San Martin v. Moquillaza, Not Reported in F.Supp.2d, 2014 WL 3924646 (E.D.Tex.) [Peru] [Habitual Residence] [Petition granted]

In San Martin v. Moquillaza, Not Reported in F.Supp.2d, 2014 WL 3924646 (E.D.Tex.) on July 7, 2014, Petitioner Ana Maria Veronika Mori San Martin filed an action seeking the  return of her nine-year-old and twelve-year-old daughters, both minors ("A.C.C.M.M. and A.A.M.M."), to Peru.   An attorney ad litem was appointed to interview the children, and be present during the in camera interview of the children with the Court.

         A.C.C.M.M. was born in Peru in 2002, when her mother, Petitioner, was 15
years-old and her father, Respondent, was 22 years-old.   In 2005, A.A.M.M. was
born in Peru.   Petitioner and Respondent are the biological parents of both
children.   Petitioner, Respondent, and the children lived in the same familial
home in Comos, Lima, Peru, until October of 2008, when Respondent left Peru and
moved to the United States for work.   He returned to Peru in March of 2009,  and
Petitioner and Respondent were married on April 8, 2009.   Respondent left Peru
again in May of 2009, and returned in December of 2009.   Over the next few  years,
this pattern continued with Respondent returning to Peru for approximately one month out of every year, and returning to the United States where he resided for the remaining eleven months.   Petitioner and Respondent separated, but continued to act as a married couple until 2012.  After their separation, the children continued living with Petitioner in the family home in Comos, Lima, Peru. The children attended school there, and lived close to their aunts and cousins.   When Respondent would visit Peru, he would stay with a cousin, but would visit with the children and they would stay with him
at times.   Until June of 2013, the children had never left Peru.    Petitioner
testified that when Respondent originally left Peru to go to the United States, the plan was to obtain legal resident status for himself, as well as for Petitioner and the children so that the  family could move to live in the United States.

In April of 2013, the parties entered into the Final and Complete Certificate of Conciliation that set forth their voluntary compromise and settlement agreement regarding custody of the children, visitation, alimony, and child support.   The agreement set out a monthly amount for spousal alimony and a monthly amount of support for the children.   The agreement also set out that the children are to reside in the home of their mother in Peru, allowed Respondent to visit the children in Peru as long as he did  not alter the schedule of studies, and provided that the children may visit the home of their father in the United States for two weeks in the mid-year school holidays and in the summer holidays, with Respondent bearing the travel expenses and costs for the visits.   Both parties signed and fingerprinted the agreement, and both agreed that the agreement was entered into voluntarily.

         On June 24, 2013, Petitioner signed an Authorization for Foreign Travel of Children form for both children, which allowed them to travel with Respondent from Peru to the United States beginning on June 25, 2013, and required Respondent to
return the children to Peru on July 10, 2013.   The children left Peru with
Respondent on June 27, 2013, and, as of the date of the bench trial, had not been returned to Peru.   The evidence revealed that Petitioner agreed to a limited extension of the children's visit to the United States, did not agree to the children's permanent removal from Peru, and that at the end of the requested extension Respondent refused to return the children. On February 12, 2014 petitioner submitted a request to the  Central Authority of Peru, and on March 3, 2014,  Petitioner's Request for Return of the Children was submitted to the United States Department of State through the Peruvian Central Authority.

The district court pointed out that although not defined in the Convention, a child's habitual residence is the place one would call his customary residence.   Friedrich v. Friedrich, 983 F.2d 1396, 1401 (6th Cir. 1993) (Friedrich I).   A person can have only one habitual residence .The Court must look back in time and not forward in determining a child's  habitual residence.  It was undisputed that the children were habitual residents of Peru before they left with their father in June of 2013. The Court found that the Peruvian Civil Code titled "Codigo de Los Ninos y Adolescentes" provides that when the parents are separated, "the custody of the children or adolescents is determined by mutual agreement between both parents, taking into consideration the child's and adolescent's opinion."   Codigo de Los Ninos y
Adolescentes, art. 81.   If there is no agreement,  " custody shall be resolved by the specialized judge, ordering the measures required to comply  with such order."  
 Petitioner and Respondent in this case entered into a Certificate of Conciliation, which provided that Petitioner has primary custody of the children, and grants Respondent visitation with the children in the United States.   It was  undisputed that Petitioner had  primary custody of the children, and was exercising her custody rights at the time the children were removed. Petitioner thus, satisfied her burden to show by a 
preponderance of the evidence that she had custody rights, and that the children
were removed from Peru in violation of those rights.  

