, offering to pay for a hotel. When Murphy refused to consider this option, and because Sloan's work commitments prevented him from remaining in Ireland until E.S.'s semester was complete two weeks later, Sloan took E.S. with him to the United States when he left Ireland on June 16. Murphy did not object, and told Sloan she was applying to graduate programs in England and the United States. The next day, Murphy flew to the Maldives, and spent much of the summer there and in Sri Lanka with her boyfriend.
On June 21, 2013, Sloan told Murphy that he did not intend to return E.S. to Ireland, to which Murphy responded that if E.S. was going to live in the United States, Murphy would move next to him in Mill Valley. Murphy took no action to compel E.S.'s return to Ireland for nearly three months, until September 2013, when she filed the petition for return. E.S. began third grade in Mill Valley in August 2013. In October 2013, the Marin County Superior Court entered a judgment dissolving the marriage, but left pending the state court action for purposes of issuing further orders regarding child custody, child support and spousal support.
Murphy brought suit under the Hague Convention to compel E.S.'s return to Ireland, contending that Ireland was E.S.'s "habitual residence." The district court denied Murphy's petition. It determined with a "high degree of conviction" that "Murphy and Sloan never had the shared, settled intent to shift E.S.'s habitual residence from the United States to Ireland," and found that the spring of 2010 was the last time that Sloan and Murphy had a shared, settled intent, which was that E.S. reside in California. The court concluded that "E.S. was, at the time of the alleged wrongful retention, and now remains, a habitual resident of the United States."
The Ninth Circuit affirmed. It observed that " To determine a child's habitual residence, we "look for the last shared, settled intent of the parents." Valenzuela v. Michel, 736 F.3d 1173, 1177 (9th Cir.2013). Where a child has a "well-established habitual residence, simple consent to [her] presence in another forum is not usually enough to shift" the habitual residence to the new forum. Mozes, 239 F.3d at 1081."Rather, the agreement between the parents and the circumstances surrounding it must enable the court to infer a shared intent to abandon the previous habitual residence, such as when there is effective agreement on a stay of indefinite duration." The parents' intent is not the only factor to consider. As explained in Mozes, the question is "whether we can say with confidence that the child's relative attachments to the two countries have changed to the point where requiring return to the original forum would now be tantamount to taking the child out of the family and social life in which its life has developed."
The Court declined to accept Murphy’s argument that the Court should adopt a habitual residence standard that would focus on the subjective experiences of the child. It noted that nearly every circuit has adopted its view of the proper standard for habitual residence, which takes into account the shared, settled intent of the parents and then asks whether there has been sufficient acclimatization of the child to trump this intent. (citing Darin v. Olivero-Huffman, 746 F.3d 1, 11 (1st Cir.2014); Gitter v. Gitter, 396 F.3d 124, 134 (2d Cir.2005); Karkkainen v. Kovalchuk, 445 F.3d 280, 292 (3d Cir.2006); Maxwell v. Maxwell, 588 F.3d 245, 253-54 (4th Cir.2009); Larbie v. Larbie, 690 F.3d 295, 310-11 (5th Cir.2012); Koch v. Koch, 450 F.3d 703, 717-18 (7th Cir.2006); Ruiz v. Tenorio, 392 F.3d 1247, 1252-54 (11th Cir.2004) (per curiam). But see Robert v. Tesson, 507 F.3d 981, 991 (6th Cir.2007) (focusing "solely on the past experiences of the child, not the intentions of the parents").
Murphy argued that in foreign courts, parental intent is "only one of the factors that may be relevant" to the habitual residence inquiry. She pointed to decisions of courts other countries which placed a greater emphasis on a child's surroundings or "actual centre of interests" in determining habitual residence. The Court held that in this regard, its decision in Mozes, by which it was bound, was not inconsistent with recent decisions of international courts. It was not persuaded that there had been a worldwide sea change since Mozes, let alone a new worldwide consensus, that would warrant a suggestion to reconsider its decision.