  Respondent and his witnesses testified that Comos, a county in Lima, Peru, where the children and Petitioner resided was a beautiful, but dangerous place.
Respondent testified that when he was ten-years-old, his cousin was kidnapped and strangled near the school, which was five minutes away from the school where the
children are enrolled.   Respondent testified that the drivers in Comos are negligent, and that the children witnessed a car accident in which a small child was hit and killed by a car.   Respondent testified that there is a lot  of criminal activity, and that on many occasions cell phones and wallets are stolen from Petitioner and other family members.   Ms. Anglas testified that she feared for all children living in Comos.   Ms. Ramirez testified that children are not in danger in Comos, that they live in a suburb area where they have many friends and a police officer that lives nearby.   Ms. Ramirez agreed that some bad things have happened to her family members, but that they were many years ago.    Respondent also testified that returning the children to Peru would be a grave risk to the children because Petitioner often drank alcohol and left the children either unattended or with another adult so that she could go to parties. Respondent testified that the children have seen their mother intoxicated to the point where she could not stand up or take care of the children.   Respondent  also testified that on one occasion Petitioner left A.C.C.M.M. alone in the home while she attended a party.   Petitioner agreed that she had left A.C.C.M.M. in the home while she attended a party, but stated that another adult, Mr. Diaz, stayed overnight with her, and A.C.C.M.M.'s grandmother arrived in the morning to pick her up.   Mr. Diaz agreed that he stayed overnight with A.C.C.M.M. on that occasion, and that he has seen Petitioner consume alcohol at parties.   Respondent also testified that Petitioner hit one of the children with a belt on one occasion.   Petitioner testified that she has never hit the children with a belt or spanked the children.  The court found that this  testimony by Respondent was
simply not enough to establish by clear and convincing evidence that the children would be in  grave risk of physical or psychological harm if returned to Peru, or
that Peru cannot provide adequate protection to the children.

           At the close of the parties' cases, the Court questioned both children separately in camera.   The attorney ad litem was present for this questioning and given the opportunity to question her client.  The Court found that it was not appropriate to take into account A.A.M.M. or A.C.C.M.M.'s view.   During the in camera interview, due to the young age, immaturity, and timidity of A.A.M.M., the Court did not reach the question of whether she would prefer to live in the United States or Peru.   A.C.C.M.M., twelve-years-old, testified that when she came to the United States with her father, she thought it was a vacation, but that she was thinking about staying in the United States.   Of concern to the Court was that when  asked where she would like to live, A.C.C.M.M. stated that she wanted to live with her father and her mother in the United States as one family in one house. A.C.C.M.M. did not appear to grasp that her mother lived in Peru, and, at least for the present time, was not coming to the United States.  It was  not clear that she understood the purpose of the proceedings, and that gravity of her choice to live in the United States.   A.C.C.M.M.'s stated reason for wanting to live in the United States was because she liked the school here better, and it was not as dangerous as it was in Peru.   The Court found that A.C.C.M.M. was confused by the circumstances producing the litigation, and did not understand the choice she was being asked to make. The Court found that neither of the children understood the proceedings and their right to state their preferences, and did not unequivocally express a desire to remain in the United States for any reason other than generalized affinity for this  country after having lived here for the last year.   Thus, the Court found that Respondent failed to meet his burden to establish that one or more of the affirmative defenses apply to prevent the return of the children in this case.

Matter of SLC, 2014 WL 2801053 (M.D.Fla.) [Mexico] [Habitual Residence] [Petition granted]

In Matter of SLC, 2014 WL 2801053 (M.D.Fla.) petitioner Mario Alberto Lopez Morales's filed a Petition against Respondent Nency Castellanos Martinez for Return of Child to the Republic of Mexico on February 14, 2014. The District Court granted the petition.

The parties were married in Mexico on September 6, 2003. Petitioner was a citizen of Mexico and respondent was a citizen of Cuba and Mexico. Their daughter, S.L.C., was born in 2002 and was a citizen of Mexico.  In June 2006, respondent removed S.L.C. from Mexico and brought her to Florida to live with respondent's family due to marital troubles. Petitioner was able to convince  respondent to return to their marital home in Mexico. Respondent and S.L.C. resided with petitioner in Mexico until April 2012, at which time they again returned to Florida without petitioner's knowledge or consent. Petitioner learned that respondent and S.L.C. were located in Florida, and on May, 16, 2012, petitioner filed a Hague  application with the Mexican Central Authority. Petitioner also filed a civil action seeking provisional care and custody over the child in Mexico. In August 2012, petitioner visited his wife and daughter in Florida, and on August 30, 2012, respondent and S.L.C. voluntarily returned to Mexico. As a result, petitioner halted the proceedings under the Hague Convention in Mexico.  Prior to leaving the United States, Castellanos, on behalf of herself and S.L.C., applied for asylum as a Cuban immigrant. Lopez, however, was unaware of the application for asylum.  Upon their return to Mexico, petitioner and respondent did not live together as a family but were separated. Petitioner rented an apartment for respondent and S.L.C., and arranged for S.L.C. to return to the private school she had attended since prekindergarten. Petitioner paid  for their apartment, automobile, food, school, and living expenses. He also deposited money into an account that could only be accessed by respondent.

         On September 12, 2012, respondent filed a criminal complaint against petitioner for  aggravated family violence. On the same day, Castellanos entered the formal marital residence  with the purpose of residing there and took steps to prevent petitioner from entering the  premises. Lopez thereafter resided in an apartment. Petitioner testified that he would take S.L.C. to school in the mornings and would take her to dinner and do homework with her two to three times a week. On weekends, petitioner would spend time with his daughter and take her to visit family and friends. This continued until January 2013. Petitioner was able to contact S.L.C. directly on the cell phone that he had  provided to her. On February 1, 2013, respondent filed a child custody case in Mexico, to which petitioner filed a countersuit seeking guardianship and custody of the child, as well as an order prohibiting the mother from removing the child from Mexico. On February 26, 2013, the court entered an  order prohibiting respondent from leaving the country with S.L.C. during the proceedings.  Prior to the entry of the order, respondent decided to return to Florida. Respondent testified that she entered the United States with S.L.C. on February 24, 2013, without petitioner's knowledge or consent. 
   
Petitioner discovered the absence of S.L.C. on March 1, 2013, when the child's teacher  advised petitioner that S.L.C. had not attended classes since February 22, 2013. Respondent did not inform petitioner as to S.L.C.'s whereabouts or provide him with any contact information. Petitioner was eventually able to locate S .L.C. with the assistance of federal and local law enforcement agencies.

The evidence showed that S.L.C. was born and raised in Chiapas, Mexico, 
attended school in Mexico, and was a citizen of Mexico. Although S.L.C. lived in Florida for a short period in 2012, without the consent of petitioner, and had now spent  more than a year in the United States, the Court found that her habitual residence had not  changed due to the unilateral actions of respondent. According to the Eleventh Circuit, "in the absence of settled parental intent, courts should be slow to infer from such contacts [with the new residence] that an earlier habitual residence has  been abandoned." Ruiz, 392 F.3d at 1253. Respondent has failed to present any evidence indicating that petitioner and respondent intended to abandon their home in Mexico in favor of moving to Florida. The relatively limited period of time S.L.C. spent in Florida in 2012 was without the consent of petitioner, and therefore violated the Hague Convention. The Court found that the habitual residence of S.L.C. at all relevant times was Mexico. The evidence showed that respondent removed the child from her habitual residence in Mexico without petitioner's consent and retained her in the United States without petitioner's permission. The Court found that there was a "removal" and "retention" of S.L.C. within the meaning of the Hague Convention from at least February 24, 2013, forward. The evidence  established that petitioner and respondent had not agreed to the  terms of exertion of parental authority/responsibility over S.L.C. and that custody proceedings remained pending in Mexico. Thus, the Court found that the rights  and obligations provided by the doctrine of patria potestas created a "right of custody" and  concluded that the rights and obligations of petitioner had not been severed. Additionally, the Hague Convention specifically provides that "rights of custody" include "the right to determine the child's place of residence." Hague Convention art. 5. One parent may not  unilaterally determine the country in which the child will live; this means that "the habitual residence of the child cannot be shifted without mutual agreement."   The Court concluded that the evidence established that respondent's removal and retention of the child was wrongful under the Hague Convention. Respondent's unilateral removal and retention of S.L.C., without the consent of petitioner, violated petitioner's custody rights under the law of Mexico. Petitioner established he was exercising his rights of custody at the time the child was wrongfully removed and retained. Petitioner took steps to remain in contact with S.L.C., such as taking her to school, spending time with her on the weekends, and providing her with a cell phone and iPad. Petitioner testified that he paid for S.L.C. to attend a private school as well as numerous other expenses. 