The Ninth Circuit found that it was undisputed that before she left for Ireland, E.S.'s habitual residence was the United States. In concluding that "the parties never had a 'shared settled intent' that E.S.'s habitual residence would be Ireland," and that "E.S. never abandoned her habitual residence in the United States," the district court made a number of factual findings. These included the finding that the last "shared, settled intent regarding E.S.'s habitual residence" was in the spring of 2010 (United States); that "Murphy's move to Ireland with E.S. was intended as a 'trial period,' and that E.S. never abandoned her habitual residence in the United States"; that E.S. retained strong ties to community and family in California and elsewhere in the United States; that Murphy had no fixed residence in Ireland as of the date of the wrongful retention; that many of Murphy's and E.S.'s possessions remained in California; and that E.S. was continuing to spend part of the year in California with Sloan. The district court further noted that E.S. retained both U.S. and Irish citizenship; that Murphy had a California driver's license, but not an Irish one; and that Murphy had no permanent home or longer-term lease or means of support in Ireland, and no longer had any attachment to Ireland in terms of work or schooling after she completed her master's degree in October 2013.
The Court noted that in cases in which parents "have shared a settled mutual intent that [a] stay [abroad] last indefinitely,""we can reasonably infer a mutual abandonment of the child's prior habitual residence." Mozes, 239 F.3d at 1077. But this was not such a case. This case fell in the alternative category identified in Mozes: one in which the "circumstances are such that, even though the exact length of the [child's] stay was left open to negotiation, the court is able to find no settled mutual intent from which abandonment can be inferred." There was never any discussion, let alone agreement, that the stay abroad would be indefinite. As the district court expressly found, the move to Ireland was "intended as a 'trial period,' " not as a permanent relocation. The facts did not evince a shared, settled intent to abandon the United States as E.S.'s residence. Instead, they pointed to the opposite conclusion. Sloan never intended that the stay in Ireland be anything but a "trial period." Murphy, moreover, did not have a settled intent to remain in Ireland, either alone or with E.S., as in the last two years she had applied or had considered applying to graduate schools outside of Ireland, including in the United States, and had not enrolled E.S. in school in Ireland for the fall of 2013. When Sloan took E.S. back to California and told Murphy that E.S. would be enrolling in school in Mill Valley, Murphy did not object, and instead stated "th[at] she was applying to graduate programs."Murphy told Sloan on June 21, 2013 that if E.S. was moving back to the United States, she would move next to him in Mill Valley. The Ninth Circuit found that the district court's factual findings were not clearly erroneous, nor do it disagree with its conclusion that E.S. never abandoned her habitual residence in the United States.
The Ninth Circuit noted that shared parental intent is not always dispositive. Certain circumstances related to a child's residence and socialization in another country, a process called "acclimatization", may change the calculus. To infer abandonment of a habitual residence by acclimatization, the "objective facts [must] point unequivocally to [the child's] ordinary or habitual residence being in [the new country]." Mozes, 239 F.3d at 1081. It has cautioned that "courts should be slow to infer from ... contacts [with the new country] that an earlier habitual residence has been abandoned,", both because the inquiry is fraught with difficulty, and because readily inferring abandonment would circumvent the purposes of the Convention.
Determinations regarding acclimatization are highly fact-bound, and there is no bright line as to the temporal limits for such adjustment. Nor should "acclimatization ... be confused with acculturation." It agreed with the district court that the facts here did not point "unequivocally" to the conclusion that Ireland had become E.S.'s habitual residence. Although E.S. developed strong ties to Ireland through school, extracurricular activities, and contacts with Murphy's family, she also maintained broad and deep "family, cultural, and developmental ties to the United States,"
spent Halloween, Thanksgiving, Easter and summers in the United States while living in Ireland, "maintain[ed] a relationship with Sloan's extended family,""maintain[ed] a community in Mill Valley" and "receive[d] her dental and medical care in California" while living overseas. The district court characterized her ties to the United States as "robust." In light of these substantial ties to the United States and our traditional caution about inferring abandonment, E.S.'s time in Ireland, though significant, did not "unequivocally" establish that she had abandoned the United States as her habitual residence. It agreed with the district court's finding that E.S.'s attachments to Ireland "did not shift the locus of [E.S.'s] development[,] and ... any acclimatization did not overcome the absence of a shared settled intention by the parents to abandon the United States as a habitual residence."