          The district court noted that a court is not bound to order the return of a child if respondent demonstrates by a  preponderance of the evidence that "the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Hague Convention, art. 13; 42 U.S.C. 11603(e)(2)(A). Respondent testified that S.L.C. informed her that she did not want to go back to Mexico and was really happy here. Respondent further testified that S.L.C. was very intelligent and cannot  be manipulated because she knows what she wants. Despite the child's objection, the Court concluded that, under the circumstances of this case, S.L.C.'s opinion on returning to Mexico was not conclusive. S.L.C. was only 12 years old and had been under the exclusive custody of respondent for an extended period of time. Naturally, she preferred to remain here in the United States with her mother instead of moving back to Mexico. The Court found that the return of S.L.C. to Mexico furthered the aims of the Hague Convention, and therefore would exercise its discretion to order her return despite her view.

White v. White, 556 Fed. Appx. 10 (2d Cir., 2014) [Fed & State Judicial Remedies] [Petition Denied]

In  White v. White, 556 Fed. Appx. 10 (2d Cir., 2014) the father brought an action against his former wife, pursuant to Hague Convention, for the return of his son from New Jersey. The United States District Court, 2013 WL 1340145, adopted the report
and recommendation of the United States Magistrate Judge,  2012 WL 3041660, and
dismissed action as barred by Rooker-Feldman doctrine, res judicata, and
collateral estoppel and for failure to state a claim. The Second Circuit affirmed for substantially the same reasons stated by the district court and by the magistrate judge, whose report and recommendation was adopted by the district court.   This action was in essence a protracted custody dispute on appeal from a state court judgment granting custody of Appellant's son to his ex-wife in New Jersey.   It rejected the father’s argument that the Hague Convention on the Civil Aspects of International Child Abduction and its implementing statute, the International Child Abduction Remedies Act, required the return of his son to his custody in New York and repayment of monies that Appellant has paid to Appellee since 2005. It pointed out that the Hague Convention"does not establish substantive standards for resolving the merits of any underlying custody dispute."   Mota v. Castillo, 692 F.3d 108, 112 (2d Cir.2012) (citing Hague Convention, art. 19).  Rather, the Convention's focus is simply upon whether a child should be returned to her country of habitual residence for custody proceedings.  The German Court's determination of "habitual residence," therefore, did not bear upon the New York state court custody proceedings.   The conduct of such proceedings in New York is entirely consistent with the German Court's order.   Thus, procedural bars aside (all of which the district court correctly found applicable), Appellant's complaint failed to state a claim, and amendment would have been futile.

  

Vilchis v. Hall, Not Reported in F.Supp.2d, 2014 WL 2978378 (N.D.Ill.)[Mexico] [Habitual Residence] [Petition Denied]

In Vilchis v. Hall, Not Reported in F.Supp.2d, 2014 WL 2978378 (N.D.Ill.) Petitioner Carmen Marlyn Solano Vilchis and Respondent Anthoney Wayne Hall were
the parents of two daughters ages five and seven. Solano was born in Mexico and was a citizen of Mexico.   In 1999, when  she was thirteen years old, Solano moved to the United States with her family and settled in Illinois. She resided in the  United States as an undocumented immigrant. Hall was born in Illinois, and was a United States citizen. Solano gave birth to their first daughter in May 2007 and their second daughter in November 2008.  The children were United States citizens.  The couple lived together sporadically in the Chicago area until October 2010.  In October 2010, Solano told Hall that she and her family had to leave Illinois immediately, within a day or two, due to threats made against Solano's sister by the sister's husband, a man named Juan Hacha. The court expressly found that Solano would not have wanted to leave Illinois but for that threat.   Hall did not want to leave Illinois and did not want the children to leave Illinois.  Hall decided to leave Illinois with Solano so that he could remain with their children.  At first, Solano told Hall they were going  to California.    At some point during the trip, which the entire  group took in Hall's truck and two other vehicles, Solano and her family told Hall that they in fact were going to Mexico.  Hall persuasively testified that he never wanted to move himself and the children to Mexico.   At the time he agreed to leave Illinois, Hall did not intend for the children to establish residence in Mexico. Solano, her family, Hall, and the children arrived in Mexico in mid-October 2010.  They spent about two weeks in northern Baja California and  then went to Mexico City.  In late November 2010, Hall went to the United States Embassy in Mexico City to ask for help in getting the children back to the United States. After a brief stay in Mexico City, Solano and the children moved to the Tijuana area, directly across the border from the United States. Hall returned to Illinois in December 2010 and stayed there for several weeks.  