In Ermani v Vittori, --- F.3d ----, 2014 WL 3056360 (C.A.2) the Second Circuit held that the psychological and physical harm arising from separating a child from autism therapy can be sufficiently grave to trigger the Convention’s exceptions, and affirmed the denial of the appellant's petition. It also held as a matter of first impression, the district court's decision to deny the petition without prejudice to renewal was error, and amended the judgment to deny the petition with prejudice.
Emiliano Ermini and Viviana Vittori were Italian citizens. They were married in 2011. The couple had two children: Emanuele, who was 10, and Daniele, who was 9. Daniele was autistic. In the midst of a custody dispute, Ermini petitioned the district court pursuant to the Hague Convention seeking the return to Italy of his two sons, who were then, and today remain, in the United States. Ermini filed his petition in August of 2012, and the district court conducted a bench trial in January of 2013. The district court found that the family had moved to the United States in August of 2011 in connection with its longstanding efforts to find appropriate treatment for Daniele, who had been diagnosed with autism in March of 2008, and the couple sought unsuccessfully to find adequate Applied Behavioral Analysis ("ABA") therapy for Daniele in Italy. In Spring of 2010, in Italy, they met Dr. Giuseppina Feingold, an Italian-speaking doctor with a practice in Suffern, New York. In August of 2010, they traveled to New York so that Dr. Feingold could more fully assess and begin treating Daniele. The parents were impressed with the treatment options presented by Dr. Feingold, and began to plan a move to Suffern, at first for a period of two-three years, but with the potential of a permanent relocation in mind, depending on the success of Daniele's treatment. The family returned to New York in August of 2011, and promptly signed a one-year lease on a house. The children were enrolled in public schools, and Daniele's therapy began soon after. The parents put their home in Italy on the market, prepared to open a business in the United States, and made arrangements to send their belongings here. Ermini, who had remained employed in Italy, traveled back and forth between the United States and Italy. During a December of 2011 return to America, a "violent altercation" occurred, with Ermini physically abusing Vittori in the kitchen of their Suffern, New York home. During this altercation Ermini had, among other acts, hit Vittori's head against a kitchen cabinet, and attempted to "suffocate" and "strangle" her. The district court determined this incident was part of a history of physical violence by Ermini. The court found that Ermini "expresses anger verbally and physically," had hit Vittori at least ten times during the course of their relationship, and was "in the habit of striking the children." In response to the December of 2011 incident, Vittori obtained a temporary order of protection from the Suffern Court of Justice for herself and the children . The order, among other things, granted her temporary custody of the children through May 9, 2012.
Ermini returned to Italy and instituted divorce proceedings. Vittori went
back to Italy for those proceedings in April of 2012, by which time the children's
American visas had expired. In September of 2012, Ermini petitioned an Italian court in Velletri for an order directing Vittori to return with the children to Italy. The court in
Velletri granted Ermini's petition, ordering Vittori to return with the children, and making various rulings granting shared parental authority between Ermini and Vittori and assigning visitation rights. In April of 2013 the Court of Appeals in Rome issued an order vacating several provisions of the Velletri court's order. The Court of Appeals granted Vittori exclusive custody of the children, did not require her to return to Italy with the children, and explicitly fashioned its order to comport with the orders of protection issued in the United States arising from the December of 2011 domestic abuse incident.
The district court found that Daniele had "significantly progressed" with his therapy in the United States. He was engaged in a Comprehensive Application of Behavioral Analysis to Schooling ("CABAS") program in Stony Point, New York, which, according to Vittori's expert, Dr. Carole Fiorile, offered the best ABA curriculum then available to autistic children. The program involved one-on-one instruction with an educational team, including a special educational teacher, an occupational therapist, a speech and language therapist, several classroom assistants, and a full-time one-on-one teaching assistant. The district court noted that Dr. Fiorile had stated that Daniele required such a program to continue to make meaningful progress in, among other things, cognition, language, and social and emotional skills. Dr. Fiorile had also testified that while the United States has over 4,000 board certified ABA practitioners, there were, to her knowledge, fewer than twenty in Italy. The district court, weighing Dr. Fiorile's opinion about the CABAS program, concluded that separating [Daniele] from the CABAS program ... would put him in an intolerable situation due to the grave risk of deterioration of his condition and denial of needed rehabilitation. The district court found that Daniele and Emanuele have a close, loving relationship, and that the children and Vittori had overstayed their visas and had applications for renewal pending. The district court held that Ermini had proved by a preponderance of the evidence: (1) that the children were habitual residents of Italy, and were being retained in the United States by Vittori; (2) that the retention was in breach of Ermini's custody rights under the law of Italy; and (3) that Ermini was exercising those rights at the time of the children's retention in the United States. The district court ruled in Vittori's favor that return to Italy posed a "grave risk" of harm to Daniele, pursuant to Hague Convention, Article 13(b), which precludes repatriation of a child where there "is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." The record, according to the district court, established that, because Daniele was severely autistic, he would face a grave risk of harm if he had to return to Italy, as the return would "severely disrupt and impair his development. The court further concluded that Daniele would face "significant regression" if his CABAS program was interrupted and held that the predicted deterioration in Daniele's cognition, social skills and self-care if Daniele was separated from the CABAS program ... constitutes psychological and physical harm sufficient to establish the 'grave risk of harm' affirmative defense . The court also determined that because Emanuele and Daniele had a loving and close relationship, separation would be harmful to both siblings, and that avoiding such a separation met the requirements of the Hague Convention. The court denied Ermini's petition for return to Italy as to both children, but did so "without prejudice to renewal if [Daniele] is no longer able
to participate in the CABAS program and the Italian court system issues a final
order requiring the return of the children to Italy."
The Second Circuit observed that the district court found that the children's habitual residence was Italy, since the parents' last shared intention was to move the family to the United States only for a period of two-three years, and potentially to stay permanently if Daniele's therapy was successful. The Court of Appeals stressed that the period of time of a move is not the only relevant factor in the analysis. It noted that sister signatories have clarified that a habitual residence may be established even when a move is for a "limited period" and indeed "indefinit[e]." It emphasized that the time period attached to a move is but one factor in determining, in a fact-intensive manner, what the settled intent among the parents was in making the move. It believed that the issue at hand was, at the very least, a closer call than it was framed as being by the district court. In this case, the family's move, though indefinite, was not "of a trial nature" or for a "trial period" as in Gitter, nor was akin to a summer sojourn; the move indeed evinces a good degree of "settled purpose" and continuity. As the district court found, Ermini and Vittori leased a house in the United States and put their house in Italy on the market; enrolled the children in school and extracurricular activities in the United States; planned to open a business in the United States; prepared to move all of their belongings to the United States; and shifted Daniele's all-important medical care and treatment to the United States. This was a move shared in the parents' minds not only as one of duration, stretching into years, but also formed with an understanding that the duration could become permanent if Daniele's treatment was succeeding. The facts found by the district court established, at a minimum, that the family intended to shift the locus of their family life to the United States for a span of years. And, given these circumstances, the Court stated “...we are left uncomfortable with the district court's conclusion that the family's habitual residence did not change.” Nor, was it clear that Vittori breached Ermini's custody rights. However, because other grounds existed to affirm the district court's denial of Ermini's petition, it did not determine this issue.