In February 2011, Hall returned to the San  Diego area, directly across the border from Mexico. During the next several months, Hall looked for work in the United States and crossed the border every day to see Solano and the children.  During that time, Solano wanted to cross the border from Mexico to the United States to live in the United States.   Hall visited  lawyers in an effort to help Solano achieve that goal legally, but those efforts were unsuccessful. Solano testified she attempted to change her immigration status so that she could try to return to the United States.     During Summer 2011, with Solano's consent and financial support, Hall took the children for a trip to the Chicago area.  all returned with the children to California, and then brought the children to Mexico to see Solano.  Solano told Hill  that Hacha, her sister's husband, was back in the picture and in the area, which greatly concerned Hill given his belief that Hacha was dangerous and possibly in a gang or cartel. From mid-September 2011 through mid-October 2011, Hill and the children stayed at the Dreams for Change Safe Parking Program, a parking lot in the San Diego area with amenities where homeless persons may spend the night in their cars. From mid-October 2011 through late December 2011, Hill stayed at the YMCA Cortez Hill shelter with the children.  During that time, Hill brought the children to Tijuana to see Solano on some weekends;  the visits to Mexico became more frequent when Hill heard that Solano's sister and Hacha were not around.  Also during that time, the  children were enrolled in Wee Care, a daycare center in Chula Vista, a town between San Diego and the  Mexican border;  they also received medical care through CalWorks, a state medical program in California, and other benefits through the California Women Infants and Children program.  On September 9, 2011, Solano sent an email to Hall stating, in part:  "I want the kids to go to school in California defenetely [sic] not in Mexico not at all."   In October 2011, Hall sent Solano an email stating:  "I will bring them to visit you, i' can't really say when because we are in a program.   We found  a school the girls liked and they start soon [so] they need the[ir] blankets and pillows.   And shoes we go to the park for hours the[ir] shoes wear out  fast." This email  provided confirmation that the children largely stayed with Hall in Fall 2011 and attended school in the United States. Hall brought the children to Mexico for Christmas break in December 2011.  The girls traveled back and forth from the United States to Mexico,  spending nights in both places, from January 2010 through May 2012. In April 2012, Hall signed a month-to-month rental agreement for an apartment in Chula  Vista;  the agreement listed the occupants as Hall and the children.  Each child  had a bed and toys in the apartment. In May 2012, the children began attending Miss Evelyn's Daycare in Chula Vista, and the older child soon began to attend kindergarten at Julian Rice Elementary School in Chula Vista.    From that point through July  2012, the children regularly spent the night with Hall on the United States side of the border.  Hall's mother, father, and sister testified at the hearing that they visited Hall during Summer 2012 for about two weeks and that the children stayed with Hall every night. Solano testified at the hearing that she "release[d] the kids back to" Hall in "around June 2012."    Solano testified that she did this  because Hall told her that he had "a good job" and "an apartment," and she further testified that she and Hall came "to an agreement where the kids will go to school so that they continue to learn their English and keep their language." 

In July 2012, Hall enrolled the children in Medi-Care Managed Care, a state
healthcare program operated by California.   Hall was unable to pay the rent at the Chula Vista apartment and was evicted by order of a California court in early August 2012. Shortly thereafter, Hall started making plans to return with the children
to Illinois, where Hall had a substantial support network of family.   Hall informed Solano, who said that "she was okay with it" and that she just wanted to see the children before they left.   Hall believed at the time that Solano would attempt to cross into the United States, legally or illegally, and meet up with Hall and the children in Illinois.    Hall and the children left the San Diego -Tijuana area in late August 2012
and  lived in Waukegan, Illinois, ever since.  