The Second Circuit agreed with the district court that the risk of harm Daniele faced if removed from his therapy and returned to Italy was grave enough to meet the Hague Convention's standards. It also held, contrary to the district court, that
Ermini's history of domestic violence towards Vittori and the children was itself
sufficient to establish the Hague Convention's "grave risk" of harm defense. The Court observed that it has stressed that a grave risk of harm exists when repatriation would make the child face a real risk of being hurt, physically or psychologically. The potential harm "must be severe," and there must be a "probability that the harm will materialize." Souratgar v. Lee, 720 F.3d 96,103 (2d Cir.2013). Domestic violence can satisfy the defense when the respondent shows by clear and convincing evidence a "sustained pattern of physical abuse and/or a propensity for violent abuse." . And it had concluded that a "grave risk" of harm from abuse had been established where the petitioning parent had actually abused, threatened to abuse, or inspired fear in the children in question. Spousal violence, in certain circumstances, can also establish a grave risk of harm to the child, particularly when it occurs in the presence of the child. It has allso been careful to note that sporadic or isolated incidents of physical discipline directed at the child, or some limited incidents aimed at persons other than the child, even if witnessed by the child, have not been found to constitute a grave risk.
The district court found that Ermini "expresse[d] anger verbally and physically," and that he struck Vittori and frequently hit the children. The district court determined that Ermini was "in the habit of striking the children." The district court construed some of the hitting as disciplinary, but it did not, and could not, conclude that the hitting was "sporadic or isolated." The court also found that Vittori testified credibly that Ermini "had hit her at least 10 times during the course of their relationship." On the question of abuse, the district court's findings about the "violent altercation" in the kitchen of their Suffern residence on December 28, 2011 were particularly troubling. The court credited both Vittori's account of having her head "shoved" into the kitchen cabinets while Ermini attempted to "suffocate" and "strangle" her, and Emanuele's parallel account of the events, which both he and Daniele observed. The district court also credited Emanuele's testimony that he generally feared his father. The Second Circuit believed that these findings by the district court manifestly established that Ermini engaged in a "sustained pattern of physical abuse," directed at Vittori and the children: Vittori was repeatedly struck; as were the children, whom Ermini was "in the habit" of hitting; and Emanuele testified to being fearful of his father on the basis of this physical and verbal abuse. These findings evinced a "propensity" for violence and physical abuse and a resulting fear in the children. It therefore held that the facts found by the district court were sufficient to meet the Hague Convention's requirement, by clear and convincing evidence, that the children faced a "grave risk" of harm because of Ermini's physical abuse.
The district court also held that Daniele faced a grave risk of harm if removed from his current therapy and returned to Italy. In light of its factual findings it held that the district court's conclusion of law was correct. The Court noted that Article 13(b) explicitly lists "psychological" harm and "physical" harm as appropriate harms for triggering the Convention's affirmative defenses, both of which are implicated by a developmental disorder such as autism. And it held that the facts as found by the district court lend themselves straightforwardly to the conclusion that the risk of harm was grave. First, the district court's findings established there was a probability that the harm would materialize. Second, the court's finding that Daniele would lose the ability to develop cognitive, emotional, and relational skills, and potentially lead an independent life, if removed from his current therapy and repatriated, establishes harm of a "severe" magnitude manifestly sufficient to satisfy the exception. Considering the unrebutted testimony before the district court concerning the risk of harm Daniele faced if he were returned to Italy, there was no reason to disturb its factual findings. Moreover, in light of the children's close relationship to each other, and, significantly, the conclusion it reached with respect to abuse, it determined as well that it was not error for the district court to decline to separate the children.
The Second Circuit observed that by denying the petition without prejudice to renewal, the district court allowed the parties to call upon future events and engage in prospective modifications in light of changed facts in precisely the way the Convention intended to prohibit. As the Explanatory Report shows, the Convention is concerned with events at a particular moment: it either requires return or, in light of the risks of harm or other circumstances, it does not. Once a determination properly applying the Convention to the facts at hand has been made, all other issues leave the realm of the treaty's domain. The Convention is not, and cannot be, a treaty to enforce
future foreign custody orders, nor to predict future harms or their dissipation. It concluded that the Convention did not permit denial of the petition without prejudice.
In Buenaver v Vasquez, --- F.Supp.2d ----, 2014 WL 3058250 (E.D.N.Y.) Petitioner and Respondent were married in Colombia. On January 31, 2005, their child, R.V.B. was born in Cali, Colombia. By order dated June 2, 2009 of the Seventh Family Court in Cali, Colombia, Petitioner and Respondent were divorced. The Order stated: With respect to the minor [R.V.B.], the spouses have agreed that parental rights will continue to be exercised by both parents; the custody and personal care will be held by the mother. The Order further defined the Father's visitation with the Child, The Father was also ordered to pay child support in the amount of one million five hundred thousand pesos (COP $1,500,000) and 80% of additional expenses, such as school materials and medical expenses. The Father, a commercial pilot with Avianca Airlines, exercised his rights of visitation and paid child support as directed, including tuition at a private school. In February 28, 2011, the Mother"summoned the father of the minor... for the purpose of requesting an increase in the fee for child support ...The Mother and Father entered into an agreement, approved by the Ministry of Social Welfare in the Republic of Colombia, to increase the amount of child support paid by the Father and they ratified the terms of the earlier Order, including visitation rights. The Modification stated that "the custody and personal care" will be held by the Mother, and further stated: The parents are obliged to provide their daughter with support, stimuli, good example, care, attention, affection and dedication required to fully, efficiently and satisfactorily fulfill their obligation, aimed at the minor being brought up in an environment surrounded by safety, discipline, affection, organization, respect and proper attention of her formation, friendships and
healthy psychological development.
There was no material dispute concerning the circumstances surrounding the
removal of R.V.B. from Colombia to New York. The Father was aware of and consented to the Child traveling with the Mother to visit the Mother's sister, Maria
Patricia Vasquez, in New York from December 16th to December 26, 2011. The Mother acknowledged that she needed to Father's consent to take R.V.B. on vacation. R.V.B. did not return to Colombia as the Father expected on December 26th. When the Father realized the Child was not on the plane, he called the Mother's mother to find out what happened, and was told that the Mother said she would not be returning to Colombia. On January 1, 2012, the Father received a phone call from the Mother, who confirmed she would not be returning to Colombia.
On August 1, 2013, the Father filed his petition under the Hague Convention.
The Mother testified that when she first came to New York, she and R.V.B. lived
with her sister and her sister's family in Elmont, New York, where she and R.V.B.