The district court noted that unlike the situation in most Hague Convention cases, the children moved fluidly and regularly (at times daily) between  United States and Mexico, with the consent of both parents.   This made it difficult to determine whether Hall removed the children from  Mexico or retained them in the United States when he took them from the San Diego -Tijuana area to Illinois.   In addition the parties' briefs recognized no distinction between the habitual residence analysis in retention versus removal cases. The court held that the parties  therefore waived any argument that this case involved retention as opposed to removal (or vice versa) or that the habitual residence analysis differed in any material respect between those two scenarios. The district court noted that the parties agreed that Solano could prevail only if she showed that Mexico was the children's  habitual residence in late August 2012, when the alleged wrongful removal/retention occurred.   "The determination of 'habitual residence' is to be made on the basis of the everyday meaning of these words rather than the legal meaning that a particular jurisdiction attaches to them ...."   Kijowska, 463 F.3d at 586.    "The determination of habitual residence under the Hague Convention is a practical, flexible, factual  inquiry that accounts for all available relevant evidence and considers the individual circumstances of each case."   Redmond, 724 F.3d at 732. "Determining a child's habitual residence ... requires an assessment of the observable facts on the ground, not an inquiry into the child's or the parent's legal status in a particular place."  The district court pointed out that the Seventh Circuit had loosely adopted the framework set forth in  Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001), for determining habitual residence. "In the case of  young children, the [Mozes] court found it most prudent to focus on the intent of the parents rather than the intent of the child in determining the child's habitual residence."   Koch, 450 F.3d at 713.   The district court must "determine  whether the parents intended to abandon their previous habitual residence, judging that intent at the last time the parents had a shared intent."    As  the Seventh Circuit made clear, the district court also must consider, in addition to the  parents' last shared intent, "the child's acclimatization" to one country or another.   Redmond, 724 F.3d at 746.

        It was undisputed that until Solano, Hall, and the children left Illinois in  October 2010, the children's habitual residence was the United States.   The question was wether their habitual residence changed to Mexico at any point between October 2010 and late August 2012.   The court held that answer to that question was "no".  Hall never intended that his children would reside indefinitely in Mexico.  Hall allowed the children to leave Illinois in October 2010, and he agreed during the trip to the West Coast that the children would go to Mexico.   But the circumstances of the group's departure from Illinois were extenuating, prompted by threats from Hacha that were sufficiently dire and  credible to compel the family to pick up and leave Illinois on such short notice.   It was always Hall's intention that the children would return with him to the United States, albeit in southern California rather than Illinois, so that the children (and possibly Hall) could remain close to Solano, who could not legally cross the border into the United States.  These conclusions were proven by, among other things, the fact that Hall asked the United States Embassy in Mexico City in November 2010, shortly after the group's arrival in Mexico, for help in getting the children back to the United States;  Hall's extraordinary efforts to have the children live with him in California, even if it meant living in a parking lot for homeless families or a YMCA  shelter;  Hall's seeking legal assistance in an effort to obtain legal status for Solano in the United States;  and Hall's enrolling the children in daycare, school, and the state medical assistance  program in California.  This showed that Hall never intended for the children to relocate indefinitely from the United States to Mexico.   This was significant because precedent required the court "to determine whether the parents intended to abandon their previous habitual residence, judging that intent at the last time the parents had a shared intent."   Koch, 450 F.3d at 709.   Thus, even if Solano had intended for the children to reside indefinitely in Mexico, that intent was not shared with Hall, which meant that their last shared  intent was for the children to reside indefinitely in the United States, which in turn favored the  conclusion that their habitual residence was the United States.  

The evidence showed that Solano herself did not intend for the children to reside indefinitely in Mexico.   This was proven by, among other things, Solano's testimony that she has made efforts to obtain legal immigration status in the United States in order to return there;  Solano's September 2011 email to Hall stating, "I want the kids to go to school in California defenetely [sic] not in Mexico not at all";  Solano's admission that she "release[d] the kids back to" Hall in "around June 2012" upon learning that he had "a good job" and "an apartment";  her further admission that she and Hall came "to an agreement where the kids will go to school so that they continue to learn their English and keep their language";  and Solano's deposition testimony that she did not want the children to go to  school in Mexico and that she preferred that they attend school in California "to keep their English."   Solano's efforts to obtain legal status in the United States reflected a desire to return to the United States to be with the children and possibly Hall.  Solano's strong desire for the children to attend school in the United States and not Mexico, and for the  children to keep their English skills, reflected an intent that her children make the United States their home;  if she wanted the children to live in and become acclimated to Mexico then it would have been important for them to attend school in Mexico.  The fact that Solano agreed to "release" the children to Hall once she was assured that Hall had a job and an apartment showed that her intent was not that the children reside indefinitely in Mexico, but that the children stay in Mexico until Hall had an acceptable place for them to live in the  United States.

         Because  "the parents' last shared intent" is not "a kind of fixed doctrinal test for 
determining a child's habitual residence," Redmond, 724 F.3d at 732, the court  also 
considered the children's "acclimatization" to the United States and Mexico, respectively. The children moved fluidly  across the border and spent nights with Solano in Mexico and Hall in the United States, so their actual location during the relevant time frame was a wash.   Most significant in terms of acclimatization was that the children were enrolled in daycare and school and received healthcare services in the United States. It could not be said that the children acclimated to Mexico while attending daycare and school in the United States, even granting that Solano's family resided largely if not exclusively in Mexico. Solano's acknowledged goal of obtaining legal status in the United States reflected her desire to come back to the United States and thus her  understanding that the children would remain acclimated in and make their home there.