stayed for about a year. Soon after arriving in New York, beginning in January 2012, R.V.B. enrolled in school and attended first grade at the Clara H. Carlson School in the Elmont Union Free School District. R.V.B.'s . report card noted she "has made new friends" and "has progressed." She had a separate report card for the English as Second Language ("ESL") program she was taking at school, which noted her teacher's amazement at how much English she had leaned so quickly, and that work was needed to catch up her on reading and writing skills. While at Clara, in April and June 2012, R.V.B. was awarded the Sponge Award and Student of the Month in her ESL class. For second grade, R.V.B. attended a different school in the Elmont School District, Covert Avenue School. R.V.B.'s ESL Report Card in the 2012-2013 school year, her second grade year, noted her progress and her excellent work habits. Yet, her classroom report card noted that she was not meeting grade level expectations in reading, writing, math, science or social studies. The Mother testified that while at Covert, R.V.B. was awarded the Student of the Month. Following second grade, at the suggestion of her teachers, R.V.B. attended an ELS summer program before starting third grade to help her get her reading and writing skills to grade level. In September 2013, after she and her Mother moved to Bayside, Queens, R.V.B. started attending another school in that neighborhood. Since starting the school in Bayside, she attended an after-school program three days a week, which included classes on chess, yoga and cooking. R.V.B. also received tutoring help for math, reading and language,, and in the summer of 2013, began taking tennis lessons. The Mother testified that R.V.B. has adopted English very well, speaking English with her friends, watching TV in English, and reading and writing all of her schoolwork in English. Socially, her mother testified that R.V.B. has made several friends, both in and out of school and from her old school, attends birthday parties, and socializes with the relatives who live locally. She has medical insurance through Health First and received regular medical care. The Mother testified that after living with her sister for almost a year, she and R.V.B. moved to 453 Cameron Avenue, Elmont, a second floor apartment belonging to a friend for which she paid $300 .00 a month in rent. They stayed there for five months, until they moved to the apartment in which they lived now, in Bayside, paying $1,000 per month for rent. The Mother and R.V.B. currently live in this apartment by themselves, and R.V.B.'s school, P.S. 31, was a block away. The Mother worked cleaning houses and offices and babysitting. Upon furthering questioning by the Court, the Mother testified that she did not work and was essentially supported by her sister for the year that she lived with her. They had a family disagreement that caused the Mother to move out with R.V.B., but their relationship is fine now. The Mother began work cleaning houses, and worked at a Laundromat for a short period of time. There was also testimony that she worked at Checkers for a time. Currently, she cleaned houses and babysits if asked. In 2012 and 2013, the Mother testified she earned approximately $550.00 per week. When the Mother and R.V.B. came to New York, it was on tourist visas. The Mother's visa expired in either March or April of 2012, and she applied for residential immigration status in September 2012 for her and R.V.B., stating that she had custody of R.V.B. The Mother testified that because she is in the process of soliciting a residential visa, if she leaves the country, she will not be able to re-enter for ten (10) years.
The Mother claimed that she was never in hiding from the Father since arriving
in New York. He never emailed the Mother once between the time she and R.V.B. left
Colombia and the filing of the Petition, even though her email address was still
the same. She also testified that she had given the Father her sister's address in New York as 147 Hunnewell, Elmont, in July 2011, six months before she left, as well as her sister's cell phone number, neither of which changed while she was living there with the Child.
The Court observed that if an action for return of the child has been commenced within one year of the wrongful removal or retention, the judicial authority "shall order the return of the child forthwith."See Hague Convention, art. 12. If more than one year has passed before proceedings have commenced, the authority "shall also order the
return of the child, unless it is demonstrated that the child is now settled in
its new environment."Id. The respondent opposing return of the child must show
that the child is settled by a preponderance of the evidence. See 42 U.S.C. s
11603(e)(2)(B); Lozano v. Montoya, --- U.S. ----, ----, 134 S.Ct. 1224, 1229, 188
L.Ed.2d 200 (2014).
The Court pointed out that the Order concerning their divorce specifically stated that the Mother and the Father share "parental rights." Specifically, it stated:
With respect to the minor [R.V.B.], the spouses have agreed that parental rights
will continue to be exercised by both parents; the custody and personal care
will be held by the mother. There was no dispute between the parties that under Colombia law, by nature of at least his visitation rights with the Child, the Father's consent was required for the Child to leave the country. Here, like in Abbott, the
Father's consent was required for the Child to leave the country. In Abbott, the
Supreme Court viewed that as one that constitutes a right to establish the child's
residency, and as such, is a "right of custody" as defined by article 5 of the
Convention. By the same reasoning, the Court found that the Father's right to
authorize the Child to exit Colombia was a right to establish the Child's
residency, and thus a "right of custody" protected by the Hague Convention.