    The Court found that Solano did not prove that the children's habitual residence in late August 2012 was Mexico, and therefore she did not prove that Hall's removal of the children from Mexico or retention of the children in the United States was wrongful within the meaning of Article 3 of the Convention.   Given this conclusion, there was no need to determine whether Solano consented to the retention or removal within the meaning of Article 13(a).  

Bobadilla v Cordero, 2014 WL 3869998 (M.D.N.C.) [Mexico] [Now Settled] [Discretion to Order Return] [Petition granted]

In Bobadilla v Cordero, 2014 WL 3869998 (M.D.N.C.)   Ms. Ramos and Mr. Cordero were citizens of Mexico. They never married. Their child, B.F.S.R.,  was born in Cabarrus County, North Carolina, in 2006, and was a citizen of both Mexico and the United States. Neither Ms. Ramos nor Mr. Cordero had legal immigration status in the United  States.   In December 2009, Ms. Ramos and B.F.S.R. moved to Zacatecas, Mexico, where the parties had planned to build a small house on Mr. Cordero's parents' land. Mr. Cordero paid for the airplane tickets. The parties agreed that Mr. Cordero would join Ms. Ramos and the child after he earned more money in North Carolina to fund the construction. Ms. Ramos and the child lived with Mr. Cordero's family, and Ms.Ramos oversaw the construction of the parties' new home, the exterior of which was completed in March or April of 2010. Ms.Ramos and B.F.S.R. travelled to Tijuana to stay with her family. At some point while Ms. Ramos was in Tijuana, the parties ended their romantic relationship because of Mr. Cordero's refusal  to come to Mexico. In August 2010, the parties agreed that B.F.S.R. would travel to North Carolina to stay with Mr. Cordero for a visit. Before B.F.S.R. left Mexico, Mr. Cordero signed a notarized statement agreeing to return B.F.S.R. to Ms. Ramos in Tijuana on January 14, 2011,  and provided the statement to Ms. Ramos. Mr. Cordero paid for B.F.S.R.'s travel expenses.   Mr. Cordero did not return B.F.S.R., despite Ms. Ramos's requests and demands. Since then, B.F.S.R. has lived with Mr. Cordero, Mr. Cordero's brother, and Mr. Cordero's sister, her husband, and her daughter. He attends school in Concord, North Carolina, he plays soccer, and he sees friends and Mr. Cordero's family regularly. Mr. Cordero has allowed only intermittent telephone and internet-video contact between the child and Ms.  Ramos. In September 2011, Ms. Ramos attempted to cross over the United States border using a false passport and was arrested and deported.

In March 2012, Mr. Cordero filed a custody petition in North Carolina district court. That same month, Ms. Ramos filed a Hague application to the Mexican authorities, for which the custody suit was stayed. Petitioner Rosa Ramos Bobadilla sought the return of her minor child, B.F.S.R., to Mexico. Ms. Ramos, who was not employed, searched for an attorney to assist her, eventually obtaining representation pro bono from Legal Aid of North Carolina. She filed this petition on March 11, 2014.
The Court held an evidentiary hearing  at which Mr. Cordero appeared in  person and Ms. Ramos appeared by video feed.  The Court found that B.F.S.R. was habitually residing in Mexico as of January 14, 2011, as the  shared intent of the parents was to settle in Zacatecas. The parties agreed that they would move to Zacatecas and build a house on Mr. Cordero's parents' land. Mr. Cordero purchased one-way tickets for Ms. Ramos and the child. Ms. Ramos and the child traveled to Mr. Cordero's parents' home, and they began building the house, for which Mr. Cordero sent money. Even Mr. Cordero testified that he intended to join Ms. Ramos and the child in Zacatecas. They had no specific plans to return to the United States; indeed, return would have been difficult since neither parent could do so legally. Because Mexico was the habitual residence of the child and the other elements of a prima facie case were 
established without dispute, the Court concluded that Mr. Cordero wrongfully retained B.F.S.R. 
within the meaning of the Hague Convention.

         Mr. Cordero asserted the "well-settled" affirmative defense. Ms. Ramos did not dispute that she failed to file her Hague petition within one year of the removal, but she contended  that B.F.S.R. was not well-settled in North Carolina. The district court concluded that a preponderance of the evidence did not show that B.F.S.R. was well-settled and that application of this narrow defense was not warranted. Mr. Cordero testified at the hearing in Spanish through an interpreter and the child's report cards from school were sent home in Spanish, establishing that B.F.S.R. lives in a Spanish-speaking household and community. Mr. Cordero also testified that the child's English gets better every day, making it clear that Spanish was his primary language. This indicated both that the child had not completely acclimated to a culture in which English is the predominant language and that a return to Mexico would not cause language problems common in many cases where the "well-settled" defense is applied. The child's life in North Carolina was not so different from his life in Mexico 
that it would be "worse to order the child to be uprooted."     Belay v. Getachew, 272 
F.Supp.2d 553, 562 (D.Md.2003). Moreover, there were significant aspects of the child's life in North Carolina that were not stable.  The child had required therapy in North Carolina to deal with sadness over his parents' separation. Despite this, Mr. Cordero had not allowed the child to have contact with his  maternal grandparents and uncle in Cabarrus County and had not allowed the child to have  regular telephone or video-internet contact with his mother. This interference with family relationships is inherently disruptive and was particularly disruptive here. See  Lozano, ---U.S. at ----, 134 S.Ct. at 1236 (noting with approval that "American courts have found as a factual matter that steps taken to promote concealment can also prevent the stable attachments that make a child 'settled' " and citing cases.) This compared negatively to B.F.S.R.'s situation when he resided in Mexico, where he maintained relationships with both parents' families in that country. Finally, Mr. Cordero's immigration status made B.F.S.R.'s living situation tenuous, as his primary caretaker could be arrested and deported to Mexico at any time. See  In re R. V.B., --- F.Supp.2d ----, 2014 WL 3058250 at *12 (E.D.N.Y.July 7, 2014) (noting that "the immigration status of [the abducting parent] is a factor that disfavors finding the Child is settled"). Weighing all of these considerations, the Court found that Mr. Cordero had not established the  "well-settled" defense by a preponderance of the evidence.

          The district court observed that a Federal court retains the discretion to return a child, despite the existence of a defense, if return would further the aims of the Convention. (See  Miller, 240 F.3d at 402; England v. England, 234 F.3d 268, 270–71 (5th Cir.2000); Friedrich II, 78 F.3d at 1067 (citing Feder, 63 F.3d at 226) (citing Pub. Notice 957, 51 Fed.Reg. 10494, 10509 (1986)); Antunez-Fernandes v. Connors-Fernandes, 259 F. Supp. 2d 800, 812 (N.D. Iowa 2003) , the Court  found that equitable justifications warranted the Court's exercise of its discretion even if  B.F.S.R. was well-settled. Ms. Ramos was unable to legally come to the United States for a custody hearing, whereas there were no legal impediments to Mr. Cordero's return to Mexico, where he was a citizen, for participation in a custody hearing there. Mr. Cordero also limited or even prevented opportunities for Ms. Ramos and her family to maintain a relationship with B.F.S.R. after the wrongful abduction. Antunez-Fernandes v. Connors-Fernandes, 259 F.Supp.2d 800, 815 (N.D.Iowa 2003) (considering abducting parent's attempts to sever meaningful relationship with petitioner in exercising discretion to return child).   Ms. Ramos had convincingly shown that her delay in filing the petition should not weigh against her as the Court balances the equities. Ms. Ramos initiated efforts to retrieve B.F.S.R. soon after he was  wrongfully retained and even attempted to illegally re-enter the country so she could see her son. Moreover, Mr. Cordero was financially supporting Ms. Ramos up until their breakup, Ms. Ramos was indigent, and she diligently pursued pro bono representation. Mr. Cordero abducted B.F.S.R. with knowledge that Ms. Ramos did not have the legal or financial means to  enforce her rights. See, e.g .,  Belay 272 F.Supp.2d at 561;cf.  Lozano, — U.S. at ----, 134 S.Ct. at 1236-1240 (Alito, J., concurring) (approving consideration of concealment in exercise of equitable discretion.)

Murphy v Sloan, --- F.3d ----, 2014 WL 4179961 (C.A.9 (Cal.))[Ireland] [Habitual Residence] [Petition Denied]

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."

Ermani v Vittori, --- F.3d ----, 2014 WL 3056360 (C.A.2) [Italy] [Grave Risk of Harm] [Petition Denied]

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. 

Buenaver v Vasquez, --- F.Supp.2d ----, 2014 WL 3058250 (E.D.N.Y.) [Colombia] [Now Settled] [Petition Granted]

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.