There was no real dispute in this case that the Father had consented for the
Child to travel to New York to visit with the Mother's sister and family until
December 26, 2011. In light of the Court's finding that the Father had "rights of
custody," the Mother's retention of the Child in New York beyond the period of
time consented to by the Father was wrongful. Nor was there any dispute that Colombia was the Child's habitual residence. It is where her parents were married, it is where she was born, it was where the parents got divorced, and is where the Child has lived for her entire life, until moving to New York. Thus, the Court found that Colombia was the Child's habitual residence, and it was from there that the Mother wrongfully retained her.
The Court pointed out that the court may consider whether the child is "settled in its new environment" if the petition has been filed over one year since the wrongful
removal. Convention, art. 12; 42 U.S.C. s 11603(e)(2)(B); Lozano, 572 U.S. ----,
134 S.Ct. at 1229, 188 L.Ed.2d 200. If an action for return of the child has been commenced within one year of the wrongful removal or retention, the judicial authority "shall order the return of the child forthwith."See Hague Convention, art. 12. If more than one year has passed before proceedings have commenced, the authority "shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment." The respondent opposing return of the child must show
that the child is settled by a preponderance of the evidence. The Second Circuit has found that " 'settled' should be viewed to mean that the child has significant emotional and physical connections demonstrating security, stability, and permanence in its new environment." Lozano, 697 F.3d 41, 56 (2d Cir.2012). Stating that the court may consider "any factor" relevant to the child's living arrangement, the Second Circuit outlined that when evaluating if the child is settled, the factors a court should generally consider are: (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. Loranzo, 697 F.3d at 57.
The Court held that the immigration status of the child is not "singularly dispositive" but the importance of this factor on settlement "will inevitably vary for innumerable reasons, including: the likelihood that the child will be able to acquire legal
status or otherwise remain in the United States, the child's age, and the extent
to which the child will be harmed by her inability to receive certain government
benefits." Loranzo, 697 F.3d at 57. The Second Circuit has declined to adopt a
categorical rule that this factor should only be dictated by the threat of deportation. The stability of the child's residence factor is a factor when evaluating if a child is settled. The Court found that the Child here was not sufficiently settled to warrant denying the return order. The record reflected that since the Child arrived in New York, she lived in at least three different locations. Initially, she lived with her Mother's family for about a year until a family dispute forced she and the Mother to find a new place to live. She then lived with a co-worker for a period of several months. Most recently, the Child and Mother live in a rented apartment in Bayside. These frequent moves have also caused the Child to attend three different schools since arriving in New York. From January 2012 until the end of that school year, she attended the Clara School. She attended the Covert Avenue School for the 2012-2013 school year (her second grade), and started yet a third school, P.S. 31, in the 2013-2014 school year for third grade. This is not settled. Furthermore, the Mother's employment was not settled. She testified that she was currently cleaning offices and babysitting when asked. There was evidence that for some unspecified periods of time, she worked at Checkers Restaurant and a Laundromat, and it was unclear from the record the reason for her leaving those jobs. The Mother testified that she earned approximately $550 per week and paid $1000 a month in rent. Finally, while not a dispositive factor, the immigration status of the Mother was a factor that disfavored finding the Child is settled in her new environment. The Mother testified that she and the Child originally traveled to New York on a tourist visa that expired in either March or April 2012. In September 2012, she applied for residency on behalf on herself and the Child, which application was pending. Thus, the Mother and Child were here illegally, and subject to deportation at any time. While there was no evidence that deportation was imminent, and indeed, may never occur, it was a threat that clouded the Child's daily living.
Considering all the various factors, and based on the facts that the Child had
already lived in various places, has attended three different schools since coming
to New York, that the Mother's employment and financial situation are unstable,
and the immigration status, the Court found that Respondent had not proven that
the Child was settled in her new environment to deny her return to Colombia. The petition was granted.
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.
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.
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").
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.
